Anton Durbeck GmbH v Den Norske Bank Asa, Court of Appeal - Commercial Court, November 11, 2005, [2005] EWHC 2497 (Comm)
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Anton Durbeck GmbH v Den Norske Bank Asa, Court of Appeal - Commercial Court, November 11, 2005, [2005] EWHC 2497 (Comm)
Neutral Citation Number: [2005] EWHC 2497 (Comm)Case No: 2001 FOLIO 1402IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONCOMMERCIAL COURTRoyal Courts of JusticeStrand, London, WC2A 2LLDate: 11/11/2005Before:MR JUSTICE CHRISTOPHER CLARKE- - - - - - - - - - - - - - - - - - - - -Between:- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -Mr Nigel Meeson QC (instructed by Swinnerton Moore) for the ClaimantMr Luke Parsons QC and Miss Nichola Warrender (instructed by Stephenson Harwood) for the DefendantHearing dates: 16th - 19th May 2005- - - - - - - - - - - - - - - - - - - - -Judgment30MR JUSTICE CHRISTOPHER CLARKE1. In this case a bank arrested in Panama a vessel carrying the claimant's cargo of bananas. As a result of the vessel's detention the bananas deteriorated so that they had to be discharged into the sea and were totally lost. The claimant's agreed loss is 2,396,213.88 euros. The facts of the case are unusual in that at the time of the arrest the vessel had no P & I cover; transhipment of the bananas was not feasible and there was no market for them in Panama. The question for decision is whether the claimant is entitled to recover damages in respect of their loss from the bank on the ground that it wrongfully interfered with the performance of the bill of lading contracts pursuant to which the bananas were being carried.The Parties2. The claimant - Anton Durbeck GmbH - was the consignee of the cargo. The bananas were shipped in Ecuador for carriage to Hamburg via the Panama Canal upon the ``Tropical Reefer''. 3. The defendant - DnB Nor Bank ASA - is a Norwegian bank (``the Bank''). It used to be called Den Norske Bank ASA. The vessels and their owners4. Three vessels feature in this case. The first is the ``Blue Reefer'' owned by Nexus Management Co Ltd (``Nexus Management''). The second is the ``Spring Reefer'' owned by Blue Nexus Shipping Company (``Blue Nexus''). These two companies are registered in the Bahamas. The third is the ``Tropical Reefer'' owned by Palmetto Shipping Company Limited (``Palmetto''), a Cypriot company. The ultimate beneficial owner of these three vessels was a Cuban corporation - Asociacion de Navieras de Cuba (``Antares''). Antares was the parent company of the three ship owning companies and was itself owned by the Cuban Ministry of Fishing. The managers of the vessels were Nexus Reefer - until February 2000 - and then Naviera Friomar (``Friomar''), both of which are Cuban.The finance5. By a Loan Facility Agreement of 1st December 1997 (``the first loan'') the Bank agreed to make available to Nexus Management, Blue Nexus and Palmetto (``the borrowers'') US $6,000,000. It was to be repaid in nine quarterly instalments of $450,000 and a final instalment of $1,950,000. The purpose of the facility was to finance the purchase of ``Blue Reefer'' and ``Spring Reefer'' and to refinance Palmetto's indebtedness in respect of ``Tropical Reefer''. The security for the first loan included (i) first statutory mortgages over each vessel; (ii) a guarantee and indemnity provided by Acemex Management Company (``Acemex Management''), a Liechtenstein corporation; (iii) assignments of all insurances, earnings and charter hire; and (iv) deeds of covenants. The first loan is subject to English law. The loan agreement provided, inter alia, that the failure to pay any part of the Indebtedness or to perform any of the terms of the Security Documents was to constitute an Event of Default. One of the terms was that the relevant vessel should remain insured with a P & I Club. The mortgages and the deeds of covenant in respect of the ``Tropical Reefer'' are subject to the law of Cyprus but it is agreed that there is, for present purposes, no difference between English and Cypriot law. 6. In December 1998 the Bank entered into a second loan agreement with Arina Trading SA, a Bahamian company, under which it agreed to lend $1,375,000 in order to enable Arina to purchase the ``Sky Reefer''. Security similar to that of the first loan was taken with an additional guarantee from a company called Lomar.The history 19997. From the Bank's point of view the financing had a chequered history. On 9th March 1999 an instalment due under the fi...See the full content of this document
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