Case Nos: CL-2023-000206 and CL-2023-000207 - [2025] EWHC 1591 (Comm)

There was an issue as to the repairs and maintenance necessary on Ben Nevis when it was released from arrest on 29 January 2021.

The Defendants’ Skeleton Argument stated that it was not in issue that an amount of US$ 485,783.55 was incurred in repair and maintenance costs after Ben Nevis was redelivered. The works carried out included repairs to the navigation equipment, fuel tank cleaning, repairs to the main engine and an underwater survey. Owners claim these sums pursuant to the indemnities in clauses 45.1(b), 45.1(c) and/or 55.5 of the Ben Nevis Charterparty and/or as damages for breach of clause 50.1(b) or 55.4(e) thereof. The Charterers contend that the vessel was in satisfactory condition as at January 2021 and that none of the repairs and maintenance was required to be undertaken immediately.

It appears to me that it is inherently unlikely that any of the matters subject to repairs developed between redelivery on 29 January 2021 and the Condition Survey Report recommending the work on 15 February 2021, given that the vessel remained at Rotterdam, and there is apparently no evidence that she took on bunkers in the interim. The Owners have put in evidence from Mr Shortall that the repairs claimed were, save for the underwater survey, necessary to put the Ben Nevis into compliance with the Charterparties. I accept that evidence. There appears to be a small issue as to the amount of the costs which, even on this basis, can be said to be recoverable, in that the Owners’ expert refers to a figure of US$ 445,565.52. It is that sum which I find that the Charterers are liable for.

There is an issue as to whether Charterers have pleaded a defence, separate from their defence based on the alleged ‘General Agreement’, to Owners’ claim for an indemnity in respect of the costs incurred in respect of the Ben Nevis’s arrest at Rotterdam. The question arises because of a reference in the Defence (at [24]) to an exchange of emails between Mr Koli of Charterers and Mr Liu of Owners dated 25 November 2020. I have concluded that no separate and independent defence is there pleaded. Accordingly, in light of my conclusions as to the General Agreement, I conclude that the sum claimed in respect of these expenses (at least in the sum of US$ 532,788.34, which is what emerges from the materials before the court) is due to the Owners.

A further issue arises as to whether Charterers have pleaded a defence, independent of their defence based on the ‘General Agreement’, to Owners’ claim for an indemnity or damages in respect of the Kailash’s arrest at Hull. The Charterers have relied on an exchange between Mr Wang of Owners and Mr Garware on 8 November 2019. Whether or not that is a point separate from the alleged ‘General Agreement’ I am satisfied that it does not constitute an agreement by Owners to pay these costs outside the Charterparty framework. Any willingness of the Owners to bear these costs was because the Charterers had no funds, and arose in the context of Charterers’ contractual obligations to maintain the vessel, and the ongoing subject-to-contract negotiations. These amounts totalled US$ 112,638.60, for which the Charterers are liable.