Astro Vencedor Compania Naviera S.A. of Panama a v Mabanaft G.m.b.H. (Damianos)
| Jurisdiction | England & Wales |
| Judge | THE MASTER of THE ROLLS,LORD JUSTICE FENTON ATKINSON,Sir GORDON WILLMER |
| Judgment Date | 18 March 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J0318-1 |
| Date | 18 March 1971 |
| Court | Court of Appeal (Civil Division) |
In the Matter of the Arbitration Act, 195O
and
In the Matter of an Arbitration
[1971] EWCA Civ J0318-1
The Master of the Rolls (Lord Denning)
Lord Justice Fenton Atkinson and
Sir Gordon Willmer
In The Supreme Court of Judicature
Court of Appeal
Appeal by Mabanaft G. m. b. H., the charterers, from judgment of Mr. Justice Mocatta on 29th July, 1970.
Mr. J. F. WILLMER, Q. C., and Mr. ANDREW LONGMORE (instructed by Messrs. Payne Hicks Beach & Co.) appeared on behalf of Mabanaft G. m. b. H., Appellants.
Mr. J. G. WILMERS, Q. C., and Mr. ANTHONY HALLGARTEN (instructed by Messrs. Constant and Constant) appeared on behalf of Astro Vencedor Compania Naviera S. A. of Panama, Respondents.
We need not trouble you, Mr. Wilmers.
On 6th August, 1960, the ship owners chartered their ship, the "Damianos", to the charterers. She was to load oil at Algiers and carry it to a port between Antwerp and Hamburg. On 8th August, 1968, the ship arrived at Algiers. The charterers failed to provide a berth for her. She was delayed for five days. After she was loaded, the master, at the request of the charterers, issued bills of lading for carriage to Rotterdam and discharge there. But, whilst the ship was on her way to Rotterdam, the charterers altered the destination. they ordered the vessel to Amsterdam. She went there and started discharging on 24th August. The owners asked the charterers for the bills of lading, but they were not forthcoming. The owners asked for a letter of indemnity, but this was not forthcoming either. So the owners on 27th August stopped discharging the vessel. The charterers were very upset about this. They had got lighters and tankers alongside. These were rendered idle when the ship stopped discharging. Furthermore, the charterers had entered into commitments with purchasers of oil. In order to meet these commitments, the charterers had to get oil from other sources. All this involved them in loss and expense. They claimed damages of 125,000 guilders on this account against the owners. The charterers thought that their claim was so good that they took steps to enforce it. On 2nd September, 1968, they went to the Court at Amsterdam and got a warrant for the arrest of the ship to secure the sum of 125,000 guilders. The ship owners put up a bank guarantee to obtain the return of the vessel: and started again discharging the vessel. All the oil was discharged by 4th September, 1968. But the charterers took exception to the bankguarantee and said that she was still under arrest to secure their claim. In order to get the ship released, the bank sent a cable of confirmation. On the 7th September, the ship was released and went on another voyage. So the vessel was under arrest in Amsterdam from 2nd September to 7th September. The owners say that that arrest was wrongful because the charterers had no valid claim against them.
After going on another voyage the vessel happened to come back to Holland. On 30th November she arrived at Rotterdam and discharged oil there until 2nd December. But on that day at Rotterdam the charterers arrested her again. They said that the original bank guarantee provided by the charterers was not satisfactory. They said it ought to have been in dollars and not guilders. At any rate, they arrested the vessel again on the 2nd December and she was not released until 10th December, when a further guarantee was given.
The differences and disputes were referred to arbitration. The Arbitration Clause says this:
CLAUSE 18: "Any dispute arising during execution of this Charter party shall be settled in London, Owners and Charterers each appointing an Arbitrator - Merchant or Broker - and the two thus chosen, if they cannot agree, shall nominate a third Arbitrator - Merchant or Broker - whose decision shall be final".
Each of them appointed an arbitrator. The arbitrators did not agree. They nominated an umpire - Mr. Barclay. The disputes were put before him. On the one hand the charterers said that the shipowners had wrongfully stopped discharging oil on 27th August. They claimed damages for their loss owing to their lighters and tankers being left idle and for their expenses in getting suppliers for their purchases. That was their claim. On the other hand, theowners claimed against the charterers for:
(i) demurrage when the vessel was held up at Algiers;
(ii) damages for the wrongful arrest at Amsterdam; and
(iii) damages for the wrongful arrest at Rotterdam in early December.
The umpire made his award. He dismissed the charterers' claim altogether. He allowed the owners' claim as to (1) - Damage for delay at Algiers - £3,241 17s. 6d.; (ii) Damages for wrongful arrest at Amsterdam - £5,573 15s. Od; Damages for wrongful arrest at Rotterdam - £8,330. Neither party asked for a case to be stated for the opinion of the Court.
The charterers then applied to set aside...
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