EUPillar Mar-Train Heavy Haulage Limited v Shipping.Dk Chartering A/S (Trading As Frank&Tobiesen A/S) and four others [2014] EWHC 355 (Comm)

Summary

The claimant, Mar-Train, was an Irish small family firm. The defendant, F&T, was from Denmark. The defendant made an application, questioning the existence of an English jurisdiction agreement between the parties. F&T sought a declaration that the English courts had no jurisdiction. The dispute arose out of a contract for transportation of 8 wind turbines from Denmark to Ireland. F&T engaged an English company, ALS, to perform the road transport within Ireland. ALS contracted Mar-Train to do so. On 29th May 2009, whilst the cargo was in transit, an incident occurred. As a result of the incident, there were damages caused to the cargo. Remedies were sought in a number of legal proceedings, including earlier proceedings in England (which had settled) as well as in Danish proceedings “which [we]re due to be tried in November 2014 and this action. It [wa]s common ground that if this action remain[ed] alive it should be stayed until the Danish case [wa]s over”. [3] In other words, since the Danish courts were first seised, a stay of the English proceedings should have followed. In the meantime, an important question was whether there had been a valid English jurisdiction agreement between Mar-Train and F&T. Mar-Train argued that there was such an agreement. F&T challenged the jurisdiction of the English. The defendants’ challenge to jurisdiction was dismissed by the English High Court. HHJ Mackie QC held: “25 As Mr Jenns seemed to recognise, at this stage of the action and given the relevant test, Mar-Train has a good arguable case that the RHA terms, with their English law jurisdiction clause, applied, as the representatives of both sides to that contract testified. 26 F&T now concedes the inevitable, given the evidence and the documentary trail, there is a good arguable case that it contracted with ALS on BIFA terms with their English jurisdiction clause. […] 45 There are as usual factors pointing both ways but the Operation Manual is by far the most significant document for reasons I have already given. ALS had actual authority to act on behalf of F&T because of the BIFA terms. The Manual describes the relationship between F&T and ALS and is a document that ALS passed to F&T and Siemens. A document produced by one of the parties affected and seen and not objected to by the other, generated at the time of the project and defining their relationship is strong evidence, particularly when there is no equivalent document suggesting the reverse. As I see it Mar-Train has much the better of the argument on this point and it follows that the application fails.” [25-26 and 45]