Furthermore, the bills of lading incorporated MSC’s terms printed on the reverse. The front-facing page of the bills of lading referred to the terms on the reverse as well as to a larger, more accessible version on MSC’s website. The court held that reference to the location on the website alone was deemed sufficient. Thus, the bills of lading incorporated the jurisdiction clause.
Issue 2
Interglobal was bound by the terms via the application of the Carriage of Goods by Sea Act 1992 (“COGSA 1992”). They were subject to the same rights of suit and liabilities as if they had been a party to the original contract. The court gave three reasons, any one of which would suffice.
Firstly, all rights of suit under the contract vested in them as the consignee under s.2(1)(b).
Secondly, by taking delivery from the carrier, Interglobal were subject to the same liabilities under the contract, including the jurisdiction clause, under s.3(1)(a).
Thirdly, they were also subject to the same liabilities after making claims in Nigeria under the bills of lading and for breaches of the contracts of carriage thereunder, in accordance with s.3(1)(b). Adopting the position in The Berge Sisar [2002] 2 AC 205 per Lord Hobhouse and his own position in The Ulsoy-11 [2020] EWHC 3445 (Comm), Mr Justice Bryan confirmed that the effect of s.3(1)(a), (b) or (c) also extends to any jurisdiction or arbitration clauses.
Interglobal argued that they lacked notice because the scans of the bills of lading provided by the shippers omitted their reverse side, where the MSC Terms could be found. The court rejected this, confirming there is no requirement the consignee has specific notice of the terms of the original contract under s.2 and s.3 of COGSA. In any case, the court said that the references on the bills to the terms and conditions being available on MSC’s website with a URL would have put Interglobal on reasonable notice under the common law test (see Transformers & Rectifiers Ltd v Needs Ltd [2015] EWHC 269 (TCC)). Further, directing a party to standard terms found on a website constitutes sufficient notice, relying upon Parker-Brennan v Camelot UK Lotteries Ltd [2024] EWCA Civ 185.
Issue 3
All arguments submitted by Interglobal in this regard were rejected. Firstly, their reliance on the Nigerian Admiralty Jurisdiction Act 1991 was dismissed, as the court had to apply English conflict of law principles.
Secondly, their argument that Nigeria was the appropriate forum under the facts and circumstances of the case was dismissed. The question is what the parties agreed, not which forum is most appropriate, following the explanation of Lord Leggatt in UniCredit Bank GmbH v RusChemAlliance LLC [2024] 3 WLR 659.
Thirdly, MSC had not submitted to Nigerian jurisdiction as Interglobal alleged. The question of submission to foreign jurisdiction was held to be a question of English law. Under the Civil Jurisdiction and Judgments Act 1982, a party does not submit only by appearing in proceedings to obtain the release of property seized.
Finally, there was no failure by MSC to give full and frank disclosure when they applied for the ASI. Interglobal raised concerns here that were ultimately held to be immaterial. Some of these related to Nigerian law, which was deemed irrelevant.