Louis Dreyfus Commodities Kenya Ltd v Bolster Shipping Company Ltd

This is an application by the claimants, Louis Dreyfus Commodities Kenya Limited, to whom I shall refer hereafter as “LDCK”, for a final anti-suit injunction. Although the application is cast in somewhat wider form, essentially LDCK seek to restrain the Defendants from taking any steps to join them as a party to proceedings before the Mexico City Federal District Court, “the Mexican proceedings”. There has been no application for an interim injunction because until recently the relief sought was not thought to be urgently required. I heard the application on 14 and 17 June 2010. On 5 July 2010 I was informed that papers relating to the joinder of LDCK to the Mexican proceedings had been served on them in Kenya and that they have only a short time within which to respond to service.

LDCK contend that the Defendants’ application to join them as a party to the Mexican proceedings amounts to a breach of an arbitration clause contained in a bill of lading, B/L No.2 dated 10 March 2007 to which LDCK and the Defendants are both party. LDCK were named therein as the shippers of 5,000 tonnes of what the shippers described as “South African No. Two (2) or better white corn fit for human consumption”. The bill of lading was signed at Mombasa by agents on behalf of the Master of the “Giorgis Carras”, herein- after “the vessel”. The Defendants, Bolster Shipping Company Limited, are the registered owners of the vessel and it is common ground that they were the carriers identified in the bill of lading. I shall refer to the Defendants hereafter as “the Owners”. The consignee was identified in the bill of lading as Suministros de Maiz del Mayab S.A. de CV, a Mexican company to which I will refer hereafter as “Suministros”.

The cargo thus loaded was part of a larger consignment amounting to 19,079 tonnes in all. There were two further bills of lading, Nos. 1 and 3, representing two parcels consigned to another Mexican company, Productores de Semillas del Sureste S.A. de CV, to which I shall refer hereafter as “Productores”, but I am not concerned with these two parcels.

LDCK is, as its name implies, part of the Louis Dreyfus group of companies. On 12 February 2007 LDCK sold to Louis Dreyfus Corporation of Wilton Connecticut, to whom I shall refer hereafter as “LDC”, fob Mombasa 20,500 tonnes, 10% more or less at seller’s option, South African White Maize No.1 with up to 40% No.2. It was stipulated in the contract that the foreign matter contained therein should be maximum 0.3% in the No.1 and maximum 0.5% in the No.2. The sale was on the terms of GAFTA (The Grain and Feed Trade Association) Form 59 and also contained a GAFTA arbitration clause.

On the same day, 12 February 2007, Sangamon Transportation Group, that being the trading name for LDC, chartered the vessel from the Owners on an Amended New York Produce Exchange form of charter for a time-charter trip via East Coast Africa to East Coast Mexico for the carriage of grain. The time charter contained the following arbitration provisions:-

“17.

That should any dispute arise between the Owners and the Charterers, the matter in dispute shall be referred to Arbitration in London in accordance with Arbitration Act 1994 (sic) and any subsequent alterations (See Clause No.64).

Clause 64

With reference to Clause 17, it is agreed that all disputes or differences arising out of this contract which cannot be amicably resolved shall be referred to Arbitration in London.

. . . .

This contract is governed by English law and there shall apply to all proceedings under this Clause the terms of the “London Maritime Arbitrators Association” current at the time when the Arbitration Proceedings were commenced.”

On 22 February 2007 LDC sold to CHS Inc of Minnesota (hereinafter “CHS”) cif Coatzacoalcos 19,000 tonnes 10% more/less White Corn of South African origin “all specs as per South African White Corn 2” fit for human consumption. The contract was on GAFTA Form 59 Incl. GAFTA 125.

In due course CHS concluded sales to Productores and Suministros. The terms of those contracts are not in evidence before me.

Loading commenced at Mombasa on 18 February 2007. It was completed on 10 March 2007 and the three bills of lading to which I have already referred were issued. It is common ground that B/L No.2, indeed all of the bills of lading, incorporated the charter party arbitration clauses which I have set out above.

The vessel arrived at Coatzacoalcos Vera Cruz on 27 April 2007. At 08.30 the cargo receivers drew samples from Holds Nos. 1 and 5 for analysis. At 09.00 discharge commenced. At 15.15 on the same day the Master was presented by Suministros with a Claim Letter. Suministros asserted that they were the receiver of 5,000 tonnes South African No.2 or better white corn and that there was “a quality cargo damage”. They asserted that a comparison of an SGS Certificate of Quality at loadport, describing the goods as South African No. Two (2) or better white corn fit for human consumption and the samples drawn from Holds Nos. 1 and 5 showed a difference in quality.

There is no evidence that Productores made a similar claim. Of course, I do not know how the product was described in the sale to them.

Owners have placed before the court a report from Dr Nicholas Crouch of Messrs Brookes Bell. He concluded that there was a relatively high level of brown germ-damaged kernels present in the cargo shipped, caused by mould invasion of the germ tissue during storage prior to shipment. He concludes that what is, in reality, at issue is a quality dispute between “the Shippers and the Receivers”, by which he means of course, in legal terms, between sellers and buyers. He also considers that there was a faulty grading operation at the time of loading. He concludes that the damage to the grain, observable on discharge, did not occur during carriage. His conclusions are of course untested but they are not implausible.

In argument before me Owners also stressed that the description of the cargo in the bill of lading as South African No.2 or better white corn fit for human consumption is said to be the Shipper’s description. They point out that whereas LDCK sold the cargo as having up to 0.5% foreign matter, in fact maximum 0.5% only in the permitted 40% No.2, maximum 0.3% in the No.1, on 19 March 2002 LDCK instructed the load port inspectors, SGS, that the specification of the test parameters had been revised and that so far as concerned foreign matter the maximum permitted was 1.3%. The Certificate issued by SGS shows an actual result of 1.25%. I cannot properly make out the date of the Certificate, although I suspect it to be 20 March. The maximum permitted foreign matter for South African No.2 corn would indeed appear to be 0.5%. However, the question of the nature of any revision to the sale agreement concluded between LDCK and LDC was not explored in the evidence filed for the purpose of this application. I have already pointed out that there is no evidence before the court as to the terms upon which Suministros (or indeed Productores) bought from CHS save insofar as the Letter of Claim to which I have referred above suggests that Suministros had bought South African No.2 grade or better white corn, an assertion repeated by them in their “Initial Written Complaint” issued in the Mexico City Federal District Court to which I now turn.

That Complaint gave rise to the Mexican proceedings, to which I have referred at paragraph 1 above. By that Complaint Suministros commenced proceedings against:-

On 28 February 2007 the Owners made an application to the Mexican Court. In the first instance they challenged jurisdiction. They also however, as I understand by Mexican procedure they were obliged to do, set out their defence on the merits. They asserted that they were not liable under the bill of lading contract for pre-shipment damage. They point to the role allegedly played by LDCK in relation to the storage of the goods before shipment. The Owners did not I think, contrary to the submission of Miss Masters on behalf of LDCK, assert that in consequence LDCK are liable to Suministros, or indeed to any other party, for the damage. It is difficult to see on what basis LDCK could be sought to be held liable by Suministros. Finally the Owners in their document of 28 February 2007 sought the joinder to the action of LDCK, LDC and Sangamon. It is this application and its pursuit thereafter that is said by LDCK to amount, insofar as it concerns them, to a breach of the arbitration clause incorporated into the bill of lading.

Before turning to the substance of LDCK’s application to this court and the necessary analysis of the nature of the Owners’ application to the Mexican Court, I should first briefly describe the multiplicity of proceedings to which this relatively mundane dispute has given rise.

On 24 April 2008 Suministros commenced arbitration in London against Owners, presumably relying upon the arbitration clause incorporated into the bill of lading, there being no other obvious source of jurisdiction.

On 7 May 2008 Owners notified the Mexican Court of this development, no doubt in purported vindication of their own reliance upon the bill of lading arbitration clause as depriving the Mexican Court of jurisdiction. This notwithstanding, Owners’ challenge to the jurisdiction of the Mexican Court has been rejected at first instance and that decision has been affirmed on appeal. I have not been shown the reasons for these decisions.

On 7 July 2008 the Owners issued what are described as Letters Rogatory, addressed to LDCK, LDC and Sangamon. As I understand it this was done at the direction of the Mexican Court as an integral part of the service upon those parties of the proceedings to which their joinder was sought. Service upon LDC and Sangamon was effected on 25 September 2009, but service upon LDCK was delayed in consequence of without prejudice discussions. As I have recorded above, service has now very recently been effected upon LDCK in Kenya.

In the London arbitration commenced by Suministros against Owners, Suministros unaccountably contended that the arbitrators, whose appointment they had initiated, had no jurisdiction, the time charter arbitration clause not having been, as they said, incorporated into the bill of lading. On 13 March 2009 the arbitrators ruled that they did have jurisdiction. Suministros challenged this ruling, but this court dismissed that application on account of the failure of Suministros to comply with a direction to provide security for costs. Thereafter Suministros took no further part in the arbitration. On 8 April 2010 the tribunal issued an award to the effect that the Owners have no liability to Suministros.

Other relevant proceedings include:-

The Owners’ application to the Mexican Court in which they seek the joinder of LDCK is of course in Spanish. There is some debate about the proper translation. However, in the Owners’ certified translation provided to the Mexican Court, the relevant section has the sub-title “SUMMON TO PROCEEDINGS”. I set out the certified translation of this section below.

“Due to the fact that the company Sangamon transportation group is the one chartering vessel Giorgis Carras, and accordingly is the one in charge of the commercial exploitation of the vessel, it is bound to third parties in its own name, as it assigns areas in the vessel, gives orders to the captain, who is subordinated thereto, represents it and binds it to third parties, issuing bills of lading on its behalf, therefore, the party contracted by the goods transportation shipper was such company and any damage attributable to the goods must be claimed to the Charterer by, or accordingly, the party to be sued is such legal entity and not my principal, therefore, I heretofore request to service that party in order for judgment therefrom be rendered on that company whose domicile to be served is that located at:

. . .

Likewise and due to the fact that Sangamon Transportation Group is a division of Louis Dreyfus Corporation as proven with guarantee letter dated February 12, 2007, as it is the owner of the former, it ordered and directed the captain regarding transportation of the goods covered by bills of lading shown by plaintiff, who acted under its orders and on behalf thereof, I request to serve that company on this action, and that the judgment to be rendered against it with the domicile to be served being located at :

. . .

Due to the fact that Louis Dreyfus Commodities Kenya LTD is the shipper of the corn covered by bills of lading presently shown by the plaintiff and it was the one requesting SGS Kenya LTD to issue the Quality and Condition Certificates, the Lack of Aflotoxin Certificate, the cleaning Certificate of halls and hatches cover and requested fumigation of halls and the white corn, it was the one selling the corn, I heretofore request to serve it on this case of action and that the judgment to be rendered against it with its domicile to be served being that located at:

. . .”

The words in Spanish, the translation of which have given rise to discussion, are “le cause perjuicio”, which have been rendered in their context so as to produce the expression “that the judgment to be rendered against it”. The exactly similar expression in Spanish is used so far as concerns the request to join Sangamon and LDC. As can be seen above, it has been translated in exactly the same way in the context of LDC, although slightly differently in the case of Sangamon. It is the evidence of an English-speaking Mexican lawyer from whom LDCK has sought assistance, Mr Escamilla, that the Owners’ certified translation of the phrase “le cause perjuicio” is “reasonably correct”, although perhaps a more accurate translation would be “bound by the judgment”. The evidence of the Owners’ English-speaking Mexican lawyer, Mr Moctezuma, is that the translation of the critical phrase contained in their own certified translation is inaccurate and that the more accurate translation of the joinder application is that it was seeking a resolution “causing involvement” of LDCK but not holding it liable for the amounts claimed.

Miss Sara Masters for LDCK submits that their position that the Owners have asked the Mexican Court to render judgment against LDCK, or at least that any such judgment should bind LDCK, is obviously right because:-

Miss Clare Ambrose for the Owners in her skeleton argument observes “the correct translation of the formal wording is of little relevance, it is accepted that the literal translation is calling for judgment to be rendered against [LDCK]”. In view of this very realistic approach I need not dwell on the linguistic arguments. The question remains, however, what is to be the nature of LDCK’s involvement in the Mexican proceedings and in whose, if anyone’s, favour a judgment might be. Would it be to the effect that arising out of the circumstances surrounding the sale and shipment of this cargo LDCK attracts liability and if so to whom and for what? I have already recorded that the Owners, in their formal document setting out their defence and seeking the joinder of LDCK, have not asserted that LDCK has any such liability.

It is the evidence of Mr Escamilla that Mexican law distinguishes between two types of third parties, “mere” third parties and “interested” third parties. He says this:-

“Mere third parties will not suffer any consequences derived from the final judgment. Their purpose is to assist the court in finding the truth. Court aids, experts, witnesses and supervisors are considered mere third parties.

Interested third parties will participate in the proceedings if they, the court or one of the parties considers that the final outcome of the procedure could affect their rights or duties. The interested third party pursues its own interest in a pre-existing procedural relation between claimant and defendant.

The main distinction between a mere third party and an interested third party is that the final judgment in the proceedings could either benefit or prejudice the latter (because it may be bound by it) but not the former.

Article 1094 section VI of the Commercial Code provides that the joinder against whom the judgment will be rendered will have the status of party, being able to offer evidence, file arguments and defenses as well as recourses (appeals).

A Mexican court precedent (jurisprudencia) explains contents of section VI of article 1094 of the Commercial Code as follows:

“From the understanding of section VI of article 1094 of the Commercial Code it follows that in the mercantile procedure the third party called to the proceedings has a party status when the calling to the procedure is with the objective that judgment which would resolve the merits of the dispute is rendered against it, therefore such third party is able to respond to the complaint, submit evidence and make allegations to defend its position as well as to appeal those decisions in its prejudice, such as the final judgment that would be issued in the proceedings. In this context, when the third interested party is linked to the judicial dispute the burden of appearing in its own defense is imposed because the judgment to be issued may produce consequences in its juridical sphere, which makes it to be hold to the proceedings, which would not have occurred if he had not been called to the proceedings, and it is for that reason that in the mercantile proceedings the third party adopts the party status (in procedural rules language), with the authority and holding of his condition, i.e., in defense, provided by article 1094 section VI of the Commercial code . . .”

The interested third party could even be condemned to pay attorneys fees as explained by a court precedent (jurisprudencia).”

Mr Moctezuma for the Owners contends that a joinder application does not “necessarily mean” that the third party will be bound by the judgment. That much is common ground. He accepts however that LDCK could be considered as an interested third party. Mr Moctezuma says that whether or not LDCK will be bound by the judgment depends upon whether a formal claim is made against it and whether LDCK assumes an active role in the case. He considers that the Mexican Court judgment will not in fact be binding as between LDCK and the Owners regarding the cause of the damage because this issue has not been raised between those parties. On this point Mr Escamilla says this:-

“. . . The main issue that will be decided in the Mexican proceedings is as to whether Suministros can establish liability against the named defendants; however, in my opinion, based on scholar dissertations, Article 1094 paragraph VI of the Commercial Code and court precedents, the judgment could, legally speaking, contain a reference as to the involvement of LDC Kenya and such reference could be either in their benefit or prejudice and would bind LDC Kenya for the reasons already given. It is impossible to anticipate what the extent of the reference to LDC Kenya will be, if any, but I have no doubt that the possibility exist that LDC Kenya is somehow and to some extent included in the judgement.”

Mr Moctezuma for his part accepts that there is an “entirely remote” possibility that LDCK will be held liable to Suministros and that “in particular this would arise only if LDCK chose to assume an active role as Defendants”. Mr Escamilla says that it is not only possible but advisable for LDCK to play an active role in the proceedings in order to avoid a judgment that may prejudice their interests, and I do not understand Mr Moctezuma to controvert this proposition, which must usually although not of course always be self-evidently correct. Finally it is, as I understand it, common ground between Mr Escamilla and Mr Moctezuma that the more active a role is played by LDCK, the more likely they are to be held bound by the judgment, whatever that may mean in practical terms.

It is clear that the Owners’ basic purpose in seeking to involve LDCK in the Mexican proceedings is to ensure that there are made available to the Mexican Court the information and in particular the documents which will enable Owners to make good their case as to the condition of the cargo on shipment. Ironically they have in part already achieved that purpose because in responding to the attempted joinder, by making this application to this court, LDCK have made available documents and information concerning the cargo and its condition which the Owners did not previously have. Owners point out however that they have made no claim against LDCK and that the effect of the judgment, either as between LDCK and themselves, or as between LDCK and third parties, will obviously depend upon the issues that are subsequently raised in the proceedings and upon the terms of the judgment when rendered. Whilst they accept that they are, as LDCK put it, seeking to deflect liability away from themselves, they deny that they are seeking to deflect responsibility for the damage onto others. They do not accept that they are effectively inviting Suministros to bring a claim against LDCK in the Mexican proceedings and they point out that there is no obvious cause of action upon which Suministros could rely against LDCK. Owners suggest that it is entirely legitimate, and in no way in breach of their obligations under the bill of lading arbitration clause, to join a party to proceedings in circumstances such as these for the purpose of obtaining information and evidence. Indeed, they cautioned me against interfering with the foreign court’s method of obtaining evidence. Moreover, they point out that it is not ordinarily a breach of an arbitration clause to seek security, for example by the arrest of a ship or by an injunction restraining disposal of a cargo, and they suggest that the procedure here adopted is far more “benign” and incapable of constituting a breach of the bill of lading arbitration clause.

LDCK for their part point out that in Owners’ application to the Mexican Court there is no mention of the purpose of the joinder being merely to obtain the provision of documents and information. They also point out, as is common ground, that the Mexican Court has a procedure pursuant to which an officer of LDCK could have been required to give evidence and to produce documents. This last point is, I think, of little practical weight. It is common ground that, assuming that the relevant officer or officers lived outside Mexico, the assistance of the foreign court local to his or her place of residence would be required in order to obtain a deposition. This is usually a long and costly process with uncertain results. I accept that on sheer grounds of practicality a joinder application with a view to the provision of evidence and information is far more likely to be effective than seeking to compel the giving of information and the production of documents through the medium of a witness. Mr Moctezuma also points out that the Mexican procedure of joinder of LDCK has the advantage that they may be required by their attorneys to answer questions. The Owners say that it has been necessary to involve LDCK as a third party in order to ensure that they provide evidence as to the quality of the goods on shipment and that there was no alternative means to ensure their participation. Although it may be questionable whether this either is or might become a relevant consideration, the Owners also say that LDCK have been unwilling, voluntarily, to make available the evidence which would demonstrate that the Owners are under no liability to Suministros.

The question which is determinative of this application is whether the Owners’ conduct amounts to a breach of the bill of lading arbitration clause. That clause requires that all disputes or differences between LDCK and Owners arising out of the contract contained in or evidenced by the bill of lading shall be referred to arbitration. Miss Masters had difficulties in formulating the breach which has occurred or which is threatened. At one stage she submitted that the Owners should not be permitted to put it into the head of Suministros that they should claim against LDCK. Even if it could be accepted that this is an appropriate characterisation of what the Owners are attempting to do, I do not consider that such conduct can possibly of itself amount to a breach of the arbitration clause. A party to an arbitration clause does not undertake to his contractual partner that he will not, if sued by a third party, suggest that it is to the contractual partner that the third party should rather look for recompense.

Miss Masters submits that on its proper construction the wording of the joinder application indicates that the Owners are asking the Mexican Court to render judgment against LDCK or, at least, to ensure that they are bound by the terms of that judgment. That, she submits, is a clear breach of the bill of lading arbitration clause. I agree that this is a proper description of what the Owners are asking the Mexican Court to do, but I do not agree that that is without more a clear breach of the bill of lading arbitration clause. The Owners are not inviting the Mexican Court to resolve a dispute between themselves and LDCK – they do not assert a claim against LDCK, and they do not identify any dispute between themselves and LDCK arising out of the contract. The Owners have not identified any issue arising between themselves and LDCK as to which the judgment of the Mexican Court could in any real sense be binding as between them.

Miss Masters at first submitted that the attempt by the Owners to use the Mexican proceedings as an instrument to obtain evidence and information from LDCK is a breach of the arbitration clause. However, as Miss Ambrose pointed out, that is too broad a submission. It requires the implication of a term that a party to an arbitration clause cannot obtain evidence by resort to a tribunal other than the contractual arbitration. On that footing, simply seeking to compel a witness to give evidence or to produce documents would amount to a breach of contract, which is an extravagant proposition. In reply Miss Masters accepted that attempting to compel the giving of evidence by an officer of the opponent party, in proceedings other than a contractual arbitration, would not amount to a breach of the arbitration clause. She submitted however that the Owners are effectively asserting a contractual right to the provision of documentation by LDCK, and that since LDCK deny any such obligation, that is a dispute or difference arising out of the contract which Owners are expressly or impliedly asking the Mexican Court to resolve. Miss Ambrose for her part accepts that LDCK are under no contractual obligation to render co-operation and she submits that the Owners are not in the Mexican proceedings asserting a contractual right to co-operation. I agree that there is in the Owners’ application to the Mexican Court no trace of the assertion of any such right.

LDCK’s application to this court is brought under section 37(1) of the Senior Court Act 1981 and the touchstone of the jurisdiction is the interests of justice. It is common ground that a prerequisite here to the grant of the injunction sought is the demonstration by LDCK of a clear breach of the arbitration clause by the Owners. The procedure which the Owners have adopted in Mexico is unfamiliar to English eyes but it is permitted in Mexico and is evidently an established part of the repertoire of the Mexican Court. It is not, in my judgment, demonstrated that the Owners’ resort to that procedure constitutes a breach of the bill of lading arbitration clause. This application must accordingly be dismissed.