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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Den Norske Bank ASA v Acemex Management Company Ltd. [2003] EWCA Civ 1559 (07 November 2003) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2003/1559.html Cite as: [2004] 1 LLR 1, [2004] 1 All ER (Comm) 904, [2003] EWCA Civ 1559, [2004] 1 Lloyd's Rep 1

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, COMMERCIAL COURT
(Nigel Teare Esq QC, sitting as a Deputy Judge of the Commercial Court)

		Royal Courts of Justice Strand, London, WC2A 2LL
		7th November 2003

Lord Justice Longmore:

Introduction

1. Is a ship mortgage inherently different from a mortgage on land? On the facts of this appeal Mr Davey submits that it is; Mr Parsons QC submits that it is not. I can gratefully adopt the Deputy Judge's account of the facts.
2. By a US $6 million secured Loan Facility Agreement dated 1st December 1997 between the Claimants and three companies collectively described as the Borrowers the Claimants Den Norske Bank ASA ("the Bank") agreed to make available to the Borrowers a loan of US $6 million for the purchase of 3 vessels, one of which was TROPICAL REEFER the vessel with which this appeal is concerned. The loan agreement was subject to English law. The security for the loan included mortgages on the 3 vessels which were governed by the law of Cyprus, where the vessels were registered. Further security included a Guarantee provided by the Defendants. That was governed by English law.
3. Thereafter there were various events of default and on 25th July 2001 the Bank arrested TROPICAL REEFER in Panama pursuant to its rights under the mortgage of that vessel. At the time of the arrest TROPICAL REEFER was laden with a cargo of bananas, which had been shipped in Ecuador and were to be discharged in Germany. The bananas were a perishable cargo and in order to sell the vessel in Panama they had to be discharged overboard at sea. The expense of doing so, US $204,140, was part of the costs of arrest and formed a deduction from the proceeds of the sale of the ship. In addition the owners of the cargo began proceedings in Panama against the proceeds of sale claiming damages for breach of the contract of carriage. In respect of that claim the owners of the cargo said they had a maritime lien and on that account claimed to be entitled to payment out of the proceeds of sale in priority to the claim under the mortgage. Subsequently, on 6th February 2002 the Bank demanded payment of the outstanding indebtedness from the Defendants, as guarantors, and on 19th February the Bank issued proceedings in the Commercial Court against the Defendants under the Guarantee for the sums due under the loan facility. A Part 24 application for summary judgment was made in those proceedings and Mr Nigel Teare QC, sitting as a Deputy Judge of that Court, has given judgment for the Bank.
4. The claim is resisted by the Defendants on the grounds that the Bank, in breach of duty to the Defendants, arrested TROPICAL REEFER in Panama when she was laden with bananas instead of arresting the vessel after she had arrived in Germany where the proceeds of sale would not have been diminished by the costs of disposing of the bananas or encumbered by a lien on those proceeds in respect of a cargo damage claim. It was said that the proceeds of sale would have been sufficient partially or entirely to discharge the outstanding debt and that in those circumstances the Bank are unable to proceed against the Defendants under the guarantee for the sums claimed.

The loan facility and mortgage

5. Nothing turns upon the wording of the loan facility. But it is important to observe that under clause 12, it was an Event of Default if the borrower (a) failed to make a payment as and when such payments were due and (b) failed to maintain P&I insurance on the vessel. Both these events were also Events of Default under the Deed of Covenant collateral to the mortgage. Moreover, clause 8 of that Deed expressly provided:-

"8.1 If an Event of Default shall occur and the Mortgagees shall make demand for all or part of the Indebtedness, the security constituted by the mortgage and this Deed shall become immediately enforceable and the mortgagees shall be entitled to exercise all or any of the rights, powers, discretions and remedies vested in them by this Clause without any requirement for any court order or declaration that an Event of Default has occurred.

……..

The Mortgagees shall be entitled to exercise their rights, powers, discretions and remedies notwithstanding any rule of law or equity to the contrary and whether or not any previous default shall have been waived and in particular without the limitations imposed by law.

8.2 In the circumstances described in Clause 8.1, the Mortgagees shall be entitled (but not obliged) to:-

8.2.1 take possession of the Vessel wherever she may be;

……..

8.2.4 in their own name or the name of the Owners, demand, sue for, receive and give a good receipt for all sums due to the Owners in connection with the Vessel and, in their own name or the name of the Owners or the name of the Vessel, commence such legal proceedings as they may consider appropriate or conduct the defence of any legal proceedings commenced against the Vessel or the Owners in their capacity as owners of the Vessel."

6. Pursuant to clause 3 of the Guarantee and Indemnity dated 1st December 1997 the Defendants "irrevocably and unconditionally guarantee to discharge on demand the Borrowers' Obligations, including Interest from the date of demand until the date of payment, both before and after judgment". Pursuant to clause 15.6 "any certificate or statement signed by an authorised signatory of the Bank purporting to show the amount of the Indebtedness or of the Borrowers' Obligations or of the Guarantors' Liabilities (or any part of them) or any other amount referred to in any of the Security Documents shall, save for manifest error or on any question of law, be conclusive evidence as against the Guarantor of that amount." Nothing turns upon any other provision of the guarantee.

The events which led up to the arrest in Panama

7. On 9th December 1999 the Bank gave notice to the Borrowers of two events of default under the loan facility, first a failure to make a repayment instalment of US $450,000 on 9th September 1999 and secondly a failure to make a further repayment instalment of $450,000 on 9th December 1999. On 30th August 2000 the Bank agreed to postpone payment of the balance of the loan pending a refinancing which was to be completed by 30th September 2000. However such refinancing was not completed and so in January 2001 the Bank gave notice of a further event of default (the failure to make a repayment instalment on 30th June 2000) and reserved the right to declare the whole indebtedness of US $2,233,290 due and payable together with interest. This notice was copied to the Defendants.
8. On 21st May 2001 a meeting took place in Havana, Cuba between the Bank and the Borrowers. The Bank were informed that TROPICAL REEFER and, her sister vessel, BLUE REEFER were under charter but that each had debts to suppliers and repair yards of approximately $235,237 and $376,488 respectively. SKY REEFER was awaiting work on the spot market but also had debts to suppliers and repair yards of approximately $293,923. SPRING REEFER was shortly to be sold for scrap.
9. A further meeting took place in Havana on 26th June 2001. The Bank were then informed that one of the Borrowers' P&I Clubs, the West of England, was owed calls and had withdrawn cover on TROPICAL REEFER but would re-instate cover if US $250,000 were paid by 5/6th July 2001. Thereafter the balance due to the West of England of about $600,000 was to be paid in instalments. The Bank were also informed that TROPICAL REEFER was en route for Ecuador to load bananas for shipment to Europe and that BLUE REEFER had suffered an engine problem and was due to be towed by SKY REEFER to Las Palmas. The proceeds of scrapping SPRING REEFER, expected to be about $110,000, were to be paid to the Bank. In addition $200,000 was to be paid to the Bank on 15th July 2001.
10. The sums agreed to be paid by the Borrowers to the West of England and to the Bank on 5th and 15th July 2001 were not paid. The Borrowers' managers later informed the Bank on 23rd July 2001 that the payments had not been paid "due to lack of liquidity".
11. On 19th July 2001 the Bank gave notice to the Borrowers of events of default, in particular the failure to make payments when due and the failure to observe covenants made in the Loan Agreement. The latter was a reference to the failure to maintain P&I Cover. The indebtedness was said to be over $2 million. This notice was also copied to the Defendants.
12. On or about 23rd July 2001 a company called Tramp Oil arrested TROPICAL REEFER in Panama on account of payments due in respect of bunkers supplied to a sister vessel.
13. The Borrowers' managers informed the Bank on 23rd July 2001 that they proposed to sell BLUE REEFER for scrap and transfer the net proceeds to the Bank. They also intended to recover from underwriters about $1 million in respect of her engine damage which sum would be paid to the Bank. They proposed a renegotiation of the loan facility in respect of TROPICAL REEFER and SKY REEFER with instalments commencing in January 2002 "considering that the 2nd part of this year 2001 the reefer market is down season."
14. On 24th July 2001 the Bank, by a letter to the Borrowers copied to the Defendants, declared that the outstanding indebtedness of over $2 million was immediately due and payable pursuant to the terms of the loan facility. On the same day arrangements were made to arrest TROPICAL REEFER in Panama and the next day, 25th July, the vessel was arrested.
15. On 27th July the Bank replied to the Borrowers' managers' letter dated 23rd July informing them that the Bank had demanded repayment of the outstanding indebtedness and had commenced enforcing its security by arresting TROPICAL REEFER. They said that the proposal made by the managers was unacceptable. On the same day the arrest made by Tramp Oil was set aside due to a procedural problem with the proceedings commenced by Tramp Oil in that they had, apparently, sued the managers rather than the Owners of the vessels.

The events after arrest

16. On 30th July 2001 Spanish lawyers acting for the owners of TROPICAL REEFER advised the Bank that the cargo of bananas was deteriorating and suggested that the vessel be released from arrest in order that she might proceed to Hamburg "where the Bank might act in the way it would think better for its interests". On 1st August Stephenson Harwood replied on behalf of the Bank saying that the Bank had lawfully exercised their right to arrest the vessel but would not oppose any reasonable application by the cargo interests to the court in Panama as to how to deal with the cargo.
17. On 2nd August 2001 the Borrowers' managers complained to the Bank that their arrest (1) was preventing the payment of hire or freight which would fall due 5 days after the vessel had emerged from the Panama Canal and (2) would damage the cargo of bananas. They offered to pay US $260,000 in return for the vessel being released from arrest. The Bank rejected that offer the same day.
18. On 8th and 9th August the Havana office of ING Bank informed the Bank that it would pay $700,000 on 15 August in order to secure the release of the vessel. It appears from the terms of an e-mail dated 13th August 2001 from Stephenson Harwood to lawyers acting on behalf of the cargo interests that this offer was not accepted because terms could not be agreed.
19. Thereafter, in September 2001, the cargo of bananas was discharged overboard at sea and in October 2001 the vessel was sold by the court in Panama. The gross proceeds were US $1,150,000. However, after deducting the costs of the sale including the costs of disposing of the bananas the net proceeds in court are about US $780,000.

The outstanding indebtedness

20. Certain payments have since been made to reduce the outstanding indebtedness, including payment of the proceeds of sale of SKY REEFER and of the proceeds of an insurance claim on BLUE REEFER. The sum for which judgment has been given is $815,277.09. That sum is proved by a statement pursuant to clause 15.6 of the Guarantee. On the application for summary judgment it was not challenged that there had been events of default under the security documentation, that the Bank were entitled to declare the outstanding indebtedness due and owing and that the statement pursuant to clause 15.6 of the Guarantee was conclusive evidence of the amount due, subject of course to the defences now put forward.

Arguments

21. Mr Davey for the defendant guarantors had two main arguments. The first argument, made at the time when the proceedings for summary judgment were instituted, were that the Bank had been "negligent" in arresting (and maintaining the arrest of) the vessel and causing it to be sold by the Panamanian court; this conduct gave rise to the expense of discharging the cargo from the vessel and disposing of it as well as the cargo claim, which was the subject of the alleged maritime lien. This "negligence" was said to constitute a defence to the claim. As this argument came to be developed in front of the Deputy Judge, Mr Davey accepted that he could not rely on any common law duty of care in "negligence" but had to rely on the general equitable duties which the law imposes on a mortgagee (1) that the power of sale must be exercised in good faith for the purpose of obtaining repayment and (2) that, if the mortgagee decides to sell, he must take reasonable care to obtain a proper price, all as set out in Downsview Nominees Ltd v First City Corporation [1993] AC 295, 315 per Lord Templeman and Yorkshire Bank Plc v Hall [1999] 1 WLR 1713, 1728 per Robert Walker LJ. He submitted to the Deputy Judge and to this court that the Bank, having decided to sell, had not taken reasonable care to obtain a proper price because it was obviously more sensible to have allowed the vessel to proceed to Hamburg to discharge its cargo in the ordinary course of events and arrest the vessel there. There would then have been no problem about the costs of discharge or any cargo claim taking priority to the Bank's mortgage. For these submissions Mr Davey relied on the ordinary law of mortgages as applied to real and personal property and I will call it "the argument in equity".
22. Mr Davey had a second argument specific to ship mortgages and based on the fact that a ship was a chattel habitually used for trading purposes. This was that, in the absence of any express term in the mortgage to the contrary, the mortgagee was obliged not to interfere with contracts made by a shipowner for the carriage of cargo unless such contracts impaired the mortgagee's security. For this purpose he relied on a line of authority beginning with De Mattos v Gibson (1859) 4 De G. & J. 276 and ending with The Myrto [1977] 2 Lloyd's Rep 243. He, particularly, relied on the following statement of Willes J in Johnson v Royal Mail Steam Packet Co (1867) LR 3 CP 38. 42:-

"Without entering into the question of mortgages of land further than to say we have given it out consideration – the case of a mortgagee and mortgagor of a ship appears to be one of a quite different complexion, because the mortgagee so long as he does not interfere and claim possession, may fairly be taken to have allowed the mortgagor to enter into all engagements for the employment of the ship of the sort usually entered into by a person who has the apparent control and ownership of a vessel."

The activities of the Bank constituted a breach of the obligation to allow the mortgagor to enter into and perform engagements for the employment of the vessel and such breach amounted to an arguable defence to the claim. Mr Davey complained that, although the Deputy Judge had been referred to the Johnson case, he did not refer to it in his judgment. The argument can conveniently be called the "shipping argument".

The argument in equity

23. The task of this court has been made easier (and Mr Davey's harder) by the fact that 8 days before the hearing of the appeal this court handed down its decision in Silven Properties Ltd v Royal Bank of Scotland [2003] EWCA Civ 1409, 21st October 2002. In that case this court, speaking through Lightman J, concluded that the general equitable duties of a mortgagee were owed by receivers of mortgaged properties who were appointed by the mortgagee but described as agents of the mortgagor. In paragraphs 13 – 20 the court set out the law on the mortgagees' duties in considerable detail and it would be otiose to reiterate them in different words. The important passages for present purposes are the following:-

"14. A mortgagee "is not a trustee of the power of sale for the mortgagor". This time-honoured expression can be traced back at least as far as Sir George Jessel MR in Nash v. Eads (1880) 25 Sol. J. 95. In default of provision to the contrary in the mortgage, the power is conferred upon the mortgagee by way of bargain by the mortgagor for his own benefit and he has an unfettered discretion to sell when he likes to achieve repayment of the debt which he is owed: see Cuckmere Brick Co v. Mutual Finance Limited [1971] Ch 949 ("Cuckmere") at 969G. A mortgagee is at all times free to consult his own interests alone whether and when to exercise his power of sale. The most recent authoritative restatement of this principle is to be found in Raja v. Austin Gray [2002] EWCA Civ 1965 paragraph 95 per Peter Gibson LJ ("Raja"). The mortgagee's decision is not constrained by reason of the fact that the exercise or non-exercise of the power will occasion loss or damage to the mortgagor: see China and South Sea Bank Limited v. Tan Soon Gin [1990] 1 AC 536. It does not matter that the time may be unpropitious and that by waiting a higher price could be obtained: he is not bound to postpone in the hope of obtaining a better price: see Tse Kwong Lam v. Wong Chit Sen [1983] 1 WLR 1349 at 1355B.

……..

16. The mortgagee is entitled to sell the mortgaged property as it is. He is under no obligation to improve it or increase its value. There is no obligation to take any such pre-marketing steps to increase the value of the property as is suggested by the Claimants. The Claimants submitted that this principle could not stand with the decision of the Privy Council in McHugh v. Union Bank of Canada [1913] AC 299. Lord Moulton in that case (at p.312) held that, if a mortgagee does proceed with a sale of property which is unsaleable as it stands, a duty of care may be imposed on him when taking the necessary steps to render the mortgaged property saleable. The mortgage in that case was of horses, which the mortgagee needed to drive to market if he was to sell them. The mortgagee was held to owe to the mortgagor a duty to take proper care of them whilst driving them to market. The duty imposed on the mortgagee was to take care to preserve, not increase, the value of the security.

……..

19. When and if the mortgagee does exercise the power of sale, he comes under a duty in equity (and not tort) to the mortgagor (and all others interested in the equity of redemption) to take reasonable precautions to obtain "the fair" or "the true market" value of or the " proper price" for the mortgaged property at the date of the sale, and not (as the Claimants submitted) the date of the decision to sell. If the period of time between the dates of the decision to sell and of the sale is short, there may be no difference in value between the two dates and indeed in many (if not most cases) this may be readily assumed. But where there is a period of delay, the difference in date could prove significant. The mortgagee is not entitled to act in a way which unfairly prejudices the mortgagor by selling hastily at a knock-down price sufficient to pay off his debt: Palk ([1993] Ch 330) at 337-8 per Nicholls V-C. He must take proper care whether by fairly and properly exposing the property to the market or otherwise to obtain the best price reasonably obtainable at the date of sale. The remedy for breach of this equitable duty is not common law damages, but an order that the mortgagee account to the mortgagor and all others interested in the equity of redemption, not just for what he actually received, but for what he should have received: see Standard Chartered ([1982] 1 WLR 1410) at 1416B.

20. . . . . A mortgagee is entitled to sell the property in the condition in which it stands without investing money or time in increasing its likely sale value. . ."

24. Mr Davey could not (and did not) take issue with any of these statements of the law. He expressly accepted that Palk v Mortgage Services Funding Plc [1993] Ch 330 was not an authority that there was any general duty not unfairly to prejudice the mortgagor because that case dealt only with the duty to carry out the sale in a fair way. What he did say was that if, in the course of carrying out the sale of a mortgaged ship, the mortgagee impaired the value of the ship, he was in breach of his duty to obtain the best reasonably obtainable price for the ship.
25. Attractively as that was presented as a general proposition, I cannot accept that it is applicable on the undisputed facts of the present case. In reality Mr Davey was submitting that the Bank ought not to have arrested the vessel in Panama on 24th July 2001, maintained that arrest and then caused the vessel to be sold by the Panamanian court on 16th October 2001 but should have deferred that arrest and sale until the vessel arrived in Hamburg. In the first place that submission falls foul of the many statements that the mortgagee is entitled to decide the time at which he sells without regard to the interest of the mortgagor, see Silven paragraphs 14 and 20 together with the authorities cited. These statements of the law cannot be sidestepped by saying, in the case of a moveable chattel such as a ship that the mortgagee has to take care to sell at the place where the best price is available, because to transfer a chattel from one place to another will, inevitably, take time and mean that the sale is deferred. It is entirely different from a case where a short delay is appropriate so that a property can be properly advertised, see eg Meftah v Lloyd's TSB Bank Plc [2001] 2 AER (Comm) 741. The position might not be the same in cases where there is no true market for the chattel concerned at the place in which the mortgagee proposes to sell. It might, for example, be inappropriate to sell a valuable picture in Panama rather than in a recognised centre for the marketing of pictures. But, even then, there would be questions about the cost of transport which would have to be resolved. In the present case it could not be argued that Panama was an inappropriate place, as such, for a ship to be sold, since ships are frequently sold there, as in most other countries which exercise a recognised Admiralty jurisdiction.
26. Secondly the Bank were, in any event, entitled to take the view that releasing the vessel from arrest and permitting her to travel to Hamburg with her cargo on board was fraught with risk. The owners were so impecunious that P&I cover (viz. cover for, inter alia, liability for damage to or loss or cargo, collision and pollution) had been withdrawn. It was quite unclear what would happen if there were a serious accident en route to Hamburg. $2 million was due to the Bank with no serious proposals for repayment. Even if there were in theory a duty to consider whether the vessel should be allowed to proceed to Hamburg, it is impossible to argue that the decision to arrest and proceed with the sale of the vessel in Panama was a breach of such duty.
27. The Deputy Judge concluded on this part of the case that the defendants had no prospect of establishing at trial that the Bank owed a duty of care to the defendants in deciding when to arrest the vessel or in deciding whether to release the vessel from arrest. I agree with him.

The Shipping Argument

28. In this court, Mr Davey submitted that this argument (that a mortgagee is not entitled to interfere with a shipowner's contracts) afforded a separate arguable defence. He is, no doubt, correct to say that in appropriate circumstances a third party may have rights against an interfering mortgagee. But, even if a third party (who is, for example, a party to a contract of carriage made with a shipowner/mortgagor) can restrain a mortgagee from interfering with that contract or recover damages from him by reason of such interference, it does not follow that the mortgagor is entitled to say that any such interference is a breach of the contract of loan. It must all depend on the terms of the contract of loan and the mortgage contract. Mr Davey's submission was that, unless the contract otherwise provided, such interference was automatically a breach of duty on the part of the mortgagee, subject always to the question whether the contract of carriage imperilled the mortgagee's security which, in this case, it did not.
29. Again, this is a hopeless argument. The relationship between the mortgagor and the mortgagee is contained in the written contracts of loan and the deed collateral to the mortgage. Those documents confer many rights on the mortgagee, in particular to take possession of the vessel and to institute legal proceedings (which includes the arrest of the vessel) if there is an event of default. For good measure it is provided that the mortgagees should be entitled to exercise their rights and powers notwithstanding any rule of law or equity to the contrary. In these circumstances, once there is an event of default it is impossible to argue that arresting the vessel (and keeping the vessel under arrest until it is sold by order of the court) constitutes, of itself, a breach of contract or duty on the part of the mortgagee. To make good his case, Mr Davey would need to assert an implied term of the contract to the effect for which he contends but any such implied term would be contrary to the express terms of the contract itself.
30. All the authorities relied on by Mr Davey are cases where a third party complained of the conduct of the mortgagee. It is true that in The Myrto [1977] 2 Lloyds Rep 243 Brandon J's third proposition (at pages 253-4) is in the following terms:-

"(3) Where the owner makes a contract with a third party for the employment of the ship, of such a kind and made or performable in such circumstances, that the security of the mortgagee is not impaired, and the owner is both willing and able to perform such contract, the mortgagee is not entitled, by exercising his rights under the mortgage, whether by taking possession, or selling, or arresting the ship in a mortgage action in rem, to interfere with the performance of such contact."

The context of that proposition, however, is the institution of proceedings by a third party as is made clear by propositions (5) and (6) and it cannot be utilised to support Mr Davey's argument without considering the terms of the relationship between the Bank and borrowers/mortgagors. Once that is done it is evident that, on the facts of this case, the argument has no prospect of success. To put the matter simply, the shipowners had been in default for a long time, continued to be in default and had no effective proposals to rectify that default. In no way could the Bank's actions constitute a breach of the loan or mortgage contract.

Other matters

31. Mr Davey had various other arguments, eg that by reason of the Bank's breaches of their duty in equity, the defendants as guarantors were wholly discharged but these points depended on the establishing of such breach which he has been unable to do. They therefore fall away.
32. The Deputy Judge considered what the position would have been if he had held that there had been a duty and the Bank were in arguable breach of that duty. He held on the facts (1) that the Panamanian court would not hold that the loss of cargo claim constituted a maritime lien and (2) that the prospect of establishing that the costs of discharging and disposing of the cargo were incurred by reason of any breach of duty were so shaky that he would grant leave to defend as to those costs, only on condition that the defendants brought the amount of those costs into court. Again, there is no need to address these issues, save to say that we were informed that, as the Deputy Judge correctly predicted, the Panamanian court has now held that a cargo claim does not constitute a maritime lien. That will presumably mean that the defendants, having now satisfied the judgment, will be able to apply to the court in Panama for payment out.

Conclusion

33. I would uphold the judge's judgment and dismiss this appeal.
34. Finally I would like to repeat the plea of Roskill J made in Fletcher v City Marine [1968] 2 Lloyds Rep 520, 535, that somebody some day should re-edit Mr Benjamin Constant's book, The Law relating to the Mortgage of Ships (1920). It has been out of print far too long and copies are difficult to find, although a copy does exist (presently uncatalogued) in the Bar Library.

Lord Justice Jacob:

35. I agree.

Lord Justice Brooke:

36. I also agree.
Order: appeal dismissed; a minute of order to be lodged with the court (Order does not form part of the approved judgment)