Med Marine v Castillo Schiffahrts-Gmbh & Co. KG MS & Anor

For an application challenging jurisdiction, the claimant bears the burden of establishing the jurisdictional basis. Where jurisdiction under the Judgments Regulation is challenged, the claimant must show a good arguable case, meaning that its argument is materially stronger on the available evidence.

Contractual jurisdiction clauses incorporated by reference must be construed with the express terms of the contract and in their commercial context. An apparently general jurisdiction clause may be confined to the obligation with which it is associated. Separate clauses do not create an issue of coexistence where they govern distinct classes of dispute. A defendant that acknowledges service before formal service may waive the need for service while retaining its right to contest jurisdiction.

The claimant, a Turkish provider of tugboat, pilotage and mooring services, sought a declaration of non-liability against the registered owner and demise charterer of a vessel. The defendants applied under CPR Part 11 to contest jurisdiction, set aside service and dismiss the claim.

The booking note incorporated the UK Standard Conditions for Towage and Other Services (Revised 1986), which contained an exclusive English jurisdiction clause. It also stated that the Istanbul courts and enforcement offices were competent to resolve disputes. The issues were whether the Istanbul clause applied to all disputes, whether it displaced the incorporated English clause, whether the clauses could coexist, and whether permission was required to serve the second defendant out of the jurisdiction.

1. Applications dismissed. The defendants failed to establish that the claimant lacked a good arguable case that the English court had jurisdiction.
2. The jurisdiction clause in the booking note had to be construed in context. The Istanbul provision appeared in the part dealing with unpaid invoices and therefore applied only to disputes concerning fees due for services rendered. It operated as an exception permitting proceedings in Istanbul for unpaid fees. It did not displace the incorporated exclusive English jurisdiction clause for other disputes.
3. The court treated the construction of the two provisions together. Since they applied to different classes of dispute, there was no conflict or question of one party’s election preventing proceedings in the other forum.
4. The defendants’ argument concerning the second defendant was flawed. Form N510 had been prepared only in relation to the first defendant. The claim form had not been served on the second defendant, which had acknowledged service before actual or purported service. Under CPR Part 11, sub-paragraph 3, the acknowledgment did not waive the right to challenge jurisdiction; however, by acknowledging service in advance, the second defendant waived the need for service of the claim form.
5. The judge added that, even if permission to serve out had been required, he would have extended the claim form’s validity and granted permission. England was plainly the appropriate forum because the contract contained an exclusive English jurisdiction clause, was governed by English law, and the related proceedings were expected to continue in the Commercial Court. That observation was not necessary to the decision.

First-instance decision. No prior appellate decision is stated in the judgment.