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LOON ENERGY INC AND ANOTHER v INTEGRA MINING (B) SENDIRIAN BERHAD AND ANOTHER

[2008] Lloyd's Rep Plus 1

Arbitration – Series of agreements between the parties governed by English law relating to participation in oil exploration rights – Confidentiality agreement between the parties governed by Texas law and subject to arbitration – Claimant seeking declarations that defendants had no interest in the rights – Defendants commencing arbitration in Texas under the Confidentiality Agreement – Whether declarations sought in England fell within the scope of the Confidentiality Agreement – Stay of proceedings – Arbitration Act 1996, section 9.

CEREAL INVESTMENTS COMPANY (CIC) SA v ED&F MAN SUGAR LTD

[2008] Lloyd's Rep Plus 2

Sale of goods (fob) – Shipment period – Sale of sugar – Whether loading had to be completed by end of month specified in contract – Whether letter of credit complied with contract.

C v D

[2008] Lloyd's Rep Plus 3

Arbitration – Bermuda Form – Two US corporations agreed to arbitrate in England – Claimant seeking anti-suit injunction to prevent defendant from bringing action in United States challenging award – Effect of seat of arbitration being in England – Whether agreement to arbitrate governed by English law – Binding effect of award on defendant – Arbitration Act 1996, sections 2, 4 and 58 – Costs – Privacy.

PACIFIC MARITIME (ASIA) LTD v HOLYSTONE OVERSEAS LTD

[2008] Lloyd's Rep Plus 4

Arbitration – Freezing order – Dispute involving accommodation blocks on board vessel – Whether court should continue freezing injunction against defendant – Amount of sums frozen – Arbitration Act 1996, sections 38 and 44.

GOLDEN FLEECE MARITIME INC AND ANOTHER v ST SHIPPING & TRANSPORT INC (THE “ELLI” AND THE “FRIXOS”)

[2008] Lloyd's Rep Plus 5

Charterparty (Time) – Change in international regulations – Oil tankers chartered under Shelltime 4 form – MARPOL changes restricting vessels’ cargo carrying capacity – Whether loss to be borne by owners or charterers.

FAIRFAX GERRARD HOLDINGS LTD AND OTHERS v CAPITAL BANK PLC

[2008] Lloyd's Rep Plus 6

Sale of goods – Finance agreement – Reservation of title – Claimant purchasing goods for customers and passing title on payment – Customer resold goods to third party – Whether obligation on customer to include reservation of title clause in sub-sale – Whether third party obtained title.

PETROMEC INC v PETROLEO BRASILEIRO SA PETROBRAS

[2008] Lloyd's Rep Plus 7

Contract – Oil production platform – Upgrade works changed – Contractor entitled to compensation representing cost of works – Calculation of compensation – Particulars of proof required to establish sums payable.

SAMSUN LOGIX CORPORATION v OCEANTRADE CORPORATION

[2008] Lloyd's Rep Plus 8

Charterparty (Time ) – Lien on sub-freights – Sub-charterer paying freight to time-charterers’ solicitors – Owners subsequently exercising lien on sub-freights – Whether lien validly exercised – Whether determination by arbitrator that lien validly exercised binding on non-party to arbitration – Priorities of funds in hands of time charterers’ solicitors.

WATERFRONT SHIPPING COMPANY LTD v TRAFIGURA AG (THE “SABREWING”)

[2008] Lloyd's Rep Plus 9

Charterparty (Voyage) – Demurrage – Limitation of time – Time bar clause – Owners claimed demurrage – Charterers alleged claim not presented with supporting documents within 90 days of completion of discharge – Whether owners’ claim time-barred.

GULF IMPORT & EXPORT CO v BUNGE SA

[2008] Lloyd's Rep Plus 10

Arbitration – FOSFA Rules allowing appeal to Board of Appeal on any matter – Arbitrators refusing to extend time for service of documents – Whether Board of Appeal had power under FOSFA Rules to extend time – Whether issue going to substantive jurisdiction of Board of Appeal – Arbitration Act 1996, sections 30, 31, 67, 68, 69 and 73.

EL NASHARTY v J SAINSBURY PLC

[2008] Lloyd's Rep Plus 11

Arbitration – Stay of proceedings – Contract containing arbitration clause – Claimant bringing action in English courts asserting that contract was made under duress – Defendant applying for stay in favour of arbitration – Claimant relying on article 6 of European Convention of Human Rights – Whether arbitration agreement constituted waiver of claimant’s right of access to court – Whether claimant waived right to avoid arbitration clause for duress – Arbitration Act 1996, sections 7 and 9.

MUSAWI v R E INTERNATIONAL (UK) LTD AND OTHERS

[2008] Lloyd's Rep Plus 12

Arbitration – Conflict of laws – Law applicable to arbitration agreement – Law applicable to substantive dispute – Whether award valid – Arbitration Act 1996, section 46.

SANHE HOPE FULL GRAIN OIL FOODS PRODUCTION CO LTD v TOEPFER INTERNATIONAL ASIA PTE LTD

[2008] Lloyd's Rep Plus 13

Sale of goods – Contract for sale of Brazilian soybeans – Buyers in repudiatory breach – Measure of damages – Appeal from FOSFA Appeal Arbitration Award – FOSFA 22 clause 27 –Whether sellers sustained any loss.

REPUBLIC OF KAZAKHSTAN v ISTIL GROUP INC (NO 2)

[2008] Lloyd's Rep Plus 14

Arbitration – Anti-arbitration injunction – Partial award by arbitrators determining they had substantive jurisdiction – Subsequent final award negating partial award but confirming jurisdiction – Successful appeal against final award – Whether partial award implicitly overturned as well – Whether injunction to be granted preventing continuation of arbitration proceedings – Arbitration Act 1996, sections 1(c), 67 and 73 – Supreme Court Act 1981, section 37.

PHILLIPS AND ANOTHER v SYMES AND OTHERS

[2008] Lloyd's Rep Plus 15

Conflict of laws – Jurisdiction – Whether failure to serve English language claim form on defendant prevented the service from being valid – Whether court could dispense with service – Whether issue of claim form or service rendered the English court seised of an action – Lugano Convention 1989, article 21 – CPR 3.10 and 6.9.

GOLDEN PRESIDENT SHIPPING CORPORATION v BOCIMAR NV (THE “CHANNEL ALLIANCE”)

[2008] Lloyd's Rep Plus 16

Charterparty (Time) – Extension – Profit sharing clause – Whether profit sharing clause applied also to extension at charterers’ option.

STANDARD BANK PLC AND ANOTHER v AGRINVEST INTERNATIONAL INC AND OTHERS

[2008] Lloyd's Rep Plus 17

Practice – Anti-suit injunction – Declaratory relief – Option contract – Sale agreement – Whether sale agreement contained exclusive jurisdiction clause.

RAIFFEISEN ZENTRALBANK ÖSTERREICH AG v CHINA MARINE BUNKER (PETROCHINA) CO LTD

[2008] Lloyd's Rep Plus 18

Banking – Irrevocable payment undertaking issued by buyers of oil to claimant bank – Whether undertaking enforceable by bank or by sellers of oil – Whether bank had given consideration.

BRITISH ENERGY POWER AND TRADING LTD AND OTHERS v CREDIT SUISSE AND OTHERS

[2008] Lloyd's Rep Plus 19

Option agreements – Assignment of rights under sub-participation agreements by holders of options – Assignments prohibited by option agreements – Whether prohibition on assignment binding on all parties to the option agreements – Effect of assignment – Whether prohibition on assignment contrary to public policy.

WPP HOLDINGS ITALY SRL AND OTHERS v BENATTI

[2008] Lloyd's Rep Plus 20

Jurisdiction – Claims brought by claimants in England and by defendant in Italy – Whether English courts first seised of proceedings – Whether exclusive jurisdiction clause valid – Whether contract one of employment – Council Regulation 44/2001/EC, articles 19, 23 and 27 – Council Regulation 1348/2000/EC, article 14.

KOLDEN HOLDINGS LTD v RODETTE COMMERCE LTD AND ANOTHER

[2008] Lloyd's Rep Plus 21

Conflict of laws – Jurisdiction – Proceedings commenced in England – Claimants assigning cause of action – Defendants bringing second set of proceedings in Cyprus against assignors and assignee – Whether proceedings were between “the same parties” – Whether English court first seised – Council Regulation 44/2001, article 27.

SCOTTISH & NEWCASTLE INTERNATIONAL LTD v OTHON GHALANOS LTD

[2008] Lloyd's Rep Plus 22

Conflict of laws – Jurisdiction – Sale of goods “CFR Limassol” – Goods shipped at Liverpool – Sellers bringing proceedings in England against buyers domiciled in Cyprus – Place where goods delivered – Whether sellers entitled to sue in England – Council Regulation 44/2001, article 5.1(b).

CHEVASSUS-MARCHE AND OTHERS v GROUPE DANONE

[2008] Lloyd's Rep Plus 23

Agency – European Union – Self-employed commercial agents – Right of an agent entrusted with a specific geographical area to a commission – Transactions concluded without any action on the part of the principal – Whether a commercial agent entrusted with a specific geographical area had the right to a commission for transactions concluded by customers belonging to that area with a third party, without any action, direct or indirect, on the part of the principal – Approximation of laws – Reference for a preliminary ruling – Article 234 EC – Council Directive 86/653/EEC, article 7(2).

OCEAN PRIDE MARITIME LTD PARTNERSHIP v QINGDAO OCEAN SHIPPING CO (THE “NORTHGATE”)

[2008] Lloyd's Rep Plus 24

Charterparty – Demurrage – Commencement of laytime – Whether notice of readiness validly tendered – Whether charterers waived defect.

GATER ASSETS LTD v NAK NAFTOGAZ UKRAINIY (NO 2)

[2008] Lloyd's Rep Plus 25

Arbitration – Award – Enforcement – Allegation that material facts fraudulently withheld from arbitrators – Whether enforcement of Russian award should be refused – Public policy ground for refusing enforcement – Arbitration Act 1996, sections 68 and 103.

HIGH SEAS VENTURE LTD PARTNERSHIP v SINOM (HONG KONG) LTD (THE “NEWFOREST”)

[2008] Lloyd's Rep Plus 26

Charterparty (Voyage) – Demurrage – Charterparty providing for demurrage to be calculated on basis of statement of facts – Statement of facts referring to bad weather – Owners subsequently seeking to assert that delays not caused by bad weather – Status of statement of facts – Whether charterers liable for demurrage.

MATRIX EUROPE LTD AND ANOTHER v UNISERVE NORTHERN LTD AND ANOTHER

[2008] Lloyd's Rep Plus 27

Carriage of goods by road – BIFA terms – Whether the parties actually intended the delivery of the goods to the recipient – Whether delivery covered by BIFA terms – Determination of preliminary issues.

SOCIMER INTERNATIONAL BANK LTD v STANDARD BANK LONDON LTD

[2008] Lloyd's Rep Plus 28

Banking – Purchase of securities – Obligation of seller to sell assets and credit proceeds to buyer – Valuation of assets – Whether seller under implied duty of care – Whether seller in position equivalent to that of mortgagee selling mortgaged property.

AIC LTD v MARINE PILOT LTD (THE “ARCHIMIDIS”)

[2008] Lloyd's Rep Plus 29

Charterparty (Voyage) – Deadfreight – Vessel chartered to load cargo from “one safe port Ventspils” – Charter requiring charterers to load minimum 90,000 mt and giving charterers option to load cargo by ship-to-ship transfer at anchor – Vessel tendering NOR to load maximum of 67,000 mt due to draft restrictions – Charterers formally tendering 93,410 mt cargo knowing vessel could not load more than 67,000 at berth – Whether charterers liable for deadfreight – Whether safe port warranty – Whether need for lightering can render port unsafe.

M & J POLYMERS LTD v IMERYS MINERALS LTD

[2008] Lloyd's Rep Plus 30

Sale of goods – Penalty clauses – Contract for the supply of dispersants – “Take or pay” clause – Whether buyer had right to reject the goods – Whether take or pay clause amounted to a penalty clause – Whether defendant had ordered required minimum amount of goods.

VERITY SHIPPING SA AND ANOTHER v NV NOREXA AND OTHERS (THE “SKIER STAR”)

[2008] Lloyd's Rep Plus 31

Practice – Anti-suit injunction – Claimants obtaining ex parte injunction restraining defendants from continuing foreign proceedings in breach of London arbitration clause – Claimants applying to continue injunction – Defendants alleging strong cause or good reason for not granting injunction – Whether risk of inconsistent decisions – Delay – Relevance of time bar – Whether material non-disclosure.

EMMOTT v MICHAEL WILSON & PARTNERS LTD

[2008] Lloyd's Rep Plus 32

Arbitration – Confidentiality – Proceedings brought by defendant against claimant in arbitration in London and also in courts abroad – Fraud not alleged in the arbitration but alleged in the judicial proceedings – Whether claimant entitled to an order permitting him to use the defendant’s arbitration points of claim in the judicial proceedings – Relevance of Evidence (Proceedings in Other Jurisdictions) Act 1975.

FERRYWAYS NV v ASSOCIATED BRITISH PORTS

[2008] Lloyd's Rep Plus 33

Agency – Undisclosed principal – Employment contract – Crew management company entering into contract of employment “as Employer” with crew member – Whether crew management company acting as agent for ship operator – Crew member killed by tugmaster vehicle at cargo terminal while supervising cargo operations – P&I Club paying death benefit and repatriation expenses pursuant to employment contract – Ship operator suing terminal operator for breach of stevedoring contract – Whether terminal operator entitled to rely on exclusion and limitation clauses in stevedoring contract – Unfair Contract Terms Act 1977.

THE “VICKY 1”

[2008] Lloyd's Rep Plus 34

Collision – Damages – Assessment – Loss of profit – Whether collision caused loss of pre-collision fixture – Whether claimants failed to mitigate loss – Whether court bound to calculate loss by “ballast/laden” method – Whether damages should be assessed on basis of loss of chance.

BRAES OF DOUNE WIND FARM (SCOTLAND) LTD v ALFRED MCALPINE BUSINESS SERVICES LTD

[2008] Lloyd's Rep Plus 35

Arbitration – Contract providing that seat of arbitration was in Scotland but that English courts should have exclusive jurisdiction and that Arbitration Act 1996 should apply – Arbitration held in Scotland – Application for permission to appeal against award for error of law – Whether English court possessed jurisdiction – Identification of seat of arbitration – Whether permission to appeal should be given – Enforcement of award – Arbitration Act 1996, sections 2, 66 and 69.

BARCLAY v BRITISH AIRWAYS PLC

[2008] Lloyd's Rep Plus 36

Carriage by air – Claimant slipped while going to seat on aircraft – Whether claimant suffered injury from “accident” – Montreal Convention, article 17.

ENTICO CORPORATION LTD v UNITED NATIONS EDUCATIONAL SCIENTIFIC AND CULTURAL ASSOCIATION SECRETARY OF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRS (INTERVENING)

[2008] Lloyd's Rep Plus 37

Arbitration – Claim for breach of contract against UNESCO – UNESCO entitled to immunity from suit – Whether refusal of UNESCO to participate in arbitration undermined the arbitration clause – Whether arbitration clause formed part of the contract – Separability – Whether UNESCO’s immunity was contrary to European Convention on Human Rights, article 6.

MOBIL CERRO NEGRO LTD v PETROLEOS DE VENEZUELA SA

[2008] Lloyd's Rep Plus 38

Practice – Arbitration – Interim relief – Freezing injunction – Conditions to be satisfied for grant of worldwide freezing injunction in support of foreign arbitration – Arbitration Act 1996, sections 2(3) and 44 – Supreme Court Act 1981, section 37.

ROYAL & SUNALLIANCE INSURANCE PLC v BAE SYSTEMS (OPERATIONS) LTD AND OTHERS

[2008] Lloyd's Rep Plus 39

Arbitration – Reinsurance – Appeal on point of law – Whether parties had agreed on right of appeal without permission of court – London Court of International Arbitration Rules, rule 26 – Arbitration Act 1996, section 69(2).

MINISTRY OF TRADE OF THE REPUBLIC OF IRAQ AND ANOTHER v TSAVLIRIS SALVAGE (INTERNATIONAL) LTD (THE “ALTAIR”)

[2008] Lloyd's Rep Plus 40

Arbitration – Jurisdiction – Vessel and cargo grounded in Kuwaiti waters – Vessel owners engaging salvors on Lloyd’s Standard Form – Whether shipowners had authority to bind cargo owners to London arbitration clause – Identity of cargo owners – Whether arbitrator had jurisdiction to determine salvors’ award against cargo owners - Sovereign immunity – Whether salvors entitled to freezing injunction – International Salvage Convention 1989, article 6.2 – State Immunity Act 1978, sections 14(1) and 14(2).

LAROCHE v SPIRIT OF ADVENTURE (UK) LTD

[2008] Lloyd's Rep Plus 41

Carriage by air – Limitation of action – Claimant sustaining personal injury while being carried in hot-air balloon – Whether hot-air balloon “aircraft” – Whether flight involved “carriage of passengers” – Whether carriage was “for reward” – Whether discretion to extend two-year prescription period – Whether carrier estopped from relying on time-bar defence – Carriage by Air Acts (Application of Provisions) Order 1967, article 29 – Council Regulation (EC) No 2027/97.

GROSVENOR CASINOS LTD v NATIONAL BANK OF ABU DHABI

[2008] Lloyd's Rep Plus 42

Banking – Cheques – Fraud – Whether a fraud had been committed when collecting bank informed remitting bank that a cheque was paid in spite of insufficient funds in the account on the particular day – Contract – Whether privity created – Uniform Rules for Collections – Articles 1, 2, 3, 4, 9, 11 and 21, URC 522.

SHELTAM RAIL COMPANY (PROPRIETARY) LTD v MIRAMBO HOLDINGS LTD AND ANOTHER

[2008] Lloyd's Rep Plus 43

Practice - Arbitration claim – Notice of discontinuance – Application to challenge arbitration award on jurisdictional grounds – Applicant serving notice of discontinuance – Whether notice of discontinuance should be set aside – Arbitration Act 1996, sections 67 and 68 – Civil Procedure Rules, Part 38.4.

IPCO (NIGERIA) LTD v NIGERIAN NATIONAL PETROLEUM CORPORATTION (NO 2)

[2008] Lloyd's Rep Plus 44

Arbitration – Enforcement of award – Whether court could overturn earlier decision to adjourn enforcement – Whether court could order partial enforcement – Arbitration Act 1996, sections 101(3) and 103(3).

MASRI v CONSOLIDATED CONTRACTORS INTERNATIONAL CO SAL AND ANOTHER

[2008] Lloyd's Rep Plus 45

Conflict of laws – Claimant obtaining judgment in England – Judgment not honoured –Whether English court had jurisdiction to appoint receiver by way of equitable execution – Whether receivership order had proprietary effect – Whether the English court had personal jurisdiction – Whether a receivership order could be made in relation to future debts – Exercise of discretion in granting of receivership order – Articles 22(5), 31, Council Regulation (EC) 44/2001.

TAYLOR WOODROW CONSTRUCTION v RMD KWIKFORM LTD

[2008] Lloyd's Rep Plus 46

Arbitration – Commencement of arbitration – Limitation period – Whether arbitration clause amounted to agreement as to the date on which arbitration was regarded as being commenced for limitation purposes – Whether notice of arbitration given – Arbitration Act 1996, section 14.

SAGAL (TRADING AS BUNZ UK) v ATELIER BUNZ GMBH

[2008] Lloyd's Rep Plus 47

Agency – Whether agent was “commercial agent” – Whether claimant entitled to compensation for termination of agency agreement – Commercial Agents (Council Directive) Regulations 1993, regulations 2 and 17.

NIGEL FRYER JOINERY SERVICES LTD AND ANOTHER v IAN FIRTH HARDWARE LTD

[2008] Lloyd's Rep Plus 48

Agency – Commercial agent – Whether self-employed sales agent a commercial agent – Whether agreement repudiated – Whether agent entitled to compensation – Commercial Agents (Council Directive) Regulations 1993.

WHITECAP LEISURE LTD v JOHN H RUNDLE LTD

[2008] Lloyd's Rep Plus 49

Sale of goods – Cable tow system – Certificate of completion issued – System failed to operate properly – Whether system defective – Whether buyer had lost right to reject goods – Whether seller acquiesced in rejection – Whether liability excluded by buyer’s failure to comply with notification of defects clause – Principles of construction – Whether seller owed duty of care to supply goods of required quality – Sale of Goods Act 1979, sections 11, 14, 34 and 35.

SERENA NAVIGATION LTD AND ANOTHER v DERA COMMERCIAL ESTABLISHMENT AND ANOTHER (THE “LIMNOS”

[2008] Lloyd's Rep Plus 50

Carriage of goods by sea – Limitation of liability – Part of corn cargo sustaining wet-damage and other physical damage – Remaining cargo acquiring reputation as distressed cargo and suffering diminution in value – Whether carrier’s liability limited by reference to weight of physically damaged goods or by reference to weight of entire cargo – Whether “goods lost or damaged” includes economic loss – Hague-Visby Rules, article IV, rule 5(a).

DEUTSCHE BANK AG AND OTHERS v ASIA PACIFIC BROADBAND WIRELESS COMMUNICATIONS INC AND ANOTHER

[2008] Lloyd's Rep Plus 51

Conflict of laws – Jurisdiction – Claims brought for breach of credit facility containing exclusive jurisdiction clause – Claimant seeking to argue alternative claims for restitution and misrepresentation if credit agreement void – Whether exclusive jurisdiction clause valid if credit agreement void – Construction of exclusive jurisdiction clause – Brussels Regulation 44/2001, article 23.

GATER ASSETS LTD v NAK NAFTOGAZ UKRAINIY (NO 3)

[2008] Lloyd's Rep Plus 52

Arbitration – Interest on award – Whether interest payable in respect of a judgment entered in respect of an arbitration award that did not order payment of post-award interest – Whether interest should be disapplied or rate varied downwards – Judgments Act 1838, section 17(1) – Arbitration Act 1996, sections 49, 66 and 101(3) – CPR 40.8(1)(b) – Administration of Justice Act 1970, section 44A.

STOCZNIA GDYNIA SA v GEARBULK HOLDINGS LTD

[2008] Lloyd's Rep Plus 53

Shipbuilding contracts – Delay – Purchaser terminating contracts for repudiatory breach – Whether purchaser entitled to terminate for accepted repudiation – Whether contracts ousted common law right to terminate for accepted breach – Whether contract excluded builder’s liability for damages – Whether purchaser terminated contracts solely in reliance on contractual termination provisions.

GOLDEN FLEECE MARITIME INC AND ANOTHER v ST SHIPPING AND TRANSPORT INC (THE “ELLI” AND THE “FRIXOS”)

[2008] Lloyd's Rep Plus 54

Charterparty (Time) – Change in international regulations – Oil tankers chartered under Shelltime 4 form – MARPOL changes restricting vessels’ cargo carrying capacity – Whether loss to be borne by owners or charterers.

IIG CAPITAL LLC v VAN DER MERWE AND ANOTHER

[2008] Lloyd's Rep Plus 55

Guarantee – Whether guarantors entitled to rely upon defences open to debtor in respect of demand for payment – Construction of guarantee – Whether guarantors accepting primary or secondary liability – Whether manifest error in demand for payment.

MASRI v CONSOLIDATED CONTRACTORS INTERNATIONAL CO SAL AND ANOTHER

[2008] Lloyd's Rep Plus 56

Practice – Anti-suit injunction – Grounds upon which injunction may be granted – Jurisdiction of English court over EU domiciliary.

R (INTERNATIONAL ASSOCIATION OF INDEPENDENT TANKER OWNERS (INTERTANKO) AND OTHERS) v SECRETARY OF STATE FOR TRANSPORT

[2008] Lloyd's Rep Plus 57

European Union law – Reference for a preliminary ruling – Whether Directive provisions limiting the application of the UNCLOS and MARPOL Conventions invalid – Meaning of “serious negligence” – Whether concept sufficiently clear – Directive 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements, articles 4 and 5 – International Convention for the Prevention of Pollution from Ships 1973, as modified by the Protocol of 1978 (MARPOL) – United Nations Convention on the Law of the Sea 1982.

MANSEL OIL LTD AND ANOTHER v TROON STORAGE TANKERS SA (THE “AILSA CRAIG”)

[2008] Lloyd's Rep Plus 58

Charterparty (time) – Vessel not delivered to charterers by cancelling date – Whether charterers precluded from cancelling charter by reason of absence of nomination of delivery port – Whether charterers obliged to nominate a port of delivery – Futility – Shelltime 4.

ANTIPAROS ENE v SK SHIPPING CO LTD AND OTHERS (THE “ANTIPAROS”)

[2008] Lloyd's Rep Plus 59

Charterparty (Voyage) – Charterers changing nomination of loading port – Owners alleging change of voyage instructions caused them to incur increased bunkering costs – Whether charterers entitled to change nomination – Whether owners entitled to recover increased bunkering costs – Asbatankvoy.

PT BERLIAN LAJU TANKER TBK AND ANOTHER v NUSE SHIPPING LTD (THE “AKTOR”)

[2008] Lloyd's Rep Plus 60

Sale of ship – Norwegian Sale Form – Payment of purchase price – Sellers nominating bank in Singapore for payment of 10 per cent deposit and nominating bank in Greece for payment of balance – Whether entire price payable in Singapore – Whether 10 per cent of price could be paid in Singapore – Whether buyers entitled to rectify MOA to reflect recap email – Whether payment in Greece was condition of contract – Whether sellers validly rescinded contract.

ROMANTIEK TRANSPORT BVBA v VEHICLE AND OPERATOR SERVICES AGENCY

[2008] Lloyd's Rep Plus 61

Carriage by road – Right of licensed operator to carry on cabotage in other member states – Whether licence authorised permanent operations in other member states – Community Regulation 881/92/EEC – Community Regulation 3118/93/EEC – Goods Vehicles (Licensing of Operators) Act 1995 – Goods Vehicles (Licensing of Operators) Regulations 1995 – Goods Vehicle (Enforcement Powers) Regulations 2001.

STEAMSHIP MUTUAL UNDERWRITING ASSOCIATION (BERMUDA) LTD v SULPICIO LINES INC

[2008] Lloyd's Rep Plus 62

Arbitration – Anti-suit injunction – P&I Club rules containing arbitration clause – Action brought against Club in Philippines – Whether arbitration clause binding on member – Whether arbitration clause extending to dispute – Whether permanent anti-suit injunction should be granted – Whether declaratory relief should be granted – Supreme Court Act 1981, section 37 – Civil Procedure Rules, rules 6.20(5) and 62.5.

JP MORGAN CHASE BANK AND OTHERS v SPRINGWELL NAVIGATION CORPORATION

[2008] Lloyd's Rep Plus 63

Banking – Claimant suffering investment losses – Whether defendant bank owed duty of care to give advice – Whether bank guilty of misrepresentation – Effect of restriction of duties in contractual documents – Unfair Contract Terms Act 1977.

ASSOCIATED BRITISH PORTS v FERRYWAYS NV AND ANOTHER

[2008] Lloyd's Rep Plus 64

Contract – Port handling charges – Agreement between port operator and ro-ro ferry operator for handling “Units” at port of Ipswich – Clause providing for minimum annual throughput of “Units” – Meaning of term “Unit” – Whether clause a penalty – Measure of damages recoverable for ferry operator’s repudiatory breach – Third party agreeing with port operator to assume full responsibility for ensuring ferry operator’s performance – Whether guarantee or indemnity – Whether guarantee rendered unenforceable.

MOORE STEPHENS v STONE & ROLLS LTD

[2008] Lloyd's Rep Plus 65

Illegality of contract – Claim by bank against company for fraud committed against bank by controller of company – Subsequent claim by company’s liquidators against its auditors – Whether claim barred by illegal conduct of company’s controller – Ex turpi causa non oritur actio – Whether knowledge of controller imputed to company – Fraud exception in Re Hampshire Land.

TRANSFIELD SHIPPING INC v MERCATOR SHIPPING INC (THE “ACHILLEAS”)

[2008] Lloyd's Rep Plus 66

Charterparty (Time) – Redelivery – Vessel redelivered late – Measure of damages – Whether owners entitled to recover loss of profits under subsequent fixture.

GULF AGRI TRADE FZCO v ASTON AGRO INDUSTRIAL AG

[2008] Lloyd's Rep Plus 67

Sale of goods (cfr) – Buyers serving notice of default – Notice premature – Whether notice constituted repudiatory breach by buyers – GAFTA Form 48.

ETI EURO TELECOM INTERNATIONAL NV v REPUBLIC OF BOLIVIA AND ANOTHER

[2008] Lloyd's Rep Plus 68

Arbitration – Bilateral investment treaty – Interim relief – Application to freeze assets of company pending ICSID arbitration on investment dispute – Whether English court had jurisdiction to grant freezing order – State immunity – Arbitration Act 1996, section 44 – Civil Jurisdiction and Judgments Act 1982, section 25 – State Immunity Act 1978, sections 9 and 13.

SEAGATE SHIPPING LTD v GLENCORE INTERNATIONAL AG (THE “SILVER CONSTELLATION”)

[2008] Lloyd's Rep Plus 69

Charterparty (Time) – RightShip approval scheme – Charters providing that vessel to remain in all respects eligible for trading to ports permitted in charter – Whether owners obliged to provide and maintain vessel with RightShip approval – Whether owners obliged to permit RightShip inspection as required by charterers – New York Produce Exchange form.

ORASCOM TELECOM HOLDING SAE v REPUBLIC OF CHAD AND ANOTHER CITIBANK NA (THIRD PARTY) INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT AND ANOTHER (INTERVENING)

[2008] Lloyd's Rep Plus 70

Arbitration – State immunity – Award obtained against state – Application for third party debt order against bank account – Whether account in use for commercial purposes – State Immunity Act 1978, sections 3 and 13.

COLLIERS INTERNATIONAL PROPERTY CONSULTANTS AND ANOTHER v COLLIERS JORDAN LEE JAFAAR SDN BHD

[2008] Lloyd's Rep Plus 71

Arbitration – Judgment granted in terms of award – Application to set aside award – Whether enforcement order defective – Application to extend time for appeal against award – Arbitration Act 1996, sections 66, 68, 73 and 80 – CPR Part 62.18.

UZINTERIMPEX JSC v STANDARD BANK PLC

[2008] Lloyd's Rep Plus 72

Banking – International trade – Letters of credit – UCP 458 – Advance payment guarantee – Tender of documents – Sale contract – FOB terms – Bank making demand under guarantee following dispute between buyer and seller – Whether guarantee subject to implied term precluding excessive demand – Whether bank guilty of knowing assistance – Whether goods had been converted – Whether duty to mitigate loss applied to conversion – Torts (Interference with Goods) Act 1977.

P v A AND ANOTHER

[2008] Lloyd's Rep Plus 73

Charterparty (Voyage) – Contract of affreightment providing for six voyages with choice of loading port and cargoes – Charterers to give “30 days’ notice with 10 days notice laycan spread” and owners “to nominate vessel latest 10 days prior first day” – Charterers giving laycan dates for fifth voyage – Whether charterers entitled to change dates – Whether charterers in repudiatory breach for insisting on right to change dates.

THE “VOUTAKOS”

[2008] Lloyd's Rep Plus 74

Salvage Remuneration Assessment of award Disparity principle Whether principle that salvage awards in straightforward towage cases should be influenced by commercial rates should be discarded Whether general increase in salvage awards in towage cases required International Salvage Convention 1989, article 13.

CTI GROUP INC v TRANSCLEAR SA (THE “MARY NOUR”)

[2008] Lloyd's Rep Plus 75

Sale of goods fob – Frustration – Cement to be supplied by sellers fob in Far East for ultimate delivery to Mexico – Sellers’ suppliers refusing to supply cement to sellers because of existence of cartel – Whether sale contract frustrated.

GENERAL TRADING COMPANY (HOLDINGS) LTD v RICHMOND CORPORATION LTD

[2008] Lloyd's Rep Plus 76

Guarantee – Defendant undertaking to obtain loan guarantee to enable claimant to obtain loan facility for subsidiary – Whether defendant in breach of agreement – Whether clause permitting defendant to cancel loan notes if defendant failed to obtain a guarantee was a penalty clause.

UBS AG AND ANOTHER v HSH NORDBANK AG

[2008] Lloyd's Rep Plus 77

Conflict of laws – Jurisdiction – Defendant domiciled in an EU member state – Whether exclusive jurisdiction agreement covered the dispute – Council Regulation 44/2001, article 23.

THE “KRYSIA” AND THE “EUROPA”

[2008] Lloyd's Rep Plus 78

Negligence – Supply vessel’s propeller fouled by rope attached to Yokohama fender secured to accommodation barge – Whether barge negligent in allowing rope to be loose in the water – Whether supply vessel negligent in manoeuvring too close to fender’s securing arrangements – Apportionment – Merchant Shipping Act 1995, subsections 187(1) and (2).

EMIRATES AIRLINES DIREKTION FÜR DEUTSCHLAND v SCHENKEL

[2008] Lloyd's Rep Plus 79

Carriage by air – EC Regulation providing for compensation to passengers in event of cancellation of flight – Passenger making single booking in member state for outward and return journey – Outward journey was from member state and return journey from non-member state – Return flight cancelled – Whether passenger entitled to compensation – Whether journey out and back to be regarded as a “flight” – Reference for preliminary ruling – Regulation (EC) No 261/2004, article 3(1)(a).

MEDITERRANEAN SALVAGE & TOWAGE LTD v SEAMAR TRADING & COMMERCE INC (THE “REBORN”)

[2008] Lloyd's Rep Plus 80

Charterparty (Voyage) – Specified load port named in berth charter – Port containing several berths to which vessel could be directed to load – Vessel sustaining damage while berthing – Whether charterparty containing implied term obliging charterers to nominate safe berth.

TRIDENT TURBOPROP (DUBLIN) LTD v FIRST FLIGHT COURIERS LTD

[2008] Lloyd's Rep Plus 81

Lease of aircraft – Lessor giving notice of default alleging failure to pay rent and an attempt to transfer the aircraft to third parties without the lessor’s consent – Whether lessee had real prospect of succeeding in defences or counterclaims based on pre-contractual misrepresentation and defects in the aircraft – Whether claimant entitled to summary judgment – International supply contracts – Misrepresentation Act 1967, section 3 – Unfair Contract Terms Act 1977, section 26(4) – Supply of Goods and Services Act 1982, sections 9 and 11.

ALLIANZ SPA AND OTHERS v WEST TANKERS INC (THE “FRONT COMOR”)

[2008] Lloyd's Rep Plus 82

Jurisdiction Anti-suit injunction Charterparty providing for London arbitration Charterers subrogated insurers bringing action in tort against shipowners in Italy Whether English court precluded from granting anti-suit injunction Council Regulation (EC) No 44/2001.

DALLAH REAL ESTATE AND TOURISM HOLDING CO v THE MINISTRY OF RELIGIOUS AFFAIRS, GOVERNMENT OF PAKISTAN

[2008] Lloyd's Rep Plus 83

Arbitration – Enforcement – New York Convention 1958 – Defendant claiming not to be a party to award – Whether enforcement could be challenged on the basis that the award was not valid under the laws of the country where the award was made – Arbitration Act 1996, sections 101 and 102.

CONGENTRA AG v SIXTEEN THIRTEEN MARINE SA (THE “NICHOLAS M”)

[2008] Lloyd's Rep Plus 84

Practice – Freezing injunction – Shipowners bringing London arbitration proceedings and obtaining attachment order in New York in support of arbitration claim – Charterers counterclaiming that attachment order was wrongfully obtained and obtaining freezing injunction – Whether injunction should be discharged – Arbitration Act 1996, section 44.

CHERNEY v DERIPASKA (NO 2)

[2008] Lloyd's Rep Plus 85

Conflict of laws – Service outside the jurisdiction – Whether English court possessed jurisdiction – Dispute as to whether parties had entered into English law and exclusive jurisdiction agreement – Whether claimant had reasonable prospect of success – Whether claimant had good arguable case on jurisdiction – Forum non conveniens – Possibility that claimant could not pursue proceedings in Russia – CPR Part 20.

ALLIANZ INSURANCE CO EGYPT v AIGAION INSURANCE CO SA

[2008] Lloyd's Rep Plus 86

Reinsurance (marine) – Inception of risk – Deferred premium clause – Whether reinsurance void for uncertainty – Effect of late payment of premium – Marine Insurance Act 1906, section 53(1).

STATOIL ASA v LOUIS DREYFUS ENERGY SERVICES LP (THE “HARRIETTE N”)

[2008] Lloyd's Rep Plus 87

Sale of goods (cif) – Demurrage – Whether contract contained demurrage time bar clause – Whether parties concluded binding contract compromising demurrage claim – Unilateral mistake – Whether equitable jurisdiction to grant rescission where unilateral mistake not forming term of contract – Whether parties subsequently concluded second compromise agreement – Whether demurrage claim presented in time.

SYSKA AND ANOTHER v VIVENDI UNIVERSAL SA AND OTHERS

[2008] Lloyd's Rep Plus 88

Arbitration – Jurisdiction – Respondent becoming insolvent in Poland – Polish law operating to terminate arbitration proceedings – Whether effect of Polish bankruptcy governed by Polish law or English law – European Parliament and Council Regulation 1346/2000/EC on Insolvency Proceedings, articles 4 and 15 – Arbitration Act 1996, section 67.

DEUTSCHE BANK AG AND OTHERS v ASIA PACIFIC BROADBAND WIRELESS COMMUNICATIONS INC AND ANOTHER

[2008] Lloyd's Rep Plus 89

Conflict of laws – Jurisdiction – Claims brought for breach of credit facility containing exclusive jurisdiction clause – Claimant seeking to argue alternative claims for restitution and misrepresentation if credit agreement void – Whether exclusive jurisdiction clause valid if credit agreement void – Construction of exclusive jurisdiction clause – Separability – Brussels Regulation 44/2001, article 23.

THE “KRYSIA” AND “EUROPA” (NO 2)

[2008] Lloyd's Rep Plus 90

Practice – Costs – Claimants’ vessel’s propeller fouled by rope attached to Yokohama fender secured to defendants’ accommodation barge – Court holding defendants liable but that claimants were 30 per cent to blame – Whether order for costs should reflect fact that claimants had been found to have been contributorily negligent – CPR Part 44.3.

COMMUNE DE MESQUER v TOTAL FRANCE SA AND ANOTHER

[2008] Lloyd's Rep Plus 91

European Union law – Waste management – Oil tanker spilling fuel oil cargo into sea causing pollution of French coast – Whether fuel oil “waste” – Whether fuel oil “waste” when spilled into sea and mixed with water and sediment – Whether seller of fuel oil and charterer of vessel can be liable for disposal costs as “producer” or “holder” of product from which the waste came – Directive 75/442/EEC on waste – International Convention on Civil Liability for Oil Pollution Damage 1969 – International Oil Pollution Compensation Fund Convention 1971.

R v V

[2008] Lloyd's Rep Plus 92

Arbitration – Award – Enforcement – Public policy – Consultancy agreement to be performed in Libya – Performance of contract allegedly illegal in Libya – Arbitrators giving award in favour of consultant – Arbitrators rejecting public policy defence – Whether court entitled to inquire into issue of illegality – Whether award should be enforced – Arbitration Act 1996, sections 68(2)(g) and 81(1)(c).

MASRI v CONSOLIDATED CONTRACTORS INTERNATIONAL CO SAL AND ANOTHER

[2008] Lloyd's Rep Plus 93

Practice – Judgment – Enforcement – Non-parties – Judgment creditor applying for orders requiring respondents to attend court and provide information to enable judgment to be enforced against judgment debtor companies – Judgment creditor asserting that respondents were officers of judgment debtors – Respondents resident and domiciled in Greece – Whether court had jurisdiction to make orders against respondents – Whether court should exercise discretion in judgment creditor’s favour notwithstanding failure to make full and frank disclosure on without notice application – CPR 17.2 and 6.30(2) – Council Regulations (EC) Nos 44/2001 and 1206/2001.

TAG WEALTH MANAGEMENT v WEST

[2008] Lloyd's Rep Plus 94

Arbitration – Award dismissing claim on grounds of inordinate and inexcusable delay – Whether arbitrator had been guilty of serious irregularity in making award – Whether arbitrator guilty of error of law – Arbitration Act 1996, sections 41(3), 68 and 69.

ACP CAPITAL LTD v IFR CAPITAL PLC AND ANOTHER

[2008] Lloyd's Rep Plus 95

Jurisdiction – Forum non conveniens – Differing jurisdiction clauses in original agreement and in other subsequent agreements – Whether claimant entitled to stay of first defendant’s counterclaim.

SEA EMERALD SA v PROMINVESTBANK – JOINT STOCKPOINT COMMERCIAL INDUSTRIAL AND INVESTMENT BANK

[2008] Lloyd's Rep Plus 96

Agency – Authority – Shipbuilding contract – Refund guarantee signed by employee of defendant bank – Whether signatory had authority to sign guarantee on behalf of bank – Whether bank ratified guarantee.

HORNSBY v JAMES FISHER RUMIC LTD AND ANOTHER

[2008] Lloyd's Rep Plus 97

Tort – Personal injury – Conflict of laws – Claimant injured in accident in United Arab Emirates – Whether law of England or law of UAE governed the tort – Whether claim was time-barred – Foreign Limitation Periods Act 1984 – Private International Law (Miscellaneous Provisions) Act 1995, sections 11 and 12.

MICHAEL WILSON & PARTNERS LTD v EMMOTT

[2008] Lloyd's Rep Plus 98

Arbitration – Jurisdiction – Whether arbitrators had made an award on jurisdiction – Arbitration Act 1996, section 67.

HLB KIDSONS AND OTHERS v LLOYD’S UNDERWRITERS SUBSCRIBING TO POLICY 621/PKID00101 AND OTHERS

[2008] Lloyd's Rep Plus 99

Insurance (professional indemnity) – Policies requiring assured to give notice in writing as soon as practicable of any circumstances of which it became aware – Whether assured became aware of circumstances – Whether valid notification given to underwriters – Whether clause constituted a condition precedent to underwriters’ liability.

FARENCO SHIPPING CO LTD v DAEBO SHIPPING CO LTD (THE “BREMEN MAX”)

[2008] Lloyd's Rep Plus 100

Charterparty (Time) – Letter of indemnity – Charter containing provision obliging owners to deliver cargo without production of bills of lading against LOI – Cargo discharged against LOI requiring charterer to put up security to prevent arrest or secure release of arrest – Holder of bill of lading subsequently arresting vessel – Owners putting up security to obtain release – Whether charterer remained under obligation to provide security – Whether undertakings in LOI conditional upon delivery to party named in LOI.

THE PETROLEUM OIL AND GAS CORPORATION OF SOUTH AFRICA (PTY) LTD v FR8 SINGAPORE PTE LTD (THE “ETERNITY”)

[2008] Lloyd's Rep Plus 102

Charterparty (Voyage) – Gasoil and Mogas cargoes allegedly damaged by reason of failure to separate vapour phases from common inert gas line – Owners undertaking to operate inert gas system in accordance with IMO procedures – Whether obligation absolute or to use due diligence – Whether failure of crew to prevent segregation of vapour phases constituted act, neglect or default in the management of the vessel – Whether owners’ demurrage claim time-barred by reason of failure to provide pumping logs signed by terminal representative.

ELEKTRIM SA v VIVENDI HOLDINGS 1 CORPORATION LAW DEBENTURE TRUST CORPORATION PLC v VIVENDI HOLDINGS 1 CORPORATION

[2008] Lloyd's Rep Plus 103

Bond issue – “No action” clause – Whether clause precluded action by bondholders against bond issuer and Trustee – Whether anti-suit injunction should be granted.

SHEFFIELD UNITED FOOTBALL CLUB LTD v WEST HAM UNITED FOOTBALL CLUB PLC

[2008] Lloyd's Rep Plus 106

Arbitration – Anti-suit injunction – Application for temporary injunction to prevent appeal to Appeal Tribunal against arbitration award – Whether conditions for temporary relief satisfied – Whether proceedings should be stayed – Supreme Court Act 1981, section 37 – Arbitration Act 1996, sections 9 and 44.

Lloyd's Law Reports Plus