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Enron Mail |
Alan
Just tried to call you but Joya told me you will be tied up in a meeting till late your afternoon. I would appreciate it if you will call me at 9.15am SGP 8 Oct (still your 7 Oct) to discuss the matter and to let me have your instructions. I have faxed to you Rajah & Tann's advice received tonite. I have also just spoken with Toh Kian Seng, the lawyer who has been advising. He works with Steven Chong and has written a book on admiralty practice. His advice in a nutshell : 1. According to Lloyd's Maritime Information Services, the vessel is bareboat chartered to MTM Ship Management ("MTM") for 3 years from June 1999. MTM is a Singapore incorporated company. 2. On the face, our action should be against MTM in personam. However, since MTM is not the beneficial owner of the vessel, she cannot be arrested in Singapore (Singapore law does not allow it). 3. Malaysian law apparently allows for the arrest. But as previously advised and discussed, arresting in Malaysia (especially in Kuantan) is procedurally difficult. Russell estimates that the vessel is due to arrive in Kuantan over the weekend. I am not certain about the shipwatch facilities in Kuantan and their reliability. Malaysian lawyers would have to be engaged. 4. A remote possibility exists that MTM may have sub-time chartered the vessel to another party. In which case, the proper party to an action would be such sub-time charterer and an arrest would not be possible. Rajah & Tann advises that the broker should be able, in the ordinary course, to give us that information. I will ask Russell to find out in the morning. However, I am not encouraged by the fact that the broker was not able to even tell us that the vessel was bareboat chartered to MTM. 5. If we proceeded to arrest the vessel and there is a sub-time charter, the arrest will be set aside. We are not likely to have any other liability, but that is a matter of Malaysian law. 6. MTM is not a small player. They manage about 8-10 vessels but we do not know presently whether they own any. They may have other substantial assets. I will conduct a company search on MTM. 7. If we decide not to arrest in Malaysia, an action can be brought against MTM in personam. A letter of demand can be sent to them first. If they are not the proper party, they would be in a position to tell us and is likely to do so (if not for anything else, to save legal costs). I will also try to ascertain the legal costs and disbursements incurred todate. With the urgent attention we have required of WFW and Rajah & Tann, I imagine it would not be insubstantial. Look forward to speaking with you. Matt
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