ST Shipping And Transport Pte Ltd v Space Shipping Ltd

This is a further arbitration appeal arising out of the detention of the vessel CV STEALTH (“the Vessel”) at Puerto La Cruz on 19 September 2014 by order of a Venezuelan Court, where she was waiting to load cargo pursuant to an order dated 4 September 2014 (“the employment order”) given by the Claimant in action CL-2017-388 (“the charterers”) to the Defendant in action CL-2017-388 (“the disponent owners”) pursuant to a charterparty dated 10 April 2014 on an amended Shelltime 4 form. The Vessel remains there to this day.

The charterers and disponent owners each wish to appeal different aspects of a Fourth Partial Final Award dated 25 May 2017.

By his First Partial Final Award dated 23 September 2015, the Arbitrator determined that the charterers were liable to the disponent owners for the financial consequences of the detention up to 21 July 2015, which was the date to which the disponent owners had at that stage calculated their claim for trading losses as damages, pursuant to an express indemnity under clause 13 of the charter and as damages for breach of clause 28. The charterers unsuccessfully sought to appeal that award. In my judgment of 20 April 2016 ([2016] EWHC 880 (Comm), [2016] 2 Lloyd’s Reports 17) I upheld the Arbitrator’s finding that the employment order was the effective cause, or at least an effective cause, of the detention of the Vessel up to and including 21 July 2015, as a finding of fact which was open to the Arbitrator and not open to challenge on appeal.

By a Second Partial Final Award dated 8 August 2016, the Arbitrator addressed a claim by the disponent owners for (a) trading losses between 21 July 2015 and 23 September 2015 and (b) expenses consequent upon detention up to that date. He rejected the claim for trading losses on the grounds that the disponent owners would have redelivered the Vessel to her registered owners under the 5 year bareboat head charter on 22 July 2015, so that she would not have been available to the disponent owners for trading thereafter. He identified some $800,000 of expenses incurred which he held were recoverable in principle, thereby implicitly finding that the employment order was an effective cause of the detention up to 23 September 2015. However he declined to make a monetary award of that or any sum, on the grounds that the costs of drydocking, which the disponent owners would have had to incur on or about 27 June 2015 under the terms of the head bareboat charter, and which he estimated provisionally at $1.4 million, constituted a saving which might have to be given credit for. At that stage there was an unresolved issue in the head charter arbitration whether the head charter had become frustrated prior to June 2015; and an unresolved issue whether the Vessel had been validly abandoned to underwriters as a CTL. If either of those arguments succeeded, the disponent owners would never have to pay the drydocking costs and they would be permanently saved, and would or at least might fall to be deducted from their otherwise recoverable loss.

By his Fourth Partial Award dated 25 May 2017, the Arbitrator had to consider the disponent owners’ claims for continuing loss comprising (a) $4,374,378.12 being hire payable to the head owners under the bareboat charter (it having been determined in the head charter arbitration that that charter had not been frustrated) for the period from 22 July 2015 to August 2016; and (b) $3,531,990.53 in respect of expenses of detention for the period between 22 July 2015 and 31 March 2017. He was asked to revisit his deduction of a provisional credit of $1.4 million for potentially saved drydocking costs. He held that the Vessel was not a CTL, that the employment order was still causative of the disponent owners’ losses up to 31 March 2017 and that the disponent owners were entitled to (a) the head charter hire claimed (b) the July 2015 to March 2017 expenses, subject to adjustments and (c) the pre-July 2015 expenses covered by the Second Partial Final Award. He further held that it was still appropriate to set a provisional credit of $1.4 million for saved drydocking expenses against (a), (b) and (c) (as I read paragraph 53 of the Award).

The charterers now seek to challenge the finding of causation in relation to losses after July 2015 by an appeal pursuant to s.69 of the Arbitration Act 1996. They contend that no permission is required because of the terms of clause 41 of the charterparty, but that it should be granted if necessary: see my discussion of the effect of the clause at paragraphs [37] to [44] of my earlier judgment.

The disponent owners seek to challenge the deduction of $1.4 million for potentially saved drydocking expenses by a s.69 appeal, also contending that that no permission is required because of the terms of clause 41 of the charterparty, but that it should be granted if necessary.

The charterers argue that the Arbitrator failed to ask himself the correct question of law when it came to determining causation of the continued detention of the Vessel. The argument is essentially as follows. The correct question was whether the employment order continued to be an effective cause of the detention of the Vessel, or whether, as the charterers argued, the sole effective cause of that detention eventually became the intractable and perverse refusal of the Venezuelan courts to order the release of the vessel as required by Venezuelan law. The Arbitrator erroneously asked and answered only the question whether anything had changed. He concluded that it had not, because what had happened since 21 July 2015 was more of the same, so that the findings of causation in that first award still applied.

It is not necessary to set out the facts at length. The background to the detention can be taken from paragraphs [1] to [20] of my earlier judgment which were themselves taken from the findings in the First Partial Final Award.

So far as concerns the course of the Venezuelan proceedings, the history recorded in the First Partial Final Award was as follows.

On 19 September 2014, pursuant to a request by the Regional Prosecutor, the Sixth Court made a “pre-precautionary or unnamed order” prohibiting the Vessel from sailing from Puerto La Cruz. The prohibitive measure was a precautionary measure pending and to assist in the investigation into Mr Barbosa’s alleged crimes. Mr Barbosa was subsequently charged with several criminal offences including the forgery of an authorisation purporting to come from PDVSA and with attempting to export cargo without the necessary authorisation of PDVSA.

On 24 October 2014 the disponent owners made an application for the Prosecutor to evaluate the evidence, to conclude that the disponent owners had no involvement in the crimes of which Mr Barbosa was accused, and to permit the repatriation of the crew. That application was, it appears, never determined.

As a matter of Venezuelan criminal procedure, after a period of investigation, the Prosecutor conducting the investigation is required to publish a “Conclusive Act” detailing what evidence has been reviewed, the Prosecutor’s conclusion as to whether persons should be prosecuted, and if so, in respect of which crimes. On 30 October 2014 the Regional Prosecutor conducting the investigation into the forged PDVSA authorisation published his Conclusive Act. While the Conclusive Act makes various allegations against Mr Barbosa and other Venezuelan individuals who are said to have cooperated with him, it makes no allegations against any individuals related to the Vessel, the disponent owners, or the charterers. There has never been any suggestion of any such involvement either by the authorities in Venezuela or between the parties to the arbitration.

In the light of the Conclusive Act, on 7 November 2014 the disponent owners filed a petition to lift the prohibitive measure. This petition was rejected on 12 November 2014. The court’s reasoning appears to have been that the circumstances that led to the imposition of the measure in the first place had not changed, and in circumstances where the Prosecutor had not made an application to lift the order, it would remain in place.

On 11 November 2014 the disponent owners sought to appeal the decision of the Sixth Court to grant the prohibitive measure. The National and Regional Prosecutors lodged their submissions opposing the Owners’ appeal on 23 December 2014. The basis of their opposition appears to have been that the Vessel should be detained in some way to secure the potential imposition of sanctions against Mr Barbosa, since the Vessel had been a means through which he committed the crime.

The charterers also sought the release of the Vessel on 18 December 2014, an application which was rejected on 22 January 2015. The Court’s reasoning, if any, is not recorded in the award.

On 14 January 2015 the Appeal Criminal Court permitted the disponent owners’ appeal against the original order to continue. That appeal remained pending at the date of the First Partial Final Award. It does not appear that it was ever heard.

Meanwhile on 20 November 2014 the disponent owners had filed a third party application (known as a “Terceria” application) seeking the release of the Vessel. The essence of the application was that the disponent owners sought to establish that they were innocent third parties who were adversely affected by an order detaining property in respect of crimes of which they were not accused. The Terceria application was ultimately heard on 29 June 2015. At the hearing the disponent owners’ case was supported by the charterers and was expressly not opposed by the Prosecutor. However, when the Court published its decision on 13 July 2015 it refused to suspend the prohibitive measure in respect of the Vessel. As with the decision of 12 November 2014 discussed above, the Court’s reasoning for rejecting the Terceria application appears to have been that the conditions prevailing at the time of the original prohibitive measure had not changed. Further the mere lack of opposition by the Prosecutor to the disponent owners’ application was insufficient to justify suspending the order: the Prosecutor would have to make an application to lift the detention order. The award recorded that even the Prosecutor was surprised at that outcome.

That was the state of affairs at 21 July 2015 which was the relevant date up to which the Arbitrator was considering the issues in his First Partial Final Award. In the light of those facts, the Arbitrator held at paragraph 76 of the First Partial Final Award that the employment order was the effective cause of the detention of the Vessel continuing up to 21 July 2015, or at least an effective cause. In doing so he identified the relevant test as that dictated by ENE Kos 1 Ltd v Petroleo Brasileiro SA (The Kos)[2012] A.C 164 [2012] 2 Lloyds Reports 292, namely whether the employment order was an effective cause of the detention.

The subsequent stages before the Venezuelan courts were recorded in the Fourth Partial Final Award as follows. On 16 February 2016 an application on behalf of the disponent owners and the charterers seeking the release of the Vessel was addressed to the Third Trial Court, which was hearing the criminal case against Mr Barbosa, the grounds put forward were that the preparatory and intermediate phases of the proceedings against Mr Barbosa were concluded, the proceedings now being at the trial phase, and a measure to replace custody had been issued for the only accused person (presumably Mr Barbosa); all preliminary procedures for the trial stage had been performed, suggesting that it was not necessary to hold the Vessel in order to carry out the key activities in the investigation; neither party nor anyone connected with the Vessel was subject to investigation; PDVSA had not shown any interest in retaining the Vessel, and since the Prosecutor had first stated its lack of opposition to releasing the Vessel, no other legal proceedings had been taken against her or anyone in any way related to her, which confirmed that there was no reason justifying holding her. It seems that a similar application was made on behalf of the disponent owners on 26 February 2016. Further submissions on behalf of the charterers and the disponent owners were made on 26 April and 9 May 2016.

On 4 February 2016 the Assistant National Prosecutor against Money Laundering and Financial and Economic Crimes had written to the judge expressly confirming that the Public Prosecutor’s office did not oppose lifting of the prohibitive measure under which the Vessel was detained, and expressly confirming that the Vessel “is not essential to the investigation… in respect of which all of the expert assessments and investigations have been carried out” [translation]. Nevertheless, the judge, in a fairly lengthy judgment, stated that “as two parties claimed to be holders of the property” he “rejected the request to release the Vessel” until reliably determining “to whom the ownership thereof corresponds” [translation].

The evidence of the disponent owners’ lawyer was that this decision was odd, if not crazy, not least because the Court should have realised that the applicant parties were not the actual owners of the Vessel. He thought that the ruling was no more than an excuse for avoiding making a decision for the time being about the release, and he was concerned that if evidence was filed to prove that neither the disponent owners nor the charterers were the registered owners, that might itself be used as an excuse for further delay. Ultimately, however, such evidence was provided to the Court on 19 October 2016.

On 18 October 2016, the day before that, the court in question had asked the Prosecutor to say on what procedural basis he had finalised his investigation, leading him to conclude that the Vessel was no longer necessary for his investigations.

This request proved to give rise to an apparently intractable problem. The charterers’ response was to file an application on 27 October 2016 again seeking release of the Vessel and arguing that the Court should not seek the information requested from the Prosecutor because he had exclusive discretion in the handling of the investigation. The Court, however, decided on 2 November 2016 that it would await the Prosecutor’s reply. That was forthcoming on 23 November 2016 when the Prosecutor simply reiterated that the Vessel was not essential for the investigation and expressly and unequivocally requested her release. On 1 December 2016 the Court issued a further decision insisting on replies to the requests made on 18 October 2016.

Between 22 November 2016 and 14 March 2017, the charterers’ lawyers pursued various steps with the office and, indeed, with the Director of the relevant division of the Prosecutor General’s office, with a view to getting the Prosecutor to provide responses to the Court. Ultimately, at a meeting on 21 March 2017, prior to which the charterers’ lawyers had provided the Director with a draft of what it was hoped would be given to the Court, the Director, in the words of the charterers’ lawyers’ statement, “indicated that he would not expose [the Prosecutor] to be seen as having an interest in the case by filing so many requests to clear the Vessel from sailing, and that it was not the responsibility of the Prosecutor General’s Office that the Court was making such unreasonable requests”.

Meanwhile what had been happening in relation to the Terceria application was that an appeal against the refusal to release the Vessel had been lodged on 20 July 2015. Procedural difficulties meant that the appellate court did not rule until 4 August 2016 when it decided that because the 13 July 2015 decision under appeal was not properly “motivated” (which may mean not properly supported by legal reasoning rather than driven by some improper purpose), the matter should be sent back to a different court. In the event the Third Trial Court took jurisdiction as it was already hearing the main action against Mr Barbosa. It appears that the Court had effectively consolidated these proceedings with those already before it.

That was the state of affairs before the Arbitrator when he came to decide whether the employment order was still causative of the detention in the period up to March 2017.

In reciting the rival arguments, the Arbitrator recorded that the Venezuelan lawyers for both sides agreed that there was no factual or legal basis for the Vessel to remain in detention.

He expressed his reasons and conclusions in paragraphs 28 to 30 of the Fourth Partial Final Award in the following terms:

“28.

…[the charterers’] difficulty on the facts, as I see the position, is that essentially nothing has changed since the first PFA… Most of the matters relied upon as justifying the charterers’ case that it is the judges’ ignoring of Venezuelan law that is causing the detention of CV Stealth were in existence at the time of the award, and nothing appears to have changed in that respect. This was not something that counsel for the charterers acknowledged or grappled with.

29.

When one looks at the chain of causation set out in paragraph 72 of the first PFA which I held to be correct (paragraph 74) and the facts as found in that award, what has happened since in relation to the Venezuelan proceedings and the continuing detention of the Vessel is of a piece with what had occurred up to September 2015. As was said for the Owners in responding to a written submission from the Charterers after the hearing: “… the most that could be said about the evidence on Venezuelan law and its legal system is that it is irrelevant in the light of the charterers’ failure to run or establish any case to the effect that there had been any change in Venezuela or its legal system since the time of the detention of the Vessel or, at any rate, the publication of the Conclusive Act. The net result is that there was nothing about Venezuelan law or its legal system which the charterers could pray in aid to break the chain of causation that had already been established as found in the tribunal’s first award.”

30.

Even if it can be said that the extra delay since the first PFA, and perhaps some extra unusual behaviour on the part of the Venezuelan judges that can be discerned, are of any relevance, such factors are not sufficient to obliterate the original cause of the detention. Although they may be wrong as a matter of Venezuelan law, the judges’ later decisions have been consistent with those that went before.”

There was little dispute between the parties as to the relevant legal test of causation. The issue in the charterers’ appeal is simply whether the Arbitrator has applied a different one. In particular:

In the context of causation the boundary between appealable issues of law and unappealable findings of fact is also governed by well-established principles:

There is no room for any application of the principle in (4) in this case. Mr Southern QC does not contend that the Arbitrator would necessarily have reached the opposite conclusion had he applied the correct test, but merely that he might have done.

The essence of his submission was that the Arbitrator had applied as a legal test of causation the question whether anything had changed since the first PFA and that this was not the correct question. The Arbitrator concluded that it had not, because what had happened since 21 July 2015 was more of the same, so that the findings of causation in that first award still applied. This was an error of law because it was necessary to consider the cumulative effect of intervening unreasonable acts when considering whether those unreasonable acts have broken the chain of causation. While one or two incorrect or even surprising decisions over a period of a few months might not break the chain of causation, several more increasingly perverse judgments and orders over a period of years might do so. The cumulative effect of a series of unreasonable actions, even if similar in nature, can eventually break the chain of causation, even if the first one or few do not. Had the arbitrator asked himself the correct question he would, or might, have reached a different conclusion, and so the matter must be remitted to him.

I remind myself of the principles governing the approach to the reading of awards summarised by Teare J in Pace Shipping Co Ltd v Churchgate Nigeria Ltd (The “PACE”) [2010] 1 Lloyds’ Reports 183 at paragraph 15, including the oft cited dictum of Bingham J as he then was in Zermalt Holdings SA v Nu-Life Upholstery repairs Ltd [1985] 2 EGLR 14 that the courts do not approach awards “with a meticulous legal eye endeavouring to pick holes, inconsistencies and faults in awards with the object of upsetting or frustrating the process of arbitration”.

Despite Mr Southern’s forensic skill in parsing the language of the Fourth Partial Final Award, there is no warrant for treating this very experienced arbitrator as having misunderstood or misapplied the legal test for causation. In his First Partial Final Award at paragraph 76 he referred to The Kos and expressly adopted the test as being whether the employment order was an effective cause of the detention in respect of the period he was then considering, namely to 21 July 2015. He was plainly aware of the relevant test, and it would be most surprising if he had forgotten it or chosen to apply a different test in his Fourth Partial Final Award, which referred back to the paragraphs in the First Partial Final Award which dealt with causation. There is nothing in the language he used to suggest that he did so.

The language upon which Mr Southern relies, addressed to whether matters had changed, is no more than a legitimate reference to considerations which are of evidential relevance to the question, indeed of central evidential relevance even if not determinative. The Arbitrator had already held, in a finding which was not and could not be challenged, that the employment order had causative potency up to 21 July 2015 (and implicitly in the Second Partial Final Award up to 23 September 2015). The focus was on whether what had happened since was sufficient to break the chain of causation. It is not therefore a matter of criticism that he should have focused on what had changed. His finding that what happened was “of a piece” with what had occurred before was a qualitative finding as to the causative potency of what had happened since. The fact that the approach and attitude of the Venezuelan courts had not changed from the time at which the Arbitrator had held the employment order to be of causative potency, could legitimately be taken as powerful evidence that the latter remained of causative potency and that the causative chain had not been broken. That was the factual conclusion reached by the Arbitrator.

If there were any doubt about it, it is dispelled by the terms of paragraph 30 of the award and the reference to the difference in subsequent judicial behaviour being insufficient to “obliterate the original cause of the detention.” This reflects the language of the test in Borealis v Geogas, which the Arbitrator clearly had in mind.

In truth, like the charterers’ first appeal, this is another example of trying to dress up an appeal against findings of fact as one which turns on questions of law, which it is the policy of the 1996 Act to prevent.Since the charterers’ appeal does not raise a question of law which can substantially affect the rights of the parties, there is no right of appeal under clause 41 of the charterparty, permission to appeal is required, and for the same reasons should be refused.

In the Fourth Partial Final Award, the Arbitrator’s reason for the provisional deduction of an estimated US$1.4 million for saved drydocking expenses was his assessment that “as matters stand there must be a substantial possibility that the vessel will never, in her lifetime, be redelivered to the head owners and thus that the drydocking costs will never have to be borne by the owners here.” He referred to “the justice of allowing the charterers a provisional credit, failing which they would have to pay the owners $1.4 million which the owners might never have to pay themselves, and which the charterers might not be able to recover.” He made clear that this was merely a provisional credit and that if the disponent owners should hereafter incur the drydocking costs they could come back for a further award in that respect. In the meantime it would not be “fair to require the charterers to pay at this stage an amount for which they may never be liable”.

Mr Croall QC for the disponent owners argued that it was not open to the Arbitrator to make this deduction. Giving credit for benefits received in consequence of breach was not a matter of “justice” but required the application of strict legal principles, relying on the recent Supreme Court authorities of Lowick Rose LLP v Swynson [2017] 3 All ER 785 and Fulton v Globalia (sup.) Deductions could only be made if there were a finding that there was a benefit and that the benefit was legally caused by the breach in accordance with the Fulton v Globalia principles. The Arbitrator had held that disponent owners had a present entitlement to the head charter hire and expenses incurred up to 31 March 2017, and there could not be deducted from those accrued rights a potential future saving which might never occur. In deducting a provisional sum for something which was not the subject of a decision, he was crossing the boundaries of what an arbitrator may properly do in an interim award, as formulated by Robert Goff J in The Kostas Melas [1981] 1 Lloyd’s Rep 18, which is to decide issues.

I am unable to accept this argument. It is important to keep in mind that with the full agreement of the parties the Arbitrator has not been seeking to address the disponent owners’ loss once and for all by reference to any date of assessment. He has adopted what Mr Southern described as a “wait and see” approach of considering loss by reference to events as they unfolded. This is a permissible approach to the date of assessment of loss where its extent may depend upon future contingencies. It enables account to be taken of the so called Bwllfa principle (Bwllfa and Merthyr Dare Steam Collieries (1891) Ltd v Pontyprydd Waterworks Co [1903] AC 426) and for the assessment to take account of contingencies which have or have not eventuated and so are known at the date of final judgment: Golden Strait Corporation v Nippon Yusen Kubishika Kaisha (The Golden Victory) [2007] 2 AC 353. In this case the Arbitrator has chosen as a matter of case management to defer any final assessment of loss, but to determine issues and make partial awards on an interim basis. In doing so, and consistently with his functions, he has finally decided issues where he has been able to; where there are issues which he thinks are best resolved in the light of the eventuation of future contingencies he has deferred deciding them. This is entirely in keeping with his arbitral functions and the principles governing interim awards articulated in The Kostas Melas. There can be no legitimate criticism of that approach, which indeed has taken place with the agreement of the parties. That case management decision, and its necessary consequences, cannot properly form the subject matter of an appeal under s. 69, nor fall within clause 41 of the charterparty.

Against that background, the Arbitrator’s deduction of a provisional sum for potentially saved drydocking expenses is principled and sound. If he is not to decide at this stage, and on knowledge of current events, whether such a deduction will fall to be made or not, and how much it will be, he is bound to award disponent owners a current amount which deducts an estimate for such saving unless he can be satisfied now that disponent owners’ losses will never be reduced by such amount. This is because in an interim Partial Award, an arbitrator may only award a sum which a party is bound to recover as a minimum in the light of the issues which he has decided: see The Kostas Melas at p. 25 col 2 to 26 col 1. It is a commonplace in cases where there is a large claim which is undisputed save that it is sought to set off a smaller counterclaim, that tribunals issue at an early stage an interim partial award for the difference, so that the claimant is awarded the minimum he will receive, without waiting for the dispute on the counterclaim to be resolved. That fulfils the policy in sections 1(a), 33(1)(b) and 47 of the Arbitration Act 1996. What the Arbitrator has done in this case is no different in kind, albeit that the deferred issue in question in this case will fall to be decided in the light of future events rather than by reference to past events.

Mr Croall characterised drydocking costs as a potential future saving. In my view they are better characterised as a current saving: disponent owners have not yet incurred the expenditure and have for the time being avoided paying the drydocking expenses which they would have had to pay in or around June 2015 but for the detention. They are a current saving. The future contingency is not that they will be saved but that they will be paid. If and when they are paid the disponent owners will be out of pocket for a sum which is now in their pocket. But my decision does not depend upon such characterisation of the saving as a current or future one. In either event it is not possible to say now whether at the (future) date at which the Arbitrator decides to make a final assessment of loss they will have been saved or not. Whilst it remains, as the Arbitrator found, a substantial possibility that they will be saved, and whilst it is at least arguable, at the lowest, that such a saving will have to be deducted from the sums which the Arbitrator has held disponent owners would otherwise be entitled to recover, an argument not yet addressed or disposed of, it would be impossible for the tribunal to award payment of sums without such deduction, because on the issues which it has determined it could not be satisfied that a greater sum would be recovered as a minimum.

Accordingly the disponent owners’ challenge is unfounded. Since it is not on a point of law but in substance an impermissible challenge to the Arbitrator’s agreed case management decision, it does not fall within clause 41 of the charterparty and permission to appeal should be refused.