Between 2012 and 2013, Hin-Pro International Logistics Ltd (the defendant freight forwarder, registered in Hong Kong) commenced a total of 28 proceedings in China against Compania Sud Americana De Vapores SA (the claimant carrier) for misdelivery claims in various ports in Venezuela involving 75 bills of lading. These bills of lading contained the following law and jurisdiction clauses: 'This Bill of Lading and any claim or dispute arising hereunder shall be subject to English law and the jurisdiction of the English High Court of Justice in London. If, notwithstanding the foregoing, any proceedings are commenced in another jurisdiction, such proceeding shall be referred to ordinary courts of law. In the case of Chile, arbitrators shall not be competent to deal with any such dispute and proceedings shall be referred to the Chilean Ordinary Courts.' The claimant obtained anti-suit injunction orders from the English court, but was unsuccessful in its several attempts to secure the defendant’s appearance in the English court. However, the defendant finally entered an appearance after failing to set aside a freezing order obtained by the claimant in the Hong Kong court. The defendant was subsequently granted permission to appeal the decision of the trial judge.

Two issues formed the subject of the appeal application. First, whether the Court of Appeal should hear this appeal considering that the defendant was in contempt of the orders of the Commercial Court. Second, whether the law and jurisdiction clause provided for the exclusive jurisdiction of the English court.

Held: The appeal would be dismissed.

On the first issue, Clarke LJ was not minded to set aside the order giving permission to appeal because there was no ‘egregious example of such conduct to justify setting aside permission to appeal on that ground alone’.

On the second issue, the law and jurisdiction clause was construed as providing for the exclusive jurisdiction of the English court.

There was an additional question that arose in the course of the hearing as to the meaning and potential significance of art 21.1.d of the Hamburg Rules, which provides that the plaintiff may institute an action in a court situated within the jurisdiction of 'any additional place designated for that purpose in the contract of carriage by sea'. 'Additional place' in art 21.1.d meant 'a place designated for the institution of proceedings and not an additional place designated as a port of loading or discharge'. The travaux préparatoires indicated an understanding that art 21.1.d permitted the institution of proceedings in additional places designated for that purpose, and not in additional places designated as ports of loading or discharge. In addition the use of the word 'additional' was inapposite when applied to a port of loading or discharge. If the bill provided for loading or discharge at one place but that occurred at another place, that place was an 'alternative', not an 'additional' place.

The defendant submitted that this analysis supported its argument that the jurisdiction clause was non-exclusive, because a non-exclusive clause would be consistent with art 21.1 of the Hamburg Rules. An exclusive jurisdiction clause, however, would not, because art 23 of the Rules provides that 'any stipulation … in a bill of lading … is null and void to the extent that it derogates, directly or indirectly, from the provisions of the Convention'. Clarke LJ rejected this argument. If the law and jurisdiction clause was exclusive, art 23 of the Hamburg Rules would only render the clause void in so far as it provided for exclusive jurisdiction. Even if the effect of the Hamburg Rules was to render the clause wholly void, that did not affect the issue of how the clause should be interpreted, which was a matter for English law.