The Liberian flag vessel m.v. Theraps that arrived Mumbai port was ordered
to be arrested by the Admiralty Judge the Hon'ble Mr. Justice S. J.
Kathawalla of the Bombay High Court in two separate admiralty suits filed
by Alpha Oil Co Ltd and Hitec Maritime Co Ltd respectively, both are
Korean based bunker oil suppliers and traders. The vessel was ordered to
be arrested on March 27, 2012 in Alpha Oil's claim an and on April 4, 2012
in Hitec Maritime's claim. The vessel Theraps was ordered to be arrested
while the Greek owner was in dialogue with Arya Corp a ship breaker, to
sell her for scrap, the owner immediately furnished security to the court
and obtained release of the vessel, on furnishing security to the court
the Greek owner sold the vessel for scrap.
The bunker traders through their solicitors Dr. Shrikant
Hathi of Brus Chambers and owner of the vessel through their advocate Ms.
S. Priya negotiated for an out of court and have successfully concluded an
out of court settlement and have withdrawn both the admiralty legal
actions filed in the Bombay High Court on August 8, 2013.
In Alpha Oil Co Ltd case, On March 24, 2011, Yanghai
Shipping Co. Ltd., who were operating the vessel m.v. Theraps under a Time
Charter, placed an order upon Alpha Oil via email requisitioning supplies
of 200 MT of 380CST (RMG380) and 50 MT of Marine Gas Oil (MGO)(DMA) for
and on behalf of the vessel and her registered owners, at Busan Port,
Korea. Alpha Oil confirmed its readiness and willingness to supply the
aforesaid quantites by issuing its Sales Confirmation. The Sales
Confirmation described the buyers as “ Master and/or Operators and/or
Charterers and/or Owners of M.V. Theraps and Yanghai Shipping Co Ltd “.
The Sales Confirmation also, inter-alia, stated that “ All sales are on
credit of vessel. Buyer is therefore presumed to have authority to bind
vessel with a maritime lien. Disclaimer stamps placed by vessel on Bunker
Receipt will have no effect and do not waive the Seller’s lien.” The Sales
Confirmation also incorporated Alpha Oil’s General Sales Terms and
Conditions. Alpha Oil through its agents and physical suppliers, Hyundai
Oilbank Co. Ltd. and PetroKorea Co. Ltd. sold, supplied and delivered to
the vessel m.v. Theraps 200 MT of 380CST (RMG380) and 50 MT of Marine Gas
Oil (MGO)(DMA) on March 30, 2011 at Busan, Korea. Immediately before
effecting the physical supplies, the two physical suppliers / their agent,
one NABUCO delivered to the vessel, along with the bunkers, copies of the
Sales Confirmation. The two physical suppliers / their agents, one NABUCO
also sought and obtained from the vessel, acknowledgement of receipt of
the bunkers on the Bunker Delivery Notes/Receipts raised by them. The said
Bunker Delivery Note and Bunker Delivery Receipt bear the rubber stamp of
the vessel and the signature of the Chief Engineer of the vessel thereon.
It is said that the vessel therefore accepted the supply of bunkers, for
the price and on the terms and conditions. The vessel, by reason thereof
and or even otherwise became personally indebted and liable to Alpha Oil
to make payment for the said bunkers and became subject to both a maritime
claim for the indebtedness.
Alpha Oil raised an Invoice for US$ 186,000.00 on the Master
and or charterers and or owners of M.V. THERAPS c/o Yanghai Shipping Co.
Ltd. As per the terms of the Sales Confirmation payment of the said
Invoice was to be made within 30 days from delivery date against copy of
BDR and invoice and interest at the rate of 1.5% per month would be
charged on late payment. As payment was not made within the time limit,
interest became payable and so Alpha Oil raised an Interest Invoice of US$
30,177.86 for the said late/default interest. As payment was not
forthcoming Alpha Oil sent a demand letter via email dated May 25, 2011 to
Yanghai Shipping Co., Ltd. demanding payment of its dues failing which
Alpha Oil stated it would take legal action. When in spite of repeated
demands by Alpha Oil no reply/payment was forthcoming Alpha Oil instructed
their Attorneys in Korea to issue a legal notice, pursuant to which Alpha
Oil’s Korean Attorneys, issued a demand notice addressed to the owners of
the Vessel demanding payments of outstanding invoice along with
late/default interest thereon at the rate of 1.5% per month calculated
from April 28, 2011 and stating therein that on failure to pay or resolve
the issue they would take appropriate legal action. When no reply or
payment was received, Alpha Oil's Korean Attorney issued a reminder notice
calling upon the owner of the vessel to make payments of outstanding
invoice along with interest but have till date not received any reply.
Alpha Oil states that despite rendering the aforesaid supply of bunkers to
the Vessel, Alpha Oil did not receive payment for the value of the bunkers
amounting to US$ 216,544.77 from THERAPS Investments Services, the owner
of the vessel. The said amount remains outstanding, due and payable
therefore they initiated legal action by filing an admiralty suit in the
Bombay High Court and arresting the vessel m.v. Theraps.
Similarly, in the case of Hitec Maritime Co Ltd the Vessel
m.v. Theraps through her then Charterers, Yanghai Shipping Co. Ltd.,
placed an order upon Hitec Maritime via email requisitioning supplies of
400 MT of 380CST for and on behalf of the vessel m.v Theraps and her
registered owners, at Hongkong Port. Hitec Maritime confirmed its
readiness and willingness to supply by issuing its Sales Confirmation. The
Sales Confirmation described the buyers as “Yanghai Shipping Co Ltd. The
Vessel, Her Master, Owners and/or Charterers”. The Sales Confirmation
also, inter-alia, stated that “Deliveries of Marine Fuels hereunder are
delivered not on the credit of the Owners/Charterer/Master/The Buyer, But
also on the credit of the supplied vessel herself and the amount due shall
become a maritime lien against the vessel immediately”. The Sales
Confirmation also incorporated the Hitec Maritime Terms and Conditions.
Yanghai Shipping Co. Ltd. sent to Hitec Maritime an email attaching the
Sales Confirmation duly stamped by Yanghai Shipping Co. Ltd. Hitec
Maritime, as global bunker suppliers, have a network of associates who
physically effect bunker supplies. These world wide suppliers bill Hitec
Maritime and are paid by Hitec Maritime. Supplies physically effected by
such (physical) bunker suppliers are vis a vis the concerned vessel in
fact and in law, supplies made by Hitec Maritime. In this case, the
physical supply of bunkers was effected by one Taimin Petroleum &
Chemicals Limited, who has been duly paid. The said Taimin Petroleum &
Chemicals Limited physically sold, supplied and delivered to the vessel
400 MT of 380CST on April 5, 2011 at Hongkong Port. The physical supplier
Taimin Petroleum & Chemicals Limited also sought and obtained from the
vessel, acknowledgement of receipt of the bunkers on the Bunker Delivery
Receipt raised by them. The said Bunker Delivery Receipt bears the rubber
stamp of the vessel and the signature of the Chief Engineer of the vessel
thereon. The Bunker Delivery Receipt also records both the fact that the
vessel would be responsible and liable for the supplies and that the
vessel would be subject to a lien for the supplier. The vessel accepted
the supply of bunkers, for the price and on the terms and conditions. The
vessel, by reason thereof and or even otherwise became personally indebted
and liable to Hitec maritime to make payment for the said bunkers and
became subject to maritime claimfor the said indebtedness. Hitec Maritime
raised a Commercial Invoice for US$ 266,000.00 on M.V. “THERAPS” and/or
Yanghai Shipping Co., Ltd. /Owners /Charterers
/Master/Operators/Managers/Agents. As per the terms of the Sales
Confirmation and Commercial Invoice payment of the said Invoice was to be
made in full without any deduction, within 30 days after delivery date (no
later than May 04, 2011)and interest at the rate of 1.5% per month would
be charged on late payment. As payment has not made till date interest at
the rate of 1.5% per month has become payable.
As payment was not forthcoming Hitec Maritime sent a demand
letter dated June 9, 2011 to Yanghai Shipping Co., Ltd. demanding payment
of its dues. When in spite of repeated demands by Hitec Maritime no
reply/payment was forthcoming Hitec Maritime instructed their Attorneys in
Korea to issue a legal notice, pursuant to which the Hitec Maritime’s
Korean Attorney issued a demand notice addressed to the owners of the
Vessel demanding payments of outstanding invoice along with late/default
interest thereon at the rate of 1.5% per month and stating therein that on
failure to pay or resolve the issue they would take appropriate legal
action. Thereafter extensive correspondence took place between the owners
of the vessel, Theraps Investment Services and Hitec Maritime's Korean
Attorneys in connection with Hitec Maritime's claim.
Hitec Matritime states that despite rendering the aforesaid
supply of bunkers to the Vessel, Hitec Maritime did not receive payment
for the value of the bunkers amounting to US$ 309,944.65 (US$ 266,000.00
being principal amount and US$ 43,944.65, being interest @ 1.5% per month
from Theraps Investments Services and/or the vessel. The said amount
remains outstanding, due and payable therefore Hitec Maritime initiated
legal action by filing an admiralty suit in the Bombay High Court and
arresting the vessel m.v. Theraps.
