Bergen Industries and Fishing Corporation & Ors v Holding Company Dalmoreproduct & Anor, Court of Appeal - Commercial Court, August 01, 2001,  EWHC 482 (Comm)
|Resolution Date:||August 01, 2001|
|Issuing Organization:||Commercial Court|
|Actores:||Bergen Industries and Fishing Corporation & Ors v Holding Company Dalmoreproduct & Anor|
IN THE HIGH COURT OF JUSTICE 2000 Folio 1341
QUEENS BENCH DIVISION
The Royal Courts of Justice
Date:1 August 2001
MR JUSTICE CRESSWELL
(1) BERGEN INDUSTRIES AND FISHING CORPORATION
(2) BOLERO SHIPPING COMPANY LIMITED
(3) JV RYBCOMFLOT
(1) HOLDING COMPANY DALMOREPRODUCT
(2) 000 DALMOREPRODUCT TRAWLERS
(1) PACIFIC TRAWLERS INC
(2) CRYSTAL SEAFOODS LIMITED
Part 20 Defendants
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.
AS APPROVED BY THE COURT
TABLE OF CONTENTS
LIST OF PRINCIPAL ISSUES
HISTORY, POLITICS AND RUSSIAN INSTITUTIONS
THE BACKGROUND TO THE 1995 SUB-CHARTERS
THE PROTOCOL OF 8 JUNE 1995
COMPLIANCE WITH THE PROTOCOL AND SUBSEQUENT PROMISES AS TO A RESERVE FUND
CONSTRUCTION OF THE 1995 SUB-CHARTERS
MISREPRESENTATION AND FIDUCIARY DUTIES
PAYMENTS MADE BY DMP AND BY BERGEN
ANALYSIS OF EVENTS 1995-1999
FORMATION OF THE JULY 1999 CHARTERS
CONSTRUCTION OF THE JULY 1999 CHARTERS
SUPPLIES AND INVENTORIES
FAILURE TO TRANSFER THE 3 VESSELS TO DMPT
FAILURE TO TRANSFER THE SHARES IN DMPT TO RYBCOMFLOT
HIRE - JULY 1999 TO MAY 2000
THE 17 MAY FREEZING ORDER
JULY 2000 AMENDMENTS
THE FACILITY AGREEMENT AND THE RESCHEDULING AGREEMENT
HIRE - AUGUST 2000 TO JANUARY 2001, DEMANDS AND NOTICES OF TERMINATION
FAILURE TO PAY AGENCY FEES
RELIEF FROM FORFEITURE
YERANIA'S COUNTERCLAIMS AGAINST THE DEFENDANTS
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 against the Claimants is agreed.
There were a number of other agreements (listed in the Chronology Appendix 2) which feature in this case. These include inter alia agreements made at the following times:-
(i) May 1999, the Danish Rescue Agreements between Laskaridis companies and DMP in respect of 7 Reefers (Main Agreement and Contract of Affreightment both 28 May 1999, Supplemental Agreements 15 June 1999);
(ii) September 1999, the agreements referred to above and a number of related agreements;
(iii) July 2000, Agency Agreement between DMPT and Laskaridis Shipping Co Ltd (as agent) 22 July 2000; Rescheduling Agreement between the Ministry of Finance, Vnesheconombank and Bergen 28 July 2000; the Facility Agreement.
The 11 vessels are currently held in Pusan under injunctions obtained by Bergen and Bolero from the Pusan District Court. The 3 vessels were ordered to Rajin by DMP in about November 2000.
LIST OF PRINCIPAL ISSUES
I set out below an agreed list of principal issues.
The 1995 Sub-Charters
What is the correct construction of the hire payment obligations under the 1995 Sub-Charters? In particular:
(i) Was DMP obliged to pay hire:
a. In accordance with the schedules to the 1995 Sub-Charters? Or
b. In accordance with Bergen's loan repayment obligations?
c. In accordance with Bergen's loan repayment obligations to the extent that the relevant lender demanded and/or sought to enforce payment?
(ii) If the answer to 1(i)(b) and/or (c) above is yes, were the relevant loan repayment obligations:
a. The obligations of Bergen to the Spanish Banks under the relevant loan agreements? Or
b. The appropriate portion of the obligations of Bergen under the
Refinancing Agreement and/or Facility Agreement? Or
c. Those set out at paragraph 20 of the Amended Defence, namely the appropriate proportion of the actual cost to Bergen of satisfying its obligations under the Rescheduling Agreement, further or alternatively, under the Facility Agreement? Or
d. The obligations of Bergen to the Spanish Banks under the relevant loan agreements including the full extent and benefit of any deferral resulting from the Paris Club agreement and consolidations?
Are the Claimants estopped by convention and/or conduct and/or by any representations from claiming hire? In particular;
(i) Was there a common assumption that no hire was due from DMP as Bergen was not required to make loan repayments and/or that hire was not payable in accordance with the Schedules to the 1995 Sub-Charters?
(ii) Was any agreement, estoppel, conduct or representation conditional and/or premised upon the creation by DMP of a reserve from which scheduled hire payments would be paid when required by the Claimants'?
(iii) Did DMP rely on and/or was DMP induced by any conduct and/or
representations by the Claimants and/or any common assumption to invest in the Three Vessels and/or not make hire payments in accordance with the Schedules?
(iv) Is it equitable or inequitable for the Claimants now to seek to enforce payment of hire?
Have the Claimants waived any right to terminate the charters for non-payment of hire or any other associated or ancillary basis?
As a matter of construction, were the Claimants under any obligation to utilise hire payments in any particular manner? In particular:
(i) Were the Claimants obliged to use hire payments received to meet the
Bergen's loan repayment obligations and for no other purpose?
(ii) Were hire payments received by the Claimants held on trust for such purpose?
Were the 1995 Sub-Charters validly terminated on 29th November 2000, 1st December 2000, 11th May 2001, 29th June 2001 and/or 2nd July 2001? In particular:
(i) What, if any, amounts of hire were outstanding on 4th October 2000, 29th November 2000, 1st December 2000, 11th May 2001, 29th June 2001 and/or 2nd July 2001?
(ii) Was a valid demand for hire necessary before hire fell due and/or before there could be a valid termination for non-payment of hire:
a. On a true construction of the 1995 Sub-Charters? Or
b. By reason of an estoppel? Or
c. At all?
(iii) If the answer to 5 (ii) above is yes, what were the requirements which a valid demand would have to meet? In particular, did a valid demand have to:
a. Give notice that the Claimants sought to make time of the essence?
b. Allow DMP a reasonable time in which to pay sums due? And if so, what was a reasonable time?
c. Quantify properly and precisely the sums actually due?
If the 1995 Sub-Charters have been validly terminated by the Claimants;
(i) Is DMP entitled to relief from forfeiture?
(ii) Are the Claimants entitled to an order for delivery up of the Three Vessels?
The 1999 Charters to DMPT
What were DMPT's hire payment obligations in respect of the Eleven Vessels? In particular was there an oral agreement as described below and was DMPT obliged to pay hire:
(i) In accordance with an oral agreement entered into by Mr Gregori Didenko and Mr Oleg Pukhov on 12th July 1999? If such an agreement was made, is it void for uncertainty? Or
(ii) In accordance with the terms of the 1999 Charters?
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