clr/1983/1983_1_723.pdf

(1983)encourage the plaintiffs to proceed according to the terms of the contractfor arbitration,but onthecontrarythey left the plaintiffs in some way with no choise but to institute legal proceedings, andthus they did notactin themannerandwillingness required, this Court,intheexercise of its discretionary power, willdismiss 5 the application. Application dismissed. Cases referred to: The Annefield [1971] 1 All E.R. 394; Skaliottou v. Pelekanos

(1976)1 C.L.R. 251; 10 Bienvenido Steamship Co. Ltd. v. Georghiou, 18 C.L.R. 215 at p. 219; Heyman and Another v. Darwins Ltd. [1942] 1 All E.R. 337 at p. 355. Application. Application by defendants under s.8 of the Arbitration Law, Cap. 4 for an order of the Court staying the proceedings of an admiralty action brought against them for damages for the loss of 755 boxes of sugar which the vessel "Annita" was to carry from France to Mauritania. C. Hadjioannou, for respondent-plaintiff. L. Papaphilippou, for applicant-defendant. Cur. adv. vult. HADJIANASTASSIOP J. read the following judgment. The defendants are the owners and/or possessors and/or charterers 25 of the vessel "ANNITA". The defendants by an application which they filed immediately after their first appearance, pray by virtue of section 8 of theArbitration Law, Cap. 4 for an order of the Court staying the proceedings of the action which the plaintiffs brought against them, for damages C£3,623.200 for 30 the loss of 755 boxes of sugar which thevessel "ANNITA" was tocarry from Marseilles in Franceto NouakchottinMauritania. The application is based on term 30 of the charter agreement which provides as follows: "Any disputethat may arise under this charter to be settled 35 by arbitration, each party appointing an Arbitrator, and should thev be unable to agree the decision of an umpire 724 15 20 1 C.L.R. 5 La Sodete D' Assurances v. Alkostar Shipping Hadjianastassiou J. selected by them to be final. TheArbitrators and umpire are all to be commercial men and resident in London and the arbitration to take place there. This submission may be made a rule of the High Court of Justice in England by either party." According to term 29 of the Bill of Lading "All terms and conditions of charter party dated 29th September 1977 are deemed to be incorporated herein including the arbitration clause." 10 15 The plaintiffs opposed the said application and the reasons of the opposition, as they have been ascertained by the addresses before the Court, can be summarized as follows:

(1)That the subject matter does not fall within the provisions of the section providing for reference to arbitration.

(2)The defendants were not ready and willing to do everything necessary to refer the case to arbitration. The existence and the enforcement of the arbitration term seems to be accepted by both parties, and its valid embodiment 20 in the Bill of Lading has not been disputed. (See Scrutton on Charter Parties 18 Ed. p. 66 Ar. 36 and The Annefield [1971] 1 All E.R. p. 394). Therefore the question on which the Court is asked to decide is limited as to whether the pressupositions for the stay of the 25 proceedings of the main action do warrant the reference of the casetoarbitration, byvirtue of theterms ofarbitration. Section 8 of the Arbitration Law which regulates thepowers of the Court for the stay of proceedings reads as follows: 30 35 "If any party to an arbitration agreement or any person claiming through or under him commences any legal proceedings in any Court against any other party to the arbitration agreement or any person claiming through or under him, in respect of any matter agreed to be referred, any party to such legal proceedings may at any time after appearance, and before delivering any pleadings or taking any other steps in the proceedings apply to that Court, if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the arbitration 725 HadjianastassiouJ. LaSocieteD'Assurancesv.AlkostarShipping

(1983)agreement and that the applicant was at the time when the proceedings were commenced, and still remains ready and willing to do all things necessary to the proper conduct of thearbitration,maymakeanorderstayingtheproceedings." This question has been dealt before by the Court in previous 5 cases and in the case of Scaliotou v. Christoforos Pelecanos

(1976)1 C.L.R. 251 having the opportunity to analyse in detail the provisions of thesaid section I stated the following: "We think our Arbitration Law, Cap.4, s.8 makes the power of aJudge to stay an action under the arbitration 10 clause a matter of discretion. Even though the dispute is clearly within the arbitration clause theJudge may still refuse to stay the action if on the whole that appears to be the better course. The Court must however be satisfied on good grounds if 15 it oughtnot to staytoshowsomesufficient reasonswhythe matter should not be referred." The same position was adopted by the Court in the case of Bienvenido Steamship Co.Ltd. v. Georghios Chr.Georghiou and Another, C.L.R. XVIII at p. 215 where at p. 219 the following 20 were noted: "It is well established by English authorities dealing with the corresponding provisions of the English Arbitration Act 1889s.4 that when a Court isasked to stay legalproceedings in order that a dispute may be referred to ar- 25 bitration in accordance with an agreement between the parties the power of the Court to stay the proceedings is discretionary." Itmust benoted that theboundary ofthediscretionary power of theCourt asto whether torefer ornot acasetoarbitration is 39 very wide as Lord Wright noted in the case of Heyman and Another v. Darwins Ltd. [1942] 1All E.R. 337 at p. 355, "The Arbitration Act 1889 s. 4 makes the power of the Court to stay an action under the arbitration clause a matter of discretion an no ex debito justitiae. Though the dispute is clearly within the arbitration 726 35 1 C.L.R. La Societe D' Assurances v.Alkostar Shipping Hadjianastassiou J. clause the Court 'may' still refuse to stay it, on the whole, that appears to be the better course." Coming back to the reasons of the defendants' opposition which they have already been mentioned above, we have to 5 discuss the following:

(1)Whether the subject matter falls within the provisions of the clause for arbitration. The provisions of section 30of the charter agreement, which regulates the matter are very wide and concern "any dispute that may arise under this charter ..."In the case of Heyman 10 andanotherv. DarwinsLtd.(supra)theCourtindecidingwhether the difference falls within the term of arbitration, in that case, said the following at p. 343: 15 20 "If however, the parties are of one in asserting that they entered into a binding contract, but a difference has arisen between them astowhether therehasbeena breach byone sideortheother or astowhethercircumstances havearisen which have discharged one or both parties from further performance, such differences should be regarded as differences which have arisen 'in respect of or 'with regard to' or under the contract and an arbitration clause whichuses theirs or similar expression, should be construed accordingly." With those principles in mind there is no doubt that the appellant claims for damages for goods alleged to have been 25 lost in breach of a bill of lading, does fall within the matters which by virtue of section 30of the charter agreement must be referred to arbitration.

(2)If the applicant for the stay of proceedings was "at the time when the proceedings were commenced and still remains 30 readyandwilhngtodoallthingsnecessarytotheproperconduct of the arbitration as the law". The respondents' allegation is that the applicants were not ready and willingtodo everything necessary to refer thecaseto arbitration, as required by law. 35 Inparagraph 3of the affidavit of Mr. Petros Michael clerk in the law office of plaintiffs' advocate, which is attached to the opposition we read the following: 727 Hadjianastassiou J. La SocJeteD' Assurances v.Alkostar Shipping

(1983)"We immediately established from the registrar of companies that the registered office of the aforementioned company is the Law office of Messrs. L. Papaphilippou & Co. and I personally phoned the said office and talked to Mr. S. Papadopoulos asking him for an extention of time, 5 after 1 confirmed that they are the registered office of ALKOSTAR Shipping Co. Ltd. and are authorised to act on their behalf. I also told him that if no extension of time is given we would have to bring an action to protect the claim from becoming time barred. He told me that no 10 extension of time is granted and to bring the action. He said, and I quote 'Den echiparatasi kina agogi'. Following this we immediately brought the action." The allegation is contradicted by the defendants who on the contrary state that they were and continue to be willing to take 15 every necessary step to put in motion the proceedings for arbitration. But they do not deny nevertheless the telephone communication and the fact that they refused to consent to the proposal of the plaintiffs. Paragraph 5 of the affidavit of Mr. S. Papadopoulos reads as follows: 20 "The phrase which Mr. P. Michael tries to put inmy mouth is incorrect because from what I remembered I told him that wecould not grant an extention of time and they could do what they liked. 1 could not specify nor could I dictate to him what to do." At the time when the telephone conversation was made it was known to both parties that the time of commencement of arbitration proceedings had elapsed and the commencement of such proceedings was not possible without the extension of time. The conclusion which could be derived is that there was 30 discouragement of the plaintiffs to proceed with the arbitration. It isapparent that the reason of the plaintiffs' choice to institute legalproceedings was the clear and firm refusal of the applicants. Under the circumstances as they are stated above the Court is of the opinion that the applicantsdid not encourage theplaintiffs 35 to proceed according to theterms of the contract for arbitration, but on the contrary they'left the plaintiffs in some way with no 728 25 1 C.L.R. La Societe D' Assurancesv. Alkostar Shipping Hadjianastassiou J. choice but to institute legal proceedings. Under the circumstances,theydidnot actinthemanner and willingness required. Havinginmind theprinciples as they havebeen stated inthe aforesaid legal authorities and by exercising its discretionary 5 power the Court dismisses the present application. Let there be no order as to costs. Application dismissed. No order as tocosts. 729