Allianz Versicherungsaktiengesellschaft v Fortuna Co Inc, The Baltic Universal
= No treatment has been given--only citation information is available.
[1999] 2 All ER 625, [1999] 1 WLR 2117, [1999] 1 Lloyd's Rep 497, [1998] All ER (D) 505
Court: QBD
Judgment Date: 27/10/1998
Cases considered by this case
Annotations: All CasesCourt: ALL COURTS
Sort by: Judgment Date (Latest First)
| Treatment | Case Name | Citations | Court | Date | Signal |
| Not Followed | Vosnoc Ltd v Transglobal Projects Ltd | [1998] 2 All ER 990, [1998] 1 WLR 101, [1998] 1 Lloyd's Rep 711, [1997] 34 LS Gaz R 28, 141 Sol Jo LB 215 | QBD | 23/07/199 7 |
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| Applied | Nea Agrex SA v Baltic Shipping Co Ltd and Intershipping Charter Co, The Agios Lazaros | [1976] QB 933, [1976] 2 All ER 842, [1976] 2 WLR 925, [1976] 2 Lloyd's Rep 47, 120 Sol Jo 351 | CA | circa 1976 |
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= This decision has been subsequently reversed, disapproved or overruled.Catchwords & Digest
ARBITRATION - APPOINTMENT AND COMPOSITION OF THE TRIBUNAL - LETTER STATING THAT CLAIMANT HAD APPOINTED ARBITRATOR - WHETHER LETTER EFFECTIVE TO COMMENCE ARBITRATION - WHETHER NECESSARY FOR CLAIMANT TO EXPRESSLY CALL UPON RESPONDENT TO APPOINT ARBITRATOR IN ORDER TO COMMENCE ARBITRATION - HAGUE RULES, ART III, R 6.A dispute arose out of the carriage of a cargo of fruit in a vessel owned by the respondents from Seattle and Port Canaveral to Rotterdam. The first applicants were the insurers of the cargo, the second applicants were the holders of the bills of lading and the third applicants were the forwarding agents. The cargo was carried under three bills of lading in similar, but not identical form. The bills of lading were on the Congenbill form, 1978 edition and incorporated an agreement to arbitrate which provided for a sole arbitrator or, in default, for a three-man tribunal. Each of the bills of lading contained a General Paramount Clause which incorporated the Hague or Hague-Visby Rules as appropriate. It was therefore common ground that any claim for damage to cargo would be subject to the 12-month time bar as contained in art III, r 6 of both the Hague and Hague-Visby Rules. The vessel completed discharge in Rotterdam on 10 January 1996. The applicants claimed that, on arrival at Rotterdam, the fruit was found to have suffered damage in the form of crushing, caused by excessive movement during the course of the voyage, which, in turn, was alleged to have been the result of poor stowage. On 9 January 1997 the applicants' Dutch lawyers contacted solicitors in London, W&M, asking them to take urgent steps to commence proceedings in view of the imminent expiry of the time bar. Later the same day, W&M sent a fax to the vessel's P&I club, which stated 'We hereby notify you that in view of the expiration of the statutory time bar, we have appointed Mr. Michael Baskerville ... as arbitrator on behalf of our clients ... in connection with all disputes arising under the three bills of lading'. On 24 January the club notified W&M of the appointment of the respondents' arbitrator and thereafter the arbitration proceeded at a leisurely pace for several months. However, on 14 November the respondents notified the applicants that, in light of the decision in Vosnoc Ltd v Transglobal Projects Ltd [1998] 2 All ER 990, the letter of 9 January was ineffective to commence arbitration proceedings so as to satisfy the requirements of art III, r 6, since it did not specifically call on the respondents to take steps by naming their arbitrator, with the result that the claim had become time barred on 10 January. The applicants sought a declaration that the arbitration was commenced prior to the expiry of the one-year time limit.Held The declaration would be granted.
Nea Agrex SA v Baltic Shipping Co Ltd [1976] 2 All ER 842 was binding authority for the proposition that a notice in writing which, read in its context, made it clear by whatever language that the sender was invoking the arbitration agreement and was requiring the recipient to take steps in response to enable the tribunal to be constituted was sufficient to satisfy the requirements of art III, r 6. Accordingly, in a case such as the instant case it was not necessary for the claimant to expressly call upon the respondent to appoint his arbitrator in order to commence arbitration. In the instant case, the letter of 9 January was sent on the day before the one-year time limit for commencing proceedings expired, and it expressly referred to the expiry of time. Although the letter did not contain an express notice to the respondents requiring them to agree on the appointment of a sole arbitrator or even to appoint their own arbitrator, having regard to its terms and the context in which it was sent, the applicants made it clear that they were invoking the arbitration agreements and did by implication call on the respondents to take steps in response in order to constitute the tribunal. It followed that the letter was sufficient to commence arbitration and that consequently their claim was not time-barred.
