Subject: Fwd: MT MISCA- CP dated 08.08.2023
From: "[email-masked]" <[email-masked]>
To: [email-masked]
Cc: md <[email-masked]>
Date: Fri, 17 Nov 2023 17:05:37 +0400

Dear Sir,

Below for your kind perusal.

Best Regards

Capt. Ali

> Begin forwarded message:
> 
> From: Damayanti Sen <[email-masked]>
> Subject: RE: MT MISCA- CP dated 08.08.2023
> Date: 17 November 2023 at 2:36:47 PM GST
> To: MD <[email-masked]>
> Cc: Alessandro Tricoli <[email-masked]>
> 
> Dear Capt. Ali,
>  
> I refer to our telecons earlier this week in relation to the captioned matter.
>  
> As discussed, we understand that your charterers down the line are keen to close this file. As such you wish to see if an amicable solution can be found with Owners up the line to avoid a situation where Owners only commence action in due course, by which time your charterers may not have sufficient assets for you to effectively recover any claim passed down the line.
>  
> As advised during our call, Owners have a period of 6 years under English law to commence action under the CP and you will appreciate that whether they choose to do so now or after some time is completely their prerogative. Nor can we force them to accept a settlement to close this claim. Of course, under your CP with your down the line Charterers (which we understand is on back-to-back terms) you also have the same limitation period to commence action. Similarly, just as there is a possibility that your charterers will shut down, you will appreciate that by waiting to commence action, Owners too run the same risk as against Xinhua.
>  
> As such, our advise still remains that we should remain quiet and see if Owners choose to pursue an expensive arbitration or come back with a better counter-offer. To protect your position as against your charterers, it may be worthwhile to see if they agree to put in the Owners claimed amount (or the best possible quantification thereof that they are prepared to provide) in escrow, or provide a bank guarantee or similar security to be drawn down if Owners do eventually settle or win in an arbitration and if so to the extent awarded in such arbitration.
>  
> As discussed when we spoke, you have suggested that an improved offer be sent to Owners suo-moto. We should however advise that such revised offer will have little or no value if an arbitration is eventually commenced. Since the offer is Without Prejudice, we cannot produce this before the Tribunal and even otherwise pre-commencement negotiations have little or no evidentiary value in such arbitrations. An improved offer at this stage may only serve to give owners a misleading impression that we are not confident of the merits of our case and therefore result in them claiming an even higher amount thereby being counter-productive. 
>  
> Inspite of the above, if you still wish to proceed as discussed during our call, we understand that your instructions are as follows:
>  
> For us to send a revised offer on a Without Prejudice basis and now offer USD 800,000 as full and final settlement of this claim. 
> Thereafter for us to give Owners lawyers a call early next week on a without prejudice basis and see what Owners appetite for settlement is and if possible to see if Owners will be open to a commercial dialogue with you directly.
>  
> As to point (1) above, please see the message which we propose to send to Owners’ lawyers:
>  
> +++++
> WITHOUT PREJUDICE
>  
> Dear Sirs,
>  
> We write further to our WP message of 28 October 2023. Owners’ silence in light of that message is rather telling.
>  
> The contents of that message are reiterated.
>  
> Notwithstanding the fact that Charterers are confident of the merits of their case and that they will be successful in defending any claim brought by Owners, Charterers wish to close this file as soon as possible instead of being embroiled in a long, expensive and unnecessary arbitration.
>  
> Accordingly, as a last attempt to amicably close this matter, Charterers’ are willing to improve their last offer and as a gesture of good faith are (strictly without prejudice to their position as set out in previous correspondence) willing to pay Owners’ an all-inclusive sum of USD 8,000,000, towards full and final settlement of any and all claims (including for interest and costs if any) arising out of and under the Charterparty. 
>  
> In addition to the advance freight of USD 450,000 paid to Owners under the Charterparty, this will mean that Owners will effectively be paid close to USD 1.3 million for in effect, having simply entered into the CP. This is an extremely generous offer and is in fact, a higher amount than Owners could possibly hope to recover (given the high evidentiary burden they face), should they choose to go to arbitration. 
>  
> We sincerely hope that Owners choose to act commercially and accept this offer so that parties can close this file and look to future business. 
>  
> To that end, our Clients are also open to a commercial dialogue directly with Owners and we would be grateful if you would take instructions on whether Owners are open to a WP commercial discussion between parties, so that we can set this up.
>  
> Since our Clients wish to close this file as soon as possible, this offer is open for acceptance for 14 days i.e. up to and including COB UAE time on [x] November 2023 following which it shall lapse and not be capable of acceptance.
>  
> We look forward to hearing from you once you have taken instructions. Charterers otherwise continue fully to reserve all rights.
> +++++
>  
> Please confirm if:
>  
> In light of our advise above, if you still wish to make this improved offer;
> If so, whether you are happy with the draft above (and especially the highlighted portions) and if so, whether we can proceed to send out the same to Owners lawyers. 
>  
> We look forward to hearing from you and remain available to discuss.
>  
>  
> 
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> Damayanti Sen
> Of Counsel 
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