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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> OT Africa Line Ltd. v Magic Sportswear Corporation & Ors [2004] EWHC 2441 (Comm) (03 November 2004) URL: https://www.bailii.org/ew/cases/EWHC/Comm/2004/2441.html Cite as: [2004] EWHC 2441 (Comm), [2005] 1 Lloyd's Rep 252 |
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QUEENS BENCH DIVISION
COMMERCIAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
O.T. AFRICA LINE LIMITED |
Claimant |
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- and - |
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1) MAGIC SPORTSWEAR CORPORATION (2) BLUE BANANA (3) EASTERN MARINE UNDERWRITERS INC (4) CNA CANADA HOLDINGS INC (5) SUBROGATEWAY INC |
Defendants |
____________________
Mr M. McParland(instructed by Clyde & Co) for the Defendants
Hearing date: 20th October 2004
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Crown Copyright ©
Introduction
The Dispute
The Bill of Lading
"24. USA/CANADA CLAUSE
If the Bill of Lading covers the transportation of the goods to or from ports of the United States of America or Canada this Bill of Lading shall be subject to United States Carriage of Goods by Sea Act 1936 and/or subject to Carriage of Goods by Water Act 1936 of Canada which shall be incorporated herein and the provisions of said act shall govern before loading and after discharge and throughout the entire time the goods are in the custody of the Carrier. If anything herein contained to be invalid or unenforceable under the provisions of said act such circumstances shall not affect the validity or enforceability of any other part or term of this Bill of Lading. The Carrier shall not be liable in any capacity whatsoever for loss, damage or delay of goods while the goods are not in his actual custody.
25. LAW AND JURISDICTION
(1) Any claim or dispute whatsoever arising in connection with the carriage under the Bill of Lading shall exclusively be governed by English law and determined by the High Court of London.
(2) In the event that anything herein contained is inconsistent with any applicable international convention or national law which cannot be departed for private contract, the provisions hereof shall to the extent of such inconsistency but no further be null and void."
The Canadian Proceedings
Section 46
"46(1) If a contract for the carriage of goods by water to which the Hamburg Rules do not apply provides for the adjudication or arbitration of claims arising under the contract in a place other than Canada, a claimant may institute judicial or arbitral proceedings in a court or arbitral tribunal in Canada that would be competent to determine the claim if the contract had referred the claim to Canada where:
(a) the actual port of loading or discharge under the contract, is in Canada;
(b) the person against whom the claim is made resides or has a place of business, branch or agency in Canada; or
(c) the contract was made in Canada."
The English Proceedings
The Anti-Suit Injunction
The Decisions in Canada
"In this case, taking into account all of the facts and surrounding circumstances relating to the shipment of goods from New York to Monrovia, including the value of the goods, the fact that the true Plaintiffs are in Canada, the Defendants have business interests in Canada, and most particularly the fact that most if not all of the material witnesses will come from Monrovia and/or New York, (which factor favours neither England nor Canada), I find that the most convenient and appropriate forum for the determination of the Plaintiff's claim, including the interpretation and application of English law, is this Court."
Joinder of the Insurers
i) CPR Rule 6.20(8)(a) that a claim was made in tort where damage was sustained within the jurisdiction. The tort alleged was procuring a breach of contract by Magic and Blue Banana by procuring those companies to commence the proceedings in Canada in breach of Clause 25 of the Conditions of the bill of lading. The damage relied upon was the legal costs of the proceedings against Magic and Blue Banana in England.
ii) CPR Rule 6.20(17) that OTAL sought an order that the court exercise its power under Section 51 of the Supreme Court Act 1981 to make a costs order against the insurers who were not parties to the proceedings.
The Applications
i) Service of the Claim Form and Particulars of Claim against the insurers be set aside pursuant to CPR Part 11;
ii) The proceedings against Magic and Blue Banana be stayed; and
iii) The anti-suit injunction against Magic and Blue Banana be discharged.
A: Procuring a breach of contract/CPR 6.20(8)(a)
B. Third Party Costs Order
CPR 6.20(3)
Conclusion
i) As Mr Collins submitted, in cases in which an anti-suit injunction is sought in this court, by definition the courts of another country have or at least are said to have jurisdiction over the same subject matter.
ii) It is a principle of such injunctions that they operate personally upon the party injuncted. They are not directed at, let alone against, the courts of the other country. That said, it cannot be gainsaid that at least indirectly they may have such an effect: Turner v Grovit [2004
] 2 Lloyd's Rep 169.
iii) The Canadian courts have not yet finally determined that an assertion of jurisdiction is appropriate. Equally my own decision is one which may be the subject of an appeal.
iv) Mr McParland submitted that this was a case in which the court should be particularly cautious before it injuncted the insurers because it could not be satisfied that if such an order were to be disobeyed it would impose any sanction on the party in default: see Re Vocalian (Foreign) Ltd [1932] 2 Ch 196, per Maugham J at 205. But the insurers are before the court and I see no reason to suppose (nor was it submitted) that if injuncted they would nonetheless necessarily determine to proceed in Canada nor that if they did they would be beyond the reach of appropriate sanctions. Nor do I think that, in the event of breach, this court would have any hesitation in imposing such sanctions as it might think appropriate in the circumstances.
v) Section 46 of the Canadian Maritime Liability Act 2001 is not the product of an international convention. Canada has not adopted the Hamburg Rules themselves. But the Section gives rise to considerations which may well not be unique to Canada, and indeed could arise under the Hamburg Rules themselves.