MED MARINE v Castillo Schiffahrts-Gmbh & Company Kg Ms and Another
| Jurisdiction | England & Wales |
| Judge | Mr. Stephen Hofmeyr QC |
| Judgment Date | 28 March 2014 |
| Neutral Citation | [2014] EWHC 1064 (Comm) |
| Docket Number | Case No. 2013 Folio 1228 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 28 March 2014 |
[2014] EWHC 1064 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN's BENCH DIVISION
COMMERCIAL COURT
Rolls Building
7 Rolls Buildings
Fetter Lane, London
Mr. Stephen Hofmeyr QC (Sitting as a Deputy High Court Judge)
Case No. 2013 Folio 1228
MR. C. SMITH (instructed by Keates Ferris) appeared on behalf of the Defendants.
MR. J. WATTHEY (instructed by Ben Macfarlane & Co.) appeared on behalf of the Claimant.
This is the defendants' application pursuant to CPR Part 11 for orders that (1) the defendants' application contesting the jurisdiction of this court is granted; (2) the service of the claim form on the defendanst is set aside, and (3) the claimant's claim is dismissed.
Parties
The claimant is a Turkish company that provides tugboat, pilotage and mooring boat services to vessels entering various ports in Turkey.
The first defendant is the registered owner and the second defendant the demise charterer of the vessel CONTI CARTAGENA to which I will refer as "The Vessel".
The claim
In the Claim Form the claimant alleges four things: (1) On or about 5th August the first and/or the second defendant entered into a contract with the claimant for the provision of services in the Yalova Port; (2) the contract incorporated the UK Standard Conditions for Towage and Other Services (Revised 1986); (3) the vessel suffered damage whilst in port, and (4) the defendants are seeking to recover damages from the claimant.
None of these facts is denied.
In these proceedings the claimant claims a declaration of non-liability against the first and/or second defendant "in respect of all claims arising under or related to the contract and/or services".
The procedural history
The Claim Form in this matter was issued on 13th September 2013 and marked "not for service out of the jurisdiction".
The N510 form which accompanied the Claim Form indicated that the Claim Form was being served out of the jurisdiction without permission of the court on the basis that the first defendant was a party to an agreement conferring jurisdiction to which Article 23 of the Judgment Regulation applies.
Not only the first but also the second defendant filed an acknowledgement of service on 25th October 2013 indicating that it intended to defend all of the claim and that it intended to contest the court's jurisdiction.
The application
On 27th November 2013 both defendants issued the application which is before me today.
In support of the application they served witness statements of Selin Atakan and Colin Ferris dated 26th and 27th November 2013 respectively. Mr. Atakan is an Associate Attorney at Cavus and Coskunsu, a law firm of Istanbul, and is registered to the Istanbul Bar Association. Mr. Ferris is a solicitor of the Senior Courts of England and Wales and a partner in the firm Keats Ferris, the defendants' solicitors.
The application focused on a pilotage bill signed after the event by the Master on behalf of the defendants. The contention advanced was that the pilotage bill could not be used to establish English jurisdiction.
After the claimant had made it clear that it was not relying on the pilotage bill but on the terms of the booking note dated 5th August 2012 to establish jurisdiction, the focus of the application changed to the booking note.
The facts
The defendants' version of the facts is as follows.
a. On or about 7th August 2012 the vessel was at the Besiktas Shipyard in Turkey having works performed on her.
b. She was scheduled to be shifted to a floating dry dock.
c. To this end she engaged tug and pilotage assistance.
d. At 1300 hours two pilots boarded the vessel and two tugs were attached, one astern and one at the vessel's bow.
e. During the course of the shifting operation the vessel collided with the floating dry dock and with another vessel, the CLIPPER TENACIOUS.
The defendants believe that the incident was caused by the negligence of the claimant. As a consequence on 1st August 2013 the Master of the vessel "on behalf of the owners" commenced proceedings before the Istanbul courts against the claimant seeking to recover the loss and damage the defendants had incurred as a result of the incident.
The claimant has sought to challenge the jurisdiction of the Istanbul courts on the basis that:
a. the contract was contained in and/or evidenced by a pilotage bill signed by the Master on 7th August ("the Pilotage Bill");
b. the pilotage bill expressly stated that –
"Pilotage, towage and mooring boat services are under UK Standard Conditions for Towage and Other Services (Revised 1986)"
and
c. the UK Standard Conditions for Towage and Other Services (Revised 1986) contain an exclusive English jurisdiction clause.
The Turkish proceedings are still in existence, although I am told that they have been stayed pending the outcome of this application.
I am told that it is the arguments being run in the Turkish court which caused the defendants to assume in the English proceedings that the claimant was relying on the Pilotage Bill in order to found jurisdiction. It is now clear and accepted by the defendants that the claimant places reliance on the Booking Note in order to found jurisdiction in England and Wales.
The Booking Note
The booking note was signed on 5th August 2012. It is in Turkish.
A translation of part of the face of the booking note reads as follows:
"We request pilotage, towage and mooring services for the vessel detailed above which is under our ownership/agency …." Then I omit a section.
"Pursuant to our request we undertake and agree to the application of the provisions of the service tariff applied by our company and all instructions and regulations issued by the port and docks, to the application of the United Kingdom Standard Towage Conditions (Revised 1986) to pay [relevant] companies such pilotage, towage and mooring fees as may accrue to them, and [we agree] that if the due and payable invoice debts with respect to the various services are not paid, our request for services shall be suspended and shall not be complied with, that after the invoice for the service referred to in this letter of request has been issued we may not change the said invoice address, and [we agree also] that the Courts and Enforcement offices of Istanbul shall be competent in the resolution of disputes between the parties."
It is therefore apparent that the Booking Note contains the relevant defendants' agreement to the application of the UK Standard Conditions for Towage and Other Services (Revised 1986). These conditions include at clause 9 an exclusive English jurisdiction clause in respect of all matters, save for the obtaining of security wherever assets can be found. The clause provides as follows, and I quote:
"9(a). The agreement between the Tugowner and the Hirer is and shall be governed by English law and the Tugowner and the Hirer hereby accept, subject to the proviso contained in subclause (b) hereof, the exclusive jurisdiction of the English courts …
(b) No suit shall be brought in any jurisdiction other than that provided in subclause (a) hereof, save that either the Tugowner or the Hirer shall have the option to bring proceedings in rem to obtain the arrest of or other similar remedy against any vessel or property owned by the other party hereto in any jurisdiction where such vessel or property may be found."
The Booking Note also contains the agreement of the relevant defendant, that "the Courts and Enforcement offices of Istanbul shall be competent in the resolution of disputes between the parties".
The Claimant's case on jurisdiction
The claimant alleges that the English courts have jurisdiction over the present proceedings by virtue of the fact that the Booking Note expressly incorporates the terms of the Towage Conditions.
In addition, whilst the claimant accepts that the Booking Note on its face contains an Istanbul jurisdiction clause, it alleges that:
a. on the...
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