Mariana Maritime S.A. v. Stella Jones Inc.

This was an appeal from an Order by the motions Judge dismissing an application by the Defendant carriers for a stay of proceedings. The facts were that the parties had entered into a “Conline” booking note for the carriage of the Plaintiffs’ cargo. The booking note specified that its terms would be superceded by the terms of the bill of lading which were said to be set out in full on the reverse of the booking note. In fact, as the booking note had been sent by facsimile, the terms were not on the reverse. It was, however, common ground that those terms did not include an arbitration clause. On the bill of lading that was actually issued there was added a typed “Centrocon” arbitration clause in the margin which called for London arbitration. It was this clause which the Defendants sought to enforce. The motions Judge referred to Article 8 of the Commercial Arbitration Code and noted that the court had no discretion where it finds an arbitration clause. However, the motions Judge found that on the facts of the particular case there was no evidence the Plaintiff had ever signed or agreed to the arbitration clause contained in the bill of lading and held it was therefore not part of the contract. On appeal, the Court of Appeal affirmed the decision of the motions Judge holding that if the carrier wanted to make the contract of carriage subject to the arbitration clause they should have made their intention known to the Plaintiffs.