В статье рассматриваются вопросы, связанные с инкорпорацией положений, содержащихся в чартере, в коносамент, в частности, арбитражной оговорки (оговорки о юрисдикции). Упомянутые отношения исследуются автором на конкретных примерах, причем особенное внимание уделяется делу, рассмотренному Высоким судом правосудия, – The Channel Ranger  EWHC 3081.
A great deal of judicial attention has been lavished upon the incorporation of charterparty provisions into bills of lading. So much so that, in The Siboti  2 Lloyd’s Rep. 364], Mr Justice Gross, having been urged by leading counsel to undertake the exercise of construction of the bill in a “modern” fashion, felt obligated to ask himself the question whether the approach of the authorities in this area was “hidebound by authority, antiquated and over-technical”? [@ 34]
Without revealing Gross J’s answer (yet), it is worth noting that, in this connection, not all provisions are equal. It is the question of the incorporation of charterparty arbitration clauses into bills of lading that has most frequently come before the court, and the body of authority that has been built up (over more than a century), developed unusually proscriptive and inflexible rules of incorporation; with the stated intention of preserving clarity and certainty for parties engaged in the business of the carriage of goods by sea.
Two principles can be discerned:
(i) that general words in an incorporation clause in a bill of lading will not suffice to incorporate a charterparty arbitration or jurisdiction clause. Only terms directly germane to the shipment, carriage, and discharge of the cargo will be incorporated; but
(ii) that incorporation of an arbitration or jurisdiction clause can be achieved by sufficiently clear words in the bill. What matters is the wording of the bill of lading: is there specific reference to the arbitration or jurisdiction agreement?
The rationale for the strictness of these rules was set out by Bingham LJ in The Federal Bulker  1 Lloyd’s Rep. 103 (CA): because a bill of lading is a negotiable commercial instrument and may come into the hands of a foreign party with no knowledge and no ready means of knowledge of the terms of the charterparty. The recipient needs to know from the terms of the bill of lading what types of clauses are sought to be incorporated from the charterparty. If general words are used, he will know that (as a matter of English law), no arbitration or jurisdiction agreement is incorporated into the bill.
Bingham LJ went on to reflect:
“this is indeed a field in which it is perhaps preferable that the law should be clear, certain and well understood than it should be perfect. Like others, I doubt whether the line drawn by the authorities is drawn where a modern commercial lawyer would be inclined to draw it. But it would, I think, be a source of mischief if we were to do anything other than try to give effect to settled authority as best we can.” [@ 105]
It is against this legal landscape that the facts of the recent decision of Mr Justice Males in The Channel Ranger  EWHC 3081 should be introduced.
The case concerned a challenge to the jurisdiction of the English High Court by the receiver of cargo of steam coal under a bill of lading together with its cargo insurers. The claimant owners of the vessel “CHANNEL RANGER” had brought proceedings in the High Court for a declaration of non-liability in respect of salt-water damage to the cargo that had occurred at the discharge port in Morocco, and the defendants brought a CPR Part 11 challenge to the court’s jurisdiction. As the defendants had also commenced proceedings in Morocco, the claimant owners additionally applied for an anti-suit injunction to restrain pursuit of those proceedings, which they alleged were in breach of the exclusive jurisdiction clause in the charterparty that (they maintained) was incorporated into the bill of lading.
The claimant owners had time-trip chartered the vessel to U-Sea Bulk A/S on an amended NYPE 1993 form. U-Sea had in turn voyage-chartered the vessel to Glencore International AG. The jurisdiction clause in the voyage charterparty provided:
“This Charter Party shall be governed by English law, and any dispute arising out of or in connection with this Charter shall be submitted to the exclusive jurisdiction of the High Court of Justice of England and Wales”
When the cargo was shipped on board the vessel at Rotterdam, a negotiable bill of lading was issued, which (initially) took effect as a contract between Glencore and the claimant owners, although it was consigned to the order of the first defendant (the cargo receiver).
The bill of lading was on the well-known “Congenbill 1994” form which states on its face that it is “to be used with charter parties’. The form includes a box on the front in which the printed words “Freight payable as per CHARTERPARTY dated…” appear, while on the reverse clause 1 of the conditions of carriage provides that:
“All terms and conditions, liberties and exceptions of the Charter Party, dated as overleaf, including the Law and Arbitration Clause are herewith incorporated”.
Further, the box on the front of the form referring to payment of freight was completed by the insertion of the date of the voyage charter, 6 January 2011. The central box on the front of the form also included the typed clause:
“Freight payable as per Charter Party. All terms, conditions, liberties and exemptions including the law and arbitration clause, are herewith incorporated.”
Accordingly, there was a discrepancy between the express words of incorporation in the bill of lading, which sought to incorporate a law and arbitration clause, and the jurisdiction provision in the charterparty which provided for English High Court jurisdiction.
The Relevant Issue
The claimant owners had invoked two jurisdictional gateways: (i) that the bill of lading was a contract governed by English law and (ii) that the bill contained a jurisdiction clause conferring jurisdiction on the English court.
For present purposes it is the second gateway that is of significance as it raised a question of law – namely whether the bill of lading contained a term providing for English court jurisdiction – on which there is no direct authority, and which the judge elected to decide (rather than simply determining whether or not the claimant owners had an arguable case that it did).
The Judge’s decision
As adverted to above, the difficulty in this case arose from the discrepancy between the reference to an arbitration clause in the bill of lading, and the fact that the charterparty contained an English High Court jurisdiction clause.
This raised the question of law: does a provision that expressly purports to incorporate an arbitration clause from an underlying charterparty suffice to incorporate an English High Court jurisdiction clause?
It was not in dispute that special rules apply to the incorporation of charterparty arbitration and jurisdiction clauses into bills of lading. The Judge noted that if the charterparty had contained an arbitration clause (usual in the trade), then that would have been effectively incorporated into the bill of lading.
Notwithstanding the special rules about incorporation in this context, arrived at via a considerable body of judicial authority that has consistently resisted attempts to relax the strictness of these rules (with the aims of establishing clarity and preserving certainty), the Judge held that the express words of incorporation in the bill of lading were sufficient to incorporate the English High Court jurisdiction clause.
The Judge arrived at this conclusion by treating the question as one of construction rather than incorporation. He considered the “real question” to be “what the parties should reasonably be understood to have meant by the words “law and arbitration clause”, and that this question was to be answered objectively, having regard to the background circumstances, which the Judge held included the fact that the charterparty did not contain an arbitration clause, but did contain a law and jurisdiction clause.
This latter consideration loomed large in the Judge’s reasoning. He considered it preferable to construe the reference to “law and arbitration clause” in the bill of lading as referring to the English High Court jurisdiction clause (in the absence of any other candidate), rather than to adopt a construction that read “law and arbitration clause if any”. The Judge applied the purposive approach to construction of errors of language in contracts set out in Chartbrook Ltd v Persimmon Homes Ltd  UKHL 38.
The Judge did not consider that his approach or conclusion ran counter to the need for clarity and certainty. Whilst he conceded that a third party consignee would not be able to determine, without reference to the charterparty, in which forum he should bring his claim for breach of the bill of lading contract, he considered that this was equally the case with an incorporated arbitration clause, whose seat/procedure was only evident from the underlying charterparty clause.
The purposive approach to construction of the incorporation provision in the bill of lading adopted by the Judge is in line with prevailing attitudes to contractual construction. However, this raises the question whether that approach is appropriate in this particular context, where there is a body of authority that makes it clear that (i) such incorporation provisions must be specific to have effect (ii) certain standard form wordings (such as the Congenbill) have well-established meanings; and (iii) it is the words of the bill of lading which must be interpreted without reference to the charterparty.
The words “… Arbitration Clause” in the Congenbill form have received judicial attention and have been held to disclose an intention to incorporate a charterparty arbitration clause (see The Delos  1 Lloyd’s Rep. 703).
Further, the Commercial Court has previously made it clear that the onus is on the parties to the bill of lading to be astute to ensure that the wording of their contracts has the desired effect. Returning to The Siboti, in rejecting the implication that the court’s approach was hidebound, antiquated or over-technical, Gross J. commented:
“…there is nothing over-technical in requiring parties to a bill of lading who intend to incorporate a charter-party arbitration or jurisdiction clause to make that intention clear; moreover, it can be done very simply by explicit reference in the bill of lading incorporation wording” [@ 35]
He went on to suggest that in that case:
Had the original parties to the bill of lading intended to do so, they could very simply have put the matter beyond argument, by doing no more than adding to language of incorporation in the bill of lading the words ‘including the dispute resolution clause’… ” [@ 57]
This judicial recommendation has been adopted by the draftsmen of the CONGENBILL 2007, clause 1 of which provides:
“[A]ll terms and conditions, liberties and exceptions of the Charter Party, dated as overleaf, including the Law and Arbitration Clause/Dispute Resolution Clause, are herewith incorporated.” [emphasis supplied]
If the decision of the Judge in The Channel Ranger is indeed correct, then this catch-all amendment to the 1994 Congenbill form appears to have been superfluous.
Further, some may doubt whether the Judge was right to rule that there is no material difference between a consignee (i) being unaware of the forum/jurisdiction in which he would be required to bring a claim from the incorporating provision in the bill of lading (as in the instant case) and (ii) being unaware of the seat/procedure of any arbitration (in the usual case).
In the first example, the consignee is forced to adopt an entirely different method of dispute resolution to that indicated on the face of the bill of lading; one that is neither consensual nor confidential. It is far from clear that this is equivalent to being in the dark about the seat and procedure of any putative arbitration, particularly given that, as the Judge noted, the arbitration clause would have to be one which was usual in the trade.
The Judge granted an interim anti-suit injunction to restrain foreign proceedings found to be in breach of the English exclusive jurisdiction agreement. Doubtless alive to the difficulties which arise in treating “Arbitration Clause” as referring to an English jurisdiction agreement, the Judge granted permission to appeal the injunction. Whether the Court of Appeal will reverse the Judge and re-affirm the strict approach to construction of incorporating provisions in bills of lading is a matter which the market may await with interest.
Автор: Henry Ellis