Société du Gaz de Paris v Armateurs français
| Jurisdiction | England & Wales |
| Judgment Date | 03 December 1925 |
| Date | 03 December 1925 |
| Court | House of Lords |
| Docket Number | No. 2. |
Lord Chancellor (Viscount Cave), Ld. Dunedin, Lord Shaw of Dunfermline, Ld. Sumner, Lord Buckmaster.
JurisdictionForum conveniensInternational LawShipCharter-partyCharter-party entered into in France between two French firmsFrench shipAction of damages in Scotland based on unseaworthinessJurisdiction founded by arrestmentBritish underwriters real pursuers.
In an action brought in the Sheriff Court by a French manufacturing company, who had founded jurisdiction by arrestment, against a firm of French shipowners, the pursuers (who explained that the real pursuers were certain British underwriters who had been subrogated to their rights) claimed damages for breach of contract in respect of a cargo of coal which, by charter-party executed in France, the defenders had contracted to ship in England and to deliver to the pursuers at Rouen, but which had been lost through the sinking of the ship on the high seas. The pursuers averred that the ship had been improperly loaded and was unseaworthy; that she belonged to a class of vessels of exclusively French design so notoriously unstable that a French Senatorial Commission had been appointed to investigate and report upon the disasters which had befallen them; and that this Commission had issued recommendations as to structural alterations and other matters, which the defenders had disregarded. These averments were denied by the defenders, who also pleaded forum non conveniens. They averred, and urged as grounds for sustaining this plea, that the bulk of the evidence necessary to determine the controversy would be French; that no machinery existed for compelling the attendance of French witnesses in a Scottish Court; that no question of any sort was raised which involved the application of Scots law; that, if they were compelled to litigate in Scotland, they would be deprived of a defence, relating to limitation of their liability, which was open to them by French law; and that, in any event, if the law of France applied, a Scottish Sheriff Court was not an appropriate tribunal to interpret it.
Held (aff. judgment of the Second Division) that the plea fell to be sustained and the action dismissed, on the grounds (1) that the averment that the real pursuers were the underwriters must be ignored, as they could claim no higher right than the pursuers, their cedents; and (2) that, in the interest of the parties and for the ends of justice, the case would be more suitably tried before a French tribunal.
Lord Sumner differed from these grounds of judgment, in so far as he held (1) that the position of the underwriters was one of the facts in the case which must be taken into consideration; (2) that the convenience of the parties ought not to be considered, the sole question in a dispute relating to forum conveniens being which forum was preferable for securing the ends of justice.
Observed (per Lord Dunedin) that in the expressions forum competens and forum conveniens the proper translation of each of the adjectives is the English word appropriate.
(In the Court of Session 4th February 19251925 S. C. 332.)
La Socit du Gaz de Paris, Paris, and Wright, Johnston, & Mackenzie, writers, Glasgow, their mandataries, brought an action in the Sheriff' Court of Stirling, Clackmannan, and Dumbarton, at Dumbarton, against La Socit Anonyme de Navigation Les Armateurs franais, Paris, against whom arrestments ad fundandam jurisdictionem had been used. The pursuers concluded for payment of 4500, the damage alleged to have been sustained by them through the loss at sea of the defenders' ship the Dput Emile Driant, while carrying a cargo of coal belonging to the pursuers from the river Tyne to Rouen, under a charter-party entered into between the pursuers and the defenders.
The charter-party, which was in English and was executed in France, was in the form of the standard Chamber of Shipping Coasting Coal Charter-party, 1920. It provided that the vessel was to load a cargo of coal at Dunston on the river Tyne, and proceed to Rouen, where the cargo was to be unloaded. The charter-party contained the usual clauses as to seaworthiness, and a clause under which any dispute under the provisions of the charter applying to a loading or discharging port in the United Kingdom was referred to arbitration to be held in the United Kingdom.
The vessel sailed from Dunston on 28th August 1923, and foundered on 30th August.
The pursuers' case upon record was that the ship had been improperly loaded and was unseaworthy; that she belonged to a class of vessels of exclusively French design which were notoriously unstable, and that a French Senatorial Commission had been appointed to report upon certain disasters which had occurred to vessels of that type, and that the defenders had not complied with the recommendations made by the Commission.
The defenders denied fault, and pleaded (1) Forum non conveniens.
The points stated upon record in support of this plea were the following. The pursuers and defenders were French companies, neither having a place of business in Scotland; the ship was built in France; the cargo was to be delivered in France under a charter-party of which none of the obligations were prestable in Scotland. The surviving members of the crew were French, and the ship's log-books and other documents were in that language, and the vessel was of a special French type which had been the subject of consideration by a French Commission. Further, it was averred that the law of France allowed the defenders, under certain circumstances, to limit their liability by abandoning the ship and freight, and that, if the case was tried in Scotland, they would lose the benefit of this right.
It appeared from the record that the real pursuers in the action were a firm of British underwriters, who had been subrogated to the pursuers' rights.
On 18th November 1924 the Sheriff-substitute (Menzies) repelled the defenders' first plea in law, and granted leave to appeal.
On 4th February 1925 the Second Division recalled the interlocutor of the Sheriff-substitute, and dismissed the action.
The pursuers appealed to the House of Lords.
The appeal was heard on 1st December 1925.
Argued for the appellants;The combined effect of the decisions1 upon the question of forum non conveniens was to establish that the Court would not sustain the plea unless it was clear that it was in the interest of all parties, and would be conducive to the ends of justice, that the case should be tried in another forum. It was primarily the duty of a Court which had jurisdiction to try any action which was brought before it, and it could not decline to exercise its jurisdiction on any nice calculation of convenience or inconvenience; to justify the sustaining of the plea in question, it must be clear, keeping in view the interest not only of the defender but also of the pursuer, that justice could not be done to parties in the Court in which the action had been brought, or that justice could be done in some other Court much more readily and efficaciously. It almost came to this, that the defender must show that it would be oppressive and vexatious to try the action in the Court in which it was originally brought.2 The present case did not
fulfil these conditions. The real pursuers were English; the charter-Party was in English1; the question at issue depended upon the seaworthiness or unseaworthiness of the vessel at the time she left an English port; many of the witnesses upon this question, and those the most important, would be Englishwitnesses to speak to the method in which the vessel was loaded, and skilled witnesses deponing to questions of naval architecture. It was true that many of the witnesses would be French, but foreign witnesses constantly gave evidence in British Courts. It was suggested that, if the case was tried in Scotland, the defenders would lose the benefit of certain rights of surrender given them by the law of France. That was not so. If the law which fell to be applied to the contract was the law of France, the Sheriff-substitute would make himself acquainted with the law, and would apply it.
Counsel for the respondents were not called upon.
At delivering judgment on 3rd December 1925,
Lord Chancellor (Cave).The pursuers, a French company, supplying gas in Paris, sued the defenders, a French company owning some merchant vessels, in the Sheriff Court at...
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