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THE “TOPAZ” AND “IRAPUA” [2003] EWHC 320 (Admlty)

Collision - Crossing vessels - Apportionment of liability - Collision off east coast of Brazil - Navigation of claimants’ vessel - Alleged faults in navigation - Whether causative - Apportionment of blame - Collision Regulations, 1972, rr. 15, 16, 17

[2003] 2 Lloyd's Rep. 19

CLEGG v ANDERSSON T/A NORDIC MARINE [2003] EWCA Civ. 320

Sale of yacht - Rejection - Breach of condition - Vessel sold with overweight keel - Whether breach of condition not as described or of satisfactory condition - Whether claimant lost right to reject - Quantum - Sale of Goods Act, 1979, ss. 13, 14.

[2003] 2 Lloyd's Rep. 32

CMA CGM S.A. v. CLASSICA SHIPPING CO. LTD. [2003] EWHC 641 (Comm)

Charter-party (Time) - Limitation of liability - Charterers - Vessel and cargo damaged by fire and explosion - Owners claimed against charterers - Whether charterers entitled to limit liability pursuant to Convention on the Limitation of Liability for Maritime Claims, 1976.

[2003] 2 Lloyd's Rep. 50

HIH CASUALTY AND GENERAL INSURANCE LTD. AND OTHERS v. CHASE MANHATTAN BANK AND OTHERS [2003] UKHL 6

Insurance (Financial contingency) - Non-disclosure - Misrepresentation - Duty of utmost good faith - Contracts for and of insurance - Allegations of non-disclosure and misrepresentation - Whether insurers entitled to avoid or rescind contract - Whether insurers entitled to damages for fraudulent and negligent misrepresentation - Whether breach of duty of utmost good faith.

[2003] 2 Lloyd's Rep. 61

THE “JUNTHA RAJPRUECK” [2003] EWCA Civ 378

Carriage by sea - Letter of undertaking - Com- petent Court - Meaning - Cargo damage claims - Letter of undertaking given by P & I Club - Club alleged English Admiralty Court not a competent Court to entertain action in rem -Whether LOU obliged club to instruct solicitors to accept claim form and acknowledge service - Meaning of competent Court.

[2003] 2 Lloyd's Rep. 107

J. I. MACWILLIAM CO. INC v. MEDITERRANEAN SHIPPING CO. S.A. (THE “RAFAELA S”) [2002] EWCA Civ 556

Bill of lading - Straight bill - Limitation of liability - Port of shipment - Carriage of goods from Durban to Felixstowe to Boston - No bill of lading issued for Felixstowe-Boston leg - Cargo damaged - Whether bill a straight bill - Whether port of shipment Felixstowe - Whether Hague-Visby Rules compulsorily applicable - Whether defendants entitled to limit liability under U.S. Carriage of Goods by Sea Act, 1936.

[2003] 2 Lloyd's Rep. 113

ABCI (formerly ARAB BUSINESS CONSORTIUM INTERNATIONAL FINANCE AND INVESTMENT CO.) v. BANQUE FRANCO-TUNISIENNE AND OTHERS [2003] EWCA Civ 205

Contract - Jurisdiction - Dispute under contract to purchase shares - Allegations that settlement agreements null and void being procured under duress - Allegations of fraudulent misrepresentations and conspiracy to defraud - Whether claims within R.S.C., O. 11, r. 1(1) - Whether good arguable case - Whether time bar applicable - Whether leave to serve out of jurisdiction should be granted.

[2003] 2 Lloyd's Rep. 146

SANDEMAN COPRIMAR S.A. v. TRANSITOS Y TRANSPORTES INTEGRALES S.L. AND OTHERS [2003] EWCA Civ 113

Carriage by road - CMR - Successive carriers - Carriage of consignment of tax seals - Guarantee given to Spanish tax authorities - Call on guarantee - Whether guarantee too remote to be recovered from successive carriers - Whether guarantee payment “other charges” under art. 23.4 - Whether successive carriers liable as bailees of the seals - Whether successive carriers could elect whether to rely on art. 23 - CMR art. 23.

[2003] 2 Lloyd's Rep. 172

THE “PEARL” AND “JAHRE VENTURE” [2003] EWHC 838 (Admlty.)

Collision - Vessels at anchor - Apportionment of liability - Collision in Fujairah “B” anchorage - Allegations of fault - Whether claimants’ or defendants’ vessel 100 per cent. liable for collision - Apportionment of liability for collision.

[2003] 2 Lloyd's Rep. 188

TRAFIGURA BEHEER B.V. v. GOLDEN STAVRAETOS MARITIME INC. (THE “SONIA”) [2003] EWCA Civ 664

Charter-party (Voyage) - Limitation of time - Delivery - Construction - Carriage of jet fuel cargo to Lagos at lumpsum freight - Cargo rejected at Lagos by receivers before being discharged - Vessel ordered to wait at Abidjan - Charterers arranging sale of cargo in Mediterranean - Charterers and shipowners agreeing that vessel should proceed to Mediterranean on agreed terms - Charterers instructing vessel to discharge at Agioi Theodori, Greece - Charterers bringing cargo claim more than one year after cargo should have been discharged at Lagos but within one year of discharge at Agioi Theodori - Shipowners applying for summary judgment under CPR Part 24 on basis that claim time barred - Whether cargo delivered under contract of carriage - Whether claim time barred under art. III, r. 6 of the Hague-Visby Rules.

[2003] 2 Lloyd's Rep. 201

ZIEMNIAK v. ETPM DEEP SEA LTD. [2003] EWCA Civ 636

Damages - Personal injury - Breach of statutory duty - Seaman sustaining personal injury during lifeboat test in harbour - Suspension chain failed causing lifeboat to fall into water - Breach by employer of reg. 43(10) of the Merchant Shipping (Life-Saving Appliances) Regulations, 1980 - Whether regulation imposed civil liability on employer if breached.

[2003] 2 Lloyd's Rep. 214

ARKIN v. BORCHARD LINES LTD. AND OTHERS [2003] EWHC 687 (Comm)

Carriage by sea - Breach of Treaty of Rome - Arts. 81 and 82 - Claimants operated liner service - Allegations that defendants occupied and abused dominant position - Whether defendants entitled to rely on block exemption - Whether breaches caused claimants heavy losses - Whether insolvency of claimants a defence to claim - Quantification of damages.

[2003] 2 Lloyd's Rep. 225

NIMA S.A.R.L. v. THE DEVES INSURANCE PUBLIC CO. LTD. (THE “PRESTRIOKA”) [2002] EWCA Civ 1132

Insurance (Marine) - Jurisdiction - Application to set aside - Cargo insured under all risks marine cargo policy issued in Bangkok - Cargo never arrived at its destination - Insurers alleged claimants victim of “phantom ship” fraud and risk never attached by virtue of s. 44 of the Marine Insurance Act, 1906 - Whether claimants had good arguable case - Whether Thailand more appropriate forum - Whether application to set aside proceedings should be granted.

[2003] 2 Lloyd's Rep. 327

SIBOTI K/S v. BP FRANCE S.A. [2003] EWHC 1278 (Comm)

Bill of lading - Exclusive jurisdiction clause - Incorporation - Exclusive English jurisdiction clause in voyage charter - Bills of lading issued in respect of shipment of cargo - Non-payment of freight - Whether exclusive jurisdiction clause incorporated in bill of lading - Whether proceedings should be set aside.

[2003] 2 Lloyd's Rep. 364

EVIALIS S.A. v. S.I.A.T. AND OTHERS [2003] EWHC 863 (Comm)

Sale of goods (c.i.f.) - Insurance - Jurisdiction - Stay of action - Contract for sale of goods - Goods insured under open cover by Italian brokers - Goods found to be damaged on discharge - Claim under insurance - Whether insurance contract provided for Italian jurisdiction - Whether anti-suit injunction should be granted - Whether action should be stayed.

[2003] 2 Lloyd's Rep. 377

INTERNAUT SHIPPING GmbH AND ANOTHER v. FERCOMETAL SARL (THE “ELIKON”) [2003] EWCA Civ 812

Arbitration - Identification of party to arbitration - Arbitration commenced on behalf of “owners” under charter-party - Body of charter-party referred to owners as Sphinx Navigation Ltd. c/o Internaut Shipping GmbH - Charter-party signed by Internaut as “owners” without qualification - Points of claim named Sphinx as “Claimants (Owners)” - Points of defence admitted that Sphinx were owners - Interim awards made in favour of Sphinx - Owners’ solicitors subsequently asserted that owners were Internaut and not Sphinx, and that references to Sphinx in the arbitration were a mere misnomer - Whether Internaut or Sphinx was party to the charter-party - Whether Internaut or Sphinx was party to the arbitration - Whether references to Sphinx in the arbitration were a mere misnomer - Whether arbitration a nullity

[2003] 2 Lloyd's Rep. 430

ALI REZA-DELTA TRANSPORT CO. LTD. v. UNITED ARAB SHIPPING CO. S.A.G [2003] EWCA Civ 684

Damages - Measurement - Destruction of chattels - Port handling equipment destroyed in Saudi Arabia - No evidence that claimants intended to replace equipment - Second-hand replacement equipment only available in Europe - Whether market value of destroyed chattels should reflect costs of transportatation and tropicalization for use in Saudi Arabia.

[2003] 2 Lloyd's Rep. 450

ALI REZA-DELTA TRANSPORT CO. LTD. v. UNITED ARAB SHIPPING CO. SAG (No. 2) [2003] EWCA Civ 811

Practice - Costs - Costs of appeal to Court of Appeal on issue of damages - Indemnity or standard basis - Prior to appeal hearing claimant made offer under CPR 36 to accept U.S.$227,400 plus costs of trial on indemnity basis but waiving any interest uplift on damages and costs - Court of Appeal allowed appeal and awarded claimant damages of U.S.$227,400 plus costs of trial on indemnity basis and interest at 3 per cent. over prime rate - Whether CPR 36.21 applicable - Whether Part 36 offer can include term as to uplift interest - Whether Court of Appeal should exercise its discretion under CPR 44.3 to award costs on indemnity basis.

[2003] 2 Lloyd's Rep. 455

JARL TRÄ AB AND OTHERS v. CONVOYS LTD. [2003] EWHC 1488 (Comm)

Carriage by sea - Lien - Delivery up of goods - Claimants shipped parcels of timber on vessels operated by liner service - Defendant stevedores and wharfingers employed by liner service to handle cargo - Liner service in administration - Defendants exercised lien on goods in respect of moneys owing to them - Whether defendants entitled to exercise lien - Whether claimants entitled to delivery up of goods.

[2003] 2 Lloyd's Rep. 459

WELEX A.G. v. ROSA MARITIME LIMITED (THE “EPSILON ROSA”) [2003] EWCA Civ 938

Bill of lading - Arbitration clause - Incorporation - Shipment of steel plates from Ukraine to Poland - Recap telex evidencing fixture included arbitration clause - Whether recap telex constituted the charter-party - Whether formal charter executed prior to completion of discharge referable to date prior to bill of lading - Whether arbitration clause incorporated in bill of lading. Arbitration - Arbitration clause - Incorporation - Anti-suit injunction - Earlier proceedings held clause incorporated on assumption English law applied by virtue of art. 8(1) of Rome Convention - Whether claimant could rely on Ukraine or Swiss law to establish it did not consent to incorporation by virtue of art. 8(2) of Rome Convention - Whether defendants entitled to anti-suit injunction to restrain proceedings otherwise than by arbitration.

[2003] 2 Lloyd's Rep. 509

THE “BORVIGILANT” AND “ROMINA G” [2003] EWCA Civ 935

Agency - Beneficial clause - Collision between tug and tanker off Kharg Island - Whether tugowner could take advantage of beneficial clause in tug requisition form under traditional agency principles - Whether ratification applied - Whether tugowner entitled to exclude liability if tug unseaworthy.

[2003] 2 Lloyd's Rep. 520

AGRIMEX LTD. v. TRADIGRAIN S.A. AND OTHERS [2003] EWHC 1656 (Comm)

Arbitration - Award - Fees - Application to consider and adjust fees - Dispute over demurrage referred to arbitration - Legal draftsman appointed to attend hearing and draft award - Proportionality of fees charged - Whether fees should be adjusted.

[2003] 2 Lloyd's Rep. 537

LINKLATERS v. HSBC BANK PLC AND ANOTHER [2003] EWHC 1113 (Comm)

Banking - Indemnity/warranty - Contribution - Cheque crossed “a/c payee only” drawn by English customer on its English bank payable to English payee - Cheque stolen - Cheque credited by Spanish bank to Puerto Rican company and proceeds withdrawn - English payee’s claim settled by English and Spanish banks - Whether English bank entitled to be indemnified by Spanish bank in respect of settlement - Contributions Spanish and English banks entitled to recover from each other.

[2003] 2 Lloyd's Rep. 545

SABAH SHIPYARD (PAKISTAN) LTD. v. ISLAMIC REPUBLIC OF PAKISTAN AND ANOTHER [2002] EWCA Civ 1643

Practice - Jurisdiction - Jurisdiction clause - Anti-suit injunction - Dispute under contracts relating to barge mounted electric generation facility at Karachi - Collateral guarantee gave jurisdiction to English Courts - Whether defendants in waiving sovereign immunity consented to English Court having jurisdiction to grant anti-suit injunction - Proper construction of jurisdiction clause - Defendant obtained injunction restraining claimants from commencing proceedings in England - Whether injunction restraining defendants from continuing proceedings in Pakistan should be granted.

[2003] 2 Lloyd's Rep. 571

PETROLEO BRASILEIRO S.A. v. KRITI AKTI SHIPPING CO. S.A. (THE “KRITI AKTI”) [2003] EWHC 1634 (Comm)

Charter-party (Time) - Duration - Vessel chartered for “11 months, 15 days more or less in charterers’ option” - Clause 18 providing that should vessel be upon a voyage “at the expiry of the period of this charter” charterers should have the use of the vessel for completion of the round voyage - Clause 50 providing that any time off-hire shall count “as part of the charter period” and giving charterers option to use time off-hire as extension to “charter period” - Charterers exercising cl. 50 option to use time off-hire as extension to “charter period” - Whether “the period of this charter” in cl. 18 included 11-month period plus 15 days in charterers’ option plus off-hire extension.

[2003] 2 Lloyd's Rep. 584

(1) PEOPLE’S INSURANCE COMPANY OF CHINA, HEBEI BRANCH (2) CHINA NATIONAL FEEDING STUFF IMPORT/EXPORT CORPORATION v. VYSANTHI SHIPPING CO. LTD. (THE “JOANNA V”) [2003] EWHC 1655 (Comm)

Conflict of laws - Bill of lading - Limitation of time - London arbitration clause - Cargo-owners and insurers brought action in Chinese Courts - Shipowners brought London arbitration proceedings - Cargo-owners objected to arbitrator’s jurisdiction - Chinese Courts determined that they had jurisdiction - Arbitrator held that he had jurisdiction and made award on merits in shipowners’ favour - Cargo-owners did not seek to challenge award for jurisdiction - Chinese Court subsequently gave judgment in cargo-owners’ favour - Cargo-owners and insurers sought to extend time for challenging arbitration award - Whether time should be extended - Whether leave should be given to enforce award - Arbitration Act, 1996.

[2003] 2 Lloyd's Rep. 617

GKN WESTLAND HELICOPTERS LIMITED AND ANOTHER v. KOREAN AIR PRESS TECH CONTROLS LIMITED v. KOREAN AIR [2003] EWHC 1120 (Comm)

Practice - Costs - Carriage of goods by air - Warsaw Convention - Destruction of cargo - Limitation of liability - Carrier contended that claims should be limited under Convention and offered to pay compensation subject to limit - Claimants declined offers and brought proceedings for full value of cargo loss - Carrier made payments into Court based on limitation figures - Claimants accepted payments in Court - Whether claimants entitled to automatic costs under CPR Part 36 or whether precluded from recovering costs by art. 22(4) of Convention - Whether payment into Court an award of damages by the Court within meaning of art. 22(4)

[2003] 2 Lloyd's Rep. 629

MAMIDOIL-JETOIL GREEK PETROLEUM CO. S.A. AND ANOTHER v. OKTA CRUDE OIL REFINERY A.D. MOIL-COAL TRADING CO. LTD. v. OKTA CRUDE OIL REFINERY A.D. (NO. 3) [2003] EWCA Civ 617

Practice - Permission to appeal - Stay of execution - Security for costs - Application to set aside grant of permission to appeal on ground that defendant had no real prospect of success on appeal - Whether application should be granted - Whether stay of action pending appeal should be set aside - Whether conditions on continuation of permission to appeal should be imposed - Whether security for costs should be provided by defendants.

[2003] 2 Lloyd's Rep. 645

MAINTOP SHIPPING COMPANY LIMITED v. BULKINDO LINES PTE LIMITED (THE “MARINICKI”) [2003] EWHC 1894 (Admlty.)

Charter-party (Time) - Safe port warranty -Breach Charterers ordered vessel to Jakarta - Vessel sustained serious bottom damage - Whether damage caused by underwater obstruction in dredged channel constituting designated route to Jakarta or whether caused by vessel running over own anchor prior to entry into port of Jakarta - Whether charterers in breach of safe port warranty.

[2003] 2 Lloyd's Rep. 655

PORTOLANA COMPANIA NAVIERA LIMITED v. (1) VITOL S.A., INC. (2) VITOL S.A. OF SWITZERLAND (THE “AFRAPEARL”) [2003] EWHC 1904 (Comm)

Charterparty (Voyage) - Demurrage - Delay - Laytime - Vessel gave notice of readiness to discharge oil cargo at seaberth pipeline - Vessel berthed and commenced discharge of cargo - Vessel required to shift from sea berth to anchorage on two occasions to enable leak in pipeline to be repaired - Whether time spent at anchorage awaiting repair of pipeline counted as laytime and/or time on demurrage - Whether time spent shifting from anchorage to sea berth counted as laytime and/or time on demurrage - Whether delay caused by breakdown of equipment in or about the plant of the consignee of the cargo - Whether owners entitled to additional costs incurred by reason of additional shifting operations.

[2003] 2 Lloyd's Rep. 671

EXXONMOBIL SALES AND SUPPLY CORPORATION v. TEXACO LIMITED (THE “HELENE KNUTSEN”) [2003] EWHC 1964 (Comm)

Sale of goods (c.i.f.) - Express or implied term - Summary judgment - Contract for sale of Ultra Low Sulphur Auto Diesel - Contract provided for independent inspector to determine quality and quantity at load port - Inspector’s certificate to be final and binding save fraud and/or manifest error - Inspector determined that cargo complied with specification - Cargo rejected by buyers for failing to meet specification - Whether contract contained express or implied term that samples tested by inspector would be retained for retesting - Whether sellers entitled to summary judgment.

[2003] 2 Lloyd's Rep. 686

OCEAN MARINE NAVIGATION LIMITED v. KOCH CARBON INC. (THE “DYNAMIC”) [2003] EWHC 1936 (Comm)

Charter-party (Time) - Redelivery - Hire - Vessel arrested by charterers - Whether hire continued to be payable - Whether charterers in repudiatory breach of contract in redelivering vessel - Owners not accepting repudiation - Whether owners bound to accept charterers’ repudiation and sue for damages - Whether owners were entitled to recover damages for repudiatory breach equivalent to the hire for the period of the arrest

[2003] 2 Lloyd's Rep. 693

THE “TASMAN PIONEER”

Admiralty practice - Limitation of liability - Limitation fund - Vessel grounded in Inland Sea of Japan - Damage caused to cargo - Charterers applied for decree limiting its liability to claimants and fixing amount - Whether decree should be granted - Whether defendants entitled to order requiring charterers to pay fixed amount into Court - Whether Court had jurisdiction so to order - Maritime Transport Act, 1994, ss. 84, 85.

[2003] 2 Lloyd's Rep. 713

NORTHERN FOODS PLC v. FOCAL FOODS LTD.

Contract - Breach - Repudiatory breach - Contract for supply of fixed percentages of onions - Breach by claimants of failing to order promised percentages from defendants - Whether breach sufficient to terminate contract - Whether defendants could justify refusal to supply onions by reliance on claimant’s breach - Whether claimant entitled to nominal damages.

[2003] 2 Lloyd's Rep. 728

AIR FOYLE LTD. AND ANOTHER v. CENTER CAPITAL LTD. [2002] EWHC 2535 (Comm)

Conflict of laws - Title to aircraft - Res judicata estoppel - Aircraft purchased by Dutch claimants at Dutch auction and by defendants under Russian contract of sale - Proceedings brought in Russia and Netherlands - Whether decisions of Russian or Dutch Court gave rise to issues of res judicata estoppel - Validity of title to aircraft under Russian or Dutch law.

[2003] 2 Lloyd's Rep. 753

HUYTON S.A. v. DISTRIBUIDORA INTERNACIONAL DE PRODUCTOS AGRICOLAS S.A. DE CV [2003] EWCA Civ 1104

Contract - Joint venture agreement - Sale of Ethiopian whitish sesame seeds - Joint venture cancelled - Sales agreement entered into - Whether representation had induced claimants to enter into S.A. - Whether JVA had been rescinded - Judge found Huyton did not know seeds were stored in Dipasa’s warehouse - Whether Dipasa made any representations - Allegation that claimant knew or suspected that in part seeds were old crops and not 1997/1998 year.

[2003] 2 Lloyd's Rep. 780

SOMATRA LTD. v. SINCLAIR ROCHE & TEMPERLEY [2003] EWCA Civ 1474

Professional negligence - Breach of duty - Settlement - Dispute as to conduct of proceedings - Settlement agreed at two-thirds of claim - Whether claimants suffered no loss because two-third settlement was what case would have settled for.

[2003] 2 Lloyd's Rep. 855

JORDAN GRAND PRIX LTD v. VODAFONE GROUP [2003] EWHC 1956 (Comm)

Contract - Validity - Alleged breach - Sponsor agreement - Claimants claimed defendants in telephone conversation agreed to be the Formula One Grand Prix title sponsor of the claimants for three seasons - Claimants alleged breach - Defendants denied any such agreement - Whether authority to make agreement - Validity of agreement.

[2003] 2 Lloyd's Rep. 874