Subject: Fwd: MT MISCA- CP dated 08.08.2023 - WITHOUT PREJUDICE
From: "[email-masked]" <[email-masked]>
To: [email-masked], Tetis Global <[email-masked]>
Cc: hosseini <[email-masked]>, [email-masked], [email-masked], MD <[email-masked]>, md <[email-masked]>
Date: Tue, 10 Oct 2023 21:32:26 +0400

Dera Mr Hosseini,

Please find below email received from owner of Misca lawyer through broker.
Owner is calculating his lost 3,810,000 USD!!
The owner’s lawyer is asking for 2 M USD in addition to 10% which we have already paid to them for settlement!!

Best Regards

Capt. Ali

> Begin forwarded message:
> 
> From: <[email-masked]>
> Subject: FW: MT MISCA- CP dated 08.08.2023 - WITHOUT PREJUDICE
> Date: 10 October 2023 at 8:11:18 PM GST
> To: "'misca Misca'" <[email-masked]>
> 
> Dear Sirs,
>  
> Good evening.
>  
> Following received.
>  
> Best Regards
>  
> From: Electra Panayotopoulos <[email-masked] <mailto:[email-masked]>> 
> Sent: Tuesday, October 10, 2023 7:06 PM
> To: Damayanti Sen <[email-masked] <mailto:[email-masked]>>
> Cc: [email-masked] <mailto:[email-masked]>; Alessandro Tricoli <[email-masked] <mailto:[email-masked]>>
> Subject: RE: MT MISCA- CP dated 08.08.2023 - WITHOUT PREJUDICE
>  
> WITHOUT PREJUDICE
>  
> Dear Sirs, 
>  
> We write further to our message below and write with Owners’ preliminary calculation of damages with a view to closing the matter as soon as possible.
>  
> Owners calculate their losses arising from Charterers’ repudiatory breach/failure to provide a cargo as follows:-
>  
> Positioning cost bunkers from East Coast India to Basrah: 3,160 miles, 12 days x 50 Mt x USD 650 pmt = USD 390,000
>  
> Positioning cost time from East Coast India to Basrah: 12 days x USD 60,000 per day = USD 720,000
>  
> NOR tendered on 20th August so time lost: 45 days x = USD 2,700,000.
>  
> The fixture obtained by Owners for 7-10 October has avoided expensive repositioning costs from opl Basrah to Singapore (15 days, x 50 Mt per day X 650 pmt = USD 487,500 plus 15 days of time x USD 60,000 = USD 900,000).
>  
> Owners’ claim therefore totals USD 3,810,000 plus interest and costs and is the minimum amount Owners can expect to recover in arbitration. As previously indicated to Charterers in direct w/p exchanges, Owners would be willing to accept the sum of USD 2,000,000 in addition to the USD 450,000 already received from Charterers to close the matter. 
>  
> As to the demurrage rate which Charterers seek to challenge although it was expressly agreed by the parties and recorded in a clean Recap.  When Owners fixed the Charterparty they had also been offered another high value cp. Instead, they decided to fix with Charterers.  It is not correct to assert that this fixture was the only one with a USD 60,000 demurrage rate, everything else being at USD 25,000. 
>  
> Finally, if Charterers had cancelled the cp within a few days after fixing rather than over two weeks after the Vessel had arrived Basrah, the loss to Owners would have been significantly less, as it would have allowed them to explore other alternatives. 
>  
> We trust that the above calculations are clear. We look forward to hearing from Charterers with the acceptance of Owners’ generous settlement proposal.
>  
> This offer reflects Owners’ wish to establish a long-term relationship and is a commercial proposal significantly more generous than Owners can expect to recover in London arbitration.
>  
> We look forward to receiving Charterers’ response no later than cob 12th October 2023.
>  
> All Owners’ rights and remedies remain fully reserved.
>  
> Kind regards,
>  
>  
> 	
>  
> Electra Panayotopoulos
> T: +30 210 461 7999  <tel:+442037718869>	
> M: +30 6949 240 916 <tel:+306949240916>	
> www.shoresidelaw.com <https://www.shoresidelaw.com/>
>  
> Panayotopoulos & Primikiris Law Firm – Regulated by the Piraeus Bar
> 41 Agiou Dimitriou str., 185 46, Piraeus, Greece
> The contents of this email are confidential and may be protected by legal privilege. If you are not the intended recipient, please notify us as soon as possible: you should not copy, forward, disclose or use the contents. Shoreside Law Ltd is registered in England & Wales No. 09478922. VAT No: 217 146 917. Registered Office: 11 The Timber Yard, Drysdale Street, London N1 6ND. Shoreside Law Ltd is authorised by the Solicitors Regulation Authority (ID 623018).
>  
>  
>  
>  
> From: Electra Panayotopoulos 
> Sent: Wednesday, October 4, 2023 9:18 PM
> To: Damayanti Sen <[email-masked] <mailto:[email-masked]>>
> Cc: [email-masked] <mailto:[email-masked]>; Alessandro Tricoli <[email-masked] <mailto:[email-masked]>>
> Subject: RE: MT MISCA- CP dated 08.08.2023
>  
> Dear Sirs, 
>  
> Further to our message below and as a result of Owners’ efforts, it appears that a fixture has now been found for the Vessel. In mitigation of their losses, Owners hereby accept Charterers’ repudiatory breach and treat the Charterparty as terminated with immediate effect.
>  
> We will revert further with full particulars of Owners’ losses as accrued to date.
>  
> Kind regards, 
>  
>  
> 	
>  
> Electra Panayotopoulos
> T: +30 210 461 7999  <tel:+442037718869>	
> M: +30 6949 240 916 <tel:+306949240916>	
> www.shoresidelaw.com <https://www.shoresidelaw.com/>
>  
> Panayotopoulos & Primikiris Law Firm – Regulated by the Piraeus Bar
> 41 Agiou Dimitriou str., 185 46, Piraeus, Greece
> The contents of this email are confidential and may be protected by legal privilege. If you are not the intended recipient, please notify us as soon as possible: you should not copy, forward, disclose or use the contents. Shoreside Law Ltd is registered in England & Wales No. 09478922. VAT No: 217 146 917. Registered Office: 11 The Timber Yard, Drysdale Street, London N1 6ND. Shoreside Law Ltd is authorised by the Solicitors Regulation Authority (ID 623018).
>  
>  
>  
>  
> From: Electra Panayotopoulos 
> Sent: Wednesday, October 4, 2023 7:47 PM
> To: Damayanti Sen <[email-masked] <mailto:[email-masked]>>
> Cc: [email-masked] <mailto:[email-masked]>; Alessandro Tricoli <[email-masked] <mailto:[email-masked]>>
> Subject: RE: MT MISCA- CP dated 08.08.2023
>  
> Dear Sirs, 
>  
> Thank you for your message below which we have now discussed with our clients.
>  
> As evidenced by your own message, the arguments presented are in the realm of fantasy, as demonstrated by your repeated references to “implied” and “implications”. The parties’ agreement is reflected in their Recap which records nothing about agreement to share the risk of cargo being unavailable. A shipowner cannot be expected to commit to a fixture unless the charterer commits to provide a cargo. No implication is to be drawn as to the Charterparty being “conditional” on the Charterer finding a cargo. To suggest that shipowners must commit their asset (the Vessel) in the hope that Charterers will find a cargo that will allow Owners to earn their freight is nonsensical and has no prospects of success under English law. 
>  
> We would also remind you that where one party repudiates a contract under English law, the innocent party is notrequired to accept the repudiation and terminate the contract (see for example, the Aquafaith, [2012] EWHC 1077 (Comm)). The Vessel has been waiting for Charterers to load a cargo. Despite their best efforts, no suitable replacement fixture has been found, so the Charterparty remains in effect. 
>  
> If Charterers require the Charterparty to be formally terminated, Charterers are invited to make their best offer for consideration by the Owners. If agreement is reached in respect of Owners’ losses to date, the Charterparty can finally be terminated by consent. Until agreement is reached, Owners’ rights remain reserved.  
>  
> Owners look forward to hearing from Charterers with a positive and realistic proposal so that the termination which Charterers seek can be agreed.
>  
> Kind regards,
>  
>  
> 	
>  
> Electra Panayotopoulos
> T: +30 210 461 7999  <tel:+442037718869>	
> M: +30 6949 240 916 <tel:+306949240916>	
> www.shoresidelaw.com <https://www.shoresidelaw.com/>
>  
> Panayotopoulos & Primikiris Law Firm – Regulated by the Piraeus Bar
> 41 Agiou Dimitriou str., 185 46, Piraeus, Greece
> The contents of this email are confidential and may be protected by legal privilege. If you are not the intended recipient, please notify us as soon as possible: you should not copy, forward, disclose or use the contents. Shoreside Law Ltd is registered in England & Wales No. 09478922. VAT No: 217 146 917. Registered Office: 11 The Timber Yard, Drysdale Street, London N1 6ND. Shoreside Law Ltd is authorised by the Solicitors Regulation Authority (ID 623018).
>  
>  
>  
>  
>  
> From: Damayanti Sen <[email-masked] <mailto:[email-masked]>> 
> Sent: Wednesday, September 27, 2023 3:25 PM
> To: Electra Panayotopoulos <[email-masked] <mailto:[email-masked]>>
> Cc: [email-masked] <mailto:[email-masked]>; Alessandro Tricoli <[email-masked] <mailto:[email-masked]>>
> Subject: MT MISCA- CP dated 08.08.2023
> Importance: High
>  
> To: M/s Shoreside Law, Lawyers instructed by Arve Shipping Inc., Owners of the M/T MISCA 
> [Kind Attn: Electra Panayotopoulos <[email-masked] <mailto:[email-masked]>>]
>  
> CC: Brokers (with a request that this message be passed on)
>  
> Dear Sirs,
>  
> Sub: MT MISCA- CP dated 08.08.2023 (the “Charterparty”)
>  
> We write in reference to the captioned matter and further to your messages of 12 September 2023 and 25 September 2023. 
>  
> We are UAE lawyers instructed by the Charterers, M/s Xinhua Shipping LLC and upon their instructions address you as follows:
>  
> At the outset, the contents of your messages referred to above are denied and disputed in their entirety. The claim put forth by your Clients is fallacious and untenable both under law and on the particular facts of this dispute and all of Charterers’ rights in law and under the Charterparty remain expressly reserved. 
>  
> To recap the position, parties entered into the present fixture with open eyes and knowing full well the inherent nature and associated risks of the business being undertaken by way of the present fixture. At all times, your clients were well aware of the possibility of cargo being unavailable and in fact chose to charge a premium/markup on the freight and demurrage for this voyage to cover such risk. It was therefore implied in the peculiar terms of the fixture, that availability of the cargo was a precondition to the Charterparty. In other words, the Charterparty was conditional upon the Charterer obtaining cargo for the agreed loading period, and failure to so obtain cargo relieved parties of their obligations conditionally agreed. 
>  
> Without prejudice to the above, our Clients unequivocally advised Owners’ as far back as 5 September 2023 that cargo was unavailable thereby releasing the Vessel and cancelling the Charterparty. Implicit within that termination, was notice to your clients that it had become impossible for Charterers, for reasons wholly beyond their control, to obtain a cargo of the type agreed between parties for this fixture, at the agreed loading port, and that therefore, the Charterparty had become frustrated. By virtue of such frustration, the obligation (if any) on Charterers to provide cargo was excused and consequently the question of a breach of that obligation can not and does not arise. 
>  
> Even assuming (without admission) that Charterers were in breach of their obligation (if any) to provide cargo, Owners themselves have recognised in their various messages (including your last message of 12 September) that such alleged breach would amount to a repudiation of the Charterparty. 
>  
> In circumstances where Owners’ case (pitched at the highest) is that Charterers have breached their obligation to provide cargo, we simply do not understand Owners’ unreasonable stance in refusing to accept such breach and insisting (without any legal basis whatsoever) that the Charterparty be performed. Owners cannot on one hand allege repudiatory breach of the contract and seek damages and in the same breath turn around and ask Charterers to perform the Charterparty. 
>  
> The position is quite simple- on 5 September 2023, our Clients categorically and unequivocally advised Owners that they were releasing the Vessel and cancelling the Charterparty. Without prejudice to the points made above and, on a demurrer, that notice by itself ought to have clearly shown Charterers’ alleged renunciation of the contract. On 7 September 2023, Owners brought (an extremely inflated) claim in damages for such alleged repudiatory breach whilst rejecting the termination, a position which by itself is inconsistent and paradoxical. This has been Owners’ tactic throughout this rather unfortunate commercial relationship- we can only speculate that Owners expect to use this as a method of arm-twisting to negotiate their alleged damages claim. Owners would be well advised and are hereby put on notice that Charterers will simply not stand for this and are well prepared to defend their position. 
>  
> Unfortunately for Owners’ they cannot choose to have their cake and eat it too. If their position is the cargo was not loaded within the laydays and therefore Charterers are in breach (a position, they accepted in reply to Charterers’ cancellation of 5 September 2023) they must accept such breach and elect to terminate the Charterparty. 
>  
> The law of damages is well settled especially in circumstances where, as the Owners appear to allege in this case (an allegation which is not admitted), the lack of cargo does not prevent laytime from commencing. Even on Owners’ best case, Charterers’ liability if any will simply be for demurrage if they fail to load within the laydays. Given Charterers’ unequivocal notice to Owners and the substantial delay which clearly shows that the adventure has been frustrated, Owners’ ought to understand that the Charterparty stands cancelled as of the date of Charterers notice of such frustration leading to cancellation i.e. 5 September 2023 and any alleged claim for demurrage would be (even at best) till such notice of cancellation. 
>  
> You have no doubt advised Owners’ and we take this opportunity to remind them that Owners are under a strict duty to mitigate any alleged damages. We were quite taken aback to learn that inspite of Owners’ having been put on notice as far back as 5 September 2023 that the Charterparty stood frustrated and cancelled, the Vessel is till date tendering NOR thereunder. We are well aware that there are and have been alternate fixtures available in the market in this entire period, and Owner’s conduct including their choice to ignore their duty to mitigate in order to maintain their untenable position, will of course be clear evidence in any ultimate damages claim that they may choose to bring and Charterers’ rights in this regard remain expressly and fully reserved. 
>  
> Similarly, Charterers’ position as regards the advance freight of 10% paid to Owners remains reserved.
>  
> Notwithstanding the above and simply as a gesture of goodwill and to close this unfortunate chapter so that parties can move forward with their respective businesses, Charterers are prepared to negotiate on a commercial basis if Owners’ put forward a realistic quantification of their alleged damages. Needless to say, this will be wholly without prejudice to all of Charterers’ rights, contentions and defences which remain fully reserved. We should however point out that sticking to their untenable position or presenting an unsupportable and excessively inflated claim (as the Owners have sought to do) without any evidence of mitigation whatsoever, is singularly unhelpful to resolving the issue and does not take matters forward at all.
>  
> Our Clients rights and remedies under contract and in law remain expressly reserved. 
>  
> We are also sending this message through the broking channel and request Brokers to confirm once this has been passed on. 
>  
> 
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> 
>  <https://www.legal500.com/firms/14356-fichte-co/18683-dubai-united-arab-emirates>	
> Best Regards,
> Damayanti Sen
> Senior Associate 
> 23rd Floor | Rolex Tower | Sheikh Zayed Road | P.O. Box 116637 | Dubai | UAE 
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