Key Facts
- •Contracts of carriage between Maersk A/S and Almar-Hum, evidenced by 13 bills of lading issued by Maersk Guinea-Bissau.
- •Almar-Hum initiated litigation against Maersk entities in Guinea-Bissau, resulting in judgments against Maersk Guinea-Bissau.
- •Maersk A/S and Maersk Guinea-Bissau brought claims in the English Commercial Court for damages and declarations of non-liability.
- •Almar-Hum did not appear at the trial in the English court.
- •The English court considered the incorporation of Maersk's standard terms, including an exclusive jurisdiction clause (EJC) and a Himalaya clause.
Legal Principles
Incorporation of contractual terms – unsigned documents.
Chitty on Contracts 34th Edition, para 15-007; Ebury Partners Belgium SA/NV v Technical Touch BV [2022] EWHC 2027 (Comm)
Incorporation of onerous terms.
John Parker-Grennan v Camelot UK Lotteries Ltd [2023] EWHC 800 (KB)
Enforcement of Himalaya clauses.
Adler v Dickson [1954] 2 Lloyd’s Rep 267; Homburg Houtimport BV v Agrosin Private Ltd (“The Starsin”) [2003] UKHL 12
Enforcement of exclusive jurisdiction clauses.
AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2013] UKSC 35; The Mahkutai [1996] AC 650
Recognition and enforcement of foreign judgments.
Civil Jurisdiction and Judgments Act 1982 (CJJA), sections 32-34; Spencer Bower and Handley: Res Judicata 6th edition (2024); Dicey, Morris & Collins: The Conflict of Laws 16th edition, Rule 55
Causation.
FCA v Arch [2021] UKSC 1
Outcomes
Maersk A/S and Maersk Guinea-Bissau were not liable to Almar-Hum.
The court found that Almar-Hum breached the exclusive jurisdiction clause and the Himalaya clause by commencing proceedings in Guinea-Bissau. It also found that Maersk’s standard terms were incorporated into the contract, that Almar-Hum’s claims were time-barred, and that any delays were caused by Almar-Hum’s own actions.
Almar-Hum was liable to Maersk A/S for damages or an indemnity for breach of contract.
The court found that Almar-Hum breached the exclusive jurisdiction clause and Himalaya clause by litigating in Guinea-Bissau.