ASM Shipping Ltd of India v TTMI Ltd of England

JurisdictionEngland & Wales
JudgeMR JUSTICE CHRISTOPHER CLARKE
Judgment Date20 April 2007
Neutral Citation[2005] EWHC 2238 (Comm),[2007] EWHC 927 (Comm),[2005] EWHC 2666 (Comm)
Docket NumberCase No: 2005 FOLIO 45,Case No: 2005/45
CourtQueen's Bench Division (Commercial Court)
Date20 April 2007
Between
A.S.M Shipping Ltd of India
Claimant
and
T.T.M.I Ltd of England
Defendant

[2005] EWHC 2238 (Comm)

Before

The Hon Mr Justice Morison

Case No: 2005/45

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

COMMERCIAL COURT

Michael J. Beloff QC and Jessica Mance (instructed by Messrs Zaiwalla and Co) for the Claimants

Simon Croall (instructed by Messrs Waterson Hicks) for the Defendant

Hearing dates: 27 September 2005

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Morison J:

1

This is an application made under section 68 of the Arbitration Act 1996. The arbitration arose out of disputes between owners A.S.M. Shipping Ltd of India ['the owners'] and charterers, T.T.M.I. Ltd of England ['the charterers']. The essential ground upon which this application is based is that one of the three arbitrators, namely X QC [nominated by the other two arbitrators] should have recused himself. The Owners' principal witness was a Mr Moustakas. In a previous arbitration, X QC had been involved as an advocate on behalf of other charterers against other owners. In that arbitration serious allegations had been made against Mr Moustakas.

2

The background to the arbitration can be taken from a judgment of Mr Justice Christopher Clarke on a matter relating to security for costs. He said:

"2. The background to this application is as follows. On 11th December 2002 TTMI Ltd. chartered from ASM Shipping Ltd. of India the AMER ENERGY to carry a cargo of gas oil from one or two safe ports in the Arab Gulf to one or two safe ports in the Red Sea or Egyptian Mediterranean. The vessel was described in the fixture recap as "expected ready around 20th December all going well" and the laycan dates were 25th December to 27th December. The vessel was at this time anchored at Fujairah undergoing repairs. Whilst there, she was arrested by Shell on 7th November for bunkers and on 26th November by Inchcape for services, those arrests being in respect of very modest sums.

3. The arrests were not lifted until 2nd January 2001 and she departed from Fujairah the next day. She arrived at the nominated load port of Mina al-Ahmadi only on 6th January 2001. The charterers claimed that by reason of the vessel's late arrival they suffered substantial losses because of an increase in the price of the cargo and because they lost their intended purchase contract. The dispute was referred to arbitration in March 2001. The owners counterclaimed that they were entitled to substantial unpaid freight and demurrage. The cargo was in the end carried to Indonesia.

4. During the course of the still unconcluded arbitration, the arbitrators have made a number of awards. On 26th April 2001 the Tribunal made an award in owner's favour in respect of freight in the sum of US$640,100 together with interest at 7.5 per cent to be compounded at three monthly rests and costs. By an agreement between the parties a sum of $707,500 was paid into a joint interest-bearing escrow account at the Royal Bank of Scotland on 28th June 2002. On 23rd October 2002 owners applied to the Tribunal for an immediate award in their favour in respect of the demurrage claimed of $202,390. On 18th November 2002 the Tribunal dismissed that application and ordered the owners to pay to the charterers their costs of the application for such an award.

5. There has been a substantial dispute as to whether the owners had properly complied with their obligation to give disclosure. The Tribunal made serious criticism of the owners' behaviour in this respect and on 16th July 2004 ordered them to pay all the charterers' costs relating to the charterers' application for disclosure of owners' files within 14 days of the amount of those costs being fixed.

6. On 24th September the Tribunal made another award in which they declined to review or withdraw their July award and in which they determined that the charterers' costs covered by that July award were £14,825.09. They ordered the owners to pay those costs plus interest together with £9,085.00, the costs of the September award, making £23,910.59 in all. They also ordered owners to pay the charterers' costs of the application to review the earlier award.

7. On 23rd December 2004 the Tribunal determined a number of preliminary issues largely in the charterers' favour holding, amongst other things, that owners had been obliged to ensure that the vessel embarked upon her approach voyage within such time that it was reasonably certain that she could arrive at the load port so as to comply with the laycan of 20th to 27th December and holding that an exceptions clause in the charter did not avail the owners for their failure so to do. The owners took up this award in January 2005 paying the cost of the same, that is to say, £43,600."

3

The parties were notified of X's appointment as third arbitrator on 4 August 2004, by which date the hearing of a number of preliminary issues had been fixed for three days, between 5 to 7 October 2004. On 27 September 2004, Mr Siberry QC, who had been retained by owners in this dispute and was instructed to act for them at the forthcoming hearing, informed his instructing solicitors that he would be unable to represent them at the hearing because of a family bereavement. He suggested that a request be made for a short adjournment. A letter was sent to X QC on that day and by letter dated 28 September the application was rejected. With great reluctance a new QC was retained at short notice. The hearing commenced on 5 th October and Mr Moustakas was due to give evidence shortly after lunch that day. During the morning, the owners' solicitor [Mr Zaiwalla] greeted X QC and Mr Moustakas, having inquired who he was, told Mr Zaiwalla that X QC had close connections with the charterers' solicitors [Waterson Hicks] and suggested that an objection to X QC continuing to act as an arbitrator should be made. Mr Zaiwalla was not, at that time, aware of the grounds for his client's misgivings and because the time for the hearing had arrived there was no opportunity to discuss what Mr Zaiwalla had been told with leading counsel, Mr Simon Crookenden QC, although it was mentioned to him.

4

Mr Moustakas had also spoken to Mr Zaiwalla's assistant and had told her that X QC had been instructed on the 'B' case by Messrs Waterson Hicks, the charterers' solicitors, and that in that case serious allegations of a personal nature had been made against Mr Moustakas. Waterson Hicks were acting for the charterers in this arbitration. That evening, Mr Moustakas had not completed his evidence and the case was to resume the next day. Mr Zaiwalla considered the position and concluded that had X QC been involved as Mr Moustakas was saying then he surely would have recused himself and that he could not talk with Mr Moustakas about this, to make further inquiries, as he was in the middle of his evidence. It was only after Mr Moustakas had completed his evidence that X QC intervened and said he wanted to make a disclosure about his involvement with the B case against Mr Moustakas and he invited the parties to consider what he had said. At that stage Mr Zaiwalla immediately took instructions from Owners' representatives and was instructed to object to X QC continuing to sit as an arbitrator. Mr Crookenden QC suggested that as he had not had time or the opportunity to consult with his clients, the hearing should continue with Owners reserving their position on their stated objection to X QC continuing to sit.

5

Later that day, owners' solicitors wrote to X QC setting out their reservations about him continuing to sit. The essence of the objection is to be found in the third, fourth and fifth paragraphs of that letter:

"We have now spoken with Mr Moustakas and he tells us that all his papers have been sent by him to his Greek Lawyer and, therefore, he is not in a position to immediately provide us with documents concerning the nature of the allegations which Waterson Hicks had made against him in the case of the vessel B. However, we understand from Mr Moustakas that in that case, like in this case, Waterson Hicks had mounted an attack on their opponent alleging impropriety in giving discovery and in the correspondence had personally accused Mr Moustakas of producing fraudulent and fabricated documents and had threatened forensic investigation to verify the authenticity of those documents in Mr Moustakas' file. In other words in that case Waterson Hicks had alleged a criminal act on part of Mr Moustakas. In the end Mr Moustakas' file was disclosed and we are told nothing of interest was found and the allegations were totally unfounded.

As you had acted for Waterson Hicks' clients in the B case, it is most likely that Waterson Hicks would have mentioned those unfounded allegations against Mr Moustakas to you in the course of your instructions. This in Owner's view would have made you unsuitable to accept a judicial office in a case where you knew that Mr Moustakas was going to be one of the two key witnesses for one of the parties.

In the circumstances, we would request you to please provide full documents concerning the B and provide details of each and every allegation which were made by your then instructing solicitors Waterson Hicks against Mr Moustakas. In the event that you do not have the documents then would you be so good to request your instructing solicitors Waterson Hicks in the B case to make available the documents. Perhaps, Waterson Hicks could check with the partner concerned and confirm that what is said above is indeed correct about the nature of the allegation they have made against Mr Moustakas in the B case."

6

At the beginning of the third day, the charterers told the...

To continue reading

Request your trial
57 cases
  • Sumukan Ltd v Commonwealth Secretariat (No. 2)
    • United Kingdom
    • Queen's Bench Division (Commercial Court)
    • 14 February 2007
    ... ... and other teaching posts at well-known universities in Australia, England, the USA and Canada. He is a former commissioner of the Australian Law ... and I would have adopted the reasons given by Morison J in AS M Shipping Limited v TTMI Ltd [2006] 1 Lloyd's Rep 375 at paragraph 39(3) ... ...
  • Chandler v Goodwin
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 16 October 2006
    ... ... Between: Asm Shipping Ltd of India Applicant and Ttmi Ltd of England ... ...
  • Sumukan Ltd v Commonwealth Secretariat
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 25 June 2007
    ...as to whether section 69 applied at all. But he submits that process of reasoning has been rejected by the Court of Appeal in ASM Shipping Ltd v TTMI [2006] EWCA Civ 1341. 24 In the context of section 68, ASM established that a decision that a right has been waived under section 73 is a dec......
  • IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation
    • United Kingdom
    • Queen's Bench Division (Commercial Court)
    • 14 March 2014
    ...in the interpretation of international conventions. 102. Finally Mr Lyndon-Stanford referred me to TTMI Ltd v ASM ShippingUNK[2005] EWHC 2666 (Comm), a decision of Christopher Clarke J which arose in the context of s. 66 of the Arbitration Act. As appears from the report, the matter had at ......
  • Request a trial to view additional results
2 firm's commentaries
  • Three Part Series: UK Freezing Orders Against A Foreign State
    • United Kingdom
    • Mondaq UK
    • 14 March 2023
    ...the broad sense), the creditor can then proceed to the execution stage. Footnotes 1. ASM Shipping Ltd of India v TTMI Ltd of England [2007] EWHC 927 (Comm), at 2. Examples of where this requirement would be met include where the defendant is "present" within the state to which the foreign c......
  • A World Of Choice: The Competition For International Arbitration Work - Part II
    • United Kingdom
    • Mondaq United Kingdom
    • 27 October 2008
    ...(1995) 128 ALR 391. (1995) 36 NSWLR 662. [2003] 1 WLR 1041. Per Lord Hobouse. See Part I of this article: [2008] Asian DR 44 at 45-46. [2005] EWHC 2238, unreported (19 [2007] EWHC 1513, unreported (28 June 2006). Paragraph 44 of the judgment, per Andrew Smith J. Rule 5.3. Rule 27.1. CEITAC'......
9 books & journal articles
  • Table of cases
    • United Kingdom
    • Construction Law. Volume I - Third Edition
    • 13 April 2020
    ...319 II.6.295, III.18.40 ASM Shipping Ltd v Harris (2007) 23 Const LJ 533 [Comm Ct] III.25.183 ASM Shipping Ltd of India v TTMI Ltd [2005] EWHC 2238 (Comm) III.25.246 Aspect Contracts (Asbestos) Ltd v Higgins Construction Plc [2013] EWHC 1322 (TCC) III.24.10, III.24.25, III.26.44 Aspect Cont......
  • Arbitration
    • United Kingdom
    • Construction Law. Volume III - Third Edition
    • 13 April 2020
    ...for example, where there has been an error on a question of law, which afects part of 947 ASM Shipping Ltd of India v TTMI Ltd [2005] EWHC 2238 (Comm) at [39(3)], per Morison J; Norbrook Laboratories Ltd v Moulson Chemplant Ltd [2006] BLR 412 at 436 [144]–[145], per Colman J; cf Groundshire......
  • Table of Cases
    • United Kingdom
    • Wildy Simmonds & Hill Dissenting Judgments in the Law Preliminary Sections
    • 29 August 2018
    ...v Nippon Yusen Kubishika Kaisha (The Golden Victory) [2007] UKHL 12, [2007] 2 AC 353, [2007] 3 All ER 1, [2007] 2 All ER (Comm) 97, [2007] 2 Lloyd’s Rep 155, HL; [2006] 1 WLR 533, CA; [2003] 2 Lloyd’s Rep 592 105–123 Goodfellow v Nelson Line (Liverpool) Ltd [1912] 2 Ch 324, ChD 134 Goodman ......
  • Asset Preservation Orders - Mareva Injunctions
    • Canada
    • Irwin Books Archive The Law of Equitable Remedies. Second Edition
    • 18 June 2013
    ...74. 84 See Ghoth v. Ghoth , [1992] 2 All E.R. 920 (C.A.). 85 Above note 64. 86 TTMI Ltd of England v. ASM Shipping Ltd of India , [2005] EWHC 2666 (Comm) at para. 25 (Q.B.). Asset Preser vation Orders — Mareva Injunctions 125 the evidence may take will depend on the particular circumstances......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT