Five Oceans Salvage Consultants Ltd v Perla Navigation Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Walker |
| Judgment Date | 20 September 2013 |
| Neutral Citation | [2013] EWHC 4055 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Claim No: 2013 Folio 1129 |
| Date | 20 September 2013 |
[2013] EWHC 4055 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Rolls Building,
110 Fetter Lane,
London EC4 1NL
Mr Justice Walker
Claim No: 2013 Folio 1129
Mr T Hill QC (instructed by Clyde & Co) appeared on behalf of the Claimant.
Friday, 20 September 2013
Mr Hill QC applies on behalf of the claimant for the court to make an order under section 18 of the Arbitration Act 1996. That section is concerned with what should happen in the event of a failure of the procedure for the appointment of the arbitral tribunal.
The written evidence in the present case establishes that on 6 June 2013 the master of the tanker vessel Perla entered into a Lloyd's Standard Form of Salvage Agreement on the "No cure, No pay" basis. The contractors under that salvage agreement were the present claimant. Under the Lloyd's Standard Salvage and Arbitration Clauses, which are incorporated into the agreement, the procedure contemplated for the appointment of arbitrators is dealt with in clause 5. Accordingly, in the ordinary course, it would be the Council of Lloyd's that would appoint the arbitrator, as part of a procedure which is set out in more detail in clause 5.1.
In the present case, Lloyd's has declined to follow through that procedure to its contemplated result, in the sense of appointment of an arbitrator. The reason that has been given is, in essence, that a concern arises because the cargo was the subject of a contract of sale by the third defendant, Madera SA, to the second defendant, the Government Trading Corporation of Iran. The reason why that gives rise to concern is that there are current prohibitions in the form of international sanctions, relating to the provision of material, logistical and financial support to a range of Iranian entities. The question whether the international sanctions pose any impediment to the appointment of an arbitrator has been investigated by those acting on behalf of the claimant. The written evidence provided to the court indicates that neither the second defendant, nor the cargo, which was some 32,000 metric tonnes of soya bean oil, is on any list of proscribed Iranian entities or goods. I am satisfied, on material available to me today, that there is nothing in the international sanctions which should prevent this court from exercising its powers under section 18.
The reason why the claimant asks the court to exercise those powers is also described in the evidence that has been provided to the court. The concern is that, unless arrangements are in place for receipt of the cargo at a convenient port, there will be no point in attempting to take the cargo off the vessel. The contention on behalf of the claimant is that it is the second defendant which ought to be putting in place any necessary arrangements in that regard. I note that Mr Hill, recognising that there is no attendance on behalf of other parties today, has very properly taken steps to draw to my attention anything which might be raised by way of submission on behalf of such parties. In that regard, he has drawn my attention to a letter from Thomas Cooper, the solicitors for the second defendant. It is plain from that letter that the second defendant denies that there has been any refusal by it to take delivery of the cargo.
Nothing that I say today should be regarded as pre-judging any issue as between any of the parties as to whether or not there has been a refusal to take redelivery of the cargo. I am not in a position today to decide which side is right in its account of...
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