Swiss Bank Corporation v Novorossiysk Shipping Company ('The Petr Schmidt') [QBD (Comm)]
| Jurisdiction | England & Wales |
| Judge | Potter J |
| Judgment Date | 07 November 1994 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 07 November 1994 |
Queen's Bench Division (Commercial Court)
Potter J.
Graham Dunning (instructed by Holman, Fenwick & Willan) for the plaintiff's.
Angus Glennie QC (instructed by Lawrence Graham) for the defendants.
The following cases were referred to in the judgment:
Agios Lazaros, TheUNK [1976] 2 Ll Rep 47.
Ashville Investments Ltd v Elmer Contractors LtdELR [1989] QB 488.
Comdel Commodities Ltd v Siporex Trade SA (No. 2)ELR [1991] 1 AC 148.
Harbour Assurance Co (UK) Ltd v Kansa General International Insurance Co Ltd & OrsELR [1993] QB 701.
Libra Shipping & Trading Corp Ltd v Northern Sales Ltd (“The Aspen Trader”)UNK [1981] 1 Ll Rep 273.
Transamerican Ocean Contractors Inc v Transchemical Rotterdam BV (“The Ioanna”)UNK [1978] 1 Ll Rep 238.
Arbitration — Forum — Vegoilvoy tanker voyage charterparty — Bill of lading incorporating chartering agreement by fixture confirmation telex — Alterations to charterparty agreed goods not delivered to holders of bill of lading — Whether breach of contract claim to be arbitrated in london or new york — Whether reference to one or three arbitrators — Whether claim out of time.
This was an originating summons seeking declarations on the proper forum in which to bring an arbitration claim arising out of a bill of lading, and related issues.
The plaintiffs were the lawful holders and endorsees of a bill of lading dated 20 April 1993 relating to a cargo of soya bean oil. The defendants were the owners of the vessel on which the cargo was carried, and the contractual carriers of the cargo under the bill of lading. It was the plaintiffs” case that in breach of contract the defendants delivered the cargo, without production of the bill of lading, to a third party, in consequence of which the plaintiffs had suffered a substantial loss. The chartering agreement was constituted by a fixture confirmation telex dated 11 March 1993 which referred to the Vegoilvoy Tanker Voyage Charterparty form. That charterparty contained general average and arbitration clauses specifying that arbitration was to take place in New York, but the telex listed agreed alterations including: “General average/arbitration in London — English law to apply. York-Antwerp Rules 1974, as amended, to apply”. The plaintiffs commenced arbitration in London for breach of contract, and sought declarations concerning the proper forum for arbitration and consequential matters.
Held, granting the plaintiffs' declarations and appointing a single arbitrator:
1. There was a general presumption against importing an intention to provide for arbitration of general average disputes under a different regime from that governing all other disputes under a charterparty. That presumption was only to be rebutted by clear words or a clear countervailing presumption arising from the commercial background to the contract.
2. The alterations in the telex were ambiguous since the reference to arbitration in London was followed by a provision for the updating of the York-Antwerp Rules. There being no clear words or special background facts to rebut it the presumption in favour of one-stop arbitration prevailed. It followed that the arbitration provision in the Vegoilvoy form had been replaced by an agreement for arbitration in London with English law to apply.
3. The telex being silent on the form of arbitration, the arbitration agreement was deemed by s. 6 of the Arbitration Act 1950 to include a provision that the reference should be to a single arbitrator. It being conceded that on that basis the plaintiffs' claim was made in time, no extension of time was required.
Potter J:
In this case, the plaintiffs claim to be lawful holders and endorsees of a bill of lading, dated 20 April 1993, issued by or on behalf of the defendants relating to a cargo of 1,500mt of soya bean oil, shipped in bulk from Rio Grande, Brazil to Chittagong, Bangladesh (“the cargo”). The defendants are the owners of the vessel on which the cargo was carried, the “PETR SCHMIDT”, and the contractual carriers of the cargo under the bill of lading.
By the originating summons in this action, the plaintiffs apply for the following relief:
“(1) A declaration that the plaintiffs are not time-baited from pursuing their claims for non-delivery and/or misdelivery against the defendants arising out of the contract between the plaintiffs as endorsees and holders and the defendants as carriers contained in or evidenced by a bill of lading, dated 20 April 1993, relating to the carriage of [the cargo].
(2) A declaration that the plaintiffs have given valid and proper notice of arbitration in respect of the dispute relating to the said claims by their solicitors', Messrs Holman Fenwick & Willams, fax letter, dated 15 June 1994, to the defendants' solicitors, Messrs Lawrence Graham.
(3) An order appointing a single arbitrator in respect of the said dispute under s. 10(1)(a) of the Arbitration Act 1950.
(4) Alternatively, a declaration that the said dispute is to be arbitrated in London before a panel of three arbitrators, otherwise as stipulated in cl. 31 of the Vegoilvoy form of charterparty and, if necessary, an order extending time for the commencement of such an arbitration under s. 27 of the Arbitration Act 1950.”
The originating summons has been heard pursuant, to an order for directions made by me on 25 October 1994, the parties having co-operated in arranging a speedy hearing in order to try to achieve a result by 8 November 1994, which is the deadline for provision to the plaintiffs by the defendants of security for...
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