Flying Dutchman Overseas Ltd et Al v The Port Authority et Al

• Jurisdiction: Antigua and Barbuda
• Judge: Williams, J.
• Judgment Date: 08 June 2023
• Judgment citation (vLex): [2023] ECSC J0608-1
• Docket Number: CLAIM NO. ANUHCV2023/0185
• Court: High Court (Antigua)

Between:

[1] Flying Dutchman Overseas Limited (A Company Incorporated in The Territory of The Virgin Islands)

[2] Vita Felice Limited (A Company Incorporated in The Territory of The Virgin Islands)

Applicants

and

[1] The Port Authority (A Body Corporate Established by The Port Authority Act)

[2] The Attorney General

Respondents

CLAIM NO. ANUHCV2023/0185

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Appearances:

Mr. Andrew O'Kola for the Applicants

Mr. Anthony Astaphan SC with Mrs. Carla Brookes-Harris, Ms. Alicia Aska, Ms. Joy Dublin, Mr. Ryan Johnson and Mr. Zachary Phillips for the Respondents

Williams, J.

1 The Applicants by an urgent Notice of Application filed on 22 ^nd May 2023 have applied to the Court pursuant to rule 56.3 of the Civil Procedure Rules 2000 for:

• 1. urgent interim relief to prohibit the sale or purported sale of the motor vessel ‘Alfa Nero’ now lying at anchor in Falmouth Harbour, Antigua (‘the Vessel’); and

• 2. leave to apply for judicial review of the decisions of the Port Authority to seize and to purport to offer to sell the Vessel.

Background

2 At this stage of the proceedings, it is only possible to give a very broad overview of the facts which have led to these applications. It must be also borne in mind that some factual issues are disputed by the parties. However, the largely undisputed facts are as follows:

• 1. In February 2022 war erupted between Russia and Ukraine and this conflict continues to date.

• 2. As a result, the United States of America, the United Kingdom, the European Union and several other states introduced sanctions targeting specified Russian entities and persons. Among these persons is Mr. Andrey Guryev a Russian businessman and his son. The exact nature of the sanctions are not clear as the actual laws/regulations which impose them are not in evidence.

• 3. In or about March 2022 the M/Y Alfa Nero “the vessel” a large pleasure yacht entered Falmouth Harbour, Antigua and has remained there ever since.

• 4. The First Applicant Flying Dutchman Ltd. (a BVI registered company) was registered as the owner of the yacht on the Cayman Islands registry. 1 The Second Applicant (also a BVI registered company) alleges that it is the owner of several works of art on board the vessel. 2

• 5. It seems that the Applicants are managed through a fiduciary company Opus Private Ltd. It also appears that the vessel and the works of art are ultimately owned by a discretionary trust known as the Tyne Trust which is governed by Guernsey law. Mr. Andrey Guryev although alleged not to be a beneficiary of the trust, appears to be considered to “control” the trusts within the meaning of relevant Guernsey legislation. Thus, Opus regards itself as prohibited from dealing with the trust assets except in accordance with an exception or licence. 3

• 6. On 2 ^nd August 2022 the Office of Foreign Assets Control (“OFAC”) of the US Department of the Treasury imposed sanctions on the vessel pursuant to Executive Order 14024. Accordingly, the vessel is treated as ‘blocked property’ of Mr. Andrey Guryev. This bars the owners of the vessel from carrying out any financial transactions in relation to it. 4

• 7. By order dated 19 ^th August 2022 the High Court of Justice made an order to seize M/Y Alfa Nero, search and restrain the Captain from removing the vessel

  from the territorial waters of Antigua and Barbuda. 5 By order dated 26 ^th August 2022 the High Court of Justice lifted the restriction which prevented removal of the vessel from the territorial waters of Antigua and Barbuda. 6

• 8. On 1 ^st March 2023 it was reported in the media that the Government intended to seize and conduct a forced sale of the vessel as it is a danger to navigation.

• 9. Between 1 ^st and 31 ^st March 2023 Mr. Justin Simon KC and Mr. Shane Giles Chief Executive Officer of Opus Private Limited attempted on many occasions to contact the Honourable Attorney General to inform him of the Applicant's ownership of the vessel ahead of the announced sale. No response was received.

• 10. The Port Authority (Amendment) Act “the Act” was enacted by Parliament and was published in the Gazette on 20 ^th March 2023. The Act inserted a new section 38A into the Ports Authority Act.

• 11. The Port Manager published a notice in the Gazette on 21 ^st March 2023 pursuant to section 38A (4) (b) of the Act which stated that the vessel posed an imminent threat to the harbour and to other vessels and was a risk to the economy of Antigua and Barbuda. The notice further advised that should the owner fail to take all necessary steps to remove the vessel, the Port Manager would move to sell the same. 7

• 12. The same notice was published in the Lloyd's List newspaper on 28 ^th March 2023.

• 13. On 3 ^rd April 2023 Mr. Giles spoke to the Honourable Attorney General who directed him to the Port Manager Mr. Telemaque.

• 14. Mr. Giles emailed Mr. Telemaque on 4 ^th April 2023 advising of the Applicant's ownership of the vessel and further advising that they were seeking the necessary licence from OFAC in order to remove the vessel. There appears to have been no response to this communication.

• 15. Between 4 ^th April to 23 ^rd May 2023 there were further media reports updating on the sale process.

• 16. On 8 ^th April 2023 Mr. Telemaque emailed Mr. Giles and other persons a notice of seizure of the vessel.

• 17. On 13 ^th April 2023 Peters & Peters Solicitors LLP, on behalf of the First Applicant and Opus Private Limited, wrote to the Respondents contending that any sale

  of the Vessel would for various reasons be unlawful. The letter sought an undertaking by 17th April 2023 to the effect that no sale of the Vessel would take place until the conclusion of the threatened litigation. There was no answer to this correspondence. The letter from Peters and Peters was also hand delivered to the Respondents on 20 ^th April 2023.

• 18. The Applicants filed the present applications on 22 ^nd May 2023.

Grounds of the Application

3 Broadly speaking the Applicants are challenging the actions taken pursuant to the Port Authority (Amendment) Act pursuant to which the vessel was seized and is now being offered for sale. That Act inserted a new section 38A into the Port Authority Act (Cap. 333 of the Revised Laws of Antigua and Barbuda) The Applicants also purport to challenge the enactment itself on grounds of inconsistency with sections 1, 3 and 9 of the Constitution of Antigua and Barbuda.

4 The grounds of challenge to the enactment itself are as follows:

4. “Section 38A is inconsistent with the Constitution of Antigua & Barbuda and accordingly void, because:

• a. Section 38A, having been specifically enacted by Parliament in order to confiscate the Vessel from its owner, is not a provision capable of being enacted by the legislature of the ‘democratic state’ that section 1 of the Constitution requires Antigua & Barbuda to be; and/or

• b. Section 38A infringes the Applicants' rights under sections 3 and 9 of the Constitution to the protection of the law and/or to the enjoyment of property and/or to protection from deprivation of their property without fair compensation.”

5 The Applicants also challenge the manner in which the powers under section 38A have been exercised as follows:

5. Even if Section 38A constitutes a law validly enacted under the Constitution (which it does not for the reasons stated above), the First Respondent's decision to seize and to purport to offer the Vessel for sale pursuant to the Section 38A is unlawful because:

• a. The conditions stipulated in Section 38A for the powers thereunder to arise have not been met because the Vessel is not ‘abandoned’ within the meaning of the section; and/or

• b. The First Respondent's decision that Section 38A applies is in any event based on unreasonable conclusions of fact; and/or

• c. Any exercise by the First Respondent of its powers under Section 38A is subject to requirements of procedural fairness that have not been complied with.

6 As previously noted the Applicants have also applied for an interim injunction to restrain the sale of the vessel. This is on the basis that the Applicants will suffer irreparable harm if the vessel were sold before the substantive claims are heard.

Evidence

7 The Applicants evidence consists of two affidavits filed on 22 ^nd May and 1 ^st June 2023 respectively sworn to by Mr. Shane Giles who describes himself as Chief Executive Officer of Opus Private Ltd. a fiduciary services provider based Guernsey. Opus Private Ltd. is described as the Director of the Applicants. In his affidavits Mr. Giles outlines attempts on the part of the Applicants to contact the Respondents to assert their interests in the vessel and to seek a postponement of any sale.

8 An affidavit of Rocklyn Jeremiah a legal clerk was as filed on behalf of the Applicants. This affidavit describes a conversation with Joy Dublin counsel of the Attorney General's Chambers. It recounts that Ms. Dublin indicated that the Government would give a formal response to correspondence received from the Applicants by 23 ^rd May 2023. However, Ms. Dublin gave no undertaking that the sale of the vessel would be postponed.

9 Mr. Darwin Telemaque Port Manager by affidavit filed on 30 ^th May 2023 outlines events leading up to the decision to sell the vessel. According to him the vessel had been moored at Falmouth Harbour for over a year. During this period the vessel's owners had not been able to maintain the vessel, pay for fuel, insurance, harbour charges and the salaries of the crew. Mr. Telemaque stated that if this state of affairs continues the vessel will become an environmental hazard. This among of other factors prompted him to exercise his powers under the Act and seek to sell the vessel.

10 The Second Respondent the Honourable Attorney General swore to two affidavits filed on 30 ^th May and 2 ^nd June respectively....