Assimina Maritime Ltd and Pakistan Shipping Corporation and HR Wallingford Ltd
| Jurisdiction | England & Wales |
| Judge | Colman J |
| Judgment Date | 21 December 2004 |
| Neutral Citation | [2004] EWHC 3005 (Comm) |
| Docket Number | Case No: 2004 Folio No.790 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 21 December 2004 |
[2004] EWHC 3005 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Colman J.
Case No: 2004 Folio No.790
Mr Christopher Smith (instructed by Eversheds) for the Claimant
First and Second Defendants were not represented
Hearing dates: 17 December 2004
Reasons for Judgment Approved by the court
for handing down
(subject to editorial corrections)
| If this Judgment has been emailed to you it is to be treated as 'read-only'. You should send any suggested amendments as a separate Word document. |
Colman J
This arbitration application raises some important points on the scope of the court's jurisdiction under sections 43 and 44 of the Arbitration Act 1996. I am therefore setting out my reasons rather more fully than might otherwise have been done given that neither defendant opposes the application.
The Claimant was the owner of the tanker TASMAN SPIRIT. The first defendants ("PNSC") were voyage charterers on an amended Asbatankvoy form for a voyage from Kharg Island to Pakistan. The fixture was made on 15 July 2003. The form contained the following provisions:
"SAFE BERTHING – SHIFTING. The vessel shall load and discharge at any safe place or wharf, or alongside vessels or lighters reachable on arrival, which shall be designated and procured by the Charterer, provided the Vessel can proceed thereto, lie at, and depart therefrom always safely afloat …"
In accordance with the orders of PNSC the vessel loaded a cargo of Iranian light crude oil at Kharg Island and then proceeded to Karachi where it arrived off the port and anchored on 26 July 2003. The port of Karachi is directed and managed by the Karachi Port Trust ("the KPT"). The port installations are approached through a buoyed channel about three nautical miles long. At the time of the arrival of the vessel's arrival the chart showed the channel to be dredged to 12.2 metres with a bottom of sand and mud. The vessel with a draft of 11.89 metres fore and aft proceeded up the channel under pilotage at 12.19. While still within what was shown on the chart as the dredged channel, the vessel grounded at 12.57. A salvage operation was put in hand but about 45 per cent of the cargo was lost, there was very significant pollution and the vessel became a total loss. These losses to the shipowners, including pollution indemnity claims, amounted to what is said to be US$6.567493 billion.
The shipowner claimant alleges that the grounding of the vessel was caused by the fact that the port was unsafe and, that accordingly, the PNSC is liable for breach of the safe berth warranty. Amongst the allegations of lack of safety are the following:
"1. The approach channel was unsafe in that it presented unacceptable hazards to ships of the Vessel's size in terms of the amount of port helm required at the 75° port turn, the size of the bend radius, and the safety margin under the keel.
2. There was an ebb tide in the approach channel after high water which pushed ships towards the shoal ground on the starboard side of the Vessel.
3. The approach channel was not deep enough and had been insufficiently dredged.
4. The Karachi Port Trust had supplied misleading information about the depth of the approach channel and the composition of the channel bottom, and had no adequate systems for measuring the depth of the channel or for calculating the effect of seasonal conditions and/or the tides on the channel, see paragraphs 15(6)-(11) and (14)-(17) of the Points of Claim.
5. The Karachi Port Trust had no means of monitoring the strength or direction of the tidal stream in the approach channel.
6. The tugs at the port were insufficient both numerically and in terms of their efficacy in assisting vessels negotiate the channel."
Arbitration proceedings were commenced. Those advising the shipowners ascertained that in 1998–2000 the KPT had commissioned HR Wallingford, a British marine survey organisation, to conduct a feasibility study for deepening the upper harbour and approach channel at Karachi to take container vessels up to 12 metres wide. It was further ascertained that the work had included:
• "field measurements
• traffic forecast
• evaluation of approach channel and port development options
• wave, flow and sediment transport modelling
• navigation studies, assessment of dredging
• impact on the backwaters and coastal environment
• environmental impact review
• refurbishment of the KPT physical model so that it can be used for future studies of developments within the Harbour
• technology transfer and an evaluation of the potential for institutional strengthening"
and that Wallingford had reported on the impact of such a development on the point and its environment and had developed a strategic plan for the deepening works.
Since it appeared that the contents of this material were likely to be at least in part directly relevant to the safety of the channel and might therefore assist the shipowner claimants in preparing their evidence for the arbitration their solicitors wrote to Wallingford on 24 October 2003 inviting them to disclose the report. Wallingford replied that the KPT had requested that it be kept confidential but that application for further information should be made to them. Eversheds then wrote on 14 November 2003 to KPT asking for disclosure of the report but have received no reply.
The claimant shipowners thereupon issued their applications against Wallingford under sections 43 and 44 of the Arbitration Act 1996. These provide, to the extent material, as follows:
"Securing the attendance of witnesses
43(1) A party to arbitral proceedings may use the same court procedures as are available in relation to legal proceedings to secure the attendance before the tribunal of a witness in order to give oral testimony or to produce documents or other material evidence.
(2) This may only be done with the permission of the tribunal or the agreement of the other parties.
(3) The court procedures may only be used if:
(a) the witness is in the United Kingdom, and
(b) the arbitral proceedings are being conducted in England and Wales or, as the case may be, Northern Ireland.
(4) A person shall not be compelled by virtue of this section to produce any document or other material evidence which he could not be compelled to produce in legal proceedings.
Court powers exercisable in support of arbitral proceedings
44(1) Unless otherwise agreed by the parties, the court has for the purposes of and in relation to arbitral proceedings the same power of making orders about the matters listed below as it has for the purposes of and in relation to legal proceedings.
(2) Those matters are;
(a) the taking of the evidence of witnesses;
(b) the preservation of evidence;
(c) making orders relating to property which is the subject of the proceedings or as to which any question arises in the proceedings:—
(i) for the inspection, photographing, preservation, custody or detention of the property; or
(ii) ordering that samples be...
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