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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hin-Pro International Logistics Ltd v Compania Sud Americana De Vapores SA [2015] EWCA Civ 401 (23 April 2015) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2015/401.html Cite as: [2015] 2 Lloyd’s Rep 1, [2016] 1 All ER (Comm) 417, [2015] EWCA Civ 401 |
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ON APPEAL FROM THE HIGH COURT QUEEN'S BENCH DIVISION
COMMERCIAL COURT
MR JUSTICE COOKE
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE BEATSON
and
LORD JUSTICE CHRISTOPHER CLARKE
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Hin-Pro International Logistics Limited |
Appellant |
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- and - |
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Compania Sud Americana De Vapores S.A. |
Respondent |
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WordWave International Limited
Trading as DTI
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Poonam Melwani QC and Gemma Morgan (instructed by Stephenson Harwood LLP) for the Respondent
Hearing dates: 26th February 2015
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Crown Copyright ©
Lord Justice Christopher Clarke:
The 2012 proceedings
"23 Law and jurisdiction
This Bill of Lading and any claim or dispute arising hereunder shall be subject to English law and the jurisdiction of the English High Court of Justice in London. If, notwithstanding the foregoing, any proceedings are commenced in another jurisdiction, such proceeding shall be referred to ordinary courts of law. In the case of Chile, arbitrators shall not be competent to deal with any such dispute and proceedings shall be referred to the Chilean Ordinary Courts".
It is common ground that, as a matter of Chilean law, the third sentence is void.
The 2013 proceedings
Events in 2014
The judgment of Cooke J
The applications for permission to appeal
Contempt
Discussion
"Further authorities
45 In Hadkinson v Hadkinson [1952] P 285 Denning LJ referred to the rule that the court will not entertain an application by a person who is in contempt of court until he has purged himself of that contempt as traceable to an ordinance of Lord Bacon in 1618 which laid down that "they that are in contempt are not to be heard neither in that suit nor in any other except the court of special grace suspend the contempt".
46 In Bettinson v Bettinson [1954] P 465 Plowman J observed that the practice of the court in applying that ancient rule had changed in the course of time and became much restricted in scope. One of the ways in which, as he said, it was restricted was that the Court confined its operation to contempt in the same suit as that in which the application was made …
47 In The Messiniaki Tolmi [1981] 2 Ll Rep 595 Lord Justice Brandon reviewed a number of earlier authorities and concluded that:
"while the general rule is that a Court will not hear an application for his own benefit by a person in contempt unless and until he has first purged his contempt, there is an established exception to that general rule where the purpose of the application is to appeal against, or have set aside, on whatever ground or grounds, the very order disobedience of which had put the person concerned in contempt".
Lord Justice Templeman did not dissent from Lord Justice Brandon's expression of general principle but thought that there was no absolute rule which entitled or disbarred a party in contempt from prosecuting an appeal against the order with which he has failed to comply.
48 In X Ltd v Morgan Grampian [1991] 1 A.C.1 a journalist had indicated that, whilst he sought to appeal the order requiring him to name his source, he had no intention of complying with any such order if the appeal should be unsuccessful. He declined to place the name of the source in a sealed envelope pending the final determination of his appeal. The Court of Appeal had refused to hear Counsel on his behalf. Lord Bridge cited with approval the observations of Denning LJ in Hadkinson to the effect that it is:
"a strong thing for a court to refuse to hear a party to a cause and it is only to be justified by grave considerations of public policy. It is a step which a court will only take when the contempt itself impedes the course of justice and there is no other effective means of securing his compliance".
49 It is thus apparent that, on the assumption that the Charterers are in contempt, I have a discretion as to whether I should hear them in opposition to the section 24 application. The Court has a wide power to do what is just."
"Certainly in a case where a contemnor not only fails wilfully and
contumaciously to comply with an order of the court but makes it clear that he will continue to defy the court's authority if the order should be affirmed on appeal the court must, in my opinion have a discretion to decline to entertain his appeal against the order".
"Whilst, therefore, there must clearly be a strong inclination in favour of preserving a litigant's right to appeal, even though he may be in contempt of court, I am in entire agreement with my noble and learned friend Lord Bridge of Harwich in thinking that there must also be a discretion to refuse to hear a contemnor and in favouring the flexible approach suggested by the judgment of Denning LJ in Hadkinson v Hadkinson [1952] P285".
"From those speeches it is, I think, clear that it is wrong to take as a starting point the proposition that the court will not hear a party in contempt but then to ask if the instant case falls within an exception to that general rule. It is preferable to ask whether, in the circumstances of an individual case, the interests of justice are best served by hearing a party in contempt or by refusing to do so, always bearing in mind the paramount importance which the court must attach to the prompt and unquestioning observance of court orders."
The general rule/exception approach which Lord Bingham had in mind was that articulated in The Messiniaki Tolmi by Lord Brandon. In Arab Monetary Fund the contempts committed by Dr Hashim were so serious that the Court struck out the appeal.
The application to set the permission aside
The construction of the clause
Hin Pro's submissions
The authorities
"Wherever the Carriage of Goods by Sea Act 1936 (COGSA) of the United States of America applies ... this contract is to be governed by United States law and the United States Federal Court Southern District of New York is to have exclusive jurisdiction to hear all disputes hereunder. In all other cases, this Bill of Lading is subject to English law and jurisdiction."
"It can be argued that the express mention of exclusive jurisdiction in the first part of the clause excludes any implication that the second part provides for exclusive jurisdiction. On the other hand it can be argued that the author wished to provide for exclusive jurisdiction throughout, and did not think it necessary to repeat the word "exclusive" in the second part… I conclude that the clause does confer exclusive jurisdiction on the English courts. My reasons are in substance, first those which I stated in Sohio Supply Co v. Gatoil (USA) Inc (1989) 1 Ll R 588 at pp. 591-2, and in particular that I could think of no reason why businessmen should choose to go to the trouble of saying that the English Courts should have non-exclusive jurisdiction. My second reason is that the parties in the second part of the clause were plainly saying that English law was to be mandatory if the American Carriage of Goods by Sea Act did not apply; it seems to me that they must have intended English jurisdiction likewise to be mandatory in that event."
"This agreement shall be governed by and be construed and take effect according to English law and the parties hereto agree that the courts of law in England shall have jurisdiction to entertain any action in respect hereof..."
He referred to Staughton LJ's observation in Sohio that he could think of no reason why parties should go to the trouble of saying that the English courts should have non-exclusive jurisdiction, but could think of every good reason why the parties should choose that some courts should have exclusive jurisdiction, so that both sides could know where all cases were to be tried. He went on to say:
"In the instant case the parties have expressly agreed English law and there would be no need to expressly agree that the English court should have jurisdiction or the English court to have non-exclusive jurisdiction. The English court would in any event have such jurisdiction, and by expressly agreeing to English jurisdiction they must be seeking to add something, i.e. that the English court should have exclusive jurisdiction."
"(iv) As to proceedings in Chile, the following facts were not in dispute: First, that claims for loss of or damage to cargo are subject to mandatory arbitration; contractual clauses (such as the final sentence of cl.24 of the bills of lading) purporting to provide for the reference of such proceedings to the Chilean Courts have been declared by the Chilean Courts to be void. Secondly, under Chilean law, the provision contained in cl.24 of the bills of lading for English law and jurisdiction will be deemed null and void; the Metro Chilean claim will be determined in accordance with Chilean substantive law. Thirdly, if CSAV's application succeeded then, if Metro so chose, its claims under the bills of lading could be heard by the same arbitrator already appointed to hear the Metro Chilean claim.
(v) Reverting to cl.24 of the bills of lading, it was not in dispute that it provided for English law and non-exclusive English jurisdiction. The second sentence recognised that in certain jurisdictions (for example where the Hamburg Rules are applicable), the English jurisdiction clause might be disregarded. On the material before me, it appears that the third sentence represented an ineffective preference for the Chilean Courts over Chilean arbitration; as already noted, such clauses have been held by the Chilean Courts to be null and void."
"30 Miss Poonam Melwani QC does not quarrel with anything said by the judge, save insofar as, without argument, he accepted that the clause was a non-exclusive jurisdiction clause. The bills of lading in the current action provided in clause 2 for a clause paramount and for the application of the Hague Rules, save in three situations. First, where as a matter of English law and the English Carriage of Goods by Sea Act 1971 the Hague-Visby Rules are compulsory applicable. In such circumstances, those Rules would fall to be applied. Secondly, where there are shipments to and from the United States of America, US COGSA is to apply. Thirdly, where the bill of lading was subject to legislation which makes the Hamburg Rules compulsorily applicable, then those rules would apply "Which shall nullify any stipulation derogating therefrom to the detriment of shipper or consignee".
31 The terms of clause 23 of the bills and the exclusive jurisdiction clause (if that is what it is) must be seen in the light of this provision. There can be no doubt that the second and third sentences of the clause envisage and provide for the situation where proceedings are brought elsewhere than England. The third sentence specifically refers to Chile, the country where CSAV is incorporated. Chile is a party to the Hamburg Rules. Whereas neither the Hague nor the Hague-Visby Rules make any provision about jurisdiction, the Hamburg Rules, by contrast, do. Article 21 essentially provides that the claimant, at his option, may institute an action in a court within the jurisdiction of which (a) the defendant has his principal place of business or habitual residence; (b) the contract was made; (c) the cargo was loaded or discharged; or (d) any additional places designated by the contract of carriage. Article 23 then provides that any stipulation in the contract is null and void to the extent that it derogates from the provisions of the Convention. An exclusive jurisdiction clause is, therefore, to be of no effect, to the extent that it does not permit actions to be brought in the places designated in Article 21."
I agree with this summary. As is apparent from it, the Hamburg Rules, specifically referred to in clause 2 of the bills, provide part of the contractual background.
Discussion
Conclusion
"... If the doctrine does apply, it tells the Court to select one of the two possible interpretations of the contract, the one less favourable to the party who drafted the contract.
That refers to selecting one interpretation of the contract, not selecting one result of the suit. The proper interpretation of the contract must exist at the time it is made, and not change. It cannot come and go as the parties' fortunes wax and wane. It cannot be unknowable and shrouded in fog until after the event. For example one interprets an insurance contract the same way before and after a fire, and it has meaning before any fire".
Article 21 (1) (d) of the Hamburg Rules
"(d) any additional place designated for that purpose in the contract of carriage by sea"
Lord Justice Beatson:
Lord Justice Elias: