Publication Rotterdam Court 01-08-2018, ECLI:NL:RBROT:2018:6254
Delivery of bunkers to the m.v. “Tequila” owned by Barker Hill. The bunkers were ordered by the manager of Barker Hill, NGM from OWB (Malta), who subsequently instructed OWB (Netherlands) to deliver the bunkers. OWB (Netherlands) subsequently purchased the bunkers from Transcor and Trefoil, who delivered the bunkers on board the “Tequila” at Rotterdam on 24th October 2014.
In October 2014 Transcor sent an invoice in respect of its part of the delivery to OWB (Netherlands) addressed to ‘M/V Tequila and/or owners/charterers OW Bunker Rotterdam B.V.’, whilst in the same month OWB (Malta) sent an invoice to NGM for the whole quantity of bunkers delivered. This invoice was also addressed ‘M/V/Tequila and/or owners/charterers NGM [..]’.
In November 2014 the OWB companies were declared bankrupt. All claims appeared to be pledged to the ING Bank. This bank starts to collect the amount due subject to the invoice sent by OWB (Malta) to NGM and Barker Hill subsequently paid ING the full amount due in respect of the full quantity of bunkers delivered to the m.v. “Tequila”. The invoice sent by Transcor remains unpaid.
In December 2014 Transcor arrested the m.v. “Tequila” at Antwerp as security for the payment of their claim against OWB (Netherlands) and the master of the “Tequila” in connection with their quantity of the bunkers delivered to the vessel in October 2014. This arrest was lifted after the P&I Club of the m.v. “Tequila” issued a letter of undertaking after the P&I Club received a back letter from Barker Hill, subject to which any payment under the letter of undertaking could be recovered from the owners. The
Transcor commenced legal proceedings in respect for its claim for unpaid bunkers against OWB (Netherlands). The demands submitted by Transcor in Court were aimed at a condemnatory judgment for payment of the amount due by OWB (Netherlands) and at a declaratory judgment stating that OWB (Netherlands) was due to Transcor the invoice amount.
The first demand could not be admitted in Court in connection with the bankruptcy proceedings of OWB (Netherlands). The second demand aimed at the declaratory judgment, meant to be enforced against the P&I Letter of undertaking, on the other hand could be admitted and in the absence of any defence of OWL (Netherlands) was allowed.
The claims against Barker Hill were dismissed. The Court first determined that the bunkers were delivered by Transcor to the vessel subject to a sales agreement between Transcor and OWB (Netherlands). Barker Hill was not a party to this contract. It was also decided by the Court that subject to Belgium law any claims in respect of the delivery of bunkers to a sea-going vessel in respect whereof any other party but the owner or a charterer of the vessel was the debtor, are not privileged and could not be enforced against the vessel. From this proposition it followed that the claims of Transcor could not be enforced against the P&I letter of undertaking.
