DMC/SandT/03/18
A/S D/S Svendborg and D/S af 1912 A/S (Trading as Maersk Sealand) v Ali Hussein Akar and others
English Commercial Court: Deputy High Court Judge Julian Flaux QC: 15 April 2003: [2003] EWHC 797 (Comm)
Ricky Diwan, instructed by Stephenson Harwood , appeared for the Claimant, Maersk Sealand
The Defendants were unrepresented
BILL OF LADING: BREACH OF CONTRACT OF CARRIAGE: EXCLUSIVE ENGLISH LAW AND JURISDICTION CLAUSE: DAMAGES FOR COST OF DEFENDING CLAIMS IN FOREIGN JURISDICTIONS: FRAUDULENT CLAIM:TORT OF DECEIT
Summary
The Claimant, Maersk Sealand, brought proceedings against various of the Defendants for bringing "fraudulent and inflated" claims against it in foreign jurisdictions, in breach of an exclusive English law and jurisdiction clause in the relevant bills of lading. The first claim related to proceedings in rem brought by the Defendants in Hong Kong and Guinea for non-delivery of containerised goods, allegedly lost while in the Claimant’s custody on a voyage from China to Guinea. Maersk claimed the Defendants had removed the goods from the container before delivery. The second claim related to an alleged five-day delay in delivering a container shipped from India to Guinea, for which the defendants demanded heavy damages in a Guinea court. In both claims, Maersk sought damages for breach of the jurisdiction clause in the contract of carriage. In the first claim, Maersk also sought damages for deceit, alleging the Defendants had "stolen their own goods". The court held that, both on the facts and the law, Maersk’s claims succeeded.

Facts
The claimant, the Maersk Sealand partnership, is one of the world’s largest container liner operators. The five defendants consisted of three members of a Lebanese family and their two family companies, trading from Conakry, Guinea.

The first claim related to a container, said to contain cotton goods, shipped from China to Conakry. Maersk’s case was that, when the defendants took delivery of the container in Conakry, they fraudulently claimed the contents had been lost or taken in transit, whereas the defendants had already removed the contents themselves.

The relevant bill of lading, dated Shenzhen, July 1999, recorded the shipment of a pre-sealed container, said to contain 200 bales of "100% cotton real wax in apparent good order and condition", aboard the Claimant’s vessel Maersk Antwerp in Hsinkang, China for carriage to Conakry. During transhipment at Algeciras, Spain, the seal was cut and the contents inspected for customs purposes. On discharge at Conakry on 20 August 1999, Maersk’s cargo surveyor carried out a brief shipside visual inspection of the container and its contents. Everything seemed to be in order, so he re-sealed the lever on the container’s door. On 6 September, Ali Hussein Akar reported to Maersk that the container was "suspiciously light", although it was intact and its seal was unbroken. When the doors were unsealed the container was found to be empty. According to the surveyor, a riveted bolt had been removed from the door handle, so it could be removed and the container opened without breaking the seal. The riveted bolt had been replaced with a rusty threaded bolt and nut.

The Defendants then started proceedings in Hong Kong and Guinea for the loss of the goods. The Hong Kong action is still in abeyance, but in July 2001 the Conakry Court of First Instance (without notice to Maersk) awarded the defendants US$174,440, plus the equivalent of US$10,000 in damages and costs. Maersk was ordered to pay the equivalent of US$50,000 immediately. Further execution had been stayed while Maersk awaited news of an appeal to the Supreme Court of Guinea.

In August 2001, Maersk commenced the present London proceedings, claiming damages for breach of the jurisdiction clause in the bill of lading, in particular, the costs and expenses incurred in responding to the legal proceedings, an indemnity in respect of future loss and expense, and a declaration that the non-delivery claim was false and fraudulent, together with damages for deceit. Maersk obtained a Mareva injunction freezing the Akar assets worldwide, to a total of US$1,483,723. This injunction was still in force.

Maersk’s second claim was against other of the Defendants, who had resorted to the Guinea courts, alleging losses of US$75,000 for delay in delivering the other container, containing 182 bales of cotton printed textiles, shipped from India in February 2001. The shipment arrived in Conakry on 10 April, the bill of lading was presented on April 12 and the container delivered on April 17. Although the alleged delay was only five days, the Defendants’ claim was for "seven and a half times the value of the goods." Maersk demanded damages for breach of the terms of the Maersk bill of lading - specifically, again, its exclusive English law and jurisdiction clause. No issue of deceit was pursued.

Judgment
The Defendants were not represented and did not attend the London court but the judge acceded to Maersk’s request for a trial, rather than proceeding to judgment by default, to assist with any enforcement of the judgment abroad.

First claim
It was "overwhelmingly likely", the judge concluded, that the goods had been removed, at some time between the shipside survey on 20 August, and the second survey on 6 September. After a careful analysis of the evidence, the judge concluded that Maersk had established that some or all of the Defendants removed the goods from the container before the second survey in September 1999 and that the claims which they pursued against the Claimant were fraudulent. He granted Maersk a declaration to this effect. He also found that the claim in deceit was made out, and the representations that the goods had been stolen, resulting in losses of US$174,440, had been repeated by pursuing claims in Hong Kong and Guinea.

On the issue of the jurisdiction clause in the bill of lading, the judge said that English law and jurisdiction clearly applied, and there could be no doubt that "in commencing and pursuing the proceedings in Hong Kong and Guinea the…. Defendants are in breach of that exclusive jurisdiction clause". As a result of that breach, Maersk had suffered loss and damage consisting of the legal fees and other expenses incurred in investigating and defending the proceedings. The Claimant was entitled to damages, and an indemnity in respect of future costs and expenses in respect of proceedings in Guinea or Hong Kong.

Second claim
The judge described as "staggering" the amount of financial prejudice alleged by the Defendants. However, he did not have to decide whether the claim was genuine, but only whether there was a breach of the exclusive jurisdiction clause. There could again be no doubt, he concluded, that the

Defendants had breached that clause in bringing proceedings in Guinea.

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The judge awarded Maersk damages of US131,000 approx., plus interest, and declared it entitled to an indemnity against future costs of foreign litigation in respect of both claims. In addition, the Defendants were ordered to pay Maersk’s costs, assessed at £140,000.