Western Bulk Shipowning III A/S v (Carbofer Maritime Trading APS & Ors

A freezing injunction requires more than an arguable claim. The claimant must show a real risk that a judgment or award will go unsatisfied because assets may be dissipated otherwise than in the ordinary course of business.

A lien over sub-hire may operate as an equitable assignment by way of security. Where successive charters contain lien clauses, the assignment may extend to sub-hire payable further down the chain. Notice perfects the lien before payment. A contractual right of set-off must be exercised before an effective assignment.

The claimant, disponent owner of the vessel Western Moscow, sought continuation of a worldwide freezing injunction against two sub-charterers. The injunction had been granted under section 44 of the Arbitration Act 1996 and section 37(1) of the Senior Courts Act 1981.

The respondents challenged the injunction, arguing that there was no substantive English jurisdiction against the third defendant and no sufficient risk of dissipation. The court considered charterparty liens, equitable assignment, contractual set-off, foreign-seated arbitration, service out of the jurisdiction and third-party freezing relief.

1. Injunctions discharged. The claimant had arguable claims for sums due under the charter chain, including claims as assignee of hire payable under sub-charters. However, the evidence did not establish a real risk that either respondent would make unjustifiable disposals outside the ordinary course of business so as to defeat enforcement. The Mareva jurisdiction was not a means of securing the claim.
2. Nature and extent of the lien. A lien over sub-hire is perfected by notice before payment. The judge preferred the analysis that the amended NYPE clause operated as an assignment of future debts by way of security, creating an equitable charge. Where successive charters contained lien clauses extending to all sub-hire, the assignment could extend to hire payable under a sub-sub-charter.
3. Set-off. A contractual set-off clause required exercise. It had not been exercised before notice of assignment, so the claimant had an arguable claim free from the set-off.
4. Jurisdiction. The respondents had much the better argument that the SeaTask charter was genuine and provided for Greek law and arbitration. Section 44 of the Arbitration Act 1996 could support an injunction even where the seat was outside the United Kingdom, and rule 62.5(1)(b) of the Civil Procedure Rules 1998 could permit service out. Nevertheless, no Greek arbitration had commenced and no undertaking to commence one had been given. Relief against SeaTask was therefore inappropriate.
5. Third-party relief. The contemplated liquidator’s claims against SeaTask were insufficiently promising to justify relief under the Chabra jurisdiction.