TMI Blog2004 (7) TMI 680X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the vessel M.V. Wise King applied for release of the vessel and the vessel was released on a guarantee being furnished for the claim of the plaintiff. Such guarantee was furnished in favour of The Registrar, Original Side, High Court. The suit was filed on or about 21st January, 2000. The ship was arrested by an order dated January 24, 2000. The order of release was passed on January 31, 2000. 2. The present application was made by M/s. Wise King Meritime Ltd. and Uniwise Company INC on 9th May, 2001 inter alia praying for reference of the disputes involved in the suit to arbitration in terms of the arbitration clause contained in the charter party which was binding upon the parties by way of an incorporation clause embodied in the bills of lading. This application was kept pending since then after completion of affidavits. The matter thereafter appeared before the Court when the same was brought along with other pending matters at the instance of the Court. 3. The said application was heard by me on the adjourned dates. 4. Mr. Sudipta Sarkar, (with Mr. Tilak Bose) learned counsel appearing on behalf of the petitioner contended that in accordance with the provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch Mr. Mukherjee raised on the issue of bills of lading were not tenable in view of the fact that the plaintiff themselves sued the vessel on the basis of the said bills of lading. On the issue of charter party Mr. Sarkar referred to Clause 6 of the charter party which authorised others to sign. He also referred to paragraph 2 of the plaint wherein the plaintiff themselves contended that the bills of lading were signed on behalf of the master. Mr. Sarkar also referred to paragraph 12 of the plaint wherein the plaintiff themselves referred to the bills of lading for the consignment of sugar weighted about 19700 MT which was the exact figure mentioned in the sugar charter party. According to Mr. Sarkar if the plaintiffs relied on the bills of lading they would have to accept the incorporation clause by which the arbitration clause stipulated in the sugar charter party was made an integral part of the bills of lading. Parties cited the following decisions :- (1) The Princes, 70 LT 388 (2) 1988 Vol-I, Lloyd's Law Report, Page 452 (Navigazione Alta Italia SpA v. Svenska Petroleum AB), (3) [1960]3SCR820 (East West Steamship Company v. S.K. Ramalingam Chettiar) ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were negatived by the Apex Court. According to the Apex Court the intention of the parties to the bills of lading would be the only governing factor and once the party to the bills of lading agreed to have the arbitration clause of the charter party agreement to be red with the bills of lading the said clause is binding upon the parties. Paragraphs 19 and 20 of the said judgment being relevant herein is quoted below :- 19. From the conspectus of the views expressed by courts in England and as in India, it is clear that in considering the question, whether the arbitration clause in a Charter Party Agreement was incorporated by reference in the bill of Lading, the principal question is, what was the intention of the parties to the Bill of Lading? For this purpose the primary document is the Bill of Lading into which the arbitration clause in the Charter party Agreement is to be read in the manner provided in the incorporation clause of the Bill of Lading. Hil ascertaining the intention of the parties, attempt should be made to give meaning to the incorporation clause and to give effect to the same and not to invalidate or frustrate it giving a literal, pedantic and technical read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich it was contended that the clause is inoperative is that the expression Charter Party in Clause 62 of the Charter Party Agreement was not changed to Bill of Lading while incorporating the same in the latter. This contention, we are constrained to observe, cannot be accepted since it goes against the clear intention of the parties as evident from the incorporation clause. (ii) AIR2001SC3381 (Smita Conductors Ltd. v. Euro Alloys Ltd.) : Here the Apex Court defined the words agreement in writing while dealing with the question of reference to arbitration. The Apex Court came to the conclusion that it can be a contract containing an arbitration clause signed by the parties or an arbitration agreement signed by the parties or an arbitral clause in a contract exchanged by letters and/or telegrams or an arbitral agreement contained in exchange of letters of telegrams. If any one of these factors are established the arbitration clause can be invoked. In the instant case the bills of lading contained the incorporation clause of the charter party, the sugar charter party contained the arbitration clause. Hence, the same can be invoked and Mr. Mukherjee's contention that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the prescribed period of limitation of one year. 13. Mr. Mukherjee on this issue cited the Apex Court decision in the case of East and West Steamship Company (supra) as well as two English Court decisions The Aries (supra) and Baghlaf Al Zafer Factory (supra). Mr. Mukherjee also relied on passages from International and Commercial Arbitration to show that the prescribed period of limitation was one year. Paragraph 25 of the judgment in the case of East and West (supra) held that the Hague Rules had an international character and once the liability is extinguished after one year there is no space for any acknowledgement of liability thereafter meaning thereby the period of limitation of one year cannot be extended by any other means including what is provided in the Indian Limitation Act. 14. In the case The Aries (supra) the English Court considering the Hague Rules on the subject came to a finding that the time bar stipulated in the rules is a time bar of a special kind that is one which extinguishes the claim and not one like limitation law which bars the remedy while leaving the claim itself in existence. 15. In. case of Baghalf (supra) the suit filed by the plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
