Mrs Justice Moulder has today handed down judgment in the matter of Unicredit Bank A.G. v Euronav N.V.  EWHC 957 (Comm), a claim by a German bank for damages under a Bill of Lading for misdelivery by the owners of the Sienna, Euronav.
Unicredit had financed the purchase by Gulf Petrochem FZC (“Gulf”) of 80,000 mt of LSFO (“the cargo”) from BP Oil International Limited (“BP”). The arrangements put in place between Unicredit and Gulf were that the cargo would be re-sold to sub-buyers on terms that required those sub-buyers to pay Unicredit directly and, thereby, repay the sums financed.
BP had initially chartered the Vessel from Euronav and was the shipper under the Bill of Lading. The charterparty required Euronav to discharge the cargo without production of the Bill of Lading if requested by the charterer.
Following payment of the purchase price by Gulf to BP by way of a letter of credit issued by Unicredit, BP, Euronav and Gulf entered into a novation agreement by which BP ceased to be the charterer and Gulf became so in its place.
At the time of discharge of the cargo, the Bill of Lading remained in BP’s possession and had not been endorsed.
Euronav discharged the cargo without production of the Bill of Lading.
The sums financed by Unicredit were not repaid by Gulf or the sub-buyers. Having become the lawful holder of the Bill of Lading subsequent to the date of discharge, Unicredit, therefore, brought a claim for damages for breach of a contract of carriage said to be contained in the Bill of Lading by Euronav delivering the cargo without production of the Bill of Lading
Mrs Justice Moulder dismissed the claim.
Firstly, she held that that the Bill of Lading did not contain any contract of carriage at the time of discharge: see paras 27-49 of the judgment. She held that the Bill of Lading, when issued, was a mere receipt since BP was also the voyage charterer at that time. She rejected Unicredit’s argument that the novation had the same effect as if BP had endorsed the Bill of Lading to a third party. In other words, she rejected the argument that a contract “sprang up” between BP and Euronav on the terms of the Bill of Lading when BP ceased to be the charterer by reason of the novation.
Secondly, she held that even if the Bill of Lading had contained a contract of carriage at the time of discharge, the discharge of the cargo without production of the Bill of Lading did not cause the loss claimed or such loss would have been suffered by Unicredit in any event: see paras 89-122.
Robert Thomas QC and Paul Toms acted for Euronav, instructed by Andrew Preston, Dolly Brown and Paul Best of Preston Turnbull LLP.