The Po
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LLOYD,LORD JUSTICE NOURSE,LORD JUSTICE RALPH GIBSON |
| Judgment Date | 09 May 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0509-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 May 1991 |
| Docket Number | 91/0461 |
[1991] EWCA Civ J0509-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE SHEEN)
Royal Courts of Justice
Lord Justice Lloyd
Lord Justice Nourse
Lord Justice Ralph Gibson
91/0461
MR GEOFFREY BRICE Q.C., MR JERVIS KAY and MISS VASANTI SELVARATNAM, instructed by Messrs Shaw & Croft, appeared for the Appellants (Defendants).
MR RICHARD STONE Q.C. and MR W.E. WHITEHOUSE-VAUX, instructed by Messrs Constant & Constant, appeared for the Respondents (Plaintiffs).
On 9th January 1987 the defendants' vessel "Po", registered in the port of Palermo, Italy, entered the harbour of Rio de Janeiro, and came to anchor about seven cables north of the Presidente Costa de Silva bridge. On the same day the plaintiffs' vessel "Bowditch" came to anchor in a position about 1.5 cables south of the "Po". The "Bowditch" is owned by the United States navy, Military Sealift Command, but at the material time was operated by a company called LSC Marine Inc. The master of the "Po" thought that the "Bowditch" had anchored too close, and accordingly sought to complain to the master of the "Bowditch". But during the following few days the ships swung to the wind or tide without coming to any harm. On the evening of 16th January a wind blew up from the north east. The "Po" dragged her anchor, and at about 18.25 hours collided with the "Bowditch". The "Po" has a bulbous bow, which came into contact with the "Bowditch" below the waterline. This may explain why the sum claimed in these proceedings is so large.
On 22nd January 1987 LSC Marine Inc. commenced proceedings in the Brazilian court, claiming in respect of its limited interest. The vessel was duly arrested. On 27th January the vessel's P & I club gave an undertaking in favour of LSC Marine Inc. in usual form, not exceeding $1.2M, in order to secure release of the vessel.
Meanwhile on 23rd January 1987, Mr Rubens Campos, administrative agent in the Port of Rio de Janeiro, held an inquiry into the cause of the casualty. He took a number of statements, the first of which was from the master of the "Po" dated 23rd January 1987 and the last, from a local pilot, was taken almost a year later on 12th January 1988. Mr Campos's report is dated 22nd January 1988. He found that the "Po" was not to blame. On 25th January 1988, the port captain expressed his agreement. I return later to the significance, if any, of this report.
In March 1988 the proceedings by LSC Marine Inc. in Brazil were discontinued. On 30th September 1988 the plaintiffs commenced these proceedings in England. The plaintiffs' claim is for $3,345,000. About $570,000 is for damage to the hull. Just over $2M is for damage to specialised equipment which was presumably in way of the contact below the waterline. The vessel is a constructive total loss. The writ, which was an ordinary Admiralty writ in rem, was served when the "Po" was in Southampton on 6th October 1988. In order to prevent arrest, the vessel's P & I club put up security for the second time, on this occasion in the sum of $3.5M. In a covering letter dated 3rd October 1988 the defendants' solicitors reserved the right to challenge the jurisdiction of the English court on the ground of forum non conveniens, or any other ground. As Sheen J. observed, nobody at that stage would have supposed that there was any ground for challenging the jurisdiction other than forum non conveniens. But that was a few months before the decision of this court in The Deichland [1990] 1 Q.B. 361.
In The Deichland the defendants, a corporation held to be domiciled in Germany, were the disponent owners of the vessel in question. In an action in rem against the vessel for damage to cargo, the P & I club gave an undertaking to avoid arrest, just as in the present case. In an application under RSC Order 12, rule 8, challenging the jurisdiction of the court, the defendants relied on Article 2 of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters ("the 1968 Convention") signed in Brussels on 27th September 1968. Sheen J. dismissed the application. He held that the Convention did not apply to an Admiralty action in rem, so long as it remained solely in rem. But his judgment was reversed on appeal. This court held that the Convention applied, and accordingly the plaintiffs were obliged to sue the defendants in Germany. One of the main questions for our consideration is whether the present case can be distinguished from The Deichland.
There are two motions before the court. The first in point of time is dated 13th January 1989. By that motion the defendants seek a stay of the Admiralty proceedings on the ground that England is forum non conveniens. The plaintiffs should have brought the proceedings in Brazil. By the second motion, dated 18th May 1989, the defendants seek an order that the English courts should decline jurisdiction altogether, on the ground that, under the 1968 Convention, the proceedings ought to have been brought in Italy. It is convenient to take the Convention point first, as did the judge.
The framework of the 1968 Convention is now familiar. Article 1 (Title I) provides that the Convention shall apply in civil and commercial matters, whatever the nature of the court or tribunal. Articles 2–24 (Title II) deal with jurisdiction. Articles 25–49 (Title III) deal with recognition and enforcement of judgments given by a court or tribunal in a Contracting State. I need not mention Articles 50–54 (Titles IV-VI). Articles 55–59 (Title VII) deal with the relationship of the Convention to other conventions governing jurisdiction in relation to particular matters, known as "special conventions". I need not mention Articles 60–68 (Title VIII). Returning to Title II, Article 2 sets out the basic rule on jurisdiction, namely, that defendants are to be sued in the state of their domicile. Article 3 provides that certain provisions of municipal law in the Contracting States shall not be applicable to a defendant domiciled in another Contracting State. Among these provisions are the rules which enable jurisdiction in the United Kingdom to be founded on:
"(a) the document instituting the proceedings having been served on the defendant during his temporary presence in the United Kingdom; or
(b) the presence within the United Kingdom of property belonging to the defendants; or
(c) the seizure by the plaintiff of property situated in the United Kingdom".
The Civil Jurisdiction and Judgments Act 1982 was passed to give effect to, or implement, the 1968 Convention together with the 1971 Convention, known as the Accession Convention, whereby the United Kingdom acceded to the 1968 Convention. The cross-heading of Part 1 of the Act is "Implementation of the Conventions". Section 2 provides that the Conventions shall have the force of law in the United Kingdom. The English text of the 1968 Convention is set out in Schedule 1. If matters had rested there, the effect of Articles 2 & 3 of the 1968 Convention, when given the force of law by section 2 of the 1982 Act, would have been to abrogate Admiralty jurisdiction in rem vis-a-vis defendants domiciled in other Contracting States. This would have enabled the defendants to succeed on their second motion. But matters do not rest there. Articles 2 & 3 are subject to certain exceptions set out in Articles 5–18, and, more important, are subject to the provisions of Article 57. Article 57 provides:
"This Convention shall not affect any conventions to which the Contracting States are or will be parties and which, in relation to particular matters, govern jurisdiction or the recognition or enforcement of judgments.
…..
With a view to its uniform interpretation, paragraph 1 of Article 57 shall be applied in the following manner:
(a) The 1968 Convention as amended shall not prevent a court of a Contracting State which is a party to a convention on a particular matter from assuming jurisdiction in accordance with that convention, even where the defendant is domiciled in another Contracting State which is not a party to that convention.
(b)…"
One of the special conventions preserved by Article 57 is the International Convention on Certain Rules concerning Civil Jurisdiction in matters of Collision ("The Collision Convention") signed in Brussels on May 10th 1952. The Collision Convention is one of the conventions listed by Mr P. Jenard in his report on the 1968 Convention at page 59. We are entitled to have regard to the Jenard Report by virtue of section 3(iii) of the 1982 Act. The United Kingdom and Italy are both parties to the Collision Convention. Article 1 of the Collision Convention provides:
"An action for collision occurring between seagoing vessels, or between seagoing vessels and inland navigation craft, can only be introduced:
(a) either before the Court where the defendant has his habitual residence or a place of business;
(b) or before the Court of the place where arrest has been effected of the defendant ship or of any other ship belonging to the defendant which can be lawfully arrested, or where arrest could have been effected and bail or other security has been furnished;
(c) or before the Court of the place of collision when the collision has occurred within the limits of a port or in inland waters".
Article 3 provides:
"Counterclaims arising out of the same collision can be brought before the Court having jurisdiction over the principal action in accordance with the provisions of Article 1".
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