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14 October 2015
The OW Bunker group collapse occurred in late 2014 and continues to affect the wider shipowning community.
A considerable number of physical bunker suppliers around the world have not received payment of their invoices from the relevant OW Bunker entities with which they concluded contracts. As a result, shipowners and charterers face a number of issues, such as threats of arrest and the question of to whom payment should be made.
In particular, many shipowners are facing claims for payment addressed against them by physical suppliers that have not been paid by OW Bunker entities. These claims are usually filed on the grounds that the owners are directly liable because of the signing of the bunker delivery receipt or on the basis of a retention of title provision or lien clause contained in the physical supplier's terms and conditions.
The Tribunal of Venice recently addressed the problematic issue of whether a physical bunker supplier was entitled to arrest the vessel to which it supplied fuel where it had received no payment from the insolvent contractual bunker supplier.
In September 2014 the owners of a vessel flying the Danish flag placed an order for bunker with OW Bunker Germany Gmbh (OWBG). OWBG in turn asked the Danish company OW Bunker & Trading A/S (OWBT) to arrange for the supply of the bunker and OWBT finally ordered the fuel for the vessel from a Cyprus physical supplier. At the end of the supply operation, the Cyprus physical supplier issued two bunker delivery receipts incorporating its contractual terms and conditions, both of which were signed by the vessel's chief engineer.
On October 10 2014 an invoice was issued by the physical bunker supplier addressed to OWBT "as well as vessel &/or master &/or Owners &/or charterers &/or managers".
In late 2014 the OW Bunker group collapsed and – given the poor prospects of recovery against OW Bunker in any liquidation proceedings – the physical bunker supplier demanded payment of the above invoice by the vessel's owners.
Having received a negative reply from the owners, the physical bunker supplier applied for the arrest of the vessel in Venice on March 14 2015.
By filing his application for arrest before the Tribunal of Venice, the physical bunker supplier argued that he was entitled to arrest the vessel to obtain security for its credit against the owners on the following grounds:
Having examined the application filed by the Cyprus bunker supplier – together with the documentation supporting the claim – the judge ordered the interim arrest of the vessel and scheduled a hearing for March 24 2015.
On March 17 2015 the owners obtained the release of the vessel by putting up security of €430,000 in the form of a cash deposit. The owners subsequently submitted their defence to the court, disputing the right of the Cyprus bunker supplier to obtain the arrest of the vessel. In particular, the owners argued as follows:
In upholding the defence raised by the owners, the Tribunal of Venice held that the Cyprus bunker supplier had no title to claim against the owners for payment of the bunkers.
The judge made the following statements:
In light of the above, the judge revoked the arrest that had previously been granted by ordering restitution to the owners of the sum deposited in court as security.
For further information on this topic please contact Luca Di Marco at Dardani Studio Legale by telephone (+39 010 576 1816) or email (firstname.lastname@example.org). The Dardani Studio Legale website can be accessed at www.dardani.it.
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