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

Fecha: 26-Jun-2025

Section 25

2021

90.

On 13 January 2021 Mr Liu of Owners wrote to Charterers and the Guarantors concerning the imminent expiry of the Ben Nevis Charter Period. This email had several aspects.

Mr Liu stated that under Clause 36 of the Ben Nevis Charterparty, the Charter Period was due to end on 14 January 2021. On that date the Termination Sum and other outstanding sums would be payable by Charterers to Owners, and upon such payment title to the Ben Nevis would pass from Owners to Charterers.

ii)

Mr Liu recorded that as a result of Charterers’ inability to pay the Termination Sum, Charterers had agreed to redeliver the Ben Nevis to Owners on 14 January 2021.

iii)

Mr Liu said that there had been three Termination Events under Clause 54 of the Ben Nevis Charterparty, namely Charterers’ failure to pay Charter-hire since January 2016, Charterers’ failure to pay crew wages, and Charterers’ failure to arrange the discharge of the detention at Rotterdam within 21 days.

iv)

Owners required immediate payment of outstanding Charter-hire.

Owners reserved all their rights and remedies under the Ben Nevis Charterparty and Ben Nevis Guarantee, including the right to give notice of termination of the Charter. Any payment of crew wages to lift the detention was without prejudice to Owners’ right to recover that sum from Charterers.

91.

On 14 January 2021 Wang Kun of Owners wrote to Charterers in the following terms:

In the first quarter of 2020, we were discussing the restructure [sic] with your team according to your request and our lawyers has finished draft the Framework Agreement, and it is not signed yet due to the change of the whole plan.

92.

On 19 January 2021 OCSL, Charterers and Arena entered into a tripartite agreement (the ‘Tripartite Agreement’). The Tripartite Agreement provided, in material part, as follows:

(A)
By a bareboat charter dated 31^st December 2014 (the "Charter") Ocean Clap as Owner let the "Ben Nevis" (the "Vessel") to GOS for a Charter Period of 72 months which expired on 14th January 2021. This Agreement concerns the arrangements for the redelivery of the Vessel to Ocean Clap to take place on or about 28th January 2021.
(D)
Notwithstanding GOS's continued liability for operating expenses including crew wages, in order to lift the detention Ocean Clap is willing to provide funding for the crew wages on the terms agreed below.
6.
GOS acknowledges that it remains liable to indemnify and reimburse Ocean Clap in respect of the Wages and Funds. All Ocean Clap's rights under the Charter are reserved.

93.

On the same day, Owners instructed CSM to arrange the taking possession of the Kailash at Hull.

94.

On 29 January 2021 the Ben Nevis was released from detention. OCSL took possession of her.

95.

In June 2021 Owners and Charterers attempted to reach an agreement regarding outstanding liabilities under the Charterparties. No such agreement was reached.

96.

On 28 September 2021 Owners served notices of termination of the Charterparties and demands for payment of the maximum guaranteed sum under the Guarantees. On 6 October 2021 Charterers and Guarantors replied in the following terms:

In addition to the above, Charterers already had an agreement with you, as Owners for the said Charter to be cancelled way back in 2019, absolving the charterers of all its liabilities under the existing Charter with new Charter agreements being executed which would work on the principle of a "cash sweep" after OPEX, based on the charter the vessel had secured. This was never proceeded with by owners even though they had committed to the same.

Witness evidence

97.

Three witnesses gave evidence in court.