RIMPACIFIC NAVIGATION INC V DAEHAN SHIPBUILDING CO LTD (THE "MV JIN MAN" AND THE "MV JIN PU")

[2009] EWHC 2941 (Comm), Queen's Bench Division, Commercial Court, Mr Justice David Steel, 24 November 2009

Shipping - Jurisdiction - Anti-suit injunction - Letters of guarantee contained law and jurisdiction clause - Defendants contended that letters not binding - Whether jurisdiction of English court to be determined with reference to the jurisdiction clause or to the letter of guarantee - Whether the concept of separability applicable in case of exclusive court jurisdiction clauses - Civil Procedure Rules

The claimant owners had chartered out two vessels under charterparties on mostly identical terms. The defendant under both of the joined suits was the guarantor under those charterparties. The guarantees were signed by a Mr Oh, identified as the "CEO/President", and bore an official stamp. There was an English law and exclusive jurisdiction clause. The charterers failed to pay hire. The claimants terminated the charterparties and proceeded to obtain arbitration awards in respect of the hire. The defendants in turn commenced an action for non-liability before the South Korean courts. This was the court's decision on the jurisdiction issues. David Steel J rejected the defendant's challenge to the jurisdiction of the court. The first issue was whether the claimant had a good arguable case that there was jurisdiction under CPR 6 and PD 3.1. This depended on the question of separability. The judge preferred the argument of the defendant, declining to draw an analogy with Fiona Trust& Holdings v Privalov [2008] 1 Lloyd's Rep 254, so that the law and jurisdiction clause was not separable. CPR 6 and PD 3.1 provided for service out where a claim was made in respect of a contract (here, the guarantee), where the contract was governed by English law or contained an English jurisdiction clause. It followed that a good arguable case must be made out that a contract existed; it was not enough to show that, if the contract existed, it would arguably contain a law and jurisdiction clause.  The claimants did have a good arguable case to that effect. Indeed, their case was strong enough to allow the judge to grant the anti-suit injunction against the defendant's proceedings in Korea.