'Michael S' Evryalos Maritime Ltd v China Pacific Insurance Co Ltd
= No treatment has been given--only citation information is available.
[2001] All ER (D) 325 (Dec)
Court: Comml Ct
Judgment Date: 20/12/2001
Cases considered by this case
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| Treatment | Case Name | Citations | Court | Date | Signal |
| Applied | Ardennes, SS (Cargo Owners) v SS Ardennes (Owners) | [1951] 1 KB 55, [1950] 2 All ER 517, 94 Sol Jo 458, 66 (pt 2) TLR 312, 84 Ll L Rep 340 | KBD | circa 1951 |
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| Applied | Njegos, The | [1936] P 90, 105 LJP 49, 18 Asp MLC 609, 41 Com Cas 149, [1935] All ER Rep 863, 155 LT 109, 52 TLR 216 | P, D and Admlty | circa 1936 |
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| Applied | Thomas & Co Ltd v Portsea Steamship Co Ltd | [1912] AC 1, 12 Asp MLC 23 | HL | circa 1912 |
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| Applied | Leduc & Co v Ward | (1888) 20 QBD 475, 57 LJQB 379, 6 Asp MLC 290, 36 WR 537, [1886-90] All ER Rep 266, 58 LT 908, 4 TLR 313 | CA | circa 1888 |
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= This decision has received positive treatment: affirmed, applied, etc.
= This decision has received neutral or ambivalent treatment: considered, explained, etc.Catchwords & Digest
SHIPPING AND NAVIGATION - BILL OF LADING - INCORPORATION OF TERMS OF CHARTERPARTY - ARBITRATION CLAUSE - GENERAL WORDS OF INCORPORATION - SHIPOWNER ARGUING AGREEMENT WITH SHIPPERS TO INCORPORATE ARBITRATION CLAUSE APPLICABLE TO INDORSEE OF BILL OF LADING - WHETHER ON FACTS BILLS OF LADING EXPRESSLY INCORPORATING ARBITRATION CLAUSE IN CHARTERPARTY - WHETHER AGREEMENT BETWEEN SHIPOWNER AND SHIPPER TO INCORPORATE LONDON ARBITRATION CLAUSE - CARRIAGE OF GOODS BY SEA ACT 1992, S 5(1)(A)The applicants were the owners of the vessel 'Michael S'. The respondents were insurers of the endorsees of the bills of lading and receivers of a cargo of sulphur carried on the Michael S from Abu Dhabi to Nanjing. The voyage was under a trip time charter which contained a London arbitration clause. Damage was alleged to have occurred to the cargo as a result of the unseaworthiness of the vessel. The respondents issued proceedings by way of subrogation against the owners in the Wuhan Maritime Court, China. In the instant proceedings, the owners applied for an anti-suit injunction restraining the insurers from continuing the proceedings in China, contending that the contract of carriage contained an agreement to refer all disputes to London arbitration and an express choice of English law by reason of the incorporation of the arbitration clause in the charterparty. They relied on the form of bills of lading drawn up by the shippers' agents and procured by the owners' agents to be signed by the master. That form contained in small typescript the words 'Code Name 'COGENBILL' Edition 1994'; that edition of the Cogenbill contained words incorporating the law and arbitration clause. On the face of the bills of lading in the instant case, however, appeared wording stating 'All terms conditions and exceptions of governing charter party are deemed incorporated herein', and similar wording appeared on the reverse. The reverse was headed by the words stating that it was be used with charterparties code name 'Congenbill' edition 1978; that edition did not contain express incorporation of the arbitration clause. In the alternative, the owners argued that they were entitled to have the bills of lading rectified, having regard to their negotiations prior to the issuance of the bills with the shippers. They submitted that, if the wording of the bills of lading did not accurately reflect the contract of carriage, or the mutual understanding of the original parties, rectification was in principle a remedy available against the holder, since earlier authorities to the contrary turned on the words of the Bills of Lading Act 1855, and could not apply under s 5(1)(a) of the Carriage of Goods by Sea Act 1992. Section 5(1)(a) of the 1992 Act stated that the contract of carriage 'in relation to a bill of lading or sea waybill, means the contract contained in or evidenced by that bill or waybill'. The owners submitted that the words 'or evidenced by' enabled them to rely on terms agreed with the shipper outside the words of the bill as against the indorsee.
Held - (1) Applying established authority, since the trip time charterparty was governed by English law so also were the bills of lading contracts and accordingly the bills of lading had to be so construed. It was also settled law that general words of incorporation such as those appearing on the face and reverse of the bills of lading in the instant case were incapable of incorporating into the contract of carriage an agreement to arbitrate in the charterparty. That, however, was a matter of construction and, in principle, additional wording could show that the mutual intention of the parties was to incorporate the arbitration clause. No such wording existed in the instant case: the reference to the 1994 edition of the Congenbill was not expressed to incorporate those terms; it was inconsistent with the reference to the 1978 edition and the general words of incorporation in the bills. Accordingly, on its true construction the bills of lading did not incorporate the arbitration clause from the charterparty.
(2) Parliament could not have intended by s 5(1)(a) of the 1992 Act to change the law so as to allow the carrier to rely as against the indorsee on agreements or understandings with the shippers outside the words of the bills. It was distinctly more probable that the words 'or evidenced by' were inserted in the definition of 'the contract of carriage' to take account of those frequent cases where there was a concluded contract of carriage before the time when the bill of lading was issued by the carrier. In those circumstances, with the contract already having been made, the wording of the bill could aptly be described as evidencing that contract as distinct from containing it. It was therefore not open to a carrier to rely as against a holder without notice on any agreement or understanding between him and the shipper. In any event, in the instant case no such agreement had been established by the owners. The application for an anti-suit injunction would therefore be dismissed.
