Boluda Towage Rotterdam BV & Ors v Elise Tanschiffahrt KG & Anor
[2024] EWHC 1329 (Admlty)
Maersk Guiné-Bissau SARL & Anor v Almar-Hum Bubacar Baldé SARL
29 April 2024
[2024] EWHC 993 (Comm)
High Court
A company shipped goods and didn't pay its taxes in another country. It then sued the shipping company in that country, ignoring their agreement to settle disputes in England. The English court ruled in favor of the shipping company, saying the other company broke their agreement and caused its own problems by not paying taxes. The court also said the decision from the other country didn't matter because it was unfair.
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.
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