Euronav Shipping NV v Black Swan Petroleum DMCC [2024] EWHC 896 (Comm)

26 April 2024

Ø   Anti-anti-arbitration injunction

Ø   Applicable test for a contractual interim anti-suit

Ø   American Cyanamid test

Ø   Principles of bailment

Ø   Conflict between arbitration and court proceedings in separate jurisdictions

Ø   Comity of High Court of England and Wales and High Court of Malaysia

HHJ Pelling KC held:

·             “It is for the applicant to prove to “a high degree of probability” that there is an arbitration agreement which governs the dispute in question … If that requirement is satisfied then the Court will ordinarily exercise its discretion to restrain the pursuit of proceedings brought in breach of an arbitration agreement unless the defendant can prove strong reasons to refuse the relief sought”.

·             “[he] cannot conclude that what would otherwise be a breach of an arbitration agreement has ceased to be so because Euronav has voluntarily submitted to the jurisdiction of [a foreign court]”.

·             When the question whether the claimant here, asking for an anti-anti-arbitration injunction, has submitted to the jurisdiction of the foreign court is pending before the foreign court, the appropriate course is to adjourn the claimant’s application with liberty to restore it following the final determination of the question by the foreign court. 

Maersk Guine-Bissau, SARL v Almar-Hum Bubacar Balde S.A.R.L. [2024] EWHC 993 (Comm)

29 April 2024

Ø   Incorporation of contractual terms

Ø   Bills of lading

Ø   Enforceability of exclusive jurisdiction clause by a third party covered by a “Himalaya” clause

Ø   Whether judgment of a foreign court gives rise to res judicata estoppel here

Ø   Claim by Claimants for declaration of non-liability in respect of delays in performance of contracts of carriage

Jacobs J held:

·              “Almar-Hum’s primary case seeks to attack the entirety of Maersk’s standard terms. In my view, this is a bold and unsustainable approach. I know of no authority in which holds the entirety of the terms of a bill of lading (or indeed of any contract) has been held not to be binding on a party, because of the alleged onerous or unusual nature of the clauses as a whole. Indeed, the terms of bills of lading have, under English law, been enforced by the English courts against shippers and subsequent holders of the bills for well over 100 years. It is probable, in my view, that the shippers in many of those cases received far less notice, of the terms of the contract of carriage, than Almar-Hum received in this case. Almar-Hum had done business with Maersk A/S previously, had received the rate schedule, had ready access to Maersk’s terms, had ticked or clicked the appropriate box/ buttons when making the booking, and had received draft bills of lading”.

·             An appropriately drafted Himalaya clause will enable a third party to rely upon an exclusive jurisdiction clause at common law. Carver on Bills of Lading 5th edition section 7-079 applied and in particular the following passage, “This decision was, however based on the construction of the Himalaya clause there used, so that the case leaves open the possibility that the parties could by the use of sufficiently clear words make the benefit of an exclusive jurisdiction clause available to a third party; and, since at common law it would so be available by virtue of a separate or collateral contract, there would be no difficulty in principle in also imposing obligations on the third party”. Jacobs J held that “this passage also supports my earlier conclusion that enforcement by Maersk GB of the terms of the Himalaya clause (including, here, the EJC expressly referred to therein) is not confined to Maersk enforcing the clause by way of a defence, but extends to enforcement of a claim for damages based upon breach of the clause.”

·             The Guinea-Bissau judgment did not give rise to any res judicata estoppel for a number of reasons, including that “… there had been a denial of natural justice from the perspective of English law. The position was that a very substantial claim had been made against Maersk GB. That company had not invoked the jurisdiction of the Guinea-Bissau courts, and indeed its position was that [that court] had no jurisdiction in relation to the claim. The company was simply seeking to defend itself, and in my view, it is contrary to natural justice for a defendant to be refused the opportunity to defend itself unless court fees were paid.”

·             The Claimants were entitled to a declaration of non-liability on various grounds, namely

o     (1) “Maersk GB was not the carrier under the contracts of carriage, it can have no liability in respect of any alleged non-performance of mis-performance of those contracts by Maersk A/S”

o     (2) “Article III Rule 6 of the Hague Rules provides a 1-year time limit for the commencement of suit…The proceedings wrongly brought by Almar-Hum in Guinea-Bissau therefore do not prevent the 1-year time bar from taking effect”

o     (3) “In my view, the claims advanced by Almar-Hum are all in respect of alleged delay, whether in relation to issuing bills of lading but also more generally in relation to the arrival and discharge of the goods in China. As such, they are barred by Clause 8.1”

o     (4) “such delays as occurred were a consequence of Almar-Hum’s dispute with the government or state of Guinea-Bissau, and Almar-Hum’s unwillingness and failures to meet its obligations in that regard”

o     (5) “I do not consider that any breach of the contracts of carriage has been established”

o     (6) “any breach by the Claimants (even if proved) in relation to the bills of lading, or any other aspect of the carriage, was not causative of any delay suffered by Almar-Hum. Almar-Hum would have suffered such loss anyway, because of a separate and independent cause”.