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Raiffeisen Zentralbank V. Five Star Trading Notes

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RAIFFEISEN ZENTRALBANK OSTERREICH AG LLC

V FIVE STAR TRADING

FACTS The collision occurred in the Malacca Straits on 26 September

1997. The ICL Vikraman sank, with the tragic loss of life of her 29 crew, and also loss of her cargo. The appellants, who are the eleventh to fifteenth defendants in the proceedings, claim as owners of cargo of the ICL Vikraman and on the basis that the Mount I was responsible for the collision. The Mount I was on a voyage from Singapore to India or Bangladesh for scrapping. She had been purchased for this purpose by the first defendants, Five Star General Trading LLC ("Five Star"), a Dubai company. To enable her purchase and scrapping, the respondent, the claimant in the proceedings, Raiffeisen Zentralbank Osterreich AG ("RZB"), through its London branch, had agreed on 16 September 1997 to lend Five Star up to US$3,760,219. The facility letter of that date required as a condition of drawdown the provision of, inter alia, a mortgage over the vessel, the insurance policies and other documents relative to the insurance effected on her, an assignment of such insurances ("in such form as the bank may require") and notice of such assignment duly signed. The deed of assignment dated 17 September 1997 dealt with insurance in different terms. Five Star thereby purported to "assign absolutely and unconditionally and agree to assign to [RZB] all their right, title and interest in and to the insurances" (clause 2.1) and undertook to give notice to the insurers... The deed was entered into in London and made expressly subject to English law and to the jurisdiction of the English courts as regards "any disputes which may arise out of or in connection with [it]". Finally, also on 17 September 1997 Five Star signed a notice of the absolute assignment of the insurances in favour of RZB in the form of appendix A. We were told by Mr Gruder for RZB that, under Malaysian law, third party claimants such as the cargo owners will, if successful in establishing liability on the part of Five Star, take priority over RZB's claim as mortgagees as against the Malaysian fund. However that may be, the cargo owners evidently do not regard the Malaysian fund as sufficient to satisfy all their claims. They have obtained from the Tribunal de Commerce of Paris five orders dated between 9 October and 6 November 1997. RZB's claim: On 25 October 1999 RZB started the present proceedings in the Commercial Court. The claim recites the relevant facts, and claims four declarations, in summary: (1) that notice of the assignment dated 17 September 1997 was validly given to the insurers and that the assignment took effect as a legal assignment under section 136 of the Law of Property Act 1925 on

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