Golden Endurance Shipping SA v RMA Watanya SA and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Phillips |
| Judgment Date | 15 August 2016 |
| Neutral Citation | [2016] EWHC 2110 (Comm) |
| Docket Number | Case No: CL-2014-000679 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 15 August 2016 |
[2016] EWHC 2110 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Mr Justice Phillips
Case No: CL-2014-000679
Michael Collett QC (instructed by Jackson Parton Solicitors) for the Claimant
Jessica Wells (instructed by Holman Fenwick Willan LLP) for the First to Third Defendants
Hearing dates: 23 February, 27 July and 3 December 2015, further written submissions 13 and 28 April 2016
Approved Judgment
The dispute underlying these proceedings concerns damage to a cargo of 6,489.95 mt of wheat bran pellets shipped to Morocco on the claimant's vessel, Golden Endurance ("the Vessel"), in June and July 2013. The cargo was loaded at Owendo (in Gabon), Lomé (in Togo) and Takoradi (in Ghana) and was the subject of three separate bills of lading, one issued at each of those ports, each providing that freight was payable " as per Charter-Party dated 11 June 2013".
On the Vessel's arrival at Casablanca on 2 August 2013 the cargo was found to be damaged by the presence of live insects and wet and black mould. Discharge commenced on 27 August but stopped on 31 August 2013 when approximately 4,168 mt of the cargo remained on board.
The first to third defendants ("the Insurers") are the subrogated insurers of the fourth defendant, the cargo receiver ("the Receiver"). On 2 September 2013 the Insurers procured that the Vessel was arrested, seeking security for US$1,010,713.32 in respect of damage to the cargo, security which the claimant duly provided on 30 September 2013 in the form of a guarantee from Moroccan Bank for External Commerce ("MBEC"). The Vessel sailed from Casablanca on 6 October 2013. The remaining cargo was subsequently discharged and sold at Cadiz.
The dispute gave rise to a multiplicity of proceedings. On 25 March 2014 the Insurers brought a cargo claim against the Master of the Vessel and MBEC in the Commercial Court of Casablanca ("the Moroccan proceedings"). On 4 July 2014, the claimant commenced these proceedings against the Insurers and the Receiver, seeking a declaration of non-liability, damages and an anti-suit injunction. On 14 October 2014 the claimant commenced arbitration proceedings in London against the Insurers and the Receiver in respect of the cargo carried under the Lomé bill.
On 25 November 2014 Burton J (i) granted an anti-suit injunction in respect of the cargo carried under the Lomé bill, restraining proceedings other than before arbitrators in London, (ii) dismissed the Insurers' challenge to the jurisdiction of the English court in respect of the claims relating to the cargo carried under the Owendo and Takoradi bills, but (iii) refused to grant an injunction to restrain the Moroccan proceedings in so far as they related to the cargo carried under those two bills: see The Golden Endurance [2014] 1 Lloyds' Rep 266. As Burton J recognised, with regret, the result was that all three sets of proceedings remained on foot (see [47]).
On 24 February 2015 judgment was pronounced in the Moroccan proceedings, awarding the Insurers damages of 8,439,943.83 Dirhams in respect of the cargo carried under the Owendo and Takoradi bills ("the Moroccan Judgment"). The Moroccan Judgment was confirmed in writing on 10 April 2015. An appeal by the Master of the Vessel and the claimant was rejected on 17 March 2016 as being out of time (in the case of the Master) and by a non-party (in the case of the claimant).
This judgment determines the following:
i) the preliminary issue of whether the Moroccan Judgment should be recognised by this court, so that the claimant is estopped per rem judicatam from pursuing its claim for a declaration of non-liability in these proceedings. The question is whether the claimant has submitted to the jurisdiction of the Moroccan courts (or should be treated as having done so by virtue of its conduct of these proceedings);
ii) if the Moroccan Judgment is not to be recognised, whether the claimant is entitled, on a summary basis, to a declaration of non-liability on the ground that any cargo claim is time-barred pursuant to Article III rule 6 of the Hague Rules, no suit having been brought with one year after the date when the goods were or should have been delivered. The question in that regard is whether either the Moroccan proceedings or the claimant's own claim in these proceedings (both commenced within one year of the relevant date) constitutes valid suit for these purposes.
The above issues were argued between the claimant, represented by Mr Collett QC, and the Insurers, represented by Ms Wells. The Receiver has not acknowledged service of these proceedings and has played no part in them. The claimant therefore sought permission pursuant to CPR 24.4(1) to include the Receiver in its application for summary judgment. As the Receiver was notified of the application and the hearing but chose not to appear (no doubt because it has transferred its relevant interests to the Insurers) and in any event cannot be in any better position that the Insurers in respect of the application, it is appropriate to grant such permission.
The terms of the bills of lading
Burton J summarised the relevant provisions of the three bills of lading as follows:
" 11. …, the Lomé Bill is on its front page headed up, in the left hand corner "Code Name: 'CONGENBILL': Edition 1978": but on the reverse page, which sets out the Conditions of Carriage, it is recorded "To be used with charter-parties Code Name 'CONGENBILL' Edition 1994". Those Conditions of Carriage recite:
" (1) All terms and conditions, liberties and exceptions of the Charter-Party, dated as overleaf, including the Law and Arbitration Clause, are herewith incorporated.
(2) General Paramount Clause
(a) 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…"
12. The Owendo and Takoradi Bills are in identical form. They both provide similarly in the top left hand corner of the first page by reference to the 1978 Edition and on the reverse page recite the Conditions of Carriage (by reference to the 1978 Edition). The Conditions of Carriage record:
" All terms and conditions, liberties and exceptions of the Charter-Party, dated as overleaf, are herewith incorporated. The Carrier shall in no case be responsible for loss of or damage to cargo arisen prior to loading and after discharging."
The General Paramount Clause is then recited in identical terms to that set out above, and there is also a provision relating to the application of the Hague-Visby Rules, not relevant in relation to any of these three Bills."
Burton J found, at least to the standard of a good arguable case, that:
i) despite the 'muddle' caused by the reference to different CONGENBILL editions and the absence of a signed charterparty, the Lomé bill was to be construed containing the Law and Arbitration clause set out on its reverse [16] and as referring to the (unsigned) charterparty dated 11 June 2013, which contained a London arbitration and English law clause [18];
ii) although (as was common ground) the Owendo and Takoradi bills did not specifically provide for arbitration and therefore the question of incorporation of an arbitration clause did not arise, those bills did incorporate the other terms of the unsigned charterparty dated 11 June 2013, including the English law clause [14(ii)(a)];
The hearings before me proceeded on the agreed assumption that the Owendo and Takoradi bills are indeed governed by English law and that the Hague Rules are applicable as a matter of that governing law. That is in contrast to the position in the Moroccan proceedings: it is common ground that Moroccan law expressly provides that the Hamburg Rules are automatically incorporated into such contracts of carriage, ousting any contractual provision to different effect.
The relevant procedural history
On 15 July 2014 the claimant filed a Rebuttal Memorandum in the Moroccan proceedings, asserting that each of the three bills of lading incorporated a London arbitration clause so that the court did not have jurisdiction to hear the claim. Consequently, the claimant stated, the claim was not " formally acceptable". The claimant then raised a number of defences to the claim, each expressed to be " as a precaution". No mention was made of the fact that the claimant had commenced these proceedings in the Commercial Court in England.
The claimant served its Particulars of Claim in these proceedings on 7 August 2014. In contrast to the position taken in the Moroccan proceedings, the claimant did not assert that the Owendo and Takorado bills incorporated an arbitration clause, making that assertion only in relation to the Lomé bill. On 11 August 2014 the Insurers issued an application challenging the jurisdiction of the English court.
At the hearing of its application for an anti-suit injunction before Burton J on 11 November 2014 (interim injunctions having been granted on an ex parte basis by Eder J on 2 July 2014), the claimant sought an injunction in respect of the dispute as to the cargo carried under the Lomé bill on the ground that that bill incorporated a London arbitration clause, a...
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