Teva (Canada) Ltd v Panalpina World Transport (Ireland) Ltd
| Jurisdiction | Ireland |
| Judge | Ms. Justice Niamh Hyland |
| Judgment Date | 30 April 2021 |
| Neutral Citation | [2021] IEHC 304 |
| Court | High Court |
| Docket Number | RECORD NO. 2018/10961 P |
[2021] IEHC 304
RECORD NO. 2018/10961 P
THE HIGH COURT
JUDGMENT of Ms. Justice Niamh Hyland delivered on 30 April 2021
This is a motion brought by the defendant seeking an order pursuant to the inherent jurisdiction of the court declining jurisdiction to hear and determine this action in favour of the courts of the Hong Kong Special Administrative Region. Alternatively, an order is sought striking out the proceedings for want of jurisdiction. It was explained at the hearing that the second relief was based on the argument that the proceedings fail to disclose a cause of action.
In short, I conclude that the sea waybill at issue in this case, which contains an exclusive jurisdiction clause in favour of the courts of the Hong Kong Special Administrative Region, is very strong evidence of the contractual terms agreed between the parties. In circumstances where the waybill itself identifies that the shipper accepts and agrees to all the terms of the waybill, where no issue was raised by the plaintiff on receipt of the waybill and where no other contract has been put forward by the plaintiff, I find that the terms identified in the waybill constitute the contract between the parties.
The rules on specific notification of an exclusive jurisdiction clause identified at Article 25 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast)(“Recast Brussels Regulation”) do not apply here, as the clause confers jurisdiction on a non-EU state and therefore does not come within Article 25. The exclusive jurisdiction clause displaces the normal obligation under the Regulation to sue the defendant in its place of domicile.
Finally, I refuse the plaintiff's application that the Irish courts should hear and determine these proceedings despite the exclusive jurisdiction clause, on the ground that Ireland is the forums conveniens. For the reasons I explain below, I am not satisfied there is a close connection between the proceedings and Ireland or that the plaintiff has shown cause as to why the proceedings should be heard in Ireland.
The relevant actors in this case span three continents. The claim relates to the carriage and or storage of a consignment of 19 pallets of Novo Salbutamol, a pharmaceutical product. The product was shipped from the port of Cork to the port of Montréal in November/December 2017 with the place of delivery to be Toronto. The plaintiff alleges that during the journey the product was exposed to temperatures outside the acceptable range due to failings on the part of the defendant.
The plaintiff is a large pharmaceutical company that is incorporated in Toronto. It is described as the consignee on the waybill. The shipper identified on the waybill is a related company, Ivax Pharmaceuticals Ireland. The carrier is identified as Pantainer (HK) Ltd incorporated in Hong Kong. On the face of the waybill the defendant is identified as an agent for Pantainer (HK) Ltd. The ship owner is Mediterranean Shipping Co. Ltd, a company incorporated in Switzerland.
It has not been explained in these proceedings how a contractual nexus exists as between the plaintiff, Teva Canada Ltd., and the defendant since Ivax Pharmaceuticals Ireland is the shipper, and Teva is the consignee. Generally, it is the shipper and not the consignee who contracts with the carrier for the transportation service although there are exceptions to this. However, a term on the face of the waybill identifies that it is the shipper that is the contracting party, albeit for itself and on behalf of the consignee. Equally it is unclear to me why the disclosed agent – Panalpina World Transport Ltd. — for the carrier, Pantainer (H.K.) Ltd (a company incorporated in Hong Kong) has been identified as the defendant rather than the carrier itself.
In short, a contract of carriage is normally between the shipper and the carrier, yet neither of those parties are named in the proceedings.
Turning to the nature of the claim made by the plaintiff, the endorsement of claim in the plenary summons pleads that the plaintiff's claim is for damages for breach of contract and/or negligence and/or breach of duty (including breach of duty as bailee) of the defendant in or about the carriage/storage of the pharmaceutical goods which were shipped by sea under bill of lading MSCUCK304354 from Cork to Toronto. No statement of claim has been filed by the plaintiff. It was explained by counsel that it was not proposed to file a statement of claim until this motion was decided, as if the motion was decided against the plaintiff the statement of claim would be “moot”. That seems to be an undesirable economy: in a jurisdiction motion, the court must arrive at a decision based on the material before it. The absence of a statement of claim or any exhibits to the affidavit of Ms. Noble evidencing the contract meant that I had to proceed largely on the material put forward by the defendant.
In short, the defendant asserts that the contract between the parties, as evidenced by waybill number SNN318158, contains an exclusive jurisdiction clause granting jurisdiction to the courts of Hong Kong Special Administrative Region. On that basis, it requests this court to decline jurisdiction.
The plaintiff asserts that the terms identified in waybill SNN318158 cannot be part of the contract between the parties, given that the waybill was uploaded only on 4 December 2017, a day after the ship sailed and that it was not provided to the plaintiff when it concluded the contract with the defendant on or before 23 November 2017.
Importantly, although the plaintiff argues that the waybill does not contain the contractual terms, it does not identify any contractual terms or any contract between the parties, despite referring to a bill of lading in the endorsement of claim. However, neither in the pre-motion correspondence between solicitors, nor in the replying affidavits sworn by Helen Noble, solicitor and SC, of 10 September 2019 and 10 September 2020, nor in written or oral submissions was there ever any further reference to that bill of lading and it was never produced. On enquiry from me as to what contractual terms the plaintiff argued for, it was explained by counsel that there was no obligation on the plaintiff to specify the contract between the parties and that the defendant bore the burden of proof in relation to its application to invite the court to decline jurisdiction. A similar approach was taken in the affidavits and correspondence by Ms. Noble. It is certainly correct that the defendant bears the burden of proof in this motion, at least up to the point it establishes the existence of an exclusive jurisdiction clause, at which point the burden shifts if the plaintiff wishes to persuade me to allow the proceedings to be heard in Ireland.
However, to determine the motion, I must take a view as to the applicable contractual terms governing the relationship between the parties. In the affidavit of Ms Noble, solicitor for the plaintiff, Senior Counsel, she refers to the plaintiff's “pleaded” case by which I take to mean the bill of lading identified in the endorsement of claim. At paragraph 58 of the legal submissions filed on behalf of the plaintiff, it is stated that there are multiple competing terms in the various documents applicable to the journey the subject of these proceedings. But the plaintiff has comprehensively failed to identify any competing term or competing contract.
The plaintiff makes an alternative argument to the effect that, if the exclusive jurisdiction clause is part of the contract, I should nonetheless exercise my discretion and refuse to stay the proceedings in Ireland on the basis that Ireland is the forum conveniens for these proceedings, laying particular emphasis on the fact that the defendant is domiciled here.
In this case, the waybill, after identifying certain conditions referable to the face of the waybill, contains the following words:
“… subject to the terms and conditions hereof INCLUDING THE TERMS AND CONDITIONS CONTAINED IN THE REVERSE SIDE HEREOF AND THE TERMS AND CONDITIONS OF THE CARRIER'S APPLICABLE TARIFFS. The Shipper (for itself and on behalf of the Consignee and the other Merchants and warrants that it has authority to do so) hereby expressly accepts and agrees to all of the terms and conditions of this waybill, whether printed, written or otherwise incorporated notwithstanding the non-signing of the Waybill by the Shipper. Merchant's attention is drawn to the fact that the terms and conditions of this Waybill CONTAIN PROVISIONS EXEMPTING OR LIMITING CARRIER FROM LIABILITIES OR REQUIRING MERCHANT TO PROVIDE INDEMNITIES IN CERTAIN CIRCUMSTANCES”.
The exclusive jurisdiction clause, which is on the reverse side of the waybill, is in the following terms:
“28.2 All claims, suits, proceedings or disputes howsoever arising in connection with or arising out of this Waybill and/or the contract contained in and/or evidenced by this Waybill against Carrier shall be determined exclusively by the Court of the Hong Kong Special Administrative Region to which jurisdiction Merchant irrevocably submits”.
In the affidavit grounding the motion of 27 June 2019, Mr Doherty, business unit manager of the defendant, avers that the waybill including the terms and conditions on the back of same, was uploaded by the defendant to an information and document sharing system in operation between the parties known as the TIS (Teva information system) on 4 December 2017 at...
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