(Hong Kong) The question was whether shipowners, who were not parties to the bill of lading contract between the charterers and carriers on the one part, and the cargo-owners, the bill of lading being a charterer’s bill, could enforce against the cargo-owners an exclusive jurisdiction clause contained in that contract.
Held: Ship owners may not rely on an exclusive jurisdiction clause in a charterer’s contract. They could not because the Himalaya clause in the bill of lading, which extended the benefit of all ‘exceptions, limitations, provision, conditions and liberties herein benefiting the carrier’ to ‘servants, agents and subcontractors of the carrier’ did not include the exclusive jurisdiction clause because an exclusive jurisdiction clause is a mutual agreement and does not benefit only one party. Rather the rights conferred entail correlative obligations. A contract (and in particular a Himalaya clause) must be construed to give commercial effect if possible.
Judges:
Lord Goff of Chieveley
Citations:
Times 24-Apr-1996, [1996] AC 650, [1996] 3 WLR 1
Jurisdiction:
England and Wales
Citing:
Cited – New Zealand Shipping Co Ltd v A M Satterthwaite and Co Ltd (The Eurymedon) PC 25-Feb-1974
The Board considered the extent to which an exclusion clause in a bill of lading could be relied on by the third party stevedore, an independent contractor employed by the carrier, who was sued by the consignees of goods for negligently damaging the . .
Cited by:
Cited – Homburg Houtimport BV v Agrosin Private Ltd (the ‘Starsin’) HL 13-Mar-2003
Cargo owners sought damages for their cargo which had been damaged aboard the ship. The contract had been endorsed with additional terms. That variation may have changed the contract from a charterer’s to a shipowner’s bill.
Held: The specific . .
Cited – Borkan General Trading Ltd v Monsoon Trading Ltd CA 8-Jul-2003
A contract for a tug expressly provided a benefit for a third party. He now sought to claim benefit under it.
Held: If, in the absence of a trust in his favour a third party for whose benefit a contract had expressly been made, could not take . .
Cited – Nisshin Shipping Co Ltd v Cleaves and Company Ltd and others ComC 7-Nov-2003
One party sought a declaration that arbitrators should have no jurisdiction to determine claims for commission said to be due to the Respondent chartering brokers.
Held: Because he has in effect become a statutory assignee of the promisee’s . .
Lists of cited by and citing cases may be incomplete.
Transport, Jurisdiction, Contract, Arbitration
Updated: 08 July 2022; Ref: scu.89834
