Jurisdiction at sea: Lessons from Rubymar, Grey Fox and Cecilia B

Introduction

Jurisdiction clauses are a cornerstone of international shipping and marine insurance contracts. They provide commercial certainty and predictability for parties who are in dispute but operate in different jurisdictions. The treatment of such clauses – especially when they are asymmetrical or non-exclusive – can differ markedly between legal systems. Recent decisions in both England and South Africa have brought these differences into sharp focus, with significant implications for cargo interests, insurers, and carriers alike.

This article explores the 2025 English Commercial Court’s decision in Berytus Insurance & Reinsurance v Golden Adventure Shipping (the Rubymar case), and contrasts it with the evolving South African approach, as exemplified by the Grey Fox and Cecilia B judgments. The result is a nuanced picture of how jurisdiction clauses are interpreted and enforced, and where statutory and judicial intervention may override party autonomy.

The English approach: Rubymar and the sanctity of contract

In Rubymar, the English Commercial Court was asked to interpret a marine insurance policy that contained an asymmetrical jurisdiction clause: the assured could only sue in Cyprus, while the insurers could sue in any country that either had, or claimed, jurisdiction. The assured argued that the Hague Convention on Choice of Court Agreements required the dispute to be heard exclusively in Cyprus, or, failing that, that English law should treat Cyprus as the proper forum.

The court rejected both arguments. It held that the clause was not exclusive, explicitly permitting the insurers to sue elsewhere and that the Hague Convention did not apply to non-exclusive or asymmetrical clauses. English law, the court confirmed, will generally uphold the parties’ contractual allocation of jurisdiction, including waivers of forum non conveniens, unless there are compelling reasons to do otherwise. Forum non conveniens translates to an inconvenient or inappropriate forum and refers to the discretionary power of a court to decline jurisdiction over a case, even if it could technically hear it. The risk of parallel proceedings, the court held, is inherent in non-exclusive jurisdiction clauses and does not justify a stay.

The Rubymar judgment thus reinforces the English courts’ respect for contractual autonomy, even where this may result in parallel litigation or apparent procedural imbalance. The English courts frequently find reasons to preserve their jurisdiction over international disputes where possible.

The South African position: Statutory override and judicial pragmatism

South African law, while also recognising the importance of contractual certainty, has developed a more interventionist approach – particularly where local interests are at stake or where statutory provisions apply.

Jurisdiction clauses: General principles

South African courts generally uphold jurisdiction clauses, provided they are clear and not contrary to public policy. Both exclusive and non-exclusive clauses are recognised:

• Exclusive clauses: Usually enforced unless enforcement would be unjust or against public policy. The courts retain a residual discretion to refuse enforcement in exceptional circumstances.
• Non-Exclusive clauses: The courts retain discretion to hear matters if they have jurisdiction, even if another forum is available. The existence of a non-exclusive clause does not oust the jurisdiction of the South African courts, but may be a factor in the exercise of their discretion.

In the case of an asymmetrical, non-exclusive jurisdiction clause like that in Rubymar, South African courts would likely uphold the clause, provided it was clear and not contrary to public policy. However, South African courts are more willing than their English counterparts to intervene where justice or public policy so requires.

Statutory override: The Grey Fox Judgment

A critical and recent development under South African law is the statutory override provided by section 3(1) of the Carriage of Goods by Sea Act of 1986 (COGSA). In the Grey Fox judgment (2025), the Western Cape High Court held that:

• Section 3(1) of COGSA allows local cargo interests (such as consignees or holders of bills of lading for goods destined for South Africa) to bring claims in South African courts, despite any exclusive foreign jurisdiction clause in the bill of lading.
• This provision is a deliberate, parochial protection for local interests, unique to South African law and not mirrored in English law.
• The court rejected the pre-existing view that section 3 merely preserves existing jurisdiction, finding instead that it creates an additional, statutory right for local cargo interests to sue in South Africa, even where the contract stipulates exclusive foreign jurisdiction.
• The court also recognised the lack of bargaining power for local cargo interests, who are typically presented with standard form contracts drafted by carriers.

The upshot is that the statutory right under COGSA trumps contractual ouster clauses, conferring a direct right to sue locally, regardless of the contract terms.

Joinder and arbitration: The Cecilia B Judgment

In Atakas Ticaret VE Nakliyat AS v Glencore International AG (the Cecilia B judgment), the South African Supreme Court of Appeal in 2019 addressed the interplay between arbitration clauses and the court’s discretion to permit joinder under the Admiralty Jurisdiction Regulation Act, 1983 (AJRA):

• The court held that the South African International Arbitration Act, 2017 does not oust the court’s discretion under section 5(1) of the AJRA to permit or refuse joinder, even where there is an exclusive arbitration clause.
• The court emphasised the importance of avoiding multiple proceedings and ensuring that all relevant parties are before the court, even if this means overriding an exclusive jurisdiction or arbitration clause.
• The court was clear that the statutory powers under the AJRA are not impliedly repealed nor restricted by the International Arbitration Act, and that the court retains a pragmatic discretion to ensure the just and convenient resolution of disputes.

The Cecilia B is highly relevant to the discussion of judicial discretion and the pragmatic approach of South African courts to jurisdiction and arbitration clauses. Its principles continue to inform the courts’ willingness to override contractual arrangements in the interests of justice, convenience, and the avoidance of multiplicity of proceedings.

Pragmatism and discretion in South African Courts

Both Cecilia B and Grey Fox demonstrate a pragmatic approach by South African courts. While contractual autonomy is respected, the courts are willing to override jurisdiction clauses where necessary to avoid multiple proceedings, ensure all relevant parties (including foreign litigants) are before the court, or protect local interests. This is a marked contrast to the approach in English law, as seen in Rubymar, where the courts are generally reluctant to override clear jurisdiction clauses absent compelling reasons.

Hague Convention and Forum Non Conveniens

South Africa is not a party to the Hague Convention on Choice of Court Agreements. Thus, the Convention does not apply, and the enforceability of jurisdiction clauses is determined by South African common law and statutory provisions.

South African courts have a doctrine similar to forum non conveniens, allowing Courts to decline jurisdiction if another forum is clearly more appropriate. However, where parties have agreed to a jurisdiction and waived forum non conveniens objections, the courts would be slow to override that agreement unless there are compelling reasons. The risk of parallel proceedings is recognised but, as in Rubymar, may not in itself be a sufficient reason to stay proceedings if the parties have contractually accepted this risk.

Statutory uniqueness and local focus

The statutory override for inbound cargo claims under COGSA is a uniquely South African feature, deliberately designed to preserve and, according to the Grey Fox judgment, protect local cargo interests. This parochial approach is not found in English law and represents a divergence between the two jurisdictions. The Grey Fox judgment is presently binding, but its future is uncertain pending the outcome of an application for leave to appeal. If Grey Fox is not overturned, it will remain a significant authority for local cargo interests, confirming that section 3(1) of COGSA provides a direct statutory right to sue in South Africa, overriding exclusive foreign jurisdiction clauses in bills of lading for inbound cargo. Until overturned, Grey Fox must be considered a major factor in any analysis of jurisdiction clauses in South African maritime law.

Conclusion: Key contrasts and practical implications

The Rubymar judgment exemplifies the English courts’ practice of upholding clear jurisdiction clauses, including asymmetrical and non-exclusive ones, and respecting party autonomy, with limited exceptions. In contrast, the South African position – through both statutory override (Grey Fox) and judicial discretion (Cecilia B) – is more interventionist and willing to set aside such clauses in the interests of local protection and judicial convenience.

Final thoughts

For those involved in international shipping, marine insurance, or the carriage of goods by sea, the message is clear: while both English and South African law respect contractual jurisdiction clauses, South African law is more willing to set aside such clauses in the interests of local protection and judicial convenience. This marks a significant divergence from the English position as seen in Rubymar. Parties should be acutely aware of these differences when drafting, negotiating, or litigating jurisdiction clauses in cross-border maritime contracts.