Court of Appeal Upholds Incorporation of English Jurisdiction Clause from Charterparty into Bill of Lading

Caresse Navigation Ltd v Zurich Assurances Maroc & Ors [2014] EWCA Civ 1366

A cargo of coal was carried by the Respondent Owners from Rotterdam to Nador (Morocco). Whilst underway, emergency cooling measures were taken to prevent the cargo combusting which allegedly caused damage to the cargo.

Owners commenced proceedings in the English High Court, seeking a declaration of non-liability. Cargo Insurers (the Appellants in the present proceedings) commenced proceedings in the Commercial Court in Casablanca, Morocco against (i) the Master, in his capacity of representative of the Owners and (ii) the port operating company.

Owners were granted an anti-suit injunction by the English High Court in support of the English proceedings and restraining the Respondents from pursuing the proceedings in Morocco. This was appealed by the Respondents.

Under the governing charterparty - on the AmWelsh 1979 form - it was stated: "This Charter Party shall be governed by English law, and any dispute arising out of or in connection with this charter shall be submitted to the exclusive jurisdiction of the High Court of Justice of England and Wales".

The Congen 1994 bills of lading stated "...All terms, conditions, liberties and exceptions of the Charter Party, dated as overleaf, including the Law and Arbitration clause are herewith incorporated".

The question for the Court was whether the wording contained in the bills of lading incorporated the English law and exclusive jurisdiction provision of the Charterparty.

First Instance

The judge granted the anti-suit injunction, finding inter alia:

(i) the question as to whether "arbitration" could be read as referring to "jurisdiction" was one of construction rather than incorporation. The key question was what the parties should reasonably be...