Maersk Guiné-Bissau SARL & Anor v Almar-Hum Bubacar Baldé SARL

Contractual standard terms are incorporated where the customer is given reasonable notice of them and objectively assents to them, including through an online booking process. An exclusive jurisdiction clause commonly contains a negative promise not to sue elsewhere. A broadly drafted Himalaya clause may create enforceable rights for a subcontractor, including a damages claim and, where its wording is sufficiently clear, enforcement of an exclusive jurisdiction clause.

Under section 6(5) of the Contracts (Rights of Third Parties) Act 1999, a third party to a contract for carriage of goods by sea may use an exclusion or limitation of liability, but cannot rely on the Act to enforce a jurisdiction clause or claim damages. A foreign judgment obtained in breach of an exclusive jurisdiction agreement, without submission, need not be recognised under section 32 of the Civil Jurisdiction and Judgments Act 1982.

Maersk A/S contracted to carry Almar-Hum’s timber cargo from Guinea-Bissau to China. Maersk Guiné-Bissau operated locally and issued the bills of lading on Maersk A/S’s behalf. The contracts incorporated Maersk’s standard terms, including a Himalaya clause and an exclusive English jurisdiction clause.

After disputes with the Guinea-Bissau authorities, bills of lading were seized or delivered to local authorities. Almar-Hum later commenced proceedings in Guinea-Bissau against Maersk Guiné-Bissau and obtained a judgment. In the present liability trial, conducted in Almar-Hum’s absence, the claimants sought damages or an indemnity for breach of the contractual clauses and declarations of non-liability. The central issues were incorporation, enforceability by both claimants, recognition of the foreign judgment, and alleged liability for delay.

1. Disposition. The claimants established liability for damages or an indemnity arising from Almar-Hum’s breach of the exclusive jurisdiction and Himalaya clauses. They also established that neither claimant was liable to Almar-Hum under or in relation to the contracts of carriage.
2. Incorporation. The rate sheet, online booking process, hyperlinks, acceptance tick-boxes, booking buttons and draft bills of lading gave reasonable notice of Maersk’s standard terms and objectively demonstrated assent. The terms were not excluded as onerous or unusual. The Himalaya clause and exclusive jurisdiction clause were common contractual provisions, and the latter had also been specifically referenced in the rate sheet.
3. Enforcement by Maersk A/S. The Guinea-Bissau proceedings breached the exclusive jurisdiction clause, which contained a negative promise not to sue elsewhere. They also breached the undertaking not to bring claims against Maersk A/S’s subcontractors, triggering the contractual indemnity.
4. Enforcement by Maersk Guiné-Bissau. The broadly worded Himalaya clause created a collateral contract through which the local company could enforce the relevant protections. At common law, that enforcement included a damages claim and the exclusive jurisdiction clause. The Contracts (Rights of Third Parties) Act 1999 independently permitted reliance on the exclusion or limitation of liability, but section 6(5) did not permit a damages claim or enforcement of the jurisdiction clause under the Act. The clause was enforceable at common law. The Mahkutai was distinguishable because its wording was narrower.
5. Foreign judgment. The Guinea-Bissau judgment could not create a res judicata. Section 32 of the Civil Jurisdiction and Judgments Act 1982 applied because the proceedings breached the exclusive jurisdiction agreement, were not brought with Maersk Guiné-Bissau’s agreement, and Maersk had neither counterclaimed nor submitted to the foreign jurisdiction. The judgment was also not shown to be final under Guinea-Bissau law, and the proceedings denied natural justice by preventing Maersk from advancing its defence and appeal.
6. Non-liability. Maersk Guiné-Bissau was not the contractual carrier and was protected by the Himalaya clause. In any event, the claims were time-barred under Article III rule 6 of the Hague Rules, excluded by clause 8.1, and defeated by Almar-Hum’s breach of clause 15.3. No breach by Maersk was established. Any delay was caused by Almar-Hum’s failure to satisfy the Guinea-Bissau authorities and, independently, by its inability to provide CITES certificates. Declarations of non-liability were therefore granted.