HARLIFAX LTD. (formerly known as VINOR SHIPPING CO. LTD.) v. TRANSATLANTIC SCHIFFAHRTSKONTOR GMBH

1988, No. MP 1229

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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DECISION

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1. With the December fixture in the background, it is desirable to deliver my decision now at the conclusion of Counsel's submissions. As usual, I shall reduce my oral decision into writing with full reasons.

2. The plaintiff was the charterer under 21 charterparties. The defendant was the owner of the vessel under charter. The question at issue is whether the plaintiff should be responsible to the defendant for demurrage or whether the defendant should be responsible to the plaintiff for despatch. There are 21 sets of arbitration proceedings with the defendant as claimant and the plaintiff as respondent in each.

3. The plaintiff seeks under Section 6B of the Arbitration Ordinance, Cap. 341, a consolidation order. It is not in dispute that there are common questions in these 21 charter parties for trial. Consolidation is now being applied for by the plaintiff principally on the grounds that time would be saved, legal costs would be reduced and inconsistent decisions in separate unconsolidated proceedings could be avoided. It is envisaged, if consolidation be granted, that the parties would go before the arbitrators for preliminary issues to be framed and ultimately determined.

4. On the 26th June 1988, the claimant in three of the 21 sets of arbitration proceedings applied to the arbitrators for hearing dates to be fixed, pleadings in those three sets of arbitration proceedings having been closed. Notice of the claimant's approach to the arbitrators was given to the plaintiff's solicitor.

5. On the 8th July, the plaintiff caused to be issued the instant originating summons for consolidation. The dates for the hearing of the three sets of arbitration proceedings were given by the arbitrators in September for the coming December.

6. During the course of the submissions of Counsel for the plaintiff, I allowed time for the parties to define their differences in the hope that the same might, by consent or in a suitably worded consolidation order, be raised in the December arbitrations for saving time and costs and for avoiding possible inconsistent decisions.

7. After brief consultation, Counsel for the claimant made an open invitation that so long as the three sets of arbitration proceedings were to be proceeded with as scheduled in December, the claimant was prepared to have all the common questions to be raised and decided in the December arbitrations so as to be binding in the remaining arbitration proceedings. Counsel for the claimant went even so far as to offer the three sets of arbitration proceedings as test cases for the rest.

8. Counsel for the plaintiff did not resist the December sitting but found the other proposals made on behalf of the claimant not quite acceptable. Counsel submitted that matter should be allowed to follow the usual course without any artificial device with a view to hopefully achieving the same aims for which the instant originating summons was filed. The court's attention was drawn, in particular, to the possibility, in theory, that the common questions posed in the affidavit of Mr Binnersley might be subject to variations.

9. Counsel reminded the court that after a consolidation order, the parties would in the usual course of events be called upon to formulate and agree to common questions for all or some of the 21 sets of arbitration proceedings.

10. Counsel for the claimant understandably doubted the feasibility of formulating common questions if there should exist such variations. Mr Kotewall further reminded the court of the sad fact that it is notoriously difficult for parties, even with the best will in the world, to formulate common questions for trial.

11. The three sets of arbitration proceedings have reached a stage at which aribtral awards are soon to be expected from the arbitrators. Mr Kotwall feared that any consolidation order, particularly in the light of the past conduct of the plaintiff, would deprive the claimant of its expectation from these three sets of arbitration proceedings.

12. It is only too true that matters sought to be implemented for saving time, reducing costs and avoiding possible inconsistent decisions could be well, indeed better achieved with goodwill by the consent of the parties without any consolidation order.

13. Events are given in the affidavit of Mr Andrew Chan in which the plaintiff is said to have had misconducted itself causing delay. These matters of complaint as given were not commented upon on behalf of the plaintiff save that they are said to be irrelevant to the plaintiff's substantive application for consolidation.

14. At one stage, this Court suggested to Counsel for the plaintiff that the plaintiff might consider the possibility of framing any common questions for the arbitrators in December though selectively for any particular set of arbitration proceedings or of having the liberty to withdraw any of the six or other common issues now placed before the arbitrators from any or any of the remaining arbitration proceedings. Mr. Smith on behalf of the plaintiff did not find any of those suggestions of assistance.

15. In all the circumstances, I am not satisfied that there is any real advantage to be gained by a consolidation order. The three sets of arbitration proceedings scheduled to be heard in December must be allowed to be proceeded with without any hindrance. The anxieties of the plaintiff posed for my consideration in the affidavit of Mr Binnersley can easily be removed by appropriate actions initiated on behalf of the plaintiff without any consolidation order.

16. The plaintiff's originating summons cannot, therefore, be acceded to, and it is dismissed with costs to the claimant/defendant.