We have received the following from Danish law firm Bech-Bruun acting as Trustee for TCC A/S in Denmark (“TCC” below):
District Court confirms the Bankruptcy Court’s proposed findings of facts and conclusions of law – TCC to appeal
On 29 April 2016 the Bankruptcy Court published its proposed findings of facts and conclusions of law. The Bankruptcy Court made five key rulings in its Opinion. The Bankruptcy Court found in favor of TCC with respect to three of the rulings, namely that 1) the TCC Service Contracts were valid and enforceable; 2) the Defendants’ performance under the TCC Service Contracts were not excused by the alleged SIPG “force majeure”; and 3) TCC did not violate the implied covenant of good faith and fair dealing in filing suit against the Defendants. The Court also ruled that conflicting facts precluded the entry of summary judgment on defendants’ claims of fraudulent inducement and alleged problems with TCC’s service.
With respect to the fifth and last ruling the Bankruptcy Court found that TCC’s suspension of the last four sailings effectively relieved the Defendants of their remaining MQC obligations.
On 13 May 2016, TCC filed objections to the Bankruptcy Court’s proposed findings of facts and conclusions of law. The District Court rendered its judgment on 17 September 2019 and confirmed the Bankruptcy Court’s findings of facts and conclusions of law.
TCC considers the judgment to be wrong as a matter of law and based on an incorrect understanding of the underlying facts. For instance, the District Court found that the Defendants could all have tendered their remaining cargo on the last four sailings. This completely disregards the fact that the combined space available on those last sailings together was only about 10 % of the combined MQC shortfall, the service contracts expressly required the shippers to tender their MQC evenly as far as possible during the contract term and that containers had to be tendered 14 days in advance and hardly none were tendered on the last vessels.
TCC will now appeal the judgment to the United States Court of Appeals for the Second Circuit.