Key takeaways
Defendant absent from trial
Where defendant voluntarily declines to attend, trial will go ahead.
Breach of exclusive jurisdiction clause
English Court will grant anti-suit injunction.
Costs of foreign proceedings
Recoverable where those proceedings breach exclusive jurisdiction clause.
The Commercial Court decision in the MAERSK SEOUL is one of the more significant dangerous goods cases to reach the English courts in recent years.
Although the casualty itself occurred more than a decade ago, the judgment provides a helpful, detailed examination of a shipper’s contractual and common law obligations when dangerous goods cause catastrophic damage.
Running to more than fifty pages, the judgment addresses issues ranging from the incorporation of standard liner term and the application of Article IV Rule 6 of the Hague Rules to the evidential burden of proving causation following a major container ship fire. It also contains an important discussion on anti-suit injunctions where a party seeks to circumvent an exclusive English jurisdiction clause.
The background facts
In July 2015, Sree Rayalaseema Hi-Strength Hypo Limited (SRHHL) shipped five containers of calcium hypochlorite, three of which were ultimately carried on m/v MAERSK SEOUL (the Vessel), of which Maersk A/S (Maersk) were disponent owners. During the Vessel’s voyage from India to Algeria, there was a fire onboard, which resulted in a salvage operation, with the Vessel and its cargo suffering damage.
Evidence from the crew suggested the cause of the fire was the violent decomposition of the calcium hypochlorite, which is a self-heating substance. When the fire was discovered, the crew detected a chlorine smell on deck and noted that the doors to one of the containers in which SRHHL had shipped the calcium hypochlorite were open, with flames emanating from within.
If calcium hypochlorite is packed so that heat can escape to the environment, only mild heating typically occurs from its decomposition. However, where the heat cannot escape effectively, the heating process can produce a significant temperature rise, which in turn accelerates the rate of reaction and the rate of heating. In those circumstances, it is possible that the heating process can effectively run away, leading to the violent decomposition, and rapid burning of any nearby combustible materials.
The assessment that the violent decomposition of SRHHL’s calcium hypochlorite was the likely source of the fire was underlined when other containers of cargo that SRHHL had shipped with Maersk at the same time were removed to shore and cross-stuffed into reefer containers. During that exercise, heat damage was noted inside one container, and before the doors could be closed on one of the cross-stuffed containers, there was a violent decomposition and a further fire.
In addition, during the cross-stuffing exercise, the manner in which the containers were packed was noted as being insufficient in terms of allowing airflow, and contrary to the IMDG Code.
Maersk’s claim
As a result of the fire onboard the vessel, Maersk claimed losses of around USD13.2m, made up of:
payments to head owners for repairs to the vessel
payments to salvors for the salvage operation
cargo claims made up of particular average and salvage indemnity claims and
other miscellaneous costs and expenses.
In 2021, Maersk commenced proceedings against SRHHL to recover those losses in the English Court, in line with an exclusive jurisdiction clause in the contracts of carriage, which in their view governed the dispute. However, SRHHL chose not to participate in the eventual trial, on the basis, it argued, that the dispute should be litigated in India.
Proceedings in rival forums
Although Maersk issued the English High Court proceedings in June 2021, and emailed the claim form to SRHHL in March 2022, there were extensive delays in serving the claim form in line with the Hague service convention, and that was not completed until 12 January 2024.
However, before the High Court proceedings had been served, SRHHL brought a civil suit in the Kurnool Court in India (first Kurnool proceedings) against Maersk seeking a permanent injunction restraining Maersk from initiating proceedings or pursuing any further action before the English Court. That anti-suit injunction (ASI) order was granted in March 2023 and SRHHL advised Maersk of it in August 2023.
Shortly thereafter, Maersk made an application to the Andhra Pradesh High Court (APHC) to suspend the ASI, which on 3 November 2023 was granted for an initial period of four weeks, and which was subsequently extended by consent. Concurrently, Maersk also issued an urgent, without notice application before the English Court for an interim ASI restraining SRHHL from pursuing the first Kurnool proceedings. That application was granted on 9 November 2023. A further interim ASI, preventing SRHHL from commencing or pursuing any claims other than in the English Court, and restraining SRHHL from appealing the order of APHC, was granted on 19 February 2024.
While SRHHL initially complied with the February 2024 English court order and withdrew the first Kurnool proceedings, they subsequently raised second and third sets of proceedings in Kurnool in June 2024 and February 2025 respectively. In April 2025, they also raised proceedings in APHC to reinstate the first Kurnool proceedings, which they had withdrawn following the February 2024 English court order. While that appeal was dismissed in June 2025, SRHHL made an application later that month to Kurnool Court to restore the previously abandoned 2023 Kurnool ASI proceedings, which was opposed by Maersk, but granted by the Court in March 2026.
Maersk contended that the pursuit of proceedings in India was a breach of the exclusive jurisdiction agreement in their contracts of carriage.
The Commercial Court decision
The trial issues
Despite the competing proceedings in India, Maersk continued with the English Court proceedings. SRHHL chose not to participate in those proceedings, despite being aware of them and advised of the trial date. SRHHL did not file an acknowledgement of service, nor any defence or evidence, taking the position that the dispute should be litigated in India.
Notwithstanding the fact that SRHHL chose not to participate, the trial went ahead after the Court was persuaded that it was appropriate to do so. This meant that, among other requirements, Maersk’s lawyers were responsible for drawing to the Court’s attention points that had been made on behalf of the non-attending defendant and to points which may be of benefit to the defendant.
Fifteen issues were identified for determination by the Court at trial, including, among others: whether contracts of carriage were concluded and, if so, their terms, the cause of the incident, whether SRHHL acted in breach of its duty, and whether SRHHL had breached the exclusive English jurisdiction agreement.
The Court also considered whether SRHHL’s pursuit of proceedings in India was in breach of the contractual terms, whether Maersk were entitled to be indemnified in relation to any loss or damage they sustained as a result of those breaches (including costs related to the Indian proceedings), and, whether a final ASI should be issued prohibiting SRHHL from commencing or pursuing any claims arising under the contracts of carriage other than in the English Court.
The contract of carriage
The existence of a contract of carriage, and the terms of any such contract, was key to the determination of a number of the identified issues. Maersk’s case was that Safmarine terms were incorporated by notice, course of dealing or common understanding, but SRHHL disputed that they had been incorporated. Safmarine terms provide that bills of lading are governed by and construed in accordance with English law.
The Court found that, on the evidence, the Safmarine terms had been incorporated, at least by way of notice. This finding meant that the other aspects for determination fell to be determined in line with the terms of the Safmarine terms and under English law.
Applying the Safmarine terms to the issues for determination, the Court found that the containers were stuffed by SRHHL, the cause of the incident was the violent decomposition of the cargo and the cause of that was that SRHHL had not stuffed the cargo into containers in accordance with the IMDG code. This also led to a finding that SRHHL acted in breach of its duty at common law to take reasonable care when it packed and shipped the cargo in failing to ensure that it was fit for transportation by sea and avoid causing damage to property such as the Vessel and other containers and cargo on board the Vessel.
The Court also found that Maersk were entitled to recover the losses they had claimed, in the sum of roughly USD13.2m.
English -v- Indian proceedings
The finding that SRHHL and Maersk had concluded contracts of carriage incorporating Safmarine terms was also significant in relation to the determination of whether the Indian proceedings brought by SRHHL were a breach of the exclusive English jurisdiction agreement, and thus whether Maersk were entitled to an award of damages for the costs they incurred in respect of those proceedings, an indemnity in relation to any future costs they incur in respect of those proceedings, and a permanent ASI preventing the conduct and continuance of Indian proceedings.
Clause 26 of the Safmarine terms states: ‘…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.’
The Court had no hesitation in holding that the Indian proceedings were breaches of the exclusive jurisdiction clause, meaning that Maersk were also entitled to recover all losses arising from that breach, in line with the well-established position under English law.
The Court also determined that Maersk were entitled to an indemnity in respect of any additional costs it incurred in respect of the Indian proceedings, and injunctive relief in mandatory terms restraining the conduct and continuance of the Indian proceedings.
Comment
While the facts of the incident and the dispute around causation may not have been particularly unusual, the manner in which the litigation progressed certainly was. SRHHL’s eventual refusal to participate in the English proceedings, despite initially engaging with them, while also bringing parallel proceedings in an alternative jurisdiction, is unusual enough. However, in this instance, SRHHL also discontinued one set of those parallel proceedings based, it would seem, on an order made by the English Court, but then performed a volte face and refused to engage. All things considered, this was far from a typical litigation.
The approach taken by the English Court in hearing the claim in these circumstances was, in our assessment, to be commended. In the situation, as here, where the defendant is aware of the trial date and has been given sufficient notice and opportunity to attend the trial but chooses not to, we do not consider that it is in the interests of either justice or other court users for the Court not to hear the claim. As was neatly demonstrated here, sufficient safeguards can be put in place by the Court to ensure the claim is fairly heard and a reasoned determination made with, in this instance, the claimant presenting its case on the evidence adduced, while also making clear to the Court points that have been made by the non-participating party, and any points which might be to the benefit of the non-participating party.
Where parties contractually agree to an exclusive law and jurisdiction, any disputes arising thereunder should be settled under the agreed law in the agreed forum. Certainty is one of the key purposes of contracting, and a situation where an exclusive jurisdiction agreement could be usurped by one of the contracting parties simply choosing to ignore it, and raising proceedings in another jurisdiction, would significantly damage that, and be detrimental generally to the ability of the courts to resolve disputes.
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This article was co-authored by Senior Associate, Lewis McDonald.
