“Axa would like to be provided with a temporary letter of undertaking in the maximum amount of FCFA 30,500,000 to be replaced by a bank guarantee, amount of which is to be established in the light of final figures. Bills of lading will be transmitted to you shortly. Please note that the cargo is covered by Bs/l 1 to 14. Their request for guarantee is mainly based on extrapolation of alleged damage/shortage as follows according to their surveyor. …”
“Generally Axa insist on Competent court to be the Senegalese one. We suggest to try and fight this point also and to try and convince them to accept either competent court, either London jurisdiction [sic]”
“The terms of the contract of carriage provide for London Arbitration and Law. The C/P and in particular clause 45 is indeed incorporated in the B/L”
“… It is not correct to say that either Axa Senegal, or anybody else mentioned to you that they request a guarantee which stipulates that Dakar courts would be competent to hear the dispute. We do not know at this stage which are the competent court, and the request is to obtain a bank guarantee to cover decision “to be rendered by competent court or tribunal”
“But I am not sure that is the relevant point, is it? What has happened in Senegal? It was offered there, but the local courts said, “No”, and insisted on a Bank guarantee. … Suppose the position was this … The application [in] Senegal was stated clearly to be an arrest for the purposes of obtaining security for a London arbitration. … That would plainly be matter for the Senegal court, would it not, to decide what was the appropriate security? And there would not be a breach of the Arbitration Clause because all they would be seeking to do was to get security in respect of an arbitration. That seems to me the difficulty that you face. If you can satisfy me that what is going on there is not simply a security application, but is an attempt to have a substantive [hearing] then you are plainly entitled to an injunction.”
“I am not going to say that the American Club is not a club letter that is worth anything”
“35. In my judgment the evidence does show, to the standard of a good arguable case that the first and second defendants were attempting to use the security proceedings in Dakar, and the requirements of a bank guarantee issued by a Senegal bank, as a means of avoiding or frustrating the London arbitration proceedings. If the full picture, as it has emerged before me, was known at the time of the first injunction granted by Cooke J, and I include in the definition of "full picture" the characterisation of the Dakar court's order as an order made by way of security, it is probable that an injunction would nonetheless have been granted by Cooke J. That was because the conduct of CCMN and Axa Senegal, and their refusal to accept a Club letter of undertaking in relation to this cargo claim was effectively frustrating the claimant's contractual entitlement to have that dispute resolved by way of London arbitration. The clear impression that this court would have gained from the evidence is that the defendants were seeking, whether by their use of the security proceedings or otherwise, to have the cargo claim resolved in Senegal. 36. In my judgment, (a) although the English court would not, and could not, have restrained the defendants from applying for the arrest of the vessel in order to obtain security for their claim in Senegal, if no adequate security had been forthcoming, and (b) although ultimately it is a matter for the arresting court to decide the terms of the security, that it is reasonable for the respondent to the arrest application to provide, nonetheless, in the circumstances, an English court would have restrained the first and second defendants, by way of personal injunction: (i) from insisting before the Dakar court on a form of security to be provided by the claimant, in order to allow the arrest to be lifted, that required resolution of the cargo claim in Senegal, whether directly or indirectly; (ii) from putting forward submissions to the Dakar court that the only reasonable security which the Dakar court should accept to prevent release of the vessel was a bank guarantee which required resolution of the cargo dispute in, and subject to, Senegalese jurisdiction; (iii) from contending before the Dakar court that only a Senegalese bank guarantee was acceptable security, in circumstances where the American Club had offered its letter of undertaking (since the effect of such a submission would, if not inevitably, at least probably, have brought about delay at best and resolution of the cargo claim in Senegal at worst). In my judgment, such an approach by the English court would have been perfectly consistent with the principle, as recognised in the Brussels Convention, that it is for the arresting court, where the vessel is present and situate, to decide on the appropriate nature of the security and would have not offended any notions of comity. The English court would not have been trespassing on the jurisdiction of the Dakar court; rather the former would have been exercising its undoubted personal jurisdiction over the defendants based upon "its assessment of the conduct of the relevant party in invoking [the foreign] jurisdiction"; see para 26 of Turner v Grovit (supra). In circumstances such as the present, where, given the size of the cargo claim, the American Club letter was clearly adequate and reasonable security, and where there was, on any basis, uncertainty about the willingness of local banks speedily to provide security that responded to determination of the cargo claim by London arbitration, the defendants' conduct in contending for security provisions that directly or indirectly would bring about a situation where the London arbitration clause was frustrated, amounted not only, in my view, to a breach of implied terms of the arbitration clause, as described in McKay v Dick, but also oppressive conduct. I take on board Mr Happé’s criticisms of the implied terms which Mr Layton has put forward. Nonetheless, it seems to me that, subject to being properly pleaded out, they satisfy the standard which I am required to apply at this stage, namely a good arguable case on the particular and very special facts of this case. It follows, that in my judgment, had the court known the full picture as at the date of Cooke J's first order of16 March 2005 , it would indeed have made the order which he did, and, accordingly, I decline to discharge it.”
“During our numerous exchanges, Mr Dia confirmed since arrest of the vessel until release that only a bank guarantee including exclusively Senegalese jurisdiction was acceptable to his company to release the vessel. We proposed [to] him the competent and the English jurisdiction, but he refused each time. We also asked him to confirm all our phone exchanges by e-mails or fax in English but he also refused on the ground that he could not deal with the English language.”
“Not only in the case of Kallang, but in all guarantee matters I have dealt with over the years, Axa Senegal has always acted on its own authority and rarely accepted to negotiate any term of its original demands. Accordingly, my experience is that Axa Senegal’s demands in respect of the guarantee wording, including jurisdiction terms, their methods of calculating the anticipated loss and their constant refusal to negotiate were always the same, no matter who the assured was. I truly believe that it is a set internal procedure which they follow rather than any instructions from their assured.”
“There would not even be – the final decision – problems of confidence -we prefer - a bank guarantee – “competent tribunals” - formally in writing - the decision - NP write to us - in writing - his boss - extremely important”
“En ce qui concerne la letter de guarantie, nous vous précisons que nous n’accepterons pas de compétence de jurisdictions autre que celles Sénégalaises à defaut nous serions constaints de saisier le navire.” – i.e. with regard to the letter of guarantee we make it clear that we will not accept any jurisdiction other than Senegal, failing which we will have to arrest the vessel.”
“Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth.”
“I think I may safely say, as a general rule, that where in a written contract it appears that both parties have agreed that something shall be done, which cannot effectually be done unless both concur in doing it, the construction of the contract is that each agrees to do all that is necessary to be done on his part for the carrying out of that thing, though there may be no express words to that effect. What is the part of each must depend on circumstances.”
“I look on the law to be that, if a party enters into an arrangement which can only take effect by the continuance of a certain existing state of circumstances, there is an implied engagement on his part that he shall do nothing of his own motion to put an end to that state of circumstances, under which alone the arrangement can be operative. I agree that if the Company had come to an end by some independent circumstance, not created by the defendants themselves, it might very well be that the covenant would not have the effect contended for; but if it is put an end to by their own voluntary act, that is a breach of covenant for which the plaintiff may sue. The transfer of the business and dissolution of the Company was certainly the act of the Company itself, so that they have by their act put an end to the state of things under which alone this covenant would operate.”
“Personally I should not so much base the law on an implied term but on a positive rule of law of contract that conduct of either promisor or promisee which can be said to amount to himself “of his own motion” bringing about the impossibility of performance is itself a breach.”
“I have on occasion found it a useful test notionally to write into the contract under consideration a declaratory clause expressing the fact that the parties are not subject to the obligations which would flow from the clause which it is urged should be implied. I think it is useful in this case. We then get a contract reading: “It is further agreed that Manchester United Football Club will pay a further sum of£27,770 to Bournemouth & Boscombe Football Club when Edward MacDougall has scored 20 goals in first team competitive football for Manchester United . . . provided always that Manchester United shall be under no obligation to afford MacDougall any reasonable opportunity of scoring 20 goals.”
“It shall be permissible for a receiver of cargo to obtain, in any country in the world where the Kallang may discharge cargo, an order that the Kallang be arrested to secure that person’s cargo claim and be not released from such an arrest unless and until the shipowner provide a bank guarantee under which the bank agrees to make payment to the cargo claimant upon that cargo claimant establishing the liability of the shipowner for such claim before a court or tribunal in that country [or a court or tribunal other then the London arbitration expressly agree by this contract] and not otherwise.”
“may, if in those proceedings property has been arrested or bail or other security has been given to prevent or obtain release from arrest— (a) order that the property arrested be retained as security for the satisfaction of any award given in the arbitration in respect of that dispute, or (b) order that the stay of those proceedings be conditional on the provision of equivalent security for the satisfaction of any such award.”