Warehouse receipts held to evidence contractual terms as opposed to being mere receipts
The Facts
Aluminium ingots were shipped from Russia to Qingdao where they were stored in a bonded warehouse.
A Shanghai entity which leased space in the warehouse through a nominee issued two warehouse receipts in respect of the consignment of aluminium, ultimately, to the order of the bank which financed the transaction.
The ultimate purchaser / importer of the goods paid the bank which, in turn, endorsed the receipts in blank and delivered them to the purchaser. The warehouse receipts stated as follows:
“Herewith we undertake to deliver to you, against presentation of this original warehouse certificate, duly endorsed.
This warehouse certificate and all disputes arising from it shall be subject to the terms and conditions of Impala.
Received in apparent good order and condition, unless stated otherwise.
Issued to order of Rabonank International, Singapore branch … the goods are received and stored under the terms and conditions of Impala … posted on the official website of Impala at www.impalaterminals.com”
Conditions on the website included an English law and exclusive English jurisdiction clause.
There was also a limitation of liability clause.
The receipts were issued against the backdrop of an existing Collateral Management Agreement between the bankers, the purchasers and an affiliate of the Shanghai warehouse based in the UK. It was envisaged that the UK warehouse would appoint the Shanghai warehouse as its agent. The CMS contained a Singapore law and jurisdiction clause.
Having obtained the receipts, the purchasers / importers instituted action in the Shanghai No. 1 Intermediate People’s Court against the Shanghai warehouse seeking delivery of the consignment of aluminium ingots.
Based on the English law and jurisdiction clause, the importers obtained an interim anti-suit injunction which led to an expedited hearing for a final injunction.
Importers raised three defences: (a) that the warehouse receipts were mere receipts and did not give rise to a contract between the holders and the warehouse; (b) that the contract between the warehouse and the importers, such as it was, was governed by the terms of the CMA including the Singapore exclusive jurisdiction clause, and (c) that in any event the injunction should not be granted because a UK judgment would not be enforced in Shanghai.
Findings
Blair J accepted evidence that the warehouse would not release the goods without presentation of the original certificates. This, in effect gave the holder a right to possession of the goods.
In addition, there was no reason not to regard the terms recorded on the receipts as governing the relations between the holder of the receipts and the warehouse. On this basis, the operative contracts were the receipts and not the CMA.
Blair J accepted that the ineffectiveness of a UK judgment was a disincentive to grant injunctive relief but this was overcome by the warehouse’s offer to settle the dispute by arbitration, it being accepted that an arbitral award could be enforced in Shanghai. This offer was refused by the importers.
In the event, Blair J granted the injunction.
Commentary
The outcome seems right.
The motive for bringing proceedings in Shanghai was to evade the effect of the limitation of liability clause which, it was considered, would not be enforced in Shanghai.
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