The Eleftheria
| Jurisdiction | England & Wales |
| Date | 1969 |
| Year | 1969 |
| Court | Probate, Divorce and Admiralty Division |
Conflict of Laws - Jurisdiction - Submission to foreign jurisdiction - Stay of proceedings in England - Principles governing grant of stay. - Practice - Stay of proceedings - Submission to foreign jurisdiction - Bill of lading - “Disputes to be decided where carrier carries on business” - Motion by Greek defendants to stay action in England - Principles on which stay granted. - Shipping - Bill of lading - Clause providing for disputes to be decided by law of country where carrier carries on business - Court's discretion to grant stay of proceedings against foreign carrier. - Ships' Names - Eleftheria.
The defendants in an Admiralty action on a bill of lading contract, by the terms of which the parties agreed that disputes between them should be decided in and by the law of the country where the carrier had his principal place of business, moved the court for a stay of the action on the ground that they had their principal place of business in Athens and that accordingly the dispute should be referred to a Greek court:—
Held, (1) that where plaintiffs sued in England in breach of an agreement to refer disputes to a foreign court and the defendants applied for a stay, the English court, assuming the claim to be otherwise within the jurisdiction, was not bound to grant a stay but had a discretion whether to do so or not.
(2) That the discretion should be exercised by granting a stay unless strong cause for not doing so was shown, the burden of proving such strong cause being on the plaintiffs.
(3) That the plaintiffs had not established good cause why they should not be held to their agreement and that accordingly the action would be stayed.
Per curiam. In general, and other things being equal, it is more satisfactory for the law of a foreign country to be decided by the courts of that country (post, p. 1081H).
The following cases are referred to in the judgment:
Athenée, The (
Austrian-Lloyd S.S. Co. v. Gresham Life Assurance Society Ltd. [
Cap Blanco, The [
Fehmarn, The [
Kirchner & Co. v. Gruban [
Mackender v. Feldia A.G. [
Media, The (
Renton & Co. Ltd. v. Palmyra Trading Corporation of Panama [
Settlement Corporation v. Hochschild [
Unterweser Reederei G.m.b.H. v. Zapata Off-Shore Co.; The Chaparral [
ADMIRALTY MOTION.
In August, 1968, there were shipped on board the motor vessel Eleftheria, a Greek ship registered at the port of Piraeus, a large number of parcels of Roumanian beechwood and plywood at the Roumanian port of Galatz for carriage to London and Hull. Those goods were shipped under bills of lading in the English language, according to which the shippers were Exportlemn State Company for Foreign Trade, the shipowners were G.K.M. Company of Athens and the goods were consigned to order. They were signed by the master of the ship for the owners. On the reverse side of the bills of lading there were printed a large number of clauses under the heading: “Liner terms approved by the Baltic and International Maritime Conference code name ‘Conlinebill’ amended January 1, 1950, amended August 1, 1952.” These clauses were made part of the bill of lading contract by express words on the front of it. Of these clauses, nos. 1, 2, 3 and 16 (c) and (d) were material. Those read as follows:
“Clause 1: Definition. Wherever the term ‘merchant’ is used in this bill of lading it shall be deemed to include the shipper, the receiver, the consignee, the holder of the bill of lading and the owner of the cargo. Clause 2: Paramount clause. The Hague Rules contained in the International Convention for the unification of certain rules relating to bills of lading, dated Brussels, August 25, 1924, as enacted in the country of shipment shall apply to this contract. When no such enactment is in force in the country of shipment, the corresponding legislation of the country of destination shall apply, but in respect of shipment to a country to which no such enactments are compulsorily applicable, the terms of the said convention shall apply. Clause 3: Jurisdiction. Any dispute arising under this bill of lading shall be decided in the country where the carrier has his principal place of business, and the law of such country shall apply except as provided elsewhere herein. Clause 16: Government directions, war, epidemics, ice, strikes, etc …. (c): Should it appear that epidemics, quarantine, ice-labour troubles, labour obstructions, strikes, lockouts, any of which on board or on shore — difficulties in loading or discharging would prevent the vessel from leaving the port of loading or reaching or entering the port of discharge or there discharging in the usual manner and leaving again, all of which safely and without delay, the master may discharge the cargo at port of loading or any other safe and convenient port. (d): The discharge under the provisions of this clause of any cargo for which a bill of lading has been issued shall be deemed due fulfilment of the contract. If, in connection with the exercise of any liberty under this clause any extra expenses are incurred, they shall be paid by the merchant in addition to the freight, together with return freight, if any, and a reasonable compensation for any extra services rendered to the goods.”
On September 9, 1968, the Eleftheria arrived at Surrey Commercial Docks, London, and discharged part of her London cargo. On September 18, 1968, she left London and went to Rotterdam, where she arrived on September 19. She there discharged the rest of her London cargo and all her Hull cargo, including the parcels of which the plaintiffs claimed to be the owners. On September 20, 1968, Anglo-Iran Shipping Co. Ltd., as Hull agents for the defendants, G.K.M. Company, owners of the Eleftheria, wrote to the plaintiffs, giving them notice that due to circumstances then obtaining in the docks in London and Hull, the owners intended to exercise their right under paragraph 16 (c) and (d) of the bills of lading dated at Galatz on August 17, 1968, to discharge the balance of the cargo consigned to London and Hull still remaining on board the vessel. The owners expressly reserved all their rights, express or implied, in the bills of lading or by law.
The defendants having refused to on-carry the goods of which the plaintiffs claimed to be the owners from Rotterdam to Hull, the plaintiffs arranged for the on-carriage at their own expense.
By a writ issued on November 26, 1968, the plaintiffs, as owners of cargo lately laden in the Eleftheria, brought an action in rem against the defendants, three Greek nationals, Leonidas Govdelas, Athanassios Claou Datos and Kapastolos Malas, trading as G.K.M. Company. All three resided in Greece, their principal place of business being in Athens. The action was to recover the expense of the on-carriage from Rotterdam to Hull as damages for breach of the contracts of carriage contained in the bills of lading.
On the same day as the writ was issued, it was served on the Eleftheria and she was arrested at the suit of the plaintiffs. On November 28, 1968, after other security for the plaintiffs' claim had been given by the defendants, she was released.
On December 5, 1968, the defendants, by leave of the court, entered a conditional appearance to the writ, without prejudice to an application to set aside the writ or service of it. The time limited for setting aside was 14 days.
On December 18, 1968, the defendants filed notice of motion asking for a stay of the action or for the setting aside of the writ or service of it.
J. S. Hobhouse and M. Dean for the...
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