The Abidin Daver
| Jurisdiction | UK Non-devolved |
| Judge | Lord Diplock,Lord Edmund-Davies,Lord Keith of Kinkel,Lord Brandon of Oakbrook,Lord Templeman |
| Judgment Date | 26 January 1984 |
| Judgment citation (vLex) | [1984] UKHL J0126-1 |
| Court | House of Lords |
| Date | 26 January 1984 |
[1984] UKHL J0126-1
Lord Diplock
Lord Edmund-Davies
Lord Keith of Kinkel
Lord Brandon of Oakbrook
Lord Templeman
House of Lords
My Lords,
Shortly before midnight on 23rd March 1982 there was a collision between a Turkish ship the Abidin Daver and a Cuban ship Las Mercedes. It happened in the Bosphorus just outside the Turkish port of Buyukdere where both vessels had anchored to shelter from high winds and strong currents. The Turkish ship is owned by a Turkish state corporation ("the Turkish shipowners"). She was on a voyage from Braila in Roumania to Iskenderun in Turkey laden with a cargo of petroleum prospecting pipes. The Cuban ship is owned by a Cuban state corporation ("the Cuban shipowners"). What the voyage was on which she was engaged at the time of the collision does not appear from the evidence before your Lordships. Both vessels sustained damage in the collision.
Although navigation in the Bosphorus by merchant vessels of other nationalities is subject to an international convention ("the Montreal Convention"), the place where the collision took place is situated in Turkish territorial waters. The Turkish shipowners accordingly took prompt steps in the District Court of Sariyer, the Turkish court which exercises admiralty jurisdiction in the area in which Buyukdere is situated to have the Cuban ship arrested and to start an action in that court ("the Turkish action") against the Cuban shipowners as defendants for damages for negligence in the navigation and management of the Cuban ship. The Cuban ship owners, or their P. and I. insurers on their behalf, put up security to obtain the release of their ship, but they do not appear to have taken any other active step in the Turkish action. Until 2nd July 1982, the Turkish action was proceeding normally in accordance with the Turkish Code of Civil Procedure under which the Cuban shipowners would have been entitled to bring a cross-claim against the Turkish shipowners if they had wished to do so.
The Turkish Code of Civil Procedure was introduced in 1927 as part of the Westernisation of Turkish law instituted by Kemal Ataturk. It is based on the civil procedure code of the Swiss Canton of Neuchatel of 1922. At the date of the Turkish law reforms this had been the most recently drafted of procedural codes in use in those European countries which follow the system of the civil law. Consequently, it is one in which the court itself plays a more active investigatory role than does a judge under the English system of civil procedure. The substantive commercial law of Turkey which has been in force since the reforms of the nineteen-twenties for similar reasons has its basis in the German Commercial Code of 1895. It is not suggested that as respects collisions at sea Turkish substantive law differs in any relevant respect from English law.
On 2nd July 1982, some three months after the commencement of the Turkish action in which they were defendants, the Cuban shipowners took advantage of the presence in an English port of a sister ship of the Abidin Daver to arrest her and commence an action in rem against the Turkish shipowners as defendants ("the English action") claiming damages for their negligence in causing the collision at Buyukdere on 23rd March 1982, which was the subject of the Turkish action in which the Turkish shipowners were plaintiffs and the Cuban shipowners defendants. Security was duly provided to obtain the release of the sister ship.
It is in proceedings on a motion by the Turkish shipowners to stay the English action that this appeal to your Lordships is brought. Sheen J. granted the stay upon an undertaking that was offered by the Turkish shipowners to provide security for any cross-claim that the Cuban shipowners might decide to make in the Turkish action. He regarded the case for exercising his discretion in this way as a clear one and refused leave to appeal; but leave was granted by Purchas L.J. and subsequently the judge's exercise of his discretion was reversed and the stay removed by a unanimous court of appeal (Sir John Donaldson M.R., Dunn and Purchas L.JJ.). Leave to appeal from the Court of Appeal's judgment was granted by this House.
My Lords, it is I hope not unfair to say that the decision of the narrow majority of this House in the Atlantic Star [1974] A.C. 436 was initially accepted with reluctance, particularly by the judges of those English courts, Admiralty and Commercial, to which foreigners so often voluntarily resort for resolution of their legal disputes. It was treated at first as having been decided on its own special facts rather than being of wider import. This is not surprising since it may not be possible to recognise as such a decision that will turn out to have provided a landmark in the development of English law, until time has exposed to view the legal landscape that lies beyond the decision. Looked at in the perspective of the ten years that have now elapsed since the decision in The Atlantic Star, it has become readily identifiable not as a mere decision upon its own exceptional facts but as a landmark case.
The decisions of English courts during the hundred years between the passing of the Judicature Acts, the relevant starting point, and the hearing in this House of The Atlantic Star, are analysed in some detail in four of the speeches in that case. The effect of those decisions was the subject of a scathing summary by Lord Reid as follows:
"… They support the general proposition that a foreign plaintiff, who can establish jurisdiction against a foreign defendant by any method recognised by English law, is entitled to pursue his action in the English courts if he genuinely thinks that that will be to his advantage and is not acting merely vexatiously. Neither the parties nor the subject matter of the action need have any connection with England. There may be proceedings on the same subject matter in a foreign court. It may be a far more appropriate forum. The defendant may have to suffer great expense and inconvenience in coming here. In the end the decisions of the English and foreign courts may conflict. But nevertheless the plaintiff has a right to obtain the decision of an English court. He must not act vexatiously or oppressively or in abuse of the process of the English court, but these terms have been narrowly construed."
After referring to an observation of Lord Denning M.R. adulatory of the administration of justice by English courts, Lord Reid said:
"My Lords, with all respect, that seems to me to recall the good old days, the passing of which many may regret, when inhabitants of this island felt an innate superiority over those unfortunate enough to belong to other races"
— or, as Kipling more forthrightly phrased it, "lesser breeds without the law".
The last sentence in Lord Reid's summary of the general proposition to be extracted from the previous authorities is derived from the statement of Lord Justice Scott in St. Pierre v. South American Stores (Gath & Chaves) Ltd. [1936] 1 K.B. 382 as to the applicable rule which is cited in full in the speeches of Lords Morris of Borth-y-Gest, Wilberforce and Kilbrandon. I shall refer to this as "the 1936 Rule".
The approach adopted by the majority of this House to the re-examination of what Lord Reid had described as "the rather insular doctrine" as he had stated it in the passage that I have cited, followed the step-by-step technique that is typical of the way in which principles that have informed the common law of England undergo development by judicial decision so as to enable justice to be done in the changing circumstances in which the common law falls to be applied. In The Atlantic Star the particular device employed was to give to the words "vexatious" and "oppressive" in the 1936 Rule a more flexible or liberal application than would have accorded with the interpretation that had been placed on these expressions as terms of legal art in any of the previous authorities or, as Lord Kilbrandon pointed out, would be ascribed to them in ordinary speech. How "flexible" and how "liberal" this application was to be it was left to subsequent cases to show.
The next significant pace forward in the step-by-step approach was taken four years later in MacShannon v. Rockware Glass Ltd. [1978] A.C. 795. In three of the four reasoned speeches expounding the unanimous decision of this House the continued use of the words "vexatious" and "oppressive" in expressing the principles on which the court's discretion to grant a stay of English proceedings was specifically deprecated and abandoned.
MacShannon was not a case where litigation on the same subject-matter between the same parties was simultaneously proceeding in any jurisdiction other than England; nor had The Atlantic Star been treated as a case in which there was lis alibi pendens between the same parties, although technically the plaintiffs in the English action had taken a precautionary step in the Belgian court to forestall a time bar operating against them in that country if they were to be prevented from proceeding with their action in England.
Accordingly, in MacShannon when I ventured to re-state the 1936 Rule in amended form, I was not concerned to deal with what account should be taken of the existence of lis alibi pendens in exercising a discretion to grant a stay of proceedings brought in England in the capacity of plaintiff by a person who is defendant to an action with the same subject-matter which is being actively pursued against him in a foreign court that is unquestionably one of competent jurisdiction. In St. Pierre v. South American Stores (Gath & Chaves) Ltd. there was in fact a lis alibi pendens, but this had been brushed aside by Scott L.J. and is...
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