In Starlight Shipping Co and another v Ta Ping Insurance Co Ltd and another – Butterworths Law Direct 1.8.07 the Claimants were, respectively, the owners and managers of the vessel 'Alexandros T'. The vessel was chartered by the owners to Transfield ER Cape Ltd for a voyage from Brazil to China with a cargo of iron ore. The terms of the charter included an English law and arbitration clause. The bill of lading expressly stated that it incorporated all terms of the charterparty including law and arbitration clauses. When the vessel was lost together with her cargo, the first Defendant, which was alleged to be insurer of the cargo owners, obtained an award from the Wuhan Maritime Court against both the owners and Transfield, naming the cargo owners as third party. The award froze the 'credits' that had become due from the cargo owners to Transfield under the voyage sub-charter and from Transfield to the owners under the head charter. The owners and Transfield were also ordered to provide security in the sum of $US5.25m to the court. Subsequently the insurers began proceedings in Wuhan claiming $US5.25m by way of damages from the owners and managers. It also claimed against Transfield as head charterers. The cargo owners and insurers began arbitration under the bill of lading clause, and objected to the jurisdiction of the Wuhan court. The Claimants sought an interim anti-suit injunction restraining the Defendants from taking any steps in respect of the Chinese proceedings.
The Commercial Court held that while it proceeded with the utmost respect for any foreign court and the exercise of its jurisdiction, questions of comity played a small role where a party had agreed to the jurisdiction of a particular court or to arbitration. An injunction would not in any way be an attack on the courts of another country or a breach of international comity, it was merely restraining a party to a contract from doing something which he had promised not to. The owners were therefore entitled to an interim injunction, on condition that they put up security for costs equivalent to that in the Chinese proceedings, once that security had been released.