Africa Express Line Ltd v Socofi S A and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE CHRISTOPHER CLARKE,Mr Justice Christopher Clarke |
| Judgment Date | 11 December 2009 |
| Neutral Citation | [2009] EWHC 3223 (Comm) |
| Docket Number | Case No: 2009 FOLIO NO. 994 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 11 December 2009 |
[2009] EWHC 3223 (Comm)
Before : Mr Justice Christopher Clarke
Case No: 2009 FOLIO NO. 994
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Mr. Neil Hart (instructed Watson, Farley and Williams) for the Claimant
Mr Chirag Karia (instructed by Dawsons LLP) for the First Defendant
Approved Judgment
Hearing dates: Friday 27th November
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
I have before me an application by the first defendant for an order declaring that the court has no jurisdiction to hear the claimant's claim against it upon the ground that the exclusive jurisdiction clause relied on by the claimant was not clearly incorporated into the contract between the parties.
The claimant —Africa Express Line Limited (“AEL”) —is a carrier operating refrigerated vessels on a weekly liner service between West Africa and Europe. The first defendant – Socofi S.A. (“Socofi”) – is a company incorporated in France. It has no offices outside France. It imports into Europe pineapples, bananas, mangos and other fruits from the Ivory Coast and other places. The Second Defendant Plantations Dam S.A. (“ DAM”) is a fruit grower in the Ivory Coast. Mr Jacques Daudet (“Mr Daudet”) is the General Director of both Socofi and DAM.
An agreement was entered into on 1 st January 2005 between Socofi and DAM under which Socofi agreed to buy the entirety of all fruit produced by DAM (“the Socofi/Dam Purchase Agreement”) on FOB terms.
DAM is a member of the Organisation Centrale des Producteurs Exportateurs d'Ananas et de Bananes (“OCAB”) which is an association of fruit producers and exporters in the Ivory Coast. Between 2002 and 2006 AEL worked with OCAB on an informal basis to ship the fruit produced by OCAB members.
On 1 December 2006 AEL entered into a three year framework agreement with OCAB, terminable by four month's notice expiring at the end of each calendar year. The agreement provided that:
“Article 1: Object of the contract
The object of this contract is to define the principles that govern the maritime transport conditions that will apply between AEL and the OCAB and its members, conditions transcribed into a “Slot Charter Agreement 1“ which must be signed at the latest by 11 December 2006.
4: General Conditions applying to members of the OCAB
The service agreement supplied by AEL is defined in the slot charter agreement entered into with the members of OCAB under the aegis of OCAB……”.
In effect OCAB was to agree with AEL a form of contract of affreightment to be entered into by its members. Contracts in that form would then be signed by AEL and the relevant member.
In what is said to be around April 2007 an agreement was entered into between AEL and DAM (“the AEL/DAM Agreement”). The agreement was signed by Mr Traoré who was DAM's designated representative in OCAB. Under this agreement DAM was bound to ship the entirety of its produce exclusively upon AEL's vessels. The agreement was in French. Under it DAM was to ship fresh fruits in cardboard packages stacked on pallets on AEL's vessels. The Agreement was to last for 3 years (clause 2) although it also provided for DAM to indicate at the latest on 31 August of each year whether or not it intended to renew the Agreement for a further year, and, if yes, to indicate the quantity of pallets it expected to ship for the following year. AEL would by 30 th September at the latest announce the freight rates and amendments, if any, to the Agreement for the following year and the parties were to reach an agreement on the renewal of the contract within 15 days after that.
Clause 3.1. provided that DAM expected to ship and AEL was to arrange the transport from Abidjan to Europe of an annual volume of about 7500 pallets of pineapples. DAM undertook to ship on AEL's vessels the whole of its exportable production. Weekly and annual forecasts were set out in Annex 3. These forecasts were said not to constitute an engagement on DAM's part 2. The agreement had provisions about (a) forecasts of the number of pallets to be loaded, (b) deadfreight if the forecasts were not met, (c) the type of bills of lading to be used, (d) AEL's intended schedules, the seaworthiness of AEL's vessels and an option to load on an alternate vessel if the nominated vessel was delayed; (f) the appointment of stevedores; (e) the 2007 freight rates, (f) the payment of freight (which was to be made in advance as per the instructions on the relevant invoice), adjustments to freight rates to take account of increased bunker costs, a currency adjustment factor, (g) lien, (h) insurance, (i) force majeure and other matters.
The Agreement contained an arbitration and jurisdiction clause which provided for LMAA arbitration for claims up to $ 125,000, and for larger disputes to be submitted to the High Court as follows:
“10 Arbitration of Disputes
In case of dispute, the parties agree to seek for an amicable agreement. If they do not reach to such agreement in a delay of one month after the event, each party shall appoint an arbitrator….
[There then follow the provisions about arbitrating claims up to $ 125,000]
Any dispute where the amount in dispute exceeds USD 125,000 …… shall be submitted to the High Court of Justice of London. The Defendant shall, within 14 days of receipt of a request to do so, instruct solicitors to accept service on its behalf of
proceedings in the High Court of Justice and file an acknowledgement of service.”
In his witness statement of 29 th September 2009 Mr Daudet records that all Socofi's fruit shipment from the Ivory Coast was undertaken by a company called LV Fruits on the basis of agreed rates per pallet to Mediterranean and Northern European ports. LV Fruits shipped the produce and the cost of the service was invoiced by LV Fruits to Socofi. According to him “In practice, therefore, the OCAB/AEL contract, as signed b y DAM, was not in fact applied to any shipments of DAM's produce.” In his witness statement of 11 th November he refers to the contract as being “de nom seulement” since everyone knew that DAM had agreed to sell all its produce to Socofi on FOB terms.
According to the evidence of Mr Christopher Larkin, the Managing Director of AEL, that is inaccurate. The true position is that prior to July 2007 Socofi purchased DAM's fruit pursuant to the Socofi/DAM purchase agreement; DAM shipped it on board AEL's vessels as it was bound to do under the AEL/DAM Agreement. AEL carried the fruit to Europe. LV Fruits provided freight forwarding and stevedoring services at French discharging ports pursuant to some arrangement with Socofi. LV Fruits then rendered a global invoice to Socofi both for its own services and for the sea carriage provided by AEL. Socofi paid that global invoice, LV Fruits was named as the consignee in the bills to ensure that the fruit was not released to Socofi before the freight and associated charges had been paid by Socofi. AEL did not deal directly with Socofi. It invoiced LV Fruits and LV Fruits paid AEL out of sums received from Socofi.
AEL is a subsidiary of Compagnie Fruitiere, a major producer and distributor of fruit based in Marseilles. Transit Fruits is another subsidiary of Compagnie Fruitiere.
In July 2007 Socofi's relationship with LV Fruits came to an end. On 20 th July 2007 LV Fruits notified DAM by fax that it had decided to stop providing freight forwarding services for DAM/Socofi because of the sums owed to it by Socofi on DAM's behalf (“importants impayés de la socieée SOCOFI intervenant pour le compte de la societé DAM”). On the same day Mr Daudet informed the President of OCAB of this and asked him to inform AEL that Socofi would be willing to pay AEL direct the freight due upon shipments made by DAM (“le fret maritime du au titre des chargement effectués par la societe Plantations DAM”) and requesting relevant contact details.
According to Mr Daudet Mr de Frémont of Transit Fruits got in touch with Socofi to inquire whether the Compagnie Fruitiere group could provide the services which Socofi was looking for. A meeting took place on Friday 27 th July 2007 at Compagnie Fruitiere's offices in Marseilles attended by Mr Daudet and other representatives of Socofi together with the President (Mr Robert Fabre) and Director General (Mr Frederic Fabre) of Compagnie Fruitiere, and for part of the meeting Mr van Opstal of AEL. In the course of that meeting there was a discussion of the services Socofi was looking for and the prices which the group might be able to offer. Compagnie Fruitiere confirmed that it would be able to provide the service needed to Socofi for the same prices as those agreed with OCAB for all OCAB members. There was no mention of the arbitration/jurisdiction clause in the AEL/DAM agreement.
On Monday 30 th July 2007 Mr Daudet of Socofi sent an e-mail in French to Mr de Frémont of Transit Fruits. Mr Frederic Fabre had said that Transit Fruits would be happy to confirm their quote and had suggested corresponding with Mr de Frémont direct. The e-mail referred to the Socofi/DAM Purchase Agreement and to the meeting the previous Friday and went on to say:
“We can confirm that we are the sole importer of merchandise (fresh pineapples) produced by [DAM] in Cote d'Ivoire, and that we purchased said merchandise at FOB Abidjan prices under the terms of an agreement dated 1 January 2005….
In a letter sent to us by e-mail and fax on 20 July 2007, LV FRUITS informed us that it intends to cease providing all services on our behalf without...
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