Jadranska Slobodna Plovidba v Oleagine S.A. (Luka Botic)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ACKNER |
| Judgment Date | 30 September 1983 |
| Judgment citation (vLex) | [1983] EWCA Civ J0930-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 September 1983 |
| Docket Number | 83/0396 |
[1983] EWCA Civ J0930-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
(MR. JUSTICE HOBHOUSE)
Royal Courts of Justice
Lord Justice Ackner
and
Lord Justice O'Connor
83/0396
1982 J No. 8765
In the Matter of Section 27 of the Arbitration Acts 1950
In the Matter of an Arbitration
MR. J. GRUDER (instructed by Messrs. Thomas Cooper & Stibbard, Solicitors, London EC3 1AB) appeared on behalf of the Defendants (Appellants)
MR. T. YOUNG (instructed by Messrs. Richards, Butler & Co, Solicitors, London EC2A 4DQ) appeared on behalf of the Plaintiffs (Respondents)
The judgment I am about to read is the judgment of the court.
The respondents are the registered owners of the MV "Luka Botic". They chartered her to the appellants to a voyage from the US Gulf to Daka-Douala Range. The relevant charterparty was in substantially the GENCON form with additional clauses, the relevant one being the Centrocon Arbitration Clause, which reads as follows:
"All disputes from time to time arising out of this contract shall, unless the parties agree forthwith on a single Arbitrator, be referred to the final arbitrament of two Arbitrators carrying on business in London who shall be Members of the Baltic and engaged in the Shipping and/or Grain trades, one to be appointed by each of the parties, with power to such Arbitrators to appoint an Umpire. Any claim must be made in writing and Claimants' Arbitrator appointed within three months of final discharge and where this provision is not complied with the claim shall be deemed to be waived and absolutely barred. No award shall be questioned or invalidated on the ground that any of the arbitrators is not qualified as above, unless objection to his acting be taken before the award is made".
The vessel arrived at the Lagos/Cotonou anchorage on 1st May 1980 and waited for discharge until 7th September 1980. Discharge was finally completed on 15th November 1980, and accordingly the time for the commencement of arbitration expired on 15th February 1981.
No claim in writing having been made, nor the respondents' arbitrator appointed within that period, the question arose as to whether the court had jurisdiction under s.27 of the Arbitration Act 1950 to extend the time, and if it had jurisdiction whether it should extend time. This section reads:
"27. Power of court to extend time for commencing arbitration proceedings. Where the terms of an agreement to refer future disputes to arbitration provide that any claims to which the agreement applies shall be barred unless notice to appoint an arbitrator is given or an arbitrator is appointed or some other step to commence arbitration proceedings is taken within a time fixed by the agreement, and a dispute arises to which the agreement applies, the High Court, if it is of opinion that in the circumstances of the case undue hardship would otherwise be caused, and notwithstanding that the time so fixed has expired, may, on such terms, if any, as the justice of the case may require, but without prejudice to the provisions of any enactment limiting the time for the commencement of arbitration proceedings, extend the time for such period as it thinks proper".
On 10th December 1982, Mr. Justice Hobhouse was satisfied that he had jurisdiction to extend time and that it was a proper case in which to grant the required extension. The course taken before Mr. Justice Hobhouse was somewhat unusual because the actual hearing was devoted to whether or not the learned judge should exercise his discretion. Mr. Gruder did however, on behalf of the appellants, take the point that the court had no power under s.27 of the Arbitration Act 1950 to extend the respondents' time for making a claim in writing in view of the decision of this court in The "Oltenia", (1982) 2 Lloyd's Reports 99. That was not a decision on the wording of the Centrocon Arbitration Clause, but on quite a different clause, and it had been distinguished by Mr. Justice Lloyd in The "Sandalion", (1983) 1 Lloyd's Reports 514, a decision on the self-same Centrocon Arbitration Clause. A similar such decision had been made a few months earlier by Mr. Justice Staughton in The "Mariannina", unreported, but an agreed note by counsel of his judgment had been put before us. Mr. Justice Hobhouse had, a week before the application, decided the point in the same way as Mr. Justice Lloyd, although that decision is unreported. Mr. Gruder therefore reserved the point and Mr. Justice Hobhouse gave the appellants leave to appeal specificall on the question whether on the true construction of the contract and of s.27 of the Arbitration Act 1950 he had jurisdiction to make his order.
There is no dispute as to the history of this section which is succinctly set out by Mr. Justice Kerr, as he then was, in The "Angeliki", (1973) 2 Lloyd's Reports 226 at 229:
"The section was first enacted as s.16 of the Arbitration Act 1934. It is clear that it owes its origin either to the Cetrocon Arbitration Clause or to clauses of this type, which provide that all claims are to be barred unless an arbitrator is appointed or notice of arbitration is given within a certain time from the discharge or delivery of the goods: see in particular Atlantic Shipping and Trading Co Ltd v. Louis Dreyfus, (1922) 2 Appeal Cases 250, H. Ford & Co Ltd v. Compagnie Furness (France), (1922) 2 Kings Bench 797 and Williams and Mordey v. W.H. Muller & Co (London) Ltd (1924) 18 Lloyd's List Reports 50. The hardship caused by such clauses together with a reference to these cases, was discussed in paragraphs 33–35 of the Report of the Committee on the Law of Arbitration in 1927 (Command Paper No. 2817),...
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Mariana Islands Steamship Corporation v Marimpex Mineraloel-Handelsgesellschaft m.b.H. & Company K.G. (Medusa)
...he then was) in The "Sandalion" (1983) 1 Lloyd's Reports 514 and the subsequent decision of the Court of Appeal in The "Luka Botic" (1984) 1 W.L.R. 300; (f) A claim made under clause 59 was to be treated as a step to commence arbitration proceedings (see The "Sandalion" and The "Luka Botic"......