Midnight Marine Ltd and another company v Thomas Miller Specialty Underwriting Agency Ltd (formerly Osprey Underwriting Agency Ltd)

Shipping – Arbitration award. The claimant companies' application to set aside a judge's order, dismissing their challenge to an arbitration award on the ground of serious irregularity under s 68 of the Arbitration Act 1996, was dismissed. The arbitration arose out of the loss of cargo that had been carried on the claimants' barge. The defendant underwriters had applied to London arbitrators for a declaration that any claim by the claimants against the underwriters for an indemnity, concerning a settlement the claimants had reached with the owners of the cargo, was time-barred. The arbitrators had agreed and had further held that there had been inordinate and inexcusable delay by the claimants, under s 41(3) of the Act. In so ruling, the arbitrators had considered it appropriate to treat the claimants as a 'claimant or counter-claimant', within the meaning of s 41(3), notwithstanding that the underwriters had made the application for a declaration. The Commercial Court ruled that, applying the law to the facts, the claimants' s 68 application was hopeless, and that requiring the underwriters to defend the claim when there was a substantial risk that a fair resolution was no longer possible, as a result of the claimants' own conduct, would be a plain injustice to the underwriters.

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