ITIRO CORPORATION BVI v. THE OWNER AND/OR DEMISED CHARTERERS OF THE SHIP OR VESSEL “ANGELIC GLORY”

HCAJ 90/2020

[2021] HKCFI 1559

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY ACTION NO 90 OF 2020

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Admiralty Action in rem against: the ship or vessel “ANGELIC GLORY” (IMO No. 9261798)

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DECISION

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1.  The Plaintiff applies for leave to appeal against the Decision (and Order) of this court dated 13 April 2021.

2.  The court is grateful for the extensive research carried out by Mr Kirpalani, who appears for the Plaintiff, on the “well founded” threshold applied by the court under O 75, r 21(7).  In short, the exercise has unearthed no clear guidance from any authority.

3.  However, the court was required to discharge a judicial function under the said rule.  To conclude that a case was well founded must involve an evaluation of its merits. 

4.  The Plaintiff contended that the Defendants had provided no consideration for the Addendum to the Charterparty which the parties had signed.  Instead, the Plaintiff was forced into signing the document under economic duress.  The basis of that claim was that the Charterparty should have been in the same terms as a previous charterparty for a sister vessel, Angelic Peace, which contained a modified clause 63 allowing the carriage of sugar. 

5.  The problem with the allegation was that, according to the Plaintiff’s own evidence, the Charterparty was contained in a “fixture recap” dated 7 March 2019.  A copy of a pro forma charterparty was attached to the fixture recap and that document did not contain a modified clause 63. 

6.  The Plaintiff then said that the attached pro forma should have contained an amended clause 63 which was used in the Angelic Peace charterparty.  The parties’ brokers had forgotten to incorporate the amended clause 63.  That contention lied at the heart of the Plaintiff’s case on the Addendum. 

7.  With respect, the oversight argument could be misleading because in the Angelic Peace transaction the same or similar pro forma was used, ie, without any modification to clause 63.  The modification was only contained in an email dated 31 January 2019 setting out the “recap” of the negotiations.    

8.  Further, (a) there was no disagreement with the attached pro forma for the Angelic Glory Charterparty and (b) the statement of the Plaintiff’s broker was that: “As far as I can recall, no amendments to clause 63 were discussed during the negotiations leading to the [Angelic Glory Charterparty]”.

9.  It is therefore difficult to see why this court was wrong to have taken the view that the point was at best arguable.  I therefore struggle to see a reasonable prospect of success in the intended appeal. 

10.  On the other hand, taken into account the lack of clear authority on the applicable threshold and possibly against my better judgment, I grant leave to appeal.  Costs of this application be in the cause of the appeal.