Boluda Towage Rotterdam BV & Ors v Elise Tanschiffahrt KG & Anor

A jurisdiction clause signed by shipmasters binds their principals only to the extent shown by its terms and intended effect. It does not, without more, confer jurisdiction over non-contracting parties or permit claims by a party that is not entitled or bound under the clause.

Where a party has accepted the court’s jurisdiction and seeks a stay in favour of foreign proceedings, the stay will be refused where the dispute is contractually governed by English law and subject to an English jurisdiction agreement. The presence of peripheral parties in the foreign proceedings is not a sufficient reason to permit duplicative litigation between the principal contracting parties. An interim anti-suit injunction may restrain the foreign proceedings pending determination of the agreement’s final validity.

The claim arose from assistance rendered by the tug VB Rebel to the tanker Stela. The owners and crew of the tug claimed salvage remuneration and sought an interim anti-suit injunction in respect of proceedings brought in the Netherlands by the tanker’s owner and charterer.

The claimants relied on a Certificate of Safe Delivery signed by both masters, containing an agreement that disputes arising from the tug’s services would be settled in London under English law. The defendants challenged jurisdiction in relation to Boluda and the charterer, and sought a stay of the claims by Rebel and the crew against the owner in favour of the Dutch proceedings. The central issues were the scope of the jurisdiction clause, the arguability of non est factum or unilateral mistake, and whether a stay or anti-suit injunction was appropriate.

1. Scope of the jurisdiction clause. Objectively, the signatures of the two masters purported to bind their principals to settle disputes arising from the tug’s services in London under English law. On the evidence available for the interim applications, any defence based on non est factum or unilateral mistake was speculative and highly unlikely. That provisional assessment did not determine the issue finally.
2. Claims involving non-contracting parties. The clause’s plain purport was to govern claims between the tug owner, Rebel, and the tanker owner. There was no arguable basis for jurisdiction over the charterer, which was not shown to be bound by the clause. The charterer’s participation in the Dutch proceedings did not justify anti-suit relief. Likewise, Boluda, which claimed no salvage reward or other remuneration, was not entitled or bound under the clause and had no basis for jurisdiction or anti-suit relief.
3. Stay application. The owner had accepted the court’s jurisdiction over Rebel’s and the crew’s claims against it, but sought a stay on forum non conveniens grounds. The application was ill-founded. The English court was the more appropriate forum for deciding whether the English law and jurisdiction agreement was binding and, if binding, for determining the substantive claims. The involvement of other parties in the Dutch proceedings did not justify duplicative litigation between the principal parties. The reasoning in Donohue v Armco Inc & Others [2001] UKHL 64 did not require a different result.
4. Relief and case management. The proceedings were set aside to the extent brought by Boluda or against the charterer. The stay application was dismissed. An interim anti-suit injunction was granted, on Rebel’s application, restraining the owner from further prosecuting the Dutch proceedings insofar as they involved claims by the owner against Rebel, pending trial or further order. The final validity of the jurisdiction clause and any case-management separation of issues were left for later determination.