24/08/2016
Michael Collett QC of 20 Essex Street explains the Commercial Court's decision in Golden Endurance Shipping v RMA Watanya
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Following the judgment on Golden Endurance Shipping SA v RMA Watanya SA and others [2016] EWHC 2110 (Comm), [2016] All ER (D) 57 (Aug) Michael Collett QC, who appeared for the claimant in the case, explains the decision in an interview with LexisNexis.
The Commercial Court held that the claimant ship-owner was not estopped by a Moroccan judgment from asking an English court for a declaration of non-liability for alleged damage to a cargo: the Moroccan judgment would not be recognised as the claimant had not submitted to the jurisdiction of the Moroccan courts (it had challenged that jurisdiction seeking to rely on an arbitration agreement). However, the claimant was not entitled to summary judgment of its claim for the declaration on the ground that any cargo claim was time-barred: the Moroccan proceedings had constituted valid suit brought within one year, as required by article 3(6) of the Hague Rules (the 1924 International Convention for the Unification of Certain Rules Relating to Bills of Lading).
What are the practical implications of this case?
On the jurisdictional issues, the court followed the principles set out in the decision of the Court of Appeal in AES UstKamenogorsk Hydropower Plant LLC v Ust-Kamenogorsk Hydropower Plant JSC [2011] EWCA Civ 647, [2012] 1 All ER (Comm) 845 but clarified two points:
- the court does not have a discretion whether to find that a party has submitted to the foreign court, and
- a challenge to the jurisdiction of the foreign court satisfies CJJA 1982, s 33(1)(b), even if it could be characterised as irrational (rejecting a suggestion to the contrary in a leading text book)
On the time-bar issue, the judgment has expanded the categories of suit which count to stop time running under the Hague Rules to include suit in a jurisdiction which does not apply the Hague Rules (because, for example, it is a Hamburg Rules state). This means that, where the Hague Rules have been agreed, the cargo claimant may be able to bring its claim in a Hamburg Rules state without fear that its claim may become time-barred under the Hague Rules. It also means that carriers and their insurers cannot treat claims as discharged after one year, if proceedings have been commenced in a state which does not apply the Hague Rules, unless those proceedings are incompetent under the Hague Rules for some other reason.
For further analysis the full article and a copy of the judgment is attached.
