Bouygues Offshore SA v Caspian Shipping Company [QBD (Admiralty)]
| Jurisdiction | England & Wales |
| Judge | Colman J |
| Judgment Date | 26 March 1997 |
| Court | Queen's Bench Division (Admiralty) |
| Date | 26 March 1997 |
Queen's Bench Division (Admiralty Court)
Colman J.
Simon Gault (instructed by Clyde & Co) for the plaintiffs, Bouygues.
Nicholas Hamblen QC (instructed by Edwin Coe) for the second and fourth defendants, Caspian.
Angus Glennie QC and Clare Ambrose (instructed by Thomas Cooper & Stibbard) for the fifth defendant, Ultisol.
Stephen Tomlinson QC and Richard Southern (instructed by Middleton Potts) for the third party, Portnet.
The following cases were referred to in the judgment:
Aggeliki Charis Compania Maritima SA v Pagnan SpA (“The Angelic Grace”) [1995] 1 Ll Rep 87.
Aratra Potato Co Ltd v Egyptian Navigation Co (“The El Amria”) [1981] 2 Ll Rep 119.
Caspian Basin Specialised Emergency Salvage. Administration v Bouygues Offshore SA [1997] CLC 1463.
Continental Bank NA v Aeakos Compania Naviera SAWLR [1994] 1 WLR 588.
Golden Ocean Assurance Ltd v Martin (“The Goldean Mariner”) [1990] 2 Ll Rep 215.
Societe Nationale Industrielle Aerospatiale V Lee Kui JakELR [1987] AC 871.
Spiliada Maritime Corp v Cansulex LtdELR [1987] AC 460.
Ultisol Transport Contractors Ltd v Bouygues Offshore SAUNK [1996] 2 Ll Rep 140.
Virgo Steamship Co SA v Skaarup Shipping Corp (“The Kapetan Georgis”)UNK [1988] 1 Ll Rep 352.
Service out of jurisdiction — Necessary or proper party — Forum non conveniens — Shipping — Barge under tow lost off Cape Town — Barge owner took proceedings in South Africa against owners and charterers of tug — Barge owner took proceedings in England against owners and charterers of tug to preserve time — 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 applied for leave to join Harbour authority as third party to English proceedings — Whether there should be leave to. Serve third party notices out of jurisdiction — Whether harbour authority was necessary and proper party — Whether England or South Africa appropriate forum — Materiality of duplication of proceedings — Rules of the Supreme Court, O. 11, R. 1(1)(c).
These were applications under RSC, 0. 12, r. 8 for the setting aside of orders for service of English proceedings outside the jurisdiction.
The plaintiff, “BOS”, a French corporation, had engaged the services of the fifth defendant, “Ultisol”, to provide the tug, Tigr, for the towage of BOS's barge from the Congo to Cape Town. Ultisol were time charterers of Tigr from the owners, “Caspian”, the second and fourth defendants. The barge grounded off Cape Town while in the course of towage and was lost.
BOS, together with the hull and machinery underwriters (“CESAM”), took proceedings in the South African courts (“action AC 10/95”) 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 action AC 10/95, 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 and CESAM from pursuing action AC 10/95 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 and CESAM had commenced proceedings in South Africa (action AC 102/95) against the South African harbour 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 in action AC 102/95.
Finally, Ultisol commenced a limitation action in the English Admiralty Court and paid £537,717.58 into court as the limitation fund. Caspian then started its own limitation proceedings and applied for a stay of all other proceedings against it.
Caspian and Ultisol obtained leave ex parte to serve third party notices in the English proceedings on Portnet in South Africa as a necessary or proper party under 0. 11, r. 1(1)(c). Portnet applied to set aside the ex parte orders on the ground that South Africa was the appropriate forum for the trial of the third party proceedings and that although duplication of proceedings was inevitable, to permit the joinder of Portnet would simply increase the risk of inconsistent decisions in different jurisdictions.
Ultisol argued that the forum in which the case might be tried more “suitably for the interests of all parties and the ends of justice” was England. Since it was only being sued by BOS in England, it was only in England that Portnet could be joined by Ultisol in order for Ultisol to recover contribution or indemnity in respect of that claim. Portnet's evidence and discovery should be before the court trying the issue of Ultisol's liability to BOS. Furthermore, if Portnet was not a party to the English proceedings, it would not be bound by a conclusion of the English courts (that Ultisol was liable to BOS). If the South African courts then held that Portnet was solely liable, Ultisol could not recover a contribution from Portnet.
Caspian too argued that England was the appropriate forum. It was in the interests of justice that Caspian should not be left in the position where it could be sued by BOS in England but had to litigate contribution and indemnity against Portnet in South Africa but where Portnet would not be party to the English proceedings so that its evidence was available in resolving issues raised in the claim by BOS. If Portnet were not joined in the English action, two to rials were inevitable, whereas if they were joined two trials were not inevitable.
Held, dismissing Portnet's application (but staying the coming into effect of the orders on the applications for a period of 28 days to enable BOS to consider whether it should apply to the Court of Appeal for leave to appeal out of time against the order of Clarke J enforcing the English jurisdiction clause in favour of Ultisol):
1. Portnet was a necessary and proper party as a third party to the proceedings against Ultisol. It was necessary to choose between the alternatives of (1) minimising the availability of the English proceedings for resolving the issues between the four parties the subject of the South African proceedings and thereby leaving Ultisol exposed to the risk of acute procedural prejudice and to the potential injustice of inconsistent decisions, of (2) maximising the availability of the English proceedings by the joinder of Portnet and thereby exposing Portnet to serious procedural prejudice and to the potential injustice of inconsistent decisions. There was clearly a very strong argument that in those circumstances the fact that South Africa was the centre of gravity of the disputes affecting Portnet and the place where, as a matter of trial logistics, many of the issues in the actions could be most conveniently tried and that Portnet had no connection whatever with England should tip the discretionary balance in favour of setting aside the joinder of Portnet. However given that Ultisol could not be sued in South Africa because of the injunction, there was a better chance of all the proceedings ultimately being brought into one forum if Portnet remained a third party to the English proceedings than if it did not. The joinder of Portnet involved the exercise of a doubly exorbitant jurisdiction and would involve it in litigation in a forum which was highly inconvenient, but the ultimate objective of achieving amalgamation of all the litigants in one forum was so important in the interests of justice that it should prevail over the combined weight of the countervailing considerations.
2. Caspian was in a different position from Ultisol because it was being sued by BOS in South Africa. To permit its joinder of Portnet would be to multiply the number of parallel proceedings without providing Caspian with any substantial advantage as regards avoidance of inconsistent judgments as between the determination of its liability, in one jurisdiction and the determination of its entitlement to contribution or indemnity in another jurisdiction. Nevertheless, if Portnet was not joined by Caspian, but was joined by Ultisol, the result would be to encourage dislocation of contribution proceedings and to discourage BOS from amalgamating its claims in the English courts. Having concluded that Ultisol's joinder of Portnet should stand, it was in the interests of justice and of the effective international management of the proceedings that Caspian's order for joinder of Portnet should also stand.
Colman J:
Because of the international character of the work of the Commercial Court and the Admiralty Court, applications under RSC, 0. 12, r. 8 for the setting aside of orders for service of English proceedings outside the jurisdiction are extremely prevalent in both courts. Such applications often involve relatively complex issues both as to jurisdiction and as to discretion. Application of forum non conveniens principles not infrequently involves more or less finely balanced evaluation of many competing factors. There can, however, have been few applications which have involved more complex a factual background or more finely balanced...
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