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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
counsel to Langlois Kronström Desjardins (Langlois Gaudreau O’Connor) of Montreal.. analyst and writer on law – in other words. B. William Tetley. a doctor son and what could be a spoiled grandson. has a lawyer son. as Director of the Tulane Maritime Law Center. I have known him for twenty-five years as a devoted and very competent law teacher. which is much more difficult. McGill University. Professor McGill Law Faculty Montreal.∗ Preface PROFESSOR ROBERT FORCE It is an especial pleasure to join with colleagues from around the world in honouring Robert Force.C.A. Wilkins. as well as a researcher.4 JURISDICTION AND FORUM NON CONVENIENS IN THE CARRIAGE OF GOODS BY SEA Prof. a third-year student at the Faculty of Law of McGill University and to Robert C. Bob Force combines all this with a happy. Q. B. He has also been a kind and generous friend. He has been happily married to Ruth for 42 years. so that the Tulane Maritime Law program is outranked nowhere else.. William Tetley. he can also be a pleasant and popular guest. Niels F.C. . Tulane University. He is also an administrator who.L. judge of good wine and remarkable and generous host.C. cheerful persona. Distinguished Visiting Professor of Maritime and Commercial Law. Johnsen Professor of Maritime Law at Tulane University Law School. as a scholar. Q. took the great tradition of maritime law teaching at Tulane and gave it form. An esteemed chef. order and direction. The author is indebted to Vanessa Rochester. for their assistance with the preparation and correction of the text. CANADA ∗ Professor of Law. With appreciation and gratitude.
S. The Capricorn.R. 339 at p. 451. Supreme Court justices. 2 The other two branches are choice of law and recognition of foreign judgments. 515 (1932). 207.C. 1994 AMC 913 at p. 865-868. and became part of the common law of many States. 684 at p.3 so is it essential that choice of jurisdiction rules used by various seafaring nations be the same. 344. See Tetley. citing Piper Aircraft Co. which passage was quoted in Gulf Oil Corp. v. Perusahaan Umum v. 248 note 13. at pp. v. who mentions Société du Gaz de Paris v. 209.. Just as it is imperative that maritime law be uniform and international and that choice of law rules be similar throughout the world. where he refers to “the Scottish legal doctrine of forum non conveniens”. Introduction In the past.S.S. See Tetley. motions for stay have been received more sympathetically. where the House of Lords recognized forum non conveniens as a doctrine of general application in Scotland. The Jerusalem 13 Fed Cas. 285 U. 918 (1994). 71-72 (5 Cir. 422 at p.S. v. See also the reference to “Scottish authorities” in Antares Shipping v.S. Co. 413. at pp. 501 at p. 1994 AMC 913 at p. 7293) (C.C. v.S. Miller 510 U. have usually refused motions calling for the stay of proceedings. as well as the yet more recent movement towards international conventions on procedure. 504 (1947). 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. 422-423. 420-421. 443 at p.C. 65 F. v.D. The Maggie Hammond 76 U. (9 Wall. Gilbert 330 U. where three of five U. as does Lord Reid in The Atlantic Star  2 Lloyd's Rep. Unfortunately that is not the case today. 1983). S. Compania Colombiana del Caribe) 339 U.S.) 13.) 435 at p. 516 (1932). although deciding that forum 1 .4 while it has been known much earlier in some civil law regimes5 and in Admiralty law. 1982 AMC 214 at p.2d 1231 at p.L. 5 See Lord Diplock in The Abidin Daver  1 Lloyd's Rep. ibid. 365-366 (1885). 450. in recognizing that forum non conveniens “originated in Scotland. 3 Ibid. In consequence. 457 (1870). so that a whole new body of forum non conveniens law has sprung up. 200 and Lord Wilberforce at p. 918 (1994). The Cali (Swift & Co. however.1 Choice of jurisdiction is one of the three major branches of conflict of laws. A/S Den Norske Afrika Og Australie Line. 285 U. See American Dredging Co. Recently.A. Tel Aviv 711 F. v.S. 1994 at pp. 697. courts properly seized with a dispute. because of the mobility of ships (the usual defendant) and the fact that carriage by sea very often involves more than one jurisdiction. 1933).2d 392 (2 Cir. Reyno 454 U. Miller 510 U. Paterson Steamships Ltd.S. 223 note 13 (1981). International Conflict of Laws. 4 Canada Malting Co.7 Canada Malting Co. 1985 AMC 67 at pp. 443 at p. v. 197 at p. 413 at pp. v. 1235.” 6 The Belgenland 114 U. 37-43. 449. Navigation (Les Armateurs Français)  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. the courts of all nations have jealously guarded their jurisdictions and have looked unfavourably on clauses in contracts which called for suit elsewhere. 355 at p.L. 791 and 867. (H. United States Merchants' & Shippers' Ins. 1814). (1925) 23 L. 1932 AMC 512 at p.2 and is of major importance in maritime law. one must appreciate that forum non conveniens has been used by both courts of Equity and of common law. See also American Dredging Co. 559 (No. Rep. 1950 AMC 1089 at p. 235 at p. 1099 (1950). at pp. To fully understand forum non conveniens and the discretionary right of the trial judge. The use of a consistent conflict of law methodology would be another major boon to transnational harmony in private international law.S. Paterson Steamships Ltd.  2 S.6 which latter has its closest connection with the civil law. 1932 AMC 512 at p.5 I. Mass.
c. R. For example. 456. 439-440. 1931. 422 at pp. 1968. signed at Geneva. it must dismiss the suit. consideration is given to the very special Admiralty problem of declining jurisdiction when an in rem arrest of a ship has been made. not in force. 1924. Barking Corporation  1 K.).C. Tetley. however. the court seized with the case must decide if it has jurisdiction12 by virtue of the legislation which created it. 13 The first principle of Lord Brandon in The El Amria  2 Lloyd’s Rep. sect. 1980. There are two distinct kinds of jurisdiction therefore: “the first is jurisdiction to decide the action on its merits.Rev.13 Only if it has jurisdiction may it proceed. 49(3) of the Supreme Court Act. 1985. and in force November 1. signed at Brussels. 123 (H. Canada and France in respect to carriage of goods8 under bills of lading. The Capricorn  2 S. February 23. U.K. 1981. In some jurisdictions. signed at Hamburg March 31. the United Kingdom. “Maritime Law as a Mixed Legal System (with Particular Reference to the Distinctive Nature of American Maritime Law. Choice of Jurisdiction – Six Steps to Follow Choice of jurisdiction problems may be settled by the following six steps taken in order. See also Canada’s Federal Court Act. and in force June 23.B. 54). or (b) where for any other reason it is in the interest of justice that the proceedings be stayed.14 Secondly. Tetley. out of hand. it was not deciding whether it had jurisdiction to determine the case on its merits. 11 United Nations Convention on International Multimodal Transport of Goods. otherwise. Tetley. in William Glyn's v. Mar. August 25. Int’l L.L. 9 Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading. 1998. Astro Dinamico  1 Lloyd's Rep. 9-24 and 473-474. and in force June 2. and the second is jurisdiction to decide whether the Court has jurisdiction of the former kind. signed at Brussels. 10 United Nations Convention on the Carriage of Goods by Sea.C.6 The present article describes choice of jurisdiction rules and the principle of forum non conveniens in Admiralty in the United States.” 7 Tetley.” . Tetley. 453 at p. Chap. nevertheless agreed that “… within federal courts it [forum non conveniens] may have been given its earliest and most frequent expression in admiralty cases. in Antares Shipping v.) reads: “assuming the claim to be otherwise within its jurisdiction…” 14 The House of Lords.J. 107. at pp. 317.B.C. F-7. the Visby Rules. the court must look to the law which applies to the case before it. stay proceedings in any cause or matter.J. 1978. 137. to determine if there is a direction in that law as to jurisdiction. a court which may not have jurisdiction on the merits may have jurisdiction by statute to decide a question of stay. II.A. Also examined is the effect of the Hague Rules.L. 2 Ed. See also comments by Laskin. 8 International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading. Finally.9 the Hamburg Rules10 and the Multimodal Convention11 on jurisdiction clauses and on the principle of forum non conveniens. 12 There is no intention in this article to go into questions regarding the jurisdiction conferred upon various courts by national legislation. 1977. reprinted  ETL 469. held that it had jurisdiction to entertain an application for a stay (in virtue of sect. Firstly. L..” See Wilkinson v. 119 at p. “A Definition of Canadian Maritime Law” (1996) 30 U. the Australian Carriage of Goods by non conveniens was not a characteristic feature of admiralty law.1 at pp. 50: “(1) The Court may. (a) on the ground that the claim is being proceeded with in another court or jurisdiction. 1981. C. 725 (C. & Comm. 2003. in its discretion. in so doing. Which Benefits from Both Its Civil and Common Law Heritages)” (1999) 23 Tul. International Maritime and Admiralty Law. Maritime Liens & Claims. 1992. “The General Maritime Law – The Lex Maritima” (1994) Syracuse J. but that. 7-60.R.S. May 24. 721 at p. c. of course.
if it is reasonable. Statutory Rules 1998. Appendices “P” and “Q”. the incorporation by reference and notice of the incorporation must be considered carefully. see Tetley. 1978 at p. 174. Marine Cargo Claims. Fifthly. to which it is called upon to defer. adopted at Brussels.. 3 Ed.g.. ibid. 861-862 and 863-864 respectively.. 1931 (commonly known in English-speaking countries as the "Hague Rules"). 1111-1120. Montreal. Nevertheless. 1988 at pp. which arrest normally gives jurisdiction in the place of the arrest. as amended by the Carriage of Goods by Sea Regulations 1998. 160 of 1991 (Cth. Such clauses ordinarily call for suit or arbitration in the jurisdiction most convenient to the carrier. 17 See.e. 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. the terms and specific wording of that clause must be considered carefully.. consignees or endorsees. 2) 15 The Hague/Visby Rules 1968/1979 No. Otherwise the court will retain the suit in its own jurisdiction and will refuse the motion for stay. if the new jurisdiction is deemed to be convenient and proper in the circumstances. the court will stay the suit by an order which will preserve the rights of the parties. e. The Hamburg Rules on the Carriage of Goods by Sea. is appropriate and whether the balance of convenience favours the case being heard there. Fourthly. Inc. sect. International Maritime and Admiralty Law. 2003. to verify that such incorporation is complete and valid. both types of clauses have generally been held valid by courts in bill of lading disputes. issued by BIMCO. and in force as of June 2. and an English translation. i. Sixthly. Mankabady. 1997 at clause 3. if there is a jurisdiction clause in the contract (the bill of lading). 16 International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading.17 Bills of lading under the Rules are often not signed by the shippers. 98. 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. 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. 1121-1129. 1924. at pp. the court must decide if the other jurisdiction.7 Sea Act 199115 holds invalid any clauses in most sea carriage documents ousting Australian jurisdiction. who therefore do not have the jurisdiction/arbitration provisions brought specifically to their attention. August 25. See also two sample clauses in S. Leyden/Boston. 11(1) and (2).). ed. If the jurisdiction clause is not in the bill of lading (or other immediate evidence of the contract). provided they are clear and unambiguous. the BIMCO Liner Bill of Lading (Conlinebill 2000”). of November 2000 at clause 4. See the official French text reproduced in Tetley. Thirdly. III. Sijthoff. August 22. but in some document (such as a charterparty). very often in the place of the carrier’s principal place of business. No. See also BIMCO's non-negotiable Liner Sea Waybill (LINEWAYBILL"). at pp. For the texts of these two forms. as amended. . Les Éditions Yvon Blais.
December 21. 20 This common Nordic Maritime Code came into force on October 1. at the petition of the defendant. as . 31.E. 2) the place where the contract of carriage was made if the defendant has a place of business. Again.1978). A number of countries have enacted national legislation in an effort to give effect to the Hamburg Rules options as to jurisdiction. 1992. 2 Ed. published in Swedish and English by the Axel Ax:son Johnsons Institut för sjörätt och annan transporträtt.18 like the original Hague Rules. however. adopted at Brussels.R. 1984) (commonly known as the "Visby S. Finland. the options as to places for suit are similar to those permitted by the Hamburg Rules.10. adopted at Brussels. to designate the place of suit after a claim under the contract of carriage by sea has arisen. L. whether or not those parties have really taken cognizance of their terms. are commonly known as the "Hague/Visby Rules 1968/1979".R. The Hague Rules 1924. Norway and Sweden). The arrest is valid but. as between the Danish and Norwegian versions of the Code. nevertheless adopted a common maritime code in 1994. and in force November 1. Protocol 1979. the suit must be transferred to an acceptable jurisdiction defined in art. art. Jure AB. updated to June 30. the Swedish Maritime Code. 3) the port of loading. 21(5) permis the parties. as amended by the Visby Protocol 1968 and the Visby S. by agreement. 304/36. while still adhering to the Hague/Visby Rules. branch or agency there the contract through which the contract was made.1972.C.E. but in some cases with certain national qualifications. 2000. 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. 1994. Art. however.8 The Hague/Visby Rules 1968/1979. on the one hand.J. 299/32. for example. Protocol 1979"). L. 3) The Hamburg Rules 1978 The Hamburg Rules19 at art. 21 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. 1978. The numbering of the articles differs. 21(2) solves the difficult problem of jurisdiction being acquired by the arrest of the ship in rem.J. and 5) any additional place designated for that purposes in the contract of carriage by sea. signed at Hamburg on March 31.D. 4) the port of discharge. 30. 1968 (O. nr 22. contain no provisions on jurisdiction or arbitration. and the Finnish and Swedish versions. 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 1968.12. 21(1) authorizes the cargo claimant. See. for example. see English text in O. 1968 (in force June 23. at his option. In particular. The Nordic countries (Denmark. In addition. 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.D. 21(1) upon the defendant providing adequate security to ensure payment of any subsequent judgment. 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. on the other. Art. 2001. adopted at Brussels on September 27.C. 1979 (in force February 14.20 Under this Code. 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. February 23. Stockholm. 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..
Liechtenstein. the parties may agree on a place for instituting an action after a claim has arisen.C. 60.E. adopted at Lugano. branch or agency through which the contract was made. “Arbitration & Jurisdiction in Carriage of Goods by Sea and Multimodal Transport – Can we have international uniformity?”  ETL 735 at pp.22 both of which conventions make the domicile of the defendant the major criterion of jurisdiction. 123 of 1997. or a negotiable document of title . sect. Regulation 44/2001 of December 22. 2) the place where the multimodal transport contract was made. September 16. This Schedule of Modifications is Schedule 1A of the 1998 Regulations. Chap. para. at art. No. were authorized by the Carriage of Goods by Sea (Amendment) Act 1997. 198024 has similar provisions at art. 319-321. relating to the carriage of goods from any place in Australia to any place outside Australia or subsequently amended. and as later replaced for all European Union states.25 as amended by the Carriage of Goods by Sea Regulations 1998. 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. or 4) the place of delivery of the goods. 7(2) of which authorized the addition of a “Schedule of Modifications” to the 1991 statute as amended.C. effective March 1. 16.1.23 4) The Multimodal Convention 1980 The Multimodal Convention. 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. “Scope of Application. 6. By art. 24 United Nations Convention on International Multimodal Transport of Goods. 2000 (O. 11 of the Australian Carriage of Goods by Sea Act 1991. 26. 25. not in force.2001).C. by E. 23 See Swedish Maritime Code.) 26 Statutory Rules 174 of 1998.2. paras. the amended Hague Rules28 apply. Norway and Switzerland). to mean any of the following: a bill of lading. 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. referring to arts.1988).9 Convention 1988. Schedule 1. Choice of Law and Jurisdiction in the New Nordic Law of Carriage of Goods by Sea” (1996) Il Diritto Marittimo 308 at pp. 13. 310 and 311 of the Danish Maritime Code.11. L. 753-754. Allan Philip. 25 No. IV. The Carriage of Goods by Sea Regulations 1998 amending the Carriage of Goods by Sea Act 1991.E. sect. except Denmark. 27 The term “sea carriage document” is defined in Schedule 1A (Schedule of Modifications) of the Carriage of Goods by Sea Regulations 1998. 22 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. L 12/1. 2002. or 3) the place of taking the goods in charge for international multimodal transport.J.1 and 6. 1(1)(g). See also Tetley. in force July 1. provided that the defendant has there a place of business. or 5) any other place designated for that purpose in the multimodal transport contract and evidenced in the multimodal transport document.26 reads: “11 (1) All parties to: (a) a sea carriage document27 to which. (O. 319/9. 1980. except in respect to actions in rem. 1998. 1988.J. 26(3). For example. or relating to a contract of carriage to which. 160 of 1991 (Cth. signed at Geneva on May 24.
at pp. 229 (N. 142 at pp. 3 Ed. 783-784.e.R. so as to add sect.  2 N. 9(1) of the Act. declared that a clause calling for actions to be tried in a French Court was invalid. 374 (Aust. 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).S. v.S. See Tetley.). 191. Tetley. 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). Ct. the amended Hague Rules apply.10 (b) a non-negotiable document of a kind mentioned in subparagraph 10(1)(b)(iii). are taken to have intended to contract according to the laws in force at the place of shipment. Sup. 9 of the former 1924 statute as interpreted in the Wilson decision (supra). 544 (High C. 28 The “amended Hague Rules” refers to the Hague/Visby Rules 1968/1979. as amended for Australia by the Schedule of Modifications (Schedule 1A) of the Carriage of Goods by Sea Regulations 1998. 164-165 (Fed. in appeal  2 Lloyd's Rep. 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.): A French bill of lading for a shipment from France to Australia called for suit in France. 29 Subsect. (Australia) Ltd. Mitsui & Co.) 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.R.”30 This legislation is very similar to sect. 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). Kiukiang Maritime Carriers (The Kiukiang Carrier)  159 A. note 16.” 30 The Australian Carriage of Goods by Sea Act 1991 was amended by the Carriage of Goods by Sea (Amendment) Act 1997. No. and has received a similar interpretation.). 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. of Aust. See also Wilson v. Aust. See also Akai Pty Ltd. See. like sect. is not negotiable. (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. or (ii) a non-negotiable document of a kind mentioned in subparagraph 10(1)(b)(iii) relating to such a carriage of goods. 11(3) to the 1991 statute. 31 No.R.). Ltd. v. The People's Insurance Co.). Ct. 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. C. being a contract that contains express provision to the effect that the amended Hague Rules [i. 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.L. Sup.32 31 that is similar to a bill of lading and that contains or evidences a contract of carriage of goods by sea. International Conflict of Laws.W. or relating to a contract of carriage to which. Limited v. upheld by the Australian High Court. John Churcher Pty Ltd. the Hague/Visby Rules 1968/1979] are to govern the contract as if the document were a bill of lading..W. Marine Cargo Claims. England.L. relating to the carriage of goods from any place outside Australia to any place in Australia. The Supreme Court of New South Wales.L. however. note 80.29 relating to such a carriage of goods. See Hi-Fert Pty. . High C. 123 of 1997 (Cth.R. 1994 at p. (1974) 24 F. 22 of 1924. 179 (N. but only on condition that the arbitration is conducted in Australia. Compagnie des Messageries Maritimes  1 Lloyd's Rep. or a bill of lading that.S. (1996) 141 A.W. by law. 1988. 153. 9 of Australia’s former Sea-Carriage of Goods Act 1924.L. 32 The Federal Court of Australia has been held that sect 11 of the Carriage of Goods by Sea Act 1991.
See Zhang Jinxian.e. 1993. 37 See M. Journal officiel. The court selected must be clearly identified in the bill and. in French internal law. therefore. “[n]otwithstanding any purported ouster of jurisdiction.C. however. exclusive jurisdiction clause or agreement to refer any dispute to arbitration”. for example. prohibiting the ouster of local jurisdiction. 384. 499 at pp. 7. the Civil Procedure Law 1991 of the People’s Republic of China. Rèmond-Gouilloud. 1966. para. Presses universitaires de France. 36 The requirement that bills of lading be signed by shippers was repealed by Decree No. 1991. Loi relative aux transports des marchandises par mer. No. Act 1 of 1986. Jurisdiction Clauses Restricted by National Law The former French domestic Law of April 2. at art. Droit Maritime. D. 38 See. although the article does not expressly preclude selection of a foreign forum. jurisdiction clauses in bills of lading may only be invoked against merchants and these clauses must figure prominently in the bills.) jurisdiction clauses in bills of lading. under art. the burden of making such proof resting with the carrier.C. 400 and para. 1997. 257 of the Civil Procedure Law 1991 is more liberal as regards foreign arbitration. foreign jurisdiction clauses in ocean bills of lading are recognized by Chinese maritime courts only where the foreign country concerned recognizes Chinese (P. Art.C.38 See New Zealand’s Maritime Transport Act 1994.R. where the foreign jurisdictions designated by such clauses enforce forum selection provisions in similar contracts calling for suit in the P. 244. which permit any person carrying on business in the Republic. which preclude the ouster of New Zealand jurisdiction by foreign jurisdiction clauses in bills of lading. 193635 at art. 386-387. to agree in writing to trial by the court at the place that has an actual connection with the dispute. 66-1078 of December 31. para. 1936.R. similar documents of title or nonnegotiable documents covering shipments to and from New Zealand.1937.R. as well as the consignee or holder of any bill of lading. Pedone. “Arbitration & Jurisdiction in Carriage of Goods by Sea and Multimodal Transport – Can we have international uniformity?”  ETL 735. sects. April 11. V.1). Nevertheless. I. 346347. 37 of Decree No.34 have enacted similar nationalistic legislation on jurisdiction clauses in bills of lading and other sea carriage documents. as well as inside. Paris. 2 Ed. 447 at pp. and jurisprudence cited there. para.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. International Maritime Bureau. 621 at p. A. para. thus being slightly more liberal than the corresponding Australian statute which allows only Australian arbitration.11 A number of other countries. 104 of 1994. although the requirement that the shipper sign the bill was repealed in 1987.R. 533 at pp. See generally Tetley.’s maritime courts. London. 34 See South Africa’s Carriage of Goods by Sea Act 1986. which permits both parties. 87-922 of November 12. however. to bring an action on the bill. 426427 and para. such as New Zealand33 and South Africa. 445 at p. in a case concerning contract disputes or disputes over property rights involving foreigners (including maritime contract disputes). amending art. The word “court” in this context. China’s Maritime Courts and Justice. 1997. having an actual connection with the case.C. 3(1) and 3(2).C.36 it must nevertheless be proven that cargo genuinely consented to the clause. Vialard. although that statute does permits arbitration of cargo claims outside. 210(1) and (2). the autonomy of parties to agree on a foreign jurisdiction for litigating their cargo claims is severely restricted. 48. 48 of France’s Nouveau Code de procédure civile. 35 Loi du 2 avril 1936. As of 1997. adopted by the Fourth Session of the Seventh National People’s Congress of the People’s Republic of China on April 9. New Zealand. waybill or like document for the carriage of goods inbound to South Africa. Droit Maritime. waybill or document before the competent court in the Republic.. Today. In practice. Witherby Publishers.2 at p. 33 . sect. 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). 1987.C.4. would seem to mean the court of the P. only Dutch and German jurisdiction clauses were recognized in the P.
2003 AMC 305 (Fed C.C. after a claim arises under the contract. 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. balanced and 39 40 S. may choose to litigate or arbitrate outside Canada. the parties to a contract referred to in that subsection may. branch or agency in Canada. in situations where that option would exist under Hamburg. or the intended port of loading or discharge under the contract. however.S. 6.A. Sect. The Castor (2002) 297 N. In effect. But if Hamburg does not apply.” Sect.). The Viljandi  ETL 760 (Fed. 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. in cases similar to those enumerated in arts. in force August 8.) s. 46. under certain conditions. even where Hamburg does not apply to the bill of lading contract of its own force or through incorporation by reference.12 Canada. under sect.S. “(2) Notwithstanding subsection (1). 6. of course. c.R. If the Hamburg Rules apply to the contract. . the residence or place of business of the defendant or the place of contracting).c. alternatively. the proposal is a way of giving the cargo claimant a Canadian litigation/arbitration option.A. the cargo claimant may sue in the contractually stipulated place or in any of the other optional venues listed in those Rules. C. while still favouring local jurisdiction and arbitration. (b) the person against whom the claim is made resides or has a place of business. It does not prohibit ousting Canadian jurisdiction over bill of lading disputes. where (a) the actual port of loading or discharge.). to sue or arbitrate in Canada. in accordance with the contractual clause or.39 provides the marine cargo claimant with the option of suing or arbitrating in Canada. see IncremonaSalerno Marmi Affini Siciliani (I. It seems fair. of Can.C. under its Marine Liability Act. For decisions on the application of sect. Nestlé Canada Inc. 21 and 22 of the Hamburg Rules.M. 46(1) of Canada's Marine Liability Act. S.40 In the latter case. is significantly less restrictive and nationalistic than the corresponding legislation in Australia.n. New Zealand and South Africa. but permits the cargo claimant to opt instead for suit or arbitration in Canada. or (c) the contract was made in Canada. the claim must have arisen after the jurisdictional provision has been agreed. 2001. 2001. the plaintiff. as an alternative to suing or arbitrating abroad as per the bill of lading. 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. is in Canada. 151. 46. v. c. despite the presence in the bill of lading of a foreign jurisdiction or a foreign arbitration clause.. designate by agreement the place where the claimant may institute judicial or arbitral proceedings. 2001. v.
J. 388/1.10. 3 Ed. 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. L.  LMCLQ 281. 304/1. 285/1.01. 1968. 45 See. 17 as it has evolved in wording since 1968.12. see English text in O. to be effective under art. 43(1) and (2) and Schedule 3 of this Act).97 at p. following the making of a report to Parliament by the federal Minister of Transport on the advisability of doing so before January 1.E. 106). 30.b.15/1. 2005 and every five years thereafter (see sects. 31. requiring that a jurisdiction clause.” 46 See. the decision of the Court of Justice of the European Communities in The Tilly Russ  ETL 3 at p. L.  ECR I-911. rendered under art. The Brussels Convention 1968 was re-amended three more times. Mainschiffahrts-Genossenschaft Eg v.C. Finland and Sweden (O. 41.J.44 Art.C.E. and of which the weaker party remains unaware until it is too late. and Austria. signed at Luxembourg on October 9. L.  E. be the “subject of a consensus between the parties. to clauses confirming a previous oral agreement between them and to clause forming part of “the steady business relations” between the parties.45 Subsequent decisions of the European Court of Justice.E. Some of these accession conventions made substantive amendments to the Brussels Convention 1968.. Finland and Sweden.1978). See also Estasis Salotti di Colzani Aimo e Gianmario Colzani v. 55. Although this and other ECJ decisions maintain that the formalities required by the article are themselves “… a full.C.46 Although under its Marine Liability Act. Civil Jurisdiction and Judgments. (see sects. which came into force on January 1. 1982. 30. 299/32. 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. 17. 43 Protocol on the interpretation of the 1968 Convention by the European Court.C. 27.K. in order to protect the weaker bargaining party from foreign forum selection clauses inserted in boilerplate language by the stronger party. which must be clearly and precisely demonstrated. 304/36.K.H. it has also adopted the Hamburg Rules 1978 and retains the option to bring those Rules into force.13 reasonable.C.C.1997). 15. for example. 2002.C. 44 Convention on the accession to the 1968 Convention and the 1971 Protocol of Denmark. on the admission to the European Union of Greece. 2.m. provided a rule requiring the courts of Contracting States to respect written jurisdiction agreements. 1996 for Austria. the Accession Convention of May 26. See generally Geoffrey Brice. RUWA Polstereimaschinen G. as so amended and re-amended.98). was amended by the 1978 Accession Convention and subsequent Accession Conventions. Spain and Portugal. Les Gravières Rhénanes SARL. there must be the possibility of attacking 41 . LLP. London.J. 41. para. perfect and sufficient guarantee of the existence of consent or consensus” (see Briggs & Rees. L.E. U. See of the Accession Convention of October 25. 1982 for Greece (O. 45(1) and (2) and Schedule 4 of the Act).1972. pending Canada's possible eventual transition from the Hague/Visby Rules to the Hamburg Rules. 1978 (O. c. Case No. 1831. 1971 and in force September 1. the Republic of Ireland and the United Kingdom.1978). 44.12..41 VI. C-106/95.J.10. 1989 for Spain and Portugal (O.J. L. 1975. signed at Luxembourg on June 3.E. C. In the U. the Brussels Convention 1968 was given the force of law by the Civil Jurisdiction and Judgments Act 1982. 03. 17 of the Brussels Convention 1968.U. Member States. 42 Hereinafter described as the 1968 Brussels Convention (O. have reaffirmed the essential importance of a genuine agreement between the parties as to the foreign jurisdiction concerned. 1987. 31.R.J. which includes the 1971 Protocol of Interpretation43 annexed to it.1989) and the Accession Convention of November 29. for example.42 This Convention. “Maritime Claims: The European Judgments Convention”.10.E. The rule was applied to bill of lading jurisdiction clauses agreed to by the parties. as subsequently amended by various accession conventions. 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.
Like the old Brussels Convention. “2. (i. If the parties.1988).e.C.14 2) EC Regulation 44/2001 The Brussels Convention 1968 was replaced. that court or those courts shall have jurisdiction. 17 of the Brussels Convention 1968 as amended by the various Accession Conventions. Art. Norway and Switzerland. 23(1)(a). very similar to the Brussels Convention 1968. This latter expression has yet to be interpreted by the European Court. The Lugano Convention of September 16. “L’entrée en vigueur du règlement communautaire no 44-2001 du 22 décembre 2000 concernant la compétence judiciaire. 23 (1) to (3). also continues to govern three of the four remaining remaining States of the European Free Trade Association (EFTA). 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. 2002. 47 Denmark chose not to bound by the EC Regulation. 319/9. 1988 (O. 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.. which applies directly (i. see Pierre Bonassies. 2000) in matters of civil jurisdiction and the enforcement of judgments. duress. except for Denmark. in respect of civil jurisdiction and the enforcement of judgments. but not Liechtenstein). 49 The EC Regulation. Such an agreement conferring jurisdiction shall be either: (a) in writing or evidenced in writing.J. misrepresentation or frustration. 25. 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. 48 EC Regulation No. and in force in all Member States of the European Union except Denmark. or (b) in a form which accords with practices which the parties have established between themselves. For commentary. Any communication by electronic means which provides a durable record of the agreement shall be equivalent to ‘writing’. unlike art. if the electronic communications leave a “durable record”.J. provides for jurisdiction clauses and agreements evidenced by electronic documents to be treated as “writings” for the purposes of art. the most pertinent portion of the new Regulation.E.e. and regularly observed by. la reconnaissance et l’exécution des décisions de justice en matière civile et commerciale”  ETL 727. 2000. the EC Regulation establishes uniform rules on civil jurisdiction and the enforcement of judgments in civil and commercial matters. at p. 107). and also binds Poland (since that country acceded to the Lugano Convention on February 1. and therefore is still governed by the Brussels Convention 1968 in its relations with the other Member States of the E. or (c) in international trade or commerce. parties to contracts of the type involved in the particular trade or commerce concerned. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. For the text.11. in any court of a European Union Member State. one or more of whom is domiciled in a Member State.49 the jurisdiction clause as invalid for fraud. see O. Its rule on jurisdiction agreements. adopted on by the Council of the European Union on December 22. L.U. read as follows: “1. mistake. L 12/1 to L 12/23. 23. . 17 of the Brussels Convention 1968. as of March 1. at art. is couched in terms very similar to those of the most recent text of art. 2002.E. except Denmark. Iceland. without the need for any implementing national legislation) to proceedings instituted on or after March 1. Briggs and Rees suggest that such a possibility may lie in the development of an autonomous definition of “agreement” (see ibid.47 by the Regulation of the Council of the European Union (EC Regulation 44/2001)48.C.
On art. 337. 2000. 53 See P. Where such an agreement is concluded by parties. 23 of the Regulation. in its decision in Coreck Maritime GmbH v. where applicable. by the circumstances of the case. need not name the court having jurisdiction. Handelsveem BV. with the result that the usage may be considered to be a consolidated practice. at p. 187. first para.15 “3. 2001 (The Nedlloyd Van Neck)  ETL 926.. 733. supra.  ECR I-9337. of the Brussels Convention 1968) is different from the pre-1978 text of art. March 21. see Gaskell. June 19. applying the Castelletti decision. 52 November 9. 23 of EC Regulation 44/2001 (like the most recent text of art. Ph. 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. 23 of EC Regulation 44/2001 is basically unchanged from art. particularly in the Castelletti (supra) and Coreck Maritime (supra) cases. In Trasporti Castelletti Spedizioni Internazionali SpA v. will probably continue to apply under art. the courts of other Member States shall have no jurisdiction over their disputes unless the court or courts chosen have declined jurisdiction. 187. which might be given to the standard form on which the clause appears. 17 of the Brussels Convention 1968 and that the decisions rendered under art.52 and its three main findings would appear to remain applicable to such clauses now that the very similar art. 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. none of whom is domiciled in a Member State. but rather by the practice generally and regularly followed in concluding a certain type of contract. not by the national law of one of the contracting states. See also Cour d’Appel de Versailles. which must be sufficiently precise to enable the judge seized of the case to determine whether he has jurisdiction. See also Cour d’Appel de Rouen. Ph. the objective knowledge of the trade usage by either party to the contract is irrelevant. 734. (Case No. Delebecque. June 21. The existence of the usage must be established. DMF 2001. 17. 11. Bills of Lading: Law and Contracts.  ETL 3. of the Brussels Convention 1968 in relation to bill of lading jurisdiction clauses. DMF 2001. but rather merely called for suit in the court of the place of the “principal establishment 51 50 .  ETL 727 at p. 17. In fact.20. These elements. DMF 2000. 2002. Ph. therefore. March 16.54 European Court of Justice. under art.51 If this requirement of form is complied with.  ECR I-1597. November 9. Art.” (Emphasis added) The text of art.51to20. and regularly observed by. Bonassies. Hugo Trumpy SpA. Delebecque. Bonassies. may be “concretized”. C-159/97). The European Court of Justice interpreted the most recent text of art. 2000 at paras. for example. supra. 23 of EC Regulation 44/2001 is in force:53 (1) the wording of the jurisdiction clause. 387-98). 1984. 2000. 1999 (Case No. obs. Delebecque.81. parties to contracts of the type involved in the particular trade or commerce concerned”. where the bill of lading jurisdiction clause did not expressly specify the name of the court selected. 17 from which the European Court of Justice in The Tilly Russ50 drew the criteria for a valid and enforceable jurisdiction clause. the European Court of Justice held that the knowledge of the usage concerned is “independent of any specific form of publicity”. 17 of the Brussels Convention generally.  ECR I-9337. 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. (Case No 387/98). Handelsveem BV. See P. 17 of the Convention by the Court of Justice of the European Communities. Bulletin des transports 2002. Asariotis & Baatz. indicating that art. 17. first para. obs. 54 Thus. obs. the jurisdiction clause must be given effect when one of the parties is domiciled in a Member State of the European Union. in the Coreck Maritime case. knowledge of such a generally and regularly observed usage is “imposed” on the shipper.
June 18. April 9. 2003 (The Houston Express). BP France S. demonstrates clearly and precisely a consensus by the parties on the subject matter of the clause.  ETL 453. Under those provisions. DMF 2003.. Delebecque. See also Cour de Cassation. 547. agreed to by a shipper and a carrier.59 Acceptance of forum selection agreements is not unconditional.55 (3) a jurisdiction clause in a bill of lading. 17 and the changes introduced into art.77. March 4. The same test has been applied in France to arbitration clauses. 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. BP France S.60 3) Arrest in rem under other conventions Under art. holding that art. 23 to accommodate a course of dealings between the parties and practices in international trade. 57 See.  2 Lloyd’s Rep. rather.57 European law thus accepts jurisdiction clauses in bills of lading and other contracts. interpreted in the light of the commercial background of the case. Bills of Lading: Law and Contracts. 23 of EC Regulation 44/2001. as interpreted by the European Court. 364 at p. where those provisions reflect a genuine. 2003 (The Sonara).73 and 20. where under the applicable French law. where the Belgian Court decided that English. because it was not proven that the consignee had consented to the clause at the latest at the time of delivery. but rather that that law fell to be determined by the judge seized of the case. Ph. in acquiring the bill. 17 of the Brussels and Lugano Conventions were inapplicable to a bill of lading jurisdiction clause calling for suit in New York courts. 2002 (The Walka Mlodych).58 and whether or not that forum has any connection with the dispute or the parties. 373. produces effects with respect to a third party holder of the bill. applying the conflicts rules of his national law. October 8. 58 See Siboti v. 17. 364 at p. 17 of the Brussels Convention 1968. rather than Belgian law. first para. has succeeded to the rights and obligations of the shipper under the applicable national law. Revue Scapel 2003. Cour de Cassation. See also Rechtbank van Koophandel te Antwerpen. the forum designation was held valid. 2000 at paras. March 4. DMF 2003. emphasizing that under art. 71(1) of EC Regulation 44/2001 (similar to art.56 If such is not the case. 1997 (The Adamastos).  2 Lloyd’s Rep.A. Asariotis & Baatz. provided that the holder. jurisdiction clauses must still reflect a consensus between the parties to the contract that is clearly and precisely demonstrated. 60 Siboti v. 55 Where the court selected is in a “third State”. 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. 59 See Gaskell. for example. it is governed by the very specific terms of the EC Regulation 44/2001 (and the Brussels Convention 1968 in the case of Denmark). 2002 (The Dymphna). where the language of the bill. 20. applied to the bill of lading contract and therefore that the third party holder of the bill was bound by its jurisdiction clause. 556. the foreign jurisdiction clause was held unenforceable as against the subrogated underwriter of the consignee/ holder of the bill of lading. 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. 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.  ETL 321. See Cour d’Appel de Rouen. See also Rechtbank van Koophandel te Antwerpen. observations Y. 372. the Regulation does not affect any conventions to which the Member States are parties and of the carrier”. being the successor to the rights and obligations of the shipper under the bill. however. as under the art. Tassel. incorporation by reference of a jurisdiction clause into a bill of lading is effective.16 (2) art. 20. notwithstanding the amendments to art.A. . of the Convention. obs. it is proper to verify the reality of the holder’s consent to the clause by reference to the requirements of art. mutual consent between the contracting parties to sue in a determined or determinable forum. 57 of the Brussels Convention 1968).
K. Civil Jurisdiction and Judgments. The most important example of this type of convention on a “particular matter” is the Arrest Convention 195261 Art. Is There a More Convenient Jurisdiction? In common law countries. 1956. 20. 61 . at sects. the Civil Jurisdiction in Collision Convention 1952. Bill of Lading: Law and Contracts. See also Briggs & Rees. Tetley.K. if their domestic law gives jurisdiction to their courts.63 In consequence.. International Maritime and Admiralty Law.126.K. See Gaskell. although they have jurisdiction to decide the dispute.B. to take jurisdiction over a dispute on the basis of jurisdictional foundations provided in another convention governing a “particular matter”. 17 of the Brussels Convention (now art. The court therefore embarks on an analysis to identify what court is the “more International Convention Relating to the Arrest of Sea-Going Ships. if they believe that. 380. 8. 1952. the place of the carrier’s place of business. as in fact has been done in at least one case where the bill of lading expressly provided for jurisdiction in Germany. at para.U. the Penal Jurisdiction in Collision Convention 1952.U.65 Nevertheless.A.17 which in relation to particular matters. 57 of the Brussels Convention 1968 prior to the enactment of EC Regulation 44/2001.. there is another. 361 (C.64 Jurisdiction in rem (even where the defendant is not available for service in the U. govern jurisdiction or the recognition or enforcement of judgments. but still relevant under the Regulation) in The Deichland  1 Q. Asariotis & Baatz. Asariotis & Baatz.15 at p. 63 Briggs & Rees. adopted at Brussels. notably.13 at p. will have a valid basis of jurisdiction over the underlying “maritime claim”. 1952 and in force February 24. 7 of that Convention permits Contracting States to take jurisdiction on the basis of the arrest of a ship in their territorial waters. 3 Ed. 710. 8. 64 See the classic U. 421-423. May 10. even if the shipowner or demise charterer is domiciled in another E. 54. 11 (C. 805-809. In England. 1994 at pp.). courts today generally have the discretion to either dismiss or (more usually) to stay conditionally the proceedings validly instituted before them. 3 Ed.A. either of their own motion or at the petition of one of the parties. State. The importance of this provision is that it permits Member States of the E. 8. ibid. 2000 at para. 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. 515. and in some other cases. Briggs & Rees. Various other maritime law conventions also have rules on jurisdiction which would override the Regulation. having arrested a ship in rem in accordance with the applicable procedure. the Athens Passenger Convention 1974.) is thus preserved and is permitted to override jurisdiction under the EU’s ordinary rules.66 VII. 20-24 implements the Arrest Convention in English domestic law.62 which. the English court. 1)  1 Lloyd’s Rep. Bills of Lading: Law and Contracts. 2)  1 Lloyd’s Rep.15. clearly more appropriate forum in another jurisdiction where it would be better to try the suit. the domestic law permits such arrest in rem under the Supreme Court Act 1981. 65 See The Bergen (No. 23 of the EC Regulation) purporting to assign jurisdiction to the courts of another E. State whose courts would normally have jurisdiction under the Regulation. 20. as they did the Brussels Convention. International Conflict of Laws. Civil Jurisdiction and Judgments. 513.128. even if that foundation does not exist in the Regulation. decisions on this matter (rendered with respect to art. having regard to the interests of the parties and the ends of justice. 62 U. 66 The Bergen (No.114-20. c. Gaskell. 2000 at para. English jurisdiction based on ship arrest would remain unaffected by an exclusive jurisdiction clause as contemplated by art. 1981. the Civil Liability Convention 1992. the Limitation Convention 1976 and the Hamburg Rules 1978. 2002 at para.) and The Anna H  1 Lloyd’s Rep. 2003 at pp. 2002 at para.U. Tetley.
In the United States. see H. 798-803. 1 (H.L. due to constitutional restrictions. J. on grounds of forum non conveniens. 27. 1992: “Nothing in this Act shall prevent any court in the U.C. U.). 1982 AMC 214 (1981).). if it is the "natural forum" for trial of the dispute. 235. which statute came into force on May 1. see MacShannon v. See also the U. and Lubbe v. 2003 at pp. and American Dredging Co.C.R.Q. v.C.  R. Quebec.C.” 68 The Québec Civil Code 1994. 205. v.L. decline jurisdiction if it considers that the authorities of another country are in a better position to decide.J.S. 3135 c. C.). c. For Canada. 854 (H. from staying. v. 1077. 49.C. C.S.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.R.c.C.J.q.P. 1994 at pp. The Abidin Daver  1 A. . Boulton & Co.  A. 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 court seized with suit and a motion to stay or refuse jurisdiction69 must decide if the alternative jurisdiction suggested by defendant is more "convenient".18 convenient forum”. If the forum court is convinced that. International Maritime and Admiralty Law.A. 3135 c. Piper Aircraft Co..C. v.R. v. or the “more appropriate forum”. the court seized of the proceedings may dismiss the proceedings. the landmark decisions on forum non conveniens include Gulf Oil Corp.’s Civil Jurisidction and Judgments Act 1982. or the “natural forum”. 413. it may exceptionally and on an application by a party. Spiliada Maritime Corp. Nevertheless.q.e.. 460.67 Civilian countries.  1 Lloyd’s Rep. the Lugano Convention. The doctrine applying to this determination is known as forum non conveniens. generally do not have the discretion to dismiss or stay actions which fall within their jurisdiction under their respective national laws. 2003 at p. 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).Q. 213 (Qué. Reyno 454 U.J. 88 (Qué. as a mixed jurisdiction. British Columbia (Workers’ Compensation Board)  1 S.L. 383 (H.). at art.L.C. sect.” For decisions applying art.K. Banque Royale du Canada  R.A.S. sisting.K.L. 1982. A conditional stay is preferable to dismissal. Automobili Lamborghini S. Tetley. v. c. as amended by the Civil Jurisdiction and Judgments Act 1991.Q. v. 1991. Grecon Dimter Inc. see Morguard Investments Ltd. 897 at pp. RTZ Corp. Cansulex Ltd. 398. International Maritime and Admiralty Law.L.R.  A. Ct.A.  1 Lloyd’s Rep. 915-922. S. provides: “Even though a Québec authority has jurisdiction to hear a dispute. 58 (Qué.A. 501 (1947). 443. 339 (H.  A.). Lamborghini (Canada) Inc. Forum non conveniens therefore has no place in their legal systems.  R. U. on the ground that another forum appears more convenient or appropriate or natural for the litigation. although it has jurisdiction. 1994 AMC 913 (1994). 69 See Tetley. American Mobile Satellite  4 S. in case the foreign court does not accept jurisdiction or renders a decision not susceptible of subsequent recognition and enforcement in the forum court. but should preferably stay them conditionally. 795 (H. Rockware Glass Ltd.K. Cape plc  2 Lloyd’s Rep.).). for the adjudication of the dispute. i. Amchem Products Inc. as the case may be. Normand Inc. DeSavoye  3 S. Connelly v. International Conflict. 12. Gilbert 330 U. 412-413. striking out or dismissing any proceedings before it on the ground of forum non conveniens or otherwise. Spar Aerosapce v.).C. where to do so is not inconsistent with the 1968 [Brussels] Convention or.c. Miller 510 U. v. Supr. v. See generally Tetley.K.
(No. 268. Ltd.B. for example. 1545. Tsuneshima Maru 197 F. 75 Gulf Oil Corp.76 If. In The Spiliada  1 Lloyd's Rep. 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.).C. 3) that the defendant submit to service of suit and to the jurisdiction of the other court with the time period stipulated. 1346 at p. 2434 (S. Sophia First 588 F.C. 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. 9.  1 W. 1360. N.A.). Lubbe v.). Cape plc  4 All E.  ETL 45 (S.Y.  A. 2003 at p. 1955 AMC 1687 at p.D. the law applicable to the substance of the dispute. 1966). 2) that the other court accept jurisdiction. however. Margit 1966 AMC 1217 at p.71 Convenience. Nigeria v. 1984). S. following this analysis.73 is the touchstone in respect to deciding forum non conveniens motions. 808. no foreign court of competent jurisdiction appears definitely more "convenient" than the court first seized. United Thai Shipping Corp. 1984 AMC 2413 at p. International Maritime and Admiralty Law. 663.D. 183. For an example of such a conditional stay in a maritime case. 1220 (S. 2564 (11 Cir.Y. v. and 5) that security acquired by either party be preserved. or if the evidence on the question appears to be equally balanced. v. 1984).70 The conditions of the stay may vary depending on the circumstances of the case. The Hamburg Star  1 Lloyd's Rep. 1961). In general. where a forum non conveniens stay was granted on a cargo claim arising under a bill of lading calling for suit in Pakistan.75 The trial court. the stay will ordinarily be refused.  4 All E.  2 Lloyd's Rep.S. the convenience and expense of the parties of litigating in either of the competing fora. 229 (C. N. See also The Kidlovodsk  1 Lloyd's Rep. Connelly v.D. the existence of such a term or agreement is a factor of great weight in forum See. 335.D. 2)  1 Lloyd's Rep. and no single factor is decisive. 76 G.  1 Lloyd's Rep. 911-912.S. for example. the stay order was reversed. 1689 (2 Cir.  2 Lloyd's Rep. 224 F. See also LN. where the court stayed proceedings on a cargo claim in deference to a Russian jurisdiction clause in the bill of lading. Supp. the House of Lords found that it was wiser to avoid use of the word “convenience” and refer rather to the appropriate forum. 78 See.L. 1 (C. makes its decision as a question of fact based on the whole of the circumstances of each individual case. 383 (H. on condition that the defendant waive any time bar under Pakistani law. for example. 72 La Seguridad v. however. for its part. Subsequently. Pirelli Cables ltd. v. 909 at pp.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. Transytur Line. 77 See. v.A.L.  3 W.2d 1304 at p. See Baghlaf Al Zafer v. 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. 76. Takemura & Co.2d 806 at p.19 conditionally may then reassume jurisdiction over the dispute.A. Gilbert 330 U. 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.R.L. 1307. 501 at P. 508 (1947). 1983). 1962 AMC 1217 at p.78 Clearly. the court making a forum non conveniens determination considers such factors as the location and availability of proof and witnesses. N. The Globe Nova 1985 AMC 1977.R. Pakistan National Shipping Co.74 No one can foresee or list all the criteria which the court must decide and weigh. when it appeared that a Pakistani court might not recognize such a waiver. 1 at p. v. N. Supp. S.R. Tex.). Baghlaf Al Zafer v.Y.S. 399. Pakistan National Shipping Co. 707 F. 854. Swedish American Line. 73 Muller & Co. 1218 (S.1985 AMC 1493 (S. 1983 AMC 2559 at p. 373 (H.L.R. see The Arctic Explorer 590 F. RTZ Corp. 4) that the defendant waive any defence based on a statute of limitations or prescription in the foreign court. 412. Supp. 74 Tetley. 70 . 1985).72 sometimes described as reasonableness.D.Y. 1955).
. at pp. general maritime law In American Dredging Co.. 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. v.S.).83 three of five justices of the U. Crédit Suisse  3 All E. Mass.Forum Non Conveniens 1) Private and public interest factors Forum non conveniens has long been an accepted principle in admiralty in the United States. and d) the avoidance of conflicts of law. The Capricorn  2 S. 1994 AMC 913 at p.79 This matter is dealt with in greater detail in sections IX. Miller. 82 Ibid. [and] e) the relative advantages and obstacles to fair trial.C..S. 918 (1994). although forum non conveniens had taken root early on in American admiralty law. 508 (1947). infra. v.D. doctrine. c) possibility of view of the premises .S. of Canada). VIII. who has taken suit in another jurisdiction..A.” Public interest factors82 include a) avoiding “congested centers” of litigation. In addition. but was rather a doctrine of general application. Gilbert. The Atlantic Star  2 Lloyd's Rep.B. 501 at p. Ct. 81 330 U. 365. X and XI. Cas.C. 629 (C. 'vex'. with the result that it was Among many other decisions of this kind. aff’d  Q. 207 (H. 355 (1885) is an example of an early admiralty case. The Jerusalem 13 Fed. must show strong reasons why he should not be kept to his original bargain. c) the choice of the proper place to study questions of foreign law.). 83 510 U. See especially p. See Antares Shipping v. and the cost of obtaining attendance of willing. 679 (H. 2) Forum non conveniens not a characteristic feature of U. 1234.R.L.L.2d 1231 at p. 69 and 70 (5 Cir. see Trendtex Trading Corp. aff’d  A.. b) availability of compulsory process for attendance of unwilling. 80 The Belgenland 114 U. v. forum non conveniens was characterized as a procedural. d) enforceability of a judgment . 451 (Supr.C.20 non conveniens determinations. 'harass' or 'oppress' the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. b) the benefit of publicity of the trial in the seat of the conflict. in breach of that agreement.S. United States . This very authoritative decision has been referred to by non-American courts. 509-509. 1985 AMC 67 at pp.S.81 where the theory of the private and public interests was enunciated. 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. 450. . witnesses. Where the dispute at hand falls within the scope of such a forum selection provision. it did not originate there and was not a characteristic feature of the general maritime law of the United States. 197 at p. Private interests are: “a) relative ease of access to sources of proof. 721. 7293) (C.R. rather than as a substantive. Tel Aviv 711 F. See also Perusahaan Umum v. 559 (No. 79 . Supreme Court decided that.). 1814). . 422 at p.80 The principle was first applied to a non-admiralty matter by the Supreme Court in Gulf Oil Corp. 1983). the plaintiff.” Nor may the plaintiff f) “by choice of an inconvenient forum.
U. however.2d at p. See also Alcoa S.S.S. 1980 en banc). so that forum non conveniens may now be applied in maritime cases. Speck.”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. Whether or not an action impleading a third party should be dismissed on the ground of forum non conveniens. Note. will also be determined by the principles set out in Gulf Oil Corp.no special restrictive rule Ten years after Gulf Oil Corp. No. 60 (5 Cir. 453. at p. 235. however.21 not deemed essential to the proper harmony and uniformity of the federal. 1994 AMC 913 at p. 84 . one can rarely count on the fact that jurisdiction will be declined. 88 Sunny Prince-Hoheweg (Motors Distributors Ltd. the majority in the Supreme Court upheld the validity of the Louisiana statute out of which the litigation had arisen (art. This statement recalls that of the U. Seatrain International 1986 AMC 1587 at pp.S.. 920-921.S. Co. 235.S.. “Forum Non Conveniens and Choice of Law” (1987) 18 JMLC 185.84 The Supreme Court further observed that the discretionary nature of the doctrine. Olympic Corp. 92 Excel Shipping. Tel Aviv 711 F. See also Paula K. 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. AMC at pp. M/V Nordic Regent 654 F. it was held in Sunny Prince v. N. states. 1984). It held that:87 “In such a regime. See Louisiana Acts 1999. 1957 AMC 57 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.91 The court should be wary. 90 454 U. 922. “jurisdiction should be taken unless to do so would work an injustice. Reyno. 465. 1597-1598 (E. 123(C) of the Louisiana Code of Civil Procedure). at p.” 3) Admiralty . 123(c) of its Code of Civil Procedure in 1999. Gilbert. 1980 AMC 309 (2 Cir.S. 1982 AMC 214 (1981). 87 510 U. 508 (1947): “[U]nless the balance is strongly in favour of the defendant. v. 922. 91 454 U.S. Olaf Pedersen's Rederei) 239 F. v. and reaffirmed in Piper Aircraft. Hoheweg that in Admiralty. 455. 89 Perusahaan Umum v. AMC at p.86 made uniformity and predictability in the application of forum non conveniens almost impossible. but was rather a procedural rule within the legislative jurisdiction of the individual U.D. Gilbert 330 U. 501 at p. finding that that provision was not pre-empted by federal maritime law. Gilbert. 536.S. 1600-1601. Supreme Court in Gulf Oil Corp.2d 463 at p. 1238. 85 Ibid. the plaintiff’s choice of forum should rarely be disturbed. 1983). 1956). sect. 443 at p.. general maritime law.2d 1231 at p. Société Générale 462 F. `982 AMC 214 (1982).2d 147. F. 455. ibid.S. 76-77. combined with the “multifariousness”85 of the public and private interest factors set forth in Gulf Oil v. 1236.92 4) Forum non conveniens and in rem jurisdiction Ibid.”). 73-74 (5 Cir. 501. v. supra.Y. See Perusahaan. 1985 AMC 67 pp. 1986 AMC at pp. 1972 AMC 1682 (2 Cir. v. when the jurisdiction of the underlying action has been maintained. U.S. 1972). In consequence of this procedural characterization. See also Excel Shipping v. v. that Louisiana amended art. 86 330 U.2d 376. which rendered forum non conveniens unavailable in Jones Act and maritime law cases brought in Louisiana state courts. Inc. AMC at pp. 1.
1238. 355 at p.” 95 114 U..Y.97 The Court did point out.3d 625 at p. supra. Thus courts have been compelled to deny forum non conveniens dismissals in actions in rem.K.” See. however. 711 F. M/V Montmartre 756 F. 94 93 . Supp.S. 1985 AMC 2150 (5 Cir.103 A conditional dismissal. 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. pp. 1985 AMC at pp. is fully applicable to all forum non conveniens motions.. Tel Aviv. the court can embark upon the Gulf Oil balancing analysis and decide whether or not it is a convenient forum. v. N. See Shalom-Stolt Dagali. See also Warn v.. unless the inconvenience he would suffer was tantamount to injustice.” 98 Ibid. 1990 AMC 1583 at p. 1985 AMC at p. 60. 517 (1988).2d 1215 at p. 1966 AMC 121 at p. M/T Rich Duke 734 F. Biard. “The Integrity of the Judicial Sale”. 630. Reyno.2d at p. 1999). 1985 AMC 67 at p. 711 F. 1931). 1985) and Farwest Steel Corp. 454 U. 96 330 U. 73. 100 A ship cannot be arrested twice on the same claim. v.K. G. 1957 AMC 57 at p. 78. 1302 (9 Cir. For the U. 1931 AMC 407 (S.2d at p.S. see The Despina. 1985 AMC at p. 78-79.) 47 F. 501 at pp.2d 1231 at p. 508-509 (1947). 99 Ibid. Chap. 1098-1104. 40. that the in rem factor. 1218. In Sunny Prince-Hoheweg (Motor Distributors v.2d 620 (9 Cir. 145. 1983). 1234. v.99 Since the seizure of a ship in rem releases the ship from the maritime lien arising from the claim. 124 (S.D. 1990): “the Gilbert analysis.. including in rem admiralty actions. 1585 (D. Del. because he would no longer be able to seize the ship102 to enforce whatever judgment he might obtain in the alternative forum. 1998.. before embarking on a Gulf Oil balancing analysis. 142 at p. v.98 The Court emphasized that the balancing analysis in Gulf Oil was predicated upon finding that an adequate and available alternative forum did exist. 555 and The Alletta  1 Lloyd's Rep. See also The New England (J. Welding Co. 367 (1885). except in special circumstances: see generally Tetley. 104 Ibid. 1966). supra.1076 (9 Cir.101 but also deny him an adequate security.2d at p. 1239. Maritime Liens & Claims. 486 U. Supp. See also Cliffs-Neddrill v. 26. 1999 AMC 1070 at p.94 After referring to The Belgenland95 and Gulf Oil Corp. Tel Aviv.S. however.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. 465. the Court affirmed that “the release or removal of the vessel from the jurisdiction of the court destroys in rem jurisdiction .K. 769 F.2d at p. the Fifth Circuit had declared that in admiralty actions in rem.. 711 F. 505. added to the normal presumption in favour of the plaintiff's choice of forum. Owen in  JMLC 133. 1970). Olaf Pedersen's Rederi A/S) 239 F. Piper Aircraft Co.S. M/V Maridome 169 F.D.. Gilbert. 1985 AMC at p. did make it nearly impossible for the defendant to show interests in an alternative forum. 1971 AMC 1298 at p. 1982 AMC 214 (1981).2d 332.2d 1103.22 Perusahaan Umum v.S. 101 In M/S Galveston Navigator 431 F. 235. position.96 the Fifth Circuit stated that the in rem action did not represent an exception to the Gulf Oil balancing analysis. 103 Ibid. 1238. N. 330 U. Tel Aviv. 76. 1236. 69 (5 Cir. Gotham Marine Corp.2d 463 at p.Y. 711 F. strong enough to strike the forum non conveniens balance in his favour. 518 (1947). 97 Perusahaan Umum v. v.  2 Lloyd's Rep. however. 711 F. 1985 AMC at p. 503 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 at p. 1239. Barge Sea-Span 241. and Van Cauwenberghe v. 102 Perusahaan Umum v. “jurisdiction should be taken unless to do so would work an injustice. 77. 1985) and a critical commentary by David R. as clarified by Koster v. American Lumbermens Mutual Casualty Co.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. 249 F.104 711 F. Cactus Pipe & Supply Co. 2 Ed.
the Second Circuit in Muller v. M/V 106 105 . it tends to be the paramount factor in that analysis. 109 Ibid. Conklin & Garrett. Union Ins. 501 (1947). to evaluate the enforceability of jurisdiction clauses and agreements in general. 723-725.S. S. 1982 AMC 588 at pp. 590-593 (4 Cir. for example. 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. 203. 594-595.  2 Lloyd's Rep.S. v. S. It is only when the clause or agreement concerned fails the test of enforceability under those principles that forum non conveniens principles.S. before a relatively stable doctrine of forum non conveniens and jurisdiction clause enforcement were arrived at in the United States. Fritz Transportation International 2002 AMC 106 (N. 3(8) of COGSA 1936. Cal.D.” The concern was that foreign law rather than U. v. 105. 104 (2 Cir.. 2001).105 are now considered. 807. 1967 AMC at pp. Gilbert. while at the same time the courts retained their discretion. where the bill of lading includes such a provision. 108 377 F. 1981). it would have done so in a forthright manner. 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. v. 1955). S.106 There were radical swings of the legal pendulum.109 Thereafter. v. Swedish American Line upheld a jurisdiction clause and declared:107 “…if Congress had intended to invalidate such agreements. as was done in the Canadian Act of 1910. such clauses were treated much more strictly. at p. including those appearing in ocean bills of lading. See. 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. 101 at p. for example.  2 Lloyd's Rep. Ltd. See. In 1955. COGSA would be applied by the foreign court.2d 806 at p.S. In view of current American law.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. 593. en banc 1967). v.Elikon 642 F. as outlined in Gulf Oil Corp. 377 F.2d 721 at pp. of Canton.” Twelve years later the Second Circuit took a completely different approach in Indussa Corp. 1955 AMC 1687 at p.110 330 U. however.2d at p. LG Electronics Inc. Soc. 1967 AMC 589 at p. American courts began systematically invalidating foreign forum selection clauses as contrary to sect. Ltd. Particular principles have been developed in the U. 110 In accordance with the holding in Indussa. 107 224 F. 1688 (2 Cir.2d 200 at p.
Supp. 53 (2 Cir.Y. 1988 AMC 2328 at pp. The freely negotiated agreement must be unaffected by fraud or undue influence or overreaching bargaining power. Acciai Speciali Terni USA Inc. as it did not exclude jurisdiction elsewhere or employ other mandatory venue language. 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” . 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. v. 1996) and listing. v.2d 458 at pp.b. S. Ranborg.2d 372. however. 1977). v. Inc. Zapata Off-Shore Co.) v. citing Allen v. Inc.N.2d 721. N. M/S Bremen (and Unterweser G. 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. Lucent Technologies.m. 2334-2335 (11 Cir.S. In M. M/V Gertrude Oldendorff 204 F. 1987). Compare with Reed & Barton Corp.. Novocargo USA Inc.A. See. 2002 AMC 1477 at p.24 2) Foreign jurisdiction clauses presumptively valid A major change in judicial attitudes towards foreign forum selection by contract occurred. Lloyd’s of London 94 F. v. 1999). 1972 AMC 1407 (1972) This was a freely negotiated private international agreement for towage. 2d 675 at p. pointing out that COGSA was not involved in that case. 3) fundamental unfairness of the chosen law depriving the plaintiff of a remedy or 4) a strong public policy of the forum. Ferrostaal. aff’d without opinion sub nom.3d 355 (2 Cir. The U. 156 F.. 320-322 (5 Cir.D. 2002 AMC 314. See also Union Insurance Society of Canton v.2d 372. 115 For an example of a purely “permissive” forum selection clause.Supp. 531 (D.. 15. 1 at p. which obligates the parties to the bill of lading (or other contract) to litigate in one specified court. Although the clause provided that disputes “… shall be determined by the Court of Bremen”. v.Supp. 2002 AMC 314. instead. 113 407 U. Attiki Importers 22 F. 1479 (S. Md. 1090 (S.2d 1576 at pp.V.  2 Lloyd's Rep.114 as opposed to the merely “permissive” clause. Tokio Express.2d 1441 at pp. Zapata OffShore Co.  ETL 57 (S.Y. Co. 112 (The Chaparral) Unterweser Reederei G. 2002). S. N. in a matter which was subject to suit simultaneously in England. 928 (4 Cir.D.112 recognized a jurisdiction clause giving jurisdiction outside the United States.3d 51 at p. 1418 (1972). the mere use of “shall” did not make the clause “mandatory”. 462-463. international contract should be enforced. 1994) and other authorities collected there. 2002).H. v. for example. Supp. A bill of lading of course is not freely negotiated but a standard-form contract. Chemical v.S. 1998) (“All and any claims and disputes under the Bill of Lading shall exclusively be referred to [a]rbitration in Bremen [Germany] . Central National-Gottesman. See also Hartford Fire Ins. 678. M/V Berane 181 F. M/V Sersou 1999 AMC 2352 (S. 1988). v. N. supra. 2002). 156 F. and relied on Indussa Corp. see Hartford Fire Ins.Y.D.”).G. Elikon 642 F. 2002).S. 1580-1581.Y. Inc.115 A jurisdiction clause may still be Finnrose 826 F.). as grounds of non-enforcement of a foreign forum selection clause: 1) fraud or overreaching. Novocargo USA Inc. by which the parties simply agree to the jurisdiction of a specified court without expressly excluding jurisdiction elsewhere. 1981). Sun Castor 1978 AMC 1756 (D. 1442-1444.H. 114 See John Boutari & Sons v.  ETL 57 (S.b.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. 1972 AMC 1407 at p. 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. 111 407 U. both the American and English Courts ordered suit in England under the same clause in the same matter. 1988 AMC 318 at pp.D.m.3d 923 at p. 1982 AMC 588 (4 Cir. N. 210 F. in an international towage case.V. Alas. Tokio Express 1999 AMC 1088 at p. This followed the English tradition of giving effect to jurisdiction clauses. Supreme Court held that a foreign jurisdiction clause in a freely negotiated. M.S.D. The same hostility was demonstrated with respect to foreign arbitration clauses. 1.S.”). Co.111 The United States Supreme Court. M/V Wesermunde 838 F. the Court refused to follow Bremen. v.Y. v. In the case at hand. M. 2002 AMC 528 at p. State Establishment for Agricultural Product Trading v. 158 (C.
but merely permitted. v. N. Inc.. COSCO 2004 AMC 1048 at pp. where the Court found to be mandatory. of the Southeast v.” The second sentence was held to be a qualification on the first sentence. 2003 AMC 21 at pp. in order to litigate in the designated court. 2001). 2003).. 1233. 1050-1051 (C. Randolph. Note. 2004). Hartford Ins.Y.”. which made it unlawful for the owner of a maritime passenger carrier to "lessen.S.S. Appx. 24-25 (N.J. rather than permissive. was rejected by the Supreme Court in Carnival Cruise Lines. 2422 (D. Note. N. 2002). v.D. or “[a]ny disputes under the Bill of Lading to be decided in London according to English Law. for example.D.118 More recent decisions have similarly downplayed the relevance of inconvenience in forum selection clause analysis. 2001 AMC 2417 at p. Supp. M/V Tramper 263 F. Inc. 2002). 585. 118 Ibid. permitting the carrier to sue the merchant in the latter’s place of business). found the arbitration clause in that case to be enforceable. or avoid the right of any claimant to a trial by a court of competent jurisdiction. which did not vitiate the mandatory character of the clause. 1231. – Alabama v.2d 1191. v.D. 79 (2000). v. 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. 2003). Ltd. that the words “shall” or “must” are not essential to the mandatory character of the clause. that the Court.116 Because foreign jurisdiction clauses and agreements are now presumptively valid in the United States. M/V Tramper 263 F.. Supp. . Burns v. in its decision in Green Tree Financial Corp.D. 2d 675 at p. 116 See. however. v. Cal. 121 Ibid at p. Lines. Co. at pp.. Cal. an arbitration agreement could be held unenforceable. Shute. aff'd 36 Fed. which may be just as mandatory where “will” is used. See Vogt-Nem. rather than permissive. Tokio Marine and Fire Ins. M/V Pergamos 1996 AMC 2022 at p. for example. .g. weaken. Supp. 2002 AMC 1477 at p. Hapag-Lloyd Container Line 2003 AMC 1175 (S.N. 4 District. 1995)). 2030 (S. 1991 AMC 1697 (1991).119 Nevertheless.C. M/V Gertrude Oldendorff 204 F. 183c. 1704-1705. 491 (3 Cir.K.27 (N. Mitsui O. Aktiengesellschaft Fur Industrie Versicherungen 188 F. U. Vogt-Nem. Ltd. The case concerned a consumer finance contract containing an arbitration agreement which omitted any details regarding filing fees and arbitration costs. 2002).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. v.2d 1226 at p.” (Central National-Gottesman.S. 2002). Inc.2d 454 at p. The argument that enforcement of a jurisdiction clause should be denied where the clause required plaintiffs to incur substantial “transaction costs” (e.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). Cal. by a 5 to 4 majority. it also qualifies that provision by an exception (e. the United States Supreme Court.D. 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.. 117 499 U. The relevant enactment in this case was the Limitation of Vessel Owners’ Liability Act of 1851. 119 See. 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. Intermetals Corp. and related inconvenience. 46 U. Inc. 2004). 678. Dist. Radisson Seven Seas Cruises. AMC at pp. Fla. however. v. Hanover Intern. however. where in addition to providing for the exclusive jurisdiction of a given court.g.. Ct. 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…. 2003 AMC 2608 (N.D. 2003 AMC 21 at p. 92. an exception giving the carrier an option to sue the merchant elsewhere than in the courts of Hamburg. as the first sentence contemplated. Supp.2d 1226 at p. Inc.25 mandatory. 596-597. 2004 AMC 769 (Fla. travel expenses.Appx.S. Inc. App. 867 So. 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. airfare and hotel bills). because no evidence on the prohibitive expense of arbitrating had been adduced by the party seeking to circumvent the agreement. 120 513 U. 1479 (S. Barbara Lloyd Design.D.S. 459. Co.Y. v.
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).
D.146 The Ninth Circuit.” 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. N. ibid. v. 499. Co. 528. Supp. denied. M. 528 at p. of Canada v. Supp. Va. the Eastern District of Virginia.Y. 1998). See also Fireman's Fund Ins. International Marine Underwriters C. 587 (9 Cir. N. 2000).S. 131 F. 1997). 515 U.. under Rule 4(m) of the Federal Rules of Civil Procedure).S. Cho Yang Shipping Co. American courts appear divided. Supp. but that it merely presented “a question of the means of enforcing that liability. COGSA. Carnival Cruise Lines. S. Ltd. 1995 AMC 1817. criticizing the Ninth Circuit’s view. In Tokio Marine & Fire Ins. N. Inc. Co.A. 2d at p. AMC at pp.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.C. 2955 (E. The Supreme Court upheld a foreign arbitration clause even though it appeared in a ‘standard form bill of lading. Shute.V.S. 794.” (ibid. 1995 AMC 1817 at p. 1339-1340. 767 (S.R. 1998). Inc. 921 (1998). however. 498 at p.Y..2d 787 at p. International Marine Underwriters C.R. Note. 498 at p. 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. 534. 1818 (1995). Atlantic on the point. 521 U. Therefore the mere fact that the forum selection clause appears in the standard form bill of lading does not render it invalid. 2955 (E.S. however. 131 F. Atlantic. 1821 (1995). v. 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…. v. 1998 AMC 583 at p. however. The Supreme Court also held that a ‘nonnegotiated forum-selection clause in a form ticket contract’ is enforceable against a consumer. 1998 AMC 765 at p.C. See Allianz.S.145 for example. 2000 AMC 2947 at p. 1998 AMC 765 at p. 1703 (1991). Va. Allianz Ins. 1303(8)) to the ship’s own liability.). 2000 AMC 2947 at p. Supp. over whether the lack of in rem process in the selected forum abroad precludes enforcement of the jurisdiction clause. M/V Kasif Kalkavan 989 F.Y.”148 145 146 2001 AMC 1692 (D.2d 787 at p. 147 131 F. Atlantic court “appears to have wholly ignored” the reference in 46 U.U. 530. 794. 2001). M/V D. U.S.” b) The parties should not lose rights already acquired A change in jurisdiction should not cause the parties to lose rights.V. the unavailability of an in rem action in the designated foreign forum is irrelevant to the enforcement of the forum clause. Supp.R. D. Co.D. v. 593. But see also Hyundai Corp. of Canada v. See. 2000).D.3d 1336 at pp. 1339 (9 Cir. v. v. 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). M/V Sky Reefer. following M. where the Court said that the D. v. Cho Yang Shipping Co. cert. 499 U.’ See Vimar Seguros y Reaseguros.U.D. citing The Sky Reefer 515 U.147 holding that this purely “procedural” difference between American and Korean law was not a lessening of the “specific liability” imposed by COGSA. 131 F.S. . 585. DSR Atlantic. M/V Kasif Kalkavan 989 F. Similar positions have been taken by district courts in the Second Circuit. v. 2955-2956. This is particularly true in actions in rem. S.S. Co. 794. 1991 AMC 1697. 767 (S. M/V Turquoise. Co. however..3d 1336. 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. F. 1998).S.D. Appx. which they have acquired by the suit already taken. 499. M/V An Long Jiang 1998 AMC 854 (S. 1998 AMC 583. took the opposite position in Fireman’s Fund Ins.S.A. 148 In Allianz Ins.
it is doubtful today whether the mere inconvenience of the clause Snam Progetti v. 322 (S.D. Lauro Lines 387 F. Supp. 152 Gulf Oil Corp. Hellenic Lines. 1967).154 after the shipowner had petitioned in New York to limit its liability following a total loss at sea.. 1966).”149 In Hartford Fire Ins.150 the Court declined jurisdiction “subject to the provision that none of the parties be prejudiced as to any rights they had on . decisions tend to indicate that there is no point in changing jurisdiction if the new jurisdiction is inconvenient to the parties and to witnesses.. 33.3d 24 at p. Street.Y. 2758 (N.D.Y. of America v. 154 1966 AMC 1217 (S.Y. 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. N. v. Cal.Y.30 If the court is concerned that rights may be lost. Supp. M/V Royal Container 30 F. Wash.S. 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. 151 Great American Ins. 1976 AMC 212 at p. Co. however. 1605 (S. v. Co. Sound Around Electronics. the date of filing of this lawsuit. 1996). Chiyoda Fire & Marine Ins. and the cargo claimant deliberately takes suit in another court despite that clause. N. and without taking any steps to protect the running of time in the designated forum. None of the parties had offices in New York and the bill of lading called for suit in Italy under Italian law. 1999). 462.D. 1975). 153 277 F. Co. in such a situation.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.D. 1998 AMC 603 [DRO] (2 Cir.D.Y. In the S. Gilbert 330 U. 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. quicker and more convenient justice. 1974). Margit.” Where there is a foreign forum selection clause in the bill of lading. Nor will the U.S. 1999 AMC 1805 (S. Supp. court.D. Man B&W Diesel AG 121 F.D.. Supp.D. however. v. 2124 (W. In Snam Progetti v. v. Inc. Ltd.151 c) The convenience of the new jurisdiction is less important today Older U.N. N. 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. In view of the decisions in Bremen.S. v. 508. N. where the bill of lading includes a clear and mandatory foreign jurisdiction or foreign arbitration clause covering the dispute in question. Rotterdam or Oslo. The purpose of a change in jurisdiction is to provide cheaper. 322 at p. 155 387 F. S. M/V Hyundai Freedom 1999 AMC 1603 at p. 1999).Y. 324 (S.2d 661.153 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.1968 AMC 328 (S.152 In Sherkat Tazamoni Auto v. Orient Overseas Line. N. 501 at p. M/V Kapitan Byankin 1996 AMC 2754 at p. 150 149 . See also New Moon Shipping Co. Lauro Lines. 1974). order the defendant to waive the statute of limitations in the chosen forum abroad. 1997).
1972 AMC at 1419). 1991 AMC 1697. Nevertheless. accord Scherk v... Co. 1972 AMC at 1412. 15. 499 U. 1995). 528 at p. 407 U. 1702 (1991) (quoting Bremen. the ultimate decision depends upon the exercise of judicial discretion. 1 at p.S. V. 18.S.31 to one party to the contract would permit a U. Cho Yang Shipping Co. and the relative burden on the carrier. 1050 (C. 2758 (N. Co. 2031-2032 (S.2d 787 at p. 1995 AMC 1817 at p. Ltd. 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. 1418..D. 2004).D. 506. as was held in Bison Pulp & Paper Limited v. at 7. 2000).S.D. 1972 AMC 1407 at p. 2000 AMC 2947 at p.156 In this regard. see Great American Ins.S. even when the forum clause designates a remote forum for the resolution of conflicts. Cal. 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. 518 (1974). Va.’ ‘ Carnival Cruise Lines. 417 U. 159 1996 AMC 2022 at pp. 157 407 U.. 585. the U.S. inconvenience can be considered only if it is grave enough to render the clause unenforceable as being unreasonable or unjust. court to stay proceedings conditionally or to dismiss them. Rather. unjust. 2956 (E. 1823 (1995). 1996). where the difference between forum non conveniens dismissals and dismissals for improper venue (because of a foreign forum selection clause) was emphasized. of Canada v. Cal. See also Allianz Ins.’ 407 U. 131 F. 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. 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.D. Inc. Supp. N. the Bremen Court concluded that a ‘forum clause should control absent a strong showing that it should be set aside.” Proving so high a level of inconvenience is no easy task.S. M/V Kapitan Byankin 1997 AMC 2754 at p. 156 . COSCO 2004 AMC 1048 at p. at 17. 158 515 U.” The finding in Carnival Cruise Lines v. Ltd.” In this regard.S. Co. 536. Alberto-Culver Co. Thus.S. Supreme Court in Bremen. Absent that there is no basis for concluding that it would be unfair. or unreasonable to hold that party to his bargain. forum. reinforced the limited role that the factor of “inconvenience” now plays in assessing the enforceability of such a provision in American courts. in either case. 795. 1420 (1972). Tokio Marine and Fire Ins. or tainted with fraud or overreaching.S.Y. ‘the party claiming (unfairness) should bear a heavy burden of proof. the size of their claims. or repugnant to a strong public policy of the U. v. Shute. 592. v.
C. Cal. the vessel owner had waived enforcement of the forum selection clause by filing a claim in the pending U. 1303(8)). however. permitting suit only against the shipowner as carrier. N. 961 at pp. La. Gertrude Oldendorff. Street. 1996 AMC 1189 at p. under which foreign jurisdiction and foreign arbitration clauses are deemed presumptively valid.Y. N. M. Since Bremen and The Sky Reefer.A. v. 3(8). 3(8) of U.S. 3(8) In Indussa Corp.S. 1483-1484 (S. M/V Coral Halo 2004 AMC 273 at p. because it would relieve or lessen the carrier’s liability contrary to that provision. Inc. 101 at p. v.32 In most cases. 966-967. COGSA (46 U.D. 161 For an example of such serious inconvenience. whereas U. Inc. The U. 1996) (plaintiff failed to refute defendant’s showing that Australia.V. because English courts applying English law would uphold a demise clause in the bill of lading. 1967).Y. N.S. so as to avoid the risk of non-enforcement of the Japanese law and forum clause in the bill. “judicial economy” (the greater convenience of having all disputes settled in one forum. sect. D. 201 F. 2002 AMC 1477 at pp. 2003). 856 (S. 160 . 2d 675 at p. the argument was accepted." Accord: Glyphics Media.D. 3(8) of U. so that giving effect to those clauses would “fragment this case beyond recognition”. S.S.3d 432 (2 Cir. 2002). of Panama 1999 AMC 889 at p. 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. 163 See. however. where it appeared that Croatia applied the Hague Rules). 2000). Court of Appeals decided that a foreign jurisdiction clause was invalid generally. COGSA. M. District Court therefore kept jurisdiction. 164 204 F. however. 595. an English law and jurisdiction clause was found unenforceable as lessening the liability of the carrier contrary to sect. 1996) (a mere “conclusory allegation” that Croatia was “politically unstable and jurisprudentially immature” was insufficient to set aside the Croatian forum clause. 105 (2 Cir. N. the Korean clause was upheld. 1999).S. 1999). 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. thus reducing litigation costs and the risk of inconsistent judgments) is refused as a ground for refusing to enforce a jurisdiction clause. v. the contractual forum. 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.. 663. Sound Around Electronics v. Although such efforts usually fail. Supp. 1196 (E.164 for example. 2757 (N. for example. 1999 AMC 1805 at p. the Japanese ship manager agreed to waive the demise clause in the bill of lading.160 Where many claims were involved in a limitation proceeding. 1998). as judicially interpreted by American courts.D. see In re Rationis Enterprises. In Nippon Fire & Marine Ins Co.V.  2 Lloyd's Rep. v. Inc. Pasztory v. 165 But see also Hyundai Corp. Croatian Line 918 F. The Court noted.165 See.2d 200 at p.D.Y. Appx.S. notwithstanding the demise clause in the bill. v. Supp.Y. 680.163 they can still be successful on occasion.S.S. Ranborg. COGSA. Co. v. would not reduce the carrier’s liability contrary to COGSA). M/V Royal Container 30 F. action and availing itself of the limitation proceeding.Y. 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. 894 (S. Va. aff’d without opinion. the U. for example. M/V An Long Jiang 1998 AMC 854 at p. Supp.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. N. 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. Inc.D.162after referring to COGSA. 1967 AMC 589 at p. 674-675 (S. U. 162 377 F. In Central National-Gottesman. 1806 (S.161 d) Must not contravene sect.2d 661 at p.D.D. 204. Great American Ins. 283 (E. would permit suit against the time charterer who issued the bill as well as the shipowner. M/V Kapitan Byankin 1996 AMC 2754 at p. Conti Singapore 2003 AMC 667 at pp.
Co. Sligan Plastics Corp. June 18. Inc. if and when interpreted by the designated foreign forum applying the designated foreign law. where a Japanese forum selection clause was found null and void and unenforceable. Sanko Spruce 1999 AMC 366 (D. Conti Singapore 2003 AMC 667 at p. v. unless cargo could prove that in doing so. 2960 (D.S. Inc.Y. M/V Spring Wave 92 F.. See also Kanematsu U.S. M/V Nedlloyd Holland 1998 AMC 2163 at p. the foreign forum selection clause has been denied enforcement.S. in the U. unless consented to expressly by the shipper or permitted by a general port custom. Co. because it appeared that Korean law would not grant the cargo underwriter claimant an action in subrogation. 2003). 2166 (S. 1701(C.169 there must be proof positive that the foreign court. N. 1998). facing contradictory affidavits from foreign law experts. S. under sect. v. Union Steel America Co. unless he had immediately objected to it on receiving the bill of lading. 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.  ETL 453. 2000 AMC 1717 at p. 2001). v.Y. the deck stowage) was reasonable. La. v. will in fact lessen the carrier’s responsibility below the COGSA threshold. v.e. 2002 (The Dymphna.166 a bill of lading calling for German law and Hamburg jurisdiction contained a general liberties clause. which the insurer would enjoy under COGSA.D. v. see Rechtbank van Koophandel te Antwerpen. 168 See. M/V OOCL Faith. 169 See.D. The American court noted that such a clause would be upheld in Germany. M.  ETL 509 (E. 1997). where a Belgian Court decided that a bill of lading clause granting jurisdiction over cargo claims to U. an “unreasonable deviation” from the contract of carriage. In these cases. 2000).167 a Korean jurisdiction clause in a bill of lading was held to be invalid.168 One point is very clear in this regard. 3(8) of COGSA. Cal. the foreign jurisdiction clause was denied enforcement on grounds of public policy. 1998). prima facie. N. Cal.170 2003 AMC 30 (C. for example. In Gibbs International Inc. applying its law. the carrier had intended to cause the loss or had acted recklessly with knowledge that the loss would probably occur.S. 1719. N. if it could not be established that those courts would apply the obligatory Hague/Visby Rules enacted by Belgium’s Maritime Law. art. 574 at p. for example.. M/V Ocean Sunrise 2003 AMC 2200 (E. 167 166 . 170 For a similar European decision. v. courts would be void by Belgian law.D. 91. unless the carrier could prove that the deviation (i. The carrier’s act in stowing the cargo on deck. even if negligent. Nippon Fire & Marine Ins.33 In Heli-Lift Ltd.D.A. 1997 AMC 2954 at p. 576. Supp. have been uncertain whether particular bill of lading clauses.D. La. 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. 675 (S.D. M/V Jin He 1999 AMC 1700 at p. 2003).C. 1999). and the shipper would be deemed to have consented to deck stowage. There are also decisions in which American courts. Majestic Electronics.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. would not break its package limitation under German law.V. Glyphics.J. Inc. would or would not in effect be construed so as to relieve or lessen the carrier’s liability contrary to sect. v. permitting the carrier to stow a helicopter on deck. COGSA package limitation for resulting cargo loss or damage. Conversely. 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. where on-deck stowage constitutes. 3(8) of U. Federal Ins. COGSA.
Conti Singapore 2003 AMC 667 at p.D. 2003). M.S. in Roby v.Y.S.. of Lloyd’s.S. Tsuneshima Maru 197 F. ibid. 2002) (bill of lading cases relying on the same criteria).V. Dk. 80. 1997 at p. 175 Barbara Lloyd Designs.Y. 171 . 1961). 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. v. or (4) if the clauses contravene a strong public policy of the forum state” (citations omitted).’ due to the grave inconvenience or unfairness of the selected forum. Glyphics Media. 174 See also Asoma Corp. 510 U. 911-912. 2616 (N. 1997) and Black’s Law Dictionary.2d 1353. 2002). v.Y..D. (2) if the complaining party ‘will for all practical purposes be deprived of his day in court. 1955 AMC 1687 at p. The Second Circuit. Subsequent U. decisions have generally not strayed far from the three very general grounds of unenforceability articulated in Bremen (injustice or unreasonableness (unfairness)..34 e) Reasonableness For a great many years. Dist. as where one party takes unfair commercial advantage of another. 2002 AMC 2377 at p. Swedish American Line. 1479 (S. Supp. 2002 AMC 1477 at p. Jockey v. 1129. Corp. 1418 (1972). Mitsui O. Gertrude Oldendorff 204 F. Inc. N. 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.D. 400 (S. See also Restatement (Second) on Conflict of Laws. The fact that plaintiffs in many jurisdictions are permitted to plead by deposition often precludes acceptance of the “day in court” argument. Leverkusen 217 F. 7 Ed. Inc. citing Haynsworth v. Ct. or violation of the U. N. What is reasonable is a question of fact for the trial court to decide. forum’s public policy172). N. 224 F. 177 Barbara Lloyd Designs.K. 172 407 U.2d 806 at p. Margit 1966 AMC 1217 at p. Supp. 672 (S. 2617-2618.S. 1220 (S. 2003). S.Y. 173 996 F. Inc. at pp.Y.176 Public policy must be “strong” in order to defeat a choice of forum provision. Lines Ltd.2d 675 at p. 11.D.V. 1995). 1966). 1218 (S.Y. denied. 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. 965 (5 Cir. 1999). 1972 AMC 1407 at p. fraud or overreaching. 2381 (S. S. v.D.3d 7 at p. Sun Line Cruises. 808. Inc. v. 1955). for example. v. Ltd. 1363 (2 Cir. N. 909 at pp. 1962 AMC 1217 at p. 1996 AMC 253 at p. and is also usually dismissed as a ground of nonenforcement. which factors.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. 1993).177 Muller & Co. Corporation 121 F. See Effron v. Takemura & Co. 1971. (3) if the fundamental unfairness of the chosen law may deprive the plaintiff of a remedy.S. such as by fraudulent means. 2618-2619. Supp. 945 (1993). 176 Barbara Lloyd Designs. M. cert. Central National-Gottesman. N. 67 F. Inc.3d 956 at p. however. 451. 15. N. 259 (2 Cir. 1689 (2 Cir. Inc. ibid.S.D.S.2d 447 at p. sect. 678. are rarely accepted as grounds for refusing enforcement to an otherwise valid forum clause in the United States. M/V Southgate 2000 AMC 399 at p. at pp. 2003 AMC 2608 at p. 1 at p.”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”. v.
Va. 185 Compare with Industria Fotografica v. 2000). Co. at p. was not an adequate ground for nonenforcement of an exclusive Indian law and forum selection clause in an ocean carrier’s bill of lading. M. 489-490): “speculative concern regarding fairness of a foreign court..D.179 the unavailability of a jury trial in Brazil.C. 2950 (E. 18 at p. 1992). The clause failed to specify when the carrier had to exercise its option and when the “default” (i. 182 See also Tokio Marine and Fire Ins.178 the Court noted that: “Additional considerations include the relative bargaining power of the contracting parties. 2001). with other authorities cited there. 1996 AMC 769 at p. where the carrier’s option to sue in either Mexico City or Rio de Janeiro was upheld. 20.D.Y. N.D. have generally been found insufficient to constitute “unreasonableness” justifying sidestepping of the designated forum.185 The clause. 180 The Sixth Circuit noted (ibid. 2004). 183 Ibid. the requirement to post over $2. v. the awarding by Brazilian courts of judgments in cruzeiros rather than in dollars. v.e. M/V Turquoise 2001 AMC 1692 at p.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.184 In that case.) forum applied. Supp. 770 (S. which parties must have considered when negotiating the agreement. does not justify refusal to enforce the clause. 790.” Mere procedural differences between trial in the designated court and trial in the U. because the forum selection clause in the bill of lading required that suit be brought exclusively in one or other of those fora. 2003). and the alleged difficulty of getting money out of Brazil. Cal.S. and the convenience and relatedness of the forum to the contract. the place of delivery.183 On the other hand. Cho Yang Shipping Co. the presence of bad faith.” 181 2003 AMC 667 (S. as security. v. although more inconvenient for one party. was therefore not enforced. and the fact that foreign witnesses were permitted to testify by way of affidavit in India.180 Similarly. Jalisco 903 F.S. particularly as regards delays for trial.D. Co. jurisdiction. Ltd.. in Glyphics Media. See also Tokio Marine & Fire Ins. Inc.D Cal. 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”.V. M/V Conti. of Canada v. 2000 AMC 2947 at p. 110 (N.S. Ltd. 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. the port of loading. 489-490 (6 Cir.35 In Allianz Ins. 186 2002 AMC 106 at p. Dismissal on forum non conveniens grounds was also denied. were all dismissed as grounds of non-enforcement of the Brazilian jurisdiction agreement. COSCO 2004 AMC 1048 (C. the bill of lading clause specified United States law and U. v.S.. the port of discharge. at pp. 1694 (D. 673. Nor did the provision require suit to be brought exclusively in any one specific forum. provision of an adequate remedy for the aggrieved party.186 131 F. 2001). Fritz Transportation International. In Interamerican Trade Corp. the lack of trial by deposition.D.181 the allegedly “deplorable state of India’s court system”. 184 2002 AMC 106 (N.. Other evidence indicated that Brazilian courts were fully competent and that trial there. S. held to be “unreasonable”. Co. 178 . 2001).2d 787 at p. the slowness of the Brazilian judicial process. Tex. 1995).2 million U. was nevertheless not unjust. U. Companhia Fabricadora De Pecas. 179 973 F. v. Cal. Supp. unreasonableness was found in the “floating choice of law and jurisdiction clause” considered in LG Electronics Inc. were invoked in enforcing the jurisdiction clause. the transshipment port or the place of delivery).2d 487 at pp.
where the clause was so much more narrowly drafted. however. Attachment and Related Maritime Law Procedures” (1999) 73 Tul. 429-431.htm. Inc. the language of the clause in the Carbon Black case was far different”. 418.189 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 Conklin & Garrett. v. Rev. S. where the jurisdiction clause in the towage contract stipulated that:190 “…(a)ny dispute arising must be treated before the London Court of Justice".S. Geneva 2003 AMC 2511 (S. 1988 AMC 318 at p. L. Tetley.ca/maritime/arrest. 2721 (9 Cir. S. 1959 AMC 1327 (1959).. Co. 20.187 f) In rem . Ltd. itself.. 1933-1936 and on-line at http://tetley.law. ibid. M/V Finnrose 826 F. Indeed in M/S Bremen v. 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. Fla. 2. Maritime Liens & Claims. see also Alyeska Pipeline Serv. 191 Ibid. 1987): “Bremen. The jurisdiction was also convenient to the parties. The arrest of the ship in rem under Supplemental Rule C gives the Federal District Court jurisdiction.. 1408 (1972). 1983) re Supplementary Rule C.2d 381 at p. Accordingly. 384. 189 359 U. 1983 AMC 2719 at p. owners or agents of the vessel. it was held to be “unreasonable and unjust” to require the ocean carrier to defend the claim and cross-claims in two different districts. Dashwood Shipping. 190 407 U. 1998 at p. 2732 (9 Cir. however. 1 at p. 944. 2003). the U. 1972 AMC 1407 at p. and concluded that191 “…the language of the [Bremen] clause is clearly mandatory and all-encompassing. overrules the broad reading this Court gave to the clause in Monrosa.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. the wording of the foreign forum selection provision has been held wide enough to encompass claims in rem as well as those in personam. Carbon Black Export. International Maritime and Admiralty Law. Monrosa v. See Tetley. Lauritzen A/S v.United States A very particular problem arises in admiralty in respect to the enforcement of forum selection clauses. at p. The Vessel Bay Ridge 703 F.” 188 187 . The bill of lading jurisdiction clause did not specifically refer to in rem proceedings. “Arrest. so the forum selection clause was not enforced. although reading: “No legal proceedings may be brought against the Captain or shipowners or their agents except in Genoa. 408-409. See also Tetley. 2003 at pp. 1995). Mediterranean Shipping Co. but where the ocean carrier was also faced with crossclaims by co-defendant inland carriers arising out of the same facts. at p. 1422. 321 (5 Cir. 1995 AMC 2730 at p.A. 406407. 180. Zapata Offshore Co.S. 1443. See also J. 1895 at pp. The admiralty attachment under Supplemental Rule B also gives jurisdiction. Unlike the clause in Monrosa.D.S.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.mcgill. U.S. Supreme Court distinguished Monrosa.v. Ltd. AMC at p. Dias v.” The clause was held to be insufficiently specific to cover the in rem claim and thus the District Court could keep jurisdiction.2d 1441 at p. 2 Ed. most modern foreign forum selection clauses are not limited to claims against the master. See Tetley.
21(2).193 where the clause similarly subjected “… any claim or dispute arising under this Bill of Lading”. 20. to German law as determined in the “Hamburg courts to the exclusion of the jurisdiction of the courts of any other place”. . Va. (7) where the events in issue took place.196 The Hamburg Rules.m. 1. v.D.Y. but only upon the defendant furnishing security to ensure payment of a subsequent judgment. Lucent Technologies." The Ninth Circuit interpreted this clause to include in rem claims. 1995). 407 U. see also In re the Complaint of American President Lines.Y. Supp. Zapata Off-Shore Co. Supp. which has acquired jurisdiction by an admiralty attachment (under Supplemental Rule B). In Reed & Barton Corp. 18 at p. 1404(a) provides: "For the convenience of the parties and witnesses. at p.37 Again in Fireman's Fund Ins. (6) calendar congestion.Y. shall be brought before the Seoul Civil District Court in Korea" to encompass in rem claims. (5) the relative ease of access to sources of proof. any claim or dispute arising hereunder or in connection herewith shall be determined by the courts in Seoul and no other courts. this clause was broad enough to cover in rem claims.S. Lim.2d 352.V. . 359-360 (W. Jalisco 903 F.3d 1336 at p. Procs. 1611 (E. where the Court interpreted a clause that read "any and all action . under this Bill of Lading .S. 2004). 1270-1271.V. 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. 1985 AMC 356 at pp. 193 1999 AMC 1088 (S. 240 F. decline jurisdiction and dismiss the attachment or order the release of whatever security the defendant has posted. on March 31. 1997). Halla Maritime 583 F. Supp. 1978. Wash.199 131 F. 2002 AMC 1608 at p. v. 1268 at pp. 197 Signed at Hamburg. and in force November 1. .N. M. M. . The Court (at p.” 195 M/S Bremen (and Unterweser G.. and (8) the interests of justice in general. M. 2000). 1992. District Court pointed out that. provide useful rules and procedures when suit has been taken by an action in rem. Inc. g) Transfer within the U. 1972 AMC 1407 (1972). a district court may transfer any civil action to any other district where it might have been brought. Tokio Express.b. Co v." For an example of the use of this provision in a case involving a forum selection clause (in a cruise passenger ticket).S. Supp. 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. (4) the cost of obtaining the presence of witnesses. 584 (9 Cir.195 so can a court. N. DSR Atlantic. give effect to a clearly worded jurisdiction clause. Tex. 2002): “These criteria include: (1) the convenience of the parties. although some other jurisdiction is more appropriate. 1984). although it did not mention them expressly. 1090) also cited Industria Fotografical Interamericana v. 199 See Norfolk Dredging Co.D. M. in the interest of justice. N. (citations omitted). see Lurie v.194 In the same way that a court. Code sect. See also International Marine Underwriters v. which has obtained jurisdiction by an arrest in rem (under Supplemental Rule C) can nevertheless give effect to a jurisdiction clause and decline jurisdiction. 198 28 U. 2004 AMC 1278 (S. 1999). M/V Kasif Kalkavan 989 F. unlike the clause considered in Monrosa. Ltd. 1995 192 .3d 355 (2 Cir. 196 Teyseer Cement v. 535. .D. the U.V. 1998 AMC 583 at p.192 the clause stated: " .197 at art.S.D.D. 210 F. 1996 AMC 769 at p. 1998 AMC 765 (S. 1091. The parties agreed to the jurisdiction choices in the contract. Convenience is the main criterion.H. Norwegian Cruise Lines. 770 (S. (2) the convenience of material witnesses. Inc. 194 Ibid.) v. 305 F. supp. . 498. 1337. The suit is transferred. Tokio Express. 1998). aff’d without opinion sub nom.V.2d 532 at p. (3) the availability of process to compel the presence of witnesses.D.
N. 341 (S.) Ltd. Cho Yang Shipping Ltd. 2000). 629-630 (S. 2002). the shippers have been held bound by the forum selection clauses of the ocean carriers’ bills of lading. 2003). Paterson. v. 975 F.A. 1988) (perfume dealership contract).. N.Y.38 5) Jurisdiction clauses and third parties In the United States. 32 F. M. Hugel v.Y. Inc.C. 131 F. v. 1193-1194 (S.C. 1998 AMC 334 at p.C. standard-sized reusable containers that can be quickly loaded on and off ships and onto trucks or other types of transportation.2d 206 at p. 101. Schneider Freight USA Inc. D.” 200 See. N. Inc. Kukje Hwajae Ins.R.Y. N. App. 1980). Dukane Fabrics Int’l Inc. can oust these Courts of their jurisdiction in a matter that properly belongs to them”.D. 2951-2952 (E. 2002 AMC 1598 at p. 1702(17(B). 677 (S. Ltd. consolidating small shipments from multiple shippers into large. Included are the original choice of forum. Corporation of Lloyd’s 999 F. 204 The Fehmarn  2 Lloyd's Rep.S. 858 F. 191-194 (H. 2001 AMC 2153 at pp.D. Columbus Cello-Poly Corp. the shipper or the subrogated cargo underwriter).D. 197 at pp. 126. 201 See. Hrelijin 600 F. L.K. 315 (S.) and Adrian Briggs “The staying of actions on the .N. Supp. See also International Private Satellite Partners. third parties have been held bound by forum selection clauses in various types of contract. may be the owner of the goods. United States 883 F. Gucci Am. 2001).  A. 493 F. 1997) and other decisions cited there. 626 at pp. Co. where Denning. and is a shipper in its relationship with an ocean common carrier. 1995). 175 at pp. not as principals. 1985 AMC 1192 at pp. 209 (7 Cir.3d 1171 at p. L. Glyphics Media. 1989).203 202 X.). 1991 AMC 302 (summary) (D. 203. of North America v. 551 at p. Inc. 1602 (9 Cir. Farrell Lines. N.2d 787 at p. 202 at p. Inc. 514. 308. the relative familiarity of the courts with the applicable law. Compania United Arrows. 1993) (contract for membership in insurance market). so that it becomes “foreseeable” that they will be so bound.Y.D.Y.D. 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. 890 F. 1997) (contract for satellite communications services). 202 A NVOCC is “a common carrier that does not operate the vessels by which the ocean transportation is provided. M/V Hyundai Liberty 294 F.A.2d 93 at p. of Canada v. for that reason AMC 2296. For a useful history of the law of forum non conveniens in the United Kingdom.L. Supp. 555 (C. but it is subject to the overriding principle that no one. v.  2 Lloyd's Rep.D. Co. by his private stipulation. Conti Singapore 2003 AMC 667 at p. judicial economy. Other factors that inform the Court’s inquiry are intermingled with these considerations. 1985). and the public interest in the local adjudication of local controversies. S. the enforceability of the judgment. v.2d 509 at p. v.2d 118 at p. NVOCCs perform a function similar to overland freight forwarders. 483 at pp. 485-486 (W. (Emphasis added).Y.J. for example.Supp.V. 791. 1175.P.204 Those courts have the reputation of giving quick and fair justice and. see Lord Wilberforce in The Atlantic Star. See National Customs Brokers & Forwarders Ass’n v. v. 2303.  2 All E. Va. note 5 (9 Cir. the existence of a forum selection clause. but merely as agents of the shippers. 436 at pp.” See 46 U.Forum Non Conveniens Introduction It was the practice and tradition in the United Kingdom to jealously guard the jurisdiction of its courts. Cal.D. v.201 In particular. depending on the case. Allianz Ins. 207-210. Supp. 203 Indemnity Ins. Zochonis (U. 464-469.. Lucky Cat Ltd. 2158-2160 (C. where they have been adjudged to be “closely related” to the dispute. Supp. where freight forwarders or NVOCC’s (non-vessel-operating common carriers ) contract with ocean carriers. for example. citing Manetti-Farrow. 2000 AMC 2947 at pp. Supp. Cir.200 Jurisdiction clause in marine bills of lading have been held applicable to third parties to those contracts (who. 1) The United Kingdom . Co.
. but if the forum is England.  LMCLQ 360.  1 All E. 206 The Atlantic Star  A. 341: “. Rockware Glass Ltd. the passing of which many may regret. 197 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. 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. 201.A. 630 (H.R. Lord Diplock added in The Abidin Daver  1 Lloyd's Rep.U. 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. 197.C. thereby modifying Scott L. 382 at p. at p. that seems to me to recall the good old days.). at p.  1 K.): “My Lords. 339 at p.  2 All E. 181.L.'s statement of the rule in St.).R.  2 Lloyd's Rep. 436 at p.B. South American Stores (Gath and Chaves) Ltd. 795 at p. You may call this 'forum shopping' if you please.R. 709 (C.” The next step was MacShannon v.L. 453. It extends to any friendly foreigner. He can seek the aid of our Courts if he desires to do so.).206 2) The modern regime .A. 181 (H. 175 at p.L. 'lesser breeds without the law'.” ground of ‘forum non conveniens’ in England today”. . 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. 812.R.  2 All E.).  3 All E.an update”. All E. 175 (H. two conditions must be satisfied. 705 at p. 625 at p.. Pierre v. with all respect.J.K. 209  A.” Lord Denning's comment was specifically questioned “with all respect” by Lord Reid in The Atlantic Star.” 207  A. 205 The Atlantic Star  2 Lloyd's Rep.or. it is a good place to shop in.  2 Lloyd's Rep. at p. 398 (C.C.C. but their Lordships rejected the technical argument that they were not entitled to consider such an offer made after the commencement of proceedings.R. where Lord Diplock established two rules:209 “In order to justify a stay. A. 451.39 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. 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. as Kipling more forthrightly phrased it. 446 at p. when inhabitants of this island felt an innate superiority over those unfortunate enough to belong to other races. 200. 208 Ibid. An offer to provide security was made after the proceedings had commenced.” To which quotation.  LMCLQ 227 and in a subsequent article “Forum non conveniens . 454. Lloyd's Rep.C. 436.
R. 344. in my opinion.). in referring to a comparison of the quality of justice obtainable in England and elsewhere.J.L. 126-127 (C.e. referring to The El Amria  2 Lloyd's Rep. there is of course authority binding on me which deplores any discussion or entertainment of those types of argument.L. v. in which the case may be tried more suitably for the interests of all the parties and the ends of justice. The Al Wahab and The Abidin Daver.. 365 at p.”211 The foregoing views. Lloyd.and this feature was added by Lord Diplock in The Abidin Daver:212 “. Co.). W. 375 (H.” Finally in The Spiliada. Nothing is gained by any discussion of the relative merits of various different procedures.L.).” Thus by its decisions in The Atlantic Star.). 211 More recently.. 343. in a foreign forum is to be based upon objective standards supported by evidence. indistinguishable from the Scottish legal doctrine of forum non conveniens. and Amin Rasheed. in the field of law with which this appeal is concerned. MacShannon. at p.40 In The Al Wahab (Amin Rasheed Shipping Corpn. or methods. 339 at p. 196 at p. L. are lacking in one respect a reasonable balance between the interests of the parties . the balancing of advantage and disadvantage to plaintiff and defendant of permitting litigation to proceed in England rather than. per Lord Justice Brandon). at p. 202 (H. at p.A.K.). the House of Lords had gradually adopted the doctrine of forum non  2 Lloyd's Rep.R. 371 (C. declared in New Hampshire Ins. to embark upon a comparison of the procedures. MacShannon.” Lord Diplock continued and summed up the change in the attitude of the English Courts:213 “My Lords. noted: “It is not appropriate. 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.. nevertheless. 214  1 Lloyd's Rep.  2 W. which is the appropriate forum for the trial of the action. 10. Furthermore. approving a statement by Hobhouse J. 215 Ibid.A.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. 213 Ibid.L. or reputation or standing of the Courts of one country as compared with those of another (cf. having competent jurisdiction.210 Lord Wilberforce. 119 at pp. Lloyd's Rep.. and The Spiliada. i. 210 . 203. 361 at p. or as well as. The El Amria U.): ""Every court has different procedures.L. 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. Kuwait Insurance Co.." 212  1 Lloyd's Rep. 1 (H. Strabag Bau  1 Lloyd's Rep. v.
Pompey v. In the El Amria itself.222 reiterated by the House of Lords in Donohue v. The Sennar (No. The Pioneer Container  2 A. 251 (C. 324.216 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. 380 at p.L. 119 at pp. 1 at p. 327.b.I.C. of Canada v.). for example. See also The Nile Rhapsody  1 Lloyd's Rep 382 (C.A. 123-124 (C.A.L. 237 at p. The Pioneer Container  2 A.C.L. 154-155 (C. 123-124 (C. 154 (C. (No. 1095. v.  1 Lloyds Rep.41 conveniens. 283-290. 3 Ed.A. 324 at p. 521 at p.). 224 The El Amria  2 Lloyd's Rep. 425 at pp. High C. The People's Insurance Co. 119 at pp. See Akai Pty Ltd. (4th) 577 at pp. Standard Chartered Bank v Pakistan National Shipping Corporation  2 Lloyd's Rep 365.). In this latter judgment. 226 Unterweser Reederei G. 586-587. 123-124 (C.A.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.m. Armco. 235 (C.). 593 at p.R. ___ (Aust.C. 3) The rule in The El Amria In the The Eleftheria. 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. and in many more recent decisions. 225 The agreement must be valid and enforceable and the claim must fall within the scope of the agreement.). 2002. 221  2 Lloyd's Rep. 227 The Sennar (No.A. 450 at p. Neptune Orient Lines Ltd. N. 527 (H.  2 Lloyd's Rep. (2) The discretion should be exercised by granting a stay unless strong cause227 for not doing so is shown. The Regal Scout  2 F. paras.). the English Court.A. but Brandon L. 237 at p. 218  2 Lloyd's Rep. 119 at pp. including notably Z.). 4. and the defendants apply for a stay. 242. 10 (H. (1996) 141 A. no doubt with some satisfaction.21 to 4. see Briggs & Rees.). (The Humber Bridge)  1 Lloyd's Rep 72.  1 Lloyd's Rep. 222 See The Pia Vesta [198411 Lloyd's Rep. Baghlaf Al Zafer v.).4. The Eleftheria rule has been cited in Canada in Agro Co. 432-433 (H. 171. despite the choice of a court in Alexandria. 856. 142 at p. In The Spiliada  1 Lloyd's Rep. At first this remarkable decision was not generally followed. (No.R.A. 2)  1 Lloyd's Rep. is not bound to grant a stay but has a discretion226 whether to do so or not. v. 244 at p.). See also The Sennar (No.R.  2 Lloyd's Rep.).. 229 at p.). 158 at p.A.L.). ECULine.  1 Lloyd's Rep 593 (P. 12851286.R. how The El Amria had been cited by others.J.  1 S. in fact failure to cite oneself is often evidence that the previous statement was erroneous. 142 at pp.23 at pp.219 Brandon J. Pakistan National Shipping Co. 851 at p.. 1) 2 Lloyd's Rep.).  1 WLR 1367 and The MC Pearl  1 Lloyd's Rep 566. Zapata Off-Shore Co.H. Citi-March Ltd. 169 at p.). 527-528 (H. Armco Inc. 459-460. The rule has also been referred to in Australia.). 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. v.L. The Eleftheria  1 Lloyd's Rep.A. Civil Jurisdiction and Judgments. 605 (P. Baghlaf Al Zafer v. 1)  2 Lloyd's Rep. The Iran Vojdan  2 Lloyd's Rep.A.  1 Lloyd’s Rep. (2003) 224 D. 220 Proving that it is quite fitting to cite oneself. 237 at p. 223 Donohue v. jurisdiction was kept in England because the witnesses were English and related litigation had already commenced in 216 . 2003 AMC 1280 at pp. 2)  2 Lloyd's Rep. 521 at p. assuming the claim to be otherwise within its jurisdiction. Ibid.L. 2)  2 Lloyd's Rep. 374 at p.V.C. per Lord Bingham).. 229 (C. The Benarty  3 W. Lord Brandon noted. For further commentary on these points. Pakistan National Shipping Co.C. 242. 219  1 Lloyd's Rep. 385. Ltd.C. Lord Goff formulated an authoritative approach to forum non conveniens: 217  1 Lloyd's Rep. 163 (C. 242. 1082 at p.L.
C.A. 237 at p. 76 at p. where it was suggested that if the failure to protect time in the chosen foreign forum was not the fault of the claimant. Hyslop  3 N. 293. C.A. 2002 at para. 288.L.R.Z. For the same principle in Australia. 710 at p.A.C. may properly be regarded: (a) In what country the evidence on the issues of fact is situated.C. supra. at p. 172.).A. v. at pp.L. v. The Vishva Prabha  2 Lloyd's Rep. The Traugutt  1 Lloyd's Rep.L. and the effect of that on the relative convenience230 and expense of trial231 as between the English and foreign Courts. 450 at pp. 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. or are only seeking procedural advantages. van Heeren  1 N. 461-469. 2)  2 Lloyd’s Rep. 286 at p. or more readily available.).  1 Lloyd's Rep. Inc. 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. See also in appeal  2 Lloyd's Rep. where the advantage of the English process of discovery was held not to be a consideration. see Ocean Sun Line Special Shipping Co. 233 The El Amria. where the plaintiffs in a cargo claim failed . 2)  2 Lloyd's Rep. 155 (C. 234 The Iran Vojdan  2 Lloyd's Rep. 387.R. but without prejudice to (4). the clearly more appropriate forum for trial.A.  1 S. the foreign time bar might be grounds for refusing the stay.Z. The El Amria.A.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. 349 at pp. 142 (N. (1996) 188 C. 231 The Traugutt. 721 (C. But see also The Pioneer Container  2 A.R. (4th) 577 at pp. see also The Pia Vesta  1 Lloyd's Rep. C. 76 at p. at p. and why England is. 473 and 479. Bertola S. See Briggs & Rees. 377 and 385 (C. High C.25 at p. and in New Zealand.233 (d) Whether the defendants genuinely desire trial in the foreign country. 125. 169 at p. Conversely. 246. if so.R. whether it differs from English law in any material respects. 230-231 (Aust. 380 at p. 514.I. 142 at p. 4. 288. v. 418 at pp. (b) Whether the law of the foreign Court applies and.232 (c) With what country either party is connected.L. The Eleftheria  1 Lloyd's Rep. Civil Jurisdiction and Judgments.). 2)  2 Lloyd’s Rep.R.236 (iii) be faced with a time-bar237 not England. 2003 AMC 1280 at pp. 3 Ed.). after all.). The Vishva Prabha  2 Lloyd's Rep. who was Counsel for the plaintiffs. 551 (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”. Fay (1988) 165 C. 245. The “strong cause” requirement was also strongly reaffirmed by the Supreme Court of Canada in Z. But in The Bergen (No. Akai Pty Ltd.). 1287-1293. 324. and how closely.42 (3) The burden of proving228 such strong cause is on the plaintiffs. 126-127.L. ibid. 229 Where there is a forum selection agreement.). (5) In particular. 428-429 (Aust. Pompey v. 230 The Traugutt  1 Lloyd's Rep.229 (4) In exercising its discretion the Court should take into account all the circumstances of the particular case.). 228 The Fehmarn  1 Lloyd's Rep.  1 Lloyd's Rep 593 (P. v. H.L.Z. Stay was refused where the delay for suit had expired in the foreign court.  1 W. The People's Insurance Co. (ii) be unable to enforce any judgment obtained.A. 288.). 286 at p. supra.A. where they arise.Z. ECU-Line N.) and Kidd v. it would lose its only available security. 286 at p. High C.R. See also The Sidr Bashr 235 The Lisboa  2 Lloyd's Rep. 511 at p.. 586-592. 232 The Eleftheria. 79. 79 (convenience to the parties and to witnesses).A. 550 and 552 (C. By refusing the cargo owner the right to arrest in England. 135 at p. Brandon. see Society of Lloyd's & Oxford Members' Agency Ltd. 453 at pp. 197 at pp. see also The Sennar (No. Ltd. 546 at pp. 236 Evans Marshall & Co.V. 324 (N. supra.). 237 The Vishva Prabha  2 Lloyd's Rep. See also The Bergen (No. the following matters. 710 (C.R. where there is no forum selection agreement. (2003) 224 D.V.
v. Metro v. v. Dee Howard Co. 243 In both res judicata (also termed estoppel by judgment) and chose jugée. 679-680. Ace 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. 405 at p. This is not really a problem of jurisdiction or of forum non conveniens. requiring the plaintiff to show “strong reasons” why the contractually agreed forum should not try the case. 376-377. 618 at p. 104. and the importance of Chilean law (the law of the place of performance of the bill of lading contract under the Rome Convention 1980).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”. People’s Ins. 410. They have been added for the purposes of this commentary.. after consideration of all relevant circumstances. CSAV  1 Lloyd’s Rep. where factors such as the greater availability of evidence in Chile.  1 Lloyd’s Rep. 240 Mercury Plc. (Comm) 33 at p. Metro v. See generally Phipson on Evidence. The stay was therefore granted. 2000 at paras. 15 Ed. the Court held that the defendants should not be denied the right to rely on the foreign time-bar (which also applied under art. 410.). Co. 38-23 to 38-64. 40. Ltd. 630. the latter of which cases concerned a non-exclusive jurisdiction clause. ed.  1 Lloyd’s Rep. Ltd.  2 All E. 405 at p.239 whether the jurisdiction clause is an exclusive or non-exclusive one. See also Metro v. 368 at pp. racial. 119 at p. .43 applicable in England. but of recognition of a foreign judgment. Zurich Ins.N. were found not to be strong enough reasons to overturn the non-exclusive English forum selection clause. of course. v. whether or not the English proceedings will be stayed will be determined by the court in its discretion. 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. Metro v.) It has been held more recently in England that this basic approach. Ltd. 3(6) of the Hague and Hague/Visby Rules). and even arguments as to multiple proceedings. 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. 405 at pp. applies whether the contractual forum is England or another country. not grant jurisdiction to a claimant if the same question has already been heard in a foreign court. 405 at p.. Mobil Sales and Supply Corp. 3) the same object. 45.  1 Lloyd’s Rep.  1 Lloyd’s Rep. CSAV  1 Lloyd’s Rep. gen.C. Sweet & Maxwell. CSAV  1 Lloyd’s Rep. Q. 410. (M. 241 JPMSA v. Howard. 670 at pp. 127.240 and whether the clause was negotiated by the parties or was only a term in a standard-form contract. by taking suit there within one year of discharge of the cargo. 41 at p. MNI  2 Lloyd’s Rep. 2) the same subject matter. 238 The El Amria  2 Lloyd's Rep. 239 Akai Pty. 242 British Aerospace Plc v.242 4) Res judicata A court must.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. even when the cause of action in the subsequent proceedings differs from that in the original proceedings. or (iv) for political. on the usual forum non conveniens principles applied in cases where there is no jurisdiction clause. London. CSAV  1 Lloyd’s Rep. 90 at p.R. Sinochem International Oil (London) Ltd. there must be the three identities: 1) the same parties acting in the same qualities. Furthermore. Communication Telesystems Ltd. Co. 410-416. Where a nonexclusive jurisdiction clause permits suit in or out of England.
A.J. could have resulted in Dutch law being applied (because the clause also invoked Dutch law). 1002. – 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. 250 Hereinafter described as the Brussels Convention 1968 ( O. will necessarily be a violation of art. because the carrier was seeking to rely on tonnage limitation.. such as the Indonesian Commercial Code.). 935 (H. 246 1971 U.249 however.E. Their Lordships were careful to note that not every jurisdiction clause.). Shore 439 U. 3) there must be identity of parties. L.e. where the U. 1 at pp. v. 3(8) of the 1971 Act and of the Hague/Visby Rules.J. it has been held that there need not be identity as to the parties for collateral or issue estoppel to apply: W.  1 Lloyd's Rep.E. Supp. 2) the judgment must be final and conclusive and on the merits. particularly in cases where one of the The Sennar (No. 319/9.S. however. 248  1 A. 322 (1979).) (where the case is styled The Hollandia).L. and. Therefore jurisdiction was retained by order of the Court of Appeal247 and the House of Lords. 8 of the Hague/Visby Rules and of the 1971 Act used the words “any statute”.S. In The Morviken.).C. selecting as forum a court which does not apply the Hague/Visby Rules. permitting transfer of the suit to Djakarta. 574-575. where issue estoppel is often referred to as collateral estoppel. c. Supreme Court severely limited the doctrine of mutuality. The damaged cargo had been shipped from London and continental European ports. Carl Zeiss Stiftung v. although the tonnage limitation under Indonesian law was much lower than under English law.L. 245  1 A. 6-7 (H. 1 (H. N. 251 The Lugano Convention on Jurisdiction and Recognition of Judgments in Civil and Commercial Matters. This is termed “issue estoppel”. adopted at Lugano on September 16. 1988 (O. 565 at pp.C. since art.. Rayner & Keeler Ltd.C. English law The choice of forum clause (jurisdiction clause) must not reduce the carrier's responsibilities under the applicable law.11. 527 (H.C. 325 (C. 1979). 521 at p. 6) U. i. Hellenic Glory 471 F. and 4) there must be identity of subject matter. 565. 247  1 Lloyd's Rep. it was held that in order to establish issue estoppel: 1) the judgment must be given by a foreign court of competent jurisdiction. 2)  A. In the U.  1 Lloyd's Rep. 853 at p. This would have meant a lower per package limitation and thus a violation of art. 31. 3(8) of Visby or the U. In The Good Challenger  1 Lloyd’s Rep.).). 19. .44 not be relitigated in the subsequent proceedings if it arises once again.245 the applicable law was the English version of the Hague/Visby Rules. being the Carriage of Goods by Sea Act 1971. the Hague Rules 1924. Inc.).E.1972).Y. 244 (C. L. 1971.C. 249  2 Lloyd's Rep.12.K. Roberts v. meaning that the issue decided by the foreign court must be the same as that arising in the English proceedings. 2)  1 Lloyd's Rep.K. It was held that the transfer of jurisdiction did not offend art. (No. not package limitation.A. stay was ordered.246 Transfer of the case to a Dutch court in accordance with the jurisdiction clause. Carriage of Goods by Sea Act.244 5) Public policy.D.L.A. 25. that article meant that an applicable foreign tonnage limitation statute.U.J. 67 at p. referring to Parklane Hosiery Co. was not affected by the provisions of the Rules. 1979 AMC 2152 (S.K.248 In The Benarty.S. 77 (C.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 .L. 299/32. 3(8).
227-228.257 In the meantime..  EWCA Civ. adopted by the Council of the European Union on December 22. The Court of Justice of the European Communities.A. in Coreck Maritime GmbH v.R. 877.  4 All ER 543 (C. Re (No 2)  4 All ER 348. Den Norske Bank ASA  Q.  3 W. 337 at p. See Briggs & Rees. Jackson (t/a Villa Holidays Ball-Inn Villas)  EWCA Civ. as of March 1..210 to 2.A. Anton Durbeck GmbH v.M. 252 Harrods (Buenos Aires) Ltd. para.214 at pp.. 535 and Cheshire & North's Private International Law (P. Handelsveem BV of November 9. L 12/1.: C-387/98)  ECR I-9337. 13 Ed. See also Haji-Ioannou v.). or EFTA. . of the Brussels Convention 1968.260 in favour of courts outside such European Free Trade Association (EFTA) other than Liechtenstein (viz. ibid. Civil Jurisdiction and Judgments.A. para.) (giving effect to a service of suit clause providing for U.). DMF 2001.  All ER (D) 26 (Mar).A.). 2000. This holding would seem relevant under EC Regulation 44/2001 as well.U. in respect of civil jurisdiction and the enforcement of judgments. litigation).B. London.J. 16. appeared to confirm this position.U. 256 Denmark chose not to bound by the EC Regulation. 17. eds. see O. Ph. and American Motor Ins.210 at p. 259 See Ace Ins.R. unreported.256 The European Court of Justice is expected to rule on the issue on more recent references by English courts.) (forum non conveniens applied to send dispute to Panama). 2002.  All ER (D) 294 (Jul) (Q. 2. 618 at pp.C.A.).1..218 at pp. 1160. Fawcett. 346 (C.. court. unreported. 2002 at paras. the validity of the clause must be assessed in accordance with the conflicts rules of the forum. 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.. (Case No. and yet the "natural forum" for the litigation (i. 1999 at pp. 257 The English Court of Appeal has requested the European Court of Justice to rule on this question of interpretation of the Brussels Convention. Thus a U. See also Lawrence Collins. "Forum Non Conveniens and the Brussels Convention"  L. 3 Ed. 2000. v. 217-223. Cellstar Corp.  1 Lloyd’s Rep.  Ch 72.Q. 260 See Travelers Casualty and Surety Company of Europe Ltd. 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. 622 and 626 (C.e the jurisdiction having the most real and substantial connection with the case) is determined to be a non-Member-State.).J. 206 (C. 397 (C. and in force in all Member States of the European Union except Denmark. and therefore is still governed by the Brussels Convention 1968 in its relations with the other Member States of the E.. 187.B.A. Norway and Switzerland. 2.). North & J. which became a party to the Lugano Convention in 2000).K.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. v.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. S.  All ER (D) 130 (Jun) (C. as well as Poland. Delebecque. Iceland. 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. 264-266. The English Court of Appeal decided in Re Harrod's (Buenos Aires) Ltd. Co. 217. first para. ibid.-N.  EWHC 1704.A. obs. under art.L. Butterworths. Zurich Ins. as well as EC Regulation States. 255 EC Regulation No. would appear to be free to apply its forum non conveniens analysis.45 defendants is domiciled in a member-State of the E. 258 Supra. Co. 2. as part of its conflicts of law rules.E. Frangos  2 Lloyd’s Rep. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters.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. 253 See Briggs & Rees.V. See Owusu v. without such action infringing the Brussels Convention. 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. v. For the text. Sun Life Assurance Company of Canada (UK) Ltd.U.2001.
A. 382 (C. 23 are met. court in determining the validity of a jurisdiction clause in a bill of lading.262 In brief. State. 266 Service of process out of the jurisdiction is governed by the Civil Procedure Rules 1998. 264 November 9. such leave is not necessary. the courts of other Member States shall have no jurisdiction over their disputes unless the court or courts chosen have declined jurisdiction. State.  ECR I-9337. 1999. giving effect to an Egyptian choice of law clause in a case where an English defendant was sued in England. aware and which in such trade or commerce is widely known to. Member State. Some of these decisions have applied forum non conveniens to enforce jurisdiction clauses requiring litigation of disputes in such non-Member States. 1998 and in force April 26. The Nile Rhapsody  2 Lloyd’s Rep. Art.266 a) Where leave is not required-CPR Rule 6. 237 at p. 23(1) and (2)). obs. Handelsveem BV would be applicable. where the conditions of art. 23 of EC Regulation 44/2001 applies and requires the courts of Regulation States to stay the proceedings in favour of the specified court. of the Brussels Convention 1968.’s Civil Procedure Rules 1998. or c) in a form which accords with a usage in international trade or commerce of which the parties are. parties to contracts of the type concerned (art. made December 10.U. the Civil Procedure Rules 1998 are referred to under their common abbreviation. 387-98). To effect service out of jurisdiction. the claimant will serve a claim form265 on the carrier who at times is out of the jurisdiction.The 1982 Act and CPR rules 6. 17.U. Ph. 263  1 Lloyd's Rep. first para. or b) in a form which accords with practices which the parties have established between themselves. Delebecque. 265 “Claim form” is the new term for “writ” under the U.U.K.46 States. 1987.).U. 2000 (Case No. 23(3) also provides that where a jurisdiction agreement is concluded by parties. or ought to have been. 261 .19 and 6.20 To commence an action to recover for loss or damage to cargo in England. supra. in other cases.19(1) See. of the Brussels Convention 1968 at section VI.K. and regularly observed by. 23 is almost identical in wording to the most recent text of art 17. replacing the former Order 11 of the Rules of the Supreme Court 1965. The principles set out in The Eleftheria263 would therefore be applied by a U. first para.261 With respect to jurisdiction clauses calling for adjudication of disputes in an E. and which bind parties one or more of whom are domiciled in an E. the jurisdiction clause designating the forum of another E. State must be either: a) in writing or evidenced in writing (including electronic form). none of whom is domiciled in an E. “CPR”. As regards the jurisdiction clause's enforceability as against consignees and subsequent endorsees. 23 of EC Regulation 44/2001 and the most recent text of art. 262 See the discussion of the conditions of art. 242. art.  1 Lloyd’s Rep. in so far as those principles indicate whether the clause in question accords with international trade or commerce.264 7) Service out of jurisdiction . SI 1998/3132. 399. which came into force on January 1. to comply with art. for example. Art. the claimant in some cases must obtain leave of the High Court. In this article. the test provided by the European Court of Justice in Coreck Maritime GmbH v. 2001 DMF 187. 23.
275 CPR rule 6. 274 CPR rule 6.K. The term “domiciled”. provided that either the claimant or the carrier is domiciled in such a state.270 i. applicable to all proceedings instituted on or after March 1. however. 270 EC Regulation 44/2001 of December 22. L. sects. 269 CPR rule 6. rule 6. other than Denmark271. 16. reflecting the EC Regulation 44/2001 and paras. c.19(1)(b)(i).18(g)(i) and U. 272 CPR rule 6.19(1)(b)(iii).19(1)(a). domicile has a similarly broad meaning. U. 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. 273 SI 2001/3929. 276 CPR rule 6. in commencing his action there. 23 of the EC Regulation 44/2001.1. 1982.47 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”.2000. 23 267 268 CPR rule 6. 271 CPR rule 6. CPR rule 6. the only court that has jurisdiction. 27. . c.e. 2002.C. a particular part of it or a particular place within it. in relation to a Convention territory. therefore. 41-46. 1(3). 12/1.K. In relation to a “Regulation State”. has a wide meaning in the light of sects.. or any other Convention territory 276 or any other Regulation State. 1982.U. There is an important proviso.K. 9 to 12 of Schedule 1 of this Order define the conditions under which a person is “domiciled” in the U. 17 of the Brussels or Lugano Conventions or art. Paras. b) Where the court's leave is required – CPR.19(1A)(b)(i). art. 27.. O.19(1A)(b)(iii).269 while the term “Regulation State” means a Member State as defined in EC Regulation 44/2001..J. 9 to 12 of Schedule 1 to the Civil Jurisdiction and Judgments Order 2001.273 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.E.19(1A)(a). can serve a claim form upon the carrier. 41-46 of the Civi1 Jurisdiction and Judgments Act 1982272 and clearly a defendant carrier can be domiciled in many jurisdictions concurrently. if the jurisdiction clause in the bill of lading designates the court of an E. without obtaining the court's leave.274 or on a court contemplated by art.268 The term “Convention territory” encompasses the territory or territories of any Contracting State to which the Brussels or Lugano Conventions apply.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. 277 CPR rule 6. who is out of that court's jurisdiction. 2000. the claimant.18(d) in defining “Convention territory”.18(k).275 In other words. a Member State of the EU.K. or an EFTA state.277 The court where the action is first commenced is. refers to sect. 17 of the Brussels or Lugano Conventions applies. 1(1) of the Civil Jurisdiction and Judgments Act 1982.
. or for an injunction ordering the defendant to do or to refrain from doing an act within the jurisdiction (CPR rule 6. 284 For example.20(7). 3 Ed. not subject to the jurisdiction of the High Court) (CPR rule 6. U. rule 6.e. service out may also be authorized where a claim is made for a remedy against a defendant domiciled in the jurisdiction (CPR rule 6.278 There are various grounds listed in CPR rule 6.284 In the light of The Spiliada. 1991.21(1)(b)). Claims to enforce a judgment or arbitral award may also authorize service out (CPR rule 6. Civil Jurisdiction and Judgments. in contractual matters.L. where these authors state that CPR. or b) to enforce a claim under sects. 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.20(5)(a) to (d). 4. 282 CPR rule 6.20(8). para.K. 324. 279 CPR rule 6. and 14 (H. 283 CPR rule 6.48 of EC Regulation 44/2001.21(2A)). on the other hand. 153.K. 3 Ed.288 For example. rule 6. 281 CPR rule 6. the claimant must obtain the leave of the High Court to serve the defendant outside of the jurisdiction.).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. The claimant must also show that 2) the grounds on which the application for service out is made and the paragraph(s) of CPR. U. 287 The claimant must show that 1) England and Wales constitutes “the proper place in which to bring the claim” (CPR. 1982.20(1)). 1 at pp.283 There are various other types of claim which authorize service out with the court's leave as well.20(6). rule 6. 363. 285  1 Lloyd's Rep. an exclusive jurisdiction clause). para.20(2)). the burden of proof is on the plaintiff to show that the forum is the most appropriate.20 relied on in this regard (CPR. a claim form may be served out of the jurisdiction with permission of the court if the contract was made within the jurisdiction. Civil Jurisdiction and Judgments. at p. 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 6.279 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. For example.287 When the court is asked to stay an action on the ground of forum non conveniens. 2002. or for an interim remedy under sect. as well claims relating to property in the jurisdiction (CPR rule 6.20(5)(d). rule 6.20(17A)). See also Briggs & Rees. 21 (CPR rule 6. 154 or 175 of the Merchant Shipping Act 1995. 288 The Spiliada  1 Lloyd’s Rep.20(9)). See also Briggs & Rees.K.20(4)). 280 CPR rule 6. c. 25(1) of the Civil Jurisdiction and Judgments Act 1982. 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. rule 6. at p.).20(10)).20 justifying the grant of leave to serve the claim form out of the jurisdiction.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..L. 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.33 at p. 13. 2002.20(9). 286 Ibid.286 When leave is sought to serve out of the jurisdiction.21(2A) 278 . 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. 5. 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.54 at p. 1 (H. c. provided that service out would be justified if one did exist. 325..21(1)(a)) and that 3) he “… believes that his claim has a reasonable prospect of success” (CPR. See also ibid.
.292 at art.05-8. 2002. 24 of the 1968 Convention.K. rule 61. while at the same time granting a stay of proceedings in this country to enable the action to proceed in the appropriate forum. 292 International Convention on the Arrest of Ships. 290 Convention Relating to the Arrest of Sea-going Ships. Where the arresting court lacks jurisdiction under 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.Forum Non Conveniens Introduction . and cf. 26 of the Civil Jurisdiction and judgments Act. c. 28.). 15 (H. 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. 27. See N. Maritime Electric (1985) 60 N. at pp. I think. 26 of the Civil Jurisdiction and Judgments Act 1982. 46.293 It also recognizes forum non conveniens under national law. 293 Art. even though a jurisdiction clause has designated a court in another jurisdiction to decide the action on the merits. “Arbitration Clauses”.B. and (b) within 12 months after the date of issue. but not in force. it would not.294 XI. See also art. 1998. May 10. 1999.the principle The Federal Court Act295 of Canada stipulates at sect. 54. 203 (Fed. it may (or at the request of a party. 295 R.A. 3 Ed.289 Nor is it necessary to do so.. 1952. That Convention also requires respect for jurisdiction and arbitration agreements by the arresting court. 7. 4 & 5 Eliz. where Lord Goff stated “. c.3(5) specifies that the claim form must be served: (a) in accordance with the practice direction. CPR. 1982. See Tetley. This international convention has been almost completely implemented in the United Kingdom by the Supreme Court Act 1981. 1981. 291 See sect. 7(1) on the merits or has refused to exercise it under art.K. shall) order a period of time within which the claimant must bring proceedings before a competent court or arbitral tribunal (art. 7(1). 8.07 at pp. I understand. normally be wrong to allow a plaintiff to keep the benefit obtained by commencing proceedings here. and in force February 24.” 289 See Briggs & Rees. 294 Art. . or to arbitration. consistent with the manner in which the process of saisie conservatoire is applied in civil law countries.290 at art.. c. 1985. 2 Ed. 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. Civil Jurisdiction and Judgments. See The Spiliada  1 Lloyd's Rep.. C. 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. 1033-1036. 7(2) of the Arrest Convention 1999 provides that notwithstanding art. 1956. March 12.L. 2(3). U. 2. 7(3) permits the vessel to be arrested in one jurisdiction and held as security there.R. except where the parties validly agree or have agreed to submit the dispute to a court of another State that accepts jurisdiction. The Arrest Convention 1999. paras. adopted at Geneva. 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. 1 at p.291 Similarly art. U. 1982. 1982. Electric Power Commission v.C. Maritime Liens & Claims. 5077-508. 7(2). now happily in force.). c. 7(2). Brussels. found as Schedule I to the Civil Jurisdiction and Judgments Act. The Arrest Convention.S. which replaced the former Administration of Justice Act. 50(l) that: is intended to reproduce the substance of the previous case law. Such a conclusion is. contains a similar provision. 1956. 7(3)). sect. 1) Canada .” See also Chap. the courts of the State in which the ship has been arrested or security has been provided for its release.
v. whereas in seeking a forum non conveniens stay. 303 (Fed. the defendant had the onus of proof. The Ship Capricorn. 298  A. and they include the balance of convenience to all the parties concerned. (3d) 261 at p.C. 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. The Ship Friedrich Busse (1982) 134 D. 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). 303 Ibid.. stay proceedings in any cause or matter. v. 812 (H. Ritchie.C.C. 269. Ct). Supr. in Amchem Products Inc.. 296 . 895. The Nosira Lin.L.300 definitively opted for the English view of forum non conveniens. Ct). 300  2 S. however. 5 at p.R.301 Concluding his analysis. 795 at p.” 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.R. 897. the Supreme Court of Canada considered the doctrine of forum non conveniens in determining whether the Court should direct for service ex juris.C. 1 (H.C. 917 and 921. (1982) 27 C. in its discretion. at p.). 304 (Ont.50 “The Court may. Plibrico (Canada) Ltd.R. Holdings Ltd. 301  1 S. 299  1 Lloyd’s Rep. and the cost of assembling foreign witnesses.297 relying on the two criteria (positive and negative) laid down by the House of Lords in MacShannon v. including the House of Lords The Spiliada. BP Can.P.” See also Kuhr v.). 921. 448. Suncor Inc. at pp. 297  1 F. 422 at p.” Canadian courts followed the English courts on the question of forum non conveniens in decisions such as Yasuda Fire & Marine Insurance Co. 442.298 In 1993. Westmin Resources (1983) 32 C.299 as well as its own precedent in Antares. v.296 a case involving an application for leave to serve ex juris. the impropriety and inconvenience of trying a case in one country when the cause of action arose in another where the laws are different. 300 at p. citing various authorities. 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. including the plaintiff. the Supreme Court of Canada.P. 302 Ibid. … (b) where for any other reason it is in the interest of justice that the proceedings be stayed. Sopinka J. stated that: “The factors affecting the application of this doctrine have been differently described in various cases .303  2 S. (1984) 52 N.” In Antares Shipping v. British Columbia (Workers’ Compensation Board).).R.A. 8 (Ont. C.C. The burden of proving the clearly more appropriate forum fell on the plaintiff in service ex juris motions.R. v. the undesirability of trespassing on the jurisdiction of a foreign state. C. J. Rockware Glass Ltd.L.L.
C. applies forum non conveniens slightly differently.) and Club Mediterranee NZ v. 255 (Fed.V. (4th) 577 at pp. unless arrived at on wrong basis or plainly wrong).C.I. ibid. (2001) 185 F.  ETL 39 (Fed. the landmark New Zealand decisions in McConnell Dowell Constructors Ltd.V.R. 221 (Fed. C. C. leave to appeal to Supreme Court of Canada denied  S. Pompey v. Can. 450 at pp. Can.).A.C. v. Itochu Canada v. v.  3 F. C.A. the authoritative summary of principles by Brandon J. Can. 278 (Fed. The Fu Nin Hai (1999) 173 F. Great Tempo S. 538 (Aukst. C.304 2) Jurisdiction clauses . (1998) 173 F. 140 at p. High C. 203 (Fed.T.51 The clearly more appropriate test continues to apply to forum non conveniens decisions in Canadian case law today.). 305  1 Lloyd's Rep. 418 at pp.). C.310 See. C. 461-469. C.C.A. See also Agro Co.  3 F. v. 234 (Fed. C. 307  1 S.L. 851 at p.R. 308 Z.R.C. Abta Shipping Co. C.). 144. C. 304 . 54 (Fed. 404. of Canada Ltd. and rejected the “tripartite test” applicable to motions for interlocutory injunctions. 309 Burrard-Yarrows Corporation v.306 and was reaffirmed by the Supreme Court of Canada in 2003 in Z.the criteria . v. 242.Z. C. Manildra Flour Mills (1990) 171 C. including maritime case law.). C. v. Lloyd's Syndicate  2 N. Napa v.R.A.C.R.R.Z.R.586-592. 427-428 (Fed. Can. in The Eleftheria305 has been relied on in quite consistently over the years.C. See also Bomar Navigation Ltée v.Z.A. per Morneau. Nissho Iwai Co. 418 at p.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”. The Erato  1 F. 310 The Agelos Raphael  1 Lloyd's Rep. Jian Sheng Co.309 c) A strong reason for not honouring a foreign jurisdiction clause may be that all the facts are in Canada.L. The Hoegh Merchant  1 F.).L.).).R. as fully articulated in England in The Spiliada.307 a) There must be “strong reasons” for not honouring a jurisdiction clause calling for jurisdiction before a foreign court. for example. The Hoegh Merchant  1 F. 216 (N. Great Tempo S. but rather on whether the Australian forum is clearly inappropriate.C.R.R. 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.) (cargo claim). and 3) which party would suffer the greater harm as a result of the granting or refusing the interlocutory injunction (or stay). v. See Voth v.C. Can. (1996) 106 F. 427. 105. 2) whether the party seeking the interlocutory injunction (or stay) would suffer irreparable harm unless the injunction (or stay) were granted. focusing not on whether there is a more clearly appropriate forum elsewhere. Shanghai Ocean Shipping Co. 2003 AMC 1280 at pp. 856 (Fed. ECU-Line N. however.) (personal injury and death). 248 at p. Can. Can. of Can. A. Other Commonwealth countries have similarly adopted the forum non conveniens principle.I.T.T.). for example.C. 257 (N.R. 1287-1293. 306 Burrard-Yarrows Corp. per Hargrave. The Senator (1996) 112 F.T.A. This tripartite test involves a judicial determination as to: 1) whether there is a serious issue to be tried.). Pompey v. (1998) 225 N. See also Jian Sheng Co. C. 1867 (Fed. 314 (Fed. The Regal Scout  2 F. v. Australia. See also Trans Continental Textile Recycling v. 1998 AMC 1864 at p. v.L.Z.T. See. Can-Am Produce and Trading Ltd.Canada With respect to the enforcement of jurisdiction clauses.. P.). The Hansa Bay  F. Can. 287 (decisions of motions judges on applications for stays of proceedings based on foreign jurisdiction clauses should be upheld. Can.). ECU-Line N.A. Wendell  1 N. Anraj Fish Products Industries Ltd. (1999) 176 F. 495 (Fed. 250 (Fed. 237 at p. P. C.T.C.R. which the Federal Court of Appeal had found applicable to stay applications as well.) (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). Hyundai Merchant Marine Co. 231 at p. (2003) 224 D.
See discussion of this statute supra. 718. notably Louisiana and Québec. October 31.S. leaving such questions to be decided by the contractually selected foreign forum. Cour de Cassation. April 18.V.R. Québec Civil Code 1994. para.317 An action is not stayed or suspended so that suit may be taken in a more convenient court. ECU-Line N.C. (2003) 224 D. May 14. 14 of the French Civil Code. In Germany. 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. 46 of the Marine Liability Act.L. 1984. 1987. 1985.R.R. so that suit may be taken in a more convenient forum. Traité. 1295. constitutional provisions prevent German courts from refusing to exercise their statutory jurisdiction.p.). 2003 AMC1280 at pp. November 25.. F-7. contrary to art. 1981. (4th) 577 at pp. March 10. February 15. 6. DMF 1984. 3(8) of those Rules. It should also be noted that when the plaintiff in an action is of French nationality. Jurisdiction Clauses Restricted by National Law”. See also Tribunal de Commerce de Paris. mise à jour 1978. 520. (1983) 148 D. Affrètements & Transports. ECU-Line N.  1 S.g. art. 1983. 450 at p. 472. DMF 1985. 315 See the comments of the Supreme Court of Canada on this point in Z.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. of Canada Ltd.C. v. have incorporated forum non conveniens into their legislation. 1) France Introduction France and the civil law generally316 does not recognize the principle of forum non conveniens. (3d) 412 (Fed. Rather. 851.I. c. DMF 1986. 113. Z. 450 at pp. 1984. December 7. member state): Cour de Cassation.313 Sect. c. DMF 1985. affirming Cour d’Appel d’Aix.R. 1293-1295. 50 of the Federal Court Act314 to enforce foreign jurisdiction and arbitration clauses in bills of lading. fundamental breach of the contract of carriage). 314 R. C. i.q. 123 c. DMF 1985.-Y. DMF 1987. Cour d’Appel de Paris.V. 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.g. 1984. 313 S. 1986. 3135 c. 592-594. 2003 AMC 1280 at p.c.L. (2003) 224 D. 668 at p.C.U.L. The Regal Scout  2 F.C.315 XII.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. in force August 8. 104 with note by P.c. 594. 713. Pompey v. 46 in effect restricts the discretionary power of the Federal Court of Canada under sect.R.g. however. (4th) 577 at p. the right to request that an action already before a court with jurisdiction over the subject matter be stayed. 706.e. a foreign insured) in whose rights the plaintiff (e. see Rodière. the French court either has or has not compétence (jurisdiction).I. 2001. Pompey v. 316 A few civil law jurisdictions. of Can.311 e) Courts deciding on the enforceability of jurisdiction clauses should avoid considering substantive issues (e. See Louisiana Code of Civil Procedure.C. a French insurer) has been subrogated: Tribunal de Commerce de Paris. irrespective of the nationality of the person (e. 2001. 42-48 of the New Code of Civil Procedure (NCP).  1 S. Nicolas. the French courts will have jurisdiction by virtue of art. Agro Co. 317 The rules governing which court has territorial competence are found in arts. 312 311 . in section V. 341. 469-472. DMF 1982. 672. art.
1967. 483. January 11.4. Cour d’Appel de Rouen. 1966.318 In carriage of goods by sea cases. (J. D. DMF 1952. 1966 sur les contrats d'affrètement et de transport maritimes. April 11.324 This general rule is enshrined in art. 1936 prohibited jurisdiction clauses ousting the jurisdiction of French courts in cases of carriage between French ports in a French vessel (navigation réservée).319 The domestic Law of June 18. 189. 3) French domestic law . D. «La clause attributive de compétence à un tribunal étranger». DMF 1980. February 27. Amoussou. Presses universitaires d’Aix-Marseille.53 A jurisdiction clause validly agreed upon by two “commerçants” (merchants) will be recognized by a court which has jurisdiction to hear the case.S. Procedure 3. (J. September 30. DMF 1981. La clause attributive de compétence à un tribunal étranger. February 8. 318 . «Les clauses des connaissements attribuant compétence à un tribunal étranger sont-elles encore valables?» DMF 1980.4. 119. art. 1966. 323 Formerly. Fraikin et Boquet. 1966320 contains no prohibition in respect to jurisdiction clauses. See generally Bertrand de la Grassière. p. See Bertrand de la Grassière. 235. 321 Decree No. 165.e. however. 119.O. DMF 1980. See Fraikin et Boquet. 515. 1980. 2) Prohibition under law The rules governing territorial competence (i. the territorial jurisdiction rules were considered to be of private interest and thus derogations therefrom were permitted: Juris-Classeur. 75-99 NCPC: Les exceptions d’incompétence. 1937.321 In addition to stating that actions may be brought before the court of the French port of loading or discharge. DMF 1982. where the impact of the changes in the New Code of Civil Procedure is discussed. 515. A. June 24. January 13. Tribunal de Commerce de Paris. 48 of the New Code of Civil Procedure. DMF 1952. 66-1078 of December 31. DMF 1974. «Les clauses des connaissements attribuant compétence à un tribunal étranger sont-elles encore valables?». sur les contrats d’affrètement et de transport maritimes (J. 162 at p. September 25. 2002. D. 54 merely refers to the normal procedural rules that govern the validity of jurisdiction clauses. 75-1123 of December 5.e. 319 Loi relative aux transports des marchandises par mer. 1983. 322 Tribunal de Commerce de Nantes. 66-420 of June 18. 360. para. 1975. 54 of the Decree of December 31.4.295. 42-48 NCPC: Cour d’Appel de Bordeaux. Nor does art. 320 Law No. 397.S.O. 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. See arts. 206.323 the general rule is that choice of forum clauses are to be treated as unwritten and therefore with no effect. DMF 1983.1. Art. in which case the court will declare itself (“incompétent”) (without jurisdiction). 325 Established by Decree No. 1979. jurisdiction ratione loci) were formerly considered to be merely of private interest and thus derogation from these rules was generally permissible.. 1966 restrict jurisdiction clauses. Les clauses attributives de compétence dans le transport maritime de marchandises. 1936).322 art. 1981.jurisdiction clauses Under present French civil procedure. p.O. 54 is in fact merely a supplementary provision to arts.65. 1966. 1967. 496. 1974.325 (NCPC) which also establishes an important exception: i. fascicule 211. See Cour d’Appel de Rouen.K. 10 of the former Law of April 2.
330 Cour d’Appel d’Aix. with note by Normand. DMF 1983. DMF 1987. p. as well as in Cour d’Appel de Rouen. DMF 1979. 1982. 11. February 27. Achard. Tassel. 1984. 33. Cour de Cassation. 1983. 1980. without that clause being pointed out. 1979. 492. February 25. DMF 1985. however. February 13. trim. 270. 537. 1980. February 20. 1971. 331 Cour de Cassation.326 The clause must be clearly apparent so that the parties can be found to have given their informed and unequivocal consent to it. was not deemed consented to. 1971. and cannot decline the jurisdiction of that court even by invoking a jurisdiction clause: art. Achard. November 14. jur. DMF 1998. 678 with an excellent commentary by P. where the foreign court was not determinable and the clause was therefore unenforceable. 118. Thus a clause printed in ultra-fine letters below the line where the party was to sign. 1979. 1980. 1987 so that the shipper is no longer obliged to sign the bill of lading under French law. DMF 1981. Cour de Cassation. D. See. DMF 1991. Rev. Cour d’Appel de Paris. no. 1978. note H. IV. DMF 1983.328 until the requirement for the shipper to sign bills of lading was repealed in 1987. DMF 1983.329 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. Bull 1980.-P. Bull. 37 of Decree No. 162. D. NCPC. 1982. March 3. 1979. 42. be consented to apart from the other clauses in the bill of lading: Cour de Cassation. somm. 143 with note by R. 274. Gaz.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. See Cour d’Appel de Paris. Cour d’Appel de Paris. Delebecque. 332 Cour de Cassation. Y.330 nor was a clause written in a foreign language that the party did not understand. 326 . int. 282. May 24. 609. 1991.64. 85. November 14. December 1. Achard. even if acting in a commercial capacity. The jurisdiction clause need not. March 11. DMF 1979. Cour de Cassation. obs. June 27. October 1. DMF 1983. rep. second para. DMF 1986. See comment by R. 327 Cour de Cassation. January 16. 1972. 518. who is impleaded into the action. 1986. 37 of Decree No. DMF 1982. II. January 14. however. February 8. no. 720. pr. DMF 1983. 1982. Bulletin des transports 1987. dr. Cour de Cassation. 1981. February 4. 1986. When there are several defendants and the action is indivisible. 489. DMF 1983. Achard appended to Cour de Cassation.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. regardless of the presence of a jurisdiction clause: see art. which merely designated the courts of the country where the carrier had his principal business. 262. 87-922 of November 12. no. 333 NCPC. 726. 1974. cr.S. DMF 1981. See. 1982. the plaintiff can pursue the action in the jurisdiction of any one of the defendants. June 26. 1985. Bull. May 3. Achard. December 17. note R. DMF 1974.-Y. November 8.1. 1998 (The Lode Bay). 546. 77 328 Cour d’Appel de Rouen.S. 725 at p. Cour de Cassation. 1980. March 20. 1966 required the shipper to sign the bill within 24 hours of the loading. 1. 1981. no. report J. DMF 1980. 1983. must proceed before the court which is seized of the principal action. Cour de Cassation. 1986. 66-1078 was amended by Decree No. 1979. Rémery. Pal. 1998. 98. July 12. 431 with note by R. 661078 of December 31. May 30. 334 Tribunal de Commerce du Havre. 730. 1980. inf. DMF 1997. 325. DMF 1983. 1981. May 9. S. 531. however. 802. if it is not identified. See also Cour d’Appel de Paris. 1979. Cour de Cassation. 1983. May 24. 37. Cour d’Appel de Paris. Ph. 1984. 1927. 1996. 1.331 The forum chosen in the clause must be clearly designated. obs. DMF 1981. Gaudemet-Talon. See also Cour d’Appel de Rouen.54 where the jurisdiction clause has been agreed to by parties acting in a commercial capacity and has been clearly specified in the agreement. with note by Ghestin. civ. 1982. dr. 78. Rev. Until 1987. Bull. 507. Cour d’Appel de Rouen. 128. 29 with note by R. March 3. February 28. 329 Art. 415. Cour d’Appel de Paris. pan. where the rule is different when the 1968 Brussels Convention applies. July 20. Nicolas. In Cour d’Appel de Rouen. 333 Cour de Cassation. DMF 1998. Cour de Cassation. 1982. Cour d’Appel de Bordeaux. the Court should have refused to give effect to the clauses concerned. it must at least be identifiable. March 19. Cour d’Appel d’Aix. art. 489. November 30. Cour d'Appel de Paris. 1928.
But see also Cour de Cassation. para. fascicule 212-1. DMF 1994. DMF 1980. para. the jurisdiction clause's effectiveness will be jeopardized.340 In such circumstances. would be contrary to public order. 29 of Law No. 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. March 7. March 1. 23. February.335 The court will sometimes. however. 95. 87. 710. March 335 . trim. holding that the acceptance of a jurisdiction clause could not be inferred from the existence of prior commercial relations between the parties. 5. DMF 1983.339 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. if the clause designates the court of the carrier's domicile. 1982. Cour d’Appel de Paris. 612. 198 1. by requiring that the clause “be specified very clearly in the agreement” itself. just as art. 341 Belgium takes a similar position. Normand. June 17. Cour d’Appel de Paris. Sometimes the jurisdiction clause is not found in the document itself. Juris-Classeur Procédure 3. as in the case of a short form bill of lading.336 It must be remembered. that since such a clause derogates from the normal rules of civil procedure. 336 Cour de Cassation. where the Court notes that the bill of lading is the typical case of a contract of adhesion. because the carrier drew up the clauses in the bill of lading. 416. the French court must consider whether giving effect to the clause would violate French public order. 1966 (governing domestic carriage) makes that law of public order. Belgium takes a similar position. 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.  ETL 496. the courts had at one time given effect to foreign jurisdiction clauses. 2003 (The MSC Dymphna). See Hof van Beroep te Antwerpen. in the case of international carriage. fascicule 211. June 22. but only on the condition that the designated foreign court apply the Belgian equivalent of the Hague Rules: Hof van Beroep te Brussel. January 20. 340 Art. the French court should refuse to give effect to the jurisdiction clause. 337 Juris-Classeur Procédure 3. March 2. Nor is a clause designating a court which one of the parties has the option to eventually name. 1984. dr. In Belgium. 100. Cour d’Appel de Rouen. 1980. but not always. as where there has been a fundamental breach of the contract. 338 Juris-Classeur Procédure 3. 1966 or. 1979. 3(8) of the Hague/Visby Rules makes those rules of public order. 1993. the courts have in some cases given effect to the jurisdiction clause. para. If the jurisdiction clause designates a foreign court which is likely to apply its own law.337 Of course when the whole agreement is challenged. Any restriction of the shipper's rights beyond what is permitted by the Law of June 18. fascicule 212-1. DMF 1982. the clause will be interpreted restrictively by the courts. 548. para. DMF 1985. 203. 550. 1983. 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. Rev. 93. 48. April 23. fascicule 212-1. January 14. which must be performed in good faith. 66-420 of June 18.338 But art. 339 Cour d’Appel de Paris.341 See Juris-Classeur Procédure 3. DMF 1982. DMF 187. Thus merely referring to a jurisdiction clause appearing in another document would not be sufficient. Notably. fascicule 212-1. 1994. See Tribunal de Commerce de Paris. would seem to invalidate jurisdiction clauses which do not appear in the bill of lading issued to the shipper. 236. 602. civ. Bulltein des transports 1994.55 since that port could change from voyage to voyage. para. 1986. the Hague/Visby Rules. See also Cour d’Appel de Rouen. the contra proferentem rule will apply if such designation disadvantages the shipper. 546.
1982.U.345 The Brussels Convention 1968.1. 1979. October 31. 1971. Actes de la 8ème session. which. 557.S. DMF 1983. DMF 1985. Nicolas. DMF 1982. the other Member States of the European Union).344 Today. 98.U. 1984. 713. 343 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. DMF 1985. 22. 2002 of EC Regulation 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. DMF 1983. 1985. see also the Protocol on the Interpretation of the 1968 Convention by the European Court. DMF 1983. preamble.J. Subsequently. Droit international 8. 23 of the Regulation. Hof van Beroep te Brussel. was essentially the same as the Regulation in respect of jurisdiction clauses.  ETL 641.g. 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. September 27. where it was held that jurisdiction acquired by means of a jurisdiction clause which complied with art. 1985. French courts have not gone as far as Belgian courts in this regard: Cour d’Appel de Rouen. 214. May 15. referred to in Jurisclasseur. where it was held that the jurisdiction clause need only comply with art. See also Cour d’Appel de Rouen. Nicolas. DMF 1987. 1973. Norway. 469. actions taken before the court of one European Union Member State by or against a corporation or individual domiciled in another Member State. The Lugano Convention 1988 will also continue to apply to jurisdictional matters involving a Member-State of the European Union and either Iceland. 515 at p. see also Cour d’Appel de Paris. 48 NCPC where the clause specifies a court in another E.  ETL 704. as the Regulation now does. 73-63 of January 13. continues to displace art. supplants art. even if there is an international element to the contract: e.  ETL 50.342 French courts were bound by the Brussels Convention 1968343 on the same subject. 344 See Cour de Cassation. however. 342 O. See also Cour d’Appel de Rouen. 1982. 1979. June 27. signed at Brussels.346 On the other hand. June 3. 622. art. DMF 1980. 303. Switzerland or Poland. June 10. 117. 347 Conférence de droit international privé de la Haye.U. Belgian courts did not consider such a condition to be sufficient.348 the European Court of Justice held that a jurisdiction clause in a bill of lading would satisfy the requirements of art. DMF 1986. by which the Brussels Convention 1968. 17 of the Convention or art. 16. 492. where the bill of lading was signed outside of France. May 25. State and the case involves a Danish domiciliary. para.Y. Cour d’Appel d’Aix. 1982. with note by P. May 24. 17 wanted to avoid making compliance with formalistic requirements a criterion for the validity of jurisdiction. 1974.2001. both published by Decree No. 1971. . 723. July 12. July 12. 345 Cour de Cassation. 1984. DMF 1979.Y.347 In The Tilly Russ. with note by P. The Convention as amended covered. jurisdiction clauses in contracts between parties both of whom are domiciled in France continue to be governed by art. The draftsmen of the old art.C.96. 48 NCPC).e. not by art. 346 See EC Regulation 44/2001. Member State. March 10. even though the clause in question arose in respect of an action in warranty and the principal action was being taken in another jurisdiction. p. March 14. Rapport sur les travaux de la 2ème Commission. as amended by various Accession Conventions. 48 NCPC. DMF 1985.12/1. para.56 4) France and EC Regulation 44/2001 Until the coming into force on March 1. 17 of the Convention and not necessarily with the national law (i. fascicule 631. par Frédéricq.4. 1968. Cour d'Appel de Rouen. supra. where one or more of the parties is a domiciliary of any other E.e. 17 on jurisdiction clauses. signed at Luxembourg. March 1. 520. 1977. 23 of the Regulation governing the validity of a jurisdiction clause. D. art. 98. July 5. DMF 1986. 17 of the Convention had precedence over the other means of acquiring jurisdiction. L.E. 550. 1984. 604. art. see Fraikin and Boquet. and its 1971 Protocol of Interpretation continue to apply between Denmark and the Member States bound by the Regulation (i. Cour d’Appel de Rouen. DMF 1980. aff'd Cour de Cassation. August 29. 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. 1987. country except Denmark. 620. October 9. 1973. 17: 18. 1983. See Cour de Cassation. See Cour d’Appel de Rouen.
the side where the shipper signs). 23 even when the shipper has not signed the (The Tilly Russ)..E. Droit Maritime. The text is found in DMF 1987. 386-2. DMF 1985.C. nor had the shipper agreed to such a clause in previous voyages. where a jurisdiction clause. art. 03. 285/1.355 Thus art. 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. 89.10. section of this article. Also accepted are forum selection clauses in a form which accords with a usage in international trade or commerce of which the parties were. 1986. p. 1984. 355 Rèmond-Gouilloud. 548. September 30.349 or b) if the jurisdiction clause was specifically included in a prior oral or written agreement and the bill of lading. i.1989. 1981. its validity will depend on whether it fulfils the requirements of category b). 235. 12 Ed. para. acted as the written confirmation of that prior agreement. June 19. 23(2) is the major addition made by the Regulation to the wording of the immediately preceding version of art. 1978. 17 that was adjudicated upon in The Tilly Russ was modified when Denmark. 349 348 . 23. 17 of the Brussels Convention 1968. 2 Ed.. at art. no. a jurisdiction clause in these circumstances would not meet the requirements of French domestic law: art.e. Cour de Cassation. March 2. L. para. 350 The jurisdiction clause in this situation would not comply with the requirements of French domestic law (i. 557. European Court of Justice. 1984. 1993. was not given effect since the shipper had only been issued the short form bill. even though the short form specifically referred to the long form. 23 of the EC Regulation 44/2001 is reproduced supra. which appeared only in the long form bill.K. to ensure that the shipper had such notice as to be able to consent to it: Tribunal de Commerce de Paris.354 Art. 623-3. 23 constitutes an important distancing from French law: a jurisdiction clause may be deemed valid under art. DMF 1982. as well as those in a form which accords with practices the parties have established between themselves. 254. 1984.e. Bull. though signed only by the carrier and not by the shipper. signed at Luxembourg on October 9. Rodière & du Pontavice. 351 Again.351 The version of art.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. 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.J. in the U. The French courts emphasized that the jurisdiction clause had to be printed on the back of the bill of lading. Droit Maritime. the Republic of Ireland and the United Kingdom. 48 requires the jurisdiction clause to appear on the document issued. the shipper was never advised of the existence of the clause. DMF 1985. 23(1) authorizes jurisdiction clauses which are in writing or evidenced in writing. and regularly observed by. where the shipper put his signature.350 (this set of circumstances is rare in maritime matters). It came into force on November 1. 1984. 48 NCPC) which requires the clause to appear on the document issued itself: See Cour d’Appel de Paris. 353 By the San Sebastian Convention of May 26. or ought to have been. 1989. IV.e. 352 Convention on the Accession to the 1968 Convention and the 1971 Protocol of Denmark. If the jurisdiction clause is only printed on the front of the bill. October 9. 83 at p. The inclusion of electronic communications in art. O. parties to the type of contract concerned in that particular trade or commerce.353 It is essentially this latter version which was reproduced by the drafters of EC Regulation 44/2001. 354 Art. 1997. 209. aware and which is widely known to.
1981. by virtue of the applicable national law. See Tribunal de Commerce de Paris. DMF 2003. however. 1966 and art. 37 of Decree No. applying the conflicts rules of his national law. In Coreck Maritime GmbH v. 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. relating to the opposability to shippers and consignees of bill of lading jurisdiction clauses subject to art. 750. DMF 2001. DMF 2001. 77-79 for a summary of various. See DMF Hors série no. on proof of the shipper’s actual consent to the jurisdiction clause before the conclusion of the contract of carriage. agreed to by a shipper and a carrier. 235. Cour d’Appel de Rouen. Nicolas. 17 of the Brussels Convention 1968. 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.361 the European Court of Justice. has succeeded to the rights and obligations of the shipper under the applicable national law. 187. 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.358 5) Opposability to consignee and endorsees As stated above. reaffirmed that a jurisdiction clause in a bill of lading.356 French courts have been rather inconsistent in giving effect to art. holding that. Handelsveem BV. under art. 96. 2002. 612. Ph. no. 2001 (The Transvaal). 17 of the 1968 Brussels Convention. 1038. interpreting the final. November 30. 2001.362 If such is not the case. December 5. DMF 2001. DMF 1998. despite art. 356 . 2000 (The Nuevo Leon). 360 Supra. 102 at pp. DMF 1985. DMF 2001. 684. 359 As between the shipowner and the charterer. 6.  ECR I-9337. The question therefore is whether they also are bound by it. June 19. the third party. difficult-to-reconcile decisions of the Cour d’Appel de Paris and the Cour d’Appel de Rouen. June 21. DMF 1985. but rather that that law fell to be determined by the judge seized of the case. 2002 (The Ubangui). 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. See the commentary by Pierre Bonassies. in some cases recognizing practices established between the parties and international usages in regard to forum selection provisions. 48 NCPC. 358 Cour d’Appel de Rouen. 17 of the Brussels Convention 1968. 357 See Cour d’Appel de Paris. re-amended version of art. 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. 2000 (The Seinehaven). (Case No 387/98). The consignee and subsequent endorsees. 83 at p. See also Cour d'Appel de Rouen. November 29. 89. P. 1093. 17. however. April 5. have no notice of this clause. September 30.-Y.58 bill of lading nor been specifically shown the clause in the bill. 17 established in The Tilly Russ and other decisions. Art. obs. May 22. 1984. in acquiring the bill. 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.357 and in other cases insisting. 361 November 9.359 In The Tilly Russ. DMF 1982. 1038. 2000. 66-1078 of December 31. 89 at p. produces effects with respect to a third party holder who. in acquiring the bill became the assignee of the shipper’s rights and obligations. DMF 1985. 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. the European Court of Justice answered this question. 17. it is proper to As was required by art. DMF 2001. Delebecque. 1997 (The Clyde Bank). Cour d’Appel de Rouen. obs. 616. Cour d’Appel de Rouen.
703. Ph. March 4. 339. 1999.59 verify the reality of the holder’s consent to the clause by reference to the requirements of art. obs. 2000. p. Ph. cr. cr. 2000 (The Nuevo Leon). observations Ph. DMF 2003. 1996 (The Fiona). of the bill of lading by the third party bearer of the bill. 23 of EC Regulation 44/2001.364 French courts have therefore held that in order to bind consignees and their subrogated underwriters. 11.-Y. “Des clauses des connaissements maritimes attribuant compétence à une juridiction étrangère : essai de démystification”. Tassel. 259. Cour de Cassation. 684 at p. 2002.. amounts to such express acceptance.368 It is unclear. Gaudemet-Talon. 17 of the Convention by the Court of Justice of the European Communities. June 25. “L’entrée en vigueur du règlement communautaire no 44-2001 du 22 décembre 2000 concernant la compétence judiciaire. para. Cour de Cassation. whether the mere endorsement of the bill by the consignee. 72 at p. M. June 25. 2003 ETL 321. indicating that art. See also the commentary of P. May 26.366 Neither the mere possession of the bill of lading by the consignee or endorsee367 nor its “accomplishment” (i. as opposed to “special acceptance”. including Coreck Maritime (supra). 20. indicating that in France the consignee is not seen as a mere successor to the shipper’s rights as in certain other E. 2003. the consignee is not generally considered to be a mere successor to the rights of the shipper under the bill of lading. DMF 1999. 1997 (The Tonia Bondarchuck). together with the shipper and carrier. d’Haussy. DMF 2003. DMF 1999. DMF 2003. obs. 2002 (The Elpa).  ETL 551. Cour de Cassation.  ETL 551. of the Convention. Tassel (an arbitration clause). 694. Nicolas. 1997 (The City of Durban). 363 . DMF 1996. October 15. Bonassies. 1996 (The Köln Atlantic). Delebecque in DMF Hors série no. DMF 2000. no. by signature or rubber stamp. Nicolas. Rev. 4. DMF 1995. Cour de Cassation. November 13. Bonassies. no later than at the time of delivery. 1992. Rèmond-Gouilloud. will probably continue to apply under art. Revue Scapel 2003.  ETL 727 at p. Bulletin des transports 1997. November 29. int. pr. 41. 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. See also Cour de Cassation. November 14. F. note P. obs. DMF 1995. 705. 393. States like Germany. (The Sonara). Ph. obs. November 29.e. note P. January 16. but doubtful. May 27. P. note Y. 364 See the commentary by P. 14. 367 Cour de Cassation. Cour de Cassation. Bonassies. “L’autonomie de la clause de juridiction”. December 8. December 8. P. 1994 (The Harmony and The Nagasaki). 1998. 23 of the Regulation. 2002 (The Aptmariner).-Y. 733. 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. referring only to “acceptance”. obs. DMF 1997.U. It would appear that the same principle will apply under the almost identical art. (The Silver Sky). Delebecque. Nicolas. where the Court did not decide the point because it had not been pleaded by the defendants. Cour de Cassation. Delebecque. November 29.369 See P. 1998 (The Silver Sky). 1992. DMF 2001.-Y. See also Cour d'Appel de Nìmes. 723. 23 of EC Regulation 44/2001 is basically unchanged from art. to the bill of lading (a tripartite contract) or at least the beneficiary of a “stipulation pour autrui”. Cour d’Appel de Paris. DMF 1997. 74.  ETL 193. November 28. 1994 (The Stolt Osprey). obs. 17. Nicolas on the decision of the Cour d’Appel de Paris. Cour de Cassation. 1007. DMF 1997. Nicolas. 2003 (The Houston Express). 572. P. 41. DMF 1995. 366 Cour de Cassation.-Y. 17 of the Brussels Convention 1968 and that the decisions rendered under art. note H. 2002 (The Aptmariner). 368 Cour d’Appel de Rouen. 365 See generally Y. la reconnaissance et l’exécution des décisions de justice en matière civile et commerciale”. Cour de Cassation. Cour de Cassation. Delebecque. 93.-Y. although the commentary strongly suggests that such action would not constitute the “special acceptance” of the clause by the consignee required by French law. DMF 2003. obs. endorsee or subrogated insurer.363 In France. Revue Scapel 2003. note P. 99.-Y Nicolas. note P. 218. 46. 209. 154. but rather as either a true party. Bonassies on the decision of the European Court of Justice in the Castelleti decision of March 16. 369 Cour de Cassation. first para. DMF 1995. April 2. 1996 (The Chang Ping). March 4. 1007. 556.
no. which Cour d’Appel de Paris. obs. such a clause was not enforceable as against the consignee.371 Where.. Achard. 371 Cour d’Appel de Paris.note. since not only the consignee.E. EC Regulation 44/2001. judged under German law.K. Jurisdiction Clauses Per Se . or France respectively. 1976. October 14. For the text and a brief commentary. 374 Adopted at Rome. however. 304.C.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. an English Court held that German law had the closest and most real connection and the validity of the jurisdiction clause was. 370 . Here again. since the latter is not deemed to have known of its contents. 380 at p. 93.1980. uniform conflict rules are most helpful. L 266/1. but also the shipper could not have had proper notice of the existence of the clause. November 27. DMF 1985.372 XIII. must apply “the system of law with which the transaction has its closest and most real connection . The Rome Convention 1980 on the Law Applicable to Contractual Obligations374 is a particularly advanced international instrument. 80/934/EEC. 337. 1032-1048. 371.The Criteria . he has been held to be bound by it. 372 See Cour d’Appel de Rouen. December 16. DMF 1985. a court.. DMF 1976.10. in a shipment from Hamburg via Bremen and Valencia to Dubai on an Iranian ship.. O. 548. Cour d'Appel de Paris. June 19. 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. affirming Tribunal de Commerce de Paris. in the field of conflict of jurisdiction. the U. The Frank Pais  1 Lloyd's Rep.370 When the bill of lading has been issued under a charterparty and generally refers to the terms. found in the charterparty. with the Brussels Convention 1968 and. including the jurisdiction clause. more recently. 1997 (The Istanbul Z). Bulletin des Transports 2003. 2) The law by which to judge the clause On the other hand. Droit international privé. and only a short form bill was issued and signed by the shipper before being transferred to the consignee. 1981. 530. This is a basic principle of conflict of laws. 1984. ”. DMF 1998. in deciding whether a jurisdiction clause should be given effect. 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. March 2. 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. R. See. 688. Pierre Bonassies . 373 The Iran Vojdan  2 Lloyd's Rep.S. without actually reproducing the jurisdiction clause itself. 89 at p. 9. 383.60 When the jurisdiction clause was among the clauses printed only on the long form bill of lading. 333 at p. the consignee is proven to have been aware of the clause at or before the completion of delivery of the cargo. see also Batiffol et Lagarde. DMF 1983. The principle emphasises how necessary it is to have uniform conflict of law rules. January 5. 529 at p. has taken a major step towards that kind of unification. therefore. Appendix “F” at pp.J. International Conflict of Laws. The European Union. that clause will not be enforceable as against the third party holder. 1991. 479.373 In consequence. however. see Tetley. 1994. 2002 (The M/V Marimar). 1980 and in force April 1.
On the other hand. upheld Cour de Cassation. arts. v. March 4.  ETL 780. that by art. arts. 1959. and Cour de Cassation. See Rechtbank van Koophandel te Antwerpen. November 18.  S. See also Jian Sheng Co.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. 1998 AMC 1864 (Fed. 1037.A. a) Clear and precise Unless the jurisdiction clause is clear and precise.379 Similarly.A. a jurisdiction clause is not valid unless the name of the actual court is spelled out. 378 Cour d’Appel de Rouen. it has been held that a clause calling for suit “before the courts of England” Rome Convention 1980. 418. 376 375 .). Great Tempo S. All jurisdictions use roughly the same criteria.” For an example of the application of art. DMF 2001. November 29. November 30. it should not be honoured because it will not allow the parties to know with certainty before which court they are to proceed. where. the carrier was unable to adduce sufficient evidence to support its contention that its “principal place of business” was located in Hong Kong. 287. upheld by the Cour de Cassation. 4(2) to 4(4). 4(5) in such a case. 2003 (The Houston Express0. 2000 (The Nuevo Leon). For an example of the application of art. 4(4) in a bill of lading case.61 has harmonized choice of law in contractual matters for all Member States of the European Union. 556. see Cour d’Appel de Paris. 1966. 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. although such a clause was found to be quite frequent in bills of lading.Nicolas. 996. Ph. C.375 The Convention also establishes rebuttable presumptions to assist the court in determining the national law with which the case is most closely connected. Delebecque. however. application for leave to appeal to the Supreme Court of Canada dismissed with costs and without reasons. note P. 20. obs. these presumptions “… shall be disregarded if it appears from the circumstances as a whole that the contract is more closely connected with another country. 1984. although the clause was found unenforceable because of lack of proof that it had been consented to by the shipper. and has sometimes been enforced. 379 Hof van Beroep te Brussel. June 12. DMF 2001.A. DMF 1959. 4(5).  3 F.C.C. July 12.376 3) Discretion Although there is no general rule as to whether a court will honour a jurisdiction clause. 3(1) and 4(1). March 4. 2001. 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. DMF 2003. Revue Scapel 2003. 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. No. absent any express or implied choice of law.C. 1999 (The Bonastar II). 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. In some countries. see Cour d’Appel de Paris. 377 February 2. 2000 (The Bunga Pelang). DMF 2001. 618. September 9. 684.  ETL 238. Rome Convention 1980. the court's discretion is based on a number of criteria in respect to the clause itself. Note.-Y. DMF 1999. 2003. 829.
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.. DMF 1975. 1975. See also Cour d’Appel de Paris. where clauses giving the carrier the option of suing in more than one court were held null and void. 382 Cour d’Appel de Douai. 546 at p.S. and consequently. DMF 2001. in the United Kingdom. nevertheless. 2000. DMF 1961. 659.S. 542. 80. 549 (C. see also Cour d’Appel de Poitiers. DMF 1976.). at the shipowner's option. 724. See also Cour d’Appel de Rouen. Rep. 336 and Cour d’Appel de Rouen.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. see also Cour d’Appel de Paris. Revue Scapel 1996.” in a bill of lading signed by the shipper. DMF 1976. 1974. L. ”(emphasis added) was not held to bind the “ship” and an action in rem could therefore be taken in Italy. it was inapplicable. January 5. June 22. DMF 1973. 1040. DMF 1985. 384 Cour d'Appel de Paris. 1960. DMF 1971. 1976. June 19. 1984. In The Lisboa. In consequence. DMF 2001.R. 381 The Media (1931) 41 Ll. May 9.A.384 Where a bill of lading referred to a long form bill of lading. if this is sufficient notice and is sufficiently certain. 383  2 Lloyd's Rep. 335. 293. A note of E. July 20. 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. December 17. 1973. 385 Cour d’Appel de Rouen. February 5. 380 . b) Jurisdiction clauses by reference The reference in another document to a jurisdiction clause should be detailed and precise. 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. See also Cour de Cassation. One wonders. 484. June 27. 2000. 1971.62 is not sufficient. 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.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. 548 . 1995 (The Frauke). was held to be valid. Jurisdiction was to beat the port of destination (Calcutta) or.383 a jurisdiction clause reading: “Any and all proceedings against the carrier shall be brought before the competent Court of London . 35.. where the jurisdiction clause in a standard-form contract incorporated into a contract of carriage was held to be unenforceable.381 On the other hand. November 30. March 2. which in turn contained a jurisdiction clause. 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.
29. obs. 387 386 .Y.S. suit at the place of business of any one of the defendants can be convenient. 1. 1982. (France). Bundesgerichtshof. New Zealand and South Africa.P.392 Insurance Co. of North America v. will normally refuse to enforce a jurisdiction clause that appears fundamentally unfair. not indivisible. See also European Court of Justice.388 d) Legibility of the clause A jurisdiction clause is an exception. Zapata Off-Shore Co. where it was held that. May 30. 1974). See a note on the judgment at DMF 1983. February 2. See also the legislation of jurisdictions such as Australia. India Steamship Company389 declared a jurisdiction clause invalid. 1972 AMC 1407 (1972).A.R. May 30. 1982. October 15. c. Note that under art.390 On the other hand. 9. 1979. N.391 f) Fairness and public policy Courts. the shipowner was held not bound by a jurisdiction clause in a bill of lading issued to the shipper by the time charterer. 143. 1. 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. the suits against the various defendants need only be connected. in their discretion. 1983. 388 Cour de Cassation.S. DMF 1999. at p. Ph. DMF 1983. as where it seems to be the product of fraud or overreaching by the carrier or is inherently unjust or unreasonable. 81. where a defendant domiciled in a Member State is one of a number of defendants. 1982. 1965. In this regard. 1998 (The Albasgracht).P. DMF 1977. 6(1) of the 1968 Convention. 1982.c. 296. May 24. February 4. 531. October 27. Cour d’Appel de Paris. Tribunal de Commerce de Marseille. 383. 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. DMF 1965. May 11. 389 11 Z. 6(1) of the EC Regulation 44/2001 (similar to art. 1384. Delebecque. or where it violates a strong public policy of the forum. the Supreme Court of the Federal German Republic in Allianz v. referred to in The Iran Vojdan  2 Lloyd's Rep 380 at p. Cour d’Appel d’Aix.A. for the application of art. the jurisdiction clause cannot apply if the circumstances of the case forbid dividing the action. DMF 1983. 1979-80 J. S. 392 See particularly the American decisions flowing from Bremen v. 391 Cour d’Appel de Paris. 1983. cited supra. 235. e) Plurality of defendants Where there is a plurality of defendants. June 11. DMF 1983. he may be sued in the courts where any one of them is domiciled. which generally invalidates foreign jurisdiction clauses on the public policy ground that they oust the jurisdiction of local courts.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. 295 at p. 1976.1975. 37 and Oberlandesgericht Dusseldorf. 197980 J.386 Similarly.  ETL 270. November 20. para. 6(1) of the Brussels Convention 1968). DMF 1983. February 25. because the size of the print of the clause was too small. Jotina 1974 AMC 1190 (S. 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. See also Cour de Cassation de Belgique.  ETL 217.63 damage action brought by a third party. 407 U. 616. 135/82.D. 232. 390 Cour de Cassation.
c. sufficiently important to warrant a different test. R.3d 509 at p.L.R.e. 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.C. 463-464. 463. The Ship Capricorn  2 S. 368.. In Z. is preferable. note 2.. Rosa 211 F. 1981.S.L. at pp.C. 22 of the Act.R. 453 at p.K.” 395 In the U.393 Nevertheless. In both cases.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. 422 at pp. by virtue of the legislation which establishes them. U. 50(1) of the Federal Court Act.. 513 (9 Cir. 1333. D. because so often plaintiffs take suit in “… the quintessentially convenient forum for the defendant – the defendant’s home forum”. (2003) 224 D. France.S. 2003 AMC 1280 at pp. 367 at p. In Canada. 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.C. 2000). 456 (H. one where the starting point is that parties should be held to their bargain. “ordinary” forum non conveniens cases]. Code sect. See also the rules governing the court's jurisdiction ratione personae or loci (compétence territoriale) set out at arts. in my view.C. 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. CJ. 587.). see sect. Jurisdiction cannot be accepted nor can suit be stayed.” 394 Ibid. I am not convinced that a unified approach to forum non conveniens. 450 at p. then the suit must be dismissed. 1289 “In the latter inquiry [i. 54. 439-440 per Laskin. See Ravelo Monegro v.R. however. The burden is therefore initially on the claimant (plaintiff) to prove the jurisdiction of the forum. the Federal Court of Canada has the jurisdiction to construe its originating act and especially heads of maritime jurisdiction set out in sect.64 XIV. See also arts. and where the plaintiff has the burden of showing why a stay should not be granted. Bastarache J. c. 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. Mar.J.7.R. 42-48 of the New Code of Civil Procedure: these rules are not of public order. 1985. 49 of the Supreme Court Act 1981. Fortunately. L. ECU-Line N.V. 1288-1289. and the burden of proof has been deemed to be different as well. 33-41 of the New Code of Civil Procedure: these rules are of public order. In the U. cited by M.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. the burden is normally on the defendant to show why a stay should be granted. (4th) 577 at p. In France.  1 S. 75-99. see also Williams & Glyn's Bank v. see 28 U. under sect.R.S. AMC at p. Astro Dinamico  1 Lloyd's Rep.396 If the court does not have jurisdiction over the subject matter.L. Pompey v. does not have forum non conveniens. but the presence of a forum selection clause in the former is. as a civil law jurisdiction. S. 396 The jurisdiction of the plaintiff’s chosen forum over the subject-matter of the dispute is often not an issue.C. See also Antares Shipping v. where a choice of jurisdiction clause constitutes but one factor to be considered. “Forum Selection Clauses in Maritime Cases” (2003) 27 Tul. 588.I. 49-51 and the declinatory exceptions described at arts.K. see the rules governing the court's jurisdiction ratione materiae (compétence d'attribution) set out at arts. (4th) at p. 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. Davies. 393 .
5) Thereafter.S.V. 1958). Thus in Kooperativa Forbundet v.R. where the Court stated. 1289.R. 1985).401 it was held: “This is a forum-selection clause and it is prima facie valid and enforceable”. Gilbert:397 “But unless the balance is strongly in favour of the defendant.S.D. to make a ‘strong showing’ that the court should exercise jurisdiction in derogation of the contract. Lloyd’s of London 94 F. Inc. 1289.Y. who brings suit in a forum other than the contractually agreed one. 1985 AMC 1192 (S. and that there has been notice to the other party. 1418. quoted in Carbon Black Export v. 359 U.2d 1231 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). 1235. 180. 400 Z. the plaintiff's choice of forum should rarely be disturbed. Monroga 254 F.C. 1164. and 1972 AMC at p. 1973 (S. at p. 928 (4 Cir.L.  1 S.2d 1147 at p. As was said in Gulf Oil v. to which he has (presumably) agreed. relying on M/S Bremen v.e. it was held in Acciai Speciali Terni USA. 10. M/V Berane. properly defines the other jurisdiction. Staying Suit -All Jurisdictions In the United States. 1983). ECU-Line N. Zapata Off-Shore Co.2d 458 at p. 1996). 1 at p. 462. that: “The seminal Supreme Court decision enforcing a forum selection clause places the burden on the plaintiff. courts frequently dismiss suits instituted in breach of valid foreign jurisdiction or foreign arbitration clauses. Tel Aviv 711 F. 1341 (5 Cir. There is no unanimity among American courts. 1958 AMC 1335 at p.2d 297 at p. 2003 AMC 1280 at p. Vaasa Line Oy. 588. 1414 (1972). (4th) 577 at p. that the clause is legible. 450 at p. v. Md. as to the precise legal basis for such unconditional dismissals. however. 15. 202. 588. 397 . 1959 AMC 1327 (1959). Some Circuits tend to apply the 330 U. 508.399 4) If there is a jurisdiction clause. 2002). Pompey v.S.S. See also 407 U.S. the party (defendant) attempting to change jurisdiction has the burden of proof as to why the stay of proceedings should be granted. 821 F.  1 S. 1975). 1985 AMC 67 at p. 403 181 F.402 Citing the same precedent.V. (2003) 224 D. (4th) 577 at p. N. 2760 (1987). (2003) 224 D. 2002 AMC 528 at p. 399 See In re Air Crash Disaster Near New Orleans. and also quoted in Perusahaan Umum v. Supp. 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. 464. “Thus. 402 407 U. upheld in the Supreme Court.R. 71 (5 Cir. La. 450 at p. 464. 531 (D.”403 XV. ECU-Line N.D.R. N.C. Hre1jin 600 F. See also Allen v.3d 923 at p.”398 The party seeking the forum non conveniens dismissal must convince the court of every element of the forum non conveniens analysis. why the contractually stipulated jurisdiction. the party who challenges the jurisdiction clause (usually the plaintiff) has the burden of establishing why a stay should not be granted400 (i.65 3) Once it is shown that the forum has jurisdiction over the subject matter of the suit. 398 See also Z.I.I. that the clause is validly incorporated into the contract of carriage.L. 301. Pompey v. 1987 AMC 2735 at p. 401 1975 AMC 1972 at p. etc. 2003 AMC 1280 at p. 1972 AMC 1407 at p. S.Y. Only by making such proof can the plaintiff hope to be released from his bargain to sue or arbitrate elsewhere.” Dukane Fabrics v. 501 at p. 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. Supp.
cited by M. 2001 U.C.D. 2948-2949 (E.D. 369-376. for example. GmbH.S. Dis.. 633 (S. Technicians & Health Care Workers of N. judgments staying suit will be conditional on the defendant agreeing to appear and appearing in the new jurisdiction. v. Hugel v.3d 1171 at p. 2002 AMC 1598 at p. Co. 376. 2001. Refco. but merely declines to exercise it..407 In England and Commonwealth countries. Wash. 207 (7 Cir. on the time for suit defence being waived and on appropriate security being filed. 324. M/V Orsula 354 F. Underwriters at Lloyd’s. 444-445 (High C.p. 830 (7 Cir. Supp. for example.S. 56 F. Inc. stays would seem preferable to unconditional dismissals. In foreign forum selection clause cases too. Supp. 606. 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. Akai Pty. Co. June 12. Supp. Cir. Inc.2d 1110 at p. 2000). 1993). 175 (7 Cir. 1993).A. 119 at p. Longwall-Associates. the date of the filing of this lawsuit” See also Snam Progetti S. 1975 AMC 631 at p. v. Continental Ins. Lambert . 2003). of Aust. 188 C.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). M/V Hyundai Liberty 294 F.2d 393 at pp. Kysar 983 F. Lexis 8113 (W. 322 at p. particularly as a stay would permit the U.S. Inc. 1989). v. for example. COGSA. 407 Licensed Practical Nurses. London 148 F. Very often.2d 206 at p. 405 See. v.L. COGSA applies and the foreign court reduced the rights of cargo claimants below the minimum guaranteed by U.” 404 . 214 (W. 2001 AMC 869 at pp. Mar. unreported. The El Amria 1981] 2 Lloyd’s Rep. 1601 (9 Cir. 1998). 131 F. court to re-assume jurisdiction in situations where U. Wolfgang Preinfalk. Corporation of Lloyd’s 999 F. 2004 AMC 172 at p.R. v. Davies. 407-408. This preserves the legitimate rights of the claimant as to time for suit and other unknowns and imponderables (e.J. it is preferable that the court stay proceedings409 rather than dismiss them. but rather by stays of proceedings. 1999 AMC 2053 at p. for example. v. 789-790.66 Federal Rules of Civil Procedure. Ulysses Cruises. 867 F.2d 628 at p. 367 at pp. Frietsch v. S. 418 at pp. 410 Hartford Fire Ins.3d 603 at p. 2002). 886-887 (S. Lipcon v. Inc.D. forum selection clauses and foreign arbitration clauses are typically enforced not by dismissals.Y. Orient Overseas Line 1976 AMC 212 at p. M. 1174. 630. Commerce Consultants Int’l. Lauro Lines 387 F. Davies. L.3d 825 ast p. S. N. 1290 (11 Cir. and even whether the other court will accept jurisdiction). ibid. 2001). Abatement is the dismissal of the action. whereby the courts seized of the motion to enforce the clause does not deny its own jurisdiction. has jurisdiction.S.C. Rules 12(b)(1) (dismissal for want of subject-matter jurisdiction). 408 See. 698 (D.406 The inherent power of the court to regulate its own proceedings can also be applied either to dismiss or to stay proceedings.A. v.). 1995).A.D. Allianz Ins. 210 F. Inc. 1222 (10 Cir. supra at p. See. 1112. 1996). Kukje Hwajae Ins.Y. by contrast. Ltd. M/V Peace River 39 F. 2055 (D.410 This is an intelligent and proper approach.3d 1285 at p. 2000). 2d 787 at pp. 2000 AMC 2947 at pp. v. 1999). 406 See.P.g.Y. Vetrerie Riunite. Wharf (Holdings) Ltd. note 1 (1 Cir. People’s Ins. Supp. For a thorough analysis of the differing approaches of different American circuit courts of appeal to this matter.3d 1207 at p. v. Fourth Circuit decisions such as Jewel Seafooods Ltd.D. Co. Co. 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. Davies. faced with a motion of forum non conveniens. 131 F.v. see M. Va.408 Where a court. Co. N. Inc. Va. United Int’l Holdings. “Forum Selection Clauses in Maritime Cases” (2002) 27 Tul. Cho Yang Shipping Co.2d 697 at p. 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. 123 (C. 1975. v. 2000). of Canada v. 2001 WL 667804.
1999 AMC 305 (2 Cir. In Canada. Australia Ltd.).Y. where the foreign proceedings are viewed by the domestic court as vexatious or oppressive or unconscionable.2d 909 (D. Seventh and Ninth Circuits have issued anti-suit injunctions where the foreign proceedings are vexatious.S. 58 (H.L. under pain of contempt of court. For Australia.2d 888 (5 Cir. Laker Airways Ltd. because anti-suit injunctions interfere.C. Cir. International Maritime and Admiralty Law. 640. See Laker Airways Ltd. 637 (H. 897.C. 956 F.2d 33. Airbus Industrie v. with the jurisdiction of foreign courts.  1 Lloyd’s Rep. see. For the U. 631 at p.2d 909 (D. oppressive or will otherwise cause inequitable hardship. Donohue v.C. for example. In general. v.C. the injunction should only be granted if the forum court decides that the foreign court. Anti-Suit Injunctions Anti-suit injunctions are closely related to forum non conveniens.S. April 27.L.R. 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. on the other hand. Lee Kui Jak  A. GmbH 428 F. Laker Airways Ltd. for example.2d 1349 (6 Cir.).411 XVII. 1 (1972).C. In re Unterweser Reederei. see. 897. Airbus Industrie GIE v.K. C-159/02).. 1970). Armco  1 Lloyd’s Rep. Patel  1 A.). for example. 1988 AMC 880 (2 Cir.C. 425 (H. had it applied the forum’s principles of forum non conveniens. Laker Airways Ltd. British Airways Board v. rev’d on other grounds. Sabena Belgian World airlines 731 F. Co. v.C. 1 (1972).” See also Turner v.L. M. 1987): Gau Shan Co.).412 The forum court will only grant an anti-suit injunction where it is convinced that it is an appropriate forum for the litigation.).R.  1 Lloyd’s Rep. GmbH 428 F. British Columbia (Workers’Compensation Board)  1 S. 631 at p. infra.. 893 (P. at least indirectly. Grovit (Case No.  2 Lloyd’s Rep.  A. Patel  1 A. British Columbia (Workers’ Compensation Board)  1 S. Airbus Industrie GIE v. Choon Yong 837 F. jurisdiction. 123. v.413 they are issued only sparingly. South Carolina Ins. would have had a reasonable basis for concluding that there was no clearly more appropriate alternative forum. 1970). 1984).).L. Patel  1 A. v.67 XVI. In addition.3d 115.  1 Lloyd’s Rep. 631 (H. Assurantie Maatschappij ‘de Zeven Provincien’  A. iCigna Ins. SNI Aérospatiale v.C.C. and that the injunction is necessary to prevent and injustice. however. 407 U. In the U.V. 1984). of Aust. For Canada. Bankers Trust Co. see CSR Ltd. See other examples cited in Tetley. rev’d on other grounds.2d 888 (5 Cir. 402 (H.L. v. 871 at p. 119.. 414-415. and the foreign court has taken.D. 1998 AMC 334 (S. 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. in Amchem Corp. The Second. Where a party has already taken suit in a foreign jurisdiction or is about to do so. to prevent parties from See the discussion of the six steps in this process surrounding notes 12 to 15. 119 at p. N. v. 2003 at pp.C. 414 See.).S. Cir. and Others (1997) 146 A.L.S. See. aff’d 161 F. contrary to the principle of comity.L. In re Unterweser Reederei. The acceptance of anti-suit injunctions has become widespread. 58 at p. 1998).).C.). supra. 24. which involves a forum non conveniens type of analysis.414 They have also been issued. the Fifth. 1998). China Trade & Development Corp. for example. 317 (H.C.J.C. 2004 (E. because of its real and substantial connection with the case.R. v. 95 (H. Sabena Belgian World Airlines 731 F. 138. 413 See. or is about to assume. Ceres Terminals Inc. where the House of Lords referred to the “… indirect interference with the foreign court which an anti-suit injunction entails. Farrell Lines Inc. 119 at p. v. Sixth and District of Columbia Circuits. 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. see Amchem Products Inc. 407 U.  A. 412 411 . 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. 1992). British Airways Board v. v. For the U.C. for example.
C. The Bergen  1 Lloyd’s Rep. except in special circumstances which are not applicable in this case. 2)  2 Lloyd’s Rep.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. restraining a party from commencing or continuing proceedings before a foreign court undermines the latter court's jurisdiction to determine the dispute.). reported in  1 Lloyd’s Rep. Grovit (Case No. 216 (E. is incompatible with the system of the Convention. including bills of lading. 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. and which came into force 415 . 2000. 505 (C.R. 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. 380 and The Bergen (No. Aeakos Compania Naviera SA  1 Lloyd’s Rep. from reviewing the jurisdiction of the court of another member State. C-159/02). See also the case comment by D. in Turner v. as such. Rhidian Thomas. 710 (bill of lading jurisdiction clause). Such an assessment runs counter to the principle of mutual trust which. Grovit (Case No. 27. 24 and 25.L.). 2002 for all Continental Bank NA v. backed by a penalty." 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.A.J. 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. 422 EC Regulation 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. See paras. 417 Convention on Jurisdiction and the Recognition of Judgments in Civil and Commercial Matters. 2004 at paras. 2004.).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. at para.) (bill of lading arbitration clause). 107 (H. The ECJ endorsed the opinion expressed by Advocate General Ruiz-Jarabo Colomer in Turner v." 421 Ibid. adopted at Brussels.415 The Court of Justice of the European Communities. 419 Turner v.L. Grovit. C-159/02). 87 (C. underpins the Convention and prohibits a court. adopted by the Council of the European Union on December 22. Any injunction prohibiting a claimant from bringing such an action must be seen as constituting interference with the jurisdiction of the foreign court which. (2004) 10 JIML 134.A. April 27. leave to appeal to House of Lords refused (charterparty arbitration clause).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. 416  1 W. however.A. The Epsilon Rosa  2 Lloyd’s Rep. 1968. as pointed out in paragraphs 24 to 26 of this judgment. 420 Ibid. 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. on a preliminary reference from the House of Lords in Turner v. April 27. September 27.422 which replaced the Brussels Convention as of March 1.) (exclusive jurisdiction clause in loan agreement). at para. 509 (C. 418 See the judgment of the European Court of Justice. 29 and 30 of the ECJ decision.416 has held. The Angelic Grace  1 Lloyd’s Rep.68 breaching exclusive foreign jurisdiction or foreign arbitration clauses in contracts. Grovit.
v. 23 of EC Regulation 44/2001. Member States therefore seems to be a thing of the past. but must stay the proceedings before it of its own motion.g. This is a positive development. Baatz. (2004) 10 JIML 131. 21 of the Brussels Convention 1968 or the court designated by the jurisdiction clause under art. the court second seized must decline its jurisdiction. anti-suit injunctions now seem to be unnecessary as between courts in Brussels Convention and EC Regulation 44/2001 States. art. in alleged violation of a clause conferring exclusive jurisdiction on a court in another such State. The Gasser decision will likely also apply to the determination of jurisdiction under EC Regulation 44/2001.E. if the court first seized establishes its jurisdiction to try the dispute (e. because the court first seized is obliged (by art.A. 21 of the Convention. Regulation 44/2001 applies (e. 27 over art.C.U.423 Moreover.C. 413. which is entitled to rule first on whether or not it has jurisdiction to try a dispute. Rhidian Thomas. L 12/1 to L 12/23. that is entitled to decide whether it has jurisdiction in the light of the clause.  1 Lloyd’s Rep. In this way. 403. 425 See Y. it is the court where the proceedings were taken. thus reversing the controversial English decision in Continental Bank NA v. Member States except Denmark.) and subsequent decisions such as OT Africa Line Ltd. 424 (Case C-116/02). Hijazy (The Kribi)  1 Lloyd’s Rep. 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. For the official French text of this decision. In Gasser GmbH v.J.69 E. because the jurisdiction clause is not valid or is not exclusive).U. where the initial proceedings in such a case are instituted before a court in a Brussels Convention State.). 2002. 222 (E. "Anti-Suit Injunction: La CJCE met fin à un anachronisme" DMF 2004. 29. Denmark continues to be governed by the Brussels Convention 1968.C. see O. corresponding to arts. as a result of another development in European law.g. being the court “first seized” within the meaning of art. within the meaning of art. 76. in effect. to prohibit the institution or prosecution of litigation in jurisdictions outside the E. 21 over art. where a jurisdiction clause is involved. 423 See the case comment by Renaud Carrier. The court designated by the clause and before which proceedings are subsequently taken on the basis of that agreed jurisdiction.425 While the issuance of anti-suit injunctions as between E. 21 and 17 respectively of the Brussels Convention 1968.). In consequence.J. The decision constitutes the triumph of art. The application of this rule will.424 the Court of Justice of the European Communities held that. render anti-suit injunctions unnecessary. even if proceedings there are protracted. For the text. . being the court “second seized”. 17 of the Convention. may not rule on its jurisdiction. On the other hand. 17 of the Convention) to decline jurisdiction in the face of a valid clause attributing exclusive jurisdiction to the court second seized. see DMF 2004. 21. 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. and possibly also in cases within the in all Member States of the European Union. See also the critical commentary of the Gasser decision by D. it is the court first seized of the dispute. 17. unless and until the court first seized declines jurisdiction. 27 of which is similar to art. under the Brussels Convention 1968. on March 1. MISAT SrL. Gasser thus promises to also ensure the supremacy of art. 21 of the Brussels Convention 1968. 505 (C. that decides on its jurisdiction in the light of the clause. such injunctions arguably continue to be available in cases where neither the Brussels Convention and E.U. except Denmark. Aeakos Compania Naviera SA  1 Lloyd’s Rep. “Who Decides on Jurisdiction Clauses?” in  LMCLQ 25 at p. consistent with the historic principle of comity in private international law and the increased judicial integration of Europe since 1968.
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. See Briggs & Rees. Clunet 1964. v. sect. The decision invoked a similar decision rendered under art. In cases subject to the Convention or the Regulation. U. 429 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention 1958”). third para. 426 . 391-392. 215.K. 439.N. 3155(1) (lack of jurisdiction) and (5) (manifest inconsistency with public order as understood in international relations).A.K. 36(1)(a)(iv) and art. Civil Jurisdiction and Judgments.429 These basic conflict of law principles and rules constitute a strong support for jurisdiction and arbitration clauses in bills of lading. because the Regulation did not apply to arbitration.L. 206 at p. as in other contracts. 2002. 27(1) or the Regulation’s art. Regulation 44/2001. and E. 21 of the Brussels Convention 1968. See also Briggs and Rees. the decision may be refused recognition and enforcement in the contractual forum. For France.U. 27 of EC Regulation 44/2001 did not apply to an arbitration clause. 1982. 27. 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. para..49 at pp. involving arbitration clauses. holding that the first seized rule of art. note Goldman. Bamberger  I. 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. art. See. 36(1)(b)(ii). State contrary to an anti-suit injunction issued in England in support of an English arbitration clause. on the ground that it violates public policy. June 21.T. arbitration being excluded from both the scope of both the Brussels Convention and the EC Regulation. 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. 2002. for example. see the Civil Jurisdiction and Judgments Act 1982. 1958. 330 U. 7. For the U. for example. so that it was not necessary to stay proceedings until the Finnish Court had ruled on its jurisdiction in the light of the clause. at art.426 XVIII.427 Even if no anti-suit injunction has been issued. for example. in particular art. See also EC Regulation 44/2001. adopted at Geneva. by virtue of its art. in force June 7.302. 206 at p.70 E. 34(1). V(2) (recognition or enforcement not in accordance with public policy of country where recognition and enforcement are sought). 427 See. 3 Ed. 1(2)(d). 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. 3 Ed. c.C.C. art. V(1)(d) (composition of the arbitral tribunal or arbitral procedure not in accordance with agreement of parties) and art. Civil Jurisdiction and Judgment.. art. Regulation.Pr. 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. 28. being The Ivan Zagubanski  1 Lloyd’s Rep. 428 See. 115 (C.) and The Hari Bhum  1 Lloyd’s Rep. June 10. and also disregards an anti-suit injunction prohibiting him from commencing or continuing such proceedings. 35(3)). 3. and a powerful defence against attempts to circumvent them. 27(1) of the Brussels Convention 1968.. 212. The Hari Bhum  1 Lloyd’s Rep. 1985. the Québec Civil Code 1994.. the Brussels Convention 1968 at art. 34(1). 32(1) in cases not subject to either the Brussels Convention 1968 or the E. adopted at New York. lack of jurisdiction may not be invoked to refuse recognition to a judgment rendered in another Member State (Brussels Convention. and actually obtains a judgment or award from the foreign authority. See also Phillip Alexander Securities and Futures Ltd. 73 at p. 5. 106. para. See also the corresponding provisions of the UNCITRAL Model Law on International Commercial Arbitration. 1959. corresponding to art.U.11 at p.S. 27(1).
London. But see also L. Ho. a charterparty). 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.B. 4) the wording and effect of the clause in the bill or incorporated document (e. unreported.A. 432 See D. Yeo. Armco  1 Lloyd’s Rep. the designated jurisdiction frequently has little.71 XIX. The forum selection clause is usually a “boilerplate” term of the bill. Doleman & Sons v. “Breaking promises to litigate in a particular forum: are damages an appropriate remedy?”  LMCLQ 435. Civil Jurisdiction and Judgments. 257 (C. para.). inquiring into: 1) its own jurisdiction.). forum selection and arbitration agreements may now be further reinforced (in England at least) by the awarding of damages for their breach. 2002. but nevertheless suggesting that an alternative basis for such damage awards may be found in English tort law (e. 3 Ed. v. 1517 at pp. Zoller  1 W. for example.). “Anti-suit injunctions in cross-border insolvency: A restatement” (2003) 52 ICLQ 697.).430 More recently. 4. on the other hand. seldom negotiated or expressly consented to by the shipper or the consignee. It has been recognized for some time that contractual damages may be awarded for the violation of an agreement to arbitrate in England.L. and 6) the propriety of granting or refusing a stay of proceedings.. who criticizes this development. supporting the availability of contractual damages as a sanction for the breach of an exclusive English jurisdiction clause.g. Akar  EWHC 797. the forum court usually follows a six-step process. See also Chee Ho Tham.26 at pp. Briggs & P. 431 See Donohue v. Ossett Corporation  3 K. 293-296. In addition. It is therefore scarcely surprising that “choice of forum” clauses tend to be contested. Mantovani v. The Hamburg Rules and the Multimodal Convention. of which he may avail himself notwithstanding See. Rees. This development appears somewhat controversial within the British academic circles.R. if any. according to a specified national law or international carriage by sea convention. Union Discount Co.L. 430 . 2) any legislative constraints on that jurisdiction. connection with the parties and their contract and is typically more convenient to the carrier than to cargo. 1524 and 1527 (C.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. Carapelli SpA  1 Lloyd’s Rep. comparing the two positions and arguing that contractual damages for such breaches are problematic because of basic differences between arbitration and jurisdiction clauses. 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. and A/S D/S Svendborg D/S of 1912 A/S Bodies Corporate trading in partnership as ‘Maersk Sealand’ v. Neither the Hague Rules nor the Hague/Visby Rules regulate jurisdiction or arbitration. “Damages for breach of English jurisdiction clauses: more than meets the eye”  LMCLQ 46. 375 (C. however. Tan & N.A. See also A.432 XX. Ltd. When such contestation arises. provide the cargo claimant with options of places in which to sue or arbitrate.A. 3) the appropriateness of sending the case elsewhere for trial or arbitration. 5) the in rem and/or in personam nature of the suit. the possibility of such damages also being awarded for breaches of exclusive English jurisdiction clauses has also been recognized by English courts. 25 (H.g. in the tort of malicious prosecution and/or the tort of unlawful interference with business or trade).C.
In French internal law. despite a foreign forum selection or foreign arbitration clause. 434  1 Lloyd's Rep. Australia.435 require the plaintiff to show “strong cause” why he should be permitted to proceed elsewhere than where the contract stipulates. Because few major shipping nations are party to the Hamburg or the Multimodal conventions. and genuinely agreed to by the shipper and consignee. All relevant circumstances are considered. New Zealand and South Africa) prohibits parties from “ousting” the jurisdiction of the national courts by way of forum selection clauses. has permitted Canadian suit or arbitration. connections with the competing jurisdictions and the law applicable to the dispute. and now EC Regulation 44/2001 on jurisdiction and the enforcement of judgments in civil and commercial matters. to establish that the local forum court. 237. Where no statute prohibits or restricts jurisdiction clauses. in international shipments to and/or from their ports. on grounds of forum non conveniens.). is the clearly more appropriate venue for adjudicating the dispute. 435  2 Lloyd's Rep.g. the Lugano Convention 1988. clear and apparent on the face of the bill of lading. however. although such laws typically treat arbitration clauses more liberally than jurisdiction clauses. 119 at pp. the Nouveau code de procédure civile lays down strict criteria under which contractual forum selection provisions will be upheld. Most standard forum selection provisions in bills of lading would be enforceable under those rules. however. courts in such nations are thrown back on their national law in assessing the enforceability of the impugned clause. the forum non conveniens analysis has been articulated differently and it also requires the plaintiff. National legislation in certain countries (e. In the presence of a jurisdiction or arbitration clause. as a condition of release from his jurisdictional “bargain”.72 any inconsistent forum selection or arbitration clause in the bill of lading. all permit choice of forum by contract. 433 . 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.A. or reflects established practices between the parties. explains much of the unwillingness of major shipping nations to becoming party to the Hamburg regime. British and Commonwealth courts. including the location of witnesses and evidence.433 The options enable claimants to institute proceedings in places having some genuine connection with the contract of carriage and its performance. where such an option would be available if the Hamburg Rules applied to the contract of carriage. at the cargo claimant’s option. requiring them to be between merchants. in ordering stays of proceedings. following the principles laid down in The Eleftheria434 and The El Amria. Courts in common law countries and some mixed jurisdictions are empowered to exercise discretion. National law is. or generally conforms to international usage in the trade concerned. rather than the defendant. as well as convenience and expense for the parties and the juridical advantages and disadvantages of proceeding in one or other venue. by comparison. 123-124 (C. far from uniform in this important area. so as to send the case to its “natural forum”. In Europe. the Brussels Convention 1968. where the relevant clause is written or evidenced in writing. however. in its Marine Liability Act. It is by no means easy. rather than the contractually designated one. Canada. unfortunately.
S. . Canada e-mail: william. In consequence. Nor is it easy in the United States.tetley@mcgill. obliging cargo claimants to meet the heavier onus of proving that enforcement of the clause would be unreasonable. the importance of the convenience of the litigants and the connections of the case have declined in significance.law. 1972 AMC 1407 (1972). 1995 AMC 1817 (1995). Quebec. Prof. 528.mcgill. 1.ca/ 436 437 407 U. Anti-suit injunctions can be.ca website: http://tetley. because they have been found incompatible with the Brussels Convention 1968 (and presumably with EC Regulation 44/2001 as well). William Tetley. and because they may be unnecessary in the light of recent interpretation of the provisions of those instruments.C.73 forum clause applicable to the claim. 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. Faculty of Law McGill University Montreal. in a more uniform manner than at present. and are. A fair and effective international cargo liability regime must strive to resolve this important problem.S. carriers. Q. if shippers. where since the Bremen436 and Sky Reefer437 were decided. used to enforce jurisdiction and arbitration clauses. but within Europe it increasingly appears that their employment to enforce jurisdiction clauses is invalid. Jurisdiction and arbitration of marine cargo claims thus remains a controversial issue and an ongoing challenge for maritime carriage of goods law everywhere. fraudulent or repugnant to public policy – a daunting task. 515 U. receivers and underwriters are to be well served in the years ahead. 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.
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