Summary
The dispute was in respect of a contract for carriage of goods. The charterparty included an English law and jurisdiction clause.
The claimant was the carrier which was a company incorporated in Marshall Islands.
The first defendant was a Moroccan state electricity generating company. The second to sixth defendants were the insurers of the cargo.
In the English court proceedings, the claimant sought a declaration of non-liability for the contamination of the cargo as well as an anti-suit injunction restraining the defendant from suing in Moroccan courts.
The defendants challenged the jurisdiction of the English court.
The English High Court dismissed the jurisdiction challenge, and ordered an anti-suit injunction under the English common law. An important preliminary issue was whether the parties intended their contract to be governed by the English law. Rome I was applicable in this context. Mr Justice Males held:
“36 [...] Since the Amwelsh form is a commonly used charter form for the carriage of coal, there was nothing surprising or unusual about the choice of English law, which is what the printed form provides, and no reason why this common form of bill of lading should not be transferred to a consignee who (upon becoming a holder of the bill) would succeed to the rights contained therein, which rights were subject to English law.
37 I conclude, therefore, that for the purpose of passing through this jurisdictional gateway the owners have a good arguable case that the bill of lading is a contract governed by English law. I would go further and say that when it comes to the exercise of discretion (considered below), that discretion will fall to be exercised on the basis that the owners have an extremely strong case that the bill of lading is subject to an express choice of English law.
[…]
61 As for the significance of the express choice of English law, such a choice is capable of being a factor of significant and even decisive weight, particularly if the foreign court's application of a different law would or might lead to a different result as that would be to deprive the claimant of the benefit of its bargain: The Lucky Lady [2013] EWHC 328 (Comm), [2013] 2 Lloyd's Rep 104 at [28], where Andrew Smith J reviewed the applicable authorities, including the comments of Lord Mance in VTB Capital Plc v Nutritek International Corporation [2013] UKSC 5, [2013] 1 Lloyd's Rep 466 at [46]. I do not overlook that the receiver did not choose English law as it was not an original party to the bill of lading contract, but for this purpose it stands in the shoes of the shipper who did.
62 In my judgment there is a real risk that forcing the owners to proceed in Morocco where Moroccan law and the Hamburg Rules would be applied would have the effect of depriving the owners of the benefit of their bargain. Mr Whitehead was able to point out that Article 13 of the Hamburg Rules is in substantially the same terms as Article IV rule 6 of the Hague-Visby Rules on which the owners rely, but to extrapolate from this to a conclusion that there is no relevant difference between English and Moroccan law so far as this claim is concerned is in my view not justified. Quite apart from the fact that at this early stage it is difficult to foresee the way in which the litigation may develop and the precise nature of the issues which may arise, there are myriad differences between the Hague-Visby and the Hamburg Rules , the latter being much more favourable to cargo interests (see the summary at Appendix VI of Scrutton on Charterparties (22nd Edition, 2011). In my judgment this risk of a less favourable legal regime in Morocco is a decisive factor.” [36-37, 61 and 62].
The Court of Appeal dismissed the defendant’s appeal.