Year: 2001 Language: english Author: Aleka Mandaraka-Sheppard Publisher: Cavendish Publishing Limited Edition: 1st ISBN: 1 85941 531 8 Format: PDF Quality: eBook Pages count: 1108 Description: This book explains the legal principles of Admiralty Law lucidly,putting them into commercial perspective and suggesting in appropriate places how legal risks should be managed
We bought a ship 8 month ago . The Sellers introduced a certificate of ownership and nun encumbrance. And in the MOA CLAUSE 9. it was clearly stated that the buyers pledge that that there is no any debt or mortgage or any kind of debt. 15 days ago we received a law suit against the vessel and against us as new owners. The plaintiff is claiming a cargo non delivery by the ex-ex-owners amounting around 1,100,000 USD . Claiming the event took place on the 1st of April 2015 (14 months ago). There had been no active court order since that date till it popped up in our face 15 days ago. My question is . Are we liable as new owners. Do the plaintiff have the right to go after us as new owners after all this time and claim debts supposed to be burdened by ex ex owners. Ex owners claimed that they have a claim against those shippers at the arbitration court of London. But they are not cooperating much. All what they said is that they know about this incident . But the ex ex owners had the right to detain the cargo of 3 month of freight non payment by shippers because of high demurrages which amounts more than the value of the shipped cargo. Please give us a legal advise. We have our lawyer but we need second opinion Thanks in advance
23518We bought a ship 8 month ago . The Sellers introduced a certificate of ownership and nun encumbrance. And in the MOA CLAUSE 9. it was clearly stated that the buyers pledge that that there is no any debt or mortgage or any kind of debt. 15 days ago we received a law suit against the vessel and against us as new owners. The plaintiff is claiming a cargo non delivery by the ex-ex-owners amounting around 1,100,000 USD . Claiming the event took place on the 1st of April 2015 (14 months ago). There had been no active court order since that date till it popped up in our face 15 days ago. My question is . Are we liable as new owners. Do the plaintiff have the right to go after us as new owners after all this time and claim debts supposed to be burdened by ex ex owners. Ex owners claimed that they have a claim against those shippers at the arbitration court of London. But they are not cooperating much. All what they said is that they know about this incident . But the ex ex owners had the right to detain the cargo of 3 month of freight non payment by shippers because of high demurrages which amounts more than the value of the shipped cargo. Please give us a legal advise. We have our lawyer but we need second opinion Thanks in advance
You need to attract ship owners as the former-respondents to consider the claim of the consignor and at the same time to prepare a lawsuit against the former ship-owners by way of recourse for damages caused by you.
see: Modern Maritime Law and Risk Management 6.6 Sellers’ obligations under clause 9 Its a maritime lien case and it implies "in rem" action. This means you are not personaly (corporatively) liable, but rather your vessel is liable. The Barenbels74 The ship was sold under the NSF 1966, in which cl 9 was broadly similar to cl 9 of the 1987 form, except that it provided for a guarantee, instead of a warranty, in the first sentence, to deliver the ship free from encumbrances, maritime liens or any other debts whatsoever. Prior to delivery, the sellers owed large sums of money to their agents in Qatar in respects of debts. After delivery of the ship to the buyer, the agents commenced proceedings in the court of Qatar for the purpose of recovering the money due to them from the sellers, and the court ordered the detention of the vessel in Qatar. The detention was allowed under Qatar law even though the ship had been transferred to a new owner and no proceedings had been issued against the ship before the transfer. The buyers, having failed to persuade the sellers to provide security or to settle the claim, provided security in the form of a guarantee furnished by their P&I club for the release of the vessel. The buyers then claimed damages against the sellers for breach of the guarantee under the first sentence of cl 9, or alternatively an indemnity against the consequences of the arrest under the second sentence of the clause. The arbitrators, by a unanimous award, decided against the claim for damages on the ground that the claim did not fall within encumbrances and maritime liens; they construed ‘any other debts’, of the same sentence, as inappropriate to embrace indebtedness arising otherwise than in relation to the vessel. With regard to the indemnity claim, they held that the language in the second sentence of the clause was insufficiently clear to embrace a conservatory arrest ordered by the court in Qatar, and the buyers could not show that the claim was a claim against the vessel. The buyers appealed. Sheen J found in favour of the buyers. He construed the word ‘encumbrances’ as referring to claims, liens and liabilities attaching to the ship. As to ‘any other debts whatsoever’, he said, the draftsman had in mind the personification of the ship when claims are made against her. So, the words meant that the sellers guaranteed that, at the time of delivery, the vessel would be free from the risk of being arrested in respect of any debts of the sellers. (Under English law, this risk would arise if a writ or claim form had been issued against the ship or a sister ship before the transfer of the ship to the buyer.) On the issue of indemnity under the second sentence, he disagreed with the arbitrators that a conservatory arrest was not embraced within the indemnity provision. The sellers appealed. The Court of Appeal (with Goff LJ, as he then was, delivering judgment) held that the two sentences of the clause contain separate obligations. The second sentence is not intended merely to express a remedy available to the buyer in the event of breach of the guarantee contained in the first sentence: The first sentence is concerned with a guarantee relating to the vessel at the time of delivery, whereas the second sentence is concerned with an indemnity in respect of claims made against the vessel which are plainly intended to refer to claims so made after the delivery of the vessel though incurred prior to the time of delivery.75 Then Goff LJ proceeded to construe the effect of the words contained in the two sentences. In the first sentence, ‘encumbrances’ referred to proprietary and, possibly, possessory rights over the ship. The sellers’ debt to their agents in Qatar at the time of delivery did not constitute an encumbrance. On construction of the phrase ‘free from … any other debts whatsoever’, in the context of the first sentence, he held that: … this should be read as relating to any other debts, which at the time of delivery, had given rise to actual existing rights affecting the property in, or the use of, the ship.76 (emphasis added) These words were not wide enough to include debts, which would be capable of rendering the ship liable to be arrested in the future, because this was intended to be covered by the second sentence. On this construction, the debt owed by the sellers to Qatar National (the agent) was not within the guarantee provision under the first limb. Turning to the indemnity provision, it was held that the claim by the Qatar agents in respect of debts owed to them by the sellers was a claim in respect of liabilities, which had been incurred prior to the time of delivery, and the claim was indeed against the ship. Good luck.
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Modern Admiralty Law With Risk Management Aspects
Language: english
Author: Aleka Mandaraka-Sheppard
Publisher: Cavendish Publishing Limited
Edition: 1st
ISBN: 1 85941 531 8
Format: PDF
Quality: eBook
Pages count: 1108
Description: This book explains the legal principles of Admiralty Law lucidly,putting them into commercial perspective and suggesting in appropriate places how legal risks should be managed
Modern admiralty law-2001
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15 days ago we received a law suit against the vessel and against us as new owners. The plaintiff is claiming a cargo non delivery by the ex-ex-owners amounting around 1,100,000 USD . Claiming the event took place on the 1st of April 2015 (14 months ago).
There had been no active court order since that date till it popped up in our face 15 days ago.
My question is . Are we liable as new owners. Do the plaintiff have the right to go after us as new owners after all this time and claim debts supposed to be burdened by ex ex owners.
Ex owners claimed that they have a claim against those shippers at the arbitration court of London. But they are not cooperating much. All what they said is that they know about this incident . But the ex ex owners had the right to detain the cargo of 3 month of freight non payment by shippers because of high demurrages which amounts more than the value of the shipped cargo.
Please give us a legal advise.
We have our lawyer but we need second opinion
Thanks in advance
Поделиться
15 days ago we received a law suit against the vessel and against us as new owners. The plaintiff is claiming a cargo non delivery by the ex-ex-owners amounting around 1,100,000 USD . Claiming the event took place on the 1st of April 2015 (14 months ago).
There had been no active court order since that date till it popped up in our face 15 days ago.
My question is . Are we liable as new owners. Do the plaintiff have the right to go after us as new owners after all this time and claim debts supposed to be burdened by ex ex owners.
Ex owners claimed that they have a claim against those shippers at the arbitration court of London. But they are not cooperating much. All what they said is that they know about this incident . But the ex ex owners had the right to detain the cargo of 3 month of freight non payment by shippers because of high demurrages which amounts more than the value of the shipped cargo.
Please give us a legal advise.
We have our lawyer but we need second opinion
Thanks in advance
Поделиться
Modern Maritime Law and Risk Management
6.6 Sellers’ obligations under clause 9
Its a maritime lien case and it implies "in rem" action. This means you are not personaly (corporatively) liable, but rather your vessel is liable.
The Barenbels74
The ship was sold under the NSF 1966, in which cl 9 was broadly similar to cl 9 of the 1987 form, except that it provided for a guarantee, instead of a warranty, in the first sentence, to deliver the ship free from encumbrances, maritime liens or any other debts whatsoever. Prior to delivery, the sellers owed large sums of money to their agents in Qatar in respects of debts. After delivery of the ship to the buyer, the agents commenced proceedings in the court of Qatar for the purpose of recovering the money due to them from the sellers, and the court ordered the detention of the vessel in Qatar. The detention was allowed under Qatar law even though the ship had been transferred to a new owner and no proceedings had been issued against the ship before the transfer. The buyers, having failed to persuade the sellers to provide security or to settle the claim, provided security in the form of a guarantee furnished by their P&I club for the release of the vessel. The buyers then claimed damages against the sellers for breach of the guarantee under the first sentence of cl 9, or alternatively an indemnity against the consequences of the arrest under the second sentence of the clause.
The arbitrators, by a unanimous award, decided against the claim for damages on the ground that the claim did not fall within encumbrances and maritime liens; they construed ‘any other debts’, of the same sentence, as inappropriate to embrace indebtedness arising otherwise than in relation to the vessel. With regard to the indemnity claim, they held that the language in the second sentence of the clause was insufficiently clear to embrace a conservatory arrest ordered by the court in Qatar, and the buyers could not show that the claim was a claim against the vessel. The buyers appealed.
Sheen J found in favour of the buyers. He construed the word ‘encumbrances’ as referring to claims, liens and liabilities attaching to the ship. As to ‘any other debts whatsoever’, he said, the draftsman had in mind the personification of the ship when claims are made against her. So, the words meant that the sellers guaranteed that, at the time of delivery, the vessel would be free from the risk of being arrested in respect of any debts of the sellers. (Under English law, this risk would arise if a writ or claim form had been issued against the ship or a sister ship before the transfer of the ship to the buyer.) On the issue of indemnity under the second sentence, he disagreed with the arbitrators that a conservatory arrest was not embraced within the indemnity provision. The sellers appealed.
The Court of Appeal (with Goff LJ, as he then was, delivering judgment) held that the two sentences of the clause contain separate obligations. The second sentence is not intended merely to express a remedy available to the buyer in the event of breach of the guarantee contained in the first sentence:
The first sentence is concerned with a guarantee relating to the vessel at the time of delivery, whereas the second sentence is concerned with an indemnity in respect of claims made against the vessel which are plainly intended to refer to claims so made after the delivery of the vessel though incurred prior to the time of delivery.75
Then Goff LJ proceeded to construe the effect of the words contained in the two sentences. In the first sentence, ‘encumbrances’ referred to proprietary and, possibly, possessory rights over the ship. The sellers’ debt to their agents in Qatar at the time of delivery did not constitute an encumbrance.
On construction of the phrase ‘free from … any other debts whatsoever’, in the context of the first sentence, he held that:
… this should be read as relating to any other debts, which at the time of delivery, had given rise to actual existing rights affecting the property in, or the use of, the ship.76 (emphasis added)
These words were not wide enough to include debts, which would be capable of rendering the ship liable to be arrested in the future, because this was intended to be covered by the second sentence. On this construction, the debt owed by the sellers to Qatar National (the agent) was not within the guarantee provision under the first limb.
Turning to the indemnity provision, it was held that the claim by the Qatar agents in respect of debts owed to them by the sellers was a claim in respect of liabilities, which had been incurred prior to the time of delivery, and the claim was indeed against the ship.
Good luck.
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