Times Trading Corp (Times) applied for an anti-suit injunction restraining National Bank of Fujairah (Dubai Branch) (NBF) from prosecuting or continuing proceedings against Times in the Singapore High Court, on the basis that the Singapore proceedings were commenced in breach of NBF’s contractual obligation to arbitrate in London.
NBF was the holder of 27 bills of lading issued in respect of cargo shipped on the MV Archagelos Gabriel, which was discharged against letters of indemnity in June 2018. NBF pursued misdelivery claims against the carrier. The bills of lading contained a binding London arbitration clause and a paramount clause incorporating art 3.6 of the Hague/Hague-Visby Rules.
The issue in this case concerned the identity of NBF’s contractual counterparty to the bills of lading, and in particular whether Rosalind Maritime LLC (Rosalind/the shipowner) or Times (the alleged bareboat charterer of the vessel) was the carrier. NBF issued a writ in rem in the Singapore High Court on 2 January 2019 (within the time limit). Security was provided on 11 February 2019. On 4 June 2019, NBF commenced London arbitration proceedings against the carrier for misdelivery (again, within the time limit). After the one-year time limit had expired, the shipowner sent a letter indicating that the vessel was under bareboat charter to Times when the bills of lading were issued: ‘We note that the Notice of Arbitration purports to commence an arbitration against Rosalind. However at the material time the Vessel was bareboat chartered to Times Trading Corp … The Bills of Lading were not issued by Rosalind but were issued by Times. Accordingly, we do not accept the validity of the Notice of Arbitration and our client will contend that the Notice of Arbitration purports to start an arbitration against the wrong party.’
Held: Anti-suit injunction granted, on the condition that Times gives an undertaking not to rely on any time bar argument in the London arbitration.
After reviewing the general principles governing anti-suit relief, the Judge decided that there was jurisdiction to grant an anti-suit injunction, on the basis that either the Singapore proceedings were commenced in breach of the London arbitration clause, or if the case was not contractual, it would nonetheless fall within the ‘quasi-contractual’ anti-suit injunction cases and should therefore be treated ‘as if’ it were a contractual case, applying the Angelic Grace test by analogy.
The Judge then considered whether there was a ‘strong reason’ not to grant the anti-suit injunction because FNB faced a time bar in London arbitration proceedings. The Judge pointed out that, even if the Singapore proceedings continued, Times could arguably rely on the time-bar as a substantive defence at trial, arguing that the Singapore proceedings were never a relevant ‘suit’, relying on art 3.6 of the Hague Rules substantively: The Havhelt [1993] 1 Lloyd’s Rep 523, 525 per Saville J; The Alhani [2018] 2 Lloyd’s Rep 563 [124]-[126] per David Foxton QC (CMI154) – though the point is controversial: the contrary view was taken in Compania Colombiana de Seguros v Pacific Steam Navigation Co [1965] 1 QB 101, 126-7. Overall, the Judge was of the view that in the context of ‘strong reasons’ a time bar being missed reasonably/not unreasonably would not necessarily be sufficient to prevent the granting of an injunction.
However, considering all the discretionary factors and equities of the case, the Judge concluded that it would be just and convenient to grant an anti-suit injunction subject to the condition that Times not rely on any time bar argument in the London arbitration.
Parties:
Times Trading Corp, National Bank of Fujairah (Dubai Branch), Rosalind Maritime LLC, Times Navigation Inc, Trafigura Maritime Logistics Pte Ltd, Harmony Innovation Shipping Pte Ltd, the MV Archagelos Gabriel
Neutral Citation:
Times Trading Corp v National Bank of Fujairah (Dubai Branch) [2020] EWHC 1078 (Comm)
Other Reference:
Times Trading Corp v National Bank of Fujairah (Dubai Branch) [2020] 2 Lloyd’s Law Rep 317
Date:
05/05/2020
Tribunal:
England and Wales High Court (Commercial Court)
Judges:
Cockerill J
Keywords:
Carriage of goods by sea, misdelivery of cargo, identity of carrier, parallel proceedings, arbitration clause, anti-suit injunction, time bar, limitation of actions, prescription
Web URL:
http://www.bailii.org/ew/cases/EWHC/Comm/2020/1078.html
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