Thyssen Canada Ltd and Mariana Maritime S. A and Another
| Jurisdiction | England & Wales |
| Judgment Date | 23 February 2005 |
| Neutral Citation | [2005] EWHC 219 (Comm) |
| Docket Number | Case No: 2004/606 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 23 February 2005 |
[2005] EWHC 219 (Comm)
Mr Justice Cooke
Case No: 2004/606
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Mr. N. Hamblen Q.C. and Ms. C. Hanley (instructed by Jackson Parton Solicitors) for the Claimant
Stephen Hofmeyr Q. C. and Gavin Geary (instructed by Ince & Co.) for the Defendants
Hearing dates: 16 th February 2005, 17 th February 2005
Approved Judgment
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 as handed down may be treated as authentic.
MR. JUSTICE COOKE
Mr. Justice Cooke:
Introduction
The Claimants, owners of cargo onboard the vessel Mariana apply to this Court for an order pursuant to section 68(2)(g) of the Arbitration Act 1996 (The Act) setting aside or alternatively remitting the Award of Messrs Kenneth Rokison Q.C and Michael Barker-Harber and Sir Anthony Evans dated 16 th January 2004 (the Award). The Claimants also seek an order under section 80(5) of the Act extending the 28 day time limit under section 70(3) of the Act for making that application under section 68. The Award was published on 16 th January 2004 and was collected by both parties jointly on 26 th March 2004. Although there was an agreed extension of time for seeking permission to appeal under section 69 of the Act, there was never any extension of time for making an application under section 68, so that the time expired for any such application on 13 th February 2004. The arbitration claim form was issued on 5 th July 2004 so that an extension of time of about 20 weeks is required by the Claimants.
There is also a further award which the Claimants seek to set aside. The Award dated 16 th January 2004 is the Award which determined the substantive claim made by the Claimants as cargo owners against the Defendants as owners of the vessel in respect of cargo damage caused by a fire onboard that vessel on 9 th June 1998. The second award is dated 29 th June 2004 and not only determined issues of costs between the parties in relation to the Award but also constituted a determination that the Tribunal was unable to reopen any of the issues determined in the Award or to receive additional evidence in relation to them. By a further arbitration claim form dated 21 st July 2004, the Claimants sought to set aside the second Award on the same grounds as the first. That application was made within the 28 day time limit imposed by section 70(3) of the Act. The outcome of the application in relation to the Award will also determine the fate of the second Award.
In the arbitration, the Claimants originally alleged that the fire was the result of an attempt by the owners to render the vessel a constructive total loss. The Claimants maintained this allegation because they said that the Defendants' suggestion as to how the fire was caused was implausible, namely that the fire had been started by a smouldering cigarette which had been thrown into Hold 3 by a stevedore at Constanza on 8 th June prior to closing the hatch covers. The Claimants' primary allegation on the pleadings was that the fire was started deliberately with the connivance of the Defendants. Their alternative case was that the fire was caused as the Defendants said but that this constituted unseaworthiness of the vessel for which the Defendants were liable. Approximately two weeks before the hearing, the Claimants abandoned their primary case that the fire was started deliberately and pursued only the unseaworthiness case, whilst stating that they did so for tactical reasons and still believed that the fire was in fact deliberate arson.
As recited in the Award, it was therefore common ground between the parties at the arbitration hearing that the fire in Hold 3 originated in one of the two bundles of creosote soaked carpet, timber pieces and other dunnage resting on top of the timber cargoes stowed on the starboard side in the forward part of the hold. That carpet had been put there to soak up any creosote which had leaked from the cargo present and the prior timber cargo which had been discharged. The Award also recited that: —
"it was also agreed that the fire was accidentally started by a burning cigarette end thrown into the hold when the starboard forward hatch cover was opened during the period of loading at Constanza. When the hatch cover was closed the fire was smouldering in the dunnage, most likely the carpet, and the vessel sailed from Constanza in that condition."
In the Award, the Tribunal found that the Defendants had exercised due diligence before and at the beginning of the voyage which began at Constanza on 8 th June 1998, to make the vessel seaworthy in all material respects and were therefore not liable for the cargo damage. Moreover, the Tribunal found that the vessel was not unseaworthy in some of the other respects alleged by the Claimants. They found that the Officers and crew were not incompetent, that the fire alarm system was operative and in good working order at the time of the fire, that the vessel was not unseaworthy by reason of the bundle of dunnage on top of the cargo in No 3 hold and that appropriate fire instructions were kept and displayed onboard the vessel. They made no finding one way or the other as to whether or not the presence of a smouldering cigarette in the bundle of dunnage on top of the timber cargo in No 3 hold in itself rendered the vessel unseaworthy as it was unnecessary for them to do so in the light of their finding of due diligence.
At paragraphs 67–90 of the Award, the Tribunal dealt with disputed factual issues. In particular they had to determine whether, and if so when, the fire alarm was activated by the fire and when and for what reason No 3 hatch cover was opened and by whom. In addition they referred to subsidiary issues of fact which were relevant only to the credibility of individual witnesses and, in the case of the second officer, Mr. Katsarakis, to the reasons why he did not come to give evidence.
The Claimants called the Turkish Pilot to give evidence which is referred to at paragraph 70 of the Award. He stated that he was unaware of the fire or any emergency until 13:50 hours on 9 th June when he looked forward from the bridge and saw No 3 port aft hatch cover being opened. The Master's evidence was that, at about 13:45 hours, he heard the fire alarm sound and saw smoke coming from the fore and aft ventilators of No 3 hold. The CO2 system was used to release CO2 into the hold but there was a problem in closing the forward ventilator to seal the hold. The Master and Chief Officer were concerned because of the fuel oil in the double bottom tanks below No 3 hold and agreed that the hold should be opened so that water could be directed into it to cool the tank top.
There was a conflict of evidence between the Master and the Pilot as to the sounding of the alarm and the timing of discovery of the fire and the opening of the hatch covers. The Tribunal resolved this at paragraph 78 of the Award by finding that smoke was first observed coming from the aft ventilator of No 3 hold at about 13:45 hours and that the Pilot first became aware of the fire when he saw smoke coming from the hatchway at about 13:50. It was clear that the No 3 aft port side hatch cover was partly opened by 14:05 hours when the first of the fire fighting tugs reached the vessel and the Tribunal found that the process of opening the covers began just before 13:50, when the Pilot first saw the evidence of fire. The Tribunal concluded that the alarm had sounded after 13:45 hours and shortly before 1350 hours.
On the evidence before the Tribunal there was never any question that the hatch covers had been open at any stage prior to 13: 45 hours on 9 th June or that any hot work or welding was being done on the hatch covers at any time that day. The evidence of the witnesses of fact called by the Defendants and that of the Pilot, called by the Claimants, was directly contrary to any such suggestion.
The Claimants maintain that, subsequent to the conclusion of the hearing on 6 th November 2003, they first obtained information that the actual cause of the fire was hot work (cutting and welding) carried out on board the vessel on the morning of 9 th June 1998 and that evidence only became available to them in a form which they could adduce at a later stage, following the publication of the Award. They rely on evidence consisting of alleged contemporaneous notes made by the second officer Mr. Katsarakis and a statement from him dated 8 th June 2004 in which he confirms the authenticity and accuracy of those notes. They rely also on statements made by Ms. Vagia, an assistant solicitor engaged by the Claimants and by Mr. Nikandros, a marine surveyor and consultant, who both give hearsay evidence of an oral statement made by the Bosun, Mr. Daskalakis to them on 10 th June 2004 to much the same effect. Mr Daskalakis is said to have confirmed to them not only that hot work was carried out but that he was instructed to and did collect and destroy all evidence from hold No 3 which could prove that such work had been carried out. Further, the Claimants have a sworn affidavit dated 19 th September 2004 from Mr. Nejloveanu and a signed statement dated 2nd January 2005 from Mr. Mladin, both of whom were Romanian Able Seamen onboard the vessel. Both give evidence of a Polish fitter Mr. Zdzislaw carrying out welding work at hold No 3 following use of an oxyacetylene cutting tool. Both say that all the crew were aware that the fire broke out as a result of the welding operation and sparks flying into the open hold whilst this work was being done. Each says that after the fire was extinguished the...
To continue reading
Request your trial
-
Double K Oil Products 1996 Ltd v Neste Oil Oyj
... ... This is the basis of another ground of complaint, to which I shall come back ... 65 at 76–77 , Waller LJ, applied by Cooke J in Thyssen Canada Ltd v Mariana Maritime SA [2005] ArbLR 62 at ... ...
-
DDT Trucks of North America Ltd v DDT Holdings Ltd
...Award was alleged to have been obtained by fraud in the shape of perjury. I was referred to a decision of mine in Thyssen v Mariana [2005] EWHC 219 (Comm) where, obiter, I set out the test to be applied by reference to the judgment of Waller LJ in Westacre v Jugoimport [2000] QB 288 at page......
-
Swiss Singapore Overseas Enterprises Pte Ltd v Exim Rajathi India Pvt
...R Pagnan & Fratelli v Corbisa Industrial Agropacuaria Limitada [1970] 1 WLR 1306 (refd) Thyssen Canada Ltd v Mariana Maritime SA [2005] 1 Lloyd's Rep 640 (folld) Westacre Investments Inc v Jugoimport-SPDR Holding Co Ltd [2000] QB 288 (folld) International Arbitration Act (Cap 143A, 2002 Rev......
-
The Federal Republic of Nigeria v Process & Industrial Developments Ltd
...the fraud allegations were weak or both these considerations were in play. Thus in Thyssen Canada Ltd v Mariana Maritime SA [2005] EWHC 219 (Comm), [2005] 1 Lloyd's Rep 640, involving a five month delay, evidence of the alleged perjury was available to the appellant during the arbitration......