2,051
edits
Changes
From DMC
no edit summary
Counsel for applicant: GJ Nell SC and JA Soars, instructed by James Neill
Counsel for Respondent: A Mottis Morris QC and L JurthfJurth, instructed by Worcester & Co
'''Summary'''
The Supreme Court of South Australia in Jebsens ruled that it was not and the Federal Court of Australia in Norden held that it was. The consequence of each answer was that in Jebsens the maritime arbitral awards made in arbitration proceedings in London were enforceable in Australia, whereas in Norden similar arbitral awards were not enforceable in Australia. The decision in Norden is under appeal.
This case note has been contributed by Peter McQueen, FCIArb, Arbitrator and Mediator : www.petermcqueen.com
'''Facts'''
The case in Norden arose out of a claim for demurrage arising from the carriage of a cargo of coal from Dalrymple Bay, Australia to Chinese ports on the “Ocean Baron” under a voyage charterparty. The arbitration clause called for arbitration in London with disputes to be governed by English law. The award creditor in respect of the two awards, which were made in accordance with the arbitration clause in the charterparty, sought their enforcement in Australia and the Court ruled that they were not enforceable.
'''Judgments'''
In Jebsens the Court ruled that the voyage charterparty was not a “sea carriage document” within the ambit of section 11 of COGSA and further that it was not a “sea carriage document” within the definition contained in the amended Hague Rules. It was reasoned that “COGSA in its current form deals with the rights of persons holding bills of lading or similar instruments. A charterparty is a document of a different genus. A charterparty is not a sea carriage document simply because it is a document containing a contract for the carriage of goods by sea. The charterparty is the relevant document, not the bill of lading. The arbitration was concerned with the charterparty.” (page 298).The Court therefore ruled that both awards were enforceable in Australia pursuant to the International Arbitration Act 1974(IAA).
The Court in Norden noted that the Supreme Court of South Australia in Jebsens had come to a contrary conclusion with which it respectfully disagreed.
'''Comment'''
These two conflicting decisions create uncertainty as to the enforceability in Australia of a foreign maritime award which results from a claim arising under a voyage charterparty relating to an Australian export or import shipment of cargo.
