Greek Courts rejects the claims by physical suppliers against Owners in OW related disputes

WORTH READING BY ALL THOSE INVOLVED IN BUNKERS (BUYERS OR SELLERS):

After the financial collapse of OW Bunker Group on November 7, 2014, numerous claims by physical suppliers in risk to remain unpaid due to their counterparty’s bankruptcy, have been brought in different jurisdictions worldwide. Consequently, Owners and Charterers are currently exposed to competing claims for unpaid bunkers both by OWB or their assignees ING and by physical suppliers, with the possibility of arrests. Our firm recently handled claims brought by the physical supplier SEKA against the Owners of the vessels CE/BREEZE and PANAGIA ARMATA in personam (since maritime liens and subsequent in rem proceedings are not recognized under Greek law) and the judgments –which are believed to be the first- found in favor of Owners.

Facts

In October 2014, Owners instructed the Piraeus office of OW Malta to provide the vessels with certain quantities of bunkers and OW Malta confirmed the order which resulted to a contract for the sale of the agreed bunkers, through the exchange of the relative documents (sale confirmation and invoice coupled with OW standard terms and conditions). Since OW Malta operated as a trader and did not possess physical premises for the storage of bunkers, it instructed SEKA to physically supply the agreed bunkers to the said vessels. The purchase of the bunkers was completed through the respective exchange of documents (purchase confirmation, bunker sale confirmation and invoice together with SEKA’s standard terms and conditions which did not include a retention of title clause). Following OW’s filing for bankruptcy, SEKA asked for direct payment of the price from Owners, by forwarding them the relevant invoice addressed to the Owners and/or Managers and/or Charterers and/or Master and/or OW Malta.

Arguments

SEKA’s case against Owners is that it supplied bunkers to the vessels under a contract entered into through the Owners’ authorized agent, OW Malta. The basis of this argument lies in the fact that SEKA’s invoices are addressed both to OW Malta and the Owners and that SEKA’s standard terms identify as jointly and severally liable for the payment both the party that gave the order and the one for whose the benefit the order was made.

SEKA also supports that even if OW was not an authorized agent of the Owners to conclude the bunker sale agreement, both the vessel port agents who contacted SEKA for the arrangements of the supply and the chief engineer who signed the Bunker Delivery Receipt (BDR) in so doing, acted as agents for the purchase of the bunkers binding the Owners.

The Owners’ primary basis for disputing liability was that no contract has ever been concluded between them and SEKA directly. The contracts for the bunkers were separate and distinct as between Owners and OW Malta and OW and SEKA. OW was a separate legal entity that contracted on its own name and for its own account operating as a fuel trader giving credit to buyers. Owners also contended that a unilateral identification of their liability against SEKA in SEKA’s invoice or its standard terms is not binding on them, since they were notified later -SEKA’s invoice has been sent to them after OW bankruptcy- and they have not accepted these terms since they were not party to the contract between OW and SEKA.

Furthermore, in compliance with ING’s request, acting as assignee of OW entities, Owners have already paid the OW invoice price for the bunkers supplied to their vessels directly to ING, having OW’s consent.
Owners further argued that simple signing of the BDR by their chief engineer as well as their agent’s actions for the bunker supply are not enough to prove the conclusion of a contract on behalf of the Owners.

Finally, Owners in support of their above arguments mentioned that OW Bunker deliveries involved a variety of physical bunker suppliers operating in Greece and therefore they were not aware of the physical supplier that would provide the bunkers at the agreed date (i.e. SEKA, EKO or others).

Piraeus First Instance Court Decision

The claims were brought in security measures proceedings and the judgments have been handed down on December 2015 for CE BREEZE and January 2016 for PANAGIA ARMATA. The judge rejected SEKA’s case and found in favor of Owners. Particularly, the court held that in the said case two separate and distinct agreements have been made, one between OW Malta and Owners and another one between OW Malta and SEKA. In arriving at its decision, the court appears to have taken into consideration that these two contracts include different terms as to the purchase price, credit period, jurisdiction and applicable law and the mere sending of the invoice to the Owners or the signing of the BDR by the chief engineer does not establish liability of the Owners. The court also held that OW did not act as agent of the Owners and had no authority to enter into an agreement on their behalf, but as a separate entity acting in its own name.

Conclusion

This decision is in line with the longstanding recognition of privity of contract by Greek case law and protects Owners from unexpected exposures to physical suppliers’ demands for payment, especially in cases where they have already paid off the price either to OW or ING. Hearings in the merits of the case are expected to take place this year, where a binding authority will be issued. However, considering other jurisdictions as well (see the Valero decision of the United States District Court for the Eastern District of Louisiana, Belgian court case) such claims (either on a maritime lien basis in rem or in personam proceedings) will hardly succeed due to the absence of contractual relationship between Owners and physical suppliers. Meanwhile, the shipping industry remains on hold for the RES COGITANS outcome, the hearing of which in the Supreme Court tοοκ place in late March 2016.

Source: HSN & Karmela Mavrochi, Partner, Costas Georgopoulos & Partners. Attorneys-at-law) 6.4.2016