Prior course of dealing between parties did not mean they had agreed to arbitrate
In the case Lisnave Estaleiros Navais SA v Chemikalien Seetransport GmbH  EWHC 338 (Comm), the Commercial Court considered the circumstances in which a term may be implied into a contract as a result of a course of dealing between the parties. The particular term that the fleet agent was seeking to imply into a fleet agreement with a shipyard was an agreement to arbitrate. After considering the relevant case law, the court held that it was impossible to conclude that the parties intended that this term should form a part of their contract.
The Claimant shipyard (Lisnave) entered into a Fleet Agreement with the Defendant fleet agent (CST) in relation to repairs for vessels managed by CST. Lisnave subsequently entered into separate ship repair contracts with each of the ship-owners whose vessels were managed by CST. The purpose of the Fleet Agreement was to set out the terms which would apply to each individual repair contract. The repair contracts expressly incorporated Lisnave’s General Conditions. In particular, Article 15.2 of the General Conditions provided for disputes to be resolved by arbitration in London…
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Swallowfalls v Monaco Yachting provides further support for the construction of contracts in the manner most consistent with ‘commercial common sense’.
Instances of vessels making contact with and damaging a berth are fairly common. Disputed claims on liability are much rarer.