Cohl (Samuel J.) Company v Eastern Mediterranean Maritime Ltd (Silver Fir)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON,SIR STANLEY REES |
| Judgment Date | 16 November 1979 |
| Judgment citation (vLex) | [1979] EWCA Civ J1116-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 November 1979 |
[1979] EWCA Civ J1116-3
Lord Justice Lawton and
Sir Stanley Rees
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
From: Mr Justice Parker, Q. B. D., London.
MR MICHAEL BURTON (instructed by Messrs. Clifford-Turner & Co., EC4) appeared on behalf of the Appellants (Defendants) (Claimants in Arbitration).
MR BRUCE REYNOLDS (instructed by Messrs. Richards Butler & Co., EC2) appeared on behalf of the Respondents (Plaintiffs)(Respondents in Arbitration).
This is an appeal by the claimants in an arbitration, namely, Eastern Mediterranean Maritime Ltd., against an order made by Mr Justice Parker on 27 July 1979 whereby he refused them security for costs against a counterclaim made in the arbitration by the respondents, namely, Samuel J. Cohl Company. On the same date he made an order in favour of the respondents for security for costs to be given by the claimants. He gave leave to appeal to this court on 31 July 1979-
Both parties to the arbitration are corporations registered and carrying on business outside the jurisdiction of this court. The claimants are registered in Lichtenstein; the respondents in the United States of America.
The arbitration arises out of a charterparty which was made in the Gencon form. By that charterparty, which was dated 8 November 1977, the claimants, as disponent owners of the vessel Silver Fir, and the respondents as charterers, agreed that the said vessel should proceed to one safe berth at Detroit and there load a full and complete cargo of 7,000 metric tons of cobble plate ends and steel billets for carriage to Inchon in Korea. The claimants allege in the arbitration that by an oral agreement made on or about 6 December 1977 between their agents in the United States and agents acting on behalf of the respondents, and evidenced by a telex dated 6 December 1977 from the respondents' agents to the claimants' agents, the charterparty was varied to permit the claimants to tender the vessel for loading at Detroit with a quantity of sugar on board. By para.3 of the points of claim the claimants allege that pursuant to the charterparty the vessel sailed from Toledo, in the United States, without having completed discharge of her cargo of sugar, and on or about 6 December 1977 berthed at Detroit ready to load a cargo of cobble plate ends and steel billets in accordance with the charterparty as varied. They allege that in repudiatory breach of the charterparty the respondents refused to load their cargo of cobble plate ends and steel billets unless and until the sugar remaining on board the vessel had been discharged. The claimants contend that they accepted this repudiatory breach as terminating the charterparty, and that onor about 8 December 1977 the vessel sailed fromDetroit without having loaded any cargo.
The respondents, by their points of defence and counterclaim, admit the charterparty dated 3 November 1977- They allege - and rightly so - that the charterparty contained a number of terms relating to the condition in which the vessel was to be when it berthed at Detroit, and also incorporating the United States clause paramount relating to the seaworthiness of the vessel, its manning, equipment and supply, and various other matters relating to the state of the vessel at the date of sailing. By para.6 the respondents allege that at no material time was the vessel ready to load any cargo under the charterparty. They deny, inaddition, that it had been varied as alleged. They set out particulars in support of the allegation that the vessel was not ready to load. They say, for example, that the vessel was not properly manned and that most of the crew had left the vessel at Montreal; they complain about the equipment and the amount of sugar on board; they complain also that the vessel was not properly trimmed. They allege that as a result of all those matters the vessel could not be loaded in accordance with the terms of the charterparty.
They go on to allege that each and every one of the allegations pleaded by way of particulars constituted a breach of the charterparty, and as a result those allegations become the basis of their counterclaim, in it they plead that they have suffered loss and damage totalling $142,232.97. In particular they allege that their consignees claimed against them for non-delivery of the cargo which they would have loaded had the vessel been ready to load.
Such was the stabe of the pleadings
The history of the dispute is relevant for the purposes of this appeal. Both the claimants and the respondents regarded themselves as injured parties. Both made claims against the other. For example, by letter dated 29 June 1978 the respondents London solicitors, Messrs. Richards Butler & Co., wrote to the Greek lawyers acting on behalf of the claimants as follows.
"Our clients entirely reject any allegation that they were in breach of the charterparty. It is quite apparent from our study of the correspondence that your clients are in breach of the charterparty in providing an entirely unseaworthy vessel",
and later, by letter dated 9 August 1978, to their own arbitrator, they said this:
"The owners contend that she was able to load and that we refused to load her. In any event, the vessel left Detroit and passed out of the Seaway and both owners and charterers have substantial claims. The owners…are represented by the Thenamaris Group in Piraeus and have submitted a long letter of claim to our clients on the 28 March 1978. They have quantified their claim at U. S.$3.56,960. We have replied saying that their claim is denied in its entirety and that we have a claim for breach of charter against them. We have asked that we be allowed to treat their letter of 28 March as their letter of claim to which we can deliver points of defence. Our clients wish to get on with this matter as they feel strongly about it".
Indeed, both parties wanted to get on with their claims. The claimants appointed an arbitrator, the respondents appointed one too. As it happened the claimants appointed their arbitratoi first, although there was a time when the London solicitors thought that they had got their claim in before the claimants had got theirs in. Both were spoiling for a fight against the other. At the beginning it mattered not who started first. They both wanted toget at one another.
That is the background of this appeal
The arbitration having been started,...
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