IN THE HIGH COURT OF

JUSTICE QUEEN’S BENCH

DIVISION COMMERCIAL COURT

In the Matter of an Intended Action

BETWEEN:

David Copperfield and Company Limited

Intended Plaintiffs
-and-
Little Emily Inc of Utopia ‘The Litde Emily’
Intended Defendants

AFFIDAVIT
I, William Andrew Dodson of Freeman’s Court, Cornhill, London EC3 make oath
and say as follows:

1. I am a partner in the firm of Dodson & Fogg of Freeman’s Court, Cornhill,

London EC3, solicitors for the Intended Plaintiffs. I have the care and conduct of
this matter and I am duly authorised to make this Affidavit on behalf of the
Intended Plaintiffs.

2. The contents of this Affidavit are derived from documents and information
supplied to me by or on behalf of my clients, in particular by Mr David
Copperfield, a director of my clients, and are true to the best of my information
and belief.

Application

3. I make this Affidavit in support of an application by the Intended Plaintiffs

for:

A Mareva injunction to be granted against the Intended Defendants on the

terms of the draft order, or in such other terms as may be just and
convenient.

Facts concerning the Claim

4. The Intended Plaintiffs have their head office at 18 Windsor Terrace,

London EC3 and are well-established commodity traders and part of a group
companies having an annual turnover of US$ . . . The consolidated audited
accounts of the Group (pages . . .) disclose group assets of . . . The Intended
Plaintiffs made a profit of [US$500,000] in the last accounting year (page . and I
am advised by Mr Copperfield and verily believe that they have continued to
trade at a profit in the present financial year.1

5. By a Charterparty dated [ ] the Intended Plaintiffs chartered the

vessel ‘Little Emily’ from the Intended Defendants for a time charter trip via safe
ports from Mombasa, Kenya to Folkestone. There is now produced and shown to
me marked ‘WAD 2’ a copy of the Charterparty. In particular, I refer the attention
of this Court to clauses . . . (For ease of reference these clauses have been
typed at pages ... of ‘WAD 2’.)

6. The vessel was loaded at Mombasa with a cargo of coffee in bulk and a Bill

1
 of Lading was issued by the Master acknowledging shipment of the cargo in
apparent good order and condition (page . . .). The Bill of Lading was retained by
the Intended Plaintiffs, who were also the owners of the cargo, having purchased
it from their associated company Barkis and Peggotty Mocca Traders of Kenya
Ltd under a contract on fob terms under which title to the goods passed to the
Intended Plaintiffs on shipment (page . . .).

7. On 24 April 1995 the Intended Plaintiffs received a telex from the managers
of the Intended Defendants, Odios Heepos SA of Piraeus, notifying them that the
vessel had sunk on the previous day in calm seas only three days after leaving
port (page . . .). No explanation has been given by the managers or the Intended
Defendants for the loss, despite the Intended Plaintiffs’ numerous requests by
telex and a letter dated [ ] asking for an explanation, addressed to the
London agents of the Greek managers of the vessel, Wickfield & Heep (pages . .
. to .. .).

8. Inquiries have been commenced by Perker & Co on behalf of the Intended

Plaintiffs, as to the cause of the loss. I am advised by Mr George Bucket of
Perker & Co and verily believe that he was informed by the Master of the vessel,
Captain Steerforth, that water had entered the vessel through a hole in the shell
plating in the engine-room and that the crew had been unable to control the
ingress of water because the pumps were unserviceable. Captain Steerforth also
informed Mr Bucket that the fact that the pumps were unserviceable had been
reported by him to Odios Heepos SA of Piraeus, some three weeks before the
casualty. However, nothing had been done to rectify the problem on the grounds
of expense.

9. Accordingly, I verily believe that the Intended Plaintiffs have a good arguable
case against the intended Defendants in support of a claim for damages for
breach of their duties as bailees of the caro and for nelience. In particular, , at all
material times the vessel was unseaworthy.

Quantum of the Intended Plaintiffs’ claim

10. The value of the cargo at the date of the casualty would have amounted to
US$.... I say this because (fill in details). The Intended Plaintiffs also wish to
claim interest pursuant to section 35A of the Supreme Court Act 1981 at a
commercial rate of. . . per annum (which to date amounts to US$ . . . and
continues at the dailv rate of $ . . .), and costs. (Expand here on why the claimed
rate of interest is said to be justified.)

Defences to the claim

11. Since the loss, the Intended Defendants have sought to reject the
claim, relying (page . . .) upon clause 13 of the Charterparty which provides
as follows:

The Owners only to be responsible for loss or damage to goods on board the
vessel if such loss or damage has been caused by personal want of due diligence
on the part of the Owners or their Managers in making the vessel seaworthy and
fitted for the voyage or any other personal act or omission or default of the
Owners or their Managers. The Owners not to be responsible in any other case
for damage or delay whatsoever and howsoever caused even if caused by the
neglect or fault of the Master or crew or their servants or agents.

12 However, in view of Captain Steerforth’s account of the loss the Intended

Plaintiffs believe that the loss was caused by personal want of due diligence of
the Intended Defendants or their Managers and so clause 13 will not assist the
Defendants on the facts of this case.

13. I would also draw the attention of the Court to the Convention for Limitation
of Liability Maritime Claims which has the force of law under the Merchant
Shipping Acts 1979 and 1995.1 Article 4 states that:

‘A person shall not be entitled to limit his liability if it is proved that the
loss resulted from his personal act or omission, committed with the intent
to cause such loss, or recklessly and with the knowledge that such loss
would probably result.’

Assets
14. 1 am informed by Mr Copperfield and verily believe that he was informed
byMr Robert Cratchit of Wickfield 8c Heep, the London agents of the vessel’s
managers, that the vessel was insured for US$ . . . through their insurance
brokers Martin Chuzzlewit & Co of Lombard Street, and that the whole or a
substantial part of the hull and machinery insurance was placed at Lloyds. The
lead underwriter was a Mr Wilkins Micawber.

Risk of disposal of assets

15. The Intended Defendants are incorporated in Utopia and have their
registered office at Pantechnicon House, Utopia City, Utopia. A search of the
Utopian companies register has shown that the directors of the company are
Uriah Heep and John Wickfield (page . . .). Other than the wreck, the only asset
of the Intended Defendants known to the Intended Plaintiffs consists of the claim
on hull underwriters. The vessel was registered in Utopia and there are no
mortgages entered on the register (page I verily believe that if hull
underwriters pay the claim to Wickfield & Heep it will be remitted by them to the
vessel’s managers, Odios Heepos SA of Piraeus.

16. The ‘Little Emily’ was traded as part of a fleet of vessels known as Uriah
Heep Tramping, all of which were managed by Odios Heepos SA with Wickfield
& Heep as their London agents. Each vessel in the fleet is owned by a different
Utopian company. There is a history of default on arbitration awards and
judgments by companies within the group. A London arbitration award for
US$250,000 made in July last year in respect of a claim for damaged cargo
carried on board the vessel ‘Big Emily’ has remained unsatisfied. The vessel is
still trading as a member of the fleet but has since changed her name to ‘Agnes
Wickfield’ (page . . .). (Expand here on other defaults by companies within the
group.)

17. In all the circumstances, I verily believe that unless a Mareva injunction is
granted in appropriate terms against the Intended Defendants there is a real risk
that any judgment obtained by the Intended Plaintiffs against the Intended
Defendants would remain unsatisfied.