Bergen Industries and Fishing Corporation & Ors v Holding Company Dalmoreproduct & Anor, Court of Appeal - Commercial Court, August 01, 2001, [2001] EWHC 482 (Comm)

Extract

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Bergen Industries and Fishing Corporation & Ors v Holding Company Dalmoreproduct & Anor, Court of Appeal - Commercial Court, August 01, 2001, [2001] EWHC 482 (Comm)

58

IN THE HIGH COURT OF JUSTICE 2000 Folio 1341

QUEENS BENCH DIVISION

COMMERCIAL COURT

The Royal Courts of Justice

Strand, LONDON

Date:1 August 2001

Before:

MR JUSTICE CRESSWELL

BETWEEN:

(1) BERGEN INDUSTRIES AND FISHING CORPORATION

(2) BOLERO SHIPPING COMPANY LIMITED

(3) JV RYBCOMFLOT

Claimants

-and-

(1) HOLDING COMPANY DALMOREPRODUCT

(2) 000 DALMOREPRODUCT TRAWLERS

Defendants

-and-

(1) PACIFIC TRAWLERS INC

(2) CRYSTAL SEAFOODS LIMITED

Part 20 Defendants

-and-

YERANIA INVESTMENTS COMPANY LIMITED

Part 20 Defendants and Claimants

____________________

Mr. J COOKE QC, Mr. John SNIDER and Mr. James COLLINS (instructed by Sach Solicitors) appeared on behalf of the Claimants.

Mr. M HOWARD QC, Mr. Vernon FLYNN and Ms. Susannah JONES (instructed by

SJ Berwin) appeared on behalf of the Defendants.

Mr. S HOFMEYR QC and Mr. Gavin GEARY (instructed by Hill, Taylor &

Dickinson) appeared on behalf of Yerania Part 20 Claimants.

JUDGMENT

AS APPROVED BY THE COURT

TABLE OF CONTENTS

1. INTRODUCTION

2. LIST OF PRINCIPAL ISSUES

3. HISTORY, POLITICS AND RUSSIAN INSTITUTIONS

4. PARIS CLUB

5. WITNESSES

6. THE BACKGROUND TO THE 1995 SUB-CHARTERS

7. THE PROTOCOL OF 8 JUNE 1995

8. COMPLIANCE WITH THE PROTOCOL AND SUBSEQUENT PROMISES AS TO A RESERVE FUND

9. CONSTRUCTION OF THE 1995 SUB-CHARTERS

10. MISREPRESENTATION AND FIDUCIARY DUTIES

11. PAYMENTS MADE BY DMP AND BY BERGEN

12. ANALYSIS OF EVENTS 1995-1999

13. FORMATION OF THE JULY 1999 CHARTERS

14. CONSTRUCTION OF THE JULY 1999 CHARTERS

15. SUPPLIES AND INVENTORIES

16. FAILURE TO TRANSFER THE 3 VESSELS TO DMPT

17. FAILURE TO TRANSFER THE SHARES IN DMPT TO RYBCOMFLOT

18. HIRE - JULY 1999 TO MAY 2000

19. THE 17 MAY FREEZING ORDER

20. JULY 2000 AMENDMENTS

21. THE FACILITY AGREEMENT AND THE RESCHEDULING AGREEMENT

22. HIRE - AUGUST 2000 TO JANUARY 2001, DEMANDS AND NOTICES OF TERMINATION

23. FAILURE TO PAY AGENCY FEES

24. RELIEF FROM FORFEITURE

25. YERANIA'S COUNTERCLAIMS AGAINST THE DEFENDANTS

26. CONCLUSION

APPENDICES

1. DRAMATIS PERSONAE

2. CHRONOLOGY

1. INTRODUCTION

This case concerns fourteen supertrawlers built in Spain. The First and Second Claimants/Part 20 Defendants (``Bergen'' and ``Bolero'') are the registered owners of the supertrawlers. Bergen and Bolero are wholly owned subsidiaries of the Third Claimant/Part 20 Defendant (``Rybcomflot''). Rybcomflot is the successor, under an agreement dated 22 August 1990 (the ``Substitution Agreement''), of a Soviet entity called VO Sovrybflot. Bergen and Bolero entered into head charters by demise with VO Sovrybflot on 13 July 1989. Under the terms of the Substitution Agreement Rybcomflot was substituted for VO Sovrybflot in those head charters.

The first Defendant (``DMP'') is the bareboat charterer of three of the supertrawlers (the ``Kapitan vessels''), under Sub-Charters by way of demise dated 15 June 1995 (the ``1995 Sub-Charters''). The Second Defendant (``DMPT''), a subsidiary company of DMP, is the bareboat charterer of the remaining eleven supertrawlers (the ``11 vessels''), under charters by demise dated 10 July 1999 with Bergen and Bolero (the ``1999 Charters''). These charterparties were amended by amendment agreements dated 20 July 2000. DMPT dispute the validity of the amendments.

The Fourth Part 20 Defendant (``PTI'') was appointed by DMPT to act as managers of the 11 vessels pursuant to the terms of agreements dated 21 July 1999 and 23 September 1999. The Fifth Part 20 Defendant (``Crystal''), originally known as Verisa Trading Company was, by agreements dated 23 September 1999, appointed to act as DMPT's agent for the sale of the catch of the 11 vessels.

The Sixth Part 20 Defendant (``Yerania'') is a creditor of Bergen under the terms of a Facility Agreement, to which Bolero and Rybcomflot were also parties, dated 28 July 2000 (the ``Facility Agreement''). Yerania holds, by way of security, first preferred Vanuatu ship mortgages dated 18 August 2000 over the 11 vessels.

The Claimants' claim is for hire relating to the fourteen supertrawlers under their respective charterparties. In addition they seek (1) to recover sums due under a Debt Agreement (and related protocols) entered into between Bergen and Bolero and DMPT relating to supplies and equipment on board the 11 vessels; (2) a declaration that the 1995 Sub-Charters and the 1999 Charters (as amended) have been validly terminated; and (3) an order that the Kapitan vessels and the 11 vessels be delivered up to Bergen and Bolero.

DMP and DMPT deny that any hire under the charterparties is outstanding and dispute liability on a number of grounds. The various defences are identified in the List of Principal Issues (Chapter 2).

Yerania Counterclaims against the Defendants declarations that the amendments to the 1999 Charters are binding on the Defendants and that the mortgages take priority over the rights (if any) of the Defendants in respect of the 11 vessels. Yerania's Part 20 Claim ...

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