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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
order and direction. as a scholar. a doctor son and what could be a spoiled grandson.∗ Preface PROFESSOR ROBERT FORCE It is an especial pleasure to join with colleagues from around the world in honouring Robert Force. An esteemed chef.L.4 JURISDICTION AND FORUM NON CONVENIENS IN THE CARRIAGE OF GOODS BY SEA Prof. which is much more difficult. Q.. analyst and writer on law – in other words. Tulane University. for their assistance with the preparation and correction of the text. William Tetley. Niels F. . as well as a researcher. B.C. He is also an administrator who. a third-year student at the Faculty of Law of McGill University and to Robert C. Q. has a lawyer son.C. CANADA ∗ Professor of Law. The author is indebted to Vanessa Rochester. he can also be a pleasant and popular guest. judge of good wine and remarkable and generous host. Wilkins. as Director of the Tulane Maritime Law Center. Johnsen Professor of Maritime Law at Tulane University Law School. William Tetley. counsel to Langlois Kronström Desjardins (Langlois Gaudreau O’Connor) of Montreal. B. With appreciation and gratitude.A. He has also been a kind and generous friend. so that the Tulane Maritime Law program is outranked nowhere else. McGill University. took the great tradition of maritime law teaching at Tulane and gave it form.. Distinguished Visiting Professor of Maritime and Commercial Law.C. cheerful persona. Bob Force combines all this with a happy. I have known him for twenty-five years as a devoted and very competent law teacher. Professor McGill Law Faculty Montreal. He has been happily married to Ruth for 42 years.
v. 918 (1994). 451. 1235. S.) 13. at pp. where the House of Lords recognized forum non conveniens as a doctrine of general application in Scotland.S. 7293) (C. 223 note 13 (1981).S. 365-366 (1885). 339 at p. so that a whole new body of forum non conveniens law has sprung up. 1983). as does Lord Reid in The Atlantic Star  2 Lloyd's Rep. Miller 510 U. 918 (1994).S. 450. who mentions Société du Gaz de Paris v. 200 and Lord Wilberforce at p. in recognizing that forum non conveniens “originated in Scotland. 1932 AMC 512 at p.D.  2 S.S. 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. 1814). 413.2d 1231 at p.2d 392 (2 Cir. 449. at pp.6 which latter has its closest connection with the civil law. 2 The other two branches are choice of law and recognition of foreign judgments. ibid. 1933). See Tetley. Miller 510 U.C. 1994 at pp.. To fully understand forum non conveniens and the discretionary right of the trial judge.S. 285 U.L. because of the mobility of ships (the usual defendant) and the fact that carriage by sea very often involves more than one jurisdiction. 5 See Lord Diplock in The Abidin Daver  1 Lloyd's Rep. Recently. Introduction In the past. 457 (1870). and became part of the common law of many States. 559 (No. v. 422-423. v. 1932 AMC 512 at p. have usually refused motions calling for the stay of proceedings. v. See Tetley.S. v. 501 at p.4 while it has been known much earlier in some civil law regimes5 and in Admiralty law. See American Dredging Co. where he refers to “the Scottish legal doctrine of forum non conveniens”.3 so is it essential that choice of jurisdiction rules used by various seafaring nations be the same.R. 1994 AMC 913 at p. Rep.S. 65 F. 1099 (1950). Reyno 454 U.C. where three of five U.1 Choice of jurisdiction is one of the three major branches of conflict of laws. The use of a consistent conflict of law methodology would be another major boon to transnational harmony in private international law. motions for stay have been received more sympathetically.” 6 The Belgenland 114 U. The Capricorn.L.S. Just as it is imperative that maritime law be uniform and international and that choice of law rules be similar throughout the world. 209. 420-421.C. one must appreciate that forum non conveniens has been used by both courts of Equity and of common law. 413 at pp. 443 at p. as well as the yet more recent movement towards international conventions on procedure. Paterson Steamships Ltd. 865-868. 422 at p. 516 (1932). A/S Den Norske Afrika Og Australie Line. Supreme Court justices. Unfortunately that is not the case today. Paterson Steamships Ltd. which passage was quoted in Gulf Oil Corp. at pp. 1982 AMC 214 at p. See also the reference to “Scottish authorities” in Antares Shipping v.S. 443 at p.) 435 at p. 344. v. Perusahaan Umum v. 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. (9 Wall.7 Canada Malting Co. Compania Colombiana del Caribe) 339 U. 37-43. 207. 235 at p. The Jerusalem 13 Fed Cas. 4 Canada Malting Co. courts properly seized with a dispute. 355 at p. In consequence. 71-72 (5 Cir. 1950 AMC 1089 at p. 1994 AMC 913 at p. Tel Aviv 711 F. v. the courts of all nations have jealously guarded their jurisdictions and have looked unfavourably on clauses in contracts which called for suit elsewhere. 3 Ibid. Mass. 697. Gilbert 330 U. 515 (1932). The Maggie Hammond 76 U. 197 at p. See also American Dredging Co. International Conflict of Laws. 791 and 867. United States Merchants' & Shippers' Ins. 1985 AMC 67 at pp. (1925) 23 L. (H.5 I. The Cali (Swift & Co.2 and is of major importance in maritime law.A. 684 at p. 248 note 13.S. citing Piper Aircraft Co. 504 (1947). although deciding that forum 1 . however. v. Navigation (Les Armateurs Français)  S. 285 U. Co.
See also comments by Laskin. Finally. c. 11 United Nations Convention on International Multimodal Transport of Goods.R. “The General Maritime Law – The Lex Maritima” (1994) Syracuse J. the Visby Rules. 1998.” 7 Tetley. 2 Ed. F-7. U.9 the Hamburg Rules10 and the Multimodal Convention11 on jurisdiction clauses and on the principle of forum non conveniens. not in force. 439-440. 1931. In some jurisdictions. For example.K. There are two distinct kinds of jurisdiction therefore: “the first is jurisdiction to decide the action on its merits. (a) on the ground that the claim is being proceeded with in another court or jurisdiction.13 Only if it has jurisdiction may it proceed. out of hand. 422 at pp. “Maritime Law as a Mixed Legal System (with Particular Reference to the Distinctive Nature of American Maritime Law. Chap. Also examined is the effect of the Hague Rules. International Maritime and Admiralty Law. 8 International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading. R. and the second is jurisdiction to decide whether the Court has jurisdiction of the former kind. nevertheless agreed that “… within federal courts it [forum non conveniens] may have been given its earliest and most frequent expression in admiralty cases.L. in its discretion. 317. the court must look to the law which applies to the case before it. of course. Choice of Jurisdiction – Six Steps to Follow Choice of jurisdiction problems may be settled by the following six steps taken in order.” . 9-24 and 473-474..J. Tetley. The Capricorn  2 S. 12 There is no intention in this article to go into questions regarding the jurisdiction conferred upon various courts by national legislation. signed at Brussels. the United Kingdom. 1924. 456.B. however. 1980. it was not deciding whether it had jurisdiction to determine the case on its merits. to determine if there is a direction in that law as to jurisdiction. 10 United Nations Convention on the Carriage of Goods by Sea. Firstly. stay proceedings in any cause or matter. Int’l L.C. or (b) where for any other reason it is in the interest of justice that the proceedings be stayed. 9 Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading. Maritime Liens & Claims. Astro Dinamico  1 Lloyd's Rep. consideration is given to the very special Admiralty problem of declining jurisdiction when an in rem arrest of a ship has been made. 2003. 721 at p. 13 The first principle of Lord Brandon in The El Amria  2 Lloyd’s Rep. 1985. held that it had jurisdiction to entertain an application for a stay (in virtue of sect. 1981. 1981. 119 at p. 49(3) of the Supreme Court Act. “A Definition of Canadian Maritime Law” (1996) 30 U. C.C.A. and in force June 23. August 25. 453 at p.). 7-60. 123 (H. in so doing. May 24.) reads: “assuming the claim to be otherwise within its jurisdiction…” 14 The House of Lords. Tetley. signed at Hamburg March 31.S. 107. but that. February 23. the court seized with the case must decide if it has jurisdiction12 by virtue of the legislation which created it. the Australian Carriage of Goods by non conveniens was not a characteristic feature of admiralty law. and in force November 1. at pp. sect.” See Wilkinson v.L. L.6 The present article describes choice of jurisdiction rules and the principle of forum non conveniens in Admiralty in the United States. 50: “(1) The Court may.C. otherwise. Mar. Tetley. 1978. signed at Geneva. reprinted  ETL 469. 725 (C. 54). II. 1977. c. and in force June 2. signed at Brussels. 1968.J. in William Glyn's v.1 at pp.Rev. a court which may not have jurisdiction on the merits may have jurisdiction by statute to decide a question of stay. Canada and France in respect to carriage of goods8 under bills of lading. See also Canada’s Federal Court Act. 137. 1992. Which Benefits from Both Its Civil and Common Law Heritages)” (1999) 23 Tul. & Comm. Barking Corporation  1 K. Tetley. it must dismiss the suit.B. in Antares Shipping v.14 Secondly.
. who therefore do not have the jurisdiction/arbitration provisions brought specifically to their attention. III. Such clauses ordinarily call for suit or arbitration in the jurisdiction most convenient to the carrier. Sixthly. 16 International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading. of November 2000 at clause 4. No. 1111-1120. if it is reasonable. 861-862 and 863-864 respectively. issued by BIMCO. August 22. to verify that such incorporation is complete and valid.7 Sea Act 199115 holds invalid any clauses in most sea carriage documents ousting Australian jurisdiction.e. if the new jurisdiction is deemed to be convenient and proper in the circumstances. See also BIMCO's non-negotiable Liner Sea Waybill (LINEWAYBILL"). which arrest normally gives jurisdiction in the place of the arrest. 3 Ed. 1924. Fifthly. the court will stay the suit by an order which will preserve the rights of the parties. Marine Cargo Claims. 1997 at clause 3. Appendices “P” and “Q”. 98. Les Éditions Yvon Blais. i. August 25. Thirdly..g. Montreal. at pp. 2) 15 The Hague/Visby Rules 1968/1979 No. Leyden/Boston.. the court's consideration will also be affected if the suit has been commenced by an action in rem and an arrest of a ship. ibid. ed. See the official French text reproduced in Tetley. 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. is appropriate and whether the balance of convenience favours the case being heard there. if there is a jurisdiction clause in the contract (the bill of lading). 11(1) and (2).17 Bills of lading under the Rules are often not signed by the shippers. If the jurisdiction clause is not in the bill of lading (or other immediate evidence of the contract).). 1988 at pp. Inc. provided they are clear and unambiguous. 1931 (commonly known in English-speaking countries as the "Hague Rules"). 17 See. Nevertheless. See also two sample clauses in S. For the texts of these two forms. Statutory Rules 1998. 174. 1121-1129.. the incorporation by reference and notice of the incorporation must be considered carefully. but in some document (such as a charterparty). 2003.. sect. 1978 at p. Mankabady. as amended. adopted at Brussels. 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. see Tetley. very often in the place of the carrier’s principal place of business. as amended by the Carriage of Goods by Sea Regulations 1998. The Hamburg Rules on the Carriage of Goods by Sea. 160 of 1991 (Cth. the terms and specific wording of that clause must be considered carefully. and an English translation. at pp. e. consignees or endorsees. the court must decide if the other jurisdiction. to which it is called upon to defer. Fourthly. Otherwise the court will retain the suit in its own jurisdiction and will refuse the motion for stay. both types of clauses have generally been held valid by courts in bill of lading disputes. the BIMCO Liner Bill of Lading (Conlinebill 2000”). and in force as of June 2. Sijthoff. International Maritime and Admiralty Law.
L. 19 United Nations Conventions on the Carriage of Goods by Sea. 21(1) upon the defendant providing adequate security to ensure payment of any subsequent judgment.12.E.J. 1978. signed at Hamburg on March 31. as .18 like the original Hague Rules. February 23. 1968 (in force June 23. on the one hand.20 Under this Code. the suit must be transferred to an acceptable jurisdiction defined in art.1972. 2 Ed.1978). 4) the port of discharge.D. at his option. adopted at Brussels. In addition. December 21. 2) the place where the contract of carriage was made if the defendant has a place of business. 21(1) authorizes the cargo claimant. 20 This common Nordic Maritime Code came into force on October 1. the Swedish Maritime Code. 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. See. see English text in O. adopted at Brussels on September 27. contain no provisions on jurisdiction or arbitration. such clauses are generally upheld by courts and may be set up against parties to the bill of lading or similar document of carriage. to designate the place of suit after a claim under the contract of carriage by sea has arisen. however.. Again. as between the Danish and Norwegian versions of the Code. 1979 (in force February 14. 30. 3) The Hamburg Rules 1978 The Hamburg Rules19 at art. Jure AB. The Hague Rules 1924. by agreement. while still adhering to the Hague/Visby Rules. Protocol 1979"). branch or agency there the contract through which the contract was made. for example. however. adopted at Brussels. 21(2) solves the difficult problem of jurisdiction being acquired by the arrest of the ship in rem. 21(5) permis the parties. but in some cases with certain national qualifications. 1992. 1984) (commonly known as the "Visby S. Protocol 1979. published in Swedish and English by the Axel Ax:son Johnsons Institut för sjörätt och annan transporträtt. In particular.J. The Nordic countries (Denmark. Norway and Sweden). whether or not those parties have really taken cognizance of their terms.C. on the other.10. 2001. 2000. nevertheless adopted a common maritime code in 1994. 299/32.C. 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. Finland. 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. Art. Art.R. for example. and in force November 1. 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. 1968 (O.E. at the petition of the defendant. 304/36. and 5) any additional place designated for that purposes in the contract of carriage by sea. A number of countries have enacted national legislation in an effort to give effect to the Hamburg Rules options as to jurisdiction. are commonly known as the "Hague/Visby Rules 1968/1979". Stockholm.D. the options as to places for suit are similar to those permitted by the Hamburg Rules. nr 22. 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. and the Finnish and Swedish versions. 31. 1994.R. 3) the port of loading. art.8 The Hague/Visby Rules 1968/1979. The numbering of the articles differs. as amended by the Visby Protocol 1968 and the Visby S. 21 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. The arrest is valid but. L. updated to June 30.
September 16.23 4) The Multimodal Convention 1980 The Multimodal Convention. 7(2) of which authorized the addition of a “Schedule of Modifications” to the 1991 statute as amended. 23 See Swedish Maritime Code.26 reads: “11 (1) All parties to: (a) a sea carriage document27 to which. Norway and Switzerland). L 12/1. signed at Geneva on May 24. by E. 26. 198024 has similar provisions at art. See also Tetley. 753-754. 2002. effective March 1. Regulation 44/2001 of December 22. This Schedule of Modifications is Schedule 1A of the 1998 Regulations.C.25 as amended by the Carriage of Goods by Sea Regulations 1998. 1998. Allan Philip. 11 of the Australian Carriage of Goods by Sea Act 1991. the amended Hague Rules28 apply. Chap. sect. except Denmark.1 and 6. 22 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. paras. (O. and as later replaced for all European Union states. 13. in force July 1. 160 of 1991 (Cth. 319/9. 1(1)(g). 2) the place where the multimodal transport contract was made. “Scope of Application.22 both of which conventions make the domicile of the defendant the major criterion of jurisdiction.1.9 Convention 1988.J. L. “Arbitration & Jurisdiction in Carriage of Goods by Sea and Multimodal Transport – Can we have international uniformity?”  ETL 735 at pp.E.) 26 Statutory Rules 174 of 1998. provided that the defendant has there a place of business. the parties may agree on a place for instituting an action after a claim has arisen.2. 123 of 1997. referring to arts. 2000 (O. 310 and 311 of the Danish Maritime Code.J. 6. 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.11. 25 No. para. were authorized by the Carriage of Goods by Sea (Amendment) Act 1997.E.2001). or 4) the place of delivery of the goods.C. 1980. relating to the carriage of goods from any place in Australia to any place outside Australia or subsequently amended. 60. No. 1988. 16. By art. 319-321. or 3) the place of taking the goods in charge for international multimodal transport. adopted at Lugano. 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. except in respect to actions in rem. or relating to a contract of carriage to which. at art. 27 The term “sea carriage document” is defined in Schedule 1A (Schedule of Modifications) of the Carriage of Goods by Sea Regulations 1998. 24 United Nations Convention on International Multimodal Transport of Goods.1988). Schedule 1. IV. not in force. Liechtenstein. For example. branch or agency through which the contract was made.C. 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. sect. Choice of Law and Jurisdiction in the New Nordic Law of Carriage of Goods by Sea” (1996) Il Diritto Marittimo 308 at pp. The Carriage of Goods by Sea Regulations 1998 amending the Carriage of Goods by Sea Act 1991. or 5) any other place designated for that purpose in the multimodal transport contract and evidenced in the multimodal transport document. 26(3). or a negotiable document of title . 25.
or relating to a contract of carriage to which. 11(3) to the 1991 statute. 164-165 (Fed. 1994 at p.S.). but only on condition that the arbitration is conducted in Australia. Sup.) 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.10 (b) a non-negotiable document of a kind mentioned in subparagraph 10(1)(b)(iii). at pp.W. See Hi-Fert Pty. in appeal  2 Lloyd's Rep. Mitsui & Co. . The People's Insurance Co. 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. 29 Subsect. is not negotiable. 229 (N.. Kiukiang Maritime Carriers (The Kiukiang Carrier)  159 A.L. Ct. 153.  2 N.” 30 The Australian Carriage of Goods by Sea Act 1991 was amended by the Carriage of Goods by Sea (Amendment) Act 1997. 31 No. relating to the carriage of goods from any place outside Australia to any place in Australia.W. 32 The Federal Court of Australia has been held that sect 11 of the Carriage of Goods by Sea Act 1991. and has received a similar interpretation. declared that a clause calling for actions to be tried in a French Court was invalid. See Tetley.L. The Supreme Court of New South Wales. note 80.L. Sup. the Hague/Visby Rules 1968/1979] are to govern the contract as if the document were a bill of lading. as amended for Australia by the Schedule of Modifications (Schedule 1A) of the Carriage of Goods by Sea Regulations 1998.). Tetley. however. (1974) 24 F. Limited v. or a bill of lading that. John Churcher Pty Ltd. by law.32 31 that is similar to a bill of lading and that contains or evidences a contract of carriage of goods by sea. of Aust. 9 of the former 1924 statute as interpreted in the Wilson decision (supra). 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). 191. 22 of 1924. 544 (High C. 783-784. are taken to have intended to contract according to the laws in force at the place of shipment. 179 (N.). 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. (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. v. No. See also Wilson v. 374 (Aust. International Conflict of Laws. England. so as to add sect.L.W. 3 Ed. Ct. or (ii) a non-negotiable document of a kind mentioned in subparagraph 10(1)(b)(iii) relating to such a carriage of goods.R. 142 at pp. 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). (1996) 141 A. 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). note 16. 123 of 1997 (Cth. 9(1) of the Act. 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. 28 The “amended Hague Rules” refers to the Hague/Visby Rules 1968/1979. Aust. upheld by the Australian High Court. See. Compagnie des Messageries Maritimes  1 Lloyd's Rep.). Ltd. 1988.S.): A French bill of lading for a shipment from France to Australia called for suit in France.e. 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. being a contract that contains express provision to the effect that the amended Hague Rules [i. Marine Cargo Claims. High C.S.”30 This legislation is very similar to sect. C. 9 of Australia’s former Sea-Carriage of Goods Act 1924. v.R. (Australia) Ltd. like sect.29 relating to such a carriage of goods. See also Akai Pty Ltd. the amended Hague Rules apply.R.
which permit any person carrying on business in the Republic. 384. waybill or document before the competent court in the Republic.2 at p.4. 104 of 1994. thus being slightly more liberal than the corresponding Australian statute which allows only Australian arbitration.C. April 11. 193635 at art. 257 of the Civil Procedure Law 1991 is more liberal as regards foreign arbitration. at art. In practice.38 See New Zealand’s Maritime Transport Act 1994. 1997. 1997. Witherby Publishers. International Maritime Bureau. although that statute does permits arbitration of cargo claims outside. 621 at p. 346347. 1993. although the requirement that the shipper sign the bill was repealed in 1987. prohibiting the ouster of local jurisdiction. to agree in writing to trial by the court at the place that has an actual connection with the dispute. The court selected must be clearly identified in the bill and. where the foreign jurisdictions designated by such clauses enforce forum selection provisions in similar contracts calling for suit in the P. 386-387. only Dutch and German jurisdiction clauses were recognized in the P. 66-1078 of December 31. 400 and para. 1966..R. 34 See South Africa’s Carriage of Goods by Sea Act 1986.’s maritime courts. Loi relative aux transports des marchandises par mer.) jurisdiction clauses in bills of lading. for example.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. 1991.C. would seem to mean the court of the P. foreign jurisdiction clauses in ocean bills of lading are recognized by Chinese maritime courts only where the foreign country concerned recognizes Chinese (P. having an actual connection with the case.11 A number of other countries. sect. 87-922 of November 12. Vialard. 7. Presses universitaires de France. Art. 36 The requirement that bills of lading be signed by shippers was repealed by Decree No. Paris.C. para.36 it must nevertheless be proven that cargo genuinely consented to the clause. however. New Zealand. waybill or like document for the carriage of goods inbound to South Africa. See generally Tetley. Today. para. which permits both parties. 1936. 499 at pp. Journal officiel. “Arbitration & Jurisdiction in Carriage of Goods by Sea and Multimodal Transport – Can we have international uniformity?”  ETL 735. 244.1).C. China’s Maritime Courts and Justice. Jurisdiction Clauses Restricted by National Law The former French domestic Law of April 2. exclusive jurisdiction clause or agreement to refer any dispute to arbitration”. 3(1) and 3(2). A. Pedone. jurisdiction clauses in bills of lading may only be invoked against merchants and these clauses must figure prominently in the bills. the autonomy of parties to agree on a foreign jurisdiction for litigating their cargo claims is severely restricted. to bring an action on the bill. the Civil Procedure Law 1991 of the People’s Republic of China. 37 See M. No. under art. 33 . 426427 and para.R.e. V. therefore. Droit Maritime. See Zhang Jinxian. which preclude the ouster of New Zealand jurisdiction by foreign jurisdiction clauses in bills of lading. Nevertheless. 38 See. adopted by the Fourth Session of the Seventh National People’s Congress of the People’s Republic of China on April 9. as well as inside. 533 at pp. in a case concerning contract disputes or disputes over property rights involving foreigners (including maritime contract disputes).R. 447 at pp. and jurisprudence cited there. 210(1) and (2). 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). The word “court” in this context. 445 at p. amending art. 48.34 have enacted similar nationalistic legislation on jurisdiction clauses in bills of lading and other sea carriage documents.C. D.C. sects. London. para. however. as well as the consignee or holder of any bill of lading. 35 Loi du 2 avril 1936.R. Act 1 of 1986. the burden of making such proof resting with the carrier. 37 of Decree No. although the article does not expressly preclude selection of a foreign forum. such as New Zealand33 and South Africa. I. 1987. “[n]otwithstanding any purported ouster of jurisdiction. Rèmond-Gouilloud. para. in French internal law. Droit Maritime. 48 of France’s Nouveau Code de procédure civile. similar documents of title or nonnegotiable documents covering shipments to and from New Zealand.1937. As of 1997. 2 Ed.
c. v. the parties to a contract referred to in that subsection may.12 Canada. the plaintiff. “(2) Notwithstanding subsection (1). c. is in Canada. branch or agency in Canada. v. under certain conditions. 46.). New Zealand and South Africa.). 2001. designate by agreement the place where the claimant may institute judicial or arbitral proceedings. 151. even where Hamburg does not apply to the bill of lading contract of its own force or through incorporation by reference. in accordance with the contractual clause or. in force August 8. the cargo claimant may sue in the contractually stipulated place or in any of the other optional venues listed in those Rules. (b) the person against whom the claim is made resides or has a place of business. of Can. 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. 46(1) of Canada's Marine Liability Act. The Castor (2002) 297 N.. 2001.) s. while still favouring local jurisdiction and arbitration.S.39 provides the marine cargo claimant with the option of suing or arbitrating in Canada. It does not prohibit ousting Canadian jurisdiction over bill of lading disputes. 6.40 In the latter case. For decisions on the application of sect.C. 2003 AMC 305 (Fed C. to sue or arbitrate in Canada. where (a) the actual port of loading or discharge. balanced and 39 40 S. is significantly less restrictive and nationalistic than the corresponding legislation in Australia. under sect.C.” Sect. or the intended port of loading or discharge 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. Sect. C. the proposal is a way of giving the cargo claimant a Canadian litigation/arbitration option. The Viljandi  ETL 760 (Fed. see IncremonaSalerno Marmi Affini Siciliani (I. may choose to litigate or arbitrate outside Canada. in cases similar to those enumerated in arts. the claim must have arisen after the jurisdictional provision has been agreed.n. Nestlé Canada Inc.M. of course. in situations where that option would exist under Hamburg.A. In effect. alternatively. 6.A. But if Hamburg does not apply. the residence or place of business of the defendant or the place of contracting). If the Hamburg Rules apply to the contract. under its Marine Liability Act. but permits the cargo claimant to opt instead for suit or arbitration in Canada. 21 and 22 of the Hamburg Rules. It seems fair. S. 2001. after a claim arises under the contract. .S.R. despite the presence in the bill of lading of a foreign jurisdiction or a foreign arbitration clause. 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. or (c) the contract was made in Canada. however. as an alternative to suing or arbitrating abroad as per the bill of lading. 46.c.
30.K. 1978 (O. 03. London. signed at Luxembourg on June 3. signed at Luxembourg on October 9.1972. was amended by the 1978 Accession Convention and subsequent Accession Conventions. 299/32. 285/1. the decision of the Court of Justice of the European Communities in The Tilly Russ  ETL 3 at p.10.J. to be effective under art. 1971 and in force September 1. RUWA Polstereimaschinen G. See also Estasis Salotti di Colzani Aimo e Gianmario Colzani v.1989) and the Accession Convention of November 29.01. U.45 Subsequent decisions of the European Court of Justice. L. 41. have reaffirmed the essential importance of a genuine agreement between the parties as to the foreign jurisdiction concerned. 17 as it has evolved in wording since 1968. Spain and Portugal. L. pending Canada's possible eventual transition from the Hague/Visby Rules to the Hamburg Rules. 1987. in order to protect the weaker bargaining party from foreign forum selection clauses inserted in boilerplate language by the stronger party. 2. C-106/95. Case No. the Accession Convention of May 26. 388/1. C.J. 41. there must be the possibility of attacking 41 . 1982 for Greece (O.42 This Convention.K.C.E. 55.b. See of the Accession Convention of October 25.m. 27. and Austria. 1982. Civil Jurisdiction and Judgments. the Brussels Convention 1968 was given the force of law by the Civil Jurisdiction and Judgments Act 1982. c.15/1.E.97 at p.J. it has also adopted the Hamburg Rules 1978 and retains the option to bring those Rules into force.R. and of which the weaker party remains unaware until it is too late.1978).  E. Mainschiffahrts-Genossenschaft Eg v. Member States.E. as so amended and re-amended.U. 15.” 46 See. 3 Ed. 1975. 17 of the Brussels Convention 1968. following the making of a report to Parliament by the federal Minister of Transport on the advisability of doing so before January 1. Although this and other ECJ decisions maintain that the formalities required by the article are themselves “… a full. 304/1. which must be clearly and precisely demonstrated. be the “subject of a consensus between the parties. for example. In the U. 43(1) and (2) and Schedule 3 of this Act). 2005 and every five years thereafter (see sects. 1968.C. Some of these accession conventions made substantive amendments to the Brussels Convention 1968.C. Finland and Sweden. to clauses confirming a previous oral agreement between them and to clause forming part of “the steady business relations” between the parties. as subsequently amended by various accession conventions.C.C. L.C. L. 45(1) and (2) and Schedule 4 of the Act). for example. L. rendered under art.1997).E. 17. 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. See generally Geoffrey Brice. on the admission to the European Union of Greece. which came into force on January 1.12. provided a rule requiring the courts of Contracting States to respect written jurisdiction agreements. (see sects. 304/36. 1989 for Spain and Portugal (O.98). 44.J. LLP. 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. perfect and sufficient guarantee of the existence of consent or consensus” (see Briggs & Rees. requiring that a jurisdiction clause.E. The Brussels Convention 1968 was re-amended three more times. “Maritime Claims: The European Judgments Convention”.1978).46 Although under its Marine Liability Act. Finland and Sweden (O.E.  LMCLQ 281. which includes the 1971 Protocol of Interpretation43 annexed to it. 2002. see English text in O. 1996 for Austria.H. 31. 44 Convention on the accession to the 1968 Convention and the 1971 Protocol of Denmark. 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.J.10. 31.41 VI. 30.. Les Gravières Rhénanes SARL.J. The rule was applied to bill of lading jurisdiction clauses agreed to by the parties.  ECR I-911.44 Art.12. 1831.13 reasonable. 43 Protocol on the interpretation of the 1968 Convention by the European Court. 106). para.10. 45 See. 42 Hereinafter described as the 1968 Brussels Convention (O.C.. the Republic of Ireland and the United Kingdom.
Like the old Brussels Convention.J. 47 Denmark chose not to bound by the EC Regulation. L. 2000) in matters of civil jurisdiction and the enforcement of judgments. Art. and therefore is still governed by the Brussels Convention 1968 in its relations with the other Member States of the E. which applies directly (i.e. . misrepresentation or frustration. parties to contracts of the type involved in the particular trade or commerce concerned. Such an agreement conferring jurisdiction shall be either: (a) in writing or evidenced in writing. read as follows: “1. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. 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. 2002. in any court of a European Union Member State. and regularly observed by. duress. Its rule on jurisdiction agreements. (i. 1988 (O. “2. 23. unlike art.1988). mistake.e. Iceland. For the text. 49 The EC Regulation. and in force in all Member States of the European Union except Denmark. “L’entrée en vigueur du règlement communautaire no 44-2001 du 22 décembre 2000 concernant la compétence judiciaire. la reconnaissance et l’exécution des décisions de justice en matière civile et commerciale”  ETL 727. in respect of civil jurisdiction and the enforcement of judgments. that court or those courts shall have jurisdiction.E. at art. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. 17 of the Brussels Convention 1968 as amended by the various Accession Conventions.14 2) EC Regulation 44/2001 The Brussels Convention 1968 was replaced. except Denmark. 23(1)(a).J.. For commentary. 48 EC Regulation No. and also binds Poland (since that country acceded to the Lugano Convention on February 1.E. but not Liechtenstein).49 the jurisdiction clause as invalid for fraud. Any communication by electronic means which provides a durable record of the agreement shall be equivalent to ‘writing’. 319/9. see O.47 by the Regulation of the Council of the European Union (EC Regulation 44/2001)48. This latter expression has yet to be interpreted by the European Court.C. 107). if the electronic communications leave a “durable record”. very similar to the Brussels Convention 1968. at p. 25. 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. the EC Regulation establishes uniform rules on civil jurisdiction and the enforcement of judgments in civil and commercial matters. except for Denmark. The Lugano Convention of September 16. 23 (1) to (3). or (c) in international trade or commerce. If the parties. 17 of the Brussels Convention 1968.U. Briggs and Rees suggest that such a possibility may lie in the development of an autonomous definition of “agreement” (see ibid. one or more of whom is domiciled in a Member State. as of March 1. Norway and Switzerland. adopted on by the Council of the European Union on December 22. or (b) in a form which accords with practices which the parties have established between themselves. without the need for any implementing national legislation) to proceedings instituted on or after March 1. is couched in terms very similar to those of the most recent text of art. see Pierre Bonassies. the most pertinent portion of the new Regulation.11. also continues to govern three of the four remaining remaining States of the European Free Trade Association (EFTA). 2002. provides for jurisdiction clauses and agreements evidenced by electronic documents to be treated as “writings” for the purposes of art.C. L 12/1 to L 12/23. 2000.
23 of EC Regulation 44/2001 is basically unchanged from art. 17 of the Brussels Convention generally. The existence of the usage must be established. 23 of EC Regulation 44/2001 is in force:53 (1) the wording of the jurisdiction clause. 23 of the Regulation. in its decision in Coreck Maritime GmbH v. Bulletin des transports 2002. 23 only requires that the jurisdiction clause in the bill of lading be “in a form which accords with a usage in that trade or commerce of which the parties are or ought to have been aware and which in such trade or commerce is widely known to. particularly in the Castelletti (supra) and Coreck Maritime (supra) cases. where applicable.20. 54 Thus. DMF 2001. Bills of Lading: Law and Contracts. the European Court of Justice held that the knowledge of the usage concerned is “independent of any specific form of publicity”. and regularly observed by. 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. 734. supra. first para.  ETL 727 at p. March 21. 187. where the bill of lading jurisdiction clause did not expressly specify the name of the court selected. may be “concretized”. DMF 2001. Bonassies.  ECR I-9337. Delebecque. of the Brussels Convention 1968 in relation to bill of lading jurisdiction clauses. 11. 1984.52 and its three main findings would appear to remain applicable to such clauses now that the very similar art. 1999 (Case No. See also Cour d’Appel de Rouen. 2002. Art. but rather by the practice generally and regularly followed in concluding a certain type of contract. 23 of EC Regulation 44/2001 (like the most recent text of art.. March 16. Where such an agreement is concluded by parties. 2000 at paras.  ECR I-1597.51 If this requirement of form is complied with. Delebecque. Handelsveem BV. June 19. obs. at p. but rather merely called for suit in the court of the place of the “principal establishment 51 50 . 733.  ETL 3.51to20. need not name the court having jurisdiction.81. 53 See P. 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. the courts of other Member States shall have no jurisdiction over their disputes unless the court or courts chosen have declined jurisdiction.” (Emphasis added) The text of art. indicating that art. of the Brussels Convention 1968) is different from the pre-1978 text of art. Bonassies. These elements. In Trasporti Castelletti Spedizioni Internazionali SpA v. first para. under art. (Case No 387/98). Handelsveem BV. 17. 17 of the Brussels Convention 1968 and that the decisions rendered under art. June 21. not by the national law of one of the contracting states.54 European Court of Justice. none of whom is domiciled in a Member State. (Case No. The European Court of Justice interpreted the most recent text of art. Hugo Trumpy SpA. applying the Castelletti decision. Ph. 187. Ph. Ph. 52 November 9. 17 of the Convention by the Court of Justice of the European Communities. On art. 17. parties to contracts of the type involved in the particular trade or commerce concerned”. the jurisdiction clause must be given effect when one of the parties is domiciled in a Member State of the European Union. obs. obs. Asariotis & Baatz. 2001 (The Nedlloyd Van Neck)  ETL 926. will probably continue to apply under art. in the Coreck Maritime case. 17 from which the European Court of Justice in The Tilly Russ50 drew the criteria for a valid and enforceable jurisdiction clause. 387-98). DMF 2000. supra. 337. for example. therefore. Delebecque. with the result that the usage may be considered to be a consolidated practice.  ECR I-9337. 2000. which might be given to the standard form on which the clause appears. 2000. See also Cour d’Appel de Versailles. 17. See P. by the circumstances of the case. the objective knowledge of the trade usage by either party to the contract is irrelevant. November 9. which must be sufficiently precise to enable the judge seized of the case to determine whether he has jurisdiction.15 “3. see Gaskell. In fact. C-159/97). knowledge of such a generally and regularly observed usage is “imposed” on the shipper.
364 at p. 373. where under the applicable French law. . 556. Revue Scapel 2003. 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.A. 23 of EC Regulation 44/2001. 2003 (The Houston Express). 2000 at paras. See also Cour de Cassation. March 4. 2002 (The Walka Mlodych). See Cour d’Appel de Rouen. has succeeded to the rights and obligations of the shipper under the applicable national law. 71(1) of EC Regulation 44/2001 (similar to art. as interpreted by the European Court.. of the Convention. where the language of the bill. 17. it is governed by the very specific terms of the EC Regulation 44/2001 (and the Brussels Convention 1968 in the case of Denmark). 2003 (The Sonara). 23 to accommodate a course of dealings between the parties and practices in international trade. Tassel. observations Y.  ETL 453. October 8.55 (3) a jurisdiction clause in a bill of lading. June 18. BP France S. the forum designation was held valid. jurisdiction clauses must still reflect a consensus between the parties to the contract that is clearly and precisely demonstrated. Under those provisions. 59 See Gaskell. the Regulation does not affect any conventions to which the Member States are parties and of the carrier”. interpreted in the light of the commercial background of the case.16 (2) art. DMF 2003. 17 of the Brussels Convention 1968. rather than Belgian law. as under the art. because it was not proven that the consignee had consented to the clause at the latest at the time of delivery.77. being the successor to the rights and obligations of the shipper under the bill.57 European law thus accepts jurisdiction clauses in bills of lading and other contracts. however. 58 See Siboti v. where those provisions reflect a genuine. DMF 2003. the foreign jurisdiction clause was held unenforceable as against the subrogated underwriter of the consignee/ holder of the bill of lading. Ph. holding that art. 60 Siboti v. applying the conflicts rules of his national law. Asariotis & Baatz. notwithstanding the amendments to art. 55 Where the court selected is in a “third State”. it is proper to verify the reality of the holder’s consent to the clause by reference to the requirements of art. Cour de Cassation. 57 See.  2 Lloyd’s Rep. See also Rechtbank van Koophandel te Antwerpen. 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.59 Acceptance of forum selection agreements is not unconditional. April 9.56 If such is not the case. 20. produces effects with respect to a third party holder of the bill.  ETL 321. provided that the holder. rather.A. 57 of the Brussels Convention 1968). 364 at p. The same test has been applied in France to arbitration clauses.58 and whether or not that forum has any connection with the dispute or the parties. obs. first para. 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. 2002 (The Dymphna). 17 of the Brussels and Lugano Conventions were inapplicable to a bill of lading jurisdiction clause calling for suit in New York courts. 547. 17 and the changes introduced into art.60 3) Arrest in rem under other conventions Under art. Bills of Lading: Law and Contracts. in acquiring the bill. for example. See also Rechtbank van Koophandel te Antwerpen. 1997 (The Adamastos). 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. incorporation by reference of a jurisdiction clause into a bill of lading is effective. applied to the bill of lading contract and therefore that the third party holder of the bill was bound by its jurisdiction clause. BP France S.  2 Lloyd’s Rep. 20. mutual consent between the contracting parties to sue in a determined or determinable forum. Delebecque. March 4. demonstrates clearly and precisely a consensus by the parties on the subject matter of the clause. where the Belgian Court decided that English. 372. agreed to by a shipper and a carrier. but rather that that law fell to be determined by the judge seized of the case. emphasizing that under art.73 and 20.
U. 2000 at para. 20. c. even if that foundation does not exist in the Regulation. 421-423.15 at p.. if they believe that.17 which in relation to particular matters. 17 of the Brussels Convention (now art. State whose courts would normally have jurisdiction under the Regulation.. Asariotis & Baatz. Bills of Lading: Law and Contracts. 66 The Bergen (No. 2)  1 Lloyd’s Rep. 2002 at para.) is thus preserved and is permitted to override jurisdiction under the EU’s ordinary rules. although they have jurisdiction to decide the dispute. Civil Jurisdiction and Judgments. even if the shipowner or demise charterer is domiciled in another E.66 VII. 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. the Limitation Convention 1976 and the Hamburg Rules 1978.K.126. 3 Ed. 2000 at para. if their domestic law gives jurisdiction to their courts. 65 See The Bergen (No. having arrested a ship in rem in accordance with the applicable procedure. The importance of this provision is that it permits Member States of the E. 380.114-20. The court therefore embarks on an analysis to identify what court is the “more International Convention Relating to the Arrest of Sea-Going Ships. 11 (C. 1952 and in force February 24. 710. 361 (C. Various other maritime law conventions also have rules on jurisdiction which would override the Regulation. 513. the English court. either of their own motion or at the petition of one of the parties. 61 . International Conflict of Laws. the Civil Liability Convention 1992. May 10. as in fact has been done in at least one case where the bill of lading expressly provided for jurisdiction in Germany. decisions on this matter (rendered with respect to art. govern jurisdiction or the recognition or enforcement of judgments.). The most important example of this type of convention on a “particular matter” is the Arrest Convention 195261 Art. at para.15. 8. Gaskell. 2002 at para. and in some other cases. 23 of the EC Regulation) purporting to assign jurisdiction to the courts of another E. 7 of that Convention permits Contracting States to take jurisdiction on the basis of the arrest of a ship in their territorial waters. 54. Asariotis & Baatz. adopted at Brussels. will have a valid basis of jurisdiction over the underlying “maritime claim”. 8. there is another. the place of the carrier’s place of business. at sects. 3 Ed.65 Nevertheless.A.U. 1994 at pp. the domestic law permits such arrest in rem under the Supreme Court Act 1981. English jurisdiction based on ship arrest would remain unaffected by an exclusive jurisdiction clause as contemplated by art.B.A.64 Jurisdiction in rem (even where the defendant is not available for service in the U. 57 of the Brussels Convention 1968 prior to the enactment of EC Regulation 44/2001. Civil Jurisdiction and Judgments. 8.K.63 In consequence.62 which. See also Briggs & Rees. 1956. International Maritime and Admiralty Law. 805-809.13 at p. the Athens Passenger Convention 1974. 63 Briggs & Rees. ibid. 64 See the classic U. Tetley. notably. courts today generally have the discretion to either dismiss or (more usually) to stay conditionally the proceedings validly instituted before them. clearly more appropriate forum in another jurisdiction where it would be better to try the suit. Is There a More Convenient Jurisdiction? In common law countries. Bill of Lading: Law and Contracts.) and The Anna H  1 Lloyd’s Rep. State. the Penal Jurisdiction in Collision Convention 1952. having regard to the interests of the parties and the ends of justice. 2003 at pp. 20-24 implements the Arrest Convention in English domestic law. 62 U. 1952.K. as they did the Brussels Convention. See Gaskell. to take jurisdiction over a dispute on the basis of jurisdictional foundations provided in another convention governing a “particular matter”. 515. 1981. but still relevant under the Regulation) in The Deichland  1 Q.128. the Civil Jurisdiction in Collision Convention 1952. Tetley. 1)  1 Lloyd’s Rep. Briggs & Rees.U. 20. In England.
460. 795 (H.  1 Lloyd’s Rep. 398. Automobili Lamborghini S. .Q. C.A. Lamborghini (Canada) Inc. International Conflict. 854 (H.C.C. 1982. 915-922.q. Nevertheless.A. J.” 68 The Québec Civil Code 1994. v.R. 1 (H.R.18 convenient forum”.” For decisions applying art.67 Civilian countries. 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.).S. which statute came into force on May 1. C. in case the foreign court does not accept jurisdiction or renders a decision not susceptible of subsequent recognition and enforcement in the forum court. Miller 510 U. v. Boulton & Co. For Canada.e.L. v. If the forum court is convinced that.S.C. DeSavoye  3 S. generally do not have the discretion to dismiss or stay actions which fall within their jurisdiction under their respective national laws. 2003 at p.Q. striking out or dismissing any proceedings before it on the ground of forum non conveniens or otherwise.L. 213 (Qué. or the “natural forum”.).R.J. 27.C. 1992: “Nothing in this Act shall prevent any court in the U. 205.). it may exceptionally and on an application by a party.L.C.R. Cansulex Ltd.L. 501 (1947). 1077. See also the U. S. i.S.  A.K. International Maritime and Admiralty Law. at art.).). and American Dredging Co. see MacShannon v. 88 (Qué. 798-803. the landmark decisions on forum non conveniens include Gulf Oil Corp. Forum non conveniens therefore has no place in their legal systems. provides: “Even though a Québec authority has jurisdiction to hear a dispute. Ct.  R. but should preferably stay them conditionally. 383 (H. 58 (Qué. Cape plc  2 Lloyd’s Rep. sisting. the court seized of the proceedings may dismiss the proceedings.c.K. see Morguard Investments Ltd.L. The doctrine applying to this determination is known as forum non conveniens. v. see H. International Maritime and Admiralty Law. Connelly v.C.).A. 412-413. Supr. 235. Spiliada Maritime Corp. Rockware Glass Ltd. 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). 1994 AMC 913 (1994). the Lugano Convention.J. Reyno 454 U.  A.C. Normand Inc. Tetley. 3135 c. c. and Lubbe v. due to constitutional restrictions. Gilbert 330 U. U. The forum court which has stayed the proceedings 67 Among the classic decisions on forum non conveniens in the United Kingdom. or the “more appropriate forum”.’s Civil Jurisidction and Judgments Act 1982. 69 See Tetley. as the case may be. British Columbia (Workers’ Compensation Board)  1 S.C. 3135 c. Banque Royale du Canada  R. v. 1982 AMC 214 (1981). from staying. v. 12.P.C.K.K.c. if it is the "natural forum" for trial of the dispute. U. where to do so is not inconsistent with the 1968 [Brussels] Convention or. 1994 at pp. Spar Aerosapce v. A conditional stay is preferable to dismissal.q. c.  A.68 After having determined that it has jurisdiction and that there is no direction in the substantive law before it as to jurisdiction. 2003 at pp.). Piper Aircraft Co. See generally Tetley. although it has jurisdiction. v.L.). American Mobile Satellite  4 S.J. on grounds of forum non conveniens. v.  1 Lloyd’s Rep. 49. as amended by the Civil Jurisdiction and Judgments Act 1991.A. Quebec. 897 at pp. Amchem Products Inc. 413. Grecon Dimter Inc. as a mixed jurisdiction. v.  R. 443. RTZ Corp..Q. In the United States. sect. The Abidin Daver  1 A. 1991. on the ground that another forum appears more convenient or appropriate or natural for the litigation. 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". decline jurisdiction if it considers that the authorities of another country are in a better position to decide.. 339 (H. for the adjudication of the dispute.
Connelly v. 501 at P. 1360. 76 G. Lubbe v. v. 1961).S. Margit 1966 AMC 1217 at p. 73 Muller & Co.  4 All E. 1689 (2 Cir. the existence of such a term or agreement is a factor of great weight in forum See. following this analysis.  A. In general. for its part. 412. 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. Ltd. 74 Tetley. Supp. For an example of such a conditional stay in a maritime case. 1966).). 1545. 2) that the other court accept jurisdiction.A. The Hamburg Star  1 Lloyd's Rep.S. N.D. (No. makes its decision as a question of fact based on the whole of the circumstances of each individual case. for example. the stay order was reversed.Y. 1220 (S.A. 1 at p. Subsequently. Swedish American Line. 508 (1947). the convenience and expense of the parties of litigating in either of the competing fora.74 No one can foresee or list all the criteria which the court must decide and weigh.Y. v.  3 W.L. 399. 911-912.).  1 Lloyd's Rep. v.L. and 5) that security acquired by either party be preserved. United Thai Shipping Corp.C.C. the court making a forum non conveniens determination considers such factors as the location and availability of proof and witnesses.D. 383 (H. Takemura & Co. Tsuneshima Maru 197 F. v. Tex. and no single factor is decisive. 1985). 1955).A. 2564 (11 Cir. 78 See.2d 1304 at p. 1984).1985 AMC 1493 (S. 4) that the defendant waive any defence based on a statute of limitations or prescription in the foreign court. 1984). Cape plc  4 All E. 373 (H. 854. 75 Gulf Oil Corp. v. See Baghlaf Al Zafer v. International Maritime and Admiralty Law. S. for example. however.Y. Sophia First 588 F. on condition that the defendant waive any time bar under Pakistani law.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. the House of Lords found that it was wiser to avoid use of the word “convenience” and refer rather to the appropriate forum.D.76 If. Supp. the stay will ordinarily be refused. The Globe Nova 1985 AMC 1977. 1984 AMC 2413 at p.2d 806 at p. 1962 AMC 1217 at p. 1955 AMC 1687 at p. Pakistan National Shipping Co. N. 808. where the court stayed proceedings on a cargo claim in deference to a Russian jurisdiction clause in the bill of lading. 909 at pp. the law applicable to the substance of the dispute.71 Convenience. See also The Kidlovodsk  1 Lloyd's Rep. when it appeared that a Pakistani court might not recognize such a waiver. 229 (C. Gilbert 330 U.R. N. Pakistan National Shipping Co.75 The trial court. Pirelli Cables ltd. 2)  1 Lloyd's Rep.  2 Lloyd's Rep. 77 See. 1218 (S. 663.). 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. 70 .78 Clearly.72 sometimes described as reasonableness. for example. RTZ Corp. See also LN. however.B.  1 W.L. S.R. where a forum non conveniens stay was granted on a cargo claim arising under a bill of lading calling for suit in Pakistan. 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.70 The conditions of the stay may vary depending on the circumstances of the case.R.D. 72 La Seguridad v. 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. Supp. 1307. Nigeria v.). 3) that the defendant submit to service of suit and to the jurisdiction of the other court with the time period stipulated.S. In The Spiliada  1 Lloyd's Rep. 76. Transytur Line. 268.Y.D. Baghlaf Al Zafer v. 335. see The Arctic Explorer 590 F. 9. 1 (C. 1983 AMC 2559 at p.  ETL 45 (S. N. 224 F.L.19 conditionally may then reassume jurisdiction over the dispute. 1983). 183. 1346 at p. 707 F.73 is the touchstone in respect to deciding forum non conveniens motions.R. 2003 at p. 2434 (S.  2 Lloyd's Rep. no foreign court of competent jurisdiction appears definitely more "convenient" than the court first seized. or if the evidence on the question appears to be equally balanced.
). 629 (C. 443 at p. 69 and 70 (5 Cir. 79 . of Canada).S. and the cost of obtaining attendance of willing. v.” Public interest factors82 include a) avoiding “congested centers” of litigation.” Nor may the plaintiff f) “by choice of an inconvenient forum. rather than as a substantive.79 This matter is dealt with in greater detail in sections IX. c) possibility of view of the premises . 721. 207 (H.C. c) the choice of the proper place to study questions of foreign law.83 three of five justices of the U. . Where the dispute at hand falls within the scope of such a forum selection provision. 1814). X and XI. general maritime law In American Dredging Co. doctrine.R. 1234. Cas.. 559 (No. 918 (1994). VIII. 450. 81 330 U.81 where the theory of the private and public interests was enunciated. infra. In addition. v. d) enforceability of a judgment .A. and d) the avoidance of conflicts of law.). Private interests are: “a) relative ease of access to sources of proof. 451 (Supr. Mass. Crédit Suisse  3 All E. with special reference to foreign jurisdiction clauses in ocean bills of lading and other contracts for the carriage of goods by sea. 422 at p. at pp.Forum Non Conveniens 1) Private and public interest factors Forum non conveniens has long been an accepted principle in admiralty in the United States. United States . 'harass' or 'oppress' the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy.2d 1231 at p. 1985 AMC 67 at pp. . 7293) (C. it did not originate there and was not a characteristic feature of the general maritime law of the United States. Tel Aviv 711 F. See Antares Shipping v. b) the benefit of publicity of the trial in the seat of the conflict.S. 1983). see Trendtex Trading Corp. 501 at p.80 The principle was first applied to a non-admiralty matter by the Supreme Court in Gulf Oil Corp. 679 (H. The Capricorn  2 S.C.20 non conveniens determinations. 'vex'. aff’d  Q. aff’d  A. Ct.L. 82 Ibid.. Gilbert. with the result that it was Among many other decisions of this kind. 365. who has taken suit in another jurisdiction. in breach of that agreement.D. The Jerusalem 13 Fed. 80 The Belgenland 114 U. 508 (1947). v.S. 2) Forum non conveniens not a characteristic feature of U.. 355 (1885) is an example of an early admiralty case. the plaintiff. 83 510 U. The Atlantic Star  2 Lloyd's Rep. This very authoritative decision has been referred to by non-American courts.).S. must show strong reasons why he should not be kept to his original bargain.S. but was rather a doctrine of general application. [and] e) the relative advantages and obstacles to fair trial. 509-509.B. b) availability of compulsory process for attendance of unwilling. although forum non conveniens had taken root early on in American admiralty law. witnesses. 1994 AMC 913 at p. 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.R.. See also Perusahaan Umum v. forum non conveniens was characterized as a procedural. See especially p.L.. Miller.C. 197 at p. Supreme Court decided that.
S. Tel Aviv 711 F. 1985 AMC 67 pp. 1986 AMC at pp. that Louisiana amended art. U. 536. and reaffirmed in Piper Aircraft. 920-921. Olaf Pedersen's Rederei) 239 F. Gilbert.86 made uniformity and predictability in the application of forum non conveniens almost impossible. 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.Y.”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. Supreme Court in Gulf Oil Corp. 453. v. 92 Excel Shipping.2d 463 at p. It held that:87 “In such a regime. “jurisdiction should be taken unless to do so would work an injustice. 123(c) of its Code of Civil Procedure in 1999. it was held in Sunny Prince v. however. supra.2d 376. 1597-1598 (E. 508 (1947): “[U]nless the balance is strongly in favour of the defendant. 465. one can rarely count on the fact that jurisdiction will be declined. AMC at pp. however. AMC at p.”).S. Hoheweg that in Admiralty. 1980 en banc).S.S. 1956). Seatrain International 1986 AMC 1587 at pp. 90 454 U. F. the majority in the Supreme Court upheld the validity of the Louisiana statute out of which the litigation had arisen (art. 60 (5 Cir.S.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. 443 at p. Reyno. Note. will also be determined by the principles set out in Gulf Oil Corp. v. 76-77. See also Excel Shipping v. Olympic Corp. 91 454 U.S. 123(C) of the Louisiana Code of Civil Procedure). general maritime law. N. 1984). v. This statement recalls that of the U. combined with the “multifariousness”85 of the public and private interest factors set forth in Gulf Oil v. 1238. but was rather a procedural rule within the legislative jurisdiction of the individual U. In consequence of this procedural characterization. finding that that provision was not pre-empted by federal maritime law. 1236. See also Alcoa S. 235. 235. See Louisiana Acts 1999. “Forum Non Conveniens and Choice of Law” (1987) 18 JMLC 185. at p. 84 . when the jurisdiction of the underlying action has been maintained. 1972 AMC 1682 (2 Cir. 455. 1972). Gilbert 330 U. Speck. 1983). `982 AMC 214 (1982). 87 510 U. U. the plaintiff’s choice of forum should rarely be disturbed. v. 1982 AMC 214 (1981).S. Société Générale 462 F.21 not deemed essential to the proper harmony and uniformity of the federal. so that forum non conveniens may now be applied in maritime cases. Co. states. 89 Perusahaan Umum v.2d 147.84 The Supreme Court further observed that the discretionary nature of the doctrine.” 3) Admiralty .no special restrictive rule Ten years after Gulf Oil Corp. Inc.2d 1231 at p. Whether or not an action impleading a third party should be dismissed on the ground of forum non conveniens. 1.. No..S. 1600-1601.S. 501 at p. 1994 AMC 913 at p. Gilbert. See also Paula K. 85 Ibid. 501. v. 88 Sunny Prince-Hoheweg (Motors Distributors Ltd. M/V Nordic Regent 654 F. 73-74 (5 Cir.2d at p. at p. 922. 86 330 U.. which rendered forum non conveniens unavailable in Jones Act and maritime law cases brought in Louisiana state courts. See Perusahaan.D.92 4) Forum non conveniens and in rem jurisdiction Ibid. ibid. sect. 455. 1980 AMC 309 (2 Cir.S. 922.91 The court should be wary. 1957 AMC 57 at p. AMC at pp.
1218. 503 at p.” 98 Ibid. 104 Ibid. 367 (1885). 78-79.22 Perusahaan Umum v. is fully applicable to all forum non conveniens motions. 145. 1985 AMC at p. 711 F. 1990 AMC 1583 at p. 711 F. 711 F. 486 U. unless the inconvenience he would suffer was tantamount to injustice.S. 77.93 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. See also The New England (J. 69 (5 Cir. pp. 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. added to the normal presumption in favour of the plaintiff's choice of forum.. including in rem admiralty actions. and Van Cauwenberghe v. 1970). Supp. M/V Montmartre 756 F. however. however. 1931 AMC 407 (S. 355 at p. Tel Aviv.2d 1231 at p. Welding Co. Gilbert.2d 332. 711 F. the Fifth Circuit had declared that in admiralty actions in rem. 1990): “the Gilbert analysis.. however. v.K. In Sunny Prince-Hoheweg (Motor Distributors v. position. v.94 After referring to The Belgenland95 and Gulf Oil Corp. Olaf Pedersen's Rederi A/S) 239 F. 249 F. 505. 1983). N. “The Integrity of the Judicial Sale”. 235.S. 555 and The Alletta  1 Lloyd's Rep.2d 620 (9 Cir. 1999 AMC 1070 at p.2d 1103. M/T Rich Duke 734 F. 1985) and a critical commentary by David R. Maritime Liens & Claims. G.Y. 78. 1238. 1982 AMC 214 (1981). Thus courts have been compelled to deny forum non conveniens dismissals in actions in rem.K. 1966). 1239. 73. the court can embark upon the Gulf Oil balancing analysis and decide whether or not it is a convenient forum. 97 Perusahaan Umum v. 100 A ship cannot be arrested twice on the same claim.2d 463 at p. See also Cliffs-Neddrill v. M/V Maridome 169 F.2d at p. 1957 AMC 57 at p..2d at p. 1971 AMC 1298 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. 1234. except in special circumstances: see generally Tetley.. 1239. 142 at p. before embarking on a Gulf Oil balancing analysis.101 but also deny him an adequate security. 1302 (9 Cir. 1985) and Farwest Steel Corp. see The Despina. For the U.. 1236. 1238. 103 Ibid. Reyno.2d at p.K. N.2d at p. 330 U. 1985 AMC at p.  2 Lloyd's Rep.. Tel Aviv. Biard. did make it nearly impossible for the defendant to show interests in an alternative forum. 76.2d at p. Barge Sea-Span 241. strong enough to strike the forum non conveniens balance in his favour. American Lumbermens Mutual Casualty Co. v.S.) 47 F. 517 (1988). 102 Perusahaan Umum v. 96 330 U. 1931). because he would no longer be able to seize the ship102 to enforce whatever judgment he might obtain in the alternative forum.96 the Fifth Circuit stated that the in rem action did not represent an exception to the Gulf Oil balancing analysis. 60. 1966 AMC 121 at p. that the in rem factor. supra. v. 1998. 1985 AMC 67 at p. supra. Gotham Marine Corp.D.1076 (9 Cir.” See..104 711 F.97 The Court did point out. See Shalom-Stolt Dagali. 101 In M/S Galveston Navigator 431 F. “jurisdiction should be taken unless to do so would work an injustice. 1585 (D. 26. 2 Ed. 508-509 (1947). 769 F. 99 Ibid.” 95 114 U. 518 (1947). 501 at pp. v. 711 F. 1098-1104. Piper Aircraft Co.2d 1215 at p.103 A conditional dismissal.D. 630. 94 93 .S. Del.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.98 The Court emphasized that the balancing analysis in Gulf Oil was predicated upon finding that an adequate and available alternative forum did exist. 124 (S.Y.99 Since the seizure of a ship in rem releases the ship from the maritime lien arising from the claim. Supp. Tel Aviv. Chap. 1999). 465. Owen in  JMLC 133. 40. 454 U. as clarified by Koster v. 1985 AMC at pp. 1985 AMC at p. 1985 AMC at p. 1985 AMC 2150 (5 Cir.3d 625 at p. See also Warn v.S. Cactus Pipe & Supply Co. the Court affirmed that “the release or removal of the vessel from the jurisdiction of the court destroys in rem jurisdiction .
203. for example. 110 In accordance with the holding in Indussa. Soc. 1981). such clauses were treated much more strictly. COGSA would be applied by the foreign court. 2001). 109 Ibid. the Second Circuit in Muller v.110 330 U. v. Cal.. It is only when the clause or agreement concerned fails the test of enforceability under those principles that forum non conveniens principles.  2 Lloyd's Rep. 1688 (2 Cir. it would have done so in a forthright manner.2d 806 at p. 723-725. it tends to be the paramount factor in that analysis. LG Electronics Inc. 101 at p. as outlined in Gulf Oil Corp.S. where the bill of lading includes such a provision. S. Union Ins. 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. 108 377 F. S. In 1955. 1967 AMC at pp. v.S.” The concern was that foreign law rather than U. however. 1982 AMC 588 at pp.105 are now considered. American courts began systematically invalidating foreign forum selection clauses as contrary to sect. v. 3(8) of COGSA 1936. 107 224 F. Fritz Transportation International 2002 AMC 106 (N.D. to evaluate the enforceability of jurisdiction clauses and agreements in general. 593. Ltd.106 There were radical swings of the legal pendulum.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. v.S. See. while at the same time the courts retained their discretion.2d 721 at pp.2d 200 at p. v. 1967 AMC 589 at p. See. at p.” Twelve years later the Second Circuit took a completely different approach in Indussa Corp. M/V 106 105 . 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. S.2d at p. 1955 AMC 1687 at p. as was done in the Canadian Act of 1910. 1955).S. 104 (2 Cir. including those appearing in ocean bills of lading. Swedish American Line upheld a jurisdiction clause and declared:107 “…if Congress had intended to invalidate such agreements. Particular principles have been developed in the U. 594-595. en banc 1967). for example.Elikon 642 F. Gilbert. Conklin & Garrett.  2 Lloyd's Rep. 807. 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. In view of current American law. 590-593 (4 Cir. before a relatively stable doctrine of forum non conveniens and jurisdiction clause enforcement were arrived at in the United States. of Canton.109 Thereafter. 105. 202. Ltd. 501 (1947). 377 F.
H. The U. v. M.A. 320-322 (5 Cir.112 recognized a jurisdiction clause giving jurisdiction outside the United States.”).Y. 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” . in an international towage case.2d 458 at pp.2d 372. 2002 AMC 1477 at p.D.3d 51 at p. 3) fundamental unfairness of the chosen law depriving the plaintiff of a remedy or 4) a strong public policy of the forum..”). 156 F.N. In M.Y. international contract should be enforced. 1580-1581. Lloyd’s of London 94 F. 1996) and listing. M/V Berane 181 F. 1972 AMC 1407 (1972) This was a freely negotiated private international agreement for towage. the Court refused to follow Bremen.S. 1988 AMC 318 at pp. 2002 AMC 314. A bill of lading of course is not freely negotiated but a standard-form contract. 1090 (S. M/V Gertrude Oldendorff 204 F.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. 1982 AMC 588 (4 Cir. 2002).D. 53 (2 Cir. v.2d 721. 1. Lucent Technologies. by which the parties simply agree to the jurisdiction of a specified court without expressly excluding jurisdiction elsewhere.111 The United States Supreme Court.24 2) Foreign jurisdiction clauses presumptively valid A major change in judicial attitudes towards foreign forum selection by contract occurred. 112 (The Chaparral) Unterweser Reederei G. 156 F.D. for example. instead.S.Supp. 1972 AMC 1407 at p. 114 See John Boutari & Sons v. S. 1479 (S. Acciai Speciali Terni USA Inc. 2002). Although the clause provided that disputes “… shall be determined by the Court of Bremen”. Attiki Importers 22 F. 462-463. Co. 1994) and other authorities collected there. 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. in a matter which was subject to suit simultaneously in England. 1988 AMC 2328 at pp. 111 407 U. N. 1 at p..  2 Lloyd's Rep. Inc.G.114 as opposed to the merely “permissive” clause. 678.Y.3d 355 (2 Cir.D. 2002). N. Supp. In the case at hand. Novocargo USA Inc. v. Sun Castor 1978 AMC 1756 (D. This followed the English tradition of giving effect to jurisdiction clauses.Y. see Hartford Fire Ins. 113 407 U.V. 928 (4 Cir.) v. State Establishment for Agricultural Product Trading v. See also Union Insurance Society of Canton v.).b. 1442-1444. 2002). 210 F. v.2d 1441 at pp. M/V Sersou 1999 AMC 2352 (S. 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. Inc. M/S Bremen (and Unterweser G. Zapata OffShore Co. Ferrostaal. See.Y. Ranborg. and relied on Indussa Corp. 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. 1981). 115 For an example of a purely “permissive” forum selection clause. 158 (C. v. pointing out that COGSA was not involved in that case. Tokio Express 1999 AMC 1088 at p. Alas. Chemical v. as grounds of non-enforcement of a foreign forum selection clause: 1) fraud or overreaching. which obligates the parties to the bill of lading (or other contract) to litigate in one specified court.D. v.3d 923 at p.. both the American and English Courts ordered suit in England under the same clause in the same matter. 1987). however. Md. The same hostility was demonstrated with respect to foreign arbitration clauses. Tokio Express.H.m. M/V Wesermunde 838 F.2d 372. Supp. 2002 AMC 528 at p. Inc. as it did not exclude jurisdiction elsewhere or employ other mandatory venue language. the mere use of “shall” did not make the clause “mandatory”. 1999). 2d 675 at p.  ETL 57 (S.Supp. 531 (D.2d 1576 at pp. S.V. See also Hartford Fire Ins. Zapata Off-Shore Co. 1977). 2002 AMC 314. v. supra. 1998) (“All and any claims and disputes under the Bill of Lading shall exclusively be referred to [a]rbitration in Bremen [Germany] . Supreme Court held that a foreign jurisdiction clause in a freely negotiated.b. Compare with Reed & Barton Corp.S.  ETL 57 (S.115 A jurisdiction clause may still be Finnrose 826 F. citing Allen v. Novocargo USA Inc. v. The freely negotiated agreement must be unaffected by fraud or undue influence or overreaching bargaining power. Central National-Gottesman. M. Co. 1988). aff’d without opinion sub nom. N.S. 15.m. v.S. Elikon 642 F. 2334-2335 (11 Cir. N. 1418 (1972).
an arbitration agreement could be held unenforceable. 46 U. which did not vitiate the mandatory character of the clause. The relevant enactment in this case was the Limitation of Vessel Owners’ Liability Act of 1851. 92. N. rather than permissive. 2422 (D. Co. 1050-1051 (C. 2002).. Ltd. and related inconvenience. 1995)).S. Supp. Note. Burns v. 1704-1705.Y. 2002). Cal. however. 2d 675 at p. 2003).. 2001). Dist.2d 454 at p. Inc. 2003). of the Southeast v. aff'd 36 Fed. 2002 AMC 1477 at p.”. See Vogt-Nem.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). rather than permissive. 1479 (S. 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…. 678. 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. v. Inc. Tokio Marine and Fire Ins. 867 So. .S. . 4 District.J. AMC at pp. 2004). 2030 (S. however.S. that the Court. 459.D.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.N. permitting the carrier to sue the merchant in the latter’s place of business). Note.25 mandatory. or “[a]ny disputes under the Bill of Lading to be decided in London according to English Law. Vogt-Nem. Lines. 183c. 119 See. Ltd. because no evidence on the prohibitive expense of arbitrating had been adduced by the party seeking to circumvent the agreement.D. 2001 AMC 2417 at p. 24-25 (N. Hartford Ins. Inc. 117 499 U. Shute. 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.2d 1226 at p. 2003 AMC 21 at p. Cal. M/V Tramper 263 F. in order to litigate in the designated court. Radisson Seven Seas Cruises.D. 585.C. M/V Gertrude Oldendorff 204 F.119 Nevertheless. it also qualifies that provision by an exception (e. 116 See. where in addition to providing for the exclusive jurisdiction of a given court. 1991 AMC 1697 (1991). 2002). at pp. or avoid the right of any claimant to a trial by a court of competent jurisdiction. Appx. the United States Supreme Court.g. Intermetals Corp. COSCO 2004 AMC 1048 at pp. airfare and hotel bills).D. v. where the Court found to be mandatory.K. v. 2004 AMC 769 (Fla.27 (N. weaken. U. Supp. Mitsui O.g.D. Inc. but merely permitted. by a 5 to 4 majority. Inc. 1233. Supp. as the first sentence contemplated.Appx.. however. Randolph.D.Y.2d 1191. 2003 AMC 2608 (N.S. found the arbitration clause in that case to be enforceable. Inc.2d 1226 at p. Aktiengesellschaft Fur Industrie Versicherungen 188 F.D. v. travel expenses. v. Fla. – Alabama v. 120 513 U. for example. M/V Tramper 263 F. an exception giving the carrier an option to sue the merchant elsewhere than in the courts of Hamburg. App.” (Central National-Gottesman. v. v. for example. 1231. 79 (2000). Ct. Barbara Lloyd Design. Hanover Intern. which may be just as mandatory where “will” is used. 121 Ibid at p.. Co. 2004). 596-597. that the words “shall” or “must” are not essential to the mandatory character of the clause.116 Because foreign jurisdiction clauses and agreements are now presumptively valid in the United States. v. M/V Pergamos 1996 AMC 2022 at p. was rejected by the Supreme Court in Carnival Cruise Lines. The case concerned a consumer finance contract containing an arbitration agreement which omitted any details regarding filing fees and arbitration costs. 2003 AMC 21 at pp. 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.S.118 More recent decisions have similarly downplayed the relevance of inconvenience in forum selection clause analysis..” The second sentence was held to be a qualification on the first sentence. in its decision in Green Tree Financial Corp. The argument that enforcement of a jurisdiction clause should be denied where the clause required plaintiffs to incur substantial “transaction costs” (e. 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. 491 (3 Cir.. Supp. Cal. N. which made it unlawful for the owner of a maritime passenger carrier to "lessen. Hapag-Lloyd Container Line 2003 AMC 1175 (S. 2002). 118 Ibid.
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).
1998). 1821 (1995).U. AMC at pp. Co. 521 U. N.D. International Marine Underwriters C. 131 F. 131 F. however.D. 1339-1340..D. 1995 AMC 1817 at p. which they have acquired by the suit already taken.S.Y. 1303(8)) to the ship’s own liability. F. M/V D. 794.146 The Ninth Circuit. 2000 AMC 2947 at p. v. under Rule 4(m) of the Federal Rules of Civil Procedure). Atlantic court “appears to have wholly ignored” the reference in 46 U. Va.A. 1991 AMC 1697. M. Inc. 1818 (1995).. denied. Carnival Cruise Lines.3d 1336 at pp. following M. The Supreme Court upheld a foreign arbitration clause even though it appeared in a ‘standard form bill of lading. 1995 AMC 1817. of Canada v. Shute.” (ibid. cert. Supp. 1998). See Allianz. M/V Turquoise. v. Appx.V. criticizing the Ninth Circuit’s view. 1998 AMC 765 at p. ibid. v. N. Co. .S.145 for example. S.” b) The parties should not lose rights already acquired A change in jurisdiction should not cause the parties to lose rights. The Supreme Court also held that a ‘nonnegotiated forum-selection clause in a form ticket contract’ is enforceable against a consumer. 1998 AMC 583. 2000).C. however.R. Atlantic on the point. 515 U. Note. Supp. Co. In Tokio Marine & Fire Ins. over whether the lack of in rem process in the selected forum abroad precludes enforcement of the jurisdiction clause. Therefore the mere fact that the forum selection clause appears in the standard form bill of lading does not render it invalid.S. 148 In Allianz Ins. 131 F. American courts appear divided. See also Fireman's Fund Ins. D. 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. Atlantic. where the Court said that the D.3d 1336. N. 528. 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…. Inc. This is particularly true in actions in rem.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. Similar positions have been taken by district courts in the Second Circuit. v.V. U.2d 787 at p. Allianz Ins. M/V Kasif Kalkavan 989 F. 587 (9 Cir.R.’ See Vimar Seguros y Reaseguros. the unavailability of an in rem action in the designated foreign forum is irrelevant to the enforcement of the forum clause.S. 767 (S. v.U. Va. COGSA. however. 921 (1998). 2001). but that it merely presented “a question of the means of enforcing that liability. took the opposite position in Fireman’s Fund Ins. Cho Yang Shipping Co.D. 147 131 F. See. 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. Ltd.Y. 499. v. 794. Co. Supp. 2000 AMC 2947 at p. 585. 499 U.” 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. But see also Hyundai Corp. 534..S.S. 1998 AMC 583 at p. 498 at p. 2955 (E. 1339 (9 Cir. M/V An Long Jiang 1998 AMC 854 (S.S. M/V Sky Reefer. citing The Sky Reefer 515 U. 593. 1998 AMC 765 at p.R. 528 at p. Cho Yang Shipping Co. International Marine Underwriters C.Y.S.147 holding that this purely “procedural” difference between American and Korean law was not a lessening of the “specific liability” imposed by COGSA. DSR Atlantic. v. 2d at p. Supp. 499. 498 at p.S. 794. Co. 2000). 530. Supp. S.). however. 767 (S. the Eastern District of Virginia. 2955 (E.C.A. 1998). 1997). M/V Kasif Kalkavan 989 F. 1703 (1991).2d 787 at p.S. v. 2955-2956.”148 145 146 2001 AMC 1692 (D.D. 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). of Canada v.
N. however. 508. Gilbert 330 U. Hellenic Lines.D.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. N. Wash. Man B&W Diesel AG 121 F. 1996). 2758 (N.S. M/V Royal Container 30 F. Co. 155 387 F.Y.1968 AMC 328 (S. 322 at p.Y.D. In the S. 1974).D. order the defendant to waive the statute of limitations in the chosen forum abroad. Lauro Lines. In Snam Progetti v. 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.. Cal. Margit. Rotterdam or Oslo. 150 149 . v. 1997). 2124 (W. Co. 1974). decisions tend to indicate that there is no point in changing jurisdiction if the new jurisdiction is inconvenient to the parties and to witnesses. 1967).152 In Sherkat Tazamoni Auto v. 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. See also New Moon Shipping Co. 462.3d 24 at p.” Where there is a foreign forum selection clause in the bill of lading.2d 661. The purpose of a change in jurisdiction is to provide cheaper.Y. S. quicker and more convenient justice. Sound Around Electronics. Orient Overseas Line.Y. Chiyoda Fire & Marine Ins. None of the parties had offices in New York and the bill of lading called for suit in Italy under Italian law. of America v. and without taking any steps to protect the running of time in the designated forum. and the cargo claimant deliberately takes suit in another court despite that clause. Co.D. Lauro Lines 387 F. 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.150 the Court declined jurisdiction “subject to the provision that none of the parties be prejudiced as to any rights they had on . Nor will the U. 1999 AMC 1805 (S. 33. Supp.154 after the shipowner had petitioned in New York to limit its liability following a total loss at sea. In view of the decisions in Bremen. M/V Kapitan Byankin 1996 AMC 2754 at p. v.Y. 151 Great American Ins. 324 (S. 153 277 F. 1999). 1976 AMC 212 at p. in such a situation. 1605 (S. 322 (S. Inc. the date of filing of this lawsuit.D..Y.S. v.. 501 at p.”149 In Hartford Fire Ins.D.151 c) The convenience of the new jurisdiction is less important today Older U.D. 1966). however. Supp. 154 1966 AMC 1217 (S. N. N. 152 Gulf Oil Corp. M/V Hyundai Freedom 1999 AMC 1603 at p.30 If the court is concerned that rights may be lost.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. Street.N. v. v. 1975). 1999). it is doubtful today whether the mere inconvenience of the clause Snam Progetti v. court. where the bill of lading includes a clear and mandatory foreign jurisdiction or foreign arbitration clause covering the dispute in question. N. Supp. Ltd. 1998 AMC 603 [DRO] (2 Cir. Carnival Cruise and The Sky Reefer. Supp.S.D. 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.
as was held in Bison Pulp & Paper Limited v.. see Great American Ins. 15. 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. 407 U. Va. Cho Yang Shipping Co. 157 407 U. Ltd. 1996). 1050 (C.2d 787 at p. unjust. 2000). 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. Shute. the U. 417 U. Ltd. 795. 1418.D. 131 F. Co. reinforced the limited role that the factor of “inconvenience” now plays in assessing the enforceability of such a provision in American courts. 1702 (1991) (quoting Bremen. inconvenience can be considered only if it is grave enough to render the clause unenforceable as being unreasonable or unjust. 2004). at 17. 585. the size of their claims. 1995 AMC 1817 at p.S.S. Inc. v. Supp. 1420 (1972). Nevertheless. 1972 AMC at 1419). N. forum. 1972 AMC 1407 at p. even when the forum clause designates a remote forum for the resolution of conflicts. court to stay proceedings conditionally or to dismiss them. V. Cal. in either case. 2758 (N.S. 1972 AMC at 1412.156 In this regard. 2956 (E.D. Thus. M/V Kapitan Byankin 1997 AMC 2754 at p. accord Scherk v.. the Bremen Court concluded that a ‘forum clause should control absent a strong showing that it should be set aside. v.S. 1995). Supreme Court in Bremen.S. Co.Y. 536. 156 .S. 1 at p. 499 U. COSCO 2004 AMC 1048 at p. 592. 159 1996 AMC 2022 at pp. or unreasonable to hold that party to his bargain.” In this regard. or repugnant to a strong public policy of the U. Absent that there is no basis for concluding that it would be unfair. 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. Rather. at 7.S. 518 (1974). ‘the party claiming (unfairness) should bear a heavy burden of proof. 2000 AMC 2947 at p. 528 at p. 18. where the difference between forum non conveniens dismissals and dismissals for improper venue (because of a foreign forum selection clause) was emphasized. 1823 (1995). Alberto-Culver Co. and the relative burden on the carrier. the ultimate decision depends upon the exercise of judicial discretion. or tainted with fraud or overreaching.D.S.” Proving so high a level of inconvenience is no easy task. 1991 AMC 1697.. 158 515 U. 2031-2032 (S. See also Allianz Ins. Tokio Marine and Fire Ins. Cal.’ ‘ Carnival Cruise Lines. Co.” The finding in Carnival Cruise Lines v. of Canada v.’ 407 U.S. 506..31 to one party to the contract would permit a U. 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.
C. whereas U.S.165 See.V. 163 See. action and availing itself of the limitation proceeding. v. In Nippon Fire & Marine Ins Co. would permit suit against the time charterer who issued the bill as well as the shipowner. 2000). M/V Coral Halo 2004 AMC 273 at p. of Panama 1999 AMC 889 at p. v. M/V Kapitan Byankin 1996 AMC 2754 at p. Inc. so as to avoid the risk of non-enforcement of the Japanese law and forum clause in the bill.S. 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. Supp. 1967). however. Croatian Line 918 F.S.A. M. 165 But see also Hyundai Corp. however. COGSA (46 U. In Central National-Gottesman. COGSA..D. 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. Appx.160 Where many claims were involved in a limitation proceeding. 663. Gertrude Oldendorff. so that giving effect to those clauses would “fragment this case beyond recognition”. 1996) (a mere “conclusory allegation” that Croatia was “politically unstable and jurisprudentially immature” was insufficient to set aside the Croatian forum clause. however. Supp.2d 200 at p. Supp. 105 (2 Cir. because it would relieve or lessen the carrier’s liability contrary to that provision. 2757 (N. 3(8). M/V Royal Container 30 F. 161 For an example of such serious inconvenience. v. N.Y.D. U. Ranborg. 1196 (E.D. Cal. 3(8) of U. for example. notwithstanding the demise clause in the bill." Accord: Glyphics Media. 1996) (plaintiff failed to refute defendant’s showing that Australia. 2002). Court of Appeals decided that a foreign jurisdiction clause was invalid generally.164 for example.161 d) Must not contravene sect.Y. Inc. 2d 675 at p. the argument was accepted. M. the contractual forum. see In re Rationis Enterprises. would not reduce the carrier’s liability contrary to COGSA). 3(8) of U.3d 432 (2 Cir. 162 377 F. as judicially interpreted by American courts. Great American Ins. 2003). the Korean clause was upheld. 204.162after referring to COGSA. for example. 160 . D. 1999). N.V. 1967 AMC 589 at p. 3(8) In Indussa Corp. The Court noted.32 In most cases. 201 F. 1996 AMC 1189 at p. Conti Singapore 2003 AMC 667 at pp. Sound Around Electronics v. Inc. v. aff’d without opinion.D.163 they can still be successful on occasion. 283 (E. 674-675 (S.D. N.S. 1303(8)).S. N. because English courts applying English law would uphold a demise clause in the bill of lading. 856 (S.2d 661 at p.S. Co. N. District Court therefore kept jurisdiction. the vessel owner had waived enforcement of the forum selection clause by filing a claim in the pending U.Y. M/V An Long Jiang 1998 AMC 854 at p. The U. 595. 2002 AMC 1477 at pp. where it appeared that Croatia applied the Hague Rules). the Japanese ship manager agreed to waive the demise clause in the bill of lading. Inc. an English law and jurisdiction clause was found unenforceable as lessening the liability of the carrier contrary to sect. 961 at pp. COGSA. permitting suit only against the shipowner as carrier. Since Bremen and The Sky Reefer. 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. La. Although such efforts usually fail. 894 (S. 680. S.S. Va.Y. 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.D.S.S. under which foreign jurisdiction and foreign arbitration clauses are deemed presumptively valid. 1806 (S.D. 1998). 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. “judicial economy” (the greater convenience of having all disputes settled in one forum. 164 204 F. Pasztory v. 1999 AMC 1805 at p.  2 Lloyd's Rep. 101 at p. 1999).Y. v. 1483-1484 (S. sect. Street. 966-967. v. the Court deciding that the claimant could subsequently sue the shipowner and/or the vessel in rem in the Southern District of New York. the U. thus reducing litigation costs and the risk of inconsistent judgments) is refused as a ground for refusing to enforce a jurisdiction clause.
the foreign jurisdiction clause was denied enforcement on grounds of public policy. Federal Ins. if it could not be established that those courts would apply the obligatory Hague/Visby Rules enacted by Belgium’s Maritime Law. an “unreasonable deviation” from the contract of carriage. which the insurer would enjoy under COGSA.166 a bill of lading calling for German law and Hamburg jurisdiction contained a general liberties clause. facing contradictory affidavits from foreign law experts. if and when interpreted by the designated foreign forum applying the designated foreign law. 91. Conti Singapore 2003 AMC 667 at p.D.. 1998).D. Cal. See also Kanematsu U. 2002 (The Dymphna. v. In Gibbs International Inc. Cal. 2000 AMC 1717 at p. Inc. the foreign forum selection clause has been denied enforcement. N. 574 at p. In these cases. v. where on-deck stowage constitutes.Y. v. 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.D. Glyphics. Nippon Fire & Marine Ins. M.A. 1701(C. Co. M/V Jin He 1999 AMC 1700 at p. 2000). Sligan Plastics Corp.D.169 there must be proof positive that the foreign court. see Rechtbank van Koophandel te Antwerpen. N. Conversely. the carrier had intended to cause the loss or had acted recklessly with knowledge that the loss would probably occur. under sect.S. unless the carrier could prove that the deviation (i. Inc.S. 170 For a similar European decision. would not break its package limitation under German law.e. unless cargo could prove that in doing so. in the U.S. COGSA.167 a Korean jurisdiction clause in a bill of lading was held to be invalid. N. Supp. 167 166 . unless he had immediately objected to it on receiving the bill of lading. M/V Spring Wave 92 F. would or would not in effect be construed so as to relieve or lessen the carrier’s liability contrary to sect.33 In Heli-Lift Ltd. 2001). There are also decisions in which American courts.  ETL 509 (E. the deck stowage) was reasonable.  ETL 453. where a Japanese forum selection clause was found null and void and unenforceable. Inc. 1997). M/V OOCL Faith. courts would be void by Belgian law. June 18. where a Belgian Court decided that a bill of lading clause granting jurisdiction over cargo claims to U. M/V Ocean Sunrise 2003 AMC 2200 (E. v. 2003). Co. 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. and the shipper would be deemed to have consented to deck stowage. M/V Nedlloyd Holland 1998 AMC 2163 at p. 168 See. 2960 (D.S.S. unless consented to expressly by the shipper or permitted by a general port custom. 1997 AMC 2954 at p. 3(8) of U. permitting the carrier to stow a helicopter on deck. The carrier’s act in stowing the cargo on deck. applying its law. 169 See. prima facie.170 2003 AMC 30 (C. v. v. 2003). La. 1998). 675 (S. even if negligent. 1719.J. for example. 576.D.V. 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.Y. La. v. art. 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. 3(8) of COGSA.168 One point is very clear in this regard. S. 1999). The American court noted that such a clause would be upheld in Germany.D. have been uncertain whether particular bill of lading clauses. Majestic Electronics. for example..C. Sanko Spruce 1999 AMC 366 (D. because it appeared that Korean law would not grant the cargo underwriter claimant an action in subrogation. 2166 (S. COGSA package limitation for resulting cargo loss or damage. v. will in fact lessen the carrier’s responsibility below the COGSA threshold. Union Steel America Co.
v.Y.S. 11. 67 F. 678. denied. Central National-Gottesman.D. 1996 AMC 253 at p.S. 2002). Subsequent U. Inc. S. Swedish American Line. The fact that plaintiffs in many jurisdictions are permitted to plead by deposition often precludes acceptance of the “day in court” argument. 2618-2619. 2616 (N. 945 (1993). v. 2003).S.D. Margit 1966 AMC 1217 at p.S. Mitsui O.Y.S. Dk. 172 407 U. and is also usually dismissed as a ground of nonenforcement. v. 2002 AMC 2377 at p. M. 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. Corp. 2002) (bill of lading cases relying on the same criteria). N. 1995). 1972 AMC 1407 at p. N. of Lloyd’s.177 Muller & Co. 80. M. Glyphics Media. What is reasonable is a question of fact for the trial court to decide. Inc. Takemura & Co. 808. ibid.. 2003 AMC 2608 at p. 1479 (S. 1961). decisions have generally not strayed far from the three very general grounds of unenforceability articulated in Bremen (injustice or unreasonableness (unfairness). are rarely accepted as grounds for refusing enforcement to an otherwise valid forum clause in the United States.S. 909 at pp. N. cert. Conti Singapore 2003 AMC 667 at p.Y.. Supp. Ltd. 176 Barbara Lloyd Designs. 1363 (2 Cir.D. sect. 1 at p. Corporation 121 F. 1993). Gertrude Oldendorff 204 F. 1962 AMC 1217 at p. 1955). 400 (S.Y. 7 Ed..K.2d 447 at p. (3) if the fundamental unfairness of the chosen law may deprive the plaintiff of a remedy. in Roby v.D. v. Supp. 177 Barbara Lloyd Designs. 174 See also Asoma Corp. Lines Ltd.2d 1353.176 Public policy must be “strong” in order to defeat a choice of forum provision. 171 . fraud or overreaching.V. v. 2381 (S. M/V Southgate 2000 AMC 399 at p. forum’s public policy172). for example. 1129. Inc. ibid. 1971. v. 911-912. S.2d 806 at p. 175 Barbara Lloyd Designs. 1220 (S. 451.D. (2) if the complaining party ‘will for all practical purposes be deprived of his day in court. Tsuneshima Maru 197 F.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. 2002 AMC 1477 at p. 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. 2617-2618. 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. Jockey v. 173 996 F.34 e) Reasonableness For a great many years. 259 (2 Cir. Dist. See Effron v. Inc.Y. 1218 (S.3d 956 at p. The Second Circuit. N. or violation of the U. Inc. 510 U.”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”. 1689 (2 Cir. 1999). See also Restatement (Second) on Conflict of Laws. 2003). 1418 (1972). at pp.D. 1997 at p. citing Haynsworth v.Y. 1966). as where one party takes unfair commercial advantage of another. Ct.2d 675 at p.3d 7 at p. N. or (4) if the clauses contravene a strong public policy of the forum state” (citations omitted). 15. Supp. 672 (S. such as by fraudulent means.’ due to the grave inconvenience or unfairness of the selected forum. at pp.S. which factors. 224 F. 1955 AMC 1687 at p. Inc. Leverkusen 217 F. 1997) and Black’s Law Dictionary. Sun Line Cruises. N. however. 965 (5 Cir.
with other authorities cited there. The clause failed to specify when the carrier had to exercise its option and when the “default” (i.” Mere procedural differences between trial in the designated court and trial in the U. M/V Conti. 184 2002 AMC 106 (N. Cal.C.2d 787 at p.S.e. was therefore not enforced. the place of delivery. Tex. in Glyphics Media. Dismissal on forum non conveniens grounds was also denied. Co. the bill of lading clause specified United States law and U.V. In Interamerican Trade Corp. particularly as regards delays for trial. were all dismissed as grounds of non-enforcement of the Brazilian jurisdiction agreement. COSCO 2004 AMC 1048 (C. Supp.D Cal.S. Companhia Fabricadora De Pecas.181 the allegedly “deplorable state of India’s court system”. Jalisco 903 F. Supp. Nor did the provision require suit to be brought exclusively in any one specific forum. 183 Ibid.S.” 181 2003 AMC 667 (S. the port of loading. the requirement to post over $2. Ltd. Other evidence indicated that Brazilian courts were fully competent and that trial there.. v.35 In Allianz Ins.186 131 F. the presence of bad faith. 20. the slowness of the Brazilian judicial process. 1995). Ltd.184 In that case. the awarding by Brazilian courts of judgments in cruzeiros rather than in dollars. 1694 (D. Co. were invoked in enforcing the jurisdiction clause. the port of discharge. M. 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”.2 million U. 180 The Sixth Circuit noted (ibid. Inc. have generally been found insufficient to constitute “unreasonableness” justifying sidestepping of the designated forum. and the alleged difficulty of getting money out of Brazil. and the fact that foreign witnesses were permitted to testify by way of affidavit in India. which parties must have considered when negotiating the agreement. at pp.) forum applied. Co.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. the lack of trial by deposition. unreasonableness was found in the “floating choice of law and jurisdiction clause” considered in LG Electronics Inc.183 On the other hand. 770 (S. 489-490): “speculative concern regarding fairness of a foreign court. 2004).D.185 The clause. held to be “unreasonable”. 182 See also Tokio Marine and Fire Ins. the transshipment port or the place of delivery). U. 110 (N. where the carrier’s option to sue in either Mexico City or Rio de Janeiro was upheld. N.S. v. was nevertheless not unjust.D. 489-490 (6 Cir. S. 790. 18 at p.Y.. 673. Fritz Transportation International. provision of an adequate remedy for the aggrieved party.179 the unavailability of a jury trial in Brazil.. Cal.178 the Court noted that: “Additional considerations include the relative bargaining power of the contracting parties. 2003). 2001).D. 2950 (E. 178 . v. 185 Compare with Industria Fotografica v. and the convenience and relatedness of the forum to the contract. 1992). as security.180 Similarly. Cho Yang Shipping Co. was not an adequate ground for nonenforcement of an exclusive Indian law and forum selection clause in an ocean carrier’s bill of lading. 179 973 F.. 2001). 2000).D. 2000 AMC 2947 at p.2d 487 at pp. jurisdiction. at p. of Canada v. 2001).D. M/V Turquoise 2001 AMC 1692 at p. although more inconvenient for one party. 1996 AMC 769 at p. v. 186 2002 AMC 106 at p. does not justify refusal to enforce the clause. because the forum selection clause in the bill of lading required that suit be brought exclusively in one or other of those fora. 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. v. Va. See also Tokio Marine & Fire Ins.
Unlike the clause in Monrosa. See also J. 189 359 U. 1972 AMC 1407 at p. International Maritime and Admiralty Law. 190 407 U. Inc.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.S. 2 Ed. at p. The jurisdiction was also convenient to the parties. 1995). however. 321 (5 Cir. S. 1987): “Bremen. Ltd. The Vessel Bay Ridge 703 F.2d 1441 at p. 1995 AMC 2730 at p. overrules the broad reading this Court gave to the clause in Monrosa. 1422. Ltd. 1983) re Supplementary Rule C. Co. however. S.187 f) In rem . Zapata Offshore Co. The arrest of the ship in rem under Supplemental Rule C gives the Federal District Court jurisdiction.mcgill.. Dias v. 408-409. Rev. 1 at p. 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. 191 Ibid. ibid.D.v. 2003). 429-431. 2732 (9 Cir. See Tetley. it was held to be “unreasonable and unjust” to require the ocean carrier to defend the claim and cross-claims in two different districts. although reading: “No legal proceedings may be brought against the Captain or shipowners or their agents except in Genoa.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. U. Supreme Court distinguished Monrosa. 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. where the clause was so much more narrowly drafted. Attachment and Related Maritime Law Procedures” (1999) 73 Tul. 418. see also Alyeska Pipeline Serv. 2003 at pp. Tetley.United States A very particular problem arises in admiralty in respect to the enforcement of forum selection clauses. See also Conklin & Garrett. but where the ocean carrier was also faced with crossclaims by co-defendant inland carriers arising out of the same facts.. v. 384.” The clause was held to be insufficiently specific to cover the in rem claim and thus the District Court could keep jurisdiction. See Tetley.S.law.” 188 187 ..S. Mediterranean Shipping Co. 1959 AMC 1327 (1959). 1443. Geneva 2003 AMC 2511 (S. See also Tetley. 2721 (9 Cir. 2. the language of the clause in the Carbon Black case was far different”. Accordingly. 1998 at p. 1988 AMC 318 at p.A. most modern foreign forum selection clauses are not limited to claims against the master. 20. 406407. 944. 1408 (1972). Fla. Dashwood Shipping. 1933-1936 and on-line at http://tetley. 1983 AMC 2719 at p. Lauritzen A/S v. and concluded that191 “…the language of the [Bremen] clause is clearly mandatory and all-encompassing. itself. Indeed in M/S Bremen v.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. The admiralty attachment under Supplemental Rule B also gives jurisdiction. the U. Carbon Black Export. at p. owners or agents of the vessel. The bill of lading jurisdiction clause did not specifically refer to in rem proceedings.htm. 1895 at pp. 180. Maritime Liens & Claims. L. Monrosa v.2d 381 at p. so the forum selection clause was not enforced. AMC at p.ca/maritime/arrest. “Arrest. M/V Finnrose 826 F.
Tex. Supp. v.D. Procs. Supp. and in force November 1. at p. under this Bill of Lading .” 195 M/S Bremen (and Unterweser G.S.Y..V. 359-360 (W. see also In re the Complaint of American President Lines. Ltd. supp. shall be brought before the Seoul Civil District Court in Korea" to encompass in rem claims. but only upon the defendant furnishing security to ensure payment of a subsequent judgment. Jalisco 903 F. and (8) the interests of justice in general. 193 1999 AMC 1088 (S. 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. 1992.m.2d 532 at p. Lim. 1984). 1337. (6) calendar congestion. Code sect. M.2d 352.V.37 Again in Fireman's Fund Ins. 2002): “These criteria include: (1) the convenience of the parties.199 131 F. 240 F. (citations omitted). Co v. . 199 See Norfolk Dredging Co. 194 Ibid. 20. g) Transfer within the U. this clause was broad enough to cover in rem claims. v. unlike the clause considered in Monrosa. Supp.b. 2000). 1999). 1. 1995). .D.S. 1090) also cited Industria Fotografical Interamericana v. Tokio Express. give effect to a clearly worded jurisdiction clause. 1985 AMC 356 at pp. 770 (S. although some other jurisdiction is more appropriate. (7) where the events in issue took place. . . Lucent Technologies. Inc.D. 198 28 U. any claim or dispute arising hereunder or in connection herewith shall be determined by the courts in Seoul and no other courts. 2002 AMC 1608 at p.Y. In Reed & Barton Corp. 305 F. 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. decline jurisdiction and dismiss the attachment or order the release of whatever security the defendant has posted." The Ninth Circuit interpreted this clause to include in rem claims. 1611 (E. N.194 In the same way that a court. 1997). a district court may transfer any civil action to any other district where it might have been brought.192 the clause stated: " . provide useful rules and procedures when suit has been taken by an action in rem. 196 Teyseer Cement v. M. 18 at p.V. (4) the cost of obtaining the presence of witnesses. 1404(a) provides: "For the convenience of the parties and witnesses. 21(2).Y.195 so can a court. 498. 2004 AMC 1278 (S. . 1972 AMC 1407 (1972).N. Wash.D.196 The Hamburg Rules.V. aff’d without opinion sub nom.197 at art.S. (2) the convenience of material witnesses. Tokio Express. 197 Signed at Hamburg. M.3d 355 (2 Cir. on March 31. 584 (9 Cir. 1998). 1996 AMC 769 at p. 2004).) v.S. 535. (5) the relative ease of access to sources of proof. Inc. although it did not mention them expressly. See also International Marine Underwriters v. 1268 at pp. which has acquired jurisdiction by an admiralty attachment (under Supplemental Rule B). The parties agreed to the jurisdiction choices in the contract. Norwegian Cruise Lines. 407 U. . 1270-1271. 1998 AMC 583 at p." For an example of the use of this provision in a case involving a forum selection clause (in a cruise passenger ticket). Va. The Court (at p. Zapata Off-Shore Co.3d 1336 at p. N. Supp.D. in the interest of justice. 1998 AMC 765 (S. The suit is transferred. see Lurie v. M. M/V Kasif Kalkavan 989 F. to German law as determined in the “Hamburg courts to the exclusion of the jurisdiction of the courts of any other place”. 210 F. DSR Atlantic. 1995 192 . 1978.H. Halla Maritime 583 F. which has obtained jurisdiction by an arrest in rem (under Supplemental Rule C) can nevertheless give effect to a jurisdiction clause and decline jurisdiction. (3) the availability of process to compel the presence of witnesses.193 where the clause similarly subjected “… any claim or dispute arising under this Bill of Lading”. 1091.D. Convenience is the main criterion. District Court pointed out that. where the Court interpreted a clause that read "any and all action . the U.
975 F. M.D. Paterson.D.A. judicial economy.203 202 X.N. note 5 (9 Cir. Hrelijin 600 F. Gucci Am.2d 509 at p. 1985 AMC 1192 at pp. standard-sized reusable containers that can be quickly loaded on and off ships and onto trucks or other types of transportation. 101. 197 at pp. 629-630 (S. 791.P. 1193-1194 (S. United States 883 F. 1985). 626 at pp. 1) The United Kingdom .S. 2000 AMC 2947 at pp.  A.Y.L. 2303. citing Manetti-Farrow. 1602 (9 Cir.C. for example. depending on the case.) Ltd. 209 (7 Cir.Y. Compania United Arrows. Corporation of Lloyd’s 999 F.D. Inc. (Emphasis added). 1995).D. 555 (C. 32 F.J. 204 The Fehmarn  2 Lloyd's Rep. 131 F. consolidating small shipments from multiple shippers into large. 2002 AMC 1598 at p. 202 at p. Supp.C. 1989). N. 175 at pp. Va. 203. 858 F. Cal. Co. Supp. for that reason AMC 2296. v. and the public interest in the local adjudication of local controversies. 1702(17(B). L. v.) and Adrian Briggs “The staying of actions on the . M/V Hyundai Liberty 294 F.201 In particular. 2158-2160 (C.200 Jurisdiction clause in marine bills of lading have been held applicable to third parties to those contracts (who.). Zochonis (U. Glyphics Media. 514.204 Those courts have the reputation of giving quick and fair justice and.Forum Non Conveniens Introduction It was the practice and tradition in the United Kingdom to jealously guard the jurisdiction of its courts. 677 (S.Supp. v. but merely as agents of the shippers. where they have been adjudged to be “closely related” to the dispute. the existence of a forum selection clause. Co.Y. 464-469. 1993) (contract for membership in insurance market). Supp.V. N. N. 1175. v. where freight forwarders or NVOCC’s (non-vessel-operating common carriers ) contract with ocean carriers.” 200 See. 126.D. 1997) (contract for satellite communications services).38 5) Jurisdiction clauses and third parties In the United States. Ltd.Y.  2 All E. L. Columbus Cello-Poly Corp. Included are the original choice of forum. 202 A NVOCC is “a common carrier that does not operate the vessels by which the ocean transportation is provided. Farrell Lines. Kukje Hwajae Ins. Conti Singapore 2003 AMC 667 at p. Co. Cir.R. Inc. 207-210. the relative familiarity of the courts with the applicable law. 341 (S.” See 46 U. 2002).3d 1171 at p. can oust these Courts of their jurisdiction in a matter that properly belongs to them”. S. Inc. Supp. Inc. App. 436 at pp. 551 at p. For a useful history of the law of forum non conveniens in the United Kingdom. not as principals. v. 2000). for example. 2951-2952 (E. Cho Yang Shipping Ltd. Supp. 1991 AMC 302 (summary) (D. where Denning. 493 F.A. 201 See. 483 at pp.2d 118 at p.D. 308. See National Customs Brokers & Forwarders Ass’n v.Y. the enforceability of the judgment. D. Schneider Freight USA Inc.Y. 2003). 485-486 (W.D. Hugel v. third parties have been held bound by forum selection clauses in various types of contract. 2001 AMC 2153 at pp. 191-194 (H.. so that it becomes “foreseeable” that they will be so bound. declared: a jurisdiction clause “is a matter to which the Courts of this country will pay much regard and to which they will normally give effect.2d 787 at p. 890 F. 315 (S.2d 93 at p. Dukane Fabrics Int’l Inc. but it is subject to the overriding principle that no one. N. of Canada v. by his private stipulation. N. Other factors that inform the Court’s inquiry are intermingled with these considerations. 1988) (perfume dealership contract). Lucky Cat Ltd. 1997) and other decisions cited there. See also International Private Satellite Partners. may be the owner of the goods.K.C. the shipper or the subrogated cargo underwriter). and is a shipper in its relationship with an ocean common carrier. 203 Indemnity Ins. NVOCCs perform a function similar to overland freight forwarders. see Lord Wilberforce in The Atlantic Star. Allianz Ins. v. 1998 AMC 334 at p. 1980). v. the shippers have been held bound by the forum selection clauses of the ocean carriers’ bills of lading. of North America v.2d 206 at p.  2 Lloyd's Rep. 2001)..
454.K. both for the quality of the goods and the speed of service.C. 341: “.” ground of ‘forum non conveniens’ in England today”.C.): “My Lords.  1 All E.” 207  A. but their Lordships rejected the technical argument that they were not entitled to consider such an offer made after the commencement of proceedings. 451. thereby modifying Scott L. 339 at p.L. it is a good place to shop in. 197. 709 (C. 209  A. 436 at p. but if the forum is England. 181 (H. 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. 398 (C.L.R. He can seek the aid of our Courts if he desires to do so. 446 at p. 'lesser breeds without the law'.  2 Lloyd's Rep.A.  2 All E. two conditions must be satisfied.)..  LMCLQ 360.C. 795 at p.). 205 The Atlantic Star  2 Lloyd's Rep. at p. 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.39 many foreign litigants have sought and still seek resolution of their commercial disputes in London either before the courts or in arbitration. as Kipling more forthrightly phrased it. You may call this 'forum shopping' if you please. 175 at p. 201. 175 (H.A.” To which quotation.R. 436.). 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.R.  LMCLQ 227 and in a subsequent article “Forum non conveniens . All E. 382 at p.R. It extends to any friendly foreigner. 206 The Atlantic Star  A. when inhabitants of this island felt an innate superiority over those unfortunate enough to belong to other races. Rockware Glass Ltd.). 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. An offer to provide security was made after the proceedings had commenced.” The next step was MacShannon v.. 197 at p. 812. 705 at p. South American Stores (Gath and Chaves) Ltd. 200.an update”. with all respect. . 181. at p.  2 Lloyd's Rep.'s statement of the rule in St.or. 453.R.C.  1 K. A. the passing of which many may regret. at p. 208 Ibid.  2 All E.” Lord Denning's comment was specifically questioned “with all respect” by Lord Reid in The Atlantic Star. Lord Diplock added in The Abidin Daver  1 Lloyd's Rep. Pierre v. 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.U. Lloyd's Rep. 625 at p. 630 (H.J. that seems to me to recall the good old days.L.206 2) The modern regime .B.  3 All E. where Lord Diplock established two rules:209 “In order to justify a stay.
at p. W. Furthermore. 343.A. v. noted: “It is not appropriate.).): ""Every court has different procedures. 196 at p.R. 213 Ibid. are lacking in one respect a reasonable balance between the interests of the parties . declared in New Hampshire Ins. 361 at p. Co.). in a foreign forum is to be based upon objective standards supported by evidence. to embark upon a comparison of the procedures. 202 (H.L. 344. there is of course authority binding on me which deplores any discussion or entertainment of those types of argument.” Finally in The Spiliada.). 10. v. 371 (C.40 In The Al Wahab (Amin Rasheed Shipping Corpn.and this feature was added by Lord Diplock in The Abidin Daver:212 “. indistinguishable from the Scottish legal doctrine of forum non conveniens.K. at p..210 Lord Wilberforce. referring to The El Amria  2 Lloyd's Rep.. and Amin Rasheed. approving a statement by Hobhouse J. in my opinion. having competent jurisdiction.).” Lord Diplock continued and summed up the change in the attitude of the English Courts:213 “My Lords. in the field of law with which this appeal is concerned. in which the case may be tried more suitably for the interests of all the parties and the ends of justice.” Thus by its decisions in The Atlantic Star.L.e. 365 at p. MacShannon. the House of Lords had gradually adopted the doctrine of forum non  2 Lloyd's Rep.).  2 W. MacShannon. 339 at p. or as well as. The El Amria U. and The Spiliada.. Kuwait Insurance Co." 212  1 Lloyd's Rep. The Al Wahab and The Abidin Daver. 210 ..R. the balancing of advantage and disadvantage to plaintiff and defendant of permitting litigation to proceed in England rather than. 375 (H. 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.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.L.L. Nothing is gained by any discussion of the relative merits of various different procedures. Lloyd's Rep. or reputation or standing of the Courts of one country as compared with those of another (cf.”211 The foregoing views. 203. in referring to a comparison of the quality of justice obtainable in England and elsewhere. 119 at pp.J. Lloyd. Strabag Bau  1 Lloyd's Rep.L. which is the appropriate forum for the trial of the action. or methods.. i. 214  1 Lloyd's Rep. nevertheless. 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.A. 215 Ibid. per Lord Justice Brandon). at p. 211 More recently. 126-127 (C. 1 (H.
of Canada v.  1 S. 521 at p.R.A. 425 at pp.).L.b. 459-460.). the English Court.219 Brandon J. (The Humber Bridge)  1 Lloyd's Rep 72. 224 The El Amria  2 Lloyd's Rep. The Eleftheria rule has been cited in Canada in Agro Co. 432-433 (H. 856. 2002. ___ (Aust. 3 Ed. Armco.). but Brandon L. 12851286. 527 (H. 1 at p.  1 WLR 1367 and The MC Pearl  1 Lloyd's Rep 566. 385. N. 3) The rule in The El Amria In the The Eleftheria. 450 at p. 119 at pp. 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. 227 The Sennar (No. is not bound to grant a stay but has a discretion226 whether to do so or not. 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. Lord Brandon noted.). The Pioneer Container  2 A.R. Pakistan National Shipping Co.L.  1 Lloyd’s Rep.L. 229 (C.). Civil Jurisdiction and Judgments.. 251 (C. and the defendants apply for a stay. (2003) 224 D.C. including notably Z. 142 at pp. 163 (C.m. 1095. See Akai Pty Ltd. Citi-March Ltd. In this latter judgment.R. 2003 AMC 1280 at pp. High C. 2)  1 Lloyd's Rep. 223 Donohue v. 521 at p. 1) 2 Lloyd's Rep. per Lord Bingham). 218  2 Lloyd's Rep. 324.L.V.). (1996) 141 A.4.. 226 Unterweser Reederei G. The People's Insurance Co.21 to 4. Zapata Off-Shore Co. paras. Lord Goff formulated an authoritative approach to forum non conveniens: 217  1 Lloyd's Rep. In The Spiliada  1 Lloyd's Rep. 4.A. 123-124 (C. 1082 at p.).  1 Lloyds Rep. 242. Pompey v. The Pioneer Container  2 A.R. 10 (H.A. 169 at p.). At first this remarkable decision was not generally followed. 237 at p. 327. no doubt with some satisfaction. 374 at p. 154 (C. 242. 222 See The Pia Vesta [198411 Lloyd's Rep. 283-290.A. Pakistan National Shipping Co.). jurisdiction was kept in England because the witnesses were English and related litigation had already commenced in 216 . Baghlaf Al Zafer v. In the El Amria itself.). (4th) 577 at pp.).L. 119 at pp. Standard Chartered Bank v Pakistan National Shipping Corporation  2 Lloyd's Rep 365..C. 142 at p. 380 at p.C.L. 225 The agreement must be valid and enforceable and the claim must fall within the scope of the agreement.L. Neptune Orient Lines Ltd. (No. 220 Proving that it is quite fitting to cite oneself. 123-124 (C.A.A.222 reiterated by the House of Lords in Donohue v. The Iran Vojdan  2 Lloyd's Rep. 2)  2 Lloyd's Rep. see Briggs & Rees. The rule has also been referred to in Australia. despite the choice of a court in Alexandria. 229 at p. 2)  2 Lloyd's Rep. Baghlaf Al Zafer v.I. The Sennar (No.). v. The Benarty  3 W. 237 at p. The Eleftheria  1 Lloyd's Rep. 237 at p. ECULine. 324 at p. See also The Sennar (No. 242. Ltd.A.).23 at pp. 221  2 Lloyd's Rep. See also The Nile Rhapsody  1 Lloyd's Rep 382 (C.C.C.  1 Lloyd's Rep 593 (P.). 527-528 (H. v. For further commentary on these points.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. 158 at p.41 conveniens.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. Armco Inc.). and in many more recent decisions. 593 at p.A.C.A. 171. (2) The discretion should be exercised by granting a stay unless strong cause227 for not doing so is shown.). in fact failure to cite oneself is often evidence that the previous statement was erroneous. 1)  2 Lloyd's Rep. assuming the claim to be otherwise within its jurisdiction. 123-124 (C.H. 244 at p.  2 Lloyd's Rep. for example. 154-155 (C. 605 (P. how The El Amria had been cited by others.  1 Lloyd's Rep. 235 (C. 119 at pp. v.J. Ibid. 851 at p. 219  1 Lloyd's Rep. 586-587. The Regal Scout  2 F.  2 Lloyd's Rep. (No.A.
ECU-Line N. The People's Insurance Co. (5) In particular.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. where the plaintiffs in a cargo claim failed . after all.). v. v. 231 The Traugutt. (b) Whether the law of the foreign Court applies and. 550 and 552 (C. where there is no forum selection agreement. and the effect of that on the relative convenience230 and expense of trial231 as between the English and foreign Courts. The “strong cause” requirement was also strongly reaffirmed by the Supreme Court of Canada in Z. 230 The Traugutt  1 Lloyd's Rep. 237 The Vishva Prabha  2 Lloyd's Rep. See also in appeal  2 Lloyd's Rep. 237 at p. 142 at p.C. 1287-1293. But in The Bergen (No. Stay was refused where the delay for suit had expired in the foreign court. 126-127. High C. Inc. 418 at pp.V. supra.L. C.Z.) and Kidd v.C.). the foreign time bar might be grounds for refusing the stay.A. 324 (N.).R. (ii) be unable to enforce any judgment obtained. 586-592.L.).L. 135 at p.A. 169 at p. 721 (C.A. or more readily available.236 (iii) be faced with a time-bar237 not England. and why England is. By refusing the cargo owner the right to arrest in England. the clearly more appropriate forum for trial. 230-231 (Aust.). at p. if so. and how closely.  1 W.). at p. supra. The Vishva Prabha  2 Lloyd's Rep. Conversely. 236 Evans Marshall & Co. 4.L. For the same principle in Australia. 125. the following matters. H. 233 The El Amria. 349 at pp. Akai Pty Ltd. may properly be regarded: (a) In what country the evidence on the issues of fact is situated. 293. 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. High C. Ltd.R. See also The Sidr Bashr 235 The Lisboa  2 Lloyd's Rep.L.R.C. 79 (convenience to the parties and to witnesses). 76 at p. (2003) 224 D.R. 546 at pp. whether it differs from English law in any material respects. 229 Where there is a forum selection agreement.42 (3) The burden of proving228 such strong cause is on the plaintiffs.25 at p. 142 (N. 234 The Iran Vojdan  2 Lloyd's Rep. 2002 at para. 286 at p. The Eleftheria  1 Lloyd's Rep. 288. 710 at p.A. 3 Ed. 473 and 479. 551 (C.). v. 450 at pp.L.A. see also The Pia Vesta  1 Lloyd's Rep. C. 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. 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”. v.A. 2)  2 Lloyd's Rep. but without prejudice to (4). Hyslop  3 N.). See Briggs & Rees. 286 at p. Civil Jurisdiction and Judgments. it would lose its only available security. 324.233 (d) Whether the defendants genuinely desire trial in the foreign country.I. ibid. 246. 2)  2 Lloyd’s Rep. 245. 710 (C. at pp.Z. But see also The Pioneer Container  2 A. 461-469.R. 387. see Society of Lloyd's & Oxford Members' Agency Ltd.A.  1 Lloyd's Rep.V. where it was suggested that if the failure to protect time in the chosen foreign forum was not the fault of the claimant. where the advantage of the English process of discovery was held not to be a consideration.).R. 288. 79. 377 and 385 (C. 76 at p.A. where they arise. van Heeren  1 N. 197 at pp. 286 at p. 514. 2)  2 Lloyd’s Rep. The Traugutt  1 Lloyd's Rep.. The El Amria. Fay (1988) 165 C. and in New Zealand.R. or are only seeking procedural advantages. 2003 AMC 1280 at pp. supra. 228 The Fehmarn  1 Lloyd's Rep. (4th) 577 at pp. See also The Bergen (No. who was Counsel for the plaintiffs. Pompey v. 380 at p.  1 Lloyd's Rep 593 (P. 155 (C.A.). 172. Bertola S. see also The Sennar (No. 428-429 (Aust. 453 at pp.Z.229 (4) In exercising its discretion the Court should take into account all the circumstances of the particular case. 511 at p.Z. see Ocean Sun Line Special Shipping Co. Brandon. The Vishva Prabha  2 Lloyd's Rep. 288.  1 S.232 (c) With what country either party is connected. 232 The Eleftheria. (1996) 188 C.
119 at p.. Metro v. 240 Mercury Plc.). 670 at pp. the Court held that the defendants should not be denied the right to rely on the foreign time-bar (which also applied under art.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”. 410. The stay was therefore granted. v. (Comm) 33 at p. . 243 In both res judicata (also termed estoppel by judgment) and chose jugée. were found not to be strong enough reasons to overturn the non-exclusive English forum selection clause. Ace v.  1 Lloyd’s Rep.240 and whether the clause was negotiated by the parties or was only a term in a standard-form contract. on the usual forum non conveniens principles applied in cases where there is no jurisdiction clause. Mobil Sales and Supply Corp. 679-680. by taking suit there within one year of discharge of the cargo. 241 JPMSA v. This is not really a problem of jurisdiction or of forum non conveniens. Ltd. CSAV  1 Lloyd’s Rep. CSAV  1 Lloyd’s Rep. 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. Ltd. 405 at p. racial. 618 at p. Q. v.  1 Lloyd’s Rep.R.43 applicable in England. See also Metro v. Ltd. (M.C. 410-416.. 38-23 to 38-64. there must be the three identities: 1) the same parties acting in the same qualities. 239 Akai Pty. or (iv) for political.  1 Lloyd’s Rep. religious or other reasons be unlikely to get a fair trial”238 (Nota Bene: There are no references or footnotes in Lord Brandon's original statement above. CSAV  1 Lloyd’s Rep. 3(6) of the Hague and Hague/Visby Rules). 104. Furthermore. MNI  2 Lloyd’s Rep. Howard. 630. and the importance of Chilean law (the law of the place of performance of the bill of lading contract under the Rome Convention 1980).) It has been held more recently in England that this basic approach. 3) the same object.242 4) Res judicata A court must. 2000 at paras.  1 Lloyd’s Rep. 127. 40. the latter of which cases concerned a non-exclusive jurisdiction clause. where factors such as the greater availability of evidence in Chile. They have been added for the purposes of this commentary.  2 All E. Metro v. whether or not the English proceedings will be stayed will be determined by the court in its discretion. Sweet & Maxwell. Communication Telesystems Ltd. 376-377. 90 at p. ed. London. 15 Ed. requiring the plaintiff to show “strong reasons” why the contractually agreed forum should not try the case. Zurich Ins. 410. but of recognition of a foreign judgment. and even arguments as to multiple proceedings. of course. 405 at p. Sinochem International Oil (London) Ltd. CSAV  1 Lloyd’s Rep. 405 at pp. v. 41 at p. even when the cause of action in the subsequent proceedings differs from that in the original proceedings. Dee Howard Co. 242 British Aerospace Plc v. 410. 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. gen. See generally Phipson on Evidence. Where a nonexclusive jurisdiction clause permits suit in or out of England. 238 The El Amria  2 Lloyd's Rep. Metro v. People’s Ins.239 whether the jurisdiction clause is an exclusive or non-exclusive one. Co. 368 at pp. 45.243 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. after consideration of all relevant circumstances. 2) the same subject matter. Co. 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.N. 405 at p.
Supp.K.U. Shore 439 U. will necessarily be a violation of art. 1971.A. Carriage of Goods by Sea Act. L. 1 at pp. 935 (H. 1988 (O.249 however.K. 31. 565. In the U. and.S. the Hague Rules 1924. was not affected by the provisions of the Rules. 19.C.J. however.11. Rayner & Keeler Ltd. In The Morviken.245 the applicable law was the English version of the Hague/Visby Rules. 853 at p. Hellenic Glory 471 F. 527 (H. 3) there must be identity of parties.C. 8 of the Hague/Visby Rules and of the 1971 Act used the words “any statute”. it was held that in order to establish issue estoppel: 1) the judgment must be given by a foreign court of competent jurisdiction. 244 (C. 319/9. English law The choice of forum clause (jurisdiction clause) must not reduce the carrier's responsibilities under the applicable law. permitting transfer of the suit to Djakarta.1972). 3(8) of the 1971 Act and of the Hague/Visby Rules. 248  1 A. 299/32.  1 Lloyd's Rep. 565 at pp. 1 (H. Roberts v. meaning that the issue decided by the foreign court must be the same as that arising in the English proceedings.L. adopted at Lugano on September 16. and 4) there must be identity of subject matter. 245  1 A. such as the Indonesian Commercial Code. 247  1 Lloyd's Rep.A. In The Good Challenger  1 Lloyd’s Rep.D. 521 at p.C.L. 6-7 (H.E..248 In The Benarty. Carl Zeiss Stiftung v. The damaged cargo had been shipped from London and continental European ports. stay was ordered. 2)  1 Lloyd's Rep.. 2)  A. selecting as forum a court which does not apply the Hague/Visby Rules. 77 (C. N. 1979). L.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 . 3(8) of Visby or the U. 25.). Inc. not package limitation. This would have meant a lower per package limitation and thus a violation of art. 1979 AMC 2152 (S.S. since art.S. 249  2 Lloyd's Rep.L. c.) (where the case is styled The Hollandia). i.12. where the U. It was held that the transfer of jurisdiction did not offend art. (No. Their Lordships were careful to note that not every jurisdiction clause.A.). 6) U. 1002. although the tonnage limitation under Indonesian law was much lower than under English law. 2) the judgment must be final and conclusive and on the merits.K. referring to Parklane Hosiery Co. particularly in cases where one of the The Sennar (No.).244 5) Public policy.C. 325 (C.L.246 Transfer of the case to a Dutch court in accordance with the jurisdiction clause.). v.  1 Lloyd's Rep.44 not be relitigated in the subsequent proceedings if it arises once again. 3(8).). 67 at p. Supreme Court severely limited the doctrine of mutuality. that article meant that an applicable foreign tonnage limitation statute.J. because the carrier was seeking to rely on tonnage limitation. it has been held that there need not be identity as to the parties for collateral or issue estoppel to apply: W.C. 251 The Lugano Convention on Jurisdiction and Recognition of Judgments in Civil and Commercial Matters. 322 (1979). could have resulted in Dutch law being applied (because the clause also invoked Dutch law). – 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. . Therefore jurisdiction was retained by order of the Court of Appeal247 and the House of Lords.J. This is termed “issue estoppel”.E. 246 1971 U.E. being the Carriage of Goods by Sea Act 1971. 574-575.Y.).e. where issue estoppel is often referred to as collateral estoppel. 250 Hereinafter described as the Brussels Convention 1968 ( O.
622 and 626 (C. Anton Durbeck GmbH v. 260 See Travelers Casualty and Surety Company of Europe Ltd. as part of its conflicts of law rules. 253 See Briggs & Rees.). 264-266. 2002 at paras.J.). 217-223.210 to 2. Co.. para. 17.e the jurisdiction having the most real and substantial connection with the case) is determined to be a non-Member-State. adopted by the Council of the European Union on December 22.).257 In the meantime. "Forum Non Conveniens and the Brussels Convention"  L. 877. DMF 2001. see O. v. Re (No 2)  4 All ER 348.  All ER (D) 130 (Jun) (C.  Ch 72.U. ibid.) (giving effect to a service of suit clause providing for U. unreported. 256 Denmark chose not to bound by the EC Regulation. and in force in all Member States of the European Union except Denmark. would appear to be free to apply its forum non conveniens analysis. in respect of civil jurisdiction and the enforcement of judgments.  3 W. unreported. 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..R. Fawcett.210 at p. 217.U.). Cellstar Corp.2001. . 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. without such action infringing the Brussels Convention.A. See also Lawrence Collins. 16.. 13 Ed. The Court of Justice of the European Communities.B. Ph.) (forum non conveniens applied to send dispute to Panama). and therefore is still governed by the Brussels Convention 1968 in its relations with the other Member States of the E. court.: C-387/98)  ECR I-9337..Q.A. For the text. 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. London. This holding would seem relevant under EC Regulation 44/2001 as well.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. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters.  All ER (D) 26 (Mar).1.). 227-228.260 in favour of courts outside such European Free Trade Association (EFTA) other than Liechtenstein (viz. eds. 2. See also Haji-Ioannou v.A.  EWHC 1704. which became a party to the Lugano Convention in 2000). ibid.R. v. 187. of the Brussels Convention 1968.  All ER (D) 294 (Jul) (Q. Handelsveem BV of November 9. Den Norske Bank ASA  Q. or EFTA. as well as EC Regulation States. 255 EC Regulation No.A.. as well as Poland.. and yet the "natural forum" for the litigation (i. Co. obs. 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. first para. 2.C.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.J.M. Delebecque. litigation).E. as of March 1. The English Court of Appeal decided in Re Harrod's (Buenos Aires) Ltd.).L. Butterworths. 252 Harrods (Buenos Aires) Ltd. 258 Supra.U.S.214 at pp. and American Motor Ins.A. appeared to confirm this position.45 defendants is domiciled in a member-State of the E. 1160. 257 The English Court of Appeal has requested the European Court of Justice to rule on this question of interpretation of the Brussels Convention. 618 at pp.. 3 Ed. North & J. Sun Life Assurance Company of Canada (UK) Ltd. L 12/1. See Owusu v. 2002. 2000. under art. Iceland. 259 See Ace Ins. v.-N.  EWCA Civ.K. para. See Briggs & Rees. 337 at p. 1999 at pp. 206 (C.B. 535 and Cheshire & North's Private International Law (P.  1 Lloyd’s Rep. 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. 397 (C. the validity of the clause must be assessed in accordance with the conflicts rules of the forum. in Coreck Maritime GmbH v.  4 All ER 543 (C. Jackson (t/a Villa Holidays Ball-Inn Villas)  EWCA Civ. Thus a U. 2000.A. Zurich Ins. Norway and Switzerland. Frangos  2 Lloyd’s Rep. 2.256 The European Court of Justice is expected to rule on the issue on more recent references by English courts.V. (Case No. 346 (C. Civil Jurisdiction and Judgments.A.218 at pp.
). to comply with art.U.20 To commence an action to recover for loss or damage to cargo in England. supra. As regards the jurisdiction clause's enforceability as against consignees and subsequent endorsees.A. first para. 23 is almost identical in wording to the most recent text of art 17. 237 at p. Delebecque. or b) in a form which accords with practices which the parties have established between themselves. Art. 266 Service of process out of the jurisdiction is governed by the Civil Procedure Rules 1998. the courts of other Member States shall have no jurisdiction over their disputes unless the court or courts chosen have declined jurisdiction.46 States. Handelsveem BV would be applicable.U. the test provided by the European Court of Justice in Coreck Maritime GmbH v. The principles set out in The Eleftheria263 would therefore be applied by a U. 17.U.K. Some of these decisions have applied forum non conveniens to enforce jurisdiction clauses requiring litigation of disputes in such non-Member States. the claimant in some cases must obtain leave of the High Court. In this article. which came into force on January 1. made December 10. and regularly observed by. “CPR”. 23(1) and (2)).19(1) See. aware and which in such trade or commerce is widely known to.261 With respect to jurisdiction clauses calling for adjudication of disputes in an E. in so far as those principles indicate whether the clause in question accords with international trade or commerce. State. 2000 (Case No. 265 “Claim form” is the new term for “writ” under the U. 1999.  ECR I-9337. State.  1 Lloyd’s Rep. of the Brussels Convention 1968.The 1982 Act and CPR rules 6. obs. 23. 242.’s Civil Procedure Rules 1998. SI 1998/3132. where the conditions of art. 1987. 2001 DMF 187. in other cases.264 7) Service out of jurisdiction .19 and 6. 23(3) also provides that where a jurisdiction agreement is concluded by parties. for example. of the Brussels Convention 1968 at section VI. none of whom is domiciled in an E. 23 of EC Regulation 44/2001 applies and requires the courts of Regulation States to stay the proceedings in favour of the specified court. first para. Member State.U. Art. Ph. art. or ought to have been. giving effect to an Egyptian choice of law clause in a case where an English defendant was sued in England. State must be either: a) in writing or evidenced in writing (including electronic form). or c) in a form which accords with a usage in international trade or commerce of which the parties are. court in determining the validity of a jurisdiction clause in a bill of lading.266 a) Where leave is not required-CPR Rule 6. 1998 and in force April 26. 264 November 9. The Nile Rhapsody  2 Lloyd’s Rep. 263  1 Lloyd's Rep. the Civil Procedure Rules 1998 are referred to under their common abbreviation. 23 are met. 382 (C. 399. the jurisdiction clause designating the forum of another E. replacing the former Order 11 of the Rules of the Supreme Court 1965. 387-98).K. such leave is not necessary. the claimant will serve a claim form265 on the carrier who at times is out of the jurisdiction. To effect service out of jurisdiction. 261 . and which bind parties one or more of whom are domiciled in an E. 262 See the discussion of the conditions of art. parties to contracts of the type concerned (art. 23 of EC Regulation 44/2001 and the most recent text of art.262 In brief.
17 of the Brussels or Lugano Conventions or art. 269 CPR rule 6. or any other Convention territory 276 or any other Regulation State. 271 CPR rule 6. art. 276 CPR rule 6.19(1)(b)(iii).274 or on a court contemplated by art. the claimant. 270 EC Regulation 44/2001 of December 22. who is out of that court's jurisdiction.K. In relation to a “Regulation State”. 17 of the Brussels or Lugano Conventions applies. 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. . There is an important proviso. 23 of the EC Regulation 44/2001.. reflecting the EC Regulation 44/2001 and paras.18(g)(i) and U. can serve a claim form upon the carrier. a particular part of it or a particular place within it.19(1)(a). therefore. domicile has a similarly broad meaning.19(1)(b)(i). 1(1) of the Civil Jurisdiction and Judgments Act 1982. other than Denmark271. 27. 41-46 of the Civi1 Jurisdiction and Judgments Act 1982272 and clearly a defendant carrier can be domiciled in many jurisdictions concurrently. 277 CPR rule 6. 9 to 12 of Schedule 1 to the Civil Jurisdiction and Judgments Order 2001.268 The term “Convention territory” encompasses the territory or territories of any Contracting State to which the Brussels or Lugano Conventions apply. if the jurisdiction clause in the bill of lading designates the court of an E. 41-46. Paras.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. the only court that has jurisdiction.2000.269 while the term “Regulation State” means a Member State as defined in EC Regulation 44/2001.19(1A)(a). refers to sect. sects. b) Where the court's leave is required – CPR. L. The term “domiciled”.J. however. in commencing his action there.U.277 The court where the action is first commenced is.19(1A)(b)(iii).1. 12/1.273 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. 27.E.18(d) in defining “Convention territory”.18(k). 23 267 268 CPR rule 6. CPR rule 6. 1982.K. or an EFTA state. applicable to all proceedings instituted on or after March 1. 275 CPR rule 6. 274 CPR rule 6. U. 2002.47 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. 1982.C..275 In other words.K. 1(3). 273 SI 2001/3929. in relation to a Convention territory. has a wide meaning in the light of sects. c.. 16. c. O. without obtaining the court's leave. provided that either the claimant or the carrier is domiciled in such a state.K.e.19(1A)(b)(i). rule 6. a Member State of the EU.270 i. 272 CPR rule 6. 9 to 12 of Schedule 1 of this Order define the conditions under which a person is “domiciled” in the U.
See also Briggs & Rees. in contractual matters. or for an interim remedy under sect.K. the claimant must obtain the leave of the High Court to serve the defendant outside of the jurisdiction.54 at p. See also Briggs & Rees. 284 For example. The claimant must also show that 2) the grounds on which the application for service out is made and the paragraph(s) of CPR.21(2A) 278 . 5.281 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. 21 (CPR rule 6. 153.e. 2002. 282 CPR rule 6.21(1)(a)) and that 3) he “… believes that his claim has a reasonable prospect of success” (CPR.20(4)). 279 CPR rule 6. 1 at pp. 325. 13. 288 The Spiliada  1 Lloyd’s Rep. or for an injunction ordering the defendant to do or to refrain from doing an act within the jurisdiction (CPR rule 6.20(7).20(1)). Permission to serve out is also required for Admiralty claims a) in the nature of salvage where any part of the services took place within the jurisdiction.20(2)).20 justifying the grant of leave to serve the claim form out of the jurisdiction. 363. 1 (H. 324. 287 The claimant must show that 1) England and Wales constitutes “the proper place in which to bring the claim” (CPR.33 at p. on the other hand. 25(1) of the Civil Jurisdiction and Judgments Act 1982. rule 6. 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 6.21(2A)). para. For example.. where these authors state that CPR.21(1)(b)).. U. 154 or 175 of the Merchant Shipping Act 1995.284 In the light of The Spiliada. 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.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. 286 Ibid.20(5)(a) to (d). provided that service out would be justified if one did exist. at p. 285  1 Lloyd's Rep. 4. an exclusive jurisdiction clause). the burden of proof is on the plaintiff to show that the forum is the most appropriate.287 When the court is asked to stay an action on the ground of forum non conveniens. Civil Jurisdiction and Judgments. 281 CPR rule 6.).20(9).K.20(9)).278 There are various grounds listed in CPR rule 6. para. 3 Ed. not subject to the jurisdiction of the High Court) (CPR rule 6.). c. rule 6. or b) to enforce a claim under sects.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. 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. at p.283 There are various other types of claim which authorize service out with the court's leave as well.20 relied on in this regard (CPR.48 of EC Regulation 44/2001. as well claims relating to property in the jurisdiction (CPR rule 6.20(6).288 For example. service out may also be authorized where a claim is made for a remedy against a defendant domiciled in the jurisdiction (CPR rule 6. rule 6. 280 CPR rule 6. and 14 (H. 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. See also ibid. 2002. 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.20(17A)). Civil Jurisdiction and Judgments. rule 6. c. U. Claims to enforce a judgment or arbitral award may also authorize service out (CPR rule 6. a claim form may be served out of the jurisdiction with permission of the court if the contract was made within the jurisdiction.20(5)(d). 1982.20(10)).20(8)..L.286 When leave is sought to serve out of the jurisdiction. 283 CPR rule 6. 3 Ed.L. 1991. rule 6.K.
shall) order a period of time within which the claimant must bring proceedings before a competent court or arbitral tribunal (art.05-8. The Arrest Convention 1999. 15 (H. 7(2) of the Arrest Convention 1999 provides that notwithstanding art. 295 R. sect. 2. I think. 50(l) that: is intended to reproduce the substance of the previous case law. c. 24 of the 1968 Convention. which replaced the former Administration of Justice Act.C. Such a conclusion is. 28. rule 61. 7(3)). except where the parties validly agree or have agreed to submit the dispute to a court of another State that accepts jurisdiction. 3 Ed. Brussels. c. See also art. it would not.R. 2 Ed. 26 of the Civil Jurisdiction and Judgments Act 1982. Where the arresting court lacks jurisdiction under art. 1982. c. and cf. 7(3) permits the vessel to be arrested in one jurisdiction and held as security there. 291 See sect. 292 International Convention on the Arrest of Ships. 1956. 54. 1033-1036.).291 Similarly art. found as Schedule I to the Civil Jurisdiction and Judgments Act. consistent with the manner in which the process of saisie conservatoire is applied in civil law countries. 2002. 1981.289 Nor is it necessary to do so.294 XI. envisages that a vessel may be arrested on a cargo claim in one jurisdiction and retained as security pending the outcome of the cargo claimant's action on the merits heard in another jurisdiction. 7. This international convention has been almost completely implemented in the United Kingdom by the Supreme Court Act 1981.290 at art. 5077-508. 26 of the Civil Jurisdiction and judgments Act.the principle The Federal Court Act295 of Canada stipulates at sect. where Lord Goff stated “.. C. 1998. That Convention also requires respect for jurisdiction and arbitration agreements by the arresting court. 1982. 1982. contains a similar provision. March 12. U..L. See N. 1952. and (b) within 12 months after the date of issue.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.3(5) specifies that the claim form must be served: (a) in accordance with the practice direction. 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. c. 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. See The Spiliada  1 Lloyd's Rep. 7(1) on the merits or has refused to exercise it under art. 1956. Maritime Liens & Claims. U. Civil Jurisdiction and Judgments. paras.” 289 See Briggs & Rees. 2(3). or to arbitration. I understand. it may (or at the request of a party. 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.. adopted at Geneva. 290 Convention Relating to the Arrest of Sea-going Ships. CPR. 1999.Forum Non Conveniens Introduction .K. 8. 293 Art. the courts of the State in which the ship has been arrested or security has been provided for its release. Maritime Electric (1985) 60 N. while at the same time granting a stay of proceedings in this country to enable the action to proceed in the appropriate forum. See Tetley.07 at pp. “Arbitration Clauses”. and in force February 24. 1) Canada . 1 at p. 27. 46. at pp.K. 294 Art.” See also Chap.S. now happily in force.293 It also recognizes forum non conveniens under national law. but not in force. 7(2).B. Electric Power Commission v. 7(2). . The Arrest Convention.. even though a jurisdiction clause has designated a court in another jurisdiction to decide the action on the merits. 7(1).A. 1985. 203 (Fed.). May 10. 4 & 5 Eliz. normally be wrong to allow a plaintiff to keep the benefit obtained by commencing proceedings here.292 at art.
The Nosira Lin. (1982) 27 C. v.P. v. 917 and 921. 8 (Ont. BP Can.L. Supr. the Supreme Court of Canada. (3d) 261 at p. Supr. 895. v.297 relying on the two criteria (positive and negative) laid down by the House of Lords in MacShannon v. and the cost of assembling foreign witnesses. 5 at p.296 a case involving an application for leave to serve ex juris.R.. citing various authorities. The Ship Capricorn.L. in its discretion. 298  A. Holdings Ltd.A. v.R. … (b) where for any other reason it is in the interest of justice that the proceedings be stayed. 301  1 S.R. 296 . The Ship Friedrich Busse (1982) 134 D. British Columbia (Workers’ Compensation Board).R. Ct).C.C. C. at pp. Ct).301 Concluding his analysis. 303 (Fed. the impropriety and inconvenience of trying a case in one country when the cause of action arose in another where the laws are different. the Supreme Court of Canada considered the doctrine of forum non conveniens in determining whether the Court should direct for service ex juris. 300 at p.C.).C. The burden of proving the clearly more appropriate forum fell on the plaintiff in service ex juris motions. stated that: “The factors affecting the application of this doctrine have been differently described in various cases . 422 at p. Referring to forum non conveniens. Plibrico (Canada) Ltd.” Canadian courts followed the English courts on the question of forum non conveniens in decisions such as Yasuda Fire & Marine Insurance Co.C. Westmin Resources (1983) 32 C. the undesirability of trespassing on the jurisdiction of a foreign state. 300  2 S. the defendant had the onus of proof. 795 at p..L. whereas in seeking a forum non conveniens stay. 448.C. in Amchem Products Inc. C.). Suncor Inc.” 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.). J. 269. 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). and they include the balance of convenience to all the parties concerned. including the House of Lords The Spiliada.300 definitively opted for the English view of forum non conveniens. 812 (H. 304 (Ont. Ritchie.298 In 1993.” See also Kuhr v. 303 Ibid.303  2 S. Rockware Glass Ltd. 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. Sopinka J. stay proceedings in any cause or matter. 299  1 Lloyd’s Rep. including the plaintiff. at p. 1 (H. however. 442. 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. 921. 302 Ibid.R. 297  1 F.299 as well as its own precedent in Antares.P. (1984) 52 N. 897.50 “The Court may.” In Antares Shipping v.
C.. C. 2003 AMC 1280 at pp.the criteria .).R.Z.). (1998) 173 F. 140 at p.C. 427.L.R.A.Canada With respect to the enforcement of jurisdiction clauses.R. Wendell  1 N. C. (1996) 106 F. Great Tempo S. C. v.  ETL 39 (Fed.). ECU-Line N. 216 (N.T.R. C. C.A. v. 105.) (personal injury and death). 144. 231 at p. Australia. unless arrived at on wrong basis or plainly wrong).). Shanghai Ocean Shipping Co.).) and Club Mediterranee NZ v.). for example.). v. 287 (decisions of motions judges on applications for stays of proceedings based on foreign jurisdiction clauses should be upheld.C. Jian Sheng Co.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”. C.C.307 a) There must be “strong reasons” for not honouring a jurisdiction clause calling for jurisdiction before a foreign court.L.306 and was reaffirmed by the Supreme Court of Canada in 2003 in Z. Anraj Fish Products Industries Ltd.).C. 278 (Fed. (1999) 176 F. C.R. ECU-Line N. See. The Hansa Bay  F.T. but rather on whether the Australian forum is clearly inappropriate.C. 221 (Fed.R. 309 Burrard-Yarrows Corporation v.V. ibid. Can. 306 Burrard-Yarrows Corp. for example.A. v. leave to appeal to Supreme Court of Canada denied  S. v. 1998 AMC 1864 at p.R. 237 at p.C. Can. Other Commonwealth countries have similarly adopted the forum non conveniens principle. per Hargrave. See Voth v. Can. P.L. the authoritative summary of principles by Brandon J. C. (1998) 225 N. C. 418 at pp.T. Nissho Iwai Co. v.R.T. (2001) 185 F.Z. 308 Z. C. 2) whether the party seeking the interlocutory injunction (or stay) would suffer irreparable harm unless the injunction (or stay) were granted. 538 (Aukst.C. 257 (N. Can. however. 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. (2003) 224 D. P. Napa v. Can.310 See. C. 404. 304 . Hyundai Merchant Marine Co.C. Can. 1867 (Fed. 255 (Fed. The Erato  1 F. See also Trans Continental Textile Recycling v. including maritime case law. 856 (Fed.) (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). The Hoegh Merchant  1 F. Can-Am Produce and Trading Ltd. of Can. 314 (Fed. A. 305  1 Lloyd's Rep.304 2) Jurisdiction clauses . as fully articulated in England in The Spiliada. C. 1287-1293.586-592.51 The clearly more appropriate test continues to apply to forum non conveniens decisions in Canadian case law today. Manildra Flour Mills (1990) 171 C. 851 at p.R.A.I. Abta Shipping Co.). 203 (Fed. 427-428 (Fed. 461-469.).).A.T. 495 (Fed. See also Jian Sheng Co.  3 F.) (cargo claim). Can. v.C. of Canada Ltd. The Senator (1996) 112 F. See also Agro Co. 450 at pp. and 3) which party would suffer the greater harm as a result of the granting or refusing the interlocutory injunction (or stay). Great Tempo S.A. See also Bomar Navigation Ltée v.Z.L. per Morneau. 250 (Fed. and rejected the “tripartite test” applicable to motions for interlocutory injunctions. the landmark New Zealand decisions in McConnell Dowell Constructors Ltd.). Can.C. Lloyd's Syndicate  2 N.A.  3 F. focusing not on whether there is a more clearly appropriate forum elsewhere. High C. 242. 418 at p. The Hoegh Merchant  1 F. C.Z. 248 at p. which the Federal Court of Appeal had found applicable to stay applications as well.R. 54 (Fed. 310 The Agelos Raphael  1 Lloyd's Rep. This tripartite test involves a judicial determination as to: 1) whether there is a serious issue to be tried.V. (4th) 577 at pp. 307  1 S. Pompey v. Itochu Canada v. applies forum non conveniens slightly differently.R. The Regal Scout  2 F. in The Eleftheria305 has been relied on in quite consistently over the years.309 c) A strong reason for not honouring a foreign jurisdiction clause may be that all the facts are in Canada. 234 (Fed.I.T. v. C. Pompey v.R. The Fu Nin Hai (1999) 173 F. Can.
DMF 1985.V. DMF 1987. 104 with note by P. para. 1986. Affrètements & Transports.317 An action is not stayed or suspended so that suit may be taken in a more convenient court. have incorporated forum non conveniens into their legislation. fundamental breach of the contract of carriage). of Can. (1983) 148 D. DMF 1985. (2003) 224 D. 2001. in section V. 46 in effect restricts the discretionary power of the Federal Court of Canada under sect.L. March 10. Pompey v. 718. however. 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. 123 c.313 Sect.C.c. It should also be noted that when the plaintiff in an action is of French nationality. 1984. irrespective of the nationality of the person (e. art.g. 1) France Introduction France and the civil law generally316 does not recognize the principle of forum non conveniens.g. 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.). a foreign insured) in whose rights the plaintiff (e. 2001. 1295.L. 1987. 113. (3d) 412 (Fed.L. contrary to art. 668 at p.C. See discussion of this statute supra.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. 713. so that suit may be taken in a more convenient forum. In Germany. 341. December 7. (2003) 224 D. 50 of the Federal Court Act314 to enforce foreign jurisdiction and arbitration clauses in bills of lading. (4th) 577 at pp. a French insurer) has been subrogated: Tribunal de Commerce de Paris. 472. 1984. member state): Cour de Cassation.. Cour d’Appel de Paris. See Louisiana Code of Civil Procedure.R. 3(8) of those Rules. November 25. of Canada Ltd. Jurisdiction Clauses Restricted by National Law”.  1 S. Traité.R. Pompey v.C. 313 S. 450 at p. in force August 8. i. ECU-Line N. art. 42-48 of the New Code of Civil Procedure (NCP). the French court either has or has not compétence (jurisdiction).315 XII. 706. the French courts will have jurisdiction by virtue of art. October 31. constitutional provisions prevent German courts from refusing to exercise their statutory jurisdiction. mise à jour 1978. affirming Cour d’Appel d’Aix.U. 2003 AMC1280 at pp.I. c. 1984. 6. Cour de Cassation. DMF 1984. 851. February 15. 1983. c. DMF 1985. ECU-Line N. 2003 AMC 1280 at p.R.c.S. Rather.-Y.  1 S. F-7. Nicolas. 520. 450 at pp. 672. v.g.R. (4th) 577 at p.e. 317 The rules governing which court has territorial competence are found in arts. 14 of the French Civil Code.C. 469-472. DMF 1986.p.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. 314 R. Agro Co. the right to request that an action already before a court with jurisdiction over the subject matter be stayed. April 18. 592-594. 46 of the Marine Liability Act. 1293-1295. 3135 c. See also Tribunal de Commerce de Paris.R. May 14. 1981. 315 See the comments of the Supreme Court of Canada on this point in Z. Z.C. 594. 316 A few civil law jurisdictions. DMF 1982.I.311 e) Courts deciding on the enforceability of jurisdiction clauses should avoid considering substantive issues (e. Québec Civil Code 1994. leaving such questions to be decided by the contractually selected foreign forum. The Regal Scout  2 F.V. 312 311 . notably Louisiana and Québec. C.q. see Rodière. 1985.
Tribunal de Commerce de Paris. 322 Tribunal de Commerce de Nantes. in which case the court will declare itself (“incompétent”) (without jurisdiction). 10 of the former Law of April 2. 54 of the Decree of December 31. DMF 1982. 1966 restrict jurisdiction clauses.O. 1937. 515.53 A jurisdiction clause validly agreed upon by two “commerçants” (merchants) will be recognized by a court which has jurisdiction to hear the case.324 This general rule is enshrined in art. See Bertrand de la Grassière. February 8. DMF 1980. September 30. D. 1966. DMF 1952.jurisdiction clauses Under present French civil procedure. Procedure 3. A.325 (NCPC) which also establishes an important exception: i. 162 at p. DMF 1983. sur les contrats d’affrètement et de transport maritimes (J. «Les clauses des connaissements attribuant compétence à un tribunal étranger sont-elles encore valables?». 1966320 contains no prohibition in respect to jurisdiction clauses. 1974. 1966.1. Presses universitaires d’Aix-Marseille.e. February 27. 75-1123 of December 5.4. «La clause attributive de compétence à un tribunal étranger». however. DMF 1980.K. 483. DMF 1974. 1980. 119. art. January 13.65. See Cour d’Appel de Rouen. 1983.321 In addition to stating that actions may be brought before the court of the French port of loading or discharge. 54 is in fact merely a supplementary provision to arts. 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. 206. 165.O. 515. 320 Law No. 42-48 NCPC: Cour d’Appel de Bordeaux. September 25. 496.S. «Les clauses des connaissements attribuant compétence à un tribunal étranger sont-elles encore valables?» DMF 1980. (J.. 1966 sur les contrats d'affrètement et de transport maritimes. 2002.322 art.O. 189. D. June 24. See generally Bertrand de la Grassière. fascicule 211. para. 48 of the New Code of Civil Procedure.4. jurisdiction ratione loci) were formerly considered to be merely of private interest and thus derogation from these rules was generally permissible. the territorial jurisdiction rules were considered to be of private interest and thus derogations therefrom were permitted: Juris-Classeur. p. Cour d’Appel de Rouen. Art. La clause attributive de compétence à un tribunal étranger. D. 75-99 NCPC: Les exceptions d’incompétence.319 The domestic Law of June 18. 2) Prohibition under law The rules governing territorial competence (i. 54 merely refers to the normal procedural rules that govern the validity of jurisdiction clauses.318 In carriage of goods by sea cases. 1975. 1966. 1979. See arts. Fraikin et Boquet. 1967. 319 Loi relative aux transports des marchandises par mer.295.S. 323 Formerly.323 the general rule is that choice of forum clauses are to be treated as unwritten and therefore with no effect. 3) French domestic law . p. 66-420 of June 18. where the impact of the changes in the New Code of Civil Procedure is discussed. 66-1078 of December 31. Les clauses attributives de compétence dans le transport maritime de marchandises. 1936). DMF 1952. DMF 1981. 397. 360. 1967. Nor does art. 1981. 325 Established by Decree No. 119. 318 . Amoussou. April 11. 1936 prohibited jurisdiction clauses ousting the jurisdiction of French courts in cases of carriage between French ports in a French vessel (navigation réservée). January 11.e. 321 Decree No. 235. (J.4. See Fraikin et Boquet.
it must at least be identifiable. however. no. which merely designated the courts of the country where the carrier had his principal business. DMF 1983. DMF 1982. Delebecque. 333 Cour de Cassation. 489. however. July 20. February 28. 1982. Rev. 282. 66-1078 was amended by Decree No. 29 with note by R. Bull 1980.327 Consent to such a clause in a bill of lading was formerly established under French law by the shipper’s signature on the bill. Bull. 1980. Cour d’Appel de Rouen. report J. 1928. Cour d’Appel de Paris. Cour de Cassation. 42. DMF 1997. was not deemed consented to. must proceed before the court which is seized of the principal action. if it is not identified. 331 Cour de Cassation. 609. DMF 1983. note R. February 13. 1991. The jurisdiction clause need not. In Cour d’Appel de Rouen. November 30. Cour d’Appel de Bordeaux. DMF 1983. where the foreign court was not determinable and the clause was therefore unenforceable. 1979. D.330 nor was a clause written in a foreign language that the party did not understand. DMF 1979. 1985. however. Rémery. pan.328 until the requirement for the shipper to sign bills of lading was repealed in 1987. May 30. no. 1979. 1982. and cannot decline the jurisdiction of that court even by invoking a jurisdiction clause: art. DMF 1979. 33. 1979. DMF 1981. with note by Normand. 1998. March 11. DMF 1981. Bull. 1980. DMF 1985. November 14. 537. 1979. May 24. 1971. 726. 489. December 17. 1983. July 12. May 9.331 The forum chosen in the clause must be clearly designated.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. Cour d’Appel de Paris. int. D. 1987 so that the shipper is no longer obliged to sign the bill of lading under French law. pr. February 20. 329 Art. 11. 1974. February 8. 730. March 20. 415. 720. November 14. March 19. 492. Thus a clause printed in ultra-fine letters below the line where the party was to sign. jur. S. 518. even if acting in a commercial capacity. DMF 1983. no. May 3. October 1. rep. When there are several defendants and the action is indivisible. 37 of Decree No. 802. inf. 162. See also Cour d’Appel de Paris.54 where the jurisdiction clause has been agreed to by parties acting in a commercial capacity and has been clearly specified in the agreement. DMF 1983. 1984. regardless of the presence of a jurisdiction clause: see art. 37. 1996. See. DMF 1981. 77 328 Cour d’Appel de Rouen. 1986. 270. 330 Cour d’Appel d’Aix. DMF 1980. Tassel. 326 . Until 1987. Cour d’Appel d’Aix. cr. the plaintiff can pursue the action in the jurisdiction of any one of the defendants. March 3. 262. Cour de Cassation. 1982. DMF 1998. somm. note H. no. Bull. Nicolas. February 27. DMF 1983. the Court should have refused to give effect to the clauses concerned. 325. 37 of Decree No. June 26. 1980. 546. 334 Tribunal de Commerce du Havre. January 14. 128. 1980. where the rule is different when the 1968 Brussels Convention applies. 1980. See. 531. 1. be consented to apart from the other clauses in the bill of lading: Cour de Cassation. Achard. 1972. dr. 1. Gaz. DMF 1986. June 27. Gaudemet-Talon. 98. as well as in Cour d’Appel de Rouen. 118.-P. Y. 1984. 1981. with note by Ghestin. 1982. 1982. Achard. Cour de Cassation. January 16. 1981. 678 with an excellent commentary by P. 1978. DMF 1998.-Y. DMF 1987. 1966 required the shipper to sign the bill within 24 hours of the loading.64.1. DMF 1983. See Cour d’Appel de Paris. Rev. civ. art. dr. Cour de Cassation. Cour de Cassation. 1971. May 24. 1986. Cour d'Appel de Paris. 1986. 725 at p. February 4. 143 with note by R.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. 1983. 274. 327 Cour de Cassation. Cour de Cassation. 85. 1982. 1981.S. p. obs. Bulletin des transports 1987. March 3. 78. Cour d’Appel de Paris. Achard. Cour de Cassation. November 8. 87-922 of November 12. DMF 1974. 332 Cour de Cassation. Achard. IV. See also Cour d’Appel de Rouen. 1979. Achard appended to Cour de Cassation. trim. See comment by R. February 25. NCPC. 431 with note by R. II. Cour de Cassation. second para. 661078 of December 31.S. obs. December 1. who is impleaded into the action. 1927.326 The clause must be clearly apparent so that the parties can be found to have given their informed and unequivocal consent to it. Pal. Cour d’Appel de Paris. 333 NCPC. without that clause being pointed out. DMF 1991. 507. 1998 (The Lode Bay). Ph. 1983.
fascicule 212-1. DMF 1982. Notably. 29 of Law No. dr. DMF 1980. para. Nor is a clause designating a court which one of the parties has the option to eventually name. March 2. 87. the courts had at one time given effect to foreign jurisdiction clauses. 1982. Cour d’Appel de Paris. 336 Cour de Cassation. 236. June 22. the courts have in some cases given effect to the jurisdiction clause.340 In such circumstances. 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.341 See Juris-Classeur Procédure 3. 546. 612. 550. 3(8) of the Hague/Visby Rules makes those rules of public order.55 since that port could change from voyage to voyage. 548.338 But art. DMF 1994. 1984. See also Cour d’Appel de Rouen. Any restriction of the shipper's rights beyond what is permitted by the Law of June 18. para. trim. Juris-Classeur Procédure 3. 1994.339 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. 23. the Hague/Visby Rules. March 335 . 1966 or. would seem to invalidate jurisdiction clauses which do not appear in the bill of lading issued to the shipper.336 It must be remembered. 710. In Belgium. February.  ETL 496. 1966 (governing domestic carriage) makes that law of public order. March 1. 93. 1993. the French court should refuse to give effect to the jurisdiction clause. the French court must consider whether giving effect to the clause would violate French public order. January 20.337 Of course when the whole agreement is challenged. para. 1980. Bulltein des transports 1994. If the jurisdiction clause designates a foreign court which is likely to apply its own law. para. 2003 (The MSC Dymphna). fascicule 212-1. if the clause designates the court of the carrier's domicile. 203. April 23. Belgium takes a similar position. March 7. as where there has been a fundamental breach of the contract. because the carrier drew up the clauses in the bill of lading. holding that the acceptance of a jurisdiction clause could not be inferred from the existence of prior commercial relations between the parties. Rev. 1983. 95. 198 1. DMF 1983. 338 Juris-Classeur Procédure 3. 1986. See Hof van Beroep te Antwerpen. where the Court notes that the bill of lading is the typical case of a contract of adhesion. but not always. by requiring that the clause “be specified very clearly in the agreement” itself. 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. But see also Cour de Cassation. June 17. 337 Juris-Classeur Procédure 3. however. fascicule 212-1. 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. 340 Art. the jurisdiction clause's effectiveness will be jeopardized. 48. 5. fascicule 211. which must be performed in good faith. 66-420 of June 18. Cour d’Appel de Rouen. See Tribunal de Commerce de Paris. the clause will be interpreted restrictively by the courts. 339 Cour d’Appel de Paris. Thus merely referring to a jurisdiction clause appearing in another document would not be sufficient. that since such a clause derogates from the normal rules of civil procedure. just as art.335 The court will sometimes. 1979. 416. Normand. DMF 1985. January 14. para. DMF 187. in the case of international carriage. would be contrary to public order. as in the case of a short form bill of lading. 100. the contra proferentem rule will apply if such designation disadvantages the shipper. fascicule 212-1. 602. Cour d’Appel de Paris. civ. but only on the condition that the designated foreign court apply the Belgian equivalent of the Hague Rules: Hof van Beroep te Brussel. DMF 1982. Sometimes the jurisdiction clause is not found in the document itself. 341 Belgium takes a similar position.
March 1. L. DMF 1983.  ETL 50. Nicolas. DMF 1980. Actes de la 8ème session.Y. June 3. 1979. 515 at p. Droit international 8. 17: 18. June 27. 620. 492. 557. 214. art. as amended by various Accession Conventions. DMF 1986. 1973.345 The Brussels Convention 1968.Y. DMF 1986.96. DMF 1979. the other Member States of the European Union). jurisdiction clauses in contracts between parties both of whom are domiciled in France continue to be governed by art. 713. 98. 17 of the Convention and not necessarily with the national law (i. State and the case involves a Danish domiciliary.E. country except Denmark. 1983.C. August 29. 1982. 550. 1985. . not by art. DMF 1980. 17 of the Convention or art.J. para. 342 O. May 15. 17 of the Convention had precedence over the other means of acquiring jurisdiction. DMF 1985. where the bill of lading was signed outside of France.347 In The Tilly Russ. 1987. 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. March 14. The Lugano Convention 1988 will also continue to apply to jurisdictional matters involving a Member-State of the European Union and either Iceland. October 9. 1985. preamble. Hof van Beroep te Brussel. 622. 469. 345 Cour de Cassation.346 On the other hand. Cour d’Appel d’Aix. July 12. was essentially the same as the Regulation in respect of jurisdiction clauses. Belgian courts did not consider such a condition to be sufficient. 1974. March 10. 1982. Rapport sur les travaux de la 2ème Commission. Cour d’Appel de Rouen. September 27. 1973. where one or more of the parties is a domiciliary of any other E.344 Today. Member State. 520.e.1. 48 NCPC.  ETL 641. 1968. French courts have not gone as far as Belgian courts in this regard: Cour d’Appel de Rouen. July 12. 604. 1977. 48 NCPC where the clause specifies a court in another E. actions taken before the court of one European Union Member State by or against a corporation or individual domiciled in another Member State. 1979. 303. art. 1984. 117. p. even if there is an international element to the contract: e. which. 344 See Cour de Cassation.2001. 1984. par Frédéricq. See Cour de Cassation. DMF 1985. art. June 10. D.  ETL 704.12/1. aff'd Cour de Cassation. with note by P. both published by Decree No. The Convention as amended covered. 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.S. Switzerland or Poland. See Cour d’Appel de Rouen. 17 wanted to avoid making compliance with formalistic requirements a criterion for the validity of jurisdiction. continues to displace art. signed at Luxembourg. 98. See also Cour d’Appel de Rouen. supra.342 French courts were bound by the Brussels Convention 1968343 on the same subject. May 24. para. 48 NCPC).U.U. see also the Protocol on the Interpretation of the 1968 Convention by the European Court. and its 1971 Protocol of Interpretation continue to apply between Denmark and the Member States bound by the Regulation (i. July 5. fascicule 631. 343 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. 347 Conférence de droit international privé de la Haye. Subsequently. with note by P. where it was held that jurisdiction acquired by means of a jurisdiction clause which complied with art.348 the European Court of Justice held that a jurisdiction clause in a bill of lading would satisfy the requirements of art. DMF 1985. 1984. DMF 1983.4. as the Regulation now does. Norway. See also Cour d’Appel de Rouen.U. October 31. 17 on jurisdiction clauses.56 4) France and EC Regulation 44/2001 Until the coming into force on March 1. DMF 1987. 1971. signed at Brussels. by which the Brussels Convention 1968. 23 of the Regulation governing the validity of a jurisdiction clause.e. 22. 2002 of EC Regulation 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. Cour d'Appel de Rouen. DMF 1983. even though the clause in question arose in respect of an action in warranty and the principal action was being taken in another jurisdiction. see Fraikin and Boquet. supplants art. Nicolas. 1982. May 25. DMF 1982. 1971. referred to in Jurisclasseur. 23 of the Regulation. The draftsmen of the old art. 723. where it was held that the jurisdiction clause need only comply with art. 346 See EC Regulation 44/2001. however.g. 16. 73-63 of January 13. see also Cour d’Appel de Paris.
as well as those in a form which accords with practices the parties have established between themselves.C. L. where a jurisdiction clause. p. 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. DMF 1985. and regularly observed by. DMF 1982. 235. 48 NCPC) which requires the clause to appear on the document issued itself: See Cour d’Appel de Paris. to ensure that the shipper had such notice as to be able to consent to it: Tribunal de Commerce de Paris. O. 1984. Cour de Cassation. 349 348 . or ought to have been. acted as the written confirmation of that prior agreement. no. 2 Ed. 355 Rèmond-Gouilloud. para. 1984. 03. 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. Bull. 89.e. 353 By the San Sebastian Convention of May 26. 23. 548. parties to the type of contract concerned in that particular trade or commerce. 354 Art. 557. 23 of the EC Regulation 44/2001 is reproduced supra.1989. para. even though the short form specifically referred to the long form.e.10. It came into force on November 1. where the shipper put his signature. June 19.354 Art. 17 that was adjudicated upon in The Tilly Russ was modified when Denmark.e. section of this article. was not given effect since the shipper had only been issued the short form bill. 17 of the Brussels Convention 1968. though signed only by the carrier and not by the shipper. If the jurisdiction clause is only printed on the front of the bill. 209. which appeared only in the long form bill. 1984. Droit Maritime. European Court of Justice. 48 requires the jurisdiction clause to appear on the document issued. 1981. in the U. The inclusion of electronic communications in art.350 (this set of circumstances is rare in maritime matters).353 It is essentially this latter version which was reproduced by the drafters of EC Regulation 44/2001. aware and which is widely known to.E. 1997. The French courts emphasized that the jurisdiction clause had to be printed on the back of the bill of lading. The text is found in DMF 1987. nor had the shipper agreed to such a clause in previous voyages. art. September 30. a jurisdiction clause in these circumstances would not meet the requirements of French domestic law: art.349 or b) if the jurisdiction clause was specifically included in a prior oral or written agreement and the bill of lading. the shipper was never advised of the existence of the clause. at art. 12 Ed. 1989. October 9. 23(2) is the major addition made by the Regulation to the wording of the immediately preceding version of art. the Republic of Ireland and the United Kingdom. its validity will depend on whether it fulfils the requirements of category b). March 2. Rodière & du Pontavice. 1978. 83 at p.355 Thus art. 254. 386-2. 23 constitutes an important distancing from French law: a jurisdiction clause may be deemed valid under art. IV. signed at Luxembourg on October 9. Droit Maritime..K. 623-3.57 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.J. the side where the shipper signs). 350 The jurisdiction clause in this situation would not comply with the requirements of French domestic law (i.. 23 even when the shipper has not signed the (The Tilly Russ). 23(1) authorizes jurisdiction clauses which are in writing or evidenced in writing. 1993. 352 Convention on the Accession to the 1968 Convention and the 1971 Protocol of Denmark. 1984. 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. DMF 1985.351 The version of art. i. 285/1. 351 Again.
DMF 1998. DMF 1985. 358 Cour d’Appel de Rouen. 612. 2001 (The Transvaal). June 19. 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. 83 at p.58 bill of lading nor been specifically shown the clause in the bill. 187. relating to the opposability to shippers and consignees of bill of lading jurisdiction clauses subject to art. 17. 17 of the Brussels Convention 1968. 1038. 2002 (The Ubangui). no. P. Handelsveem BV. 2000 (The Nuevo Leon). have no notice of this clause. 360 Supra. in some cases recognizing practices established between the parties and international usages in regard to forum selection provisions. Cour d’Appel de Rouen. has succeeded to the rights and obligations of the shipper under the applicable national law. 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. obs. 1997 (The Clyde Bank). 1038. Cour d’Appel de Rouen.-Y. agreed to by a shipper and a carrier. by virtue of the applicable national law. 361 November 9. DMF 2003. See the commentary by Pierre Bonassies. 96. Art. 616. interpreting the final. under art.356 French courts have been rather inconsistent in giving effect to art. obs. The consignee and subsequent endorsees. DMF 1985. 359 As between the shipowner and the charterer. 37 of Decree No. See Tribunal de Commerce de Paris. DMF 1982. May 22. 48 NCPC. in acquiring the bill became the assignee of the shipper’s rights and obligations. 17 of the Brussels Convention 1968. in acquiring the bill. 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. however. 1981.361 the European Court of Justice. December 5. 750. DMF 2001. 2000.362 If such is not the case. 1966 and art. but rather that that law fell to be determined by the judge seized of the case. Nicolas. April 5.357 and in other cases insisting. holding that. the European Court of Justice answered this question. Cour d’Appel de Rouen. reaffirmed that a jurisdiction clause in a bill of lading. 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. 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. it is proper to As was required by art. 2002. 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. November 30. 89. on proof of the shipper’s actual consent to the jurisdiction clause before the conclusion of the contract of carriage. 357 See Cour d’Appel de Paris. applying the conflicts rules of his national law. 1984. produces effects with respect to a third party holder who. The question therefore is whether they also are bound by it. See also Cour d'Appel de Rouen. DMF 2001.358 5) Opposability to consignee and endorsees As stated above. DMF 2001. 235.  ECR I-9337. 684. despite art.359 In The Tilly Russ. June 21. 6. however. 17 established in The Tilly Russ and other decisions. DMF 2001. DMF 2001. 102 at pp. Delebecque. 2000 (The Seinehaven). See DMF Hors série no. 17. 356 . 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. DMF 1985. 17 of the 1968 Brussels Convention. September 30. the third party. 1093. 89 at p. 2001. difficult-to-reconcile decisions of the Cour d’Appel de Paris and the Cour d’Appel de Rouen. re-amended version of art. 66-1078 of December 31. In Coreck Maritime GmbH v. 77-79 for a summary of various. Ph. (Case No 387/98). November 29.
as opposed to “special acceptance”. Cour d’Appel de Paris. DMF 1995. P. although the commentary strongly suggests that such action would not constitute the “special acceptance” of the clause by the consignee required by French law. 2003. 2002 (The Aptmariner). the consignee is not generally considered to be a mere successor to the rights of the shipper under the bill of lading. April 2. Cour de Cassation.363 In France. 259. 1997 (The City of Durban). 556. DMF 1997. pr.-Y. November 28. 1994 (The Stolt Osprey). by signature or rubber stamp.-Y. June 25. (The Sonara). 23 of EC Regulation 44/2001 is basically unchanged from art. May 27. 2000. la reconnaissance et l’exécution des décisions de justice en matière civile et commerciale”. 17. DMF 1995. note Y. indicating that in France the consignee is not seen as a mere successor to the shipper’s rights as in certain other E. Delebecque in DMF Hors série no. including Coreck Maritime (supra). Bonassies. M. “L’autonomie de la clause de juridiction”. obs. note H. obs. cr. 393. whether the mere endorsement of the bill by the consignee. P. March 4. Ph. 72 at p. 11. It would appear that the same principle will apply under the almost identical art. obs. Ph. Cour de Cassation. Delebecque. 2003 ETL 321. “L’entrée en vigueur du règlement communautaire no 44-2001 du 22 décembre 2000 concernant la compétence judiciaire. 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. 74.. obs. 2002 (The Aptmariner). 1992. int. DMF 2003. 154. 367 Cour de Cassation. 1996 (The Fiona). note P. See also Cour de Cassation. Rev. 684 at p. 2002 (The Elpa). 1007. DMF 1997. December 8. Ph. Nicolas on the decision of the Cour d’Appel de Paris. 366 Cour de Cassation. Cour de Cassation. November 14. 99.U. “Des clauses des connaissements maritimes attribuant compétence à une juridiction étrangère : essai de démystification”. November 29. Tassel (an arbitration clause). Nicolas. Cour de Cassation. 339.368 It is unclear. Cour de Cassation. Cour de Cassation. Nicolas. States like Germany. 694.-Y Nicolas. October 15. 2003 (The Houston Express). DMF 1995. March 4. 23 of EC Regulation 44/2001.59 verify the reality of the holder’s consent to the clause by reference to the requirements of art. 365 See generally Y. 1998. Bonassies. 733. of the bill of lading by the third party bearer of the bill. 1996 (The Chang Ping). 1994 (The Harmony and The Nagasaki). p. 218. 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”.  ETL 193. 2002.-Y. P. to the bill of lading (a tripartite contract) or at least the beneficiary of a “stipulation pour autrui”. Nicolas. June 25. 17 of the Convention by the Court of Justice of the European Communities. DMF 1995. 20. November 29. Gaudemet-Talon.-Y. F. 1999. amounts to such express acceptance. Revue Scapel 2003. 1992. first para. Revue Scapel 2003. 23 of the Regulation. indicating that art. December 8.369 See P. Bonassies on the decision of the European Court of Justice in the Castelleti decision of March 16. obs. DMF 1999. 209. obs. d’Haussy.366 Neither the mere possession of the bill of lading by the consignee or endorsee367 nor its “accomplishment” (i. Cour de Cassation. where the Court did not decide the point because it had not been pleaded by the defendants. observations Ph. note P. 1996 (The Köln Atlantic). 1997 (The Tonia Bondarchuck). Delebecque. of the Convention. DMF 1996. Bonassies. Nicolas. para. DMF 1997. 1998 (The Silver Sky). no. Delebecque.-Y. Rèmond-Gouilloud. 705. 363 . DMF 2003. See also Cour d'Appel de Nìmes. 572. 368 Cour d’Appel de Rouen. 723. but doubtful. 93.e. note P. May 26. 41. together with the shipper and carrier. DMF 2000. Bulletin des transports 1997. obs. November 13. note P. 1007.  ETL 551. 17 of the Brussels Convention 1968 and that the decisions rendered under art.  ETL 551. 14. will probably continue to apply under art. DMF 2003. See also the commentary of P. 4. endorsee or subrogated insurer. Cour de Cassation. cr. November 29. 703. 2000 (The Nuevo Leon). 364 See the commentary by P. DMF 2003. (The Silver Sky). 46. 41.364 French courts have therefore held that in order to bind consignees and their subrogated underwriters. but rather as either a true party. January 16. 369 Cour de Cassation. DMF 1999. no later than at the time of delivery. DMF 2001. Cour de Cassation.  ETL 727 at p. Tassel.
Here again. 1994. 479. 372 See Cour d’Appel de Rouen. 1991. 371 Cour d’Appel de Paris. no. The Frank Pais  1 Lloyd's Rep. O. obs. Pierre Bonassies . judged under German law. This is a basic principle of conflict of laws. uniform conflict rules are most helpful. he has been held to be bound by it. 9. more recently. See. 80/934/EEC. including the jurisdiction clause.371 Where. DMF 1985.370 When the bill of lading has been issued under a charterparty and generally refers to the terms. therefore. The Rome Convention 1980 on the Law Applicable to Contractual Obligations374 is a particularly advanced international instrument. found in the charterparty. 380 at p. must apply “the system of law with which the transaction has its closest and most real connection . without actually reproducing the jurisdiction clause itself.note. 93. 374 Adopted at Rome.372 XIII..J. Cour d'Appel de Paris.K.E. 371. 383. 373 The Iran Vojdan  2 Lloyd's Rep. 1984. since not only the consignee. 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.S. with the Brussels Convention 1968 and. DMF 1983. since the latter is not deemed to have known of its contents.373 In consequence. the U. 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. L 266/1. Appendix “F” at pp. November 27. and only a short form bill was issued and signed by the shipper before being transferred to the consignee.1980. 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. Achard.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. International Conflict of Laws. but also the shipper could not have had proper notice of the existence of the clause. DMF 1976. 370 . For the text and a brief commentary. June 19. 688. March 2. however.60 When the jurisdiction clause was among the clauses printed only on the long form bill of lading. affirming Tribunal de Commerce de Paris. has taken a major step towards that kind of unification. in the field of conflict of jurisdiction. The European Union. DMF 1985. January 5. December 16. in a shipment from Hamburg via Bremen and Valencia to Dubai on an Iranian ship. R. such a clause was not enforceable as against the consignee. 2002 (The M/V Marimar). that clause will not be enforceable as against the third party holder.. 304. an English Court held that German law had the closest and most real connection and the validity of the jurisdiction clause was. October 14. or France respectively. see also Batiffol et Lagarde. Jurisdiction Clauses Per Se . EC Regulation 44/2001. Droit international privé. ”. 548. in deciding whether a jurisdiction clause should be given effect. 1976. which Cour d’Appel de Paris. a court. 89 at p. 333 at p. the consignee is proven to have been aware of the clause at or before the completion of delivery of the cargo. 2) The law by which to judge the clause On the other hand. 1981. however.10.The Criteria . 530. see Tetley. Bulletin des Transports 2003. DMF 1998. 1997 (The Istanbul Z). 1032-1048. 337. The principle emphasises how necessary it is to have uniform conflict of law rules.C. 529 at p. 1980 and in force April 1..
July 12. In some countries. 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. a) Clear and precise Unless the jurisdiction clause is clear and precise. 2000 (The Bunga Pelang). 1999 (The Bonastar II). March 4. arts. although such a clause was found to be quite frequent in bills of lading. 1984. note P. June 12. these presumptions “… shall be disregarded if it appears from the circumstances as a whole that the contract is more closely connected with another country. 996. November 18. 378 Cour d’Appel de Rouen. arts. 556. See Rechtbank van Koophandel te Antwerpen.C. 2003 (The Houston Express0. All jurisdictions use roughly the same criteria. although the clause was found unenforceable because of lack of proof that it had been consented to by the shipper. obs.375 The Convention also establishes rebuttable presumptions to assist the court in determining the national law with which the case is most closely connected.A. March 4. 4(4) in a bill of lading case. 1966. the court's discretion is based on a number of criteria in respect to the clause itself.C. November 29.376 3) Discretion Although there is no general rule as to whether a court will honour a jurisdiction clause. 3(1) and 4(1). September 9. 2003. application for leave to appeal to the Supreme Court of Canada dismissed with costs and without reasons. DMF 1959.-Y. 618. however.379 Similarly. On the other hand. Ph. Great Tempo S. Revue Scapel 2003. 1037.C. absent any express or implied choice of law. where. a jurisdiction clause is not valid unless the name of the actual court is spelled out.  3 F. 2000 (The Nuevo Leon). Note. 2001. Rome Convention 1980. For an example of the application of art. see Cour d’Appel de Paris. DMF 2001. 684. 287.).61 has harmonized choice of law in contractual matters for all Member States of the European Union. upheld by the Cour de Cassation. and has sometimes been enforced.  S. 4(5) in such a case. see Cour d’Appel de Paris. upheld Cour de Cassation. 418.378 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. 376 375 . 4(5). 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. DMF 2003.A. that by art. DMF 2001. it should not be honoured because it will not allow the parties to know with certainty before which court they are to proceed. 1959. Delebecque. 829.Nicolas. No. v. 377 February 2. it has been held that a clause calling for suit “before the courts of England” Rome Convention 1980. See also Jian Sheng Co. 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.” For an example of the application of art. 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. DMF 2001. 1998 AMC 1864 (Fed. and Cour de Cassation. 4(2) to 4(4). 20.  ETL 238. DMF 1999. 379 Hof van Beroep te Brussel.  ETL 780. C. the carrier was unable to adduce sufficient evidence to support its contention that its “principal place of business” was located in Hong Kong. November 30.A.
See also Cour d’Appel de Paris..R. November 30. 546 at p. A note of E. Jurisdiction was to beat the port of destination (Calcutta) or. 2000. February 5. and consequently. nevertheless. DMF 2001. 1974. 1040. 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. if this is sufficient notice and is sufficiently certain.S. ”(emphasis added) was not held to bind the “ship” and an action in rem could therefore be taken in Italy. 336 and Cour d’Appel de Rouen. March 2. where the jurisdiction clause in a standard-form contract incorporated into a contract of carriage was held to be unenforceable. Revue Scapel 1996. 80. at the shipowner's option. May 9. June 19. 1995 (The Frauke).62 is not sufficient. 1976. June 22. 381 The Media (1931) 41 Ll. 724. it was inapplicable. 1984. In consequence.A.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. 382 Cour d’Appel de Douai. 380 . July 20. DMF 1961. DMF 1971..” in a bill of lading signed by the shipper. See also Cour d’Appel de Rouen. 293. 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. 335. 384 Cour d'Appel de Paris. 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. 659. 548 . January 5. 549 (C. b) Jurisdiction clauses by reference The reference in another document to a jurisdiction clause should be detailed and precise. 383  2 Lloyd's Rep. 542. which in turn contained a jurisdiction clause. 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 1985. In The Lisboa. L. 1973. Rep. 1960. 35. where clauses giving the carrier the option of suing in more than one court were held null and void. 1975.381 On the other hand. June 27. was held to be valid. see also Cour d’Appel de Paris.S. DMF 1973. DMF 2001. 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.383 a jurisdiction clause reading: “Any and all proceedings against the carrier shall be brought before the competent Court of London . DMF 1976.385 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. in the United Kingdom. December 17. One wonders. 1971. 2000.384 Where a bill of lading referred to a long form bill of lading. 484. DMF 1975. see also Cour d’Appel de Poitiers. DMF 1976.). 385 Cour d’Appel de Rouen. See also Cour de Cassation.
392 Insurance Co. See also European Court of Justice.A. 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. May 11.Y. cited supra. 1976. 9. the suits against the various defendants need only be connected. Cour d’Appel de Paris. October 15. 1. See also the legislation of jurisdictions such as Australia. 6(1) of the 1968 Convention. 1983. para. 1982. c. 1998 (The Albasgracht). 1. 388 Cour de Cassation. 232. 387 386 . November 20. for the application of art. DMF 1977. 616.  ETL 270. 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. Note that under art.P. See also Cour de Cassation de Belgique. India Steamship Company389 declared a jurisdiction clause invalid. Delebecque. 81. DMF 1983. 135/82. at p.R. referred to in The Iran Vojdan  2 Lloyd's Rep 380 at p. e) Plurality of defendants Where there is a plurality of defendants. Tribunal de Commerce de Marseille. 1979. 235. 29. February 25.387 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. he may be sued in the courts where any one of them is domiciled. 383. N.391 f) Fairness and public policy Courts. May 30. 6(1) of the Brussels Convention 1968). which generally invalidates foreign jurisdiction clauses on the public policy ground that they oust the jurisdiction of local courts. 391 Cour d’Appel de Paris. 1384. DMF 1983. 1983. 1965. Jotina 1974 AMC 1190 (S. 531.D. May 24. DMF 1965. 6(1) of the EC Regulation 44/2001 (similar to art. In this regard. 392 See particularly the American decisions flowing from Bremen v. 1982. 389 11 Z. June 11. suit at the place of business of any one of the defendants can be convenient. 295 at p. Ph. 1979-80 J. October 27. 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.63 damage action brought by a third party. 296. See a note on the judgment at DMF 1983. 390 Cour de Cassation. of North America v. 407 U. not indivisible.  ETL 217. obs. DMF 1999. S. where it was held that. (France).c.1975. 197980 J. 1982. will normally refuse to enforce a jurisdiction clause that appears fundamentally unfair. where a defendant domiciled in a Member State is one of a number of defendants.S. 1972 AMC 1407 (1972). 37 and Oberlandesgericht Dusseldorf.P. as where it seems to be the product of fraud or overreaching by the carrier or is inherently unjust or unreasonable. or where it violates a strong public policy of the forum.388 d) Legibility of the clause A jurisdiction clause is an exception. February 2. the jurisdiction clause cannot apply if the circumstances of the case forbid dividing the action. Bundesgerichtshof. May 30.A. in their discretion. 1974). February 4.386 Similarly. New Zealand and South Africa. 1982. DMF 1983. Zapata Off-Shore Co. DMF 1983. the Supreme Court of the Federal German Republic in Allianz v. 143. Cour d’Appel d’Aix. because the size of the print of the clause was too small.S.390 On the other hand. the shipowner was held not bound by a jurisdiction clause in a bill of lading issued to the shipper by the time charterer.
Rosa 211 F. 588.). 22 of the Act. 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. by virtue of the legislation which establishes them. c.e. Davies. 1333..396 If the court does not have jurisdiction over the subject matter. 2000). See Ravelo Monegro v. 50(1) of the Federal Court Act. see sect. the burden is normally on the defendant to show why a stay should be granted.C. however.K.J.K.L.C. see also Williams & Glyn's Bank v. 587. (4th) at p. 396 The jurisdiction of the plaintiff’s chosen forum over the subject-matter of the dispute is often not an issue. In Z. 54. then the suit must be dismissed. c. as a civil law jurisdiction. 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. 1289 “In the latter inquiry [i.64 XIV. U. sufficiently important to warrant a different test. 367 at p. S. note 2. is preferable.R.R. the Federal Court of Canada has the jurisdiction to construe its originating act and especially heads of maritime jurisdiction set out in sect.L. 463.” 394 Ibid. Pompey v. CJ. 456 (H. 2003 AMC 1280 at pp. cited by M. The burden is therefore initially on the claimant (plaintiff) to prove the jurisdiction of the forum.393 Nevertheless. I am not convinced that a unified approach to forum non conveniens.R. 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. In both cases.” 395 In the U. 1288-1289. “ordinary” forum non conveniens cases]. at pp. The Ship Capricorn  2 S.S. (4th) 577 at p.S. 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. and the burden of proof has been deemed to be different as well. Code sect. but the presence of a forum selection clause in the former is.  1 S.L. one where the starting point is that parties should be held to their bargain. See also Antares Shipping v.R. In Canada. see the rules governing the court's jurisdiction ratione materiae (compétence d'attribution) set out at arts.R. D. 49-51 and the declinatory exceptions described at arts. 513 (9 Cir. Astro Dinamico  1 Lloyd's Rep. R. Fortunately. 49 of the Supreme Court Act 1981. L.I.7. 1981. 368.395 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. in my view.. and where the plaintiff has the burden of showing why a stay should not be granted. ECU-Line N. See also the rules governing the court's jurisdiction ratione personae or loci (compétence territoriale) set out at arts. 463-464.S. 1985. 439-440 per Laskin.C. does not have forum non conveniens. 422 at pp. see 28 U. France. 33-41 of the New Code of Civil Procedure: these rules are of public order. 453 at p. In the U. Mar. 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. (2003) 224 D. 75-99. where a choice of jurisdiction clause constitutes but one factor to be considered. under sect. 393 . Jurisdiction cannot be accepted nor can suit be stayed.V. “Forum Selection Clauses in Maritime Cases” (2003) 27 Tul..C. 42-48 of the New Code of Civil Procedure: these rules are not of public order.3d 509 at p. Bastarache J. 450 at p. See also arts. because so often plaintiffs take suit in “… the quintessentially convenient forum for the defendant – the defendant’s home forum”.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. In France. AMC at p.
398 See also Z. Monroga 254 F.C.S. Staying Suit -All Jurisdictions In the United States. Only by making such proof can the plaintiff hope to be released from his bargain to sue or arbitrate elsewhere. 5) Thereafter. 462. who brings suit in a forum other than the contractually agreed one. 588.V. 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. 531 (D.S. upheld in the Supreme Court. that the clause is legible. why the contractually stipulated jurisdiction. quoted in Carbon Black Export v. N.2d 1231 at p. 10. and 1972 AMC at p. Vaasa Line Oy. 1985). 508.”398 The party seeking the forum non conveniens dismissal must convince the court of every element of the forum non conveniens analysis. 821 F. 1418.R. 1996). 402 407 U. 400 Z. 928 (4 Cir. Supp. 399 See In re Air Crash Disaster Near New Orleans.S. (2003) 224 D.2d 458 at p. and also quoted in Perusahaan Umum v. 464.L. etc.R. 71 (5 Cir. 1289.”403 XV. ECU-Line N. 1289.2d 297 at p.Y. 1235. 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).Y. where the Court stated. Md. 2760 (1987). Thus in Kooperativa Forbundet v. 15.V. There is no unanimity among American courts. Supp. 1414 (1972). 401 1975 AMC 1972 at p. Lloyd’s of London 94 F. “Thus.  1 S. 2002). (4th) 577 at p. 1972 AMC 1407 at p. 450 at p.402 Citing the same precedent.C. Gilbert:397 “But unless the balance is strongly in favour of the defendant. 1958 AMC 1335 at p. 501 at p. As was said in Gulf Oil v. the party (defendant) attempting to change jurisdiction has the burden of proof as to why the stay of proceedings should be granted.  1 S. 1 at p.e. Inc.S. 1975). the party who challenges the jurisdiction clause (usually the plaintiff) has the burden of establishing why a stay should not be granted400 (i. the plaintiff's choice of forum should rarely be disturbed.S.I. ECU-Line N.401 it was held: “This is a forum-selection clause and it is prima facie valid and enforceable”. 464. 403 181 F. Zapata Off-Shore Co. (2003) 224 D. 1985 AMC 1192 (S. however. 359 U. 588. relying on M/S Bremen v. 450 at p. and that there has been notice to the other party.R. 397 . that the clause is validly incorporated into the contract of carriage. Hre1jin 600 F.I. 1959 AMC 1327 (1959).399 4) If there is a jurisdiction clause. v.3d 923 at p.” Dukane Fabrics v. 180. to which he has (presumably) agreed. 1987 AMC 2735 at p. (4th) 577 at p. Pompey v. 1983). Tel Aviv 711 F. 2002 AMC 528 at p. that: “The seminal Supreme Court decision enforcing a forum selection clause places the burden on the plaintiff.L. N. 1973 (S. 1341 (5 Cir. 2003 AMC 1280 at p. properly defines the other jurisdiction. to make a ‘strong showing’ that the court should exercise jurisdiction in derogation of the contract. Some Circuits tend to apply the 330 U.R. 2003 AMC 1280 at p. courts frequently dismiss suits instituted in breach of valid foreign jurisdiction or foreign arbitration clauses. Pompey v.65 3) Once it is shown that the forum has jurisdiction over the subject matter of the suit.D. 1164. 1985 AMC 67 at p. 301. See also 407 U. it was held in Acciai Speciali Terni USA. S. in the light of present day commercial realities and expanding international trade we conclude that the forum clause should control absent a strong showing that it should be set aside.D. at p. M/V Berane. See also Allen v. as to the precise legal basis for such unconditional dismissals. 1958). 202. La.2d 1147 at p.
2004 AMC 172 at p. Inc. 2002). ibid.R. judgments staying suit will be conditional on the defendant agreeing to appear and appearing in the new jurisdiction. for example. on the time for suit defence being waived and on appropriate security being filed.C. Inc. Lauro Lines 387 F. see M. it is preferable that the court stay proceedings409 rather than dismiss them. 407 Licensed Practical Nurses. v. 630.L. particularly as a stay would permit the U.2d 393 at pp. 188 C. note 1 (1 Cir.A. 1999 AMC 2053 at p. 2001 U.2d 628 at p.D. 2948-2949 (E.C. People’s Ins. Co. for example. Co. Frietsch v.S. Supp. June 12. 698 (D.D. Davies. Lexis 8113 (W. v.2d 206 at p. Dis. 444-445 (High 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). 175 (7 Cir. of Canada v. 369-376. Ulysses Cruises. Wolfgang Preinfalk. v. 418 at pp. for example.A. This preserves the legitimate rights of the claimant as to time for suit and other unknowns and imponderables (e. Orient Overseas Line 1976 AMC 212 at p. 2001 AMC 869 at pp. 2000 AMC 2947 at pp. 410 Hartford Fire Ins. Co.D.S. S.J. of Aust. 1174. 131 F. 2002 AMC 1598 at p. The El Amria 1981] 2 Lloyd’s Rep. 2d 787 at pp. Wharf (Holdings) Ltd. 1989). Ltd. 830 (7 Cir. 322 at p. v. 123 (C. United Int’l Holdings. London 148 F. Va. Rules 12(b)(1) (dismissal for want of subject-matter jurisdiction). Corporation of Lloyd’s 999 F. 2001. 2001 WL 667804. M/V Peace River 39 F. Co. COGSA. v. 2000). 210 F. 1996).P.3d 1285 at p. 1975 AMC 631 at p. Akai Pty.. Abatement is the dismissal of the action. Davies. Inc. See. 131 F.2d 697 at p. 1998). Supp. 1975. Va..g. 408 See. 207 (7 Cir. S. Mar. 2003).D. M/V Orsula 354 F. 2000). Very often. for example. stays would seem preferable to unconditional dismissals. by contrast.Y. unreported. Continental Ins. 867 F. has jurisdiction. Inc. 2055 (D. but merely declines to exercise it. 405 See. 1993).D.).406 The inherent power of the court to regulate its own proceedings can also be applied either to dismiss or to stay proceedings. Wash. For a thorough analysis of the differing approaches of different American circuit courts of appeal to this matter. Lambert . 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. 324. Hugel v. N. supra at p. 2000). Fourth Circuit decisions such as Jewel Seafooods Ltd. N. but rather by stays of proceedings. 214 (W. 406 See.3d 1171 at p. 1112. L. cited by M.408 Where a court. 56 F.3d 825 ast p.Y. v. 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. v. 367 at pp. Supp.410 This is an intelligent and proper approach. Inc. and even whether the other court will accept jurisdiction). 119 at p. 606.3d 603 at p.S. v. v. Kukje Hwajae Ins. whether service may be made.v. Technicians & Health Care Workers of N. “Forum Selection Clauses in Maritime Cases” (2002) 27 Tul. whereby the courts seized of the motion to enforce the clause does not deny its own jurisdiction. COGSA applies and the foreign court reduced the rights of cargo claimants below the minimum guaranteed by U. Co. 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. 789-790. M/V Hyundai Liberty 294 F. 1290 (11 Cir.66 Federal Rules of Civil Procedure. Cho Yang Shipping Co. 407-408. Cir. GmbH. Supp. Inc. 1601 (9 Cir. Refco. Commerce Consultants Int’l. court to re-assume jurisdiction in situations where U. 1222 (10 Cir. 886-887 (S. 1993).” 404 . In foreign forum selection clause cases too.S. 1995). Longwall-Associates.A.407 In England and Commonwealth countries. 633 (S. Vetrerie Riunite.Y. 376. forum selection clauses and foreign arbitration clauses are typically enforced not by dismissals. Underwriters at Lloyd’s.2d 1110 at p. Lipcon v.p. Davies. the date of the filing of this lawsuit” See also Snam Progetti S. 1999). M. Allianz Ins. faced with a motion of forum non conveniens.3d 1207 at p. Kysar 983 F. v. 2001).
S. v. In the U.C. Laker Airways Ltd. have held that an anti-suit injunction should be granted only to protect the domestic court’s own jurisdiction or to prevent evasion of its public policy. Patel  1 A.C. 407 U. 871 at p. Ceres Terminals Inc. For the U. supra. or is about to assume. N. See other examples cited in Tetley. GmbH 428 F. 95 (H. 123. Laker Airways Ltd. South Carolina Ins. Airbus Industrie GIE v. Airbus Industrie GIE v.  1 Lloyd’s Rep. v.).  A.L.413 they are issued only sparingly. Lee Kui Jak  A. Sabena Belgian World Airlines 731 F.C. would have had a reasonable basis for concluding that there was no clearly more appropriate alternative forum.2d 909 (D.2d 888 (5 Cir. Cir. 414 See. which involves a forum non conveniens type of analysis. 1999 AMC 305 (2 Cir.S. see. for example.  A.412 The forum court will only grant an anti-suit injunction where it is convinced that it is an appropriate forum for the litigation.). 1998).L. Armco  1 Lloyd’s Rep. 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. Australia Ltd. where the House of Lords referred to the “… indirect interference with the foreign court which an anti-suit injunction entails. 402 (H. C-159/02). The Second. British Airways Board v.L. aff’d 161 F.C.).R.). See. however. 631 at p. GmbH 428 F.  2 Lloyd’s Rep. contrary to the principle of comity.C.2d 888 (5 Cir. with the jurisdiction of foreign courts. The acceptance of anti-suit injunctions has become widespread. 956 F. v. had it applied the forum’s principles of forum non conveniens.L.C. For Canada. Co. v. 138. Grovit (Case No.C. because of its real and substantial connection with the case.  1 Lloyd’s Rep. rev’d on other grounds.R. 2004 (E. Bankers Trust Co. and that the injunction is necessary to prevent and injustice. 58 at p. 1984). 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. for example. of Aust. 1984). 1998 AMC 334 (S.S. British Columbia (Workers’Compensation Board)  1 S. Cir. for example.C. 631 (H. Farrell Lines Inc. 893 (P. 631 at p. iCigna Ins. where the foreign proceedings are viewed by the domestic court as vexatious or oppressive or unconscionable.C.. Assurantie Maatschappij ‘de Zeven Provincien’  A. v. Seventh and Ninth Circuits have issued anti-suit injunctions where the foreign proceedings are vexatious. Donohue v. and the foreign court has taken. For the U. v. 1992).3d 115. 119 at p.C. 1 (1972).). and Others (1997) 146 A. because anti-suit injunctions interfere. 413 See. In general. Where a party has already taken suit in a foreign jurisdiction or is about to do so. oppressive or will otherwise cause inequitable hardship. for example.. In re Unterweser Reederei.D. the Fifth. M. 24. 1970). infra. to prevent parties from See the discussion of the six steps in this process surrounding notes 12 to 15. 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.C. for example.J. see.414 They have also been issued.L.).2d 1349 (6 Cir. International Maritime and Admiralty Law. In addition. See Laker Airways Ltd.. Sixth and District of Columbia Circuits. Sabena Belgian World airlines 731 F.C.67 XVI. 425 (H. rev’d on other grounds. 2003 at pp. at least indirectly.K. see Amchem Products Inc. see CSR Ltd.).V. under pain of contempt of court.L.).). 1 (1972). on the other hand. 1998). 1987): Gau Shan Co.Y. China Trade & Development Corp. For Australia. 897.” See also Turner v. 412 411 . British Airways Board v. In re Unterweser Reederei. Patel  1 A.2d 909 (D. April 27. British Columbia (Workers’ Compensation Board)  1 S.411 XVII. 414-415. In Canada. jurisdiction. 640. 1970). v. v. the injunction should only be granted if the forum court decides that the foreign court. 407 U. v. Laker Airways Ltd. Airbus Industrie v.  1 Lloyd’s Rep. 1988 AMC 880 (2 Cir.C. 317 (H. Anti-Suit Injunctions Anti-suit injunctions are closely related to forum non conveniens.2d 33.S.R. in Amchem Corp. SNI Aérospatiale v.C. 637 (H. 897. 119 at p. 119. 58 (H. Patel  1 A. Choon Yong 837 F. for example.L.
416 has held. Such an assessment runs counter to the principle of mutual trust which. Grovit (Case No. however. 1968. reported in  1 Lloyd’s Rep. 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. except in special circumstances which are not applicable in this case. 419 Turner v. See paras.C. leave to appeal to House of Lords refused (charterparty arbitration clause). 505 (C.415 The Court of Justice of the European Communities. See also the case comment by D.A.68 breaching exclusive foreign jurisdiction or foreign arbitration clauses in contracts. 29 and 30 of the ECJ decision. as such.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. at para.A. at para. Grovit (Case No. 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. 107 (H.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. 2004 at paras. 216 (E. restraining a party from commencing or continuing proceedings before a foreign court undermines the latter court's jurisdiction to determine the dispute. 27. on a preliminary reference from the House of Lords in Turner v. The Epsilon Rosa  2 Lloyd’s Rep. (2004) 10 JIML 134. 24 and 25. adopted at Brussels. Any injunction prohibiting a claimant from bringing such an action must be seen as constituting interference with the jurisdiction of the foreign court which. 2000.422 which replaced the Brussels Convention as of March 1. 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.L. 416  1 W. 2)  2 Lloyd’s Rep." 421 Ibid. April 27. 418 See the judgment of the European Court of Justice. Rhidian Thomas. 422 EC Regulation 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters.L. 380 and The Bergen (No. including bills of lading. 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. C-159/02). The Bergen  1 Lloyd’s Rep. Grovit. The ECJ endorsed the opinion expressed by Advocate General Ruiz-Jarabo Colomer in Turner v. adopted by the Council of the European Union on December 22. 417 Convention on Jurisdiction and the Recognition of Judgments in Civil and Commercial Matters. C-159/02).) (bill of lading arbitration clause).J. 2004.) (exclusive jurisdiction clause in loan agreement).420 The Court further held that the granting of such restraining orders constitutes an unacceptable interference (even if only indirect) with the jurisdiction of the courts of other Member States of the Brussels regime:421 "… a prohibition imposed by a court. April 27. 509 (C.). The Angelic Grace  1 Lloyd’s Rep.R. 420 Ibid. and which came into force 415 . underpins the Convention and prohibits a court. Aeakos Compania Naviera SA  1 Lloyd’s Rep. Grovit. 710 (bill of lading jurisdiction clause). from reviewing the jurisdiction of the court of another member State. as pointed out in paragraphs 24 to 26 of this judgment. September 27. 87 (C. 2002 for all Continental Bank NA v. is incompatible with the system of the Convention.A. 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.).). in Turner v.
21 of the Convention. The decision constitutes the triumph of art.C. 21 over art.C. For the text. it is the court where the proceedings were taken. corresponding to arts. that is entitled to decide whether it has jurisdiction in the light of the clause. 76. in effect. Rhidian Thomas. In this way. 21 and 17 respectively of the Brussels Convention 1968. except Denmark. 403. 423 See the case comment by Renaud Carrier.) and subsequent decisions such as OT Africa Line Ltd. in alleged violation of a clause conferring exclusive jurisdiction on a court in another such State.U. as a result of another development in European law. For the official French text of this decision. “Who Decides on Jurisdiction Clauses?” in  LMCLQ 25 at p. 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. and possibly also in cases within the in all Member States of the European Union. The Gasser decision will likely also apply to the determination of jurisdiction under EC Regulation 44/2001. Baatz. 27 over art. the court second seized must decline its jurisdiction. 23 of EC Regulation 44/2001. being the court “first seized” within the meaning of art. Gasser thus promises to also ensure the supremacy of art. art. See also the critical commentary of the Gasser decision by D. Member States except Denmark. 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. such injunctions arguably continue to be available in cases where neither the Brussels Convention and E. within the meaning of art. see DMF 2004. 21 of the Brussels Convention 1968. if the court first seized establishes its jurisdiction to try the dispute (e. it is the court first seized of the dispute.69 E. 29. 424 (Case C-116/02). where the initial proceedings in such a case are instituted before a court in a Brussels Convention State. because the court first seized is obliged (by art. On the other hand. on March 1. thus reversing the controversial English decision in Continental Bank NA v.A.g. anti-suit injunctions now seem to be unnecessary as between courts in Brussels Convention and EC Regulation 44/2001 States. render anti-suit injunctions unnecessary. unless and until the court first seized declines jurisdiction. The application of this rule will. 21. being the court “second seized”. 27 of which is similar to art.423 Moreover. see O. 17 of the Convention.425 While the issuance of anti-suit injunctions as between E. 425 See Y. 17 of the Convention) to decline jurisdiction in the face of a valid clause attributing exclusive jurisdiction to the court second seized. "Anti-Suit Injunction: La CJCE met fin à un anachronisme" DMF 2004. 2002. Member States therefore seems to be a thing of the past.J. v. 413.).U. MISAT SrL. may not rule on its jurisdiction.C. to prohibit the institution or prosecution of litigation in jurisdictions outside the E. which is entitled to rule first on whether or not it has jurisdiction to try a dispute.U. This is a positive development. because the jurisdiction clause is not valid or is not exclusive).  1 Lloyd’s Rep.424 the Court of Justice of the European Communities held that. that decides on its jurisdiction in the light of the clause. but must stay the proceedings before it of its own motion. 505 (C. 21 of the Brussels Convention 1968 or the court designated by the jurisdiction clause under art. where a jurisdiction clause is involved.E. . consistent with the historic principle of comity in private international law and the increased judicial integration of Europe since 1968. In consequence.). In Gasser GmbH v. (2004) 10 JIML 131. Aeakos Compania Naviera SA  1 Lloyd’s Rep. 17. L 12/1 to L 12/23. under the Brussels Convention 1968.g. even if proceedings there are protracted. Hijazy (The Kribi)  1 Lloyd’s Rep. The court designated by the clause and before which proceedings are subsequently taken on the basis of that agreed jurisdiction. Denmark continues to be governed by the Brussels Convention 1968. Regulation 44/2001 applies (e. 222 (E.J.
See also Briggs and Rees. June 21. 391-392. June 10. 426 . V(2) (recognition or enforcement not in accordance with public policy of country where recognition and enforcement are sought).) and The Hari Bhum  1 Lloyd’s Rep.302. 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. 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. In cases subject to the Convention or the Regulation. 32(1) in cases not subject to either the Brussels Convention 1968 or the E.U. 215.S. 36(1)(a)(iv) and art. 1959.C. 330 U. the decision may be refused recognition and enforcement in the contractual forum. 428 See. U. 212.429 These basic conflict of law principles and rules constitute a strong support for jurisdiction and arbitration clauses in bills of lading.. v. arbitration being excluded from both the scope of both the Brussels Convention and the EC Regulation. at art. 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.. Civil Jurisdiction and Judgments.11 at p. 34(1). 27.C. See. being The Ivan Zagubanski  1 Lloyd’s Rep. State contrary to an anti-suit injunction issued in England in support of an English arbitration clause. so that it was not necessary to stay proceedings until the Finnish Court had ruled on its jurisdiction in the light of the clause. See also EC Regulation 44/2001. 5.. 2002.49 at pp. 7.K. See also Phillip Alexander Securities and Futures Ltd.70 E. as in other contracts.K. third para. adopted at New York. because the Regulation did not apply to arbitration. Regulation 44/2001. sect. 1(2)(d). 21 of the Brussels Convention 1968. 36(1)(b)(ii). 1958. 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. 27(1). in force June 7.Pr.L. 1985. 115 (C. for example. and E. 3. See also the corresponding provisions of the UNCITRAL Model Law on International Commercial Arbitration. 206 at p. 27 of EC Regulation 44/2001 did not apply to an arbitration clause. and a powerful defence against attempts to circumvent them. for example.T. 1982. on the ground that it violates public policy. 2002. 206 at p. para.426 XVIII. adopted at Geneva. The decision invoked a similar decision rendered under art. The Hari Bhum  1 Lloyd’s Rep. c.N. see the Civil Jurisdiction and Judgments Act 1982. Bamberger  I. for example. para. holding that the first seized rule of art. art.428 The major international instruments on the recognition and enforcement of foreign arbitral awards also preclude recognition or enforcement of arbitral awards rendered by an arbitrator or arbitral tribunal other than the one designated by the parties in their arbitration agreement. art. 27(1) of the Brussels Convention 1968. V(1)(d) (composition of the arbitral tribunal or arbitral procedure not in accordance with agreement of parties) and art.U. 27(1) or the Regulation’s art.A. the Brussels Convention 1968 at art. by virtue of its art. 429 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention 1958”). Clunet 1964. 35(3)). involving arbitration clauses. For France. 34(1). and also disregards an anti-suit injunction prohibiting him from commencing or continuing such proceedings. Regulation. and actually obtains a judgment or award from the foreign authority. art. 3 Ed.427 Even if no anti-suit injunction has been issued. See Briggs & Rees. 439. corresponding to art. 28. 3 Ed. lack of jurisdiction may not be invoked to refuse recognition to a judgment rendered in another Member State (Brussels Convention. 106. 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. art. Civil Jurisdiction and Judgment. note Goldman. 73 at p. 427 See. the Québec Civil Code 1994. For the U. 3155(1) (lack of jurisdiction) and (5) (manifest inconsistency with public order as understood in international relations). in particular art..
). however.). This development appears somewhat controversial within the British academic circles. 2) any legislative constraints on that jurisdiction. Zoller  1 W.430 More recently.C. 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.26 at pp. for example. The forum selection clause is usually a “boilerplate” term of the bill. para. Ltd. Tan & N. 431 See Donohue v.A. if any. 432 See D. “Anti-suit injunctions in cross-border insolvency: A restatement” (2003) 52 ICLQ 697.432 XX.A.71 XIX. Ho.L. It has been recognized for some time that contractual damages may be awarded for the violation of an agreement to arbitrate in England. Neither the Hague Rules nor the Hague/Visby Rules regulate jurisdiction or arbitration. 375 (C.B. Union Discount Co. forum selection and arbitration agreements may now be further reinforced (in England at least) by the awarding of damages for their breach. The Hamburg Rules and the Multimodal Convention.. But see also L. 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. It is therefore scarcely surprising that “choice of forum” clauses tend to be contested.g.A. a charterparty). seldom negotiated or expressly consented to by the shipper or the consignee. comparing the two positions and arguing that contractual damages for such breaches are problematic because of basic differences between arbitration and jurisdiction clauses. 430 . who criticizes this development. supporting the availability of contractual damages as a sanction for the breach of an exclusive English jurisdiction clause. 1524 and 1527 (C. and 6) the propriety of granting or refusing a stay of proceedings. Civil Jurisdiction and Judgments. London. Carapelli SpA  1 Lloyd’s Rep.g. 5) the in rem and/or in personam nature of the suit.). 293-296. 3) the appropriateness of sending the case elsewhere for trial or arbitration. Doleman & Sons v. Rees. in the tort of malicious prosecution and/or the tort of unlawful interference with business or trade).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. the possibility of such damages also being awarded for breaches of exclusive English jurisdiction clauses has also been recognized by English courts. When such contestation arises. See also A. Mantovani v. 3 Ed.). 257 (C. “Breaking promises to litigate in a particular forum: are damages an appropriate remedy?”  LMCLQ 435. the designated jurisdiction frequently has little. according to a specified national law or international carriage by sea convention. In addition. Yeo. on the other hand. inquiring into: 1) its own jurisdiction. of which he may avail himself notwithstanding See.L. Armco  1 Lloyd’s Rep. the forum court usually follows a six-step process. unreported. Briggs & P. Akar  EWHC 797. “Damages for breach of English jurisdiction clauses: more than meets the eye”  LMCLQ 46. 4.R. See also Chee Ho Tham. 1517 at pp. but nevertheless suggesting that an alternative basis for such damage awards may be found in English tort law (e. connection with the parties and their contract and is typically more convenient to the carrier than to cargo. 2002. and A/S D/S Svendborg D/S of 1912 A/S Bodies Corporate trading in partnership as ‘Maersk Sealand’ v. Ossett Corporation  3 K. v. provide the cargo claimant with options of places in which to sue or arbitrate. 4) the wording and effect of the clause in the bill or incorporated document (e. 25 (H.
has permitted Canadian suit or arbitration. In French internal law. courts in such nations are thrown back on their national law in assessing the enforceability of the impugned clause.g. 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. as a condition of release from his jurisdictional “bargain”. or generally conforms to international usage in the trade concerned. 237. rather than the defendant. where such an option would be available if the Hamburg Rules applied to the contract of carriage. as well as convenience and expense for the parties and the juridical advantages and disadvantages of proceeding in one or other venue. rather than the contractually designated one. on grounds of forum non conveniens. In Europe. the Brussels Convention 1968. Australia. In the presence of a jurisdiction or arbitration clause. where the relevant clause is written or evidenced in writing. unfortunately. requiring them to be between merchants. British and Commonwealth courts. so as to send the case to its “natural forum”. all permit choice of forum by contract. by comparison. however. the forum non conveniens analysis has been articulated differently and it also requires the plaintiff.A. however. at the cargo claimant’s option. the Lugano Convention 1988. It is by no means easy. to establish that the local forum court.72 any inconsistent forum selection or arbitration clause in the bill of lading. or reflects established practices between the parties. although such laws typically treat arbitration clauses more liberally than jurisdiction clauses. All relevant circumstances are considered.). and genuinely agreed to by the shipper and consignee. Where no statute prohibits or restricts jurisdiction clauses. Courts in common law countries and some mixed jurisdictions are empowered to exercise discretion. New Zealand and South Africa) prohibits parties from “ousting” the jurisdiction of the national courts by way of forum selection clauses. explains much of the unwillingness of major shipping nations to becoming party to the Hamburg regime.433 The options enable claimants to institute proceedings in places having some genuine connection with the contract of carriage and its performance. the Nouveau code de procédure civile lays down strict criteria under which contractual forum selection provisions will be upheld. despite a foreign forum selection or foreign arbitration clause. clear and apparent on the face of the bill of lading. following the principles laid down in The Eleftheria434 and The El Amria. 434  1 Lloyd's Rep. in international shipments to and/or from their ports. however. 435  2 Lloyd's Rep. 119 at pp. 433 . National legislation in certain countries (e. Because few major shipping nations are party to the Hamburg or the Multimodal conventions. is the clearly more appropriate venue for adjudicating the dispute. National law is. connections with the competing jurisdictions and the law applicable to the dispute. in ordering stays of proceedings. 123-124 (C. including the location of witnesses and evidence. Canada. Most standard forum selection provisions in bills of lading would be enforceable under those rules. in its Marine Liability Act. and now EC Regulation 44/2001 on jurisdiction and the enforcement of judgments in civil and commercial matters. far from uniform in this important area.435 require the plaintiff to show “strong cause” why he should be permitted to proceed elsewhere than where the contract stipulates.
used to enforce jurisdiction and arbitration clauses. . because they have been found incompatible with the Brussels Convention 1968 (and presumably with EC Regulation 44/2001 as well). the importance of the convenience of the litigants and the connections of the case have declined in significance. Prof.ca website: http://tetley.ca/ 436 437 407 U.S. Faculty of Law McGill University Montreal. obliging cargo claimants to meet the heavier onus of proving that enforcement of the clause would be unreasonable. receivers and underwriters are to be well served in the years ahead. In consequence. where since the Bremen436 and Sky Reefer437 were decided.tetley@mcgill. 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. Canada e-mail: william. Anti-suit injunctions can be.mcgill. Nor is it easy in the United States. but within Europe it increasingly appears that their employment to enforce jurisdiction clauses is invalid. 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. William Tetley. 1. if shippers. and are. Jurisdiction and arbitration of marine cargo claims thus remains a controversial issue and an ongoing challenge for maritime carriage of goods law everywhere. in a more uniform manner than at present. A fair and effective international cargo liability regime must strive to resolve this important problem. 528. 515 U. and because they may be unnecessary in the light of recent interpretation of the provisions of those instruments. carriers. fraudulent or repugnant to public policy – a daunting task. 1972 AMC 1407 (1972). Quebec.73 forum clause applicable to the claim. Q.law.C.S. 1995 AMC 1817 (1995).
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