Maersk A/S v Sree Rayalaseema Hi-Strength Hypo Limited [2026] EWHC 2005 (Comm)

[2026] EWHC 2005 (Comm)

Case No CL-2021-000375

IN THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

COMMERCIAL COURT

Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NL

Date 28/07/2026

Before

PETER MACDONALD EGGERS KC

(sitting as a Deputy Judge of the High Court)

Between

MAERSK A/SClaimant

SREE RAYALASEEMA HI-STRENGTH HYPO LIMITEDDefendant

MV “MAERSK SEOUL”Defendant

Mr Tom Bird (instructed by Schjodt LLP) for Claimant

for The Defendant was not represented

Hearing Hearing date: 17th and 18th March 2026

Approved Judgment

This judgment was handed down remotely at 10.30am on 28 July 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Peter MacDonald Eggers KC:

[1]The Claimant (“Maersk”), a shipping line incorporated in Denmark, was the disponent owner of the vessel Maersk Seoul (“the Vessel”). The Vessel is a fully cellular gearless container vessel built in 2006, 332 metres in length and 42.2 metres in breadth, with nine cargo holds and 19 sets of hatch covers. The Vessel had the capacity to carry 8,411 standard 20-foot equivalent containers, with 500 of these stowed on the hatch covers.

[2]The Defendant (“Sree”) is a publicly-listed company in India and is a bulk chemical manufacturer.

[3]In July 2015, Sree shipped five containers of calcium hypochlorite. Containers MSKU4266606 and MRKU9908482 were stuffed with calcium hypochlorite granules packed in plastic drums. Containers MSKU7134795, MSKU2820576 and MSKU4287300 were stuffed with calcium hypochlorite galets (large tablets), which were individually foil-wrapped and packed in fibreboard boxes (corrugated cardboard cartons).

[4]Three containers (MSKU7134795, MSKU2820576 and MSKU4266606) were loaded on board the Vessel on 18th July 2015, having been loaded on board the feeder vessel Talassa before being shipped on board the Vessel. Those three containers were the subject of two separate contracts of carriage.

[5]On 19th July 2015, there was an explosion and fire on board the Vessel. Maersk’s case is that the explosion and fire were caused by the violent decomposition of calcium hypochlorite shipped by Sree in container MSKU7134795 and/or container MSKU2820576.

[6]On 19th and 21st July 2015, Sree shipped containers MRKU9908482 and MSKU4287300 on board the vessel Maersk Indus pursuant to two contracts of carriage. Following the explosion and fire on board the Vessel, Maersk arranged for the containers to be discharged at Jebel Ali on 22nd July 2015 and for the calcium hypochlorite to be cross-stuffed into reefer containers as a precautionary measure. The calcium hypochlorite galets in container MSKU4287300 were cross-stuffed into reefer container MWCU694271514. On 23rd July 2015, after the cross-stuffing exercise was completed but before the container doors were closed, there was a violent decomposition of the galets and the resulting fire destroyed all the combustible parts of the container and all the cargo which had been stuffed inside it. During the cross-stuffing of the calcium hypochlorite granules from container MRKU9908482, heat damage was noted on the inside of the container.

[7]Maersk claims more than US$13 million, plus interest, for losses arising from the explosion and fire on board the Vessel and the fire on shore, and claims further damages and a final anti-suit injunction in respect of legal proceedings brought by Sree before the Indian Courts in breach of an exclusive jurisdiction agreement incorporated into the contracts of carriage and in breach of an interim anti-suit injunction granted and continued by Henshaw J on 19th February 2024.

[8]This is the trial of Maersk’s claims. Mr Tom Bird appeared on behalf of Maersk at the trial.

[9]Although Sree is aware of these proceedings, it has chosen not to participate in the trial. Sree was served with the Claim Form, but did not file an acknowledgment of service or a defence. Nor has it served any evidence in response to the claim. Sree’s stated position is that the dispute should be litigated in India. In fact, Sree has not actively participated in these proceedings since it opposed the grant of an interim anti-suit injunction in February 2024 (Mr Evans’s ninth witness statement dated 11th March 2026, para. 13). The final communication Maersk received on behalf of Sree was on 6th June 2025, in which it was stated that “Please note that there are ongoing litigations pending before courts in India, and any parallel proceedings before the English High Court would be contrary to Indian law … We reiterate our request that you refrain from proceeding before the English High Court until the matters pending before the Indian courts are conclusively adjudicated”.

[10]Sree was informed of the date of this trial on 4th July 2025. As Sree has decided not to attend the trial, the Court is entitled to proceed with the trial (CPR rule 39.3). Mr Bird submitted, and I accept, that it would be appropriate to proceed with the trial in circumstances where(a) Sree has been given sufficient notice of the trial and an ample opportunity to attend the trial, and in choosing not to participate, Sree must be taken to have waived its right to do so,

(b) there was no evidence that Sree would change its mind and choose to attend the trial if it were adjourned,

(c) it was in the interest of Maersk to proceed with the trial and it would be prejudicial to Maersk not to proceed with the trial, and

(d) it was in the interest of other court users to proceed with the trial to avoid an unnecessary waste of court resources.

[11]In circumstances such as these where the trial is to proceed in the absence of a defendant, and where the Court has not decided to strike out the defence (as it might be entitled to do under CPR rule 39.3), the Court must be satisfied that the claim is proved on the evidence adduced. Maersk, as the represented Claimant, is responsible to draw the Court’s attention to points that have been made on behalf of the non-attending Defendant (Sree) and points which might be of benefit to the Defendant (Maersk Guine-Bissau, SARL v Almar-Hum Bubacar Balde SARL

[2024] EWHC 993 (Comm)

, para. 11). That said, it seems to me, that any defences that should have been pleaded by Sree, but were not, or any defences on which Sree bore the burden of proof, should not be taken into account, unless - exceptionally - it was obvious that the claim was completely undermined by the subject-matter of such defences.

[12]For the purposes of this trial, I have had available to me a large body of evidence, including:(1) Documentary evidence. This includes survey reports and experts’ reports prepared at the time of the casualty.

(2) Witness statements of the Master and crew of the Vessel, witness statements of Mr Cristan Evans of Schjodt LLP, Maersk’s solicitors. In fact, Mr Evans was called to confirm the accuracy of his third, eighth, ninth and tenth witness statements, subject to certain corrections.

(3) Witness statements of Mr J Sreenivasulu, the authorised representative and General Manager (International Marketing) of Sree, which were in respect of Maersk’s application for an anti-suit injunction.

(4) The expert’s report dated 27th February 2026, as corrected on 13th March 2026, prepared by Mr Mark Phillips, who is a Mechanical Engineer, specialising in the investigation of fires, explosions and incidents of a mechanical engineering nature. Factual background Charterparties

Factual background

[13]At the time of the explosion and fire on board the Vessel in July 2015, the Vessel was chartered as follows:(1) Pursuant to a charterparty dated 28th October 2004 (“theHead Charter”), the Vessel’s registered owners, Neptila Schiffsbetriebsgesellschaft mbH & Co MS ‘MARLENE STAR’ KG (“theHead Owners”) time chartered the Vessel to MSM Chartering GmbH (previously known as Blue Star Chartering GmbH) (“MSM”) for a period of 10 years with various options to extend.

(2) Pursuant to a charterparty dated 28th October 2004, the Vessel was time chartered by MSM to Maersk Line UK Ltd (“MLUK”) (previously known as P&O Nedlloyd Ltd) (“theSub Charter”) on the same terms as the Head Charter.

(3) The Vessel was time chartered by MLUK to Maersk on materially the same terms as the Head Charter. However, Maersk has been unable to locate a copy of this charterparty between MLUK and Maersk, though it is referred to in various settlement agreements and Sree has itself described Maersk as the Vessel’s time charterer.

(4) Pursuant to a Novation and Consent Deed dated 9th October 2015 (“theNovation”), the Sub Charter was novated from MLUK to Maersk. By the Novation, Maersk undertook to discharge any liabilities in connection with the Sub Charter even where the relevant liability pre-dated the effective date of the novation (clause 4.1(d)(ii)).

(5) MSM and MLUK were at all relevant times wholly-owned direct or indirect subsidiaries of Maersk (Mr Evans’s eighth statement dated 21st October 2025, para. 7).

Calcium Hypochlorite

[14]Calcium hypochlorite, being the cargo in the containers in question, is an inorganic compound widely used as a disinfectant and bleaching agent. It is a hazardous substance, an oxidising agent, and a designated Class 5.1 Dangerous Good under the International Maritime Dangerous Goods (“IMDG”) Code. There is a long history of incidents in which the chemical has undergone a run-away violent decomposition (report of Mark Phillips dated 27th February 2026, para. 31).

[15]It is a self-heating substance that undergoes a decomposition reaction which ordinarily leads only to mild heating of the material as the heat produced by the reaction is able to escape to the environment. However, in some circumstances, the heat cannot escape effectively and the heating produces marked temperature rises. The rise in temperature accelerates the rate of reaction and thus the rate of heating. Eventually this process can run away and, if it does, a violent decomposition will occur; hot gases and hot material will be ejected. The rapid release of gases produces what would commonly be described as an explosion. In addition, the resulting high temperatures and the release of large quantities of oxygen inevitably results in the ignition and the rapid burning of combustible materials in the vicinity. See the report of Mr Phillips, para. 16.

[16]The IMDG Code prescribes how calcium hypochlorite should be packaged for transportation by sea. One of the requirements is that packages in “cargo transport units” (i.e. containers) shall allow for “adequate air circulation throughout the cargo” (report of Mr Phillips, para. 40).

The Contracts of Carriage between Maersk and Sree

[17]As mentioned above, on 18th July 2015, three containers were loaded on board the Vessel having first been loaded on board the feeder vessel Talassa before being shipped on board the Vessel. Those three containers were the subject of two separate contracts of carriage:(1) A contract of carriage contained in or evidenced by a bill of lading no. 768035363 issued on 12th July 2015 for the carriage of containers MSKU7134795 and MSKU2820576,shipped on board the vessel Talassa on 11th July 2015 from Jawaharlal Nehru, India for carriage to Algeria.

(2) A contract for the carriage evidenced by a draft bill of lading numbered 567221988 for the carriage of container MSKU4266606 shipped on board the vessel Talassa on 11th July 2015 from Jawaharlal Nehru for carriage to Algiers port.

[18]On 19th and 21st July 2015, Sree shipped containers MRKU9908482 and MSKU4287300 on board the vessel Maersk Indus pursuant to two contracts of carriage:(1) A contract for the carriage evidenced by a draft bill of lading no. 768028431 and booking confirmation no. 768028431 in respect of container MRKU9908482 shipped on board the vessel Maersk Indus on 19th July 2015 for carriage from Jawaharlal Nehru to Matadi, Democratic Republic of Congo.

(2) A contract for the carriage evidenced by (among other things) a draft bill of lading no. 710664543 in respect of container MSKU4287300 shipped on board the vessel Maersk Indus on 21st July 2015 for carriage from Jawaharlal Nehru to Algiers port.

[19]Maersk’s case is that the contracts of carriage were typically concluded as follows:(1) The conclusion of a contract is carried out in three main stages: (a) the shipper makes a booking with Maersk online or by email; (b) once accepted, Maersk sends a booking confirmation; and (c) Maersk will issue a draft bill of lading (or sea waybill) based on the shipping instructions and, once the draft has been approved and the cargo shipped, the bill will be issued in final form (Mr Evans’s third witness statement, para. 33).

(2) Booking confirmations are system-generated and are in a standard form, which includes a “Legal Notice” stating:

“All bookings are always subject to space on board the (above referred) vessel and to the terms and conditions of Safmarine Bill of Lading (or Sea Waybill, whenever the Merchant requests for a Sea Waybill), which can be obtained from your local Safmarine agent or on www.safmarine.com” (Mr Evans’s third witness statement, para. 33.4). (3) Although Maersk retains the booking confirmation issued only in respect of the cargo shipped in container MRKU9908482 (sent to Maersk by Sree under cover of a letter dated 5th April 2022) and which contained the standard “Legal Notice” making express reference to the Safmarine Terms, Maersk’s internal records show that booking confirmations were sent for each shipment (Mr Evans’s third witness statement, para. 33.2). (4) Bills of lading are also issued in a standard form. The first page provides that the carriage of the cargo was “always subject to the terms, rights, defences, provisions, conditions, exceptions, limitations, and liberties hereof (INCLUDING ALL THOSE TERMS AND CONDITIONS ON THE RESERVE HEREOF NUMBERED 1-26…)”

. The Safmarine Terms are set out overleaf. (5) Of the bills of lading, only one bill - bill of lading no. 768035363 - was formally issued and signed by on Maersk's behalf by Maersk Kanoo Emirates LLC Dubai in respect of containers MSKU7134795 and MSKU2820576 (one of which, on Maersk’s case, was the cause of the explosion on board the Vessel). (6) The other three bills of lading exist only in a draft version (“Verify Copies”) which (i) identify Sree as the shipper, the port of loading, and the date of shipment, (ii) evidence the Contracts of Carriage; and (iii) expressly incorporate the Safmarine Terms.

[20]Maersk’s case is that Sree had by one means or another ample notice that the goods would be shipped on the Safmarine Terms of Carriage (“Safmarine Terms”). Safmarine was then a trading name of Maersk. Insofar as relevant, and bearing in mind that references to the “Carrier” are to Maersk and references to the “Merchant” are to Sree as the Shipper, the Safmarine Terms provide:

“… 4. SUB CONTRACTING 4.1 The Carrier shall be entitled to sub contract on any terms whatsoever the whole or any part of the Carriage … 5. CARRIER’S RESPONSIBILITY: OCEAN TRANSPORT 5.1 ... The liabilities of the Carrier for loss of or damage to the Goods occurring between the time of acceptance by the Carrier of custody of the Goods at the Port of Loading and the time of the Carrier tendering the Goods for delivering at the Port of Discharge shall be determined in accordance with Articles 1-8 of the Hague Rules save as is otherwise provided in these Terms and Conditions. These articles of the Hague Rules shall apply as a matter of contract. … 11. SHIPPER-PACKED CONTAINERS If a Container has not been packed by the Carrier: … 11.2 The Carrier shall not be liable for loss of or damage to the contents and the Merchant shall indemnify the Carrier against any injury, loss, damage, liability or expense whatsoever incurred by the Carrier if such loss or damage to the contents and/or such injury, loss, damage, liability or expense has been caused by any matter beyond his control including, inter alia, without prejudice to the generality of this exclusion: (a) the manner in which the Container has been packed; or (b) the unsuitability of the Goods for carriage in Containers … 13. INSPECTION OF GOODS The Carrier shall be entitled, but under no obligation, to open and/or scan any package or Container at any time and to inspect the contents. If it appears at any time that the Goods cannot safely or properly be carried or carried further, either at all or without incurring any additional expense or taking any measures in relation to the Container or the Goods, the Carrier may without notice to the Merchant (but as his agent only) take any measures and/or incur any reasonable additional expense to carry or to continue the Carriage thereof, and/or to sell or dispose of the Goods and/or to abandon the Carriage and/or to store them ashore or afloat, under cover or in the open, at any place, whichever the Carrier in his absolute discretion considers most appropriate, which sale, disposal, abandonment or storage shall be deemed to constitute due delivery under this bill of lading. The Merchant shall indemnify the Carrier against any reasonable additional expense so incurred. … 14. DESCRIPTION OF GOODS … 14.3 … The Shipper also warrants that … the Goods will not cause loss, damage, or expense to the Carrier, or to any other cargo … 15. MERCHANT’S RESPONSIBILITY … 15.2 The Merchant shall be liable for and shall indemnify the Carrier against all loss, damage, delay, fines, attorney fees and/or expenses arising from any breach of any of the warranties in clause 14.3 or elsewhere in this bill of lading and from any other cause whatsoever in connection with the Goods for which the Carrier is not responsible. … 21. DANGEROUS GOODS 21.1 No Goods which are or which may become of a dangerous, noxious, hazardous, flammable, or damaging nature (including radioactive material) or which are or may become liable to damage any Persons or property whatsoever, and whether or not so listed in any official or unofficial, international or national code, convention, listing or table shall be tendered to the Carrier for Carriage without previously giving written notice of their nature, character, name, label and classification (if applicable) to the Carrier and obtaining his consent in writing and without distinctly marking the Goods and the Container or other covering on the outside so as to indicate the nature and character of any such Goods and so as to comply with any applicable laws, regulations or requirements. If any such Goods are delivered to the Carrier without obtaining his consent and/or such marking, or if in the opinion of the Carrier the Goods are or are liable to become of a dangerous, noxious, hazardous, flammable or damaging nature, they may at any time or place be unloaded, destroyed, disposed of, abandoned or rendered harmless without compensation to the Merchant and without prejudice to the Carrier’s right to Freight. 21.2 The Merchant warrants that such Goods are packed in a manner adequate to withstand the risks of Carriage having regard to their nature and in compliance with all laws, regulations or requirements which may be applicable to the Carriage. 21.3 The Merchant shall indemnify the Carrier against all claims, liabilities, loss, damage, delay, costs, fines and/or expenses arising in consequence of the Carriage of such Goods, and/or arising from breach of any of the warranties in clause 21.2 including any steps taken by the Carrier pursuant to clause 21.1 whether or not the Merchant was aware of the nature of such Goods. … 26. LAW AND JURISDICTION For shipments to or from the U.S. any dispute relating to this bill of lading shall be governed by U.S. Law and the United States Federal Court of Southern District of New York is to have exclusive jurisdiction to hear all disputes in respect thereof. In all other cases, this bill of lading shall be governed by and construed in accordance with English law and all disputes arising hereunder shall be determined by the English High Court of Justice in London to the exclusion of the jurisdiction of the courts of another country. …”

If a Container has not been packed by the Carrier: …

The Explosion and Fire on board the Vessel

[21]Between 19th and 27th June 2015, containers MSKU7134795 and MSKU2820576 were stuffed, each with 576 fibreboard boxes, and container MSKU4266606 was stuffed with 311 plastic drums. They were transported by road from Sree’s factory to Jawaharlal Nehru Port, a journey of about 800 km.

[22]According to reports prepared in June 2015 by Global Marine Survey Agencies, the fibreboard boxes and plastic drums were stowed in the containers using the multiple tier method, which included the insertion of strong plywood between each tier. The manner of stowage is an issue in this trial.

[23]On 7th-8th July 2015, these containers arrived at Jawaharlal Nehru Port. On 11th July 2015, they were first shipped on board a feeder vessel Talassa and, on 14th July 2015, they were discharged at Jebel Ali.

[24]On 18th July 2015, these three containers were shipped on board the Vessel. They were loaded above deck on the starboard side of the forward part of the Vessel, on the hatch covers above cargo hold no. 1. On 19th July 2015, at about 0442 hours, the Vessel departed from Jebel Ali, following a route north towards the Straits of Hormuz, headed towards Jeddah.

[25]On 19th July 2015, at about 1333 hours, there was an explosion and fire on board the Vessel (“the Incident”). At the time of the Incident, the Second Officer, Mr Romulus Focsaneanu, was the Officer of the Watch. In his statement taken on 28th July 2015 and signed on 12th April 2016, at para. 30-49, the Second Officer explained how he saw the Incident unfold:

“30. At about 13:33 I was adjusting the auto-pilot in order to maintain our track, I looked up from the console to monitor the movements of the vessel. As I looked up I saw a huge volume of dense white smoke corning [sic] from the forward starboard stack of containers. It was rising very fast and accelerating away from the vessel. The cloud of smoke was so high that I could not see the top of it from my position next to the auto-pilot on the bridge. 31. The cloud started to come down the deck towards the port side of the vessel and back towards the accommodation. 32. At first I was very shocked. When I realised what was happening I called the Captain and said “we have fire onboard” … 35. The Master then arrived on the bridge, as he came through the door the cargo hold smoke detection system sounded in No.1 and No.2 cargo hold. This was showing a detection at the forward and aft end of each hold. The Bosun's store smoke detector also activated the alarm panel for the accommodation fire detection system. 36. The Master went straight to the alarm panel, he then pushed the general alarm signal which sounded throughout the vessel. The Master made an announcement to the crew stating that this was not a drill and that there was a fire onboard. He instructed all crew to proceed to the muster station. 37. Whilst the master was making this announcement he adjusted the bridge controls in order to turn the vessel to port and reduced speed. The Master was adjusting the angle of the wind across the deck in order to blow the cloud of smoke away from the accommodation. 38. After manoeuvring and making an announcement to the crew, the Master picked up the radio and made a Mayday broadcast on channel 16. He said Mayday three times, that we have a fire onboard and he requested assistance. After this radio call I was asked to follow up with a very high frequency (“VHF”), digital selective calling (“DSC”) alert … 41. After mustering, the crew went forward to start fighting the fire. The Master instructed me to go down to the ship’s office and collect a copy of the International Maritime Dangerous Goods (“IMDG”) Code. We already suspected that the incident had been caused by calcium hypochlorite. We knew that this had been stowed in the forward part of the vessel on the starboard side and we were all aware of the particular hazards of carrying this cargo … 47. I went forward along the port side of the upper deck. As I went forward I could smell a plastic burning smell and chemicals. At the time I could see smoke rising from the stack of containers and out to the starboard side of the vessel. I could see flames within the containers on the outboard side and also flames on the lagging of a tank container stowed in bay 10. 48. I moved towards bay 6 on the port side, I took one hose and started cooling from there. As I was cooling I moved towards the starboard side. I remained in this location tending the hose for about an hour. 49. Whilst I was tending the hose I could see that there were a lot of white tablets and debris on the deck. There was also a grey sludge all over the upper deck. I noticed that the doors to one of the containers had been blown open during the initial explosion.”

[26]As with the Second Officer, several crew members, including the Third Officer, the Bosun, a Deck Fitter, a Seaman, and a Deck Cadet detected a chlorine smell and observed that the doors to container MSKU2820576 were found open, with flames emanating from the container, that the whole area was covered in smoke, and that the surrounding area was covered in white powder and sludge.

[27]As explained by the Second Officer and by the Master - Captain Vedran Pavic - in his witness statement taken on 31st July 2015 and signed on 3rd March 2016, the Master sounded the general alarm and instructed all crew to proceed to the muster station. After mustering, the first fire-fighting team went forward with the Chief Officer at about 1342 hours. They confirmed that the smoke was emanating from the area where the calcium hypochlorite containers had been stowed (Master’s statement, para. 60). The Master instructed the Second Officer to go down to the ship’s office and collect a copy of the IMDG Code; the fire-fighting instructions for calcium hypochlorite stated that “copious water” should be used (Master’s statement, para. 63).

[28]According to the Master’s statement, at para. 60-78, the crew combated the fire using a combination of fixed fire-fighting systems and portable fire-fighting apparatus; after having the vents to holds no. 1 and 2 closed, the Master instructed the Chief Officer to release CO 2; at about 1435 hours, the Chief Officer confirmed that the fire remained suppressed and fully under control, there being no flames visible; the Chief Officer noted that the boundary cooling had now been established on all sides of the fire; at about 1630 hours, the Royal Omani Navy offered assistance in the form of additional man power, which offer was accepted; at about 1700 hours, the Master ordered a further use of CO 2; at about 1709 hours, eight persons from the Royal Omani Navy embarked to assist the crew with manning the boundary cooling hoses, and they disembarked about 2025 hours.

[29]The Head Owners declared General Average. By a Lloyd’s Open Form salvage agreement dated 19th July 2015 with the Head Owners, salvage services were provided by Al Mubarak Overseas LLC (“the Salvors”). At about 1120 hours on 20th July 2015, the Salvors’ vessel Mubarak Challenger arrived alongside to assist with fire-fighting operations.

[30]At about 1645 hours on 23rd July 2015, the fire was extinguished. Salvage operations continued to ensure the Vessel was in a safe condition to continue.

[31]On 29th July 2015, at 2357 hours, the Vessel sailed to Jebel Ali anchorage under its own power, arriving there the following morning.

[32]On 30th July 2015, at 1030 hours, the Salvors disembarked the Vessel. Following the completion of salvage operations, arrangements were made for the Vessel to proceed alongside in Jebel Ali to discharge the damaged containers and to set about making preparations for further repairs.

The Fire Ashore

[33]Between 4th and 11th July 2015, the other containers were stuffed at Sree’s factory, container MRKU9908482 with 311 plastic drums and container MSKU4287300 with 576 fibreboard boxes. On 15th-16th July 2015, the containers arrived at Jawaharlal Nehru Port by road and, between 19th and 21st July 2015, were shipped on board the vessel Maersk Indus.

[34]On 22nd July 2015, after the Incident (i.e. the explosion and fire on board the Vessel), Maersk arranged for the containers to be discharged at Jebel Ali on 22nd July 2015 and for the calcium hypochlorite to be cross-stuffed into reefer containers as a precautionary measure. The calcium hypochlorite galets in container MSKU4287300 were cross-stuffed into reefer container MWCU694271514.

[35]On 23rd July 2015, at the end of the cross-stuffing exercise but before the container doors were closed, there was a violent decomposition of the galets and the resulting fire destroyed all the combustible parts of container MSKU4287300 and all the cargo which had been stuffed inside it. During the cross-stuffing of the calcium hypochlorite granules from container MRKU9908482, heat damage was noted on the inside of the container.

The Maltese Agreement

[36]Following the Incident, Maersk was concerned that other containers of calcium hypochlorite shipped or stuffed by Sree were not safe and discharged 28 such containers at Malta. On 26th November 2015, Maersk and Sree entered into an agreement for the on-carriage of these containers to Algeria, pursuant to which Sree agreed to pay Maersk US$90,000 in respect of the expenses Maersk incurred storing the containers, making safety arrangements for on carriage, and dealing with claims from the receivers of those containers.

The Losses claimed by Maersk

[37]Maersk contends that it has suffered loss and damage in four categories:(1) Payments to Head Owners.

(2) Payments to Salvors.

(3) Cargo Claim settlements.

(4) Other miscellaneous losses.

Payments to the Head Owners

[38]The Head Owners indicated that they intended to bring claims under the Head Charter for:(1) An indemnity in respect of (i) claims brought by Salvors (which claims were the subject of a salvage arbitration (“theSalvage Arbitration”)) and (ii) claims brought by the cargo interests in respect of other containers being carried (“the Cargo Claims”).

(2) Damages in respect of the cost of repairing damage to the Vessel, loss of use and/or off hire, costs incurred and other losses.

[39]On or about 31st March 2017, MSM, MLUK, and Maersk as charterers and the Head Owners entered into two agreements:(1) A Co-operation Agreement by which the parties would co-operate in relation to the Salvage Arbitration and the future conduct of the Cargo Claims. Under this Agreement, by clauses 3, 4, 5, 7, 8, 13 and 15, Maersk agreed to indemnify the Head Owners in respect of the latter’s liability to the Salvors, the costs of the Salvage Arbitration and other costs, to be liable for the Cargo Claims, to pay for the costs of the Cargo Claims, and to pay for the costs of compliance with this Agreement.

(2) A Settlement Agreement which (among other things) set out a procedure under which the Head Owners’ claims would be resolved and provided that (a) MSM, MLUK, and Maersk would make a down payment in respect of the Head Owners’ claims, and (b) MSM, MLUK, and Maersk would reimburse the Head Owners for any fees and costs paid to or incurred by, and be liable for the future fees of Rudek & Cie GmbH (“the Adjusters”) and Richards Hogg Lindley (“RHL”) (appointed by the Head Owners and the Salvors).

(3) Pursuant to these agreements, on 12th April 2017, Maersk paid US$1,500,000 plus £240,000 on account.

[40]MSM, MLUK, and Maersk and the Head Owners concluded a further Settlement Agreement on 20th December 2019, by which a total sum for the settlement of the Head Owners’ claims was agreed. On 28th January 2020, Maersk paid US$ 2,328,831.27 (whose receipt was confirmed by the Head Owners’ email of the same date). A further Settlement Agreement was concluded on 10th August 2020, by which the parties agreed a sum in settlement of the Head Owners’ costs arising out of the Incident. On 12th August 2020, Maersk paid £31,221.26 to the Head Owners.

Payments to the Salvors

[41]By a First Partial Final Award dated 24th April 2017 in the Salvage Arbitration, Mr Jeremy Russell QC (as sole arbitrator) awarded the Salvors the sum of US$3,232,550, plus interest. Of this sum, the Salvors were awarded US$2,989,548.37 (inclusive of interest) for the salvage services rendered to the Head Owners, and US$50,853.12 (inclusive of interest) for the salvage services rendered to the bunker owners (i.e. Maersk).

[42]On 22nd November 2017, the Salvors, Head Owners, and Maersk concluded a Costs Settlement Agreement whereby the Head Owners and Maersk agreed to pay £269,000 in settlement of their liability for their share of the costs arising from the First Partial Final Award.

[43]By a Second Partial Final Award dated 18th September 2017, the Tribunal awarded the Salvors the further sum of US$1,691,040.00 plus interest against the unrepresented salved cargo.

[44]On 25th January 2018, the Salvors, the Head Owners, and Maersk concluded a further Costs Settlement Agreement pursuant to which the Head Owners and Maersk agreed to pay £18,433 in settlement of their liability for their share of the costs arising from the Second Partial Final Award.

[45]Mr Evans’s ninth statement, at para. 6-8, attests to these payments.

Cargo Claims Settlements

[46]Maersk was the contractual carrier for all the cargo on board the Vessel under bills of lading or sea waybills which incorporated the Safmarine Terms (Mr Evans’s eighth statement, para. 12).

[47]The Cargo Claims comprised(a) claims for the loss of or damage to cargo as a result of the Incident (“Particular Average Claims”), and

(b) claims to be indemnified for the sums which the cargo interests had been obliged to pay to the Salvors (“Salvage Indemnity Claims”).

[48]Maersk settled the Particular Average Claims and the Salvage Indemnity Claims.

Other Losses

[49]Maersk suffered the following additional loss and damage:(1) Nine of Maersk’s container shells were destroyed or damaged beyond economic repair, amounting to a loss of US$15,309.

(2) Fees paid to the Adjusters: EUR 122,524.48 and £22,063.10 (paid on or around 9th January 2020).

(3) Fees paid to RHL in relation to the General Average and salvage security: US$95,294.22.

(4) Legal costs and disbursements in relation to the Incident, including the costs of responding to the Cargo Claims, the costs of responding to the casualty, the costs of the Salvage Arbitration, and settlement discussions with Head Owners (but excluding the costs of the present proceedings): £1,351,752.76. These costs and disbursements were attested to by Mr Evans’s tenth witness statement dated 16th March 2026.

(5) Other legal costs, experts’ fees and surveyors’ fees incurred in respect of the Incident in the sum of US$358,061.91.

Total losses claimed

[50]Maersk claims a total of US$10,101,073.64, £1,877,803.42, and EUR136,108.68.

[51]Maersk seeks judgment in US dollars, being the currency in which most of Maersk’s losses were originally suffered and being the currency of account and payment under the Contracts of Carriage (The Folias

[1979] AC 685

, 700). Maersk relies on currency conversion as at the date of the Incident (Carver on Charterparties, (3rd ed.), para. 11-032, 11-500).

[52]Thus, Maersk claims a total of US$13,178,280.51 by way of damages and/or indemnity.

Commencement and Service of the Proceedings in England

[53]On 16th June 2021, Maersk issued the current proceedings and emailed the Claim Form to Sree on 1st March 2022. However, there were extensive delays in serving the Claim Form through diplomatic channels under the Hague Service Convention. On 12th January 2024, the Claim Form was finally served through diplomatic channels (there having been orders made by the Court extending the time for service).

The Indian Proceedings and the Anti-Suit Injunctions

[54]As mentioned above, Sree has brought a series of actions in India in respect of the dispute (“theIndian Proceedings”), with the intention of preventing Maersk from pursuing its claim in this jurisdiction.

[55]On 2nd August 2023, Sree’s Indian lawyer, Mr Srinivasan, notified Maersk and its then solicitors that(i) in March 2023, Sree had brought a civil suit (No. 373 of 2023) (“theFirst Kurnool Proceedings”) against Maersk before the Kurnool Court in India by which Sree sought a permanent injunction restraining Maersk “from taking any action, steps or initiating any proceedings, or pursuing any further actions before the English High Court of Justice”; and

(ii) the Kurnool Court had already granted an interim anti-suit injunction (“theKurnool ASI”).

[56]On 3rd November 2023, the Andhra Pradesh High Court (“theAPHC”) suspended the Kurnool ASI on Maersk’s application for an initial 4-week period (subsequently extended by consent) (“theAPHC Order”).

[57]On 7th November 2023, Maersk issued an urgent, without notice application before the Court in England for an interim anti-suit injunction restraining Sree from pursuing the First Kurnool Proceedings (“Maersk’s ASI Application”). On 9th November 2023, Butcher J granted an anti-suit injunction. The return date for this injunction took place on 16th and 19th February 2024, for which Sree instructed London solicitors, BDM Law LLP (“BDM”), and served evidence in response to Maersk’s application. At the hearing, Sree was represented by counsel.

[58]On 19th February 2024, Henshaw J granted a further interim anti-suit injunction (“the19 February 2024 ASI”), which (among other things) restrained Sree from commencing or pursuing any claim arising under or in respect of any of the relevant contracts of carriage other than before the English High Court and expressly restrained Sree from appealing from the APHC Order, and ordered Sree to pay Maersk’s costs of the application summarily assessed on the indemnity basis in the sum of £170,000. This sum has not been paid.

[59]Sree initially complied with the 19 February 2024 ASI and withdrew the First Kurnool Proceedings by an application dated 19th March 2024. The Kurnool Court dismissed the suit as withdrawn by an order dated 20th March 2024.

[60]However, Sree subsequently changed its position and has since taken the following actions in India:(1) On or about 18th June 2024, in answer to the English Court granting permission to Maersk on 30th April 2024 to serve the Claim Form by alternative means, Sree applied to the Kurnool Court for (i) a declaration that the service of the Claim Form by alternative methods is invalid; and (ii) a prohibitory injunction restraining Maersk from serving the Claim Form via alternative methods in Civil Suit OS 42/2024 (“theSecond Kurnool Proceedings”).

(2) On 21st June 2024, the Kurnool Court granted an interim injunction. Maersk applied to have Sree’s suit dismissed on the basis that it is infructuous (the Claim Form having been served under the Hague Service Convention on 12th January 2024). The Kurnool Court dismissed Maersk’s application on 3rd March 2025. Sree’s application for a declaration has yet to be determined.

(3) On or about 17th February 2025, Sree commenced Civil Suit OS 181/2025 before the Kurnool Court seeking a permanent mandatory injunction requiring Maersk to litigate its claims in these proceedings before the Kurnool Court (“theThird Kurnool Proceedings”), alleging that the English Court was biased against it when determining Maersk’s ASI Application and that Sree “has every reason to believe that it will not receive a fair treatment before the English High Court as in the past the English High Court has made observations to that effect”. On 18th June 2025, Maersk applied to stay the Third Kurnool Proceedings on account of the pendency of the Second Kurnool Proceedings, and on 11th August 2025 filed a response to Sree’s suit. Maersk’s application for a stay, and the suit itself, have not yet been determined.

(4) On or about 22nd April 2025, Sree applied to the APHC to set aside the order dated 3rd November 2023 and asked the APHC to (i) “restrain [Maersk] from initiating any proceedings against [Sree] before the English High Court, including but not limited to contempt proceedings” and (ii) allow Sree to reinstate the First Kurnool Proceedings (“Sree’s APHC Proceedings”). On 20th June 2025, Sree’s appeal was dismissed.

(5) On or about 30th June 2025, Sree applied to the Kurnool Court for an order restoring the First Kurnool Proceedings (i.e. the suit that had been withdrawn on Sree’s application on 20th March 2024). In support of the application, Sree alleged that Maersk “chose to arm-twist [Sree]into appearing before the English High Court” and that it was “only under [Maersk’s] repeated threat of contempt proceedings thereafter that [Sree] became constrained to withdraw [the First Kurnool Proceedings]”, and that this constituted “classic duress and coercion”. Maersk opposed the application, but on 18th March 2026 the Kurnool Court granted an order restoring the First Kurnool Proceedings.

[61]Maersk contends that the pursuit of the Indian Proceedings by Sree constitutes a breach of the exclusive jurisdiction agreement incorporated into the Contracts of Carriage.

The issues to be determined

[62]The List of Issues identified the following issues for determination by the Court:(1) Whether Maersk (as carrier) and Sree (as shipper) concluded the Contracts of Carriage and, if so, the terms of the Contracts of Carriage.

(2) Whether the containers shipped pursuant to the Contracts of Carriage were packed by Sree or its agents.

(3) Whether the Incident on 19th July 2015 was caused by the violent decomposition of the calcium hypochlorite packed in containers MSKU7134795 and/or MSKU2820576.

(4) Whether the violent decomposition of the calcium hypochlorite galets in containers MSKU7134795, MSKU2820576 and/or MSKU4287300 was caused by the way in which the galets had been packaged and stuffed inside each of those containers. In this regard: (a) Whether the fibreboard boxes were stuffed into the containers in accordance with the IMDG Code. (b) Whether the galets were packaged and stuffed in a manner adequate to withstand the risks of carriage. (c) Whether the cargo was stowed in such a way that it effectively formed a block stow within each of the containers, which restricted the possibility of air circulation and heat dissipation other than around the edges of the entire stow.

(5) The nature and extent of the damage caused to the Vessel and other cargo on board caused by the fire and water used in the fire-fighting operation.

(6) Whether Sree failed to pack containers MSKU7134795, MSKU2820576 and MSKU4287300 (i) in a manner adequate to withstand the risks of carriage having regard to the nature of the Cargo, or (ii) in compliance with all applicable laws, regulations and requirements (including those of the IMDG Code), in breach of clause 21.2 of the Safmarine Terms.

(7) Whether the cargo in containers MSKU7134795, MSKU2820576 and/or MSKU4287300 caused loss, damage, and expense to Maersk and/or loss and damage to other cargo on board the Vessel, in breach of clause 14.3 of the Safmarine Terms.

(8) Whether Sree failed in breach of its duty at common law to take reasonable care when packing and shipping the Cargo in containers MSKU7134795, MSKU2820576 and MSKU4287300 to ensure the cargo was fit for transportation by sea and to avoid causing damage to property which belonged to or for which Maersk was responsible, including the Vessel, the containers themselves, and other cargo on board the Vessel.

(9) Whether Maersk is entitled to recover damages in respect of the loss and damage it allegedly incurred as a result of Sree’s breaches of contract or duty, comprising (a) payments to the Head Owners, (b) payments to the Salvors, (c) payments made to settle the Cargo Claims, and (d) other heads of loss.

(10) Whether Maersk is entitled to an indemnity in respect of all such loss and damage pursuant to clauses 11.2, 13, 15.2, and/or 21.3 of the Safmarine Terms and/or Article IV Rule 6 of the Hague Rules.

(11) Whether the Court should grant a declaration to the effect that it is entitled to an indemnity (or damages amounting to an indemnity) in respect of any loss, damage, liability and/or expense that it incurs by reason of any of the Cargo Claims (other than those which have been settled).

(12) Whether Sree’s commencement and pursuit of the First Indian Proceedings, the Second Indian Proceedings, and the Third Indian Proceedings constituted breaches of clause 26 of the Safmarine Terms.

(13) Whether Maersk is entitled to damages in respect of Sree’s breaches of clause 26 of the Safmarine Terms.

(14) Whether the Court should grant a declaration that Maersk is entitled to be indemnified in relation to any loss and damage sustained as a result of those breaches (including any costs and expenses incurred in relation to the Second Indian Proceedings and the Third Indian Proceedings).

(15) Whether the Court should grant a final injunction prohibiting Sree from commencing or pursuing or assisting in the commencement or pursuit of any claim or claims arising under or in respect of any of the Contracts of Carriage other than before the English High Court.

[63]I shall address each of these issues.

Issue 1: Contracts of Carriage

[64]I have set out above the documentary and witness evidence identifying the existence of the Contracts of Carriage.

[65]Maersk’s case is that the Safmarine Terms were incorporated by notice to Sree or by reason of the parties’ previous course of dealing or common understanding. Sree disputed the incorporation of the Safmarine Terms in correspondence (Sree’s email dated 18th August 2021 and letter dated 15th March 2022).

[66]Clause 26 of the Safmarine Terms, as quoted above, provides that “this bill of lading shall be governed by and construed in accordance with English law”. Mr Bird submitted, and I accept, that where, as in the present case, the incorporation of a law and jurisdiction provision is challenged, the law that governs whether the provision is incorporated is the law that would govern the contract were the provision validly incorporated (The Joker

[2019] EWHC 3541 (Comm)

;

[2021] 1 Lloyd’s Rep 169

, para. 12-18, applying Rome I Regulation (EU), art. 10, bearing in mind that the dates on which the Contracts of Carriage were concluded were prior to 31st December 2020). Accordingly, in determining whether the Safmarine Terms are incorporated, English law must be applied.

[67]In my judgment, as submitted by Mr Bird, the Contracts of Carriage incorporated the Safmarine Terms, at least by way of sufficient notice. Sree had sufficient notice that the goods would be shipped on the Safmarine Terms:(1) The standard process for the conclusion of a contract of carriage involved the issue of a booking confirmation and a draft bill of lading, followed by a signed bill of lading.

(2) Booking confirmations are system-generated and are in a standard form, which includes a “Legal Notice” stating:

“All bookings are always subject to space on board the (above referred) vessel and to the terms and conditions of Safmarine Bill of Lading (or Sea Waybill, whenever the Merchant requests for a Sea Waybill), which can be obtained from your local Safmarine agent or on www.safmarine.com” (Mr Evans’s third witness statement, para. 33.4). (3) Although Maersk has located the booking confirmation issued in respect of the cargo shipped in container MRKU9908482 (sent to Maersk by Sree under cover of a letter dated 5th April 2022) and which contained the standard “Legal Notice”, Maersk’s internal records show that booking confirmations were sent for each cargo (Mr Evans’s third witness statement, para. 33.2). (4) The draft and signed bills of lading were also issued in a standard form. The first page provides that the carriage of the cargo was “always subject to the terms, rights, defences, provisions, conditions, exceptions, limitations, and liberties hereof (INCLUDING ALL THOSE TERMS AND CONDITIONS ON THE RESERVE HEREOF NUMBERED 1-26…)”

. The Safmarine Terms were set out overleaf.

[68]As regards the previous course of dealing, prior to these shipments, the parties had a longstanding commercial relationship (Mr Evans’s third witness statement, para. 8; Mr Sreenivasulu’s second witness statement dated 15th December 2023, para. 6: “[Sree]has been exporting calcium hypochlorite … for more than two decades, including through the Claimant …”). The evidence suggests that the Safmarine Terms have been in materially the same form as regards law and jurisdiction since 2013 and that a Manager at Maersk, Mr Neeraj Purohit stated that “Maersk always contracted with Sree on the Terms” (Mr Evans’s third witness statement, para. 32, 37) (The TS Havprins

[1983] 2 Lloyd’s Rep 356

, 363). I have not seen earlier documentary evidence of Maersk’s and Sree’s prior course of dealing; it is therefore less clear to me whether the other Safmarine Terms were incorporated on this basis (Chitty on Contracts, 36th ed., 2025, para. 16-015). Nevertheless, I am satisfied that the Safmarine Terms were incorporated into the Contracts of Carriage by way of notice.

[69]In addition, Sree itself appears to have accepted, in the Indian Proceedings, that the Contracts of Carriage are subject to the Safmarine Terms. Sree’s plaint in the First Kurnool Proceedings expressly refers to the booking confirmations and bills of lading as follows:

“… The Plaintiff [Sree] further states that, the aforesaid cargo was shipped on board different vessels namely MV TALASSA, MV Maersk Indus, MV Maersk Seoul which are owned/beneficially owned by the Defendant [Maersk] and with full consent of the Defendant/shipping line and further, assurance was given by the Defendant/shipping line that the vessel was seaworthy and well equipped for sea- carriage of the said cargo of Calcium Hypochlorite … The Plaintiff states that, accordingly, the Defendant issued a booking confirmation upon confirming and acknowledging that the Plaintiff's cargo contained Calcium Hypochlorite and only thereafter the Bills of Lading were issued by Safmarine which is an arm of the Defendant and integrated with them …”

[70]The plaint goes on to state that:

“The Bill of Lading issued by the Shipping Line Safemarine [sic] is a Standard Form Contract providing the English Court jurisdiction which is oppressive in nature and obtained through a position of coercion, duress …”

. I have seen no evidence that Sree’s agreement was obtained through coercion or duress.

[71]In the English proceedings, in response to Maersk’s application for an anti-suit injunction, Sree disputed the incorporation of the Safmarine Terms, essentially on the basis that Maersk had failed to prove its case in not adducing a complete set of booking confirmations and issued bills of lading. As Mr Bird observed, in his second witness statement, at para. 9-14, Mr Sreenivasulu did not deny that Sree received the booking confirmations in respect of each shipment, even though this must have been within Sree’s knowledge and Mr Sreenivasulu himself claimed to have “witnessed the entire transaction” (Mr Sreenivasulu’s second statement, para. 24). I note further that in his judgment (

[2024] EWHC 3668 (Comm)

, at para. 41, 42, 46), Henshaw J rejected Sree’s argument and held that he was satisfied on the material adduced that there was a high degree of probability that there was a binding and applicable exclusive jurisdiction agreement.

[72]Therefore, I accept that the Contracts of Carriage incorporated the Safmarine Terms.

Issue 2: Stuffing of Containers

[73]This issue is concerned with the factual question whether the containers were stuffed by or on behalf of Sree. If they were, then clause 11 of the Safmarine Terms are applicable, being “Shipper-Packed Containers”.

[74]There is little doubt that Sree stuffed the calcium hypochlorite into the containers, having regard to the following circumstances:(1) The stuffing reports prepared by Global Marine Survey Agencies in June 2015 for the containers loaded on board the Vessel (MSKU4266606, MSKU7134795 and MSKU2820576) certify that the containers were stuffed at Sree’s premises in Kurnool.

(2) The draft and issued bills of lading recorded that: “SHIPPER’S LOAD, STOW, WEIGHT, AND COUNT”.

[75]In a letter dated 5th April 2022 addressed to Maersk’s then solicitors, Stephenson Harwood LLP, Sree stated that “[Sree] had loaded/ stuffed the containers as prescribed under the IMDG guidelines and there is evidence to prove the same. In the allegation that [Sree] failed to load/stuff the containers as required under law lacks evidence …”. Thus, Sree confirmed that it undertook the stuffing of the containers.

Issue 3: The cause of the Incident

[76]Maersk’s case is that the explosion and fire on board the Vessel on 19th July 2015 were caused by the violent decomposition of the cargo inside one or both of the containers MSKU7134795 and MSKU2820576, which were stuffed with calcium hypochlorite galets (large tablets), individually foil-wrapped and packed in fibreboard boxes (corrugated cardboard cartons). Sree disputed the volatile nature of the cargo (Sree’s letter dated 15th March 2022).

[77]Maersk’s expert, Mr Mark Phillips, addressed this issue at para. 81-97 of his expert’s report, concluding that:

“81 … I consider that the Incident and the fire ashore both resulted from the run-away decomposition of calcium hypochlorite. I also consider that the fire ashore involved the galets in cartons. Whilst some uncertainty must remain, given all the information available, I consider it highly likely that the fire on the Maersk Seoul also initially involved the galets in the same type of packaging. 82 The way the cartons formed a block stow without any real prospect of heat dissipation except at the edges of the whole stow suggests this type of packaging created the conditions that led to run-away decompositions in the time periods involved. This is my view having regard to (a) the fact that the precise arrangement of the galets in the cartons is not known, (b) the fact that the cargo that caught fire ashore had been taken out of a container, placed on the ground (albeit under a plastic tarpaulin sun-shelter) and then re-stuffed and (c) there is some uncertainty about the material's chemical and physical properties since no material from the galets remained to be analysed … 89. Given these points, the prevailing entry for calcium hypochlorite as UN 3487 dangerous goods addressed a key point when it specified that ‘Packages in cargo transport units shall allow for adequate air circulation throughout the cargo.’ There was not any space between the cartons in the photographs I have seen and, in my view, there was not adequate air circulation given the overall dimensions of the block of cartons in a container. 90 The risk of the packaged material suffering a catastrophic run-away reaction of the type that actually occurred would have been greatly reduced if the requirement of the IMDG Code had been respected when the cartons of galets were loaded into containers, in my view. 91 I consider that Sree’s failure to respect that requirement was a significant causal factor in the Incident and the fire ashore, and, in my view, it can fairly be regarded as a cause of the Incident and the fire ashore. In addition, in my view, it is more likely than not that the Incident would have been avoided if the galets had been packaged and stowed so that air could circulate more freely between the material, as specified in the IMDG code … 97. Having regard to the points discussed above, in my view, the explosion and fire on board the Maersk Seoul on 19 July 2025 [sic] was caused by the violent decomposition of the calcium hypochlorite packed in containers MSKU7134795 and/or MSKU2820576 …”

[78]Mr Phillips’ conclusions were supported by the following considerations:(1) The patterns of damage, the witnesses’ observations of what they saw, and the initial chlorine and bleach smells all support the conclusion that the Incident and the fire ashore resulted from the run-away decomposition of calcium hypochlorite (para. 81).

(2) The fire ashore involved the galets in cartons and it is “highly likely” that the fire on the Vessel also initially involved the galets in the same type of packaging (para. 81).

(3) The way the cartons formed a block stow without any real prospect of heat dissipation except at the edges of the whole stow suggests that this type of packaging created the conditions that led to run-away decompositions in the time periods involved (para. 82).

[79]Sree has asserted in correspondence in March, April and October 2022 that calcium hypochlorite cannot burn by itself and that the Incident may have been caused by another container. However:(1) Mr Phillips explained how calcium hypochlorite can violently decompose, which frequently leads to the ignition of packaging and other conventionally combustible materials at para. 16-22 and 94 of his report and that this is a well-documented phenomenon, referring at para. 31 to Bowes, Self-Heating: Evaluating and Controlling the Hazards (1984), which stated at para. 10.6 that “An example of self-heating and ignition in an inorganic substance to which the thermal explosion model has been applied is provided by ‘high-strength’ calcium hypochlorite … It has been responsible for a number of serious fires and explosion while in transit on board ship”. The calcium hypochlorite shipped by Sree was high strength with a minimum chlorine content of 70%.

(2) Mr Phillips considered the suggestion that the Incident may have been caused by another container and, at para. 95, rejected it in his report on the grounds that: (a) the surrounding containers had relatively benign contents (such as empty beer kegs or cars); (b) the containers with the galets were not adjacent to any reefer containers and, in any event, the nearest reefer containers were not connected to a power supply and were not operating (they were empty).

[80]Mr Phillips’ conclusion that the calcium hypochlorite galets caused the Incident is also consistent with the evidence of the fire experts in the Salvage Arbitration, including the report of Dr John Bland (instructed by the Salvors) at para. 5.1 (“The fire probably started due to the spontaneous decomposition of calcium hypochlorite which led to the development of a fire on the aft, starboard side, hatch cover of hold no. 1”); the report of Dr Russell Cooper (instructed by Head Owners) at para. 7.1 (“It is my firm opinion that the explosion and fire on the MAERSK SEOUL originated with the violent, self-accelerating decomposition of the content of one of the containers stowed in positions 05 11 82, 07 11 82 and 07 11 84, all of which held calcium hypochlorite”); and the joint memorandum at para. 1.1.

[81]In these circumstances, I have little hesitation in finding that the explosion and fire on board the Vessel on 19th July 2015 were caused by the violent decomposition of the cargo inside containers MSKU7134795 and/or MSKU2820576.

[82]Similarly, Mr Phillips concluded that the fire ashore, as well as the Incident, resulted from the violent decomposition of calcium hypochlorite in container MSKU4287300.

Issue 4: Was the Incident caused by packaging and stuffing?

[83]In his expert’s report, Mr Phillips also addressed whether the violent decomposition of the calcium hypochlorite galets in containers MSKU7134795, MSKU2820576, and/or MSKU4287300 was caused by the way in which the galets had been packaged in fibreboard boxes and stuffed inside each of those containers.

[84]Mr Phillips’s view was that:(1) The fibreboard boxes were not stuffed into the containers in accordance with the IMDG Code. The applicable provisions required that packages in cargo transport units allow for “adequate air circulationthroughout the cargo” (para. 42 of Mr Phillips’s report). The galets/fibreboard boxes stuffed into containers MSKU7134795, MSKU2820576, and MSKU4287300 did not satisfy this requirement because there was “not any space between the cartons in the photographs I have seen and, in my view, there was not adequate air circulation given the overall dimensions of the block of cartons in a container” (para. 89, quoted above).

(2) The galets were stowed in such a way that they effectively formed a block stow within each of the containers, which restricted the possibility of air circulation and heat dissipation other than around the edges of the entire stow (para. 102). Mr Phillips disagreed with Sree’s denial that there was a block stow owing to plywood sheets separating the cartons. He considered that the cartons did form a block stow because it was not possible for air to flow between and around the individual cartons. He also considered Sree’s reference to the ventilation holes in the containers, noting that this does not affect the point that the cartons formed a large block (para. 96).

(3) The galets were not packaged and stuffed in a manner adequate to withstand the risks of carriage. The way in which the galets were packaged and stuffed increased the risk of the cargo suffering a catastrophic, run-away decomposition of the kind that occurred. The packaging and stuffing were not appropriate for calcium hypochlorite that is to be transported (para. 100).

(4) The way in which the galets were packaged and stuffed was a “significant causal factor” in the Incident and can fairly be regarded as its cause. It is “more likely than not” that the Incident would have been avoided if the galets had been packaged and stowed so that air could circulate more freely between the material (para. 99).

[85]Mr Phillips also considered the influence, if any, of solar heating in causing the decomposition. His view was that the containers involved in the Incident were covered and generally surrounded by other containers while they were on the Vessel. Further, it seems likely that the containers involved in the Incident would have been shielded from above while they were being carried from Mumbai to Jebel Ali. It is not known to what extent the containers were exposed to solar heating on the road journey to Mumbai, nor how the containers were stored in Mumbai or Jebel Ali (para. 92-93). Although one cannot discount the containers being exposed to solar heating at some stage, there is no evidence that solar heating was the operative cause of the Incident.

[86]Mr Phillips also referred in his report to emails exchanged with Dr Paul Beeley, who was a chemist and a combustion specialist instructed by Maersk’s solicitors, but who has since passed away. In those emails dated August 2015, Dr Beeley stated that he had attended Sree’s premises, met three representatives of Sree (Mr Srenivas, General Manager International sales and logistics, Mr Venkat, Logistics Manager, and Mr Jagadish, Sales Manager) and had been informed that:(1) Sree’s plant, which has been in operation manufacturing calcium hypochlorite for 22-23 years, has never had a single instance of fire or explosion of the product prior to the Incident. In fact, Sree relied on this in defence of Maersk’s allegations (in letters dated 16th July 2021 and 5th April 2022). However, the standard packaging had then been plastic drums. The product that was filled into the fibreboard boxes was a special run of six container loads of tabletted product for an overseas customer which was labelled and branded specially for that customer. Three of these containers were involved in the explosions on the Vessel and at Jebel Ali.

(2) The true dangers associated with carrying the product in bulk do not appear to have been properly appreciated by Sree. It appears that this was due partly to the fact that the thermal stability testing carried out (by an outside laboratory) failed to provide an adequate indication of the temperature at which a single package might undergo thermal run-away.

(3) Based on what was said at a meeting, it was thought that Sree would accept that the three calcium hypochlorite containers aboard the Vessel underwent internal pressurisation during the course of the Incident and that materials were discharged onto the deck of the Vessel resulting in fire damage to other materials.

(4) There appears to have been a failure to carry out appropriate thermal stability testing, including the SADT package tests, or equivalent. The SADT (self-accelerating decomposition temperature) test is intended to determine the temperature at which a package of thermally sensitive material, as presented for carriage, will undergo uncontrolled thermal decomposition. However, this will not provide an indication of the temperature at which a container load of such packages is likely to undergo thermal run-away. In most, if not all, circumstances therefore the SADT test alone will not advise anyone involved in the carriage of the material as to whether a container load of the material is safe to accept for carriage on a particular route.

(5) Sree has chosen to include in its dangerous goods declaration the information that the SADT of the product was 150°C plus. This test was not carried out on the product as packed for shipping, but on a sample of only 15 mg of the substance. However, the test quoted was, quite clearly, not an SADT test as defined in the UN Manual on Tests and Criteria.

(6) No large scale thermal stability testing of the product was carried out and there was ignorance in relation to the hazards associated with large, close packed stowages of the product such as those presented for carriage aboard the Vessel.

[87]With this evidence in mind, in my judgment, Maersk is correct and justified in its case that the galets / fibreboard boxes were not stuffed into containers MSKU7134795, MSKU2820576, and MSKU4287300 in accordance with the IMDG Code.

Issue 5: Damage to the Vessel and cargo

[88]It is obvious, based on the evidence, that the Incident caused substantial damage to both the Vessel and other cargo being carried on board the Vessel. Some of the damage was caused by the fire and explosion; other damage was sustained in the extensive fire-fighting operation, which involved large amounts of water being used to extinguish the fire. Where damage is sustained by reason of efforts undertaken to mitigate a loss caused by a breach of duty, then any further loss in undertaking such mitigation will be treated as having been caused by the original breach of duty (cf. Canada Rice Mills Ltd v Union Marine & General Insurance Co Ltd

[1941] AC 55

, 70, 71).

[89]According to a Preliminary Survey Report prepared by London Offshore Consultants (instructed by the Vessel’s hull and machinery insurers) on 22nd July 2015, following a survey of the Vessel on 20th-22nd July 2015:(1) At the time of boarding the Vessel, fixed fire monitors organised by the crew were still drenching the area of the fire.

(2) Various containers were either burnt out and collapsed or were severely burnt and deformed.

(3) To the portside of the hypochlorite containers there were 6 empty reefer containers. Those nearest the starboard side were heavily affected by fire and heat along their length, whilst the exposed reefer compressors and heat exchangers were generally burnt out.

(4) All the other containers stowed on top of the no. 1 hatch covers had been variously affected by fire, heat, smoke, and fire-fighting water.

(5) All the containers stowed on top of the no. 2 hatch covers had been variously affected by fire, heat, smoke and fire fighting water.

(6) During the fire-fighting operations, sea water had entered cargo holds no. 1 and 2 between the hatch covers and coamings. There was some 14.2 metres of water in no. 1 hold, submerging all of the cargo in that hold. There was 2.7 metres of water in no. 2 hold, submerging all the containers in the lowermost two rows.

(7) The Vessel’s structure was badly affected by fire and heat overall. There was damage to electrical power cables, deck lights and trunking. The starboard side main deck plating was variously buckled and deformed due to heat and fire.

[90]I have been informed by Maersk that there was no need for the Court to make any determination about the extent of damage to the Vessel and cargo. I note that Mr Evans in his ninth statement, at para. 7, stated that the Head Owners’ repairs to the Vessel were substantiated by Maersk’s review of invoices submitted by the Head Owners.

Issues 6-8: Has Sree acted in breach of its duty?

[91]These issues are concerned with the question whether Sree has acted in breach of duty having regard to my finding that:(1) Sree undertook the stuffing of containers MSKU7134795 and MSKU2820576.

(2) The galets / fibreboard boxes were not stuffed into containers MSKU7134795, MSKU2820576, and MSKU4287300 in accordance with the IMDG Code.

(3) The explosion and fire on board the Vessel on 19th July 2015 was caused by the violent decomposition of the cargo inside containers MSKU7134795 and/or MSKU2820576.

(4) The Incident caused substantial damage to both the Vessel and other cargo being carried on board the Vessel, whether directly or by reason of the fire-fighting operation in response to the Incident.

[92]Sree denied any negligence or breach of duty (Sree’s letter dated 16th July 2021, email dated 18th August 2021, letter dated 5th April 2022).

[93]Given my findings, in my judgment, Sree acted in breach of its duties as follows.

[94]First, clause 21.2 of the Safmarine Terms provided that Sree warranted that the goods were “packed in a manner adequate to withstand the risks of Carriage having regard to their nature and in compliance with all laws, regulations or requirements which may be applicable to the Carriage”. Where there has been a breach of the said warranty, clause 21.3 provided that Sree shall “indemnify the Carrier against all claims, liabilities, loss, damage, delay, costs, fines and/or expenses arising in consequence of the Carriage of such Goods, and/or arising from breach of any of the warranties in clause 21.2 …”.

[95]In circumstances where Sree failed to pack containers MSKU7134795, MSKU2820576 and MSKU4287300 in a manner adequate to withstand the risks of carriage having regard to the nature of the cargo, or in compliance with all applicable laws, regulations and requirements (in particular, those of the IMDG Code), Sree acted in breach of the warranty in clause 21.2 and became liable to indemnify Maersk in accordance with clause 21.3.

[96]Second, clause 14.3 of the Safmarine Terms provided that “The Shipper [Sree] also warrants that … the Goods will not cause loss, damage, or expense to the Carrier [Maersk], or to any other cargo”. Clause 15.2 provided that “The Merchant [Sree] shall be liable for and shall indemnify the Carrier [Maersk] against all loss, damage, delay, fines, attorney fees and/or expenses arising from any breach of any of the warranties in clause 14.3 or elsewhere in this bill of lading and from any other cause whatsoever in connection with the Goods for which the Carrier [Maersk] is not responsible. …”.

[97]Based on my findings above, the warranty in clause 14.3 was breached and, pursuant to clause 15.2, Sree was responsible for and promised to indemnify Maersk in respect of the loss and damage caused by the decomposition of the cargo in each of containers MSKU7134795, MSKU2820576 and MSKU4287300.

[98]Third, Sree failed in breach of its duty at common law to take reasonable care when it packed and shipped the cargo in containers MSKU7134795, MSKU2820576 and MSKU4287300, in failing to ensure the cargo was fit for transportation by sea and to avoid causing damage to property which belonged to or for which Maersk was responsible, including the Vessel, the containers themselves, and other cargo on board the Vessel (The Orjula

[1995] 2 Lloyd’s Rep 395

, 403). The editors of Charlesworth & Percy on Negligence (16th ed., 2025), state the general principle at para. 16-151:

“An owner or bailee of products, who delivers them to a carrier for the purpose of carriage, is under a duty to take reasonable care to see that they can be carried without causing physical damage to the person or property of others with whom they are likely to come in contact, during such carriage”

Issue 9: Loss and Damage

[99]As explained above, Maersk claims a total of US$10,101,073.64, £1,877,803.42, and EUR136,108.68 in respect of the loss and damage it has sustained. Maersk’s principal claims arising from the Incident comprise sums paid to the various parties in reasonable settlement of these liabilities.

[100]The loss and damage claimed by Maersk fall into four categories:(1) Payments to Head Owners.

(2) Payments to Salvors.

(3) Cargo Claim settlements.

(4) Other miscellaneous losses.

[101]It is well established that if a claimant is exposed to a third party claim by reason of the defendant’s breach of duty, the defendant will be liable to compensate the claimant for any “reasonable” settlement of that claim, assuming that the loss and damage are not too remote (Biggin & Co Ltd v Permanite Ltd

[1951] 2 KB 314

, 321, 325-326). It is not necessary for the claimant to show that on the balance of probabilities it was even liable to the third party (BP Plc v AON Ltd (No. 2)

[2006] EWHC 242 (Comm)

; [2006] 1 Lloyd’s Rep IR 577, para. 281).

[102]The claimant does not bear the burden of proving reasonableness. The evidential burden of proving unreasonableness of the settlement falls on the defendant, because it is tantamount to alleging that the claimant has failed to mitigate its loss (Mander v Commercial Union Assurance Co Plc [1998] Lloyd’s Rep IR 93, 148-149). The fact that legal advice has been obtained endorsing the proposed settlement establishes at least a prima facie case that the settlement terms were reasonable, whereupon the defendant must discharge the burden of proof resting on it (BP Plc v AON Ltd (No. 2)

[2006] EWHC 242 (Comm)

; [2006] 1 Lloyd’s Rep IR 577, para. 282).

[103]In Siemens Building Technologies FE Ltd v Supershield Ltd

[2010] EWCA Civ 7

; [2010] 2 All ER (Comm) 1185, it was argued that Siemens had straightforward and complete defences to the claims made against it by third parties and that its settlement of those claims did not represent a reasonable attempt to mitigate the potential loss. At para. 28, Toulson LJ said:

“Megarry J once described the law reports as charts of the wrecks of unsinkable cases. Because of its uncertainty and expense, prudent parties usually try to avoid litigation where possible. It has to be borne in mind that the ‘settlement value’ of a claim is not an objective fact (or something which can be assessed by reference to an available market) but a matter of subjective opinion, taking account of all relevant variables. Often parties may have widely different perceptions of what would be a fair settlement figure without either being unreasonable. The object of mediation or negotiation is then to close the gap to a point which each finds acceptable. When a judge is considering the reasonableness of a settlement he will have in mind these factors and another: that he is likely to have a less complete understanding of the relative strengths of the settling parties than they had themselves (unless he is to embark on a disproportionately detailed investigation), and especially so in complex litigation. The issue which the judge has to decide is not what assessment he would have made of the likely outcome of the settled litigation, but whether the settlement was within the range of what was reasonable. If he decides that it was, an appellate court will not interfere with his decision unless persuaded that he erred in principle or (which is intrinsically unlikely) that his decision was incapable of justification on any reasonable view.”

[104]In 125 OBS (Nominees1) v Lend Lease Construction (Europe) Ltd

[2017] EWHC 25 (TCC)

; 174 Con LR 105, at para. 186-187, Stuart Smith J considered the judgment of Ramsey J in Siemens v Supershield (from the judgment quoted) and said: 186. There is no substantial dispute on the applicable principles of law. A useful summary, which I gratefully adopt, is provided by Ramsey J in Siemens Building Technology FE Ltd v Supershield Ltd

[2009] EWHC 927 (TCC)

as follows:

“(1) For C to be liable to A in respect of A’s liability to B which was the subject of a settlement it is not necessary for A to prove on the balance of probabilities that A was or would have been liable to B or that A was or would have been liable for the amount of the settlement. (2) For C to be liable to A in respect of the settlement, A must show that the specified eventuality (in the case of an indemnity given by C to A) or the breach of contract (in the case of a breach of contract between C and A) has caused the loss incurred in satisfying the settlement in the manner set out in the indemnity or as required for causation of damages and that the loss was within the loss covered by the indemnity or the damages were not too remote. (3) Unless the claim is of sufficient strength reasonably to justify a settlement and the amount paid in settlement is reasonable having regard to the strength of the claim, it cannot be shown that the loss has been caused by the relevant eventuality or breach of contract. In assessing the strength of the claim, unless the claim is so weak that no reasonable party would take it sufficiently seriously to negotiate any settlement involving payment, it cannot be said that the loss attributable to a reasonable settlement was not caused by the eventuality or the breach. (4) In general if, when a party is in breach of contract, a claim by a third party is in the reasonable contemplation of the parties as a probable result of the breach, then it will generally also be in the reasonable contemplation of the parties that there might be a reasonable settlement of any such claim by the other party. (5) The test of whether the amount paid in settlement was reasonable is whether the settlement was, in all the circumstances, within the range of settlements which reasonable people in the position of the settling party might have made. Such circumstances will generally include: (a) The strength of the claim; (b) Whether the settlement was the result of legal advice; (c) The uncertainties and expenses of litigation; (d) The benefits of settling the case rather than disputing it. (6) The question of whether a settlement was reasonable is to be assessed at the date of the settlement when necessarily the issues between A and B remained unresolved.” 187. It is sufficient to add that: i) The Court encourages reasonable settlements, particularly where strict proof would be very expensive; ii) The test of reasonableness is generous, reflecting the fact that the paying party has put the other in a difficult situation by its breach; iii) Reasonableness is evaluated as at the time of the settlement and in the chances of litigation at that time; iv) A claim will generally have to be so weak as to be obviously hopeless before it can be said that settling it is unreasonable; v) The evidential burden of proving unreasonableness of any settlement falls upon the defendant: see Mander v Commercial Union Assurance [1998] Lloyds Rep IR 93, 148 col 2 per Rix J, BP plc v AON [2006] EWHC 424 (Comm) at [281]-[282]. However, my conclusions as set out below do not in any case depend upon where the burden of proof lies.”

[105]The test of reasonableness has been held to be “a generous one appropriate to a party placed in an awkward situation by another’s breach” (Britvic Soft Drinks Ltd v Messer UK Ltd

[2002] 1 Lloyd’s Rep 20

, para. 126).

[106]Applying these general principles, Maersk has established that there has been a breach of duty on the part of Sree owed to Maersk. Given the fact that the cargo in the containers was being carried on board the Vessel, given the duties owed by Maersk to the Head Owners directly and through its associated companies (The Giannis NK [1994] 2 Lloyd’s Rep. 171, 179; The Darya Radhe

[2009] EWHC 845 (Comm)

;

[2009] 2 Lloyd’s Rep 175

, para. 26), given the nature of the charterparty relationships, and given the proximity of other cargo to the containers, it was in the reasonable contemplation of the parties as a probable result of the breaches of duty, and so it was equally in the reasonable contemplation of the parties that there might be a reasonable settlement of any such claim. Each of the settlements concluded by Maersk in this case were reasonable. It follows that Sree is liable in damages to Maersk in respect of such settlements.

[107]That said, the relationship between Maersk and the counterparts to the settlements concluded with Maersk should be considered.

The Head Owners

[108]As explained above, Maersk, as well as the intermediate charterers, MSM and MLUK, entered into settlement agreements with the Head Owners. Sree disputed Maersk’s entitlement to claim damages of this nature (Sree’s letter dated 5th April 2022).

[109]By clause 4.1 of the Safmarine Terms, quoted above, which had been incorporated into the Contracts of Carriage, Maersk was entitled to sub-contract the carriage of the containers to third parties. Maersk sub-contracted the carriage of the containers to MLUK and was ultimately liable (through the chain of charterparties) to the Head Owners for the loss and damage sustained by them, including the cost of repairs to the Vessel.

[110]In my judgment, the settlements concluded between Maersk and the Head Owners were reasonable:(1) Pursuant to the Head Charter, as amended, MSM was entitled to ship up to ten containers of calcium hypochlorite per voyage on condition that they were to be carried, loaded, stowed, segregated and documented strictly in accordance with the IMDG Code and the recommendations of the International Group of P&I Clubs’ CH working group. Addendum No. 8 further provided that the goods should be packed in clean drums, not sacks or bags.

(2) Containers MSKU7134795 and MSKU2820576 shipped on board the Vessel did not satisfy the conditions in Addendum No. 8 in that (a) the containers had not been stuffed in accordance with the IMDG Code, and (b) the calcium hypochlorite was packaged in fibreboard boxes (rather than in drums).

(3) Given that the containers had been shipped in breach of the Head Charter, the decision was taken to settle the claims by the Head Owners in the interests of avoiding costs being incurred unnecessarily and securing the Head Owners’ cooperation in relation to the claims being made by the Salvors and cargo interests (Mr Evans’s eighth witness statement, para. 10).

(4) This was a reasonable settlement. As the party at the bottom of the chain, Maersk would have been liable to indemnify MLUK in respect of its liability to MSM; and MLUK would in turn be liable to indemnify MSM in respect of its liability to the Head Owners. Further, the Head Owners may well have had a direct claim against Maersk for shipping the containers (The Darya Radhe

[2009] EWHC 845 (Comm)

;

[2009] 2 Lloyd’s Rep 175

, para. 26).

(5) Maersk entered into the Co-operation Agreement and three Settlement Agreements in reasonable mitigation of its loss by which (in outline) Maersk agreed to (a) settle the Head Owners’ claims, (b) reimburse the Head Owners for any fees and costs paid to or incurred by the Adjusters and RHL, (c) be liable for any future fees of the Adjusters and RHL, (d) pay the Head Owners’ proportion of the salvage awards, (e) indemnify the Head Owners for their legal and other costs of the Salvage Arbitration, and (f) be liable for any and all Cargo Claims.

The Salvors

[111]By reason of the salvage awards and settlement agreements, and pursuant to its obligations under clause 3 of the Co-operation Agreement concluded with the Head Owners, Maersk agreed to pay and in fact paid to the Salvors US$3,040,401.49 and £287,433. Maersk has therefore proven its loss in this respect.

The Cargo Claims

[112]The Cargo Claims comprised Particular Average Claims and Salvage Indemnity Claims by the cargo interests (which included subrogated cargo underwriters (Mr Evans’s eighth statement, para. 11)).

[113]The cargo was all carried pursuant to contracts of carriage incorporating Articles I to VIII of the Hague Rules. Accordingly, Maersk was obliged(a) to exercise due diligence before and at the beginning of the voyage to make the Vesel seaworthy pursuant to Article III Rule 1, and

(b) subject to the provisions of Article IV, properly and carefully to load, handle, stow, carry, keep, care for, and discharge the cargo on board pursuant to Article III Rule 2.

[114]Maersk operated a policy for the acceptance of dangerous goods on board its vessels (“theDG Acceptance Policy”) (Mr Evans’s eighth statement, para. 13). When MSKU7134795 and MSKU2820576 were shipped, Maersk’s policy for the acceptance of calcium hypochlorite required (among other things) that only official UN-proofed drums were permitted and that strong dunnage or plywood was to be inserted between each tier of drums to ensure that the bottom tier was not crushed. The containers did not comply with those requirements. Although there may have been arguments to be advanced by Maersk that it had acted in due diligence, this was regarded as a difficult defence to maintain in the circumstances explained by Mr Evans in his eighth statement, at para. 14-16 referring to Maersk’s Dangerous Goods Team (“theDGT”) and the stuffing reports prepared by Global Marine Survey Agencies:

“14. … The DGT had not checked the Stuffing Reports prior to the Galets Containers being shipped and the discrepancies with the DG Acceptance Policy had not been picked up by the team which was handling the booking (or at least that team had not reported any issues to the DGT). 15 Whilst it may have been possible to argue that Maersk had exercised the requisite due diligence notwithstanding that its own DG Acceptance Policy had not been complied with (e.g. on the basis that the standard required was that of a reasonable carrier and the DG Acceptance Policy represented a higher standard or best practice), we took the view that it would be very difficult to persuade a Court to accept that a failure by Maersk to adhere to its own DG Acceptance Policy was not a failure to exercise due diligence. In any event, as I have discussed in Paragraph 9 above, the Stuffing Reports showed that the Galets Containers had not been stuffed in accordance with the IMDG Code - which was undoubtedly the starting point for assessing the due diligence required of a reasonable carrier. 16. In these circumstances, the decision was taken to settle the Particular Average Claims. However, each of those claims was considered on its merits and defences such as package limitation were deployed where available …”

[115]The Salvage Indemnity Claims were initially rejected on the basis that clause 5.1 of the Safmarine Terms (which provided for liability for “loss of or damage to the Goods”) was confined to claims for physical loss or damage and that liability for salvage indemnities was excluded by clause 8.2 (“Save as is otherwise provided herein, the Carrier shall in no circumstances be liable for direct or indirect or consequential loss or damage arising from any other cause whatsoever or for loss of profits”). In reliance on this argument, Maersk was able to negotiate settlements with the vast majority of cargo interests on very favourable terms. Mr Evans explained in his eighth statement, at para. 18, that the merits of the argument were perceived to have weakened when, in January 2023, judgment was handed down in The Thorco Lineage

[2023] EWHC 26 (Comm)

;

[2023] 2 Lloyd’s Rep 338

, by which time there was only one cargo interest group with Salvage Indemnity Claims which had yet to be resolved; the decision was taken to settle those claims.

[116]In my judgment, the settlements were reasonable and established Maersk’s loss in this respect.

Other Heads of Loss

[117]As summarised above, Maersk has suffered the additional loss and damage in the form of property damage, fees paid to the Adjusters and RHL, and legal costs and disbursements. In my judgment, Maersk is entitled to recover in respect of this loss.

Total loss and damage

[118]Maersk’s total loss and damage in respect of the four categories of loss and damage referred to above were as follows: Head of Loss USD GBP EUR Payments to Head Owners 3,828,831.27 31,221.26 - Payments to the Salvors 3,040,401.49 287,433 - Cargo Claims 2,763,175.75 185,333.30 13,584.20 Other Heads of Loss 468,665.13 1,373,815.86 122,524.48 Total 10,101,073.64 1,877,803.42 136,108.68

[119]Maersk claims damages to be paid in US dollars. For the reasons submitted by Mr Bird, as summarized above, I accept that Maersk is entitled to recover damages in that currency, as it more truly reflects the loss it has suffered (The Folias

[1979] AC 685

, 700; Carver on Charterparties, (3rd ed.), para. 11-032, 11-500).

[120]I should point out that Sree alleged negligence on the part of Maersk (Sree’s letters dated 5th April 2022 and 19th October 2022 and Sree’s plaint in the First Kurnool Proceedings). Although Mr Evans’s evidence is that the DGT did not check the stuffing reports, I have seen no evidence that such conduct was the real or operative cause of the Incident. Further, no pleaded defence was advanced, with evidence, by Sree in these proceedings, based on contributory negligence.

Issue 10: Contractual Indemnity

[121]Maersk also has the benefit of promises of indemnity by Sree under clauses 11.2, 15.2, and/or 21.3 of the Safmarine Terms.

[122]The claims under clauses 15.2 and 21.3 are addressed above.

[123]Clause 11.2 provides that “[Sree] shall indemnify the Carrier [Maersk] against any injury, loss, damage, liability or expense whatsoever incurred by the Carrier if such loss or damage to the contents and/or such injury, loss, damage, liability or expense has been caused by any matter beyond his control including, inter alia, without prejudice to the generality of this exclusion:(a) the manner in which the Container has been packed; or

(b) the unsuitability of the Goods for carriage in Containers …”.

[124]Given my findings above, in my judgment, Maersk is contractually entitled to the indemnity it claims.

[125]As Maersk is entitled to both damages and an indemnity on various grounds, the fact remains that it can recover compensation to make good the loss it has suffered, and no more.

Issue 11: Declaratory relief

[126]Mr Bird informed me that Maersk is no longer claiming declaratory relief as all of the third party claims have been made and dealt with.

Issues 12-15: Breach of the Exclusive English Jurisdiction Agreement

[127]Clause 26 of the Safmarine Terms which were incorporated into the Contracts of Carriage between Maersk and Sree was headed “LAW AND JURISDICTION” and provided that:

“For shipments to or from the U.S. any dispute relating to this bill of lading shall be governed by U.S. Law and the United States Federal Court of Southern District of New York is to have exclusive jurisdiction to hear all disputes in respect thereof. In all other cases, this bill of lading shall be governed by and construed in accordance with English law and all disputes arising hereunder shall be determined by the English High Court of Justice in London to the exclusion of the jurisdiction of the courts of another country”

[128]Maersk’s case is that the Indian Proceedings were issued, and are being pursued, in breach of the exclusive jurisdiction agreement in clause 26 and, consequently, claims damages, declaratory relief, and a final anti-suit injunction pursuant to section 37 of the Senior Courts Act 1981.

[129]In my judgment, the various actions being pursued by Sree against Maersk before the Indian Courts amount to (continuing) breaches of the exclusive English jurisdiction agreement in clause 26, in particular the First Kurnool Proceedings (including the restoration of these proceedings), the Second Kurnool Proceedings, the Third Kurnool Proceedings, and Sree’s APHC Proceedings.

[130]It is also clear that the pursuit of the Indian Proceedings was and is intended to obstruct Maersk from pursuing its claims in the agreed contractual forum, i.e. England and Wales.

[131]It is well established that if proceedings before a foreign court are commenced or continued by a party to a contract which contains an exclusive English jurisdiction agreement, the losses arising from the breach of that agreement by the plaintiff or claimant in the foreign court will be recoverable by the defendant in the foreign proceedings, who claims compensation before the English Court.

[132]If foreign proceedings have been commenced in breach of an exclusive jurisdiction clause, the English courts will award damages in respect of the costs and expenses of having to resist the foreign litigation, unless public policy precludes recovery (Raphael, The Anti-Suit Injunction (2nd ed., 2019) at para. 14.13 and the cases cited at fn. 31; Gee on Commercial Injunctions (7th ed., 2021) at para. 14-073, 14-074).

[133]In Union Discount Co Ltd v Zoller

[2001] EWCA Civ 1755

;

[2002] 1 WLR 1517

, at para. 38, the Court of Appeal stated that:

“The present case concerns someone who in breach of an exclusive jurisdiction clause litigates in a jurisdiction which, save exceptionally, does not award costs in strike-out proceedings. Hence, no costs are asked for by the party who successfully applied for the strike-out. It would have been pointless to do so. In such a case, on the assumption that to bring suit in the foreign jurisdiction amounts to a breach of contract, we consider that justice requires that he should recover the damages which he has suffered by reason of the breach …”

[134]In these circumstances, Maersk is entitled to an award of damages suffered by reason of the losses sustained by it in respect of the Indian Proceedings, namely the legal costs incurred in respect of the Indian Proceedings in the sum of US$168,064.48 representing legal fees paid to Maersk’s Indian lawyers, Bose & Mitra, and £16,296 representing fees paid to Maersk’s English solicitors, Stephenson Harwood LLP and Schjodt LLP (Mr Evans’s ninth witness statement, para. 9-14).

[135]Further, Maersk is entitled to a declaration as to the entitlement of an indemnity in respect of any additional costs incurred in respect of the Indian Proceedings.

[136]Maersk also seeks a permanent anti-suit injunction preventing the conduct and continuance of the Indian Proceedings, bearing in mind that there currently exists an interim anti-suit injunction. In my judgment, Maersk is entitled to such a permanent injunction pursuant to section 37(1) of the Senior Courts Act 1981, and moreover a mandatory injunction requiring Sree to discontinue the Indian Proceedings, because:(1) The Indian Proceedings were issued and pursued in breach of an exclusive English jurisdiction agreement clause.

(2) An anti-suit injunction would ordinarily follow, unless the respondent can show “strong reason” not to do so (Donohue v Armco Inc

[2001] UKHL 64

;

[2002] 1 Lloyd’s Rep 425

, para. 24-25; AIG Europe SA v John Wood Group Plc

[2021] EWHC 2567 (Comm)

; [2022] Lloyd’s Rep IR 485, para. 58(h)). There is no such strong reason.

(3) The Court’s primary concern is to uphold the parties’ bargain, absent strong reasons to the contrary and, in consequence, issues concerning comity and factors of convenience have little or no significant role to play (Enka Insaat AS v OOO Insurance Company Chubb

[2020] UKSC 38

;

[2020] 1 WLR 4117

, para. 179, 184 and 293; AIG Europe SA v John Wood Group Plc

[2021] EWHC 2567 (Comm)

; [2022] Lloyd’s Rep IR 485, para. 58).

(4) If a prohibitory injunction is not sufficient to ensure that the injunction is practically effective, a mandatory injunction requiring the defendant to discontinue the foreign proceedings may be granted in an appropriate case. Such a mandatory injunction serves the same function as a prohibitory injunction (The Southern Explorer

[2020] EWHC 1223 (Comm)

;

[2020] 2 Lloyd’s Rep 137

, para. 51). Moreover, it is appropriate in the present case because there is a proven breach of the exclusive English jurisdiction agreement by Sree, and the purpose of the breach is to seek to prevent Maersk from exercising its contractual rights (in particular, having regard to the application for an anti-suit injunction in the Indian Proceedings) (Ecom Agroindustrial Corporation Ltd v Mosharaf Composite Textile Mill Ltd

[2013] EWHC 1276 (Comm)

;

[2013] 2 Lloyd's Rep 196

, para. 37-38).

(5) Further, Maersk is entitled to an injunction in mandatory terms restraining Sree from applying for and pursuing an application for an anti-suit injunction in the Indian Proceedings (Ecom Agroindustrial Corporation Ltd v Mosharaf Composite Textile Mill Ltd

[2013] EWHC 1276 (Comm)

;

[2013] 2 Lloyd’s Rep 196

, para. 21).

[137]The terms of the injunction will be finalised as a consequential issue. Maersk seeks a release from the cross-undertaking in damages. Given that this is a permanent injunction, Maersk is entitled to be released from the undertaking.

Conclusion

[138]For the reasons explained above, Maersk is entitled to recover:(1) Damages for breaches of the Contracts of Carriage, and/or for breach of a common law duty of care, by reason of the packing, stuffing and shipment of the containers MSKU7134795, MSKU2820576, and/or MSKU4287300 and/or an indemnity pursuant to the Contracts of Carriage, in the sums of US$10,101,073.64, £1,877,803.42, and EUR136,108.68, and as converted into US dollars, US$13,178,280.51.

(2) Damages for breach of the exclusive English jurisdiction agreement in clause 26 of the Safmarine Terms incorporated into the Contracts of Carriage, by reason of Sree’s pursuit of the Indian Proceedings in the sums of US$168,064.48 and £16,296.

(3) A declaration as to the entitlement of an indemnity in respect of any additional costs incurred in respect of the Indian Proceedings.

(4) Injunctive relief in mandatory terms restraining the conduct and continuance of the Indian Proceedings.

[139]The precise terms of the relief will be determined as a consequential issue.

[140]I am grateful to Mr Bird for presenting the case on behalf of Maersk clearly and efficiently and entirely fairly having regard to Sree’s non-attendance.