Compania Sud Americana v Hin-Pro International Logistics Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cooke |
| Judgment Date | 14 October 2014 |
| Neutral Citation | [2014] EWHC 3632 (Comm) |
| Docket Number | Claim No: 2013 Folio No 1248 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 14 October 2014 |
[2014] EWHC 3632 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Rolls Building,
110 Fetter Lane,
London EC4 1NL
Mr Justice Cooke
Claim No: 2013 Folio No 1248
Miss P Melwani QC (instructed by Stephenson Harwood LLP) appeared on behalf of the Claimant.
Tuesday, 14 October 2014
This is the trial of the claimant CSAV's claim for a permanent anti-suit injunction and for declarations and damages in respect of alleged breaches of the defendant, Hin-Pro, of a jurisdiction clause contained in bills of lading, by taking proceedings in China. Hin-Pro has not attended the trial. It has chosen to ignore the proceedings, and indeed the related action in 2012, and is in breach of various court orders. In the context of the 2012 action, it was found to be in contempt of court. Some 2 weeks ago, on Friday 25 September, solicitors acting for the defendant served an application seeking an adjournment of today's trial. On 28 September the defendant purported to file an acknowledgment of service, some 10 months out of time. The application for an adjournment was heard on 3 October, and dismissed. Permission was given to Hin-Pro to file an acknowledgment of service late and to make submissions at the trial, provided it satisfied various conditions. All, save one of those conditions, were not met. On 8 October, some 3 1/2 months after it were due to do so, Hin-Pro served an affidavit of assets, that affidavit having been ordered by Walker J when granting a worldwide freezing order in June 2014. In essence, what was said in that affidavit relating to assets was that the only assets that Hin-Pro had were the sums paid by CSAV in respect of a judgment in China, and various rights of action in other Chinese actions against CSAV.
I have considered the particulars of claim, which are verified by a statement of truth, and evidence put before me under the Civil Evidence Act, which consists of 5 witness statements, including two from Mr Wang, the claimant's Chinese lawyer, one from Mr Rigden-Greene, a solicitor acting for the claimants in Hong Kong, and statements from the Venezuelan lawyer who gave evidence in China in some of the proceedings there. I have also read the statement of Mr Nelson Bolivar of Logistica Maritima, the claimant's port agents in Venezuela, which relates to the compulsory practice of discharging cargo to the authorised nationalised storage agents at Venezuelan ports, absent an application for direct discharge to receivers, which could only be justified in specific circumstances, which are of no application here.
The evidence before me shows that Hin-Pro is a freight forwarder registered in Hong Kong. The disputes between CSAV and Hin-Pro concern allegations of mis-delivery. Hin-Pro alleges that CSAV wrongly delivered cargo without production of original bills of lading in various ports in Venezuela. The bills of lading in question were all CSAV bills, showing shipments from China to Venezuela, either to the port of Puerto Cabello, or the port of La Guaira. The bills were straight bills naming Raselca Consolidadores CA as consignee. Some of those bills named Hin-Pro as shipper, but others named different companies, namely Hefei Hauling Co Limited and Moonlight Trading. For those bills of lading Hin-Pro nonetheless claims in China to be an original party to the contract of carriage contained in the bill. Copies of the 70 bills of lading in respect of which Hin-Pro has commenced proceedings in China have been produced in evidence to this court.
It is CSAV's position in the Chinese proceedings that no mis-delivery took place, because Venezuelan law required that cargo should be delivered to the storage provider authorised by the Venezuelan Government. The exception to the rule arises where a direct discharge or urgent shipment request is made, but that did not occur here, and the goods did not in any event qualify for such direct discharge. Thus, in the absence of that occurring, CSAV were legally obliged under Venezuelan law to deliver the goods to the authority which then had sole control over the goods. The bills of lading issued by the claimant specifically provide for this eventuality and the claimant's case is that not only was delivery so made, but that all the goods were in fact on-delivered to Raselca, the claimant's agents in Venezuela, and then on-delivered by them to the buyers of the cargo.
It is, of course, not for this court to make any determination in relation to the substance of the dispute between the parties as matters stand, since what is sought from this court is an injunction in relation to the Chinese proceedings, which are said to have been begun in breach of the jurisdiction clause.
A schedule summarising the bills of lading and claims made by Hin-Pro in China has been put before me. The amounts claimed involve the value of the cargo carried under the bills, the freight which Hin-Pro claims it was entitled to receive, and a figure in Chinese currency claimed as an exchange rate loss, port and other charges and attorney's costs. The biggest sum by far is the alleged value of the cargo at approximately $24 million.
Hin-Pro are, as I have already said, freight forwarders. It is hard, therefore, to see how they could be the sellers of the goods, or to have suffered the loss claimed in respect of the value. It is the claimant's case that the actual sellers were Chinese companies, who sold on a C & F basis, and who have in fact been fully paid for the goods. The claim made in China is, therefore, said to be dishonest.
In 2012 Hin-Pro commenced proceedings in the Wuhan Maritime Court against CSAV under 5 bills of lading. CSAV had already intimated that to do this would be a breach of the jurisdiction clause in those bills, which took the same form as that which is in issue before me. Hin-Pro said that they would withdraw the Wuhan proceedings if the sum of $1.8 million was paid, that sum representing the amounts it was entitled to by way of unpaid freight across all 75 bills of lading, so it was said. In November 2012, CSAV commenced action 2012 Folio No 1519 in this court, seeking an anti-suit injunction prohibiting Hin-Pro from pursuing or taking any further steps in the Wuhan proceedings on the basis of a breach of the jurisdiction clause in the bills of lading. Burton J granted an ex parte interim injunction, and that was continued as an inter partes hearing by order of Andrew Smith J at the end of November 2012. Hin-Pro did not in fact attend the inter partes hearing in London, and did not comply with the order. Instead, it progressed the matter in Wuhan. In consequence, there was a committal hearing here on 21 March 2013, at which it was found that both Hin-Pro and its sole director, Miss Sui Wei were in contempt of court. Miss Wei was sentenced to imprisonment for 3 months, and permission was given for writs of sequestration to be issued against Hin-Pro. Miss Wei has not, so far as is known, set foot within this country, and has not been apprehended.
Between May and July 2013, regardless of this prior history, Hin-Pro commenced 23 sets of proceedings in Guangzhou, Qingdao, Tianjin, Ningbo and Shanghai in respect of a further 70 bills of lading. The statements of claim in those matters have been put before the court. In each, Hin-Pro alleges that it is the named shipper on the bill, or, alternatively, that "Although not specified as the shipper on the bill, it is the statutory and actual shipper" (this, of course, in translation). It asserts a contract with the defendant on the terms of the bills of lading. CSAV challenged the jurisdiction of the court in China, but its challenges have so far been dismissed, since Chinese courts apparently disregard agreed jurisdiction clauses where the circumstances of the case have little or nothing to do with the agreed jurisdiction.
The current action in this country was then begun by CSAV, and permission to serve out of the jurisdiction was granted. A claim form was served at Hin-Pro's offices in Hong Kong on 10 October 2013. The time limit for service was 31 days. As I have already indicated, no acknowledgment of service was filed within that time, nor until a point just recently in connection with the application made to the court for an adjournment of today's trial.
On 10 October an application notice was served on Hin-Pro seeking an inter partes anti-suit injunction in relation to the 2013 proceedings commenced in China. No response was received to the application notice, and no evidence filed by Hin-Pro. On 29 November 2013 Blair J granted an inter partes anti-suit injunction in this action. Once again, however, that injunction has been ignored
On 27 May 2014 the Ningbo Court issued a judgment in one of the cases before it. That came as something of a surprise to CSAV, which had only recently been provided with documents which it considered were fraudulent, and it had understood that there would further disclosure of evidence and further submissions in relation to them before any judgment was given. However, the Chinese court awarded damages for the value of the cargo claimed, some $360,000, and legal costs in Chinese currency of 100,000. However, the court disallowed Hin-Pro's claim for freight on the basis that they were sellers on C & F terms. The sums awarded by the court in that action have been paid by CSAV to Hin-Pro. The decision, and that of an appeal court, is subject to challenge in the Chinese...
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