The Atlantic Star; Atlantic Star (Owners) v Bona Spes (Owners)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE CAIRNS |
| Judgment Date | 27 July 1972 |
| Judgment citation (vLex) | [1972] EWCA Civ J0727-2 |
| Date | 27 July 1972 |
| Court | Court of Appeal (Civil Division) |
Defendants Appellants
[1972] EWCA Civ J0727-2
The Master of the Rolls (Lord Denning)
Lord Justice Philimore and
Lord Justice Cairns
In The Supreme Court of Judicature
Court of Appeal
Appeal by defendants from order of Mr. Justice Brandon on 7th March 1972.
Mr. MICHAEL THOMAS (instructed by Messrs. Clyde & Co.) appeared on behalf of the Appellant Defendants.
Mr. J. F. WILLMER, Q. C., and Mr. N. P. PHILLIPS (instructed by Messrs. Alsop Stevens Batesons & Co.) appeared on behalf of the Respondent Plaintiffs.
1. INTRODUCTION
The "Atlantic Star" is a container ship of 11,839 tons. She flies the Dutch flag and is owned by a Dutch company - The Holland-America Line. On 28th January 1970, in the early hours she was proceeding up the Channel of the River Scheldt in Belgian waters towards Antwerp. Suddenly the fog thickened. It became dense. She was making for the Zandvliet locks and expected to have the help of three tugs, but these were called off to help another vessel. She attempted to enter the locks on her own. Her radar was working but did not spot two small vessels moored at the entrance to the lock, because they were below the level of the wall. the outer one was the Dutch motor-barge, the "Bona Spes" of 675 tons, which was laden with a cargo of gravel. The inner one next the quay was the Belgian dumb barge, the "Hugo van der Goes" of 807 tons, which was laden with a cargo of stone. The "Atlantic Star" crashed into these two vessels and sunk them with their cargoes. Two men on board the Hugo van der Goes", the skipper and a sailor, were drowned. The wall of the quay was badly damaged. The Port Authorities were put to expense in clearing the Channel. The Belgian National Insurance paid compensation to the relatives of the dead men. All these wore innocent of any fault. The question arose at once: Was the "Atlantic Star "to blame?
The Commercial Court of Antwerp has a procedure in such a case. On the application of any one concerned, it can appoint a nautical surveyor to hold an inquiry. On 29th January 1970, the owners of the Belgian barge "Hugo van der Goes" made application. On 16th February 1970, the owners of the Dutch barge "Bona Spes" followed suit.On the same day the President of the Court appointed Captain Van Clemens, a qualified Master Mariner, to carry out an investigation into the circumstances and causes of the collision.
The Surveyor took statements from witnesses in February, April and May, 1970. He collected various reports and ships' documents. Belgian lawyers represented the parties before him.
In about February 1971, the Surveyor made his report. The trend of it was that the "Atlantic Star" was not at fault, because she had done her best in the dense fog without tugs.
Two of the Belgian claimants started proceedings in the Commercial Court of Antwerp. They were the Belgian owner of the "Hugo van tier Goes" and the Belgian accident insurers who paid the dependants of the dead skipper and sailor. Later on the owners of the cargoes on both ships brought proceedings in the Court. Likewise the Port Authority may do so.
But the Dutch owners of the "Bona Spes" brought proceedings in England. in June 1971, they got to know that the "Atlantic star" was shortly due in Liverpool. On 15th June 1971, they began an action in ram in the High Court of Admiralty in England. The Dutch owners - the Holland America Line - in order to avoid arrest of the vessel, accepted service of the writ and arranged for a guarantee of £80,000 in respect of the claim. They entered a conditional appearance and applied to stay the action. The Admiralty Judge refused to stay. The" Atlantic Star" appears to this Court.
2. THE CROSS UNDERTAKINGS
Whilst the argument was going on in England, the Dutch owners of the "Bona Spes" became concerned. if their English action was stayed, on the ground that they ought to bring proceedings at Antwerp,there was a two years' limitation. in order to guard against this contingency, on 21st June 1972, the owners of the "Bona Spes" began proceedings in the Commercial Court of Antwerp against the "Atlantic Star". The Judge found that "this action was begun solely to preserve the time limit in Belgium in case the action here should be stayed". The owners of the "Bona Spes" realise that they cannot go on with proceedings both in England and in Belgium: and they gave an undertaking to the Judge that, if this action was allowed to proceed in ting-land they would discontinue the action in Belgium.
Conversely, the Holland America Line realise that, if they succeed in staying the English action, they must provide security in Belgium: and this they have undertaken to do.
These undertakings are given by each side to support its case. They are properly given. But they do not, in my view, affect the question. it must be decided as at the time of the application for a stay.
3. THE JURISDICTION TO STAY
The High Court has jurisdiction to stay proceedings if it thinks fit to do so in any cause or matter pending before it. That appears from Section 41 of the Judicature Act, 1925. The way in which this jurisdiction is to be exercised was stated by Lord Justice Scott in St. Pierre v. South American Stores (1936) 1 K. B. 382 at page 398:
"The true rule about a stay under section 41, so far as relevant to this case, may, I think, be stated thus:
(i) A mere balance of convenience is not a sufficient ground for depriving a plaintiff of the advantages of prosecuting his action in an English Court if it is otherwise properly brought. The right of access to the King's Court must not be lightly refused.
(ii) in order to justify a stay, two conditions must be satisfied, one positive and the other negative:-
(a) The defendant must satisfy the Court that the continuance of the action would work an injustice, because it would be oppressive or vexatious to him, or would be an abuse of the process of the Court in some other way; and
(b) the stay must not work an injustice to the plaintiff. On both the burden of proof is on the defendant."
Those rules have been repeatedly applied since. I remember that I applied them myself in a case which attracted much attention at the time in 1948, and the Court of Appeal in a reserved judgment delivered by Lord Greene, Master of the Rolls, expressly approved those principles, see Chaney v. Murphy (1948) 64 T. L. R. 488. We applied them again quite recently in Baroda v. Wildenstein (1972) 2 W L. K. 1077. They were applied by the Court of Appeal in Northern Ireland, presided over by Lord MacDermott, Lord Chief Justice, in Devine v. Cementation Co. Ltd. (1963) N I. L. 65 They have been applied, no doubt, in many cases at first instance which have not been reported, but some of which have, such as Seeley v. Call an (1953) P. 135; and The Soya Margaritas (1961) 1 W. L R 709. in view of this long line of authority, I do not think we should depart from those rules now.
The reasoning which lies behind these rules appears from the cases. When a plaintiff comes as of right to the Courts of this country - without having to ask for leave of anyone - and seeks redress from a defendant who is here, or whose ship is here, it is the duty of the Courts to award him the redress to which he is entitled: see McHcnry v. Lewis (1882) 22 Ch. D. 397; Peruvian Guano Co. v. Bockwoldt (1883) 23 Ch. D. 225; Ionian Bank Ltd. v. Couvreur (1969) 1 W. L. R. 781. it may be that the plaintiff is ableto catch the defendant here when he is on a short visit, as at the Ascot Races (see Baroda v. Wildenstein (1972) 2 W. L. R. 1077);or to arrest his ship when it puts into an English port for a few hours. But, so long as ho can catch him here, or his ship here, he is entitled as of right to bring his action here, and to pursue it to its conclusion. No one the comes to these Courts asking for justice should come in vain, lie must, of course, come in good faith. He must not do it from an unworthy motive, such as to vex or harass his opponent: see Logan v. Bank of Scotland (n C. 2) (1906) 1 K. B. 141Norton v. Norton (1908) 1 Ch. 471 Nor must he act oppressively he must not, in seeking justice himself, treat the defendant unjustly. At any rate, the Judges will not allow him to go on, if it would work an injustice to the defendant, without doing the plaintiff any advantage. it may be very inconvenient to the defendant to have to contest the action here. But, inconvenience falling short of injustice, is not sufficient to stay the action: see St. Pierre v. South American Stores (1936) 1 K. B. 382. in this respect the law of England is different from that of Scotland: for that law has an established pica of "forum non conventions" - sec La Societe de Gas de Paris v. Lo Societe Anonyme de Navigation Les Armatears Francais" (1925) S. C. (H. L.) 13. It is also different from that of the United States: for their Courts recognise an unqualified discretion to decline jurisdiction between two foreign vessels see Canada Maitings v. Paterson Steamships (1932) 285 U. S. 413. But we in England think differently. If a plaintiff considers that the procedure of our Courts, or the substantive law of England, may hold advantages for him superior to that of any other country, he is entitled to bring his action here -provided always that he can serve the defendant, or arrest his ship,within the jurisdiction of these Courts - and provided also that his action is not vexatious or oppressive. It is so stated by Dr. J. H. C. Norris in 8th Edition of Dicey's Conflict of Laws, 1081. This right to come here is not confined to Englishmen. It extends to any friendly foreigner. He can seek the aid of our Courts if he desires to do so. You may call this "forum shopping" if you please, but if the...
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