Atlanska Plovidba and Another v Consignaciones Asturianas SA

JurisdictionEngland & Wales
JudgeThe Hon. Mr. Justice Moore-Bick,Mr. Justice Moore-Bick
Judgment Date27 May 2004
Neutral Citation[2004] EWHC 1273 (Comm)
Docket NumberCase No: 2003 Folio 894
CourtQueen's Bench Division (Commercial Court)
Date27 May 2004
Between:
(1) Atlanska Plovidba
(2) Atlantic Conbulk Shipping Company
Claimants
and
Consignaciones Asturianas S.A
Defendant
Between:
(1) Atlanska Plovidba
(2) Atlantic Conbulk Shipping Company
Claimants
and
Consignaciones Asturianas S.A.
Defendant

[2004] EWHC 1273 (Comm)

Before:

The Honourable Mr. Justice Moore-Bick

Case No: 2003 Folio 894

Case No: 2004 Folio 104

IN THE HIGH COURT OF JUSTICE

ADMIRALTY COURT

QUEEN'S BENCH DIVISION

IN THE HIGH COURT OF JUSTICE

ADMIRALTY COURT

COMMERCIAL COURT

Mr. Nicholas Hamblen Q.C. and Mr. Julian Kenny (instructed by Holman Fenwick & Willan) for the claimants

Mr. Richard Lord Q.C. (instructed by Thomas Cooper & Stibbard) for the defendant

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 may be treated as authentic.

The Hon. Mr. Justice Moore-Bick Mr. Justice Moore-Bick

Mr. Justice Moore-Bick:

1

There are two applications before the court in related proceedings arising out of events that occurred in Spain in the autumn of 2003. The first is an application by the defendant in Admiralty action 2003 Folio 894 for an order setting aside service or alternatively staying the proceedings on the grounds that the court does not have jurisdiction to entertain the claim. The second is an application by the claimant under section 18 of the Arbitration Act 1996 for the appointment of an arbitrator to determine the dispute that has arisen between the parties.

2

Both sets of proceedings arise out of the carriage of a Gottwald crane from Gijon to Aviles on board the vessel Lapad in September 2003. On 19 th September Anglo Adriatic Shipping Services Ltd acting as agents for the first claimant entered into a contract with the defendant for the carriage of the crane on the terms of a 'Conelinebooking' booking note with some additional clauses. The printed terms of the booking note contained an 'Identity of Carrier' clause which provided that the contract was to take effect with the owner of the vessel and for that reason the second claimant was joined as a party to the proceedings. However, for present purposes nothing turns on the correct identity of the carrier and, having explained why both claimants are involved in the proceedings, I shall in future simply refer to them as "the claimants" without distinguishing between them.

3

The crane was loaded on board the vessel at Gijon on 29 th September for carriage on deck to Aviles. A bill of lading was issued recording that the cargo had been shipped on deck without liability for loss or damage howsoever caused. The vessel reached Aviles on 30 th September but unfortunately in the course of discharge the crane toppled from the deck of the Lapad into the harbour. As a result the driver of the crane was killed and damage was caused to another vessel, the Aramo, as well as to the Lapad herself. The crane caused an obstruction in the harbour which prevented both vessels leaving Aviles on schedule.

4

Immediately following the accident a judicial investigation was opened in Aviles in accordance with Spanish criminal procedure to enquire into the circumstances in which it had occurred with a view to considering whether there were grounds for a prosecution. On 6 th October 2003 the defendant applied for the master of the Lapad to be interviewed by the investigating judge and as a result it became involved in the proceedings. On 7 th October the master indicated that he would be represented for the purposes of the investigation and the claimants thereby became involved in it as well.

5

It will be for the investigating judge to decide whether there is a case to go to trial. If he is satisfied that there is, he will direct that a trial take place. At any such trial the judge will be primarily concerned to decide whether the accused committed the offences with which they are charged, but he will also have jurisdiction to determine civil claims against anyone found to have committed a criminal offence insofar as those claims arise out of the facts supporting the convictions. To that extent, therefore, the trial will have a hybrid character.

6

With that in mind, perhaps, the claimants started proceedings in the Admiralty Court on 10 th October 2003 seeking declarations that they were not liable to the defendants, or indeed anyone else, in respect of loss or damage sustained as a result of the accident. At that stage they were clearly under the impression that their relationship with the defendant was governed by the bill of lading which stated on its face that it incorporated all the terms and conditions of the booking note. Clause 3 of the terms printed on the reverse of the booking note, as modified by a typed amendment, provided for all disputes arising under it to be decided in London according to English law.

7

The claimants served the claim form on the defendants in Spain on the basis that the contract between them contained an exclusive jurisdiction clause in favour of the English courts. That led directly to the first of the two applications now before me. The defendant challenged the court's jurisdiction on the grounds that the general words in the bill of lading were not apt to incorporate the jurisdiction clause in the booking note and also on the grounds that the Spanish court was already seised of the same issues. At that stage it does not seem to have occurred to the defendant, any more than it had to the claimants, that the contract might be contained in the booking note rather than the bill of lading.

8

The booking note contained a number of additional typed clauses, one of which, clause 17, provided for any dispute arising under it to be referred to arbitration in London. On 24 th December 2003 the claimants' solicitors wrote to the defendant's solicitors in the following terms:

"Your clients' case …… is that no Jurisdiction clause has been incorporated into the bill of lading. From this it must follow that, given that there are the same parties to the bill of lading and the booking note, and that in the booking note the parties have applied their mind to questions of jurisdiction, the arbitration provisions of clause 17 of the Additional Heavy Lift Clauses which form part of the booking note are incorporated into the bill of lading.

Accordingly, our clients Atlanska Plovidba and Atlantic Conbulk Shipping Company hereby give notice that they refer all disputes arising under the bill of lading concerning the carriage of and damage to the Gottwald crane to arbitration in London. The arbitration clause provides for the appointment of a sole arbitrator. Our clients would be willing to agree one of the following to act as sole arbitrator ……

By this notice our clients call upon Consignaciones Asturianas S.A. to join in the appointment of a sole arbitrator within twenty eight days, failing which our clients will make the necessary application to court under section 18 Arbitration Act 1996 for the appointment of a sole arbitrator."

9

On 21 st January 2004 the defendant's solicitors replied as follows:

"We refer to your message purporting to claim arbitration in relation to the matters involved in the above court proceedings [i. e. 2003 Folio 894].

Please be advised that our clients do not consider that there is any valid arbitration agreement between our respective clients and we would ask you to explain on what basis your clients consider there is such an agreement………"

That led to the second of the two applications now before me, namely, the claimants' application under section 18 of the Arbitration Act 1996 for the appointment of an arbitrator.

The defendant's application to set aside service of the Admiralty proceedings

10

It is convenient to deal first with the defendant's application to set aside service of the claim form in claim 2003 Folio 894. It is now recognised by both parties that their respective rights and obligations in relation to the carriage of the crane are governed by the booking note, not the bill of lading, in accordance with the principles set out in President of India v Metcalfe Shipping Co Ltd (The 'Dunelmia') [1970] 1 Q.B. 289. Although printed clause 3 of the booking note provides for disputes to be decided in London in accordance with English law, that is subject to the agreement to arbitrate contained in additional clause 17. Mr. Hamblen Q.C. therefore very properly accepted that there is no agreement between the parties to submit to the jurisdiction of the English courts and that since the defendant is domiciled in Spain, service must be set aside. The defendant's application must therefore succeed.

The claimants' application for the appointment of an arbitrator

(a) Jurisdiction

11

Section 18 of the Arbitration Act 1996 provides as follows:

"(1) The parties are free to agree what is to happen in the event of a failure of the procedure for the appointment of the arbitral tribunal… . .

(2) If or to the extent that there is no such agreement any party to the arbitration agreement may (upon notice to the other parties) apply to the court to exercise its powers under this section.

(3) Those powers are —…… . to make any necessary appointments itself."

12

It is clear that the court's jurisdiction to exercise its powers under section 18 depends on two things: a failure of the contractual procedure for the appointment of the tribunal and the absence of agreement between the parties on the steps to be taken as a result. Mr. Lord Q.C. submitted that in the present case the first of those requirements had not been satisfied because at the time when the arbitration claim form was issued the claimants had not given an effective notice of arbitration so that the procedure for appointing the arbitrator had not been set in motion. In the event his clients decided not to press that point, but,...

To continue reading

Request your trial
16 cases
  • Noble Denton Middle East Ltd v Noble Denton International Ltd
    • United Kingdom
    • Queen's Bench Division (Commercial Court)
    • 7 Mayo 2010
    ... ... Noble Denton Middle East and Another and Noble Denton International Limited ... ...
  • Taylor Woodrow Construction v RMD Kwikform Ltd
    • United Kingdom
    • Queen's Bench Division (Technology and Construction Court)
    • 17 Abril 2008
    ...an arbitrator.” 35 In addition Mr Bartlett places reliance on the decision of Moore-Bick J (as he then was) in Atlanska Plovidba v. Consignaciones Asturianas SA (The “Lapad”) [2004] 2 Lloyd's Rep. 109 at 113 where he said: “Section 16 refers simply to a “request in writing to do so”, that i......
  • Through Transport Mutual Insurance Association (Eurasia) Ltd v New India Assurance Company Ltd [QBD (Comm)]
    • United Kingdom
    • Queen's Bench Division (Commercial Court)
    • 21 Marzo 2005
    ...consideration when disposing of the costs of this application, but in my view that is as far as it goes. 35 In Atlanska Plovidba v Consignaciones Asturianas S.A. (The 'Lapad') [2004] EWHC 1273 (Comm); [2004] 2 Lloyd's Rep. 109 I expressed the view that the court should normally exercise i......
  • (1) Finmoon Ltd (2) OOO "Megafruit" v (1) Baltic Reefers Management Ltd (2) Howell Trading Sa and Others
    • United Kingdom
    • Queen's Bench Division (Commercial Court)
    • 17 Abril 2012
    ...to appoint an arbitrator." 60 Further assistance is, in my view, to be found in the judgment of Moore-Bick J. in Atlanska Plovidba v Consignaciones Asturianas SA ("The Lapad") [2004] 2 Lloyd's Rep 109, Moore-Bick J. where he held: "To be effective, a notice of arbitration to identify the d......
  • 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