The Benarty
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ACKNER,LORD JUSTICE DUNN,LORD JUSTICE DILLON |
| Judgment Date | 15 June 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J0615-1 |
| Docket Number | 84/0265 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 June 1984 |
[1984] EWCA Civ J0615-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN ORDER OF MR JUSTICE SHEEN
Royal Courts of Justice
Lord Justice Ackner
Lord Justice Dunn
Lord Justice Dillon (not Present)
84/0265
and
MR B.A RIX Q.C. and MR J.M. FLAUX, instructed by Messrs Richards, Butler & Co., appeared for the Appellants (Plaintiffs).
MR T.E. WALKER, instructed by Messrs Clyde & Co., appeared for the Respondents (Defendants).
The appellants are the Indonesian charterers of the English vessel "Benarty". They are in fact Indonesian shipowners based in Indonesia running a liner service between West Europe and Indonesia. The respondents are the owners of the goods which were on board the "Benarty", being shippers and the consignees of the goods and/or the endorsees of the bills of lading. There are two appeals, because the judgment of Mr Justice Sheen given on 26th April 1983 relates to two actions: an action in rem folio 8 in which the appellants alone were defendants and an action in personam folio 9 in which the Scottish owners of the vessel as well as the appellants were defendants.
The appeals are brought against the decision of Mr Justice Sheen dismissing the appellants' application that the two actions be stayed on the ground that the contracts of carriage to which the plaintiffs were parties contained an exclusive jurisdiction clause providing for all actions under the contracts to be brought before the court of Djakarta, Indonesia. The facts which gave rise to the actions can be shortly stated as follows.
In November and December 1979 various cargoes were laden aboard the "Benarty" at Hamburg, Bremerhaven, London, Antwerp and Cherbourg, each of which were destined for Indonesia. Bills of lading were issued by the appellants, and the relevant clauses of those bills are as follows:
"2. BASIS OF CONTRACT. (a) This Bill of Lading shall have effect subject to the provisions of article I to VIII inclusive of the International Convention for the Unification of Certain Rules relating to Bills of Lading at Brussels of August 25, 1924 (hereinafter called the Hague Rules), which shall be deemed to be incorporated herein, and nothing herein contained shall be deemed a surrender by the carrier of any of the rights and/or immunities under the said Hague Rules….. (b) Insofar as shipments coming within the compulsory provisions of any law in force at the place of shipment or at the place of delivery giving legal force with or without modification to the said Hague Rules, this Bill of Lading is to have effect subject to the said provisions as if the said provisions were inserted herein verbatim, and if any stipulations herein shall wholly or in part contravene the said provisions, this Bill of Lading shall be read as if the said stipulations (but only to the extent that it shall so contravene and no further) were deleted herefrom.
"32. LAW OF APPLICATION. In so far (as) anything has not been dealt with by the provisions of this Bill of Lading the law of Indonesia shall apply.
"33. JURISDICTION. All actions under the contract of carriage shall be brought before the Court of Djakarta and no other court shall have jurisdiction with regard to any other action unless the carrier appeals to another jurisdiction or voluntarily submits himself thereto."
On 19th December 1979 when the "Benarty" was in the vicinity of Ushant she encountered heavy weather, some of her cargo shifted and that cargo and other cargo were damaged. Thereafter the vessel called at Brest to effect repairs to the vessel and to re-stow and/or re-secure the cargo, but further damage there occurred. The statements of claim in the two actions conveniently identify in a schedule in relation to each of the bills of lading, inter alia, the loading port, the amount of damage claimed and whether the bill of lading was issued by a contracting state to the "Hague-Visby Rules" (The Protocol To Amend The International Convention For The Unification of Certain Rules Of Law Relating To Bills Of Lading, Brussels February 23rd, 1958). From this schedule it will be seen that the major claim relates to Bill of Lading No. 35, the loading port being London, the claim being £332,243.99 and the Hague-Visby Rules applying because the U.K. is a contracting state. Two other cargoes were shipped out of England and,in all, six out of the eight cargoes involved contracting states. The total claim is in the region of £400,000, but in view of its size the claim relative to Bill of Lading No. 35 has been a focal point of attention. The Hague-Visby limitation rules would reduce that claim to £217,800 and "the old Hague Rules" (The International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, Brussels, August 25th 1924) would limit that claim to £4,000.
On its face clause 33 provides a valid exclusive jurisdiction clause. Before Mr Justice Sheen the respondents successfully contended that that clause was void and of no effect. The steps in their argument were as follows:
(1) The courts of Indonesia would not apply the Hague-Visby Rules or the limits of liability contained in the Hague-Visby Rules, since these are not contractually incorporated in the bill of lading.
The respondents put before the learned judge an affidavit of an Indonesian lawyer, Mr Timbul Thomas Lubis, who stated this in terms. The learned judge was concerned as to whether Mr Lubis had clause 2(b) in mind when he expressed this view. However, when his attention was drawn to a letter dated 18th December 1981 from the respondents' solicitors to Mr Lubis's firm which expressly drew attention to clause 2(b), he was satisfied that Mr Lubis must have had it in mind when he expressed this opinion and accordingly he accepted Mr Lubis's statement. The appellants had produced no evidence to the contrary. Their counsel (not Mr Rix) when he opened his case did not rely upon clause 2(b). It was only at the end of the hearing that an application was made for an adjournment by the appellants for the purpose of placing before the court further evidence from an Indonesian lawyer as to the effect of clause 2(b). In making this application the appellants' counsel was unable to inform the judge whether the opinion of the lawyer advising his clients agreed or disagreed with Mr Lubis. The learned judge refused the application for an adjournment and in his judgment, he explained what were the considerations he had in mind for making that decision. They were: "The bill of lading is the charterers' own document. The charterers and their Indonesian lawyers must know and must have known for a long time how the court in Djakarta would interpret that document. They have known since January 1982 how the plaintiffs' advisers contend that it would be construed in the court in Djakarta. They must have given careful consideration to the bill of lading before issuing the notice of this motion, which is the second motion which has been given on behalf of the charterers. They put before me in telex form, without any objection, the opinion of an Indonesian lawyer, which made no reference to clause 2(b). The case was argued for nearly three days without so much as a hint that the charterers would seek to put in further evidence. As I have said, the application was made not only after the submissions made by Mr. Falconer on behalf of the plaintiffs, but at the conclusion of the submissions made by Mr Clarke on behalf of the charterers. Furthermore, if the fresh evidence, which was foreshadowed in the application accorded with the evidence of Mr. Lubis the adjournment would have been a waste of time. If, on the other hand, it appeared that there was a conflict of expert evidence upon the effect of Indonesian law there would have been a dispute which could only have been decided after hearing oral evidence from the witnesses and having their evidence tested by cross-examination. (See: ( Central Insurance Co. Ltd. v. Seacalf Shipping Corporation C.A. 17th February 1983, which is unreported)). That would have involved another long delay and very considerable expense. The plaintiffs' action has already been delayed by many interlocutory manoeuvres. I concluded that there was no sufficient grounds for further delay. The charterers cannot claim to have been taken by surprise by any point advanced on behalf of the plaintiffs. Indeed they have had more notice of the plaintiffs' case than is usual on motions of this type."
The judge refused leave to appeal. An application was made to Lord Justice Dillon for leave to appeal and this was refused. Before us application was made to put in further evidence on Indonesian law and, in the exercise of our discretion we refused the application. On the material before him the learned judge was fully entitled to make the finding of fact which he made, namely, that the courts in Indonesia would not apply the Hague-Visby Limitation of Liability Rules.
(2) By virtue of the Carriage of Goods by Sea Act 1971, the Hague-Visby Rules applied to six of the eight bills of lading, because section 1, subsection (1) of the Act provides that the Rules shall have the force of law. Section 1(3) provides that they shall effect (and have the force of law) in relation to and in connection with the carriage of goods by sea in ships where the port of shipment is a port in the United Kingdom, whether or not the carriage is between ports between two different states within the meaning of...
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