Peer-Reviewed Journal Articles by Simon Allison
Can a pilotage indemnity agreement waive a shipowner’s statutory right to limit its liability? If... more Can a pilotage indemnity agreement waive a shipowner’s statutory right to limit its liability? If so, how precise must the wording of that indemnity be to achieve this? These questions arise from an unfortunate berthing operation in the Bahamas on 25 May 2012 in The Cape Bari.
While berthing, the Cape Bari collided with BORCO’s facility, causing substantial damage. BORCO pursued the shipowners for damages exceeding US$20m. The owners responded by establishing a limitation fund of US$16m. The fund was constituted under the Convention on Limitation of Liability for Maritime Claims 1976 (“LLMC 1976”), which was given force of law in the Bahamas by the Merchant Shipping (Maritime Claims Limitation of Liability) Act 1989 (the “1989 Act”).
Arbitration International: The Official Journal of the London Court of International Arbitration (LCIA), May 2014
This article considers the varying judicial approaches to the question of incorporation of arbitr... more This article considers the varying judicial approaches to the question of incorporation of arbitration agreements by reference to another contract, schedule of terms, or trading rules. In particular, attention is directed to the approach taken by English courts in considering whether a subsequent holder of a bill of lading is bound by an arbitration agreement contained in a charterparty. In that context, English courts required an express reference in a bill of lading to the charterparty arbitration clause before it could be regarded as part of the contract. General words purporting to incorporate the terms and conditions of a charterparty would not be sufficient. This article examines the development of this strict approach to incorporation in the maritime context, its application to contractual disputes outside that context and recent case law signalling a more flexible approach to the question based on the intention of the parties involved.
Monash University Law Review, May 2015
Since 1904, Australia has sought to protect shippers by prohibiting parties to contracts such as ... more Since 1904, Australia has sought to protect shippers by prohibiting parties to contracts such as bills of lading from contracting out of Australian law and jurisdiction. Today, this protection lives on in s 11 of the Carriage of Goods by Sea Act 1991 (Cth). This section has recently been in the spotlight following a divergence of authority relating to its scope. This article argues that legislative revision of s 11 is necessary in order to clarify its scope and to ensure that its operation is consistent with the underlying policies justifying its existence, as expressed by the legislature.
Theses by Simon Allison
Bridge over Troubled Waters: Revising Section 11 of the Commonwealth Carriage of Goods by Sea Act
Since 1904, the legislature has sought to protect Australian cargo interests by prohibiting parti... more Since 1904, the legislature has sought to protect Australian cargo interests by prohibiting parties to contracts as bills of lading from contracting out of Australian law. Today, this protection lives on in section 11 of the Carriage of Goods by Sea Act 1991 (Cth). The section is in the spotlight following a recent divergence of authority relating to the documentary scope of the section. This article argues that legislative revision of section 11 is necessary to clarify its scope and ensure its operation is consistent with the underlying policies, as expressed by the legislature.
Papers by Simon Allison
Incorporating Arbitration Clauses: The Sacrifice of Consistency at the Altar of Experience
By Simon Allison and Kanaga Dharmananda SC
This article considers the varying judicial approac... more By Simon Allison and Kanaga Dharmananda SC
This article considers the varying judicial approaches to the question of incorporation of arbitration agreements by reference to another contract, schedule of terms, or trading rules. In particular, attention is directed to the approach taken by English courts in considering whether a subsequent holder of a bill of lading is bound by an arbitration agreement contained in a charterparty. In that context, English courts required an express reference in a bill of lading to the charterparty arbitration clause before it could be regarded as part of the contract. General words purporting to incorporate the terms and conditions of a charterparty would not be sufficient. This article examines the development of this strict approach to incorporation in the maritime context, its application to contractual disputes outside that context and recent case law signalling a more flexible approach to the question based on the intention of the parties involved.
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Peer-Reviewed Journal Articles by Simon Allison
While berthing, the Cape Bari collided with BORCO’s facility, causing substantial damage. BORCO pursued the shipowners for damages exceeding US$20m. The owners responded by establishing a limitation fund of US$16m. The fund was constituted under the Convention on Limitation of Liability for Maritime Claims 1976 (“LLMC 1976”), which was given force of law in the Bahamas by the Merchant Shipping (Maritime Claims Limitation of Liability) Act 1989 (the “1989 Act”).
Theses by Simon Allison
Papers by Simon Allison
This article considers the varying judicial approaches to the question of incorporation of arbitration agreements by reference to another contract, schedule of terms, or trading rules. In particular, attention is directed to the approach taken by English courts in considering whether a subsequent holder of a bill of lading is bound by an arbitration agreement contained in a charterparty. In that context, English courts required an express reference in a bill of lading to the charterparty arbitration clause before it could be regarded as part of the contract. General words purporting to incorporate the terms and conditions of a charterparty would not be sufficient. This article examines the development of this strict approach to incorporation in the maritime context, its application to contractual disputes outside that context and recent case law signalling a more flexible approach to the question based on the intention of the parties involved.
While berthing, the Cape Bari collided with BORCO’s facility, causing substantial damage. BORCO pursued the shipowners for damages exceeding US$20m. The owners responded by establishing a limitation fund of US$16m. The fund was constituted under the Convention on Limitation of Liability for Maritime Claims 1976 (“LLMC 1976”), which was given force of law in the Bahamas by the Merchant Shipping (Maritime Claims Limitation of Liability) Act 1989 (the “1989 Act”).
This article considers the varying judicial approaches to the question of incorporation of arbitration agreements by reference to another contract, schedule of terms, or trading rules. In particular, attention is directed to the approach taken by English courts in considering whether a subsequent holder of a bill of lading is bound by an arbitration agreement contained in a charterparty. In that context, English courts required an express reference in a bill of lading to the charterparty arbitration clause before it could be regarded as part of the contract. General words purporting to incorporate the terms and conditions of a charterparty would not be sufficient. This article examines the development of this strict approach to incorporation in the maritime context, its application to contractual disputes outside that context and recent case law signalling a more flexible approach to the question based on the intention of the parties involved.