Horn Linie GmbH & Co v Panamericana Formas E Impresos SA & Anor

Under Article 8(2) of the Rome Convention, the question whether it is unreasonable to determine consent by the law chosen in the contract must be approached dispassionately and internationally. The court should not decide that preliminary question by applying either the law of the challenging party’s habitual residence or the law specified in the contract. Commercially experienced parties who contract through forwarding agents may be bound by an express choice of law and exclusive jurisdiction. A foreign public-policy objection does not, by itself, negate genuine consent.

Where foreign proceedings substantially circumvent an exclusive jurisdiction clause and threaten parallel litigation under a different law, an anti-suit injunction may be granted against parties amenable to the English court, subject to the court’s cautious and discretionary jurisdiction.

The claimant, a German shipowner, issued English proceedings concerning the loss of printing machinery carried from Hamburg to Cartagena. The bill of lading contained an express choice of English law and exclusive English jurisdiction, incorporated the Hague-Visby Rules, and included a Himalaya clause.

The cargo insurers procured Colombian proceedings against the claimant’s Colombian maritime agent under provisions of the Colombian Code of Commerce. They challenged the English court’s jurisdiction, arguing that Colombian law governed consent and rendered the contractual clauses contrary to Colombian public policy. The claimant sought an anti-suit injunction. The court also considered joinder and amendment issues.

1. Choice of law and consent. The court followed the approach in Egon Oldendorff v Liberia Corporation [1995] 2 Lloyd’s Rep 64. Article 8(2) requires a preliminary, dispassionate assessment of whether it would be unreasonable to determine the effect of the alleged consent by the law specified under Article 8(1). That assessment should not be made by applying either Colombian law, as the law of habitual residence, or English law, as the chosen law.
2. The defendants had entered into the carriage contract through their forwarding agent. The parties were commercially experienced and must be taken to understand that international carriage contracts commonly contain jurisdiction and choice-of-law clauses. There was no sufficient reason to treat their consent as unreal or ineffective merely because the clauses might offend Colombian public policy. Clause 37 was therefore effective.
3. Anti-suit relief. The court adopted the principles summarised in Akai v People’s Insurance Co Ltd [1998] 1 Lloyd’s Rep 90 and reaffirmed in Donohue v Armco Inc [2002] 1 Lloyd’s Rep 425. The jurisdiction is discretionary and must be exercised when the ends of justice require it. An injunction is directed against the parties, not the foreign court, and must be granted cautiously against persons amenable to the English jurisdiction.
4. The Colombian claim against Maritrans was effectively a claim arising from the contract of carriage. The fact that it was brought against the agent rather than the shipowner did not materially avoid the exclusive jurisdiction clause. The court considered that the Himalaya clause also gave the agent a good arguable case for protection, although that issue was unnecessary to the decision.
5. England was a neutral and convenient forum. The Colombian proceedings sought to avoid the parties’ contractual bargain and created the risk of inconsistent decisions under different legal systems. No exceptional reason justified refusing relief. An anti-suit injunction was granted against ACE. ACE was joined as a necessary and proper party; Maritrans could be joined; and the claimant could amend its negative-declaration claim to plead the limitation issue. Costs were to be considered when the order was drawn up.