Siboti K/S v BP France SA

JurisdictionEngland & Wales
CourtQueen's Bench Division (Commercial Court)
JudgeGross J
Judgment Date11 Jun 2003
Neutral Citation[2003] EWHC 1278 (Comm)
Docket NumberCase No: 2002/1123

[2003] EWHC 1278 (Comm)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

COMMERCIAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mr Justice Gross

Case No: 2002/1123

Between:
Siboti K/S
Claimant
and
BP France S.A.
Defendant

Timothy Young QC (instructed by Stephenson Harwood) for the Claimant

Julian Flaux QC & Stephen Kenny (instructed by Clyde & Co.) for the Defendant

Hearing dates: 16 May 2003

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.

THE HON MR JUSTICE GROSS

Mr Justice Gross

INTRODUCTION

1

There is before the Court an application by the Defendant for an order (1) declaring, pursuant to CPR, Part 11, that the Court does not have jurisdiction over it; and (2) that the Claim Form in this case and service thereof and of the Particulars of Claim, must be set aside.

2

In a nutshell, the Defendant submits that this Court has no jurisdiction to entertain these proceedings and that any proceedings brought against it by the Claimant must be pursued, in accordance with Art. 2 of Council Regulation (EC) 44/2001 ("the Regulation", the successor to the Brussels Convention), in France, its country of domicile.

3

The Claimant's answer is that it and the Defendant were or, pursuant to the Carriage of Goods by Sea Act 1992 ("COGSA 1992") are to be treated as, parties to a bill of lading contract, which incorporated by reference to a charterparty, inter alia, an exclusive English jurisdiction clause ("the EJC"). Accordingly, the Claimant contends that this Court has jurisdiction to entertain these proceedings, by virtue of Art. 23 of the Regulation. No other basis is asserted for English jurisdiction or for displacing the basic rule under the Regulation, namely that in accordance with Art. 2, a defendant is to be sued in the courts of his domicile.

4

Art. 23 of the Regulation provides as follows:

" 1. If the parties, one or more of whom is domiciled in a Member State, have agreed that a court or courts of a Member State are to have jurisdiction to settle any disputes which have arisen or may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. Such an agreement shall be either:

(a) in writing or evidence in writing; or

(b) in a form which accords with practices which the parties have established between themselves; or

(c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned… "

5

The principal issue on this application is whether the EJC was incorporated into the bill of lading. If it was, then the Defendant's application must be dismissed. If it was not, then the Defendant's application must succeed, subject only to a point as to an alleged concession made by the Defendant in French proceedings concerning a lien ("the concession point").

THE FACTS

6

I turn to the facts; for present purposes, these may be shortly summarised.

7

By a voyage charterparty on the ASBATANKVOY form, dated 16 th October, 2001 ("the charterparty"), the Claimant chartered its vessel, the "SIBOTI" ("the vessel") to Enron International Corporation ("EIC") through Enron Europe Finance and Trading Limited London ("EEFT"), as charterer, for, in the event, the carriage of clean petroleum products from India to France, via Malta.

8

At Malta part of the cargo was discharged for blending in shore tanks; subsequently, some 30,000.945 mt of blended gasoil ("the cargo") was re-loaded onto the vessel.

9

By a bill of lading, dated Malta 19 th November, 2001 ("the bill of lading"), the Claimant acknowledged shipment of the cargo in apparent good order and condition by Enron Capital and Trade Resources International Corp. ("ECTRIC") through EEFT, for carriage to and delivery at Sete, France.

10

At Sete, the cargo was discharged into shore tanks, for the account of the Defendant, the ultimate purchaser of the cargo.

11

Doubtless due to the Enron group's financial difficulties, EIC failed to pay any of the freight (US$1.4 million) or loadport demurrage (US$131,000) alleged by the Claimant to be due and owing in respect of the carriage of cargo from India.

12

In consequence, the Claimant asserted a lien over the cargo in the shore tanks at Sete and obtained from the French Court two "saisies conservatoire" to secure its claim to freight and demurrage respectively.

13

Before the French Court, the Defendant contended that there was no lien. As I understand it, the French Court has upheld the lien but on procedural rather than substantive grounds.

14

For completeness, the freight and demurrage claimed by the Claimant has still not been paid by EIC. An arbitration award in the Claimant's favour against EIC remains unsatisfied.

15

In these proceedings, the Claimant seeks to recover from the Defendant the amounts allegedly outstanding in respect of freight and demurrage. The claim is brought under the bill of lading. The Claimant alleges that the Defendant, as an indorsee of the bill of lading, is a lawful holder thereof pursuant to s.2 (1) of COGSA and that, by taking delivery of the cargo under the bill of lading, became subject to the outstanding liabilities thereunder, pursuant to s.3(1) of COGSA. Such liabilities include liabilities in respect of the freight and demurrage allegedly due to the Claimant under the charterparty.

THE CONTRACTUAL TERMS

16

The charterparty: As foreshadowed, the charterparty was on the ASBATANKVOY form. By cl. M of Part I of the charterparty, Special Provisions Nos. 1–14 were incorporated therein. Special Provision 14 provided that "Enron clauses as amended and attached are incorporated" in the charterparty. The "Enron clauses" were in fact the ECTRIC Charter Party Clauses ("the ECTRIC clauses"), dated January 1, 1996. ECTRIC it will be recollected was the shipper under the bill of lading, to which I shall return in due course. Cl. 49 of the ECTRIC clauses is central to the present dispute; it provided as follows:

" 49. GOVERNING LAW/ DISPUTE RESOLUTION

Notwithstanding anything to the contrary contained in this Charter Party (including Part II), the parties hereby agree as follows:

(a) This Charter Party shall be construed and interpreted in accordance with, and governed by, the laws of England ….

(b) Subject to subclause (c) below, any dispute of whatsoever nature arising under this Charter Party shall be determined by the English [Court] … and the parties hereby expressly submit to the exclusive jurisdiction of the English … Courts and to service of process by certified or registered mail sent to the address for such party as set forth in Part I hereof.

(c) Notwithstanding the foregoing… either party may … elect to have any such dispute referred (and exclusively determined by) … arbitration in London …

(d) It is expressly understood that this Clause supersedes the Arbitration and Interpretation clauses in Part II hereof.

(e) All bills of lading under this Charter Party shall incorporate this exclusive dispute resolution clause….."

There followed various (unnumbered) Additional Clauses, two of which provided as follows:

" COMMERCIAL COURT LONDON

This charterparty shall be governed by and construed in accordance with English law and the English courts have jurisdiction in respect of all disputes arising out of this charter party.

LONDON ARBITRATION

This charterparty shall be governed by and construed in accordance with English law and any dispute arising out of this charterparty shall be referred to arbitration in London …"

17

Pausing here, it is plain and was not in dispute that the charterparty was governed by English Law (cl.49(a)). Further, it seems clear that the dispute resolution regime under the charterparty provided for the exclusive jurisdiction of the English Court (cl. 49(b)), subject only to the right of election for London arbitration (cl.49(c)). The additional unnumbered clause spelled out these jurisdiction provisions. In effect, this jurisdiction regime superseded the references to arbitration contained in the standard ASBATANKVOY form provisions found in Part I and Part II of the charterparty.

18

The bill of lading: The bill of lading provided as follows:

" This shipment is carried under and pursuant to the terms of the charter dated between and … and all the terms whatsoever of the said charter apply to and govern the rights of the parties concerned in this shipment."

As is apparent, this provision did not supply the date of the charterparty in question nor the names of the parties thereto. There is, however, no realistic doubt that the charterparty in question was the charterparty (dated 16 th October, 2001, between the Claimant and EIC).

THE RIVAL CASES IN OUTLINE

19

I turn to the rival cases in outline, leaving over the concession point for separate consideration at the end of this judgment.

20

Before proceeding further, it is convenient to explain the references which follow to English and Community Law. It was common ground between the parties that the question of whether as between the Claimant and the Defendant (as holder of the bill of lading), in isolation, the EJC was incorporated in the bill of lading was to be approached by reference to Community Law. That said, there was no or no serious dispute that under the bill of lading a holder would succeed to the rights and obligations of the shipper. As there was at least some doubt as to the domicile of the shipper (ECTRIC) and, accordingly, as to the applicability of Community Law to the...

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