“3. Law and Jurisdiction. This Booking Note shall be governed by and construed in accordance with the laws of England and all disputes and claims arising out of or in connection with this Booking Note shall be referred to and determined exclusively by the English High Court” “17. Exemptions and immunities of all servants and agents of the Company. It is hereby expressly agreed that no servant or agent of the Company (including every independent contractor from time to time employed by the Company) shall in any circumstances whatsoever be under any liability whatsoever to the Merchant for any loss, damage or delay arising or resulting directly or in-directly from any act, neglect or default on his part while acting in the course of or in connection with his employment and, but without prejudice to the generality of the foregoing provisions in this clause, every exemption from liability, limitation, condition and liberty herein contained and every right, exemption from liability, defence and immunity of whatsoever nature applicable to the Company or to which the Company is entitled hereunder shall also be available and shall extend to protect every such servant or agent of the Company acting as aforesaid and for the purpose of all the foregoing provisions of this clause the Company is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all persons who are or might be his servants or agents from time to time (including independent contractors as aforesaid) and all such persons shall to this extent be or be deemed to be parties to the agreement evidenced by this Booking Note.”
“JURISDICTION AND LAW. 28. These conditions and any act or contract to which they apply shall be governed by English law and any dispute arising out of any act or contract to which these Conditions apply shall be subject to the exclusive jurisdiction of the English Court.”
“3 Law and Jurisdiction. Disputes arising under this Sea Waybill shall be determined by the courts and in accordance with the law at the place where the carrier has his principal place of business”
“This is, accordingly, a case in which the fact on which jurisdiction depends is also likely to be decisive of the action itself if it proceeds. For the purpose of determining an issue about jurisdiction, the traditional test has been whether the claimant had ‘the better of the argument’ on the facts going to jurisdiction. InBrownlie v Four Seasons Holdings Inc[2018] 1WLR 192 , para 7, this court reformulated the effect of that test as follows: ‘(i) that the claimant must supply a plausible evidential basis for the application of a relevant jurisdictional gateway; (ii) that if there is an issue of fact about it, or some other reason for doubting whether it applies, the court must take a view on the material available if it can reliably do so; but (iii) the nature of the issue and the limitations of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it.’ It is common ground that the test must be satisfied on the evidence relating to the position as at the date when the proceedings were commenced.”
“such contracts are subject under international agreements to special sets of rules with very considerable ramifications” and their inclusion would “merely complicate the legal position”
“… if a contract for the removal of furniture, includes, indeed, a transport of goods, its object is however not limited to the transport, since it also includes the handling, and possibly the installing of the furniture, so that it could in that respect be qualified as a contract for services.”
“the essential nature of the obligation [under a forwarding agreement] is not to carry, but an obligation to procure that carriage is achieved by others”
“37. It follows that the special rules of jurisdiction in articles 13–15 of the Brussels Convention apply, in principle, only where the contract is concluded between the parties for the purpose of a use other than a trade or professional one of the relevant goods or services. 38. It is in the light of those principles that it is appropriate to examine whether and to what extent a contract such as that at issue in the main proceedings, which relates to activities of a partly professional and partly private nature, may be covered by the special rules of jurisdiction laid down in articles 13–15. 39. In that regard, it is already clearly apparent from the purpose of articles 13– 15, namely, properly to protect the person who is presumed to be in a weaker position than the other party to the contract, that the benefit of those provisions cannot, as a matter of principle, be relied on by a person who concludes a contract for a purpose which is partly concerned with his trade or profession and is therefore only partly outside it. It would be otherwise only if the link between the contract and the trade or profession of the person concerned was so slight as to be marginal and, therefore, had only a negligible role in the context of the supply in respect of which the contract was concluded, considered in its entirety. 40. As the Advocate General stated in paras 40 and 41 of his opinion, in as much as a contract is entered into for the person's trade or professional purposes, he must be deemed to be on an equal footing with the other party to the contract, so that the special protection reserved by the Brussels Convention for consumers is not justified in such a case. 41. That is in no way altered by the fact that the contract at issue also has a private purpose, and it remains relevant whatever the relationship between the private and professional use of the goods or service concerned, and even though the private use is predominant, as long as the proportion of the professional usage is not negligible. 42. Accordingly, where a contract has a dual purpose, it is not necessary that the purpose of the goods or services for professional purposes be predominant for articles 13–15 of the Convention not to be applicable. 43. That interpretation is supported by the fact that the definition of the notion of consumer in the first paragraph of article 13 is worded in clearly restrictive terms, using a negative turn of phrase ("contract concluded ... for a purpose ... outside [the] trade or profession"). Moreover, the definition of a contract concluded by a consumer must be strictly interpreted as it constitutes a derogation from the basic rule of jurisdiction laid down in the first paragraph of article 2, and confers exceptional jurisdiction on the courts of the claimant's domicile: see paras 32 and 33 of the present judgment. 44. That interpretation is also dictated by the fact that classification of the contract can only be based on an overall assessment of it, since the court has held on many occasions that avoidance of multiplication of bases of jurisdiction as regards the same legal relationship is one of the main objectives of the Brussels Convention : see to that effect, in particular, Besix SA v Wasserreinigungsbau Alfred Kretzschmar GmbH & Co KG (Wabag) (Case C-256/00 )[2003] 1 WLR 1113 , 1131, para 27; Proceedings brought by Gabriel (Case C-96/00 )[2002] ECR I-6367 , 6404, para 57, and Danmarks Rederiforening (acting for DFDS Torline A/S) v LO Landsorganisationen i Sverige (acting for SEKO Sjöfolk Facket för Service och Kommunikation) (Case C-18/02 )[2004] ECR I-1417 , 1452, para 26. 45. An interpretation which denies the capacity of consumer, within the meaning of the first paragraph of article 13 of the Brussels Convention , if the link between the purpose for which the goods or services are used and the trade or profession of the person concerned is not negligible, is also that which is most consistent with the requirements of legal certainty and the requirement that a potential defendant should be able to know in advance the court before which he may be sued, which constitute the foundation of that Convention: see in particular Besix , paras 24-26. 46. Having regard to the normal rules on the burden of proof, it is for the person wishing to rely on articles 13–15 to show that in a contract with a dual purpose the business use is only negligible, the opponent being entitled to adduce evidence to the contrary. 47. In the light of the evidence which has thus been submitted to it, it is therefore for the court seised to decide whether the contract was intended, to a nonnegligible extent, to meet the needs of the trade or profession of the person concerned or whether, on the contrary, the business use was merely negligible. For that purpose, the national court should take into consideration not only the content, nature and purpose of the contract, but also the objective circumstances in which it was concluded. 48. Finally, as regards the national court's question as to whether it is necessary for the party to the contract other than the supposed consumer to have been aware of the purpose for which the contract was concluded and the circumstances in which it was concluded, it must be noted that, in order to facilitate as much as possible both the taking and the evaluation of the evidence, it is necessary for the court seised to base its decision mainly on the evidence which appears, de facto, in the file . 49. If that evidence is sufficient to enable the court to conclude that the contract served to a non-negligible extent the business needs of the person concerned, articles 13–15 of the Convention cannot be applied in any event because of the status of those provisions as exceptions within the scheme introduced by the Convention. There is therefore no need to determine whether the other party to the contract could have been aware of the business purpose. 50. If, on the other hand, the objective evidence in the file is not sufficient to demonstrate that the supply in respect to which a contract with a dual purpose was concluded had a non-negligible business purpose, that contract should, in principle, be regarded as having been concluded by a consumer within the meaning of articles 13–15, in order not to deprive those provisions of their effectiveness.”
“27. Within the scheme of Regulation No 44/2001, the jurisdiction of the courts of the member state in which the defendant is domiciled constitutes the general principle enshrined inarticle 2(1)of that Regulation. It is only by way of derogation from that principle that that provision provides for an exhaustive list of cases in which the defendant may or must be sued before the courts of another member state. As a consequence, the rules of jurisdiction which derogate from that general principle are to be strictly interpreted, in the sense that they cannot give rise to an interpretation going beyond the cases expressly envisaged by that Regulation:Gruber v BayWa AG (Case C-464/01 )[2006] QB 204 ; [2005] ECRI-439, para 32. 28. Although the concepts used by Regulation No 44/2001, in particular those which appear inarticle 15(1)of that Regulation, must be interpreted independently, by reference principally to the general scheme and objectives of that Regulation, in order to ensure that it is applied uniformly in all member states ( Kolassa's case, para 22 and the case law cited), account must, in order to ensure compliance with the objectives pursued by the legislature of the European Union in the sphere of consumer contracts, and the consistency of European Union (“EU”) law, also be taken of the definition of “consumer” in other rules of EU law:Vapenik v Thurner (Case C-508/12 )[2014] 1 WLR 2486 , para 25. 29. In that respect, the court has stated that the notion of a “consumer” for the purposes ofarticles 15 and 16 of Regulation No 44/2001must be strictly construed, reference being made to the position of the person concerned in a particular contract, having regard to the nature and objective of that contract and not to the subjective situation of the person concerned, since the same person may be regarded as a consumer in relation to certain transactions and as an economic operator in relation to others:Benincasa v Dentalkit Srl (Case C-269/95 ) [1997]ECR I-3767; [1998] All ER (EC) 135, para 16 and Gruber's case, para 36. 30. From this the court has inferred that only contracts concluded outside and independently of any trade or professional activity or purpose, solely for the purpose of satisfying an individual's own needs in terms of private consumption, are covered by the special rules laid down by the Regulation to protect the consumer as the party deemed to be the weaker party. Such protection is, however, unwarranted in the case of contracts for the purpose of a trade or professional activity: Gruber's case, para 36. 31. It follows that the special rules of jurisdiction inarticles 15 to 17 ofRegulation No 44/2001apply, in principle, only where the contract has been concluded between the parties for the purpose of a use of the relevant goods or services that is other than a trade or professional use: Gruber's case, para 37. 32. As regards, more particularly, a person who concludes a contract for a purpose which is partly concerned with his trade or profession and is therefore only partly outside it, the court has held that he could rely on those provisions only if the link between the contract and the trade or profession of the person concerned was so slight as to be marginal and, therefore, had only a negligible role in the context of the supply in respect of which the contract was concluded, considered in its entirety:Gruber's case[2006] QB 204 , para 39. 33. It is in the light of those principles that it is appropriate to examine whether circumstances such as those at issue do not entail the loss of a Facebook account user's status as a “consumer” within the meaning ofarticle 15 of Regulation No44/2001. 34. In that regard, it is clear from, inter alia, the order for reference that, between 2008 and 2010 Mr Schrems initially used a Facebook account which he had opened exclusively for private purposes whereas, from 2011, he has also used a Facebook page. 35. According to the applicant, there are two separate contracts, that is to say, one for the Facebook page and the other for the Facebook account. By contrast, according to Facebook Ireland, the Facebook account and the Facebook page form part of the same single contractual relationship. 36. Although it is for the referring court to establish whether Mr Schrems and Facebook Ireland are, in fact, bound by one or several contracts and to draw the appropriate inferences regarding the status of “consumer”, it should be noted that even a potential contractual link between the Facebook account and the Facebook page would not call into question an assessment of such status on the basis of the principles set out in paras 29–32 above. 37. Within the framework of that assessment, in accordance with the requirement, referred to in para 29 above, to construe strictly the notion of “consumer” within the meaning ofarticle 15 of Regulation No 44/2001, it is necessary, in particular, to take into account, as far as concerns services of a digital social network which are intended to be used over a long period of time, subsequent changes in the use which is made of those services. 38. This interpretation implies, in particular, that a user of such services may, in bringing an action, rely on his status as a consumer only if the predominately non-professional use of those services, for which the applicant initially concluded a contract, has not subsequently become predominately professional. 39. On the other hand, given that the notion of a “consumer” is defined by contrast to that of an “economic operator” ( Benincasa's case, para 16 and Gruber's case, para 36) and that it is distinct from the knowledge and information that the person concerned actually possesses (Costea v SCVolksbank Romania SA (Case C-110/14 )[2016] 1 WLR 814 , para 21), neither the expertise which that person may acquire in the field covered by those services nor his assurances given for the purposes of representing the rights and interests of the users of those services can deprive him of the status of a “consumer” within the meaning ofarticle 15 of Regulation No 44/2001. 40. Indeed, an interpretation of the notion of “consumer” which excluded such activities would have the effect of preventing an effective defence of the rights that consumers enjoy in relation to their contractual partners who are traders or professionals, including those rights which relate to the protection of their personal data. Such an interpretation would disregard the objective set out in article 169(1)FEU of promoting the right of consumers to organise themselves in order to safeguard their interests. 41. In the light of all of the foregoing considerations, the answer to the first question is thatarticle 15 of Regulation No 44/2001must be interpreted as meaning that the activities of publishing books, lecturing, operating websites, fundraising and being assigned the claims of numerous consumers for the purpose of their enforcement do not entail the loss of a private Facebook account user's status as a “consumer” within the meaning of that article.”
“As regards, more particularly, a person who concludes a contract for a dual purpose, partly for use in his professional activity and partly for private matters, the Court has held that he could rely on those provisions only if the link between the contract and the trade or profession of the person concerned was so slight as to be marginal and, therefore, had only a negligible role in the context of the transaction in respect of which the contract was concluded, considered in its entirety (see, to that effect, judgment of25 January 2018 , Schrems,C-498/16,EU:C:2018:37, paragraph32and the case-law cited).”
“62 Requirement for contract terms and notices to be fair (1) An unfair term of a consumer contract is not binding on the consumer…. … (3) This does not prevent the consumer from relying on the term or notice if the consumer chooses to do so. (4) A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer. (5) Whether a term is fair is to be determined— (1) An unfair term of a consumer contract is not binding on the consumer…. … (3) This does not prevent the consumer from relying on the term or notice if the consumer chooses to do so. (4) A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer. (5) Whether a term is fair is to be determined— 112. (b)by reference to all the circumstances existing when the term was agreed and to all of the other terms of the contract or of any other contract on which it depends.”
“A term which has the object or effect of excluding or hindering the consumer's right to take legal action or exercise any other legal remedy, in particular by— (a) requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, (b) unduly restricting the evidence available to the consumer, or (c) imposing on the consumer a burden of proof which, according to the applicable law, should lie with another party to the contract.”
“A person domiciled in a Member State may also be sued: (1) where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings;” (1) where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings;”
“80 However, in assessing whether there is a connection between different claims, that is to say a risk of irreconcilable judgments if those claims were determined separately, the identical legal bases of the actions brought is only one relevant factor among others. It is not an indispensable requirement for the application of Article 6(1) of Regulation No 44/2001 (see, to that effect, Freeport, paragraph 41). 81 Thus, a difference in legal basis between the actions brought against the various defendants, does not, in itself, preclude the application of Article 6(1) of Regulation No 44/2001, provided however that it was foreseeable by the defendants that they might be sued in the Member State where at least one of them is domiciled (see, to that effect, Freeport, paragraph 47). 82 That reasoning is stronger if, as in the main proceedings, the national laws on which the actions against the various defendants are based are, in the referring court’s view, substantially identical. 83 It is, in addition, for the referring court to assess, in the light of all the elements of the case, whether there is a connection between the different claims brought before it, that is to say a risk of irreconcilable judgments if those claims were determined separately. For that purpose, the fact that defendants against whom a copyright holder alleges substantially identical infringements of his copyright did or did not act independently may be relevant. 84 In the light of the foregoing considerations, the answer to the first question is that Article 6(1) of Regulation No 44/2001 must be interpreted as not precluding its application solely because actions against several defendants for substantially identical copyright infringements are brought on national legal grounds which vary according to the Member States concerned. It is for the referring court to assess, in the light of all the elements of the case, whether there is a risk of irreconcilable judgments if those actions were determined separately.”
“23. Nevertheless, the court points out that, even in the case where various laws are, by virtue of the rules of private international law of the court seised, applicable to the actions for damages brought by CDC against the defendants, such a difference in legal basis does not, in itself, preclude the application ofarticle 6(1) of Regulation No 44/2001, provided that it was foreseeable by the defendants that they might be sued in the member state where at least one of them is domiciled: Painer's case, para 84.”
“22. As regards, finally, the risk of irreconcilable judgments resulting from separate proceedings, since the requirements for holding those participating in an unlawful cartel liable in tort may differ between the various national laws, there would be a risk of irreconcilable judgments if actions were brought before the courts of various Member States by a party allegedly adversely affected by a cartel. 23. Nevertheless, the Court points out that, even in the case where various laws are, by virtue of the rules of private international law of the court seised, applicable to the actions for damages brought by CDC against the defendants in the main proceedings, such a difference in legal basis does not, in itself, preclude the application ofArticle 6(1) of Regulation No 44/2001, provided that it was foreseeable by the defendants that they might be sued in the Member State where at least one of them is domiciled (see judgment inPainer, C-145/10, EU:C:2011:798, paragraph 84 [It appears that this reference should in fact be to [81] ofPainer.]). 24. That latter condition is fulfilled in the case of a binding decision of the Commission finding there to have been a single infringement of EU law and, on the basis of that finding, holding each participant liable for the loss resulting from the tortious actions of those participating in the infringement. In those circumstances, the participants could have expected to be sued in the courts of a Member State in which one of them is domiciled.” 272. I accept Ms Abram’s submission that foreseeability is not only relevant in cases where different legal bases for claims are in play. The statement of the ECJ inReisch Montageis quite general in that regard, and that decision is expressly referred to by the ECJ in CDC . It is perhaps understandable that the Court should have emphasised foreseeability when referring to a case in which different legal bases for the claims existed, as in such a situation it might be less likely to be satisfied. 273. However, it seems to me that Ms Abram’s wider argument is in danger of treating the statement of the ECJ inReisch Montageas adding a free-standing and distinct criterion of foreseeability to the preconditions of application expressly set out inart.8(1). If that criterion were to be applied generally, and without reference to those express preconditions, there would be a risk of the EU law principle of legal certainty being compromised, instead of respected asReisch Montageexpressly requires. That case states that the special rule inart.8(1)must be interpreted so as to ensure legal certainty. The special rule’s express precondition is that “the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments …”
“It is hereby expressly agreed that no servant or agent of the Company (including every independent contractor from time to time employed by the Company) shall in any circumstances whatsoever be under any liability whatsoever to the Merchant for any loss, damage or delay arising or resulting directly or in-directly from any act, neglect or default on his part while acting in the course of or in connection with his employment and, but without prejudice to the generality of the foregoing provisions in this clause, every exemption from liability, limitation, condition and liberty herein contained and every right, exemption from liability, defence and immunity of whatsoever nature applicable to the Company or to which the Company is entitled hereunder shall also be available and shall extend to protect every such servant or agent of the Company acting as aforesaid and for the purpose of all the foregoing provisions of this clause the Company is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all persons who are or might be his servants or agents from time to time (including independent contractors as aforesaid) and all such persons shall to this extent be or be deemed to be parties to the agreement evidenced by this Booking Note.”
“93. A Himalaya clause in a contract of carriage is designed to create contractual relations between the shipper and any third parties whom the carrier may employ to discharge his obligations. It does so without infringing the English doctrines of privity of contract and consideration, which, until theContracts (Rights of Third Parties) Act 1999 , prevented third parties from claiming benefits under contracts. The way it works is this. The shipper makes an agreement through the agency of the carrier with the third party servant or contractor. Such third parties may have authorised the carrier in advance to contract on their behalf or they may afterwards ratify the agreement. The terms of the agreement are that if such a third party renders any services for the benefit of the cargo owner in the course of his employment by the carrier, he will be entitled to the exemptions and immunities set out in the clause. At that stage, the agreement is not a contract. The third party makes no promise to the shipper to render any services and, until he has actually rendered them, no contract has come into effect. It is the act of rendering the services which provides the consideration and brings into existence a binding contract under which the third party is entitled to the exemptions and immunities. The efficaciousness of the clause to achieve these results has been affirmed by the decision of the Privy Council inNew ZealandShipping Co Ltd v A M Satterthwaite & Co Ltd (The Eurymedon)[1975] AC 154 . The theory of the agreement which becomes enforceable conditionally upon the act providing consideration was developed by Sir Garfield Barwick CJ in his dissenting judgment in the High Court of Australia inPort Jackson StevedoringPty Ltd v Salmond & Spraggon (Australia) Pty Ltd (The New York Star) (1978)139 CLR 231and adopted by the Privy Council when it affirmed his judgment on appeal: seeThe New York Star[1981] 1 WLR 138 .”
“The exclusive jurisdiction clause The Himalaya clause provides that, among others, subcontractors shall have the benefit of "all exceptions, limitations, provision, conditions and liberties herein benefiting the carrier as if such provisions were expressly made for their benefit." The question therefore arises whether the exclusive jurisdiction clause (clause 19) falls within the scope of this clause. InThe Eurymedon [1975] A.C. 154, 169 andThe New York StarÜtbÜdc1Ý[1981]1 W.L.R. 138, 143 Lord Wilberforce stated the principle to be applicable, in the case of stevedores, to respectively "exemptions and limitations" and "defences and immunities" contained in the bill of lading. This is scarcely surprising. Most bill of lading contracts incorporate the Hague-Visby Rules , in which the responsibilities and liabilities of the carrier are segregated from his rights and immunities, the latter being set out primarily in article IV, rules 1 and 2 , exempting the carrier and the ship from liability or responsibility for loss of or damage to the goods in certain specified circumstances; though the limitation on liability per package or unit is to be found in article IV, rule 5 , and the time bar in article III, rule 6 . Terms such as these are characteristically terms for the benefit of the carrier, of which subcontractors can have the benefit under the Himalaya clause as if such terms were expressly made for their benefit. It however by no means follows that the same can be said of an exclusive jurisdiction clause, here incorporating, as is usual, a choice of law provision relating to the law of the chosen jurisdiction. No question arises in the present case with regard to the choice of law provision. This already applies to the bill of lading contract itself, and may for that reason also apply to another contract which comes into existence, pursuant to its terms, between the shipper and a subcontractor of the carrier such as the shipowners in the present case. But the exclusive jurisdiction clause itself creates serious problems. Such a clause can be distinguished from terms such as exceptions and limitations in that it does not benefit only one party, but embodies a mutual agreement under which both parties agree with each other as to the relevant jurisdiction for the resolution of disputes. It is therefore a clause which creates mutual rights and obligations. Can such a clause be an exception, limitation, provision, condition or liberty benefiting the carrier within the meaning of the clause? First of all, it cannot in their Lordships' opinion be an exception, limitation, condition or liberty. But can it be a provision? That expression has, of course, to be considered in the context of the Himalaya clause; and so the question is whether an exclusive jurisdiction clause is a provision benefiting the carrier, of which servants, agents and subcontractors of the carrier are intended to have the benefit, as if the provision was expressly made for their benefit. Moreover, the word "provision" is to be found at the centre of a series of words, viz. "exceptions, limitations . . . conditions and liberties," all of which share the same characteristic, that they are not as such rights which entail correlative obligations on the cargo owners. In considering this question, their Lordships are satisfied that some limit must be placed upon the meaning of the word "provision" in this context. In their Lordships' opinion the word "provision" must have been inserted with the purpose of ensuring that any other provision in the bill of lading which, although it did not strictly fall within the description "exceptions, limitations, . . . conditions and liberties," nevertheless benefited the carrier in the same way in the sense that it was inserted in the bill for the carrier's protection, should enure for the benefit of the servants, agents and subcontractors of the carrier. It cannot therefore extend to include a mutual agreement, such as an exclusive jurisdiction clause, which is not of that character. Their Lordships draw support for this view from the function of the Himalaya clause. That function is, as revealed by the authorities, to prevent cargo owners from avoiding the effect of contractual defences available to the carrier (typically the exceptions and limitations in the Hague-Visby Rules ) by suing in tort persons who perform the contractual services on the carrier's behalf. To make available to such a person the benefit of an exclusive jurisdiction clause in the bill of lading contract does not contribute to the solution of that problem. Furthermore to construe the general words of the Himalaya clause as effective to make available to servants, agents or subcontractors a clause which expressly refers to disputes arising under the contract evidenced by the bill of lading, to which they are not party, is not easy to reconcile with those authorities (such asT.W. Thomas & Co.Ltd. v. Portsea Steamship Co. Ltd. [1912] A.C. 1) which hold that general words of incorporation are ineffective to incorporate into a bill of lading an arbitration clause which refers only to disputes arising under the charter. Furthermore, it is of some significance to observe how adventitious would have been the benefit of the exclusive jurisdiction clause to the shipowners in the present case. Such a clause generally represents a preference by the carrier for the jurisdiction where he carries on business. But the same cannot necessarily be said of his servants, agents or subcontractors. It could conceivably be true of servants, such as crew members, who may be resident in the same jurisdiction; though if sued elsewhere they may in any event be able to invoke the principle of forum non conveniens. But the same cannot be said to be true of agents, still less of subcontractors. Take, for example, stevedores at the discharging port, who provide the classic example of independent contractors intended to be protected by a Himalaya clause. There is no reason to suppose that an exclusive jurisdiction clause selected to suit a particular carrier would be likely to be of any benefit to such stevedores; it could only conceivably be so in the coincidental circumstance that the discharging port happened to be in the country where the carrier carried on business. Exactly the same can be said of a shipowner who performs all or part of the carrier's obligations under the bill of lading contract, pursuant to a time or voyage charter. In such a case, the shipowner may very likely have no connection with the carrier's chosen jurisdiction. Coincidentally he may do so, as in the present case where the shipowners happened, like Sentosa, to be an Indonesian corporation. This of course explains why the shipowners in the present case wish to take advantage of the exclusive jurisdiction clause in Sentosa's form of bill of lading; but it would not be right to attach any significance to that coincidence. In the opinion of their Lordships, all these considerations point strongly against the exclusive jurisdiction clause falling within the scope of the Himalaya clause. However in support of his submission that the exclusive jurisdiction clause fell within the scope of the Himalaya clause in the present case, Mr. Gross, for the shipowners, invoked the decision of the Privy Council inThe Pioneer Container[1994] 2 A.C. 324. That case was however concerned with a different situation, where a carrier of goods subcontracted part of the carriage to a shipowner under a "feeder" bill of lading, and that shipowner sought to enforce an exclusive jurisdiction clause contained in that bill of lading against the owners of the goods. The Judicial Committee held that the shipowner was entitled to do so, because the goods owner had authorised the carrier so to subcontract "on any terms," with the effect that the shipowner as sub-bailee was entitled to rely on the clause against the goods owner as head bailor. The present case is however concerned not with a question of enforceability of a term in a sub-bailment by the sub-bailee against the head bailor, but with the question whether a subcontractor is entitled to take the benefit of a term in the head contract . The former depends on the scope of the authority of the intermediate bailor to act on behalf of the head bailor in agreeing on his behalf to the relevant term in the sub-bailment ; whereas the latter depends on the scope of the agreement between the head contractor and the subcontractor, entered into by the intermediate contractor as agent for the subcontractor, under which the benefit of a term in the head contract may be made available by the head contractor to the subcontractor. It does not follow that a decision in the former type of case provides any useful guidance in a case of the latter type; and their Lordships do not therefore find The Pioneer Container of assistance in the present case. In the event, for the reasons they have already given, their Lordships have come to the conclusion that the Himalaya clause does not have the effect of enabling the shipowners to take advantage of the exclusive jurisdiction clause in the bill of lading in the present case.”
“52. I do not accept that the present case is to be regarded as a “two-contract” case. Whilst, literally speaking, there is more than one contract to be considered, being the June contract and whatever other contracts between the same parties are to have some of their terms incorporated, the relevant distinction is between incorporation of the terms of a contract made between (a) the same and (b) different parties. In short there is a material distinction between categories 1 and 2 on the one hand and categories 3 and 4 on the other. In relation to the latter two categories a more restrictive approach to incorporation is required. That should not, however, mean that a similarly restrictive approach should apply to cases in categories 1 and 2. I agree with Langley J that, if that were so, the exception would swallow up the rule. It is important that it should not do so given that the precise rationale of the rule is debatable; its retention is partly attributable to the desirability of not changing an approach established “ for better or worse ”; and that the rule is not easily congruent with ordinary principles of construction. Further there is good reason not to apply a more restrictive approach in relation to cases in category 2, where the parties have already contracted on the terms said to be incorporated, than to those in category 1, where the party resisting incorporation is either more or at least as likely to be unfamiliar with the standard term relied on as is the party resisting incorporation in category 2…”
“I have been provided with a copy of the skeleton argument filed by Peters & May 221. Loro Piana’s claim against Peters & May Srl in Italy is not based on the Booking Note. It is no part of his case in Italy that Peters & May Srl is a party to the Booking Note or bound by its terms and Mr Loro Piana does not claim damages against Peters & May Srl for breach of the Booking Note. It was not our intention when drafting the Writ of Summons to make any such argument.”
“34. I respectfully agree with the approach of David Steel J. in Sea Premium and with the obiter dictum of Popplewell J. in The MD Gemini . The reason why the jurisdiction clause can be enforced by an injunction in those cases and in the present case is that it would be inequitable or oppressive and vexatious for a party to a contract, in the present case IB Maroc, to seek to enforce a contractual claim arising out of that contract without respecting the jurisdiction clause within that contract. If the approach of Longmore LJ in the Yusuf Cepinioglu is applicable to the present case the reason is simply that IB Maroc, when seeking to enforce a contractual right, is bound to accept that its claim must be "handled through the English courts" as required by the contract in question. As with the claim by Dell UK it is accepted that there is no strong reason for not granting the injunction sought.”
“If a party, X, acquires rights arising under a contract between A and B, X can only enforce those rights consistently with the terms of that contract. The principle was crisply explained by Hobhouse LJ (as he then was) inThe Jay Bola[1997] 2 Lloyd's Rep. 279, at p.286, with regard to rights acquired by insurers from voyage charterers: "…the rights which the insurance company has acquired are rights which are subject to the arbitration clause. The insurance company has the right to refer the claim to arbitration, obtain if it can an award in its favour from the arbitrators, and enforce the obligation of the time charterers to pay that award. Likewise, the insurance company is not entitled to assert its claim inconsistently with the terms of the contract. One of the terms of the contract is that, in the event of a dispute, the claim must be referred to arbitration. The insurance company is not entitled to enforce its right without also recognising the obligation to arbitrate." See too,The Tilly Russ,Case C-71/83 [1984] ECR 2417, at [24] – [26]. These authorities lend no support to Underwriters' case. Nor, for that matter, doesYouell v Kara Mara Shipping [2001] Lloyd's Rep. IR 553, at [56] and following. 57. Secondly, a jurisdiction clause is, by its nature, concerned with proceedings. Had the Bank commenced proceedings against Underwriters to enforce its insurance claim it would, doubtless, have been required to do so in accordance with the English jurisdiction clause contained in the Policy. But it did not do so and that, by itself, is an end of the matter. A mere assertion of its rights, short of commencing proceedings, would not, without more, result in the Bank being bound by the jurisdiction clause in the Policy. 58. Thirdly and in any event, like Teare J, I do not read the Letter of Authority as entailing an assertion of the Bank's rights. I have nothing to add to Teare J's observations (at [51]) on this point. 59. Fourthly, in the circumstances, it is unnecessary to lengthen this judgment by embarking on a consideration of the position which would or might have prevailed had negative declaratory relief been sought. Suffice to say, it was not. 60. It follows that I would dismiss Underwriters' appeal on this Issue.”
“26. The Bank's entitlement to receive the proceeds of the Policy in the event that there was an insured casualty rests on its status as an equitable assignee. It is trite law that an assignment transfers rights under a contract but, absent the consent of the party to whom contractual obligations are owed, cannot transfer those obligations:Tolhurst v Associated Portland Cement Manufacturers (1900)Ltd[1902] 2 KB 660 , 668-670 per Collins MR. An assignment of contractual rights does not make the assignee a party to the contract. It is nonetheless well established that a contractual right may be conditional or qualified. If so, its assignment does not allow the assignee to exercise the right without being subject to the conditions or qualifications in question. As Sir Robert Megarry V-C stated inTito v Waddell (No 2)[1977] Ch 106 , 290, "you take the right as it stands, and you cannot pick out the good and reject the bad". This concept, which has often been described as "conditional benefit", is to the effect that an assignee cannot assert its claim under a contract in a way which is inconsistent with the terms of the contract. Several examples of its application or consideration were cited to the court. See, for example,Montedipe SpA v JTP-RO Jugotanker ("The JordanNicolov")[1990] 2 Lloyd's Rep 11 , 15-16 per Hobhouse J;Pan Ocean Shipping Co Ltd v Creditcorp Ltd ("The Trident Beauty")[1994] 1 WLR 161 , 171 per Lord Woolf;Schiffahrtsgesellschaft Detlev von Appen GmbH v Voest Alpine Intertrading GmbH ("TheJay Bola")[1997] 2 Lloyd's Rep 279 , 286 per Hobhouse LJ;Youell v Kara Mara Shipping Co Ltd[2000] 2 Lloyd's Rep 102 , paras 58-62 per Aikens LJ;Shipowners' Mutual Protection and IndemnityAssociation (Luxembourg) v Containerships Denizcilik Nakliyat Ve Ticaret AS ("The Yusuf Cepnioglu")[2016] 1 Lloyd's Rep 641 ; [2016] Bus LR 755, paras 23-25 per Longmore LJ; andAline Tramp SA v Jordan International InsuranceCo ("The Flag Evi")[2017] 1 Lloyd's Rep 467 , para 40 per Sara Cockerill QC, sitting as a Deputy High Court Judge. 27. In my view, the formulation of the principle by Hobhouse LJ in"The JayBola", which the Court of Appeal approved in"The Yusuf Cepnioglu", is the best encapsulation. In"The Jay Bola"the insurers of cargo for the voyage charterer asserted rights, which had been assigned to them by the voyage charterer by subrogation under foreign law, by raising court proceedings in Brazil against the owners and the time charterer. On the application of the time charterers, Morison J granted an anti-suit injunction against the insurers because the arbitration clause in the voyage charter regulated the means by which the transferred right could be enforced. The Court of Appeal upheld his order. Hobhouse LJ stated ([1997] 2 Lloyd's Rep 279 , p 286): "… the insurance company is not entitled to assert its claim inconsistently with the terms of the contract. One of the terms of the contract is that, in the event of dispute, the claim must be referred to arbitration. The insurance company is not entitled to enforce its right without also recognizing the obligation to arbitrate." This formulation emphasises the constraint on the assertion of a right as being the requirement to avoid inconsistency and, whether the clause is an arbitration clause, as in"The Jay Bola", or an exclusive jurisdiction clause, as inYouell(above), it is the assertion of the right through legal proceedings which is in conflict with the contractual provision that gives rise to the inconsistency. 28. In Rals International Pte Ltd v Cassa di Risparmio di Parma e Piacenza SpA[2016] 5 SLR 455 , para 55, the Singapore Court of Appeal, commenting on"TheJay Bola"and the proposition that an assignee does not become a party to the contract but would not be entitled to enforce its rights against the other party without also recognising the obligation to arbitrate, stated: "This approach of entitlement rather than obligation may be more easily reconcilable with the consensual nature of arbitration. This is because the assignee is only taken to submit to arbitration at the point it elects to exercise its assigned right." 29. In the present case the Bank did not commence legal proceedings to enforce its claim. Indeed, it did not even assert its claim but left it to the Owners and the Managers to agree with the Insurers the arrangements for the release of the proceeds of the insurance policy by entering into the Settlement Agreement. It is not disputed that the Bank was not a party to the Settlement Agreement and the Bank derived no rights from that agreement. The Letter of Authority, which the Bank produced at the request of the Owners and the Managers, enabled both the Insurers and Willis Ltd to obtain discharges of their obligations and to that end it was attached to the Settlement Agreement. The Letter of Authority facilitated the settlement between the Insurers and the Owners and provided the Owners/Managers with a mechanism by which the Bank as mortgagee, assignee and loss payee could receive its entitlement. At the time of payment of the proceeds of the Policy there was no dispute as to the Bank's entitlement and no need for legal proceedings. There was therefore no inconsistency between the Bank's actions and the exclusive jurisdiction clause. The Bank therefore is not bound by an agreement as to jurisdiction underarticle 15orarticle 25of the Regulation. 30. The Insurers argue that, if they had refused to pay the proceeds of the Policy to the Bank and had commenced proceedings against the Bank in England seeking negative declaratory relief, the Bank would have been bound by the exclusive jurisdiction clause. They submit that it makes no sense to distinguish a claim for negative declaratory relief from the Bank's claim. This is because the Bank's right to sue for an indemnity under the Policy and the Insurers' right to sue for a declaration that it is not liable to the Bank are the same cause of action:Gubisch Maschinenfabrik KG v Palumbo (Case 144/86) [1987] ECR 4861, paras 15-19. This incoherence, it is submitted, militates against the Bank's analysis. I disagree. The Bank is not a party to the contract contained in the Policy. The Bank is not bound by that contract to submit to the jurisdiction of the English courts if the Insurers raise an action in England. If the Insurers' claims fall withinsection 3of the Regulation, the Insurers may bring proceedings against the Bank only in the courts of the member state of the Bank's domicile, that is The Netherlands. I turn then to that question.”