#5157 - The Sennar - Conflict of Laws BCL

The Sennar

Facts

The background of the appellants' claim is to be found in a string of contracts made in 1973 for the sale of 2000 tonnes of Sudanese groundnut expellers c.i.f Rotterdam. The first contract in the string was made on or about 22 June 1973 between a Sudanese company, Malik Industrial Co. Ltd. (“Malik”), as sellers and a Swiss company, Pagco S.A. (“Pagco”), as buyers; the second contract in the string was made on or about the same date between Pagco as sellers and GfG as buyers; and the third contract in the string was made on or about 25 June 1973 between GfG as sellers, and an English company, European Grain & Shipping Ltd. (“European”), as buyers. All three contracts provided that 1000 tonnes of the 2000 tonnes sold should be shipped during July/August.

In bill of lading No 7 the carriers were shown as Sudan Shipping Line Ltd. of Port Sudan; the shipper was described as Malik; the carrying ship was described as the Sennar; the port of loading was stated to be Port Sudan; the port of discharge was stated to be Rotterdam; the goods, which were acknowledged to have been shipped on board, were described as 1001248 kilos of Sudanese decorticated groundnut expellers, partly in bags and partly in bulk; and the goods were stated to be consigned “to order.” The bill of lading was expressed to be signed by the master, and the place and date of issue were stated to be Port Sudan 30 August 1973. The bill of lading contained the following clause:

“27. Jurisdiction. All actions under this contract of carriage shall be brought before the court at Khartoum or Port Sudan and no other court shall have Jurisdiction with regard to any such action unless the carrier appeals to another Jurisdiction or voluntarily submits himself thereto.”

The second such event was that it had become known to both European and GfG that, although bill of lading No. 7 was dated 30 August 1973, the loading at Port Sudan of the goods referred to in it had not been completed until 7 September 1973. In these circumstances European claimed, as against GfG, to reject the shipping documents presented to them in respect of the goods to which bill of lading No 7 related and repayment of the price paid by them on the taking up of such documents.

Meanwhile GfG had taken other steps in order to recover their loss. On 16 January 1975 they began an action against the respondents in the District Court at Rotterdam, having founded Jurisdiction there by arresting the El Gezira. The amount claimed in the action was DM 731960.50 with interest. The ground of the claim was as follows. The master of the Sennar had committed a tort against GfG by dating bill of lading No 7 30 August 1973 instead of 7 September 1973 as he should have done. As a result of that tort GfG had taken up and paid for shipping documents, including bill of lading No 7, which, if the latter had been correctly dated, they would have justifiably rejected. The District Court of Rotterdam dismissed GfG's claim.

The ground of that decision, which was based on Dutch law, can be summaried as follows. As regular holder of bill of lading No 7 GfG were parties to the contract of carriage contained in it, and were therefore bound by all its terms, including clause 27, the exclusive Sudanese Jurisdiction clause. In these circumstances GfG were not entitled to found their claim for damages on tort but could only found it on the contract between the parties contained in the bill of lading. Since that contract had in it clause 27, the exclusive Sudanese Jurisdiction clause, a Dutch court was bound to decline Jurisdiction in respect of GfG's claim and dismiss the action.

English Action: On 30 January 1981 the writ was served on the Merawi , then in the port of Liverpool, and she was arrested there. On 5 February 1981, following the giving of an undertaking to the appellants by a well known protection and indemnity association, solicitors acting for the respondents filed an acknowledgement of service in the Admiralty Registry and the Merawi was released from arrest. In the result the action, which had been begun in rem against the Merawi, continued as an action in personam against the respondents.

Questions

Issue 1 is whether the appellants' claim founded on deceit or negligence of the respondents, their servants or agents in ante-dating bill of lading No 7 is such as to fall within clause 27 of that bill of lading providing for the exclusive Jurisdiction of two specified courts in the Sudan.

Issue 2 is whether, whatever the answer to issue 1 may be, the appellants are estopped by the decision of the Dutch Court of Appeal from asserting that their claim does not fall within clause 27.

Holding

Requirements for issue estoppel

Having regard to the decision of Your Lordships' House in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No 2) [1967] 1 A.C. 853 (“the Carl Zeiss case”) two matters were not in dispute.

The first matter is that, if an estoppel exists at all, it is that kind of estoppel which is known as issue estoppel per rem judicatam.

The second matter is that, in order to create an estoppel of that kind, three requirements have to be satisfied. The first requirement is that the judgment in the earlier action relied on as creating an estoppel must be (a) of a court of competent Jurisdiction, (b) final and conclusive and (c) on the merits. The second requirement is that the parties (or privies) in the earlier action relied on as creating an estoppel, and those in the later action in which that estoppel is raised as a bar, must be the same. The third requirement is that the issue in the later action, in which the estoppel is raised as a bar, must be the same issue as that decided by the judgment in the earlier action.

“On the merits” requirement

The argument in relation to the first contention was that the judgment of the Dutch Court of Appeal was procedural in nature, in that it consisted only of a decision that a Dutch court had no Jurisdiction to entertain and adjudicate upon the appellants' claim, and did not pronounce in any way on the question whether the claim itself, or any substantive issue in it, if it were to be entertained and adjudicated on, would succeed or fail. In my opinion, this argument is based on a misconception with regard to the meaning of the expression “on the merits” as used in the context of the doctrine of issue estoppel. Looking at the matter negatively a decision on procedure alone is not a decision on the merits. Looking at the matter positively a decision on the merits is a decision which establishes certain facts as proved or not in...