Bouygues Offshore S.A. v Caspian Shipping Company (No. 5)
| Jurisdiction | England & Wales |
| Judge | Timothy Walker J. |
| Judgment Date | 23 May 1997 |
| Date | 23 May 1997 |
| Court | Queen's Bench Division (Admiralty) |
Queen's Bench Division (Admiralty Court).
Timothy Walker J.
David Steel QC and Simon Gault (instructed by Clyde & Co) for Bouygues Offshore SA.
Richard Southern (instructed by Middleton Potts) for Portnet.
Angus Glennie QC and Clare Ambrose (instructed by Thomas Cooper & Stibbard) for Ultisol.
Nicholas Hamblen QC (instructed by Edwin Coe) for Caspian.
The following cases were referred to in the judgment:
Aggeliki Charis Compania Maritima SA v Pagnan SpA (“The Angelic Grace”) [1995] 1 L1 Rep 87.
Aratra Potato Co Ltd v Egyptian Navigation Co (“The El Amria”) [1981] 2 L1 Rep 119.
Attorney General v Arthur Andersen & Co (UK) [1988] ECC 224.
Bouygues Offshore SA v Caspian Shipping Co [1997] CLC 1,443.
Caltex Singapore Pte Ltd v BP Shipping LtdUNK [1996] 1 L1 Rep 286.
Caspian Basin Specialised Emergency Salvage Administration v Bouygues Offshore SA [1997] CLC 1,463.
Chanel Ltd v F W Woolworth & Co LtdWLR [1981] 1 WLR 485.
Continental Bank NA v Aeakos Compania Naviera SAWLR [1994] 1 WLR 588.
Mahkutai, The [1996] CLC 799; [1996] AC 650.
Société Nationale Industrielle Aérospatiale v Lee Kui JakELR [1987] AC 871.
Ultisol Transport Contractors Ltd v Bouygues Offshore SAUNK [1996] 2 Ll Rep 140.
Anti-suit injunction — Stay of proceedings — Forum non conveniens — Shipping — Barge under tow lost off Cape Town — Barge owner took proceedings in South Africa and England against owners and charterers of tug — Charterers obtained injunction against barge owners enforcing English jurisdiction clause in towage contract — Barge owner took proceedings in South Africa against South African harbour authority — Harbour authority joined owners and charterers of tug in South African proceedings — Owners and charterers of tug joined Harbour authority as third party to English proceedings — Owners and charterers obtained declarations of right to limit in England — Barge owners applied to discharge antisuit injunction and to stay own proceedings against tug owners and owners' counterclaim — Whether there had been sign$cant change of circumstances — Whether anti-suit injunction should be discharged — Whether plaintiff had shown that justice requiredproceedings to be stayed.
These were applications to discharge an anti-suit injunction and by the plaintiff to stay English proceedings in favour of proceedings in South Africa.
A French corporation, “BOS”, engaged the services of the tug, Tigr, for the towage of BOS's barge from the Congo to Cape Town. The time charterers of Tigr were “Ultisol” and the owners were “Caspian”. The barge grounded off Cape Town while in the course of towage and was lost.
BOS (and its insurers) took proceedings in South Africa against both Caspian and Ultisol alleging misrepresentation and negligence and claiming damages for loss of the barge, etc. Caspian asked the court to decline jurisdiction on the ground that there was an exclusive English jurisdiction clause in the towage contract between BOS and Ultisol and a Himalaya clause which entitled Caspian to rely on the exclusive jurisdiction clause. BOS commenced an English Admiralty action in personam against Caspian and Ultisol, making substantially the same allegations as in South Africa, to preserve time in case Caspian succeeded in its attack on South African jurisdiction.
Ultisol obtained an injunction from Clarke J enforcing the English exclusive jurisdiction clause in the towage contract and restraining BOS's South African action against Ultisol. However, Morison J rejected Caspian's application for a similar injunction holding that Caspian was not entitled to rely on the English jurisdiction clause, and that the natural forum for the dispute between BOS and Caspian was South Africa and not England.
BOS also commenced proceedings in South Africa against the Cape Town port authority, “Portnet”, in negligence. Portnet served a defence denying negligence, obtained the attachment of the Tigr and the bunkers on board, and joined Caspian and Ultisol as third parties. Caspian and Ultisol then joined Portnet as third party in the English proceedings under O.11, r. 1(1)(c) (see [1997] CLC 1,443).
Ultisol commenced a limitation action in the English Admiralty Court in which, without admitting liability, it claimed to be entitled to limit its liability, “if any” under English law, and paid £537,717.58 into court as the limitation fund. The defendants were BOS and “all other persons claiming or being entitled to claim damages by reason of” the loss of the barge. Caspian then started its own limitation proceedings against BOS “and all other persons claiming” etc., seeking to limit its liability “if any” to the fund constituted by Ultisol.
BOS sought to stay the limitation actions until either liability was established or conceded in the case of Ultisol, or jurisdiction in South Africa was finally determined in the case of Caspian. BOS wished to have limitation determined in South Africa under the 1957 international convention relating to the limitation of liability of owners of sea-going ships; Ultisol and Caspian wished to have limitation determined in England under the 1976 convention on limitation of liability for maritime claims, enacted in English law by the Merchant Shipping Acts 1979 and 1995 (which significantly raised the limit of liability over that in the 1957 convention but made it much harder for a claimant to break the limit). Rix J granted declarations to Ultisol and Caspian that they were entitled to limit, see [1997] CLC 1,463.
BOS then applied to discharge the anti-suit injunction granted by Clarke J in favour of Ultisol, and to stay its own claim against Caspian and Caspian's counterclaim.
Held, dismissing BOS's applications:
1. The matters urged by BOS did not constitute a significant change in circumstances for the purposes of triggering the jurisdiction to reopen the injunction granted by Clarke J, since Clarke J on all the points contemplated a possibility which had in fact occurred. The prospect of the uncertainty generated by the reopening of anti-suit injunctions long after they had been granted on the basis that events had not turned out precisely as the original judge might have contemplated (or wished) was deeply unattractive.
2. In any event the injunction should not be discharged. The proliferation of parallel proceedings in South Africa and in England had as its root cause the determination of BOS to pursue proceedings in South Africa to take advantage of the South African limitation regime. Clarke J was right that against that background the multiplicity of proceedings was of little or no weight in addressing the question whether BOS could escape its contract. All the disputes could be tried in one forum, if BOS joined Portnet as a co-defendant in England. Ultisol should be permitted to enforce its contract, and Clarke J was right to hold that it would not be just to require Ultisol to face a claim by BOS other than in the agreed jurisdiction, where its right to limit would be governed by the 1976 convention.
3. Justice did not require that BOS should be allowed to stay its own claim. First, for Caspian to be deprived of an established right to limit would be to deprive them of a legitimate advantage. Second, if the injunction remained in place, the interests of justice required that the availability of the English proceedings should be utilised. Third, the English proceedings being a longstop did not permit BOS to conduct the action to its own timetable. Fourth, if BOS's claim against Caspian in England was stayed, Caspian would be unable to bring a contribution claim over against Ultisol in those proceedings.
Timothy Walker J:
This is the fifth round of applications in the English Admiralty Court in exceedingly complex litigation arising out of the stranding of a derrick lay barge (“the barge”) on the rocks off Cape Town on 26 June 1994. Bouygues Offshore SA (“BOS”) were the owners of the barge. Ultisol Transport Contractors Ltd (“Ultisol”) were the charterers of the tug, which was hired by BOS to tow the barge from the Congo to Capetown. The Caspian entities (“Caspian”) were the owners of the tug. Portnet is the Cape Town port authority. The barge was a total loss.
The towage contract under which BOS hired the tug from Ultisol was in the BIMCO Towcon form in worldwide use by many of those engaged in international towage. It contained a law and jurisdiction clause referring all disputes on the merits (as distinct from proceedings to obtain security) to the jurisdiction of the High Court in London.
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