The Owners of The Ship "Las Mercedes" (Applicants (Plaintiffs) v The Owners of The Ship "Abidin Daver" and Others (Respondents
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,THE MASTER OF THE ROLLS,LORD JUSTICE DUNN |
| Judgment Date | 17 May 1983 |
| Neutral Citation | [1983] EWCA Civ J0510-5 |
| Judgment citation (vLex) | [1983] EWCA Civ J0517-2 |
| Docket Number | 83/0680,83/0207 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 May 1983 |
[1983] EWCA Civ J0510-5
Lord Justice Purchas
83/0680
1982 Folio 537
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMIRALTY COURT)
(MR. JUSTICE SHEEN)
Royal Courts of Justice.
MRS. E. BLACKBURN (instructed by Messrs. Richards, Butler & Co.) appeared on behalf of the Applicants.
THE RESPONDENTS were neither present nor represented.
Mrs. Blackburn moves the court for leave to appeal against the refusal by Mr. Justice Sheen to grant leave to appeal against an order made by him on the 4th May of this year that an action be stayed in which the plaintiffs are the owners of the ship "Las Mercedes" and the defendants the owners of the ship "Abidin Daver".
The short circumstances of the case appear from the judgment of the learned judge, and I can deal with the application by referring shortly to some of the facts. On the 23rd March, 1982, off Buyukdere in the Bosphorus, there were a number of collisions. In particular a collision occurred between the plaintiffs' ship and the defendants' ship. For the purposes of this motion it is important to relate that there is a fundamental dispute as to the circumstances in which that collision took place. The defendants allege that the plaintiffs' ship, having dragged its anchor once and having been restored by a pilot whose assistance was sought, some two hours later dragged it again and fell down upon the defendants' ship, which was at anchor, the plaintiffs' ship having anchored ahead of the defendants' ship in conditions of rough water and a Force 8 wind and, and I understand it, headed into the wind.
The plaintiffs' version is different. They allege that on the occasion of the collision the defendants' ship was in fact underway.
Another ship, the "Hercules", was involved in collisions at the same time, and a fourth ship as well. The details of those collisions, however, are not relevant to this motion except that the "Hercules" was very much at hand.
There is a real possibility that one or more members of the crew of the "Hercules", presumably on watch, would be available as witnesses at least to that basic dispute on fact.
The defendants started proceedings in the Sariyer District Court, first of all arresting "Las Mercedes". On the 16th April, 1982 proceedings claiming damages were commenced. Appropriate steps have been taken by lawyers instructed on behalf of the owners of "Las Mercedes" to contest that action.
The sort of figures involved have been given to me by Mrs. Blackburn. The claim of the owners of the "Abidin Daver" is in the area of 170, 000, and the damage suffered by "Las Mercedes" is in the area of 100, 000.
The plaintiffs were unable to take any process against the defendants in the Admiralty Division until the 29th June, 1982 when they issued a writ and served it on a sister ship of the "Abidin Daver" when it came within the jurisdiction.
There were, therefore, then two competing actions, the first in which the plaintiffs were defendants. In order to effect the release of their vessel the plaintiffs had to give security in Turkey. There is further evidence that was before the learned judge that if the plaintiffs wish to counterclaim in respect of their damage and to contest the questions of negligence, or contributory negligence, on the basis of the counterclaim, they would have to deposit a further substantial sum; I was told something in the region of 10, 000 to 15, 000.
The process in Turkey has during the past year taken some steps forward. There has been a report from a surveyor appointed by the court who has interviewed witnesses. One at least of the other actions either has been started or is likely to start in the jurisdiction of the Admiralty Division, and at least one other action had been commenced in the Turkish court has been settled. I may be wrong about this there may still be one extant action in the Turkish court besides the one between the plaintiffs and the defendants.
The plaintiffs have not filed their defence or counter-claim or taken the equivalent action, whatever it may be, in the Turkish courts. There is a distinction between the process in the Turkish court which is of an inquisitorial nature in the first instance. As I understand the evidence, at various stages the courts there make propositions which are either acceptable or not to the parties, but eventually there will be a trial. That is the position in the Turkish court.
In this court, as I have said, the writ has been issued. The defendants gave notice of motion dated the 28th July, 1982, which for some reason or other, with which I am not concerned, did not come before the learned judge until the 28th April, 1983, that the action be stayed. It is against the learned judge's accession to that motion that this appeal is brought.
The learned judge, having set out the brief history of the matter, posed for himself this first question, namely whether there is another jurisdiction which is clearly more appropriate than England for the trial of the action, and the onus, he said, was clearly on the defendants to prove this. From the judgment it is clear that the learned judge was impressed by the convenience of witnesses attending court. The crew of "Las Mercedes", which was a Cuban ship, who are required to attend trial, the learned judge said could attend in Turkey without any more inconvenience to them than they would be subjected to by coming to London. The Turkish witnesses, the learned judge assumed, live in Turkey. He came to the conclusion that there was an overwhelming balance of convenience to the witnesses if the trial took place in Turkey rather than in London.
Mrs. Blackburn has attacked the judgment on that point on the basis that there was no evidence before the learned judge as to exactly where in Turkey the witnesses live—they might live on the Russian border—and from the point of view of being away from their homes, air travel being what it is, the question of coming to London is not such a serious inconvenience as might otherwise be thought. The other aspect was the disturbance caused to the witnesses by being away from their work; but I think Mrs. Blackburn is really saying that, first of all, her clients had offered to pay the fares of the Turkish witnesses who come to London. It also occurs to me from the limited experience I have had of Admiralty cases that the time lost during the course of the case would probably be at least comparable to the time spent in travelling. However, that was one of the matters to which the learned judge clearly gave considerable weight.
The next question that the learned judge considered was whether the Turkish court was the appropriate court for the trial—a submission made by Mr. Teare who appeared for the defendants. The learned judge clearly asked the question which had been put before him by Mr. Teare, what connection does this litigation have with England? Mrs. Blackburn made submissions, which she has repeated before me and with which I need not deal in detail—the Cuban witnesses speak English; the plaintiffs have chosen to issue a writ in England because they understand the procedure; and, perhaps more importantly, so far as their counterclaim is concerned, in England the plaintiffs would have control of the action whereas in Turkey they would be counterclaiming defendants and not, as such, in an advantageous position.
The learned judge came to the conclusion that he should give very little weight to any of those points. He said this:
"The first and second are balanced by the facts that Defendants' witnesses speak the language of the Turkish Court and the Defendants understand Turkish procedure. As to the third point I have no reason to think that the Turkish ship-owners do not want to press on with their litigation. The only reason why the Plaintiffs have been able to invoke the jurisdiction of this Court is because one of the Defendants' ships came to England in the course of her normal trading pattern."
The learned judge then expressed the view:
"I am left in no doubt that the Sariyer District Court is clearly a more appropriate forum than is this Court."
Continuing with the further submissions of Mrs. Blackburn, the learned judge referred to the " Tillie Lykes" (1977) 1 L1. R. 436, which was a judgment of Brandon, J. (as he then was) and indicated that that case had been decided before the House of Lords gave judgment in Rockware Glass Limited v. MacShannon (1978) A. C. 795 and by inference—although not expressly in his judgment—appeared to indicate that the decision in the House of Lords had in some way impugned the dicta of Mr. Justice Brandon (as he then was) in the earlier case.
Mrs. Blackburn in her very able submissions has pointed out that if that was the learned judge's assessment of the effect of the later House of Lords decision, that is not supported by a study of the speeches in that case or the facts against which the case was decided. If that was not what the learned judge intended, then he was wrong not to follow the dicta of Mr. Justice Brandon, not as a matter of jurisprudence but as a matter of established law.
The next point at which Mrs. Blackburn attacks the learned judge's judgment is the following paragraph, which I cite:
"Mrs. Blackburn was unable to point to any juridical advantage of which the Plaintiffs would be deprived if I grant a stay. Mrs. Blackburn submitted that this Court has an almost overwhelming advantage of experience of...
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