Subject: bills of lading; identity of contractual carrier; negative declarations
This decision was a sequel to the judgment of Andrew Smith J  EWHC 328 (Comm).
Goods were carried from Malaysia to Jordan under bills of lading signed on behalf of the Master. Each bill contained an “identity of carrier” clause identifying the carrier as the owner or demise charterer of the vessel. Each bill also incorporated a sub time-charter between the claimant and the receiver of the goods. The pre-printed wording of the bill referred to the claimant as “owner” under that sub-charter.The defendant arrested the vessel in Jordan and brought a cargo claim against the claimant in Jordan on the grounds that the claimant was the carrier under the bills of lading. The claimant commenced English proceedings seeking negative declarations and anti-suit relief. Following its partially unsuccessful challenge to the jurisdiction, the defendant did not acknowledge service.
On the claimant’s application for summary judgment on its claims for negative declarations, Field J held that: (1) The claimant should be permitted to apply for summary judgment notwithstanding the absence of acknowledgment of service; (2) The bills of lading were governed by English law; (3) Applying the decision of the House of Lords in The Starsin  UKHL 12,  1 AC 715, the signature of the bills on behalf of the Master was of preponderant importance and was reinforced by the identity of carrier clause. The reference to the claimant as owner was only for the purpose of incorporating the sub-charter and could not override the clear effect of the Master’s signature and other wording of the bills; (4) It followed that the claimant was not a party to the bills; (5) As intermediate charterer the claimant was never a bailee or in possession of the goods and was therefore under no liability to the defendant; (6) the declarations to that effect should be granted because they would serve a useful purpose in assisting the claimant to resist any Jordanian judgment and in seeking a post-trial anti-suit injunction.
Michael Collett QC appeared for the Claimant (instructed by Jackson Parton)