Deep Sea Maritime Ltd v Monjasa A/S
| Jurisdiction | England & Wales |
| Judge | David Foxton |
| Judgment Date | 15 June 2018 |
| Neutral Citation | [2018] EWHC 1495 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Claim No: CL-2017-000100 |
| Date | 15 June 2018 |
[2018] EWHC 1495 (Comm)
David Foxton QC
(sitting as a Deputy Judge of the High Court)
Claim No: CL-2017-000100
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
COMMERCIAL COURT (QBD)
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Nevil Phillips and Tom Bird (instructed by Campbell Johnston Clark) for the Claimant
Stephen Kenny QC and James Watthey (instructed by E.G. Arghyrakis & Co.) for the Defendant
Hearing date: 24 May 2018
Approved Judgment
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.
David Foxton QC (sitting as a Deputy Judge of the High Court):
(1) Introduction
This case, which comes before the Court on the Claimant's (“Owners”) application for summary judgment under CPR Part 24, raises two important issues in relation to the law of carriage of goods by sea.
i) The first is whether the time bar created by Article III Rule 6 of the Hague Rules applies to claims for wrongful misdelivery, where the shipowner has delivered the cargo to a third party without production of the bill of lading.
ii) The second is whether the requirement in Article III Rule 6 that “suit is brought within one year after delivery of the goods or the date when the goods should have been delivered” can ever be satisfied if proceedings are commenced in the courts of one country, when the bill of lading incorporates a clause from a charterparty giving exclusive jurisdiction to the courts of another country.
The issues arise in proceedings commenced by Owners against the Defendant (“Monjasa”) for a declaration that Owners are not liable to Monjasa as regards claims under or in relation to the bill of lading under which the cargo in question was carried. Summary judgment is sought in respect of one only of the grounds on which Owners contend that they are entitled to a declaration of nonliability, namely that any claims have been discharged pursuant to Article III Rule 6 because suit was not brought within the one year period provided for in that Rule.
Owners were represented before me by Mr Nevil Phillips and Mr Tom Bird, and Monjasa by Mr Stephen Kenny QC and Mr James Watthey.
(2) The background
Owners owned and operated the vessel ALHANI (“the Vessel”), an oil product tanker. By a bill of lading dated 12 November 2011 (“the Bill”), Owners acknowledged shipment on board the vessel of 4,844.901mt of bunker fuel, of which some 499mt was bunker fuel for the Vessel, and the balance (“the Cargo”) was the subject-matter of the carrying voyage. Monjasa was the shipper of the Cargo, and the Bill stated the carriage to be from Lome, Togo to Cotonou, Benin; although it is common ground that discharge of the Cargo occurred off-shore Lome. Owners suggested that the Bill had transposed the points of departure and arrival, but Monjasa did not admit this. In the event nothing turned on this issue.
Clause 1 of the Bill, printed on the reverse in the usual way, provided:
“All terms and conditions, liberties and exceptions of the Charter Party dated as overleaf, including the Law and Arbitration Clause are herewith incorporated”.
The Bill did not further identify the charterparty referred to, but it is now common ground that this was a reference to a time charterparty in amended Shelltime 4 form dated 7 July 2011 (“the Charterparty”) between Owners and Unitaes Energy Sources Company Limited (“Unitaes”). By Addendum No. 1 to the Charterparty, a company called Babecca Business Links Limited (“Babecca”) agreed to perform the obligations of Unitaes under the Charterparty.
Clause 46 of the Charterparty provided:
“THIS CHARTER SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH ENGLISH LAW AND ANY DISPUTE ARISING OUT OF OR IN CONNECTION WITH THIS CONTRACT SHALL BE REFERRED TO HIGH COURT IN LONDON, ENGLAND. IN CASES WHERE NEITHER CLAIM NOR ANY COUNTERCLAIM EXCEEDS THE SUM OF UNITED STATED (sic) DOLLARS 50,000 (OR SUCH OTHER SUM AS THE PARTIES MAY AGREE) THE ARBITRATION SHALL BE CONDUCTED IN ACCORDNCE WITH THE LMAA SMALL CLAIMS PROCEDURE CURRENT AT THE TIME WHEN THE ARBITRATION PROCEEDINGS ARE COMMENCED”.
It is also now common ground that the words in clause 1 of the Bill were sufficient to incorporate clause 46 (“the Exclusive Jurisdiction Clause”) in the Charterparty into the Bill.
Clause 2 of the Bill provided:
“… (2) General Paramount Clause. The Hague Rules contained in the International Convention for the Unification of certain rules relating to Bills of Lading dated Brussels the 25 th August 1924 as enacted in the country of shipment shall apply to this Bill of Lading. When no such enactment is in force in the country of shipment, the corresponding legislation of the country of destination shall apply, but in respect of shipments to which no such enactments are compulsorily applicable, the terms of the said Convention shall apply.
(b) Trades where Hague-Visby Rules apply. In trades where the International Brussels Convention 1924 as amended by the Protocol signed at Brussels on February 23 rd 1968 – the Hague-Visby Rules – apply compulsorily, the prvisions [sic] of the respective legislation shall apply to this Bill of Lading.
(c) The Carrier shall in no case be responsible for loss of or damage to the cargo howsoever arising prior to loading into and after discharge from the Vessel or while the cargo is in the charge of another Carrier nor inrespect [sic] of deck cargo or live animals”.
Neither Benin nor Togo are parties to the Hague or Hague-Visby Conventions. Accordingly the Hague Rules as set out in the 1924 Convention were incorporated into the Bill, taking effect as a matter of contract.
Monjasa sold the Cargo to Unitaes under a contract of sale dated 28 October 2011 which contained a retention of title clause. A letter of credit was established in favour of Monjasa in relation to the contract of sale, but payment under that letter of credit was declined due to alleged documentary discrepancies. Monjasa contends that property in the Cargo never passed to Unitaes, due to the operation of the retention of title clause. On 16 November 2011, Babecca entered into a contract to sell the Cargo back to Monjasa (possibly acting as agent for Unitaes). Monjasa's complaint is that it “bought” the Cargo back in ignorance of the fact that property in the Cargo had never passed from it to Unitaes.
On 18 November 2011, Owners discharged the Cargo through a ship-to-ship transfer into the “MARIDA MARGUERITE” off Lome, they say under instructions given pursuant to the Charterparty, without production of the Bill. Owners accept that there is an arguable case that the Cargo was not delivered to Monjasa. Monjasa contends that Unitaes could not have purported to sell Monjasa's own property back to if it Unitaes had not been able to take delivery of the Cargo without production of the Bill.
Monjasa have commenced four sets of proceedings in relation to the alleged non-delivery of the Cargo.
The first set of proceedings was before the Courts of First Instance in Bizerte, Tunisia (“the Tunisian Proceedings”). The Tunisian Proceedings were commenced by a motion for an order for the arrest of the Vessel, which order was granted on 2 April 2012. The Vessel was arrested on 20 April 2012. In addition to the arrest a claim was brought against Owners and the Master. Monjasa asserted that the Tunisian courts had jurisdiction under Article 106 of the Tunisian Maritime Commercial Code and Article 5 of the Code of Private International Law. Owners challenged jurisdiction, but not by reference to the Exclusive Jurisdiction Clause (there being some suggestion that if the Tunisian courts did otherwise have jurisdiction, the Exclusive Jurisdiction Clause would not have been given effect because it was contrary to ordre publique). A bank guarantee was drawn up and issued by Owners on 12 December 2012 which I am told provided that the guarantee was only payable on settlement or a final and unappealable decision of a competent Tunisian court. The Tunisian court ordered the release of the Vessel on 6 March 2013. It is clear from Monjasa's motion for an order of arrest that it was aware that there was a charterparty to which Owners were parties, and that the Bill referred to a charterparty. However, it is Monjasa's case that the Charterparty was first disclosed to a court-appointed expert at some point between July and December 2014 and Monjasa says it first saw the Charterparty in January 2015.
By a judgment dated 7 July 2015, the Tunisian Court dismissed the substantive proceedings for want of jurisdiction. This decision was not reached by reference to the Exclusive Jurisdiction Clause, but because none of the grounds for establishing Tunisian jurisdiction under the Tunisian Maritime Commercial Code or the Code of Private International Law were made out. The evidence before me was to the effect that this decision was upheld on appeal on 28 November 2016, although no written record of that decision was in evidence. Evidence was adduced at a late stage to the effect that Monjasa had filed a further Tunisian appeal on 11 May 2018 which is said to be still within time and still pending.
Monjasa also commenced proceedings against Owners before the Wuhan Maritime Court in the People's Republic of China. The evidence suggested that Monjasa withdrew its claims against Owners on 18 October 2012 after it had reached a settlement with Unitaes and Huaming (the party who opened the letter of credit) who agreed to pay for the Cargo. When Unitaes and Huaming failed to pay the amount due under the settlement, Monjasa obtained judgment against them, but that judgment is currently under appeal.
Monjasa commenced a...
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