containers

The OW Bunker group was one of the biggest distributors of bunkers (marine fuel, fuel oil and marine diesel) in the world until November 2014. OW Bunker’s head office was located in Denmark, there was however an office in the Netherlands as well (OW-Bunker Nederland). In November 2014 several OW-Bunker entities have been declared bankrupt. After OW Bunker’s bankruptcy several vessels that had received bunker fuel through OW Bunker became subjects of detachments (ship arrests).

In a large number of these cases the delivery of bunkers became subject to multiple detachments on the same vessel. The background behind these detachments usually was as follows.
A shipping company (shipowner) ordered bunkers from OW-Bunker. These bunkers were to be delivered to a seagoing vessel. OW Bunker then ordered these bunkers from another distributor or supplier of bunkers, who actually delivered said bunkers to the seagoing vessel (the physical distributor). At delivery the Master or the Chief Officer of the vessel signed a note of delivery (a ‘bunker delivery note’). After the bankruptcy of OW Bunker the physical distributors did not get paid. These unpaid bunker distributors were looking for ways to get paid, whilst circumventing the bankruptcy of OW Bunker. This lead to detachments on vessels that had received bunkers from OW Bunker in multiple countries. In some cases OW Bunker had also (not yet) been paid. It is crucial to know that OW Bunker had pledged her claims to her bank/third party financer. The bank then detached the vessels that had received bunkers from OW Bunker based on the claims it had a pledge on. This meant that it was possible that the same delivery of bunkers became subject to two detachments: one from the company that physical distributor of the bunkers to the vessel and one from the bank.

From a judicial perspective the detachments by the physical distributor of the bunkers are most interesting. The detachments by these distributors tried to recover their claims on the property of someone else then their debtor’s. Their debtor was in fact OW Bunker and not the shipowner. The principle is that a claim is only to be recovered on the assets of the debtor, but not on someone else’s. Within Europe the port of Antwerp was known for its detachments by bunker distributors. Under Belgian law, at the time of the bankruptcy of OW Bunker, this was a possibility. The Belgian High Court had delivered multiple judgments (f.e. the ‘Omala’ case from 10 May 1976 and ‘Atlantic Horizon Corp./Maritima & Servicios C.A. from 23 May 2003) that it was possible to detach a ship for a ‘seadebt’ (a maritime claim) ‘indifferent as to whether the owner or another person warrants the seadebt’. In June 2016 the Belgian High Court (judgment of 30 June 2016, ‘Annette Essberger’) tightened up this stance. In this judgment - shortly summarised – the High Court decided that a claim cannot be recovered from a vessel if the debtor is another entity than the shipowner or the shipper.

In a case that was decided on in August 2018 by the Rotterdam District Court (ECLI:NL:RBROT:2018:6254) there was a detachment in Antwerp by a physical distributor (‘Transcor’) on a vessel (‘Tequila’) they had distributed to on instructions of OW Bunker Nederland. This detachment had been lifted after the owner (their P&I Club) of the Tequila had delivered a bank guarantee. Transcor needed a judgment that forced OW Bunker to pay Transcor to draw under the guarantee. To obtain this judgment Transcor had initiated proceedings before the Rotterdam District Court against OW Bunker Nederland, which had already been declared bankrupt. In this procedure the owner (in this case, P&I Club) of the Tequila had intervened and put forward a defence plea, to make sure Transcor would not be able to draw under the bank guarantee.
In its judgement, the Rotterdam court provides a clear view of the effect of Dutch insolvency law on the Transcor’s claims. The primary claim of Transcor, that OW Bunker Nederland was ordered to pay the bunkers, stranded on Dutch insolvency law. Art. 26 Dutch Bankruptcy Act states that a claim for payment can solely be submitted for verification with the receiver of the bankruptcy etstate. This verification procedure is the only way to proceed about these types of claims. Other than the request for payment Transcor also filed a claim that aimed to get a declaration of the judicial relationship between parties, a so called ‘declaratory judgment’. This claim by Transcor essentially aimed to get a judgment that stated that OW Bunker Nederland owed the amount invoiced (and additional costs) to Transcor. Such ‘declaratory proceedings’ do not lead to a condemnatory judgment, but to a declaratory judgment. This declaration was given by the court, on the provision that this judgment does not have any legal effect on the bankruptcy estate. Furthermore the court decides that, applying the ‘news’ Belgian detachment law, this declaratory judgment cannot be enforced under the guarantee.

In conclusion it is not possible for Transcor to manoeuvre its way around the bankruptcy of OW Bunker Nederland by arresting the vessel in Antwerp.

Hans Flameling