Lisheen Mine v Mullock and Sons Ltd and Another

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Cregan
Judgment Date12 January 2015
Neutral Citation[2015] IEHC 50
Date12 January 2015

[2015] IEHC 50

THE HIGH COURT

[No. 2813 P./2013]
Lisheen Mine (Being a Partnership between Vedanta Lisheen Mining Ltd & Killoran Lisheen Mining Ltd v Mullock & Sons (Shipbrokers) Ltd & Vertom Shipping & Trading BV

BETWEEN

THE LISHEEN MINE (BEING A PARTNERSHIP BETWEEN VEDANTA LISHEEN MINING LIMITED AND KILLORAN LISHEEN MINING LIMITED)
PLAINTIFF

AND

MULLOCK AND SONS (SHIPBROKERS) LIMITED

AND

VERTOM SHIPPING AND TRADING BV
DEFENDANTS

Arbitration – Charter-party – Framework agreement – Plaintiff seeking a declaration that it has not entered into any agreement with the defendants for the carriage of cargo – Whether there was an arbitration agreement between the parties

Facts: The plaintiff, a partnership between Vedanta Lisheen Mining Ltd and Killoran Lisheen Mining Ltd, carries on the business of mining. The first defendant, Mullock & Sons (Shipbrokers) Ltd, carries on business as ship brokers. The second defendant, Vertom Shipping & Trading BV, carries on the business of ship owners. The plaintiff commenced its proceedings by way of plenary summons in March 2013 seeking a declaration from the High Court that it is not a party to any contract with the defendants for the carriage of cargo between Cork and Antwerp, Belgium and Stettin in Poland. The plaintiff pleaded that the proceedings were instituted because of apprehension that the defendants would wrongly assert that a contract had been concluded for the carriage of cargo, namely between the Lisheen Mine and Vertom or Lisheen Milling Ltd and Vertom on separate routes under different contracts, or Lisheen Milling Ltd and Vertom under a single contract for two routes. It was pleaded that Vertom also asserted that a standard charter-party agreement forms part of this alleged contract. It was because of this arbitration clause that Vertom brought its motion seeking to stay the proceedings, pursuant to Article 8 of the Model Law, and to refer the proceedings to arbitration. Subsequently Vertom commenced arbitration proceedings against Lisheen Milling Ltd pursuant to the arbitration clause in the alleged charter-party agreement, which Vertom alleged had been incorporated into the alleged contract of affreightment.

Held by Cregan J that, having considered Barnmore Demolition and Civil Engineering Ltd and Alandale Logistics Ltd and ors [2010] IEHC 544, there was no concluded framework/master agreement between the parties as the correspondence between them was more consistent with a progress of negotiations rather than concluded agreements: the email of 7th December 2012 sent by Mullock and Sons to The Lisheen Mine constituted an offer from Vertom subject to a condition that the charter-party details should be agreed before its offer on freight rates and commission could be finally agreed; the letter of 20th December 2012 sent by The Lisheen Mine to Mullock and Sons shows that both sides were of the view that there would be no master/framework agreement concluded until the charter-party agreement had been agreed; the request of The Lisheen Mine on 2nd January 2013 to nominate a vessel occurred in the context where there had only been negotiations in respect of a draft charter-party agreement but no concluded charter-party agreement. Cregan J held that there was no document which reflects a consensus ad idem between the parties on the major or essential terms of the charter-party agreement and as such the evidence falls short of what would be required for a court to conclude that there was a concluded charter-party agreement.

Cregan J held that there is no concluded master/framework agreement between The Lisheen Mine and Mullock and Sons/Vertom, and that there is no concluded charter-party agreement between Lisheen Milling Ltd and Mullock and Sons/Vertom (or between The Lisheen Mine and Mullock and Sons/Vertom). As such, Cregan J held that there was no arbitration agreement between the parties. In the circumstances, Cregan J held that the defendant”s application to stay the within proceedings and refer the dispute to arbitration be refused.

Application refused.

Introduction
1

1. The plaintiff in these proceedings is seeking a declaration that it has not entered into any agreement with the defendants for the carriage of cargo between the port of Cork and the ports of Antwerp, Belgium and Stettin in Poland. In the alternative, the plaintiff seeks a declaration that if the plaintiff was a party to such contract, it was entitled to rescind such a contract, and that it did so lawfully. The plaintiff also seeks damages for breach of contract.

2

2. By notice of motion dated 18 th July, 2013 the second named defendant ("Vertom") sought an order staying these proceedings (pursuant to Article 8 of the Model Law as incorporated by the Arbitration Act 2010 and 0. 56, r.3 of the Rules of the Superior Courts and/or pursuant to the inherent jurisdiction of the High Court) and also an order referring the proceedings to arbitration.

The parties
3

3. The plaintiff is a partnership of Vedanta Lisheen Mining Limited (a company incorporated with limited liability which has its registered office at Lisheen Mine, Thurles, County Tipperary) and Killoran Lisheen Mining Limited (a company incorporated with limited liability also having its registered office at Killoran, Thurles, County Tipperary). The plaintiff firm carries on the business of mining and has its principal office at the Lisheen Mine Killoran, Thurles, County Tipperary.

4

4. The first defendant carries on business as ship brokers. It is a company with limited liability and it has its registered office at the Shipping Office, Dock Road, Limerick.

5

5. The second defendant is a company incorporated under the law of the Netherlands and holds itself out as carrying on the business of ship owners. It has its registered office in the Netherlands.

The plaintiff's statement of claim
6

6. The plaintiff commenced its proceedings by way of plenary summons on 15 th March 2013. The plaintiff subsequently issued a statement of claim on 24 th September, 2013. The reliefs sought at para. 1 of the statement of claim are unusual because the plaintiff is seeking a declaration that it is not a party to any contract with the defendants for the carriage of cargo between Cork and Antwerp, Belgium and Stettin in Poland. Indeed at para. 4 of the statement of claim the plaintiff pleads that these proceedings were instituted because of the apprehension on the part of the plaintiff that the defendants would wrongly assert that a contract had been concluded between the plaintiff and the defendants for the carriage of cargo.

7

7. The plaintiff pleads (at para. 6 of its statement of claim) that Vertom, has asserted at different times that various contracts have been entered into between

1

The Lisheen Mine and Vertom or, Lisheen Milling Limited and Vertom on separate routes under different contracts or

2

Lisheen Milling Limited and Vertom under a single contract for two routes.

8

8. It is further pleaded (at para. 7 of the statement of claim) that Vertom is also asserting that a standard charter- party agreement (set forth in a document called "Gen Con" - which includes an arbitration clause) forms part of this alleged contract. (It is because of this arbitration clause that Vertom has brought its motion seeking to stay these proceedings and to refer the proceedings to arbitration.)

9

9. The plaintiff pleads that:

1

No contract has been concluded between the plaintiff and Vertom.

2

Even if any such contract had been concluded between the plaintiff and Vertom, no charter- party agreement has been concluded by the plaintiff with Vertom.

3

Even if a charter-party agreement was concluded with Vertom (whether by the plaintiff or by Lisheen Milling Ltd) it is denied that its terms were incorporated into any contract of affreightment as between the plaintiff and Vertom.

10

10. Subsequent to the issuing of these proceedings by the plaintiff, Vertom commenced arbitration proceedings against Lisheen Milling Limited in London on 22 nd March 2013 pursuant to the arbitration clause in the alleged charter- party agreement (which Vertom alleges has been incorporated into the alleged contract of affreightment).

11

11. In addition Vertom also commenced arbitration proceedings in London against the plaintiff pursuant to the arbitration clause in the alleged charter- party agreement allegedly incorporated into the alleged contract of affreightment. This notice of arbitration issued against The Lisheen Mine on 9 th August, 2013.

Issues.
12

12. It is clear therefore from the statement of claim and also from the lengthy affidavits and exhibits which have been filed in this application that the issues which arise for consideration by this court are as follows:

1

Was there a contract of affreightment entered into between The Lisheen Mine and Vertom?

2

Did The Lisheen Mine enter into a charter- party agreement with Vertom?

3

Did Lisheen Milling Limited enter into a charter- party agreement with Vertom?

4

Were the standard terms and conditions of the alleged charter- party agreement incorporated into the contract of affreightment.

13

13. It is common case between the parties that the alleged contract of affreightment does not contain an arbitration clause.

14

14. It is also common case between the parties that the standard terms and conditions of the alleged charter- party agreement do contain an arbitration clause.

15

15. Therefore in order for Vertom to successfully argue that these proceedings should be stayed, and that the matter should be referred to arbitration, it would have to establish:

1

That there is a concluded agreement in place between The Lisheen Mine and Vertom for a contract of affreightment.

2

As this contract of affreightment does not contain an arbitration...

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11 cases
  • K & J Townmore Construction Ltd v Kildare and Wicklow Education and Training Board
    • Ireland
    • High Court
    • 11 October 2019
    ...approach for the court to adopt in determining whether an arbitration agreement exists: Lisheen Mine v. Mullock & Sons (Shipbrokers) Ltd [2015] IEHC 50 (unreported, High Court Cregan J., 12th January, 2015) and Sterimed Technologies International Ltd v. Schivo Precision Ltd [2017] IEHC 35 (......
  • Sterimed Technologies International v Schivo Precision Ltd
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    • 27 January 2017
    ...the parties. I would adopt the views expressed by Cregan J in that regard in the case of Lisheen Mine v Mullock & Sons (Shipbrokers) Ltd [2015] IEHC 50 for the reasons set out by the learned judge in that case. 16 There was no dispute between the parties as to which agreements contained arb......
  • Kenny v Howard
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    • 29 July 2016
    ...... to retain was not available and he had to engage another person. These things happen. The problem with this point is ......
  • XPL Engineering Ltd v K & J Townmore Construction Ltd
    • Ireland
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    • 11 October 2019
    ...Ltd [2010] 2 I.R. 581 ( “Kalix”). A similar conclusion was reached by Cregan J. in The Lisheen Mine v. Mullock & Sons (Shipbrokers) Ltd [2015] IEHC 50, again in reliance upon the judgment of Clarke J. in Kalix. However, in both cases the court found that there was no arbitration agreement......
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