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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Welex A.G. v Rosa Maritime Ltd. [2003] EWCA Civ 938 (03 July 2003) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2003/938.html Cite as: [2003] 2 CLC 207, [2003] EWCA Civ 938, [2003] 2 LLR 509, [2003] 2 Lloyd's Rep 509 |
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A3/02/2231 |
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM COMMERCIAL COURT
MR. JUSTICE DAVID STEEL
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE MAY
and
LORD JUSTICE TUCKEY
____________________
WELEX A.G. |
Appellant |
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- and - |
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ROSA MARITIME LIMITED |
Respondent |
____________________
Karen TROY-DAVIES (instructed by Brookes & Co.) for the Respondent
Hearing dates : 9th 10th 11th June 2003
JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
____________________
Crown Copyright ©
Lord Justice Tuckey:
The facts
47. As written by hand "London".
Shortly before the recap Mr Suzer had sent the charterers' standard charterparty showing the alterations which had been agreed. Clause 47 of the standard charter said:
Arbitration if any to be settled in Hamburg in accordance with the rules of the GMAA.
but the word "Hamburg" had been crossed out and "London" added in manuscript. Attached to the standard terms was an expanded form of clause 47 which the charterers used when providing for London arbitration. This dealt with the appointment of arbitrators and provided for the arbitration to be conducted under LMAA rules and the contract to be governed by English law.
This is to confirm that we hv found everything in order and we consider the vsl fully fixed.
Freight payable as per
CHARTERPARTY dated
was left blank. Clause 1 of the printed conditions of carriage on the back of the bill says:
All terms and conditions, liberties and exceptions of the Charter Party, dated as overleaf, including the Law and Arbitration Clause, are herewith incorporated.
Other conditions followed, including one applying the Hague or Hague-Visby Rules.
Welex are concerned that if the claims against Rosa have to be arbitrated in London, the Portuguese court may recognise only the Polish proceedings as valid proceedings on the merits but not the English arbitration proceedings. I say "may" because my clients will certainly argue to the contrary; but it is clear that Brookes' clients will dispute this.
Incorporation
(i) There is in my judgment no significance in the use of capital letters, any more than there is anything to be derived by dictionary references to charter-parties in the form of deeds.
(ii) While a contract for chartering a ship is normally embodied, in due course, in a printed form, the parties' agreement can remain in the written fax or telex exchanges: a signed charter-party is unnecessary: Lidgett v Williams (1845) 4 Hare 456.
(iii) The terms can readily be identified from the contents of the recap telex and the standard form to which it refers. Indeed, freight was payable (and paid) according to the terms of the very same charter-party.
(iv) There is no significance in the fact that the formal written agreement, whether executed or not, is in different terms, subject of course to the appropriate authority of those who have executed it: Rossiter v Miller [1873] 3 App. Cas. 1124.
(v) The absence of an identifying date on the bill of lading does not negative incorporation: The San Nicholas [1976] 1 Lloyd's Rep. 8, The SLS Everest [1981] 2 Lloyd's Rep. 389.
I therefore consider that, as a matter of the construction of the bill of lading, it does not incorporate the terms of a charterparty which, at the date the bill of lading is issued, has not been reduced to writing. For the reasons given earlier an oral contract evidenced only by a recap telex, does not seem to me to qualify for this purpose. I should add moreover that if I am wrong on this, I would still conclude that the bill of lading does not on its true construction incorporate an oral agreement for arbitration in London which at the date of the bill of lading was not evidenced by any document at all.
Like David Steel J., however, I do not think Judge Diamond's earlier reasons support the view that a recap telex does not qualify. They clearly support the view that an oral agreement which has not been reduced to writing does not qualify, but a recap telex does reduce the contract to writing. Earlier in his judgment (at p. 312) Judge Diamond had been prepared to accept that such a document "might perhaps be treated as capable of being incorporated into a bill of lading". I think it can, although I do not say this will always be the case. Mr Dunning suggested that if we uphold the judge's decision, holders of bills of lading would find themselves having to trawl through endless telex exchanges and other documents to which they refer in order to ascertain the terms of the incorporated contract. I do not agree. One cannot generalise in these cases. If the contract is readily ascertainable, as it is in this case, there is no uncertainty and its terms will be incorporated. If it is not, there will be no incorporation.
If a formal charterparty has been executed in sufficient time to be sent or shown to the bill of lading holder when he first demands to be shown a copy, (and if the date on the charterparty is earlier than that on the bill of lading), I do not see why the court should go behind the date which appears on the charterparty or should investigate whether the charterparty was executed before or after the bill was issued.
This seems to me to be a commendable pragmatic approach to the problem. Whenever the formal document is executed, if it is referable to a contract which is made before the date of issue of the bill of lading the tests of ascertainability and certainty are met. In this case, although the document is undated, it is clearly referable to a fixture made in March 2001. Welex did not ask to see it until September 2001. The judge proceeded on the basis that the relevant time was the completion of discharge. But by either of these times the formal document had on the judge's findings been executed.
The Anti suit injunction
Jurisdiction
The Merits
In the event that Welex are required to arbitrate their claim against Rosa, it would seem improbable that they would concurrently continue to pursue their claim against Alexia in Poland. The claim filed in Poland asserts that Rosa is liable by virtue of Art. 160 of the Polish Maritime Code. As regards Alexia, the pleaded case is that the transfer of ownership does not preclude the recovery from the proceeds of sale of the vessel.
Thus Welex can only enforce a claim against the vessel (or its proceeds) if it first establishes liability on the part of Rosa. But, if Welex anticipated succeeding on liability before the arbitrators, it is difficult to see on what basis it would meanwhile wish to continue or resurrect the Polish proceedings against Alexia. In any event Alexia have offered to arbitrate in London themselves.
The primary issue of fact relates to the condition of the cargo on loading in the Ukraine as compared with its condition on discharge in Poland. The vessel was managed in Cyprus and manned by a Philipino crew. The surveyors were variously Ukrainian, Polish and Belgian. On the other hand, all the documents are in England or have been translated into English for use in the arbitration proceedings. In contrast, the Polish proceedings have yet even to be served. Furthermore, it would appear that the Polish Courts would not apply English law despite the choice by the parties (albeit it is fair to say that there is no evidence that the substantive law on liability is any different). In these circumstances, whilst Poland might on balance be more convenient than England, it is not a matter of significant weight.
If contracting parties agree to give a particular court exclusive jurisdiction to rule on claims between those parties, and a claim falling within the scope of the agreement is made in proceedings in a forum other than that which the parties have agreed, the English court will ordinarily exercise its discretion (whether by granting a stay of proceedings in England, or by restraining the prosecution of proceedings in the non-contractual forum abroad, or by such other procedural order as is appropriate in the circumstances) to secure compliance with the contractual bargain, unless the party suing in the non-contractual forum (the burden being on him) can show strong reasons for suing in that forum. I use the word "ordinarily" to recognise that where an exercise of discretion is called for there can be no absolute or inflexible rule governing that exercise, and also that a party may lose his claim to equitable relief by dilatoriness or other unconscionable conduct. But the general rule is clear: where parties have bound themselves by an exclusive jurisdiction clause effect should ordinarily be given to that obligation in the absence of strong reasons for departing from it. Whether a party can show strong reasons, sufficient to displace the other party's prima facie entitlement to enforce the contractual bargain, will depend on all the facts and circumstances of the particular case. In the course of his judgment in The Eleftheria, [1969] 1 Lloyd's Rep. 237 at p. 242 Mr Justice Brandon helpfully listed some of the matters which might properly be regarded by the court when exercising its discretion and his judgment has been repeatedly cited and applied. Mr Justice Brandon did not intend his list to be comprehensive, but mentioned a number of matters, including the law governing the contract, which may in some cases be material.
Conclusion
Lord Justice May: I agree.
Lord Justice Brooke: I also agree