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

The minutes of a board meeting of the Guarantors on 6 August 2019 recorded that Owners ‘have decided to return the Guarantees provided to them … against which they will take over the Vessels’ and ‘in any case the entire BBC provided for as well as the Guarantees/Put Options provided to the Vessel Owners will stand cancelled and annulled’.

On 26 August 2019 Charterers requested a letter ratifying the Kailash Charterparty in order to market the Kailash to sub-charterers.

From September 2019 a series of correspondence began, initially concerning repairs to the Kailash. In mid-September 2019 Mr Garware pressed Owners to set aside a budget and make payment to prevent the arrest of the Kailash at Hull, where she had arrived (at MMS Shipyard, ‘MMS’) in August 2019 for repairs after Owners had consented to her reactivation. On 8 November 2019 Mr Wang of Owners confirmed that Owners had obtained approval for a US$ 1.05 million budget for repairs to the Kailash.

On 4 December 2019, in response to a request for the funds from Vinay Mohile of Arena the previous day, Mr Wang of Owners responded that Owners could not yet approve the payments and that the restructuring plan needed to be formalised:

We may also need to sign formal documents between GOSBV and MSFL [Minsheng] regarding the restructure between GOSBV and us. We understand that you have discussed the restructuring & repair plan with our colleague before, but so far, we didn’ t [sic] find any formal signed documents regarding on this. This is quite important and we need to solve this first.

On the same day Mr Garware of Charterers replied to Mr Wang in the following terms:

While we await the technical documents for the repair plan, please also indicate how to wish to proceed on the commercial side.

As I recall, based on discussions it was decided that all agreements with GOSBV/GOSL will be terminated and new agreements between owner and SPV’s (for both Vessels) will have to be executed – based loosely on a minimum BBC with a cash sweep thereafter. This would be applicable to Kailash once she began earning. We had also decided that it would be the most commodious to set up the SPV’s in the Netherlands and as a result I believe Bert has already started the process. Perhaps he can confirm the same as well.

On 10 December Mr Wang replied to Mr Garware to confirm that Mr Garware’s recollection as to the restructuring discussions was accurate:

We also confirm the discussions above, and now the urgent things [sic] is that, we need to signed the amendment according to the above, the key terms is the same as you mentioned:

1.

All agreements with GOSBV/GOSL will be terminated

2.

New agreements between owner and SPV’s (for both Vessels) will have to be executed – based loosely on a minimum BBC with a cash sweep thereafter

3.

The new spv set-up should be clarified in the amendment, and as soon as it’s settled, will switch to the new spvs. Would you pls instruct your lawyer to draft the amendment asap and we could sign this as soon as we can, so that we can move on the following work after this.

On 13 December 2019 Mr Garware provided a draft ‘general agreement’ for the Kailash, requesting confirmation of acceptance from Owners and anticipating replication in respect of the Ben Nevis.

On 24 December 2019 Mr Wang replied to Mr Garware in the following terms:

I've already submmited [sic] the agreement to our board and awaiting for the approval, as you mentioned about the ben nevis. please also provide the same like this and let me discuss it internally to see if we can accept the same.

On 27 December 2019 Mr Garware provided a draft agreement for the Ben Nevis. The draft agreements in respect of the Vessels were ultimately never executed.