F.T. Maritime Services Ltd v Lamda Shipholding Ltd
| Jurisdiction | Jamaica |
| Judge | Batts J. |
| Judgment Date | 23 April 2020 |
| Date | 23 April 2020 |
| Docket Number | CLAIM NO. A00004/2018 |
| Court | Supreme Court (Jamaica) |
[2020] JMSC Civ 66
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN ADMIRALTY
CLAIM NO. A00004/2018
(Owners of the M/V Pluto)
Z. Lewis, instructed by AYN Associates, for the Claimant
K. Desai and A. Montaque, instructed by Myers, Fletcher & Gordon, for the Defendant.
In Admiralty — Application to strike out claim — Claim for payment for bunker fuel-Whether claim in rem — Whether supply of fuel gives rise to a lien on the vessel-Whether contract with ship owners — Counterclaim for wrongful arrest — Whether summary judgment to be entered on counterclaim.
There are two applications before me. One is the Defendant's application, filed on the 5 th November 2019, for the claim to be struck out and for judgment on the counterclaim. The other application is by the Claimant, filed on the 18 th March, 2020, seeking a stay of the claim pending arbitration proceedings.
The applications were heard together. Each party filed written submissions and, prior to commencement, agreed that 30 minutes would suffice for oral submissions. I decided to hear the Defendant first.
The applications arise in consequence of an Order for arrest made, with respect to the motor vessel Pluto, on the 19 th December 2018. The Order stated at paragraph 3:
“That this Order be made subject to the Claimant's undertaking to stamp the Admiralty Claim Form in rem with the requisite sums and regularise any other procedural defects within 48 hours of the granting of this order.”
A Claim Form was filed, on the 20 th December 2018, accompanied by Particulars of Claim. The Defendant filed an Acknowledgement of Service on the 24 th December 2018. On the 28 th December, 2018 an Order was made, releasing the vessel, consequent to the provision of a letter of undertaking in the sum of US$223,000.00. A Defence and Counterclaim was filed on the 1 st February, 2019.
It is the case for the Defendant that it had no contract with the Claimant for the supply of fuel, which is, the subject matter of this action. Furthermore, the Defendant contends that, the supply of bunkers does not create a maritime lien at law. There is therefore no relevant claim in rem against the vessel. The Defendants have counterclaimed, for damages, for the wrongful arrest of the vessel.
The Claimant contends otherwise. Jermaine Reid, an attorney at law, swore an affidavit dated and filed on the 19 th December 2018 on the Claimant's behalf. That affidavit, exhibited the invoice for fuel supplied, and asserted that no payment had been made. In an affidavit, filed on the 18 th March 2020 and sworn to by Tannece Green an attorney at law, it is asserted,
“(a) That on or about the 6 th day of November 2018, the Respondent entered into an agreement with the Applicant for the supply of marine bunker fuel subject to Terms and Conditions, which indicate that the agreement shall be referred to Arbitration pursuant to the LMAA Rules currently in force.”
The Particulars of Claim go into greater detail:
“3. The Defendant entered into a contract with the Claimant for the supply of bunker/fuel oil to the motor vessel M/V ‘Pluto’ owned by the Defendant.
4. The Defendant also received the Standard Terms and Conditions for the Sale of Marine Bunker Fuels, Lubricants and other Products (“The Terms and Conditions”). The following are relevant provisions of the Terms and conditions
“10.01 where product is supplied to a vessel in addition to any other security the Agreement is entered into and Product is applied upon the faith and credit of the vessel. It is agreed and acknowledged that a maritime lien against the vessel is thereby created for the Price of Product supplied and that the seller in agreeing to deliver product to the vessel does so relying upon the faith and credit of the vessel and that such maritime lien may be enforced in any court of competent jurisdiction.
12.01 ……..
12.02 ……..
12.03 ……….
5. At all material times it was the understanding of both the Claimant and the Defendant that the Claimant is the company mentioned in the Standard Terms and Conditions for the sale of Marine Bunker Fuels Lubricants and other products.”
The Defendant by an affidavit of Litrow Hickson attorney at law, filed on the 5 th November, 2019, exhibits contractual documents. He asserts that there is no contract between the Claimant and the Defendant. In this affidavit, which was unanswered by the Claimant, the Defendant says that the vessel was chartered to Atlantic Coal & Bulk SA (hereinafter referred to as ACB). The charter was dated August 17, 2018 and evidenced by a fixture recap attached as exhibit LH1 to the affidavit. The Time Charter agreement is attached as exhibit LH “2” and contains the following terms:
“(Line 264–266) Clause 23 Liens
The Charterers will not directly or indirectly suffer nor permit to be continued, any lien or encumbrance, which might have priority over the title and interest of the owners in the vessel. The Charterers undertake that during the period of this Charter Party, they will not procure any supplies or necessaries or services, including any port expenses and bunkers, on the credit of the owners or in the Owner's time.”
“Clause 67 no lien clause
… In addition to the obligations above Charterers, shall ensure that any supplies of bunkers or other services are on the credit solely of the Charterers and not on the credit of the vessel or owners or managers.”
There were additional clauses in the Time Charter, entitled BIMCO Bunker Non-Lien Clause for Time Charter Parties, which required the Charterer to advise suppliers by way of a “non-lien notice” that the owners were not responsible. The clause was also to be incorporated in any sub-charters. The Defendant's affidavit under reference, by paragraph 9, indicates that ACB (the Charterer) sub chartered the vessel to Nordia Bulk A/S (“Nordia”). This...
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