Commercial Court

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

Fecha: 26-Jun-2025

The Claim on the Guarantees

The Claim on the Guarantees

133.

Each of the Guarantees was in materially similar terms. The Ben Nevis Guarantee provided, in part, as follows:

1.2

Definitions

In this Guarantee, unless the context otherwise requires:

[…]

"Guarantee" includes each separate or independent stipulation or agreement by the Guarantor contained in this Guarantee;

"Guaranteed Liabilities" means any and all obligations and liabilities (whether actual or contingent, whether as principal, surety or otherwise, whether now existing or hereafter arising, whether or not for the payment of money, and including, without limitation, any obligation or liability to pay damages) of the Charterer under the Bareboat Charterparty and the Security Documents owing and/or payable to the Owner;

"Guarantee Period" means the period beginning on the date of this Guarantee and ending on the earlier of:

(a)

the date on which all the Guaranteed Liabilities and all obligations (whether actual or contingent) under or in connection with this Guarantee have been unconditionally and irrevocably paid and discharged in full; and

(b)

the date falling seventy-two (72) Months after the date of this Guarantee;

[…]

"Maximum Liability" meansUS$7,500,000.00 [Ben Nevis] [US$6,000,000.00 (Kailash)]

[…]

1.3.6

a certificate by the Owner as to any amount due or calculation made or any matter whatsoever determined in connection with this Guarantee shall be conclusive and binding on the Guarantor except for manifest error;

[…]

GUARANTEE AND INDEMNITY

2.1

Guarantor as principal Debtor; indemnity

2.1.1

The Guarantor irrevocably and unconditionally:

(a)

guarantees to the Owner the due and punctual observance and performance of all the obligations of the Charterer under Bareboat Charterparty and the Security Documents and the due and punctual payment of all the Guaranteed Liabilities; and

(b)

undertakes with the Owner that whenever the Charterer does not pay any amount of the Guaranteed Obligations when due, the Guarantor shall immediately on demand pay that amount as if it were the principal obligor; and

(c)

indemnifies the Owner immediately on demand against any cost, loss or liability suffered by the Owner if any obligation guaranteed by it (or anything which would have been an obligation if not unenforceable, invalid or illegal) is or becomes unenforceable, invalid or illegal. The amount of the cost loss or liability shall be equal to the amount which the Owner, or as the case may be, would otherwise have been entitled to recover,

provided that the aggregate amount payable by the Guarantor under this Guarantee shall not exceed the Maximum Liability.

[…]

2.3

Interest

Any amount due to the Owner under this Guarantee shall bear interest from the date of demand until actual payment (both before and after judgment). Such interest shall accrue at the same rate and be calculated and compounded in the same way (mutatis mutandis) as interest under Schedule III of the Bareboat Charterparty.

2.4

Continuing security and other matters

The Guarantee is a continuing security and shall:

2.4.1

secure the ultimate balance from time to time owing to the Owner by the Charterer notwithstanding any settlement of account or other matter whatsoever;

[…]

GUARANTEE PERIOD

This Guarantee shall remain in full force and effect as a continuing guarantee for the duration of the Guarantee Period.

…

REPRESENTATIONS AND WARRANTIES

…

5.3

Repetition of Representations and Warranties

On each day from the date of this Guarantee until all monies due or owing by the Charterer under the Bareboat Charterparty and the Security Documents and/or by the Guarantor under this Guarantee have been paid in full, the Guarantor shall be deemed to repeat the representations and warranties in Clause 5.1 as if made with reference to the facts and circumstances existing on each such day.

UNDERTAKINGS

6.1

General

The Guarantor undertakes that, from the date of this Guarantee and so long as any monies are owing under this Guarantee, it will:

…’

134.

The Guarantee Period ended on 14 July 2020 (Kailash) and 12 June 2021 (Ben Nevis).