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© Prof. William Tetley, Q.C.∗
Preface I. II. III. Introduction Choice of Jurisdiction – Six Steps to Follow International Carriage of Goods Conventions and Choice of Jurisdiction 1) 2) 3) 4) IV. V. VI. The Hague Rules 1924 The Hague/Visby Rules 1968/1979 The Hamburg Rules 1978 The Multimodal Convention 1980
Jurisdiction Clauses Invalid under National Law Jurisdiction Clauses Restricted by National Law Jurisdiction Clauses Restricted by European Law 1) 2) 3) The Brussels Convention 1968 EC Regulation 44/2001 Other conventions
Is There a More Convenient Jurisdiction?
VIII. United States - Forum Non Conveniens 1) 2) 3)
Private and public interest factors Forum non conveniens –not a characteristic feature of U.S. general maritime law Admiralty - no special restrictive rule
Professor of Law, McGill University; Distinguished Visiting Professor of Maritime and Commercial Law, Tulane University; counsel to Langlois Kronström Desjardins (Langlois Gaudreau O’Connor) of Montreal. The author is indebted to Vanessa Rochester, a third-year student at the Faculty of Law of McGill University and to Robert C. Wilkins, B.A., B.C.L., for their assistance with the preparation and correction of the text.
2 4) XI. Forum non conveniens and in rem jurisdiction
United States – Foreign Forum Selection Clauses in Bills of Lading 1) 2) 3) 4) Foreign jurisdiction clauses generally unenforceable Foreign jurisdiction clauses presumptively valid Foreign arbitration clauses presumptively valid Criteria as to enforcement - U.S. a) Is U.S. law being avoided? b) The parties should not lose rights already acquired c) The convenience of the new jurisdiction is less important today d) Must not contravene sect. 3(8) e) Reasonableness f) In rem - United States g) Transfer within the U.S. Jurisdiction clauses and third parties
The United Kingdom - Forum Non Conveniens 1) 2) 3) 4) 5) 6) 7) Introduction The modern regime – U.K. The rule in The El Amria Res judicata Public policy, English law U.K. - E.U. – EC Regulation 44/2001 Service out of jurisdiction - The 1982 Act and CPR Rule 6.20 a) Where leave is not required b) Where the court's leave is required 8) No service of a claim form in rem out of jurisdiction Canada - Forum Non Conveniens 1) 2) Introduction - the principle Jurisdiction clauses - the criteria - Canada
France 1) 2) 3) 4) 5) Introduction Prohibition under law French domestic law - jurisdiction clauses France and the 1968 and 1978 Conventions Opposability to consignee and endorsees
XIII. Jurisdiction Clauses Per Se - The Criteria - All Jurisdictions 1) The conflict of law rules
3 2) 3) The law by which to judge the clause Discretion a) Clear and precise b) Jurisdiction clauses by reference c) Jurisdiction clauses and third parties d) Legibility of the clause e) Plurality of defendants
XIV. Burden of Proof – Forum Non Conveniens and Jurisdiction Clauses XV . Staying Suit -All Jurisdictions
XVI. The Six Steps Applied XVII. Anti-Suit Injunctions XVIII. Non-Recognition of Foreign Judgments and Awards XIX. Damages for Breach of Jurisdiction and Arbitration Clauses and Agreements XVIII. Conclusion
. cheerful persona. Tulane University. He is also an administrator who. Q. judge of good wine and remarkable and generous host.. With appreciation and gratitude. Distinguished Visiting Professor of Maritime and Commercial Law. so that the Tulane Maritime Law program is outranked nowhere else.∗ Preface PROFESSOR ROBERT FORCE It is an especial pleasure to join with colleagues from around the world in honouring Robert Force. He has also been a kind and generous friend. analyst and writer on law – in other words. McGill University. Professor McGill Law Faculty Montreal. which is much more difficult. Q. as a scholar. B.C. B. as well as a researcher. Wilkins.L.. for their assistance with the preparation and correction of the text. Bob Force combines all this with a happy. Niels F.4 JURISDICTION AND FORUM NON CONVENIENS IN THE CARRIAGE OF GOODS BY SEA Prof. William Tetley.C. CANADA ∗ Professor of Law. order and direction. William Tetley. An esteemed chef.A. as Director of the Tulane Maritime Law Center. counsel to Langlois Kronström Desjardins (Langlois Gaudreau O’Connor) of Montreal. has a lawyer son. took the great tradition of maritime law teaching at Tulane and gave it form. Johnsen Professor of Maritime Law at Tulane University Law School.C. he can also be a pleasant and popular guest. He has been happily married to Ruth for 42 years. The author is indebted to Vanessa Rochester. a third-year student at the Faculty of Law of McGill University and to Robert C. I have known him for twenty-five years as a devoted and very competent law teacher. a doctor son and what could be a spoiled grandson.
1932 AMC 512 at p.5 I. Perusahaan Umum v.A. v. Compania Colombiana del Caribe) 339 U. 223 note 13 (1981). In consequence.6 which latter has its closest connection with the civil law.S. Introduction In the past. 3 Ibid. 422-423. as well as the yet more recent movement towards international conventions on procedure.) 435 at p. Miller 510 U. 197 at p. however. 1932 AMC 512 at p. at pp. 413. 865-868.S. 501 at p.2d 392 (2 Cir. 5 See Lord Diplock in The Abidin Daver  1 Lloyd's Rep.2 and is of major importance in maritime law. 918 (1994). Supreme Court justices. where he refers to “the Scottish legal doctrine of forum non conveniens”. 344. 443 at p. 1994 AMC 913 at p. motions for stay have been received more sympathetically. 65 F.” 6 The Belgenland 114 U. 285 U. 2 The other two branches are choice of law and recognition of foreign judgments. 420-421. 697. 355 at p. The use of a consistent conflict of law methodology would be another major boon to transnational harmony in private international law. 443 at p. The Jerusalem 13 Fed Cas. 1950 AMC 1089 at p.C. (H. Paterson Steamships Ltd.S. Admiralty too has had a tradition of being much more open to jurisdiction clauses in bills of lading and to the principle of forum non conveniens.4 while it has been known much earlier in some civil law regimes5 and in Admiralty law. Just as it is imperative that maritime law be uniform and international and that choice of law rules be similar throughout the world. The Capricorn. v. 1994 AMC 913 at p. 504 (1947). 1235. Gilbert 330 U.S. v.1 Choice of jurisdiction is one of the three major branches of conflict of laws. See American Dredging Co. 339 at p.S. Reyno 454 U. because of the mobility of ships (the usual defendant) and the fact that carriage by sea very often involves more than one jurisdiction. 200 and Lord Wilberforce at p.3 so is it essential that choice of jurisdiction rules used by various seafaring nations be the same. 365-366 (1885). 207. 451. as does Lord Reid in The Atlantic Star  2 Lloyd's Rep. v.7 Canada Malting Co. where three of five U. courts properly seized with a dispute. 37-43. A/S Den Norske Afrika Og Australie Line. in recognizing that forum non conveniens “originated in Scotland. v.S. (9 Wall. although deciding that forum 1 . who mentions Société du Gaz de Paris v.  2 S.L. 918 (1994). 248 note 13. See also American Dredging Co. citing Piper Aircraft Co. 559 (No.S. have usually refused motions calling for the stay of proceedings. which passage was quoted in Gulf Oil Corp. at pp. 1099 (1950). Recently. 450. Tel Aviv 711 F.) 13. The Maggie Hammond 76 U. Unfortunately that is not the case today. 235 at p. S. 413 at pp. See Tetley. Navigation (Les Armateurs Français)  S.D. 209. 515 (1932).2d 1231 at p. and became part of the common law of many States. Co. Rep. United States Merchants' & Shippers' Ins.S. 1814). where the House of Lords recognized forum non conveniens as a doctrine of general application in Scotland.C. 1983). 1933). 1982 AMC 214 at p. 4 Canada Malting Co. 684 at p. To fully understand forum non conveniens and the discretionary right of the trial judge.. so that a whole new body of forum non conveniens law has sprung up.L. 516 (1932). Mass. See also the reference to “Scottish authorities” in Antares Shipping v.S. Paterson Steamships Ltd.S. International Conflict of Laws. showing the significant progress that has been made towards international uniformity of conflict of law rules through international conventions and national legislation based on such conventions. v. (1925) 23 L. 457 (1870).R. 449. the courts of all nations have jealously guarded their jurisdictions and have looked unfavourably on clauses in contracts which called for suit elsewhere. v. 71-72 (5 Cir. one must appreciate that forum non conveniens has been used by both courts of Equity and of common law. v. ibid. 1994 at pp. 1985 AMC 67 at pp. 791 and 867. See Tetley. Miller 510 U. 422 at p. 7293) (C. at pp. 285 U. The Cali (Swift & Co.C.
at pp. For example. L. 725 (C. consideration is given to the very special Admiralty problem of declining jurisdiction when an in rem arrest of a ship has been made. 7-60. Chap.A. in Antares Shipping v. and the second is jurisdiction to decide whether the Court has jurisdiction of the former kind. 721 at p.13 Only if it has jurisdiction may it proceed. 11 United Nations Convention on International Multimodal Transport of Goods. 1968. Astro Dinamico  1 Lloyd's Rep. the Australian Carriage of Goods by non conveniens was not a characteristic feature of admiralty law.R.” 7 Tetley. 13 The first principle of Lord Brandon in The El Amria  2 Lloyd’s Rep. reprinted  ETL 469. See also comments by Laskin. of course. otherwise. 1998. however. to determine if there is a direction in that law as to jurisdiction. 49(3) of the Supreme Court Act. In some jurisdictions. and in force November 1. May 24. “A Definition of Canadian Maritime Law” (1996) 30 U. 1981. Which Benefits from Both Its Civil and Common Law Heritages)” (1999) 23 Tul. 439-440. Canada and France in respect to carriage of goods8 under bills of lading. 8 International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading. 2 Ed. it must dismiss the suit. the court seized with the case must decide if it has jurisdiction12 by virtue of the legislation which created it. 1931. c.6 The present article describes choice of jurisdiction rules and the principle of forum non conveniens in Admiralty in the United States. See also Canada’s Federal Court Act. Barking Corporation  1 K. Mar. F-7. There are two distinct kinds of jurisdiction therefore: “the first is jurisdiction to decide the action on its merits. 50: “(1) The Court may. II. the court must look to the law which applies to the case before it. C. Also examined is the effect of the Hague Rules. signed at Brussels. but that. nevertheless agreed that “… within federal courts it [forum non conveniens] may have been given its earliest and most frequent expression in admiralty cases.Rev.9 the Hamburg Rules10 and the Multimodal Convention11 on jurisdiction clauses and on the principle of forum non conveniens. in its discretion. the United Kingdom. 9-24 and 473-474.C. 2003. 54). Tetley. it was not deciding whether it had jurisdiction to determine the case on its merits. 137. in William Glyn's v. out of hand. 1978. 12 There is no intention in this article to go into questions regarding the jurisdiction conferred upon various courts by national legislation. signed at Brussels. the Visby Rules. (a) on the ground that the claim is being proceeded with in another court or jurisdiction. 119 at p. 1977. signed at Geneva. R.K. 317.1 at pp. and in force June 2. c. sect. a court which may not have jurisdiction on the merits may have jurisdiction by statute to decide a question of stay. 1980. Tetley. signed at Hamburg March 31.L. Firstly. 456. or (b) where for any other reason it is in the interest of justice that the proceedings be stayed.14 Secondly.. “The General Maritime Law – The Lex Maritima” (1994) Syracuse J. 1924. and in force June 23. Choice of Jurisdiction – Six Steps to Follow Choice of jurisdiction problems may be settled by the following six steps taken in order.S. stay proceedings in any cause or matter. “Maritime Law as a Mixed Legal System (with Particular Reference to the Distinctive Nature of American Maritime Law. 9 Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading. in so doing.B.B. August 25. 10 United Nations Convention on the Carriage of Goods by Sea. 1992. 422 at pp.) reads: “assuming the claim to be otherwise within its jurisdiction…” 14 The House of Lords. 453 at p.J. & Comm.C. not in force. 123 (H. 1981. Int’l L. The Capricorn  2 S. Maritime Liens & Claims. International Maritime and Admiralty Law. Tetley. U. Tetley. February 23. 1985. held that it had jurisdiction to entertain an application for a stay (in virtue of sect.” See Wilkinson v. 107. Finally.).C.J.” .L.
Mankabady. if it is reasonable. 1978 at p. sect. Statutory Rules 1998. 16 International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading. adopted at Brussels.17 Bills of lading under the Rules are often not signed by the shippers. to which it is called upon to defer. 1988 at pp. which arrest normally gives jurisdiction in the place of the arrest. but in some document (such as a charterparty). the court will stay the suit by an order which will preserve the rights of the parties. International Maritime and Admiralty Law.. If the jurisdiction clause is not in the bill of lading (or other immediate evidence of the contract). 17 See. 1) International Carriage of Goods Conventions and Choice of Jurisdiction The Hague Rules 1924 The Hague Rules 192416 have no provision dealing with jurisdiction or arbitration of cargo claims. Marine Cargo Claims. the incorporation by reference and notice of the incorporation must be considered carefully. and in force as of June 2. 11(1) and (2). who therefore do not have the jurisdiction/arbitration provisions brought specifically to their attention. as amended by the Carriage of Goods by Sea Regulations 1998. i. consignees or endorsees. Appendices “P” and “Q”. August 25. .7 Sea Act 199115 holds invalid any clauses in most sea carriage documents ousting Australian jurisdiction. No. the BIMCO Liner Bill of Lading (Conlinebill 2000”). both types of clauses have generally been held valid by courts in bill of lading disputes. Montreal.. see Tetley.).g. 1931 (commonly known in English-speaking countries as the "Hague Rules"). as amended. August 22. at pp. Such clauses ordinarily call for suit or arbitration in the jurisdiction most convenient to the carrier. The Hamburg Rules on the Carriage of Goods by Sea.. of November 2000 at clause 4. 1121-1129. the court's consideration will also be affected if the suit has been commenced by an action in rem and an arrest of a ship. ibid. III. See also BIMCO's non-negotiable Liner Sea Waybill (LINEWAYBILL"). 3 Ed. provided they are clear and unambiguous. unless they have a regular course of dealing with the carrier and are then presumed to be aware of the fact that such a clause is typically found in such a document. Leyden/Boston. 1924. e.. the terms and specific wording of that clause must be considered carefully. Fourthly. 1997 at clause 3. to verify that such incorporation is complete and valid. if there is a jurisdiction clause in the contract (the bill of lading). is appropriate and whether the balance of convenience favours the case being heard there. 861-862 and 863-864 respectively. at pp. ed. 2) 15 The Hague/Visby Rules 1968/1979 No. Inc. Thirdly. if the new jurisdiction is deemed to be convenient and proper in the circumstances. Les Éditions Yvon Blais. For the texts of these two forms. very often in the place of the carrier’s principal place of business. issued by BIMCO. 160 of 1991 (Cth. Sixthly. Otherwise the court will retain the suit in its own jurisdiction and will refuse the motion for stay. and an English translation. the court must decide if the other jurisdiction. 174. See also two sample clauses in S. Nevertheless. Sijthoff.e. 2003. 98. 1111-1120. See the official French text reproduced in Tetley. Fifthly.
C. The Nordic countries (Denmark. 21(2) solves the difficult problem of jurisdiction being acquired by the arrest of the ship in rem. A number of countries have enacted national legislation in an effort to give effect to the Hamburg Rules options as to jurisdiction. 2001. 2 Ed. 3) The Hamburg Rules 1978 The Hamburg Rules19 at art. 30. 21 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. at his option. adopted at Brussels on September 27. but in some cases with certain national qualifications. to designate the place of suit after a claim under the contract of carriage by sea has arisen. on the other. contain no provisions on jurisdiction or arbitration.E. Again. In addition. 1979 (in force February 14. Norway and Sweden). 304/36. adopted at Brussels. nevertheless adopted a common maritime code in 1994. nr 22. Protocol 1979. In particular.E. The Hague Rules 1924. the jurisdictional provisions do not apply if they would violate any provision of either the Brussels Convention 196821 (binding Denmark) or the Lugano 18 Protocol to Amend the International Convention for the Unification of Certain Rules Relating to Bills of Lading. updated to June 30. on the one hand. 1968 (in force June 23. signed at Hamburg on March 31. however. but they exist only if the port of loading or the agreed or actual port of discharge is located in one of those four countries. however. 299/32. 4) the port of discharge.10. 20 This common Nordic Maritime Code came into force on October 1. for example. 1994. L.8 The Hague/Visby Rules 1968/1979. and 5) any additional place designated for that purposes in the contract of carriage by sea. Protocol 1979"). see English text in O.1972. December 21. the Swedish Maritime Code.R. Art. 1977) (commonly known as the "Visby Protocol 1968" and the Protocol to Amend the International Convention for the Unification of Certain Rules Relating to Bills of Lading as modified by the Amending Protocol of 23rd February 1968.20 Under this Code. 1992. whether or not those parties have really taken cognizance of their terms. such clauses are generally upheld by courts and may be set up against parties to the bill of lading or similar document of carriage. 19 United Nations Conventions on the Carriage of Goods by Sea. the options as to places for suit are similar to those permitted by the Hamburg Rules. L. 2) the place where the contract of carriage was made if the defendant has a place of business. for example. The arrest is valid but. 2000. while still adhering to the Hague/Visby Rules. branch or agency there the contract through which the contract was made. by agreement.C. 21(5) permis the parties. 21(l) set out rules governing where suit may be taken and limiting the right of contracting parties or of the courts to agree to other jurisdictions.. art. as . See. and the Finnish and Swedish versions. as between the Danish and Norwegian versions of the Code.12. Jure AB.D. 21(1) authorizes the cargo claimant.18 like the original Hague Rules. February 23. Art. published in Swedish and English by the Axel Ax:son Johnsons Institut för sjörätt och annan transporträtt. 1978. 3) the port of loading. Finland. The numbering of the articles differs. the suit must be transferred to an acceptable jurisdiction defined in art. to take suit before the court of: 1) the principal place of business or (if there is no such place) the habitual residence of the defendant. 31.J.D.R. 21(1) upon the defendant providing adequate security to ensure payment of any subsequent judgment. 1968 (O.1978). are commonly known as the "Hague/Visby Rules 1968/1979". and in force November 1.J. 1984) (commonly known as the "Visby S. adopted at Brussels. as amended by the Visby Protocol 1968 and the Visby S. at the petition of the defendant. Stockholm.
Allan Philip. 11 of the Australian Carriage of Goods by Sea Act 1991. 26(3).11. 198024 has similar provisions at art. 319/9. “Scope of Application. 1(1)(g). 1988.2. 310 and 311 of the Danish Maritime Code. paras. This Schedule of Modifications is Schedule 1A of the 1998 Regulations. Schedule 1. Chap. (O. 1998.26 reads: “11 (1) All parties to: (a) a sea carriage document27 to which. 1980. 2000 (O.E. except in respect to actions in rem. branch or agency through which the contract was made. or relating to a contract of carriage to which. except Denmark. adopted at Lugano. No.J. Norway and Switzerland). The Carriage of Goods by Sea Regulations 1998 amending the Carriage of Goods by Sea Act 1991. at art.1 and 6. provided that the defendant has there a place of business.23 4) The Multimodal Convention 1980 The Multimodal Convention. para.1988). For example. 24 United Nations Convention on International Multimodal Transport of Goods.E. 26. 160 of 1991 (Cth. signed at Geneva on May 24. 25. or 5) any other place designated for that purpose in the multimodal transport contract and evidenced in the multimodal transport document.2001).J. “Arbitration & Jurisdiction in Carriage of Goods by Sea and Multimodal Transport – Can we have international uniformity?”  ETL 735 at pp. were authorized by the Carriage of Goods by Sea (Amendment) Act 1997. L 12/1. 123 of 1997. 753-754. See also Tetley.) 26 Statutory Rules 174 of 1998. 6. to mean any of the following: a bill of lading. which governs jurisdiction and the recognition and enforcement of judgments in civil and commercial matters as between the states of the European Union and those of the European Free Trade Association (Iceland. Liechtenstein.9 Convention 1988.C.C. the parties may agree on a place for instituting an action after a claim has arisen. IV. referring to arts. 319-321. 2) the place where the multimodal transport contract was made. 60. By art. by E. 27 The term “sea carriage document” is defined in Schedule 1A (Schedule of Modifications) of the Carriage of Goods by Sea Regulations 1998. sect. or 3) the place of taking the goods in charge for international multimodal transport.22 both of which conventions make the domicile of the defendant the major criterion of jurisdiction. not in force. or a negotiable document of title . in force July 1.1. the amended Hague Rules28 apply. and as later replaced for all European Union states. 2002. Choice of Law and Jurisdiction in the New Nordic Law of Carriage of Goods by Sea” (1996) Il Diritto Marittimo 308 at pp. September 16. sect. 25 No. 22 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. The cargo claimant enjoys the option of suing the multimodal transport operator within the jurisdiction of: 1) the latter’s principal place of business or habitual residence. 16. effective March 1. 23 See Swedish Maritime Code. or 4) the place of delivery of the goods. Regulation 44/2001 of December 22.C. 7(2) of which authorized the addition of a “Schedule of Modifications” to the 1991 statute as amended. L. Jurisdiction Clauses Invalid under National Law Clauses invoking foreign jurisdiction may be without effect by the terms of local Hague or Hague/Visby legislation or by the terms of the international conventions.25 as amended by the Carriage of Goods by Sea Regulations 1998. 13. relating to the carriage of goods from any place in Australia to any place outside Australia or subsequently amended.
the amended Hague Rules apply. 10(1)(b)(iii) refers to contracts of carriage of goods by sea “… contained in or evidenced by a nonnegotiable document (other than a bill of lading or similar document of title).W. 179 (N. Tetley. like sect. 9 of Australia’s former Sea-Carriage of Goods Act 1924. Mitsui & Co. or a non-negotiable document (including a consignment note and a document of the kind known as a sea waybill or the kind known as a ship’s delivery order) that either contains or evidences a contract of carriage of goods by sea. 9 of the former 1924 statute as interpreted in the Wilson decision (supra).R. of Aust. 374 (Aust. Sup. is not negotiable.L. note 80. Kiukiang Maritime Carriers (The Kiukiang Carrier)  159 A. See also Wilson v. but only on condition that the arbitration is conducted in Australia.S. (1974) 24 F. so as to add sect.  2 N. 142 at pp. (Australia) Ltd.W. relating to the carriage of goods from any place outside Australia to any place in Australia. or relating to a contract of carriage to which. or a bill of lading that. 29 Subsect. 164-165 (Fed. Sup.). Marine Cargo Claims. The People's Insurance Co. and has received a similar interpretation. Limited v.): A French bill of lading for a shipment from France to Australia called for suit in France. 153. 1988. at pp. note 16.). International Conflict of Laws.). however. The Supreme Court of New South Wales. 28 The “amended Hague Rules” refers to the Hague/Visby Rules 1968/1979. (1996) 141 A. Ct. 123 of 1997 (Cth. 3 Ed. Ct. or (ii) a non-negotiable document of a kind mentioned in subparagraph 10(1)(b)(iii) relating to such a carriage of goods.R. 1994 at p. England. 544 (High C. No.L.L. 32 The Federal Court of Australia has been held that sect 11 of the Carriage of Goods by Sea Act 1991. Compagnie des Messageries Maritimes  1 Lloyd's Rep. v.32 31 that is similar to a bill of lading and that contains or evidences a contract of carriage of goods by sea.). in appeal  2 Lloyd's Rep. the Hague/Visby Rules 1968/1979] are to govern the contract as if the document were a bill of lading.10 (b) a non-negotiable document of a kind mentioned in subparagraph 10(1)(b)(iii). 229 (N. declared that a clause calling for actions to be tried in a French Court was invalid.” 30 The Australian Carriage of Goods by Sea Act 1991 was amended by the Carriage of Goods by Sea (Amendment) Act 1997. are taken to have intended to contract according to the laws in force at the place of shipment. 11(3) to the 1991 statute. whereby an arbitration clause or agreement is permissible (even though it may preclude or limit the jurisdiction of an Australian court over a cargo claim).S. .L. See. or (b) preclude or limit the jurisdiction of a court of the Commonwealth or of a State or Territory in respect of a bill of lading or a document mentioned in subsection (1). (2) An agreement (whether made in Australia or elsewhere) has no effect so far as it purports to: (a) preclude or limit the effect of subsection (1) in respect of a bill of lading or a document mentioned in that subsection. 22 of 1924. renders of no effect a clause in a bill of lading issued under a voyage charterparty which called for arbitration of cargo claims in London. v.R. being a contract that contains express provision to the effect that the amended Hague Rules [i. by law. 783-784. as amended for Australia by the Schedule of Modifications (Schedule 1A) of the Carriage of Goods by Sea Regulations 1998.) where a written contract for the sale of goods was not considered as being a “document relating to the carriage of goods” under the former sect. Ltd. Aust. 31 No.29 relating to such a carriage of goods. See also Akai Pty Ltd.W. or (c) preclude or limit the jurisdiction of a court of the Commonwealth or of a State or Territory in respect of: (i) a sea carriage document to which. See Hi-Fert Pty.R. 191..S.e. C. High C. where an exclsive English jurisdiction clause in an insurance policy was not enforced because the English court would not apply a mandatory and otherwise applicable Australian statute on insurance contracts. See Tetley. John Churcher Pty Ltd.”30 This legislation is very similar to sect. 9(1) of the Act. upheld by the Australian High Court.
adopted by the Fourth Session of the Seventh National People’s Congress of the People’s Republic of China on April 9. waybill or like document for the carriage of goods inbound to South Africa. to bring an action on the bill.1). The word “court” in this context. 48 of France’s Nouveau Code de procédure civile.R.C. 1997. Today. Paris. London. 400 and para. “[n]otwithstanding any purported ouster of jurisdiction.34 have enacted similar nationalistic legislation on jurisdiction clauses in bills of lading and other sea carriage documents. Rèmond-Gouilloud. para. 87-922 of November 12.R. 1966. 621 at p. similar documents of title or nonnegotiable documents covering shipments to and from New Zealand.’s maritime courts. although the article does not expressly preclude selection of a foreign forum.R. although the requirement that the shipper sign the bill was repealed in 1987. as well as the consignee or holder of any bill of lading. 1987. 447 at pp. para.) jurisdiction clauses in bills of lading. sects. 36 The requirement that bills of lading be signed by shippers was repealed by Decree No. New Zealand.C. See generally Tetley. which preclude the ouster of New Zealand jurisdiction by foreign jurisdiction clauses in bills of lading. 210(1) and (2). Witherby Publishers. however. sect. for example. exclusive jurisdiction clause or agreement to refer any dispute to arbitration”. 48. V.36 it must nevertheless be proven that cargo genuinely consented to the clause. which permit any person carrying on business in the Republic. 257 of the Civil Procedure Law 1991 is more liberal as regards foreign arbitration. in French internal law. 346347.R. although that statute does permits arbitration of cargo claims outside. 37 of Decree No. Droit Maritime. A. where the foreign jurisdictions designated by such clauses enforce forum selection provisions in similar contracts calling for suit in the P. 426427 and para. para. 1993.C. 1997. thus being slightly more liberal than the corresponding Australian statute which allows only Australian arbitration. at art. would seem to mean the court of the P. as well as inside. which permits both parties. Art. and jurisprudence cited there. 386-387. waybill or document before the competent court in the Republic. having an actual connection with the case. 499 at pp. under art.e. 33 . however.1937. 384. In practice..37 The People’s Republic of China enforces foreign jurisdiction clauses in carriage of goods by sea contracts only on the basis of reciprocity – i. amending art. 7. 445 at p. therefore. the autonomy of parties to agree on a foreign jurisdiction for litigating their cargo claims is severely restricted. No. See Zhang Jinxian.4. the burden of making such proof resting with the carrier. 533 at pp. 3(1) and 3(2). Journal officiel. 35 Loi du 2 avril 1936. China’s Maritime Courts and Justice. foreign jurisdiction clauses in ocean bills of lading are recognized by Chinese maritime courts only where the foreign country concerned recognizes Chinese (P. April 11. 66-1078 of December 31. 38 See. 10 also prohibited jurisdiction clauses which ousted the authority of French courts in cases of carriage between French ports in a French vessel (navigation réservée). D. 104 of 1994.C. Jurisdiction Clauses Restricted by National Law The former French domestic Law of April 2. 1936. in a case concerning contract disputes or disputes over property rights involving foreigners (including maritime contract disputes).C. only Dutch and German jurisdiction clauses were recognized in the P. “Arbitration & Jurisdiction in Carriage of Goods by Sea and Multimodal Transport – Can we have international uniformity?”  ETL 735. 193635 at art. Nevertheless. I. As of 1997. Loi relative aux transports des marchandises par mer.C.11 A number of other countries. Act 1 of 1986. para.2 at p. The court selected must be clearly identified in the bill and. 2 Ed. the Civil Procedure Law 1991 of the People’s Republic of China. such as New Zealand33 and South Africa.38 See New Zealand’s Maritime Transport Act 1994. to agree in writing to trial by the court at the place that has an actual connection with the dispute. prohibiting the ouster of local jurisdiction. 244. jurisdiction clauses in bills of lading may only be invoked against merchants and these clauses must figure prominently in the bills. 34 See South Africa’s Carriage of Goods by Sea Act 1986. Vialard. 1991. International Maritime Bureau. Pedone. Presses universitaires de France. 37 See M. Droit Maritime.
6. c. For decisions on the application of sect. 2001.C. balanced and 39 40 S. after a claim arises under the contract. v.). in cases similar to those enumerated in arts.n. c. v. but permits the cargo claimant to opt instead for suit or arbitration in Canada. C. 46. the proposal is a way of giving the cargo claimant a Canadian litigation/arbitration option.C. Sect.A. The Castor (2002) 297 N. the plaintiff. Nestlé Canada Inc. is in Canada.S.” Sect. New Zealand and South Africa. the residence or place of business of the defendant or the place of contracting). 2001. . 21 and 22 of the Hamburg Rules. “(2) Notwithstanding subsection (1). where (a) the actual port of loading or discharge.M. designate by agreement the place where the claimant may institute judicial or arbitral proceedings. even where Hamburg does not apply to the bill of lading contract of its own force or through incorporation by reference. If the Hamburg Rules apply to the contract. in accordance with the contractual clause or.12 Canada. or the intended port of loading or discharge under the contract. while still favouring local jurisdiction and arbitration.39 provides the marine cargo claimant with the option of suing or arbitrating in Canada. however. It does not prohibit ousting Canadian jurisdiction over bill of lading disputes. under sect.40 In the latter case. under its Marine Liability Act. 46 of the Marine Liability Act provides: “46(1) If a contract for the carriage of goods by water to which the Hamburg Rules do not apply provides for the adjudication or arbitration of claims arising under the contract in a place other than Canada. 6. as an alternative to suing or arbitrating abroad as per the bill of lading. 46. despite the presence in the bill of lading of a foreign jurisdiction or a foreign arbitration clause.c. the parties to a contract referred to in that subsection may. alternatively.. a claimant may institute judicial or arbitral proceedings in a court or arbitral tribunal in Canada that would be competent to determine the claim if the contract had referred the claim to Canada. to sue or arbitrate in Canada. or (c) the contract was made in Canada. see IncremonaSalerno Marmi Affini Siciliani (I.S.) s. 2003 AMC 305 (Fed C. In effect. in situations where that option would exist under Hamburg. But if Hamburg does not apply. in force August 8.). of course. It seems fair. the cargo claimant may sue in the contractually stipulated place or in any of the other optional venues listed in those Rules. 2001.R.A. the claim must be one which the Canadian court or tribunal would have jurisdiction to adjudicate and the case must have some real and substantial connection with Canada (determined either by the location of the actual or intended ports of loading or discharge. may choose to litigate or arbitrate outside Canada. S. under certain conditions. the claim must have arisen after the jurisdictional provision has been agreed. branch or agency in Canada. of Can. is significantly less restrictive and nationalistic than the corresponding legislation in Australia. 151. 46(1) of Canada's Marine Liability Act. The Viljandi  ETL 760 (Fed. (b) the person against whom the claim is made resides or has a place of business.
E.K. 388/1. 2002. See also Estasis Salotti di Colzani Aimo e Gianmario Colzani v. Some of these accession conventions made substantive amendments to the Brussels Convention 1968.E. be the “subject of a consensus between the parties. which must be clearly and precisely demonstrated. London. L. see English text in O. (see sects.E. 45 See. and Austria.1972.45 Subsequent decisions of the European Court of Justice. in order to protect the weaker bargaining party from foreign forum selection clauses inserted in boilerplate language by the stronger party. U. pending Canada's possible eventual transition from the Hague/Visby Rules to the Hamburg Rules. 44. there must be the possibility of attacking 41 .K.E.C. Mainschiffahrts-Genossenschaft Eg v.C. 43 Protocol on the interpretation of the 1968 Convention by the European Court.46 Although under its Marine Liability Act. 1987.J. 41.10.J.m.42 This Convention.1989) and the Accession Convention of November 29. 1968.15/1. See of the Accession Convention of October 25. Les Gravières Rhénanes SARL. This Protocol permits the Court of Justice of the European Communities to interpret the Brussels Convention 1968 in cases referred by national courts of E. on the admission to the European Union of Greece.97 at p. 2005 and every five years thereafter (see sects. RUWA Polstereimaschinen G. for example. 44 Convention on the accession to the 1968 Convention and the 1971 Protocol of Denmark. 304/36. and of which the weaker party remains unaware until it is too late.C. which includes the 1971 Protocol of Interpretation43 annexed to it. rendered under art. 43(1) and (2) and Schedule 3 of this Act). See generally Geoffrey Brice. 1982.  E. 1831. 304/1.12. 285/1. the Accession Convention of May 26. 17 of the Brussels Convention 1968.  ECR I-911.” 46 See. 299/32. 30. 1989 for Spain and Portugal (O. L.12.1978). it has also adopted the Hamburg Rules 1978 and retains the option to bring those Rules into force..98). Spain and Portugal. have reaffirmed the essential importance of a genuine agreement between the parties as to the foreign jurisdiction concerned. requiring that a jurisdiction clause.J. c. Although this and other ECJ decisions maintain that the formalities required by the article are themselves “… a full.13 reasonable.H. signed at Luxembourg on June 3. “Maritime Claims: The European Judgments Convention”. para.C. 30. perfect and sufficient guarantee of the existence of consent or consensus” (see Briggs & Rees.b. Finland and Sweden. 45(1) and (2) and Schedule 4 of the Act). In the U. The rule was applied to bill of lading jurisdiction clauses agreed to by the parties.10. the Brussels Convention 1968 was given the force of law by the Civil Jurisdiction and Judgments Act 1982. 1975.01. 31. 27. was amended by the 1978 Accession Convention and subsequent Accession Conventions. 03. Case No. L. LLP.J.1997). 15. Canada gives the force of law to the Hague/Visby Rules 1968/1979 in respect of both international and domestic carriage of goods by water. the Republic of Ireland and the United Kingdom. Finland and Sweden (O. C-106/95.C. 31.44 Art. 41. Member States. 1996 for Austria.J.R.C. 1) Jurisdiction Clauses Restricted by European Law The Brussels Convention 1968 The Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (the Brussels Convention 1968) was signed at Brussels on September 27. L. 106). 1982 for Greece (O.. The Brussels Convention 1968 was re-amended three more times. the decision of the Court of Justice of the European Communities in The Tilly Russ  ETL 3 at p. as subsequently amended by various accession conventions.1978). signed at Luxembourg on October 9. for example. 55.41 VI.E.E. which came into force on January 1. 3 Ed. to be effective under art. to clauses confirming a previous oral agreement between them and to clause forming part of “the steady business relations” between the parties. 1978 (O.C.U. 42 Hereinafter described as the 1968 Brussels Convention (O. L. C. 1971 and in force September 1. 2. Civil Jurisdiction and Judgments. as so amended and re-amended. 17.10. 17 as it has evolved in wording since 1968. following the making of a report to Parliament by the federal Minister of Transport on the advisability of doing so before January 1.J. provided a rule requiring the courts of Contracting States to respect written jurisdiction agreements.  LMCLQ 281.
23(1)(a). 2000. also continues to govern three of the four remaining remaining States of the European Free Trade Association (EFTA). except for Denmark. L..e. at art. in any court of a European Union Member State. provides for jurisdiction clauses and agreements evidenced by electronic documents to be treated as “writings” for the purposes of art. unlike art. 107). adopted on by the Council of the European Union on December 22. which applies directly (i. 17 of the Brussels Convention 1968. 49 The EC Regulation. Its rule on jurisdiction agreements. The Lugano Convention of September 16. (i. is couched in terms very similar to those of the most recent text of art. and in force in all Member States of the European Union except Denmark.U. that court or those courts shall have jurisdiction. as of March 1. 2002. 319/9. 23.14 2) EC Regulation 44/2001 The Brussels Convention 1968 was replaced. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters.47 by the Regulation of the Council of the European Union (EC Regulation 44/2001)48. see Pierre Bonassies.C. but not Liechtenstein). L 12/1 to L 12/23. if the electronic communications leave a “durable record”. 48 EC Regulation No. “2. the EC Regulation establishes uniform rules on civil jurisdiction and the enforcement of judgments in civil and commercial matters. 2000) in matters of civil jurisdiction and the enforcement of judgments. have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship. except Denmark. 25. If the parties. Art. Any communication by electronic means which provides a durable record of the agreement shall be equivalent to ‘writing’. 47 Denmark chose not to bound by the EC Regulation. 1988 (O. Briggs and Rees suggest that such a possibility may lie in the development of an autonomous definition of “agreement” (see ibid. very similar to the Brussels Convention 1968.1988). or (c) in international trade or commerce.J. parties to contracts of the type involved in the particular trade or commerce concerned. duress.e.C. one or more of whom is domiciled in a Member State. and therefore is still governed by the Brussels Convention 1968 in its relations with the other Member States of the E. and also binds Poland (since that country acceded to the Lugano Convention on February 1. at p. “L’entrée en vigueur du règlement communautaire no 44-2001 du 22 décembre 2000 concernant la compétence judiciaire. 2002. or (b) in a form which accords with practices which the parties have established between themselves. and regularly observed by. see O. Such jurisdiction shall be exclusive unless the parties have agreed otherwise.J.11. without the need for any implementing national legislation) to proceedings instituted on or after March 1. Norway and Switzerland.49 the jurisdiction clause as invalid for fraud. For commentary.E. mistake. in respect of civil jurisdiction and the enforcement of judgments. . la reconnaissance et l’exécution des décisions de justice en matière civile et commerciale”  ETL 727. Such an agreement conferring jurisdiction shall be either: (a) in writing or evidenced in writing. in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to. Iceland.E. misrepresentation or frustration. 17 of the Brussels Convention 1968 as amended by the various Accession Conventions. the most pertinent portion of the new Regulation. Like the old Brussels Convention. For the text. This latter expression has yet to be interpreted by the European Court. 23 (1) to (3). read as follows: “1.
733. none of whom is domiciled in a Member State. 17 of the Brussels Convention 1968 and that the decisions rendered under art. November 9. 1999 (Case No. first para. June 21. parties to contracts of the type involved in the particular trade or commerce concerned”. therefore. In Trasporti Castelletti Spedizioni Internazionali SpA v. 187. On art. applying the Castelletti decision. need not name the court having jurisdiction. the courts of other Member States shall have no jurisdiction over their disputes unless the court or courts chosen have declined jurisdiction.  ETL 3. The same “imposed knowledge” of the usage concerned would seem to be imposed on the consignee of the bill of lading in the European Court’s decision in Coreck Maritime GmbH v.15 “3. obs. 23 of EC Regulation 44/2001 (like the most recent text of art. see Gaskell. Bonassies. 2000 at paras. Delebecque. 17 of the Brussels Convention generally. the objective knowledge of the trade usage by either party to the contract is irrelevant.  ECR I-9337.51to20. first para. supra. 23 of the Regulation.52 and its three main findings would appear to remain applicable to such clauses now that the very similar art. Ph. 17 from which the European Court of Justice in The Tilly Russ50 drew the criteria for a valid and enforceable jurisdiction clause.51 If this requirement of form is complied with. 23 of EC Regulation 44/2001 is in force:53 (1) the wording of the jurisdiction clause.  ECR I-1597. See P. in its decision in Coreck Maritime GmbH v. C-159/97). June 19. (Case No.81. DMF 2001. 52 November 9. 17 of the Convention by the Court of Justice of the European Communities. Asariotis & Baatz. Bonassies. 17. under art. 1984. where applicable. of the Brussels Convention 1968) is different from the pre-1978 text of art. for example. The European Court of Justice interpreted the most recent text of art. Ph. 2002. 23 only requires that the jurisdiction clause in the bill of lading be “in a form which accords with a usage in that trade or commerce of which the parties are or ought to have been aware and which in such trade or commerce is widely known to. March 16. the European Court of Justice held that the knowledge of the usage concerned is “independent of any specific form of publicity”. 11. In fact. 54 Thus. These elements. Delebecque. 387-98). 17.  ECR I-9337. Handelsveem BV. obs. The existence of the usage must be established. indicating that art. knowledge of such a generally and regularly observed usage is “imposed” on the shipper. Art. Where such an agreement is concluded by parties. March 21. Delebecque. may be “concretized”. DMF 2001. the jurisdiction clause must be given effect when one of the parties is domiciled in a Member State of the European Union.. (Case No 387/98). but rather by the practice generally and regularly followed in concluding a certain type of contract. Bulletin des transports 2002. will probably continue to apply under art. where the bill of lading jurisdiction clause did not expressly specify the name of the court selected. by the circumstances of the case. particularly in the Castelletti (supra) and Coreck Maritime (supra) cases. and regularly observed by.54 European Court of Justice. it suffices if the clause identifies objective elements on which the parties have agreed to select the court or courts to which to submit their present or future disputes. of the Brussels Convention 1968 in relation to bill of lading jurisdiction clauses. in the Coreck Maritime case. not by the national law of one of the contracting states. at p. with the result that the usage may be considered to be a consolidated practice. 17.  ETL 727 at p. supra.” (Emphasis added) The text of art. See also Cour d’Appel de Rouen. obs. Ph. See also Cour d’Appel de Versailles. which might be given to the standard form on which the clause appears.20. but rather merely called for suit in the court of the place of the “principal establishment 51 50 . 53 See P. 2001 (The Nedlloyd Van Neck)  ETL 926. DMF 2000. 187. Handelsveem BV. 734. which must be sufficiently precise to enable the judge seized of the case to determine whether he has jurisdiction. 2000. Bills of Lading: Law and Contracts. Hugo Trumpy SpA. 2000. 23 of EC Regulation 44/2001 is basically unchanged from art. 337.
emphasizing that under art. first para. June 18. notwithstanding the amendments to art. 20. 23 to accommodate a course of dealings between the parties and practices in international trade. of the Convention. the foreign jurisdiction clause was held unenforceable as against the subrogated underwriter of the consignee/ holder of the bill of lading. interpreted in the light of the commercial background of the case. 56 The Court held that it was not its responsibility to determine the applicable national law as a matter of interpretation of the Brussels Convention. 373. it is proper to verify the reality of the holder’s consent to the clause by reference to the requirements of art. where the Belgian Court decided that English.57 European law thus accepts jurisdiction clauses in bills of lading and other contracts. 59 See Gaskell. demonstrates clearly and precisely a consensus by the parties on the subject matter of the clause.A. 60 Siboti v.. rather.73 and 20.56 If such is not the case. being the successor to the rights and obligations of the shipper under the bill. agreed to by a shipper and a carrier. April 9. but rather that that law fell to be determined by the judge seized of the case. rather than Belgian law. See Cour d’Appel de Rouen. 71(1) of EC Regulation 44/2001 (similar to art. See also Rechtbank van Koophandel te Antwerpen. DMF 2003. Under those provisions. obs. Delebecque. 556. 17 and the changes introduced into art.  2 Lloyd’s Rep. however. 57 of the Brussels Convention 1968). 17 of the Brussels and Lugano Conventions were inapplicable to a bill of lading jurisdiction clause calling for suit in New York courts. the Regulation does not affect any conventions to which the Member States are parties and of the carrier”.  2 Lloyd’s Rep. 17. Ph.16 (2) art. 17 only applies if at least one party to the initial contract of carriage is domiciled in a Contracting State and if the parties agree to refer their disputes to a court or courts of a Contracting State. in acquiring the bill. the Court held that the validity of the forum selection agreement would have to be assessed by applying the conflict of law rules of the court seized of the dispute.58 and whether or not that forum has any connection with the dispute or the parties. See also Cour de Cassation. October 8. produces effects with respect to a third party holder of the bill. holding that art. observations Y. mutual consent between the contracting parties to sue in a determined or determinable forum. provided that the holder. 57 See. applied to the bill of lading contract and therefore that the third party holder of the bill was bound by its jurisdiction clause. 1997 (The Adamastos).55 (3) a jurisdiction clause in a bill of lading. 364 at p. 2003 (The Sonara). where the language of the bill. Revue Scapel 2003. Tassel. See also Rechtbank van Koophandel te Antwerpen. where under the applicable French law. 2002 (The Dymphna). March 4. Bills of Lading: Law and Contracts. incorporation by reference of a jurisdiction clause into a bill of lading is effective. 55 Where the court selected is in a “third State”. 17 of the Brussels Convention 1968. 2003 (The Houston Express). 372. Cour de Cassation. the forum designation was held valid.60 3) Arrest in rem under other conventions Under art. The same test has been applied in France to arbitration clauses. as under the art. .A. BP France S.77. because it was not proven that the consignee had consented to the clause at the latest at the time of delivery. 364 at p. because there were sufficient objective elements in the bill and the surrounding circumstances to permit the identification of the carrier and the location of its principal establishment. 2000 at paras. 547. applying the conflicts rules of his national law.  ETL 453. for example. Asariotis & Baatz.59 Acceptance of forum selection agreements is not unconditional. 2002 (The Walka Mlodych). March 4. DMF 2003. 20. as interpreted by the European Court. 23 of EC Regulation 44/2001.  ETL 321. jurisdiction clauses must still reflect a consensus between the parties to the contract that is clearly and precisely demonstrated. BP France S. has succeeded to the rights and obligations of the shipper under the applicable national law. where those provisions reflect a genuine. 58 See Siboti v. it is governed by the very specific terms of the EC Regulation 44/2001 (and the Brussels Convention 1968 in the case of Denmark).
the domestic law permits such arrest in rem under the Supreme Court Act 1981. 380. 515. 1994 at pp.A. decisions on this matter (rendered with respect to art. clearly more appropriate forum in another jurisdiction where it would be better to try the suit. Gaskell. 3 Ed. 66 The Bergen (No. even if the shipowner or demise charterer is domiciled in another E. Tetley.. International Maritime and Admiralty Law. 1952 and in force February 24. May 10. See Gaskell. 54. if their domestic law gives jurisdiction to their courts. at para.62 which. 8. Asariotis & Baatz.U..128. having regard to the interests of the parties and the ends of justice. 2003 at pp.K. if they believe that. Civil Jurisdiction and Judgments. The court therefore embarks on an analysis to identify what court is the “more International Convention Relating to the Arrest of Sea-Going Ships. International Conflict of Laws. 8. the Penal Jurisdiction in Collision Convention 1952. the Athens Passenger Convention 1974. 61 . 2)  1 Lloyd’s Rep. In England. 17 of the Brussels Convention (now art.A. 8. State whose courts would normally have jurisdiction under the Regulation. to take jurisdiction over a dispute on the basis of jurisdictional foundations provided in another convention governing a “particular matter”. 710. The most important example of this type of convention on a “particular matter” is the Arrest Convention 195261 Art.114-20. 513. notably. See also Briggs & Rees. the English court.) is thus preserved and is permitted to override jurisdiction under the EU’s ordinary rules. either of their own motion or at the petition of one of the parties. Is There a More Convenient Jurisdiction? In common law countries. 57 of the Brussels Convention 1968 prior to the enactment of EC Regulation 44/2001. having arrested a ship in rem in accordance with the applicable procedure.13 at p.). there is another. 2000 at para. 62 U. English jurisdiction based on ship arrest would remain unaffected by an exclusive jurisdiction clause as contemplated by art. 2000 at para. c.15. although they have jurisdiction to decide the dispute.) and The Anna H  1 Lloyd’s Rep. as in fact has been done in at least one case where the bill of lading expressly provided for jurisdiction in Germany. but still relevant under the Regulation) in The Deichland  1 Q. The importance of this provision is that it permits Member States of the E. govern jurisdiction or the recognition or enforcement of judgments. the Civil Jurisdiction in Collision Convention 1952. 63 Briggs & Rees.B. 64 See the classic U.63 In consequence.64 Jurisdiction in rem (even where the defendant is not available for service in the U.65 Nevertheless. Tetley. the Civil Liability Convention 1992. 20. 23 of the EC Regulation) purporting to assign jurisdiction to the courts of another E. Civil Jurisdiction and Judgments. 1981. State. 1)  1 Lloyd’s Rep. 2002 at para. 2002 at para. 421-423. Briggs & Rees. 361 (C. even if that foundation does not exist in the Regulation.15 at p. 1952. courts today generally have the discretion to either dismiss or (more usually) to stay conditionally the proceedings validly instituted before them. Various other maritime law conventions also have rules on jurisdiction which would override the Regulation. 11 (C.66 VII. Bill of Lading: Law and Contracts.K.K. the Limitation Convention 1976 and the Hamburg Rules 1978. Bills of Lading: Law and Contracts. 20-24 implements the Arrest Convention in English domestic law. 20. the English court could exercise its discretion to stay the English proceedings and refer the case to the court designated by the exclusive jurisdiction provision. and in some other cases. will have a valid basis of jurisdiction over the underlying “maritime claim”.126. Asariotis & Baatz. the place of the carrier’s place of business. 65 See The Bergen (No. adopted at Brussels. ibid. 7 of that Convention permits Contracting States to take jurisdiction on the basis of the arrest of a ship in their territorial waters. 1956. 805-809.U.U. 3 Ed. as they did the Brussels Convention. at sects.17 which in relation to particular matters.
International Maritime and Admiralty Law.). 27.).Q. 1 (H.Q. v.).J. Connelly v. if it is the "natural forum" for trial of the dispute. Rockware Glass Ltd. v.). The doctrine applying to this determination is known as forum non conveniens. Cape plc  2 Lloyd’s Rep. v. U. . which statute came into force on May 1.R.  1 Lloyd’s Rep.18 convenient forum”. Boulton & Co. as a mixed jurisdiction.q.C.e. the court seized with suit and a motion to stay or refuse jurisdiction69 must decide if the alternative jurisdiction suggested by defendant is more "convenient". If the forum court is convinced that.L. 1982.68 After having determined that it has jurisdiction and that there is no direction in the substantive law before it as to jurisdiction. The forum court which has stayed the proceedings 67 Among the classic decisions on forum non conveniens in the United Kingdom. the landmark decisions on forum non conveniens include Gulf Oil Corp. Nevertheless.Q. Automobili Lamborghini S. 501 (1947). in case the foreign court does not accept jurisdiction or renders a decision not susceptible of subsequent recognition and enforcement in the forum court. Lamborghini (Canada) Inc.C. Piper Aircraft Co. striking out or dismissing any proceedings before it on the ground of forum non conveniens or otherwise.” For decisions applying art.  R. 798-803. v. 88 (Qué.A. the court seized of the proceedings may dismiss the proceedings.C. 2003 at p. c. Spiliada Maritime Corp. 1994 at pp. 12.K. 1077.C.’s Civil Jurisidction and Judgments Act 1982. sisting.)..c.L.A.C. 443. although it has jurisdiction.  R. on grounds of forum non conveniens. it may exceptionally and on an application by a party. or the “more appropriate forum”. but should preferably stay them conditionally.L.R. 1982 AMC 214 (1981). 339 (H. 413.P.K. Supr. Grecon Dimter Inc.). v. see H.C.R.K. and American Dredging Co. v. Ct.L. as the case may be.C.  1 Lloyd’s Rep.” 68 The Québec Civil Code 1994. Spar Aerosapce v.).  A.A. 460. 412-413. 3135 c. International Conflict. 1992: “Nothing in this Act shall prevent any court in the U. c.S. 383 (H. Quebec. at art.L.J. 1994 AMC 913 (1994). 58 (Qué. C.). Cansulex Ltd.C. as amended by the Civil Jurisdiction and Judgments Act 1991. 897 at pp. See also the U. 3135 c. American Mobile Satellite  4 S. 205. due to constitutional restrictions.S.L. See generally Tetley. Reyno 454 U.C. it is nevertheless not the forum conveniens and that a court of competent jurisdiction in another jurisdiction is clearly and distinctly more appropriate as a venue for the litigation (the burden of proof on these two points falling on the defendant). the Lugano Convention. Banque Royale du Canada  R. 49.  A. for the adjudication of the dispute. J. accepted forum non conveniens in enacting its new Civil Code of 1994 and the doctrine is applied there in much the same way as in the common-law provinces and territories of Canada. The Abidin Daver  1 A. i. U.. or the “natural forum”.  A. Forum non conveniens therefore has no place in their legal systems.S. on the ground that another forum appears more convenient or appropriate or natural for the litigation. International Maritime and Admiralty Law. 795 (H. For Canada.q. decline jurisdiction if it considers that the authorities of another country are in a better position to decide. see MacShannon v. In the United States.A. sect. 213 (Qué. see Morguard Investments Ltd. 2003 at pp. 1991. provides: “Even though a Québec authority has jurisdiction to hear a dispute. generally do not have the discretion to dismiss or stay actions which fall within their jurisdiction under their respective national laws.c. 854 (H.R. v. 69 See Tetley. C. 398. British Columbia (Workers’ Compensation Board)  1 S.J. where to do so is not inconsistent with the 1968 [Brussels] Convention or. 235.K. S. Amchem Products Inc. v. 915-922. Gilbert 330 U. Normand Inc. Miller 510 U.67 Civilian countries. v. RTZ Corp. Tetley. DeSavoye  3 S. and Lubbe v. A conditional stay is preferable to dismissal. from staying.
76 If. on condition that the defendant waive any time bar under Pakistani law. Pirelli Cables ltd. no foreign court of competent jurisdiction appears definitely more "convenient" than the court first seized. Swedish American Line.Y.A.  2 Lloyd's Rep. 1962 AMC 1217 at p. v.). 1955 AMC 1687 at p.B. 1984). Sophia First 588 F. Subsequently. 2434 (S. 70 . v. v. In general. Baghlaf Al Zafer v. for example. 1 at p. 3) that the defendant submit to service of suit and to the jurisdiction of the other court with the time period stipulated.  1 W.A. N. 71 Among the typical conditions which are regularly stipulated when a court stays proceedings on grounds of forum non conveniens are: 1) that the claimant take suit in the more convenient jurisdiction with a specified period of time.S. and 5) that security acquired by either party be preserved. Transytur Line.S. for its part. 72 La Seguridad v. v. Ltd. 1346 at p. See also LN. S. Connelly v. Nigeria v.D. (No.77 It will also be refused if the plaintiff can satisfy the forum court that trying the dispute in the natural forum abroad is likely to entail a substantial injustice. Pakistan National Shipping Co.74 No one can foresee or list all the criteria which the court must decide and weigh. 909 at pp.D. 1307. 1 (C. 2) that the other court accept jurisdiction.R. the convenience and expense of the parties of litigating in either of the competing fora.70 The conditions of the stay may vary depending on the circumstances of the case. 2564 (11 Cir. 383 (H. Supp. N. where the court stayed proceedings on a cargo claim in deference to a Russian jurisdiction clause in the bill of lading.D. Gilbert 330 U. 76 G.L. Supp.71 Convenience. 77 See. N. See also The Kidlovodsk  1 Lloyd's Rep.Y. the existence of such a term or agreement is a factor of great weight in forum See. Cape plc  4 All E. on condition that the defendant provide satisfactory security for proceedings in Leningrad and that the plaintiff's witnesses be granted visas to attend the hearing there.A.R. 1689 (2 Cir. 1983 AMC 2559 at p. the connections of the case with one or other of the potential venues and the comparative juridical advantages and disadvantages to each party of having to sue or be sued in one jurisdiction or the other. the House of Lords found that it was wiser to avoid use of the word “convenience” and refer rather to the appropriate forum. Tsuneshima Maru 197 F.  ETL 45 (S. 1984 AMC 2413 at p.72 sometimes described as reasonableness. 399. 183. v. Takemura & Co. 74 Tetley.73 is the touchstone in respect to deciding forum non conveniens motions. 1983). however. 373 (H.78 Clearly. In The Spiliada  1 Lloyd's Rep. 501 at P.). 854. 78 See.S. 9.Y. Pakistan National Shipping Co. 1545.1985 AMC 1493 (S.  3 W. 229 (C. for example. 1218 (S. see The Arctic Explorer 590 F.L.). 73 Muller & Co.D. 911-912. when it appeared that a Pakistani court might not recognize such a waiver.19 conditionally may then reassume jurisdiction over the dispute. 1984). the law applicable to the substance of the dispute. or if the evidence on the question appears to be equally balanced. International Maritime and Admiralty Law. The Hamburg Star  1 Lloyd's Rep. 1955). 224 F. 707 F. 268. where a forum non conveniens stay was granted on a cargo claim arising under a bill of lading calling for suit in Pakistan. following this analysis. 4) that the defendant waive any defence based on a statute of limitations or prescription in the foreign court. 335. 1360. 75 Gulf Oil Corp. 1220 (S. 2)  1 Lloyd's Rep. for example. 508 (1947). the stay order was reversed. Tex. For an example of such a conditional stay in a maritime case.L. the court making a forum non conveniens determination considers such factors as the location and availability of proof and witnesses. See Baghlaf Al Zafer v. United Thai Shipping Corp. where there is a contractual clause or an agreement requiring the parties to a contract to sue or arbitrate disputes arising between them under the contract in a specified court or arbitral tribunal. The Globe Nova 1985 AMC 1977.  A.2d 806 at p. 1985).L. 808. Supp. 76. N. and no single factor is decisive. 1966).75 The trial court.  2 Lloyd's Rep.C.R. Lubbe v.).Y. S.R. 1961).  4 All E.  1 Lloyd's Rep. however. RTZ Corp. 663.C. the stay will ordinarily be refused.D. Margit 1966 AMC 1217 at p. makes its decision as a question of fact based on the whole of the circumstances of each individual case.2d 1304 at p. 412. 2003 at p.
422 at p. Ct. The Atlantic Star  2 Lloyd's Rep. witnesses. 'vex'. and d) the avoidance of conflicts of law.). See Antares Shipping v... 501 at p. 'harass' or 'oppress' the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. 679 (H. 207 (H. general maritime law In American Dredging Co. See also Perusahaan Umum v. must show strong reasons why he should not be kept to his original bargain. otherwise the court seized of the action will ordinarily exercise its forum non conveniens discretion by granting a stay of proceedings (usually on a motion by the defendant) and sending the dispute to be tried or arbitrated in the contractually designated forum.. 1983).20 non conveniens determinations.Forum Non Conveniens 1) Private and public interest factors Forum non conveniens has long been an accepted principle in admiralty in the United States. 83 510 U. c) the choice of the proper place to study questions of foreign law. 355 (1885) is an example of an early admiralty case. The Capricorn  2 S. forum non conveniens was characterized as a procedural. of Canada).S. v. Where the dispute at hand falls within the scope of such a forum selection provision.R. d) enforceability of a judgment .81 where the theory of the private and public interests was enunciated.A. This very authoritative decision has been referred to by non-American courts. 629 (C. Private interests are: “a) relative ease of access to sources of proof.L. 918 (1994). 451 (Supr. 559 (No. see Trendtex Trading Corp. aff’d  Q. b) the benefit of publicity of the trial in the seat of the conflict.2d 1231 at p.79 This matter is dealt with in greater detail in sections IX. 197 at p. Supreme Court decided that. it did not originate there and was not a characteristic feature of the general maritime law of the United States. the plaintiff. 80 The Belgenland 114 U. Mass.). aff’d  A. and the cost of obtaining attendance of willing.L. doctrine.S. v. Tel Aviv 711 F.S.” Public interest factors82 include a) avoiding “congested centers” of litigation. [and] e) the relative advantages and obstacles to fair trial. In addition. b) availability of compulsory process for attendance of unwilling. 508 (1947). c) possibility of view of the premises . The Jerusalem 13 Fed. 82 Ibid. Gilbert.C. Cas.80 The principle was first applied to a non-admiralty matter by the Supreme Court in Gulf Oil Corp.S.). . 1234. 81 330 U. Crédit Suisse  3 All E.S. 1814). See especially p. 443 at p. with special reference to foreign jurisdiction clauses in ocean bills of lading and other contracts for the carriage of goods by sea.D. 509-509. . 450. rather than as a substantive.R. 721. Miller. 69 and 70 (5 Cir. who has taken suit in another jurisdiction. VIII. 1985 AMC 67 at pp. 7293) (C. v. United States .83 three of five justices of the U. 79 .C.. although forum non conveniens had taken root early on in American admiralty law. 1994 AMC 913 at p. at pp.. with the result that it was Among many other decisions of this kind. 2) Forum non conveniens not a characteristic feature of U. but was rather a doctrine of general application.” Nor may the plaintiff f) “by choice of an inconvenient forum.C. 365. X and XI. infra. in breach of that agreement.B.
1957 AMC 57 at p. finding that that provision was not pre-empted by federal maritime law.S. 1956).92 4) Forum non conveniens and in rem jurisdiction Ibid. 88 Sunny Prince-Hoheweg (Motors Distributors Ltd.2d at p.”). Seatrain International 1986 AMC 1587 at pp. one can rarely count on the fact that jurisdiction will be declined. of the possibility that separating the actions and having the case heard in two different jurisdictions may lead to inconsistent results as well as prejudice one of the parties to the underlying action. supra. Société Générale 462 F. v. See also Excel Shipping v.S. the plaintiff’s choice of forum should rarely be disturbed. 455. Olaf Pedersen's Rederei) 239 F.2d 1231 at p.S. `982 AMC 214 (1982).2d 376. when the jurisdiction of the underlying action has been maintained. which rendered forum non conveniens unavailable in Jones Act and maritime law cases brought in Louisiana state courts.S. 235. It held that:87 “In such a regime. v. F.21 not deemed essential to the proper harmony and uniformity of the federal. 465. This statement recalls that of the U. it was held in Sunny Prince v. M/V Nordic Regent 654 F. 76-77. states. In consequence of this procedural characterization. 1984).no special restrictive rule Ten years after Gulf Oil Corp. Inc. AMC at pp. 501 at p. 536. 1980 AMC 309 (2 Cir. 1985 AMC 67 pp. 1. 453. and reaffirmed in Piper Aircraft. N. 86 330 U. U. 90 454 U. 922. that Louisiana amended art. Gilbert. the majority in the Supreme Court upheld the validity of the Louisiana statute out of which the litigation had arisen (art. however. Speck. combined with the “multifariousness”85 of the public and private interest factors set forth in Gulf Oil v. 85 Ibid.91 The court should be wary. 1600-1601. sect. Reyno. Note. will also be determined by the principles set out in Gulf Oil Corp. at p..90 where it was held that the possibility that the law in the alternative forum may be less favorable does not necessarily bar dismissal on forum non conveniens grounds.S. general maritime law. 123(C) of the Louisiana Code of Civil Procedure). Gilbert. 1982 AMC 214 (1981). AMC at p. Supreme Court in Gulf Oil Corp. 1238. v. 501. 84 . “jurisdiction should be taken unless to do so would work an injustice.Y. See Perusahaan. Tel Aviv 711 F.”88 This holding was a backward step89 which had no basis in the tradition or history of maritime law and was put to rest by Piper Aircraft v. See also Alcoa S. Whether or not an action impleading a third party should be dismissed on the ground of forum non conveniens.. See Louisiana Acts 1999. Gilbert 330 U. U.S. 87 510 U.86 made uniformity and predictability in the application of forum non conveniens almost impossible. No. 92 Excel Shipping.S. but was rather a procedural rule within the legislative jurisdiction of the individual U. v. 1983).84 The Supreme Court further observed that the discretionary nature of the doctrine.2d 147. 1236. so that forum non conveniens may now be applied in maritime cases. Hoheweg that in Admiralty. “Forum Non Conveniens and Choice of Law” (1987) 18 JMLC 185. v. 1994 AMC 913 at p.D. 1980 en banc). 508 (1947): “[U]nless the balance is strongly in favour of the defendant. 920-921. 73-74 (5 Cir.2d 463 at p. at p. 1972 AMC 1682 (2 Cir. 91 454 U. 1597-1598 (E.S.S. 922. See also Paula K. 1972).” 3) Admiralty . however. 455. 1986 AMC at pp.. 235. ibid. Olympic Corp. Co. AMC at pp. 89 Perusahaan Umum v. 123(c) of its Code of Civil Procedure in 1999.S. 443 at p. 60 (5 Cir.
. 1985) and a critical commentary by David R. pp.101 but also deny him an adequate security.” 98 Ibid. 69 (5 Cir.) 47 F. Maritime Liens & Claims. 103 Ibid. 102 Perusahaan Umum v.Y.22 Perusahaan Umum v. M/V Maridome 169 F. See also The New England (J. 1218.K.S. Gilbert. including in rem admiralty actions.94 After referring to The Belgenland95 and Gulf Oil Corp. 78-79.S. Biard.2d at p. 465. the Court affirmed that “the release or removal of the vessel from the jurisdiction of the court destroys in rem jurisdiction .  2 Lloyd's Rep. G.2d 1231 at p. Supp.K. 486 U. 145. however. 99 Ibid. 96 330 U.2d at p. did make it nearly impossible for the defendant to show interests in an alternative forum. however. It was argued that the in rem admiralty action presented a special exception and was virtually immune from dismissal on grounds of forum non conveniens. 711 F.” 95 114 U. 1931 AMC 407 (S. 235. supra. 1990 AMC 1583 at p. as clarified by Koster v. v. 711 F.96 the Fifth Circuit stated that the in rem action did not represent an exception to the Gulf Oil balancing analysis. 630. unless the inconvenience he would suffer was tantamount to injustice. N. 1985 AMC at p. will usually satisfy the concern for finding an alternative forum that is both available and adequate: once the defendant is prepared to submit to the jurisdiction of the alternative forum and post adequate security there.2d 620 (9 Cir.2d 332. 249 F. 2 Ed.2d 463 at p.Y. 505. 142 at p. 1985 AMC 67 at p. Thus courts have been compelled to deny forum non conveniens dismissals in actions in rem. 1982 AMC 214 (1981). 1238. 1985 AMC at p. the court can embark upon the Gulf Oil balancing analysis and decide whether or not it is a convenient forum.2d 1215 at p. 94 93 . 1239. Barge Sea-Span 241. M/V Montmartre 756 F. see The Despina.97 The Court did point out. and Van Cauwenberghe v. 77. Piper Aircraft Co. Welding Co. 711 F. v. Del.98 The Court emphasized that the balancing analysis in Gulf Oil was predicated upon finding that an adequate and available alternative forum did exist.. v. 40.. 711 F. v. Owen in  JMLC 133. 501 at pp. supra. Cactus Pipe & Supply Co. is fully applicable to all forum non conveniens motions. 517 (1988). See also Cliffs-Neddrill v. 124 (S.104 711 F. See also Warn v. 78. 1985 AMC at p. 711 F. Tel Aviv.2d at p. 330 U. M/T Rich Duke 734 F. added to the normal presumption in favour of the plaintiff's choice of forum. 97 Perusahaan Umum v. 60. For the U. however..103 A conditional dismissal. 101 In M/S Galveston Navigator 431 F. 1966 AMC 121 at p. that the in rem factor. 1985 AMC at p. 1970). 503 at p. 104 Ibid. Reyno. 769 F. 100 A ship cannot be arrested twice on the same claim. before embarking on a Gulf Oil balancing analysis.. “jurisdiction should be taken unless to do so would work an injustice. 1985 AMC 2150 (5 Cir. “The Integrity of the Judicial Sale”. 76. except in special circumstances: see generally Tetley. position. 518 (1947). Tel Aviv. because he would no longer be able to seize the ship102 to enforce whatever judgment he might obtain in the alternative forum. 1239.3d 625 at p. 73.100 dismissal of an action in rem on grounds of forum non conveniens may not only deny the plaintiff an alternative forum where jurisdiction would be available. 355 at p.2d at p.D. American Lumbermens Mutual Casualty Co. Supp. 1985 AMC at pp. N. 367 (1885). 1985) and Farwest Steel Corp.D.S. 1302 (9 Cir.S.. 1238. 1999). the Fifth Circuit had declared that in admiralty actions in rem.2d 1103. 1234. 1966). Chap. 1971 AMC 1298 at p.S. strong enough to strike the forum non conveniens balance in his favour. 1998. In Sunny Prince-Hoheweg (Motor Distributors v.2d at p. 508-509 (1947). Tel Aviv.99 Since the seizure of a ship in rem releases the ship from the maritime lien arising from the claim. 1990): “the Gilbert analysis. 26.” See. Olaf Pedersen's Rederi A/S) 239 F. 1931). See Shalom-Stolt Dagali. v. 1983). 1098-1104.93 is the leading decision dealing with the question of whether an American court should exercise jurisdiction over foreign parties when the court's sole connection with the dispute is its in rem control over the defendant. 1957 AMC 57 at p. 1999 AMC 1070 at p.K. 1236. 454 U.. 555 and The Alletta  1 Lloyd's Rep. Gotham Marine Corp.1076 (9 Cir. 1585 (D.
109 Ibid. en banc 1967). 2001). 203. Ltd. Gilbert. the Second Circuit in Muller v. 1981). 101 at p. 1967 AMC at pp. Fritz Transportation International 2002 AMC 106 (N.  2 Lloyd's Rep. for example. 590-593 (4 Cir. 594-595. 807. 501 (1947).S.” The concern was that foreign law rather than U. Union Ins. 1982 AMC 588 at pp. 105. v.S. LG Electronics Inc. such clauses were treated much more strictly. S. before a relatively stable doctrine of forum non conveniens and jurisdiction clause enforcement were arrived at in the United States. the Muller court leaned too heavily on general principles of contract law and gave insufficient effect to the enactments of Congress governing bills of lading for shipments to or from the United States. it tends to be the paramount factor in that analysis.2d 200 at p. 110 In accordance with the holding in Indussa.2d 721 at pp.  2 Lloyd's Rep.109 Thereafter. v. 1955 AMC 1687 at p.Elikon 642 F. as was done in the Canadian Act of 1910. S. Swedish American Line upheld a jurisdiction clause and declared:107 “…if Congress had intended to invalidate such agreements. while at the same time the courts retained their discretion. at p. Ltd.” Twelve years later the Second Circuit took a completely different approach in Indussa Corp.2d 806 at p.2d at p. for example. 3(8) of COGSA 1936. v. 107 224 F. where it was only after the jurisdiction clause was found to be unenforceable under principles relating to forum selection provisions that the Court considered the grounds for forum non conveniens dismissal under the principles of Gulf Oil.S. Soc. 104 (2 Cir. 377 F. v.. It is only when the clause or agreement concerned fails the test of enforceability under those principles that forum non conveniens principles. In view of current American law.D. S. American courts began systematically invalidating foreign forum selection clauses as contrary to sect.23 IX 1) United States – Foreign Forum Selection Clauses in Bills of Lading Foreign jurisdiction clauses generally unenforceable in the past A jurisdiction clause in a bill of lading is only one of many factors that have to be weighed by the trial judge in his decision to accept or refuse jurisdiction. 1955). however. See. M/V 106 105 . COGSA would be applied by the foreign court. See. 1688 (2 Cir. to evaluate the enforceability of jurisdiction clauses and agreements in general. Conklin & Garrett. where the bill of lading includes such a provision. of Canton. including those appearing in ocean bills of lading. In 1955. Cal. Particular principles have been developed in the U. 723-725. 1967 AMC 589 at p.105 are now considered. Ranborg108 and held: “We think that in upholding a clause in a bill of lading making claims for damage to goods shipped to or from the United States triable only in a foreign court. 202. v. it would have done so in a forthright manner. as outlined in Gulf Oil Corp. 108 377 F.110 330 U. 593.106 There were radical swings of the legal pendulum.S.
Zapata Off-Shore Co. 2000) (“any claim or dispute arising under this Bill of Lading shall be governed by the Law of the Federal Republic of Germany and determined in the Hamburg courts to the exclusion of the jurisdiction of the courts of any other place.3d 355 (2 Cir. 53 (2 Cir. supra.2d 1441 at pp. Lucent Technologies. Chemical v. 1479 (S. 1977). v. 2002).D. The freely negotiated agreement must be unaffected by fraud or undue influence or overreaching bargaining power. by which the parties simply agree to the jurisdiction of a specified court without expressly excluding jurisdiction elsewhere.V. 928 (4 Cir.V. the Court refused to follow Bremen. citing Allen v. The mandatory character of the clause may also be established by wording such as: “Any dispute arising under this Bill of Lading shall be decided in the country where the carrier has his principal place of business” .Y.24 2) Foreign jurisdiction clauses presumptively valid A major change in judicial attitudes towards foreign forum selection by contract occurred.S. Central National-Gottesman. 156 F.G. 3) fundamental unfairness of the chosen law depriving the plaintiff of a remedy or 4) a strong public policy of the forum. both the American and English Courts ordered suit in England under the same clause in the same matter. 2d 675 at p.H. Supp. unless the claimant could show convincing evidence that the clause was unjust or unreasonable or was the product of fraud or overreaching or was contrary to a strong public policy of the forum. State Establishment for Agricultural Product Trading v. and relied on Indussa Corp. Tokio Express. A bill of lading of course is not freely negotiated but a standard-form contract. 2002 AMC 314. which obligates the parties to the bill of lading (or other contract) to litigate in one specified court. 158 (C. In the case at hand.. 1 at p. pointing out that COGSA was not involved in that case. Md.Y. M. instead. 156 F.”). M. 2002 AMC 314. in an international towage case. 1988 AMC 2328 at pp.2d 1576 at pp. See. 1996) and listing. Compare with Reed & Barton Corp.D. Supp. 2002 AMC 528 at p. 320-322 (5 Cir. see Hartford Fire Ins. v.S. 1988 AMC 318 at pp. 1442-1444. 2) grave inconvenience or unfairness of the selected forum resulting in the complaining party being for all practical purposes deprived of its day in court. Ferrostaal. Inc.2d 721. v. N.b. v.  ETL 57 (S.3d 923 at p. v. Co. 1090 (S. N.112 recognized a jurisdiction clause giving jurisdiction outside the United States. Tokio Express 1999 AMC 1088 at p.D.2d 458 at pp. M/V Sersou 1999 AMC 2352 (S.114 as opposed to the merely “permissive” clause. aff’d without opinion sub nom.A. Novocargo USA Inc. v. 2002 AMC 1477 at p.S.Supp.Y. See also Union Insurance Society of Canton v. 2002).H. 1972 AMC 1407 at p. N.2d 372. 1981). 462-463. as it did not exclude jurisdiction elsewhere or employ other mandatory venue language. Supreme Court held that a foreign jurisdiction clause in a freely negotiated. The same hostility was demonstrated with respect to foreign arbitration clauses.111 The United States Supreme Court.  2 Lloyd's Rep. 1987).Supp.. Alas. N. 111 407 U. v. international contract should be enforced.N. Sun Castor 1978 AMC 1756 (D. The U. Although the clause provided that disputes “… shall be determined by the Court of Bremen”. Inc. 1994) and other authorities collected there. 113 407 U.2d 372. 1418 (1972). Attiki Importers 22 F. M/V Berane 181 F. for example. 531 (D.  ETL 57 (S. This followed the English tradition of giving effect to jurisdiction clauses. 1. M/V Gertrude Oldendorff 204 F. 15.113 It is important to note that the type of jurisdiction clause which Bremen and subsequent decisions have upheld is the “mandatory” (or “exclusive”) type of clause.S.. 1982 AMC 588 (4 Cir. the mere use of “shall” did not make the clause “mandatory”.). See also Hartford Fire Ins. M/S Bremen (and Unterweser G.m. In M. in a matter which was subject to suit simultaneously in England. 678. 1998) (“All and any claims and disputes under the Bill of Lading shall exclusively be referred to [a]rbitration in Bremen [Germany] .Y.”). v. M/V Wesermunde 838 F. Ranborg. S. 1988).D. 112 (The Chaparral) Unterweser Reederei G.S.3d 51 at p.b.) v. Acciai Speciali Terni USA Inc. Co.D. as grounds of non-enforcement of a foreign forum selection clause: 1) fraud or overreaching. 1580-1581. 2334-2335 (11 Cir. Inc. 2002).115 A jurisdiction clause may still be Finnrose 826 F.Y. Elikon 642 F. 114 See John Boutari & Sons v. 210 F. S. 2002). Lloyd’s of London 94 F. 1999). Zapata OffShore Co. v. however.m. 115 For an example of a purely “permissive” forum selection clause. 1972 AMC 1407 (1972) This was a freely negotiated private international agreement for towage. Novocargo USA Inc.
The case concerned a consumer finance contract containing an arbitration agreement which omitted any details regarding filing fees and arbitration costs. which may be just as mandatory where “will” is used. v. Supp. in its decision in Green Tree Financial Corp. however. at pp. v.S. 2004). where in addition to providing for the exclusive jurisdiction of a given court. 1233. AMC at pp.. rather than permissive. The argument that enforcement of a jurisdiction clause should be denied where the clause required plaintiffs to incur substantial “transaction costs” (e. of the Southeast v. 1479 (S. 46 U. The United States Supreme Court denied that such costs and inconvenience lessened or weakened the plaintiffs’ right to a trial by a competent court on the liability issue or the related measure of damages.” (Central National-Gottesman.. 24-25 (N. 678. 2003 AMC 2608 (N. Randolph. Note. Fla. Hapag-Lloyd Container Line 2003 AMC 1175 (S. See Vogt-Nem. 2001 AMC 2417 at p. permitting the carrier to sue the merchant in the latter’s place of business). Note.D. COSCO 2004 AMC 1048 at pp.D. Tokio Marine and Fire Ins. Co.2d 1191.D. Co. 2004 AMC 769 (Fla. the alleged "inconvenience" to the parties and their witnesses of such provisions has seemingly declined in importance in American courts as a factor in determining whether such terms are enforceable. Cal.S. Intermetals Corp. Inc. 2422 (D. rather than permissive. Mitsui O. 117 499 U.S. U. Lines. however. Ltd.Y.D. an exception giving the carrier an option to sue the merchant elsewhere than in the courts of Hamburg. 585.S. Inc. v. and related inconvenience. Inc. – Alabama v. Hanover Intern. weaken. airfare and hotel bills). 79 (2000). 4 District.S. however.117 a carriage of passengers decision where the forum selection clause in the passenger ticket required the Washington state plaintiffs to sue the carrier in Florida.116 Because foreign jurisdiction clauses and agreements are now presumptively valid in the United States. Burns v. 596-597.g. the United States Supreme Court. by a 5 to 4 majority. 120 513 U. as the first sentence contemplated. Supp. which did not vitiate the mandatory character of the clause. 1704-1705. M/V Gertrude Oldendorff 204 F. 491 (3 Cir. 116 See.2d 1226 at p. 2002). where the Court found to be mandatory. 2030 (S. 121 Ibid at p.N. but merely permitted.D. a clause reading in pertinent part: “Except as otherwise provided specifically herein any claim or dispute arising under the Express Cargo Bill shall be governed by the law of the Federal Republic of Germany and determined in the Hamburg courts to the exclusion of the jurisdiction of any other place. 1991 AMC 1697 (1991). an arbitration agreement could be held unenforceable. that the words “shall” or “must” are not essential to the mandatory character of the clause. 1050-1051 (C. 1995)). 2d 675 at p. v. v. that the Court. which made it unlawful for the owner of a maritime passenger carrier to "lessen. Vogt-Nem. 2003 AMC 21 at p. found the arbitration clause in that case to be enforceable.”.” The second sentence was held to be a qualification on the first sentence. in order to litigate in the designated court. for example. App. Cal. Radisson Seven Seas Cruises. In case the Carrier intends to sue the Merchant the Carrier has also the option to file a suit at the Merchant’s place of business….Y. N. 2002). M/V Tramper 263 F. 459.. travel expenses. it also qualifies that provision by an exception (e. for example. because no evidence on the prohibitive expense of arbitrating had been adduced by the party seeking to circumvent the agreement. Inc.J.25 mandatory. 2002). .. The Supreme Court thus left a narrow window open for striking down foreign arbitration (and presumably also foreign jurisdiction) clauses or agreements where a party (Bison Pulp & Paper Ltd. 2003 AMC 21 at pp. aff'd 36 Fed. 118 Ibid. Ct. M/V Tramper 263 F. Supp. Cal. 1231. 2004). 2001). 2002).K. . or avoid the right of any claimant to a trial by a court of competent jurisdiction. Appx. 92. N. 2003). 2002 AMC 1477 at p. Supp. Hartford Ins. Shute. was rejected by the Supreme Court in Carnival Cruise Lines... Dist.D. Barbara Lloyd Design.120 indicated that if a party seeking to avoid arbitration can show that it would be “prohibitively expensive”121 (a term which the Court declined to define).C.g. v.2d 1226 at p.118 More recent decisions have similarly downplayed the relevance of inconvenience in forum selection clause analysis. v.2d 454 at p. Inc. 867 So. or “[a]ny disputes under the Bill of Lading to be decided in London according to English Law.Appx. 183c. v. 2003).D. The relevant enactment in this case was the Limitation of Vessel Owners’ Liability Act of 1851. Ltd. M/V Pergamos 1996 AMC 2022 at p. Inc. Aktiengesellschaft Fur Industrie Versicherungen 188 F. 119 See.119 Nevertheless.27 (N.
26 can demonstrate that the costs of compliance with the provision in question would prevent it from “effectively vindicating [its] federal statutory rights in the arbitral forum”.122 3) Foreign arbitration clauses held presumptively valid
Both Bremen123 and Carnival Cruise124 paved the way for the U.S. Supreme Court’s landmark decision in Vimar Seguros y Reaseguros S.A. v. M/V Sky Reefer,125 upholding the enforceability of foreign arbitration clauses in bills of lading, and effectively overruling the Indussa126 line of cases. The Sky Reefer decision applies equally to foreign jurisdiction clauses, because Justice Kennedy held foreign arbitration clauses to be “… but a subset of foreign forum selection clauses in general.”127 Sky Reefer involved a shipment of fruit from Morocco to the U.S. under a bill of lading calling for Japanese law and requiring cargo claims to be arbitrated in Japan, whose only connection with the case was that it was the country of the time charterer of the Panamanian-owned carrying ship. Two main arguments were raised to contest the foreign arbitration clause: 1) that the clause lessened COGSA liability by increasing the transaction costs of obtaining relief; and 2) that COGSA might not be applied by the Japanese arbitrators. With respect to the first argument, the Supreme Court found that sect. 3(8) of COGSA (46 U.S.C. Appx. 1303(8)) precluded the lessening of the carrier’s or the ship’s liability for loss or damage arising from negligence, fault or failure in their duties or obligations, but that this prohibition of the reduction of “explicit statutory guarantees” was quite distinct from the question of the procedures for enforcing them and the “forum in which they are to be vindicated”.128 In addition, Carnival Cruise129 had rejected high transaction costs and associated inconvenience as reasons for refusing to enforce forum selection clauses, as English courts had also done long before in interpreting the Hague Rules.130 Enforcement of the arbitration clause in the case at bar was also found to be in keeping with the objects of the Federal Arbitration Act,131giving effect to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New
Ibid at p. 90. 407 U.S. 1, 1972 AMC 1407 (1972). 124 499 U.S. 585, 1991 AMC 1697 (1991). 125 515 U.S. 528, 1995 AMC 1817 (1995). The majority decision was supported by seven justices to one (Stevens, J.), although Justice O’Connor issued a separate, concurring opinion. 126 377 F.2d 200 at p. 202, 1967 AMC 589 at p. 593,  2 Lloyd's Rep. 101 at p. 104 (2 Cir. en banc 1967). 127 515 U.S. 528 at p. 534, 1995 AMC 1817 at p. 1821, citing Scherk v. Alberto-Culver Co 417 U.S. 506 at p. 519 (1974). See also the dissent of Justice Stevens in The Sky Reefer (515 U.S. at p. 549, note 7, 1995 AMC at p. 1832, note 7), who nevertheless admitted: “Of course, the objectionable feature in the instant bill of lading is a foreign arbitration clause, not a foreign forum selection clause. But this distinction is of little importance; in relevant aspects, there is little difference between the two. . . . The majority's reasoning . . . thus presumably covers forum selection clauses as well as arbitration.” For decisions on foreign jurisdiction clause applying the Sky Reefer decision, see, among many others, Mitsui & Co. (USA), Inc. v. Mira M/V 111 F.3d 33 at p. 36, 1997 AMC 2126 at p. 2129 (5 Cir. 1997); Fireman’s Fund Ins. Co. v. M.V. DSR Atlantic 131 F.3d 1336 at p. 1339, 1998 AMC 583 at p. 587 (9 Cir. 1997), cert denied, 525 U.S. 921 (1998). 128 515 U.S. 528 at p. 534, 1995 AMC 1817 at p. 1821. 129 499 U.S. 585, 1991 AMC 1697 (1991). 130 515 U.S. 528 at p. 537, 1995 AMC 1817 at p. 1823, citing Maharani Woollen Mills Co. v. Anchor Line (1927) 29 Ll. L. L. Rep. 169 (C.A.). 131 9 U.S.C. 201 et seq.
27 York Convention 1958).132 The Court further held, citing Bremen, that “… [t]he expansion of American business and industry will hardly be encouraged if, notwithstanding solemn contracts, we insist on a parochial concept that all disputes must be resolved under our laws and in our courts.”133 On the second argument, the Supreme Court held that it was premature to predict what law the arbitrators would apply to the claim. In any event, the U.S. District Court had retained jurisdiction over the case and so would have the opportunity of reviewing the eventual Japanese arbitral award, in U.S. enforcement proceedings, to verify its conformity to U.S. public policy. The Sky Reefer decision is controversial, especially inasmuch as it apparently disregards the importance of a real and substantial connection between the chosen forum and the parties and circumstances of the case, in deciding whether or not to enforce a provision calling for arbitration outside the U.S. But it has changed American law significantly by downplaying the convenience issue and emphasizing contemporary international practice, in assessing the enforceability of both foreign jurisdiction and foreign arbitration clauses in contracts generally and international ocean bills of lading in particular. Although foreign forum clauses and agreements are now generally upheld in the U.S., American courts nevertheless retain their discretion to refuse such enforcement on the grounds stated in the above-mentioned landmark decisions, which grounds are further examined below.134 4) Criteria as to enforcement - U.S. a) Is U.S. law being avoided?
American courts were traditionally reluctant to stay actions when the alternative jurisdiction might invoke a law different from U.S. law. This rule is not absolute since Piper Aircraft v. Reyno,135 but is most effective where U.S. law would normally apply and a change of jurisdiction would result in foreign law being applied. Thus in Volkswagen of America Inc. v. S.S. Silver Isle,136 it was first noted that, when in the United States the colliding vessels are both at fault, the innocent cargo may recover full damages against either vessel. In consequence, the Court held that, even though the carrying vessel had already begun a collision suit, on her own behalf and as bailee of her cargo, against the other vessel in a Canadian court, the U.S. Court would not dismiss an action filed against the other vessel by American cargo interests not shown to have been actual parties to the Canadian suit.
Adopted at New York, June 10, 1958, and in force June 7, 1959, 330 U.N.T.S. 3, 21 U.S.T. 2517, T.I.A.S. No. 6997. 133 515 U.S.528 at p. 538, 1995 AMC 1817 at p. 1824, citing Bremen v. Zapata Off-Shore Co. 407 U.S. 1 at p. 12, 1972 AMC 1407 at pp. 1415-1416 (1972). The Court further warned (515 U.S. 528 at p. 539, 1995 AMC 1817 at p. 1825) that U.S. courts should be “… most cautious before interpreting its domestic legislation in such manner as to violate international agreements. That concern counsels against construing COGSA to nullify foreign arbitration clauses because of inconvenience to the plaintiff or insular distrust of the ability of foreign arbitrators to apply the law.” 134 See Polar Shipping Ltd. v. Oriental Shipping Corporation 680 F.2d 627 at p. 632, 1982 AMC 2330 at p. 2337 (9 Cir. 1982): “… under United States law, the enforceability of a foreign court selection clause is a matter of judicial discretion”, citing Bremen 407 U.S. 1 at p. 11, 1972 AMC 1407 at p. 1415, note 12 (1972). 135 454 U.S. 235, 1982 AMC 214 (1981). 136 1966 AMC 925 at pp. 927-928 (N.D. Oh. 1966) “even assuming that the Court will apply different legal standards than the Canadian court, this is not a factor to consider in determining whether to decline jurisdiction.”
In Indussa Corp. v. S.S. Ranborg,137 the Second Circuit held that a jurisdiction clause calling for suit in Norway and which ousted COGSA in a shipment from Belgium to San Francisco was contrary to sect. 3(8) of COGSA. In view of the Bremen138 and Sky Reefer139 decisions, which arguably overruled Indussa, 140 however, foreign forum selection and foreign arbitration clauses are now presumptively valid under U.S. law.141 Such clauses can even benefit third parties pursuant to clear Himalaya clauses extending the protections of the contract of carriage to such parties.142 Consequently, where a party is seeking to persuade a U.S. court to keep jurisdiction despite such a clause in a bill of lading, it no longer suffices to prove that the foreign court (or arbitral tribunal) would apply some law other than U.S. COGSA. As the Supreme Court declared in The Sky Reefer:“… mere speculation that the foreign arbitrators might apply Japanese law which, depending on the proper construction of COGSA, might reduce respondents’ legal obligations, does not in and of itself lessen liability under COGSA §3(8).”143 Nor may the foreign forum clause be set aside merely because it was not freely bargained for. The Southern District of New York, in Silgan Plastics Corp v. M/V Nedlloyd Holland, held:144
377 F.2d 200, 1967 AMC 589,  2 Lloyd's Rep. 101 (2 Cir. 1967). 407 U.S. 1, 1972 AMC 1407 (1972). 139 515 U.S. 528, 1995 AMC 1817 (1995). 140 See, for example, Nippon Fire & Marine Ins. Co. v. M.V. Egasco Star 899 F. Supp. 164 at p. 170 note 8 (S.D. N.Y. 1995), aff’d 104 F.3d 351 (2 Cir. 1996): “Overruling the Second Circuit's decision in Indussa Corp. v. S.S. Ranborg, 377 F.2d 200 (2d Cir.1967), the [U.S. Supreme] Court in Sky Reefer held that COGSA does not nullify foreign forum selection clauses.” See also Great American Ins. Co. v. M/V Kapitan Byankin 1996 AMC 2754 at p. 2756 (N.D. Cal. 1996): “… since the Sky Reefer Court flatly rejected both the conclusion and rationale of Indussa Corp. v. S.S. Ranborg, 1967 AMC 589, 377 F.2d 200 (2 Cir. 1967), which held that COGSA invalidated foreign forum selection clauses in general, it follows that foreign forum selection clauses generally do not lessen a carrier's liability or violate COGSA.” But see also Union Steel America Co. v. M/V Sanko Spruce 14 F. Supp.2d 682 at p. 689-691, 1999 AMC 344 at pp. 354-356 (D. N.J. 1998), where it was held that although Indussa had not really been “overruled”, its rule was “not viable” (ibid., F. Supp.2d at p. 691, AMC at p. 356) in view of the presumptive validity of foreign forum selection clauses under Bremen and The Sky Reefer. 141 See M/S Bremen v. Zapata Off-Shore Co. 407 U.S. 1 at p. 10, 1972 AMC 1407 at p. 1414 (1972); and many other decisions, including Mitsui & Co. v. Mira M/V 111 F.3d 33 at p. 35, 1997 AMC 2126 at p. 2127 (5 Cir. 1997); Asoma Corp. v. M/V Southgate 2000 AMC 399 at p. 400 (S.D. N.Y. 1999); Allianz Ins. Co. of Canada v. Cho Yang Shipping Co., Ltd. 131 F. Supp.2d 787 at p. 790, 2000 AMC 2947 at p. 2950 (E.D.Va. 2000); Tokio Marine & Fire Ins. Co. v. M/V Turquoise 2001 AMC 1692 at p. 1694 (D. S.C. 2001); Hartford Fire Ins. Co. v. Novocargo USA Inc. 156 F. Supp.2d 372, 2002 AMC 314,  ETL 57 (S.D. N.Y. 2002). 142 See, for example, Tokio Marine and Fire Ins. Co., Ltd. v. COSCO 2004 AMC 1048 at p. 1051 (C.D. Cal. 2004), where the U.S. general agent of the defendant ocean carrier was held to be entitled by the Himalaya clause of a sea waybill to the protection of the exclusive jurisdiction clause in the waybill. 143 515 U.S. 528 at p. 541, 1995 AMC 1817 at p. 1827 (1995). See also Abrar Surgery (PVT) Ltd. v. M.V. Jolly Oro 2000 AMC 109 at p. 112 (S.D. N.Y. 1999): “Although the application of COGSA plainly mitigates concern that the forum clause is defendant's attempt to exempt itself from its statutory obligations, it is not required that COGSA, or even the Hague Rules, apply to validate a foreign forum selection clause.” 144 1998 AMC 2163 at p. 2164 (S.D. N.Y. 1998). See also Mitsui & Co. v. Mira M/V 111 F.3d 33 at p. 36, 1997 AMC 2126 at p. 2129 (5 Cir. 1997); Galaxy Export Corp. v. M/V Hektor 1983 AMC 2637 at p. 2639 (S.D. N.Y. 1983); Dukane Fabrics Int’l Inc. v. M.V. Hreljin 600 F. Supp. 202 at p. 203, 1985 AMC 1192 at pp. 193-1194 (S. D. N. Y. 1985); Reed & Barton Corp. v. M.V. Tokio Express 1999 AMC 1088 at p. 1092 (S.D. N.Y. 1999), aff’d without opinion sub nom. Lucent Technologies, Inc. v. M.V. Tokio Express 210 F.3d 355 (2 Cir. 2000).
v.S. 2955-2956.S. Cho Yang Shipping Co. v. Co. 515 U.145 for example. of Canada v. 1995 AMC 1817. 2955 (E. 794. however. Co.S. DSR Atlantic. Allianz Ins.” The Court added that an in rem action was not just a means of enforcing COGSA liability but “…a substantive right guaranteed by federal law.R.S.29 “There is no merit to plaintiff's claim that the Court should invalidate the forum selection clause because the bill of lading in which it appears is a contract of adhesion. 2000 AMC 2947 at p. 1821 (1995)... that if the time limitation for serving the defendant vessel in rem in the United States has also passed (120 days from the filing of the complaint. AMC at pp.S. 794. 2001). See also Fireman's Fund Ins. M/V Kasif Kalkavan 989 F. 2955 (E. v. Inc. 1703 (1991).A. In Tokio Marine & Fire Ins. 1991 AMC 1697. 1998 AMC 765 at p.3d 1336 at pp. however. International Marine Underwriters C. The Supreme Court upheld a foreign arbitration clause even though it appeared in a ‘standard form bill of lading.A. 528 at p.2d 787 at p. 530. Carnival Cruise Lines. 1998).Y. Appx.V. under Rule 4(m) of the Federal Rules of Civil Procedure).U. v.3d 1336. Atlantic court “appears to have wholly ignored” the reference in 46 U. 921 (1998). Shute.S.”148 145 146 2001 AMC 1692 (D. 1998 AMC 583 at p. but that it merely presented “a question of the means of enforcing that liability. denied. 131 F. 131 F.147 holding that this purely “procedural” difference between American and Korean law was not a lessening of the “specific liability” imposed by COGSA. Supp.R. 1339 (9 Cir. ibid. 1995 AMC 1817 at p.2d 787 at p. S. 2d at p.S. The Supreme Court also held that a ‘nonnegotiated forum-selection clause in a form ticket contract’ is enforceable against a consumer. the stipulation of Korean jurisdiction in the bill of lading was not enforced by a district court in the Fourth Circuit against the in rem defendant because the lack of in rem process in Korea appeared to the Court to result in “relieving or lessening” the carrier’s liability below the level of responsibility guaranteed by U. N. where the Court said that the D. 534. 1998 AMC 583. 131 F. cert. 1998). citing The Sky Reefer 515 U. 1997) (stating that whether or not a bill of lading is a contract of adhesion is of no relevance to the validity of a forum selection clause). 587 (9 Cir. N.S. v.R.V. 499 U.D.S. Similar positions have been taken by district courts in the Second Circuit. however. of Canada v. v. the unavailability of an in rem action in the designated foreign forum is irrelevant to the enforcement of the forum clause. Atlantic on the point. 498 at p. F. 521 U. This is particularly true in actions in rem. M/V An Long Jiang 1998 AMC 854 (S.C. 499. N. 767 (S. M/V Sky Reefer. following M. Va. v. 767 (S. 498 at p. 1998). Co.U. But see also Hyundai Corp. 147 131 F.D.’ See Vimar Seguros y Reaseguros. 1997). . M/V Turquoise. took the opposite position in Fireman’s Fund Ins. See Allianz. 1818 (1995). opined that COGSA § 1303(8) “… would be rendered meaningless if an in rem action were viewed simply as a procedural device not protected under § 3(8) as interpreted by Sky Reefer…. D. criticizing the Ninth Circuit’s view. Inc. the Eastern District of Virginia.146 The Ninth Circuit.C. Supp.). 528. U.” b) The parties should not lose rights already acquired A change in jurisdiction should not cause the parties to lose rights.D. however. 2000). Note.. 1998 AMC 765 at p. which they have acquired by the suit already taken. See.” (ibid.S. American courts appear divided. Therefore the mere fact that the forum selection clause appears in the standard form bill of lading does not render it invalid. over whether the lack of in rem process in the selected forum abroad precludes enforcement of the jurisdiction clause. 1303(8)) to the ship’s own liability. 794. Supp. Co. v. S. 499. Supp. 585. M/V D. 593. COGSA. 1339-1340. Cho Yang Shipping Co.D. 2000 AMC 2947 at p. Ltd.D. Atlantic. 2000). International Marine Underwriters C.Y. M. Va. Supp. Co.Y. M/V Kasif Kalkavan 989 F. 148 In Allianz Ins.
N. 324 (S. Cal. Chiyoda Fire & Marine Ins. Supp. Carnival Cruise and The Sky Reefer. it should join with its order some such notation as “without prejudice to the commencement of a similar suit in another jurisdiction and on condition that defendant waive any time bar defense not presently available to it in the present action. he may not later allege that the clause (or the foreign law which it usually also renders applicable) relieves or lessens the carrier’s liability contrary to COGSA. where the bill of lading includes a clear and mandatory foreign jurisdiction or foreign arbitration clause covering the dispute in question. 2758 (N. 322 at p. of America v. Inc. Lauro Lines.D. N. 1996). See also New Moon Shipping Co. M/V Hyundai Freedom 1999 AMC 1603 at p. Supp. 1975). Co. 150 149 . however. 151 Great American Ins.D. v.S. 154 1966 AMC 1217 (S. Co. the date of filing of this lawsuit.D. Rotterdam or Oslo.Y. the Court allowed cargo interests to sue the charterers in New York for their cargo claims despite a clause in the bill of lading requiring that suits against the charterers be brought in Amsterdam.150 the Court declined jurisdiction “subject to the provision that none of the parties be prejudiced as to any rights they had on . Orient Overseas Line. None of the parties had offices in New York and the bill of lading called for suit in Italy under Italian law.1968 AMC 328 (S. 1999). 1999).3d 24 at p. 1998 AMC 603 [DRO] (2 Cir. In view of the decisions in Bremen.D. Wash.S.. decisions tend to indicate that there is no point in changing jurisdiction if the new jurisdiction is inconvenient to the parties and to witnesses. Nor will the U. 153 277 F. 462. N. 1999 AMC 1805 (S. 1974). Hellenic Lines. 155 387 F. S.2d 661. v.30 If the court is concerned that rights may be lost. The purpose of a change in jurisdiction is to provide cheaper.N. 322 (S.153 an Iranian shipper's action against a Greek carrier for damage and delay to cargo shipped from New York to Iran was dismissed on grounds of forum non conveniens by the Southern District Court of New York. Man B&W Diesel AG 121 F. Street. M/V Royal Container 30 F.” Where there is a foreign forum selection clause in the bill of lading.Y. and without taking any steps to protect the running of time in the designated forum. 152 Gulf Oil Corp. Margit. order the defendant to waive the statute of limitations in the chosen forum abroad. 2124 (W.152 In Sherkat Tazamoni Auto v.Y. v. 1974). Ltd.Y. N. court.”149 In Hartford Fire Ins.D. Supp. however. Co. 501 at p. it is doubtful today whether the mere inconvenience of the clause Snam Progetti v. v. 33.Y.D. 1976 AMC 212 at p.S.155 the forum non conveniens doctrine was held to justify the dismissal of a New York action brought by an Italian shipper and a Bahamian consignee against an Italian steamship company for damage to cargo shipped from Europe to Grand Bahama Island. In the S.Y. 1967). N.. 1966). In Snam Progetti v. 1605 (S. in such a situation.D. 508.151 c) The convenience of the new jurisdiction is less important today Older U. quicker and more convenient justice.D. Sound Around Electronics. v. 1997).. and the cargo claimant deliberately takes suit in another court despite that clause. Lauro Lines 387 F. Retaining jurisdiction would have been unfair to the carrier who was willing to defend the action in Iran where most of the evidence and witnesses were located. Gilbert 330 U. Supp.154 after the shipowner had petitioned in New York to limit its liability following a total loss at sea. M/V Kapitan Byankin 1996 AMC 2754 at p.
499 U.2d 787 at p. 506.’ ‘ Carnival Cruise Lines. v.D.S.Y.. forum. Co. M/V Pergamos:159 “Rejecting the view that a contractual forum should not be honored unless it is more convenient than the forum in which the suit is brought.S. unjust. v. Cal.. Cho Yang Shipping Co. and the relative burden on the carrier.” In this regard. 2758 (N. 2956 (E. 156 . as was held in Bison Pulp & Paper Limited v. inconvenience can be considered only if it is grave enough to render the clause unenforceable as being unreasonable or unjust. or repugnant to a strong public policy of the U. V. 1972 AMC 1407 at p.D.S. Thus. Shute. 528 at p. Absent that there is no basis for concluding that it would be unfair. See also Allianz Ins. Rather.S. N. even when the forum clause designates a remote forum for the resolution of conflicts. the Bremen Court concluded that a ‘forum clause should control absent a strong showing that it should be set aside. the U. 158 515 U. the ultimate decision depends upon the exercise of judicial discretion. 1996). at 7. 518 (1974). see Great American Ins. Alberto-Culver Co. or tainted with fraud or overreaching. Shute that the high “transaction costs” of suing in the contractual forum did not furnish a sufficient reason for not enforcing the forum selection made by the parties. The Supreme Court held in The Sky Reefer that:158 “It would be unwieldy and unsupported by the terms or policy of [COGSA] to require courts to proceed case by case to tally the costs and burdens to particular plaintiffs in light of their means. COSCO 2004 AMC 1048 at p. reinforced the limited role that the factor of “inconvenience” now plays in assessing the enforceability of such a provision in American courts. Ltd. 585. 1 at p.’ 407 U. 1823 (1995). 18. ‘the party claiming (unfairness) should bear a heavy burden of proof. Tokio Marine and Fire Ins. 592. 1050 (C. 157 407 U.156 In this regard. Va. held that a foreign forum selection clause in a freely bargained for agreement must be “seriously inconvenient” before it can be denied enforcement for that reason:157 “In such circumstances it should be incumbent on the party seeking to escape his contract to show that trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court. 2004).S. 2031-2032 (S. 536. Inc.31 to one party to the contract would permit a U. court to stay proceedings conditionally or to dismiss them. Nevertheless.” The finding in Carnival Cruise Lines v.D. Co. 1418. 417 U.D.S.. 1972 AMC at 1419). the size of their claims. Co. or unreasonable to hold that party to his bargain. 1702 (1991) (quoting Bremen.S.S. where the difference between forum non conveniens dismissals and dismissals for improper venue (because of a foreign forum selection clause) was emphasized.. accord Scherk v. Supreme Court in Bremen. 2000 AMC 2947 at p. 159 1996 AMC 2022 at pp. Ltd. Supp. M/V Kapitan Byankin 1997 AMC 2754 at p.S. 1420 (1972). 15. 131 F. 1995 AMC 1817 at p. Cal. 795. 1995). 1991 AMC 1697. 1972 AMC at 1412. 2000). 407 U.” Proving so high a level of inconvenience is no easy task. in either case. at 17. of Canada v.
32 In most cases. action and availing itself of the limitation proceeding. 966-967. sect. 1996 AMC 1189 at p. 1996) (a mere “conclusory allegation” that Croatia was “politically unstable and jurisprudentially immature” was insufficient to set aside the Croatian forum clause. 3(8) of U. because English courts applying English law would uphold a demise clause in the bill of lading. U. the argument was accepted. Croatian Line 918 F. In Nippon Fire & Marine Ins Co. however. 1967 AMC 589 at p. 663. Since Bremen and The Sky Reefer. aff’d without opinion. v.S. for example. 3(8) In Indussa Corp. N. N. Court of Appeals decided that a foreign jurisdiction clause was invalid generally. Ranborg. 101 at p. 1196 (E. an English law and jurisdiction clause was found unenforceable as lessening the liability of the carrier contrary to sect.C. 595. 1806 (S. 165 But see also Hyundai Corp. D. 2757 (N. 283 (E. The U. 961 at pp. 674-675 (S. the Court deciding that the claimant could subsequently sue the shipowner and/or the vessel in rem in the Southern District of New York. 2000).D. see In re Rationis Enterprises. In Central National-Gottesman.160 Where many claims were involved in a limitation proceeding. Pasztory v.162after referring to COGSA.S.163 they can still be successful on occasion. Appx. the Korean clause was upheld." Accord: Glyphics Media. notwithstanding the demise clause in the bill. 1998).  2 Lloyd's Rep. 162 377 F. the vessel owner had waived enforcement of the forum selection clause by filing a claim in the pending U.S. Va. 201 F. v.S.D.S. where it appeared that Croatia applied the Hague Rules).. v. District Court therefore kept jurisdiction. v. “judicial economy” (the greater convenience of having all disputes settled in one forum. as judicially interpreted by American courts. so that giving effect to those clauses would “fragment this case beyond recognition”. 2002 AMC 1477 at pp. N.2d 200 at p. Sound Around Electronics v. 2d 675 at p. 3(8) of U. Inc. M. the U. M/V Kapitan Byankin 1996 AMC 2754 at p. 163 See. v. under which foreign jurisdiction and foreign arbitration clauses are deemed presumptively valid. 856 (S. The Court noted. 105 (2 Cir.164 for example. Supp. M/V Coral Halo 2004 AMC 273 at p. where although Korea (the foreign jurisdiction specified in the bill of lading) would permit suit against only the shipowner or the charterer but not both. v. Supp. Although such efforts usually fail. Great American Ins. Inc.V. 680. Supp. would not reduce the carrier’s liability contrary to COGSA). N.D. Inc.V.Y. 1967). M/V An Long Jiang 1998 AMC 854 at p.3d 432 (2 Cir. 1303(8)). La. Street. however. COGSA. Inc.D. so as to avoid the risk of non-enforcement of the Japanese law and forum clause in the bill. 1999). S. 2002).S.Y.Y. COGSA (46 U.S. where hundreds of plaintiffs around the world in a limitation of liability suit held bills of lading issued by the defendant with inconsistent forum-selection clauses. that its decision was based on the facts that: 1) the purpose of a limitation of liability suit is to require all claims to be determined in a single forum and 2) in this case. COGSA.S. whereas U. M/V Royal Container 30 F. would permit suit against the time charterer who issued the bill as well as the shipowner.Y. 1483-1484 (S. 1999). because it would relieve or lessen the carrier’s liability contrary to that provision. Co.D.D.2d 661 at p. Conti Singapore 2003 AMC 667 at pp.D. Gertrude Oldendorff. 1999): "Refusing to enforce a forum selection clause on this basis [the risk of multiple proceedings] would undermine whatever measure of certainty such clauses bring to the international shipping transactions in which they are commonly employed. 160 .161 d) Must not contravene sect. Cal. 164 204 F.Y.165 See. the contractual forum. thus reducing litigation costs and the risk of inconsistent judgments) is refused as a ground for refusing to enforce a jurisdiction clause. 1999 AMC 1805 at p. for example. 204. 2003). the Japanese ship manager agreed to waive the demise clause in the bill of lading. 894 (S. 161 For an example of such serious inconvenience. N. however. M. 1996) (plaintiff failed to refute defendant’s showing that Australia. of Panama 1999 AMC 889 at p. the party challenging the contractually agreed foreign venue has a heavy burden of proof to make in order to convince the American court not to enforce the clause because of its incompatibility with sect. permitting suit only against the shipowner as carrier. 3(8).S.A.
1998). COGSA. Majestic Electronics. 675 (S. Because it was clear that a German court would take a view so different from an American court of the effect of the liberties clause. however: mere speculation that the foreign law as applied by the foreign court may reduce the carrier’s liability below what COGSA guarantees is inadequate. if it could not be established that those courts would apply the obligatory Hague/Visby Rules enacted by Belgium’s Maritime Law. 1997). the foreign forum selection clause has been denied enforcement. would or would not in effect be construed so as to relieve or lessen the carrier’s liability contrary to sect. Union Steel America Co.e.  ETL 453. v.V. 574 at p..D.33 In Heli-Lift Ltd. 3(8) of COGSA. In these cases. have been uncertain whether particular bill of lading clauses. 1998). La.S. where the affidavits of Japanese lawyers showed there was “substantial uncertainty” that the designated Japanese court would recognize multiple carriers as COGSA carriers the way an American court would do. Glyphics. 576. where on-deck stowage constitutes. unless he had immediately objected to it on receiving the bill of lading. facing contradictory affidavits from foreign law experts. M/V Spring Wave 92 F. 2166 (S. because it appeared that Korean law would not grant the cargo underwriter claimant an action in subrogation. under sect. 2001). 3(8) of U. Conversely.D. Inc. v. prima facie. 2960 (D. which the insurer would enjoy under COGSA. 2000 AMC 1717 at p. In Gibbs International Inc. unless consented to expressly by the shipper or permitted by a general port custom. Inc. Co. 1997 AMC 2954 at p. v. v. an “unreasonable deviation” from the contract of carriage. Cal. v.. M/V Ocean Sunrise 2003 AMC 2200 (E. Cal.Y. unless the carrier could prove that the deviation (i. unless cargo could prove that in doing so. 167 166 . N. will in fact lessen the carrier’s responsibility below the COGSA threshold.168 One point is very clear in this regard. M/V OOCL Faith. 1719. Federal Ins. Conti Singapore 2003 AMC 667 at p. v. 169 See. La. v. N. Nippon Fire & Marine Ins.S. M.D. where a Japanese forum selection clause was found null and void and unenforceable. 1999). Supp. courts would be void by Belgian law. the carrier had intended to cause the loss or had acted recklessly with knowledge that the loss would probably occur. even if negligent. if and when interpreted by the designated foreign forum applying the designated foreign law. art. in the U. the foreign jurisdiction clause was denied enforcement on grounds of public policy. Sligan Plastics Corp.169 there must be proof positive that the foreign court. 2003). June 18. M/V Nedlloyd Holland 1998 AMC 2163 at p. for example.  ETL 509 (E. Co.S. the deck stowage) was reasonable. N.J. See also Kanematsu U. 2003).D.166 a bill of lading calling for German law and Hamburg jurisdiction contained a general liberties clause. 2000).Y. such an “optional stowage clause” in the bill of lading would not be deemed a valid consent to deck carriage and would cause the carrier to lose the benefit of the $500 U. applying its law. Sanko Spruce 1999 AMC 366 (D. 1701(C.S. Inc. S. 168 See.167 a Korean jurisdiction clause in a bill of lading was held to be invalid. 91. v. permitting the carrier to stow a helicopter on deck.170 2003 AMC 30 (C.D. The American court noted that such a clause would be upheld in Germany.C. would not break its package limitation under German law. There are also decisions in which American courts. COGSA package limitation for resulting cargo loss or damage.D. where a Belgian Court decided that a bill of lading clause granting jurisdiction over cargo claims to U. 2002 (The Dymphna. see Rechtbank van Koophandel te Antwerpen. 170 For a similar European decision. The carrier’s act in stowing the cargo on deck.S. M/V Jin He 1999 AMC 1700 at p. for example.A. and the shipper would be deemed to have consented to deck stowage.
cert. 1995). Jockey v. v. Inc. 808. 15.Y. What is reasonable is a question of fact for the trial court to decide. citing Haynsworth v. 2003 AMC 2608 at p. 2617-2618. 1363 (2 Cir. Ltd. 1955 AMC 1687 at p. Margit 1966 AMC 1217 at p. 1997 at p.D. 7 Ed. Sun Line Cruises. Ct.D. Tsuneshima Maru 197 F. (2) if the complaining party ‘will for all practical purposes be deprived of his day in court. 1689 (2 Cir. M/V Southgate 2000 AMC 399 at p. however. of Lloyd’s. 2002) (bill of lading cases relying on the same criteria). (3) if the fundamental unfairness of the chosen law may deprive the plaintiff of a remedy. 510 U. 400 (S. 176 Barbara Lloyd Designs. 2002 AMC 1477 at p.V. 1993).2d 447 at p.’ due to the grave inconvenience or unfairness of the selected forum. See also Restatement (Second) on Conflict of Laws. 1 at p. Takemura & Co. 1955). Gertrude Oldendorff 204 F. fraud or overreaching. such as by fraudulent means. held that forum selection and choice of law clauses could be found “unreasonable” if:173 “(1) if their incorporation into the agreement was the result of fraud or overreaching.Y.S. or violation of the U. 1997) and Black’s Law Dictionary. 911-912. in Roby v. 224 F. 1220 (S. 2618-2619. v. 2002 AMC 2377 at p. Conti Singapore 2003 AMC 667 at p..Y. Inc. Mitsui O. 174 See also Asoma Corp. 2003). 672 (S. S. Corporation 121 F.. Dist.3d 7 at p. and is also usually dismissed as a ground of nonenforcement. M. Lines Ltd.S.34 e) Reasonableness For a great many years. 1972 AMC 1407 at p.D.3d 956 at p. 1971. N.”174 “Overreaching” refers to inequality of bargaining power between the parties or other circumstances in which there is “an absence of meaningful choice on the part of the parties”. as where one party takes unfair commercial advantage of another. 1996 AMC 253 at p. N.S. 1999). Dk.Y. 1129. Central National-Gottesman. 451. 2381 (S. 678. forum’s public policy172).S. which factors. Inc. decisions have generally not strayed far from the three very general grounds of unenforceability articulated in Bremen (injustice or unreasonableness (unfairness). are rarely accepted as grounds for refusing enforcement to an otherwise valid forum clause in the United States.S.2d 675 at p. Corp. v. v.175 Inconvenience and the risk of being deprived of one’s “day in court” refer to such factors as the costs of travel and accommodation for parties litigating in the foreign venue and litigation costs there.176 Public policy must be “strong” in order to defeat a choice of forum provision.D. Glyphics Media.2d 1353. Inc. 67 F. 2002). 1218 (S. 909 at pp. Supp.Y. 173 996 F. ibid. See Effron v. 2616 (N. 177 Barbara Lloyd Designs. ibid. The Bremen Court did not elaborate on how the “reasonableness” of the contractual agreement between the parties as to the venue for their disputes should be determined. 259 (2 Cir. at pp.Y. for example. v.K. S.D. 171 .. Inc. The Second Circuit. 80. Supp. 945 (1993). Inc. Subsequent U. Leverkusen 217 F. the basic criterion (which is perhaps a summation of all the other criteria) in refusing or accepting jurisdiction has been that it be “reasonable”171 for the parties to litigate in the chosen jurisdiction.S.177 Muller & Co. 1479 (S. 1966). 1418 (1972).V. N.D. 2003). v. Supp. N.S. 172 407 U.2d 806 at p. N. 1962 AMC 1217 at p. N. or (4) if the clauses contravene a strong public policy of the forum state” (citations omitted). 965 (5 Cir. 1961). 175 Barbara Lloyd Designs. sect. The fact that plaintiffs in many jurisdictions are permitted to plead by deposition often precludes acceptance of the “day in court” argument. at pp. 11. denied. Swedish American Line. M.
181 the allegedly “deplorable state of India’s court system”. the awarding by Brazilian courts of judgments in cruzeiros rather than in dollars. v.S. Supp. 1996 AMC 769 at p. v. 2001). 20. where the carrier’s option to sue in either Mexico City or Rio de Janeiro was upheld.D. 110 (N. Va. 770 (S. at p. 673.D Cal.184 In that case. Fritz Transportation International. 2004). the lack of trial by deposition. M/V Conti. See also Tokio Marine & Fire Ins. M/V Turquoise 2001 AMC 1692 at p. the port of loading. unreasonableness was found in the “floating choice of law and jurisdiction clause” considered in LG Electronics Inc. the presence of bad faith. 1992).2d 787 at p.S. and the convenience and relatedness of the forum to the contract. with other authorities cited there. the transshipment port or the place of delivery). Cho Yang Shipping Co. Inc. In Interamerican Trade Corp.. 182 See also Tokio Marine and Fire Ins. were all dismissed as grounds of non-enforcement of the Brazilian jurisdiction agreement. at pp. Supp. even where a non-vessel-operating common carrier (NVOCC) had issued its own bill of lading to the shipper conferring exclusive and mandatory jurisdiction on the “New York District Court”. 2000 AMC 2947 at p. 2950 (E. Cal. v. Tex. does not justify refusal to enforce the clause. jurisdiction.2 million U. 2001). N.2d 487 at pp. the port of discharge.185 The clause. were invoked in enforcing the jurisdiction clause. 186 2002 AMC 106 at p. COSCO 2004 AMC 1048 (C. the slowness of the Brazilian judicial process. in Glyphics Media.. was therefore not enforced. the requirement to post over $2.35 In Allianz Ins. and the fact that foreign witnesses were permitted to testify by way of affidavit in India.182 The affidavit of a practicing Indian maritime lawyer expressing the opinion that a typical Admiralty suit such as the plaintiffs’ could be heard and disposed of in the Bombay High Court within a maximum period of three years. 2001). Ltd. 179 973 F. 18 at p. held to be “unreasonable”.) forum applied.D. which parties must have considered when negotiating the agreement. while also giving the carrier the choice of six other fora in which to litigate under their respective laws (the place of acceptance of the goods. 489-490): “speculative concern regarding fairness of a foreign court. Cal. 183 Ibid. was not an adequate ground for nonenforcement of an exclusive Indian law and forum selection clause in an ocean carrier’s bill of lading. Nor did the provision require suit to be brought exclusively in any one specific forum.V. have generally been found insufficient to constitute “unreasonableness” justifying sidestepping of the designated forum. and the alleged difficulty of getting money out of Brazil. 2003). the bill of lading clause specified United States law and U.. of Canada v. Co.186 131 F. M. 1694 (D.178 the Court noted that: “Additional considerations include the relative bargaining power of the contracting parties. v. the place of delivery. U. Ltd.D. v.C. was nevertheless not unjust.S. provision of an adequate remedy for the aggrieved party. because the forum selection clause in the bill of lading required that suit be brought exclusively in one or other of those fora. Dismissal on forum non conveniens grounds was also denied. 790. although more inconvenient for one party.183 On the other hand.S. 2000).” Mere procedural differences between trial in the designated court and trial in the U. Co. 1995).e.. Companhia Fabricadora De Pecas. The clause failed to specify when the carrier had to exercise its option and when the “default” (i. as security.D. 178 .D.179 the unavailability of a jury trial in Brazil. 180 The Sixth Circuit noted (ibid. S. Jalisco 903 F.180 Similarly. Co. 184 2002 AMC 106 (N.” 181 2003 AMC 667 (S. 489-490 (6 Cir. particularly as regards delays for trial.Y. 185 Compare with Industria Fotografica v. Other evidence indicated that Brazilian courts were fully competent and that trial there.
S. Geneva 2003 AMC 2511 (S. 1998 at p. 1988 AMC 318 at p. 944.v. 1972 AMC 1407 at p. 1895 at pp. but where the ocean carrier was also faced with crossclaims by co-defendant inland carriers arising out of the same facts. 2 Ed. Ltd.36 Where a bill of lading forum selection clause required the cargo claimant to sue the ocean carrier in the Southern District of New York. 1959 AMC 1327 (1959). Zapata Offshore Co. 180. Dias v. where the clause was so much more narrowly drafted. 1983 AMC 2719 at p. 190 407 U. v. Indeed in M/S Bremen v.D. Co. 408-409. and concluded that191 “…the language of the [Bremen] clause is clearly mandatory and all-encompassing.United States A very particular problem arises in admiralty in respect to the enforcement of forum selection clauses. See also Conklin & Garrett. Maritime Liens & Claims. Carbon Black Export. it was held to be “unreasonable and unjust” to require the ocean carrier to defend the claim and cross-claims in two different districts.S. 429-431. Monrosa v. Fla. 1933-1936 and on-line at http://tetley. ibid. at p. owners or agents of the vessel. 406407. U. Rev.mcgill. S. itself.ca/maritime/arrest. The bill of lading jurisdiction clause did not specifically refer to in rem proceedings. Inc. 2003). See Tetley. most modern foreign forum selection clauses are not limited to claims against the master.2d 381 at p. Dashwood Shipping. Lauritzen A/S v. Unlike the clause in Monrosa.law.A. The jurisdiction was also convenient to the parties. 321 (5 Cir. Mediterranean Shipping Co. The Vessel Bay Ridge 703 F. at p. however. so the forum selection clause was not enforced. “Arrest.. where the jurisdiction clause in the towage contract stipulated that:190 “…(a)ny dispute arising must be treated before the London Court of Justice". 1987): “Bremen. M/V Finnrose 826 F. S. 1443. the U.187 f) In rem . 1408 (1972). The arrest of the ship in rem under Supplemental Rule C gives the Federal District Court jurisdiction. 2. Supreme Court distinguished Monrosa.S.S.. 1422. 1 at p. Attachment and Related Maritime Law Procedures” (1999) 73 Tul. Tetley. 2721 (9 Cir. 418.htm.” The clause was held to be insufficiently specific to cover the in rem claim and thus the District Court could keep jurisdiction. however. 1983) re Supplementary Rule C. See Tetley.. although reading: “No legal proceedings may be brought against the Captain or shipowners or their agents except in Genoa. 20.189 where a ship was arrested in the Southern District of Texas in respect to cargo damage sustained in a voyage from Texas and Louisiana to various ports in Italy. See also J. 384. AMC at p. 1995 AMC 2730 at p. overrules the broad reading this Court gave to the clause in Monrosa. Accordingly.188 Does the fact that jurisdiction has been obtained by arrest make any difference to the consideration of a direction in a jurisdiction clause? A leading decision has been S.2d 1441 at p.” 188 187 . 2003 at pp. The admiralty attachment under Supplemental Rule B also gives jurisdiction. 2732 (9 Cir. Ltd. See also Tetley. see also Alyeska Pipeline Serv. in more recent decisions involving clauses drafted so as to apply to claims or disputes generally arising “under” (and/or “in connection with”) the contract. 191 Ibid. L. International Maritime and Admiralty Law. the wording of the foreign forum selection provision has been held wide enough to encompass claims in rem as well as those in personam. 189 359 U. 1995). the language of the clause in the Carbon Black case was far different”.
see Lurie v. 1998). 1270-1271..Y.m. Co v.S. Lucent Technologies. decline jurisdiction and dismiss the attachment or order the release of whatever security the defendant has posted. (citations omitted). 1996 AMC 769 at p. 1995).195 so can a court.194 In the same way that a court. 1984). The Court (at p. Transfer of a suit from one federal district court in the United States to another198 is fraught with far fewer problems because a change in law is not involved. Supp. In Reed & Barton Corp.V. Norwegian Cruise Lines. District Court pointed out that. v. v. g) Transfer within the U. Ltd. Lim. on March 31. Supp. N. 2000). 18 at p. 198 28 U. any claim or dispute arising hereunder or in connection herewith shall be determined by the courts in Seoul and no other courts. unlike the clause considered in Monrosa.b. Halla Maritime 583 F. 1995 192 . see also In re the Complaint of American President Lines. at p.Y.D. Inc. 20. but only upon the defendant furnishing security to ensure payment of a subsequent judgment. 359-360 (W." For an example of the use of this provision in a case involving a forum selection clause (in a cruise passenger ticket). (7) where the events in issue took place. 770 (S.D." The Ninth Circuit interpreted this clause to include in rem claims. (2) the convenience of material witnesses. .N. DSR Atlantic. to German law as determined in the “Hamburg courts to the exclusion of the jurisdiction of the courts of any other place”.” 195 M/S Bremen (and Unterweser G. 1611 (E.199 131 F. which has obtained jurisdiction by an arrest in rem (under Supplemental Rule C) can nevertheless give effect to a jurisdiction clause and decline jurisdiction. .2d 352. 1978. provide useful rules and procedures when suit has been taken by an action in rem.V.37 Again in Fireman's Fund Ins.S. and in force November 1.192 the clause stated: " . under this Bill of Lading . and (8) the interests of justice in general. 194 Ibid. The parties agreed to the jurisdiction choices in the contract.193 where the clause similarly subjected “… any claim or dispute arising under this Bill of Lading”. 1972 AMC 1407 (1972). M. 199 See Norfolk Dredging Co.3d 1336 at p. the U. . 584 (9 Cir. 193 1999 AMC 1088 (S. The suit is transferred. although it did not mention them expressly. 240 F. 305 F. Supp. in the interest of justice.H. 1268 at pp. M/V Kasif Kalkavan 989 F. 1992. aff’d without opinion sub nom. 196 Teyseer Cement v. . which has acquired jurisdiction by an admiralty attachment (under Supplemental Rule B). 197 Signed at Hamburg. Tex. 210 F. shall be brought before the Seoul Civil District Court in Korea" to encompass in rem claims. 498. Va. 1. 407 U. 535. Convenience is the main criterion. 1090) also cited Industria Fotografical Interamericana v.196 The Hamburg Rules. a district court may transfer any civil action to any other district where it might have been brought.D. Wash. Supp. 1999). N. Tokio Express.D. M. where it was held: “Confusing a right in rem to seize with a proper court under the contract is confusing a remedy for a forum. 2002): “These criteria include: (1) the convenience of the parties. (4) the cost of obtaining the presence of witnesses. See also International Marine Underwriters v. Inc. (5) the relative ease of access to sources of proof. 1998 AMC 583 at p. Jalisco 903 F. supp.3d 355 (2 Cir. M. 21(2).) v. 2004).D. . Code sect. 1404(a) provides: "For the convenience of the parties and witnesses. (3) the availability of process to compel the presence of witnesses.197 at art. 1997).S. although some other jurisdiction is more appropriate. 2002 AMC 1608 at p. M. 1998 AMC 765 (S. where the Court interpreted a clause that read "any and all action .S. 1985 AMC 356 at pp.D. this clause was broad enough to cover in rem claims. (6) calendar congestion. 1337. 2004 AMC 1278 (S. 1091.2d 532 at p.Y. give effect to a clearly worded jurisdiction clause. Procs.V.V. Zapata Off-Shore Co. Tokio Express. .
Y.. 514. depending on the case. 975 F.” See 46 U. N. Supp.D. consolidating small shipments from multiple shippers into large. 791.L. (Emphasis added). 204 The Fehmarn  2 Lloyd's Rep. 858 F. 1989). 890 F. for that reason AMC 2296. 2002 AMC 1598 at p. not as principals.Y. 197 at pp. 2001). Schneider Freight USA Inc.A.D. Cho Yang Shipping Ltd. Co. 1988) (perfume dealership contract). v. 1997) and other decisions cited there.) and Adrian Briggs “The staying of actions on the . v. Kukje Hwajae Ins.. 315 (S.2d 787 at p. Lucky Cat Ltd. note 5 (9 Cir. Va. M/V Hyundai Liberty 294 F. 2158-2160 (C. the enforceability of the judgment.” 200 See. 493 F.R. v.2d 509 at p.C. 551 at p.200 Jurisdiction clause in marine bills of lading have been held applicable to third parties to those contracts (who. the existence of a forum selection clause. 202 A NVOCC is “a common carrier that does not operate the vessels by which the ocean transportation is provided. 1) The United Kingdom . 1702(17(B). 32 F. Farrell Lines. L. 555 (C. Supp. N. See National Customs Brokers & Forwarders Ass’n v.Y. Corporation of Lloyd’s 999 F. 341 (S. of North America v. Compania United Arrows. 2951-2952 (E.  2 Lloyd's Rep. v. Cir. Included are the original choice of forum. third parties have been held bound by forum selection clauses in various types of contract. L. v.N. 2001 AMC 2153 at pp. 1993) (contract for membership in insurance market). Co.P. for example. 175 at pp.  2 All E. Zochonis (U. the relative familiarity of the courts with the applicable law. Inc. 126.).D.K. N. Other factors that inform the Court’s inquiry are intermingled with these considerations. Conti Singapore 2003 AMC 667 at p. S. 1997) (contract for satellite communications services).D. citing Manetti-Farrow.C. for example.38 5) Jurisdiction clauses and third parties In the United States. Glyphics Media.Supp.S. 2003). where they have been adjudged to be “closely related” to the dispute. by his private stipulation. 1175. 209 (7 Cir. declared: a jurisdiction clause “is a matter to which the Courts of this country will pay much regard and to which they will normally give effect.2d 118 at p.J. of Canada v. Supp. standard-sized reusable containers that can be quickly loaded on and off ships and onto trucks or other types of transportation. 201 See. 2000). but it is subject to the overriding principle that no one. so that it becomes “foreseeable” that they will be so bound. Supp.Y. 203 Indemnity Ins. N. 131 F. judicial economy.A. 1602 (9 Cir. 101.204 Those courts have the reputation of giving quick and fair justice and. See also International Private Satellite Partners. N. Co.C. 485-486 (W.Y.  A. Hrelijin 600 F. Columbus Cello-Poly Corp. 202 at p. Gucci Am. 677 (S. 308. M. may be the owner of the goods.201 In particular. 626 at pp.) Ltd. the shippers have been held bound by the forum selection clauses of the ocean carriers’ bills of lading.3d 1171 at p. 1985). Paterson. App. Inc.D. Supp. United States 883 F. 629-630 (S. Ltd. v. Hugel v. Dukane Fabrics Int’l Inc. Inc.2d 93 at p. 464-469. 483 at pp. 2000 AMC 2947 at pp. Inc. can oust these Courts of their jurisdiction in a matter that properly belongs to them”. 2303.2d 206 at p. 207-210. but merely as agents of the shippers. NVOCCs perform a function similar to overland freight forwarders.D. and is a shipper in its relationship with an ocean common carrier. 1998 AMC 334 at p. Allianz Ins. D. v.V.Y. 1193-1194 (S. 2002).D. where Denning. see Lord Wilberforce in The Atlantic Star. Cal. 1995). 1985 AMC 1192 at pp. 1991 AMC 302 (summary) (D. 191-194 (H. 203.Forum Non Conveniens Introduction It was the practice and tradition in the United Kingdom to jealously guard the jurisdiction of its courts. For a useful history of the law of forum non conveniens in the United Kingdom. the shipper or the subrogated cargo underwriter). 436 at pp. 1980).203 202 X. and the public interest in the local adjudication of local controversies. where freight forwarders or NVOCC’s (non-vessel-operating common carriers ) contract with ocean carriers.
A. 454. 453.R. 200. it is a good place to shop in. 630 (H. 209  A. 446 at p. A..L. 197 at p. 339 at p. that seems to me to recall the good old days. You may call this 'forum shopping' if you please. 208 Ibid. with all respect. 436.an update”.39 many foreign litigants have sought and still seek resolution of their commercial disputes in London either before the courts or in arbitration. both for the quality of the goods and the speed of service. 181 (H. but their Lordships rejected the technical argument that they were not entitled to consider such an offer made after the commencement of proceedings.U.” 207  A. As Lord Reid said:208 “In the end it must be left to the discretion of the court in each case where a stay is sought. All E. 206 The Atlantic Star  A. 197. .  1 K.R.  2 All E.). as Kipling more forthrightly phrased it. 205 The Atlantic Star  2 Lloyd's Rep. The decision of the House of Lords in The Atlantic Star207 was the turning point at which the United Kingdom effectively adopted a more reasonable forum non conveniens position.K. It extends to any friendly foreigner.  1 All E. one positive and the other negative: (a) the defendant must satisfy the court that there is another forum to whose jurisdiction he is amenable in which justice can be done between the parties at substantially less inconvenience or expense and (b) the stay must not deprive the plaintiff of a legitimate personal or juridical advantage which would be available to him if he invoked the jurisdiction of the English court..C. Pierre v.J.R.” To which quotation.): “My Lords. 'lesser breeds without the law'.L. 201.206 2) The modern regime .). 398 (C.  2 All E. 341: “. 436 at p. Rockware Glass Ltd. 812. at p. At one point Lord Denning commented on “forum shopping” as follows:205 “This right to come here [before English courts] is not confined to Englishmen.'s statement of the rule in St. Lloyd's Rep. at p.C. at p.B. where Lord Diplock established two rules:209 “In order to justify a stay. when inhabitants of this island felt an innate superiority over those unfortunate enough to belong to other races.  2 Lloyd's Rep.R. 451.).R. 625 at p.C. but if the forum is England. 705 at p.C. the passing of which many may regret. 382 at p.L.  LMCLQ 227 and in a subsequent article “Forum non conveniens . He can seek the aid of our Courts if he desires to do so. 175 at p.” ground of ‘forum non conveniens’ in England today”. 709 (C.A.  3 All E. Lord Diplock added in The Abidin Daver  1 Lloyd's Rep. two conditions must be satisfied. thereby modifying Scott L.or. South American Stores (Gath and Chaves) Ltd. 795 at p. and the question would be whether the defendants have clearly shown that to allow the case to proceed in England would in a reasonable sense be oppressive looking to all the circumstances including the personal position of the defendant.). 175 (H. 181. An offer to provide security was made after the proceedings had commenced.” Lord Denning's comment was specifically questioned “with all respect” by Lord Reid in The Atlantic Star.  LMCLQ 360.” The next step was MacShannon v.  2 Lloyd's Rep.
The Al Wahab and The Abidin Daver. Co. 210 . the balancing of advantage and disadvantage to plaintiff and defendant of permitting litigation to proceed in England rather than.A. 203. in which the case may be tried more suitably for the interests of all the parties and the ends of justice.” Finally in The Spiliada. 371 (C. Kuwait Insurance Co. per Lord Justice Brandon). having competent jurisdiction..” Lord Diplock continued and summed up the change in the attitude of the English Courts:213 “My Lords.L. 1 (H. Strabag Bau  1 Lloyd's Rep. indistinguishable from the Scottish legal doctrine of forum non conveniens. i.. 361 at p. 202 (H. the essential change in the attitude of the English Courts to pending or prospective litigation in foreign jurisdictions that has been achieved step-by-step during the last 10 years as a result of the successive decisions of this House in The Atlantic Star.and this feature was added by Lord Diplock in The Abidin Daver:212 “. 211 More recently. 119 at pp.  2 W. 365 at p. nevertheless.A.).R. L.210 Lord Wilberforce. in my opinion. declared in New Hampshire Ins. MacShannon. Lloyd.J. there is of course authority binding on me which deplores any discussion or entertainment of those types of argument. and The Spiliada. 344.).L.. 214  1 Lloyd's Rep.).e. v. MacShannon. 213 Ibid.L. noted: “It is not appropriate. at p. 339 at p.”211 The foregoing views. Furthermore. or reputation or standing of the Courts of one country as compared with those of another (cf..K. 343. in a foreign forum is to be based upon objective standards supported by evidence. 196 at p. to embark upon a comparison of the procedures.L. Nothing is gained by any discussion of the relative merits of various different procedures. which is the appropriate forum for the trial of the action.214 Lord Goff formulated an authoritative approach to forum non conveniens which now forms the basis of the doctrine in English law:215 “The basic principle is that a stay will only be granted on the ground of forum non conveniens where the Court is satisfied that there is some other available forum. are lacking in one respect a reasonable balance between the interests of the parties . W.R. at p.40 In The Al Wahab (Amin Rasheed Shipping Corpn. approving a statement by Hobhouse J. at p. 215 Ibid.. v.L. the House of Lords had gradually adopted the doctrine of forum non  2 Lloyd's Rep." 212  1 Lloyd's Rep.” Thus by its decisions in The Atlantic Star.): ""Every court has different procedures. 126-127 (C. is that judicial chauvinism has been replaced by judicial comity to an extent which I think the time is now ripe to acknowledge frankly is. or as well as. or methods. The El Amria U. and Amin Rasheed. referring to The El Amria  2 Lloyd's Rep.). in referring to a comparison of the quality of justice obtainable in England and elsewhere. 375 (H.). 10. Lloyd's Rep. in the field of law with which this appeal is concerned.
251 (C.).A. 459-460. See also The Sennar (No. despite the choice of a court in Alexandria. (2003) 224 D. and in many more recent decisions.41 conveniens.A. no doubt with some satisfaction. 242. is not bound to grant a stay but has a discretion226 whether to do so or not. Pakistan National Shipping Co. 222 See The Pia Vesta [198411 Lloyd's Rep. 521 at p. 218  2 Lloyd's Rep.).L. of Canada v. 235 (C. Pompey v. Ibid.216 It only required the adoption of the principles set down by Lord Brandon in The Eleftheria217 and repeated in The El Amria218 for the application of the doctrine to be complete.  1 Lloyd's Rep 593 (P.A. High C.R.  1 WLR 1367 and The MC Pearl  1 Lloyd's Rep 566. 171. 244 at p.). 2)  2 Lloyd's Rep. (No.23 at pp. but Brandon L. The rule has also been referred to in Australia. (1996) 141 A.J. 223 Donohue v.V. 1 at p. In The Spiliada  1 Lloyd's Rep.). 324. 1095. 425 at pp.). 4. 123-124 (C. Zapata Off-Shore Co. 450 at p. 1)  2 Lloyd's Rep. 220 Proving that it is quite fitting to cite oneself.R. N. 237 at p.). 521 at p.). 12851286. assuming the claim to be otherwise within its jurisdiction. 3 Ed. 119 at pp. Baghlaf Al Zafer v..L.C. (4th) 577 at pp. per Lord Bingham). 593 at p.21 to 4. 237 at p.). 237 at p.223 Lord Brandon's principles are as follows:224 “(1) Where plaintiffs sue in England in breach of an agreement225 to refer disputes to a foreign Court. 374 at p..). 142 at pp. 10 (H. 2)  1 Lloyd's Rep.L. 3) The rule in The El Amria In the The Eleftheria. See also The Nile Rhapsody  1 Lloyd's Rep 382 (C. 327. 432-433 (H.  1 S.A. 158 at p. The Sennar (No. v. 1082 at p. Lord Brandon noted.). v.4. 225 The agreement must be valid and enforceable and the claim must fall within the scope of the agreement.  1 Lloyds Rep.). 163 (C. 123-124 (C. 229 at p. The Pioneer Container  2 A.R. The Eleftheria rule has been cited in Canada in Agro Co. v.C. 226 Unterweser Reederei G. The Iran Vojdan  2 Lloyd's Rep.C. 1) 2 Lloyd's Rep.  2 Lloyd's Rep. (No. ___ (Aust. including notably Z. see Briggs & Rees. The Pioneer Container  2 A. 227 The Sennar (No. set down principles by which a question of forum non conveniens should be decided in cases where the plaintiff sues in England in breach of an exclusive foreign jurisdiction clause.A. 385. 2)  2 Lloyd's Rep. Citi-March Ltd. The Regal Scout  2 F.219 Brandon J. Standard Chartered Bank v Pakistan National Shipping Corporation  2 Lloyd's Rep 365. 242. The People's Insurance Co. 2003 AMC 1280 at pp. For further commentary on these points. 380 at p.  1 Lloyd’s Rep. 856. 2002. 283-290.). 142 at p. See Akai Pty Ltd.).L. himself220 repeated the principles in the Court of Appeal in The El Amria221 and his criteria laid down in that case have now been taken as the basic statement on the question. 221  2 Lloyd's Rep. 605 (P. Pakistan National Shipping Co. jurisdiction was kept in England because the witnesses were English and related litigation had already commenced in 216 . for example. (The Humber Bridge)  1 Lloyd's Rep 72. in fact failure to cite oneself is often evidence that the previous statement was erroneous. 224 The El Amria  2 Lloyd's Rep. 229 (C. Neptune Orient Lines Ltd.L.R. 851 at p. The Eleftheria  1 Lloyd's Rep. 119 at pp. In this latter judgment.).). Armco. 527 (H.222 reiterated by the House of Lords in Donohue v. In the El Amria itself.C.m. Baghlaf Al Zafer v. 324 at p. 119 at pp. ECULine.).C. 219  1 Lloyd's Rep. 123-124 (C.A.b.  2 Lloyd's Rep. how The El Amria had been cited by others. 154 (C.A. Lord Goff formulated an authoritative approach to forum non conveniens: 217  1 Lloyd's Rep. paras. 169 at p. the English Court.I.A. and the defendants apply for a stay.C. Civil Jurisdiction and Judgments.L. 242. (2) The discretion should be exercised by granting a stay unless strong cause227 for not doing so is shown. 527-528 (H. The Benarty  3 W. 154-155 (C.H. At first this remarkable decision was not generally followed.L.  1 Lloyd's Rep. Armco Inc. Ltd.A. 586-587..A.
v. see also The Sennar (No. 586-592. For the same principle in Australia. Hyslop  3 N.A. 349 at pp. 3 Ed.A. 2)  2 Lloyd's Rep. (1996) 188 C.) and Kidd v.A. 2)  2 Lloyd’s Rep. Ltd. 4. the following matters. and why England is. 2002 at para. 231 The Traugutt. The Vishva Prabha  2 Lloyd's Rep. 710 at p.).V. 246. at p. The Vishva Prabha  2 Lloyd's Rep. and the effect of that on the relative convenience230 and expense of trial231 as between the English and foreign Courts. 237 The Vishva Prabha  2 Lloyd's Rep. (ii) be unable to enforce any judgment obtained.A.Z.  1 Lloyd's Rep 593 (P.Z. The Traugutt  1 Lloyd's Rep. 288. 232 The Eleftheria. Fay (1988) 165 C. 428-429 (Aust. 2)  2 Lloyd’s Rep. The People's Insurance Co. where the plaintiffs in a cargo claim failed . 1287-1293. after all. 237 at p. 79. See Briggs & Rees. Akai Pty Ltd. v. Civil Jurisdiction and Judgments.C. see also The Pia Vesta  1 Lloyd's Rep. v. 473 and 479.R. By refusing the cargo owner the right to arrest in England. But see also The Pioneer Container  2 A. 377 and 385 (C.R. 142 at p. 245. 230 The Traugutt  1 Lloyd's Rep. 2003 AMC 1280 at pp.I. See also The Sidr Bashr 235 The Lisboa  2 Lloyd's Rep. 79 (convenience to the parties and to witnesses).A. where they arise. ibid.R.R.R. Conversely. where it was suggested that if the failure to protect time in the chosen foreign forum was not the fault of the claimant. the burden of proof is on the claimant to show why he should not be held to his bargain of suing in the agreed contractual forum. v. and how closely. but without prejudice to (4). if so.). (5) In particular. it would lose its only available security.L. 286 at p.C.A. 511 at p. High C. 546 at pp. 76 at p. 286 at p.L. The Eleftheria  1 Lloyd's Rep.A.L. 135 at p. the clearly more appropriate forum for trial.L. H. it is the defendant who has the burden of proving that another forum is clearly more appropriate than the local forum selected by the claimant and that he (the defendant) is therefore entitled to a stay of proceedings on forum non conveniens grounds. 286 at p. (b) Whether the law of the foreign Court applies and.  1 W. 228 The Fehmarn  1 Lloyd's Rep.. 461-469. 233 The El Amria. But in The Bergen (No.L.). who was Counsel for the plaintiffs.). 380 at p.).R. or more readily available.). where there is no forum selection agreement.236 (iii) be faced with a time-bar237 not England. 288. See also in appeal  2 Lloyd's Rep. see Ocean Sun Line Special Shipping Co.C. or are only seeking procedural advantages. 288.25 at p. 169 at p.233 (d) Whether the defendants genuinely desire trial in the foreign country.232 (c) With what country either party is connected. 125.42 (3) The burden of proving228 such strong cause is on the plaintiffs. 324 (N. 234 The Iran Vojdan  2 Lloyd's Rep. 142 (N.234 (e) Whether the plaintiffs would be prejudiced by having to sue in the foreign Court because they would: (i) be deprived of security235 for their claim.R.  1 S. at p. Pompey v.). Brandon. Stay was refused where the delay for suit had expired in the foreign court.A. Inc. 710 (C. 453 at pp. where the advantage of the English process of discovery was held not to be a consideration.V. see Society of Lloyd's & Oxford Members' Agency Ltd. 450 at pp. The “strong cause” requirement was also strongly reaffirmed by the Supreme Court of Canada in Z.A. supra. (4th) 577 at pp. See also The Bergen (No. whether it differs from English law in any material respects. 551 (C. and in New Zealand. The El Amria. the foreign time bar might be grounds for refusing the stay. ECU-Line N.).Z. 126-127. may properly be regarded: (a) In what country the evidence on the issues of fact is situated. C. made an admission in this case that “the burden of proof was upon him to displace the prima facie right of the defendants to have these proceedings stayed and to have the case tried by the chosen foreign tribunal”. 324. 514. Bertola S. C. 172. 418 at pp. 387. 229 Where there is a forum selection agreement. High C.). 76 at p. supra. 197 at pp. supra. van Heeren  1 N. 293.).  1 Lloyd's Rep. 550 and 552 (C.L.Z. (2003) 224 D. 155 (C. 230-231 (Aust. at pp.229 (4) In exercising its discretion the Court should take into account all the circumstances of the particular case. 236 Evans Marshall & Co. 721 (C.
of course. requiring the plaintiff to show “strong reasons” why the contractually agreed forum should not try the case. Co. 90 at p. MNI  2 Lloyd’s Rep. not grant jurisdiction to a claimant if the same question has already been heard in a foreign court. Where a nonexclusive jurisdiction clause permits suit in or out of England. ed. and even arguments as to multiple proceedings. This is not really a problem of jurisdiction or of forum non conveniens. 630. 119 at p. the latter of which cases concerned a non-exclusive jurisdiction clause. Metro v. 405 at p. 104. 243 In both res judicata (also termed estoppel by judgment) and chose jugée. gen. (Comm) 33 at p.240 and whether the clause was negotiated by the parties or was only a term in a standard-form contract. Zurich Ins.N. Communication Telesystems Ltd. Sweet & Maxwell. Furthermore.  1 Lloyd’s Rep. London. 410. 410-416. by taking suit there within one year of discharge of the cargo. CSAV  1 Lloyd’s Rep. 410. were found not to be strong enough reasons to overturn the non-exclusive English forum selection clause.  1 Lloyd’s Rep.). v.R. Metro v. and the importance of Chilean law (the law of the place of performance of the bill of lading contract under the Rome Convention 1980).  1 Lloyd’s Rep.. People’s Ins. v. 127.239 whether the jurisdiction clause is an exclusive or non-exclusive one. 670 at pp. 238 The El Amria  2 Lloyd's Rep. v. 368 at pp.C. 2000 at paras. 410.. 41 at p. 618 at p. 240 Mercury Plc. Ltd. an issue which was decided in the original proceedings will be considered as settled between the parties and will to show that they had acted reasonably in failing to take steps to protect time in the foreign (German) forum specified by the jurisdiction clause. 242 British Aerospace Plc v. Metro v. Co.241 It has also been held that the “strong reasons” for refusing enforcement to such a clause must “… ordinarily go beyond a mere matter of foreseeable convenience and extend either to some unforeseeable matter of convenience or enter into the interests of justice itself”. Ltd.  2 All E.) It has been held more recently in England that this basic approach. 405 at p. on the usual forum non conveniens principles applied in cases where there is no jurisdiction clause. 3(6) of the Hague and Hague/Visby Rules). 239 Akai Pty. The foreign judgment is recognized and further suit is refused because of res judicata in the common law or chose jugée in the civil law. 241 JPMSA v. religious or other reasons be unlikely to get a fair trial”238 (Nota Bene: There are no references or footnotes in Lord Brandon's original statement above. CSAV  1 Lloyd’s Rep. Ltd. but of recognition of a foreign judgment. Mobil Sales and Supply Corp. (M. whether or not the English proceedings will be stayed will be determined by the court in its discretion. CSAV  1 Lloyd’s Rep. Sinochem International Oil (London) Ltd. 376-377. the Court held that the defendants should not be denied the right to rely on the foreign time-bar (which also applied under art. . 405 at p. applies whether the contractual forum is England or another country. 45. 40. Q. See also Metro v. CSAV  1 Lloyd’s Rep. after consideration of all relevant circumstances. 3) the same object. 679-680.43 applicable in England. The stay was therefore granted. 2) the same subject matter. See generally Phipson on Evidence. Ace v. even when the cause of action in the subsequent proceedings differs from that in the original proceedings. where factors such as the greater availability of evidence in Chile. 38-23 to 38-64. racial. or (iv) for political. Howard.243 One of the effects of res judicata is that the unsuccessful party is estopped from challenging the correctness of the first judgment in subsequent proceedings. Dee Howard Co. 15 Ed. 405 at pp.  1 Lloyd’s Rep. there must be the three identities: 1) the same parties acting in the same qualities.242 4) Res judicata A court must. They have been added for the purposes of this commentary.
v.A.S. 2)  A.12.  1 Lloyd's Rep. 935 (H. and. Their Lordships were careful to note that not every jurisdiction clause.44 not be relitigated in the subsequent proceedings if it arises once again. 246 1971 U. 19.).S. 853 at p.L. it was held that in order to establish issue estoppel: 1) the judgment must be given by a foreign court of competent jurisdiction.L. Carl Zeiss Stiftung v. 247  1 Lloyd's Rep.). stay was ordered. 67 at p.Y. 2)  1 Lloyd's Rep.E. Carriage of Goods by Sea Act. 3(8) of the 1971 Act and of the Hague/Visby Rules.246 Transfer of the case to a Dutch court in accordance with the jurisdiction clause. 6) U. referring to Parklane Hosiery Co. 2) the judgment must be final and conclusive and on the merits. 1979 AMC 2152 (S. Hellenic Glory 471 F. was not affected by the provisions of the Rules.C. 1 (H. L. 25. – EC Council Regulation 44/2001 The application of the doctrine of forum non conveniens under the Brussels Convention 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters250 and the very similar Lugano Convention 1988251 is controversial. could have resulted in Dutch law being applied (because the clause also invoked Dutch law).). 1002. English law The choice of forum clause (jurisdiction clause) must not reduce the carrier's responsibilities under the applicable law.D.248 In The Benarty.245 the applicable law was the English version of the Hague/Visby Rules. it has been held that there need not be identity as to the parties for collateral or issue estoppel to apply: W. that article meant that an applicable foreign tonnage limitation statute.). such as the Indonesian Commercial Code.A.A. Supp.E. being the Carriage of Goods by Sea Act 1971.). The damaged cargo had been shipped from London and continental European ports. the Hague Rules 1924. 299/32. 244 (C.K. 574-575. 1 at pp. and 4) there must be identity of subject matter. . In The Morviken.C. 1979). 3) there must be identity of parties. In the U. This is termed “issue estoppel”. Supreme Court severely limited the doctrine of mutuality.C.J. however. Inc.S. where issue estoppel is often referred to as collateral estoppel. c. 1971. selecting as forum a court which does not apply the Hague/Visby Rules.. Therefore jurisdiction was retained by order of the Court of Appeal247 and the House of Lords. 565. particularly in cases where one of the The Sennar (No.  1 Lloyd's Rep. L. 325 (C. permitting transfer of the suit to Djakarta. 3(8).L. 245  1 A. 565 at pp.E. will necessarily be a violation of art. meaning that the issue decided by the foreign court must be the same as that arising in the English proceedings. 250 Hereinafter described as the Brussels Convention 1968 ( O.C.J. (No. 31. Rayner & Keeler Ltd. 6-7 (H. Shore 439 U. 322 (1979). 1988 (O.11.L. 248  1 A. 8 of the Hague/Visby Rules and of the 1971 Act used the words “any statute”. 527 (H. 521 at p. This would have meant a lower per package limitation and thus a violation of art.e.K.U. not package limitation. It was held that the transfer of jurisdiction did not offend art.244 5) Public policy.K. where the U.) (where the case is styled The Hollandia). N.C. 251 The Lugano Convention on Jurisdiction and Recognition of Judgments in Civil and Commercial Matters.J. i.). 3(8) of Visby or the U.1988) applies to civil jurisdiction and the recognition and enforcement of civil and commercial judgments as between the Member States of the European Union and those of the 244 . 319/9. 77 (C.. adopted at Lugano on September 16. since art. because the carrier was seeking to rely on tonnage limitation. 249  2 Lloyd's Rep.249 however. although the tonnage limitation under Indonesian law was much lower than under English law. In The Good Challenger  1 Lloyd’s Rep. Roberts v.1972).
S.K. Ph.A. 346 (C. 2002 at paras. 256 Denmark chose not to bound by the EC Regulation.-N. 16. ibid. Cellstar Corp. 206 (C.) (forum non conveniens applied to send dispute to Panama).. 622 and 626 (C. DMF 2001.  EWCA Civ. Jackson (t/a Villa Holidays Ball-Inn Villas)  EWCA Civ. "Forum Non Conveniens and the Brussels Convention"  L. as of March 1.2001. 227-228.E. 258 Supra.253 The same controversy persists254 now that the EC Regulation 44/2001255 on jurisdiction and recognition has replaced the Brussels Convention for all European Union countries except Denmark. This holding would seem relevant under EC Regulation 44/2001 as well.  All ER (D) 130 (Jun) (C. 253 See Briggs & Rees. 2000. v. of the Brussels Convention 1968. unreported.  1 Lloyd’s Rep. appeared to confirm this position.Q.  4 All ER 543 (C. Re Harrods continues to be relied upon by English judges in support of their continued discretionary power to grant forum non conveniens stays against defendants domiciled in Brussels258 and Lugano259 Convention States. para. 535 and Cheshire & North's Private International Law (P.. 2. Handelsveem BV of November 9. as well as Poland. 397 (C. first para. Iceland. 259 See Ace Ins. Sun Life Assurance Company of Canada (UK) Ltd. L 12/1. 260 See Travelers Casualty and Surety Company of Europe Ltd. Thus a U.  Ch 72. 217-223.J.).45 defendants is domiciled in a member-State of the E.). 2.).218 at pp.). or EFTA. court. 254 See the various arguments for and against the survival of a forum non conveniens discretion in the United Kingdom following the Brussels Convention 1968 and the EC Regulation 44/2001 in Briggs & Rees. as part of its conflicts of law rules.M.256 The European Court of Justice is expected to rule on the issue on more recent references by English courts. in Coreck Maritime GmbH v.R. under art. see O. 217.B. 2. The English Court of Appeal decided in Re Harrod's (Buenos Aires) Ltd. See Owusu v. Delebecque. 877.1. litigation). 1160.. Zurich Ins. (Case No.252 that it had jurisdiction to grant a stay of proceedings on forum non conveniens grounds in such cases and send disputes to clearly more appropriate courts in nonBrussels Convention States. 252 Harrods (Buenos Aires) Ltd. 257 The English Court of Appeal has requested the European Court of Justice to rule on this question of interpretation of the Brussels Convention.A.. Anton Durbeck GmbH v.e the jurisdiction having the most real and substantial connection with the case) is determined to be a non-Member-State. Re (No 2)  4 All ER 348. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. and in force in all Member States of the European Union except Denmark.260 in favour of courts outside such European Free Trade Association (EFTA) other than Liechtenstein (viz. 337 at p. v. Norway and Switzerland. which became a party to the Lugano Convention in 2000). 264-266.  All ER (D) 26 (Mar). See also Haji-Ioannou v. 2002. and yet the "natural forum" for the litigation (i.210 to 2. Frangos  2 Lloyd’s Rep. ibid.A. 255 EC Regulation No. 3 Ed.L. Civil Jurisdiction and Judgments.U. would appear to be free to apply its forum non conveniens analysis. as well as EC Regulation States. 13 Ed.V. For the text.U. The House of Lords subsequently referred the matter to the Court of Justice of the European Communities but the reference was withdrawn when the national litigation settled. See also Lawrence Collins. v.). Den Norske Bank ASA  Q.214 at pp. the validity of the clause must be assessed in accordance with the conflicts rules of the forum.C. without such action infringing the Brussels Convention. unreported.U.A.. Butterworths. 618 at pp.  3 W. 1999 at pp. London. para. Co.  All ER (D) 294 (Jul) (Q.A. and American Motor Ins.). and therefore is still governed by the Brussels Convention 1968 in its relations with the other Member States of the E. obs.: C-387/98)  ECR I-9337. The Court of Justice of the European Communities. 17.257 In the meantime. adopted by the Council of the European Union on December 22.  EWHC 1704.A. 2000. North & J. S. by holding that where a court in a Contracting State of that Convention is seized of a jurisdiction clause designating the court in a non-Contracting State. confronted with a bill of lading jurisdiction clause requiring disputes arising under the bill to be adjudicated by a court in a state outside the E. in respect of civil jurisdiction and the enforcement of judgments. eds..B.J.210 at p.A. See Briggs & Rees. ..) (giving effect to a service of suit clause providing for U. 187. Co.R. Fawcett.
U.264 7) Service out of jurisdiction . State must be either: a) in writing or evidenced in writing (including electronic form). of the Brussels Convention 1968. none of whom is domiciled in an E. SI 1998/3132. 17. for example.261 With respect to jurisdiction clauses calling for adjudication of disputes in an E. in other cases. As regards the jurisdiction clause's enforceability as against consignees and subsequent endorsees. 23 are met. art.U. Some of these decisions have applied forum non conveniens to enforce jurisdiction clauses requiring litigation of disputes in such non-Member States. 242. or c) in a form which accords with a usage in international trade or commerce of which the parties are. to comply with art.K. 262 See the discussion of the conditions of art. “CPR”. 237 at p. The Nile Rhapsody  2 Lloyd’s Rep.266 a) Where leave is not required-CPR Rule 6.20 To commence an action to recover for loss or damage to cargo in England. To effect service out of jurisdiction. and which bind parties one or more of whom are domiciled in an E. made December 10. 263  1 Lloyd's Rep. Art.262 In brief. which came into force on January 1. aware and which in such trade or commerce is widely known to. obs. 261 . giving effect to an Egyptian choice of law clause in a case where an English defendant was sued in England. the claimant in some cases must obtain leave of the High Court.U.K. where the conditions of art. and regularly observed by. 23 of EC Regulation 44/2001 applies and requires the courts of Regulation States to stay the proceedings in favour of the specified court. Delebecque. 382 (C. the courts of other Member States shall have no jurisdiction over their disputes unless the court or courts chosen have declined jurisdiction.’s Civil Procedure Rules 1998. first para. or ought to have been. 23(3) also provides that where a jurisdiction agreement is concluded by parties. Handelsveem BV would be applicable. State. 2000 (Case No. the jurisdiction clause designating the forum of another E. 1998 and in force April 26. 266 Service of process out of the jurisdiction is governed by the Civil Procedure Rules 1998. 23(1) and (2)). or b) in a form which accords with practices which the parties have established between themselves. 399. Member State. first para.The 1982 Act and CPR rules 6. 387-98). Art. the Civil Procedure Rules 1998 are referred to under their common abbreviation. 265 “Claim form” is the new term for “writ” under the U.19(1) See.  ECR I-9337. The principles set out in The Eleftheria263 would therefore be applied by a U. In this article. 23. Ph. supra. 2001 DMF 187. 264 November 9.19 and 6. in so far as those principles indicate whether the clause in question accords with international trade or commerce. 1999. 23 is almost identical in wording to the most recent text of art 17.U. the test provided by the European Court of Justice in Coreck Maritime GmbH v. court in determining the validity of a jurisdiction clause in a bill of lading. State. parties to contracts of the type concerned (art. of the Brussels Convention 1968 at section VI.A. 23 of EC Regulation 44/2001 and the most recent text of art. replacing the former Order 11 of the Rules of the Supreme Court 1965. 1987.46 States.).  1 Lloyd’s Rep. the claimant will serve a claim form265 on the carrier who at times is out of the jurisdiction. such leave is not necessary.
K. the claimant. 276 CPR rule 6.47 A cargo claimant can serve a claim form upon the carrier who is outside the jurisdiction without having to obtain leave if the defendant carrier is “domiciled” in the United Kingdom or in any “Convention territory”267 or in any “Regulation State”.19(1)(a). In relation to a “Regulation State”. 270 EC Regulation 44/2001 of December 22. rule 6. sects. reflecting the EC Regulation 44/2001 and paras. 16. if the jurisdiction clause in the bill of lading designates the court of an E.18(d) in defining “Convention territory”.268 The term “Convention territory” encompasses the territory or territories of any Contracting State to which the Brussels or Lugano Conventions apply. 275 CPR rule 6. refers to sect.273 Nor does a cargo claimant have to obtain leave if the defendant carrier is a party to an agreement conferring jurisdiction on a court of a state to which art.19(1)(b)(iii). 1(1) of the Civil Jurisdiction and Judgments Act 1982. . a particular part of it or a particular place within it. c.277 The court where the action is first commenced is. 277 CPR rule 6.269 while the term “Regulation State” means a Member State as defined in EC Regulation 44/2001. 9 to 12 of Schedule 1 of this Order define the conditions under which a person is “domiciled” in the U.1.. 274 CPR rule 6. therefore.K.K.E. art. 272 CPR rule 6. b) Where the court's leave is required – CPR. without obtaining the court's leave.K. provided that either the claimant or the carrier is domiciled in such a state.2000.18(g)(i) and U. 1982.18(k). U. in relation to a Convention territory. 27. c. can serve a claim form upon the carrier. applicable to all proceedings instituted on or after March 1.. L. in commencing his action there. has a wide meaning in the light of sects.20 If the defendant carrier is not domiciled in any “Convention territory” or “Regulation State” or is not party to a jurisdiction agreement under art. however. 1(3). a Member State of the EU. Service out of jurisdiction without leave is only permissible if no other proceedings between the cargo claimant and the carrier in respect of the same cause of action are pending in the courts of any other part of the U. 23 of the EC Regulation 44/2001. 23 267 268 CPR rule 6.19(1A)(b)(iii). 273 SI 2001/3929. 2000.C. 17 of the Brussels or Lugano Conventions applies. 1982. who is out of that court's jurisdiction.J. 269 CPR rule 6. 9 to 12 of Schedule 1 to the Civil Jurisdiction and Judgments Order 2001. 271 CPR rule 6. the only court that has jurisdiction. Paras. 41-46.275 In other words.. domicile has a similarly broad meaning.e. 27. 41-46 of the Civi1 Jurisdiction and Judgments Act 1982272 and clearly a defendant carrier can be domiciled in many jurisdictions concurrently.19(1A)(b)(i). or an EFTA state. or any other Convention territory 276 or any other Regulation State.19(1)(b)(i). 2002. 17 of the Brussels or Lugano Conventions or art. There is an important proviso.19(1A)(a). O. other than Denmark271. 12/1.U.270 i.274 or on a court contemplated by art. The term “domiciled”. CPR rule 6.
286 Ibid. The claimant must also show that 2) the grounds on which the application for service out is made and the paragraph(s) of CPR.). Claims to enforce a judgment or arbitral award may also authorize service out (CPR rule 6. at p. 1991.48 of EC Regulation 44/2001.20(6). rule 6. rule 6. Civil Jurisdiction and Judgments. U.286 When leave is sought to serve out of the jurisdiction.K. For example. 1 (H.20(5)(a) to (d). 21 (CPR rule 6. 325. service out may also be authorized where a claim is made for a remedy against a defendant domiciled in the jurisdiction (CPR rule 6. 25(1) of the Civil Jurisdiction and Judgments Act 1982.20(9)).20(2)). Civil Jurisdiction and Judgments.20(8)..K. if the cargo claimant is domiciled in Canada and the carrier is domiciled in Japan and there is a jurisdiction clause in the bill of lading designating London. the claimant must obtain the leave of the High Court to serve the defendant outside of the jurisdiction.. on the other hand.).20(4)). para.20 justifying the grant of leave to serve the claim form out of the jurisdiction. U.279 Service out may also be authorized where the claim is that a contract was breached within the jurisdiction280 or for a declaration that no contract exists. 281 CPR rule 6. where these authors state that CPR. 2002. and 14 (H. 3 Ed. 279 CPR rule 6. 5. or for an injunction ordering the defendant to do or to refrain from doing an act within the jurisdiction (CPR rule 6.L.K. at p. a claim form may be served out of the jurisdiction with permission of the court if the contract was made within the jurisdiction.e.278 There are various grounds listed in CPR rule 6. c. in contractual matters. 154 or 175 of the Merchant Shipping Act 1995.20(10)). 13. 153. provided that service out would be justified if one did exist.33 at p. 1 at pp.284 In the light of The Spiliada. 280 CPR rule 6.20 relied on in this regard (CPR.20(7). 282 CPR rule 6.21(1)(b)).288 For example.283 There are various other types of claim which authorize service out with the court's leave as well. 285  1 Lloyd's Rep.. 3 Ed. 363.21(2A)).21(2A) 278 . 1982.21(1)(a)) and that 3) he “… believes that his claim has a reasonable prospect of success” (CPR. or b) to enforce a claim under sects. not subject to the jurisdiction of the High Court) (CPR rule 6. c.287 When the court is asked to stay an action on the ground of forum non conveniens. rule 6. or for an interim remedy under sect. the burden of proof is on the plaintiff to show that the forum is the most appropriate.20(5)(d). it is the defendant in the action on the merits who has the burden of showing that there is a clearly and distinctly more appropriate foreign jurisdiction that is the "natural forum" for the adjudication of the claim.54 at p. See also Briggs & Rees. 324. 283 CPR rule 6. Permission to serve out is also required for Admiralty claims a) in the nature of salvage where any part of the services took place within the jurisdiction.20(1)). 287 The claimant must show that 1) England and Wales constitutes “the proper place in which to bring the claim” (CPR.20(17A)). 2002. 284 For example.L. 288 The Spiliada  1 Lloyd’s Rep.281 Service out may also be granted on a claim in tort where damage was sustained within the jurisdiction282 or where the damage sustained resulted from an act committed within the jurisdiction. or was made by or through an agent trading or residing within the jurisdiction or is governed by English law or contains a term to the effect that the court shall have jurisdiction to determine any claim in respect of the contract (i. 27 (interim relief in proceedings falling within the scope of the Regulation that are commenced or about to be commenced in another Convention State or Regulation State or in a part of the U. See also Briggs & Rees.20(9). rule 6.285 the criteria upon which the court will decide whether leave to serve out of jurisdiction should be granted are the same as those governing motions of forum non conveniens. as well claims relating to property in the jurisdiction (CPR rule 6. rule 6. See also ibid. the claimant who seeks to serve a claim form upon the Japanese carrier who is outside of English jurisdiction will have to obtain the High Court's leave under CPR rule 6. 4. an exclusive jurisdiction clause). para.
S.3(5) specifies that the claim form must be served: (a) in accordance with the practice direction. See N. Maritime Electric (1985) 60 N..293 It also recognizes forum non conveniens under national law.07 at pp..” 289 See Briggs & Rees. U. 46. 294 Art. The Arrest Convention 1999. Maritime Liens & Claims. 26 of the Civil Jurisdiction and judgments Act. c. Such a conclusion is. and in force February 24. at pp. 7(3) permits the vessel to be arrested in one jurisdiction and held as security there. 50(l) that: is intended to reproduce the substance of the previous case law.C.290 at art. 7(1) of the Arrest Convention 1999 empowers the court of a State where an arrest has been effected or security has been provided to release the ship to determine the case on its merits.291 Similarly art. CPR. 5077-508.05-8. 2002. U. the courts of the State in which the ship has been arrested or security has been provided for its release. and cf. rule 61. 2(3). normally be wrong to allow a plaintiff to keep the benefit obtained by commencing proceedings here. See The Spiliada  1 Lloyd's Rep. 7(2). and (b) within 12 months after the date of issue. 1033-1036. Where the arresting court lacks jurisdiction under art. consistent with the manner in which the process of saisie conservatoire is applied in civil law countries. 24 of the 1968 Convention. 290 Convention Relating to the Arrest of Sea-going Ships. 1985. sect. paras. 1956. 7(2) of the Arrest Convention 1999 provides that notwithstanding art. c. c.” See also Chap. C. The Arrest Convention. That Convention also requires respect for jurisdiction and arbitration agreements by the arresting court. while at the same time granting a stay of proceedings in this country to enable the action to proceed in the appropriate forum. 1981. may refuse to exercise that jurisdiction where that refusal is permitted by the law of that State and a court of another State accepts jurisdiction. c. 2.. Brussels. 7(1) on the merits or has refused to exercise it under art. even though a jurisdiction clause has designated a court in another jurisdiction to decide the action on the merits. which replaced the former Administration of Justice Act. where Lord Goff stated “.R. 1998. May 10. 1982. or to arbitration. See also art. adopted at Geneva. 292 International Convention on the Arrest of Ships. 7(3)). 7(1).the principle The Federal Court Act295 of Canada stipulates at sect. Electric Power Commission v. 8. 15 (H. 1982. I understand. envisages that a vessel may be arrested on a cargo claim in one jurisdiction and retained as security pending the outcome of the cargo claimant's action on the merits heard in another jurisdiction. 7(2). and that the old cases … “will continue to be authoritative on what is required to demonstrate that England is the proper place in which to bring the claim.289 Nor is it necessary to do so. March 12. found as Schedule I to the Civil Jurisdiction and Judgments Act. 26 of the Civil Jurisdiction and Judgments Act 1982. 1999. Civil Jurisdiction and Judgments.K.A. 295 R. shall) order a period of time within which the claimant must bring proceedings before a competent court or arbitral tribunal (art.49 8) No service of a claim form in rem out of jurisdiction An in rem claim form cannot be served upon a vessel which is out of the jurisdiction. but not in force.K. 1 at p.). contains a similar provision. 7.B.294 XI.L. . 1956. 54.Forum Non Conveniens Introduction . 1) Canada . 293 Art. See Tetley.292 at art. now happily in force.. 28. 203 (Fed. “Arbitration Clauses”.). 27. 3 Ed. it may (or at the request of a party. 4 & 5 Eliz. This international convention has been almost completely implemented in the United Kingdom by the Supreme Court Act 1981. it would not. I think. 2 Ed. 291 See sect. except where the parties validly agree or have agreed to submit the dispute to a court of another State that accepts jurisdiction. 1982. 1952.
300 definitively opted for the English view of forum non conveniens. stay proceedings in any cause or matter.298 In 1993.C..50 “The Court may. Sopinka J. Ct).303  2 S. in its discretion. 921.). 269. Rockware Glass Ltd. 897.R. 300 at p. whereas in seeking a forum non conveniens stay. 5 at p.299 as well as its own precedent in Antares.297 relying on the two criteria (positive and negative) laid down by the House of Lords in MacShannon v. The same test was to be used to determine the “clearly more appropriate forum” in motions for stays of proceedings on forum non conveniens grounds where the defendant was served “as of right” within the jurisdiction as in motions for leave to serve proceedings out of the jurisdiction (where provincial law still required such leave).C. J.R. British Columbia (Workers’ Compensation Board). Supr. (1982) 27 C. The Nosira Lin. The Court stated that its discretion to refuse to make such a direction depended on whether there was: “some other forum more convenient and appropriate for the pursuit of the action and for securing the ends of justice.C.296 a case involving an application for leave to serve ex juris. 1 (H. Ritchie. Suncor Inc. 299  1 Lloyd’s Rep. 422 at p. (1984) 52 N. v.” See also Kuhr v. 301  1 S.P. C. 303 (Fed. v.L. Referring to forum non conveniens. declared:302 “…I agree with the English authorities that the existence of a more appropriate forum must be clearly established to displace the forum selected by the plaintiff. 917 and 921.. v. 296 . BP Can.L. the undesirability of trespassing on the jurisdiction of a foreign state.C. v. 442.A.” The clearly more appropriate jurisdiction (the “natural forum”) was declared to be the jurisdiction having the most real and substantial connection to the parties and the circumstances of the case. Supr. 795 at p. … (b) where for any other reason it is in the interest of justice that the proceedings be stayed. The Ship Capricorn. at p. the Supreme Court of Canada considered the doctrine of forum non conveniens in determining whether the Court should direct for service ex juris. and they include the balance of convenience to all the parties concerned.). The Ship Friedrich Busse (1982) 134 D. (3d) 261 at p. Ct). 297  1 F. 303 Ibid.301 Concluding his analysis.” In Antares Shipping v.C. 812 (H. 298  A. Plibrico (Canada) Ltd. at pp.” Canadian courts followed the English courts on the question of forum non conveniens in decisions such as Yasuda Fire & Marine Insurance Co. Westmin Resources (1983) 32 C. stated that: “The factors affecting the application of this doctrine have been differently described in various cases . including the plaintiff.R. the defendant had the onus of proof. however. 300  2 S. The burden of proving the clearly more appropriate forum fell on the plaintiff in service ex juris motions.P. citing various authorities. the impropriety and inconvenience of trying a case in one country when the cause of action arose in another where the laws are different.C. C. 448. 895.L. in Amchem Products Inc. Holdings Ltd.). the Supreme Court of Canada. 304 (Ont. and the cost of assembling foreign witnesses. 8 (Ont.R. including the House of Lords The Spiliada.R. 302 Ibid.
242.C. and rejected the “tripartite test” applicable to motions for interlocutory injunctions. Great Tempo S. Itochu Canada v. of Can.A. (1999) 176 F.R. Abta Shipping Co.Z.A. See also Trans Continental Textile Recycling v. 2) whether the party seeking the interlocutory injunction (or stay) would suffer irreparable harm unless the injunction (or stay) were granted.R. C.  3 F. Can.). unless arrived at on wrong basis or plainly wrong). v. however. 234 (Fed. 1287-1293.Z.T. The Fu Nin Hai (1999) 173 F. P. for example.C. A.L. 1867 (Fed. The Regal Scout  2 F.C. Nissho Iwai Co.C. 287 (decisions of motions judges on applications for stays of proceedings based on foreign jurisdiction clauses should be upheld. C. Can.A. 404. v. C. Can.L. 538 (Aukst.) (cargo claim). C. Napa v. 105.310 See. 495 (Fed. Anraj Fish Products Industries Ltd.L.  3 F. leave to appeal to Supreme Court of Canada denied  S. 250 (Fed.Z. 2003 AMC 1280 at pp. Hyundai Merchant Marine Co. the landmark New Zealand decisions in McConnell Dowell Constructors Ltd. 203 (Fed.C. v. 304 .T.T.).. the authoritative summary of principles by Brandon J. Can-Am Produce and Trading Ltd. High C.V. The Hoegh Merchant  1 F. of Canada Ltd. C.). Great Tempo S. The Senator (1996) 112 F. C. including maritime case law. C. 851 at p. 856 (Fed. (1996) 106 F. Other Commonwealth countries have similarly adopted the forum non conveniens principle.). ECU-Line N. The Hoegh Merchant  1 F. Shanghai Ocean Shipping Co. 278 (Fed.C.C. C. 418 at p. See also Bomar Navigation Ltée v.R. and 3) which party would suffer the greater harm as a result of the granting or refusing the interlocutory injunction (or stay).C.A. 310 The Agelos Raphael  1 Lloyd's Rep. (1998) 225 N. (1998) 173 F. 140 at p.). See.309 c) A strong reason for not honouring a foreign jurisdiction clause may be that all the facts are in Canada. C.A.). 237 at p.306 and was reaffirmed by the Supreme Court of Canada in 2003 in Z. The Hansa Bay  F. ibid. C.) and Club Mediterranee NZ v. as fully articulated in England in The Spiliada. 305  1 Lloyd's Rep. C. 309 Burrard-Yarrows Corporation v. which the Federal Court of Appeal had found applicable to stay applications as well.R.R.  ETL 39 (Fed.51 The clearly more appropriate test continues to apply to forum non conveniens decisions in Canadian case law today.the criteria .).R. The Erato  1 F. 257 (N. in The Eleftheria305 has been relied on in quite consistently over the years. per Morneau. per Hargrave.).).T. Pompey v. Can. Australia. 450 at pp.586-592. 144. v. C.R.C.R.L.308 b) Discretion is with the trial judge and his decision should not be reversed “unless it was arrived at on a wrong basis or was plainly wrong”. P.).R.A. 255 (Fed.A.). C. This tripartite test involves a judicial determination as to: 1) whether there is a serious issue to be tried. The Supreme Court reaffirmed the test in The Eleftheria as the appropriate test for adjudging stay of proceedings motions in contractual cases involving jurisdiction clauses. 427. (2003) 224 D. v. 221 (Fed. Manildra Flour Mills (1990) 171 C. 216 (N. Wendell  1 N. 314 (Fed. 308 Z. Can.) (personal injury and death). Can.T.). (4th) 577 at pp. v. Pompey v. 418 at pp. v.R. 307  1 S. 306 Burrard-Yarrows Corp. 54 (Fed. Jian Sheng Co. See also Agro Co. C.307 a) There must be “strong reasons” for not honouring a jurisdiction clause calling for jurisdiction before a foreign court.) (stay denied because defendant had attorned to Canadian jurisdiction by filing a defence to the suit and had waited too long before challenging Canadian jurisdiction).T. focusing not on whether there is a more clearly appropriate forum elsewhere. 1998 AMC 1864 at p. applies forum non conveniens slightly differently. for example. Can.I. (2001) 185 F.Canada With respect to the enforcement of jurisdiction clauses.C. 231 at p.R.304 2) Jurisdiction clauses . v. Can. 461-469. C.V.Z. Can. 427-428 (Fed.I. but rather on whether the Australian forum is clearly inappropriate. Lloyd's Syndicate  2 N.R. See also Jian Sheng Co. ECU-Line N. See Voth v. 248 at p.
(1983) 148 D.313 Sect.C.g. The Regal Scout  2 F.R. 2001. member state): Cour de Cassation. Affrètements & Transports. Pompey v. Z.I.c. (2003) 224 D.52 d) A jurisdiction clause should not be honoured if the law of the court designated by the clause would permit the carrier to avoid its responsibility under the Hague Rules. however. 3(8) of those Rules. Pompey v. v.311 e) Courts deciding on the enforceability of jurisdiction clauses should avoid considering substantive issues (e. 520. March 10. 2001.C. 316 A few civil law jurisdictions. 469-472. ECU-Line N. (2003) 224 D. May 14. art. November 25. Cour de Cassation. (4th) 577 at pp. Jurisdiction Clauses Restricted by National Law”.. see Rodière. DMF 1985.V. 1293-1295. art. contrary to art.g. 1985.U. See Louisiana Code of Civil Procedure. 592-594. 14 of the French Civil Code. Agro Co. February 15. 1984. 313 S. 42-48 of the New Code of Civil Procedure (NCP). of Can. C. 851.L. April 18. DMF 1985. 718.  1 S. a French insurer) has been subrogated: Tribunal de Commerce de Paris. Québec Civil Code 1994. 123 c. Nicolas. In Germany. 104 with note by P. 1987. notably Louisiana and Québec. Traité.312 f) Jurisdiction clauses calling for suit or arbitration outside Canada may be rendered ineffective where the cargo claimant is able to benefit from the option of litigating or arbitrating in Canada under sect.C. December 7. 314 R. 668 at p. DMF 1985. 1981. 1295. 713.p.R. 113.I. 317 The rules governing which court has territorial competence are found in arts.-Y. leaving such questions to be decided by the contractually selected foreign forum. fundamental breach of the contract of carriage). Cour d’Appel de Paris. ECU-Line N. 341.C. mise à jour 1978.g.q. DMF 1984.R. in section V. 1986. 1983. c. Whether a particular forum is convenient or not is only a factor that may enter into the court's consideration as to whether to give effect to a jurisdiction clause. Rather. constitutional provisions prevent German courts from refusing to exercise their statutory jurisdiction.R. DMF 1987. DMF 1986. 3135 c. so that suit may be taken in a more convenient forum. 594. 1) France Introduction France and the civil law generally316 does not recognize the principle of forum non conveniens. the French courts will have jurisdiction by virtue of art. These rules apply even when one of the parties is not domiciled in France (except if the court designated in a jurisdiction clause is that of an European Union member state and at least one of the parties is domiciled in an E. See discussion of this statute supra. 706.L. 46 of the Marine Liability Act. 1984.).c. (4th) 577 at p.315 XII. 450 at p.C. October 31. 6.R. affirming Cour d’Appel d’Aix. 46 in effect restricts the discretionary power of the Federal Court of Canada under sect. See also Tribunal de Commerce de Paris.S. c. 450 at pp. 1984. para. 315 See the comments of the Supreme Court of Canada on this point in Z. the right to request that an action already before a court with jurisdiction over the subject matter be stayed.L. 312 311 . i.e. have incorporated forum non conveniens into their legislation. 2003 AMC 1280 at p. (3d) 412 (Fed. irrespective of the nationality of the person (e. a foreign insured) in whose rights the plaintiff (e. It should also be noted that when the plaintiff in an action is of French nationality. DMF 1982. F-7.317 An action is not stayed or suspended so that suit may be taken in a more convenient court. of Canada Ltd. in force August 8.  1 S. 2003 AMC1280 at pp. the French court either has or has not compétence (jurisdiction). 672. 50 of the Federal Court Act314 to enforce foreign jurisdiction and arbitration clauses in bills of lading. 472.V.
Procedure 3. 1966320 contains no prohibition in respect to jurisdiction clauses. Presses universitaires d’Aix-Marseille. 162 at p. however. jurisdiction ratione loci) were formerly considered to be merely of private interest and thus derogation from these rules was generally permissible.318 In carriage of goods by sea cases. See Fraikin et Boquet. 42-48 NCPC: Cour d’Appel de Bordeaux. art. where the impact of the changes in the New Code of Civil Procedure is discussed.4. 496. 235. 66-1078 of December 31.322 art. 10 of the former Law of April 2. DMF 1952. January 13. Les clauses attributives de compétence dans le transport maritime de marchandises. 3) French domestic law . 1936 prohibited jurisdiction clauses ousting the jurisdiction of French courts in cases of carriage between French ports in a French vessel (navigation réservée). DMF 1952. 1966. See Cour d’Appel de Rouen. «Les clauses des connaissements attribuant compétence à un tribunal étranger sont-elles encore valables?» DMF 1980. February 8. September 30. DMF 1982. See generally Bertrand de la Grassière. 515. 320 Law No.O. 189. 515. 483. 1936). September 25. 66-420 of June 18. See arts. 1966 sur les contrats d'affrètement et de transport maritimes. 323 Formerly. 54 is in fact merely a supplementary provision to arts. 1937.319 The domestic Law of June 18. 1975.325 (NCPC) which also establishes an important exception: i. 1980. February 27. Fraikin et Boquet. 318 . 1979.e. (J.K. 54 of the Decree of December 31. DMF 1983. in which case the court will declare itself (“incompétent”) (without jurisdiction). 165. the territorial jurisdiction rules were considered to be of private interest and thus derogations therefrom were permitted: Juris-Classeur. 1974. 2) Prohibition under law The rules governing territorial competence (i. Cour d’Appel de Rouen.. (J.S. DMF 1980. DMF 1980. 119.4. 1966. 1967. 75-1123 of December 5. 1966.324 This general rule is enshrined in art. June 24. Nor does art.53 A jurisdiction clause validly agreed upon by two “commerçants” (merchants) will be recognized by a court which has jurisdiction to hear the case. 1967. 2002. p.65. sur les contrats d’affrètement et de transport maritimes (J.O. 360.S. 48 of the New Code of Civil Procedure.O. D. 319 Loi relative aux transports des marchandises par mer. 75-99 NCPC: Les exceptions d’incompétence. 54 merely refers to the normal procedural rules that govern the validity of jurisdiction clauses. See Bertrand de la Grassière. 397. Tribunal de Commerce de Paris. D. «Les clauses des connaissements attribuant compétence à un tribunal étranger sont-elles encore valables?». 1966 restrict jurisdiction clauses. D.4. «La clause attributive de compétence à un tribunal étranger». p. 325 Established by Decree No. 322 Tribunal de Commerce de Nantes. para. 1983. January 11. Amoussou. DMF 1974. 324 A party made to appear before the court chosen in the jurisdiction clause could raise a declinatory exception and request that the dispute be brought before the court designated by law. April 11. Art.323 the general rule is that choice of forum clauses are to be treated as unwritten and therefore with no effect. DMF 1981. 1981.jurisdiction clauses Under present French civil procedure.321 In addition to stating that actions may be brought before the court of the French port of loading or discharge. La clause attributive de compétence à un tribunal étranger. A.1.e.295. 206. fascicule 211. 321 Decree No. 119.
DMF 1983. where the rule is different when the 1968 Brussels Convention applies. 609. February 8. 1986. DMF 1983. 66-1078 was amended by Decree No. November 14. See Cour d’Appel de Paris. where the foreign court was not determinable and the clause was therefore unenforceable. 1982. 1981. March 19. Cour de Cassation. it must at least be identifiable. D. 1986. 326 . January 16. regardless of the presence of a jurisdiction clause: see art. 1983. November 30. Cour de Cassation. DMF 1983. November 8. II. DMF 1998. Cour de Cassation. NCPC. 330 Cour d’Appel d’Aix. 1982. 730. 489. Bull. 1928. 143 with note by R. no. Achard appended to Cour de Cassation. Cour de Cassation. When there are several defendants and the action is indivisible. 1982. Rémery. 1980. 1978. 1998. 1. 1982. 11. obs. art. DMF 1986. May 30. February 4. May 3. rep. Achard.332 Thus a clause designating the court of the port from which the ship is operated333 or referring to the “principal place of business of the carrier”334is insufficiently precise A third party. Thus a clause printed in ultra-fine letters below the line where the party was to sign. 1980. 37. no. 33. S. January 14. second para. December 1. 492. IV. 334 Tribunal de Commerce du Havre. May 9. Pal. Achard. no. pr. report J. as well as in Cour d’Appel de Rouen. DMF 1979.329 A party was held to have tacitly consented to the clause only if the court was convinced that the clause was brought to the party's attention at the moment of the formation of the contract.331 The forum chosen in the clause must be clearly designated. 77 328 Cour d’Appel de Rouen. Cour de Cassation. Cour d’Appel de Paris. 37 of Decree No. 720. was not deemed consented to. May 24. 661078 of December 31. 415. Bull. DMF 1983. 128. Cour de Cassation. DMF 1983. pan. 507. who is impleaded into the action. Cour d’Appel de Paris. int. DMF 1980. Cour de Cassation. June 27. 1979. 162. 1983. DMF 1985. Cour d’Appel de Paris. February 28. 1. however. which merely designated the courts of the country where the carrier had his principal business. 1982. 1982. 518. December 17. Tassel. 1980. 546.S. must proceed before the court which is seized of the principal action. Delebecque. DMF 1991. Cour d’Appel de Bordeaux. if it is not identified. See also Cour d’Appel de Paris. See. 1996. DMF 1997. trim. with note by Normand. 1979. March 20. 270. jur. June 26. 678 with an excellent commentary by P.-Y. February 20. DMF 1981. Rev. however. DMF 1979. 329 Art. See comment by R. even if acting in a commercial capacity. 1986. Ph. Cour d’Appel d’Aix. Bulletin des transports 1987.1. the plaintiff can pursue the action in the jurisdiction of any one of the defendants. 1985. Until 1987. March 11. DMF 1982. 98. 37 of Decree No. 1984. 1971. somm. 1987 so that the shipper is no longer obliged to sign the bill of lading under French law. May 24. however. 431 with note by R. 1971. 325. Cour d’Appel de Rouen. without that clause being pointed out. 332 Cour de Cassation. March 3. dr. be consented to apart from the other clauses in the bill of lading: Cour de Cassation. 1972. cr. 489. DMF 1981. See. Gaudemet-Talon. 1983. 1984. 333 Cour de Cassation. February 25. 531. 1981. Y. 537. 1974. DMF 1987. July 20. In Cour d’Appel de Rouen.330 nor was a clause written in a foreign language that the party did not understand.328 until the requirement for the shipper to sign bills of lading was repealed in 1987. March 3. Cour de Cassation. 85. 802.S. inf. February 13. 262. with note by Ghestin. 1980. 282. no. DMF 1981. February 27. November 14. obs. 1927.326 The clause must be clearly apparent so that the parties can be found to have given their informed and unequivocal consent to it. 327 Cour de Cassation. 29 with note by R. 42. July 12. D. 1979. 1998 (The Lode Bay). and cannot decline the jurisdiction of that court even by invoking a jurisdiction clause: art. Achard. Achard. Gaz. Rev. note R. Bull. Nicolas. civ. p. DMF 1974. 1981.64. 333 NCPC. Bull 1980. dr. 331 Cour de Cassation. The jurisdiction clause need not. 726.327 Consent to such a clause in a bill of lading was formerly established under French law by the shipper’s signature on the bill.54 where the jurisdiction clause has been agreed to by parties acting in a commercial capacity and has been clearly specified in the agreement. See also Cour d’Appel de Rouen. 725 at p. 78. 274. DMF 1983. Cour d'Appel de Paris. October 1. the Court should have refused to give effect to the clauses concerned. 118. 1979. 1979. note H.-P. 1966 required the shipper to sign the bill within 24 hours of the loading. 1980. 1991. 87-922 of November 12. DMF 1983. Cour d’Appel de Paris. DMF 1998.
para. In Belgium. 29 of Law No. 2003 (The MSC Dymphna). dr. Thus merely referring to a jurisdiction clause appearing in another document would not be sufficient. Notably. March 335 . Sometimes the jurisdiction clause is not found in the document itself. See Hof van Beroep te Antwerpen. para. 340 Art. 1984. January 14. fascicule 212-1. 5. where the Court notes that the bill of lading is the typical case of a contract of adhesion. June 17. 1993. would be contrary to public order. holding that the acceptance of a jurisdiction clause could not be inferred from the existence of prior commercial relations between the parties. Juris-Classeur Procédure 3.337 Of course when the whole agreement is challenged. Normand. Cour d’Appel de Paris.  ETL 496. in the case of international carriage. Cour d’Appel de Paris. DMF 1982. But see also Cour de Cassation. 1994. 602. 100.338 But art. See also Cour d’Appel de Rouen. would seem to invalidate jurisdiction clauses which do not appear in the bill of lading issued to the shipper. January 20. civ. 337 Juris-Classeur Procédure 3. 416. which must be performed in good faith. 1980. DMF 1994. if the clause designates the court of the carrier's domicile. 548. the shipper might find his rights severely jeopardized by the court applying a particular limitation of liability regime or giving effect to certain clauses in the bill that would not be valid in France. Cour d’Appel de Rouen. the courts had at one time given effect to foreign jurisdiction clauses. DMF 1980. March 2. fascicule 212-1. DMF 187. If the jurisdiction clause designates a foreign court which is likely to apply its own law. 1983. 612.55 since that port could change from voyage to voyage. fascicule 212-1. 1966 or. Belgium takes a similar position. Rev. but only on the condition that the designated foreign court apply the Belgian equivalent of the Hague Rules: Hof van Beroep te Brussel. 48. 236. as where there has been a fundamental breach of the contract. Where the document clearly referred to another document containing the clause and the consent of the parties clearly extended to the clauses in the long form document. 66-420 of June 18. 1966 (governing domestic carriage) makes that law of public order. fascicule 211. be less stringent in its evaluation of the clause if the shipper and other cargo interests are professionals or have had previous dealings with the carrier. 339 Cour d’Appel de Paris. just as art. however. because the carrier drew up the clauses in the bill of lading. the contra proferentem rule will apply if such designation disadvantages the shipper. April 23. Nor is a clause designating a court which one of the parties has the option to eventually name. trim. para. March 7.339 After establishing whether the shipper had given an informed consent to the jurisdiction clause at the time of his signing of the bill of lading. but not always. 1979. 3(8) of the Hague/Visby Rules makes those rules of public order. that since such a clause derogates from the normal rules of civil procedure. by requiring that the clause “be specified very clearly in the agreement” itself. 336 Cour de Cassation. fascicule 212-1.341 See Juris-Classeur Procédure 3. February. the clause will be interpreted restrictively by the courts. the French court must consider whether giving effect to the clause would violate French public order. 338 Juris-Classeur Procédure 3. para. 546. June 22. the Hague/Visby Rules. DMF 1982. Bulltein des transports 1994. Any restriction of the shipper's rights beyond what is permitted by the Law of June 18. para. 93. the courts have in some cases given effect to the jurisdiction clause. the jurisdiction clause's effectiveness will be jeopardized. 1982. 710.336 It must be remembered. 341 Belgium takes a similar position. 1986. DMF 1985.335 The court will sometimes. 95. See Tribunal de Commerce de Paris. DMF 1983. March 1. 23. the French court should refuse to give effect to the jurisdiction clause.340 In such circumstances. as in the case of a short form bill of lading. 198 1. 550. 87. 203.
June 10.  ETL 704. Switzerland or Poland. Nicolas. supplants art. The draftsmen of the old art. Norway. Rapport sur les travaux de la 2ème Commission.e. even if there is an international element to the contract: e. 214. DMF 1986. jurisdiction clauses in contracts between parties both of whom are domiciled in France continue to be governed by art. which. DMF 1983. 622. 1982.347 In The Tilly Russ.56 4) France and EC Regulation 44/2001 Until the coming into force on March 1. 117. see also Cour d’Appel de Paris. July 12. Hof van Beroep te Brussel. signed at Brussels. 1982. DMF 1983. where the bill of lading was signed outside of France.e.344 Today. where one or more of the parties is a domiciliary of any other E. 98. 1974. art. 713. actions taken before the court of one European Union Member State by or against a corporation or individual domiciled in another Member State. L. May 15. DMF 1986. and its 1971 Protocol of Interpretation continue to apply between Denmark and the Member States bound by the Regulation (i. p. para.S. DMF 1982. 1985. not by art. 1977.96.J. See Cour de Cassation. 723. September 27. aff'd Cour de Cassation.U. supra. 22. August 29. 520.346 On the other hand. 550. 98. 1984. 17: 18. 515 at p. See also Cour d’Appel de Rouen. par Frédéricq. 557. Belgian courts did not consider such a condition to be sufficient. even though the clause in question arose in respect of an action in warranty and the principal action was being taken in another jurisdiction. 346 See EC Regulation 44/2001.342 French courts were bound by the Brussels Convention 1968343 on the same subject. DMF 1985. May 25. because the foreign courts might not interpret the Belgian version of the Hague Rules in the same manner that a Belgian court would: Hof van Beroep te Antwerpen. DMF 1983. signed at Luxembourg. March 10. with note by P. however. 48 NCPC where the clause specifies a court in another E. 1968. July 12. 1979. 16. October 31. Actes de la 8ème session. 1979.g. Member State. as the Regulation now does. 347 Conférence de droit international privé de la Haye. as amended by various Accession Conventions. preamble.C.U. DMF 1979. 604. July 5. art. See Cour d’Appel de Rouen. 345 Cour de Cassation. DMF 1985. see also the Protocol on the Interpretation of the 1968 Convention by the European Court. country except Denmark. June 3. 2002 of EC Regulation 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. 48 NCPC). See also Cour d’Appel de Rouen. 23 of the Regulation. 1984. 17 wanted to avoid making compliance with formalistic requirements a criterion for the validity of jurisdiction. 1982. 17 of the Convention and not necessarily with the national law (i. referred to in Jurisclasseur. DMF 1987. 1971. where it was held that jurisdiction acquired by means of a jurisdiction clause which complied with art. was essentially the same as the Regulation in respect of jurisdiction clauses. October 9. Cour d’Appel de Rouen. Droit international 8.  ETL 50. May 24. June 27. 344 See Cour de Cassation. 17 on jurisdiction clauses.2001. 492. with note by P. DMF 1985. State and the case involves a Danish domiciliary. 620. art. 48 NCPC. 48 NCPC when a French court must decide whether to accept or decline jurisdiction by virtue of a forum selection clause conferring jurisdiction on a court of another E. 73-63 of January 13. Cour d'Appel de Rouen.12/1. DMF 1980. 1985. see Fraikin and Boquet. Subsequently. DMF 1980. French courts have not gone as far as Belgian courts in this regard: Cour d’Appel de Rouen. 343 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. the other Member States of the European Union).1.Y. 1973. March 14.345 The Brussels Convention 1968. 17 of the Convention or art. 303. 23 of the Regulation governing the validity of a jurisdiction clause. continues to displace art. Nicolas. 469. March 1. 1984. both published by Decree No.U.348 the European Court of Justice held that a jurisdiction clause in a bill of lading would satisfy the requirements of art. The Lugano Convention 1988 will also continue to apply to jurisdictional matters involving a Member-State of the European Union and either Iceland. 1987. Cour d’Appel d’Aix. D. 1983. where it was held that the jurisdiction clause need only comply with art.  ETL 641. 17 of the Convention had precedence over the other means of acquiring jurisdiction. fascicule 631. 1971.E.Y. by which the Brussels Convention 1968. para.4. 342 O. The Convention as amended covered. 1973. .
September 30. 352 Convention on the Accession to the 1968 Convention and the 1971 Protocol of Denmark. the shipper was never advised of the existence of the clause. Also accepted are forum selection clauses in a form which accords with a usage in international trade or commerce of which the parties were. no.354 Art. The inclusion of electronic communications in art. IV. 17 that was adjudicated upon in The Tilly Russ was modified when Denmark. Droit Maritime. 2 Ed.355 Thus art. 1986. which appeared only in the long form bill. 23 even when the shipper has not signed the (The Tilly Russ). a jurisdiction clause in these circumstances would not meet the requirements of French domestic law: art. the Republic of Ireland and the United Kingdom. 48 NCPC) which requires the clause to appear on the document issued itself: See Cour d’Appel de Paris. 354 Art. para. 349 348 . its validity will depend on whether it fulfils the requirements of category b).57 a) if the bill of lading had been signed by the shipper and the jurisdiction clause itself appeared on the back of the document (i. para. to ensure that the shipper had such notice as to be able to consent to it: Tribunal de Commerce de Paris. as well as those in a form which accords with practices the parties have established between themselves. European Court of Justice.C. October 9. or ought to have been. 1978. 548. L. 83 at p. 353 By the San Sebastian Convention of May 26.353 It is essentially this latter version which was reproduced by the drafters of EC Regulation 44/2001. The text is found in DMF 1987. 1989. 23(1) authorizes jurisdiction clauses which are in writing or evidenced in writing.. in the U. 48 requires the jurisdiction clause to appear on the document issued. 12 Ed. section of this article. The French courts emphasized that the jurisdiction clause had to be printed on the back of the bill of lading. Cour de Cassation. even though the short form specifically referred to the long form.E. 23. 557. 23 of the EC Regulation 44/2001 is reproduced supra. June 19. DMF 1982. parties to the type of contract concerned in that particular trade or commerce. 623-3. signed at Luxembourg on October 9. the side where the shipper signs). Ireland and the United Kingdom acceded to the 1968 Brussels Convention352 and was reamended in the Accession Convention of 1989 when Spain and Portugal became parties to the Convention. 23 constitutes an important distancing from French law: a jurisdiction clause may be deemed valid under art. though signed only by the carrier and not by the shipper. where the shipper put his signature. 1984. art.350 (this set of circumstances is rare in maritime matters).1989. at art. It came into force on November 1.351 The version of art. March 2. 235. i.e. 89. Bull. 1984. 17 of the Brussels Convention 1968. acted as the written confirmation of that prior agreement. Droit Maritime. O. 03. DMF 1985. If the jurisdiction clause is only printed on the front of the bill. 1997. 350 The jurisdiction clause in this situation would not comply with the requirements of French domestic law (i. 355 Rèmond-Gouilloud. 23(2) is the major addition made by the Regulation to the wording of the immediately preceding version of art. Rodière & du Pontavice.10. aware and which is widely known to.e. was not given effect since the shipper had only been issued the short form bill. 1993. nor had the shipper agreed to such a clause in previous voyages. p. where a jurisdiction clause. 1984.J. 285/1. 1984. 209.e. 351 Again. 254.K. or c) if the bill of lading fell within a regular course of commercial dealings between the parties and this course of dealings was governed by general conditions which incorporate the jurisdiction clause. 386-2. DMF 1985.349 or b) if the jurisdiction clause was specifically included in a prior oral or written agreement and the bill of lading. and regularly observed by.. 1981.
a clause which only appears in the charterparty and is not reproduced in the bill of lading will nevertheless be enforceable against the charterer even if the latter subsequently takes possession of the bill as endorsee: Cour d’Appel d’Aix. 1038. This is especially problematic when the bill of lading in the hands of the third party was issued under a charterparty which contained the jurisdiction clause and which could only be known by the parties to the charter. has succeeded to the rights and obligations of the shipper under the applicable national law. See Tribunal de Commerce de Paris. See also Cour d'Appel de Rouen. September 30. 96. April 5. The question therefore is whether they also are bound by it. 2002. Cour d’Appel de Rouen. however. 23 of EC Regulation 44/2001 also constitutes an important distancing from the European Court of Justice's own jurisprudence on the previous version of art. agreed to by a shipper and a carrier. obs. 750. the European Court of Justice answered this question. June 19. re-amended version of art. 1984. 187. 612. 235. 359 As between the shipowner and the charterer. 48 NCPC. difficult-to-reconcile decisions of the Cour d’Appel de Paris and the Cour d’Appel de Rouen. interpreting the final.356 French courts have been rather inconsistent in giving effect to art. 1997 (The Clyde Bank). DMF 2003.357 and in other cases insisting. December 5. The consignee and subsequent endorsees. 1981. 1093. Ph. Cour d’Appel de Rouen. 357 See Cour d’Appel de Paris. on proof of the shipper’s actual consent to the jurisdiction clause before the conclusion of the contract of carriage. despite art. 616. 2000 (The Nuevo Leon). holding that.358 5) Opposability to consignee and endorsees As stated above. DMF 2001. 2001. DMF 2001. 17 of the 1968 Brussels Convention. 360 Supra. reaffirmed that a jurisdiction clause in a bill of lading.58 bill of lading nor been specifically shown the clause in the bill.359 In The Tilly Russ. 358 Cour d’Appel de Rouen. November 30. 2002 (The Ubangui).362 If such is not the case. 37 of Decree No. relating to the opposability to shippers and consignees of bill of lading jurisdiction clauses subject to art. 17 of the Brussels Convention 1968. but rather that that law fell to be determined by the judge seized of the case. 362 The Court held that it was not its responsibility to determine the applicable national law as a matter of interpretation of the Brussels Convention. 361 November 9. 1966 and art. See the commentary by Pierre Bonassies. DMF 1982. June 21. DMF 1985. have no notice of this clause. 89 at p. 6. Nicolas. 684.361 the European Court of Justice. 83 at p. See DMF Hors série no. P.  ECR I-9337.-Y. however. 17 of the Brussels Convention 1968. 17 established in The Tilly Russ and other decisions. by virtue of the applicable national law. 356 . 2000 (The Seinehaven). DMF 1998. Cour d’Appel de Rouen. November 29. 2001 (The Transvaal). The shipper who used to be required by law to sign the bill of lading could be made aware of the clause and was therefore usually bound by it. 89. 2000. produces effects with respect to a third party holder who. obs. in some cases recognizing practices established between the parties and international usages in regard to forum selection provisions. In Coreck Maritime GmbH v. 77-79 for a summary of various. 17. under art. Delebecque. (Case No 387/98). May 22. DMF 1985. 66-1078 of December 31. the third party. 102 at pp. 1038. a jurisdiction clause would be enforceable as against a third party holder360 if the clause would be valid as between the shipper and the carrier and if. 17. it is proper to As was required by art. DMF 2001. DMF 2001. Handelsveem BV. Art. the validity of a jurisdiction clause under French domestic law will depend upon whether the parties are acting in a commercial capacity and the clause has been clearly specified. in acquiring the bill. DMF 2001. no. applying the conflicts rules of his national law. in acquiring the bill became the assignee of the shipper’s rights and obligations. DMF 1985.
Rèmond-Gouilloud. cr. 1996 (The Fiona). Cour de Cassation. April 2. note Y. 363 . 14. 93. note P. where the Court did not decide the point because it had not been pleaded by the defendants. amounts to such express acceptance. (The Sonara). 1992. whether the mere endorsement of the bill by the consignee. 368 Cour d’Appel de Rouen. Tassel. 694.369 See P. cr. 556. Cour de Cassation. no. Rev. la reconnaissance et l’exécution des décisions de justice en matière civile et commerciale”. Delebecque. 365 See generally Y. Nicolas. DMF 1995. note P.e. obs. Bonassies. Cour d’Appel de Paris. Ph. Bonassies. March 4. obs. DMF 1997.  ETL 551. Tassel (an arbitration clause). referring only to “acceptance”. Gaudemet-Talon. note H. 17 of the Brussels Convention 1968 and that the decisions rendered under art. “Des clauses des connaissements maritimes attribuant compétence à une juridiction étrangère : essai de démystification”. indicating that art. endorsee or subrogated insurer. May 26. 23 of EC Regulation 44/2001 is basically unchanged from art. 74. “L’autonomie de la clause de juridiction”. December 8. 1997 (The City of Durban). 2003 (The Houston Express). d’Haussy. See also Cour de Cassation. 1999. “L’entrée en vigueur du règlement communautaire no 44-2001 du 22 décembre 2000 concernant la compétence judiciaire. 23 of EC Regulation 44/2001. 72 at p. Cour de Cassation. para. 2000. January 16. Ph.-Y. 703. Nicolas. first para. of the Convention. of the bill of lading by the third party bearer of the bill. See also Cour d'Appel de Nìmes. June 25. 17. pr. Cour de Cassation. DMF 2003. to the bill of lading (a tripartite contract) or at least the beneficiary of a “stipulation pour autrui”.  ETL 551. its presentation to the carrier in return for delivery of the goods after discharge) suffices to constitute the “special acceptance” required to make the clause “opposable” to the consignee. obs. no later than at the time of delivery. 1007. 2000 (The Nuevo Leon). 733. 723.-Y. 1996 (The Chang Ping). June 25.-Y. 1996 (The Köln Atlantic). November 29. 23 of the Regulation. Delebecque. DMF 1995. 1992. November 14. 572.366 Neither the mere possession of the bill of lading by the consignee or endorsee367 nor its “accomplishment” (i. Nicolas. 705. DMF 1995. 339.368 It is unclear. Cour de Cassation. 366 Cour de Cassation. by signature or rubber stamp. December 8.364 French courts have therefore held that in order to bind consignees and their subrogated underwriters.  ETL 193. Delebecque in DMF Hors série no. 1007.-Y. observations Ph. Revue Scapel 2003.U. Nicolas on the decision of the Cour d’Appel de Paris. 209. although the commentary strongly suggests that such action would not constitute the “special acceptance” of the clause by the consignee required by French law.  ETL 727 at p. p. P. See also the commentary of P. DMF 2003. DMF 1997. Revue Scapel 2003. indicating that in France the consignee is not seen as a mere successor to the shipper’s rights as in certain other E. 2003. November 13. November 29. 1997 (The Tonia Bondarchuck). 259. 393. 99. will probably continue to apply under art. DMF 1999. States like Germany. 4. Delebecque. DMF 1996. 2002 (The Elpa). 11. note P. together with the shipper and carrier. Cour de Cassation. Nicolas.-Y Nicolas. (The Silver Sky). 1994 (The Harmony and The Nagasaki).-Y. but rather as either a true party. 1998. 2002 (The Aptmariner). Bonassies on the decision of the European Court of Justice in the Castelleti decision of March 16. 17 of the Convention by the Court of Justice of the European Communities. 369 Cour de Cassation. Cour de Cassation. 46. 2002. Bulletin des transports 1997. Cour de Cassation. November 28. int. DMF 1999. 2003 ETL 321. 684 at p. Ph. November 29. Cour de Cassation. the consignee is not generally considered to be a mere successor to the rights of the shipper under the bill of lading. 154. note P. but doubtful. obs. DMF 1995. Bonassies. 20.363 In France. obs. It would appear that the same principle will apply under the almost identical art. DMF 2000. 1998 (The Silver Sky). 367 Cour de Cassation. DMF 2001. 218. May 27. obs.59 verify the reality of the holder’s consent to the clause by reference to the requirements of art. 41. 2002 (The Aptmariner).. March 4. DMF 2003. including Coreck Maritime (supra). October 15. P. 41. as opposed to “special acceptance”. DMF 1997. F. P. 364 See the commentary by P. jurisdiction clauses in bills of lading – which are held to be “derogatory” of the general civil law and not an integral part of the “economy” of the contract of carriage365 – must be expressly accepted by the consignee. M. DMF 2003. 1994 (The Stolt Osprey). obs.
must apply “the system of law with which the transaction has its closest and most real connection . uniform conflict rules are most helpful. obs. Thus a forum non conveniens question in a suit in the United States or the United Kingdom or France is decided by the conflict of law rules of the U.372 XIII. The principle emphasises how necessary it is to have uniform conflict of law rules.370 When the bill of lading has been issued under a charterparty and generally refers to the terms. or France respectively. has taken a major step towards that kind of unification.373 In consequence. 1980 and in force April 1. 548. 688.K. 374 Adopted at Rome. 530.60 When the jurisdiction clause was among the clauses printed only on the long form bill of lading. 1976. the U. in a shipment from Hamburg via Bremen and Valencia to Dubai on an Iranian ship. Achard. 2) The law by which to judge the clause On the other hand.10. Pierre Bonassies . 304. L 266/1. DMF 1998. and only a short form bill was issued and signed by the shipper before being transferred to the consignee. judged under German law. March 2. without actually reproducing the jurisdiction clause itself. DMF 1985. more recently. a court. DMF 1976. 333 at p. R. Here again. 1994. no. see also Batiffol et Lagarde. The Rome Convention 1980 on the Law Applicable to Contractual Obligations374 is a particularly advanced international instrument.The Criteria .E.S. 93. Bulletin des Transports 2003. since the latter is not deemed to have known of its contents.All Jurisdictions 1) The conflict of law rules The conflict of law rules used to decide a choice of jurisdiction question are the rules of the forum. ”. EC Regulation 44/2001. 2002 (The M/V Marimar). International Conflict of Laws. 380 at p. Appendix “F” at pp. affirming Tribunal de Commerce de Paris. October 14. The Frank Pais  1 Lloyd's Rep. Droit international privé. that clause will not be enforceable as against the third party holder. found in the charterparty. This is a basic principle of conflict of laws.1980. See. 371. the consignee is proven to have been aware of the clause at or before the completion of delivery of the cargo. to determine its validity under the proper law of the contract or under the law designated in the clause itself could lead to renvoi and assorted conundra. O. but also the shipper could not have had proper notice of the existence of the clause. however. including the jurisdiction clause. December 16. he has been held to be bound by it. in deciding whether a jurisdiction clause should be given effect. 1032-1048. such a clause was not enforceable as against the consignee...371 Where. however. 373 The Iran Vojdan  2 Lloyd's Rep. January 5. see Tetley. in the field of conflict of jurisdiction. 372 See Cour d’Appel de Rouen. For the text and a brief commentary. Jurisdiction Clauses Per Se .. 529 at p.J. 1997 (The Istanbul Z). June 19. November 27. with the Brussels Convention 1968 and. who states that the validity of a jurisdiction clause must be determined under the law of the forum which is being called upon to decide the clause's validity. 1991. 89 at p. DMF 1985. 337. 1984. since not only the consignee. 9. which Cour d’Appel de Paris. an English Court held that German law had the closest and most real connection and the validity of the jurisdiction clause was. The European Union. DMF 1983. 479. 371 Cour d’Appel de Paris. 80/934/EEC. 383.note. 1981.C. therefore. Cour d'Appel de Paris. 370 .
1959. obs. 829. September 9. See also Jian Sheng Co. 1037.C. it should not be honoured because it will not allow the parties to know with certainty before which court they are to proceed. Great Tempo S. March 4. it has been held that a clause calling for suit “before the courts of England” Rome Convention 1980. the carrier was unable to adduce sufficient evidence to support its contention that its “principal place of business” was located in Hong Kong. although such a clause was found to be quite frequent in bills of lading. November 30. and has sometimes been enforced. The Tribunal de Commerce d’Alger377 held that a clause calling for suit in the country where the carrier had its head office was not precise enough. 618. In some countries. 996. DMF 2003. where.-Y. DMF 2001.379 Similarly. DMF 2001.C. July 12. 4(4) in a bill of lading case. 4(5) in such a case. C. see Cour d’Appel de Paris. DMF 1999. absent any express or implied choice of law. The Convention enshrines the closest connection principle in cases where the parties have not expressly chosen the law they wish to govern their contract or where their choice is not demonstrated with reasonable certainty from the terms of the contract or the circumstances of the case. November 18. See Rechtbank van Koophandel te Antwerpen. 20. 2001. All jurisdictions use roughly the same criteria.A. 4(5). and Cour de Cassation. November 29. DMF 2001. June 12. and the fact that the carrier was called the Rotterdam Fruit Line was insufficient to conclude with certainty that the head office was in Rotterdam. 1999 (The Bonastar II). application for leave to appeal to the Supreme Court of Canada dismissed with costs and without reasons. For an example of the application of art. a clause specifying suit in the place of the carrier’s “principal business centre” was upheld more recently by the Cour d’Appel de Rouen. arts.).  ETL 780. however. upheld Cour de Cassation.375 The Convention also establishes rebuttable presumptions to assist the court in determining the national law with which the case is most closely connected. 556. Note. Ph. these presumptions “… shall be disregarded if it appears from the circumstances as a whole that the contract is more closely connected with another country. 2003 (The Houston Express0. see Cour d’Appel de Paris.378 A clause which merely conferred jurisdiction on the courts of the “principal place of business” of the carrier has sometimes been held to be null and void. 377 February 2. 376 375 . 1966.  ETL 238. upheld by the Cour de Cassation. that by art.61 has harmonized choice of law in contractual matters for all Member States of the European Union. Rome Convention 1980.A. although the clause was found unenforceable because of lack of proof that it had been consented to by the shipper. 287.Nicolas. March 4. 2000 (The Nuevo Leon). 379 Hof van Beroep te Brussel.  S. arts. 418. v.376 3) Discretion Although there is no general rule as to whether a court will honour a jurisdiction clause. 3(1) and 4(1). 4(2) to 4(4). a) Clear and precise Unless the jurisdiction clause is clear and precise.C.  3 F. On the other hand. 378 Cour d’Appel de Rouen. No. the court's discretion is based on a number of criteria in respect to the clause itself. Revue Scapel 2003. 684. 1998 AMC 1864 (Fed.A. a jurisdiction clause is not valid unless the name of the actual court is spelled out. DMF 1959. 1984. note P. 2003. 2000 (The Bunga Pelang). Delebecque.” For an example of the application of art.
384 Where a bill of lading referred to a long form bill of lading. May 9.A. 382 Cour d’Appel de Douai. Rep. 293. ”(emphasis added) was not held to bind the “ship” and an action in rem could therefore be taken in Italy. nevertheless. 1976.R.. 549 (C. 1040. DMF 1985. at the shipowner's option. Revue Scapel 1996. 1971. 336 and Cour d’Appel de Rouen. 548 . June 22. DMF 1975. DMF 2001. November 30. Coutret suggests that to find the address of the vessel owner in order to serve the writ one need only look at Lloyd's Registry of Shipping.381 On the other hand. jurisdiction and arbitration clauses in a charterparty were held to be invalid against a holder of a bill of lading when this document bore a simple reference to the “freight and conditions as per the charterparty” and the text of these clauses of the charterparty was not attached to the bill of lading. 384 Cour d'Appel de Paris. July 20. if this is sufficient notice and is sufficiently certain. 1984. June 27. 1960. Thus the mere fact that the shipowner had agreed to arbitrate disputes with the charterer in New York did not mean that the shipowner agreed to be amenable to suit in the Southern District of New York in respect of a cargo Tribunal de Commerce de Paris. 383  2 Lloyd's Rep. 35. 1974. DMF 1973. 724. One wonders.62 is not sufficient. in the United Kingdom.S. 335..” in a bill of lading signed by the shipper. A note of E. 2000. See also Cour de Cassation. it was inapplicable. 2000. Jurisdiction was to beat the port of destination (Calcutta) or. which in turn contained a jurisdiction clause. DMF 1971. 484.385 c) Jurisdiction clauses and third parties Jurisdiction clauses may only be enforced against parties to the contract or persons who are apprised of or consent to the jurisdiction clause in the bill of lading. 1995 (The Frauke). December 17. 659. DMF 1961. see also Cour d’Appel de Poitiers. DMF 1976. a clause reading:382 “All claims and actions arising under and as a result of the present bill of lading will be adjudged in the U. L. February 5. see also Cour d’Appel de Paris. 546 at p. 80.383 a jurisdiction clause reading: “Any and all proceedings against the carrier shall be brought before the competent Court of London .S. March 2. See also Cour d’Appel de Paris. In The Lisboa.380 Clauses which give jurisdiction to two courts at the shipowner's option have also been very properly declared invalid as being insufficiently clear and quite unreasonable. June 19. 1975. 542. DMF 1976. 380 . and consequently. 385 Cour d’Appel de Rouen. it was held that the vagueness of the bill of lading did not permit the shipper to know the full effect of the jurisdiction clause. DMF 2001. where the jurisdiction clause in a standard-form contract incorporated into a contract of carriage was held to be unenforceable. January 5.). where clauses giving the carrier the option of suing in more than one court were held null and void. b) Jurisdiction clauses by reference The reference in another document to a jurisdiction clause should be detailed and precise. In consequence. See also Cour d’Appel de Rouen. 381 The Media (1931) 41 Ll. was held to be valid. 1973.
because the size of the print of the clause was too small. S. DMF 1983. at p. India Steamship Company389 declared a jurisdiction clause invalid. Cour d’Appel d’Aix.392 Insurance Co. See a note on the judgment at DMF 1983. 1. DMF 1983.388 d) Legibility of the clause A jurisdiction clause is an exception. 6(1) of the 1968 Convention. Jotina 1974 AMC 1190 (S. 1976. 143. 531. February 2. May 30. provided that the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings. para. the jurisdiction clause cannot apply if the circumstances of the case forbid dividing the action. 1998 (The Albasgracht). or where it violates a strong public policy of the forum. N.c. October 27.A. the shipowner was held not bound by a jurisdiction clause in a bill of lading issued to the shipper by the time charterer.391 f) Fairness and public policy Courts.R. 391 Cour d’Appel de Paris. February 4. of North America v. 1965. the suits against the various defendants need only be connected. 1979. 235. 392 See particularly the American decisions flowing from Bremen v.386 Similarly. See also Cour de Cassation de Belgique. Bundesgerichtshof. obs. February 25.S. as where it seems to be the product of fraud or overreaching by the carrier or is inherently unjust or unreasonable. he may be sued in the courts where any one of them is domiciled. 232. 296. (France). Tribunal de Commerce de Marseille. c. not indivisible. October 15.  ETL 270. which generally invalidates foreign jurisdiction clauses on the public policy ground that they oust the jurisdiction of local courts.1975. 1. 135/82. 616. 1384. May 24. See also the legislation of jurisdictions such as Australia. 1974). DMF 1983. 389 11 Z. 1972 AMC 1407 (1972). 383. where it was held that. for the application of art. 6(1) of the Brussels Convention 1968).P. 1983. Proof should be made that it was brought to the attention of the person against whom it is invoked or that this person knew or should have known of the clause. May 11.A. Delebecque. 29. 1982. Cour d’Appel de Paris. 388 Cour de Cassation. New Zealand and South Africa. In this regard. suit at the place of business of any one of the defendants can be convenient.390 On the other hand. 81. 295 at p. May 30.S. 390 Cour de Cassation. 407 U. 1979-80 J. Ph. 9. This decision ignores the argument that the shipowner and time charterer share the role of carrier and also that the shipowner is responsible for the fault of the charterer per art. in their discretion. 1982. 1983. See also European Court of Justice. where a defendant domiciled in a Member State is one of a number of defendants. cited supra. DMF 1965. June 11. DMF 1983. e) Plurality of defendants Where there is a plurality of defendants. 197980 J. DMF 1999. Zapata Off-Shore Co. Note that under art. November 20.P.63 damage action brought by a third party.D.  ETL 217. 37 and Oberlandesgericht Dusseldorf. referred to in The Iran Vojdan  2 Lloyd's Rep 380 at p. the Supreme Court of the Federal German Republic in Allianz v. DMF 1977. will normally refuse to enforce a jurisdiction clause that appears fundamentally unfair. 6(1) of the EC Regulation 44/2001 (similar to art. 1982. 1982.Y.387 A jurisdiction clause in the bill of lading of the second carrier cannot be invoked against a consignee who is entitled to receive delivery of the goods from the second carrier upon production of the bill of lading of the first carrier. 387 386 .
but the presence of a forum selection clause in the former is. The Ship Capricorn  2 S. 22 of the Act. and the burden of proof has been deemed to be different as well.K. is preferable. under sect.395 2) It must next be proven that the court hearing a motion of forum non conveniens has jurisdiction over the subject matter of the suit.R. Jurisdiction cannot be accepted nor can suit be stayed.R. 367 at p.C.396 If the court does not have jurisdiction over the subject matter.L.e.” 395 In the U. 587. the burden is normally on the defendant to show why a stay should be granted.J. and where the plaintiff has the burden of showing why a stay should not be granted.L. The burden is therefore initially on the claimant (plaintiff) to prove the jurisdiction of the forum. S. L. In the U.  1 S. “Forum Selection Clauses in Maritime Cases” (2003) 27 Tul. because so often plaintiffs take suit in “… the quintessentially convenient forum for the defendant – the defendant’s home forum”. Mar. 450 at p. 422 at pp. in my view. Bastarache J. In France.R. AMC at p.I. 33-41 of the New Code of Civil Procedure: these rules are of public order. See also arts.394 Questions of burden of proof in respect to forum non conveniens and to jurisdiction clauses are decided in five steps: 1) The court hearing the motion of forum non conveniens must have jurisdiction to hear such a motion. Pompey v. by virtue of the legislation which establishes them. one where the starting point is that parties should be held to their bargain.C. 1289 “In the latter inquiry [i. 588. sufficiently important to warrant a different test.64 XIV.C.R.S.V. see sect. however. 54. See Ravelo Monegro v. 49-51 and the declinatory exceptions described at arts. the court seized of the motion must follow a process of legal analysis directed at identifying the most appropriate venue for the litigation or arbitration of the claims asserted. most courts have jurisdiction to decide whether they have jurisdiction over the subject matter and whether to hear a motion of forum non conveniens and eventually order a stay of proceedings. U. 1985.C. 75-99. (4th) at p. 1981. see the rules governing the court's jurisdiction ratione materiae (compétence d'attribution) set out at arts. 42-48 of the New Code of Civil Procedure: these rules are not of public order. note 2.K. 49 of the Supreme Court Act 1981. see 28 U.393 Nevertheless.S. ECU-Line N. Davies. as a civil law jurisdiction.L.S. 396 The jurisdiction of the plaintiff’s chosen forum over the subject-matter of the dispute is often not an issue. (2003) 224 D.. Astro Dinamico  1 Lloyd's Rep. Fortunately. See also the rules governing the court's jurisdiction ratione personae or loci (compétence territoriale) set out at arts. 453 at p. the Federal Court of Canada has the jurisdiction to construe its originating act and especially heads of maritime jurisdiction set out in sect. R. I am not convinced that a unified approach to forum non conveniens.” 394 Ibid. cited by M.. 2003 AMC 1280 at pp. (4th) 577 at p. “ordinary” forum non conveniens cases].C. see also Williams & Glyn's Bank v. France. In Canada. does not have forum non conveniens. 439-440 per Laskin. where a choice of jurisdiction clause constitutes but one factor to be considered.. 456 (H. at pp. 393 . Rosa 211 F. 2000). 1288-1289. c. Code sect.3d 509 at p. 463-464. 463. 368. In Z. 1333. 513 (9 Cir. CJ. held: “There is a similarity between the factors which are to be taken into account when considering an application for a stay based on a forum selection clause and those factors which are weighed by a court considering whether to stay proceedings in ‘ordinary’ cases applying the forum non conveniens doctrine. See also Antares Shipping v. Burden of Proof – Forum Non Conveniens and Jurisdiction Clauses A motion for a stay of proceedings on grounds of forum non conveniens (where there is no jurisdiction or arbitration clause to contend with) and a motion for a stay of proceedings because of a jurisdiction or an arbitration clause in the relevant contract are similar. then the suit must be dismissed.). D. In both cases. 50(1) of the Federal Court Act.R.7. the specific principles and tests used in forum non conveniens cases for determining the “natural forum” have been articulated in different language from those applied in deciding whether or not to give effect to jurisdiction/arbitration clauses. c.
the party (defendant) attempting to change jurisdiction has the burden of proof as to why the stay of proceedings should be granted. S. that the clause is legible. 588. 1289.C. (2003) 224 D. 1983). 531 (D.I. properly defines the other jurisdiction.R. 501 at p. 15. to make a ‘strong showing’ that the court should exercise jurisdiction in derogation of the contract.  1 S. Monroga 254 F.V. Some Circuits tend to apply the 330 U. at p. Lloyd’s of London 94 F. who brings suit in a forum other than the contractually agreed one. 450 at p. 2003 AMC 1280 at p. 401 1975 AMC 1972 at p. the plaintiff's choice of forum should rarely be disturbed. 402 407 U. Inc. Hre1jin 600 F. 928 (4 Cir. the party (usually the defendant) wishing to rely on the clause must prove that the clause applies to the suit and to the parties at hand. that the clause is validly incorporated into the contract of carriage.R. Zapata Off-Shore Co. 1985 AMC 1192 (S. “Thus. 464. 1996). Supp. 1987 AMC 2735 at p. the party who challenges the jurisdiction clause (usually the plaintiff) has the burden of establishing why a stay should not be granted400 (i.2d 1231 at p. 1959 AMC 1327 (1959). 1958 AMC 1335 at p. it was held in Acciai Speciali Terni USA. 2002 AMC 528 at p. As was said in Gulf Oil v.L. 1985 AMC 67 at p.S. 1973 (S.D. as to the precise legal basis for such unconditional dismissals. Staying Suit -All Jurisdictions In the United States. Only by making such proof can the plaintiff hope to be released from his bargain to sue or arbitrate elsewhere. 588. and 1972 AMC at p.Y. 400 Z. La.2d 1147 at p. 359 U. 1 at p.C.V. ECU-Line N.D.S. in the light of present day commercial realities and expanding international trade we conclude that the forum clause should control absent a strong showing that it should be set aside. relying on M/S Bremen v. v.e. 403 181 F. 1985). 5) Thereafter.Y.402 Citing the same precedent. Supp. (2003) 224 D. Md. etc. 301. Pompey v. ECU-Line N. why the contractually stipulated jurisdiction. to which he has (presumably) agreed. and also quoted in Perusahaan Umum v. that: “The seminal Supreme Court decision enforcing a forum selection clause places the burden on the plaintiff.2d 458 at p. where the Court stated. 1418. Tel Aviv 711 F. 398 See also Z. M/V Berane. (4th) 577 at p. 397 .” Dukane Fabrics v. 1975). 2002). 1164. quoted in Carbon Black Export v.3d 923 at p. 399 See In re Air Crash Disaster Near New Orleans. 1972 AMC 1407 at p. Gilbert:397 “But unless the balance is strongly in favour of the defendant. Vaasa Line Oy. 2760 (1987). 462. (4th) 577 at p. 2003 AMC 1280 at p.S.R. Thus in Kooperativa Forbundet v. 180. There is no unanimity among American courts.401 it was held: “This is a forum-selection clause and it is prima facie valid and enforceable”.”398 The party seeking the forum non conveniens dismissal must convince the court of every element of the forum non conveniens analysis.S.S. Pompey v. 202. 450 at p. is inconvenient or why suing there will be unjust or unreasonable to him or will lead to consequences contrary to public order or to public policy of the original forum).R. N. 1414 (1972).2d 297 at p.399 4) If there is a jurisdiction clause. 10.I. N.”403 XV. upheld in the Supreme Court. 464. 1289. and that there has been notice to the other party. courts frequently dismiss suits instituted in breach of valid foreign jurisdiction or foreign arbitration clauses. however. 1958). See also Allen v. 821 F. 71 (5 Cir. 508.L.  1 S. 1341 (5 Cir.65 3) Once it is shown that the forum has jurisdiction over the subject matter of the suit. 1235. See also 407 U.
633 (S.2d 206 at p. June 12.2d 393 at pp. and even whether the other court will accept jurisdiction). S.408 Where a court. 322 at p..D. v. Co.A.D. For a thorough analysis of the differing approaches of different American circuit courts of appeal to this matter. Orient Overseas Line 1976 AMC 212 at p.R. Wash. The El Amria 1981] 2 Lloyd’s Rep. cited by M. Underwriters at Lloyd’s. ibid. 2001 WL 667804. Va. Davies. Allianz Ins. 867 F.407 In England and Commonwealth countries. Inc.D. 1975. 2055 (D. Corporation of Lloyd’s 999 F. 1222 (10 Cir. N. COGSA applies and the foreign court reduced the rights of cargo claimants below the minimum guaranteed by U. 408 See.Y. Supp. 2002 AMC 1598 at p. Vetrerie Riunite. Inc. Supp. supra at p.Y. M. 123 (C. 2000). 2000 AMC 2947 at pp. but rather by stays of proceedings. Continental Ins. 2001). GmbH. S. 1174. COGSA. 369-376. Lipcon v. 444-445 (High C. See. Technicians & Health Care Workers of N. Cir. 2000). 1974): “Defendant's motion to dismiss this case on the ground of forum non conveniens is hereby granted without prejudice to the commencement of a similar suit in another jurisdiction and on condition that defendant waive any time bar defense not presently available to it in the present action. whether service may be made. 406 See. Abatement is the dismissal of the action. Lexis 8113 (W. “Forum Selection Clauses in Maritime Cases” (2002) 27 Tul. 1998).).3d 603 at p.A. 2948-2949 (E. M/V Orsula 354 F. v.D. 606. 1601 (9 Cir. 131 F. Inc. 1999 AMC 2053 at p. note 1 (1 Cir. 409 The stay of proceedings is the temporary suspension of the proceedings by a court in order that certain conditions be fulfilled or some act be carried out by one or more of the parties. Co. the date of the filing of this lawsuit” See also Snam Progetti S. 789-790. 2004 AMC 172 at p. 886-887 (S. Wolfgang Preinfalk.406 The inherent power of the court to regulate its own proceedings can also be applied either to dismiss or to stay proceedings. Co.3d 1207 at p. Ltd. 630.D. 175 (7 Cir. 188 C. but merely declines to exercise it. 2001 U. v. for example. 405 See. 324. v. Davies. on the time for suit defence being waived and on appropriate security being filed. Kukje Hwajae Ins. Ulysses Cruises. Co. Frietsch v. Lambert . 367 at pp. court to re-assume jurisdiction in situations where U. 214 (W. 1995). Dis. Va. 2002). of Aust.404 while others invoke Rule 12(b)(3) (dismissal for improper venue)405 and yet others rely on Rule 12(b)(6) (dismissal for failure to state a claim). v.S. Wharf (Holdings) Ltd. v. 119 at p.S. M/V Hyundai Liberty 294 F. N.2d 628 at p. faced with a motion of forum non conveniens.Y. has jurisdiction. 2001. particularly as a stay would permit the U.410 This is an intelligent and proper approach. v. Rules 12(b)(1) (dismissal for want of subject-matter jurisdiction). Hugel v. 2003). Akai Pty. for example. unreported. London 148 F.2d 1110 at p. Supp. 410 Hartford Fire Ins. v. Very often. M/V Peace River 39 F. 2001 AMC 869 at pp. Lauro Lines 387 F. 1996).” 404 . it is preferable that the court stay proceedings409 rather than dismiss them.C. Longwall-Associates. This preserves the legitimate rights of the claimant as to time for suit and other unknowns and imponderables (e.g. judgments staying suit will be conditional on the defendant agreeing to appear and appearing in the new jurisdiction.. L.A. forum selection clauses and foreign arbitration clauses are typically enforced not by dismissals. 1993). for example. 2000). Davies. 698 (D. United Int’l Holdings. Kysar 983 F.J. Commerce Consultants Int’l. Cho Yang Shipping Co. of Canada v.3d 825 ast p. 1290 (11 Cir. by contrast. People’s Ins. 131 F. 1999). 1989). Inc. 376.2d 697 at p.3d 1171 at p.S. 207 (7 Cir.P. whereby the courts seized of the motion to enforce the clause does not deny its own jurisdiction. 56 F. Supp. In foreign forum selection clause cases too. stays would seem preferable to unconditional dismissals. 1112.S. see M. for example. 1993). 2d 787 at pp.v. Refco.C. 830 (7 Cir. Co. 1975 AMC 631 at p. 1975: “The motion to decline jurisdiction is granted subject to the provision that none of the parties be prejudiced as to any rights they had on July 24. 210 F. Inc. 407 Licensed Practical Nurses. Fourth Circuit decisions such as Jewel Seafooods Ltd.66 Federal Rules of Civil Procedure.p. 407-408. 418 at pp.3d 1285 at p. Mar. v. Inc. v.L.
1998).C.C.3d 115.V. the injunction should only be granted if the forum court decides that the foreign court. 1970). infra. Patel  1 A. 631 at p.Y. v. Donohue v.. or is about to assume. See. Airbus Industrie GIE v.  1 Lloyd’s Rep. Where a party has already taken suit in a foreign jurisdiction or is about to do so. 317 (H. 402 (H.C. In the U. in Amchem Corp. Seventh and Ninth Circuits have issued anti-suit injunctions where the foreign proceedings are vexatious. 24. 413 See. where the foreign proceedings are viewed by the domestic court as vexatious or oppressive or unconscionable. with the jurisdiction of foreign courts. The Second. 119 at p.R. jurisdiction. 58 (H. See Laker Airways Ltd. would have had a reasonable basis for concluding that there was no clearly more appropriate alternative forum.. 407 U.  2 Lloyd’s Rep.C. 893 (P.S. rev’d on other grounds. see Amchem Products Inc.). rev’d on other grounds. Patel  1 A. In re Unterweser Reederei.). 1 (1972). Farrell Lines Inc. 1998). 2003 at pp. N. which involves a forum non conveniens type of analysis. v. at least indirectly. for example.C.2d 1349 (6 Cir. China Trade & Development Corp. because of its real and substantial connection with the case. 1970). and the foreign court has taken.C. Lee Kui Jak  A.R.L. 1992).). Cir. to prevent parties from See the discussion of the six steps in this process surrounding notes 12 to 15. v.  A. For the U.C.).). of Aust.S.D. where the House of Lords referred to the “… indirect interference with the foreign court which an anti-suit injunction entails.414 They have also been issued.L. 631 at p. v. British Columbia (Workers’ Compensation Board)  1 S. iCigna Ins. Cir.412 The forum court will only grant an anti-suit injunction where it is convinced that it is an appropriate forum for the litigation. 123.K. see. 1984). M. 407 U. aff’d 161 F. British Columbia (Workers’Compensation Board)  1 S. 1 (1972). In general.L. 1998 AMC 334 (S. 956 F. the Fifth. 1987): Gau Shan Co. Laker Airways Ltd. 58 at p. a defendant in that foreign action may seek to have the forum court issue an injunction (sometimes also called a “restraining order”) ordering the party to whom it is addressed (and who is subject to the personal jurisdiction of the forum court) to discontinue or not to commence his foreign proceedings. Laker Airways Ltd. In addition.2d 888 (5 Cir.L. British Airways Board v. Laker Airways Ltd. Armco  1 Lloyd’s Rep. SNI Aérospatiale v. 2004 (E. supra. Sixth and District of Columbia Circuits. 119. for example. Bankers Trust Co. because anti-suit injunctions interfere. 1988 AMC 880 (2 Cir.  1 Lloyd’s Rep. In Canada. v.L. 897.. see CSR Ltd. 871 at p.413 they are issued only sparingly.C. Australia Ltd. have held that an anti-suit injunction should be granted only to protect the domestic court’s own jurisdiction or to prevent evasion of its public policy. In re Unterweser Reederei. v.67 XVI.411 XVII. 637 (H.R. April 27. 897.C. v.S. however.2d 33. 95 (H.2d 888 (5 Cir.C. International Maritime and Admiralty Law. for example. Ceres Terminals Inc. the Supreme Court of Canada held that no motion for an anti-suit injunction should be entertained unless and until the defendant has tried and failed to have the foreign proceedings stayed or dismissed by the foreign court on grounds of forum non conveniens. British Airways Board v.  1 Lloyd’s Rep. 425 (H. Sabena Belgian World airlines 731 F. 119 at p. GmbH 428 F.). for example. The Six Steps Applied The decision as to whether or not to stay proceedings completes the sixth and final step of the entire process of determining where the action or arbitration will occur. Anti-Suit Injunctions Anti-suit injunctions are closely related to forum non conveniens.L. For Australia.C. and Others (1997) 146 A. Airbus Industrie v. 412 411 .C.C. on the other hand. Airbus Industrie GIE v. For Canada.J. Grovit (Case No.). Sabena Belgian World Airlines 731 F.  A. 414-415. Choon Yong 837 F. 1984). See other examples cited in Tetley.” See also Turner v. for example. contrary to the principle of comity. under pain of contempt of court.).C. had it applied the forum’s principles of forum non conveniens.).L. 1999 AMC 305 (2 Cir. for example.2d 909 (D. 138. 414 See. For the U. Assurantie Maatschappij ‘de Zeven Provincien’  A. v. South Carolina Ins.S. GmbH 428 F. v.2d 909 (D. and that the injunction is necessary to prevent and injustice. see. C-159/02). 640. The acceptance of anti-suit injunctions has become widespread. 631 (H. Patel  1 A. Co. oppressive or will otherwise cause inequitable hardship.
April 27. 87 (C. 2004.L.418 The European Court of Justice concluded that restraining orders of this kind are incompatible with the principle of mutual trust which the Contracting States accord to one another's legal systems and judicial institutions. See paras. 417 Convention on Jurisdiction and the Recognition of Judgments in Civil and Commercial Matters.420 The Court further held that the granting of such restraining orders constitutes an unacceptable interference (even if only indirect) with the jurisdiction of the courts of other Member States of the Brussels regime:421 "… a prohibition imposed by a court.). April 27. See also the case comment by D. 380 and The Bergen (No. leave to appeal to House of Lords refused (charterparty arbitration clause). Grovit (Case No. September 27. 2002 for all Continental Bank NA v. Grovit (Case No. C-159/02). 2004 at paras. reported in  1 Lloyd’s Rep.J. from reviewing the jurisdiction of the court of another member State.416 has held. The Angelic Grace  1 Lloyd’s Rep. Such an assessment runs counter to the principle of mutual trust which.) (bill of lading arbitration clause). on a preliminary reference from the House of Lords in Turner v.A. 1968. 419 Turner v.422 which replaced the Brussels Convention as of March 1. Any injunction prohibiting a claimant from bringing such an action must be seen as constituting interference with the jurisdiction of the foreign court which. underpins the Convention and prohibits a court. 2000. that courts of States party to the Brussels Convention 1968417 have no jurisdiction to grant anti-suit injunctions in order to restrain the commencement or continuation of litigation in the courts of other States party to the Convention. however. at para.A. as pointed out in paragraphs 24 to 26 of this judgment. restraining a party from commencing or continuing proceedings before a foreign court undermines the latter court's jurisdiction to determine the dispute. as such. the judgment made as to the abusive nature of that conduct implies an assessment of the appropriateness of bringing proceedings before a court of another Member State. backed by a penalty. is incompatible with the system of the Convention. except in special circumstances which are not applicable in this case.419 even where such injunctions are issued so as to prevent an abuse of process by a party acting in bad faith with a view to frustrating the existing proceedings. (2004) 10 JIML 134. including bills of lading.C.). 710 (bill of lading jurisdiction clause).68 breaching exclusive foreign jurisdiction or foreign arbitration clauses in contracts. Grovit.R. The ECJ endorsed the opinion expressed by Advocate General Ruiz-Jarabo Colomer in Turner v." 421 Ibid. 216 (E. 107 (H. 418 See the judgment of the European Court of Justice. Nor could the issuance of such restrainging orders be justified on grounds of national procedural rules or to minimize the risk of conflicting decisions and to avoid a multiplicity of proceedings.415 The Court of Justice of the European Communities. 24 and 25. at para. Grovit.).L. 505 (C.A. 27. 416  1 W. 2)  2 Lloyd’s Rep.) (exclusive jurisdiction clause in loan agreement). 420 Ibid. The Bergen  1 Lloyd’s Rep. and which came into force 415 ." This proscription of anti-suit injunctions as between the courts of Brussels Convention States would presumably also apply to preclude anti-suit injunctions (whether sought to prohibit vexatious proceedings or to enforce jurisdiction clauses and agreements) as between States party to EC Regulation 44/2001. Rhidian Thomas. 29 and 30 of the ECJ decision. adopted by the Council of the European Union on December 22. 509 (C. adopted at Brussels. 422 EC Regulation 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. Aeakos Compania Naviera SA  1 Lloyd’s Rep. C-159/02). The Epsilon Rosa  2 Lloyd’s Rep. 29: In so far as the conduct for which the defendant is criticized consists in recourse to the jurisdiction of the court of another Member State. in Turner v.
J. Gasser thus promises to also ensure the supremacy of art. 21 of the Brussels Convention 1968. under the Brussels Convention 1968. because the jurisdiction clause is not valid or is not exclusive). 23 of EC Regulation 44/2001. the court second seized must decline its jurisdiction. For the official French text of this decision. 505 (C.A.C.C. where the initial proceedings in such a case are instituted before a court in a Brussels Convention State. where a jurisdiction clause is involved. on March 1. 76. The decision constitutes the triumph of art. unless and until the court first seized declines jurisdiction. as a result of another development in European law. Rhidian Thomas. because the court first seized is obliged (by art.423 Moreover. render anti-suit injunctions unnecessary. Baatz points out that the Gasser decision puts an end to a longstanding controversy as to whether it is the court “first seized” under art. 27 of which is similar to art. 29.). which is entitled to rule first on whether or not it has jurisdiction to try a dispute. L 12/1 to L 12/23. see O. being the court “first seized” within the meaning of art.) and subsequent decisions such as OT Africa Line Ltd. 21 and 17 respectively of the Brussels Convention 1968. even if proceedings there are protracted. and possibly also in cases within the in all Member States of the European Union. it is hoped to achieve two of the main goals of the Brussels Convention: to prevent parallel proceedings before courts in two different Contracting States and to avoid possible conflicts between the decisions that might result from such proceedings. “Who Decides on Jurisdiction Clauses?” in  LMCLQ 25 at p. 2002. to prohibit the institution or prosecution of litigation in jurisdictions outside the E.E. 21. "Anti-Suit Injunction: La CJCE met fin à un anachronisme" DMF 2004. 27 over art. See also the critical commentary of the Gasser decision by D. For the text. Member States therefore seems to be a thing of the past. Member States except Denmark. 222 (E. 21 of the Convention. in alleged violation of a clause conferring exclusive jurisdiction on a court in another such State. MISAT SrL. being the court “second seized”. The court designated by the clause and before which proceedings are subsequently taken on the basis of that agreed jurisdiction. 423 See the case comment by Renaud Carrier. if the court first seized establishes its jurisdiction to try the dispute (e. consistent with the historic principle of comity in private international law and the increased judicial integration of Europe since 1968.424 the Court of Justice of the European Communities held that. within the meaning of art.g. This is a positive development. corresponding to arts. Aeakos Compania Naviera SA  1 Lloyd’s Rep. it is the court first seized of the dispute. but must stay the proceedings before it of its own motion. 413. 17 of the Convention. In this way. 17 of the Convention) to decline jurisdiction in the face of a valid clause attributing exclusive jurisdiction to the court second seized.C. In Gasser GmbH v. .U. The Gasser decision will likely also apply to the determination of jurisdiction under EC Regulation 44/2001. except Denmark. Regulation 44/2001 applies (e.J.U. anti-suit injunctions now seem to be unnecessary as between courts in Brussels Convention and EC Regulation 44/2001 States.g.). 424 (Case C-116/02).425 While the issuance of anti-suit injunctions as between E. that decides on its jurisdiction in the light of the clause. 403. (2004) 10 JIML 131. see DMF 2004.69 E. in effect. that is entitled to decide whether it has jurisdiction in the light of the clause. 21 of the Brussels Convention 1968 or the court designated by the jurisdiction clause under art. it is the court where the proceedings were taken. 17. 21 over art. On the other hand. Hijazy (The Kribi)  1 Lloyd’s Rep. In consequence. The application of this rule will. Baatz. may not rule on its jurisdiction.  1 Lloyd’s Rep. such injunctions arguably continue to be available in cases where neither the Brussels Convention and E. thus reversing the controversial English decision in Continental Bank NA v. art.U. 425 See Y. Denmark continues to be governed by the Brussels Convention 1968. v.
See also Phillip Alexander Securities and Futures Ltd. 427 See. 1985.. U.49 at pp. 391-392. 206 at p. para. The Hari Bhum  1 Lloyd’s Rep. so that it was not necessary to stay proceedings until the Finnish Court had ruled on its jurisdiction in the light of the clause. 7. art. In cases subject to the Convention or the Regulation. 330 U.C. see the basic criteria of recognition and enforcement of foreign judgments set forth by the Cour de Cassation in its famous decision in the Munzer case. See also the corresponding provisions of the UNCITRAL Model Law on International Commercial Arbitration. adopted at New York. June 21. for example. 439. adopted at Geneva.S. 73 at p. 426 .K. as in other contracts.429 These basic conflict of law principles and rules constitute a strong support for jurisdiction and arbitration clauses in bills of lading. Clunet 1964. involving arbitration clauses. Bamberger  I. 1(2)(d). June 10. 27(1). 3.426 XVIII. 1958. See also Briggs and Rees. V(1)(d) (composition of the arbitral tribunal or arbitral procedure not in accordance with agreement of parties) and art. in force June 7. Civil Jurisdiction and Judgments. 28. third para. in particular art. For the U.C. holding that the first seized rule of art. State contrary to an anti-suit injunction issued in England in support of an English arbitration clause.427 Even if no anti-suit injunction has been issued. v.U. para. 34(1). being The Ivan Zagubanski  1 Lloyd’s Rep.. at art. c.. 215. 212.11 at p. corresponding to art. the Québec Civil Code 1994. and E. 5. 27(1) or the Regulation’s art.N. 428 See.L. 206 at p. and also disregards an anti-suit injunction prohibiting him from commencing or continuing such proceedings. 1959. art. Regulation 44/2001.302. 27 of EC Regulation 44/2001 did not apply to an arbitration clause. 27(1) of the Brussels Convention 1968. 36(1)(b)(ii). Regulation. because the Regulation did not apply to arbitration. 3 Ed.70 E.) and The Hari Bhum  1 Lloyd’s Rep.428 The major international instruments on the recognition and enforcement of foreign arbitral awards also preclude recognition or enforcement of arbitral awards rendered by an arbitrator or arbitral tribunal other than the one designated by the parties in their arbitration agreement. art. 27.K. endorsing the use of public policy as a ground for denying recognition and enforcement in England to a judgment rendered by a foreign court in another E. for example. art. see the Civil Jurisdiction and Judgments Act 1982.. and actually obtains a judgment or award from the foreign authority. 35(3)). arbitration being excluded from both the scope of both the Brussels Convention and the EC Regulation. on the ground that it violates public policy. 115 (C. 429 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention 1958”). the Brussels Convention 1968 at art. by virtue of its art. See Briggs & Rees. sect. 3 Ed. note Goldman. and a powerful defence against attempts to circumvent them. Non-Recognition of Foreign Judgments Where a party to a jurisdiction or arbitration clause or agreement requiring suit or arbitration in one country institutes legal or arbitral proceedings in another country contrary to his contractual bargain. See also EC Regulation 44/2001. V(2) (recognition or enforcement not in accordance with public policy of country where recognition and enforcement are sought). 34(1). For France. 1982. Civil Jurisdiction and Judgment. The decision invoked a similar decision rendered under art. for example. 2002.U. 2002.Pr. 36(1)(a)(iv) and art.A. enforcement could probably also be resisted on grounds of lack of (international) jurisdiction of the court or tribunal that rendered the decision or on grounds of public order. 21 of the Brussels Convention 1968. 32(1) in cases not subject to either the Brussels Convention 1968 or the E. 106.T. 3155(1) (lack of jurisdiction) and (5) (manifest inconsistency with public order as understood in international relations). but such refusal may be supportable on grounds that the foreign judgment rendered in a Member State disregarding a choice of law clause calling for suit in a non-Member State violates public order/public policy contrary to the Convention’s art. See. lack of jurisdiction may not be invoked to refuse recognition to a judgment rendered in another Member State (Brussels Convention. the decision may be refused recognition and enforcement in the contractual forum.
however.). Ho.A. in the tort of malicious prosecution and/or the tort of unlawful interference with business or trade). Ltd. Briggs & P. unreported. 4. Tan & N. 5) the in rem and/or in personam nature of the suit. See also A.). Damages for Breach of Jurisdiction and Arbitration Clauses and Agreements Besides anti-suit injunctions and the non-recognition of judgments and awards rendered by “non-contractual” foreign courts and tribunals. 432 See D. Carapelli SpA  1 Lloyd’s Rep. Rees. Doleman & Sons v. The Hamburg Rules and the Multimodal Convention. 1524 and 1527 (C. comparing the two positions and arguing that contractual damages for such breaches are problematic because of basic differences between arbitration and jurisdiction clauses. Zoller  1 W. Armco  1 Lloyd’s Rep. and 6) the propriety of granting or refusing a stay of proceedings. on the other hand. In addition. Akar  EWHC 797.. Civil Jurisdiction and Judgments. “Damages for breach of English jurisdiction clauses: more than meets the eye”  LMCLQ 46. Ossett Corporation  3 K. This development appears somewhat controversial within the British academic circles. It is therefore scarcely surprising that “choice of forum” clauses tend to be contested.431 The damages recoverable are the legal fees and related costs incurred by the defendant in investigating and defending the claims in the foreign proceedings instituted by the plaintiff in breach of the exclusive forum selection clause. 2) any legislative constraints on that jurisdiction. The forum selection clause is usually a “boilerplate” term of the bill. It has been recognized for some time that contractual damages may be awarded for the violation of an agreement to arbitrate in England. forum selection and arbitration agreements may now be further reinforced (in England at least) by the awarding of damages for their breach.). 25 (H. 257 (C. supporting the availability of contractual damages as a sanction for the breach of an exclusive English jurisdiction clause.g. para. “Breaking promises to litigate in a particular forum: are damages an appropriate remedy?”  LMCLQ 435. if any.). 4) the wording and effect of the clause in the bill or incorporated document (e.L. “Anti-suit injunctions in cross-border insolvency: A restatement” (2003) 52 ICLQ 697. 1517 at pp. 293-296.B. the possibility of such damages also being awarded for breaches of exclusive English jurisdiction clauses has also been recognized by English courts.g.A. seldom negotiated or expressly consented to by the shipper or the consignee.L. 430 . of which he may avail himself notwithstanding See.430 More recently. but nevertheless suggesting that an alternative basis for such damage awards may be found in English tort law (e. When such contestation arises. Mantovani v. who criticizes this development. connection with the parties and their contract and is typically more convenient to the carrier than to cargo. Conclusion Virtually all standard-form bills of lading in contemporary maritime commerce require disputes to be resolved in a stipulated court or by an arbitral tribunal. But see also L.26 at pp. for example. according to a specified national law or international carriage by sea convention. 3) the appropriateness of sending the case elsewhere for trial or arbitration. Neither the Hague Rules nor the Hague/Visby Rules regulate jurisdiction or arbitration.C.71 XIX.432 XX. the forum court usually follows a six-step process. and A/S D/S Svendborg D/S of 1912 A/S Bodies Corporate trading in partnership as ‘Maersk Sealand’ v. 375 (C. inquiring into: 1) its own jurisdiction. See also Chee Ho Tham. Yeo. 2002.R. London. a charterparty). Union Discount Co.A. the designated jurisdiction frequently has little. 3 Ed. v. provide the cargo claimant with options of places in which to sue or arbitrate. 431 See Donohue v.
by comparison. is the clearly more appropriate venue for adjudicating the dispute. Because few major shipping nations are party to the Hamburg or the Multimodal conventions. 119 at pp. In the presence of a jurisdiction or arbitration clause.). Courts in common law countries and some mixed jurisdictions are empowered to exercise discretion. explains much of the unwillingness of major shipping nations to becoming party to the Hamburg regime. 237. 434  1 Lloyd's Rep. however. Where no statute prohibits or restricts jurisdiction clauses. far from uniform in this important area. rather than the contractually designated one. despite a foreign forum selection or foreign arbitration clause. and genuinely agreed to by the shipper and consignee. 435  2 Lloyd's Rep. unfortunately. where such an option would be available if the Hamburg Rules applied to the contract of carriage.g. 123-124 (C. the Lugano Convention 1988. or reflects established practices between the parties.A. however. and now EC Regulation 44/2001 on jurisdiction and the enforcement of judgments in civil and commercial matters.433 The options enable claimants to institute proceedings in places having some genuine connection with the contract of carriage and its performance. the Brussels Convention 1968. following the principles laid down in The Eleftheria434 and The El Amria. on grounds of forum non conveniens. in ordering stays of proceedings. all permit choice of forum by contract. 433 . as a condition of release from his jurisdictional “bargain”. Australia. British and Commonwealth courts. connections with the competing jurisdictions and the law applicable to the dispute. National law is. Most standard forum selection provisions in bills of lading would be enforceable under those rules. rather than the defendant. to establish that the local forum court. or generally conforms to international usage in the trade concerned. Canada.435 require the plaintiff to show “strong cause” why he should be permitted to proceed elsewhere than where the contract stipulates. has permitted Canadian suit or arbitration. so as to send the case to its “natural forum”. National legislation in certain countries (e. In Europe. New Zealand and South Africa) prohibits parties from “ousting” the jurisdiction of the national courts by way of forum selection clauses. including the location of witnesses and evidence. In French internal law. the Nouveau code de procédure civile lays down strict criteria under which contractual forum selection provisions will be upheld. requiring them to be between merchants. the forum non conveniens analysis has been articulated differently and it also requires the plaintiff. although such laws typically treat arbitration clauses more liberally than jurisdiction clauses. All relevant circumstances are considered. however. It is by no means easy. to overturn a clearly-worded The resistance of many carriers and their underwriters to the prospect of cargo consignees exercising those jurisdiction/arbitration options and thus overriding boilerplate forum clauses in carriers’ bills of lading. courts in such nations are thrown back on their national law in assessing the enforceability of the impugned clause. as well as convenience and expense for the parties and the juridical advantages and disadvantages of proceeding in one or other venue.72 any inconsistent forum selection or arbitration clause in the bill of lading. clear and apparent on the face of the bill of lading. in international shipments to and/or from their ports. where the relevant clause is written or evidenced in writing. at the cargo claimant’s option. in its Marine Liability Act.
528. Faculty of Law McGill University Montreal.tetley@mcgill. receivers and underwriters are to be well served in the years ahead. 1972 AMC 1407 (1972).ca website: http://tetley. because they have been found incompatible with the Brussels Convention 1968 (and presumably with EC Regulation 44/2001 as well). The violation of exclusive jurisdiction clauses and arbitration clauses and agreements is also strengthened today by conflict of laws rules precluding recognition and enforcement of foreign judgments and awards rendered in breach of such provisions and (in England) by the possibility of damage awards for such violations. Nor is it easy in the United States. used to enforce jurisdiction and arbitration clauses.ca/ 436 437 407 U. obliging cargo claimants to meet the heavier onus of proving that enforcement of the clause would be unreasonable. Q. 515 U. in a more uniform manner than at present. cargo claimants must often travel long distances and incur significant costs in order to seek justice in a forum with at best a tenuous relationship to them or their transactions. but within Europe it increasingly appears that their employment to enforce jurisdiction clauses is invalid.mcgill. Quebec. Jurisdiction and arbitration of marine cargo claims thus remains a controversial issue and an ongoing challenge for maritime carriage of goods law everywhere.C.S.S. 1.73 forum clause applicable to the claim. A fair and effective international cargo liability regime must strive to resolve this important problem. Canada e-mail: william. . the importance of the convenience of the litigants and the connections of the case have declined in significance. where since the Bremen436 and Sky Reefer437 were decided. and are. if shippers.law. Prof. William Tetley. carriers. and because they may be unnecessary in the light of recent interpretation of the provisions of those instruments. 1995 AMC 1817 (1995). In consequence. Anti-suit injunctions can be. fraudulent or repugnant to public policy – a daunting task.
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