Dean's Shipping Ltd and Ernest Dean v Aegis Managing Agency Ltd et Al

• Jurisdiction: Bahamas
• Court: Supreme Court (Bahamas)
• Judge: Fitzcharles, J.
• Judgment Date: 27 June 2025
• Year: 2025
• Docket Number: 2023/CLE/gen/01252

Dean's Shipping Ltd. and Ernest Dean

and

Aegis Managing Agency Ltd. Et Al

Fitzcharles, J.

2023/CLE/gen/01252

Supreme Court

Appearances:

Mr Carl Bethel, KC, with Mr Branville McCartney (of Halsbury Chambers) for the Claimants

Mr Richard J. W. Horton with Mr Darzhon Rolle (of Alexiou, Knowles & Co.) for the Defendants

RULING

INTRODUCTION

Fitzcharles, J.

1 This ruling involves two opposing applications brought by Dean's Shipping Ltd and Ernest Dean, the First and Second Claimants named herein, and Aegis Managing Agency Limited, Liberty Managing Agency Limited, Ascot Underwriting Limited, HCC Underwriting Agency Limited, and Amphitrite Underwriting Agency Limited, the First through Fifth Defendants named herein, respectively. The First and Second Claimants apply for summary judgment. The First through Fifth Defendants apply for the present claim, which was commenced by the Originating Application Form method, to continue as if it were commenced by the Standard Claim Form method.

2 In this ruling, where the Court refers to the First and Second Claimants collectively, they shall be referred to as the Claimants. Likewise, where the Court refers to the First through Fifth Defendants collectively, they shall be referred to as the Defendants.

3 The Claimants, by way of a Notice of Application filed on 14 February 2024, moved the Court on their summary judgment application seeking the following relief, namely, that—

i. pursuant to Rule 15.2(b) of the Supreme Court Civil Procedure Rules, 2022 (as amended) (the “CPR”), an order for summary judgment be granted in favour of the Claimants.

4 The sole ground for the Claimants' summary judgment application is that the Defendants have no real prospect of successfully defending the present claim.

5 The Defendants, by a Notice of Application filed on 1 March 2024, moved the Court on their application seeking the following relief, namely, that—

• i. pursuant to Rule 8.19(1) of the Supreme Civil Procedure Rules, 2022 (as amended) (the “CPR”), the present claim, which was commenced by an Originating Application and Amended Originating Application, continues as if it were commenced by a Standard Claim Form;

• ii. further directions consequent thereon be given; and

• iii. the Claimants pay the costs of and occasioned by this application.

6 The grounds for the Defendants' application are, namely, that—

• i. the present claim is made against the Defendants as underwriters (the “Underwriters”) for payment under a policy of Hull and Marine Insurance (the “Policy”) in relation to the grounding of the M/V Legacy (the “Vessel”) on or about 8 February 2023 (the “Grounding”);

• ii. the Underwriters wish to defend the action;

• iii. there are numerous and substantial disputes of fact between the parties, including but not limited to—

  • (a) whether the Second Claimant has any reasonable cause of action against the Underwriters since he is not a party to the Policy;

  • (b) the cause and circumstances of the grounding;

  • (c) the seaworthiness (or otherwise) of the Vessel when it was put to sea on the voyage in question, including—

    • i. whether the crew was sufficiently trained and qualified;

    • ii. the state of the Vessel's navigational equipment; and

    • iii. whether there was a suitable Safety Management System in use, including a proper navigational watch and suitable roster of work and rest;

  • (d) whether the First Claimant breached an expressed (alternatively, implied) warranty and/or failed to make a material disclosure when it entered into the Policy, when it incorrectly claimed that the Vessel was Bahamian-flagged, when it was not; and

  • (e) the quantum of damages

• iv. the Underwriters, therefore, take the position that these disputes should be resolved with the assistance of formal pleadings, disclosure, and cross-examination of witnesses, which requires the standard claim form method;

• v. rule 8.15 of the CPR provides that the originating application form method is intended for use where the Court's decision is sought on a question which is unlikely to involve a substantial dispute of fact, or where statute, rule, or practice direction requires or permits it. Neither of those scenarios applies in the present claim;

• vi. the Underwriters therefore make an application pursuant to rule 8.19(1) of the CPR, which provides that “the Court may at any stage, either on application or on its own initiative, order a claim commenced by originating application form to continue as if the proceedings had been commenced using a standard claim form and where the Court takes this course it will give such directions as it considers appropriate”; and

• vii. this case was clearly not appropriate for the originating application form method from before the proceedings were commenced, the Underwriters say the Claimants should pay the costs of this application.

7 The evidence relied upon by the Claimants in support of their summary judgment application and opposition to the Defendants' application is, namely—

• i. the Affidavit of Ernelia Dean-Turnquest filed on 14 December 2023 in support of the Originating Application also filed by the Claimants on the same date;

• ii. the First Affidavit of Shenique R. Hanna filed by the Defendants on 2 February 2024 in opposition to the Originating Application filed on 14 December 2023;

• iii. the Affidavit of Ernelia Dean-Turnquest filed on 14 February 2024; and

• iv. the Affidavit of Cecily A. Dean filed on 26 August 2024.

8 The evidence relied upon by the Defendants in support of their application and opposition to the Claimants' summary judgment application is, namely—

• i. the First Affidavit of Shenique R. Hanna filed by the Defendants on 2 February 2024 in opposition to the Originating Application filed on 14 December 2023; and

• ii. the Affidavit of Mandy M. McKenzie filed on 30 September 2024.

9 For the avoidance of doubt, in this ruling, where the Court refers each application individually, it shall be referred to as (i) the Claimants' summary judgment application, and (ii) the Defendants' application. Where the Court refers to both applications collectively, they shall be referred to as the applications.

10 All of the evidence filed herein in support of and in opposition to the applications has been fully considered by the Court, but will not be reproduced in detail in this ruling.

11 In this ruling, the Court shall address the Claimants' summary judgment application first. This is particularly so, since it was made first in time and the consequential nature of a summary judgment application, that is, if the Claimants' summary judgment application is successful, the present claim is brought to an end and the Defendants' application would be deemed nugatory. Thereafter, the Court, in this ruling, shall address the Defendants' application, if necessary.

12 On 12 November 2024, the Court heard the parties on the applications and reserved its decision, promising to deliver it at a later time. This ruling serves as the Court's decision on the applications.

FACTUAL BACKGROUND

13 These Claimants brought their main claim by an Originating Application and Amended Originating Application filed on 14 December 2023 and 14 February 2024, respectively. The claim concerns a dispute relating to a hull and machinery marine insurance policy. The parties' positions regarding the present claim are vigorously contested. Given that the present claim is at the interlocutory stage, the factual account expressed herein should not be construed as findings of fact made by the Court.

14 The First Claimant, a body corporate duly incorporated under the laws of the Commonwealth of The Bahamas, is a family-owned mail boat service provider that provides bimonthly mail boat services from the Port of Nassau, The Bahamas, to the Port of Marsha Harbour, Abaco, The Bahamas. The First Claimant is the operator of two motor vessels, namely, the M/V Legacy and the MN Champion III, which are both insured under a hull and machinery marine insurance policy with the reference number B0180MA2204468. The motor vessels transport containers, palletised/shrink-wrapped general cargo, and Ro-Ro cargo along with postal mail and, rarely, passengers.

15 The Second Claimant is the majority shareholder and beneficial owner of the First Claimant and the owner of the motor vessel, the M/V Legacy. The Defendants dispute whether the Second Claimant has any reasonable cause of action against them since he is not a party to the hull and machinery marine insurance policy.

16 The First through Fifth Defendants are the underwriters to the hull and machinery marine insurance policy. The hull and machinery marine insurance policy aims to indemnify the First Claimant against hull and machinery risks. Each of the Defendants, as underwriters to the hull and machinery marine insurance policy, is severally and not jointly liable, but only to the proportion of liability each underwriter has underwritten.

17 On 8 February 2023, the M/V Legacy ran aground on a reef near Egg Island, Eleuthera, The Bahamas, miles off the coast of Abaco, The Bahamas.

18 A claim was made on the hull and machinery marine insurance policy; however, payment was not forthcoming. As a consequence, the Claimants commenced the present claim against the Defendants by way of the Originating Application and Amended Originating Application filed on 14 December 2023 and 14 February 2024, respectively. On the face of the pleadings, the present claim purports to be made pursuant to the terms of the hull and machinery marine insurance policy. Paragraph 1 of the Originating Application and Amended Originating Application reads as follows:

[The Claimants] make application for full indemnification under the [hull and machinery marine insurance policy] for all costs payable for the repair and restoration to a state of seaworthiness of the Motor Vessel “Legacy” which suffered...