Royal Bank of Scotland PLC v. The “Golden Trinity” et al.

In Maritime Liens, Mortgages & Priorities on (Updated )

This was a hearing to determine the priorities to the proceeds of sale from three vessels owned by various one ship companies but mortgaged under fleet type mortgages. The vessels were all under the management of a single company, the principal of whom was a Mr. Peter Lygnos. The main claimants were the mortgagees of the vessels and Tramp Oil & Marine Limited, a bunkers supplier that had supplied bunkers to the various vessels and to alleged sisterships of the vessels. Tramp Oil sought to enhance its priority by challenging the various mortgages, by alleging a maritime lien and by arguing that the normal priorities should be altered in the circumstances of the case. With respect to Tramp Oil’s attempts to challenge the mortgages the Court held that the mortgages were properly registered, valid and enforceable. The Court then considered Tramp Oil’s claim to a maritime lien. The Court allowed the claim in respect of bunkers supplied at an American port through the agency of an American supplier on the basis that Tramp Oil was subrogated to the American supplier’s maritime lien created under American law. It is noteworthy that in reaching this conclusion the Court applied American law even though Tramp Oil’s terms and conditions specified English law. The Court did so on the basis of Imperial Oil v Petromar, (2001) 283 N.R. 182, and the fact that there was no real connection with England, the jurisdiction selected in Tramp Oil’s standard trading conditions. The Court disallowed Tramp Oil’s claim to a priority on the basis of a contractual maritime lien as provided for in its standard trading conditions. The Court held that a contractual maritime lien was not a true maritime lien which arises automatically without antecedent formalities. The contractual lien did not raise the claim above the priority given to other statutory in rem creditors. The Court next considered the sistership claims. The Court first noted that even if the sistership claims were valid such claims would rank as ordinary in rem claims and not have the status of maritime liens. The Court, however, rejected the sistership claims. In doing so it noted the difference between the French and English versions of section 43(8) of the Federal Court Act. The English version requires consideration of the registered owners whereas the French version requires consideration of the beneficial owners. The Court held that the French version was the better approach and stated that if Tramp Oil could prove that the vessels it bunkered were beneficially owned by the owners of the Defendant ships there would be a sistership claim. The Court further noted that in trying to determine the beneficial ownership it is permissible to look behind the registered ownership and that this was not an unauthorized piercing of the corporate veil. The factors considered by the Court included: that the vessels were under common management; that the Boards of Directors of the one ship companies were identical; that the Banks required a personal guarantee from Peter Lygnos; that the ships were insured under the same insurance policy; and that the ships were jointly and severally liable under the mortgages for each other’s debts. These factors, however, were not sufficient to find a sistership relationship. The Court noted that there was no evidence as to who ultimately enjoyed or was entitled to the profit and benefit derived from the ships, something which leads to the concept of beneficial ownership. Accordingly, the Court found the sistership relationship had not been proved. The Court finally turned to the question of whether the priorities should be re-ordered on the basis of equitable considerations. The issue here was whether the mortgagees ought to have moved sooner to realize against the ships. The Court found that banks are entitled to grant indulgences to customers in bad times and refused to re-order the priorities on this basis. The Court noted, as it frequently does, that very special circumstances are required to vary the usual ranking and that there is a very heavy onus on the party seeking to do so.