The Makefjell
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CAIRNS,SIR GORDON WILLMER |
| Judgment Date | 25 March 1976 |
| Judgment citation (vLex) | [1976] EWCA Civ J0325-3 |
| Date | 25 March 1976 |
| Court | Court of Appeal (Civil Division) |
[1976] EWCA Civ J0325-3
In The Supreme Court of Judicature
Court of Appeal
(Appeal of Plaintiffs from Order of Mr. Justice Brandon, London, February 25 and 26, 1976.)
Lord Justice Cairns
Lord Justice Stephenson and
Sir Gordon Willmer
MR. J. HOBHOUSE. Q.C. and MR. A. LONGMORE, (instructed by Messrs. Clyde & do.) appeared on behalf of the Appellants (Plaintiffs).
MR. C.STAUCHTON, Q.C and MR.M.DEAN, (instructed by Messrs Sinclair Roche & Temperley) appeared on behalf of the Respondents (Defendants).
LORD JUSTICE GAIRNS: These two appeals concern two Admiralty actions one in rem the other in personam. Both actions related to the same subject matter. They constituted alternative methods of pursuing the same claim, which was a claim toy the owners of cargo loaded on the "Makef Jell" for shipment from Canada to London. The defendants in both actions are two Norwegian companies, joint owners of the "Makef jell" and the "Dovref jell". In the action in personam leave was obtained ex parte for the issue of the writ and for service of it abroad on the defendants. Such notice was served and the defendants entered a conditional appearance and then applied by motion to set aside the notice, alternatively to stay further proceedings in the action. In the action in rem, as the "Dovref Jell", a sister ship of the "Makef jell", was coming to a United Kingdom port, the defendants' solicitors, in order to avoid arrest., accepted service of the writ and undertook to provide security for the plaintiffs' claim. The defendants entered an appearance in that action and then applied by motion to stay the proceedings. The two motions were heard together by Mr. Justice Brandon, who on 15th January, 1976, gave Judgment acceding to both of them. Accordingly service of the notice of the writ in the action in personam was set aside and the action in, rem was stayed. The plaintiffs appeal. For convenience I shall refer to the order in each action as a stay and, except where it is necessary to distinguish between the two cases. I shall treat the two appeals as one appeal. The facts are fully and clearly set out in the judgment Mr. Justice Brandon, reported in (1976) 1 LI.R. at p. 528, and I shall give only a summary of them.
The plaintiffs are a Canadian company and an English company.The Canadian company shipped to the English company on the "Makef jell" a quantity of frosen baker goods, mainly chess cakes. The English company is joined as a plaintiff because of some uncertainty as to the ownership of the cargo at the material time. The cargo was shipped under ten bills of ladling containing the paramount clause caking the carriage subject to the Hague Rules as enacted in Canada. The bills of lading also provided in effect that any claim against the carrier arising there under should be decided in Oslo and in accordance with Norwegian law.
The plaintiffs allege that when the "Makef jell" arrived at Millwall docks the discharge of the cargo was carried out in such a way that much of it was loft lying oversight in unrefrigerated sheds and was thereby damaged to such an extent as to Incur a loss of nearly £6,200, The plaintiffs claimed damages accordingly, the claim being pat in the indorsement of the writ in each action as a claim for damages for breach of contract and/or duty end/or negligence.
In addition to the two actions in England the plaintiffs issued a summons in the Norwegian court to protest themselves (in the event of their not being allowed to continue with the English proceedings). They also contended that the Norwegian court was the acre convenient tribunal inasmuch as the dispute has to be decided according to Norwegian law.
The defendants further contended that the plaintiffs' claim in tort was vexatious end an abuse of the process of the court because they wore prosecuting a claim for the same damage based on broach of contract in Norway. We wore told by the defendants' counsel that this point was argued below, but it was not referredto in the judgment nor mere than lightly touched on before us, and I say no more about it.
The plaintiffs contended that they should not be hold to their agreement because the facts giving rise to their claims arose in England; all or most of the oral evidence of fast would be that of English witnesses, and evidence of Norwegian law (if indeed there was any material difference between the laws of England and Norway) could be given by Norwegian lawyers who are so familiar with the English language as not to require an interpreter. As a subsidiary point the plaintiffs said that they might wish to join as additional defendants parties domiciled and resident in England.
Now on the issue of jurisdiction the learned judge held that in interpreting such a clause as the one in question hare no distinction should be drawn between a submission of "claims" and a submission of "disputes" and that any business man would regard all the disputes between these parties as arising under the bills of lading, because however the claim was put, its success or failure must depots on the application of the terns of the bills of lading.
On discretion, the judge took the view that, while some Norwegian witnesses might be called, the bulk of the oral evidence was likely to be that of English witnesses. However, he bore in mind that in many disputes tried or arbitrated in England with the consent of the parties witnesses have to come from abroad and give their evidence through interpreters, and that the same must apply in Norway, which is a maritime country whose courts are wall versed in commercial disputes, Further, while he recognised that there was some chance of the plaintiffs wishing to Join another defendant, he considered it unlikely that they would, and therefore did not attach much weight to this possibility.
In favour of the defendants he took into account that if the action proceeded in England evidence of Norwegian law might be needed, though he doubted whether the Norwegian law differed significantly from the English.
He took the view that the key point was whether the circumstances that moat of the facts to be investigated occurred in England, and the bulk of the evidence was to be found here, was something of such an exceptional character as to afford strong reasons for allowing the plaintiffs to depart from their contract. In cases which had been cited to him this was a circumstance which played an important part in leading to a decision not to enforce a foreign jurisdiction clause, but is those eases there were other factors operating against a stay.
Another and broader consideration which the judge took into account was the recent tendency of the courts both in England and in the United States to adopt a more liberal and less nationalistic attitude to questions of choice of jurisdiction.
Finally, he considered that the jurisdiction clause was intended to cover all deltas by cargo interests against the defendants as shipowners. A large number of such claim would be for damage discovered after discharge and much of the evidence would be found in the country of discharge. If all such cases were treated as exceptional the generality of the rule as to the enforcement of such a clause would be undermined.
On these grounds he granted a stay.
By their notice of appeal the plaintiffs contended that the jurisdiction clause is only applicable to claims in contract and that in any event the judge exercised his discretion on wrongPrinciples; that ha failed to take sufficiently into account that England was the site at the dispute and almost all the evidence was to be found here; that he failed to apply the principle that disputes should be decided in the meat convenient forum not in an unnatural one; that he erred in holding that the proceedings should be stayed unless the plaintiffs could show that the case was exceptional, and that in any he was wrong to hold that it was not exceptional, and that he gave insufficient weight to the fact that the plaintiffs would be prejudiced by having to sue in Norway. In the appeal in the action in rem the further point was taken that the judge wrongly approached the exercise of discretion on principles applicable to a case where leave to serve outside the jurisdiction is required. This was reflected in a further ground of appeal in the action in personam to the effect that because the action in rem should not be stayed the action in personam should not be stayed either.
In this court Mr. Hobhouse for the plaintiffs has concentrated his attack on the staying of the action in rem. If he succeeds in getting that stay removed the plaintiffs will not need to continue with the other action. And he contended that the cases show that the burden, which admittedly lies on the plaintiff in both types of action, is lighter when the plaintiff had a right to serve his writ than when he has to get the leave of the court to do so. Mr. Hobhouse accepts that strong reasons must be shown for not giving effect to the foreign jurisdiction clause (see The Fehrmern (1957) 1 W.L.R. p. 816 at p. 819 per Mr. Justice milliner; The Chapparall (1968) 2 L1.R. at p. 163 par Mr. Justice Willmer; ( The Eleftheria 1970 P. p. 94 at p. 99 per Mr. Justice Brandon), but hepoints out that stronger language has boon used in regard to Order 11 applications (see -v- Feldie (1967) Q.B. p. 890 at p. 599 where Lord Justice Diplock said that great caution was needed in exercising that jurisdiction; see also ( Evans -v- Bertela 1973)I.W.L.R. p. 349 at pp. 375-6 per Lord Justice Sachs.)
However, Mr. Hobhouse's first point is that the foreign jurisdiction clause has no application to the plaintiffs' claim in tort. If he succeeds in that contention it would, in my opinion, to wrong to stay the claim is contract, because that would place the plaintiffs in the position...
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