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Francis has achieved a resounding success in a hearing in the Supreme Court of Gibraltar, on behalf of his client, Oldstone Cargo and its insurers QBE Europe, the insurers of the OS 35, a vessel which sank off the Gibraltar coast in August 2022. The judgment releases £14,500,000 previously paid into Court by QBE Europe.
In a 37-page judgment covering issues of both private and public international law, Restano J held that: (a) a letter of undertaking (“LOU”) was “acceptable” and “adequate” security for the purposes of Article 11(2) of the Convention on Limitation of Liability in Maritime Claims 1976 (as amended) (“the LLMC”) as applied in the leading Court of Appeal authority The Atlantik Confidence [2014] EWCA Civ 217; (b) the Defendants’ concerns about enforcement of the LOU were not “real or material”; and (c) the Gibraltar Port Authority’s blanket refusal to consider LOUs was ultra vires and put both Gibraltar and the United Kingdom in breach of their obligations under public international law.
The judgment reiterates that signatories to the LLMC, including their public representatives such as port authorities, cannot adopt blanket prohibitions on LOUs without breaching public international law. The judgment also clarifies the relevant considerations relating to whether an LOU is “adequate”, by adopting the test advanced by Francis, providing that “issues as to enforceability” of an LOU need to be “real and material”.
The judgment underscores chambers’ strengths in technical commercial law, including the intersection of commercial, shipping, insurance, and public international law. A copy of the judgment can be found here, with the substance of the analysis being from §44 onwards.
Francis Hornyold-Strickland was instructed by Jim Cashman and Jonathan Goulding of HFW (Athens and London). Local counsel were Raymond Triay and Sebastian Triay of Triay Lawyers.