References: [2003] EWHC 2602 (Comm), [2004] 1 All ER (Comm) 481, [2004] 1 Lloyd’s Rep 38
Links: Bailii
Coram: The Honourable Mr Justice Colman
Ratio: One party sought a declaration that arbitrators should have no jurisdiction to determine claims for commission said to be due to the Respondent chartering brokers.
Held: Because he has in effect become a statutory assignee of the promisee’s right of action against the promisor and because, by reason of the underlying policy of section 1(4), he is confined to the means of enforcement provided by the contract to the promisee, namely arbitration. He is to be treated as standing in the shoes of that promisee for the purpose only of the enforcement of the substantive term. In this case, the scope of the disputes covered by the arbitration agreements was wide enough to embrace a dispute between owners and charterers about payment of the brokers’ commission, and they fell to be resolved by arbitration.
Statutes: Contracts (Rights of Third Parties) Act 1999 1(4), Arbitration Act 1996 67
Jurisdiction: England and Wales
This case cites:
- Cited – Robertson v Wait ((1853) 8 Ex 299)
. . - Cited – Les Affreteurs Reunis SA v Leopold Walford (London) Ltd HL ([1919] AC 801)
With regard to Robertson -v- Wait: ‘My Lords, so far as I am aware, that case has not before engaged the attention of this House, and I think it right to say plainly that I agree with that decision and I agree with the reasoning, shortly as it is . . - Cited – The Jordan Nicholev ([1990] 2 Lloyds Rep 11)
The court was asked as to the position resulting from the assignment of a contract including an arbitration clause: ‘Where the assignment is the assignment of the cause of action, it will, in the absence of some agreement to the contrary include as . . - Cited – The Padre Island ([1984] 2 Lloyds Rep 408)
The 1930 Act creates a statutory assignment of any rights of action in a case where the assured has become bankrupt or been wound up, the party to whom the benefit of a right of action under the liability insurance contract has been transferred may . . - Cited – T W Thomas and Co Ltd v Portsea Steamship Co Ltd PC ([1912] AC 1)
The board discussed the approach to the incorporation of arbitration clauses and jurisdiction clauses from one contract into another such as a bill of lading. . . - Cited – The Mahkutai PC (Times 24-Apr-96, [1996] AC 650, [1996] 3 WLR 1)
(Hong Kong) The question was whether shipowners, who were not parties to the bill of lading contract between the charterers and carriers on the one part, and the cargo-owners, the bill of lading being a charterer’s bill, could enforce against the . . - Cited – Schiffahrtsgesellschaft Detlev von Appen GmbH v Voest Alpine Intertrading GmbH (‘The Jay Bola’) CA ([1997] 2 Lloyds Rep 279)
The insurance company claimant had insured a cargo under a voyage charter made by the defendant as charterer with the claimant as time charterer and disponent owner of the vessel. The charter had an arbitration clause. The cargo was damaged in a . .
(This list may be incomplete)
Last Update: 26 March 2020
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