Valperz Industry and Traders, SA and SW Chartering Inc. v The Owners and/or Parties Interested in the Motor Vessel Roula
| Jurisdiction | Trinidad & Tobago |
| Judge | Boodoosingh J. |
| Judgment Date | 02 April 2015 |
| Neutral Citation | TT 2015 HC 126 |
| Docket Number | CV 2013-01038 |
| Court | High Court (Trinidad and Tobago) |
| Date | 02 April 2015 |
High Court
Boodoosingh, J.
CV 2013-01038
Claimants: Mr Mark Morgan and Ms Kaveeta Persad
Defendants: Mr Garvin Simonette and Ms Faikah Callinuddeen
Admiralty Law - Ships and shipping — Contract and carriage by sea — Bill of lading — Charter party — Ship seized — Whether the defendants had a lien over the goods until the freight was paid — Common law lien — Whether the claimants were owners of the cargo — Circumstances to find a claim in conversion considered — Whether the third party converted the goods — Whether there was a demand for the return of the goods — Whether there was a demand for the bill of lading where draft bills of lading were not accepted by the claimants — Payment of freight — Claim and counter claim dismissed
Boodoosingh J. This claim concerns the Motor Vessel the Roula. The first claimant was a Venezuelan company seeking to send a shipment of direct reduced iron (DRI) from Venezuela to China. The vessel chartered by the buyer, SNL Australia, to carry this shipment was the MV Roula. The DRI was loaded onto the vessel at the Port of Palua, Venezuela.
DRI has to be stored under particular conditions. It is flammable and can explode if exposed to fresh or salt water. It is therefore volatile and dangerous. Having been loaded with 27,820 tons of cargo, the vessel was required by the Port Authority to vacate the berth at the Port of Palua.
On 20 January 2013, it ran aground on the Orinoco River whilst being towed by a tugboat to an anchorage. The efforts to refloat the vessel with her main engine failed. The vessel, with the assistance of the Harbour Master, was refloated on 21 January 2013. The vessel was permitted to sail to the next port of refuge, Point Lisas, Trinidad and Tobago, to carry out an underwater inspection and to obtain seaworthiness certification in accordance with the International Marine Organisation best practice rules and regulations.
The vessel arrived in Trinidad on 4 February 2013. The inspection was completed on 9 February 2013. The vessel was classified as seaworthy until the next dry docking where certain bottom repairs were advised. While here the claimants succeeded in having the ship arrested on 13 March 2013. Time passed.
The defendants are the two main parties interested in the MV Roula. Bon Corp are the owners of the vessel. MV Roula was mortgaged by Bon Corp to FBME Bank Limited.
The defendants paid into court the sum of US 1,947,400.00 as security. The defendants, after seeking the court's approval, sold the ship and the cargo together. The vessel departed Trinidad and Tobago. Left to be dealt with is the fallout from this series of unfortunate events.
The claimants say Bon Corp wrongfully failed to issue the bill of lading for the cargo. In the circumstances that this happened they say Bon Corp is guilty of conversion. Their claim is therefore grounded in conversion. The defendants say the claimant wrongfully sought to arrest the ship. In the circumstances in which they did so, the defendants say the claimants are guilty of crassa negligentia.
The court has to decide if Bon Corp converted the goods. If not, the court is to decide if the claimants are guilty of crassa negligentia. The court has therefore to decide what flows from these findings.
The claimant's evidence came from Mr Domingo Ramon Valecillo Perez (Mr Valecillo) who was the President of the Claimant and Incorporator and President of SW Chartering Inc. of the United States. He gave evidence of the agreement with Venprecar of Venezulea; the arrangement with SNL; the nomination of the MV Roula by SNL; the loading of the goods at Palua; the subsequent grounding; and the MV Roula's journey to Trinidad for a hull survey. He also gave evidence of information he received from a ‘fellow international trader’ named Billy Chi who informed him by email that the cargo was being advertised for sale. He said MV Roula should have discharged the cargo in Palua if SNL had failed to pay the freight.
Of interest he gave no evidence of a demand by Valperz for this to be done. He noted he terminated the SNL agreement. He says he has lost US 1,168,440.00 which was money due to Venprecar (27,820 tonnes X US 42.00) and loss of profit in the sum of US 778,960.00 plus legal costs incurred. He said he also lost US 18.00 per tonne as the cost of taking the cargo to the pier and loading.
There were four witnesses for the defendant.
He was the ship's captain. He gave evidence that he was to proceed to Palua for the loading of a cargo of DRI. The vessel proceeded to the port under pilotage. The vessel had to be fitted with mechanical ventilators. He explained the fitting process including delays. The problems with fitting the vessel were not resolved until 18 January 2013. Loading commenced on 18 January and was completed on 20 January. The pilot boarded the vessel on 20 January. They proceeded along the Orinoco. On 18 January 2013 he had received a proforma bill of lading for the cargo which he passed to the vessel managers. There were corrections to be made. The protecting agent, Lloyd Sudamericano, confirmed they would sign a letter of undertaking under which they would not release the bill of lading until they received written confirmation from the owners that they had received payment as per the owner's freight statement. The protecting agents sent him an email on 20 January 2013 that the charters/shippers would not be presenting a bill for signing and the vessel was to sail with a mate's receipt. Mr Vallecio boarded the vessel on 20 January and asked him to issue the bill of lading for the cargo since loading was complete. He refused this request since the bills with the necessary amendments were not considered acceptable and freight and other charges had not been paid. He then issued a mate's receipt with the qualification:
“Freight deadfreight, relative expenses and laytime for period of vessel was prepared by charts for receiving cargo as per chartparty terms and conditions, all of the above as per owners statement dated 19/01/2013 amounting to US 1,622,245.00, payable as per charterparty terms and conditions dated 06/12/2012.”
The vessel received relevant Certificates on the 20 January and while under pilotage on the same day the vessel grounded at 14:18 on the Orinoco River. Various efforts were made to refloat the vessel which eventually occurred the next day. Inasmuch as they had to proceed to Point Lisas for bunkering, they considered the hull inspection would take place there. However, the vessel remained in anchorage until 3 February 2013. His instructions from his managers were that the freight remained unpaid and he was not to sign any of the documents.
They arrived at Point Lisas on 6 February 2013. The vessel was inspected. He said to suggest the vessel left Venezulea by stealth is untrue. Freight had not been paid. The vessel had a volatile cargo on board which if it came into contact with sea water would become explosive and an underwater inspection was necessary before a long crossing to China could be made.
It is to be noted that no real challenge has been made about the circumstances in which the Roula came to leave Venezuela. I found no reason not to accept this account as being accurate.
He was the lead operational manager for the MV Roula. He took care of the various arrangements for the dispatch, fitting and loading of the vessel giving appropriate instructions to the Captain. He detailed the various acts of the fitting of the vessel. Among matters he dealt with was that he had replied to the charterers that the bill of lading would be issued in accordance with the charterparty following payment of US 1,622,245.00 being the sum owing under the freight statement. He also noted that freight prepaid and clean on board bills would be issued only on payment of the freight invoice. He also noted that significant deadfreight and demurrage claims had been incurred because of the delay in the fitting of the ventilators and consequent delay in the loading of the cargo. He noted that throughout the time the vessel was grounded and anchored the charterers refused to settle the freight invoice.
He had confirmed on 24 January 2013 to the charterers that the protecting agent was authorised to issue the bill of lading on payment of freight. He said as the charterers had failed to pay the freight it fell to the owners to pay it. He detailed the costs incurred from the grounding to clearance at paragraph 107 of his witness statement. He noted he had received a call from Mr Vallecio on 7 February 2013 claiming Valperz was the owner of the cargo and they had purchased it from Venprecar. Mr Vallecio told him the cargo had been sold to SNL but Valperz had not received payment.
He noted that on 16 February 2013 Mr Vallecio wrote an email to the effect that SNL needed release of the bill of lading as soon as possible. He replied by stating that release of the bill of lading was not possible until freight was paid. He also asked about the insurers. On 21 February 2013 he received an email from Mr Vallecio that the bill of lading should be issued on terms stating Venprecar as shippers and naming SW Chartering Inc as the notify party. He said up to that point they had received no evidence of title from Valperz or SW Chartering Inc.
By 26 February the protecting agents were authorised to issue a clean bill of lading in conformity with the mate's receipt once freight was paid. He also said that on 28 February he received an email from Mr Bentata on behalf of Valperz that the bill be issued “freight payable as per charter party dated” and then switched later after freight was received to “Freight...
To continue reading
Request your trial