Import Export Metro Ltd v Cia Sud Americana de Vapores SA
| Jurisdiction | England & Wales |
| Judge | Mr Justice Gross |
| Judgment Date | 23 January 2003 |
| Neutral Citation | [2003] EWHC 11 (Comm) |
| Docket Number | Case No: 2001/613 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 23 January 2003 |
[2003] EWHC 11 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Gross
Case No: 2001/613
Nicholas Hamblen QC & Charles Kimmins (instructed by Clifford Chance) for the Defendants/Applicants
Luke Parsons (instructed by Stephenson Harwood) for the Claimants/Respondents
Hearing dates : 30 October 2002
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.
INTRODUCTION
By Application Notice dated 5th July, 2002, the Applicants/Defendants ("CSAV") apply (1) for a declaration that the English Court should not exercise any jurisdiction which it may have over the dispute which has arisen between CSAV and the Respondents/Claimants ("Metro"); (2) for an order that the issue and service of the Claim Form out of the jurisdiction on CSAV, pursuant to the order of Cresswell, J. dated 26th September, 2001, be set aside; (3) for an order staying the proceedings before the English Court. The Application Notice gives as its basis that "Chile is clearly and distinctly the most appropriate forum for the resolution of the dispute, and that in the interests of justice it should be determined there." As will become apparent, the reference to "Chile" is in fact a reference to arbitration in Chile rather than to the Courts of Chile.
In a nutshell as to the parties, Metro is an international trader; CSAV is an international shipping corporation operating a worldwide business, incorporated and with its headquarters in Chile. The underlying dispute between the parties concerns alleged mis-delivery of goods carried from Hong Kong or elsewhere in China to Iquique, Chile on various vessels under 11 bills of lading ("the bills of lading"), issued on behalf of CSAV on its standard form; in essence, Metro alleges that CSAV delivered its goods to Importadora Lucky Crown Ltd. ("Lucky Crown") without production of original bills of lading, whereby Metro has suffered loss and damage.
Metro opposes the CSAV application, relying essentially on the non-exclusive English law and jurisdiction clause ("the EJC") contained in the bills of lading, as in all standard CSAV bills of lading, in the following terms:
"24. 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 proceedings shall be referred to ordinary courts of law. In the case of Chile, arbitrators shall not be competent to deal with any such disputes and any proceedings shall be referred to the Chilean Ordinary Courts."
As to evidence on the application, each party adduced Witness Statements from their respective solicitors, Mr. Kaiser for Metro and Ms. Kay for CSAV. In addition, CSAV adduced expert evidence on Chilean law in two Witness Statements from Ms. Uribe and, very late in the day but in circumstances which rendered it appropriate to permit its introduction in (partially) redacted form, Metro likewise produced expert evidence on Chilean law in a Witness Statement from Mr. Sahurie. Unavoidably perhaps, a good deal of all this material went to the merits of the underlying dispute and the nature of the parties' cases in that dispute. For purposes of the present "jurisdictional" dispute, it suffices in the main to note this evidence (so as to understand the issues which I have to determine) rather than adjudicate on such disagreements as have emerged.
Accordingly, for present purposes the relevant factual background can be very shortly summarised:
i) Metro's case is that it has done business with Lucky Crown for over 15 years. As already foreshadowed, the substantive claim relates to goods shipped under the bills of lading, all of which were issued by CSAV between May and August 2000. The consignee was in each case "to order". According to Metro, there was a delay in payment and original bills of lading were never released. When, in about December 2000, inquiries were made as to the whereabouts of the goods, Metro was advised by CSAV's agents that they had already been released to Lucky Crown. Metro's understanding is that Lucky Crown was able to obtain delivery of the goods by presenting to CSAV (1) faxed copies of the bills of lading, bearing added words including "originalised" and (2) forged letters, purportedly signed by Metro's Chilean office, to Lucky Crown, confirming that the goods could be released. The quantum of Metro's claim in the English proceedings is estimated at some US$255,000.
ii) CSAV denies that it was in breach of contract or duty. As to 4 of the bills of lading, CSAV contends that the cargo was delivered against original bills of lading. In this regard, the key issues are said to be factual and to turn on evidence emanating from Chile. As to the remaining 7 bills of lading forming the subject of these proceedings, CSAV's case is that it was obliged under Chilean law —differing in this respect markedly from English law —to deliver the goods to licensed customs warehouse operators at the port of Iquique whether or not original bills of lading had been presented; such delivery terminated CSAV's obligations and liability under the bills of lading. Here, CSAV goes on to contend that the licensed customs warehouse operators and (so far as relevant) licensed container operators are performing public law functions; accordingly, it is submitted, it was not open to CSAV to enter into private law contracts with these operators (for instance requiring them to insist on presentation of original bills of lading) which amends their public law functions or duties. For these reasons, CSAV suggests that issues of Chilean law are "fundamental" (para. 55 of its skeleton argument) to the claims in contract and tort; moreover, these are issues said to concern the performance of public functions by public or private bodies and as such they are of "great sensitivity and .. public importance" (para. 107 of Ms. Kay's First Witness Statement). CSAV of course accepts that the bills of lading were governed by English law, as appears from cl.24 of the bills of lading (already set out above). However, Chilean law was relevant (1) as the law of the place of performance, pursuant to Art. 10(2) of the Rome Convention (set out below) and (2) because cl. 5 of the bills of lading provided that CSAV may "comply with any orders, recommendations or directions of any government(s) … or authority/ authorities…" which, it is said by CSAV, would include obligations imposed under the local law of Chile. Furthermore, CSAV may seek to rely on a defence based on a course of dealing.
iii) It is a further fact, on which CSAV places much emphasis, that Metro currently seeks to pursue claims under 14 other bills of lading against CSAV in Chile ("the Metro Chilean claim"), these claims, amounting to some US$375,000, concern alleged mis-delivery of goods without presentation of original bills of lading, relating to shipments between February and April, 2000. On the material before me, it appears that on the 20th February, 2002, therefore some months after the commencement of these proceedings, Metro filed an application for the appointment of an arbitrator in Chile in respect of the Metro Chilean claim. It further appears that in March 2002, a distinguished arbitrator was appointed to resolve this dispute, it does not appear that any further steps have been taken in this arbitration. It is fair to say that the issues raised, insofar as they go to Chilean law or usual procedures at the port in question, appear to be the same, or at least very similar, to those which arise in the English proceedings; the Metro Chilean claim does not, however, cover the same claims as arise in the English proceedings. Metro's explanation for bringing the Metro Chilean claim in Chile is that, for reasons which do not matter here, it had missed the one year (Hague/Hague-Visby Rules) time limit applicable in England and therefore needed to take advantage of the two year Hamburg Rules time limit applicable in Chile.
iv) As to proceedings in Chile, the following facts were not in dispute: First, that claims for loss of or damage to cargo are subject to mandatory arbitration; contractual clauses (such as the final sentence of cl.24 of the bills of lading) purporting to provide for the reference of such proceedings to the Chilean Courts have been declared by the Chilean Courts to be void. Secondly, under Chilean law, the provision contained in cl.24 of the bills of lading for English law and jurisdiction will be deemed null and void; the Metro Chilean claim will be determined in accordance with Chilean substantive law. Thirdly, if CSAV's application succeeded then, if Metro so chose, its claims under the bills of lading could be heard by the same arbitrator already appointed to hear the Metro Chilean claim.
v) Reverting to cl.24 of the bills of lading, it was not in dispute that it provided for English law and non-exclusive English jurisdiction. The second sentence recognised that in certain jurisdictions (for example where the Hamburg Rules are applicable), the English jurisdiction clause might be disregarded. On the material before me, it appears that the third sentence represented an ineffective preference for the Chilean Courts over Chilean arbitration; as already noted, such clauses have been held by the Chilean Courts to be null and void.
It is a feature of the present (underlying) dispute that the...
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