Maersk Guiné-Bissau, SARL (also known as “Maersk Guinea-bissau SARL” or “Maersk Guinee-Bissau SARL”) v Almar-Hum Bubacar Baldé S.A.R.L.
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jacobs |
| Judgment Date | 29 April 2024 |
| Neutral Citation | [2024] EWHC 993 (Comm) |
| Court | King's Bench Division (Commercial Court) |
| Docket Number | Case No: CL-2020-000714 |
[2024] EWHC 993 (Comm)
Mr Justice Jacobs
Case No: CL-2020-000714
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Paul Henton (instructed by Holman Fenwick Willan LLP) for the Claimants
The Defendant was not in attendance.
Hearing dates: 16 th – 17 th April 2024
Approved Judgment
This judgment was handed down remotely at 10.30am on Monday 29 th April 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives (see eg https://www.bailii.org/ew/cases/EWCA/Civ/2022/1169.html).
A: Introduction
The parties and the claims
These proceedings arise out of contracts of carriage between the Second Claimant (“Maersk A/S”) and the Defendant (“Almar Hum”). The contracts were ultimately evidenced by 13 bills of lading which were issued, on behalf of Maersk A/S, by the First Claimant, Maersk Guinea-Bissau (“Maersk GB”) which is the company which ran Maersk A/S's operations in Guinea-Bissau in West Africa. (Where it is unnecessary to draw a distinction between Maersk A/S and Maersk GB, I shall refer simply to “Maersk” or “the Claimants”)
Maersk GB began operating in Guinea-Bissau in 2003, and it had an office of 15 people working closely with a number of different customers in that country. The Customer Service Team Lead in Guinea-Bissau was Mr Telly Beavogui, who gave evidence at the trial. The operations of the Claimants in Guinea-Bissau focused predominantly on cashew nut export, which is Guinea-Bissau's primary export. Maersk GB ceased operating there in January 2021, and there is evidence that this was a consequence of the events with which this trial was concerned and the substantial litigation in that country which was pursued by Almar-Hum against Maersk GB.
The shipment in the present case was a containerised cargo of timber shipped by Almar-Hum to customers in China. The ultimate port of destination was Huangpu, China. The individual who ran Almar-Hum's business was Mr Alassana Baldé (“Mr Baldé”).
The Claimants seek damages or an indemnity to be assessed for alleged breaches of contract by Almar-Hum. As a result of an order of Foxton J, the present trial was concerned only with liability issues. The Claimants' claim for damages or an indemnity is based, at least principally, on an exclusive jurisdiction clause (or “EJC”) in favour of the English courts, and a “Himalaya” clause. The Claimants' main claim is for losses suffered in consequence of the litigation commenced by Almar-Hum in Guinea-Bissau. The Claimants contend that such proceedings were in breach of the EJC, and that (amongst other reasons, because of the Himalaya clause), both Claimants can claim in respect of the losses which they have suffered. These two clauses form part of Maersk A/S's standard terms and conditions (“Maersk's standard terms”) and, for reasons discussed in more detail in Section D below, were incorporated into the contracts of carriage. In addition to their claim for damages and an indemnity to be assessed, the Claimants also seek declarations that they have no liability to Almar-Hum in respect of those contracts of carriage and the disputes which have arisen in relation to them. This claim gives rise to the need to consider other clauses of the contracts of carriage, as well as the underlying facts.
Procedural background
The claim form in the present proceedings was issued on 30 October 2020. This was shortly after service on Maersk GB of Almar-Hum's claim in the main substantive proceedings which it had commenced in Guinea-Bissau. Particulars of Claim were served in June 2021. At that time, Almar-Hum were represented by London solicitors, Tatham & Co. A detailed defence was drafted by counsel from a well-established commercial/ shipping set of chambers, and this was served in August 2021. A detailed responsive reply was then served in September 2021. On 30 November 2021, at a time when the parties' solicitors were preparing for the case management conference, Tatham & Co ceased to act. Almar-Hum has never appointed solicitors in their place. On 10 December 2021, I gave case management directions, after taking into account a number of e-mails that Mr Baldé had sent.
The position thereafter can be summarised as follows. Mr Baldé on behalf of Almar-Hum has engaged with the proceedings intermittently. In recent months, however, there has been no significant engagement by Mr Baldé and Almar-Hum. On behalf of the Claimants, Mr Henton referred me to some of the correspondence sent by the Claimants' solicitors, HFW, to Mr Baldé: for example, sending copies of their disclosure certificate, witness statements, expert evidence, and the proposed index for the trial bundles. This correspondence received no response. Indeed, in the 9 months prior to trial, there was very limited correspondence from Mr Baldé at all. In an email dated 17 March 2024, he referred to not having been able to defend himself in 2023, but that he had now found an English lawyer. He asked HFW for an update on the current state of the proceedings, to which HFW responded on the following day, 18 March 2024. That response included an offer to engage with Almar-Hum's new representatives, to ensure that they had the necessary documents and could prepare for trial. No new representative, however, made any contact with HFW.
Mr Baldé then advised HFW, on 21 March 2024, that he was meeting with the proposed representatives in Dakar on 9 April 2024 “to sign the contract”. He asked HFW/the Claimants to “stop everything”. HFW declined to do so, describing the proposed meeting (so close to the trial) as a cynical attempt to disrupt the London proceedings. On 25 March 2024, HFW then sent copies of the hearing bundles to Mr Baldé, and provided a detailed explanation of the hearing arrangements. The only further communication from Mr Baldé was on 15 April 2024 (the reading day of the trial), when he had said that he had met with his lawyers in Dakar as explained in his earlier e-mail, and that they were “examining my documents before contacting you since I have already given them your contact”. He said that he had been reassured that they would contact HFW “and submit their proxy for representation to the British Commercial Court no later than Tuesday April 30, 2024, for my defense”.
In the event, no representative acting for Almar-Hum made any contact with either HFW or the court. The trial therefore proceeded in the absence of Almar-Hum. CPR 39.3 expressly permits the court to proceed with a trial in the absence of a party. The court's approach in these circumstances is discussed in the White Book paragraph 39.3.1, citing Williams v Hinton [2017] EWCA Civ 1123:
“It is of course of the first importance that a party is afforded a fair opportunity to present its case to the judge. It is also, however, of great importance that judges, as a matter of case management, act robustly to bring cases to a conclusion. In the present context, CPR 39.3 furnishes a safeguard in the event of mishap”.
There was in my view no reason why the trial should not proceed. The proceedings had been started some years earlier. Case management directions for the trial had been given in December 2021 (as described above), and these were modified in July 2023 when Foxton J gave directions bifurcating the trial. In relation to both sets of directions, the court had considered correspondence from Mr Baldé. It is clear that, through him, Almar-Hum has been aware of the proceedings throughout their course, including in the 9 months prior to trial when HFW was corresponding with him (albeit without any real engagement on his part). Almar-Hum had had a fair opportunity of presenting its case, and there was in my view no reason why the case should not be brought to a conclusion. Any other approach would be seriously prejudicial to the Claimants, who were seeking to establish their rights in (what they contended to be) the agreed contractual forum.
I should note that CPR 39.3 also enables the court to make orders striking out a defendant's defence, where a defendant does not attend a trial. The Claimants did not, however, apply for such an order, and indeed they had not previously applied for any orders (for example debarring Almar-Hum from defending) because of prior procedural defaults. The Claimants' position was that they wished to have the merits of their claims determined at trial, rather than having a judgment which was based in whole or in part on procedural failures by Almar-Hum.
Where a trial is undefended, the required approach of the court, and the legal representatives of the represented party, is explained in a number of recent authorities: CMOC Sales & Marketing Ltd v Persons Unknown [2018] EWHC 2230 (Comm) (HHJ Waksman QC, as he then was); Lakatamia Shipping Co Ltd v Morimoto [2023] EWHC 3023, paragraph [13] (Foxton J). The court must be satisfied, on the balance of probabilities, that the claim is made out. The represented parties bear “an obligation of fair presentation which is less extensive than the duty of full and frank disclosure on a without notice application” such that they must draw to the attention of the court “points, factual or legal, that might be to the benefit of [the unrepresented defendant]”.
In the present case, the identification of points which might be of benefit to Almar-Hum was assisted by the fact that there was a detailed defence drafted by counsel. Mr Henton in his written skeleton argument identified and addressed the arguments which were...
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