EMEA News
UK, Canadian Judgments "Unlikely" To Influence Dutch OW Bunker Proceedings
Transport and energy legal specialist Hannah Verhoeven says it is "unlikely" that decisions in UK and Canadian courts will influence Dutch rulings in the bankruptcy case of marine fuel supplier OW Bunker.
In an article for the International Law Office, she notes the recent UK Court of Appeal decisions in the so-called Res Cogitans test case, which ruled that the bunker supply contract between OW Bunker and the bunker buyer was not a contract for the sale of goods, leaving both OW Bunker/ING bank and the physical bunker supplier entitled to claim for the bunkers.
In Canada, Verhoeven notes that during interpleader proceedings the matter of whether the owner could also be held liable to pay the physical supplier was debated, and the court decided that OW Bunker and the charterer who had ordered the bunkers were jointly and severally liable to the supplier for its claim.
However, Verhoeven holds that neither the UK nor Canadian decisions will have much bearing on the proceedings pending in the Netherlands: "According to Dutch law, an obligation to pay can be suspended (as in interpleader proceedings) in the event that it is uncertain to whom payment must be made; the funds will then be paid into a deposit fund.
"However, in the case of OW Bunker, there seems to be no doubt about who must be paid because there is a contractual claim (OW Bunker/ING) which will certainly have to be paid, and the supplier may have a right of recourse against the vessel."
She adds that under Dutch law, joint and several liability of OW Bunker and the owner against suppliers is "unlikely" because the claims are different.
As such, she predicts that the outcome will echo the UK judgment in that the owner will have to pay OW Bunker/ING - although the reasoning for doing so is different.
Moreover, because of a Dutch right of recourse, Verhoeven says "it might be possible that the owner must pay twice; even though that seems unreasonable, it is no more reasonable that a supplier be left unpaid."
As complex as the OW Bunker proceedings may be, John Kissane, partner at Watson Farley & Williams LLP, said in June that that the legal disputes could help clarify U.S. law as to whether it is the bunker broker or the physical supplier who has the maritime lien.
