RS Shipping Bulletin - January 13, 2011

by Reed Smith
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Covered In This Issue

1 ARBITRATION . . .3

1 . 1 HIGH COURT CONSIDERS THE STANDARD OF PROOF REQUIRED IN AN APPLICATION TO APPOINT AN ARBITRATOR UNDER SECTION 18 ARBITRATION ACT 1996 . . .3

1 . 2 BY ENDORSING A COA AS GUARANTOR , A PARTY AGREES TO THE ARBITRATION OF DISPUTES ARISING OUT OF THE GUARANTEE IN ACCORDANCE WITH THE ARBITRATION AGREEMENT IN THE COA. . .4

1 . 3 SECTION 69 ARBITRATION ACT 1996 DOES NOT PERMIT THE COURT TO ENTERTAIN AN APPEAL ON A QUESTION OF FACT ON THE BASIS THAT THE PARTIES HAVE AGREED TO SUCH AN APPEAL . . .4

1 . 4 SINGLE NOTICE OF ARBITRATION GIVEN UNDER TEN BILLS OF LADING HELD TO COMMENCE TEN SEPARATE ARBITRATIONS RATHER THAN A SINGLE CONSOLIDATED ARBITRATION . . .5

1 . 5 SUPREME COURT REFUSES ENFORCEMENT OF ICC AWARD ON THE GROUNDS OF A PARTY NOT BEING BOUND BY THE ARBITRATION AGREEMENT, DESPITE THE TRIBUNAL’S PREVIOUS FINDINGS TO THE CONTRARY. . . .6

2 CONTRACT . . .8

2 . 1 HIGH COURT CONSIDERS WHETHER A CONCLUDED SETTLEMENT AGREEMENT CAN BE RESCINDED FOR NON-DISCLOSURE, AND WHETHER IT SHOULD DECLINE TO ENFORCE A VALID AND BINDING SETTLEMENT DUE TO A FURTHER SUBSEQUENT SETTLEMENT BETWEEN THE PARTIES . . .8

2 . 2 THE PHRASE “TERMS AND CONDITIONS AVAILABLE UPON REQUEST” COULD INCORPORATE TERMS OF TRADING INTO A CONTRACT. . .8

3 COSTS. . .10

3 . 1 WHEN ASSESSING A SOLICITOR’S BILL OF COSTS ON THE APPLICATION OF A THIRD PARTY LIABLE FOR THOSE COSTS, THE COURT MUST ASSESS THE BILL AS IF THE CLIENT ITSELF HAD REQUIRED THE ASSESSMENT . . .10

3 . 2 THERE IS NO PRESUMPTION THAT THE COSTS OF PRELIMINARY ISSUES WILL BE ASSESSED IMMEDIATELY FOLLOWING A HEARING OF THOSE ISSUES . . .11

3 . 3 TRIBUNAL CONSIDERS APPROPRIATE COSTS ORDER WHERE BOTH CLAIMANT AND DEFENDANT HAVE SUCCEEDED ON DIFFERENT ISSUES . . .11

4 INSURANCE . . .12

4 . 1 THE FINANCIAL RESTRICTIONS (IRAN) ORDER 200 9 AND A LICENCE MADE UNDER IT DID NOT RENDER ILLEGAL THE PROVISION OF COVER BY A P&I CLUB TO AN IRANIAN SHIPOWNER, NOR HAD THE DECEMBER 2010 REED SMITH 2 RS SHIPPING BULLETIN INSURANCE CONTRACT BEEN DISCHARGED BY REASON OF FRUSTRATION . . .12

5 JURISDICTION . . .14

5 . 1 THE COMMERCIAL COURT CONSIDERS THE REQUIREMENTS FOR CONTINUATION OF AN ANTI-SUIT INJUNCTION . . .14

5 . 2 A COURT IS NOT DEEMED TO BE SEISED OF PROCEEDINGS UNDER THE JUDGMENTS REGULATION IF THE COURT FEE HAS NOT BEEN PAID . . .15

6 PRACTICE AND PROCEDURE . . .16

6 . 1 A SETTLEMENT OFFER EXPRESSED TO BE OPEN FOR ACCEPTANCE FOR A LIMITED PERIOD OF TIME I S N O T CAPABLE OF BEING A PART 36 OFFER . . .16

6 . 2 HIGH COURT CONSIDERS PROCEDURE FOR SERVICE OF A CLAIM FORM ON MEMBERS OF A PARTNERSHIP . . .16

6 . 3 HIGH COURT CONSIDERS WHETHER AMENDMENTS CAN BE MADE TO A STATEMENT OF CASE AFTER THE RELEVANT LIMITATION PERIOD HAS EXPIRED . . .17

6 . 4 COMMERCIAL COURT SUMMARISES KEY PRINCIPLES GOVERNING APPLICATIONS FOR SUMMARY JUDGMENT BASED ON DISPUTED ISSUES OF FACT . . .18

6 . 5 HIGH COURT CONSIDERS THE CIRCUMSTANCES IN WHICH IT CAN EXTEND TIME FOR PAYMENT BY A DEFENDANT WHERE IT HAS ADMITTED THE CLAIM . . .19

7 SHIPPING . . .20

7 . 1 COMMERCIAL COURT CONSIDERS WHETHER A DEMURRAGE CLAIM WAS BARRED BY THE SETTLEMENT OF A PREVIOUS CLAIM, AND FURTHER WHETHER THE SECOND CLAIM WAS IN ANY EVENT TIME BARRED. . .20

7 . 2 TRIBUNAL CONSIDERS ISSUES OF CAUSATION IN THE CONTEXT OF OWNERS’ LIABILITY FOR DELAY ARISING OUT OF DAMAGE TO CARGO. . .21

7 . 3 BIMCO LAUNCHES NEW STANDARD CLAUSES ADDRESSING THE IMPENDING EU RULES ON ADVANCE CARGO DECLARATION . . .22

7 . 4 DOES SECTION 2(4) COGSA 1992 CREATE A SEPARATE CAUSE OF ACTION FOR PERSONS WITH AN INTEREST IN THE GOODS WHO ARE NOT HOLDERS OF THE BILL OF LADING? . . .22

Please see full Alert below for further information.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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