Kallang Shipping SA Panama v Axa Assurances Senegal & Anor, Court of Appeal - Commercial Court, November 19, 2008, [2008] EWHC 2761 (Comm)
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Kallang Shipping SA Panama v Axa Assurances Senegal & Anor, Court of Appeal - Commercial Court, November 19, 2008, [2008] EWHC 2761 (Comm)
Page 49Claim No. 2005 Folio 250 Neutral Citation Number: [2008] EWHC 2761 (Comm) IN THE HIGH COURT OF JUSTICEQUEENS BENCH DIVISIONCOMMERCIAL COURT Royal Courts of JusticeStrand, London, WC2A 2LLDate: 19 November 2008Before :JONATHAN HIRST QC SITTING AS A DEPUTY JUDGE OF THE HIGH COURT- - - - - - - - - - - - - - - - - - - - -Between :- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -Alexander Layton QC (instructed by Jackson Parton) for the ClaimantDominic Happé (instructed by Marine Law LLP) for the DefendantsHearing dates: 6 - 9 October 2008- - - - - - - - - - - - - - - - - - - - -JUDGMENTMr Hirst QC: 1. This action arises out of the arrest of the ``Kallang'' (``the vessel'') at Dakar in Senegal between 11 and 24 March 2005. The Claimants, Kallang Shipping Co. SA (``the Owners''), claim that the arrest at the suit of the receivers, Comptoir Commercial Mandiaye Ndiaye (``CCMN''), was a breach of the express and implied terms of the London arbitration clause incorporated in the contracts of carriage. They contend that the breach was induced or procured by the cargo insurers, Axa Assurances Senegal (``Axa Senegal'') against whom they claim damages. They also allege that Axa Senegal interfered with their business relations with CCMN and that both defendants conspired to do these things.2. This Judgment should be read with the related Judgment in the Duden [2008] EWHC 2762 (Comm), which I have delivered simultaneously with this Judgment.The Contractual Framework3. The vessel is a handy-sized dry cargo Freedom 'tween-decker with a deadweight of 15,097 MT. At all relevant times she was entered with the American Steamship Owners Mutual Protection and Indemnity Association (``the American Club'') for P&I risks. She was managed by Trisul Shipping & Trading PVT Limited (``Trisul'') of Calcutta in India.4. On 1 February 2005, the Owners and Brobulk Limited (``Brobulk'') entered into a time charter on the NYPE form for a time trip from Montevideo in Uruguay to Dakar and/or Nouakchott in charterer's option at a rate of US$12,000 per day plus a ballast bonus. The time charter party contained the following dispute resolution provision:5. 45. Arbitration(b) LONDONAll disputes arising out of this contract which cannot be amicably resolved shall be referred to arbitration in London. Unless the parties agree upon a sole arbitration, the reference shall be for a Tribunal of two arbitrators, one to be appointed by each of the parties, who will have the power to appoint an umpire if they disagree. The arbitrators and the umpire shall be members of the London Maritime Arbitrators' Association or otherwise qualified by experience to deal with commercial shipping disputes. The contract is governed by English Law and there shall apply to arbitration proceedings under this Clause the terms of The London Maritime Arbitrator's Association current at the time when the arbitration proceedings are commenced.82. Arbitration Small AmountsIf the amount in dispute does not exceed the amount of US$100,000.00 exclusive of any interest on the amount claimed, the costs of the arbitration, and legal expenses, if any, the Owners and the Charterers agree that the matter should be heard under the Small Claims Procedural 1989 Terms in accordance with LMAA Rules. English Law to apply.6. Also on 1 February 2005, Brobulk Ltd entered into a voyage charter with Voest-Alpine Intertrading AG on the Gencon form. It was agreed that, in return for payment of freight, the Vessel would load a cargo of bagged rice at Montevideo and carry it to Dakar and/or Nouakchott. The voyage charter contained the following provisions:5. Loading/Discharging Costs ...(b) F.i.o. and free stowed/trimmedThe cargo shall be brought into the holds, loaded, stowed and/or trimmed and taken from the holds and discharged by the Charterers or their Agents, free of any risk, liability and expense whatsoever to the Owners....34. Owners' Responsibility.Mats/dunnage to be supplied up to Master's satisfaction. Vessel will in all cases be held responsible for damage to cargo as a result of insufficient dunnage and materials or caused by water through ventilators or due to leakage of water or oil from pipes or tanks on board occasioned by lack of due diligence in making the vessel seaworthy for the currency this Charter Party. Loading and stowage to be at Masters' discretion and satisfaction.Owners of the vessel to be responsible for delivery of the number of bags shown in the Bills of Lading.39. DisputesAll disputes arising out of this Charter Party including General Average shall be referred to Arbitration in ...See the full content of this document
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