Maersk Guiné-Bissau SARL & Anor v Almar-Hum Bubacar Baldé SARL
| Judge | Mr Justice Jacobs |
| Neutral Citation | [2024] EWHC 993 (Comm) |
| Year | 2024 |
| Court | King's Bench Division |
| Counsel | Paul Henton |
| Date | 29 April 2024 |
Neutral Citation Number: [2024] EWHC 993 (Comm)
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
Date: 29/04/2024
Before :
MR JUSTICE JACOBS
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Between :
(1) MAERSK GUINÉ-BISSAU, SARL
(also known as “MAERSK GUINEA-BISSAU SARL”
or “MAERSK GUINEE-BISSAU SARL”)
(2) MAERSK A/S
Claimant
- and -
ALMAR-HUM BUBACAR BALDÉ S.A.R.L.
Defendant
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- - - - - - - - - - - - - - - - - - - - -
Paul Henton (instructed by Holman Fenwick Willan LLP) for the Claimants
The Defendant was not in attendance.
Hearing dates: 16th– 17th April 2024
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Approved Judgment
This judgment was handed down remotely at 10.30am on Monday 29th 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).
.............................
MR JUSTICE JACOBS
MR JUSTICE JACOBS
Approved Judgment
MR JUSTICE JACOBS:
A: Introduction
The parties and the claims
1.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”)
2.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
evidenceat 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 consequenceof the eventswith which thistrial was concerned and the
substantial litigation inthatcountry which was pursued by Almar-Humagainst
Maersk GB.
3.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”).
4.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 withliability 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 inrespect 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
5.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
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MR JUSTICE JACOBS
Approved Judgment
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.
6.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,toMr 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.
7.Mr Baldé then advised HFW,on 21 March 2024, that he was meeting withthe
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”.
8.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 theWhite 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
fairopportunity 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”.
Page 3
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