Kallang Shipping SA Panama v Axa Assurances Senegal (The Kallang), (Kallang, The)
| Jurisdiction | England & Wales |
| Judge | Mrs. Justice Gloster |
| Judgment Date | 19 November 2008 |
| Neutral Citation | [2006] EWHC 2825 (Comm),[2008] EWHC 2761 (Comm) |
| Docket Number | Claim No. 2005 Folio 250,Case No: 2005250 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 19 November 2008 |
[2006] EWHC 2825 (Comm)
IN THE HIGH COURT OF JUSTICE
COMMERCIAL COURT
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Gloster
Case No: 2005250
(1)Axa Assurances Senegal
(2)Comptoir Commercial Mandiaye Ndiaye
(3)Axa France Assurance S.a.
Mr. Alexander Layton QC for the Claimants.
Mr. Dominic Happe for the Defendants.
Hearing dates: 26 and 27 June 2006
Further written submissions: 11 July 2006; 20 July 2006; 27 July 2006
(As Approved by the Judge)
This is an application by the Defendants to set aside an order made by Cooke J. on 16 th March 2005 by which he ordered that the Defendants should be prohibited from continuing, instigating or commencing proceedings against the Claimants under certain bills of lading issued in respect of cargo loaded on to the vessel 'Kallang' in any jurisdiction other than before a London Arbitration Tribunal. He also made orders for service out of the jurisdiction. The Defendants also apply to set aside these orders and for declarations that the Court has no jurisdiction over the Defendants. The Claimants' position, on the other hand, is that the anti-suit injunction should be continued pending trial.
These applications came before me in late June 2006 but, as a result of the way in which the Claimant's arguments, in particular, developed during the course of the hearing, further lengthy submissions were served by both sides after the hearing. I am indebted to counsel and solicitors for the further written submissions.
Briefly summarised, the facts are as follows. The Claimant, Kallang Shipping SA, was, at the relevant time, the owner of the vessel, Kallang. The Second Defendant, Comptoir Commercial Mandiaye Ndiaye ("CCMN"), was the ultimate receiver of cargo carried on board the vessel and discharged at Dakar from 3 rd March 2005. The First Defendant, Axa Assurance Senegal ("Axa Senegal"), was the underwriter of the cargo. The Third Defendant, Axa France Assurance SA ("Axa France") is a company in the well-known group of French insurance companies. The Claimant contends that Axa France was, if not the parent company of Axa Senegal, at least in the same group of companies, and was directing and controlling Axa Senegal's conduct of the matters relevant to this litigation.
Fourteen bills of lading, which incorporated a charter party containing an English Law and London Arbitration clause, were issued in respect of the cargo. During discharge of the cargo, allegations were made by CCMN to the effect that some 3,000 bags of cargo were missing. The merit of these allegations is disputed by the Claimant, who says that, in reality, a much smaller number of bags were damaged or missing, and that, of these, most were damaged by handlers during discharge.
By a fax dated 8 th March 2005, Axa Senegal, acting as underwriters for CCMN, demanded from the Claimant's Dakar lawyers a provisional guarantee in the maximum amount of FCFA 30,500,000, equivalent to Euros 46,496.95, to be replaced by a bank guarantee when final figures had been established on completion of discharge. By an e-mail dated 10 th March 2005, this request was maintained, together with an assertion that the arbitration clause in the charter party did not apply because it was contended that Axa Senegal was not a party to that contract.
The Claimants' P & I Club, American Protection and Indemnity Club ("the American Club") refused Axa Senegal's demands for a guarantee. However, the American Club indicated, through Messrs. Jackson Parton, solicitors, on 10 th March 2005, that it would put up a letter of undertaking on usual Club terms as security for the full sum claimed, subject to English Law and London arbitration being agreed. The letter also stated that, in the event that Axa Senegal refused to accept a Club letter answerable to English law and arbitration and decided to arrest the vessel, the solicitors were instructed to apply to the English High Court for an anti-suit injunction without further notice. No response was received to this offer. Instead, on 11 th March 2005 (the next day) CCMN made an application to the President of the Tribunal Regional Hors Classe of Dakar ("the Dakar Court") for payment of the sum of FCFA 25,000,000, failing which the vessel was to be arrested.
It is necessary to examine the precise terms of the application to the Dakar Court. CCMN, by its Senegalese lawyers, Maitres Ba & Tandian, presented the Court with a composite document setting out both the application and the draft order. At least, that is the Claimants' contention and it appears to be supported by the document itself. The claim itself contained the following paragraphs:
"Que sa créance étant menacée de péril du fait du départ imminent du navire, prévu à la fin des opérations de déchargement, le vendredi 11 mars 2005, en fin de matinée, la requérante éprouve le plus grand intérêt à faire procéder à la saisie conservatoire du navire, pour avoir sûreté et paiement de celle-ci qu'il vous plaira d'évaluer provisoirement à la somme de 25.000.000 F CFA, sans nul préjudice des frais et intérêts de droit.
Que l'expert prévoyant en outre une possible aggravation du préjudice, la requérante ne manquera pas, le cas échéant, de vous saisir pour voir ordonner toute mesure complémentaire utile de nature à sécuriser sa créance"
The translation of these two paragraphs was as follows
"Given that the claim was being put at risk by the imminent departure of the ship which was due to depart after unloading operations had been completed on Friday, 11 th March 2005, late morning, the Applicant felt it was in its best interests to request the arrest of the ship as a guarantee and payment [my emphasis] of the amount estimated at 25 million CFA francs without prejudice to the expenses and interest applicable by law
Given that the assessor envisaged a possible increase in the amount of damage suffered, the applicant would, if appropriate, apply to you to request the issue of any additional measure necessary to secure [my emphasis] the amount claimed".
The order, however, made by the Judge, the President of the Dakar Court, is in the following terms:
" Y faisant droit, autorisons la société Comptoir Commercial Mandiaye NDIAYE à faire procéder à la saisie conservatoire due navire KALLANG jusqu'à la mise en place d'une caution bancaire et ce, pour avoir sûreté du paiement de sa créance que nous évaluons provisoirement et sans nul préjudice aux frais et intérêts à la somme de 25.000.000 F CFA.
Ordonnonsà la requérante d'introduire l'action en vue de l'obtention d'un titre exécutoire dans le délai d'un mois à compter de la saisie, conformément à la loi (article 61 OHADA sur les procédures simplifiées de recouvrement)."
The somewhat rough translation of these two paragraphs which was provided to the Court was in the following terms:
"According to the request, I authorised the company [CCMN] to proceed with conservatory arrest of the ship, Kallang, until the putting in place of a bank guarantee, and this, for the purpose of having security for payment [my emphasis] of its claim that we estimate without prejudice to any expenses and interest at the sum of 25,000,000 CFA francs.
I order the Applicant to take action to obtain an execution order within one month from the date of the arrest in accordance with the law, Article 61 OHADA on the summary procedures for debt recovery".
The official notification and report of the arrest was apparently compiled by the huissier (bailiff), although the Claimant submits that it is at least arguable that the documents may well have been typed up in advance by CCMN's lawyers, finalised by them, as far as they could, once they had the order and presented to the huissier for completion during the course of the arrest. It is not possible, in my judgment, to resolve these kind of factual issues on what is essentially an interlocutory application. However, I accept the submission from Mr. Layton QC, on behalf of the Claimants, that there is an arguable case to that effect. The point is that these documents suggest that what the Claimant was looking for was not simply security, but also actual payment. The official report of the request is in the following terms:
"De, immédiatement et sans délai, payer entre les mains de moi huissier porteur des pièces et ayant pouvoir de donner bonne et valable quittance la somme de 25.000.000 F CFA, laquelle répresente la créance de ma requérante, ainsi qu'exposéà travers la requête suivie de l'ordonnance.
Leur déclarant que faute par eux de se faire, il sera procédéà la saisie conservatoire de leurs biens meubles corporels.
Le paiement n'ayant pas été effectué, j'ai, conformément à l'Acte Uniforme portant organisations de procédures simplifiés de recouvrement et des voies d'exécution OHADA, dit et déclaré au requis, in la personne du commandant du navire, qu'ils sont tenus d'indiquer les biens qui auraient fait l'objet d'une saisie antérieure et de communiquer le procès-verbal de cette saisie."
This was translated as follows:
" Having notified the owner of the aforementioned ship, represented by the ship's captain…
To immediately, and without delay, to pay directly to me a bailiff, having power to issue a good and valid receipt, the sum of 25,000,000 FCFA, which represents the applicant's claim, as set out in the petition followed by the Order.
I informed them that if this was not done, a seizure of...
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