A/S D/S Svenborg D/S af 1912 A/S Bodies Corporate trading in partnership as 'Maersk Sealand' v Akar
= No treatment has been given--only citation information is available.
[2003] EWHC 797 (Comm), [2003] All ER (D) 258 (Apr)
Court: Comml Ct
Judgment Date: 15/04/2003
Catchwords & Digest
SHIPPING AND NAVIGATION - BILL OF LADING - EXCLUSIVE FOREIGN JURISDICTION CLAUSE - DEFENDANTS ISSUING PROCEEDINGS IN BREACH OF CLAUSE - VALIDITY OF DEFENDANTS' CLAIMS - LIABILITY OF DEFENDANTS FOR BREACH OF JURISDICTION CLAUSEThe claimants traded in partnership as 'Maersk Sealand', one of the largest operators of container lines in the world. They issued proceedings seeking damages consisting of costs and other losses and expenses incurred in defending claims brought by various of the defendants in respect of two containers of textiles carried by the claimants from respectively China and India to Conarkry, Guinea. The first claim was against the first and/or second and/or fifth defendants. It related to a container said to contain 200 bales of cotton real wax. According to the relevant defendants, the container was empty at the point of delivery and its contents had been lost whilst in the claimants' custody. The defendants commenced two sets of proceedings in rem against the claimants in Hong Kong and further proceedings against the claimants' agent in Guniea. The claimants contended that all of those proceedings were fraudulent and, in any event, in breach of the exclusive English law and jurisdiction clause at cl 27 of the Maersk bill of lading. They further contended that the proceedings against their agent was in breach of the undertaking in cl 3 of the bill of lading not to do so. The second claim before the court in the instant case was against the third and fourth defendants. It related to a container said to contain 182 bales of cotton printed textiles shipped from India to Conakry, Guinea. Claims were made by the relevant defendants in the Guinea courts in respect of an alleged delay in delivery of the goods. The claimants again claimed for damages for breach of cl 27 of the Maersk bill of lading. The defendants did not appear and were not represented in the English proceedings. The question for the court's determination was therefore whether as a matter of law and on the basis of the evidence, on the balance of probabilities, the claimants had established their claim.
Held - Having regard to the evidence as a whole, on the balance of probabilities, the court was satisfied with regard to the first claim that the defendants did abstract the goods and make a fraudulent non-delivery claim. The claimants would therefore be entitled to damages for deceit and/or breach of contract and/or bailment. They were also entitled to recover the costs and expenses incurred in defending the overseas proceedings as damages for breach of cl 27. To the extent necessary, it would also be held that the defendants had breached cl 3 by issuing proceedings against the claimants' agent. Given the continuing breaches of cll 3 and 27, the claimants would also be entitled to an indemnity in respect of future costs and expenses incurred in the proceedings in Hong Kong and Guinea. As to the second claim, there could be no doubt that by bringing the claim in Guinea, the third and/or fourth defendants were in breach of cl 27.
