Changes

In 2019, the Bank had agreed to provide financing to Gulf by way of a facility agreement and first demand guarantee dated 18 December 2019 ("Facility Agreement"). As security for this financing, the Bank and Gulf entered into a pledge agreement and a deed of assignment, both also dated 18 December 2019 (the "Pledge Agreement" and the "Deed of Assignment"). Under these agreements, amongst other things, all rights under bills of lading issued in respect of financed goods were pledged and assigned to the Bank.

It was not in dispute that some of the trades which were financed by the Bank proceeded by way of the Bank's client on-selling the goods to its buyers. The repayment of the bank loan, so called "self-liquidating", was effected by the proceeds being paid directly by the sub-buyer to the Bank.

Issue 1: Did the bill of lading contain and/or evidence the/a contract of carriage in respect of the Cargo on or after 6 April 2020 (being the date of the Novation Agreement) and prior to the alleged misdelivery?

Issue 2: Alternatively, were Owners' obligations as regards the carriage of the Cargo contained exclusively in the Charterparty and/or the Novation Agreement of 6 April 2020?

The Owners, on the other hand, submitted that there was no authority to support the proposition for which the Bank contended and that the Bank sought to draw a false analogy with the orthodox position and infer the creation of contractual rights. The Owners argued that the arrangements between the Owners and BP were terminated by the novation and that BP did not intend the relationship between them to be governed by the bill of lading, if their existing relationship was dissolved.

Moulder J reasoned that the blll of Lading did not contain the contract of carriage between the Owners and the lawful holder of the bill, BP, on or after 6 April 2020 (being the date of the Novation Agreement) and prior to the alleged misdelivery.