Golden Endurance Shipping SA v RMA Watanya S.A. & Ors

An English law clause, without an English jurisdiction or arbitration clause, does not ordinarily make England the exclusive or clearly appropriate forum, nor does it make foreign proceedings unconscionable. An anti-suit injunction may nevertheless be ancillary to contractual proceedings where the English court has jurisdiction over the defendant and the injunction protects that jurisdiction or its processes. Where the contractual gateway is satisfied, ancillary injunctive relief and damages under Senior Courts Act 1981, section 50 may proceed without a separate jurisdictional gateway. A bill of lading is construed as a commercial document, and clearly printed conditions may prevail over an inconsistent reference on its face.

The claimant, the head owner of a vessel carrying wheat bran pellets to Morocco, sought declarations, damages and anti-suit relief concerning Moroccan cargo proceedings. The bills of lading incorporated charter-party terms, including English law and, for one bill, London arbitration. The defendants challenged service out and jurisdiction. The claimant also sought continuation of an anti-suit injunction against the first three defendants.

The principal issues were whether the charter-party and its arbitration or English law provisions were incorporated; whether the contractual gateway was satisfied; whether the Moroccan proceedings should be restrained; whether England was clearly the more appropriate forum; and whether the ex parte order should be set aside.

1. Incorporation of bill terms. The Lomé bill’s clearly printed reverse-side conditions were incorporated despite the front page referring to the 1978 edition and the reverse referring to the 1994 edition. The Starsin did not establish that the front page must prevail. The commercial reader would give effect to the legible conditions printed in the bill.
2. Charter-party and gateways. The fixture recap and subsequent charter-party documentation established at least a good arguable case, and ultimately a sufficient case, that the charter-party was incorporated. An executed charter-party was unnecessary where its terms had been agreed and were readily ascertainable. The English law gateway was therefore satisfied for the Owendo and Takoradi bills, and the arbitration gateway was satisfied for the Lomé bill. An injunction supporting the London arbitration was available under section 37 of the Senior Courts Act 1981, applying AES Ust-Kamenogorsk.
3. Pledge and serious issue. The effect under Moroccan law of the pledge concerning discharge and destruction of the cargo could not be resolved on the conflicting expert evidence. There was consequently a serious issue to be tried concerning the claimant’s contractual damages claims.
4. Ancillary relief. Although an anti-suit injunction is not itself within the contractual gateway, it may be ancillary to proceedings within that gateway. Following Masri, no separate jurisdictional basis was required for an injunction or section 50 damages ancillary to the contractual claims.
5. Forum conveniens and anti-suit relief. English law was a significant factor favouring England, particularly because Morocco would apply the Hamburg Rules while England would apply the Hague Rules. It made England clearly the more appropriate forum for the contractual claims. That factor did not, however, justify restraining the Moroccan proceedings. In the absence of an exclusive jurisdiction or arbitration clause, parallel proceedings were not necessarily vexatious or oppressive. The alleged public policy favouring the Hague Rules did not create an exception to that principle.
6. Orders. The application to set aside the English proceedings concerning the Owendo and Takoradi bills was dismissed. The anti-suit injunction concerning those bills was refused. The claimant succeeded concerning the Lomé bill, and an injunction restraining the Moroccan proceedings in favour of the London arbitration was granted.