Charterers instructing master to discharge without presentation of original bills of lading – deemed indemnity clause – owners held entitled to invoke – mandatory injunction granted to put up security to allow for the release of arrested VLCC
A Trafigura subsidiary, as claimant sought an urgent mandatory injunction against a Gunvor subsidiary, Clearlake Shipping, in the High Court of Justice, London to provide security for the release of the Miracle Hope, a VLCC.
The vessel had been arrested in Singapore by Natixis, the holders of the original bills of lading for a cargo of Lula Crude which had been shipped from Porto du Acu, Brazil to Dongjiakou.
Natixis had supplied a letter of credit on behalf of Hontop Energy, now in receivership, which had purchased the cargo from Petróleo Brasileiro SA (Petrobras). Petrobras obtained payment from Natixis without the original bills which were later endorsed and delivered to Natixis.
The cargo was shipped by Petrobras under a voyage charterparty dated August 2019 with Clearlake Chartering, another company in the Gunvor group. The charterparty was back to back with a voyage charterparty between Clearlake Chartering and the claimant, Trafigura also dated August 2019.
Trafigura were the time charterers and Ocean Light Shipping, the owners.
Clause 33(6) of the voyage charterparties read in part as follows:
“…Owners shall be obliged to comply with any orders from Charterers to discharge all or a part of the cargo provided that they have received from Charterers written confirmation of such orders …If Charterers by telex, facsimile or other written form of communications that specifically refers to this clause request Owners to discharge a quantity of cargo … without bills of lading … then Owners shall discharge such cargo in accordance with Charterers’ instructions in consideration of receiving an LOI as per Owners’ P&I Club wording to be submitted to Charterers before lifting the subs. Following indemnity deemed to be given by Charterers on each and every such occasion.
After the subs had been lifted and on 14 October 2019 Trafigura supplied the LOI wording at the request of Clearlake Shipping (not Clearlake Chartering).
On 31 October 2019 Clearlake Shipping invoked clause 33(6) instructing the master to discharge at Dongjiakou without bills of lading.
In December 2019, Clearlake Chartering was substituted by Clearlake Shipping by a written amendment.
On 12 March 2020 Natixis had the vessel arrested in Singapore.
At the time of the hearing in the High Court, 24 March 2020, there had been a dramatic rise in the daily rate for VLCCs to around US$ 270 000.00 per day.
Mr Justice Henshaw granted the injunction, rejecting points raised that Clearlake Shipping were not party to the contract and that an actual LOI should have been issued. He determined the latter point on the wording of the clause. This was also the way in which the parties had understood it.
The injunction was granted subject to a parent company guarantee being given to cover an undertaking in damages.
Point of interest
Written judgment in this matter was handed down 26 March 2020. Four days later, on 30 March 2020, the Clearlake companies applied for a similar mandatory injunction against Petrobras. The injunction was granted by Jacobs J ( EWHC 805 (Comm)) for the same reasons in this matter.
A double hull oil tanker registered in the Marshall Islands, classed by ABS, DWT 318747 MT, built in 2019.
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