Money had been loaned for the purchase of three ships,and mortgages over the ships had been given given. The borrowers were in default, and the lender sought to arrest the vessels. The defendant argued that the way the arrest had been undertaken caused additional losses.
Held: The Bank’s actions constituted a breach of the obligation to allow the mortgagor to enter into and perform engagements for the employment of the vessel and such breach amounted to an arguable defence to the claim. The Bank were, however entitled to take the view that releasing the vessel from arrest and permitting her to travel with her cargo on board was fraught with risk, and the defendants had no prospect of establishing at trial that the Bank owed a duty of care to the defendants in deciding when to arrest the vessel or in deciding whether to release the vessel from arrest. Appeal dismissed.
Judges:
Lord Justice Brooke Lord Justice Longmore Lord Justice Jacob
Citations:
[2003] EWCA Civ 1559, [2004] 1 LLR 1, [2004] 1 Lloyd’s Rep 1, [2004] 1 All ER (Comm) 904
Links:
Jurisdiction:
England and Wales
Citing:
Cited – De Mattos v Gibson 1859
The purchaser of an interest in property may not use it so as to breach contractual rights of which he was aware when he acquired the interest. . .
Cited – Johnson v Royal Mail Steam Packet Co 1867
‘Without entering into the question of mortgages of land further than to say we have given it out consideration – the case of a mortgagee and mortgagor of a ship appears to be one of a quite different complexion, because the mortgagee so long as he . .
Cited – The Myrto ChD 1977
A ship had been charged. A third party sought to arrest the ship for a debt.
Held: ‘Where the owner makes a contract with a third party for the employment of the ship, of such a kind and made or performable in such circumstances, that the . .
Cited – Downsview Nominees Ltd and Another v First City Corporation Ltd and Another PC 19-Nov-1992
(New Zealand) The holder of a second debenture appointed receivers to the assets. The first debenture holder then also appointed receivers not to obtain repayment of its debt, but to disrupt the work of the first appointed receivers and in order to . .
Cited – Yorkshire Bank Plc v Hall and Others CA 18-Dec-1998
The Court of Appeal is not strictly bound by the terms of leave to appeal given, but where the points had been specifically considered a point could only be heard with the leave of the Court of Appeal which had full power to regulate its own . .
Cited – Nash v Eads CA 1880
Sir George Jessel MR: ‘The mortgagee was not a trustee of the power of sale for the mortgagor, and if he was entitled to exercise the power, the Court could not look into his motives for so doing. If he had a right to sell on June 1, and he then . .
Cited – Silven Properties Limited, Chart Enterprises Incorporated v Royal Bank of Scotland Plc, Vooght, Harris CA 21-Oct-2003
The claimants sought damages from mortgagees who had sold their charged properties as receivers. They said they had failed to sell at a proper value. They asked whether the express appointment in the mortgage of receivers as agents of the mortgagor . .
Cited – Meftah v Lloyd’s TSB Bank Plc 2001
A short delay in the sale of a property by a mortgagee was appropriate to allow proper advertising of a property. . .
Appeal from – Den Norske Bank ASA v Acemex Management Company Ltd ComC 26-Feb-2003
. .
Lists of cited by and citing cases may be incomplete.
Banking
Updated: 12 November 2022; Ref: scu.187552
