Arbitration and e-mails: Bernuth Lines v. High Seas Shipping
| Autor | England and Wales High Court (Commercial Court) |
| Páginas | 153-168 |
Arbitration and e-mails: Bernuth Lines v. High Seas Shipping
England and Wales High Court (Commercial Court)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
[2005] EWHC 3020 (Comm)
B e f o r e :
MR JUSTICE CHRISTOPHER CLARKE
____________________
Between:
BERNUTH LINES LIMITED Applicant
- and -
HIGH SEAS SHIPPING LIMITED Respondent
____________________
Mr David Lewis (instructed by Jackson Parton) for the Applicant
Mr Ravi Aswani (instructed by Swinnerton Moore) for the Respondent
Hearing dates: 16th December 2005
_____
MR JUSTICE CHRISTOPHER CLARKE:
1. I have before me an application to set aside the Final Award of an LMAA Arbitrator dated 26th
July 2005. The basis of the application is that the arbitration was purportedly commenced by e-
mail but was not effectively served.
2. The Applicant – Bernuth Lines Ltd – was the charterer of the "Eastern Navigator". Bernuth
Lines Ltd is described in the charter, concluded on 18th August 2004 on an amended NYPE
form, as being of Grand Cayman, in the Cayman Islands. Their agents are Bernuth Agencies
Ltd.
3. The "Eastern Navigator" was owned by High Seas Shipping Ltd ("High Seas") of the Marshall
Islands. Their brokers, whose stamp appears on the charterparty, were Jan Gisholt Shipping Inc.
("Jan Gisholt"). They also had as general agents Altomar Maritime Inc ("Altomar").
4. The charter was for a period of "one time charter trip to Nicaragua via good/safe ports.
Duration 6 days without guarantee". The vessel was to be delivered, as in the event she was, at
Revista Latinoamericana de Mediación y Arbitraje
154
the arrival pilot station at Miami. Clause 45 of the charterparty contained a London arbitration
clause which provided as follows:
"All disputes arising out of this contract shall be arbitrated at London and, unless the parties
agree forthwith on a single Arbitrator be referred to the final arbitrament of two Arbitrators
carrying on business in London who shall be members of the Baltic Mercantile & Shipping
Exchange and engaged in Shipping, one to be appointed by each of the parties, with power to
such Arbitrators to appoint an Umpire….
For disputes where the total amount claimed by either party does not exceed US $ 50,000 the
arbitration shall be conducted in accordance with the Small Claims Procedure of the London
Maritime Arbitrators Association".
5. The vessel departed Miami on 24th August 2004. She was bound for Nicaragua. The intention
was that she should go to Rama, a riverine port on the River Escondido, access to which is by
the Bluefields lagoon starting at the port of El Bluff. On 27th August the Master sent a message
to the effect that he would not be able to enter El Bluff because the vessel's departure draught
was 4.2 metres and the maximum permissible draft at El Bluff was 3.30 metres. On 29th August
the vessel arrived at El Bluff. According to the (disputed) evidence of Captain Monocandilos,
the President of Bernuth Lines, the river pilot advised the Master that at high water the vessel
could proceed safely because at that time the depth would be 3.8 metres compared to the
vessel's then draught of 3.6 metres. But at high water the Master declined to proceed because he
insisted on a clearance greater than 0.28 metres. He is said to have wanted a clearance of at least
0.30 metres. As a result the vessel was sent to San Andres the nearest port where she discharged
her entire cargo into another of Bernuth Lines vessels.
6. On 1st September 2004 High Seas issued a revised invoice in the sum of $ 34,100 for hire (less
commission) and bunkers. The invoice was addressed to Bernuth Lines at the postal address in
Miami of Bernuth Agencies. On 7th September 2004 Bernuth Agencies sent a fax to Jan Gisholt
which enclosed claims invoices of Bernuth Agencies, as agents for Bernuth Lines, totalling $
93,384.77, producing, when set off against a claim understood by Bernuth Agencies to be for $
29,695.03 a balance of $ 63,689.74. On 13th and 16th September 2004 High Seas, through
Altomar, forwarded their second hire invoice to cptdavis@xxx, which Captain Davis of Bernuth
Agencies forwarded to c.polo@xxx Mr Polo was also a representative of Bernuth Agencies.
7. On March 22nd 2005 Lawrence J. Roberts & Associates P.A., a Law Office of Coral Gables,
Florida wrote (they said "again") to Mr Polo at Bernuth Agencies in relation to the unpaid
charter hire. The letter demanded that Bernuth Lines post security for not less than $50,000 "in
order to satisfy any London arbitration award in favour of High Seas". The letter went on to say
that "In the event that Bernuth fails to respond to this demand for security by March 25 2005,
our client is expected to authorise us to pursue litigation against Bernuth Lines, Ltd, in order to
obtain the necessary security".
8. On 5th May 2005 High Seas' London lawyers, Swinnerton Moore, sent an e-mail to info@xxx.
This e-mail invited Charterers to settle the amount of $ 34,100 said to be due as hire for the
period 30th August to 2nd September 2004 so as to avoid the commencement of arbitration
proceedings. It went on to say that once such proceedings were commenced the owners would
seek to recover the outstanding hire, compound interest, and costs pursuant to the LMAA Small
Claims Procedures, and gave notice requiring agreement to the appointment of a sole arbitrator.
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