OW Bunker Bankruptcy
On 7 November 2014, OW Bunker & Trading A/S and OW Supply & Trading A/S filed for bankruptcy in the Danish court due to insolvency caused by, allegedly, speculative trading activities. Since then, a number of other Danish and overseas subsidiaries have also filed for bankruptcy proceedings. The OW Bunker Group was one of the world’s largest bunker suppliers, often acting as intermediary between owners and charterers purchasing bunkers, and physical suppliers. The bankruptcy has given rise to several difficult legal questions, the most notable being whether purchasers should pay the physical supplier actually providing the bunkers to the vessel, or the contractual supplier, OW Bunker, with whom the purchaser has a contract.
Generally, a purchaser is obliged in the first instance to pay any invoice issued by a contractual supplier unless it can be shown that the contractual supplier never had acquired title to the bunkers. On the other hand, physical suppliers may at the same time in certain jurisdiction be entitled to seek payment directly from the vessel/owners. Hence, the OW Bunker bankruptcy has had the awkward consequence that purchasers are facing competing claims for payment and that, effectively, purchasers are required to pay twice.
The duplicate claims are obviously resisted, which has resulted in hundreds of legal actions around the world. The legal systems have to date proven unable to provide satisfactory solutions to the dilemma. One complicating factor is that OW Bunker assigned most rights under its contracts to the Dutch financial institution ING Bank before the bankruptcy.
Claims by ING Bank and unpaid physical suppliers
Whether direct claims by the physical supplier will succeed will depend on the law in the country where the claim is pursued. As a first step, suppliers may try to arrest the vessel. An analysis of the risk of ship arrests for unpaid bunkers in England and Wales, Hong Kong, Singapore, US, Japan, China, Australia, South Africa and Italy can be read in the following document.
The risk of ship arrest for unpaid bunkers arising from the OW Bunker group collapse
Competing claims
Claims by ING Bank and physical suppliers against vessel owners and charterers have been subject to numerous legal proceedings world-wide. Two decisions have received significant attention, both of which generally favour ING Bank’s position:
The RES COGITANS (ultimately decided by the UK Supreme Court [2016] UKSC 23)
Recommendations
Several of the Club’s members are involved in disputes concerning competing claims under OW Bunker invoices. Who should be paid for the stem is, as noted above, a complex legal issue. There is no general answer but instead each situation has to be assessed in the light of the particular circumstances and terms of the relevant contract/s. Members who are faced with competing claims are recommended to seek legal advice. Notably, disputes arising out of these types of situations are generally covered by the FD&D insurance.
Some general recommendations may be provided:
- Thoroughly analyse the claims and identify all parties involved in the sale and physical supply chain to see whether any agreement can be reached which will avoid a double payment having to be made
- If an agreement cannot be reached, purchasers should investigate if payment can be made to a court or pursuant to an interim escrow arrangement, or if any other pre-emptive legal remedy is available (e.g. inter pleader actions). The costs for interpleader actions, that can be significant, should be considered
- In the event duplicate payment has to be made, investigate available resource actions against e.g. the bankruptcy estate or any charterer
The following important steps may be taken by owners and charterers in order to bring contractual clarity in relation to the supply of bunkers, as well as mitigate the risk for competing claims:
- Insert BIMCOs non-lien clause in the charterparty, see the following information from BIMCO
BIMCO Bunker Non-Lien Clause for Time Charter Parties - Explore possibilites to take out insurance to protect against the risk of charterer ( or bunker intermediary) insolvency
- Prior to ordering bunkers, the supplier should be provided with the following notice (this is linked to the above non-lien clause):
Bunker Delivery Receipt template
Important: what to consider when signing the bunker Delivery Receipt
- Avoid any reference on the Bunker Delivery Receipt to the physical supplier’s own Terms and Conditions in order to avoid creating a direct contract between the vessel owner and the supplier
- Stamp and sign the Bunker Delivery Receipt
The use of a bunker intermediary will entail an enhanced risk in relation to the supply of bunkers. Members may therefore consider agreeing to only deal with physical bunker suppliers directly and, if so, a provision to that effect should be inserted in any time charterparty.
In the event an intermediary is used the following precautionary steps can be taken:
- Endeavour to ensure that the intermediary has an appropriate credit insurance
- Endeavour to agree to pay the intermediary the profit element only by way of paying the physical supplier separately, or by way of making one payment to the intermediary which is split into two; the intermediary receives the profit element as principal and the substantive sum as agent for the physical supplier. At least the first alternative needs to be expressed in the contract with the intermediary
- Endeavour to ensure that the ultimate buyer has the longest credit period in the contractual chain by way of a term in the contract with the intermediary that the intermediary has to first pay their supplier in full for the bunkers before the ultimate buyer is obliged to pay them
A word of caution
There is no magic answer which will eliminate all legal risks in relation to the supply of bunkers. All situations differ and there are different parties involved in supply chains. However, the above constitute steps that owners and charterers can take to try to mitigate those risks as much as possible, in appropriate circumstances. It is acknowledged that the steps may be difficult to take in practice.