The 'GOLDEN ENDURANCE' – Court Considers Anti-Suit Injunction Against Moroccan Proceedings

In the "GOLDEN ENDURANCE", the court held that it was at least seriously arguable that an English law clause contained in an unsigned charterparty was incorporated into bills of lading, thus allowing for English proceedings to continue where there were associated foreign proceedings.

Facts

The Claimant was the owner of the "GOLDEN ENDURANCE"1 (the Vessel), which had been chartered to ship a cargo of wheat bran pellets to Morocco from three locations in Gabon (Owendo), Togo (Lomé), and Ghana (Takoradi) in June and July 2013. It became apparent, upon the Vessel's arrival at Casablanca, on 2 August 2013, that the cargo was damaged due to the presence of live insects and wet, black mould.

Each shipment was subject to its own individual bill of lading, and all provided for "freight payable as per Charter- Party dated 11 June 2013". However, the charterparty dated 11 June 2013, which was attached to an email recap, was both unsigned and only partly completed. Both, the email recap and the unsigned charterparty provided for arbitration in London and for English law.

Each of the bills of lading cited the 1978 edition of the conditions of carriage on their front pages, and then set them out on the reverse page, except for the Lomé bill, which cited the 1978 edition on its front page, but set out the conditions of the 1994 edition on the reverse.

The claim

The first, second and third defendants (subrogated insurers of the fourth defendant, the buyer) commenced proceedings against the shipowners (Claimant) in the court in Morocco, seeking a recovery in respect of the cargo damage. The claimant obtained an interim anti-suit injunction from the English Court, restraining all defendants from continuing the Moroccan proceedings. The claimant also sought a declaration of non-liability, damages for breach of the contracts of carriage resulting from the fourth defendant's failure to discharge the cargo, and a final anti-suit injunction.

In addition, the claimant commenced London arbitration in respect of the Lomé bill of lading. The arbitration was contested by the defendants who sought, before the English court, to rely on the bill's reference, on its front side, to the 1978 edition which they said did not incorporate an English law and London arbitration clause.

The defendants also challenged the English Court's jurisdiction.

Issues

Several issues were identified by the court, including (but not limited to):

Were the defendants' correct to submit that the...