Thyssen Inc. v Calypso Shipping Corporation SA [QBD (Comm)]
| Jurisdiction | England & Wales |
| Judge | David Steel J. |
| Judgment Date | 26 June 2000 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 26 June 2000 |
Queen's Bench Division (Commercial Court).
David Steel J.
Richard Lord (instructed by Clyde & Co) for the claimant.
Nigel Jacobs (instructed by Stephenson Harwood) for the respondent.
The following cases were referred to in the judgment:
Adams v Cape Industries plcELR [1990] Ch 433.
Akai Pty Ltd v People's Insurance Co Ltd [1997] CLC 1508.
Amazona, TheUNK [1989] 2 Ll Rep 130.
Capetan Markos, TheUNK [1986] 1 Ll Rep 211.
Eastern Trader, TheUNK [1996] 2 Ll Rep 585.
Eurotrader, TheUNK [1987] 1 Ll Rep 418.
Finnrose, TheUNK [1994] 1 Ll Rep 559.
Grimaldi Compagnia di Navigazione SpA v Sekihyo Lines Ltd (“The Seki Rollette”) [1998] CLC 1403.
Harbour and General Works Ltd v Environment AgencyUNK [2000] 2 Ll Rep 65.
Havhelt, TheUNK [1993] 1 Ll Rep 523.
Shipping — Carriage of goods — Arbitration — Time bar — US proceedings stayed on basis of London arbitration clause in charterparty — Whether stayed proceedings stopped time running — Whether time for arbitration should be extended — Hague Rules, art. III, r. 6 — Arbitration Act 1996, s. 12.
This was an application by the claimant, “Thyssen”, which was the receiver of a steel cargo, for a declaration that its claim against the respondent owner of the carrying ship, “Calypso”, was not time-barred; alternatively, Thyssen sought an extension of time to commence arbitration proceedings pursuant to s. 12 of the Arbitration Act 1996.
Thyssen was a steel importer based in the US. It bought steel from Metalsrussia which was shipped on the Markos N in Latvia. The contract provided that charterparty bills of lading were acceptable. Thyssen asked for a copy of the relevant charter but did not receive it. On discharge of the cargo in 1997 at Philadelphia it became apparent that it had been damaged. Thyssen issued proceedings in the US. After the expiry of the Hague Rules one year time limit the head charterers produced the subcharter with the sellers which contained an English law and arbitration clause. The US proceedings were then stayed on the basis of that clause. Thyssen applied for a declaration that its claim was not time barred, alternatively for an extension of time to commence arbitration under s. 12(3) of the Arbitration Act 1996. Calypso argued that Thyssen's claim was time barred by the Hague Rules, art. III, r. 6 and that there should be no extension of time to commence arbitration.
Held dismissing the application:
1. The claim was time barred. There was no suit for the purposes of art. III, r. 6 of the Hague Rules. There was no submission by Calypso to the US jurisdiction nor any election to abandon the right to a stay on the basis of the London arbitration clause. Where suit was first brought in breach of an arbitration clause, that was not to be regarded as a suit for the purposes of art. III, r. 6. It was not enough for the correct claimant to commence proceedings before a competent court against the correct defendant. The proceedings had to remain valid and effective at the time when the carrier sought to rely on art. III, r. 6 in the second proceedings. (The FinnroseUNK[1994] 1 Ll Rep 559followed.)
2. For the purposes of s. 12(3)(a) of the Arbitration Act 1996, Thyssen fell a long way short of establishing that it was not reasonably practicable to obtain a copy of the charterparty before the time limit expired. Thyssen could not attribute its failure to comply with the time bar to the conduct of the respondents under s. 12(3)(b). In any event it would not be just to extend time because the US proceedings were prosecuted in a desultory manner as was the present application.
David Steel J:
1. This is an application by the claimants, who were receivers of a steel cargo, for a declaration that their claim against the respondents, who were the owners of the carrying ship, is not time-barred. In the alternative, the claimants seek an extension of time to commence arbitration proceedings pursuant to s. 12 of the Arbitration Act 1996.
2. The claimants (“Thyssen”) are importers of steel based in Detroit. They concluded a contract with Metalsrussia dated 26 October 1996 whereby they agreed to purchase about 900 metric tonnes of hot rolled steel sheet in coils of Russian origin at US$277 per metric tonne CFR Philadelphia. Payment terms were by letter of credit providing for payment against the usual documents including freight pre-paid bills of lading.
3. The contract provided that charter party bills of lading were acceptable. Alerted by this, Mr Golding, general manager of the claimants, sent a fax to the sellers, Metalsrussia, asking for a copy of the relevant charter party:
“We kindly ask you to forward to us a copy of your standard charter party for our review. We do not wish to check any rates, commissions, demurrage/despatch etc but we would like to read through the applicable clauses as they apply to receivers.”
The reply from Metalsrussia was as follows:
“As mentioned earlier, it is not stipulated in c/p which did not mention any clause regarding c/p bill of lading. Furthermore as agreed with ship owner we are not allowed to disclose c/p to third party except lawyer or arbitrator.”
There was no further exchange between the parties to the sale contract on this topic thereafter.
4. Metalsrussia were responsible for the shipping arrangements and the coils were shipped on board the vessel MARKOS N at Ventspils in Latvia for carriage to Philadelphia, the bills of lading being issued on 23 and 24 January 1997 on the Congenbill form. On the face of the bills of lading, freight was expressly payable as per charter party dated 18 January 1997. The terms on the reverse side of the bills incorporated the terms of the charter party “dated as overleaf”. In fact the vessel was subject to a head time charter to Western Bulk Carriers dated 19 January 1997. There was also a voyage fixture to Metalsrussia but the details of that only emerged later, giving rise to the problem in this case.
5. The relevant documentation was duly presented and payment was made. The cargo was thereafter discharged between 23 and 25 February 1997 at Philadelphia during the course of which it became apparent that it had sustained damage. Accordingly Thyssen issued a claim against the owners on 5 March 1997 in the US District Court, Southern District of Texas, in Houston. The complaint was both in rem and in personam. The vessel was duly arrested and thereafter released on the posting of security by the club. The basis of jurisdiction was asserted in para. 1 of the complaint which reads:
“This Court has jurisdiction under Title 28 United States Code Section 1333 and Rule 9(h) to the Federal Rules of Civil Procedure. The Court has supplemental jurisdiction with respect to the remaining aspects of the claim.”
6. The action was then transferred by consent to the...
To continue reading
Request your trial
-
Expofrut SA & Others v Melville Services Inc. and Another
...141. SOS Corporación Alimentaria SA v Inerco Trade SAUNK [2010] EWHC 162 (Comm); [2010] 1 CLC 85. Thyssen Inc v Calypso Shipping Corp SA [2001] CLC 805. Van Oord ACZ Ltd v Port of Mostyn Ltd (10 September 2003, unreported, QBD). Verity Shipping SA v NV Norexa (The Skier Star)UNK [2008] EWHC......