This was a continuation of the proceedings in Dymi Maritime Co Ltd v ING Bank NV ECLI:NL:RBAMS:2021:3120 (CMI2017).

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: ING is to send a request in writing to the Registrar of the High Court of Gujarat in Ahmedabad, India, (the Indian Court) to return the bank guarantee dated 25 May 2016 issued on behalf of Dymi.

After the interlocutory judgment in Dymi Maritime Co Ltd v ING Bank NV ECLI:NL:RBAMS:2021:3120 (CMI2017) this procedure revolves around the question whether the arrest effected by ING in February 2016 in India on Dymi's ship, the Naias, as security for the recovery of a claim for the supply of fuel on board the vessel of which not Dymi but a third party was a debtor, after having obtained leave from the Indian Court, was lawful under the applicable Indian law.

In the earlier judgment it was established that the proceedings before the Indian Court are pending between the same parties and have the same cause of action as the proceedings before the Amsterdam District Court. Furthermore, it is expected that the decision of the Indian Court may be recognised in the Netherlands. In addition, the Indian Court has (international) jurisdiction to take cognisance of the dispute, because the arrest was effected on the ship in India, and Indian law applies to the dispute. Furthermore, it follows from the legal opinion submitted by Dymi that the judgment is enforceable under Indian law. Under these circumstances, the Dutch Court should exercise great restraint. In principle, the judgment of the Indian Court is guiding. There will only be grounds for a different decision if the Indian judgment contains serious flaws, namely when the proceedings do not meet the requirement of a proper administration of justice, or because the judgment conflicts with the public order (Hoge Raad 26 September 2014, ECLI:NL:HR:2014:2838 (Gazprombank)). This is not such a case, so the Indian Court's decision will be followed.

This ultimately means that under Indian law, ING has no maritime claim, nor does it have a maritime lien over the ship. The arrest on the Naias is therefore unlawful, and the bank guarantee must be returned to Dymi.

The Indian Court has not determined that ING must pay any damages to Dymi. However, the Indian Court did order ING to furnish security in the amount of USD 99,000 for a possible later order to pay damages to Dymi. There are no grounds for a further decision to be reached by a Dutch Court about damages to be awarded to Dymi. The judgment of the Indian Court is based on the judgment of the Indian Supreme Court of 14 September 2017 in Chrisomar Corp v MJR Steels Pvt Ltd (CMI149), and the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act 2017 (the Act). At the time of the ship's arrest, the Chrisomar judgment had not yet been handed down, and the Act had not yet come into force. The Indian Court therefore considered that it could not be said that ING had knowingly misled the Court or abused any procedural law at the time of the arrest. This meant that the claim for damages for wrongful arrest could not be allowed under Indian law.

The fact that ING, in its application to the Indian Court, did not mention that OWB Malta did not deliver the fuel itself, that OWB Malta had not paid the actual supplier, Lekeren International Ltd (Lekeren), that Lekeren did not submit a claim in OWB Malta’s bankruptcy, and that ING did not submit the master's 'note of protest', does not lead to any liability on ING's part. It cannot be inferred from the decision of the Indian Court that ING's course of action gave rise to an obligation to pay damages under Indian law. The Indian Court did not establish that ING (or its local agent) knowingly and deliberately provided incomplete information to that Court, so ING (still) is not liable to pay damages. The consequence is that there are no indications for a Dutch court that a claim for damages under Indian law should be awarded.