RS Shipping Bulletin - March 2011

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1 ARBITRATION . . . 3

1 . 1 THE FAILURE OF THE MAJORITY OF A TRIBUNAL TO SPECIFICALLY ADDRESS THE CONCERNS OF THE DISSENTING MEMBER WAS NOT A SERIOUS IRREGULARITY UNDER S.68 ARBITRATION ACT 1996 . . . . 3

2 CONTRACT . . . 4

2 . 1 COURT OF APPEAL CONSIDERS WHETHER A PARTY’ S INTENTION TO PERFORM IS RELEVANT TO THE ASSESSMENT OF LOSS . . . 4

2 . 2 COURT OF APPEAL FINDS THAT A CONTRACT WAS MADE WHEN A SIGNED QUOTATION WAS ACCEPTED, AND THAT THE PROVISION FOR A FURTHER FORMAL CONTRACT TO BE SIGNED DID NOT PREVENT THE CONCLUSION OF A CONTRACT AT THAT STAGE . . . 4

3 COSTS . . . 6

3 . 1 COURT OF APPEAL UPHOLDS A DECISION NOT TO MAKE AN ORDER AS TO COSTS DESPITE THE CLAIMANT’ S FAILURE TO OBTAIN A JUDGMENT MORE ADVANTAGEOUS THAN THE DEFENDANT’S PART 36 OFFER . . . 6

4 EU . . . 7

4 . 1 BIMCO ISSUES SPECIAL CIRCULAR ON EU ADVANCE CARGO DECLARATION CLAUSES . . . . 7

5 INSURANCE . . . 8

5 . 1 THE INABILITY OF A CARGO TO WITHSTAND THE ORDINARY PERILS OF THE SEA DOES NOT AUTOMATICALLY AMOUNT TO “INHERENT VICE” UNDER SECTION 55(2)(C) MARINE INSURANCE ACT 1906 . . . 8

5 . 2 COMMERCIAL COURT CONSIDERS A SHIPOWNER’S ENTITLEMENT TO RECOVER UNDER WAR RISKS INSURANCE FOLLOWING THE ARREST OF A VESSEL . . . 8

6 JURISDICTION . . . 10

6 . 1 HIGH COURT GRANTS AN INJUNCTION RESTRAINING A PARTY FROM PURSUING FOREIGN ARBITRATION PROCEEDINGS WHERE THE COURT HAD PREVIOUSLY HELD THAT NO ARBITRATION AGREEMENT EXISTED BETWEEN THE PARTIES . . . 10

6 . 2 HIGH COURT GRANTS SUMMARY JUDGMENT WHERE ENFORCEMENT OF THAT JUDGMENT WOULD BE ILLEGAL IN A FOREIGN JURISDICTION . . . 11

6 . 3 HIGH COURT HOLDS THAT A DISPUTE SHOULD BE ARBITRATED IN LONDON NOTWITHSTANDING THE RECOGNITION IN ENGLAND OF THE SWISS BANKRUPTCY OF ONE OF THE PARTIES . . . 11

7 PRACTICE AND PROCEDURE . . . 13

7 . 1 COURT OF APPEAL SETS ASIDE ORDERS EXTENDING THE TIME FOR SERVICE OF THE CLAIM FORM UNTIL AFTER THE EXPIRY OF THE LIMITATION PERIOD . . . 13

8 SALE OF GOODS . . . 14

8 . 1 COMMERCIAL COURT FINDS THAT A TRADER WAS ENTITLED TO INTERVENE IN A SALE OF GOODS CONTRACT AS AN UNDISCLOSED PRINCIPAL . . . 14

9 SHIPPING . . .15

9 . 1 HIGH COURT CONSIDERS AN ARBITRATION APPEAL DEALING WITH ISSUES OF DAMAGES AND SECURITY ARISING OUT THE UNAVAILABILITY OF CARGO DUE TO POLITICAL UNREST AT THE LOADPORT . . . 15

9 . 2 A PARTY IS FOUND NOT TO BE IN BREACH OF CONTRACT WHEN OVERHAULING A VESSEL’S ENGINES IN ACCORDANCE WITH COMMON INDUSTRY PRACTICE RATHER THAN IN ACCORDANCE WITH THE MANUFACTURER’S SERVICE MANUAL . . . 16

9 . 3 HIGH COURT ALLOWS THE VEIL OF INCORPORATION TO BE PIERCED WHERE CHARTERPARTIES HAD BEEN ENTERED INTO AS PART OF A SCHEME TO DIVERT CORPORATE OPPORTUNITIES . . . 17

9 . 4 HIGH COURT CONSIDERS THE CORRECT INTERPRETATION OF A 30 DAY TIME LIMIT FOR COMMENCING ARBITRATION IN A SHIPBUILDING CONTRACT . . . 17

9 . 5 HIGH COURT CONSIDERS THE MEANING OF THE PHRASE “WITHIN 12 MONTHS OF FINAL DISCHARGE OR TERMINATION OF THIS CHARTERPARTY” IN A MODIFIED CENTROCON ARBITRATION CLAUSE . . . 18

Please see full newsletter below for more information.

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