Maersk Guine-Bissau, SARL & Anor v Almar-Hum Bubacar Balde SARL

Factual and Procedural Background

These proceedings concern contracts of carriage between the Defendant and the Second Claimant (Company A). The contracts were evidenced by 13 bills of lading issued by the First Claimant (Company B), which operated Company A's business in Guinea-Bissau. The shipment involved containerised timber cargo shipped by the Defendant to customers in China, with the ultimate destination port being Huangpu, China.

Company B operated in Guinea-Bissau from 2003 until January 2021, focusing mainly on cashew nut exports. The Defendant's business was managed by an individual referred to as Mr Baldé. The Claimants seek damages or indemnity for alleged breaches of contract by the Defendant, principally relying on an exclusive jurisdiction clause (EJC) in favor of the English courts and a Himalaya clause incorporated into the contracts of carriage. The Claimants also seek declarations of no liability to the Defendant under these contracts.

The claim form was issued in October 2020, following the Defendant's commencement of proceedings in Guinea-Bissau against Company B. The Defendant was initially represented by solicitors in London but ceased such representation in late 2021 and has not appointed replacement solicitors. The Defendant engaged intermittently thereafter, but no substantive participation occurred at trial. The trial proceeded in the Defendant’s absence under CPR 39.3, with the court satisfied that the Defendant had a fair opportunity to present its case.

The Claimants presented written and oral evidence from several witnesses, including employees of Company B, a law firm attorney involved in the Guinea-Bissau proceedings, and an expert on Guinea-Bissau law. No witness evidence was served by the Defendant.

The factual background includes detailed findings on the booking procedures used by the Defendant to contract with Company A, the shipment and movement of the cargo, and significant disputes involving Guinea-Bissau authorities and courts. These disputes led to seizure of bills of lading by the Judiciary Police and a series of contentious orders by the Civil Chamber of Bissau District Court (CCBDC). The cargo was eventually delivered in China after delays caused by the Defendant’s failure to comply with export requirements and financial obligations to the Guinea-Bissau authorities.

Subsequent litigation in Guinea-Bissau resulted in a judgment in favor of the Defendant against Company B, which the Claimants contend is not binding due to jurisdictional and procedural defects. The English court conducted a detailed analysis of the contracts of carriage, the incorporation of terms, the enforceability of the Himalaya and exclusive jurisdiction clauses, and the effect of the foreign judgment.

Legal Issues Presented

1. Whether Maersk's standard terms, including the Himalaya clause and exclusive jurisdiction clause, were incorporated into the contracts of carriage between the parties.
2. Whether the Himalaya clause and exclusive jurisdiction clause are onerous or unusual terms requiring special notice.
3. Whether Company A and Company B are entitled to enforce the Himalaya clause and exclusive jurisdiction clause, including claims for damages and declarations of non-liability.
4. The effect of the judgment obtained by the Defendant in Guinea-Bissau on the present proceedings, including issues of res judicata, jurisdiction, finality, and natural justice.
5. Whether the Claimants are liable to the Defendant under the contracts of carriage for the alleged delays and losses.
6. The application of time bar provisions under the Hague Rules.
7. The effect of the Defendant’s failure to comply with export regulations and financial obligations on liability for delays.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by establishing that the contracts of carriage were made between the Defendant and Company A, incorporating Maersk's standard terms and conditions through an online booking process which required the Defendant to expressly agree to those terms by ticking boxes and clicking buttons. The court applied established English law principles on incorporation of terms, including notice by reference to website hyperlinks, and rejected the Defendant's argument that the terms were onerous or unusual requiring special notice.

The court analyzed the Himalaya clause, confirming its long-standing use and purpose to extend contractual protections and exemptions to subcontractors and agents, including Company B. It found that Company B was entitled to enforce the Himalaya clause both at common law and under the Contracts (Rights of Third Parties) Act 1999 to the extent permitted. The court also held that Company B could enforce the exclusive jurisdiction clause at common law due to clear and express wording in the Himalaya clause, distinguishing prior authority which had held otherwise.

The court rejected the Defendant's reliance on a judgment obtained in Guinea-Bissau as res judicata, concluding that the foreign judgment was not recognized or enforceable in England due to breach of the exclusive jurisdiction clause, lack of submission to foreign jurisdiction, absence of finality under Guinea-Bissau law, and denial of natural justice. The court relied on statutory provisions of the Civil Jurisdiction and Judgments Act 1982 and principles of natural justice and procedural fairness.

Regarding liability, the court concluded that Company B was not the contractual carrier and thus not liable for performance failures; Company A was the carrier. The Himalaya clause excluded liability of subcontractors such as Company B. The court found that the Defendant’s claims were time-barred under the one-year limitation of the Hague Rules. It further held that the standard terms excluded liability for delays, and that the delays were caused by the Defendant’s failure to comply with export regulations and financial obligations to Guinea-Bissau authorities, not by the Claimants.

The court found no factual basis for breach by the Claimants, noting that the cargo was shipped timely and that bills of lading were only withheld due to the Defendant’s failure to give final approval and pay charges. The seizure of bills of lading by the Judiciary Police was lawful under contractual terms permitting compliance with government orders. The court further found that even if there had been breach, causation failed because the Defendant could not have avoided delays without critical export certificates, which were withheld due to the Defendant’s disputes with Guinea-Bissau authorities.

Overall, the court concluded that the Claimants were entitled to declarations of non-liability and that the Defendant was liable for breach of the Himalaya and exclusive jurisdiction clauses, with damages to be assessed later.

Holding and Implications

The court’s final decision is that the claims by the Claimants for damages or indemnity against the Defendant for breach of the Himalaya clause and exclusive jurisdiction clause succeed. The Defendant’s foreign proceedings were in breach of the exclusive jurisdiction clause, and the Defendant is liable for damages or indemnity to be assessed.

Furthermore, the Claimants are entitled to declarations that neither Company A nor Company B is liable to the Defendant under the contracts of carriage for the alleged delays or losses. The court found no breach of contract by the Claimants and held that delays were caused by the Defendant’s failure to comply with export regulations and financial obligations.

No new precedent was established beyond the application of established principles governing incorporation of terms, Himalaya clauses, exclusive jurisdiction clauses, res judicata, and enforcement of foreign judgments. The decision clarifies the enforceability of such clauses against unrepresented defendants and confirms procedural fairness requirements in undefended trials. The direct effect is to uphold the contractual protections of the Claimants and to reject the Defendant’s claims arising from the Guinea-Bissau litigation and the carriage performance.