The Hon. Mr Justice Tomlinson :
- On 29 April 2009 I delivered my judgment on what have been described as the Phase 1 issues. I shall refer to that judgment, [2009] EWHC 889 (Admlty) as the Phase 1 judgment. This second judgment is to be read with and in the light of the Phase 1 judgment. I do not propose to lengthen this judgment by repeating the introductory passages in the Phase 1 judgment which outline the dispute between the parties. I will have to add some narrative, and to make some findings of fact additional to those facts which were agreed for the purposes of the first hearing. The facts agreed for the first hearing are in any event uncontroversial.
- In the Phase 1 judgment I recorded that the insured value of the vessel W. D. Fairway for hull and machinery was €73.5 million. There was an interval of very nearly one year between the tender of notice of abandonment on 27 March 2007, and underwriters accepting that the vessel was a constructive total loss, hereinafter "CTL". That is because it was not until 10 March 2008 that underwriters were prepared to accept that the cost of repairing the damage would exceed the relevant agreed value, €73.5 million. Boskalis, by which I intend a compendious reference to the Boskalis Group, is critical of underwriters in this regard, and says that they acted unreasonably in not earlier agreeing that the vessel was a CTL and making payment accordingly. I do not have to decide whether that criticism is well-founded, and no argument has been directed specifically to that issue. I express no view on the issue, not least because Boskalis has launched separate proceedings against underwriters with a view to the recovery of interest and/or damages consequent upon what it characterises as underwriters' unreasonable conduct. I should however record that as a result of the time spent in resolving the question whether the vessel was a CTL on the figures Boskalis formed the view, rightly or wrongly, that underwriters had adopted an entrenched position in reliance upon advice which was unreliable in that it came from those who were not acknowledged experts in the field and/or had been commissioned upon an inappropriate and misconceived basis: see for example the e-mail of 29 August 2008 from Mr Oscar Bus, Head of Insurance at Boskalis to its brokers Marsh. Boskalis found this frustrating. Once the question of the realisation of the residual value of the vessel became an issue between the parties, Boskalis believed that underwriters were again basing themselves upon advice from an inappropriately qualified source, in this case Mr Geoff Webster of Vener Marine in the United States. Boskalis was in my view wrong to regard Mr Webster's experience as irrelevant to the valuation of the Fairway. However that may be, it is crucial to a proper understanding of the events with which I am concerned that Boskalis felt aggrieved in consequence of underwriters' handling of its claim for a CTL and felt that history was repeating itself in underwriters' approach to the realisation of the residual value of the vessel following payment for the CTL.
- I should also record that the total outlay of the underwriters with whom I am concerned was €150 million, comprising €5 million on the primary layer, €68.5 million excess of €5 million on the excess hull and machinery cover, €18.375 million on the excess policy for Outfit and/or Disbursements and €58.125 million for the Excess layer Section B "Interest Whatsoever".
Renvoi
- Before proceeding further I propose first to determine an issue which I left not conclusively resolved in paragraph 89 of the Phase 1 judgment. It is agreed between the parties that at first instance the relevant system or systems of law for determining the incidence of proprietary interests in the vessel prior to, at the time of, and after the purported transfer of the vessel to the Fourth Defendant must be held to be the lex situs. I have determined that at all relevant times the lex situs was Thai law. Without evidence as to the content of the lex situs, I was unprepared to give a definitive answer to the question whether reference to the lex situs in this context includes or excludes reference to the private international law rules, if any, of that system of law. My provisional answer was that reference to the domestic law of the situs is alone permissible. I am now in a position to confirm that answer. There is no principle in Thai private international law application of which will better serve the object of the English conflict rule than will application of Thai domestic law. The question is however academic. If the Thai rule of private international law were to be applied, a Thai court would nonetheless apply Thai domestic law to determine the incidence of proprietary interests in the vessel.
- On the question of principle, Mr Iain Milligan QC for underwriters argued that there should be recognised an exception to the general rule which I provisionally embraced at paragraph 89 of the Phase 1 judgment. As I understood the argument, it was to the effect that where the lex situs recognises transfer of property by contract alone, as opposed to, for example, imposing as a requirement for the efficacy of a transfer the completion of physical delivery or the effecting of registration, and where the contract in question is governed by a law other than that of the situs, the English court should apply the conflict rule of the lex situs in order to determine the question whether a contractual transfer of property was in fact achieved. On reflection I am not sure that this point is open to Mr Milligan in the light of the concession at Phase 1 and the very limited terms in which I left the point open at paragraph 89 of the Phase 1 judgment. However that may be the argument is, if I have correctly understood it, in my view misconceived. Since I consider that the point is in any event academic, in view of my findings as to the content of Thai law, I do not propose to deal with it at length. It suffices to say that I agree with Mr Jonathan Gaisman QC for Nigerian Westminster that the argument confuses or at any rate appears to confuse the contractual effects of a transfer, or of a transaction said to confer a legal or beneficial title, with the proprietary effects of the transfer or transaction – see Dicey & Morris, Conflict of Laws 14th Edition at paragraph 24-006. I respectfully agree with the analysis of Moore-Bick J in Glencore v Metro [2001] 1 Lloyd's Rep. 284 at pages 290-295, paragraphs 14-32 of his judgment. Moore-Bick J held that the proprietary effects of a contractual transfer are governed by the lex situs, even in a dispute between only the contracting parties. Moore-Bick J adopted a well-known dictum of Diplock LJ in Hardwick Game Farm v Suffolk Agricultural Poultry Producers Association, [1966] 1 WLR 287 at page 330:
"… The proper law governing the transfer of corporeal moveable property is the lex situs. A contract made in England and governed by English law for the sale of specific goods situated in Germany, although it would be effective to pass the property in the goods at the moment the contract was made if the goods were situate in England, would not have that effect if under German law (as I believe to be the case) delivery of the goods was required in order to transfer the property in them."
As Mr Gaisman trenchantly put it, resort is only had to the lex situs because the court is concerned with proprietary rights. If the court were concerned only with contractual rights, resort would not be had to the lex situs at all. The proposed exception to the general rule is therefore on analysis somewhat illusory, since it presupposes, wrongly, that the court is here relevantly concerned with contractual rights.
- As to Thai private international law, on examination the relevant rules are not dissimilar to those in English private international law. The Act on Conflict of Laws, B.E. 2481 (1938) provides:
"DIVISION III Obligations
Section 13. The question as to what law is applicable in regard to the essential elements or effects of a contract is determined by the intention of the parties to it. If such intention, express or implied, cannot be ascertained, the law applicable is the law common to the parties when they are of the same nationality, or, if they are not of the same nationality, the law of the place where the contract has been made.
When the contract is made between persons at a distance, the place where the contract is deemed to have been made is the place where notice of acceptance reaches the offeror. If such place cannot be ascertained the law of the place where the contract is to be performed shall govern.
A contract shall not be void when made in accordance with the form prescribed by the law which governs the effects of such contract.
…
DIVISION IV Things
Section 16. Moveable and immoveable property is governed by the law of the place where the property is situated.
However, in case of exportation of moveable property, the law of nationality of its owner shall govern from the time of exportation."
- Before the hearing it appeared to be common ground that a Thai court would apply Thai domestic law to determine the two distinct questions:
i) the accrual of proprietary rights in the vessel by virtue of the dealings between the owners and the underwriters whilst the vessel lay at Sattahip, and
ii) the proprietary effect of the Memorandum of Agreement, hereinafter "MOA" of 9 January 2009 agreed between Westminster International BV and Nigerian Westminster Dredging and Marine Limited the proper law of which is by express choice Nigerian.
This was, in the opinion of the Claimants' expert witness on Thai law Mr Wutipong, the effect of section 16 of the Conflict of Laws Act. After the hearing had begun the two experts on Thai law produced a joint memorandum which incorporated also certain additional comments of Mr Wutipong. Mr Wutipong attempted to resile from his earlier views, saying that the relevant paragraphs of his report referred to a situation independent of any contractual agreement. In his subsequent oral evidence he attempted to maintain this line, but unconvincingly. The relevant passages in his first report, paragraphs 18-21 and 105-108(c) contained no such reservation which would in any event be wholly contrary to the sense of the latter group of paragraphs in which a clear distinction was drawn between a dispute between the two parties to the MOA arising out of the contract and a consideration of the proprietary effects of the contract. The evidence of Mr Chamnian, the expert on Thai law called by the Boskalis interests, was to the effect that in situations such as the present where there is an overlap between contractual and proprietary rights and thus superficially between sections 13 and 16, which is what I think he meant by "some ambiguous between section 13 and section 16", in an examination of the proprietary effect of a contract the Thai court will apply the choice of law rule contained in section 16 of the Act on Conflict of Laws. I accept Mr Chamnian's evidence, not least because it accords with Mr Wutipong's first thoughts but also because his evidence demonstrated a clear awareness of the significance of the distinction upon which he was being asked to focus. By contrast Mr Wutipong's evidence on this point was confused and unconvincing. Indeed, I am constrained to agree with Mr Gaisman that Mr Wutipong's second thoughts on this issue bore an uncanny resemblance to the unorthodox submissions made by Mr Milligan at the hearing as to the approach of English private international law to the overlap between contractual and proprietary issues.
- It follows that the relevant system of law for determining the incidence of proprietary interests in the vessel prior to, at the time of and after the purported transfer of the vessel to Nigerian Westminster, the Fourth Defendant, is the domestic law of Thailand.
- Before turning to the content of that law I propose next to consider the effect of the endorsement of 10 March 2008 made by Mr Tony Kersey of Royal and Sun Alliance, hereinafter "RSA", on the brokers' claim settlement documents. I referred to this endorsement at paragraph 20(3) of the Phase 1 judgment but for ease of reference I set it out here again:
"Agree settle CTL claim on the basis that there are no circumstances known to the assured that may prejudice cover or may otherwise affect the claim, such payment is made without prejudice to this reservation.
Net open market residual value of vessel to be accounted to insurers."
It is the effect of the second sentence of this endorsement which is under consideration. Mr Tom Weitzman QC for Boskalis contends that by the endorsement the excess underwriters elected not to exercise their right to take over the interest of the assured in the vessel, the right conferred by a combination of payment for a CTL and the first limb of section 79(1) of the Marine Insurance Act 1906, hereinafter the MIA. Mr Milligan contends that the endorsement does not have this effect but that if it does Boskalis is estopped by convention from so contending. This in turn raises an issue by reference to which system of law it should be determined whether such an estoppel operates.
- RSA was identified in the excess policy as the slip leader. The leading Lloyd's syndicate on the policy was XL, Syndicate 1209, represented for present purposes by Mr Steve Hill. It is common ground that whilst the claims settlement forms signed by Mr Hill on 10 March 2008 did not bear any similar endorsement to that placed by Mr Kersey, Mr Hill had told Mr Street of the brokers Marsh on the previous Friday, 7 March, that he would be in agreement with and adopt the endorsement which would be signed by RSA. The policy identifies Lloyd's syndicate XL 1209 under the rubric: "OTHER AGREEMENT PARTIES FOR CONTRACT CHANGES, IF ANY". Furthermore the Excess Policy provides:
"CLAIMS AGREEMENT PARTIES
Claims to be agreed by the slip leader hereon and X-changing Claims Services and such agreement to be binding on all underwriters.
BASIS OF CLAIMS AGREEMENT
Claims to be managed in accordance with Lloyd's 2006 Claims Scheme and International Underwriting Association claims agreement practices. Underwriters hereon agree to follow in all respects the claims handling arrangements and decisions made by the Underlying First Loss Policy led by Fortis Corporate Insurance NV (Policy No. 7048726C0015). However, underwriters hereon are not bound to follow for their own proportions any claim settlement agreement made by the Underlying First Loss Policy led by Fortis Corporate Insurance NV … without prior consultation and approval by the two leading underwriters hereon."
I do not consider that these provisions have the effect that the slip leader RSA and X-Changing Claims Services (the successor to Lloyd's Claims Office) or the two leading underwriters, the relevant representatives of RSA and XL, could bind the following market to an election not to take over the interest of the assured in the vessel after payment as for a CTL. An election of that nature, which for the reasons discussed hereafter would be most unusual if not in my view extraordinary, goes beyond what is normally inherent in a claim settlement agreement. Indeed it seems to me that if I were to accept the argument of Boskalis as to the effect of the terms of the policy in this regard, but to conclude that as a matter of construction of the endorsement no election was made, it would have to follow that the subsequent election of 5 December 2008 to which I refer at paragraph 19(11) of the Phase 1 judgment bound the entire following market. That is not a conclusion for which anyone contends.[1] For allied reasons it seems to me very difficult to conclude that each of the subscribing underwriters comprising the following market associated themselves with or impliedly adopted the endorsement. Mr Walker of X-Changing, representing the Lloyd's market, was copied in on an e-mail which Mr Kersey sent to Mr Street on 7 March confirming that RSA, as leaders, were in agreement, subject to an unparticularised endorsement wording, to their proportion of the balance of the CTL claim. On 11 March Mr Walker countersigned the claim settlement form which had been signed by Mr Hill the previous day, but there is no suggestion that he saw the RSA endorsement or that he ever indicated an agreement to be bound by it. A copy of Mr Kersey's endorsement was sent to "the remaining subscribing underwriters whose settlements had to be processed individually", by which phrase in his Witness Statement I understand Mr Street to mean the remaining company market. Mr Street was not required to attend for cross-examination at the hearing, his expression of his subjective belief that all subscribing underwriters had agreed to Mr Kersey's endorsement being irrelevant. I agree however with Mr Milligan that the subsequent payment by the company underwriters of their proportion of the CTL is equivocal. It cannot without more be regarded as an acceptance of the endorsement.
- However I do not consider that the endorsement communicates an election by RSA not to exercise their right to take over the assured's interest in the vessel. It is common ground that the endorsement must be read in context, that the context includes preceding communications between the parties and that the approach, both to construction of the endorsement itself and as to an appreciation of what was conveyed in the preceding exchanges, is objective. The communications which the parties exchanged before 10 March 2008 on the topic of realisation of the value of the vessel proceeded upon the basis, as it seems to me, that this would be achieved in the normal way, i.e. by a co-operative arrangement whereby the assured would either assist in facilitating the sale of the vessel to a third party, often for scrap, or, if they wished to retain the vessel, account for the residual value to underwriters. Underpinning that conventional approach is the assumption that underwriters are entitled on payment for a CTL to take over the assured's interest in the vessel and dispose of it as they see fit but that ordinarily by co-operative arrangement they will be relieved of the need actually to exercise that entitlement. That this is the normal approach is borne out by the unchallenged evidence of Mr Kersey. Underlying that approach is a proper appreciation of the effect of the MIA 1906, in the light of which the objective import of the parties' relevant communications should of course be ascertained. Mr Kersey referred without challenge to the process of negotiation which occurs where the vessel is not sold to a third party as involving the assured "offering to buy the vessel back from underwriters". Obviously this description of the process is technically incorrect in the paradigm situation where underwriters have not elected to take over the assured's interest in the vessel. It reflects however the underlying understanding of properly informed persons in the market that that is underwriters' entitlement. Hence the expression "buy the vessel back from underwriters" omits a stage in the process which all understand or must be taken to understand it is open to underwriters to initiate but which by co-operation will ordinarily be rendered unnecessary.
- I do not propose to set out in extenso the exchanges which preceded the 10 March 2008 endorsement but they are in my judgment consistent with the foregoing understanding. It is in this light for example that one must understand RSA's otherwise oddly expressed request of Boskalis of 29 February 2008 for confirmation "if it is the intention to retain possession of the vessel after payment of the CTL, in which case what are the assured's proposals for accounting to underwriters for her true market value?". In the same message underwriters also said this:
"As you will appreciate the main issues outstanding relate to the residual value of the vessel. Given the nature of this loss and the specialised nature of the vessel, the residual value is unlikely to be a simple scrap value. For this reason, details of the wreck and decisions as to how the value remaining therein is to be released to underwriters' benefit is obviously a key issue, especially given the difficulties faced with any recovery in the USA. For Underwriters, this is not an ancillary issue and they consider that there should be no reason why these matters cannot be taken forward without further delay, especially in the light of lead Underwriters' decision. It must be accepted that co-operation in this regard will undoubtedly expedite actual settlement under the policy."
In part this message reflected the practice, of which Mr Kersey speaks, whereby if the assured wishes to retain the vessel and both parties agree, it is sometimes possible to deduct the agreed purchase price from the amount to be paid in respect of the CTL. By message of 5 March 2008 underwriters said this:
"It will come as no surprise to Boskalis that, given the high sound market value of this vessel, potential cost of repairs and considerable third party interest, leading Underwriters will be expected to look at all options regarding the disposal/sale of the wreck. Underwriters look forward to confirmation that they and Boskalis can move this matter forward together with full co-operation."
- In the light of this background it would have been unexpected and probably perverse had underwriters on 10 March 2008 irrevocably elected not to take over the interest of the assured in the vessel, since in the absence of agreement taking over the vessel represented the only method whereby underwriters could control the means whereby the value remaining in the vessel was realised. Given the difficulties which had so far attended resolution of the claim for a CTL, the inevitable strain in the relationship between the parties amounting to a palpable lack of confidence the one in the other, and the express desire of underwriters to progress the discussion of this issue before final agreement of and payment for a CTL, it would in my judgment have been doubly unexpected that underwriters would abandon so valuable indeed so critical an entitlement. Without it, they would lose all control over the process of realisation of the value in the wreck.
- Indeed Mr Milligan goes further and contends that without the entitlement under the first limb of section 79(1) of the MIA 1906 the underwriters would not in fact be entitled to the residual value of the vessel. This raises the point which I discussed at paragraphs 30 and 54 of the Phase 1 judgment but on which I then heard no argument. It did not then seem to me obvious that an insurer who has not exercised his election under either section 63(1) or section 79(1) is entitled to the net open market residual value of an as yet unsold vessel in respect of which he has paid as for a CTL. It seems to me still less obvious that an underwriter who has expressly elected not to exercise his entitlement under either section 63(1) or section 79(1) is entitled to the proceeds of sale of the wreck. As I speculated at paragraph 30 of the Phase 1 judgment he might, Mr Weitzman contended at the Phase 2 hearing that in the latter case underwriters' entitlement to the sale proceeds derives from their rights of subrogation acquired on payment for a CTL pursuant to the second limb of section 79(1).
- I do not consider that Mr Weitzman is correct in this submission. Firstly, it is counter-intuitive. As Mr Milligan put it, if the underwriter says to the assured, without more, "I do not want the ship" then the ship remains in the ownership of the assured. It seems to me as a matter of principle that the further entitlement of the insurer in those circumstances cannot be different whether the assured repairs the vessel and retains it in his service or whether he sells it to a third party. In either case the underwriter has renounced any interest in the residual value of the vessel.
- Mr Weitzman perhaps not unnaturally relied upon Castellain v Preston [1883] 11 QBD 380. In particular he relied upon Brett LJ's well known statement at page 386:
"The very foundation, in my opinion, of every rule which has been applied to insurance law is this, namely, that the contract of insurance contained in a marine or fire policy is a contract of indemnity, and of indemnity only, and that this contract means that the assured, in case of a loss against which the policy has been made, shall be fully indemnified, but shall never be more than fully indemnified. That is the fundamental principle of insurance, and if ever a proposition is brought forward which is at variance with it, that is to say, which either will prevent the assured from obtaining a full indemnity, or which will give to the assured more than a full indemnity, that proposition must certainly be wrong."
Mr Weitzman also relied upon the following passage at page 388:
"In order to apply the doctrine of subrogation, it seems to me that the full and absolute meaning of the word must be used, that is to say, the insurer must be placed in the position of the assured. Now it seems to me that in order to carry out the fundamental rule of insurance law, this doctrine of subrogation must be carried to the extent which I am now about the endeavour to express, namely, that as between the underwriter and the assured the underwriter is entitled to the advantage of every right of the assured, whether such right consists in contract, fulfilled or unfulfilled, or in remedy for tort capable of being insisted on or already insisted on, or in any other right, whether by way of condition or otherwise, legal or equitable, which can be, or has been exercised or has accrued, and whether such right could or could not be enforced by the insurer in the name of the assured by the exercise or acquiring of which right or condition the loss against which the assured is insured, can be, or has been diminished. That seems to me to put this doctrine of subrogation in the largest possible form, and if in that form, large as it is, it is short of fulfilling that which is the fundamental condition, I must have omitted to state something which ought to have been stated. But it will be observed that I use the words 'of every right of the assured'. I think that the rule does require that limit."
However I do not consider that these passages assist. Castellain v Preston was a case where a house suffered damage by fire in the interval between contract and conveyance. The vendor recovered from his fire insurers in respect of the damage and the sale was subsequently completed, with no abatement of the price to reflect the fire damage. Underwriters were held entitled to recover from their assured vendor a sum equal to the insurance money which they had paid out. The right to enforce the sale was of course a right which subsisted as at the date of the fire. However the case does not decide that if, subsequent to being indemnified for fire damage, an owner of insured property manages to sell it at a price which does not apparently reflect a discount to reflect the damage, the owner must account to the insurer for a sum equal to the insurance recovery. Except in the wider sense that at the time of the fire the insured has the right to sell his property, he at that stage has no legal or equitable right to which the insurer could be subrogated. Furthermore I do not consider that resort to the principle of indemnity assists. On the hypothesis under discussion, express disclaimer by underwriters of their right to take over the assured's interests in the vessel, it is as a result of underwriters' express choice that the insured potentially receives more than an indemnity.
- It follows that I agree with Mr Milligan that had underwriters elected not to take over the interests of the assured in the vessel they would not, without more, have been entitled to the residual value of the vessel. That appears also to be the view of the learned editors of Arnould, Marine Insurance and Average, 17th Edition. At paragraph 30-32 there appears the following:
"… But the underwriter, by not accepting the abandonment, or by other acts of the like kind, may lose all title to the ultimate benefit of salvage. In Brooks v MacDonnell [(1835) 1 Y. & C. 500] a British ship and cargo were captured by the Brazilian Government, and condemned as prize for breach of blockade. The underwriters who had insured the cargo would not accept an abandonment, but compromised the claim for 35 per cent. Some time afterwards restitution and compensation were made by the Brazilian Government, and in an action by the insurers to obtain the benefit of this the court held that they were not entitled to anything."
Brooks v MacDonnell does not really assist since abandonment was rejected and the claim for a CTL settled by a payment of 35%, on payment of which the policy was to be delivered up for cancellation. It was inherent in the settlement that the underwriters disclaimed any further interest in the insured property. Nonetheless I take comfort from the tentative view of the editors of Arnould that an insurer may by not accepting abandonment lose all title to the ultimate benefit of salvage. For the avoidance of doubt, I do not consider that this can ordinarily occur absent an express disclaimer by underwriters of their entitlement.
- If this is right, the endorsement of 10 March 2008 is actually inconsistent with an election not to take over the interest of the assured in the vessel. Even if it is not right, the endorsement is in my view, objectively construed against the relevant background, entirely consistent with the subsistence of underwriters' right to take over the vessel as being the right underpinning the parties' discussion as to how the residual value of the vessel was to be realised, a right to which resort was unlikely conventionally to be had but which remained nonetheless in reserve. Even if that approach is thought to be wrong, the endorsement is in my view at the very least equally consistent with the subsistence of the underwriters' right to take over the vessel as it is with underwriters having elected not to take over the vessel. Given the background which I have described, the fact that in the event underwriters take over a vessel and sell it themselves, this would not involve the insured accounting to underwriters for the net residual value, is neither here nor there. The objective understanding is that the insured will account to underwriters for the net residual value precisely because if they do not the underwriters will exercise their entitlement to realise that value themselves. "Accounting to insurers for the net residual value of the vessel" is therefore synonymous with "buying the vessel back from underwriters". Use of either expression is in this context consistent with and indeed posited upon underwriters having a subsisting right to take over the vessel.
- I am glad to be able to come to this conclusion because it is apparent that it occurred to no-one prior to February 2009 that the endorsement of 10 March 2008 amounted to an election by underwriters not to exercise their right to take over the vessel. On the first day of the Phase 1 hearing I raised with Mr Milligan, without reference to the endorsement on which I had not by then focussed, the theoretical possibility that underwriters might when paying for a CTL couple their payment with an express disclaimer of their rights of election under sections 63(1) and 79(1). Unsurprisingly Mr Milligan accepted that in such circumstances the assured would be at liberty thereafter to sell the vessel. Later on the same day Mr Weitzman raised for the first time the point that "it can be argued, it might be argued, it may be argued" that the endorsement is inconsistent with any election to take over the vessel or with any reservation of any right to make an election to take over the vessel – see Transcript Day 1 pages 5 and 64. Mr Weitzman raised the point as one which Boskalis "may be raising". On the following day the point was formally reserved, Boskalis wishing particularly to make enquiries of their broker Mr Street. Neither Mr Street nor anyone from Boskalis has ever suggested that at the time they understood the endorsement to have the effect for which Mr Weitzman now contends. That is a telling point against the endorsement on its proper construction amounting to an election by underwriters not to take over the vessel. Indeed one can go further. As David Steel J pointed out in Callaghan & Hedges v Thompson, [2000] Lloyd's IRLR 125 at 134, an effective election requires that it be communicated to the opponent party. A document which does not at the time lead the opponent party to believe that a choice has been made is at the very least unlikely to be, objectively viewed, sufficiently clear and unequivocal to constitute an election and in the light of the authorities there cited by David Steel J is in any event ineffective simply because it does not cause the opponent party to understand that a choice has been made. See in particular the passages cited from Scarf v Jardine [1882] 7 App Cas 345; Kammins Ballrooms Company Limited v Zenith Investments (Torquay) Limited [1971] AC 850; China National Foreign Trade Transportation Corp. v Evlogia Shipping Company SA of Panama, The Mihalios Xilas [1979] 1 WLR 1018; Peyman v Lanjani [1985] 1 Ch 457 and The Kanchenjunga [1991] 1 Lloyd's Rep. 391.
- In the circumstances I have no need to consider whether Boskalis is estopped by convention from reliance upon the endorsement as an election by underwriters not to take over the vessel. Since the position emerges from the documents an appellate court will be as well placed as me to form a view on this point, should it arise, and I propose therefore to express my conclusion quite shortly. The case for an estoppel by convention is in my view quite overwhelming.
- Dicey & Morris Rule 17 provides:
"All matters of procedure are governed by the domestic law of the country to which the court wherein any legal proceedings are taken belongs (lex fori)."
The commentary on this rule includes, at paragraph 7-031, the following:
"Estoppel. For the purposes of English domestic law, estoppel is sometimes said to be a rule of evidence. Whether, for the purpose of this Rule, it should be regarded as a rule of substance or as a rule of procedure is an entirely open question, the answer to which may well vary with the type of estoppel under consideration. Thus the question whether a principal is estopped from denying the agent's authority to deal with a third party probably depends on the lex causae. On the other hand, the question precisely when an estoppel by record arises probably depends on the lex fori, although, of course that law may distinguish for this purpose between the effect of foreign and domestic judgments."
Mr Weitzman submits that the question is here governed by Thai law. It is common ground that there is no Thai doctrine of or equivalent to estoppel. However I can see no basis whatever for this submission. Even if the question is one of substance, the question of substance under consideration is the question whether the insurers exercised a right of election open to them as an incident of a contract of insurance governed by English law. Reference to the law of the situs might be justified if some sort of proprietary estoppel were in play but it is not.
- It is common ground that in order to establish an estoppel by convention in English law the Claimants must prove to the satisfaction of the court that:
i) The Claimants and Boskalis acted on the basis of a shared assumption as to facts or law.
ii) The assumption has been communicated between them.
iii) The Claimants and Boskalis should have had the objective intention that the alleged assumption would be binding on the parties in their legal relationship and on that basis have regulated their subsequent dealings.
iv) It would be unfair to the Claimants for Boskalis to resile from the agreed assumption.
The only gloss I would add is that, as Mr Milligan in my judgment correctly submitted, it is the shared assumption which is apparent objectively from the parties' communications which is under consideration, not their subjective intentions, although the two will usually coincide, as here they did. Mr Bus was aware in general terms of underwriters' right to elect to take over the vessel and he did not suggest that he understood the endorsement of 10 March 2008 to have the effect that underwriters had disclaimed that right. Manifestly no subscribing underwriter thought that he had disclaimed the right to take over the vessel. As to the communication of the assumption, it is sufficient to refer at this point to two matters only which clearly establish a shared assumption that no election had been made by underwriters to disclaim their entitlement. I refer hereafter en passant to several other communications which show quite unequivocally the shared assumption underlying the ongoing discussion. Perhaps most clearly of all, on 25 August 2008 Boskalis told underwriters that they "would be prepared to consider buying back the wreck for €25 million". In the light of my earlier discussion about the significance of the use of this expression this speaks for itself. So too does underwriters' message to Boskalis of 11 June 2008 to the following effect:
"Underwriters are obviously giving serious and urgent consideration to taking over possession and ownership of the vessel. Again, their rights are fully reserved in this regard."
- In truth the correspondence is replete with communications of the shared assumption. Plainly the parties had the objective intention that the shared assumption would be binding on them in their legal relationship and they regulated their dealings accordingly. The negotiations between March/April 2008 and September 2008 proceeded upon the basis of the underlying understanding that the underwriters retained the right at the end of the day to take over ownership of the vessel. Finally, it would be manifestly unfair to underwriters to allow Boskalis now to resile from the shared assumption. It is obvious that had Boskalis taken the point at an early stage that an election had been made on 10 March 2008 the subsequent history would have taken a very different course and these proceedings would have assumed a very different shape. The point would have been quickly resolved one way or another and much expenditure avoided.
Did the Claimants acquire a proprietary interest in the vessel prior to 9 January 2009?
- It is common ground that before me this question is to be determined by reference to the lex situs. That I have held means here the domestic law of Thailand. I have already dealt in my Phase 1 judgment with what would be the position were the question governed by English law. It is also conceded that, before me, any claim against the Fourth Defendant founded solely on a beneficial interest would be governed by Thai law, as the lex situs, by virtue of paragraph (d) of Article 11 of the Hague Convention on the Recognition of Trusts as scheduled to the Recognition of Trusts Act 1987. It is common ground that, as a matter of Dutch law, should that ever be regarded as governing the question of acquisition of proprietary interests, the underwriters would have acquired no proprietary interest in the vessel prior to the de-registration of the vessel from the Dutch Registry of Shipping on 9 January 2009.
Did the Claimants acquire a proprietary interest in the vessel prior to 9 January 2009 under Thai law?
- By the end of the case the Claimants were, as I understood it, contending for the acquisition of a proprietary interest in the vessel by two distinct routes said to be afforded by the provisions of Thai law. The first route involved application by the Thai court of the English MIA 1906 as part of Thai domestic law. It was highly contentious between the parties whether the MIA 1906 should be regarded as part of Thai domestic law. However the Claimants need to go further – this argument also involved that the Thai court would recognise and apply any proprietary rights which English law would regard as created by its general law in order to give proprietary support and effect to the statutory rights conferred on insurers by the MIA under sections 63 and 79. This is an ambitious endeavour since the relevant concepts are virtually unknown in Thai law. The second route involved resort directly to a provision of the Thai Code, which it was said provides, in effect, that on payment for a total loss an insurer acquires legal title to the subject matter insured. In opening as I understood them the Claimants seemed to couple this with reliance upon provisions of English law as importing a right of election in underwriters. By the end of the argument the Claimants had I think abandoned this latter approach – possibly because they recognised that it involved reliance upon a renvoi said to be the consequence of the application of Thai rules of private international law. I must examine each route in turn.
- The Thai Civil and Commercial Code, hereinafter "TCCC", is divided into six Books: Book I, General Principles; Book II Obligations; Book III Specific Contracts; Book IV Property; Book V Family and Book VI Succession. Reference was principally made to provisions in Books I, II and III. Title XX of Book III deals with insurance.
- Book 1, section 4 of the TCCC sets out a fundamental four tier order of priority that is applied when civil and commercial cases are decided under Thai law. It provides as follows:
"The law must be applied in all cases which come within the letter or the spirit of any of its provisions.
Where no provision is applicable, the case shall be decided according to the local custom.
If there is no such custom, the case shall be decided by analogy to the provision most nearly applicable, and, in default of such provision, by the general principles of law."
- The two experts in Thai law were agreed on the following propositions:
i) If there is a provision of Thai law that addresses a disputed issue in a case, that provision of Thai law decides the issue, and there is no need to look further to the next three tiers, local custom, analogous provisions of Thai law and general principles of law. In other words, when there are provisions of Thai law that decide an issue, the inquiry ends with those provisions of Thai law, and the other three tiers mentioned in TCCC are irrelevant.
ii) "General principles of law" is the last of the four tiers in the order of priority. This means that general principles of law are only relevant when (1) the letter or spirit of Thai law cannot be used to decide an issue, (2) there is no local custom that can be used to decide an issue, and (3) there is no analogous provision of Thai law that can be used to decide an issue. Under Thai law, there is no need to make an enquiry into or apply general principles of law if a case can be decided by employing any of the first three tiers of TCCC section 4.
iii) Because "general principles of law" are not part of the corpus of Thai law, Thai courts do not have to apply general principles of law. Indeed, Thai courts should not adopt foreign principles of law when contrary to the principles of the Thai system of law. Dr Kittisak Prokati, a Professor of Law at one of Thailand's leading universities, Thammasat University, wrote in an article called "General Principles of Application and Interpretation of Law" that: "principles of foreign law to be applied as a general principle of law must not be contrary to the general principles in the Thai legal system". This particular rule on the application of foreign law as a general principle of law has been followed by the Thai Supreme Court on numerous occasions, including where reference to the English Marine Insurance Act of 1906 was made as a general principle of law.
- Thus in any given case the search for an applicable principle of law follows the four tier order of priority. If an applicable principle by reference to which the case can be decided is found in tier two, there is no need to resort to tiers three and four and indeed such resort is impermissible. Of course, resort must be had to the hierarchy on an issue by issue basis – self evidently any given case may involve more than one legal issue so that resolution of the case as a whole may require the application of more than one legal principle and, therefore, resort to more than one tier in the hierarchy.
- Section 868 in Book III provides:
"Contracts of Maritime insurance shall be governed by the provisions of the Maritime Law."
This is the official translation. It was I think common ground that a more direct translation of the Thai corresponding to the last three words as translated would be "the Law of the Sea". However that may be, it is common ground that no Maritime Law or Law of the Sea has been enacted in Thailand. There is in Thailand no law specific to marine or maritime insurance. It is common ground that section 868 is effectively a "placeholder" intended to refer to any Maritime Law which may eventually be enacted. It seems that a draft law was prepared in about 2000. The draft bears a striking resemblance to the English MIA 1906. However the draft has not been enacted into law and no-one suggested that its existence is of any relevance to the question I have to decide.
- In Title XX of Book III there are 22 sections of general application to insurance including section 880 which provides:
"If the loss is caused by the act of a third person, the insurer who pays compensation is subrogated, up to the amount paid by him, to the rights of the assured and of the beneficiary against such third person.
If the insurer has paid part only of the compensation, he cannot exercise his right to the prejudice of the right of the assured or of the beneficiary to claim from the third person for the remainder of the loss."
There are also special provisions for insurance on carriage (sections 883-886), guarantee insurance (sections 887 and 888), and insurance on life (sections 889-897). Furthermore in Book II there appear the following, under the rubric "Subrogation":
"Section 226. A person who is subrogated to the rights of a creditor is entitled to exercise in his own name all the rights which the creditor had in respect of the obligation including any security for it.
By real subrogation, a property is substituted for another property in the same juristic position as the previous one.
Section 227. When a creditor has received as compensation for damage the full value of the thing or right which is the subject of the obligation, the debtor is, by operation of law, subrogated into the position of the creditor with regard to such thing or right."
- It is the Claimants' case that because section 868 of the TCCC is a specific section of the Code by which, in terms, contracts of marine insurance shall be governed, when the Thai court is seized of a marine insurance dispute it is impermissible for it to have regard to the general provisions of the Code which might otherwise be thought applicable to the issue under consideration whether directly or by analogy. The consequence is, they say, that since no provision of the Code other than section 868 deals specifically with marine insurance, tier one yields no applicable provision of law. Since it is common ground that there is no relevant local custom tier two yields no applicable provision. Resort to analogous provisions under tier three is they say impermissible and the court must therefore apply the general principles of law. The Claimant says that the Thai Supreme Court has on two occasions given effect to provisions of the MIA 1906 thereby adopting them as part of Thai domestic law. The Claimants say that the present inquiry as to the acquisition of a proprietary interest by underwriters would be resolved in the same manner, giving effect to the relevant provisions of the MIA as if they were part of the Thai domestic law of marine insurance in preference to provisions of the Thai general law of insurance.
- The Defendants by contrast say that there is no principle of Thai law which in a marine insurance case precludes reference to the provisions of Thai law which are of general application to insurance. The Defendants say that sections 880 and 227 of the Code deal with the question of the rights acquired by insurers upon payment of an indemnity, and that the provisions apply either under tier one, the question at issue falling within the letter or the spirit of those provisions, or under tier three, those being the provisions most nearly applicable by analogy by reference to which the case shall be decided.
- The result for which the Claimants contend is at first sight somewhat remarkable, since the reference in section 868 to the provisions of "the Maritime Law" which does not exist is said to oust reliance upon the entirety of the Thai law of obligations and the Thai law relevant to the acquisition of proprietary interests, enshrined as it is within a sophisticated codified system. The Defendants for their part contend that resort to the provisions of a foreign law under tier four will only be had where there is a gap in the Thai law which cannot be filled by reliance upon analogous provisions of the Code. They also say that when thus applied the relevant foreign law is not being applied as Thai law as such but rather as general principles derived from foreign law. I do not need to decide the latter point, which Mr Wutipong himself recognised as still the subject of debate among Thai scholars.
- It was accepted by Mr Wutipong that there is no provision in the Code and no pronouncement of the Thai Supreme (or any) Court to the effect that the existence of a specific provision in the Code dealing with the topic under consideration renders it impermissible to apply another provision of the TCCC by analogy. The suggested rule is, particularly when examined in the context under consideration, somewhat counter-intuitive. One would naturally expect that contracts of marine insurance being contracts of insurance would be governed by the general law of insurance except in so far as the latter is modified by express provision applicable to marine insurance alone. Nonetheless, there is some support for the rule in this context in the academic writings which are as I understand it accorded persuasive weight in Thai courts although they must always yield to decisions of the Supreme Court which will carry the greater weight.
- Thus Professor Jamras writes, in his Case Book on Insurance Law, 3rd Edition, at page 18:
"Contracts of Maritime Insurance
There is one point to note in respect of insurance law, that is, Civil and Commercial Code section 868 states that 'Contracts of Maritime Insurance shall be governed by the provisions of the Maritime Law', which means that provisions regarding insurance in the Civil and Commercial Code will not be applicable to contracts of maritime insurance, even though in fact, contracts of maritime insurance are a type of insurance against loss."
This passage is reproduced verbatim, apparently without attribution, by Professor Chaiyot in his Law Summary Series, 7th Edition, at pages 6-7. It is also reproduced by Professor Attaniti in an Educational Handbook on International Trade Law on Carriage of Goods by Sea and Maritime Insurance, at pages 219-220. Lastly, there is a passage in Professor Pramual Chancheewa's "An Explanation of the Marine Insurance Act 1906 of England" to similar effect.
- It became apparent during the examination of this and other academic material that in Thailand the reproduction of the work of others, apparently without attribution, is commonplace, although it may be that the partial translations with which the court was provided give a misleading impression. In any event, I naturally assume that reiteration of this sort does not occur save where the second writer subscribes independently to the view expressed. However that may be, examination of the two decisions of the Thai Supreme Court upon which the view expressed was based showed that they do not support it. Reference was made in these academic writings to Supreme Court rulings Nos. 999/2496 and 7350/2537, sometimes called the "Trang Kanu" and the "Roong Tawee" cases after the ships involved. However in neither case was it said or even implied by the court that in a marine insurance case it is impermissible to have regard to any of the provisions of the TCCC which bear generally upon insurance. In the first case, the policy, written in English, covered loss proximately caused by perils of the sea. The court had resort to section 55 of the MIA 1906 for assistance with the concept of proximate cause and to the general English law of marine insurance for assistance with the meaning of perils of the sea, neither being matters dealt with by the TCCC. I do not accept Mr Gaisman's submission, which Mr Wutipong controverted in cross-examination, that in this case the Supreme Court also applied section 879 of the TCCC. The court did refer to section 879 when dealing with a very confused and misconceived argument of the insurers. The insurance was on a cargo of cement. The insurers seem to have argued that they could escape liability by demonstrating that the vessel suffered from wear and tear. The Supreme Court pointed out the fallacy in this argument, the underwriters being entitled to rely only upon the inherent vice of the property insured, which was the cement cargo not the carrying vessel. In that regard they pointed out that section 879 of the TCCC provides, in part, "the insurer is not liable for loss resulting directly from the inherent vice of the subject of insurance unless otherwise provided". The court also pointed out that this provision is in line with English law, in fact with MIA 1906 section 55(2)(c). However the Supreme Court had no need to apply section 879, since the argument was fundamentally misconceived as relying on the wear and tear or inherent vice in the vessel as opposed to in the cement, and failed on that ground alone.
- The position was however different in the second case, No. 7350/2537. The claimant was the mortgagee of an insured ship which was lost by an insured peril. The insurers paid the mortgagors the amount due under the policy. The mortgagee bank claimed against the insurers in respect of the loss. The insurers objected that the mortgagee could not claim to have suffered loss without proving the amount outstanding on the loan. The mortgagee bank relied in turn upon section 231 in Book II of the TCCC which provides, in part:
"If properties mortgaged, pledged or otherwise subject to a preferential right, are insured, the mortgage, pledge or other preferential right extends to the claim against the insurer.
In case of immoveable property, the insurer shall not pay the indemnity to the insured until he has given notice of his intention to do so to the mortgagee or other preferred creditor, and has not within one month from such notice received any objection to the payment, provided always that the insurer knew or ought to have known of the mortgage or other preferential rights; however, any right registered in the Land Registry is deemed to be known to the insurer. The same rule shall apply to mortgage of moveables allowed by law.
In case of moveable property, the insurer may pay the indemnity to the assured directly, unless he knew or ought to have known of the pledge or other preferential right."
The ship mortgage was registered. The Supreme Court held that the mortgagee bank could bring the claim directly in reliance upon this section of the TCCC. The court then had resort to section 33 of the MIA 1906 for assistance as to the meaning and effect of a warranty in the policy. As I have already observed the court, unsurprisingly, neither said nor implied that resort to provisions of the TCCC other than section 868 was impermissible. I found difficult to follow Mr Wutipong's thesis that section 231 had been applied only to what he termed a procedural matter. It seems to me that it was applied to a matter of substance concerning the ability of the claimant to pursue the claim. The academic writers do not appear to have considered another decision of the Supreme Court given earlier in the same year as the case just discussed. Case No. 6649/2537 was concerned with insurance of goods carried by sea, here rolls of tissue paper carried by sea from Sweden to Thailand. A point arose as to whether the claim had been brought in time. Section 882 of the TCCC provides:
"No action for payment of compensation can be entered later than two years after the date of the loss.
…"
Section 882 is in the same chapter of the TCCC as section 880. It is as I have already remarked a chapter dealing with general provisions applicable to insurance against loss. Discussing the time bar defence, the Supreme Court in this case said:
"The Plaintiff insured such goods with the Defendant according to the marine insurance policy … Such insurance was marine insurance in accordance with section 868 of the TCCC, which is governed by Maritime Law. Nevertheless, at that moment Thailand had neither Maritime Law in respect of marine insurance nor local custom on this type of contract. The issue concerning the prescription period regarding compensation from the insurance contract in this case shall be governed by Section 882, paragraph 1, which is in Book III, Title XX, Sub-title 2 headed Insurance Against Loss, since it was the most nearly applicable provision to be applied in the case as prescribed in Section 4 of the TCCC."
This was of course a clear reference to tier three in the hierarchy prescribed by section 4 of the Code. Mr Wutipong's analysis of this case was that the Supreme Court had applied section 882 because on examination of the MIA 1906 it found no provision importing a prescription period. He accepted that there is no trace of this in the report of the court's judgment. He also accepted in his evidence that if an applicable law is found in tier three, analogy, the court may not resort to tier four. He could not explain how the court had on his analysis acted in an irregular fashion in resorting to tier four before tier three. He also suggested that after this aberrant decision the court had in Case No. 7350/2537 returned to the orthodox approach mandated by precedent. However I do not consider that the later case can be regarded as impliedly overruling the earlier, as Mr Wutipong suggested. Leaving aside the fact that two judges (out of a panel of three) were common to both decisions, as I have already pointed out the court in Case No. 7350/2537 likewise had resort to a provision of the Code of general application.
- An analogy can be drawn between section 868 and another "placeholder" section of the Code, section 609, second paragraph. This provides:
"The carriage of goods by sea is governed by the Laws and Regulations relating thereto."
Until 1992 there were no provisions in Thai law specifically applicable to the carriage of goods by sea. During that period in appropriate cases the Thai courts applied other provisions of the TCCC by analogy. In Case No. 563/2532 the Supreme Court applied section 625 of the TCCC. In Case No. 2930/2537 the Supreme Court applied section 616, expressly under tier three. Mr Wutipong was at one time inclined to suggest that there was no real analogy and Mr Chamnian was cross-examined to the effect that there is some difference in substance between the reference in section 609 to "the generality of laws" governing carriage of goods by sea and the reference in section 868 to a specific law. This was an unconvincing distinction where the reference in each case was obviously to putative provisions of specific applicability. By the end of his evidence Mr Wutipong had I think accepted the force of the analogy between these two "placeholder" sections.
- A respected commentator, Professor Pantip, commented as follows on the decision of the Supreme Court in Case No. 7350/2537, where the court had resort to section 33 of the MIA 1906 for assistance with the meaning and effect of a warranty in the policy:
"… The court applies the English law in its belief that the law in question has the status of general principles of law. No English law is applied by the Thai courts as the law of the state, but there may be some dangers in that both judgments of the Supreme Court fail to explain how the English law has become a general principle of law under section 4 of the Civil and Commercial Code. The issue is under what condition would an English law be regarded as a general principle of law. It is impossible that English law has the status of general principles of law. It is a pity that the Supreme Court did not explain how the parties had asserted in the pleadings and the Court then admitted that the English law has the status of a general principle of law. It cannot be refused that an acceptance of the application by the Thai courts of the use of section 4 of the Civil and Commercial Code as a means to search for foreign laws for application in the Thai courts is a good solution to a gap in the law, but it should not be forgotten that the solution has considerable inherent dangers.
In conclusion, it is evident that the Thai courts are just like internal courts of various states, i.e. not reluctant to apply foreign laws in civil and commercial cases if Thai laws give powers to the courts to do so. Nevertheless, prudence is of course exercised in the acceptance of the application of foreign laws in the trial of cases in their courts."
- The Claimants have failed to persuade me that a Thai court would in the present context feel the need to resort to the MIA 1906 when there is readily to hand section 880 which is applicable by analogy and which provides rights of subrogation to an insurer who has paid compensation. Mr Wutipong accepted that the rights to which an insurer is subrogated by section 880 are rights against third parties and no other rights of the assured. There is also readily to hand section 227, the effect of which I must next examine, but which is plainly applicable by analogy. Mr Wutipong also accepted that there has as yet been no occasion upon which a Thai court has in this context given effect to concepts such as trust and equitable lien which find no place in the MIA 1906 but which may be used by English law to support and to give proprietary effect to the rights of underwriters which are spelled out in the MIA. Mr Chamnian's evidence to the effect that a Thai court would not recognise such concepts was not I think challenged in cross-examination and is fully in line with the approach of Professor Pantip that resort should be had to foreign law only with caution and where necessary to fill a gap in the domestic law.
- I turn then to the argument which relies upon section 227. The Claimants' suggestion is that section 227 transfers property in the wreck to the insurer when he pays for a total loss. It is said that this follows from the terms of section 227 itself, which distinguishes between subrogation to the thing and subrogation to the right. Furthermore section 877 provides that an insurer is bound to pay compensation for the actual amount of the loss. It is said by the Claimants that this provision precludes the assured from receiving the sum insured and retaining the wreck such that, if the insurer has already the sum insured, it inevitably follows that he is entitled to the wreck. Finally it is said that this approach again derives support from the academic commentaries.
- The Claimants' approach certainly finds support from Professor Sopon in his "An Explanation of the Commercial and Civil Code with regards to 'Obligations'" at pages 270-275. It is similarly supported by Professor Phraya Tepwitoon in "An Explanation of the Thai Civil and Commercial Code". Both seem to regard the process as automatic, which is consistent with section 229 of the TCCC which provides that subrogation takes place by operation of law. Professor Chaiyot however in his "An Explanation of the Commercial and Civil Code with regards to 'Insurance'" at pages 199-200 puts forward only a tentative view as follows:
"Rights over the wreck
The question as to who will be entitled to the wreck arises only in relation to a total loss claim. If the insured property is partially damaged, it is not necessary to consider the issue of the wreck, as such property can still be repaired and put into a good state.
The reason we should consider the wreck issue is because although there is a total loss of the insured property, the wreck still remains and has an ascertainable value. In theory, the assured is not entitled to both the full amount of compensation and the remaining value of the wreck. If this were the case, it would mean that the assured would profit, in that the amount of the compensation exceeds the amount of the actual loss. This conflicts with the principle of insurance which says that a contract of insurance is a contract of indemnity.
The Commercial and Civil Code ('CCC') does not refer to rights over the wreck being insured, but it is considered[2] that after the insurer pays the full amount of compensation to the assured or the beneficiary until the total loss is completely indemnified, the insurer ought to have a proprietary right over the wreck or may deduct the price of the wreck from the amount of compensation.
This issue had been considered by the Supreme Court as follows: …"
- Professor Chaiyot then refers to Supreme Court decisions Nos. 358/2499 and 596/2507 which I shall examine in a moment. Finally Professor Jitti is in a minority of academic opinion. In his commentary on Supreme Court decision No. 1913/2520 he says this:
"The subrogation to rights under section 227 does not mean subrogation to rights in the wrecked car because under section 226 only the right that a creditor has in the obligation may be subrogated. The right in the obligation is a claim, which is a personal right, not a real right."
- It is common ground that there is no Supreme Court ruling in which it has been expressly decided that an underwriter acquires ownership of wrecked insured property by operation of law on paying an indemnity for a total loss. This is to my mind unsurprising. Such a principle would go beyond that which obtains in English law. In the context of marine insurance it would entail that underwriters automatically become owners of what might be a damnosa hereditas. Mr Wutipong accepted that there is no provision of Thai law pursuant to which an insurer who pays a loss in respect of totally damaged property is obliged to take over the wrecked property and that to my mind is conclusive of the point. In Thai law subrogation takes place automatically by operation of law. It is not suggested that there is any elective principle. If in Thai law underwriters are not obliged to take over a wreck on payment of a CTL then there can be no process pursuant to which such a transfer of ownership is effected automatically.
- The Thai cases relied on in the academic material are cases Nos. 358/2499 and 596/2507. In neither case is section 227 mentioned in the report. The first case concerned motor insurance and a badly damaged car. The report is neither full nor clear but it would seem that there was a term in the policy to the effect that the insurers could elect either to repair the car or to pay compensation for its replacement. It is possible that the policy provided also that in the latter event the insurers were bound to take the wrecked vehicle. What occurred is that the insurers did repair the vehicle but it was questionable whether following repair the vehicle was roadworthy. The chassis had been broken and the repairs involved cutting and joining. Dissatisfied with the repair, the insured by his lawyer wrote to the insurers asking them to take the wreck and to pay compensation. The Supreme Court held that as the car could not be repaired to a good and normal condition the insurers must take the car and pay compensation. The source of the obligation to take the car is unexplained. It was in this specific context that Mr Wutipong agreed that there is no provision of Thai law which imposes such an obligation. Mr Wutipong twice agreed with suggestions that the decision was to be explained by the presence in the policy of a clause requiring insurers to take over the wreck, but the position is not in fact clear from the report.
- The second case concerned a rice mill. The buildings and the machinery were destroyed by fire. The mill was insured against fire by three separate insurers. The proceedings before the Supreme Court involved only one of the insurers. That insurer is reported to have argued before the Supreme Court that upon the occurrence of loss or damage the insured subject matter was required to be transferred to it. The significance of this argument was that following the fire the insured had sold the destroyed mill, realising Baht 42,000. Again this argument may well have reflected some term in the policy which is not set out in the report, because it is no-one's case that Thai law provides that insured property is to be transferred to the insurer upon the occurrence of loss and damage. Whatever rights are given by section 227 are expressly contingent upon payment of the full value of the thing or right insured. The relevant decision of the court was simply to the effect that the Defendant insurer was not, as it contended, entitled to offset the entirety of the sale proceeds but that the recovery was to be shared rateably amongst all three insurers in proportion to the values which they insured. The source of the insurers' entitlement is again not explained. Mr Chamnian thought that the case did no more than illustrate the principle that an insured is entitled to no more than an indemnity. He was unprepared to accept that had the rice mill not been sold by the insured the court would have required its transfer to underwriters.
- Three other authorities were said by the Claimants to touch on the point. In none of them was section 227 discussed and none of them is in my view of any real assistance. In cases Nos. 1374/2534 and 117/2540 motor insurers sold a wrecked vehicle, in the first case before paying the insured sum, in the latter after paying the insured sum. The reports do not indicate whether this was done by agreement or pursuant to terms in the policy. I do not think that it can be assumed that insurers were simply acting pursuant to an entitlement conferred by law, which in the first case in any event could not be an entitlement generated by payment of an indemnity. Case No. 8010/2548 is equally obscure. I would agree with Mr Milligan that it may be dangerous to read too much into the (translated) language "the Plaintiff had subrogated to the rights in the indemnities only" because this may be a reference to the inability of the hotel to return to the insurers the pick-up truck which had been stolen from its premises. By the same token however I cannot read the case as endorsing the view that property in the truck was automatically vested in the insurers upon their payment of the insured owner's claim. Mr Chamnian regarded none of the cases cited as illustrating anything other than the broad discretionary power of the Thai court to avoid an insured receiving more than a full indemnity by offsetting the value of the wreck or other benefits retained by the insured from the compensation payable by the insurer.
- On this point too I am simply unpersuaded by the Claimants, on whom lies the burden of proof, that Thai law has the effect for which they contend. The automatic vesting for which the Claimants contend would be surprising and inconvenient and there is in my judgment no support for it in the two decided cases which are prayed in aid by those academics who regarded it as part of Thai law. In my view the view of Professor Jitti is to be preferred. I would however go a little further. Mr Chamnian said that the Thai word translated as "subrogated" in section 227 carries with it the connotation that it is rights to which the insurers are subrogated, and he contrasted it with the Thai word used in section 226 which has been translated as "real subrogation". This is a point which it is difficult to evaluate if, as I do, one lacks the ability even to recognise the characters of which the Thai words are made up. Mr Chamnian plainly thought that the English lawyers were being misled by the use of the expression "thing or right" in section 227 into thinking that the process of subrogation here described includes a transfer of ownership of an insured object. Quite apart from the fact that I regard it as unlikely that Thai law has embraced an inflexible automatic rule which could be seriously disadvantageous to insurers, I have come to the conclusion that I can have confidence in Mr Chamnian's views as being well-informed and properly thought through. Mr Chamnian has twenty-eight years relevant experience practising as a commercial lawyer and has been with Messrs Deacons in Thailand since 1988, becoming a partner in 1996. He gave his evidence in a careful and thoughtful manner. Mr Wutipong did not have such directly relevant experience, having initially pursued a career in the judiciary where his work was at first less specialised and later more slanted, as it seems to me, towards intellectual property disputes. Although Mr Wutipong has subsequently been employed by various companies as a legal advisor and is currently Executive Vice President, Legal Affairs Division, of a Thai bank he has never I think been in private practice. There were some unsatisfactory features of the manner in which his evidence was compiled and given. This may not have been entirely his fault, but the degree of editorial input into his witness statement was such, or apparently such, that the final report discussed concepts which Mr Wutipong did not actually understand. Moreover it became clear that Mr Wutipong's experience of marine insurance disputes was not extensive although he had no doubt attempted to keep abreast of the subject in a general way. Mr Wutipong introduced into his evidence at a late stage a substantial document which he had not himself prepared. Whilst that is not of itself necessarily objectionable, Mr Wutipong had taken insufficient care or perhaps had had insufficient opportunity to study the document to ensure that he was familiar with and understood its contents. The upshot is that Mr Wutipong did not give a good impression. On the contrary I derived the impression that, whilst no doubt doing his best, he was giving evidence about a field of law in which he had insufficient practical experience to enable him to give informed views. In a matter such as the proper understanding of section 227, which is in turn dependent upon an appreciation of the use of Thai legal terminology, I unhesitatingly prefer the evidence of Mr Chamnian .
Conclusion on proprietary interests
- It follows that I have concluded that the insurers acquired no proprietary interest in the vessel prior to its sale by the First Defendant to Fourth Defendant. If this conclusion is correct there were no proprietary interests of which the Fourth Defendant could have had notice. It is therefore irrelevant and unnecessary to consider whether the Fourth Defendant was a purchaser for value which is in any event a pure question of law.
- For completeness I should record that:
i) It is common ground that, were Dutch law to be relevant, in the circumstances no legal ownership or proprietary interest short of legal ownership would have passed to the insurers prior to the sale of the vessel on 9 January 2009; and
ii) It is also common ground that nemo dat quod non habet is a principle of English, Thai and Nigerian law.
- The remaining issue for decision is therefore whether the court has jurisdiction under sections 423-425 of the Insolvency Act 1986 to set aside the sale by the First Defendant to the Fourth Defendant and, if so, whether it should exercise its discretion so to do. At this stage I use the expression "set aside" the transaction as a broad paraphrase of the powers conferred on the court by section 423(2) of the Act. Before addressing these points I must first sketch in the factual context in which the underwriters seek this relief.
Background to the sale of the vessel
- As I have already set out the underwriters were anxious to progress and if possible resolve the question of the realisation of the residual value in the vessel before agreement of and payment for a CTL. Mr Bus confirmed in his evidence that Boskalis were determined not to enter into discussions on this issue before the CTL was agreed and paid. Mr Bus was well aware that there was going to be considerable room for argument with the underwriters about the value of the wreck.
- I should say a word about Mr Bus, since he is central to the narrative which follows. Mr Bus is obviously a highly intelligent man, completely on top of his job and unswerving and resolute in his defence of the interests of his employers. He gave his evidence with great charm, often employing a self-deprecatory technique, suggesting that questions addressing underlying legal issues were a little too complex or technical for him to comprehend. I quickly realised that any answer that admitted of the possibility of something having been present to his mind or to the mind of his colleagues at Boskalis during these events should be interpreted as confirmation that indeed it had been. Mr Bus was well-informed in insurance matters as his job as head of the insurance department for the Boskalis group since 2002 would both indicate and require. He obtained that responsible post at the age of 31 or 32 after working for eight years as an in-house corporate lawyer in the oil and offshore engineering industry in Holland, during which time his duties involved advising in the field of insurance. He has a law degree from the University of Amsterdam. It did not emerge whether he has any legal professional qualification but he admitted to being "a lawyer by training". I am satisfied that Mr Bus at all times had a good grasp of the legal issues and principles in play as the struggle between Boskalis and underwriters developed.
- Indeed on the central issue in the case Mr Bus accepted at the outset of his cross-examination that he had at all material times understood how the relevant principles of English marine insurance law worked. He had handled two total losses for Boskalis before the Fairway. In each case underwriters had paid Boskalis the difference between the insured value and the agreed value of the wreck. Mr Bus was determined that on this occasion Boskalis should first be paid in full for the CTL, no doubt because he recognised that the scope for argument as to the residual value of the wreck could otherwise well result in long delay in payment of the net value of the CTL. However Mr Bus clearly understood, and to be fair to him unequivocally accepted that he understood, that on payment for a CTL the underwriters could "choose to take possession of the vessel". One of the answers given by Mr Bus in this connection spoke of his understanding that there was an option for underwriters to take possession "upon agreement". For the avoidance of any possible doubt I find that Mr Bus knew and understood that at the end of the day the entitlement of underwriters is not dependent upon the agreement of the assured. His answer no doubt reflected that in the paradigm case realisation of value of the wreck is dealt with by agreement by insured and underwriters. I am however wholly satisfied that Mr Bus in fact understood that underwriters had an unfettered and unilateral choice in the matter and in the light of his earlier answer I am not sure that he intended by his later answer to which I have just referred to suggest otherwise. It was because of his appreciation of the position that, later in the story, he felt obliged to act quickly before all subscribing underwriters had exercised their election. Whatever uncertainty there may have been as to the efficacy of an election by 85% of the market to take over the vessel would, as he appreciated, be resolved by election of the remainder.
- In early April 2008 Boskalis allowed access to the vessel to both the Primary Underwriters' valuation surveyor Marlboro and to the Claimants' valuation surveyor Mr Webster of Venmar. If Marlboro reported to the leader on the primary layer Fortis, also the 14th Claimant herein, their valuation has not been shared with Boskalis or their report disclosed in these proceedings. Mr Webster inspected the vessel at Sattahip on 10 and 11 April 2008, but his valuation certificate was not issued until 9 June.
- Unbeknown to underwriters Boskalis had in fact in January 2008 sought a valuation from Dutch brokers Boogaard Sliedrecht BV. Mr van Leeuwen, the principal broker in that firm, inspected the vessel on 6 January 2008. On 15 January he issued to Boskalis his written valuation report, which was in the range of €23 million to €27 million. Boskalis did not reveal this valuation to underwriters until 25 August 2008.
- By mid May 2008 underwriters had heard provisionally from Mr Webster and they told the brokers Marsh by e-mail of 15 May that the figures he had mentioned were, as would be no surprise to Marsh, significant. At a meeting on 23 May 2008 to discuss the ongoing salvage claim, outstanding liabilities enforceable against the vessel and residual value, Mr Street of Marsh made the point that he still did not know what the valuation figure was. Mr Kersey in response made the point that the only way to achieve the figure indicated in the valuation would be to put the vessel out to global tender.
- On 27 May 2008 the First Defendant in the shape of Mr Bus e-mailed Mr Kersey a long letter which enclosed a Claim Form issued in the Commercial Court by the First, Second and Third Defendants herein against the underwriters subscribing to the excess layer with the exception of Fortis. The Claim Form had been issued on 1 February 2008. Amongst other things it claimed from underwriters compound interest, simple interest and damages consequent upon what was said to be underwriters' delay in making payment for the CTL. I was told that this action is due for trial in October this year. The writ having been issued on 1 February 2008, and being initially valid for service for four months, underwriters were invited to confirm by the next day, 28 May, that Stephenson Harwood were instructed to accept service on their behalf. Neither this communication nor the summary manner in which underwriters were expected to respond to it did anything to promote the likelihood of agreement between the parties as to the manner in which the residual value of the vessel should be ascertained and/or realised.
- On 28 May 2008 Mr Kersey responded to Mr Street, who had it seems been the conduit through whom Boskalis' communication of 27 May had been channelled. After dealing with what he described as the "unnecessary and unwelcome diversion" Mr Kersey told Mr Street that Mr Webster had now finalised his valuation in the sum of €75 million, as is where is. He advised that a certificate would follow shortly. He concluded:
"In the circumstances and unless Boskalis are willing to make an offer for the vessel in this amount, underwriters suggest the appropriate way forward is to invite tenders from third parties."
- On 6 June 2008 in the absence of Mr Kersey Mr Hill e-mailed Mr Street as follows:
"Underwriters are disappointed not to have received any substantive response to their message. They are extremely keen to move the issue of the realisation of the vessel's residual value forward without further delay. As previously advised, pursuant to their rights under the policy and/or at law and pending the receipt of certain vital information, underwriters continue to reserve their right to take possession and ownership of the vessel. Before a final decision is taken, however, underwriters urgently require information regarding the current liabilities against the vessel…
Meantime, a copy of the certificate of Mr Geoff Webster confirming his estimate of the residual value of the vessel at €75 million will be forwarded early next week once he returns to his office. Without prejudice to underwriters' right to take possession and ownership of the vessel should they elect to do so, they are obviously willing to consider Boskalis' proposals should it wish to purchase the vessel. Meanwhile, underwriters should also be grateful for Boskalis' confirmation that it will agree that access to the vessel will be granted to identify (sic) third parties for the purpose of inviting tenders for purchase."
- On 9 June 2008 Mr Kersey received the Venmar valuation certificate dated that day. He immediately sent it to Mr Street. I shall have to revert to the Venmar valuation in due course. However the operative parts read as follows:
"VALUATION CERTIFICATE FOR THE JUMBO HOPPER DREDGE THE W.D. FAIRWAY. (6/09/2008)
1.0 INSTRUCTION
At the request of Alex Davis Esq. of the Law Firm of Stephenson Harwood, One St. Paul's Churchyard, London, the undersigned was requested to survey the Jumbo Hopper Dredge the W.D. Fairway, in order to ascertain her present residual value, on an as is where is basis, as she presently lies alongside the Commercial Port, Royal Navy Yard in Satahip, Thailand. I have also been asked to research potential buyers on the worldwide market, for this vessel.
2.0 SURVEY OF W.D. FAIRWAY IN THE COMMERCIAL PORT, ROYAL THAI NAVY SATAHIP, THAILAND, APRIL 10TH 2008.
The undersigned, Geoff Webster, travelled to Bangkok on April 8th 2008 and surveyed the vessel, on the 10th of April 2008. Mr Dirk Smit a mate from Bos Kalis's (sic) hopper dredge department, and a crew member of the vessel at the time of the collision, was acting as a daily watchman aboard the vessel. The hopper dredge was lying alongside a pier, just aft of a frigate from the Royal Thai Navy.
3.0 INITIAL EXAMINATION AND FINDINGS:
The vessel was well found, and in a much better condition than expected, it was properly moored and floating on an even keel. There was a shore power connection on board for lighting. It was not known what other safety measures were in hand to prevent the vessel from taking on water, or fighting a fire. It was reported that the vessel is tight and has not taken on any water for at least the past five weeks.
The condition of the vessel was much better than expected. The vessel's hull, propulsion system, accommodation, dredge equipment and spares are in a good condition, however the complete electrical system will have to be replaced. In the opinion of the undersigned, it will be economically viable to recommission this Jumbo Hopper dredge with the appropriate technical support.
…
5.0 CONCLUSIONS
The world market for major dredging works is at present at the all time high in the history of dredging, and in the large Dutch and Belgium companies including Van Oord, Bos Kalis, Jan De Nul, and DEME, have billions in Euros of dredging projects on order. The Arab Nations are building more and more islands; there is a contract out for a new additional causeway between Saudi Arabia to Bahrein and a new causeway between Qatar to Bahrein. The Dutch have plans to enlarge the Nieuw Waterway (Maasvlaakte) in Rotterdam, and build an offshore island. We understand the future world dredging market, within the next few years will need to dredge over one billion cubic metres of sand, for all the projects worldwide, with a large portion of the work to be performed with Jumbo Hopper dredgers, which have the ability to haul sand over large distances.
This means that the W.D. Fairway and other such existing hoppers will be in high demand for at least the next ten years, making the W.D. Fairway a very desirable and valuable piece of dredge equipment, even in her present condition. It is the opinion of the undersigned that in order to obtain the maximum value for this Hopper Dredge, it is recommended that the vessel be put out for a world tender, by an internationally known ship/dredge broker, and Appendix No 1 is a list of potential buyers for the dredge.
Based upon the above, we therefore Value the W.D. Fairway in her present condition, as of June 2008, on an as is where is residual basis at:
75 Million Euros (€75,000,000)"
Section 4 contained a brief CV of Mr Webster and of Mr Arie De Kluiver, both of whom signed the Certificate. This background material was supplemented in an appendix. Appendix No. 1 to the document was a "List of Potential Dredging Companies that may be interested in purchasing the vessel". That included companies in Bahrain, Israel, Qatar, Saudi Arabia, China, India, Japan, South Korea, Malaysia, Taiwan, Belgium, France, Germany, The Netherlands and the USA. Twenty-seven companies were listed, including Boskalis.
- The Venmar valuation certificate does not indicate the precise manner in which the figure of €75 million had been reached. Not unnaturally however the Claimants and in particular Mr Kersey relied upon it as being "a reasonable valuation based on a good process to come to the value of the vessel". I do not think that Mr Kersey thought that underwriters would necessarily realise this figure, but he had no reason to believe that the valuation had been reached by anything other than a process in which he could have confidence. If not set in stone, it was at the least a starting point for negotiations with Boskalis. Whilst the headline figure will obviously have had the principal impact on Boskalis, to my mind it should not be overlooked that an integral part of the valuation or valuation certificate lies in its expression of opinion that in order to obtain the maximum value for the vessel it is necessary that the vessel be put out for a world tender. That of course is a point which Mr Kersey had made to Mr Street before he had received the final written report. Boskalis were well aware that underwriters' thoughts were moving in this direction, a point reiterated by Mr Kersey on 11 June when he e-mailed Mr Street:
"As you will see from Venmar's report, Mr Webster recommends the best way forward to realise the highest value for the vessel is to put her out to a global tender. Underwriters have already received approaches from interested third parties and look forward to Boskalis' confirmation that immediate access will be provided to these parties as part of the ongoing investigation into realising the residual value."
- On 10 June 2008 Boskalis advised underwriters that the current liabilities against the vessel were in the region of €6 million, excluding the salvage/wreck removal claim and future costs.
- In the absence of any substantive response from Boskalis on 17 June Mr Kersey e-mailed Mr Street:
"Underwriters refer to their messages of 9th and 11th June in respect of which, you will appreciate, they have received no substantive response from Boskalis. While understanding that Oscar Bus was not available for part of last week, there is now no reason for Boskalis not to provide an immediate response to the issues raised.
Underwriters have repeatedly stressed the importance of a timely determination of the vessel's residual value. While the Certificate produced by Venmar Inc. provides a good benchmark for the likely value of the vessel, obviously the true value will be determined by what a purchaser is willing to pay in the open market. Pursuant to their rights under the policy, underwriters regret that they are now obliged to demand that Boskalis confirm that they will allow third party surveyors access to the vessel in order to begin the process of inviting tenders. Should Boskalis not provide confirmation by close of business Wednesday, underwriters will have no option but to take the appropriate steps to protect their interests under the policy."
- A meeting was agreed in an attempt to move matters forward. It should be borne in mind that quite apart from the question of residual value the parties were still dealing with the salvage claim, which was being handled on their joint behalf by Messrs Holman, Fenwick & Willan and by Dutch lawyers similarly jointly instructed. The parties were also concerned with recovery proceedings in the US against the owners of the colliding vessel MSC Joanna. Thus at a meeting which took place on 15 July 2008 residual value was the third main item to be discussed. The meeting took place in London. Amongst 15 attendees were Mr Kersey and Mr Hill for underwriters, together with Mr Davis and Mrs Champkins of their solicitors, Messrs Stephenson Harwood, respectively a partner and associate. For Boskalis Mr Bus and Mr Haak attended, the latter being senior legal counsel within the legal department of the parent Royal Boskalis Westminster BV. They were accompanied by Mr Street.
- Mrs Champkins made a full note of the meeting. A non-contentious part of her note records the following discussion:
"TK then referred to the fact that Venmar had produced a valuation of the vessel, which had been produced after a great amount of detailed calculation and working. Nonetheless the best test of the vessel's worth is to find out what someone is willing to pay for it. TK asked OB to confirm what Boskalis' intentions in relation to the vessel were.
OB confirmed that they had considered the options including whether to order a new build or buy back the WD FAIRWAY and repair it. They were looking at buying back the wreck in principle, but this would, obviously, only be on the basis of a fair value being paid for it. Boskalis appreciate that the value to be paid for the FAIRWAY would be more than scrap value, however, they did not agreed that €75 million was a fair value. He invited Underwriters to approach Boskalis to discuss the question of value.
TK referred to the fact that they had received a great deal of interest from a number of third parties in the vessel and there was certainty that the vessel would be sold for more than scrap value, given the competition.
GS questions whether these approaches had been made verbally or in writing. TK confirmed that yes they were all verbal approaches at the moment but nothing has been requested in writing either. AD said that they had seen expressions of interest in writing but no figures in relation to the vessel's value as yet.
TK expressed Underwriters' view that a global tender was the best way forward to obtain the fair market value of the vessel. He asked whether Boskalis was still making their mind up as to whether to buy the WD FAIRWAY back? OB indicated that whether they wanted to buy it back depended hugely on the price. If the price was going to be €75 million, there was no point in negotiating, however, if Underwriters are prepared to come to the table, Boskalis may be interested.
AD confirmed that it was apparent that the tender was the best way forward. There are various steps to take and it was intended to sub-contract the tender process to a broker. That broker will obtain the tenders from various parties and vet each tender for various factors relating to the seriousness of the tender and the financially stability (sic) of the third party. In order to allow this process to take place, it was necessary for access to the vessel to be allowed. AD questions whether Boskalis are happy to allow third parties access to the vessel?
OB confirmed that they would be happy for tender parties to go onboard the vessel, but he would need to see Underwriters' exact proposal to run it by his management."
- I am satisfied that at this meeting Mr Bus neither agreed to allow prospective tender parties to go onboard the vessel to inspect her nor agreed that the best way forward to allow underwriters to determine and realise the vessel's residual value was by way of a global tender process. On the first point Mr Bus confirmed a willingness to co-operate but stated that he would need to see underwriters' exact proposals in this regard and seek his management's approval. On the second point I am satisfied that underwriters, or perhaps more particularly Mr Davis, wrongly inferred the agreement of Mr Bus from his silence or from his failure to comment on the proposal. It was not the style of Mr Bus to be confrontational. I doubt if by this stage Boskalis' outright refusal to countenance a tender process had crystallised, and it would not have been the style of Mr Bus simply to reject it at this meeting. However Mr Bus would in any event have been extremely wary about the proposal and he would not have had authority to agree to it. The misunderstanding was soon resolved – by e-mail of 14 August 2008 Mr Bus denied either having agreed to the tender process or that it was the best way forward.
- At the meeting Boskalis were invited, if they were interested in buying the vessel, to provide an offer at the outset to avoid the tender process if necessary. Mr Bus indicated that he would speak to his Board and see whether this was possible. It was also suggested that since Boskalis had indicated that €75 million was not acceptable to them and since they had seen the Valuation Certificate in that amount, it would be worth their while putting forward reasons why they did not consider €75 million to be an accurate value. Mrs Champkins records that the discussion developed as follows:
"AD then asked whether it was possible to get an agreement on what the scrap value of the vessel was. OB said that this was not possible, perhaps in a meeting about that particular issue it would be possible. Boskalis will need Underwriters' proposal to consider. AD said that they must have some idea as to scrap value given OB's earlier comments about Boskalis having accepted that they would have to pay more than scrap value for the vessel. AD staged that a price just above scrap value is obviously of no interest to Underwriters. OB has indicated that €75 million is unacceptable. Can OB give some rough ballpark figure to give Underwriters an idea of where they are coming from? OB said that as he had said earlier, Boskalis appreciate that the value of the vessel for which it will sell will be above scrap value and OB was of the view that this shows a co-operative approach. It is now for Underwriters to come back to Boskalis on this. AD confirmed that Underwriters will revert on the proposal as soon as possible."
- At the end of this discussion Mr Davis summed up how the matter would proceed if it was necessary to resort to the tender process. He emphasised that if the matter did go to tender, the process would have to be conducted in good faith. He said that Boskalis would be able to participate in the tender process but that they would not be given any kind of "trump card" at the end of the procedure such as the opportunity to try to match the best price.
- After the meeting this point was reiterated in a letter written to Mr Bus on 25 July by Mr Davis. Mr Davis wrote:
"You have asked us to provide details of the tender process for your information. We would propose to appoint a major market broker such as Messrs Clarksons to market the vessel to be sold "as is where is". Whilst not dedicated specialists in the dredging market, they certainly have the reach and market profile to be able to liaise with the main players.
Whichever broker is selected will required vessel particulars in order to commence the tender process. This will include copies of all technical plans, certificates, class documentation and details necessary for a prospective purchaser to formulate a decision. Once this documentation has been accumulated, the broker will invite tenders by way of an advertisement in the shipping press. Those who have expressed interest will be provided with an information pack and, in addition, be granted access to inspect the vessel. Bids will be invited within a specified period whereupon the process closes.
At the conclusion of the tender period, those bids obtained will be vetted by the broker and the highest bid accepted. The vessel will then be transferred to the successful party, probably on the Norwegian Sale Form, by way of a Bill of Sale executed with Boskalis' sanction in the purchaser's favour. Any expenses in relation to the tender process will be deductible from the total which will accrue to Underwriters' benefit alone.
Obviously, the process must be undertaken in good faith. Whilst it will, of course, be open for Boskalis to participate in the tender and make its own bid, should it not make the highest offer, it will not be entitled to reopen the process with an increased bid in order to gain possession. Should Boskalis wish to purchase the vessel from Underwriters, we would invite you to make an offer at an early juncture to allow Underwriters to give it due consideration.
Prior to the formal tender process, Underwriters propose to allow a number of third parties who have expressed interest in the vessel access to her in order to encourage informal bids. We will write to you under separate cover with the names of the parties concerned and the dates on which they propose to visit the vessel."
- There being no response from Boskalis, on 15 August Mr Kersey advised Boskalis, through Mr Street, that underwriters were now in discussion with Clarksons to undertake a global tender. He repeated, as was the case, that significant interest had been shown by third parties. Boskalis were asked for their prompt proposals, failing which underwriters would finalise the appointment of Clarksons, thereby committing themselves both to payment of commission and to taking the highest price offered for the vessel "without preference to Boskalis". It seems that this message did not at first reach Boskalis. At all events chasers elicited a response on 25 August.
- On 25 August 2008 Mr Bus indicated to underwriters that Boskalis would be prepared to consider buying back the wreck for €25 million. He provided underwriters with the Boogaard valuation obtained in January 2008 valuing the vessel in the sum of €23-€27million to which I have referred above. This approach was rejected by Mr Kersey on the following day. Mr Kersey told Boskalis that both Venmar and the sale and purchase brokers currently involved in the process, viz, Clarksons, considered the Boogaard valuation to be far too low to merit consideration. Mr Kersey added that underwriters could not see that the valuation could be seen to be realistic given the salvage payment recently made. That it will be recalled was US$19.5 million. At the meeting on 15 July it had been stated by those handling the salvage claim that if Boskalis and underwriters were to improve upon the deal then on the table, which was as I understand it in substance thereafter accepted, the salved value would need to be brought lower than US$30-US$40 million. Finally Mr Kersey made the point that operators were not currently selling dredgers and that third parties had shown considerable interest in purchasing the hull. Mr Kersey expressed the view that those parties were aware that, because of the then current market conditions, the vessel would be marketed at more than scrap plus on deck equipment, and expressed his view that that was, in essence, what the Boogaard valuation represented. Although Mr Kersey referred to Venmar's view as to the Boogaard valuation, Mr Webster was not in fact consulted on that score between 25 and 26 August 2008. Mr Webster said in evidence however that he had heard "word on the street" in April before he visited the vessel that Boskalis was either going to pay or to offer €25 million. A week or two after returning from Sattahip he had advised Mr Davis that in his view €25 million was far too low.
- Further inconclusive exchanges followed. On 5 September Mr Bus advised Mr Kersey that Boskalis was "by no means prepared to participate in the tender process". Mr Bus said that in an attempt to find a constructive way forward and to break the apparent impasse, Boskalis was prepared to enter into negotiations with underwriters to acquire the wreck but that these negotiations must be conducted on an exclusive basis and not in parallel with a tender process. Mr Bus said that in order to facilitate the negotiations and to give both parties further guidance on the true value of the wreck, Boskalis would be willing to involve an independent third party expert provided that they had the appropriate credentials.
- Underwriters were not inclined to abandon the tender process, discussions concerning which with Clarksons were quite well advanced. Discussions between underwriters and Boskalis continued, particularly with regard to underwriters' request that Clarksons and in due course potential bidders be given access to the vessel. However on 29 August 2008 Boskalis had for the first time raised an objection in this regard that inspection of the vessel might allow competitors to secure valuable confidential information regarding the Fairway even if they had no intention to make an offer. I do not believe that this objection was put forward in good faith. The computers had been removed from the vessel and most if not all of the systems, machinery and equipment was in fairly standard form. Mr Webster regarded it as not credible that any competitor would learn anything of value from a superficial inspection of a dead ship, and I am not sure that his evidence was seriously controverted. Mr van Leeuwen was sceptical as to whether even a purchaser would in due course discover any confidential information, although I am prepared to accept that through the process of repair and subsequent operation a new owner might gain access to systems some aspects of which might be proprietary in nature. However at the stage of request for access to a dead ship for mere inspection, this was simply obstructive. In this latter regard Boskalis accept that "there was some dragging of heels on its part". They deliberately put every obstacle in the way of an inspection by Clarksons taking place promptly, one example being resort to wholly unnecessary requests for certified, even coloured, copies of passports.
- By 30 September 2008 an impasse had been reached. In response to underwriters' complaint that Boskalis did not seem to appreciate that it was not in a position to dictate what did or did not happen Boskalis took their stance on the position that ownership of the wreck remained vested in Boskalis as did all rights of access. In this they were of course quite correct. At about this time therefore underwriters formed the view that an ongoing dialogue with Boskalis was unlikely to achieve a positive result and therefore resolved to take formal steps to elect to take possession of the vessel. Given the unusual if not unprecedented nature of this step and the potential liabilities facing all underwriters on the Primary and Excess layers, careful consideration had to be given to the means by which ownership would be taken.
- I should record at this stage that I can understand the reluctance of Boskalis to engage in a sealed bid process, at any rate if that involved, as strictly it might, depending on the terms on which bids were invited, their having no opportunity to match or to better the highest offer received. Boskalis were concerned that competitors might put forward inflated offers in order to damage them, although whether they would have put forward inflated tenders which were capable of clean acceptance must I think be open to question. Nonetheless I can sympathise with Boskalis' reluctance to bid against themselves. Mr Davis recognised this dilemma when writing to Mr Street on 18 September 2008 when he said:
"Underwriters understand Boskalis' suggestion that competitors may attempt to inflate quotes in the tender process in order to damage Boskalis. That said, Boskalis does not have to participate in the tender process and if, as it suggests, it will lead to false quotes, then Boskalis would be best off waiting until the process fails to produce a realistic figure to make an offer themselves."
I should mention that at the 15 July meeting there had been discussion of whether the interests of Boskalis might be protected by a reserve price. It may be that Mr Davis had this in mind when writing. However that may be, this suggestion was equally unpalatable to Boskalis, since it involved the risk that a competitor might in fact bid at a realistic figure and secure the vessel, without Boskalis having the opportunity to improve upon the price offered.
- Underwriters for their part I have no doubt perceived that a sealed bid process might enure to their advantage since it might compel Boskalis, if they did not wish the vessel to fall into the hands of a competitor, to participate in the process and to put in a bid which they calculated as likely to be greater than any of their competitors would be willing to pay.
- I have my doubts whether, had they in fact proceeded to a sale, Messrs Clarksons would have advocated the use of a process which precluded the use of traditional negotiating techniques. I have my doubts whether Clarksons had appreciated or thought through the implications of the sealed bid process which Mr Davis had unequivocally told Boskalis would be employed, if that is Clarksons were privy to what Mr Davis had said. Mr Middleton, Managing Director of Clarksons Offshore and Mr Fairclough, a Clarksons Sale and Purchase Broker, both gave evidence. Mr Middleton envisaged a global tender as retaining maximum flexibility, however it was described, with the need "to look at it as you go along". He envisaged that it would always be open to Clarksons to revert to the underbidder to see if he was prepared to pay more. Mr Fairclough, prospectively the "key broker", was cross examined about an e-mail which he sent to Mr Davis and Mr Kersey on 5 August 2008 outlining his proposals. This included:
"To summarise our discussions in the meeting we think that we should handle the marketing in these broad terms:
- We send out a broad prospectus to the market on the unit and its availability (Boskalis must be included in this distribution). This prospectus would be sent to all major players in the Dredging industry as well as any other parties that we deem likely to be interested.
- A window for inspections is declared and either your consultant is available on site at that time or we can assist you with other parties locally available.
- We maintain telephone contact with all parties to maintain the momentum among interested parties. At this time we can also sift out the non-serious Buyers who may be showing interest.
- A closing date for offers is indicated.
- The highest bidder with the cleanest offer (i.e., no subjects) becomes the Buyer; whether this be Boskalis or not."
When asked in evidence about how this would work Mr Fairclough said:
"I think the key point to maintain in here is the third bullet point, which is that we maintain telephone contact and we are able to discuss how the process is developing rather than totally sealed, totally private and a surprise when the numbers come in."
It follows that I have grave doubts whether Clarksons would have embarked upon anything which could properly be described as a sealed bid process although Mr Fairclough initially described his five bullet point procedure in that way. The reality is that, as Mr Fairclough ultimately accepted, Mr Fairclough regarded the process which he had described in his five bullet points as involving that the seller through his broker reserves the right to do whatever seems in the seller's best interests at any point in the process.
- However that may be, I can understand the concern of Boskalis that they might be disadvantaged by the process which they were led to believe underwriters proposed to adopt. Market value is however what someone is actually prepared to pay on a given day. I can also well understand that it was underwriters' perception that the market value of this specialised vessel, unique at least in terms of its size, would be whatever Boskalis was prepared to pay to keep it out of the hands of their competitors, and that this value might most reliably be achieved by inviting Boskalis to participate in a sealed bid process properly so-called. I am not surprised therefore that the parties found themselves in an impasse. However by exercising their statutory right to take over the vessel, an incident of a marine insurance policy governed as were these by English law, underwriters were in a position to choose the method of sale. That is the nature of the contractual bargain, as Mr Davis pointed out in his letter of 18 September 2008 to Mr Street to which I referred at paragraph 77 above. It is that entitlement of underwriters that Boskalis thereafter set out to frustrate.
Underwriters elect to take over the vessel
- As the agreed facts relate, in December 2008 Boskalis received from Messrs Stephenson Harwood letters written on behalf of 77.5% of the Primary Layer underwriters and 85% of the Excess Layer underwriters expressly electing to take over the interest of the assured in the vessel. Stephenson Harwood also published a notice in Lloyd's List newspaper advising "the shipping community and all those concerned that underwriters [had] exercised their right pursuant to section 79(1) of the Marine Insurance Act 1906 to take ownership and possession of the vessel". The response of Boskalis was to indicate that they did not regard the letters as valid elections. They were, they said, ineffective. They contended that all primary and excess underwriters must unconditionally agree to take over the vessel and that if "only some underwriters try to do so, there can be no takeover". I have already explained, at paragraphs 58-63 of the Phase 1 judgment, why I believe that that approach overlooks that each underwriter has a separate contractual entitlement.
- On 29 December 2008 Boskalis were served, both in England and in Holland, with these proceedings. They were given notice of an application which the Claimants intended to make for an injunction restraining the first three defendant Boskalis companies from selling, transferring or otherwise disposing of the vessel. They were also given notice that the Claimants were inviting the court to direct an expedited trial so that, if they were ultimately successful, the tender process could be got underway as soon as possible. The affidavit in support of the application, a copy of which was served on Boskalis, revealed that another major Dutch dredging company, Van Oord, had on 5 November 2008 given a non-binding indication stating that they were prepared to purchase the vessel for €62 million, albeit Van Oord had not at that stage inspected the vessel. Although the affidavit did not reveal this, Van Oord had been supplied with a "Condition Survey" Report which had in fact been compiled by Messrs Stephenson Harwood, presumably in reliance upon Mr Webster's findings. The Report had appended to it a large number of photographs taken by Mr Webster during his inspection at Sattahip.
The sale of the vessel
- The response of Boskalis was swift. As the agreed facts reveal on 9 January 2009 the First Defendant Westminster International, the registered owners of the vessel, first caused her registration on the Dutch Register of Shipping to be deleted and secondly sold the vessel to the Fourth Defendant Nigerian Westminster. It is accepted that both Westminster International and Nigerian Westminster are in the majority ownership of companies which are ultimately 100% owned by the Second Defendant Royal Boskalis Westminster. Royal Boskalis Westminster ultimately controls both Westminster International and Nigerian Westminster. On the same day Messrs Nabarro, who already acted for the first three Defendants in the action brought by them to recover interest and/or damages consequent upon delayed payment of the CTL, wrote to Messrs Stephenson Harwood in the following terms:
"WD FAIRWAY: Claim No.: 2008 Folio 1277
We refer to your letters dated 29 and 30 December 2008 enclosing the claim form and particulars of claim and the Claimant's interim application issued on 26 December 2008 for injunctive relief.
Our clients have now had the opportunity to review both the interim application and substantive proceedings and have taken counsel's advice as to whether your clients have validly exercised their rights under sections 63 or 79(1) of the Marine Insurance Act 1906 (the "Act").
Our client's position is that there has not been a valid election to take over the vessel because not all of the underwriters have elected to exercise their section 63 or section 79(1) rights. Specifically, Mr Davis in his affidavit confirms that, to date, an election has still not been made by Munis or Generali (Munis alone subscribed to 15% of the primary and excess cover).
In the absence of a valid election under the above mentioned provisions of the Act Boskalis has been advised that neither the legal nor the beneficial ownership of the vessel has transferred to any of the underwriters. With this in mind, we are instructed that our clients elected to transfer the vessel to a Nigerian company. The transfer was effected today and the vessel's details at the Dutch shipping registry have been struck out to reflect the transfer.
If underwriters wish to take over ownership of the vessel they should and could have done so by making a valid election under section 63 or 79(1) of the Act and thereby assume responsibility for settling the associated existing and future liabilities to Boskalis, which are currently quantified in the approximate sum of €6m. Under section 79(1) the election to take over the vessel could have been exercised from April 2008 following belated payment of the CTL but no steps appears to have been taken to move towards this position until the end of last year (even then, your clients' purported election was ineffectual for the reasons already given).
Our clients accept that underwriters are entitled to receive in their respecting proportions the proceeds of sale or the open market value of the WD Fairway in its present condition. Our clients are simply trying to protect their legitimate commercial interests.
In order to try and bring this matter to a satisfactory conclusion for all parties concerned, in order to establish the market value for the vessel, we propose the following process:
1. Within 14 days of the date of this letter, each party appoints its own expert valuer to assess the value of the vessel.
2. Those valuers enter into appropriate confidentiality agreements in respect of both the information to which they will have access, and the nature of their engagement.
3. Within 28 days of their appointment, but subject to their availability, both valuers are granted access to the vessel in order to make an inspection with a view to determining the open market value. We are instructed that the transferee will allow access to the vessel for this purpose.
4. Within 42 days of their appointment, the valuers should prepare and simultaneously exchange reports setting out their assessment as to the open market value.
5. Within 49 days of their appointment, the valuers should meet at a mutually convenient date and location to try and agree or narrow any gap between their assessments of the open market value.
6. In the event that the valuers are unable to agree an open market value for the vessel, and the parties are not able to agree a value for the vessel based on the valuers' conclusions, the matter should be determined by a sole arbitrator to be appointed by agreement or in default of agreement in accordance with the rules of the London Court of International Arbitration under which the arbitration should be conducted in accordance with English law.
In the circumstances, the Claimants' application for an injunction to prevent transfer of the vessel or creation of an interest over it is redundant and would, in any event, have failed given that your clients' legal rights have not been infringed and would not have been infringed. As our clients are no longer the legal owners of the vessel, this will also substantially affect the substantive proceedings. We do not see that your clients can have any cause for complaint in circumstances where our clients are content that the underwriters should receive the benefit of the vessel's market value, assuming of course they accept the proposal set out above.
In the circumstances, please confirm that the Claimants' interim application will be withdrawn forthwith. If your clients are willing to accept the terms of the proposal set out above, we suggest agreeing a stay of the substantive proceedings pending the outcome of the procedure to determine the open market value."
- It is to be noted that this letter did not reveal that the deletion from the Dutch Registry preceded the sale, did not reveal that the sale was to an affiliated company and did not reveal that the consideration was €1,000. It is accepted that the reference to "our clients" was properly to be understood as a reference to the first three Defendants and in particular therefore the Second Defendant, the parent company which it is accepted has assets in excess of €2 billion. This is of some importance. By this transaction the First Defendant divested itself of its only asset, and would thereafter have been quite unable to account to underwriters for the vessel's residual value, even on the most pessimistic view as to the extent of that value. The position of the Third Defendant can incidentally be ignored. It appears to have crept into the proceedings as a result of an error.
- On 14 January 2009 at a hearing held without notice to Boskalis David Steel J directed the Fourth Defendant forthwith to transfer title in the vessel to the Claimants' nominee, W.D. Fairway Shipping Limited. Pursuant to arrangements agreed between the parties to hold the ring pending the outcome of the expedited trial that transfer has not yet been carried out.
The decision making process within Boskalis
- Royal Boskalis Westminster NV operates a two-tier board system consisting of a Board of Management and a Supervisory Board. The Board of Management consists of three members and is responsible for the day-to-day management of the business and its long term strategy. The Supervisory Board is responsible for supervising management performance and advising the Board of Management. As at January 2009 the three members of the Board of Management were the Chairman, Dr Peter Berdowski, the Chief Financial Officer Mr J H Kamps, and Mr T L Baartmans. The decision to transfer the vessel appears to have been made provisionally by Dr Berdowski at a meeting with Mr Bus on either 5 or 6 January 2009. However the final decision was made at a meeting on 8 or 9 January attended by Dr Berdowski, Mr Baartmans and Mr Bus. Mr Bus gave evidence about the decision making process and was cross-examined thereon. Boskalis tendered in evidence under the Civil Evidence Acts a witness statement from Mr Baartmans. Boskalis were asked to procure the attendance of Mr Baartmans at trial for cross-examination. Mr Baartmans did not attend the trial. It is accepted that there was no impediment to his doing so. Naturally he had other commitments, but not throughout the period of the trial and not such as could not easily have been accommodated. Boskalis would have called him had they thought it in their interest so to do. The same is true of Dr Berdowski.
- Mr Baartmans was also a Director of Westminster International BV and he signed the MOA and Protocol of Delivery on its behalf.
- The contractual documents were signed on behalf of Nigerian Westminster by Mr Slinger. Mr Slinger was Managing Director of Nigerian Westminster between April 2001 and February 2004, during which time he was based principally in Nigeria. In February 2004 he returned to the Netherlands and assumed other duties within the Boskalis group, although he remained on the Board of Directors of Nigerian Westminster. As at January 2009 he had responsibility for the international project markets in "Area Middle" and "Area East". Nigeria is part of Area Middle. I derive the impression that although he remains a director of Nigerian Westminster his activities in relation thereto now consist principally in signing on its behalf documents such as payment orders. He confirmed that he had not attended, even by telephone, any Board Meetings of Nigerian Westminster since 2008. Mr Slinger's immediate superior within the Boskalis organisation to whom he was and is answerable is Mr Baartmans. Mr Baartmans was, he said, his boss.
- Mr Bus told Dr Berdowski on 29 December 2008 about the documents which he had received concerning this action. In particular Mr Bus told Dr Berdowski of the indicative offer to purchase the vessel made by Van Oord. I have no doubt that, although indicative and non-binding, this will have come as unwelcome news to Boskalis.
- Mr Bus asked himself what it was that underwriters were concerned about that had led them to seek an injunction restraining Boskalis from selling the vessel. It was the fact that underwriters did not want Boskalis to transfer the vessel that gave rise to his consideration of the possibility that Boskalis should do just that. By the time of his meeting with Dr Berdowski on 5 or 6 January both men were clear in their minds that they wished to protect Boskalis against "an involuntary parting with the vessel". I shall assume that Mr Bus shared all his thinking with Dr Berdowski and, in due course, with Mr Baartmans. Boskalis justified their failure to call Dr Berdowski and Mr Baartmans to give evidence by suggesting that Mr Bus was the person in the best position to give the relevant evidence as to Boskalis' purpose in entering into the transfer. Since he was the architect of the plan and had conducted all dealings with underwriters, there is I think on reflection some force in this explanation. I remain of the view of course that Dr Berdowski and Mr Baartmans would have been called had Boskalis perceived it to be in their best interests so to do, but I do not find it necessary to draw any adverse inference from their absence.
- I have not of course seen the legal advice which Boskalis received in respect of the efficacy of the election by the majority of the underwriters in December 2008. However the Nabarro letter of 9 January 2009 says that Boskalis had been advised that this was ineffective to transfer either legal or beneficial ownership. The advice, I have little doubt, related to the position in English law. In consequence of the advice received Mr Bus thought that underwriters had not yet made an effective election to take over the vessel. He knew that in the event of election by all of the underwriters it was at the least probable that that would entitle them to take over ownership of the vessel. He also knew that the question whether the majority of subscribing underwriters who had already elected to take over the vessel had thereby become owners of the ship or had the right so to do was a difficult legal question and that there was a risk that Boskalis' current understanding as to the inefficacy of an election by less than 100% of subscribing underwriters might be held to be wrong. Mr Bus recognised the need to act quickly. He wanted to act quickly before the remaining subscribing underwriters elected to take over the vessel. He also wanted to act quickly before the court had had an opportunity to make the order which underwriters sought, i.e. an injunction restraining transfer.
- The thinking of Boskalis at this time is summarised in four paragraphs of Mr Baartmans' witness statement which with two reservations I accept as an accurate account. Those paragraphs read as follows:
"5.2 At the beginning of January 2009, I was aware that the Claimants were trying to take over Boskalis' interests in the vessel and claim possession of it for the purpose of selling it on the open market. As far as the Board was concerned, this was not something which Boskalis was prepared to allow, because Boskalis did not want the vessel to be acquired by one of its competitors.
5.3 I recall discussing the matter in the week commencing 5 January 2009 with Mr Berdowski and Mr Bus and it seemed that the only option available to Boskalis was to carry out a transfer of the vessel. For the sake of completeness, I should point out that these discussions and decisions were not recorded in writing.
5.4 The purpose of the transfer was to ensure that the Claimants could not take ownership of the vessel and thereafter sell the vessel to one of Boskalis' competitors. If the vessel had been sold to a third party, Boskalis commercial interests would have been threatened because the vessel might have been used in competition to Boskalis. Also, other vessels might have been built using the intellectual property which exists in the vessel. In particular the dredging system and automated systems on the WD Fairway were produced using the knowledge of the Boskalis group that has been built up over many years developing dredgers and working in the dredging industry. I did not want the design of the vessel or information about how it operated to fall into the hands of Boskalis' competitors.
5.5 Therefore, I agreed to the transfer for purely commercial reasons to protect Boskalis' interests. Of course, if the vessel were put up for sale, Boskalis could also have participated in the tender, but there was no guarantee that Boskalis would acquire the vessel. It might be argued that Boskalis could have paid a very large sum, well above the vessel's legitimate market value, to ensure that it remained within the Boskalis group. Boskalis was not, however, prepared to pay much more than the vessel's actual market value. Mr Bus informed me that we had received a valuation which stated that the vessel was worth €25 million or thereabouts."
The two reservations, about which Mr Baartmans would undoubtedly have been cross-examined, relate to the "purely commercial reasons" for which he agreed to the transfer and the meaning of the expression "legitimate" or "actual" market value.
- It is however clear from this passage that the purpose of Boskalis was to prevent underwriters taking ownership of the vessel and thus controlling the method of sale. This was something which Boskalis was not prepared to allow. Mr Bus said that Boskalis did not want to be forced into a process that Boskalis did not control. Mr Bus perfectly well understood however that underwriters either already had or would in all probability shortly have the entitlement to choose the process whereby the residual value of the vessel was ascertained, including sale by whatever means they chose.
- Boskalis say that their purpose was not to prejudice underwriters' interests. They say that the real issue between themselves and underwriters was and for some time had been the value of the wreck. They say that they believed that the value of the wreck was ascertainable, and could be established through valuation without the need for a sale. Boskalis were willing and able to pay to underwriters the value of the vessel, to be established by whatever method was thought appropriate short of sale itself. Indeed Mr Bus said that Boskalis did not believe that a transfer of the vessel to underwriters would assist underwriters in any way, and did not believe therefore that the strategy proposed would prejudice underwriters. In his witness statement he said that he believed that Boskalis' transfer of the vessel to Nigerian Westminster could well be generous to the Claimants in that he believed that, having transferred the vessel, Boskalis would have to pay the open market value to underwriters whereas a public tender could well have achieved a much lower price, assuming that there was interest in the vessel. Boskalis followed through this strategy by immediately after the sale suggesting an independent method of valuation and offering to pay whatever was decided to be the open market value of the vessel.
- I can accept that Boskalis justified to themselves what they did in this way. However I am quite satisfied that Mr Bus (and for the avoidance of doubt Dr Berdowski, Mr Baartmans and Mr Haak) all realised that this was not the complete picture. They realised that underwriters either already had or might be about to acquire the right to choose that the vessel be sold, whether that should ultimately be proved to be in their best interests or not. They knew that underwriters had long since formed the view, rightly or wrongly, that the best way to achieve the maximum value of the vessel was to put her out to global tender. Boskalis were simply unprepared to countenance that possibility for at least two reasons. Firstly, they might in order to prevent the vessel being sold to a third party be obliged to bid for the vessel an amount in excess of that which they considered to be the market value. Secondly, the vessel might in any event find its way into the hands of a competitor. They were determined to prevent the underwriters from exercising their entitlement.
- I am quite satisfied that Mr Bus appreciated that Boskalis were prejudicing underwriters' interests in that they were depriving them, or attempting to deprive them, of the opportunity to control the manner of disposal of the vessel. Mr Bus realised that Boskalis were depriving the underwriters of the opportunity even to discover whether by an open market sale they could realise a value greater than that which Boskalis thought should be attributed to the wreck, or would by a process of valuation be ascertained to be the market value. I think it likely that Mr Bus knew that in this Action underwriters were claiming an order for sale of the vessel by global tender, although he said he could not recollect reading that in the documents supplied. Even if not on 29 December, he subsequently read the documents with care. In any event Mr Bus does acknowledge that he comprehended that underwriters were asking "for an expedited trial to become owners" and he realised that if Boskalis transferred the vessel to another company Boskalis might prevent the underwriters from making good their claim to become the owners and take possession of the vessel.
- Mr Bus and Mr Berdowski formed the view on 5 or 6 January that what they proposed to do might be regarded as "sharp" because they had already been put on notice that underwriters intended to seek an injunction preventing them from doing it. They decided to transfer the vessel to a Nigerian company because they "considered Nigeria a notoriously difficult country and we had no time to find out the exact ins and out(s) of all available legal systems". The MOA is governed by Nigerian law and provides for disputes to be referred to arbitration in Lagos. Mr Bus said that he was not responsible for the latter two choices of law and jurisdiction and Mr Haak said that he thought that they were chosen because the buyers were Nigerian. Quite where the responsibilities lay may not much matter. Mr Haak regarded underwriters' attempt to take possession of the vessel as "preposterous". He accepted that shortly after he learned of it he determined that he would do what he could to prevent it happening, come what may. It is clear that, looked at in the round, Boskalis thought that structuring the sale in the way in which they did, i.e. to a Nigerian purchaser, subject to Nigerian law and Nigerian arbitration, would place obstacles in the way of underwriters seeking to unscramble or to set aside the transaction which would not be present were they to sell the vessel to another western European company on terms governed by a European law and subject to the jurisdiction of a European legal system. It was for broadly the same reason that the vessel was first deleted from the Dutch Registry. So long as it remained registered, at Dutch law delivery could only be effected (and, as I understand it, title transferred) by notarial deed. Once deleted, it became moveable property transferable by simple contract. At the very least therefore deletion from the Register, which needed the approval of the Rotterdam District Court and would take one or two days, offered the quickest method of transferring the vessel to a third party. However the expert evidence also demonstrated that there was at the least a risk that a Dutch notary presented with this contract of sale would have raised questions which might have led to his declining to authenticate the deed, or declining to do so promptly.
- In that latter regard the MOA, although nominally on the standard Norwegian Sale Form, is a curious document. Virtually every standard clause is deleted, although I accept that in the circumstances some of them would probably have been inappropriate. A copy of the MOA together with the Protocol of Delivery and Acceptance were included in Mr Slinger's signature book on 9 January 2009. The MOA had a Post-It note appended to indicate where Mr Slinger should sign for Nigerian Westminster. Mr Slinger looked at the last and first pages of the MoA and observed that it was a document which concerned the Fairway and that it related to Nigerian Westminster. Mr Slinger did not take in that it was an agreement for sale. He knew in general terms that the Fairway had been a CTL and that, after some delay, Mr Bus had been successful in collecting the insurance proceeds. Mr Slinger saw that his boss Mr Baartmans either was going to be a co-signatory of the document or had already signed it. Mr Slinger called Mr Bus whom he knew to be responsible for matters concerning the Fairway and asked him what the document was about. Mr Bus said that it was something which had to be attended to and asked him to sign it. Since Mr Slinger knew that Mr Bus was responsible for what was going on in relation to the Fairway and since his direct boss Mr Baartmans was a co-signatory he signed the document without further ado. It was of no interest or concern to Mr Slinger what the document contained and he did not regard it as his responsibility to read it or to check it, still less to consider whether it was in the interests of Nigerian Westminster that he sign it on their behalf. The reality, as Mr Slinger confirmed, was that although it was not Mr Baartmans who had asked him to sign this document, if Mr Baartmans were at any time to ask him to sign a document which concerned Nigerian Westminster he would do so. Mr Slinger knew nothing about underwriters' assertions, rights or possible rights and did not know what was the effect of the document he was signing.
- Mr Devinck, based in Nigeria, is and was in January 2009 Managing Director of Nigerian Westminster. He was told on the afternoon of Friday 9 January in his office in Lagos that Nigerian Westminster would shortly receive a request to transfer €1,000 for the purchase of the Fairway. He knew that the Fairway was the largest dredger in the world and that she had been damaged in a collision and that insurance monies had been paid. It was the first he knew of any intention to transfer the vessel to Nigerian Westminster. He did not consider that he or Nigerian Westminster were being given a choice in the matter – it was a transfer that had been decided upon in Papendrecht, the Boskalis Head Office, by which of course he meant that the decision had been made by the parent company. He authorised the payment, signing the relevant bank transfer on the following Monday morning. He realised that €1,000 bore no relation to the value of the wreck, whatever that might be. He had no idea why that amount had been chosen. Since this was an inter-company transaction he gave no particular thought to it being a transaction at an under-value although he appreciated that even the scrap value would be greatly in excess of €1,000. He gave no consideration to the question whether the transaction was in the interest of Nigerian Westminster. He assumed that that kind of thing would have been thought through in Papendrecht and that this "was a solution". Mr Devinck was content to do whatever Boskalis in Papendrecht required and did not believe that he had any choice in the matter, as indeed ultimately he did not. Mr Devinck knew nothing about underwriters' assertions, rights or possible rights.
Valuation
- I have already referred to the two expert witnesses whose evidence I heard, Mr Webster and Mr Van Leeuwen. Each had produced an individual valuation at an earlier stage in the story. Their experience was very different. Mr Van Leeuwen is a highly experienced sale and purchase broker, with 33 years experience in dealing with dredging vessels. There can be no doubt that Boogaard Sliedrecht BV of which he has since 1998 been the Managing Director is the leading specialist dredge broker, indeed the only specialist dredge broker in Europe, and Mr Van Leeuwen's work has not unnaturally included the provision of valuations. Mr Webster by contrast is a marine engineer and naval architect by training, who has sea-going experience as a Chief Engineer including on ocean going hopper dredgers. Since leaving the sea he has worked extensively in the dredging industry as a Technical Superintendent managing the construction and operation of dredging fleets. Between 1972 and 1978 that experience was in Europe. In 1978 he moved to the United States since when he has continued to work in the same field worldwide. His work has also included the provision of valuations, although not on anything like the same scale as has Mr Van Leeuwen's.
- The WD Fairway is a trailing suction hopper dredger of 230 metres LOA, 60,000 tonnes deadweight, over 13.5 metres draft and 35,000 cubic metres hopper capacity. Vessels of this type and size are known within the industry as "mega hopper dredgers" and are few in number. In 2007 when she was damaged WD Fairway was the largest of the only two (or possibly three) comparable vessels then in service. Such vessels have the ability to dredge up to a depth of 55 metres, transport material over great distances and are especially suited for large scale land reclamation projects, such as those carried out in Hong Kong, Singapore, the Arabian Gulf and the Maasvlaakte in Holland. The latter is a massive harbour expansion scheme in Rotterdam on which Boskalis and Van Oord are working together as joint venture partners. As a class of vessels mega hopper dredgers are also unique in that they are capable of handling offshore contracts, including dredging entrance channels to deep water harbours, trenching, pre-sweeping and back-filling pipelines and are also capable of being dynamically positioned. There are two major types of dredger, trailing suction hopper dredgers and cutter suction dredgers. Cutter suction dredgers cut material and transfer the cut material by pipeline to shore. Hopper dredgers remove the material from the sea bed by suction and store it on board the dredger in the hopper, and transfer the material depending on the requirements, for example it may dump the material at sea or may use the material for land reclamation projects. Mega hopper dredgers are extremely versatile in the manner that dredged material can be discharged. Dredged spoil can be dumped through two rows of large bottom doors, located on either side of the duct keel. The hopper well can also be discharged by using suction valves located in an emptying channel through the duct keel and serial in-line inboard dredge pumps. The material can then either be discharged over the bow through a discharge coupling, or by rainbowing using a large nozzle. Whilst this characteristic is shared by many hopper dredgers, the fact that it can be done with 35,000 cubic metres of material in one discharge is not.
- As at May 2009 there were only four or possibly five similar units in operation, albeit three more were under construction. All available units were fully employed.
- The global private, i.e. non-nationalised, dredging market is dominated by four companies, Boskalis and Van Oord in Holland, DEME Group (Dredging International NV) and Jan de Nul in Belgium. With one possible exception, the Hyundai Goryo 6 HO which Mr Webster classed as a mega but whose deadweight looks to me too small for that designation and whose hopper capacity I do not know, all the mega hopper dredgers are owned by the big four, as these companies were described by Mr Van Leeuwen and as, I suspect, they may generally be described in the trade.
- Dredging vessels, particularly those maintained to a high standard by the big four, typically have a working life of between 25 and 30 years and occasionally as much as 40 years. Historically, major dredge operators retain their equipment whatever the market conditions. Thus much of Boogard's work is, and has been since the industry became dominated by the big four, concerned with sales of second-hand dredgers between dredging companies other than the big four. In recent times Boogard has done very little work for the big four companies, other than the provision of valuation reports, because those companies retain and modify their existing equipment and, historically, have preferred to build and buy new buildings rather than to make acquisitions in the second-hand market. A mega hopper dredger has never before been sold as a second-hand vessel. Indeed as I understand it no "jumbo" hopper dredger has ever been sold as a second-hand vessel either, the jumbo size having a draft between 10.5 and 13.5 metres and a hopper capacity of between 16,000 and 25,000 cubic metres.
- There are however other major dredging companies around the world which are not included amongst the big four which dominate national dredging markets. They include China Harbour Engineering Company in China, Dragages Ports in France, Inai Kiara Sdn Bhd in Malaysia, Great Lakes Dredge and Dock Company in the USA, Rohde Nielsen A/S in Denmark, Huta Marine Works Limited in Saudi Arabia and Dredging Corporation of India Limited. There are also many smaller dredging companies around the world for whom Boogard acts, some of which are listed in an Appendix to the Venmar Valuation Certificate of 9 June 2008. They include companies in Bahrain, Israel, Qatar, Saudi Arabia, China, Japan, South Korea, Malaysia, Taiwan, Germany and the USA.
- Unlike the conventional shipping markets that are driven by freight rates, the dredging market is influenced by world tenders and fixed price contracts, and the value of dredging equipment does not fluctuate in the same way as other trading vessels.
- In 2006-2007 there was a boom in the dredging market, fuelled by large dredging projects in the Middle East and Far East. At around this time, there was an increased programme of investment in the new building of dredgers and the modification of existing dredgers. There was also an increased market in sale and purchase of second-hand equipment, although not amongst the big four companies, because as already remarked they do not usually participate in the second-hand sale and purchase market. According to Mr Van Leeuwen since November 2008 there has been a noticeable decline in the dredger sale and purchase market and in the orders for new buildings which he considers reflects the global economic downturn.
- The experts were both able to identify projects, notably in the Middle East, which have been cancelled, or perhaps postponed, in the current global economic conditions, and Mr Van Leeuwen was naturally cautious about prospects for the future. He did not suggest that the dredging industry had as yet suffered. Indeed he confirmed that the market has so far been in good health, not just in general for the dredging industry but also for the large trailing suction hopper dredgers for land reclamation projects and beach nourishment. He said that his expectation was that sooner or later there would be a decline in the dredging industry in general and also for the large mega trailing suction hopper dredgers, and he referred to a report of ING Bank which apparently takes a similar view. There are obviously some uncertainties. On the other hand the published material which Mr Webster produced painted a picture of an industry in rude good health, with the big four reporting the securing of big new orders spread geographically over a number of continents which has compensated for projects which have been cancelled.
- Mr Van Leeuwen accepted that a number of the major dredging companies outside the big four might well be interested in acquiring and repairing the Fairway. In particular, he mentioned China Harbour Engineering Company and Great Lakes Dredging and Dock Company in the USA, which operates worldwide and is not therefore subject to the constraints of the Jones Act which requires dredging activities in US navigable waters to be carried out by US built vessels only. Mr Van Leeuwen thought that Hyundai of South Korea might also be interested. A particular incentive for a Far Eastern purchaser is that repairs can be carried out very much more cheaply in China or Malaysia and possibly Korea than would normally be the case in Europe or in Singapore where the big four carry out repairs to Western European standards. Mr Van Leeuwen had particular reasons for regarding as unlikely buyers some of the other companies listed by Mr Webster as possibly interested purchasers.
- It was impossible within the confines of the expedited trial to examine the question of repair costs on anything other than a superficial level. I am conscious that in the forthcoming action in which Boskalis seek to recover interest and/or damages for delayed payment of the CTL there will be an examination of this issue, albeit not with a view to determining what should now be regarded as the reasonable cost of repairing the vessel. However the fact that underwriters have agreed and paid a CTL does not of itself preclude underwriters from seeking now to establish that the cost of repairing the vessel would be less than the estimates upon which they were at an earlier stage content to rely, and it must be borne in mind that certain of the costs which properly were taken into account in that exercise as estimated figures have now been incurred or, as the case may be, avoided, so that they do not form part of the cost which a purchaser would have to bear in order to repair the vessel. When putting forward their claim for a CTL Boskalis relied upon an Intermediate Survey Report and Repairs Estimate of 23 March 2007 prepared by Messrs Van Woerkom, Nobels and Ten Veen ("WNV") of Sliedrecht. The surveyors attended the vessel where she lay off Tianjin resting on the bottom in a partly sunk condition. Their repair estimate, presented in one page and at a very high level of generality, based on repairs at Singapore, amounted to €91.4 million. This included an item for unforeseen contingencies of €10 million, 12.5% of the preceding sub-total, €1.75 million for transport of the dredger from Tianjin to a Singapore repair yard and on her own keel back to Tianjin after repairs and €560,000 for preservation of components after salvage. Messrs Noble Denton were asked by underwriters to comment and they inspected the vessel both at Tianjin and later whilst she was in dry dock in Quinhuangdao, China. Ultimately they reached a figure of €58.8 million. In their report they pointed out that a more accurate method of estimating the cost of repair than had been employed by either WNV or themselves was to prepare a detailed scope of work and then to ask suitable shipyards to quote for the repair based on the scope of work. This has not yet been done. It is of course likely, and it was indeed asserted, that Boskalis has sufficient in-house expertise and dialogue with suppliers and shipyards to form their own view of what repairs to their own standards might cost. Mr Webster inspected the ship afloat at Sattahip. He found the condition of the vessel much better than he expected. Boskalis had, as one would expect, carried out extensive and highly professional cleaning and preservation measures whilst the vessel was in dry dock, particularly in the vessel's engine room, which had been totally flooded. There is an issue as to the extent of the work carried out and as to the extent of the replacement which would in due course be necessary. I cannot now resolve it. Not all of the relevant documents were available at the hearing although I understand that Boskalis has in the past made them available to the lead primary layer underwriter Fortis. Mr Webster had in May 2008 carried out his own exercise to estimate the cost of repairs and he came up with a figure of €66.5 million which included supervisory crew for 18 months and a figure of €10 million for contingencies. Mr Webster had very great experience in these matters. I have the utmost confidence in his evidence, which was given in a very straightforward manner. He had an objectivity born of his long practical experience.
- As I have indicated I cannot on the basis of the exercise thus far conducted reach a reliable conclusion as to what will be the cost of repairs, and the parties did not expect me to do so. The likely cost of repair will undoubtedly be a factor which will influence the level at which any potential purchaser will bid. However it is not the uncertainty concerning repair costs which in my view precludes valuation.
- In my view no process of valuation short of an attempted sale process will be likely to produce a reliable figure which the court can in fairness direct Boskalis to pay. Of course, if for whatever reason it ultimately proves impossible to put the vessel up for sale in a manner which will properly test the market, the court would be driven to do its best, unsatisfactory though that would be. That situation has not yet arisen and if it did different considerations might be in play, affecting the court's perception of how any inherent uncertainties ought properly to be resolved.
- Both Mr Webster and Mr Van Leeuwen put forward valuations. I do not regard either valuation as reliable. I have already pointed out that when giving his valuation in May/June 2008 Mr Webster gave it as his opinion that in order to obtain the maximum value for the hopper dredge she should be put out for world tender. He gave no indication in his Valuation Certificate how his subsequent figure of €75 million had been reached. However in his expert report for the trial he explained that given the lack of any previous sales, the valuation was necessarily a book value estimate based upon an initial newbuilding cost and straight-line depreciation, taking into account the lengthening of the vessel in 2003. He went on to explain that a book valuation is no more than a rough guide as to what the vessel is worth on the open market and said that in consequence he had stated in his Valuation Certificate that, in order to obtain the maximum value for the dredge, he recommended that the vessel be put out for a world-wide tender. During his evidence he explained that for the purposes of this exercise he had relied upon figures for the newbuilding cost at Verolme Shipyard in 1997 and for the cost of jumboisation at Sembawang Shipyard in 2003 which he had obtained from confidential sources in Holland. Given the extraordinary mutual suspicion and distrust between owners and underwriters, of which Mr Webster was no doubt aware, it does not altogether surprise me that Mr Webster thought it unlikely that he could obtain this information in a more orthodox manner, but as it happens resort to these means was both unnecessary and in the event misleading. The relevant figures had been supplied by Boskalis to Messrs Holman Fenwick and Willan who were handling the salvage claim on their and underwriters' joint behalf, and the figures obtained by Mr Webster were too high by some margin. He had been informed that the newbuilding cost was €120 million and the cost of jumboisation €60 million whereas the correct figures were in fact €75 and €41 million respectively. Mr Webster had written down over a conventional twenty-five year lifecycle, a perfectly standard accounting approach notwithstanding the unit might well have a significantly longer life. He had however continued to apply the same annual depreciation charge after 2003 as before, not therefore taking into account in the calculation of the annual charge the cost of jumboisation. He agreed that he might well have adjusted the charge. However that might be, his calculation produced a figure of €75.1 million in May 2008. At trial in 2009 he was inclined to take off another €10 million to reflect deterioration over the intervening more than one year. Mr Weitzman for Boskalis naturally pointed out that the same calculation carried out by reference to the correct newbuilding and jumboisation costs would produce a figure of €25.5 million as at May 2008, which would reduce to €22 million if a similar percentage were deducted to reflect deterioration between then and May 2009. Mr Weitzman was also critical of Mr Webster for his having failed to alert underwriters to the possibility that the figures upon which he had based his valuation were unreliable. No doubt it would have been preferable had Mr Webster explained to underwriters the precise basis upon which he had prepared his valuation. However it must be remembered that Mr Webster never himself regarded his valuation as more than a rough guide to what the vessel was worth on the open market, which is why he recommended that she be sold on the open market. He was no doubt confident in his informant. The short point for present purposes however is that a book value is merely an accounting tool, which may frequently bear no relation to the actual value and takes no account of market sentiment. It seems to me that having regard to the dynamics of the current world-wide dredging industry a book valuation is of little real assistance in forming a view as to the current open market value of the vessel.
- It is fair to say that Mr Van Leeuwen's valuation of January 2008 was no more forthcoming than had been the Venmar Valuation Certificate in indicating how the figure of €23-27 million had been reached. The operative part of the valuation report read:
"Owners' request is to assess the appropriate market value in condition afloat 'as is, where is' Sattahip, Thailand.
The damage to the tshd is unprecedented, consequently references have not been recorded nor known to the dredging industry.
Taking into consideration:
- the excessive damage reported,
- the remaining economical lifetime,
the assessment is in the range of:
€23 million to €27 million
whereby, we reach the conclusion that, based on standards of maintenance, operation and employment, customary in the Western European dredging industry, the tshd 'WD Fairway' is assumed economically beyond repair."
Mr Van Leeuwen's expert report prepared for the trial seemed to suggest that some reasoned basis had been adopted in reaching this value but on analysis and investigation this proved not to be the case. He mentioned the scrap value as a starting point but it turned out that that played no part. He mentioned a quotation recently issued by the Dutch shipyard IHC for a newbuilding which he regarded as a modern comparable to the Fairway – modern construction techniques can achieve similar hopper capacity with less deadweight tonnage. This quotation was €200 million. He then reasoned that a Western European buyer would not be interested in purchasing the Fairway when a newbuilding could be commissioned for €200 million and would have a longer life. He assumed for this purpose repair costs of €100 million and that both repair of the Fairway and commissioning of a newbuilding would take approximately two to three years. He then went on to say that the vessel might be of interest to Asian or Chinese purchasers, because such purchasers will use cheaper parts and materials and have cheaper labour costs. He concluded:
"In January 2008, I ultimately came to the view that the vessel was worth in a damaged condition €23-27 million. At this price, I believe that the vessel will be of interest to a far eastern purchaser if they could reduce the estimated reconstruction cost so that their total expenditure (including the purchase price) would be around €100 million."
- I have already commented on the question of repair costs. It cannot be assumed that €100 million is a reliable figure. I think it likely on the basis of the evidence that an Asian or Chinese purchaser would by a significantly lower expenditure be able to restore the vessel to an acceptable standard. Indeed inherent in Mr Van Leeuwen's valuation is the possibility that a Far Eastern purchaser might be able to repair the vessel for about US$75 million, and that presupposes that the appropriate starting point for a Western European purchaser would be of the order of €100 million. Furthermore Mr Webster thought that the repairs should only take of the order of 18 months and I think that on such a matter he is likely to be right. There is also room for significant doubt whether a vessel with capabilities comparable to the Fairway could be built for €200 million. Inevitably there was discussion whether the somewhat different equipment on the vessel for which IHC quoted was at the end of the day equivalent in its capacity, versatility and usefulness. On any view the vessel for which IHC quoted lacked a dynamic positioning system. Mr Van Leeuwen had himself carried out a calculation using an industry standard pricing formula (CIRIA, although no-one could tell me for what this is an acronym) which suggested that the newbuilding cost of a comparable vessel would be €218 million without spare parts, which with spare parts would suggest a cost of the order of €230 million.
- All this discussion is however a little beside the point in the context of Mr Van Leeuwen's valuation because he accepted that the figure of €23-27 million was the product of no calculation at all. It was he said based on the "market of experience". On the basis of a willing buyer and a willing seller, it represented the figure which Mr Van Leeuwen would advise a buyer he ought to be prepared to pay. With the greatest of respect to Mr Van Leeuwen it seems to me that this was little more than a guess, as was the figure of €20-22 million which he considered appropriate as at the date when he gave evidence at trial. Mr Weitzman was inclined to invest the evidence of Mr Van Leeuwen with an infallibility which I do not consider justified. The conclusion is inescapable that there is no special significance in his suggested value, which could as it seems to me prove to be either a significant under estimate or a significant over estimate, although the lengths to which Boskalis have gone in an attempt to keep the vessel out of the hands of their competitors suggests to me that the former is more likely than the latter.
- In truth, as it seems to me, what a purchaser will be prepared to pay may depend upon many factors. Boskalis is concerned to prevent an outsider from breaking in to the market for mega hopper dredgers, and I suspect that their concern is shared by the other big four companies. Mr Van Leeuwen had not given any consideration to this point and he was unable to justify his opinion that the big four would not be prepared to pay a premium in order to avoid the vessel falling into, e.g., Chinese hands. He said that the point could be investigated by making a telephone call to the big four companies but this statement struck me as a surprisingly naive approach. Just as an outsider might well be prepared to pay a significant premium in an attempt to break in to the market, so as it seems to me one or other of the big four and in particular Boskalis may be prepared to pay a significant premium to keep the vessel out of the hands of an outsider. Equally, one or other of the big four companies might find it attractive to deprive Boskalis of the opportunity of repairing the vessel and redeploying it in competition with them. The attraction of the vessel may well depend on such matters as the nature of a company's current and anticipated commitments and the nature of the financing currently available to them. It is particularly clear that Boskalis considers that an outside company would by acquiring, repairing and operating this vessel gain a valuable insight into aspects of their operational capability which they regard as confidential. The possibility of a mega hopper coming onto the open market is a truly unique event in the dredging industry. It will represent an unique opportunity. In the circumstances it is simply not possible to come to a reliable estimate as to her current open market value without testing that market. Mr Van Leeuwen recognised that the exercise he was being asked to conduct was entirely hypothetical, essentially because there is as yet no market, still less if this is not a tautology, one with a willing seller. Without a market it is meaningless to talk of market value. The court lacks any useful yardstick by reference to which to value an unique artefact, unique not in its essential characteristics but in its availability for purchase.
- As I have already related one of the other big four companies has in fact already shown an interest in acquiring the vessel. On 5 November 2008 Mr Bunschoten of Van Oord wrote to Mr Fairclough of Clarksons as follows:
"… We refer to our previous contacts and the documents you have forwarded us.
You have asked us to confirm interest in the purchase of the vessel.
However we are not yet in the position to make you a binding offer based on the information received by us. The reasons for this are the following:
- We have not yet been able to visit the vessel. An actual visit is necessary in order to assess the current state of the vessel.
- The majority of the suppliers of the main components of the vessel have refused to give us information and to answer our questions regarding same essential components.
- A condition measurement of the engines is necessary in order to be able to assess the state of these engines and its auxiliaries.
However we are willing and able to give you an indicative non-binding offer for the vessel. Please bear in mind that the price quoted could change after visiting the vessel and receiving the missing information. Our non-binding indicative offer is €62 million."
- It is strange that the majority of the suppliers should have behaved as described, but it is I suppose possible that they regarded themselves as under some restraint of confidence. The matter was not explored in evidence.
- Mr Bus told Dr Berdowski about this offer on 29 December 2008. On 23 January 2009 it was withdrawn, ostensibly because on inspection the vessel was found to be more severely damaged than expected. The e-mail communicating the withdrawal of the indicative offer to Clarksons read:
"After having inspected the vessel on 20 January at Sattahip, Thailand we must conclude that the damage is much more severe than we anticipated.
In particular the extensive damage to the auxiliary equipment and the electrical systems, as well as uncertainty with regard to the main engines, has caused our estimated repair costs to increase indicative with €30-35 million.
We are therefore not in a position to maintain a bid as indicated in our earlier letter of 5 November."
- Strangely this e-mail was also sent by Van Oord directly to Mr Bus, whose sole involvement had according to him been to facilitate arrangements for the inspection. It was not he said his decision to allow that inspection, which decision must he said have been made by Dr Berdowski or by Mr Baartmans or by both of them. Mr Bus could offer no explanation as to why the e-mail had been sent to him.
- Mr Fairclough was surprised at the withdrawal of Van Oord's indicative offer and accordingly arranged a meeting to discuss the matter with Mr Bunschoten and Mr Voorwinde, the latter being the sender of the 23 January e-mails. It took place at the Van Oord offices in Rotterdam on 6 February 2009. Mr Voorwinde and Mr Bunshchoten informed Mr Fairclough that, despite withdrawing their indicative offer and the possible deterioration of the vessel, Van Oord remained interested in purchasing the vessel and would like to be kept informed of her status. It was never explained to Mr Fairclough's satisfaction in what respect the condition of the vessel in fact differed from what Van Oord could reasonably have expected from the report and photographs which they studied before giving their initial indicative offer. Mr Fairclough attempted to extract an explanation as to what precisely the additional €30-35 million repair cost related but Mr Voorwinde and Mr Bunschoten gave him no satisfactory explanation. Mr Fairclough specifically asked Mr Voorwinde and Mr Bunschoten why the e-mail of 23 January had been sent to Mr Bus as well as to himself. Mr Bunschoten asked to see a copy of the e-mail, which Mr Fairclough did not have with him. Mr Fairclough was however able to tell Mr Bunschoten that he had seen with his own eyes the e-mail which had been sent by Mr Voorwinde, who was of course also present at the meeting. Mr Fairclough pointed out that communication with Boskalis in this way was not what the parties had had in mind when the earlier indicative offer was made and suggested that perhaps there had been collusion. Mr Voorwinde and Mr Bunschoten did not suggest that the word collusion was inappropriate and indeed, according to Mr Fairclough, there was "a positive reception to that word". Mr Bunschoten and Mr Voorwinde agreed that there had been discussions between Van Oord and Boskalis. There was mention of the vested interest in keeping the unit under European control. Further than this there is no evidence as to the content of the discussions between Van Oord and Boskalis. Van Oord's indication at €62 million was given on 5 November 2008. I suspect that the figure may well have been derived from the accounts as at 31 December 2007 of Westminster Fairway BV, the relevant Boskalis operating company, in which the book value of the vessel was given as €62.2 million. Boskalis say that these accounts were issued, by which I understand to mean published, on 31 October 2008.
The jurisdiction under the Insolvency Act 1986
- I turn then to the jurisdiction under the Insolvency Act 1986. The relevant provisions are as follows:
"Part XVI
Provisions Against Debt Avoidance (England and Wales only)
423 Transactions defrauding creditors
(1) This section relates to transactions entered into at an undervalue; and a person enters into such a transaction with another person if—
(a) he makes a gift to the other person or he otherwise enters into a transaction with the other on terms that provide for him to receive no consideration;
(b) he enters into a transaction with the other in consideration of marriage [or the formation of a civil partnership]; or
(c) he enters into a transaction with the other for a consideration the value of which, in money or money's worth, is significantly less than the value, in money or money's worth, of the consideration provided by himself.
(2) Where a person has entered into such a transaction, the court may, if satisfied under the next subsection, make such order as it thinks fit for—
(a) restoring the position to what it would have been if the transaction had not been entered into, and
(b) protecting the interests of persons who are victims of the transaction.
(3) In the case of a person entering into such a transaction, an order shall only be made if the court is satisfied that it was entered into by him for the purpose—
(a) of putting assets beyond the reach of a person who is making, or may at some time make, a claim against him, or
(b) of otherwise prejudicing the interests of such a person in relation to the claim which he is making or may make.
…
(5) In relation to a transaction at an undervalue, references here and below to a victim of the transaction are to a person who is, or is capable of being, prejudiced by it; and in the following two sections the person entering into the transaction is referred to as 'the debtor'.
424 Those who may apply for an order under s 423
(1) An application for an order under section 423 shall not be made in relation to a transaction except—
(a) in a case where the debtor has been adjudged bankrupt or is a body corporate which is being wound up or [in its administration], by the official receiver, by the trustee of the bankrupt's estate or the liquidator or administrator of the body corporate or (with the leave of the court) by a victim of the transaction;
(b) in a case where a victim of the transaction is bound by a voluntary arrangements approved under Part I or Part VIII of this Act, by the supervisor of the voluntary arrangement or by any person who (whether or not bound to do so) is such a victim; or
(c) in any other case, by a victim of the transaction.
(2) An application made under any of the paragraphs of subsection (1) is to be treated as made on behalf of every victim of the transaction.
425 Provision which may be made by order under s 423
(1) Without prejudice to the generality of section 423, an order made under that section with respect to a transaction may (subject as follows)—
(a) require any property transferred as part of the transaction to be vested in any person, either absolutely or for the benefit of all the persons on whose behalf the application for the order is treated as made;
…
(2) An order under section 423 may affect the property of, or impose any obligation on, any person whether or not he is the person with whom the debtor entered into the transaction; but such an order—
(a) shall not prejudice any interest in property which was acquired from a person other than the debtor and was acquired in good faith, for value and without notice of the relevant circumstances, or prejudice any interest deriving from such an interest, and
(b) shall not require a person who received a benefit from the transaction in good faith, for value and without notice of the relevant circumstances to pay any sum unless he was a party to the transaction.
(3) For the purposes of this section the relevant circumstances in relation to a transaction are the circumstances by virtue of which an order under section 423 may be made in respect of the transaction."
- I have set out sub-section 425(2) partly in order to demonstrate that it is of no application in the present case. Westminster International was here the person who entered into the transaction and thus the debtor. Nigerian Westminster has acquired its interest in the vessel from the debtor having been party to the contract of sale. It is thus irrelevant to the applicability of the statute whether Nigerian Westminster is a bona fide purchaser for value without notice of the relevant circumstances. Likewise, it is by necessary implication irrelevant to the exercise of the court's discretion that Nigerian Westminster was a bona fide purchaser for value without notice of the relevant circumstances, if indeed it was. I would accept that in some cases it may be relevant to the exercise of the court's discretion if it is established that the party to the transaction with the debtor did not act in good faith or give value. In the present case however given the relationship between Westminster International and Nigerian Westminster, the circumstances in which Mr Slinger formally signed the contract on Nigerian Westminster's behalf and the fact that this was an intra-group transaction for a consideration which was only symbolic, any enquiry into the extent to which the knowledge of the Royal Boskalis executives can properly be attributed to Nigerian Westminster seems to me of peripheral relevance. I do not therefore propose to make formal findings on the question whether Nigerian Westminster acted in good faith or, if it is a different question, without notice of the relevant circumstances. Furthermore I do not propose to address the question whether in the context of this statutory jurisdiction Nigerian Westminster should be regarded as having given value. I have found all the necessary facts. If Nigerian Westminster did act without notice of the relevant circumstances, it can only be in consequence of the application of a rule of law concerning the attribution of knowledge. The purpose of Boskalis was to cause prejudice to the Claimants by putting the vessel beyond their reach. They did so in a manner which they realised would be perceived as sharp.
- Boskalis naturally points to the following considerations:
i) The provisions are contained within an Insolvency Act;
ii) Part XVI in which they appear is entitled "provisions against debt avoidance"; and
iii) The marginal title of section 423 is "transactions defrauding creditors".
There is here of course no insolvency, although Westminster International divested itself of its only asset, or its only substantial asset. Nonetheless Boskalis did not intend to deprive underwriters of financial redress if and in so far as underwriters' entitlement which they sought to frustrate was capable of being quantified by a valuation process.
- However as Boskalis rightly acknowledges the jurisdiction is not expressly made conditional upon a formal insolvency. The legislative forebears of this section go back to the Act against Fraudulent Deeds, Gifts and Alienations 1571. The Cork Committee Report on Insolvency Law and Practice (1981 Cmnd 8558) observed at paragraph 1204 that resort to the statute of Elizabeth I and its replacement section 172 of the Law of Property Act 1925 is normally unnecessary unless the debtor is unable to pay his debts without recourse to the property disposed of, so that the remedy is seldom if ever invoked unless the debtor has in fact become insolvent, but the present case is far from normal. It is the essence of the case that Westminster International wished to put its assets, i.e. the vessel, beyond the reach of underwriters. It is not in dispute that invocation of the jurisdiction is in the present circumstances novel, but those circumstances are four-square within the circumstances prescribed and required for the availability of the statutory jurisdiction.
- Boskalis submits that exercise of the jurisdiction under section 423 will in circumstances such as the present undermine the long established rules of law whereby it is determined whether proprietary interests are acquired. It seems to me that Parliament by section 425(2) prescribed the limits within which any such argument should prevail. It cannot avail a direct purchaser from the debtor. In any event in the present case where the court is concerned with an intra-group sale for symbolic consideration where the property has remained within the same ultimate control the suggested consideration is in my judgment of very little weight. Boskalis also say that the Claimants are seeking to use section 423 in order to obtain a proprietary interest in the vessel which they would not otherwise have. However in relation to this argument it is relevant to notice that had the vessel been situate in England the electing underwriters would have acquired a proprietary interest, as I explained in my Phase 1 judgment. The intra-group sale was carried out clandestinely in order to forestall the exercise by the remaining underwriters of their right to elect. English law was the system of law which the parties chose to regulate their relationship and which would alone have been relevant had the vessel been situate in England. In any event, underwriters are at this stage of the argument seeking to give effect to a contractual right.
- In IRC v Hashmi [2002] 2 BCLC 489 the jurisdiction was successfully invoked in a case where there was no formal insolvency, although had the deceased debtor lived and his dishonesty come to light there might well have been. Arden LJ pointed out at pages 503-504 that the Cork Committee whose report preceded enactment of the current statute recommended that the necessary intent should be an intent on the part of the debtor to defeat, hinder, delay or defraud creditors, or to put assets belonging to the debtor beyond their reach. She also observed that section 423(3) is a carefully calibrated section forming part of a carefully calibrated group of sections and that even as regards a party to a transaction potentially falling within section 423, there are significant checks and balances. In these circumstances I do not consider that I should be deterred from exercising the jurisdiction in a novel situation if the facts fall within the carefully calibrated provisions.
- In my view the facts fall squarely within the provisions of section 423. The transaction was at an undervalue. The consideration given was trifling and at best symbolic - €1,000 in respect of a vessel for which Boskalis had only recently, in effect, offered €25 million. As to section 423(3) I have already found that a purpose of Boskalis, and for the avoidance of doubt of Westminster International, in entering into the sale was to prejudice the interests of underwriters in relation to their claim to be entitled to assume ownership and possession of the vessel and to sell her. For the avoidance of doubt Boskalis had the like purpose in relation to the like claim which they anticipated those underwriters who had not yet elected would make – section 423(3)(b) talks of prejudicing the interests of a person in relation to the claim which he may make and section 423(5) defines as a victim of the transaction a person who is or is capable of being prejudiced by it. Although it is unnecessary to go this far, I would if necessary hold that Westminster International had the purpose of putting assets, i.e. the vessel, beyond the reach of underwriters, although I would accept that it is not of course the paradigm case of such conduct. It is sufficient if either purpose was a real substantial purpose, as in my judgment both were. As Arden LJ pointed out in IRC v Hashmi at paragraph 23 of her judgment, it will often be the case in this sort of context that motives will co-exist in such a manner that even the transferor himself may be unable to say what was uppermost in his mind.
- The underwriters are plainly victims of the transaction. If it stands it prevents them from exercising their contractual right to assume ownership and to sell the vessel on the open market so as to maximise recovery. The underwriters have been deprived of the chance of achieving a higher price than that indicated by the valuation which Boskalis says is a proper one. That conclusion is independent of but is reinforced by my finding that the vessel cannot reliably be valued so that no valuation so far put forward can be regarded as a proper or appropriate valuation.
- For the avoidance of doubt I reject out of hand the submission of Boskalis in paragraph 166 of its closing submissions that Boskalis would "not be willing to participate in any sealed bid process or to pay any ransom value". Boskalis has established only that it did not want to be forced into a process where it did not know what others were bidding. I do not propose in this judgment to prescribe a method of sale although I reserve the right so to do, all parties having accepted that I enjoy that power always assuming that the jurisdiction under section 423 is otherwise made out. Whether Boskalis would participate in a process whereunder it did not know what others were bidding remains an open question, as does the question more broadly how much it would be prepared to pay to keep the vessel out of the hands of its competitors.
- It is accepted that, as held by Sir Donald Nicholls VC in Re Paramount Airways [1993] Ch 223, the jurisdiction is subject to no territorial limitation. The fact that both the First and the Fourth Defendants are overseas companies and that the transaction in question concerned moveable property situate in Thailand is relevant only to the question whether the court should exercise its discretion to grant relief. On the other hand I fully recognise the special need for care when exercising an extra-territorial discretionary power – see Banco Nacional de Cuba v Cosmos [2000] BCCC 910. In the context of winding-up, the subject matter of that case, one is concerned not just with the connection with this jurisdiction of the company which it is sought to wind up, but also with the connection of the potential beneficiaries – see per Knox J in Re Real Estate Development Company [1991] BCLC 210 at 217. What one is concerned to find is a sufficient connection to justify the court setting in motion procedures over a body which prima facie is beyond the limits of territoriality – see again per Knox J at page 217.
- In Re Paramount Sir Donald Nicholls VC said that the court will need to be satisfied that, in respect of the relief sought against him, the defendant is sufficiently connected with England for it to be just and proper to make the order against him despite the foreign element. He went on, at page 240, to discuss how that connection might be shown:
"This connection might be sufficiently shown by the residence of the defendant. If he is resident in England, or the defendant is an English company, the fact that the transaction concerned moveable or even immoveable property abroad would by itself be unlikely to carry much weight. Likewise if the defendant carries on business here and the transaction related to that business. Or the connection might be shown by the situation of the property, such as land, in this country. In such a case, the foreign nationality or residence of the defendant would not by itself normally be a weighty factor against the court exercising its jurisdiction under the sections. Conversely, the presence of the defendant in this country, either at the time of the transaction or when proceedings were initiated, will not necessarily mean that he has a sufficient connection with this country in respect of the relief sought against him. His presence might be coincidental and unrelated to the transaction. Or the defendant may be a multinational bank, carrying on business here, but all the dealings in question may have taken place at an overseas branch.
Thus in considering whether there is a sufficient connection with this country the court will look at all the circumstances, including the residence and place of business of the defendant, his connection with the insolvent, the nature and purpose of the transaction being impugned, the nature and locality of the property involved, the circumstances in which the defendant became involved in the transaction or received a benefit from it or acquired the property in question, whether the defendant acted in good faith, and whether under any relevant foreign law the defendant acquired an unimpeachable title free from any claims even if the insolvent had been adjudged bankrupt or wound up locally. The importance to be attached to these factors will vary from case to case. By taking into account and weighing these and any other relevant circumstances, the court will ensure that it does not seek to exercise oppressively or unreasonably the very wide jurisdiction conferred by the sections."
- I particularly note from the foregoing that Sir Donald Nicholls regarded no one factor as decisive. Each case will turn on its own facts with the weight to be given to connecting factors or their absence dependent on their real significance having regard to the overall situation. In Jyske Bank (Gibralta) Limited v Spjeldnaes [1999] 2 BCLC 101 Evans-Lombe J, whose experience in this field is very considerable, exercised the jurisdiction even though as he expressly recognised there were present none of the sort of connections with England which the Vice Chancellor had set out.
- In my judgment there is here an amply sufficient connection to justify the court in exercising the jurisdiction. The excess policy is governed by English law and was placed in the London market. It contains an exclusive jurisdiction clause in these terms:
"This insurance shall be governed by and construed in accordance with the laws of England and Wales and the exclusive jurisdiction of English courts."
In Beazley v Horizon Offshore Contractors Inc [2005] ILPr 123 Judge Chambers QC regarded an indistinguishable provision as extending to all disputes in respect of the insurance, including a claim in tort alleging negligence by the underwriters in failing to use reasonable care in their dealings with the insured's claim under the policy. It is therefore arguable that underwriters were in fact required to bring proceedings before this court, and might be restrained if they attempted to bring equivalent proceedings, assuming them to be available, in the other jurisdictions suggested to be relevant, the Netherlands, Thailand and Nigeria. It is also relevant to note (i) that Boskalis had before these proceedings were brought already invoked this jurisdiction in order to pursue its claim for interest and/or damages (although it had of course no choice of forum if it wished to pursue the claim) and (ii) that the sale to Nigerian Westminster was expressly intended to thwart these proceedings, both in terms of the claim to interlocutory relief made herein and in respect of the ultimate substantive relief sought.
- I find it difficult to accept that the place of incorporation of the buyer Nigerian Westminster should be accorded any weight whatsoever. Nigerian Westminster was deliberately chosen by Boskalis in order to create difficulties. In other words the lack of connection of the purchaser with England was an integral part of the very scheme which it is the purpose of these proceedings to unscramble. For good measure a purchaser was chosen whose place of incorporation happened to be in a country whose legal system was thought by Boskalis to be likely to represent a significant impediment to underwriters being able to enforce their rights against the purchaser in its home jurisdiction. Moreover, focus upon the position of Nigerian Westminster exposes the fundamental paradox in the approach of Boskalis to this entire litigation. Boskalis relies upon the separate corporate personality of Nigerian Westminster in order to insulate it, or to attempt to insulate it, from the knowledge of Boskalis as to underwriters' contractual entitlement to assume ownership of the vessel. Yet at the same time Boskalis relies upon the group structure and the parent company guarantee, as effectively its offer made through Messrs Nabarro is, to suggest that underwriters have not been prejudiced by what has been done. It is difficult to understand how in these circumstances the interests of Nigerian Westminster can in reality be divorced from those of the Boskalis group as a whole and still more difficult to understand how the fact that the purchaser selected by the parent happens to be incorporated in Nigeria can be regarded as detracting from the connection with this jurisdiction of the First Defendant and the Boskalis group as a whole. As it happens, and for what it is worth, Nigerian Westminster had itself agreed to the same exclusive jurisdiction clause in respect of vessels registered in its name insured under the same policies.
- All of the negotiations with underwriters concerning the CTL claim took place in London and were conducted on behalf of Boskalis, when they were not dealing directly, by London market professionals, i.e. Marsh and Messrs Nabarro. The dispute between Boskalis and underwriters has at all times been a dispute concerning the parties' respective rights and entitlement under a contract of marine insurance governed by English law and subject to the provisions of the English Marine Insurance Act.
- There is no other jurisdiction which has a closer connection with the parties and the dispute than does England. The sole connection with the Netherlands is that Boskalis and Westminster International BV are registered there. So too once was the vessel, but it is difficult to see that that can be regarded as too significant a factor bearing in mind the vessel's deletion from the Dutch Registry. The connection with Thailand arises simply because the vessel was towed there in order to escape Chinese jurisdiction in circumstances where she had been salved by Chinese salvors. The connection with Nigeria as I have already pointed out arises because of the choice of Boskalis as part of the scheme to frustrate underwriters' entitlement and to thwart the claim made in this action.
- The Claimants say that any lack of connection with England is of little significance given that there are, in any event, as they submit, similar principles relating to fraudulent dispositions under Dutch, Thai and Nigerian law. Because the connection with these jurisdictions is so tenuous, and the connection with this jurisdiction so strong, I regard this point as of little weight even if it is well-founded. Accordingly I do not propose to over-extend an already long judgment by exhaustive analysis of the position so far as it obtains under the Dutch, Thai and Nigerian legal systems. I will deal with the position under each as shortly as I can.
Dutch law
- I set out below certain relevant provisions of the Dutch Civil Code:
"Article 11
Where the good faith of a person is required to give legal effect to something, such person does not act in good faith if he knew, or ought, in the circumstances, to have known, of the facts or the law to which his good faith must relate. The impossibility to make enquiries does not prevent a person with good reason to be in doubt from being deemed to know the facts or the law.
…
Article 40
1. A juridical act which by its content or necessary implication is contrary to good morals or public policy is a nullity.
…
Article 45
2. If an obligor, in the performance of a juridical act to which he is not obligated, knew or ought to have known that this would adversely affect the possibility of recourse of one or more of his obligees, the juridical act may be annulled; any obligee whose possibility of recourse has been adversely affected by the juridical act may invoke this ground for annulment, irrespective of whether his claim arose before or after the act.
3. Save for acts by gratuitous title, a juridical act, either multilateral or unilateral and directed at one or more specific persons, can only be annulled because of prejudice to an obligee, if those persons with whom or in respect of whom the obligor performed the juridical act knew or ought to have known that prejudice to one or more obligees would result from it.
4. Where a juridical act by gratuitous title is annulled because of prejudice, the annulment has no effect against a beneficiary who neither knew nor ought to have known that prejudice to one or more obligees would be the result of the juridical act, but only to the extent that he shows that, at the time of the declaration or institution of the annulment action, he did not derive benefit from the juridical act.
5. An obligee attacking a juridical act as being prejudicial to him, can only annul the act on his own behalf and no further than necessary to remove the prejudice to himself.
6. Rights in property, the subject of an annulled juridical act acquired by third parties in good faith, other than by gratuitous title, shall be respected. A third party acting in good faith who has acquired property by gratuitous title shall not be affected by the annulment to the extent that he shows that, at the time the property is claimed from him, he did not benefit from the juridical act."
- The Dutch law experts disagreed on only a few matters concerning the applicability of these Articles. I deal with Article 45 first as it is the more commonly resorted to in commercial matters. In fact the disagreement concerning Article 45 was not really between the Dutch lawyers at all. It is common ground that pursuant to Dutch domestic law Boskalis and underwriters would not for relevant purposes be regarded as obligor and obligee because Dutch law does not invest underwriters who have paid for a CTL with a right to elect to take over the wreck. In Dutch law underwriters are simply subrogated to the insured's rights against third parties. However it is common ground that pursuant to its private international law rules Dutch law will give effect to an express contractual choice of a foreign law, which is of course unsurprising given Dutch adherence to the Rome Convention. It is common ground therefore that a Dutch court would, giving effect to the choice of law, regard Boskalis and the underwriters as obligor and obligee, having regard to the obligation on Boskalis as insured to transfer title to underwriters in order to give effect to underwriters' entitlement under section 79 of the MIA 1906. Mr Weitzman argues that this approach is impermissible because it involves a forbidden renvoi. With respect to Mr Weitzman, this point is misconceived. In this exercise I am not concerned at all with the English rules of private international law. I am not giving effect to Dutch rules of private international law. I am simply concerned in this exercise to discover whether there is available in the Netherlands a jurisdiction similar in effect to section 423 of the Insolvency Act 1986. The doctrine of renvoi does not come into play.
- It is accepted that the sale between Westminster International and Nigerian Westminster was a juridical act. The experts were divided on the question whether for the purposes of Article 45 €1,000 would be regarded as rendering the act one by gratuitous title. On this point I preferred the evidence of Mr Spanjaart for the Claimants to that of Mr Wiersma for Boskalis. Mr Spanjaart cited in support of his view that this sale was by gratuitous title passages from two reputable Dutch textbooks Reehuis/Heisterkamp, Goederenrecht, and Snijders/Rank Berenschot, Goederenrecht. At pages 140 and 317 respectively of these works is to be found the following passages:
"A sale against the symbolic amount of 1 guilder is to be qualified as a transfer by gratuitous title. With a sale against a price of 50% of the open market value, it is difficult to qualify this as an acquisition by gratuitous title. A price of 50% below the open market value can of course play an important role when discussing good faith."
"However, who buys a wonderful Bösendorfer piano from a friend for the mere amount of €10, may, other than he might have thought, not count on the court to protect him: almost gratuitous is also gratuitous."
Mr Wiersma explained that his disagreement with Mr Spanjaart and the two textbooks, apparently the only places in Dutch legal literature where this point is addressed, did not rest upon any question of the proper translation to be given to the relevant Dutch words. The only real point which he was able to make was to draw a contrast with Article 46. Article 46 deals with presumptions, and stipulates that a presumption of knowledge of prejudice to the obligee will be made where an obligor contracts on terms whereby the value of the obligation on the part of the obligor considerably exceeds that of the counter-obligation. Whilst obviously one value considerably exceeding another is a different concept, this tells one little about the proper approach to the different expressions used in Articles 45 and 86. Article 86 deals with the circumstances in which an alienator who lacks the right to dispose of property may nonetheless confer good title on a purchaser if the transfer is not by gratuitous title and the acquirer acts in good faith. The same words are used for the concept of gratuitous title and it is common ground between the experts that the expressions must bear the same meaning in both Articles of the Dutch Civil Code. As it happens the passages from the two Dutch textbooks which I have cited above were dealing with the meaning of the words in the context of Article 86.
- Finally the experts were at odds over whether the transaction here adversely affected the possibility of recourse of underwriters. The experts were agreed that recourse here means financial recourse. However the argument that underwriters' possibility of financial recourse has not been adversely affected because Boskalis was at all times willing to pay the Claimants the market value of the vessel is an argument which I have already rejected in the English law context.
- It follows that I consider that underwriters could in Holland avail themselves of an actio Pauliana, as the action under Article 45 is known in deference to its Roman law origins, in order to seek annulment of the sale.
- Article 45.5 of the Dutch Civil Code provides that rights acquired by a third party in good faith are respected where title has been acquired gratuitously if it is shown that, at the time the property is claimed, the third party did not benefit from the juridical act. I did not understand the Fourth Defendant or Boskalis to controvert the proposition that Nigerian Westminster is not entitled to the benefit of Article 45.5 because it obtained an obvious benefit from the transfer of ownership of the vessel to it. In any event, it is again as I understand it common ground that pursuant to Article 11 of the Dutch Civil Code Nigerian Westminster was under a duty to make appropriate and adequate enquiries before entering into the transfer. It is also common ground that as the Claimants have sought to annul the transfer within one year of it being entered into, a presumption arises that both Boskalis and Nigerian Westminster knew or ought to have known that the transfer would prejudice the Claimants. This presumption arises because Boskalis accepts that the matters identified as giving rise to such a presumption in Articles 46.1(1), 46.1(5)(d) and 46.1(6) apply in the present case. In summary, the transfer was at an undervalue, Boskalis holds more than half of the issued share capital of both the First Defendant and Nigerian Westminster, and the transfer was agreed between group companies. Boskalis argues that the presumption is here rebutted because the transfer did not in fact cause prejudice to the Claimants and because in any event any such presumption is rebutted on the facts of this case in particular by Boskalis' offer to pay to the Claimants the open market value of the vessel and Boskalis' belief that that offer would ensure that the Claimants would not suffer any financial detriment. I have already rejected these last two arguments in the English law context.
- Finally it was agreed that a claim to annul under Article 40.1 might in principle proceed even where the actio Pauliana is unavailable. Article 40 is not an article of the Dutch Civil Code to which resort is often had, particularly in commercial matters, and I find it difficult to conceive in the present case that an application under Article 40.1 could succeed in circumstances where an application under Article 45 had failed. In fact it was agreed that if:
i) Westminster International were here found by the Dutch court to have been deliberately intending to hinder the legitimate exercise of rights by underwriters, even rights which do not arise in Dutch domestic law, and
ii) if Nigerian Westminster were held by the Dutch court to have been acting in bad faith, because there were elements of the transaction to put them on suspicion as to what Westminster International was trying to achieve and they made no enquiries but simply agreed to the contract,
then both parties would fall within the scope of Article 40.1. However in such circumstances the action under Article 45 would inevitably succeed, and I find it unnecessary to discuss further what would evidently be a rare resort to Article 40.1 which would raise difficult questions as to the precise ambit of Dutch good morals and Dutch public policy.
Thai law
- Sections 237 and 238 of the TCCC provide:
"237. The creditor is entitled to claim cancellation by the Court of any juristic act done by the debtor with knowledge that it would prejudice his creditor; but this does not apply if the person enriched by such act did not know, at the time of the act, of the facts which would make it prejudicial to the creditor, provided, however, that in case of a gratuitous act the knowledge on the part of the debtor alone is sufficient.
The provisions of the foregoing paragraph do not apply to a juristic act whose subject is not a property right.
238. The cancellation under the foregoing section cannot affect the right of a third person acquired in good faith.
The foregoing paragraph does not apply if the right is acquired gratuitously."
It was common ground between the Thai lawyers that in Thai law:
i) Boskalis and underwriters were debtor and creditor in the relevant sense, at any rate in so far as concerns those underwriters who had exercised their election under section 79(1) of the MIA before the transfer. There are apparently two schools of thought in Thailand as to whether in respect of those underwriters who had not prior to the transfer exercised their election the relevant relationship would exist – Mr Chamnian favoured the view that it would not;
ii) The transfer was a juristic act; and
iii) The acquisition of the vessel by Nigerian Westminster would not be regarded as gratuitous.
The availability of the remedy of cancellation is therefore dependent upon the approach of the Thai court to questions of good faith and knowledge.
- There was considerable debate on these topics. I was unpersuaded that good faith in Thai law is any different from good faith in English law. It implies an absence of dishonesty. It is consistent with carelessness but not with recklessness. I was not persuaded by Mr Wutipong's suggestion that good faith in Thai law is incompatible with prejudice to the creditor which the third party could reasonably have discovered. Apart from being unsupported in authority or literature, it was inconsistent with his acceptance that carelessness does not preclude good faith.
- I am not sure that the relationship between sections 237 and 238 was explored. The experts were apparently agreed that knowledge in section 237 means actual knowledge. However Professor Sopon in his "Explanation of the Commercial and Civil Code with regards to 'Debt'" seems to suggest that there may be cases in which the relationship between the debtor and the person acquiring benefit is so close that the court regards as actual knowledge that which "should have been known". The investigation of this point at trial was somewhat superficial, without reference to the details of the Supreme Court judgment cited by Professor Sopon in his commentary. I was left with the impression that application of both sections 237 and 238 is intensely fact sensitive, and that it could not be ruled out that in the present case a Thai court might regard the transaction as potentially capable of cancellation under section 237. Mr Chamnian described the line between "know" and "don't know" as in such cases occupying something of a grey area.
- I do not need to discuss further the likely approach of the Thai court to an application under section 237 because it has not been established that the Thai court would have jurisdiction to entertain a claim brought under that section by underwriters to cancel the sale. This question was dealt with in the evidence in a most unsatisfactory manner. Neither expert had been asked to address it in his report. Mr Wutipong was not asked about it in his evidence in chief. In cross-examination he was first asked about the jurisdiction of the Thai court in the different context of an attempt by underwriters to enforce in Thailand a judgment obtained from the English court. However after first mistakenly relying upon a provision of the Thai Civil Procedure Code section 4 bis, which deals with immoveable property, he accepted that the Thai court would not have jurisdiction to entertain any claim brought by the underwriters against the Defendants, they not being domiciled in Thailand and the case not concerning immoveable property located in Thailand. In re-examination he was reminded of the basic allocation of jurisdiction prescribed by section 4(1) of the Civil Procedure Code which provides:
"The plaints shall be submitted to the Court within the territorial jurisdiction of which the defendant is domiciled or to the Court within the territorial jurisdiction of which the cause of action arose, whether the defendant shall have domicile within the Kingdom or not."
Mr Wutipong was invited to agree with the proposition that if the cause of action arose within the jurisdiction of the Thai court that would be sufficient to found jurisdiction in that court. Unsurprisingly he did. He was not however asked whether in Thai law underwriters would be regarded as having a cause of action against the Defendants which had arisen in Thailand. Mr Chamnian confirmed in his evidence in chief that in Thai law the circumstance that the vessel had been at all material times in Thailand has no relevance to the determination where underwriters' cause of action against Boskalis or Nigerian Westminster arose. His view was not challenged in cross-examination. However at the very end of his cross-examination his attention was drawn to Article 4 sex of the Civil Procedure Code which provides:
"The request concerning the property situated within the Kingdom, or the request, provided that the Court shall issue order according to such request, it will result a procurance or an dismissal of procurance of the property to be situated within the Kingdom, which the cause of action does not arise within the Kingdom and the applicant is not domiciled within the Kingdom, shall be submitted to the Court within the territorial jurisdiction of which the aforesaid property is situated."
Evidently this provision is as impenetrable in the Thai language as it is in English translation. It had plainly not hitherto occurred to anyone to regard this provision as of any relevance. Given the manner in which Mr Wutipong's evidence emerged, I cannot regard him as being necessarily the author of the suggestion that this section might be of relevance to the jurisdiction of the Thai court. Furthermore if the section simply confers jurisdiction in respect of actions concerning property within the jurisdiction then it is odd that section 4 bis should be restricted to immoveable property. Mr Chamnian, who I have already described as a careful and convincing witness, did not know what in this context was meant by "the request" or pursuant to what provision of law it might be made. He did not consider that it related to a straightforward dispute between a plaintiff and a defendant. He was however unsure what kind of process was envisaged. Had this section had the far-reaching significance which the Claimants now attribute to it, it seems to me inconceivable that one or other of the Thai lawyers, including those who were assisting but not giving evidence, would not earlier have mentioned it. Mr Chamnian was asked whether this section would permit a person to make a claim to take possession of the ship, but as Mr Gaisman points out that is not the right question. The right question is whether the court would entertain a claim brought by underwriters under section 237 to cancel the sale by Westminster International to Nigerian Westminster. I am far from persuaded that it would.
Nigerian law
- There is no Nigerian federal legislation affording a relevant remedy. However section 32(1) of the Federal Interpretation Act 2004 provides:
"Subject to the provisions of this section and except insofar as other provision is made by any Federal law, the common law of England and the doctrines of equity, together with the statutes of general application that were in force in England on the first day of January, 1900, shall, insofar as they relate to any matter within the legislative competence of the Federal legislature, be in force in Nigeria."
It is suggested by the Claimants that pursuant to this provision the Elizabethan Act of 1571 Against Fraudulent Deeds, Gifts and Alienations has the force of law in Nigeria. That Act was repealed in England in 1924. It is unnecessary to set out the terms of the 1571 Act in extenso. It is written in the language of the time. Broadly, it renders void fraudulent transfers which have as their purpose the hindering or defrauding of creditors. Transfers for good consideration made to a bona fide purchaser without knowledge of the fraud or collusion with the fraudster are exempt.
- Of the conditions prescribed by the Interpretation Act 2004 which must be met before an English statute will be given the force of law in Nigeria, only three are in dispute. Mr Gaisman submits that:
i) The 1571 Act is only applicable insofar as it relates to bankruptcy and insolvency. It does not relate to any other matter within the Federal competence.
ii) To the extent that the 1571 Act relates to bankruptcy and insolvency, it is not applicable, as other provision is made by Federal law, specifically, by The Companies and Allied Matters Act and The Bankruptcy Act.
iii) The 1571 Act is not in any event a "statute of general application".
- Matters within the Federal legislative competence are listed in Parts 1 and 2 of the Second Schedule to the Constitution of the Federal Republic of Nigeria 1999. The only potentially relevant provisions appear within the Exclusive Legislative List in Part 1. They are Item 5 bankruptcy and insolvency and Item 68, any matter incidental or supplementary to any matter mentioned elsewhere in this list.
- In so far as the 1571 Act relates to bankruptcy and insolvency, Mr Gaisman concedes that it falls within the Federal legislative competence. It is plain from the wording of section 32(1) that an English statute can, and indeed must, be given effect only in so far as it relates to a matter within the Federal legislative competence. Contrary to the suggestion of the Claimants' expert witness Mr Achukwu, partial importation of a statute is inherent in the legislation giving force in Nigeria to English statutes.
- Dealing with fraudulent dispositions is brought within the Federal legislative competency by Item 68 only in so far as it is incidental or supplementary to another matter mentioned in the list. Thus insofar as the 1571 Act applies to fraudulent dispositions in the context of bankruptcy and insolvency, it satisfies the statutory condition so far as concerns Federal legislative competence.
- However in the field just mentioned the Nigerian National Assembly has made "other provision" in the shape of the Companies and Allied Matters Act and the Bankruptcy Act. The former Act deals with fraudulent preference, the latter with preferences by an insolvent. There is therefore no scope for the application in Nigeria of the 1571 Act in bankruptcy and insolvency.
- Mr Gaisman does not accept that the 1571 Act extends to fraudulent disposition by a solvent company. However insofar as it does, it deals with a matter going beyond the Federal legislative competence.
- In these circumstances the question whether the 1571 Act is a statute of general application does not arise. In 1938 in Bafunke Braithwaite v Folarin the West Africa Court of Appeal decided that the 1571 Act was a statute of general application within the meaning of section 14 of the then Supreme Court Ordinance, which although containing that concept was in different terms from section 32 of the Interpretation Act 2004, necessarily so because of course it preceded independence. The Supreme Court of Nigeria is not bound by decisions of the West Africa Court of Appeal.
- In Lawal v Ejidike [1997] 2 NWLR 317 at 332 Tobi JCA said in the Court of Appeal Kaduna Division:
"It is common knowledge that some of the so-called statutes of general application in England have been either abrogated or abolished. In such a situation, it will be ridiculous for courts in Nigeria to enforce such statutes in the name and style of statutes of general application on the first day of January 1900. With the death of the statute in England, there will be no legal tests for its continuous application in Nigeria."
In that case the English 1623 Limitation Act was by concession held applicable.
- Nine years later in Chigbu v Tonimas [2006] 9 NWLR 189 at 213 the same judge, now Tobi JSC said this in the Supreme Court:
"Much as I appreciate the colonial tie between England and Nigeria, it will seriously hamper and compromise our sovereignty if we continue to go on a borrowing 'spree', if I may so unguardedly call it, to England for the laws of that country without any justifiable reason. Nigeria is Nigeria and England is England. Statutes of England cannot apply to Nigeria as a matter of course, even the so-called statutes of general application.
Section 45 of the Interpretation Act, Laws of the Federation and Lagos, 1958 provided that the statutes of general application that were in force in England on the first day of January, 1900 shall be in force in the Federation. By this nebulous provision, a number of English statutes were held to be applicable in Nigeria as statutes of general application by the courts. From the state of the case law, the approach of the courts has not been consistent. The courts have not found it quite easy to determine what is a statute of general application and what is not. And so, what amounts to a statute of general application is still a vexed juridical problem in our jurisprudence, as the courts do not successfully apply a single criterion or sets of criteria across the board. The issue is, therefore, largely taken on the particular merits of the case before the court."
- In both Raleigh Industries v Nwaiwu [1994] 4 NWLR 761 and Sofolahan v Fowler [2002] 14 NWLR 664 repealed English statutes were given effect, although in the second case it was not drawn to the attention of the court that the Charitable Trust Act 1853 had been repealed. The earlier case again concerned the Act of Limitations 1623.
- Although the question does not arise, I entertain grave doubt whether the Supreme Court would today give effect in Nigeria to the 1571 Act. There is undoubtedly a growing aversion to the application in Nigeria of antiquated English statutes, particularly those which have long since ceased to have any application in England. Times and circumstances have changed. This was the view of the Nigerian law expert witness called by the Boskalis interests, Mr Azikiwe, and I accept it, not least because it accords with the approach of one highly respected member of the Supreme Court and it is in any event, if I may respectfully say so, exactly the approach which one would naturally expect of an evolving independent legal system as the attainment of independence recedes. I found surprising the insistence of Mr Achukwu, the Nigerian law expert called by the Claimants, that there is not even a school of thought in Nigeria as to the inappropriateness of enforcing in Nigeria statutes since repealed in England. There were in fact a number of points on which I found the evidence of Mr Achukwu surprising, in particular his initial insistence that section 32 of the Interpretation Act require consideration of the subject matter of the claim rather than of the English statute sought to be given effect, and his attempt, not ultimately adopted by the Claimants, to suggest that Item 36 of the Exclusive Legislative List, "Maritime Shipping and Navigation", rendered the 1571 Act applicable in Nigeria in relation to ships but not in relation to other property. It follows that I find Mr Azikiwe the more reliable of the two witnesses. I think it unlikely that in modern conditions the Nigerian Court would attempt the difficult task of assimilating into Nigerian law the archaic language of the 1571 Act. I do not accept the Claimants' argument that not to apply the law of 1571 would leave a serious gap in the law of Nigeria. It is true that in Lawal v Younan [1961] ANLR 257 at 268 Brett FJ in the Supreme Court spoke of the "grave inconvenience [which] would follow" if the English statutes which had hitherto been applied were henceforth held inapplicable. That however was nearly fifty years ago in the second year of independence. Moreover dealing with fraudulent dispositions in a context other than insolvency falls within the legislative competence of the individual states. In circumstances where it is contentious whether contemporary English legislation covers the field, it ill behoves an English judge to determine whether Nigerian legislation is deficient if it does not.
- It remains only to consider how the discretion under section 423 should be exercised. This involves an examination of all the circumstances, including those set out by Sir Donald Nicholls VC in Re Paramount at page 240. In my judgment the case for an order protecting the interests of underwriters is overwhelming. The connection with England is strong. With the possible exception of the Netherlands, where the Boskalis group is incorporated, the connection with all other jurisdictions is tenuous. As it happens there is available in Holland a similar remedy, but it would be wasteful of costs and productive of delay to require underwriters to proceed there. This is a dispute about an English marine insurance policy and the effect of an English statutory incident of such a policy. Policies of marine insurance governed by English law are in wide use throughout the world. It is appropriate that the English court should deal with the dispute. Although bound to do so if they wish to make the claim, Boskalis has itself invoked the jurisdiction of the English court in respect of its claim for interest and/or damages arising out of the delay in payment of the CTL, that payment being the circumstance which gives to underwriters the contractual entitlement which by this action they now seek to protect. There is no significant disadvantage to either the First or the Fourth Defendant or indeed to the Boskalis group in participating in proceedings in this court. Whilst any order which the court makes would not be capable of direct enforcement in Thailand that is probably of little moment given that instructions with regard to the disposition of the vessel emanate ultimately from Holland, as was vividly demonstrated by the fact that Nigerian Westminster was presented with a fait accompli. In any event, I naturally assume that the Defendants will comply with any order of this court.
- The impugned sale was concluded in the face of an application for an injunction in these proceedings which, if granted, would have enjoined the First Defendants from carrying out the sale. The purpose of the sale was to prevent the Claimants obtaining the relief claimed in these proceedings. Boskalis knew that the majority of underwriters arguably already had the entitlement claimed and that in the likely event that the rest of the subscribing underwriters exercised their election it was at the least probable that the subscribing underwriters as a whole would have the right to take over the vessel and sell her on the open market. Hence the speed with which and the secrecy in which the transaction was effected. The offer by Boskalis to pay to the underwriters the value of the vessel to be ascertained other than by sale is irrelevant. Boskalis knew that the entitlement which underwriters were asserting was to sell the vessel. Just as they knew that an open market sale could prejudice their own interests, so they knew that inability to carry out an open market sale could prejudice underwriters' interests.
- The sale divested the First Defendant of its only substantive asset. Transfer of possession was effected symbolically by protocol of delivery and acceptance concluded with an affiliate company. The sale was not on terms which would be normal in an arms' length sale and the consideration, €1,000, was purely symbolic. As I have already explained I consider that the knowledge of the officers of Nigerian Westminster as to the background is of little relevance to the overall exercise of discretion. The transaction was ordained by Boskalis. The officers of Nigerian Westminster acted without enquiry because they assumed, rightly, that the decision to enter into the transaction was not their responsibility and had been made elsewhere. Mr Slinger did not even read the documents which he signed and did not appreciate their effect. He signed them solely because his co-signatory was his immediate superior within the Boskalis group and because Mr Bus, responsible for insurance matters within the Boskalis group, asked him to do so. To describe Nigerian Westminster as having, by its officers, acted in good faith, if that is appropriate, in the circumstances adds little to the analysis. Nigerian Westminster has no independent interest in retention of the vessel and will undoubtedly, unless restrained, simply dispose of it in accordance with instructions from its ultimate parent.
- An order under section 423 is the only manner in which effect can be given to the underwriters' contractual entitlement. I propose therefore to make such an order requiring the Fourth Defendant to transfer the vessel to the Claimants' nominee, with a view to her sale, but as agreed at the hearing I will hear counsel further on the precise form of the order. In particular I understand the parties to have had discussions concerning the suitability of the nominee arrangements which underwriters first proposed. Furthermore, it was as I understand it common ground that the court has the power under section 423 to order sale of the vessel and to prescribe the method thereof. Again however the parties were agreed that it would be appropriate to permit further argument on this aspect too.
- I am grateful to the parties and to their legal advisers for the exceptional assistance which I have received in dealing with this expedited but complex trial.
