Swissmarine Services SA v Gupta Coal India Private Ltd
| Jurisdiction | England & Wales |
| Judge | Judge Mackie |
| Judgment Date | 15 January 2015 |
| Neutral Citation | [2015] EWHC 265 (Comm) |
| Date | 15 January 2015 |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | No: 2012 Folio No.833 |
[2015] EWHC 265 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
7 Rolls Building
Fetter Lane
London
EC4A 1NL
His Honour Judge Mackie QC
(Sitting as a Judge of the High Court)
No: 2012 Folio No.833
Mr John Passmore (instructed by Holman Fenwick Willan LLP) appeared on behalf of the Claimant
The Defendant did not attend and was not represented
Approved Judgment
Thursday, 15 January 2015
This has been the trial of an action between SwissMarine Services SA and Gupta Coal India Private Limited. At an earlier point in the proceedings, I permitted the claimant to amend its damages claim for the reasons which I gave and I also explained why a couple of emails which have come in from the Defendant's lawyers in India the day before the trial, do not affect the court's decision that the case should go ahead today.
The claimant brought these proceedings in 2012. The Defendant has been engaged in litigation in India challenging the jurisdiction of this Court. The Indian proceedings led to a decision that the English court has jurisdiction. The Defendant Gupta has played no active part in the case. There has been no Defence, evidence or representation. The result is that the trial has had to proceed without the benefit of assistance from the defendant. I have done my best to look at things from the point of view of the defendant and, from time to time, have asked Mr Passmore, who represents the claimant, to assist me in that task. However, the defendant is not some helpless litigant in person or a defendant unable actively to participate because of some embarrassment of jurisdiction. If points open to the defendant have not been taken, it is the defendant's fault. It should instead have represented itself in some way at the trial.
The substantive claim is for damages for breach of a contract of affreightment. As I say, there is no Defence. In support of the claim I have a substantial number of bundles of documents relating to the contract and to the earlier proceedings. The earlier proceedings consisted of the Indian action which I have mentioned and also an earlier English anti-suit application which the claimants had brought successfully but then later sought to modify, and were permitted to modify, for reasons relating to the Indian proceedings.
The evidence consists of three witness statements, two from Mr Peter Weernink, the managing director of SwissMarine, and one from Miss Elizabeth Leonhardt, the general counsel for SwissMarine. Neither witness has given live evidence but their statements are relied on as hearsay by the claimant. Much these witness statements consist of a recitation of what happened, supported by what appear to be relatively uncontroversial documents. So it does not seem to me that the defendant would have had much to cross-examine about on that aspect of the case. Perhaps the most controversial aspect of the evidence is the basis upon which a claim for damages is put forward, and I will come to that.
Before turning to the case in a little more detail, I should make clear, to avoid any misunderstandings, that while the active discussion at this trial has taken only one and a half hours, I have spent a considerable period of time reading and digesting all the documents that were placed before me. The conclusions I have reached are therefore the product of that reading as well as the discussion with counsel today.
The claimant says that there was a contract of affreightment dated 3 October 2011 and that it has been broken in two main respects. First, the claimant says that there has been a failure to nominate the last four of six shipments of coal which should have been made under the contract. Secondly, the claimant says that it has suffered financial loss as a result of the defendant bringing proceedings in India contrary to what the claimant says is an exclusive English jurisdiction clause in the contract.
It is clear from the evidence of Mr Weernink and the documents placed before me that there was a contract of affreightment. When one looks at the email traffic from the defendant, it seems clear that there was no dispute about that at the time when the obligations under the contract took effect. The contract was made via a joint broker, Saigal Seatrade Private Limited. In the usual way, the main terms were agreed by way of recap and then later charterparty details were agreed. These were based on a pro forma charterparty which the defendant provided. There was some negotiation about that. The claimants asked for a dispute resolution clause providing for English law and exclusive jurisdiction for this court except for disputes for less than 100,000 US dollars which were to go to LMAA Small Claims Arbitration.
That was eventually accepted and agreed by Gupta and the fact that there was an issue about that is confirmation that they were well aware, or should have been well aware, that the contract contained a requirement that disputes of any size would be decided under English law and by the English court.
A clean fixture recap was sent by the broker to both parties on 3 October 2011. At first things went well in the sense that Gupta made two nominations, the first was on 13 October 2011 for a laycan of 16 to 30 November 2011, the second one was made subsequently for a laycan 21 January to 3 February 2012.
By early February 2012, Gupta was running into problems in despatching cargo from Krishnapatnam, the usual discharge point, and these difficulties continued. Gupta told the claimants about that in correspondence. The claimant responded holding Gupta to the contract and threatening legal steps if Gupta did not comply. A third nomination was made in March 2012 but did not materialise. No further nominations were made and, as a result, on 23 May 2012 the claimant terminated the deal in terms which made it clear that they were accepting what they saw as a wrongful repudiation of the contract by Gupta.
Before that, there had been, as I said, correspondence and I mention an exchange which took place on 17 April 2012, because it is relevant to the claimant's calculation of its losses.
On 17 April, the defendant apologised for the delay which had been taking place, giving a number of commercial reasons why that had happened. At the end of the email the defendant says:
"Charterers once again apologise for all this confusion and would like to assure Owners they had full intentions to try and perform the liftings but the end logistics have hampered and disrupted all the planning they had done in Oct last when they won the Tender …"
The response from the claimant, from Miss Leonhardt in Geneva was this:
"Please pass on to charterers [that is to the broker].
Below message is highly disappointing and simply unacceptable to owners. Once again charterers fail to perform as per earlier agreement and once again this only comes to light when the intended vessel is in ballast and 14 days away from load port, and only upon owner's nomination."
The message goes on in similar vein, before concluding:
"Therefore owners once again strongly suggest charterers find a way to perform on capes or consequently, we shall have no choice but to seek proper compensation via legal procedures.
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...Services SA v Gupta Coal India Private Limited [2015] EWHC 265 (Comm) The Claimant and Defendant entered into a COA which contained an English law and jurisdiction clause. When the Defendant failed to comply with the terms due to difficulties in despatching and shipping the cargo, the Claim......
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