Adolf Warski, The (Sniadecki)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CAIRNS,LORD JUSTICE STEPHENSON,SIR GORDON WILLMER |
| Judgment Date | 25 March 1976 |
| Judgment citation (vLex) | [1976] EWCA Civ J0325-2 |
| Date | 25 March 1976 |
| Court | Court of Appeal (Civil Division) |
[1976] EWCA Civ J0325-2
In The Supreme Court of Judicature
Court of Appeal
(Appeal of Defendants from Order of Mr. Justice Brandon, London, July 31, 1975.)
Lord Justice Cairns
Lord Justice Stephenson (Not present)
Sir Gordon Willmer
MR. C. STAUGHTON. Q. C, and MR. J. GILMAN. (Instructed by Messrs. Holman "appeared on behalf of the Appellants (Defendants)
MR. J. HOBHOUSE. Q. C. and MR. A. LONGMORE. (instructed by Messrs. Clyde & Co.) appeared on behalf of the Respondents (Plaintiffs).
These two appeals (which in effect can be treated as one) are from orders made by Mr. Justice Brandon refusing to stay two Admiralty actions in rem. The Sniadecki and the "Adolf Warski" are both Polish ships with the same owners and both actions are for damage to cargo carried by the "Sniadecki" on a voyage from South American ports to Swansea. The plaintiffs in one action are two Chilean companies as shippers and three English companies as receivers and in the other a Chilean and a Peruvian company as shippers and two English companies as receivers. The cargoes consisted of onions and melons, which are alleged to have deteriorated seriously on the voyage. Two forms of bill of lading were used, one for shipment from Callao and the other for shipment from Valparaiso, the former providing for disputes to be decided in Poland in accordance with Polish law and the latter for disputes to be so decided at the option of the carriers. In both actions the defendants applied to stay the proceedings by reason of the Jurisdiction clause. The judge heard the two applications together and his judgment dealt with both in the same way.
In his judgment the judge set out eight matters of common ground as follows: "The following matters were common ground. First, that the proper law of the contracts of carriage contained in or evidenced by the bills of lading was Polish law. Second, that all the contracts were subject, in effect, to the Hague Rules; either, in the case of the Callao cargo, because such rules were applicable under Peruvian law, and were therefore incorporated by the clause paramount: or, in the case of the Valparaiso cargo, because Polish law applied, and such law gave substantial effect to such rules. Third, that the plaintiff had, before beginning their actions here,asked the Defendants to waive their rights under the Polish Jurisdiction clauses, and to agree to claims being brought in England, but the defendants had refused to do so. Fourth, that the Defendants, by such refusal or otherwise, had effectively exercised, in good time before the actions here were begun the option given to them by Clause a of the Valparaiso bills of lading to have the claims settled in Poland according to Polish law. Fifth, that, because the contracts of carriage were subject either to the Hague Rules, including Article III (6), by express incorporation, or to various provisions of the Polish Maritime Code, including Article 99, having a similar effect, the Plaintiffs claims became time-barred by prescription at the end of one year from the date of discharge. Sixth, that the actions here were began shortly before the expiry of that period of one year, and were therefore in time. Seventh, that the Plaintiffs had asked the Defendants, before the period of one year expired, to extend the time for beginning proceedings in Poland, but the Defendants had refused to do so. Eighth, that, despite such refusal, none of the Plaintiffs had begun proceedings against the Defendants in Poland within the period of one year, and in consequence of this all claims by them in that country were now time-barred under Polish law".
There was an Issue as to whether the limitation period in Polish law could be extended by agreement, but the point was of no materiality because it was stated on behalf of the defendants that they would not be willing to extend the time if they could: they would rely on the time bar as a defence in Poland if proceedings were brought there. At a very late stage in the hearing of the appeal counsel for the defendants sought to say that the defendantswould now be willing to extend the time if they could. We were of opinion that this change of mind came too late for us to take it into account.
No question arises as to a stay depriving the plaintiffs of security for their claims because security has been provided to cover the claims wherever Judgment is obtained.
There was no issue as to the court's Jurisdiction to grant a stay, the only question being whether the court's discretion should be exercised in favour of granting it.
The judge first considered the matter without reference to the time bar.
As grounds for refusing a stay the plaintiffs relied on their connection with England, the receivers being English companies on most of the evidence being more readily available in England) and on the possible political difficulty of getting witnesses from Chile admitted to Poland.
The defendants, in addition to relying on the general rule that a party should be held to his contract unless there are strong reasons to justify departing from it, relied on the carrying ship being a Polish ship; on the avoidance of multiplicity of proceedings in different countries by different cargo owners; on the desirability of having the proceedings in the country whose law is to be applied; and on the need to call Polish witnesses.
The Judge was not satisfied that there was any factor in favour of the plaintiffs arising from their connection with England as against the defendants connection with Poland. He considered that the jurisdiction clauses were reasonable, but that this did not mean that it would be right to enforce them irrespective of thecircumstances. As to multiplicity, he saw no risk of it in this case. There was no evidence of any difference between the English and Polish law, and nothing to show that an English court would have difficulty in applying Polish law. He considered that evidence was the most important factor in the case, and as the damaged goods were surveyed on both sides by English surveyors, and both sides had consulted English experts (plant pathologists from English universities) it would be difficult to put the evidence in a satisfactory form before a Polish court. He attached some, but not great, weight to possible difficulties in calling Chilean witnesses. He took account of the principles on which he had decided the "Makefjell". where he had granted a stay, but he pointed out that each case must be decided on its own facts. Apart from the question of the Polish time bar, he considered that in this case there was a strong balance of argument in favour of trial in England.
On the time bar, the judge considered that there were three possible views: (1) that it was a factor favour of a stay, since refusal of a stay would deprive the defendants of their accrued; defence in Poland; (2) that it was a factor against a stay, since granting a stay would defeat the plaintiffs claims altogether; (3) that it was neutral since (1) and (2) could be balanced against each Other.
Counsel for the plaintiffs argued for the second view; counsel for the defendants was content to argue for the third.
The argument of counsel for the defendants was that the plaintiffs could have protected themselves by beginning concurrent proceedings in Poland and, if the other features of the case justified a stay, the plaintiffs having failed to take this precaution.the time bar should be ignored. This was not a case where the limitation period in the foreign country was shorter than in England, so it could not be said that proceedings in Poland would have had to be taken within an unreasonably short time.
The argument of counsel for the plaintiffs was that it would have been wrong to incur the expense of proceedings in Poland in order to keep the claim alive there when they reasonably believed that proceedings in England would not be stayed.
The judge pointed out that there were conflicting policies underlying views (1) and (2) and said that the English authorities tended to give more weight to the undesirability of allowing a party who has agreed to a foreign forum to evade his obligations by beginning his action in England in time and allowing time to run out in the foreign forum (view (1)); while authorities in the United States appeared to give more weight to the undesirability of allowing a jurisdiction clause to prevent a claim from being decided on its merits at all (view (2))o
The judge expressed a preference for the American opinion and did not consider that he was compelled by the English authorities to reject it. It was not, however, necessary to decide between views (1) and (2) because counsel for the defendants had relied only on view (3), and since he, the judge, was of opinion that a stay should be refused If the time bar was left out of account, the same result would follow whether view ( 1) or (3) was taken about the time bar.
The judge therefore refused a stay and the defendants appeal.
In the Judgments which we have delivered this morning in The "Makefjell" we have followed the well-established principle that in reviewing a discretionary decision of the judge of first instanceupon a Jurisdiction clause this court should uphold his decision unless it was arrived at on a wrong basis or was plainly a wrong decision.
Mr. Staughton, for the defendants, the appellants in the present appeal, contends that if the Judge's decision in "The Makefjell" was right his decision in the instant case oust be wrong. It is, in my opinion, very rarely that an argument on these lines can succeed. It would be only if the facts in two cases were substantially identical, or if the facts in the second case were plainly as strong or stronger than in the first in support of a similar decision,...
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