Sandstorm (Virgin Islands) Ltd v Sopers Hole Corporations Ltd

• Jurisdiction: British Virgin Islands
• Judge: Joseph, J
• Judgment Date: 16 September 1983
• Neutral Citation: VG 1983 HC 5
• Docket Number: Civil Suit no. 95 of 1985
• Date: 16 September 1983
• Court: High Court (British Virgin Islands)

High Court of Justice

Joseph, J

Civil Suit no. 95 of 1985

Sandstorm (Virgin Islands) Ltd.

and

Sopers Hole Corporations Ltd.

Appearances:-

Mr. J.S. Archibald, Q.C., with him Mr. Farara for plaintiff.

Mr. K. Foster, with him Mr. Hewlitt for defendant.

Arbitration - Delivery of Award

Facts: There was an agreement between the parties that for a consideration the plaintiff company would undertake to carry out certain dredging works for the defendant company. It was further agreed to refer dispute or difference as to rights or obligation to arbitration in accordance with Arbitration Ordinance, 1976. The parties agreed to submit certain matters to arbitration and appointed two arbitrators and an umpire. An award was made by the arbitrators and umpire. Arbitrator's letter of October 6, 1982 advised that an award would be available on following day. Defendant's letter of October 12 advised that company would be unable to meet arbitrators' fee until end of November. On October 13, the plaintiff company paid a fee and took up judgment.

Held: Delivery of award to plaintiff company not improper.

Joseph, J

1 This is a summons filed on behalf of the plaintiff on 14th October, 1982, for an order under section 28 of the Arbitration Ordinance, 1976 (No. 7 of 1976) (hereafter referred to as the Ordinance) for leave to enforce an award as a judgment or order of the High Court.

2 The summons is supported by the affidavit of Kenneth G. Klein and Eugene Farrow directors and shareholders of the plaintiff company. A counter affidavit was filed by Randolph Malone, Managing Director of the defendant company.

3 By an agreement (hereafter referred to as the Dredging Agreement) the plaintiff and defendant companies agreed that, for a consideration, the plaintiff company would undertake to carry out certain dredging works for the defendant company at Sopers Hole, Tortola.

4 The parties further agreed to refer any dispute or difference as to their respective rights, duties or obligations arising under the agreement to arbitration in accordance with the Ordinance.

5 By an agreement (hereafter referred to as the Arbitration Agreement), the parties agreed to submit certain matters in dispute to arbitration and appointed two arbitrators and an umpire. The arbitrators and umpire considered the dispute, heard the parties, their witnesses and their counsel and made an award.

6 Fay a letter dated 6th October, 1982, the arbitrator appointed by the defendant company, Clive Sears, wrote to counsel for the defendant company advising that the award would be available on Thursday, 7th October, and that copies of the award would be handed to counsel on payment by the defendant company of the arbitrators' and umpire's fees.

7 By letter of 12th October, 1982, counsel for the defendant company wrote Counsel for the plaintiff company advising that the defendant company would be unable to meet the fees of $15,750.00 until the end of November. On the 13 ^th October, 1982, the plaintiff company paid the arbitrators' and umpire's fees and tools up the award, the text of which appears later in the judgment.

Dredging Agreement

8 This is a written agreement between the defendant company and the plaintiff company dated 14/5/81, whereby the parties agreed that the plaintiff company would dredge 300,000 cubic yards dry measure of sand from the seabed and foreshore at Sopers Hale within the dredging areas as defined in the agreement: The cost for each cubic yard dredged being $3.00. Dredging operations were to commence on 1/7/81 and were to be completed by the 28/2/82, faith provision for extension to a later date in certain circumstances.

9 In consideration, it was agreed that the defendant company

• (1) would pay to the plaintiff company the sum of $900,000.00, with interest thereon at the rate of 1.67 per centum per month (i.e. 20% per annum) by forty-five equal consecutive monthly instalments of $29,233.62 the first such payment to be made 90 days after the commencement of the dredging operations: other monthly instalments to be paid on the same date of each and every successive month.

• (2) would at the time of execution of this agreement execute forty five promissory notes in favour of the plaintiff each being in the earn of $29,233.62, and to undertake to have Randolph Malone, Horrace Turnbull and Wallace Turnbull, being all shareholders of the defendant company, each to execute personal guarantees of all monthly instalment payments to be made by the defendant company to the plaintiff company.

10 Clauses 7 (b) and (c) of the Agreement read:

• “(b) the quantification of the amount of sand to be dredged by Sandstorm under this contract is based solely on engineering survey and data conducted and compiled by Sopers Hole Corporation and in the event that there is less than 300,000 cubic yards of sand available for dredging from the seabed and foreshore at Sopers Hole within the dredging area as defined in the Agreement this event shall not constitute a breach by Sandstorm of any of the provisions of this contract.

• “(c) in the event that thence is less than 300,000 cubic yards of sand available for dredging from the seabed and foreshore at Sopers Hole Corporation within the dredging area as defined in the Agreement Sandstorm shall be entitled to full payment oÚ the contract sum and all interest thereon as if the dredging works had been carried out in full.”

Arbitration Agreement

11 This Agreement between. the plaintiff company and the defendant company, is dated the 26/8/82 and appointed Cyril B. Romney M.A., and Clive A. Sears F.R.I.C.S. to be the arbitrators and Elihu Rhymer M.A. to be the umpire.

12 The disputes referred to arbitration are comprised in Recitals (11), (12), (13), and (14) and are reproduced hereunder:

• ((11) (a) Sandstorm claims to have carried out the dredging works in full by dredging all the sand available for dredging under the Agreement, and as permitted by Sopers Hole Corporation through its Director Mr. Rarzdolph Malone on site, and that the 300,000 cubic yards requirement in Clause of the Agreement is satisfied in fact under Clause 7(b) and 7(c) of the Agreement and that it has therefore fulfilled all its obligations under the Agreement

• (b) Sopers Hole Corporation claims that Sandstorm has failed to dredge 300,000 cubic yards dry measure of sand under Clause 1 of the Agreement and is therefore in breach of its obligations under the Agreement

• (12) (a) Sopers Hole Corporation contends that Sandstorm has dredged no more than 81,362 cubic yards of sand according to the findings set forth in writing on April 22, 1982 by the independent and qualified persons appointed under Clause 7(h) of the Agreement.

• (b) Sandstorm disagrees with the findings referred to in Recital (12)(a) hereof.

• (13) (a) Sandstorm claims payment from Sopers Hole Corporation of the monthly instalments of $29,233.62 payable as at October 1, November 1, December 1, in 1981, January 1, February 1, March 1, April 1, May 1, June 1, July 1, August 1 in 1982 and the first day of each of the thirty-four subsequent months under Clause 3 of the Agreement, plus interest thereon, on the ground that the dredging operations aforesaid commenced on July 1, 1981 and were completed on March 10, 1982.

• (b) Sopers Hole Corporation refused to pay to Sandstorm the monthly instalments demanded as at October 1, November 1, and December 1, in 1981 or any part thereof on the ground that the dredging operations aforesaid commenced on September 17, 1981, but paid to Sandstorm monthly instalments of $29,233.62 on December 15, 1981, January 17, February 22, parch 22, and April 26 in 1982, and has refused to pay any more money to Sandstorm.

• (14) (a) Sandstorm by letters dated January 4, 1982, and January 15, 1982 claims compensation from Sopers Hole Corporation at the rate of 51,000.00 per day from December 31, 1981 to January 25, 1982 under Clause 7(e) of the Agreement on the ground that its dredge used in carrying out the dredging works had remained idle during the said period due to the wrongful act of Sopers Hole Corporation, its agents or servants in stopping the dredging works.

• (b) Sopers Hole Corporation by letter dated March 4, 1982 claims compensation from Sandstorm at the rate of $1,000 per day from February 28, 1982 to the date of completion of the dredging works under Clause 7 (g) of the Agreement on the ground that Sandstorm failed to complete the dredging works by the date fixed for such completion by Clause 2 of the Agreement or any reasonable extension thereof. The Agreement continues (15) The parties have agreed to refer the dispute or differences mentioned in recitals (11), (12), (13) and (14) hereof to two arbitrators and an mire as mentioned in the agreement.

13 Now it is hereby agreed between the parties hereto as follows:

14 The aforesaid natters in dispute or difference between the parties hereto, specifically mentioned in Recitals (11), (12), (13) and (14) hereof, are hereby referred to the award and final determination of Cyril Brantford Romney, and Clive Sears as arbitrators … and Elihu Rhymer as umpire subject to the provisions of the Arbitration Ordinance 1976 (No. 7 of 1970) of the Laws of the British Virgin Islands save in so far as they are varied by the Agreement.

15 The said umpire shall be at liberty to sit with the said arbitrators and hear all the evidence in conjunction with them before the matters in dispute shall have been referred to him and the said umpire may base his award upon such evidence.

The Award

16 The arbitrators and wire made the following award dated the 5/10/2:

17 (1) We find, in respect of Recital (12)(a) and (b) above, the evidence and witness presented to the tribunal were sufficient to enable us to conclude that the amount of sand dredged by Sandstorm was in excess of 31,362 cubic yards.

• (2) We were unable to agree an award,...