DAMPSKIBSSELSKABET NORDEN A/S V BEACH BUILDING & CIVIL GROUP PTY LTD

[2012] FCA 696, Federal Court of Australia, New South Wales District Registry, Foster J, 29 June 2012

Arbitration - International arbitration - Voyage charterparty containing arbitration clause - Voyage charterparty a "sea carriage document" within the meaning of the Carriage of Goods by Sea Act 1991 (Cth) - Voyage charterparty of no effect to the extent purporting to preclude or limit the jurisdiction of Australian courts - Foreign arbitration clause having no effect - Arbitration Act 1996 sections 30, 48, 67 and 73(2).

This was the application of the claimant (D) to recognise and enforce an arbitration award in Australia. The contract at issue was a charterparty on AmWelsh 93 terms with the claimant as disponent owner, for the carriage of coal from Australia to China and containing a clause stipulating English law and London arbitration under LMAA rules. By a first, declaratory, award the charterparty had been rectified to show the corporate name of the defendant (B) instead of the original "Beach Building and Construction Group". By a second, final, award D had been awarded certain sums in respect of demurrage with compound interest. B resisted enforcement on the ground that the arbitrator lacked jurisdiction, first, because B was not named as a contracting party on the face of the charterparty and could not give himself jurisdiction by rectifying the charterparty; and, second, that the arbitration clause was invalid by reason of section 11 of the Australian Carriage of Goods by Sea Act 1991 (Cth) (COGSA 1991), ie because a charterparty was a "sea carriage document" within the meaning of that section.