Hin-Pro International Logistics Ltd v Compania Sud Americana De Vapores SA

JurisdictionEngland & Wales
JudgeLord Justice Christopher Clarke,Lord Justice Beatson,Lord Justice Elias
Judgment Date23 April 2015
Neutral Citation[2015] EWCA Civ 401
Docket NumberCase No: A3/2014/3584
CourtCourt of Appeal (Civil Division)
Date23 April 2015
Between:
Hin-Pro International Logistics Limited
Appellant
and
Compania Sud Americana De Vapores S.A.
Respondent

[2015] EWCA Civ 401

Before:

Lord Justice Elias

Lord Justice Beatson

and

Lord Justice Christopher Clarke

Case No: A3/2014/3584

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT QUEEN'S BENCH DIVISION

COMMERCIAL COURT

MR JUSTICE COOKE

[2014] EWHC 3632 (Comm)

Royal Courts of Justice

Strand, London, WC2A 2LL

James Collins QC (instructed by Bird & Bird LLP) for the Appellant

Poonam Melwani QC and Gemma Morgan (instructed by Stephenson Harwood LLP) for the Respondent

Hearing dates: 26 th February 2015

Lord Justice Christopher Clarke
1

The central question in this appeal is whether a clause in bills of lading providing for English jurisdiction is, as the respondent claims, an exclusive jurisdiction clause. Whether we get to that question depends on whether the appellant should be heard. The respondent contends that it should not. In order to address both issues it is necessary to recount the facts which give rise to them. Much of what follows is derived from the judgment of Cooke J, from whom this appeal is brought.

2

Hin-Pro International Logistics Ltd ("Hin-Pro"), the appellant, is a freight forwarder registered in Hong Kong. Compania Sud Americana de Vapores S.A ("CSAV"), the respondent, is an international shipping corporation with a worldwide business.

The 2012 proceedings

3

In 2012 Hin-Pro began 5 separate proceedings against CSAV in the Wuhan Maritime Court in China under 5 bills of lading covering the carriage of cargo from Nanjing, China to Puerto Caballo in Venezuela. The claim was that the cargo had been released without production of the original bills.

4

CSAV's bills of lading contain the following clause:

" 23 Law and jurisdiction

This Bill of Lading and any claim or dispute arising hereunder shall be subject to English law and the jurisdiction of the English High Court of Justice in London. If, notwithstanding the foregoing, any proceedings are commenced in another jurisdiction, such proceeding shall be referred to ordinary courts of law. In the case of Chile, arbitrators shall not be competent to deal with any such dispute and proceedings shall be referred to the Chilean Ordinary Courts".

It is common ground that, as a matter of Chilean law, the third sentence is void.

5

In November 2012 CSAV commenced action 2012 Folio No 1519 in the Commercial Court. On 22 November 2012 Burton J made an order ex parte restraining the continued pursuit of the Wuhan Court proceedings, and the commencement of any further proceedings relating to the disputes under the 5 bills of lading in any court other than the High Court of England & Wales (or a court of another member state of the European Union or another contracting state of the Lugano Convention). On 29 November 2012 Andrew Smith J continued that injunction until further order. Nonetheless the Wuhan Court proceedings continued.

6

On 21 March 2013 there was a committal hearing at which Smith J held Hin-Pro and its sole director Miss Su Wei to be in contempt. Hin-Pro's contempt lay in participating in a mediation and jurisdiction hearing in the Wuhan Court. Miss Wei's contempt consisted of causing or permitting Hin-Pro to do so. Smith J gave permission for the issue of writs of sequestration against Hin-Pro and, for her contempt, he committed Miss Wei to Prison for 3 months. At neither hearing was Hin-Pro or Miss Wei represented. Miss Wei has not yet been apprehended.

The 2013 proceedings

7

Between May and July 2013 Hin-Pro commenced a further 23 actions in China against CSAV under 70 bills of lading in respect of the carriage of goods from China to Venezuela. These proceedings were begun in the Qingdao, Tianjin, Ningbo, Guangzhou and Shanghai Maritime Courts. CSAV challenged the jurisdiction of the courts in China but its challenges have so far been dismissed.

8

Hin-Pro's claim in the Chinese proceedings is that CSAV wrongly delivered cargo without production of the original bills of lading in various ports in Venezuela. In some but not all of the cases Hin-Pro was named as the shipper. Where it was not so named it claimed to be an original party in respect of the contract of carriage contained in the bill. CSAV said that no misdelivery took place because Venezuelan law required, subject to non-applicable exceptions, that cargo should be delivered to the storage provider authorised by the Venezuelan Government; delivery was so made; and all the goods were on delivered to Raselca Consolidadores CA ("Raselca"), Hin-Pro's agent in Venezuela, who were the named consignees, and on-delivered by them to the buyers of the cargo.

9

On 18 September 2013 CSAV started the current proceedings in the Commercial Court seeking (a) declarations that Hin-Pro was obliged by clause 23 to litigate claims under the 70 bills of lading in England, (b) damages and (c) a permanent injunction. On 2 October 2013 Eder J gave CSAV permission to serve the proceedings on Hin-Pro in Hong Kong together with an application notice for an anti-suit injunction. The order provided for an Acknowledgment of Service (AOS) to be filed within 31 days of service. Service of the proceedings and of the application for an anti-suit injunction took place on Hin-Pro on 10 October 2013.

10

On 29 November 2013 Blair J made an anti-suit injunction against Hin-Pro precluding the commencement or pursuit of, or the taking of any steps in, the proceedings in China in respect of the disputes under the 70 bills.

Events in 2014

11

On 27 May 2014 the Ningbo Court awarded Hin-Pro damages for the value of the cargo claimed in the sum of some $ 360,000 and legal costs. CSAV paid that sum. This decision is subject to challenge in the Chinese courts. CSAV was provided with documents which it regarded as fraudulent. These were what purported to be contracts in the form of a master sale agreement supposedly dated 20 January 2011 between Hin-Pro and Raselca and some 79 sales confirmations between Hin-Pro as seller and Raselca as buyer, when, as CSAV contends, in truth Hin-Pro was a freight forwarder which would suffer no loss in respect of the cargo unless the seller remained unpaid and it was sued for its value.

12

On 13 June 2014 CSAV sought and was granted by Walker J ex parte a worldwide freezing order against Hin-Pro in the sum of $ 27,835,000. Walker J was satisfied on the material before him that there was good reason for concern that Hin-Pro was fraudulently bringing proceedings, and that there were good grounds to fear that these might result in execution in China, so as to force Hin-Pro to pay what, with costs, would amount to that sum.

13

That order was continued by Eder J on 26 June 2014, the return date, when Hin-Pro did not attend. Hin-Pro failed to comply with the asset disclosure orders made by Walker J until 8 October 2014.

14

On 17 July 2014 CSAV secured the appointment of Receivers in Hong Kong. We have not seen that order; but we were told that the Receivers were given control over the proceedings in China and power to ensure that any payment under any judgment was paid into court in Hong Kong, although it does not appear that that order has been of any effect in China. At about the same time CSAV obtained a freezing order against Hin-Pro in Hong Kong. Hin-Pro made unsuccessful attempts to set aside the orders made in Hong Kong. It finally served an incomplete and deficient affidavit of assets on 5 August.

15

The Particulars of Claim in the action were filed and served on or about 22 July 2014. On about 10 September 2014 a further judgment was handed down by the Ningbo court in the sum of $ 652,936 plus costs. That judgment was appealed.

16

On 25 September 2014 Hin-Pro applied to adjourn the trial listed for 14 October 2014. On 29 September 2014 Hin-Pro filed an AOS – some 10 months out of time.

17

On 3 October 2014 Flaux J dismissed Hin-Pro's application to adjourn. He found that Hin-Pro had deliberately refrained from participating in the proceedings, no doubt because it felt that it was in its interests to do so. He regarded it as tolerably clear that the only thing that had brought Hin-Pro before the court had been the receivership order in Hong Kong. He advanced the trial start date by a day and increased the estimate to 2 days to allow time for the arguments which Hin-Pro wished to make. He permitted Hin-Pro to file their AOS late provided that 6 conditions were complied with. These were set out in paragraph 4 of his order and included the discontinuance of all proceedings commenced by it in China and cooperation with the Receivers appointed in Hong Kong. Paragraph 5 of his order provided that, unless each of those conditions was satisfied, Hin-Pro should not be entitled to participate in the trial. Five of the conditions were not complied with and the trial took place without participation by Hin-Pro. Flaux J also ordered Hin-Pro to serve a skeleton argument by 9 October 2014. This was not done. Hin Pro did not attend the trial.

The judgment of Cooke J

18

By his judgment of 14 October 2014 Cooke J held that Hin-Pro was obliged by clause 23 of the bills of lading to litigate its disputes in relation to the contracts evidenced by the bills before the English High Court. He held that each of the actions commenced in the five Chinese Maritime Courts had been commenced in breach of that clause. In consequence he made a permanent injunction precluding Hin-Pro from pursuing or taking any further steps in the actions it had commenced in those courts.

19

The order required Hin-Pro to take all steps within its power to terminate or otherwise...

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3 firm's commentaries
  • Court Of Appeal Holds Standard Clause In Bills Of Lading To Be Exclusive English Jurisdiction Clause
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    • Mondaq UK
    • 1 May 2015
    ...International Logistics Ltd v Compania Sud Americana de Vapores SA [2015] EWCA Civ 401 The Appellant Freight Forwarder commenced actions in China under 70 bills of lading, which incorporated the Respondent's standard clauses. Clause 23 provided in material "This Bill of Lading and any claim......
  • The Weekly Roundup: The Arty Edition
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    • 12 July 2022
    ...in the primary policy. Citing a number of principles identified by Christopher Clarke LJ in Compania Sud Americana v Hin-Pro [2015] EWCA Civ 401, Males LJ held that the choice of jurisdiction was exclusive, such exclusivity being consistent with the mandatory "shall" in the exclusive jurisd......
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2 books & journal articles
  • Contract Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2015, December 2015
    • 1 December 2015
    ...expressed in the recent English Court of Appeal decision of Compania Sud Americana de Vapores SA v Hin-Pro International Logistics Ltd[2015] EWCA Civ 401 (at [71]), where Christopher Clarke LJ adopted the rationale provided by Lord Mustill in Tam Wing Chuen v Bank of Credit and Commerce Hon......
  • Anti‐suit Injunctions and the Doctrine of Comity
    • United Kingdom
    • The Modern Law Review No. 79-2, March 2016
    • 1 March 2016
    ...author thanks Anselmo Reyes, Stefan Enchelmaierand Scott Veitch for the useful discussions and comments. Any faults are the author’s.1 [2015] EWCA Civ 401; [2014] EWHC 3632 (Comm).2 [2015] EWCA Civ 401 at [4]. Clause 23 contained a third sentence that read: ‘In the case ofChile, arbitrators......

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