This case involved the delivery of bunkers to the Naias, which was owned by Dymi Maritime Co Ltd (Dymi) and time chartered to Itiro Corp BVI (Itiro). The bunkers were ordered by Tatsuo Consulting Ltd (Tatsuo), a company affiliated to Itiro, from OW Bunker Malta Ltd (OWB Malta). Under the agreement, Tatsuo agreed to grant a maritime lien over the ship. When the OW Bunker Group (OWB Group) became insolvent and OWB Malta's invoice remained unpaid, ING Bank NV (ING), exercising its security rights as former financier of the OWB Group, arrested the Naias in India. The arrest was lifted against a bank guarantee. Dymi claimed for the return of the guarantee and compensation for wrongful arrest.

Held: The decision is reserved pending further submissions from the parties on Indian law.

In the light of the interpretation of the Dutch Supreme Court in its judgment of 17 July 2020 (The Forest Park) (CMI1015), the application of art 5 of the Arrest Convention 1952 can at the most lead to the exclusive jurisdiction of the Court in India that effected the arrest. However, the Indian Court is not a court of a Contracting State, and it is not established that India is (formally) bound by the the Arrest Convention 1952 in any way.

The applicable law on the extra-contractual claims of Dymi must be determined by an application of the EC Regulation 864/2007 (Rome II). Pursuant to art 4.1 of Rome II, the law of India is applicable, because the event giving rise to the damage is located there. It appears from the opinions submitted by both parties that the substantive law of India corresponds to the substantive rules in the Arrest Convention 1952.

The bunkering agreement between Tatsuo and OWB Malta is governed by English law. Assuming that ING can enforce the securities of OWB Malta on equal footing, the question remains whether Dymi (under the applicable English law) can be regarded as a (co-)debtor of the bunker claim. Dymi has not ordered bunkers itself, and the apparent authority of Tatsuo (as an agent of Itiro, but not of Dymi) to order bunkers on behalf of the 'master /and/or owner' does not mean that it placed this order on behalf of Dymi. Given that it has not been alleged or demonstrated that Dymi was aware of, and consented to this, or that Tatsuo was authorised to do so, or that Dymi ratified this action later, this Court fails to see how Dymi could be bound by agreements made between third parties.

The question of the lawfulness of the arrest thus focuses on the question of whether under Indian law an arrest could be effected on the ship for the bunker claim of which a third party, rather than the shipowner, was the debtor. Via the CML CMI Database of Judicial Decisions on International Conventions (https://cmlcmidatabase.org) this Court has taken note of a number of judgments on Indian law, of which the following appear relevant: Chrisomar Corp v MJR Steels Pvt Ltd (CMI149); MV Silvia Glory v Dan Bunkering (Singapore) Pte Ltd (CMI976); GP Global APAC Pte Ltd v MV Silvia Glory (CMI1016); and ING Bank NV v MV Naias (CMI1277). On the basis thereof it appears that the arrest was unlawful, but that a claim for compensation for wrongful arrest cannot be awarded under Indian law.

To avoid an unanticipated judgment this Court asks the parties to share their views on the meaning of the judgment in ING Bank NV v MV Naias in relation to: (i) the lawfulness of the arrest under Indian law; (ii) the right to damages for wrongful arrest under Indian law; and (iii) more generally, the admissability of Dymi's claims, also in the light of the opinions on these issues which the parties have submitted.

[For further proceedings, see Dymi Maritime Co Ltd v ING Bank NV ECLI:NL:RBAMS:2022:1908 (CMI2018).]