JURISDICTION CLAUSES AND FORUM NON CONVENIENS IN THE CARRIAGE OF GOODS BY SEA

© Prof. William Tetley, Q.C.∗

INDEX
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

VII.

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

5) X.

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

XI.

XII.

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

Bob Force combines all this with a happy.C. Tulane University. judge of good wine and remarkable and generous host. a doctor son and what could be a spoiled grandson. as Director of the Tulane Maritime Law Center. CANADA ∗ Professor of Law.. order and direction.. a third-year student at the Faculty of Law of McGill University and to Robert C. which is much more difficult. Johnsen Professor of Maritime Law at Tulane University Law School. has a lawyer son. took the great tradition of maritime law teaching at Tulane and gave it form.4 JURISDICTION AND FORUM NON CONVENIENS IN THE CARRIAGE OF GOODS BY SEA Prof. An esteemed chef.L. He has been happily married to Ruth for 42 years.C. Distinguished Visiting Professor of Maritime and Commercial Law.A. cheerful persona. McGill University. Q.C. With appreciation and gratitude. Niels F. analyst and writer on law – in other words. counsel to Langlois Kronström Desjardins (Langlois Gaudreau O’Connor) of Montreal.∗ Preface PROFESSOR ROBERT FORCE It is an especial pleasure to join with colleagues from around the world in honouring Robert Force. Q. Professor McGill Law Faculty Montreal. B. as well as a researcher. William Tetley. He has also been a kind and generous friend. William Tetley. He is also an administrator who. as a scholar. he can also be a pleasant and popular guest. B. so that the Tulane Maritime Law program is outranked nowhere else. The author is indebted to Vanessa Rochester. for their assistance with the preparation and correction of the text. I have known him for twenty-five years as a devoted and very competent law teacher. . Wilkins.

The Cali (Swift & Co. 223 note 13 (1981).C. 365-366 (1885). 71-72 (5 Cir. 515 (1932). See American Dredging Co. 37-43.2 and is of major importance in maritime law. 559 (No.S.R. 918 (1994). 1932 AMC 512 at p. 7293) (C.) 13. Tel Aviv 711 F. motions for stay have been received more sympathetically. Miller 510 U.A. 285 U. 285 U.S. Paterson Steamships Ltd. 1985 AMC 67 at pp. See also the reference to “Scottish authorities” in Antares Shipping v. Just as it is imperative that maritime law be uniform and international and that choice of law rules be similar throughout the world.C. (9 Wall. 1983). so that a whole new body of forum non conveniens law has sprung up. 504 (1947). v. v. To fully understand forum non conveniens and the discretionary right of the trial judge. Navigation (Les Armateurs Français) [1926] S. Admiralty too has had a tradition of being much more open to jurisdiction clauses in bills of lading and to the principle of forum non conveniens. 1982 AMC 214 at p. 248 note 13. The Capricorn. 457 (1870).D.S. The Maggie Hammond 76 U. Reyno 454 U. 1933). Compania Colombiana del Caribe) 339 U. v. International Conflict of Laws. v. citing Piper Aircraft Co.4 while it has been known much earlier in some civil law regimes5 and in Admiralty law. 1950 AMC 1089 at p. 65 F. which passage was quoted in Gulf Oil Corp.C. 339 at p. have usually refused motions calling for the stay of proceedings.2d 392 (2 Cir. 235 at p. 2 The other two branches are choice of law and recognition of foreign judgments. [1977] 2 S. (H. 443 at p.L. v. 355 at p. Recently. A/S Den Norske Afrika Og Australie Line. 1814). where he refers to “the Scottish legal doctrine of forum non conveniens”.S. 3 Ibid.2d 1231 at p. 697. courts properly seized with a dispute.S. 4 Canada Malting Co.5 I. 1932 AMC 512 at p. v. at pp.S. at pp.S. as well as the yet more recent movement towards international conventions on procedure.S. S. ibid. 1235.6 which latter has its closest connection with the civil law. 422 at p. one must appreciate that forum non conveniens has been used by both courts of Equity and of common law. 413. at pp. See Tetley. 1994 AMC 913 at p. In consequence.” 6 The Belgenland 114 U. 449. (1925) 23 L.3 so is it essential that choice of jurisdiction rules used by various seafaring nations be the same. 516 (1932). 200 and Lord Wilberforce at p.. 5 See Lord Diplock in The Abidin Daver [1984] 1 Lloyd's Rep. and became part of the common law of many States. Perusahaan Umum v. 791 and 867. where the House of Lords recognized forum non conveniens as a doctrine of general application in Scotland. See also American Dredging Co. 197 at p. 684 at p. Mass. The Jerusalem 13 Fed Cas. 420-421. The use of a consistent conflict of law methodology would be another major boon to transnational harmony in private international law. 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. 918 (1994). 1994 at pp. Paterson Steamships Ltd. who mentions Société du Gaz de Paris v. Unfortunately that is not the case today. the courts of all nations have jealously guarded their jurisdictions and have looked unfavourably on clauses in contracts which called for suit elsewhere. 413 at pp. in recognizing that forum non conveniens “originated in Scotland. 209. Rep.L.S. United States Merchants' & Shippers' Ins. 422-423. Gilbert 330 U. 443 at p. 207. 1994 AMC 913 at p. Co. 344. 450. 1099 (1950). because of the mobility of ships (the usual defendant) and the fact that carriage by sea very often involves more than one jurisdiction.S. however. 451.7 Canada Malting Co.) 435 at p.1 Choice of jurisdiction is one of the three major branches of conflict of laws. where three of five U. although deciding that forum 1 . as does Lord Reid in The Atlantic Star [1973] 2 Lloyd's Rep. 501 at p. v. v. Supreme Court justices. 865-868. Introduction In the past. Miller 510 U. See Tetley.

at pp. 9-24 and 473-474. signed at Brussels. out of hand. Tetley. L. not in force. but that. consideration is given to the very special Admiralty problem of declining jurisdiction when an in rem arrest of a ship has been made.R.) reads: “assuming the claim to be otherwise within its jurisdiction…” 14 The House of Lords. Also examined is the effect of the Hague Rules. 1998. Maritime Liens & Claims. (a) on the ground that the claim is being proceeded with in another court or jurisdiction. it was not deciding whether it had jurisdiction to determine the case on its merits. C. sect. 8 International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading. 49(3) of the Supreme Court Act. 54). “The General Maritime Law – The Lex Maritima” (1994) Syracuse J. Mar. nevertheless agreed that “… within federal courts it [forum non conveniens] may have been given its earliest and most frequent expression in admiralty cases. Which Benefits from Both Its Civil and Common Law Heritages)” (1999) 23 Tul. & Comm. Tetley.J.13 Only if it has jurisdiction may it proceed. For example. Choice of Jurisdiction – Six Steps to Follow Choice of jurisdiction problems may be settled by the following six steps taken in order. reprinted [1996] ETL 469. the Visby Rules. 123 (H. 1931. 1968. in so doing. 119 at p. 453 at p. otherwise. 11 United Nations Convention on International Multimodal Transport of Goods. 317.C. Int’l L.9 the Hamburg Rules10 and the Multimodal Convention11 on jurisdiction clauses and on the principle of forum non conveniens. 13 The first principle of Lord Brandon in The El Amria [1981] 2 Lloyd’s Rep. 1980. and the second is jurisdiction to decide whether the Court has jurisdiction of the former kind. 1924. 422 at pp.C. 137. Tetley. R. held that it had jurisdiction to entertain an application for a stay (in virtue of sect. or (b) where for any other reason it is in the interest of justice that the proceedings be stayed. 1985. 12 There is no intention in this article to go into questions regarding the jurisdiction conferred upon various courts by national legislation.” See Wilkinson v. In some jurisdictions.B. 107. 456. in its discretion.6 The present article describes choice of jurisdiction rules and the principle of forum non conveniens in Admiralty in the United States. and in force November 1. a court which may not have jurisdiction on the merits may have jurisdiction by statute to decide a question of stay. the court must look to the law which applies to the case before it.L.). 2 Ed. of course. 439-440. however. II. “A Definition of Canadian Maritime Law” (1996) 30 U. 50: “(1) The Court may. F-7. stay proceedings in any cause or matter. February 23. Astro Dinamico [1984] 1 Lloyd's Rep. 10 United Nations Convention on the Carriage of Goods by Sea. 721 at p. See also Canada’s Federal Court Act. Finally. c. and in force June 23. International Maritime and Admiralty Law. c. 1981. Canada and France in respect to carriage of goods8 under bills of lading. 1978. the United Kingdom. 9 Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading.C. to determine if there is a direction in that law as to jurisdiction. signed at Geneva.1 at pp. 1992.B.J. 1981.A.Rev. Chap. 725 (C. in Antares Shipping v. 1977. the court seized with the case must decide if it has jurisdiction12 by virtue of the legislation which created it. Firstly. U. signed at Brussels. Barking Corporation [1948] 1 K.L. and in force June 2. There are two distinct kinds of jurisdiction therefore: “the first is jurisdiction to decide the action on its merits. See also comments by Laskin.” . The Capricorn [1977] 2 S. the Australian Carriage of Goods by non conveniens was not a characteristic feature of admiralty law.S. “Maritime Law as a Mixed Legal System (with Particular Reference to the Distinctive Nature of American Maritime Law. May 24.K. Tetley.14 Secondly. August 25. 2003. signed at Hamburg March 31. 7-60.” 7 Tetley. in William Glyn's v.. it must dismiss the suit.

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. sect. 98.). Leyden/Boston. the incorporation by reference and notice of the incorporation must be considered carefully. Montreal. 17 See. to verify that such incorporation is complete and valid.e. See also BIMCO's non-negotiable Liner Sea Waybill (LINEWAYBILL"). 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. at pp. Otherwise the court will retain the suit in its own jurisdiction and will refuse the motion for stay. III.. .. but in some document (such as a charterparty). 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. Thirdly. consignees or endorsees.7 Sea Act 199115 holds invalid any clauses in most sea carriage documents ousting Australian jurisdiction. e.17 Bills of lading under the Rules are often not signed by the shippers. 160 of 1991 (Cth.. See also two sample clauses in S. 2) 15 The Hague/Visby Rules 1968/1979 No. as amended by the Carriage of Goods by Sea Regulations 1998. Sixthly. Nevertheless. of November 2000 at clause 4. if it is reasonable. as amended. the terms and specific wording of that clause must be considered carefully. 1978 at p. if the new jurisdiction is deemed to be convenient and proper in the circumstances. adopted at Brussels. the court must decide if the other jurisdiction. If the jurisdiction clause is not in the bill of lading (or other immediate evidence of the contract). at pp. For the texts of these two forms. see Tetley. Fourthly. 861-862 and 863-864 respectively. 1931 (commonly known in English-speaking countries as the "Hague Rules"). both types of clauses have generally been held valid by courts in bill of lading disputes. 174. No. 1997 at clause 3. provided they are clear and unambiguous. 1121-1129. 2003. the court will stay the suit by an order which will preserve the rights of the parties. 1988 at pp. 16 International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading. 1111-1120. Sijthoff. Fifthly. ibid. August 25. issued by BIMCO. who therefore do not have the jurisdiction/arbitration provisions brought specifically to their attention. Mankabady. and an English translation. 11(1) and (2).. which arrest normally gives jurisdiction in the place of the arrest. and in force as of June 2. is appropriate and whether the balance of convenience favours the case being heard there. Appendices “P” and “Q”. See the official French text reproduced in Tetley. 3 Ed. if there is a jurisdiction clause in the contract (the bill of lading). Marine Cargo Claims. The Hamburg Rules on the Carriage of Goods by Sea. to which it is called upon to defer.g. Les Éditions Yvon Blais. i. August 22. International Maritime and Admiralty Law. Inc. 1924. Statutory Rules 1998. the BIMCO Liner Bill of Lading (Conlinebill 2000”). very often in the place of the carrier’s principal place of business. ed. Such clauses ordinarily call for suit or arbitration in the jurisdiction most convenient to the carrier.

R. The Hague Rules 1924. 2 Ed. the Swedish Maritime Code. 20 This common Nordic Maritime Code came into force on October 1. Protocol 1979"). 1992. as between the Danish and Norwegian versions of the Code.20 Under this Code.J. December 21.10. 1978. 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. 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. Art.J. 1968 (in force June 23. L. February 23. 4) the port of discharge. 2001. the suit must be transferred to an acceptable jurisdiction defined in art. 1968 (O. as amended by the Visby Protocol 1968 and the Visby S. Art. branch or agency there the contract through which the contract was made. See.E. at the petition of the defendant.. to designate the place of suit after a claim under the contract of carriage by sea has arisen. 21(1) upon the defendant providing adequate security to ensure payment of any subsequent judgment. while still adhering to the Hague/Visby Rules. are commonly known as the "Hague/Visby Rules 1968/1979". The arrest is valid but. Stockholm.D. 21(5) permis the parties. 19 United Nations Conventions on the Carriage of Goods by Sea. and in force November 1. 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. and the Finnish and Swedish versions. The numbering of the articles differs.12. 2) the place where the contract of carriage was made if the defendant has a place of business. nr 22. 30.R.18 like the original Hague Rules. on the other. as . the options as to places for suit are similar to those permitted by the Hamburg Rules. Protocol 1979. In addition. whether or not those parties have really taken cognizance of their terms. nevertheless adopted a common maritime code in 1994. and 5) any additional place designated for that purposes in the contract of carriage by sea. 2000. updated to June 30. Norway and Sweden). 1979 (in force February 14. adopted at Brussels. Jure AB. 299/32. however. such clauses are generally upheld by courts and may be set up against parties to the bill of lading or similar document of carriage. 31. Again. signed at Hamburg on March 31. adopted at Brussels. 3) the port of loading. 21(1) authorizes the cargo claimant.E.C. however.8 The Hague/Visby Rules 1968/1979. 3) The Hamburg Rules 1978 The Hamburg Rules19 at art. 21(2) solves the difficult problem of jurisdiction being acquired by the arrest of the ship in rem. 1994. 1984) (commonly known as the "Visby S. by agreement. L. adopted at Brussels on September 27. at his option.D. for example.1972. but in some cases with certain national qualifications. A number of countries have enacted national legislation in an effort to give effect to the Hamburg Rules options as to jurisdiction. 21 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. see English text in O.1978). on the one hand. 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. published in Swedish and English by the Axel Ax:son Johnsons Institut för sjörätt och annan transporträtt.C. art. for example. The Nordic countries (Denmark. 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. Finland. 304/36. In particular. contain no provisions on jurisdiction or arbitration.

60. paras. 7(2) of which authorized the addition of a “Schedule of Modifications” to the 1991 statute as amended.C.22 both of which conventions make the domicile of the defendant the major criterion of jurisdiction. 22 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. except in respect to actions in rem. or relating to a contract of carriage to which.1988). 198024 has similar provisions at art. 2002. referring to arts.J.1. Choice of Law and Jurisdiction in the New Nordic Law of Carriage of Goods by Sea” (1996) Il Diritto Marittimo 308 at pp. Norway and Switzerland). 310 and 311 of the Danish Maritime Code. This Schedule of Modifications is Schedule 1A of the 1998 Regulations. at art.E. 319-321. or 5) any other place designated for that purpose in the multimodal transport contract and evidenced in the multimodal transport document. 319/9. 26(3). by E.C. the amended Hague Rules28 apply. to mean any of the following: a bill of lading. 27 The term “sea carriage document” is defined in Schedule 1A (Schedule of Modifications) of the Carriage of Goods by Sea Regulations 1998. 123 of 1997. 25 No.J. in force July 1.2. 1980. 26. provided that the defendant has there a place of business. “Arbitration & Jurisdiction in Carriage of Goods by Sea and Multimodal Transport – Can we have international uniformity?” [1998] ETL 735 at pp. Regulation 44/2001 of December 22. 23 See Swedish Maritime Code. 1(1)(g). 11 of the Australian Carriage of Goods by Sea Act 1991. For example. the parties may agree on a place for instituting an action after a claim has arisen. 1988. “Scope of Application. adopted at Lugano. not in force. 753-754. or 3) the place of taking the goods in charge for international multimodal transport. 1998. Chap. sect. No. September 16. 24 United Nations Convention on International Multimodal Transport of Goods. 6. were authorized by the Carriage of Goods by Sea (Amendment) Act 1997. 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. L 12/1.9 Convention 1988. 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.1 and 6. 13.E. 2000 (O. Allan Philip. para. or 4) the place of delivery of the goods. (O. Liechtenstein. relating to the carriage of goods from any place in Australia to any place outside Australia or subsequently amended. IV.26 reads: “11 (1) All parties to: (a) a sea carriage document27 to which. signed at Geneva on May 24. branch or agency through which the contract was made. Schedule 1. By art. 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. The Carriage of Goods by Sea Regulations 1998 amending the Carriage of Goods by Sea Act 1991. 160 of 1991 (Cth. 25. 2) the place where the multimodal transport contract was made. except Denmark.C.25 as amended by the Carriage of Goods by Sea Regulations 1998. or a negotiable document of title . sect. See also Tetley. and as later replaced for all European Union states. L.) 26 Statutory Rules 174 of 1998.23 4) The Multimodal Convention 1980 The Multimodal Convention.2001). 16. effective March 1.11.

are taken to have intended to contract according to the laws in force at the place of shipment. Mitsui & Co. 9 of Australia’s former Sea-Carriage of Goods Act 1924.. No. 11(3) to the 1991 statute. 29 Subsect. note 16. 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).29 relating to such a carriage of goods. See also Akai Pty Ltd. (1996) 141 A. C.” 30 The Australian Carriage of Goods by Sea Act 1991 was amended by the Carriage of Goods by Sea (Amendment) Act 1997. (1974) 24 F.): A French bill of lading for a shipment from France to Australia called for suit in France.). by law. 31 No. The People's Insurance Co.L. 544 (High C. or relating to a contract of carriage to which. Aust. 374 (Aust. 32 The Federal Court of Australia has been held that sect 11 of the Carriage of Goods by Sea Act 1991. England. so as to add sect. 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. See Tetley.R. John Churcher Pty Ltd. 164-165 (Fed. 9 of the former 1924 statute as interpreted in the Wilson decision (supra). v. like sect. Sup. relating to the carriage of goods from any place outside Australia to any place in Australia.). where an exclsive English jurisdiction clause in an insurance policy was not enforced because the English court would not apply a mandatory and otherwise applicable Australian statute on insurance contracts.L. International Conflict of Laws. [1974] 2 N. . or a bill of lading that.R.). 229 (N. v.S.S. Sup. 22 of 1924.W. but only on condition that the arbitration is conducted in Australia. 142 at pp. 1988.”30 This legislation is very similar to sect. (Australia) Ltd. See Hi-Fert Pty. 1994 at p. 28 The “amended Hague Rules” refers to the Hague/Visby Rules 1968/1979. (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. High C. Compagnie des Messageries Maritimes [1954] 1 Lloyd's Rep. 191. of Aust.W. 123 of 1997 (Cth.R. 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. The Supreme Court of New South Wales. 179 (N. Marine Cargo Claims. Tetley.L.32 31 that is similar to a bill of lading and that contains or evidences a contract of carriage of goods by sea. Limited v. upheld by the Australian High Court.W. See also Wilson v. 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. and has received a similar interpretation. 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). 153.10 (b) a non-negotiable document of a kind mentioned in subparagraph 10(1)(b)(iii). 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. 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).) 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. Kiukiang Maritime Carriers (The Kiukiang Carrier) [1998] 159 A. however.S.e. the Hague/Visby Rules 1968/1979] are to govern the contract as if the document were a bill of lading. note 80. 783-784. at pp. as amended for Australia by the Schedule of Modifications (Schedule 1A) of the Carriage of Goods by Sea Regulations 1998. being a contract that contains express provision to the effect that the amended Hague Rules [i. 9(1) of the Act. declared that a clause calling for actions to be tried in a French Court was invalid. 3 Ed. in appeal [1954] 2 Lloyd's Rep. is not negotiable.L. Ltd. See.). Ct. the amended Hague Rules apply.

66-1078 of December 31. 384. 1991. exclusive jurisdiction clause or agreement to refer any dispute to arbitration”. jurisdiction clauses in bills of lading may only be invoked against merchants and these clauses must figure prominently in the bills.11 A number of other countries. Jurisdiction Clauses Restricted by National Law The former French domestic Law of April 2. China’s Maritime Courts and Justice. at art.C.C. See Zhang Jinxian. Art. 1966. as well as inside. the burden of making such proof resting with the carrier. D. Rèmond-Gouilloud.34 have enacted similar nationalistic legislation on jurisdiction clauses in bills of lading and other sea carriage documents. 621 at p. 48 of France’s Nouveau Code de procédure civile. Presses universitaires de France. 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). Witherby Publishers. 499 at pp.C. 257 of the Civil Procedure Law 1991 is more liberal as regards foreign arbitration. 1987. 1997. 533 at pp. amending art. I. for example. New Zealand. prohibiting the ouster of local jurisdiction. 104 of 1994. 445 at p. as well as the consignee or holder of any bill of lading. waybill or like document for the carriage of goods inbound to South Africa. Droit Maritime. 426427 and para.C. “[n]otwithstanding any purported ouster of jurisdiction. where the foreign jurisdictions designated by such clauses enforce forum selection provisions in similar contracts calling for suit in the P. 400 and para.R. 3(1) and 3(2).) jurisdiction clauses in bills of lading. having an actual connection with the case. Vialard. A. however. 38 See. such as New Zealand33 and South Africa. sects. under art. Droit Maritime.4. and jurisprudence cited there. adopted by the Fourth Session of the Seventh National People’s Congress of the People’s Republic of China on April 9. although the requirement that the shipper sign the bill was repealed in 1987.2 at p. 210(1) and (2). In practice. 2 Ed. 37 of Decree No.C. April 11.C.’s maritime courts. Nevertheless.R.R. in French internal law. Journal officiel.1937. As of 1997. No. The word “court” in this context. sect. para. 193635 at art. para. “Arbitration & Jurisdiction in Carriage of Goods by Sea and Multimodal Transport – Can we have international uniformity?” [1998] ETL 735. 87-922 of November 12. 346347.36 it must nevertheless be proven that cargo genuinely consented to the clause. waybill or document before the competent court in the Republic.e. 386-387. although the article does not expressly preclude selection of a foreign forum. 244. Today. to agree in writing to trial by the court at the place that has an actual connection with the dispute. in a case concerning contract disputes or disputes over property rights involving foreigners (including maritime contract disputes).R. 1997. which preclude the ouster of New Zealand jurisdiction by foreign jurisdiction clauses in bills of lading. Loi relative aux transports des marchandises par mer. Act 1 of 1986. 48.1).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. London. foreign jurisdiction clauses in ocean bills of lading are recognized by Chinese maritime courts only where the foreign country concerned recognizes Chinese (P.38 See New Zealand’s Maritime Transport Act 1994. para. Pedone. however. Paris. similar documents of title or nonnegotiable documents covering shipments to and from New Zealand. 447 at pp. which permits both parties. would seem to mean the court of the P. 33 . 37 See M. 36 The requirement that bills of lading be signed by shippers was repealed by Decree No. para.. 7. therefore. the autonomy of parties to agree on a foreign jurisdiction for litigating their cargo claims is severely restricted. 1993. only Dutch and German jurisdiction clauses were recognized in the P. The court selected must be clearly identified in the bill and. V. which permit any person carrying on business in the Republic. See generally Tetley. thus being slightly more liberal than the corresponding Australian statute which allows only Australian arbitration. although that statute does permits arbitration of cargo claims outside. 34 See South Africa’s Carriage of Goods by Sea Act 1986. the Civil Procedure Law 1991 of the People’s Republic of China. International Maritime Bureau. to bring an action on the bill. 1936. 35 Loi du 2 avril 1936.

in situations where that option would exist under Hamburg.). the residence or place of business of the defendant or the place of contracting). In effect. or the intended port of loading or discharge under the contract.) s. is in Canada. 151. 6. is significantly less restrictive and nationalistic than the corresponding legislation in Australia. 2001.c. under sect. branch or agency in Canada. c.39 provides the marine cargo claimant with the option of suing or arbitrating in Canada. 2003 AMC 305 (Fed C. despite the presence in the bill of lading of a foreign jurisdiction or a foreign arbitration clause. while still favouring local jurisdiction and arbitration. the claim must have arisen after the jurisdictional provision has been agreed. the parties to a contract referred to in that subsection may. If the Hamburg Rules apply to the contract. of course.A. under certain conditions. 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. balanced and 39 40 S. . Sect. “(2) Notwithstanding subsection (1). For decisions on the application of sect. after a claim arises under the contract. where (a) the actual port of loading or discharge. The Viljandi [2003] ETL 760 (Fed. to sue or arbitrate in Canada. The Castor (2002) 297 N. the proposal is a way of giving the cargo claimant a Canadian litigation/arbitration option. 2001. v. 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. of Can.C. 46.S. under its Marine Liability Act. S. however. But if Hamburg does not apply. (b) the person against whom the claim is made resides or has a place of business.).40 In the latter case. as an alternative to suing or arbitrating abroad as per the bill of lading. Nestlé Canada Inc. 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. 21 and 22 of the Hamburg Rules. in force August 8. It seems fair. C. It does not prohibit ousting Canadian jurisdiction over bill of lading disputes. 6.12 Canada. New Zealand and South Africa.S.C. c.A. or (c) the contract was made in Canada. see IncremonaSalerno Marmi Affini Siciliani (I.M.n. designate by agreement the place where the claimant may institute judicial or arbitral proceedings.” Sect. but permits the cargo claimant to opt instead for suit or arbitration in Canada. 46.R. may choose to litigate or arbitrate outside Canada. the cargo claimant may sue in the contractually stipulated place or in any of the other optional venues listed in those Rules. alternatively. in accordance with the contractual clause or. v.. in cases similar to those enumerated in arts. the plaintiff. even where Hamburg does not apply to the bill of lading contract of its own force or through incorporation by reference. 2001. 46(1) of Canada's Marine Liability Act.

see English text in O. 43(1) and (2) and Schedule 3 of this Act).J.J.J.E. 55.42 This Convention. Mainschiffahrts-Genossenschaft Eg v.10.m. 45(1) and (2) and Schedule 4 of the Act).E. L.C. 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. 31. “Maritime Claims: The European Judgments Convention”. 17 as it has evolved in wording since 1968..E. 1831.98).13 reasonable. as subsequently amended by various accession conventions.44 Art.H. (see sects. 30. 285/1.” 46 See. C.C. [1997] ECR I-911. it has also adopted the Hamburg Rules 1978 and retains the option to bring those Rules into force. 42 Hereinafter described as the 1968 Brussels Convention (O. Finland and Sweden. 17 of the Brussels Convention 1968.1989) and the Accession Convention of November 29.J. to be effective under art. RUWA Polstereimaschinen G. for example. L. 304/36. [1987] LMCLQ 281. See of the Accession Convention of October 25. Spain and Portugal. 1978 (O. 106). in order to protect the weaker bargaining party from foreign forum selection clauses inserted in boilerplate language by the stronger party. See also Estasis Salotti di Colzani Aimo e Gianmario Colzani v. 41. which came into force on January 1. L.1978). for example. the decision of the Court of Justice of the European Communities in The Tilly Russ [1985] ETL 3 at p. London. The rule was applied to bill of lading jurisdiction clauses agreed to by the parties.E. requiring that a jurisdiction clause. 44. 1975. 2005 and every five years thereafter (see sects. 1982 for Greece (O. signed at Luxembourg on October 9. 03. Les Gravières Rhénanes SARL. c.U. on the admission to the European Union of Greece. as so amended and re-amended. following the making of a report to Parliament by the federal Minister of Transport on the advisability of doing so before January 1. perfect and sufficient guarantee of the existence of consent or consensus” (see Briggs & Rees. In the U. be the “subject of a consensus between the parties. and Austria. 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.C.J. 2. 304/1.K.b. provided a rule requiring the courts of Contracting States to respect written jurisdiction agreements.45 Subsequent decisions of the European Court of Justice. the Republic of Ireland and the United Kingdom. 44 Convention on the accession to the 1968 Convention and the 1971 Protocol of Denmark. The Brussels Convention 1968 was re-amended three more times.J.E. Although this and other ECJ decisions maintain that the formalities required by the article are themselves “… a full. there must be the possibility of attacking 41 .12.1978). Finland and Sweden (O. which includes the 1971 Protocol of Interpretation43 annexed to it.01. 299/32. 15. Case No. 17. Some of these accession conventions made substantive amendments to the Brussels Convention 1968.97 at p. para. 31..C.K. 1971 and in force September 1.1997).1972.C. 1987. 45 See. U.10.C. the Accession Convention of May 26. 1968. 2002. 388/1. pending Canada's possible eventual transition from the Hague/Visby Rules to the Hamburg Rules. was amended by the 1978 Accession Convention and subsequent Accession Conventions.C. 1996 for Austria. 1982. Member States. signed at Luxembourg on June 3.10. 43 Protocol on the interpretation of the 1968 Convention by the European Court. the Brussels Convention 1968 was given the force of law by the Civil Jurisdiction and Judgments Act 1982. L. to clauses confirming a previous oral agreement between them and to clause forming part of “the steady business relations” between the parties.46 Although under its Marine Liability Act.E. Civil Jurisdiction and Judgments. 30. [1976] E. have reaffirmed the essential importance of a genuine agreement between the parties as to the foreign jurisdiction concerned. 3 Ed. This Protocol permits the Court of Justice of the European Communities to interpret the Brussels Convention 1968 in cases referred by national courts of E. C-106/95. rendered under art. See generally Geoffrey Brice. and of which the weaker party remains unaware until it is too late. 41. which must be clearly and precisely demonstrated.41 VI. 27. 1989 for Spain and Portugal (O.15/1.12. L.R.

and regularly observed by. The Lugano Convention of September 16. 1988 (O. adopted on by the Council of the European Union on December 22. 23(1)(a).49 the jurisdiction clause as invalid for fraud. Like the old Brussels Convention. 47 Denmark chose not to bound by the EC Regulation. 23. provides for jurisdiction clauses and agreements evidenced by electronic documents to be treated as “writings” for the purposes of art. L 12/1 to L 12/23. For commentary. except for Denmark. or (c) in international trade or commerce. or (b) in a form which accords with practices which the parties have established between themselves. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. 25. Such an agreement conferring jurisdiction shall be either: (a) in writing or evidenced in writing. 49 The EC Regulation.U. 2002. except Denmark. Its rule on jurisdiction agreements. 2002.. . For the text.E. mistake.1988). misrepresentation or frustration.J. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. L. Iceland. read as follows: “1. but not Liechtenstein). at art. as of March 1. This latter expression has yet to be interpreted by the European Court. the EC Regulation establishes uniform rules on civil jurisdiction and the enforcement of judgments in civil and commercial matters.C.E. 17 of the Brussels Convention 1968. see O. the most pertinent portion of the new Regulation. is couched in terms very similar to those of the most recent text of art.14 2) EC Regulation 44/2001 The Brussels Convention 1968 was replaced. 48 EC Regulation No. Any communication by electronic means which provides a durable record of the agreement shall be equivalent to ‘writing’. “L’entrée en vigueur du règlement communautaire no 44-2001 du 22 décembre 2000 concernant la compétence judiciaire. (i. 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. 2000) in matters of civil jurisdiction and the enforcement of judgments. see Pierre Bonassies. duress. parties to contracts of the type involved in the particular trade or commerce concerned. If the parties. which applies directly (i. Briggs and Rees suggest that such a possibility may lie in the development of an autonomous definition of “agreement” (see ibid. at p. in any court of a European Union Member State. Norway and Switzerland. if the electronic communications leave a “durable record”.J. Art. 2000.e. and in force in all Member States of the European Union except Denmark. in respect of civil jurisdiction and the enforcement of judgments. unlike art. that court or those courts shall have jurisdiction. 107). 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. very similar to the Brussels Convention 1968. and also binds Poland (since that country acceded to the Lugano Convention on February 1. and therefore is still governed by the Brussels Convention 1968 in its relations with the other Member States of the E. one or more of whom is domiciled in a Member State.47 by the Regulation of the Council of the European Union (EC Regulation 44/2001)48. without the need for any implementing national legislation) to proceedings instituted on or after March 1. 17 of the Brussels Convention 1968 as amended by the various Accession Conventions.C. “2.11. la reconnaissance et l’exécution des décisions de justice en matière civile et commerciale” [2002] ETL 727. 319/9.e. also continues to govern three of the four remaining remaining States of the European Free Trade Association (EFTA). 23 (1) to (3).

parties to contracts of the type involved in the particular trade or commerce concerned”. 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. 52 November 9. under art. at p. [2000] ECR I-9337.54 European Court of Justice. 23 of EC Regulation 44/2001 is basically unchanged from art. 17 of the Brussels Convention generally. [2002] ETL 727 at p. 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. [1985] ETL 3. In Trasporti Castelletti Spedizioni Internazionali SpA v. of the Brussels Convention 1968 in relation to bill of lading jurisdiction clauses. with the result that the usage may be considered to be a consolidated practice.20. need not name the court having jurisdiction. where applicable. Delebecque. by the circumstances of the case. 1984.51to20. in its decision in Coreck Maritime GmbH v. obs. particularly in the Castelletti (supra) and Coreck Maritime (supra) cases. but rather merely called for suit in the court of the place of the “principal establishment 51 50 . Ph.52 and its three main findings would appear to remain applicable to such clauses now that the very similar art. where the bill of lading jurisdiction clause did not expressly specify the name of the court selected. 337. 734. 2001 (The Nedlloyd Van Neck) [2002] ETL 926. 187. Asariotis & Baatz. Hugo Trumpy SpA. the courts of other Member States shall have no jurisdiction over their disputes unless the court or courts chosen have declined jurisdiction. See also Cour d’Appel de Rouen. indicating that art. 11. 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 objective knowledge of the trade usage by either party to the contract is irrelevant. The existence of the usage must be established. 23 of the Regulation. C-159/97). supra. Handelsveem BV. 17. not by the national law of one of the contracting states. 23 of EC Regulation 44/2001 is in force:53 (1) the wording of the jurisdiction clause. obs.81. [1999] ECR I-1597. supra. 2000. may be “concretized”. (Case No 387/98). will probably continue to apply under art. 2000. 1999 (Case No. (Case No. 17 from which the European Court of Justice in The Tilly Russ50 drew the criteria for a valid and enforceable jurisdiction clause. Bonassies. which might be given to the standard form on which the clause appears. 54 Thus. [2000] ECR I-9337. Delebecque. March 16. 2000 at paras.51 If this requirement of form is complied with. June 19. knowledge of such a generally and regularly observed usage is “imposed” on the shipper.15 “3. DMF 2001. Ph. See P. for example. The European Court of Justice interpreted the most recent text of art. 53 See P. On art.. first para. obs. 187. November 9. Where such an agreement is concluded by parties. Ph. Bills of Lading: Law and Contracts.” (Emphasis added) The text of art. applying the Castelletti decision. June 21. 733. DMF 2000. the jurisdiction clause must be given effect when one of the parties is domiciled in a Member State of the European Union. 17. Handelsveem BV. 17. Delebecque. These elements. In fact. therefore. Art. Bulletin des transports 2002. first para. 17 of the Brussels Convention 1968 and that the decisions rendered under art. in the Coreck Maritime case. Bonassies. 17 of the Convention by the Court of Justice of the European Communities. of the Brussels Convention 1968) is different from the pre-1978 text of art. which must be sufficiently precise to enable the judge seized of the case to determine whether he has jurisdiction. none of whom is domiciled in a Member State. See also Cour d’Appel de Versailles. see Gaskell. DMF 2001. 2002. 387-98). 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. the European Court of Justice held that the knowledge of the usage concerned is “independent of any specific form of publicity”. March 21.

the Regulation does not affect any conventions to which the Member States are parties and of the carrier”. observations Y. because it was not proven that the consignee had consented to the clause at the latest at the time of delivery. holding that art. See also Rechtbank van Koophandel te Antwerpen. [2003] 2 Lloyd’s Rep. See also Rechtbank van Koophandel te Antwerpen. March 4. [2002] ETL 453. BP France S. Under those provisions. April 9.A. 364 at p. 58 See Siboti v. 17. where under the applicable French law. 57 of the Brussels Convention 1968). 364 at p. it is governed by the very specific terms of the EC Regulation 44/2001 (and the Brussels Convention 1968 in the case of Denmark). 556. mutual consent between the contracting parties to sue in a determined or determinable forum.16 (2) art. 60 Siboti v. 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.77. interpreted in the light of the commercial background of the case. 56 The Court held that it was not its responsibility to determine the applicable national law as a matter of interpretation of the Brussels Convention. as interpreted by the European Court. incorporation by reference of a jurisdiction clause into a bill of lading is effective. 17 and the changes introduced into art. 2002 (The Dymphna). [2003] ETL 321. 372. for example. October 8. March 4. however. 17 of the Brussels and Lugano Conventions were inapplicable to a bill of lading jurisdiction clause calling for suit in New York courts.60 3) Arrest in rem under other conventions Under art. June 18. 2002 (The Walka Mlodych). provided that the holder. 59 See Gaskell. See also Cour de Cassation. rather.56 If such is not the case. jurisdiction clauses must still reflect a consensus between the parties to the contract that is clearly and precisely demonstrated. 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. DMF 2003. in acquiring the bill. BP France S.59 Acceptance of forum selection agreements is not unconditional. 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. Ph. agreed to by a shipper and a carrier. Delebecque. 55 Where the court selected is in a “third State”. 23 to accommodate a course of dealings between the parties and practices in international trade. but rather that that law fell to be determined by the judge seized of the case. of the Convention. applied to the bill of lading contract and therefore that the third party holder of the bill was bound by its jurisdiction clause. the foreign jurisdiction clause was held unenforceable as against the subrogated underwriter of the consignee/ holder of the bill of lading. 57 See. notwithstanding the amendments to art. 71(1) of EC Regulation 44/2001 (similar to art. Asariotis & Baatz. applying the conflicts rules of his national law. where those provisions reflect a genuine. the forum designation was held valid. where the language of the bill. emphasizing that under art. Revue Scapel 2003. 23 of EC Regulation 44/2001. 2003 (The Houston Express). . as under the art. Cour de Cassation.. rather than Belgian law.A.57 European law thus accepts jurisdiction clauses in bills of lading and other contracts. obs. 2003 (The Sonara). 1997 (The Adamastos).55 (3) a jurisdiction clause in a bill of lading. produces effects with respect to a third party holder of the bill. where the Belgian Court decided that English. first para. being the successor to the rights and obligations of the shipper under the bill. 20. 17 of the Brussels Convention 1968. it is proper to verify the reality of the holder’s consent to the clause by reference to the requirements of art. Tassel. 20. DMF 2003. 2000 at paras. has succeeded to the rights and obligations of the shipper under the applicable national law.73 and 20. 547. [2003] 2 Lloyd’s Rep. See Cour d’Appel de Rouen.58 and whether or not that forum has any connection with the dispute or the parties. 373. demonstrates clearly and precisely a consensus by the parties on the subject matter of the clause. The same test has been applied in France to arbitration clauses. Bills of Lading: Law and Contracts.

at sects. The importance of this provision is that it permits Member States of the E. the place of the carrier’s place of business. Is There a More Convenient Jurisdiction? In common law countries. either of their own motion or at the petition of one of the parties. even if that foundation does not exist in the Regulation.A. govern jurisdiction or the recognition or enforcement of judgments..66 VII. at para. Asariotis & Baatz. 1952. the Limitation Convention 1976 and the Hamburg Rules 1978. 20. 57 of the Brussels Convention 1968 prior to the enactment of EC Regulation 44/2001. 61 . Bill of Lading: Law and Contracts. 7 of that Convention permits Contracting States to take jurisdiction on the basis of the arrest of a ship in their territorial waters. The court therefore embarks on an analysis to identify what court is the “more International Convention Relating to the Arrest of Sea-Going Ships.). 8. 2) [1997] 1 Lloyd’s Rep. State whose courts would normally have jurisdiction under the Regulation. See also Briggs & Rees. 64 See the classic U. 2002 at para.K.U.15 at p. 3 Ed. 20-24 implements the Arrest Convention in English domestic law. having arrested a ship in rem in accordance with the applicable procedure. there is another. English jurisdiction based on ship arrest would remain unaffected by an exclusive jurisdiction clause as contemplated by art. decisions on this matter (rendered with respect to art. to take jurisdiction over a dispute on the basis of jurisdictional foundations provided in another convention governing a “particular matter”. Tetley.62 which. International Maritime and Admiralty Law. 63 Briggs & Rees.) and The Anna H [1995] 1 Lloyd’s Rep. 1952 and in force February 24. 65 See The Bergen (No.126. having regard to the interests of the parties and the ends of justice. adopted at Brussels. 513. 2003 at pp. In England.114-20. 515. 54.15.B. 421-423.128. the Penal Jurisdiction in Collision Convention 1952. 1994 at pp. See Gaskell. 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. State. 3 Ed. the English court. c. Civil Jurisdiction and Judgments. 710. but still relevant under the Regulation) in The Deichland [1990] 1 Q. 11 (C.17 which in relation to particular matters. Bills of Lading: Law and Contracts.. the domestic law permits such arrest in rem under the Supreme Court Act 1981. ibid. 380. 23 of the EC Regulation) purporting to assign jurisdiction to the courts of another E. Briggs & Rees. if they believe that. 1) [1997] 1 Lloyd’s Rep. Gaskell.K. the Athens Passenger Convention 1974.U. Various other maritime law conventions also have rules on jurisdiction which would override the Regulation. 8.A. International Conflict of Laws. as in fact has been done in at least one case where the bill of lading expressly provided for jurisdiction in Germany. 361 (C. 805-809. clearly more appropriate forum in another jurisdiction where it would be better to try the suit. if their domestic law gives jurisdiction to their courts. and in some other cases.65 Nevertheless.63 In consequence.K.U. 8. even if the shipowner or demise charterer is domiciled in another E. 17 of the Brussels Convention (now art. 2000 at para. 66 The Bergen (No. Tetley. Asariotis & Baatz. Civil Jurisdiction and Judgments. notably. 20. the Civil Jurisdiction in Collision Convention 1952.64 Jurisdiction in rem (even where the defendant is not available for service in the U. 2002 at para. the Civil Liability Convention 1992. although they have jurisdiction to decide the dispute. 1981. 62 U. will have a valid basis of jurisdiction over the underlying “maritime claim”.13 at p. May 10. 2000 at para. 1956. as they did the Brussels Convention. The most important example of this type of convention on a “particular matter” is the Arrest Convention 195261 Art. courts today generally have the discretion to either dismiss or (more usually) to stay conditionally the proceedings validly instituted before them.) is thus preserved and is permitted to override jurisdiction under the EU’s ordinary rules.

1994 at pp.A. See also the U.).C. The forum court which has stayed the proceedings 67 Among the classic decisions on forum non conveniens in the United Kingdom.K. see H. 1992: “Nothing in this Act shall prevent any court in the U. Connelly v. 460.L. v. 1991. it may exceptionally and on an application by a party. 501 (1947). due to constitutional restrictions.L. 27.). Lamborghini (Canada) Inc.. 235. as amended by the Civil Jurisdiction and Judgments Act 1991. S. 1077. the Lugano Convention. but should preferably stay them conditionally. see MacShannon v. The doctrine applying to this determination is known as forum non conveniens. Spar Aerosapce v. Miller 510 U.).C. 897 at pp.R. In the United States. decline jurisdiction if it considers that the authorities of another country are in a better position to decide. on the ground that another forum appears more convenient or appropriate or natural for the litigation. v. Supr.c. [1987] 1 Lloyd’s Rep. if it is the "natural forum" for trial of the dispute. where to do so is not inconsistent with the 1968 [Brussels] Convention or. striking out or dismissing any proceedings before it on the ground of forum non conveniens or otherwise.R. . American Mobile Satellite [2002] 4 S.A.L. v.C. International Conflict.K. Amchem Products Inc. 12. 1982 AMC 214 (1981). 798-803. 795 (H. [1978] A. Rockware Glass Ltd.L. or the “more appropriate forum”. Nevertheless. [1997] R. 1 (H.K.C. generally do not have the discretion to dismiss or stay actions which fall within their jurisdiction under their respective national laws.A.. Reyno 454 U. Automobili Lamborghini S. 443.” 68 The Québec Civil Code 1994.q. in case the foreign court does not accept jurisdiction or renders a decision not susceptible of subsequent recognition and enforcement in the forum court. 413. Gilbert 330 U. C.J.’s Civil Jurisidction and Judgments Act 1982. i. 383 (H.e. [1998] A. 88 (Qué.L. as the case may be. v. 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). 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. International Maritime and Admiralty Law.). c. v. v. Cansulex Ltd. If the forum court is convinced that.67 Civilian countries.C. [2004] R. from staying. sisting. 412-413. 2003 at p.Q.C.q.18 convenient forum”. for the adjudication of the dispute. 339 (H. Normand Inc. DeSavoye [1990] 3 S.S. Banque Royale du Canada [1995] R.K.). 3135 c. 915-922. 1994 AMC 913 (1994). on grounds of forum non conveniens.R. Boulton & Co.Q. 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".P. A conditional stay is preferable to dismissal. U. Tetley.C. Cape plc [2000] 2 Lloyd’s Rep. c. sect. British Columbia (Workers’ Compensation Board) [1993] 1 S.S. Piper Aircraft Co. the landmark decisions on forum non conveniens include Gulf Oil Corp. Quebec.” For decisions applying art. 205. 1982. 49. v. C. although it has jurisdiction. see Morguard Investments Ltd. The Abidin Daver [1984] 1 A. provides: “Even though a Québec authority has jurisdiction to hear a dispute.S. RTZ Corp. 398. Forum non conveniens therefore has no place in their legal systems.).R. 58 (Qué. U. 854 (H. For Canada. 2003 at pp. [1984] 1 Lloyd’s Rep. v. v. 3135 c. Spiliada Maritime Corp.).J. and American Dredging Co. Grecon Dimter Inc. the court seized of the proceedings may dismiss the proceedings. See generally Tetley. and Lubbe v.68 After having determined that it has jurisdiction and that there is no direction in the substantive law before it as to jurisdiction. J.L. at art.).C. or the “natural forum”. [1987] A.c. International Maritime and Admiralty Law.Q. 213 (Qué.J. Ct.C.A. as a mixed jurisdiction. which statute came into force on May 1. 69 See Tetley.

Baghlaf Al Zafer v. v. 663.D. 9. 1360.A. RTZ Corp. 373 (H. 1961). 72 La Seguridad v. 3) that the defendant submit to service of suit and to the jurisdiction of the other court with the time period stipulated. when it appeared that a Pakistani court might not recognize such a waiver. United Thai Shipping Corp.Y.D. Supp. 2) that the other court accept jurisdiction.1985 AMC 1493 (S. 399. 1984). no foreign court of competent jurisdiction appears definitely more "convenient" than the court first seized. See Baghlaf Al Zafer v. 229 (C. [1998] 2 Lloyd's Rep. the court making a forum non conveniens determination considers such factors as the location and availability of proof and witnesses. Cape plc [2000] 4 All E.).A. S. Supp. for its part. The Hamburg Star [1994] 1 Lloyd's Rep.71 Convenience.L.C. 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. 1955). or if the evidence on the question appears to be equally balanced. 335.D. 1955 AMC 1687 at p. 78 See. Pirelli Cables ltd. 911-912.).R.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. [2000] 1 Lloyd's Rep. The Globe Nova 1985 AMC 1977.72 sometimes described as reasonableness.2d 806 at p. 1984 AMC 2413 at p. for example. N. 508 (1947). 74 Tetley. 4) that the defendant waive any defence based on a statute of limitations or prescription in the foreign court.Y. 76. Transytur Line. following this analysis. 77 See. 909 at pp. 501 at P. the law applicable to the substance of the dispute. 2) [2000] 1 Lloyd's Rep. 707 F. 70 . 1218 (S. [1997] 3 W.B. See also LN. however. Tex. the existence of such a term or agreement is a factor of great weight in forum See.S. In The Spiliada [1987] 1 Lloyd's Rep.A. 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.75 The trial court. 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. v.D.Y.70 The conditions of the stay may vary depending on the circumstances of the case. 383 (H. 2434 (S. for example. v. Ltd.). (No. In general. 75 Gulf Oil Corp. For an example of such a conditional stay in a maritime case. see The Arctic Explorer 590 F.R.).2d 1304 at p. [2000] 1 W. Supp. 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. 1985). Swedish American Line. makes its decision as a question of fact based on the whole of the circumstances of each individual case.D. 2564 (11 Cir. for example. v. on condition that the defendant waive any time bar under Pakistani law. International Maritime and Admiralty Law. Gilbert 330 U. Sophia First 588 F. 224 F. and 5) that security acquired by either party be preserved.S. N. 1962 AMC 1217 at p.C. the convenience and expense of the parties of litigating in either of the competing fora. N.R. 1307.19 conditionally may then reassume jurisdiction over the dispute. Tsuneshima Maru 197 F. Pakistan National Shipping Co.L. [1998] A. the stay will ordinarily be refused. 1545. Subsequently. 1983).76 If. Nigeria v. and no single factor is decisive. 1984). v. See also The Kidlovodsk [1980] 1 Lloyd's Rep.74 No one can foresee or list all the criteria which the court must decide and weigh.73 is the touchstone in respect to deciding forum non conveniens motions. 76 G.Y. the House of Lords found that it was wiser to avoid use of the word “convenience” and refer rather to the appropriate forum. however. 1346 at p. 412. where a forum non conveniens stay was granted on a cargo claim arising under a bill of lading calling for suit in Pakistan.S. 183. 1689 (2 Cir. 1966).R. 1983 AMC 2559 at p. Lubbe v. where the court stayed proceedings on a cargo claim in deference to a Russian jurisdiction clause in the bill of lading. 1 (C. 268. the stay order was reversed. [2000] 2 Lloyd's Rep. Takemura & Co. 1220 (S. 854. 1 at p. 808. Connelly v. 73 Muller & Co. [1987] ETL 45 (S. Pakistan National Shipping Co. Margit 1966 AMC 1217 at p.L.78 Clearly. 2003 at p.L. S. N. [1997] 4 All E.

.” Public interest factors82 include a) avoiding “congested centers” of litigation.).Forum Non Conveniens 1) Private and public interest factors Forum non conveniens has long been an accepted principle in admiralty in the United States. 508 (1947)..L. 679 (H. 83 510 U. see Trendtex Trading Corp.83 three of five justices of the U. 450. This very authoritative decision has been referred to by non-American courts. [and] e) the relative advantages and obstacles to fair trial. 2) Forum non conveniens not a characteristic feature of U. v. with special reference to foreign jurisdiction clauses in ocean bills of lading and other contracts for the carriage of goods by sea. doctrine. . Gilbert. 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. b) the benefit of publicity of the trial in the seat of the conflict. . 629 (C.R. 79 . 1814). Cas.S.R. aff’d [1980] A. Mass. 355 (1885) is an example of an early admiralty case. Miller. c) the choice of the proper place to study questions of foreign law. 559 (No. although forum non conveniens had taken root early on in American admiralty law.). 918 (1994). 443 at p.C. it did not originate there and was not a characteristic feature of the general maritime law of the United States. United States .20 non conveniens determinations. 80 The Belgenland 114 U. 422 at p. Private interests are: “a) relative ease of access to sources of proof. 'harass' or 'oppress' the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy.S. v. who has taken suit in another jurisdiction. 1234. X and XI. aff’d [1980] Q. 365. Where the dispute at hand falls within the scope of such a forum selection provision.. 69 and 70 (5 Cir. and d) the avoidance of conflicts of law.. 82 Ibid. rather than as a substantive. c) possibility of view of the premises .B. witnesses. See also Perusahaan Umum v. 81 330 U. in breach of that agreement. 509-509.L. at pp. Crédit Suisse [1980] 3 All E.S.2d 1231 at p. of Canada).C. must show strong reasons why he should not be kept to his original bargain.80 The principle was first applied to a non-admiralty matter by the Supreme Court in Gulf Oil Corp. the plaintiff. b) availability of compulsory process for attendance of unwilling. The Atlantic Star [1973] 2 Lloyd's Rep.81 where the theory of the private and public interests was enunciated. 1983). VIII. v. The Capricorn [1977] 2 S. 451 (Supr. 1985 AMC 67 at pp. 1994 AMC 913 at p. 197 at p. Tel Aviv 711 F. Ct. infra.” Nor may the plaintiff f) “by choice of an inconvenient forum. general maritime law In American Dredging Co. See Antares Shipping v. Supreme Court decided that. 7293) (C. and the cost of obtaining attendance of willing. 501 at p.S.D. 721. but was rather a doctrine of general application. The Jerusalem 13 Fed.S. 'vex'. 207 (H. with the result that it was Among many other decisions of this kind. d) enforceability of a judgment .). See especially p.79 This matter is dealt with in greater detail in sections IX.C. forum non conveniens was characterized as a procedural.. In addition.A.

Reyno. the majority in the Supreme Court upheld the validity of the Louisiana statute out of which the litigation had arisen (art. Société Générale 462 F. See also Paula K.S. 235. sect. See also Excel Shipping v. Inc. 235. v. This statement recalls that of the U. 73-74 (5 Cir. 508 (1947): “[U]nless the balance is strongly in favour of the defendant. 536.92 4) Forum non conveniens and in rem jurisdiction Ibid. 922.S. that Louisiana amended art. N. 920-921. 1956). will also be determined by the principles set out in Gulf Oil Corp. 501 at p. It held that:87 “In such a regime.. 1986 AMC at pp.2d 463 at p. Tel Aviv 711 F. 1972).2d 1231 at p. Supreme Court in Gulf Oil Corp. 1980 en banc).2d at p. finding that that provision was not pre-empted by federal maritime law. Co. See Perusahaan.Y.no special restrictive rule Ten years after Gulf Oil Corp. at p. 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. 87 510 U. No. M/V Nordic Regent 654 F. the plaintiff’s choice of forum should rarely be disturbed.S.” 3) Admiralty . AMC at pp. v. Whether or not an action impleading a third party should be dismissed on the ground of forum non conveniens.. 1982 AMC 214 (1981).D. 86 330 U. v.S. one can rarely count on the fact that jurisdiction will be declined. Hoheweg that in Admiralty. however. 1984). 1236. 1600-1601.. 76-77. 1985 AMC 67 pp. See Louisiana Acts 1999. 123(c) of its Code of Civil Procedure in 1999. 123(C) of the Louisiana Code of Civil Procedure). 1.S. U. 453. 91 454 U. Seatrain International 1986 AMC 1587 at pp. when the jurisdiction of the underlying action has been maintained. 1980 AMC 309 (2 Cir. 455.S. and reaffirmed in Piper Aircraft. which rendered forum non conveniens unavailable in Jones Act and maritime law cases brought in Louisiana state courts.S. See also Alcoa S. “jurisdiction should be taken unless to do so would work an injustice.”). 1994 AMC 913 at p.2d 376. U. it was held in Sunny Prince v. 90 454 U. 92 Excel Shipping. ibid. F. however. so that forum non conveniens may now be applied in maritime cases. 60 (5 Cir. Gilbert. Gilbert 330 U. “Forum Non Conveniens and Choice of Law” (1987) 18 JMLC 185. at p. 465. 1238. Note. In consequence of this procedural characterization. Gilbert. 1957 AMC 57 at p.90 where it was held that the possibility that the law in the alternative forum may be less favorable does not necessarily bar dismissal on forum non conveniens grounds. v. 443 at p.21 not deemed essential to the proper harmony and uniformity of the federal. AMC at pp. but was rather a procedural rule within the legislative jurisdiction of the individual U. 1597-1598 (E.S. v. 84 . `982 AMC 214 (1982). supra. 89 Perusahaan Umum v.91 The court should be wary. Olaf Pedersen's Rederei) 239 F.S.84 The Supreme Court further observed that the discretionary nature of the doctrine. AMC at p.S. Olympic Corp. 922. 1972 AMC 1682 (2 Cir. 88 Sunny Prince-Hoheweg (Motors Distributors Ltd. 85 Ibid.”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. states. 501. 455. 1983). combined with the “multifariousness”85 of the public and private interest factors set forth in Gulf Oil v. Speck. general maritime law.2d 147.86 made uniformity and predictability in the application of forum non conveniens almost impossible.

78. the Court affirmed that “the release or removal of the vessel from the jurisdiction of the court destroys in rem jurisdiction . the court can embark upon the Gulf Oil balancing analysis and decide whether or not it is a convenient forum. 1966 AMC 121 at p. For the U. 69 (5 Cir. 1985 AMC at p. 517 (1988). 1990): “the Gilbert analysis. Reyno. See also Warn v. 103 Ibid.S. and Van Cauwenberghe v.2d at p. 1302 (9 Cir. supra. 1985 AMC at p. Biard.S. Thus courts have been compelled to deny forum non conveniens dismissals in actions in rem. 454 U. 1239. except in special circumstances: see generally Tetley. 1985 AMC at pp. 711 F. 367 (1885). 78-79. 1998. 1971 AMC 1298 at p..2d 620 (9 Cir. that the in rem factor. 711 F.2d 1103. 1999). Tel Aviv. 73. 505. v. In Sunny Prince-Hoheweg (Motor Distributors v. v. Barge Sea-Span 241. 1931). Olaf Pedersen's Rederi A/S) 239 F.99 Since the seizure of a ship in rem releases the ship from the maritime lien arising from the claim. 1985) and Farwest Steel Corp.Y. [1982] 2 Lloyd's Rep. G.96 the Fifth Circuit stated that the in rem action did not represent an exception to the Gulf Oil balancing analysis. Gilbert. 501 at pp. supra. 486 U. 1970).” 95 114 U. 1238. 1585 (D. Welding Co. 102 Perusahaan Umum v.2d at p. 1234. 711 F. 76. 1238. Tel Aviv. 1982 AMC 214 (1981). 769 F..3d 625 at p.2d at p. 1966)..1076 (9 Cir.K. 465. 100 A ship cannot be arrested twice on the same claim. 555 and The Alletta [1974] 1 Lloyd's Rep. before embarking on a Gulf Oil balancing analysis.2d 463 at p. however. 1931 AMC 407 (S. 97 Perusahaan Umum v.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. 330 U. Owen in [1986] JMLC 133. 94 93 . 60. 101 In M/S Galveston Navigator 431 F. Supp. however.S. 355 at p.Y. M/V Maridome 169 F. 518 (1947). is fully applicable to all forum non conveniens motions. v. unless the inconvenience he would suffer was tantamount to injustice. 249 F. 142 at p. 104 Ibid. 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. position.104 711 F.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. 711 F. v. See also Cliffs-Neddrill v.K. Supp. 1236. “The Integrity of the Judicial Sale”. Maritime Liens & Claims. see The Despina. added to the normal presumption in favour of the plaintiff's choice of forum. 1985 AMC 67 at p.2d 332. Cactus Pipe & Supply Co. 99 Ibid. pp. 1239.K. 711 F. Tel Aviv. including in rem admiralty actions.. the Fifth Circuit had declared that in admiralty actions in rem. 503 at p. M/V Montmartre 756 F.2d 1231 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. Del. American Lumbermens Mutual Casualty Co. 2 Ed.101 but also deny him an adequate security. 96 330 U. did make it nearly impossible for the defendant to show interests in an alternative forum. 1957 AMC 57 at p. because he would no longer be able to seize the ship102 to enforce whatever judgment he might obtain in the alternative forum. 77. Piper Aircraft Co.. N.S.” 98 Ibid. 1985 AMC at p.2d 1215 at p.. 145. Chap.2d at p. strong enough to strike the forum non conveniens balance in his favour. See Shalom-Stolt Dagali. 1098-1104.. as clarified by Koster v. 1985) and a critical commentary by David R.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.97 The Court did point out.94 After referring to The Belgenland95 and Gulf Oil Corp. v. 1985 AMC at p. 630.” See.103 A conditional dismissal. 1985 AMC 2150 (5 Cir.D. “jurisdiction should be taken unless to do so would work an injustice. 235. Gotham Marine Corp. 1218.) 47 F.S. 40.22 Perusahaan Umum v. N. 1990 AMC 1583 at p. however. 1983). 1999 AMC 1070 at p.D.2d at p. 26. See also The New England (J. 508-509 (1947). M/T Rich Duke 734 F.

Conklin & Garrett. In 1955. See. 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. American courts began systematically invalidating foreign forum selection clauses as contrary to sect. while at the same time the courts retained their discretion. to evaluate the enforceability of jurisdiction clauses and agreements in general.109 Thereafter. [1967] 2 Lloyd's Rep. Gilbert. 104 (2 Cir.S. 593.2d 200 at p. S. however. 594-595. 203. 105. v. such clauses were treated much more strictly.. 1967 AMC at pp.110 330 U. Particular principles have been developed in the U. v.2d 721 at pp. 3(8) of COGSA 1936. 109 Ibid.” The concern was that foreign law rather than U. as was done in the Canadian Act of 1910. 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. where the bill of lading includes such a provision. 1688 (2 Cir. the Second Circuit in Muller v. S. 723-725. 101 at p. It is only when the clause or agreement concerned fails the test of enforceability under those principles that forum non conveniens principles.Elikon 642 F. Ltd. Fritz Transportation International 2002 AMC 106 (N. at p. COGSA would be applied by the foreign court. 1955).2d at p. 1955 AMC 1687 at p. S. 2001).S. 107 224 F. Swedish American Line upheld a jurisdiction clause and declared:107 “…if Congress had intended to invalidate such agreements. of Canton. for example. 377 F. 501 (1947). it tends to be the paramount factor in that analysis. Cal. v. 108 377 F. for example.S. Union Ins.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.105 are now considered. [1967] 2 Lloyd's Rep. M/V 106 105 . 1982 AMC 588 at pp. 1967 AMC 589 at p. 110 In accordance with the holding in Indussa. it would have done so in a forthright manner. including those appearing in ocean bills of lading. 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. as outlined in Gulf Oil Corp. 202. before a relatively stable doctrine of forum non conveniens and jurisdiction clause enforcement were arrived at in the United States. 1981). Ltd. In view of current American law.S. 807. 590-593 (4 Cir. en banc 1967).106 There were radical swings of the legal pendulum. LG Electronics Inc. Soc. v. v.” Twelve years later the Second Circuit took a completely different approach in Indussa Corp.2d 806 at p. See.D.

Supreme Court held that a foreign jurisdiction clause in a freely negotiated. 1090 (S.). Alas. 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 M. 928 (4 Cir.D.D. 1999). See also Hartford Fire Ins. The freely negotiated agreement must be unaffected by fraud or undue influence or overreaching bargaining power.”). 1972 AMC 1407 at p. Chemical v. [2002] ETL 57 (S. aff’d without opinion sub nom. 2002 AMC 314. See also Union Insurance Society of Canton v. This followed the English tradition of giving effect to jurisdiction clauses.112 recognized a jurisdiction clause giving jurisdiction outside the United States. Ranborg. 2002).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.V. see Hartford Fire Ins.G.H.S. however. M/S Bremen (and Unterweser G. for example. 1981). Elikon 642 F. 3) fundamental unfairness of the chosen law depriving the plaintiff of a remedy or 4) a strong public policy of the forum.Y. v. citing Allen v.. [2002] ETL 57 (S. Tokio Express.3d 51 at p. 15.D. 113 407 U. pointing out that COGSA was not involved in that case. M. 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. instead. 531 (D. 1982 AMC 588 (4 Cir. Zapata OffShore Co.S.b. 2002). 2002). v. Compare with Reed & Barton Corp.3d 923 at p. 1988 AMC 318 at pp. 2002 AMC 314.D.24 2) Foreign jurisdiction clauses presumptively valid A major change in judicial attitudes towards foreign forum selection by contract occurred. S. international contract should be enforced. v.2d 721. as grounds of non-enforcement of a foreign forum selection clause: 1) fraud or overreaching.A. 462-463. 1580-1581.”)..S. 1998) (“All and any claims and disputes under the Bill of Lading shall exclusively be referred to [a]rbitration in Bremen [Germany] . M/V Berane 181 F.111 The United States Supreme Court. The U. 2334-2335 (11 Cir. in a matter which was subject to suit simultaneously in England. supra. 2002 AMC 528 at p.S. v. Inc. 210 F. S.V. The same hostility was demonstrated with respect to foreign arbitration clauses. [1968] 2 Lloyd's Rep. M/V Sersou 1999 AMC 2352 (S. 53 (2 Cir. M/V Wesermunde 838 F. 1972 AMC 1407 (1972) This was a freely negotiated private international agreement for towage. Acciai Speciali Terni USA Inc.D. v. 1977).2d 372.2d 372. Co. N. Although the clause provided that disputes “… shall be determined by the Court of Bremen”. by which the parties simply agree to the jurisdiction of a specified court without expressly excluding jurisdiction elsewhere.m. Md. Tokio Express 1999 AMC 1088 at p.115 A jurisdiction clause may still be Finnrose 826 F. 1442-1444. which obligates the parties to the bill of lading (or other contract) to litigate in one specified court. Co. 158 (C. 156 F. M. 1479 (S.S. v. 1987). Attiki Importers 22 F. in an international towage case. Lucent Technologies. Lloyd’s of London 94 F. and relied on Indussa Corp. 114 See John Boutari & Sons v. Supp.Y. both the American and English Courts ordered suit in England under the same clause in the same matter.N.. the Court refused to follow Bremen. N. Supp. State Establishment for Agricultural Product Trading v. unless the claimant could show convincing evidence that the clause was unjust or unreasonable or was the product of fraud or overreaching or was contrary to a strong public policy of the forum. 111 407 U. 1988 AMC 2328 at pp.2d 1576 at pp. 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” . See.2d 458 at pp. 1994) and other authorities collected there.b. In the case at hand. Novocargo USA Inc.114 as opposed to the merely “permissive” clause. v. the mere use of “shall” did not make the clause “mandatory”.2d 1441 at pp.Supp.Y. A bill of lading of course is not freely negotiated but a standard-form contract. 156 F. 678. M/V Gertrude Oldendorff 204 F. 2002 AMC 1477 at p.Y.Supp.) v. 320-322 (5 Cir.Y. 1418 (1972). v. Ferrostaal. Zapata Off-Shore Co.3d 355 (2 Cir.H. Inc. 1 at p. Novocargo USA Inc. N. Central National-Gottesman. 1. 2002).m. 2d 675 at p. N. Sun Castor 1978 AMC 1756 (D. 1988). Inc. v. as it did not exclude jurisdiction elsewhere or employ other mandatory venue language. 1996) and listing. 112 (The Chaparral) Unterweser Reederei G. 115 For an example of a purely “permissive” forum selection clause.

travel expenses. Dist. Lines. in order to litigate in the designated court. . 596-597. 2002 AMC 1477 at p.2d 1226 at p. 183c. by a 5 to 4 majority. 491 (3 Cir. M/V Tramper 263 F. 120 513 U. Supp. The argument that enforcement of a jurisdiction clause should be denied where the clause required plaintiffs to incur substantial “transaction costs” (e. 2002). where the Court found to be mandatory. v. was rejected by the Supreme Court in Carnival Cruise Lines. Vogt-Nem. 2004). Inc.D..D. rather than permissive. 459. that the words “shall” or “must” are not essential to the mandatory character of the clause. of the Southeast v. 79 (2000). Supp. v. Hanover Intern. Ct. Cal. Fla. 119 See. v. AMC at pp.2d 454 at p. Shute.K. Aktiengesellschaft Fur Industrie Versicherungen 188 F. weaken.” (Central National-Gottesman. for example. M/V Tramper 263 F. Tokio Marine and Fire Ins. that the Court. 2003). as the first sentence contemplated.118 More recent decisions have similarly downplayed the relevance of inconvenience in forum selection clause analysis. 585. v.. 2002). Inc. Inc. Note..2d 1226 at p. 2001 AMC 2417 at p. 117 499 U. 2004 AMC 769 (Fla. 2003).27 (N. Hartford Ins. found the arbitration clause in that case to be enforceable.g.S. Co. 867 So. but merely permitted. 2004). it also qualifies that provision by an exception (e. which may be just as mandatory where “will” is used. 46 U. which made it unlawful for the owner of a maritime passenger carrier to "lessen. 118 Ibid. 1995)).Appx. Appx. 1231. airfare and hotel bills). 2002). 2030 (S.N. 678. Burns v. 24-25 (N.S. N. Cal. M/V Gertrude Oldendorff 204 F. 2001). an exception giving the carrier an option to sue the merchant elsewhere than in the courts of Hamburg. COSCO 2004 AMC 1048 at pp. Inc. however. Ltd. permitting the carrier to sue the merchant in the latter’s place of business). in its decision in Green Tree Financial Corp. 4 District. 2003 AMC 2608 (N. 1991 AMC 1697 (1991). M/V Pergamos 1996 AMC 2022 at p.D. 2422 (D.g. . or avoid the right of any claimant to a trial by a court of competent jurisdiction.J. aff'd 36 Fed.” The second sentence was held to be a qualification on the first sentence.116 Because foreign jurisdiction clauses and agreements are now presumptively valid in the United States.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.D.25 mandatory. because no evidence on the prohibitive expense of arbitrating had been adduced by the party seeking to circumvent the agreement. however.Y. at pp..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).S.2d 1191. N. or “[a]ny disputes under the Bill of Lading to be decided in London according to English Law. See Vogt-Nem.. and related inconvenience. 1050-1051 (C. where in addition to providing for the exclusive jurisdiction of a given court. an arbitration agreement could be held unenforceable. the United States Supreme Court. Mitsui O. 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…. which did not vitiate the mandatory character of the clause. v. Inc.D. Radisson Seven Seas Cruises. 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. Supp. The relevant enactment in this case was the Limitation of Vessel Owners’ Liability Act of 1851. 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 675 at p.D. v. Inc. – Alabama v. 2003 AMC 21 at pp.S. 121 Ibid at p.119 Nevertheless. Note. Supp.Y. 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. U. The case concerned a consumer finance contract containing an arbitration agreement which omitted any details regarding filing fees and arbitration costs. Co. Hapag-Lloyd Container Line 2003 AMC 1175 (S.C. Cal. Ltd. v. 2002).D. App. 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. 116 See. Randolph. 1479 (S. Barbara Lloyd Design. 2003 AMC 21 at p. however..S. Intermetals Corp. 1704-1705. rather than permissive. 1233.”. for example. 92. v.

26 can demonstrate that the costs of compliance with the provision in question would prevent it from “effectively vindicating [its] federal statutory rights in the arbitral forum”.122 3) Foreign arbitration clauses held presumptively valid

Both Bremen123 and Carnival Cruise124 paved the way for the U.S. Supreme Court’s landmark decision in Vimar Seguros y Reaseguros S.A. v. M/V Sky Reefer,125 upholding the enforceability of foreign arbitration clauses in bills of lading, and effectively overruling the Indussa126 line of cases. The Sky Reefer decision applies equally to foreign jurisdiction clauses, because Justice Kennedy held foreign arbitration clauses to be “… but a subset of foreign forum selection clauses in general.”127 Sky Reefer involved a shipment of fruit from Morocco to the U.S. under a bill of lading calling for Japanese law and requiring cargo claims to be arbitrated in Japan, whose only connection with the case was that it was the country of the time charterer of the Panamanian-owned carrying ship. Two main arguments were raised to contest the foreign arbitration clause: 1) that the clause lessened COGSA liability by increasing the transaction costs of obtaining relief; and 2) that COGSA might not be applied by the Japanese arbitrators. With respect to the first argument, the Supreme Court found that sect. 3(8) of COGSA (46 U.S.C. Appx. 1303(8)) precluded the lessening of the carrier’s or the ship’s liability for loss or damage arising from negligence, fault or failure in their duties or obligations, but that this prohibition of the reduction of “explicit statutory guarantees” was quite distinct from the question of the procedures for enforcing them and the “forum in which they are to be vindicated”.128 In addition, Carnival Cruise129 had rejected high transaction costs and associated inconvenience as reasons for refusing to enforce forum selection clauses, as English courts had also done long before in interpreting the Hague Rules.130 Enforcement of the arbitration clause in the case at bar was also found to be in keeping with the objects of the Federal Arbitration Act,131giving effect to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New

Ibid at p. 90. 407 U.S. 1, 1972 AMC 1407 (1972). 124 499 U.S. 585, 1991 AMC 1697 (1991). 125 515 U.S. 528, 1995 AMC 1817 (1995). The majority decision was supported by seven justices to one (Stevens, J.), although Justice O’Connor issued a separate, concurring opinion. 126 377 F.2d 200 at p. 202, 1967 AMC 589 at p. 593, [1967] 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.
123

122

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.”
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28

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, [1967] 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, [2002] 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).
138

137

1703 (1991).C. International Marine Underwriters C. 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…. 534. 767 (S. M/V Kasif Kalkavan 989 F.2d 787 at p. Atlantic court “appears to have wholly ignored” the reference in 46 U.” (ibid. 2955-2956. v. Similar positions have been taken by district courts in the Second Circuit.146 The Ninth Circuit.V. ibid.S. 498 at p. 131 F. 1998). which they have acquired by the suit already taken. Supp. Co.S. cert. 1998 AMC 765 at p. DSR Atlantic. 1998). 498 at p.Y.145 for example. criticizing the Ninth Circuit’s view. Supp. 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. of Canada v. of Canada v. 528 at p. Inc. U. 499. F. Co. M/V Kasif Kalkavan 989 F. 1303(8)) to the ship’s own liability. AMC at pp. N. following M.” 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.S. Supp. In Tokio Marine & Fire Ins. however. Cho Yang Shipping Co. 515 U.S. took the opposite position in Fireman’s Fund Ins.D.. Supp. M/V Sky Reefer. 131 F. M.Y. v.S. See Allianz. 1821 (1995). 1998 AMC 765 at p.U. the Eastern District of Virginia. Inc. however. International Marine Underwriters C. Shute.2d 787 at p.. v. 2955 (E. 148 In Allianz Ins. This is particularly true in actions in rem.U.S. 794. 147 131 F. 1997). 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).S. COGSA. M/V Turquoise. S. 2d at p. citing The Sky Reefer 515 U. Therefore the mere fact that the forum selection clause appears in the standard form bill of lading does not render it invalid.S. Appx. 921 (1998). 1998 AMC 583 at p.R. See. Atlantic. Atlantic on the point. N. Allianz Ins.R. 585. The Supreme Court upheld a foreign arbitration clause even though it appeared in a ‘standard form bill of lading. Co. 2001).A.’ See Vimar Seguros y Reaseguros. See also Fireman's Fund Ins. 1995 AMC 1817 at p. 593. the unavailability of an in rem action in the designated foreign forum is irrelevant to the enforcement of the forum clause. Va. Cho Yang Shipping Co. v.147 holding that this purely “procedural” difference between American and Korean law was not a lessening of the “specific liability” imposed by COGSA. 499 U. 1818 (1995). Co. over whether the lack of in rem process in the selected forum abroad precludes enforcement of the jurisdiction clause.C. Carnival Cruise Lines. however. 767 (S. 521 U. however. 2000 AMC 2947 at p. 1998).D. v. 499. Supp. S. The Supreme Court also held that a ‘nonnegotiated forum-selection clause in a form ticket contract’ is enforceable against a consumer. 2955 (E. under Rule 4(m) of the Federal Rules of Civil Procedure). 1339-1340. 794. D. But see also Hyundai Corp.D.S. where the Court said that the D.D. but that it merely presented “a question of the means of enforcing that liability.).”148 145 146 2001 AMC 1692 (D. Ltd. 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. 530. 528.Y.R. v.V. v. 1991 AMC 1697. 1998 AMC 583.3d 1336. v.. . Note.S. 1995 AMC 1817.” b) The parties should not lose rights already acquired A change in jurisdiction should not cause the parties to lose rights. 2000 AMC 2947 at p. M/V An Long Jiang 1998 AMC 854 (S. 131 F.3d 1336 at pp. 2000). 1339 (9 Cir. 794. 2000).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. American courts appear divided. M/V D. 587 (9 Cir. denied. Co.D. N. Va.A.

1974).150 the Court declined jurisdiction “subject to the provision that none of the parties be prejudiced as to any rights they had on . M/V Kapitan Byankin 1996 AMC 2754 at p.D. 1966). N. Co. 150 149 . N. v. M/V Hyundai Freedom 1999 AMC 1603 at p. Margit. Ltd. S. None of the parties had offices in New York and the bill of lading called for suit in Italy under Italian law. 324 (S. Co.Y. 508. however. Lauro Lines. 153 277 F.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.”149 In Hartford Fire Ins. Supp.D. order the defendant to waive the statute of limitations in the chosen forum abroad.Y.D. 1996). 1975)..152 In Sherkat Tazamoni Auto v. 322 at p. 2124 (W. 154 1966 AMC 1217 (S. N. 2758 (N. where the bill of lading includes a clear and mandatory foreign jurisdiction or foreign arbitration clause covering the dispute in question. the date of filing of this lawsuit.Y. 1999).3d 24 at p.S.30 If the court is concerned that rights may be lost. 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. 1974).1968 AMC 328 (S. Inc. Hellenic Lines. 155 387 F. 33.D.. in such a situation.N. and the cargo claimant deliberately takes suit in another court despite that clause.D.D. N. See also New Moon Shipping Co.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.Y. Supp. court.S. Nor will the U. it is doubtful today whether the mere inconvenience of the clause Snam Progetti v. Rotterdam or Oslo. decisions tend to indicate that there is no point in changing jurisdiction if the new jurisdiction is inconvenient to the parties and to witnesses. of America v. v. 1976 AMC 212 at p. 152 Gulf Oil Corp. M/V Royal Container 30 F. Retaining jurisdiction would have been unfair to the carrier who was willing to defend the action in Iran where most of the evidence and witnesses were located.Y. 1997).Y. and without taking any steps to protect the running of time in the designated forum. v. Co. Cal. 1998 AMC 603 [DRO] (2 Cir. v. Supp. 501 at p. 151 Great American Ins. Man B&W Diesel AG 121 F. In Snam Progetti v.” Where there is a foreign forum selection clause in the bill of lading. 1999). Wash. 1605 (S. The purpose of a change in jurisdiction is to provide cheaper. 1967). 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. Orient Overseas Line. N. 1999 AMC 1805 (S. In the S. 322 (S. 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. Supp. 462. Chiyoda Fire & Marine Ins.151 c) The convenience of the new jurisdiction is less important today Older U. Lauro Lines 387 F. Carnival Cruise and The Sky Reefer.2d 661..154 after the shipowner had petitioned in New York to limit its liability following a total loss at sea.S. In view of the decisions in Bremen. however. Sound Around Electronics. quicker and more convenient justice. Gilbert 330 U.D.D.

1991 AMC 1697.D. Cal. 407 U. Nevertheless.S. Co.S. 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. 157 407 U. Thus. and the relative burden on the carrier. 536. Va. Shute that the high “transaction costs” of suing in the contractual forum did not furnish a sufficient reason for not enforcing the forum selection made by the parties. the size of their claims.. v. 1823 (1995).D. court to stay proceedings conditionally or to dismiss them. the Bremen Court concluded that a ‘forum clause should control absent a strong showing that it should be set aside. 1 at p. in either case. 518 (1974). v. 1972 AMC at 1419). 1418. See also Allianz Ins. Alberto-Culver Co. or repugnant to a strong public policy of the U. 2000 AMC 2947 at p.. 528 at p. or tainted with fraud or overreaching. Ltd. 2758 (N. 1996).Y.2d 787 at p.31 to one party to the contract would permit a U. Inc. 1972 AMC at 1412. forum. 18.D. 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. 2956 (E. 2000). Shute. Cal. Supreme Court in Bremen.156 In this regard.’ 407 U.S. 585. 506. 2004). inconvenience can be considered only if it is grave enough to render the clause unenforceable as being unreasonable or unjust. as was held in Bison Pulp & Paper Limited v. accord Scherk v. the U. N. 2031-2032 (S. 159 1996 AMC 2022 at pp.D. Ltd. 15. Co. where the difference between forum non conveniens dismissals and dismissals for improper venue (because of a foreign forum selection clause) was emphasized. or unreasonable to hold that party to his bargain. ‘the party claiming (unfairness) should bear a heavy burden of proof. at 7. at 17. 1702 (1991) (quoting Bremen. Co. Supp. the ultimate decision depends upon the exercise of judicial discretion..S.. Rather. V. reinforced the limited role that the factor of “inconvenience” now plays in assessing the enforceability of such a provision in American courts. 1972 AMC 1407 at p. Absent that there is no basis for concluding that it would be unfair.” Proving so high a level of inconvenience is no easy task. 1995 AMC 1817 at p. 1995).S. see Great American Ins.S. 131 F.’ ‘ Carnival Cruise Lines. 156 . 1050 (C.S. 1420 (1972). M/V Kapitan Byankin 1997 AMC 2754 at p. 592. of Canada v. 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. Cho Yang Shipping Co. 499 U. even when the forum clause designates a remote forum for the resolution of conflicts. 417 U. 795.S. COSCO 2004 AMC 1048 at p. unjust.” The finding in Carnival Cruise Lines v. 158 515 U.S.” In this regard. Tokio Marine and Fire Ins.

v. U. M/V Coral Halo 2004 AMC 273 at p. Croatian Line 918 F. 1996 AMC 1189 at p. Although such efforts usually fail. 3(8) of U. however. M.2d 200 at p. 961 at pp.D. 201 F. [1967] 2 Lloyd's Rep. 1999 AMC 1805 at p. v. 2002 AMC 1477 at pp. thus reducing litigation costs and the risk of inconsistent judgments) is refused as a ground for refusing to enforce a jurisdiction clause. 1806 (S. however. 3(8) In Indussa Corp. would not reduce the carrier’s liability contrary to COGSA). La. 2000).S. 595. permitting suit only against the shipowner as carrier. 1999). N. Supp.V. the vessel owner had waived enforcement of the forum selection clause by filing a claim in the pending U.S. 663. 3(8) of U. 2757 (N. Conti Singapore 2003 AMC 667 at pp. N. 1996) (plaintiff failed to refute defendant’s showing that Australia. the argument was accepted. 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 Korean clause was upheld. Court of Appeals decided that a foreign jurisdiction clause was invalid generally. see In re Rationis Enterprises. under which foreign jurisdiction and foreign arbitration clauses are deemed presumptively valid. v. Inc. 1303(8)). 160 . because English courts applying English law would uphold a demise clause in the bill of lading. 3(8). M. The U. S. 162 377 F. District Court therefore kept jurisdiction. 165 But see also Hyundai Corp.. M/V Kapitan Byankin 1996 AMC 2754 at p. for example. the Japanese ship manager agreed to waive the demise clause in the bill of lading. Cal. 680.Y. v. Gertrude Oldendorff.D.S.32 In most cases. 204. D. Va. Supp. Inc. 161 For an example of such serious inconvenience.S. Appx.163 they can still be successful on occasion. for example. 2003). 1967). 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. 164 204 F. 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. 105 (2 Cir. 894 (S. 101 at p. Street. notwithstanding the demise clause in the bill. M/V An Long Jiang 1998 AMC 854 at p. 1996) (a mere “conclusory allegation” that Croatia was “politically unstable and jurisprudentially immature” was insufficient to set aside the Croatian forum clause.3d 432 (2 Cir.164 for example. as judicially interpreted by American courts.A. 856 (S. In Nippon Fire & Marine Ins Co.2d 661 at p. In Central National-Gottesman. the contractual forum. 966-967. where it appeared that Croatia applied the Hague Rules). v.162after referring to COGSA. would permit suit against the time charterer who issued the bill as well as the shipowner.S. M/V Royal Container 30 F. an English law and jurisdiction clause was found unenforceable as lessening the liability of the carrier contrary to sect.165 See.Y.S. aff’d without opinion. COGSA. 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.D. 1998). Supp. N. 1999). where although Korea (the foreign jurisdiction specified in the bill of lading) would permit suit against only the shipowner or the charterer but not both.S. “judicial economy” (the greater convenience of having all disputes settled in one forum. 1967 AMC 589 at p.C.V. COGSA. Since Bremen and The Sky Reefer. Sound Around Electronics v.160 Where many claims were involved in a limitation proceeding.Y. sect. however. 2002). v. the U. 2d 675 at p. so as to avoid the risk of non-enforcement of the Japanese law and forum clause in the bill.Y.S.D. 1196 (E. Great American Ins. The Court noted. N. Inc. Pasztory v.161 d) Must not contravene sect. of Panama 1999 AMC 889 at p. action and availing itself of the limitation proceeding. whereas U.D.S. 283 (E. 163 See." Accord: Glyphics Media. so that giving effect to those clauses would “fragment this case beyond recognition”.Y.D.D. Ranborg. 674-675 (S. N. Inc. 1483-1484 (S. 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. COGSA (46 U. because it would relieve or lessen the carrier’s liability contrary to that provision. Co.

In Gibbs International Inc. 167 166 . [2000] ETL 509 (E. have been uncertain whether particular bill of lading clauses. where on-deck stowage constitutes.S.. because it appeared that Korean law would not grant the cargo underwriter claimant an action in subrogation. 2000 AMC 1717 at p.Y. Cal. 1999). unless the carrier could prove that the deviation (i. 91. 2166 (S. COGSA. La. v. S. and the shipper would be deemed to have consented to deck stowage. 2003).C. Inc. 1998). There are also decisions in which American courts. v. 170 For a similar European decision. 574 at p. Glyphics. art. 168 See. even if negligent.D. v. Nippon Fire & Marine Ins. 2000). 675 (S. M/V OOCL Faith. would not break its package limitation under German law. 2960 (D.S.A. 2001). M/V Jin He 1999 AMC 1700 at p. M/V Spring Wave 92 F. 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.D.33 In Heli-Lift Ltd. Co. In these cases. for example.S.167 a Korean jurisdiction clause in a bill of lading was held to be invalid.D.S. v. N. 1997 AMC 2954 at p. where a Japanese forum selection clause was found null and void and unenforceable.D.. see Rechtbank van Koophandel te Antwerpen. under sect. M/V Ocean Sunrise 2003 AMC 2200 (E. [2002] ETL 453. Co. permitting the carrier to stow a helicopter on deck. Sanko Spruce 1999 AMC 366 (D. Inc. facing contradictory affidavits from foreign law experts. v. the carrier had intended to cause the loss or had acted recklessly with knowledge that the loss would probably occur. for example. June 18. 169 See. The American court noted that such a clause would be upheld in Germany. Conversely. 576. 3(8) of U. v. the deck stowage) was reasonable. Conti Singapore 2003 AMC 667 at p. v. 2002 (The Dymphna. unless he had immediately objected to it on receiving the bill of lading.D.170 2003 AMC 30 (C. v.Y. 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. M/V Nedlloyd Holland 1998 AMC 2163 at p.166 a bill of lading calling for German law and Hamburg jurisdiction contained a general liberties clause. 1998). would or would not in effect be construed so as to relieve or lessen the carrier’s liability contrary to sect. unless consented to expressly by the shipper or permitted by a general port custom. in the U. N. See also Kanematsu U. if and when interpreted by the designated foreign forum applying the designated foreign law.S. La. Majestic Electronics.J.169 there must be proof positive that the foreign court.V. if it could not be established that those courts would apply the obligatory Hague/Visby Rules enacted by Belgium’s Maritime Law. 1701(C. the foreign forum selection clause has been denied enforcement. Sligan Plastics Corp. unless cargo could prove that in doing so.e. 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. Cal. prima facie. 1719. M. Union Steel America Co. The carrier’s act in stowing the cargo on deck. courts would be void by Belgian law.168 One point is very clear in this regard. 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. will in fact lessen the carrier’s responsibility below the COGSA threshold. Inc. N. which the insurer would enjoy under COGSA. 3(8) of COGSA. 2003). Federal Ins. Supp. 1997). COGSA package limitation for resulting cargo loss or damage. where a Belgian Court decided that a bill of lading clause granting jurisdiction over cargo claims to U.D. applying its law. the foreign jurisdiction clause was denied enforcement on grounds of public policy. an “unreasonable deviation” from the contract of carriage.

sect. See Effron v. Inc. however. See also Restatement (Second) on Conflict of Laws. cert. Jockey v. such as by fraudulent means. Supp. 1689 (2 Cir. 1 at p.176 Public policy must be “strong” in order to defeat a choice of forum provision.. 965 (5 Cir. 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. in Roby v.S. 1418 (1972).S. Dk. Inc. Inc. as where one party takes unfair commercial advantage of another. 911-912. 2617-2618. N. Mitsui O. 2618-2619. Dist.2d 675 at p. 510 U. 1966). 173 996 F. Swedish American Line. 1996 AMC 253 at p.S. of Lloyd’s. Inc. Ltd. 1997 at p. 451. Sun Line Cruises. Gertrude Oldendorff 204 F. the basic criterion (which is perhaps a summation of all the other criteria) in refusing or accepting jurisdiction has been that it be “reasonable”171 for the parties to litigate in the chosen jurisdiction.3d 956 at p. 678.V. Inc. 909 at pp. 1363 (2 Cir.S. 80. 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. Corp. 1972 AMC 1407 at p.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. N. 1955).2d 1353.Y. 1218 (S. Supp. or violation of the U. for example. (2) if the complaining party ‘will for all practical purposes be deprived of his day in court. 7 Ed. (3) if the fundamental unfairness of the chosen law may deprive the plaintiff of a remedy. 2002 AMC 1477 at p. M/V Southgate 2000 AMC 399 at p. N. 2003).2d 447 at p. Corporation 121 F.Y. citing Haynsworth v.V. at pp. Leverkusen 217 F. or (4) if the clauses contravene a strong public policy of the forum state” (citations omitted). Conti Singapore 2003 AMC 667 at p. fraud or overreaching. 172 407 U. 2381 (S.D.Y.D. 1955 AMC 1687 at p.D. 2003). 2002). 2002 AMC 2377 at p. M. Subsequent U. 171 .. Supp. and is also usually dismissed as a ground of nonenforcement. Ct. ibid. 672 (S.2d 806 at p. Margit 1966 AMC 1217 at p. Central National-Gottesman. v. 177 Barbara Lloyd Designs. 175 Barbara Lloyd Designs. Takemura & Co. The fact that plaintiffs in many jurisdictions are permitted to plead by deposition often precludes acceptance of the “day in court” argument. 1129. ibid. v. S. 1999). N. v. 1993). 224 F. 1479 (S. 174 See also Asoma Corp.S. are rarely accepted as grounds for refusing enforcement to an otherwise valid forum clause in the United States.3d 7 at p. 2003 AMC 2608 at p. What is reasonable is a question of fact for the trial court to decide. Tsuneshima Maru 197 F.”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”. 400 (S. 1961). Lines Ltd. 808. 2616 (N. The Second Circuit. 945 (1993). v. 11.Y. forum’s public policy172).Y.D. M. 15.S. 2002) (bill of lading cases relying on the same criteria).S. 1995). 259 (2 Cir.D.34 e) Reasonableness For a great many years. N. 67 F.177 Muller & Co.’ due to the grave inconvenience or unfairness of the selected forum. at pp.K. decisions have generally not strayed far from the three very general grounds of unenforceability articulated in Bremen (injustice or unreasonableness (unfairness).D. S. N. v. 1997) and Black’s Law Dictionary. 1220 (S. 176 Barbara Lloyd Designs. Glyphics Media. which factors. 1971. v. denied. 1962 AMC 1217 at p.. Inc.Y.

the port of discharge. Co.2d 487 at pp.. Dismissal on forum non conveniens grounds was also denied.183 On the other hand. Supp. Fritz Transportation International.” Mere procedural differences between trial in the designated court and trial in the U. 1694 (D. as security.e.D. 183 Ibid.Y. the port of loading. Ltd. The clause failed to specify when the carrier had to exercise its option and when the “default” (i..” 181 2003 AMC 667 (S. with other authorities cited there. were all dismissed as grounds of non-enforcement of the Brazilian jurisdiction agreement.2d 787 at p. 2004). held to be “unreasonable”. unreasonableness was found in the “floating choice of law and jurisdiction clause” considered in LG Electronics Inc.35 In Allianz Ins.S. Co. 2950 (E. M. the place of delivery. where the carrier’s option to sue in either Mexico City or Rio de Janeiro was upheld. and the alleged difficulty of getting money out of Brazil. M/V Conti. 182 See also Tokio Marine and Fire Ins.2 million U. 489-490): “speculative concern regarding fairness of a foreign court. 184 2002 AMC 106 (N. Cal. v. M/V Turquoise 2001 AMC 1692 at p. Nor did the provision require suit to be brought exclusively in any one specific forum. the transshipment port or the place of delivery). 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”. the bill of lading clause specified United States law and U. See also Tokio Marine & Fire Ins.181 the allegedly “deplorable state of India’s court system”. which parties must have considered when negotiating the agreement.. Ltd. Jalisco 903 F. 2001). 1995).D Cal.. Va. Supp.D. v. COSCO 2004 AMC 1048 (C. in Glyphics Media. was nevertheless not unjust.S. 20. because the forum selection clause in the bill of lading required that suit be brought exclusively in one or other of those fora. 2003). S.) forum applied. 110 (N. particularly as regards delays for trial.D.179 the unavailability of a jury trial in Brazil. provision of an adequate remedy for the aggrieved party. 770 (S. 2000). and the convenience and relatedness of the forum to the contract. although more inconvenient for one party. the lack of trial by deposition. does not justify refusal to enforce the clause.V. of Canada v. 186 2002 AMC 106 at p.180 Similarly. 673. 18 at p. N. Cho Yang Shipping Co. the presence of bad faith.S. 180 The Sixth Circuit noted (ibid.C. 185 Compare with Industria Fotografica v.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. at p. v. Co. 2000 AMC 2947 at p. U. Cal. 179 973 F. 1992).D. the awarding by Brazilian courts of judgments in cruzeiros rather than in dollars. 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. jurisdiction. v.184 In that case. the slowness of the Brazilian judicial process. 178 . 2001). In Interamerican Trade Corp. Tex.D. 2001). 790. Inc.S.185 The clause. the requirement to post over $2.178 the Court noted that: “Additional considerations include the relative bargaining power of the contracting parties. Other evidence indicated that Brazilian courts were fully competent and that trial there. Companhia Fabricadora De Pecas. 1996 AMC 769 at p.186 131 F. 489-490 (6 Cir. was therefore not enforced. and the fact that foreign witnesses were permitted to testify by way of affidavit in India. have generally been found insufficient to constitute “unreasonableness” justifying sidestepping of the designated forum. were invoked in enforcing the jurisdiction clause. at pp. v. was not an adequate ground for nonenforcement of an exclusive Indian law and forum selection clause in an ocean carrier’s bill of lading.

M/V Finnrose 826 F. most modern foreign forum selection clauses are not limited to claims against the master. Lauritzen A/S v. overrules the broad reading this Court gave to the clause in Monrosa. Monrosa v. International Maritime and Admiralty Law. 189 359 U. where the jurisdiction clause in the towage contract stipulated that:190 “…(a)ny dispute arising must be treated before the London Court of Justice".2d 1441 at p. 429-431. 1422. 321 (5 Cir. where the clause was so much more narrowly drafted.ca/maritime/arrest. 1983) re Supplementary Rule C.” The clause was held to be insufficiently specific to cover the in rem claim and thus the District Court could keep jurisdiction. 1995). 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. 2003 at pp. 406407.. The bill of lading jurisdiction clause did not specifically refer to in rem proceedings. The Vessel Bay Ridge 703 F. Co. 2. 1988 AMC 318 at p. Geneva 2003 AMC 2511 (S. See also Tetley. 1408 (1972). AMC at p. Dias v. however. Accordingly. although reading: “No legal proceedings may be brought against the Captain or shipowners or their agents except in Genoa. 384.D. S.. 2003). it was held to be “unreasonable and unjust” to require the ocean carrier to defend the claim and cross-claims in two different districts.2d 381 at p. The admiralty attachment under Supplemental Rule B also gives jurisdiction. 408-409.mcgill. Zapata Offshore Co. owners or agents of the vessel. U. 1998 at p. See Tetley. 1972 AMC 1407 at p. See also Conklin & Garrett. Attachment and Related Maritime Law Procedures” (1999) 73 Tul. 2721 (9 Cir.S. ibid. Rev.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. Tetley. 1983 AMC 2719 at p.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. Mediterranean Shipping Co. S. 1959 AMC 1327 (1959). 1987): “Bremen. See also J. See Tetley. the language of the clause in the Carbon Black case was far different”. Dashwood Shipping. 1443. 20. 1933-1936 and on-line at http://tetley. “Arrest.A. at p. 1995 AMC 2730 at p.v. Supreme Court distinguished Monrosa. Fla. however..” 188 187 . The arrest of the ship in rem under Supplemental Rule C gives the Federal District Court jurisdiction. Ltd. 2 Ed. 180. the wording of the foreign forum selection provision has been held wide enough to encompass claims in rem as well as those in personam. and concluded that191 “…the language of the [Bremen] clause is clearly mandatory and all-encompassing.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. so the forum selection clause was not enforced. 418.United States A very particular problem arises in admiralty in respect to the enforcement of forum selection clauses.187 f) In rem . itself. 2732 (9 Cir. 191 Ibid. see also Alyeska Pipeline Serv. 1 at p.htm. at p.S. Ltd. The jurisdiction was also convenient to the parties. 944. 190 407 U.S. L. 1895 at pp. Inc. Indeed in M/S Bremen v.S. the U. but where the ocean carrier was also faced with crossclaims by co-defendant inland carriers arising out of the same facts.law. Carbon Black Export. Unlike the clause in Monrosa. Maritime Liens & Claims. v.

210 F. Ltd. Supp. Tokio Express. aff’d without opinion sub nom. M. 407 U. give effect to a clearly worded jurisdiction clause.3d 355 (2 Cir. The Court (at p. although it did not mention them expressly. Inc. 1090) also cited Industria Fotografical Interamericana v. 2000). and (8) the interests of justice in general. Supp.Y. . shall be brought before the Seoul Civil District Court in Korea" to encompass in rem claims. 199 See Norfolk Dredging Co. . See also International Marine Underwriters v. to German law as determined in the “Hamburg courts to the exclusion of the jurisdiction of the courts of any other place”.. g) Transfer within the U.199 131 F. 240 F. 1091. v. 498. Va.S. 21(2). . Wash. Norwegian Cruise Lines.V. 770 (S. Inc. 1268 at pp.N. M/V Kasif Kalkavan 989 F. Lucent Technologies.V. any claim or dispute arising hereunder or in connection herewith shall be determined by the courts in Seoul and no other courts. 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.) v. 1611 (E. provide useful rules and procedures when suit has been taken by an action in rem.Y.V. 193 1999 AMC 1088 (S. DSR Atlantic. 1998 AMC 583 at p. 1992. 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. 1." The Ninth Circuit interpreted this clause to include in rem claims. 1978. (5) the relative ease of access to sources of proof. 1984). 1998). Co v. 1999). 1972 AMC 1407 (1972).H. under this Bill of Lading . M. District Court pointed out that. 305 F. decline jurisdiction and dismiss the attachment or order the release of whatever security the defendant has posted.D. but only upon the defendant furnishing security to ensure payment of a subsequent judgment.D. although some other jurisdiction is more appropriate. Supp.37 Again in Fireman's Fund Ins. 197 Signed at Hamburg.2d 532 at p.196 The Hamburg Rules.S. 194 Ibid.D. Halla Maritime 583 F. 198 28 U.192 the clause stated: " . and in force November 1. .b. 196 Teyseer Cement v. 1998 AMC 765 (S.3d 1336 at p. Procs.197 at art. 18 at p. see also In re the Complaint of American President Lines. (3) the availability of process to compel the presence of witnesses. the U.2d 352. M. 1985 AMC 356 at pp. Tokio Express.” 195 M/S Bremen (and Unterweser G.195 so can a court. The parties agreed to the jurisdiction choices in the contract.194 In the same way that a court. 2002): “These criteria include: (1) the convenience of the parties." For an example of the use of this provision in a case involving a forum selection clause (in a cruise passenger ticket). The suit is transferred. Code sect. M.S. 1995). which has acquired jurisdiction by an admiralty attachment (under Supplemental Rule B). 1995 192 . supp. in the interest of justice. In Reed & Barton Corp.S. Supp. Tex. .V.D. 2002 AMC 1608 at p. a district court may transfer any civil action to any other district where it might have been brought. 1337. 584 (9 Cir. 359-360 (W. this clause was broad enough to cover in rem claims. (7) where the events in issue took place. (6) calendar congestion. 535.Y. see Lurie v. (citations omitted).D. 2004). 20. (2) the convenience of material witnesses. (4) the cost of obtaining the presence of witnesses. N.m.193 where the clause similarly subjected “… any claim or dispute arising under this Bill of Lading”. Convenience is the main criterion. 2004 AMC 1278 (S. 1404(a) provides: "For the convenience of the parties and witnesses. 1996 AMC 769 at p. at p. 1270-1271. v. on March 31. 1997). N. which has obtained jurisdiction by an arrest in rem (under Supplemental Rule C) can nevertheless give effect to a jurisdiction clause and decline jurisdiction. . Lim. where the Court interpreted a clause that read "any and all action . Zapata Off-Shore Co.D. unlike the clause considered in Monrosa. Jalisco 903 F.

2158-2160 (C. D. 514. 341 (S.3d 1171 at p. 1991 AMC 302 (summary) (D. N. 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. 175 at pp.) and Adrian Briggs “The staying of actions on the .” 200 See. 1997) and other decisions cited there. third parties have been held bound by forum selection clauses in various types of contract. where freight forwarders or NVOCC’s (non-vessel-operating common carriers ) contract with ocean carriers.204 Those courts have the reputation of giving quick and fair justice and. for example. Dukane Fabrics Int’l Inc.Y. Gucci Am. v.” See 46 U. [1974] A. Supp. Hugel v. the existence of a forum selection clause. 32 F. 1980).N. Inc.A. 1989).S. for example. Schneider Freight USA Inc. Supp. for that reason AMC 2296. note 5 (9 Cir. N. and is a shipper in its relationship with an ocean common carrier. so that it becomes “foreseeable” that they will be so bound. the enforceability of the judgment.K.. S. 203 Indemnity Ins. Farrell Lines. [1973] 2 Lloyd's Rep. 629-630 (S. United States 883 F. Cho Yang Shipping Ltd. 203. 485-486 (W. 2303. N. Supp.38 5) Jurisdiction clauses and third parties In the United States. 436 at pp. 1175. 975 F. v. where Denning.R. L. v.J. Cir.D. 131 F. not as principals. 1998 AMC 334 at p. 1193-1194 (S.201 In particular. 2002). Compania United Arrows. Co. of Canada v. M/V Hyundai Liberty 294 F. 791. Va. 2001 AMC 2153 at pp.2d 206 at p. 2951-2952 (E. 2001).2d 509 at p.Forum Non Conveniens Introduction It was the practice and tradition in the United Kingdom to jealously guard the jurisdiction of its courts. v. v. Included are the original choice of forum.P.203 202 X. Zochonis (U. 493 F. Corporation of Lloyd’s 999 F. see Lord Wilberforce in The Atlantic Star. Co. [1973] 2 All E. Paterson. Co. 191-194 (H. 2002 AMC 1598 at p. 677 (S. Cal. of North America v. 551 at p. 890 F. For a useful history of the law of forum non conveniens in the United Kingdom. by his private stipulation. 1) The United Kingdom . 126.2d 118 at p. 858 F. 555 (C.Y.Y.Y. 2000). (Emphasis added). Inc.Y. 209 (7 Cir.200 Jurisdiction clause in marine bills of lading have been held applicable to third parties to those contracts (who. 197 at pp.).C. standard-sized reusable containers that can be quickly loaded on and off ships and onto trucks or other types of transportation. Glyphics Media. 1988) (perfume dealership contract).L. App. 1602 (9 Cir.D. 202 A NVOCC is “a common carrier that does not operate the vessels by which the ocean transportation is provided.2d 93 at p. L.) Ltd. 315 (S.V. but it is subject to the overriding principle that no one. Allianz Ins. depending on the case. consolidating small shipments from multiple shippers into large. but merely as agents of the shippers. Conti Singapore 2003 AMC 667 at p.C.D. v. Ltd. M. N. the relative familiarity of the courts with the applicable law. v. 1985 AMC 1192 at pp. 207-210. Supp. may be the owner of the goods.. 626 at pp. and the public interest in the local adjudication of local controversies.Y. Columbus Cello-Poly Corp. 204 The Fehmarn [1957] 2 Lloyd's Rep. 308. 2003).D. 1997) (contract for satellite communications services). can oust these Courts of their jurisdiction in a matter that properly belongs to them”. the shipper or the subrogated cargo underwriter). 2000 AMC 2947 at pp. Inc. 202 at p.D. Kukje Hwajae Ins. 201 See.2d 787 at p. See National Customs Brokers & Forwarders Ass’n v. 483 at pp. Inc.C. where they have been adjudged to be “closely related” to the dispute. the shippers have been held bound by the forum selection clauses of the ocean carriers’ bills of lading. 1993) (contract for membership in insurance market).D. citing Manetti-Farrow. 101. N.A. 1702(17(B). 1995). Other factors that inform the Court’s inquiry are intermingled with these considerations. Lucky Cat Ltd. See also International Private Satellite Partners. judicial economy. 1985). NVOCCs perform a function similar to overland freight forwarders. Hrelijin 600 F. 464-469. Supp.Supp.D.

206 The Atlantic Star [1974] A.or.” 207 [1974] A. 382 at p.R. [1936] 1 K. Pierre v. Lord Diplock added in The Abidin Daver [1984] 1 Lloyd's Rep.206 2) The modern regime . 339 at p.A. 341: “.C. that seems to me to recall the good old days. two conditions must be satisfied. He can seek the aid of our Courts if he desires to do so. 795 at p. 209 [1978] A. both for the quality of the goods and the speed of service. at p.A. [1973] 2 All E. Rockware Glass Ltd. 201. 175 (H.). but if the forum is England. 625 at p.).R.B. it is a good place to shop in. An offer to provide security was made after the proceedings had commenced.C.): “My Lords. [1985] LMCLQ 360. 436. 436 at p.). [1973] 2 Lloyd's Rep. 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. 181 (H. 175 at p. 197 at p. 454. when inhabitants of this island felt an innate superiority over those unfortunate enough to belong to other races.L. [1972] 3 All E. with all respect.” The next step was MacShannon v. 812.39 many foreign litigants have sought and still seek resolution of their commercial disputes in London either before the courts or in arbitration.” To which quotation. 709 (C.C.. 197.” Lord Denning's comment was specifically questioned “with all respect” by Lord Reid in The Atlantic Star. [1984] LMCLQ 227 and in a subsequent article “Forum non conveniens .C. as Kipling more forthrightly phrased it. It extends to any friendly foreigner. 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. 208 Ibid.J.R. [1973] 2 Lloyd's Rep. 453. 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. at p. and the question would be whether the defendants have clearly shown that to allow the case to proceed in England would in a reasonable sense be oppressive looking to all the circumstances including the personal position of the defendant.R.). 398 (C.U. [1973] 2 All E. 630 (H. . You may call this 'forum shopping' if you please. 181.K.an update”.L. at p. South American Stores (Gath and Chaves) Ltd. the passing of which many may regret. where Lord Diplock established two rules:209 “In order to justify a stay. 'lesser breeds without the law'.L.. 200. 446 at p. but their Lordships rejected the technical argument that they were not entitled to consider such an offer made after the commencement of proceedings. [1978] 1 All E. 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. Lloyd's Rep.R. A. 451. thereby modifying Scott L. 205 The Atlantic Star [1972] 2 Lloyd's Rep.” ground of ‘forum non conveniens’ in England today”. All E.'s statement of the rule in St. 705 at p.

L.): ""Every court has different procedures. there is of course authority binding on me which deplores any discussion or entertainment of those types of argument.R.R. in a foreign forum is to be based upon objective standards supported by evidence. 203. in the field of law with which this appeal is concerned.).. Nothing is gained by any discussion of the relative merits of various different procedures. 210 . declared in New Hampshire Ins." 212 [1984] 1 Lloyd's Rep. noted: “It is not appropriate. Kuwait Insurance Co. 211 More recently. Co.A.”211 The foregoing views. or reputation or standing of the Courts of one country as compared with those of another (cf. i. approving a statement by Hobhouse J. at p.” Finally in The Spiliada. 119 at pp.. 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.210 Lord Wilberforce. the balancing of advantage and disadvantage to plaintiff and defendant of permitting litigation to proceed in England rather than.A. MacShannon. in my opinion. nevertheless.L. 339 at p.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. is that judicial chauvinism has been replaced by judicial comity to an extent which I think the time is now ripe to acknowledge frankly is. or as well as. 214 [1987] 1 Lloyd's Rep. 196 at p. 126-127 (C. 343. 365 at p..J. to embark upon a comparison of the procedures. indistinguishable from the Scottish legal doctrine of forum non conveniens. 10. at p. The Al Wahab and The Abidin Daver. are lacking in one respect a reasonable balance between the interests of the parties . 202 (H.K.40 In The Al Wahab (Amin Rasheed Shipping Corpn. at p.). v.L.” Thus by its decisions in The Atlantic Star. The El Amria U. W.).. referring to The El Amria [1981] 2 Lloyd's Rep.and this feature was added by Lord Diplock in The Abidin Daver:212 “..L. or methods. 1 (H. in referring to a comparison of the quality of justice obtainable in England and elsewhere.L. in which the case may be tried more suitably for the interests of all the parties and the ends of justice.). and Amin Rasheed.e. 213 Ibid. the House of Lords had gradually adopted the doctrine of forum non [1983] 2 Lloyd's Rep. Lloyd's Rep. MacShannon.” Lord Diplock continued and summed up the change in the attitude of the English Courts:213 “My Lords. 215 Ibid. 361 at p. having competent jurisdiction. Strabag Bau [1992] 1 Lloyd's Rep. [1984] 2 W. 344. 375 (H. which is the appropriate forum for the trial of the action. Furthermore. Lloyd.L. per Lord Justice Brandon). v. 371 (C.). and The Spiliada.

The Benarty [1984] 3 W. Lord Goff formulated an authoritative approach to forum non conveniens: 217 [1969] 1 Lloyd's Rep. 158 at p. 229 at p.L.L. 4. For further commentary on these points. 1) [1998] 2 Lloyd's Rep. 227 The Sennar (No.b. 385. 119 at pp. 237 at p. 1082 at p. ECULine. 527-528 (H. 244 at p. 224 The El Amria [1981] 2 Lloyd's Rep.).). the English Court. v.).H.). 226 Unterweser Reederei G. Zapata Off-Shore Co. [1985] 1 Lloyd's Rep. Lord Brandon noted. The Sennar (No. 154-155 (C. [1994] 1 Lloyd's Rep 593 (P. 223 Donohue v. 2003 AMC 1280 at pp. Pakistan National Shipping Co. 237 at p.I. (1996) 141 A.R. The Iran Vojdan [1984] 2 Lloyd's Rep.L.C.R. 218 [1981] 2 Lloyd's Rep.C.C.A. 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. In the El Amria itself. 12851286. N. High C. 527 (H. 2) [1985] 1 Lloyd's Rep. Pakistan National Shipping Co.). 163 (C. In The Spiliada [1987] 1 Lloyd's Rep. 374 at p. 251 (C.A. [2003] 1 S. v. In this latter judgment. 2002.C.C. The rule has also been referred to in Australia. 221 [1981] 2 Lloyd's Rep. 425 at pp. Baghlaf Al Zafer v. despite the choice of a court in Alexandria. 283-290. including notably Z.A. [2002] 1 Lloyd’s Rep.V. Pompey v. [1984] 2 Lloyd's Rep. 225 The agreement must be valid and enforceable and the claim must fall within the scope of the agreement. Standard Chartered Bank v Pakistan National Shipping Corporation [1995] 2 Lloyd's Rep 365.). 10 (H. 242. [1994] 1 Lloyds Rep. 123-124 (C. 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. 119 at pp. 3 Ed. 171. but Brandon L. 324 at p. 242. (2) The discretion should be exercised by granting a stay unless strong cause227 for not doing so is shown. paras. 2) [1984] 2 Lloyd's Rep. (4th) 577 at pp. 605 (P.). 593 at p. for example. [1996] 1 WLR 1367 and The MC Pearl [1997] 1 Lloyd's Rep 566. v. Armco.). assuming the claim to be otherwise within its jurisdiction.). The Pioneer Container [1994] 2 A. 142 at pp. 459-460. no doubt with some satisfaction. 242.). At first this remarkable decision was not generally followed. how The El Amria had been cited by others. Baghlaf Al Zafer v. 2) [1984] 2 Lloyd's Rep. Citi-March Ltd. (No. 521 at p.m. 220 Proving that it is quite fitting to cite oneself.219 Brandon J. 1 at p. The Regal Scout [1984] 2 F. [1968] 2 Lloyd's Rep. jurisdiction was kept in England because the witnesses were English and related litigation had already commenced in 216 . 222 See The Pia Vesta [198411 Lloyd's Rep. Ibid. 219 [1969] 1 Lloyd's Rep. 229 (C.A. 851 at p..).4. The Pioneer Container [1994] 2 A. 380 at p.L. Armco Inc.L. 327. 450 at p. 586-587.216 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.C.A. The People's Insurance Co. 142 at p.23 at pp. The Eleftheria rule has been cited in Canada in Agro Co. of Canada v..L. See also The Nile Rhapsody [1994] 1 Lloyd's Rep 382 (C. in fact failure to cite oneself is often evidence that the previous statement was erroneous.). Ltd. (2003) 224 D.R. Civil Jurisdiction and Judgments. (The Humber Bridge) [1997] 1 Lloyd's Rep 72. ___ (Aust.).R.).41 conveniens. and the defendants apply for a stay. 1)[1998] 2 Lloyd's Rep. 154 (C.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. 856. see Briggs & Rees. 432-433 (H. is not bound to grant a stay but has a discretion226 whether to do so or not. 123-124 (C. 119 at pp. and in many more recent decisions.A. 3) The rule in The El Amria In the The Eleftheria.A. (No. 235 (C. 521 at p.). Neptune Orient Lines Ltd. The Eleftheria [1969] 1 Lloyd's Rep.. per Lord Bingham). See Akai Pty Ltd. 237 at p.J.A.222 reiterated by the House of Lords in Donohue v.A.A. 1095.L. 169 at p. See also The Sennar (No.). 324. 123-124 (C.21 to 4.

A. at p. 546 at pp.) and Kidd v. 586-592. see Ocean Sun Line Special Shipping Co. 2) [1997] 2 Lloyd’s Rep. 169 at p. High C. Hyslop [1993] 3 N. whether it differs from English law in any material respects.A.). van Heeren [1998] 1 N. the foreign time bar might be grounds for refusing the stay. 2002 at para. 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. 453 at pp. 76 at p.L.A. The Vishva Prabha [1979] 2 Lloyd's Rep. 1287-1293. 230-231 (Aust. see Society of Lloyd's & Oxford Members' Agency Ltd. Fay (1988) 165 C.A. 4. 288. (ii) be unable to enforce any judgment obtained. where the plaintiffs in a cargo claim failed . See also The Bergen (No. Bertola S.V. and why England is. 2) [1984] 2 Lloyd's Rep.). 125. may properly be regarded: (a) In what country the evidence on the issues of fact is situated. [1973] 1 W.Z. 473 and 479. 461-469. 2) [1997] 2 Lloyd’s Rep. where there is no forum selection agreement.C. or more readily available.L. 380 at p. The Traugutt [1985] 1 Lloyd's Rep.). if so. v. Stay was refused where the delay for suit had expired in the foreign court. (4th) 577 at pp. But see also The Pioneer Container [1994] 2 A. 550 and 552 (C. 551 (C. the following matters.). 246. Ltd. see also The Sennar (No. where it was suggested that if the failure to protect time in the chosen foreign forum was not the fault of the claimant. C. (2003) 224 D. 234 The Iran Vojdan [1984] 2 Lloyd's Rep. 76 at p.233 (d) Whether the defendants genuinely desire trial in the foreign country. 245. v. 233 The El Amria. C. at pp. 237 at p. 286 at p. 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”. 237 The Vishva Prabha [1979] 2 Lloyd's Rep. 288. 142 at p.).42 (3) The burden of proving228 such strong cause is on the plaintiffs.R. 387. 511 at p.A.R. 229 Where there is a forum selection agreement.A.232 (c) With what country either party is connected.L. and how closely. 377 and 385 (C. v. See Briggs & Rees. 721 (C. v. 232 The Eleftheria. see also The Pia Vesta [1984] 1 Lloyd's Rep.Z. 79 (convenience to the parties and to witnesses).). (b) Whether the law of the foreign Court applies and. 324 (N. 228 The Fehmarn [1957] 1 Lloyd's Rep. 172. it would lose its only available security.R. supra. 236 Evans Marshall & Co. (5) In particular.A. 126-127. 286 at p. but without prejudice to (4). ibid. See also in appeal [1957] 2 Lloyd's Rep.L. 3 Ed.A. 231 The Traugutt.).229 (4) In exercising its discretion the Court should take into account all the circumstances of the particular case. 428-429 (Aust.Z.). Inc. The Eleftheria [1969] 1 Lloyd's Rep. 514. Akai Pty Ltd.). at p. (1996) 188 C. [1973] 1 Lloyd's Rep. 450 at pp. By refusing the cargo owner the right to arrest in England. 155 (C. 2003 AMC 1280 at pp. 286 at p. 79. 230 The Traugutt [1985] 1 Lloyd's Rep. after all. But in The Bergen (No.L. 349 at pp. the burden of proof is on the claimant to show why he should not be held to his bargain of suing in the agreed contractual forum. ECU-Line N. who was Counsel for the plaintiffs.R. The People's Insurance Co. Brandon.Z. [1994] 1 Lloyd's Rep 593 (P. where they arise. [2003] 1 S.A. 288. See also The Sidr Bashr 235 The Lisboa [1980] 2 Lloyd's Rep. supra.C. High C. The “strong cause” requirement was also strongly reaffirmed by the Supreme Court of Canada in Z. The Vishva Prabha [1979] 2 Lloyd's Rep. 710 at p.R. 135 at p. Pompey v.V. 293. Civil Jurisdiction and Judgments. where the advantage of the English process of discovery was held not to be a consideration.234 (e) Whether the plaintiffs would be prejudiced by having to sue in the foreign Court because they would: (i) be deprived of security235 for their claim.R.25 at p.. or are only seeking procedural advantages.I. supra. H. 142 (N. and the effect of that on the relative convenience230 and expense of trial231 as between the English and foreign Courts. the clearly more appropriate forum for trial.236 (iii) be faced with a time-bar237 not England. The El Amria. 197 at pp. 710 (C. and in New Zealand. 418 at pp. Conversely. For the same principle in Australia.C.R.L. 324.).

[1993] 1 Lloyd’s Rep. Ltd. Metro v. Metro v. 630. Co.N. [2001] 1 Lloyd’s Rep. Q. 239 Akai Pty. were found not to be strong enough reasons to overturn the non-exclusive English forum selection clause. Co. Dee Howard Co. 618 at p. v. 3) the same object. 410. Ltd. applies whether the contractual forum is England or another country. The stay was therefore granted. there must be the three identities: 1) the same parties acting in the same qualities.240 and whether the clause was negotiated by the parties or was only a term in a standard-form contract. 679-680. racial.) It has been held more recently in England that this basic approach. 405 at p. 376-377. after consideration of all relevant circumstances. or (iv) for political. Where a nonexclusive jurisdiction clause permits suit in or out of England. 15 Ed. 90 at p. Metro v. 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. [2000] 1 Lloyd’s Rep. 2000 at paras. See also Metro v. 405 at pp.242 4) Res judicata A court must. 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. This is not really a problem of jurisdiction or of forum non conveniens. 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. gen. 410. 240 Mercury Plc. the Court held that the defendants should not be denied the right to rely on the foreign time-bar (which also applied under art. and the importance of Chilean law (the law of the place of performance of the bill of lading contract under the Rome Convention 1980). People’s Ins.. 241 JPMSA v. 368 at pp. 45. by taking suit there within one year of discharge of the cargo.43 applicable in England. Sweet & Maxwell. v. Zurich Ins. 242 British Aerospace Plc v. 410-416. Furthermore. . 38-23 to 38-64. Ace v.C. Sinochem International Oil (London) Ltd. CSAV [2003] 1 Lloyd’s Rep. 104. 40. CSAV [2003] 1 Lloyd’s Rep. London. the latter of which cases concerned a non-exclusive jurisdiction clause. 238 The El Amria [1981] 2 Lloyd's Rep. (M. See generally Phipson on Evidence. Communication Telesystems Ltd. 405 at p. where factors such as the greater availability of evidence in Chile. 670 at pp. Mobil Sales and Supply Corp. [1998] 1 Lloyd’s Rep. 243 In both res judicata (also termed estoppel by judgment) and chose jugée. CSAV [2003] 1 Lloyd’s Rep. even when the cause of action in the subsequent proceedings differs from that in the original proceedings. requiring the plaintiff to show “strong reasons” why the contractually agreed forum should not try the case. on the usual forum non conveniens principles applied in cases where there is no jurisdiction clause. of course.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. ed. MNI [2001] 2 Lloyd’s Rep. and even arguments as to multiple proceedings. (Comm) 33 at p. whether or not the English proceedings will be stayed will be determined by the court in its discretion.239 whether the jurisdiction clause is an exclusive or non-exclusive one. 3(6) of the Hague and Hague/Visby Rules). 127. Ltd.R. 410. 405 at p.). not grant jurisdiction to a claimant if the same question has already been heard in a foreign court. 2) the same subject matter. CSAV [2003] 1 Lloyd’s Rep. 119 at p. They have been added for the purposes of this commentary. [1999] 2 All E. Howard. v. but of recognition of a foreign judgment.. 41 at p.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”.

6-7 (H.C. In the U.12. Supreme Court severely limited the doctrine of mutuality.245 the applicable law was the English version of the Hague/Visby Rules. because the carrier was seeking to rely on tonnage limitation. Rayner & Keeler Ltd. such as the Indonesian Commercial Code. Inc.L. Carl Zeiss Stiftung v.K. not package limitation.E. 1988 (O. 3(8). 322 (1979).). 935 (H. however. 248 [1983] 1 A.).e. 1979). 521 at p.S.11.1988) 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 . [1983] 1 Lloyd's Rep. 246 1971 U. i. Shore 439 U.L. The damaged cargo had been shipped from London and continental European ports.J.. 3(8) of Visby or the U. In The Good Challenger [2004] 1 Lloyd’s Rep. was not affected by the provisions of the Rules. permitting transfer of the suit to Djakarta.S. 249 [1984] 2 Lloyd's Rep. and 4) there must be identity of subject matter. 77 (C.1972).J.) (where the case is styled The Hollandia). adopted at Lugano on September 16. 325 (C. Supp.E. 6) U. 67 at p. will necessarily be a violation of art. 250 Hereinafter described as the Brussels Convention 1968 ( O. c. (No. 19.A.). 2) the judgment must be final and conclusive and on the merits.U.S. 251 The Lugano Convention on Jurisdiction and Recognition of Judgments in Civil and Commercial Matters. 25. where issue estoppel is often referred to as collateral estoppel. 8 of the Hague/Visby Rules and of the 1971 Act used the words “any statute”. the Hague Rules 1924. Hellenic Glory 471 F.248 In The Benarty. that article meant that an applicable foreign tonnage limitation statute. – 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. 565 at pp. 245 [1983] 1 A.E. It was held that the transfer of jurisdiction did not offend art. This would have meant a lower per package limitation and thus a violation of art.C. meaning that the issue decided by the foreign court must be the same as that arising in the English proceedings. 299/32. 853 at p. although the tonnage limitation under Indonesian law was much lower than under English law.C. 1002. [1983] 1 Lloyd's Rep. Therefore jurisdiction was retained by order of the Court of Appeal247 and the House of Lords. .249 however. 2) [1985] 1 Lloyd's Rep.K. 1971. L. since art.A. could have resulted in Dutch law being applied (because the clause also invoked Dutch law). being the Carriage of Goods by Sea Act 1971. 3(8) of the 1971 Act and of the Hague/Visby Rules.246 Transfer of the case to a Dutch court in accordance with the jurisdiction clause. particularly in cases where one of the The Sennar (No.C. N. 1 at pp. selecting as forum a court which does not apply the Hague/Visby Rules. where the U. Their Lordships were careful to note that not every jurisdiction clause. it has been held that there need not be identity as to the parties for collateral or issue estoppel to apply: W. English law The choice of forum clause (jurisdiction clause) must not reduce the carrier's responsibilities under the applicable law.L. 244 (C. L. In The Morviken.).D. Roberts v. v. 1979 AMC 2152 (S. Carriage of Goods by Sea Act. 3) there must be identity of parties. 319/9. 565.J..C. referring to Parklane Hosiery Co.K. stay was ordered.). This is termed “issue estoppel”.44 not be relitigated in the subsequent proceedings if it arises once again.244 5) Public policy. 31. and. 2) [1967] A. 247 [1982] 1 Lloyd's Rep.).Y. 574-575. it was held that in order to establish issue estoppel: 1) the judgment must be given by a foreign court of competent jurisdiction.A. 1 (H. 527 (H.L.

255 EC Regulation No..U. 1999 at pp. [2002] All ER (D) 130 (Jun) (C.45 defendants is domiciled in a member-State of the E.) (forum non conveniens applied to send dispute to Panama). 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.). 2. 253 See Briggs & Rees. first para. Iceland. 1160. 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.. [2004] EWHC 1704. and in force in all Member States of the European Union except Denmark. in Coreck Maritime GmbH v.. and therefore is still governed by the Brussels Convention 1968 in its relations with the other Member States of the E.: C-387/98) [2000] ECR I-9337.A. 206 (C. 2000. The English Court of Appeal decided in Re Harrod's (Buenos Aires) Ltd. Anton Durbeck GmbH v. 877.A.214 at pp.R. see O.210 at p. 3 Ed. para. Den Norske Bank ASA [2003] Q.V. Thus a U. and American Motor Ins. The Court of Justice of the European Communities. Frangos [1999] 2 Lloyd’s Rep. Handelsveem BV of November 9. v. obs.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. 397 (C. would appear to be free to apply its forum non conveniens analysis.A. 337 at p. Sun Life Assurance Company of Canada (UK) Ltd. of the Brussels Convention 1968.1. L 12/1.U. or EFTA. ibid. Delebecque. 618 at pp. 217-223. 264-266. For the text.B.K.257 In the meantime. See Briggs & Rees. [2003] All ER (D) 26 (Mar). See Owusu v. eds.B.. "Forum Non Conveniens and the Brussels Convention" [1990] L. 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.. and yet the "natural forum" for the litigation (i. 535 and Cheshire & North's Private International Law (P.. 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. 259 See Ace Ins.). Ph.R.218 at pp.J.A. litigation). unreported. Butterworths.Q.E. [2004] All ER (D) 294 (Jul) (Q. Norway and Switzerland.U. Zurich Ins.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. Civil Jurisdiction and Judgments.). Jackson (t/a Villa Holidays Ball-Inn Villas) [2002] EWCA Civ. See also Haji-Ioannou v. London. (Case No. 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. 13 Ed.) (giving effect to a service of suit clause providing for U. 622 and 626 (C. [2003] 4 All ER 543 (C. 187. 2.A. ibid. which became a party to the Lugano Convention in 2000). 17. 258 Supra. This holding would seem relevant under EC Regulation 44/2001 as well. [2003] EWCA Civ. DMF 2001. North & J. as part of its conflicts of law rules.A. 2000.e the jurisdiction having the most real and substantial connection with the case) is determined to be a non-Member-State. Cellstar Corp. the validity of the clause must be assessed in accordance with the conflicts rules of the forum. See also Lawrence Collins. [1992] Ch 72. 2002. 217.). [1991] 3 W. 2002 at paras.S. 260 See Travelers Casualty and Surety Company of Europe Ltd.256 The European Court of Justice is expected to rule on the issue on more recent references by English courts. as well as EC Regulation States. 257 The English Court of Appeal has requested the European Court of Justice to rule on this question of interpretation of the Brussels Convention.260 in favour of courts outside such European Free Trade Association (EFTA) other than Liechtenstein (viz. 2. . under art.210 to 2.C.-N. without such action infringing the Brussels Convention.). adopted by the Council of the European Union on December 22. as well as Poland.). v. v. in respect of civil jurisdiction and the enforcement of judgments. S. [2001] 1 Lloyd’s Rep. Re (No 2) [1991] 4 All ER 348. Fawcett. 227-228. court.L. Co.J. as of March 1. 16.A. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. 256 Denmark chose not to bound by the EC Regulation. unreported. appeared to confirm this position. 252 Harrods (Buenos Aires) Ltd.2001. para.. Co. 346 (C.M.

242. in so far as those principles indicate whether the clause in question accords with international trade or commerce. 17.262 In brief.K. The Nile Rhapsody [1992] 2 Lloyd’s Rep. 23 are met. or ought to have been.20 To commence an action to recover for loss or damage to cargo in England. for example. the Civil Procedure Rules 1998 are referred to under their common abbreviation. the claimant in some cases must obtain leave of the High Court.U. 2001 DMF 187. 266 Service of process out of the jurisdiction is governed by the Civil Procedure Rules 1998. To effect service out of jurisdiction. parties to contracts of the type concerned (art. 1998 and in force April 26. 1999. such leave is not necessary. As regards the jurisdiction clause's enforceability as against consignees and subsequent endorsees. or b) in a form which accords with practices which the parties have established between themselves. 265 “Claim form” is the new term for “writ” under the U. 387-98). 262 See the discussion of the conditions of art. which came into force on January 1.U. Art. 264 November 9. 382 (C. aware and which in such trade or commerce is widely known to. Art. supra. art. The principles set out in The Eleftheria263 would therefore be applied by a U. Delebecque. first para. replacing the former Order 11 of the Rules of the Supreme Court 1965. 399. 1987.U.The 1982 Act and CPR rules 6. 237 at p. SI 1998/3132. and which bind parties one or more of whom are domiciled in an E.264 7) Service out of jurisdiction . where the conditions of art. Handelsveem BV would be applicable. In this article. Ph. 23 is almost identical in wording to the most recent text of art 17.261 With respect to jurisdiction clauses calling for adjudication of disputes in an E. 261 . 23.266 a) Where leave is not required-CPR Rule 6. 2000 (Case No. 263 [1969] 1 Lloyd's Rep.19 and 6. State. to comply with art. obs. of the Brussels Convention 1968 at section VI.K. the claimant will serve a claim form265 on the carrier who at times is out of the jurisdiction. giving effect to an Egyptian choice of law clause in a case where an English defendant was sued in England. [1994] 1 Lloyd’s Rep.19(1) See.U. in other cases. court in determining the validity of a jurisdiction clause in a bill of lading. 23(1) and (2)).’s Civil Procedure Rules 1998. State. “CPR”. 23 of EC Regulation 44/2001 applies and requires the courts of Regulation States to stay the proceedings in favour of the specified court. the jurisdiction clause designating the forum of another E. 23 of EC Regulation 44/2001 and the most recent text of art. Member State. the courts of other Member States shall have no jurisdiction over their disputes unless the court or courts chosen have declined jurisdiction. made December 10. Some of these decisions have applied forum non conveniens to enforce jurisdiction clauses requiring litigation of disputes in such non-Member States. first para. and regularly observed by.). [2000] ECR I-9337. of the Brussels Convention 1968. or c) in a form which accords with a usage in international trade or commerce of which the parties are.A.46 States. the test provided by the European Court of Justice in Coreck Maritime GmbH v. State must be either: a) in writing or evidenced in writing (including electronic form). none of whom is domiciled in an E. 23(3) also provides that where a jurisdiction agreement is concluded by parties.

269 CPR rule 6. can serve a claim form upon the carrier.18(d) in defining “Convention territory”. 1(1) of the Civil Jurisdiction and Judgments Act 1982. 270 EC Regulation 44/2001 of December 22. 23 of the EC Regulation 44/2001. 41-46 of the Civi1 Jurisdiction and Judgments Act 1982272 and clearly a defendant carrier can be domiciled in many jurisdictions concurrently.269 while the term “Regulation State” means a Member State as defined in EC Regulation 44/2001. the only court that has jurisdiction. the claimant.274 or on a court contemplated by art. 272 CPR rule 6. without obtaining the court's leave. 17 of the Brussels or Lugano Conventions applies. 27. b) Where the court's leave is required – CPR. however.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.19(1A)(b)(i).K. therefore. other than Denmark271..C. in relation to a Convention territory. provided that either the claimant or the carrier is domiciled in such a state. or an EFTA state. 271 CPR rule 6. In relation to a “Regulation State”.19(1A)(a).e.. 2000.277 The court where the action is first commenced is. domicile has a similarly broad meaning. . or any other Convention territory 276 or any other Regulation State. c. 1982.19(1)(b)(i). in commencing his action there. 41-46. 277 CPR rule 6. art.1. refers to sect. a Member State of the EU.U. applicable to all proceedings instituted on or after March 1.19(1)(a). who is out of that court's jurisdiction. 17 of the Brussels or Lugano Conventions or art. 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.18(g)(i) and U.K. U. 9 to 12 of Schedule 1 to the Civil Jurisdiction and Judgments Order 2001. sects.270 i.. CPR rule 6. 23 267 268 CPR rule 6. rule 6. 274 CPR rule 6. L. There is an important proviso. O. a particular part of it or a particular place within it. 9 to 12 of Schedule 1 of this Order define the conditions under which a person is “domiciled” in the U. 273 SI 2001/3929.47 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”.18(k).K. c. 275 CPR rule 6.E.J. reflecting the EC Regulation 44/2001 and paras.275 In other words.2000. has a wide meaning in the light of sects. 2002. 12/1. 16. 1982. 1(3). 276 CPR rule 6.19(1)(b)(iii). The term “domiciled”.273 Nor does a cargo claimant have to obtain leave if the defendant carrier is a party to an agreement conferring jurisdiction on a court of a state to which art.19(1A)(b)(iii). Paras. if the jurisdiction clause in the bill of lading designates the court of an E. 27.K.268 The term “Convention territory” encompasses the territory or territories of any Contracting State to which the Brussels or Lugano Conventions apply.

48 of EC Regulation 44/2001. 13. at p. 1991. 2002. provided that service out would be justified if one did exist.283 There are various other types of claim which authorize service out with the court's leave as well.286 When leave is sought to serve out of the jurisdiction. or b) to enforce a claim under sects. on the other hand. 284 For example. 280 CPR rule 6. at p..20(9)).20 relied on in this regard (CPR.20(1)).L..20(8). 3 Ed.K. 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 6.20(10)). 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. 3 Ed. 5. c. rule 6.). c. or for an injunction ordering the defendant to do or to refrain from doing an act within the jurisdiction (CPR rule 6. 279 CPR rule 6. service out may also be authorized where a claim is made for a remedy against a defendant domiciled in the jurisdiction (CPR rule 6. as well claims relating to property in the jurisdiction (CPR rule 6. 4. The claimant must also show that 2) the grounds on which the application for service out is made and the paragraph(s) of CPR.20 justifying the grant of leave to serve the claim form out of the jurisdiction. or was made by or through an agent trading or residing within the jurisdiction or is governed by English law or contains a term to the effect that the court shall have jurisdiction to determine any claim in respect of the contract (i. para. Civil Jurisdiction and Judgments. not subject to the jurisdiction of the High Court) (CPR rule 6. the claimant must obtain the leave of the High Court to serve the defendant outside of the jurisdiction.20(6). or for an interim remedy under sect.20(7). a claim form may be served out of the jurisdiction with permission of the court if the contract was made within the jurisdiction. rule 6.20(9). 325.54 at p. 25(1) of the Civil Jurisdiction and Judgments Act 1982..). Civil Jurisdiction and Judgments. U.288 For example.K. 154 or 175 of the Merchant Shipping Act 1995. 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. U. 282 CPR rule 6.287 When the court is asked to stay an action on the ground of forum non conveniens. 283 CPR rule 6.33 at p. 324. See also Briggs & Rees. 21 (CPR rule 6. para. 363.279 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. See also Briggs & Rees. 285 [1987] 1 Lloyd's Rep.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.21(2A) 278 . 1 at pp. 287 The claimant must show that 1) England and Wales constitutes “the proper place in which to bring the claim” (CPR.21(2A)).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(1)(b)). 1982.e. 286 Ibid. 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. an exclusive jurisdiction clause). 153.278 There are various grounds listed in CPR rule 6.L. For example. in contractual matters.K.21(1)(a)) and that 3) he “… believes that his claim has a reasonable prospect of success” (CPR. rule 6. Claims to enforce a judgment or arbitral award may also authorize service out (CPR rule 6. the burden of proof is on the plaintiff to show that the forum is the most appropriate. rule 6. 288 The Spiliada [1987] 1 Lloyd’s Rep. 281 CPR rule 6. and 14 (H. 2002.20(4)).20(5)(a) to (d). rule 6. where these authors state that CPR. 1 (H. See also ibid.20(17A)). 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(5)(d).284 In the light of The Spiliada.

2. while at the same time granting a stay of proceedings in this country to enable the action to proceed in the appropriate forum.3(5) specifies that the claim form must be served: (a) in accordance with the practice direction. See Tetley. 1952. 1998.A. 2 Ed. 1 at p. 2(3). March 12.K. adopted at Geneva. c. U. 293 Art. 5077-508.07 at pp. and in force February 24. “Arbitration Clauses”. This international convention has been almost completely implemented in the United Kingdom by the Supreme Court Act 1981. paras. 27.Forum Non Conveniens Introduction .292 at art. 7(1) of the Arrest Convention 1999 empowers the court of a State where an arrest has been effected or security has been provided to release the ship to determine the case on its merits. 8. it would not.L. Such a conclusion is. consistent with the manner in which the process of saisie conservatoire is applied in civil law countries. rule 61.. 15 (H.294 XI. except where the parties validly agree or have agreed to submit the dispute to a court of another State that accepts jurisdiction. C. 7(2) of the Arrest Convention 1999 provides that notwithstanding art. See also art. May 10. the courts of the State in which the ship has been arrested or security has been provided for its release. 1982. 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. or to arbitration. contains a similar provision. . 26 of the Civil Jurisdiction and judgments Act. 1956. Brussels. I think. 1) Canada . at pp. even though a jurisdiction clause has designated a court in another jurisdiction to decide the action on the merits.R. normally be wrong to allow a plaintiff to keep the benefit obtained by commencing proceedings here. Electric Power Commission v. 1982. 1033-1036. 7(2).).. 26 of the Civil Jurisdiction and Judgments Act 1982. 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. 4 & 5 Eliz. shall) order a period of time within which the claimant must bring proceedings before a competent court or arbitral tribunal (art. See The Spiliada [1987] 1 Lloyd's Rep. 292 International Convention on the Arrest of Ships.B.291 Similarly art. sect. which replaced the former Administration of Justice Act. 54. U. Where the arresting court lacks jurisdiction under art.). 291 See sect. See N.05-8. 7(2). c.K. 7.” See also Chap. found as Schedule I to the Civil Jurisdiction and Judgments Act.the principle The Federal Court Act295 of Canada stipulates at sect.” 289 See Briggs & Rees.S. 46. 7(3) permits the vessel to be arrested in one jurisdiction and held as security there. 295 R. and cf. The Arrest Convention 1999. 294 Art. 1999. 24 of the 1968 Convention.289 Nor is it necessary to do so. CPR. 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. 290 Convention Relating to the Arrest of Sea-going Ships..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. 7(1) on the merits or has refused to exercise it under art. 1985.. 2002. but not in force. where Lord Goff stated “. 50(l) that: is intended to reproduce the substance of the previous case law. c. That Convention also requires respect for jurisdiction and arbitration agreements by the arresting court. Civil Jurisdiction and Judgments. and (b) within 12 months after the date of issue. 1956. c. 1982. it may (or at the request of a party. The Arrest Convention.C. I understand. 7(1). 1981.290 at art. now happily in force. 28. Maritime Electric (1985) 60 N. 203 (Fed. 7(3)). Maritime Liens & Claims. 3 Ed.293 It also recognizes forum non conveniens under national law.

300 [1977] 2 S. C. Rockware Glass Ltd.296 a case involving an application for leave to serve ex juris. (3d) 261 at p. 897.C.298 In 1993. C. (1982) 27 C. Sopinka J. at p. Ritchie. and the cost of assembling foreign witnesses. The Ship Capricorn.R.R. citing various authorities. Supr. 300 at p. Supr.). The burden of proving the clearly more appropriate forum fell on the plaintiff in service ex juris motions. in Amchem Products Inc. stay proceedings in any cause or matter. the impropriety and inconvenience of trying a case in one country when the cause of action arose in another where the laws are different. 795 at p. The Ship Friedrich Busse (1982) 134 D..R. (1984) 52 N. the undesirability of trespassing on the jurisdiction of a foreign state.” In Antares Shipping v. Ct). Holdings Ltd. 422 at p.299 as well as its own precedent in Antares. 298 [1978] A. 1 (H. 895.. 442. British Columbia (Workers’ Compensation Board). … (b) where for any other reason it is in the interest of justice that the proceedings be stayed.L. 448. v. 296 . The Nosira Lin. 297 [1984] 1 F.” 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.” Canadian courts followed the English courts on the question of forum non conveniens in decisions such as Yasuda Fire & Marine Insurance Co.L.A. BP Can. and they include the balance of convenience to all the parties concerned.C. v.297 relying on the two criteria (positive and negative) laid down by the House of Lords in MacShannon v.C. 921.P.” See also Kuhr v. v.). including the House of Lords The Spiliada. J. the Supreme Court of Canada considered the doctrine of forum non conveniens in determining whether the Court should direct for service ex juris.L.R. Plibrico (Canada) Ltd. 303 (Fed. stated that: “The factors affecting the application of this doctrine have been differently described in various cases .C. Referring to forum non conveniens. whereas in seeking a forum non conveniens stay. the Supreme Court of Canada. at pp. 301 [1993] 1 S. Suncor Inc.303 [1977] 2 S.C. 5 at p. v.301 Concluding his analysis.P.). 303 Ibid. 8 (Ont. 812 (H. the defendant had the onus of proof. 917 and 921.C. Ct). however. in its discretion. 302 Ibid. including the plaintiff.300 definitively opted for the English view of forum non conveniens. 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). 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. 299 [1987] 1 Lloyd’s Rep.50 “The Court may. 304 (Ont.R. 269. 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. Westmin Resources (1983) 32 C.

R. 237 at p. Can. for example. Can. See also Trans Continental Textile Recycling v.C. 306 Burrard-Yarrows Corp. 1287-1293. Can. The Hoegh Merchant [1982] 1 F.R. 427-428 (Fed.L. Pompey v.R. C. as fully articulated in England in The Spiliada.R. 242. (1998) 173 F. in The Eleftheria305 has been relied on in quite consistently over the years. C. Jian Sheng Co.R.L.Z. Manildra Flour Mills (1990) 171 C. 255 (Fed. v. See Voth v.). Itochu Canada v. 308 Z.I. Can.).) (cargo claim). and 3) which party would suffer the greater harm as a result of the granting or refusing the interlocutory injunction (or stay). 216 (N. This tripartite test involves a judicial determination as to: 1) whether there is a serious issue to be tried. Australia. [1978] ETL 39 (Fed. 307 [2003] 1 S. including maritime case law. 1867 (Fed. 856 (Fed. for example.T.Z. P. 495 (Fed.L. focusing not on whether there is a more clearly appropriate forum elsewhere. v. 304 . See also Jian Sheng Co. (4th) 577 at pp.586-592. 538 (Aukst. The Regal Scout [1984] 2 F. ECU-Line N. Shanghai Ocean Shipping Co.306 and was reaffirmed by the Supreme Court of Canada in 2003 in Z. C. 140 at p.) (personal injury and death).C. Great Tempo S. (2001) 185 F. which the Federal Court of Appeal had found applicable to stay applications as well.).309 c) A strong reason for not honouring a foreign jurisdiction clause may be that all the facts are in Canada. See.C. 305 [1969] 1 Lloyd's Rep.V. (1999) 176 F. 310 The Agelos Raphael [1978] 1 Lloyd's Rep.). C. C. applies forum non conveniens slightly differently.A. Can-Am Produce and Trading Ltd.).R. and rejected the “tripartite test” applicable to motions for interlocutory injunctions. The Hoegh Merchant [1983] 1 F. 248 at p.L. per Morneau. v.51 The clearly more appropriate test continues to apply to forum non conveniens decisions in Canadian case law today. Can. The Fu Nin Hai (1999) 173 F. v. Hyundai Merchant Marine Co.T.V. See also Bomar Navigation Ltée v.the criteria .R. Wendell [1989] 1 N. 287 (decisions of motions judges on applications for stays of proceedings based on foreign jurisdiction clauses should be upheld.R. 144. 2) whether the party seeking the interlocutory injunction (or stay) would suffer irreparable harm unless the injunction (or stay) were granted. but rather on whether the Australian forum is clearly inappropriate. 461-469.307 a) There must be “strong reasons” for not honouring a jurisdiction clause calling for jurisdiction before a foreign court.). 851 at p. Abta Shipping Co.T. 221 (Fed. Pompey v. C. P. High C. [1998] 3 F. C.C.R. 418 at pp. ibid. 54 (Fed. C. 257 (N. C. 427. Nissho Iwai Co.). 2003 AMC 1280 at pp. [1998] 3 F. 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. the authoritative summary of principles by Brandon J. 309 Burrard-Yarrows Corporation v.T.C. The Erato [1996] 1 F.Z.310 See. Anraj Fish Products Industries Ltd.C.) (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). v.I. per Hargrave.C.C.A. (1996) 106 F. Other Commonwealth countries have similarly adopted the forum non conveniens principle.).).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”. 314 (Fed. 278 (Fed.C. C.R. C.Canada With respect to the enforcement of jurisdiction clauses.) and Club Mediterranee NZ v. v.T.T. ECU-Line N. the landmark New Zealand decisions in McConnell Dowell Constructors Ltd. v. (2003) 224 D. C. leave to appeal to Supreme Court of Canada denied [1998] S. C.). 404. C. of Canada Ltd. Great Tempo S. Lloyd's Syndicate [1988] 2 N. A. 203 (Fed.. C.A. Can. See also Agro Co.A.C. 105. 250 (Fed.). Can.R.). The Senator (1996) 112 F. Can. 1998 AMC 1864 at p. The Hansa Bay [1975] F.R. of Can. 450 at pp.A. (1998) 225 N. 231 at p. v. 418 at p. Can.A.304 2) Jurisdiction clauses .Z. Napa v.A. however. 234 (Fed. unless arrived at on wrong basis or plainly wrong).

L. It should also be noted that when the plaintiff in an action is of French nationality. DMF 1985. Cour de Cassation. (4th) 577 at p. 718. See discussion of this statute supra. 668 at p.R. 1983.C.S.C. 2003 AMC 1280 at p. fundamental breach of the contract of carriage).c. 1984. of Can. mise à jour 1978. Pompey v. contrary to art. 520. i. October 31. v. ECU-Line N.313 Sect. 113. 450 at pp. 123 c.U.. Affrètements & Transports.C. 450 at p. 1295. 341. irrespective of the nationality of the person (e. 1986. Québec Civil Code 1994.e. a foreign insured) in whose rights the plaintiff (e. ECU-Line N. Rather. DMF 1985. 1984.311 e) Courts deciding on the enforceability of jurisdiction clauses should avoid considering substantive issues (e.V.I. 472. 1984. The Regal Scout [1984] 2 F. May 14.R. 313 S. C.R. 46 of the Marine Liability Act.R.L. 1985. November 25. F-7. affirming Cour d’Appel d’Aix. a French insurer) has been subrogated: Tribunal de Commerce de Paris. These rules apply even when one of the parties is not domiciled in France (except if the court designated in a jurisdiction clause is that of an European Union member state and at least one of the parties is domiciled in an E. See also Tribunal de Commerce de Paris. 713. Agro Co. 1981. 314 R. (2003) 224 D. (1983) 148 D. however. so that suit may be taken in a more convenient forum.). Nicolas. 42-48 of the New Code of Civil Procedure (NCP). 6. 315 See the comments of the Supreme Court of Canada on this point in Z.315 XII. 312 311 . (4th) 577 at pp. Cour d’Appel de Paris. art. c.317 An action is not stayed or suspended so that suit may be taken in a more convenient court. in section V. para. 706. DMF 1986. Jurisdiction Clauses Restricted by National Law”. In Germany.L. 672. have incorporated forum non conveniens into their legislation. the French court either has or has not compétence (jurisdiction). Pompey v.C. February 15. 469-472. of Canada Ltd. 104 with note by P. constitutional provisions prevent German courts from refusing to exercise their statutory jurisdiction. 2001.g. 592-594. notably Louisiana and Québec. c.c. December 7. 3(8) of those Rules. [2003] 1 S. DMF 1987. DMF 1982. 2003 AMC1280 at pp. 1987. the French courts will have jurisdiction by virtue of art. the right to request that an action already before a court with jurisdiction over the subject matter be stayed. see Rodière.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.C. 594. March 10. 1293-1295. 316 A few civil law jurisdictions.g.q. (2003) 224 D. 1) France Introduction France and the civil law generally316 does not recognize the principle of forum non conveniens.R. in force August 8. DMF 1985.I. 46 in effect restricts the discretionary power of the Federal Court of Canada under sect. 2001. art. leaving such questions to be decided by the contractually selected foreign forum. See Louisiana Code of Civil Procedure. 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.-Y.V. April 18.312 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.g. DMF 1984. (3d) 412 (Fed. member state): Cour de Cassation. 50 of the Federal Court Act314 to enforce foreign jurisdiction and arbitration clauses in bills of lading.p. Z. [2003] 1 S. 3135 c. 851. Traité. 317 The rules governing which court has territorial competence are found in arts. 14 of the French Civil Code.

42-48 NCPC: Cour d’Appel de Bordeaux. DMF 1981. where the impact of the changes in the New Code of Civil Procedure is discussed. DMF 1974. 75-1123 of December 5.321 In addition to stating that actions may be brought before the court of the French port of loading or discharge. 1966.324 This general rule is enshrined in art. DMF 1983. 162 at p. 318 .53 A jurisdiction clause validly agreed upon by two “commerçants” (merchants) will be recognized by a court which has jurisdiction to hear the case.O.S. June 24. however.1. sur les contrats d’affrètement et de transport maritimes (J. DMF 1982. art. Cour d’Appel de Rouen. 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. 397. D. the territorial jurisdiction rules were considered to be of private interest and thus derogations therefrom were permitted: Juris-Classeur. February 8. 1936). 1967. 165. 54 is in fact merely a supplementary provision to arts. Amoussou. 66-1078 of December 31. «Les clauses des connaissements attribuant compétence à un tribunal étranger sont-elles encore valables?». Presses universitaires d’Aix-Marseille.295. 1967.4. 48 of the New Code of Civil Procedure. Tribunal de Commerce de Paris. See Fraikin et Boquet. D. 3) French domestic law . fascicule 211. 323 Formerly. 119. 322 Tribunal de Commerce de Nantes. Art. in which case the court will declare itself (“incompétent”) (without jurisdiction). 206. 54 merely refers to the normal procedural rules that govern the validity of jurisdiction clauses. Fraikin et Boquet. 1966 sur les contrats d'affrètement et de transport maritimes. 75-99 NCPC: Les exceptions d’incompétence.319 The domestic Law of June 18. 1981.4. (J.O.K.S. 1966320 contains no prohibition in respect to jurisdiction clauses.65. Les clauses attributives de compétence dans le transport maritime de marchandises. 2002. 1937. 1936 prohibited jurisdiction clauses ousting the jurisdiction of French courts in cases of carriage between French ports in a French vessel (navigation réservée). (J. 319 Loi relative aux transports des marchandises par mer. Nor does art. jurisdiction ratione loci) were formerly considered to be merely of private interest and thus derogation from these rules was generally permissible. 1983. See Bertrand de la Grassière. 360. 1966. 1966 restrict jurisdiction clauses. p.. «Les clauses des connaissements attribuant compétence à un tribunal étranger sont-elles encore valables?» DMF 1980. 2) Prohibition under law The rules governing territorial competence (i.323 the general rule is that choice of forum clauses are to be treated as unwritten and therefore with no effect. September 30. p. para. «La clause attributive de compétence à un tribunal étranger». D. La clause attributive de compétence à un tribunal étranger. DMF 1952.4. DMF 1980. 496. 483.e.O. 1974. A. 66-420 of June 18. 235. September 25. April 11.325 (NCPC) which also establishes an important exception: i.318 In carriage of goods by sea cases. See generally Bertrand de la Grassière. February 27. 1975. See arts. DMF 1952. 119. 325 Established by Decree No. 1980. 321 Decree No. See Cour d’Appel de Rouen. 1966. 320 Law No. Procedure 3. January 13.jurisdiction clauses Under present French civil procedure. January 11.e. DMF 1980. 1979. 515.322 art. 515. 54 of the Decree of December 31. 189. 10 of the former Law of April 2.

who is impleaded into the action. 1987 so that the shipper is no longer obliged to sign the bill of lading under French law. and cannot decline the jurisdiction of that court even by invoking a jurisdiction clause: art. IV. S. 162. 66-1078 was amended by Decree No. II. November 14. Achard. 1986. 118. Cour d’Appel de Paris. Achard. dr. 1981. 1984. somm. 1979. November 14. DMF 1998. DMF 1997. DMF 1980. Bull. February 8. 37.-P. no. int. 333 Cour de Cassation. January 16. 329 Art. NCPC. Cour de Cassation. D. 1971. 128. Cour d’Appel de Bordeaux.330 nor was a clause written in a foreign language that the party did not understand. July 20. 1980. March 3. See. Until 1987. DMF 1983. regardless of the presence of a jurisdiction clause: see art. 326 . Bull. 1984. 1. May 9. 546. October 1. Cour de Cassation. February 20. 143 with note by R. 1983. 78. DMF 1983. 1979. 431 with note by R. 327 Cour de Cassation. Gaz. Rev. Cour de Cassation. 87-922 of November 12. The jurisdiction clause need not. Nicolas. Rev. Cour d’Appel de Rouen. 1982. DMF 1981. 1979. 1979. 1986. 1981. however. 98. DMF 1983. 33. 1982. Bull. trim. dr. no. 37 of Decree No. 489. jur. March 19. February 28. Cour d’Appel de Paris. 1983. 1980. 334 Tribunal de Commerce du Havre. June 27. note 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. Gaudemet-Talon. Pal. 1927.329 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. 537. DMF 1983. as well as in Cour d’Appel de Rouen. however. rep. 1982. p.S. DMF 1974. 492. without that clause being pointed out. Bull 1980.54 where the jurisdiction clause has been agreed to by parties acting in a commercial capacity and has been clearly specified in the agreement. May 3. DMF 1983. note H. June 26. if it is not identified. DMF 1982. 11. DMF 1998. where the rule is different when the 1968 Brussels Convention applies. Cour de Cassation. 270. See Cour d’Appel de Paris. 85. 1979. second para. 1981. 77 328 Cour d’Appel de Rouen. D. 1. 333 NCPC. July 12. 730.327 Consent to such a clause in a bill of lading was formerly established under French law by the shipper’s signature on the bill. Delebecque. 726. DMF 1983. the Court should have refused to give effect to the clauses concerned. See comment by R. 1980. Achard.S. obs. March 11. 1985. Tassel. obs. 720. Cour d’Appel de Paris. 330 Cour d’Appel d’Aix. 1980. Cour d’Appel d’Aix. the plaintiff can pursue the action in the jurisdiction of any one of the defendants. DMF 1979. where the foreign court was not determinable and the clause was therefore unenforceable. 37 of Decree No. 1982. pan. Thus a clause printed in ultra-fine letters below the line where the party was to sign. DMF 1985. pr. February 25. was not deemed consented to. February 13. 531. 1974. March 3. 661078 of December 31. Cour d’Appel de Paris. See also Cour d’Appel de Rouen. 1928. 325. DMF 1987. 489. 415. 29 with note by R. with note by Normand. 678 with an excellent commentary by P. 1980. Bulletin des transports 1987. Achard.-Y. 274. which merely designated the courts of the country where the carrier had his principal business. May 24. DMF 1986. 1966 required the shipper to sign the bill within 24 hours of the loading. November 8. cr. with note by Ghestin. 1986. Rémery. May 30. be consented to apart from the other clauses in the bill of lading: Cour de Cassation. 1998. no. 1982. Cour de Cassation. 282. 1996. Cour d'Appel de Paris. even if acting in a commercial capacity. March 20. report J. DMF 1983. Achard appended to Cour de Cassation. 1983.331 The forum chosen in the clause must be clearly designated. 262. Y. 1978. 1971. 507. 1982. February 4. however. When there are several defendants and the action is indivisible. civ.326 The clause must be clearly apparent so that the parties can be found to have given their informed and unequivocal consent to it. DMF 1991. 332 Cour de Cassation. 802.1.64. inf. January 14. February 27. 518. In Cour d’Appel de Rouen. 331 Cour de Cassation. 42. Cour de Cassation. 1972. See. must proceed before the court which is seized of the principal action. 609. Cour de Cassation.328 until the requirement for the shipper to sign bills of lading was repealed in 1987. Cour de Cassation. December 1. December 17. it must at least be identifiable. May 24. 1998 (The Lode Bay). DMF 1981. See also Cour d’Appel de Paris. 725 at p. Ph. DMF 1981. DMF 1979. no. November 30. 1991. art.

the courts had at one time given effect to foreign jurisdiction clauses. March 335 . the clause will be interpreted restrictively by the courts. Juris-Classeur Procédure 3. 203.337 Of course when the whole agreement is challenged. 87. March 1. Cour d’Appel de Paris. 340 Art. January 20. 1979.340 In such circumstances. March 7. [2003] ETL 496. But see also Cour de Cassation. Rev. 1980. 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. which must be performed in good faith. 710. If the jurisdiction clause designates a foreign court which is likely to apply its own law. would seem to invalidate jurisdiction clauses which do not appear in the bill of lading issued to the shipper. 1984. because the carrier drew up the clauses in the bill of lading. See Tribunal de Commerce de Paris. para. the courts have in some cases given effect to the jurisdiction clause. trim. Nor is a clause designating a court which one of the parties has the option to eventually name. the contra proferentem rule will apply if such designation disadvantages the shipper. 236. In Belgium. para. 1994. 93. 1966 or.338 But art. 338 Juris-Classeur Procédure 3. June 22. 23. April 23.341 See Juris-Classeur Procédure 3. 48. DMF 1982. 5. 1986. the Hague/Visby Rules. January 14. the French court should refuse to give effect to the jurisdiction clause. 339 Cour d’Appel de Paris. in the case of international carriage. civ. DMF 1982. Cour d’Appel de Rouen. para. DMF 1994. 550. 1983. if the clause designates the court of the carrier's domicile. 1993. however. 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. Bulltein des transports 1994. 341 Belgium takes a similar position. DMF 1980. para. but not always. DMF 1985. Notably. fascicule 212-1. 1966 (governing domestic carriage) makes that law of public order. See Hof van Beroep te Antwerpen. where the Court notes that the bill of lading is the typical case of a contract of adhesion. the French court must consider whether giving effect to the clause would violate French public order.55 since that port could change from voyage to voyage. 198 1. fascicule 211. 337 Juris-Classeur Procédure 3. fascicule 212-1. 336 Cour de Cassation.336 It must be remembered. 66-420 of June 18. that since such a clause derogates from the normal rules of civil procedure. Normand. 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. Belgium takes a similar position. 548. 612. Any restriction of the shipper's rights beyond what is permitted by the Law of June 18.335 The court will sometimes. by requiring that the clause “be specified very clearly in the agreement” itself. 3(8) of the Hague/Visby Rules makes those rules of public order. DMF 1983. just as art. fascicule 212-1.339 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. February. See also Cour d’Appel de Rouen. 416. dr. DMF 187. 29 of Law No. 602. Thus merely referring to a jurisdiction clause appearing in another document would not be sufficient. Cour d’Appel de Paris. holding that the acceptance of a jurisdiction clause could not be inferred from the existence of prior commercial relations between the parties. para. 546. would be contrary to public order. but only on the condition that the designated foreign court apply the Belgian equivalent of the Hague Rules: Hof van Beroep te Brussel. 100. as in the case of a short form bill of lading. June 17. 2003 (The MSC Dymphna). March 2. 1982. the jurisdiction clause's effectiveness will be jeopardized. as where there has been a fundamental breach of the contract. Sometimes the jurisdiction clause is not found in the document itself. 95. fascicule 212-1.

620. para. jurisdiction clauses in contracts between parties both of whom are domiciled in France continue to be governed by art. Belgian courts did not consider such a condition to be sufficient. 214. supra. DMF 1985. with note by P. See also Cour d’Appel de Rouen. See also Cour d’Appel de Rouen. DMF 1979.g. signed at Luxembourg. 469. July 12. 1974. both published by Decree No. March 10.347 In The Tilly Russ. 343 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. Cour d'Appel de Rouen. May 24. which. 1987.e. Nicolas. DMF 1985. Droit international 8.Y.346 On the other hand. 1984. September 27. The Lugano Convention 1988 will also continue to apply to jurisdictional matters involving a Member-State of the European Union and either Iceland. signed at Brussels. 342 O. June 3.U. p.96. 492. 17 of the Convention and not necessarily with the national law (i. 1977. June 27. not by art. 16. 1984. DMF 1983. 98.344 Today. 557. DMF 1980. 515 at p. Switzerland or Poland. The Convention as amended covered. October 9. Nicolas. D. even though the clause in question arose in respect of an action in warranty and the principal action was being taken in another jurisdiction. 117. even if there is an international element to the contract: e.342 French courts were bound by the Brussels Convention 1968343 on the same subject. 1983. October 31. par Frédéricq. 344 See Cour de Cassation. art. March 1. 604. 713. 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. Hof van Beroep te Brussel. 1982. however. where it was held that jurisdiction acquired by means of a jurisdiction clause which complied with art. 48 NCPC). See Cour d’Appel de Rouen. as the Regulation now does. 1973. 98. 1973. 520. 1971. French courts have not gone as far as Belgian courts in this regard: Cour d’Appel de Rouen. May 25.S. Rapport sur les travaux de la 2ème Commission. art. DMF 1980.4.U. DMF 1983. DMF 1983. 17 of the Convention had precedence over the other means of acquiring jurisdiction. referred to in Jurisclasseur. DMF 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.U. 23 of the Regulation governing the validity of a jurisdiction clause. with note by P. 23 of the Regulation. [1977] ETL 704. L. fascicule 631. 346 See EC Regulation 44/2001. 1979. as amended by various Accession Conventions. 17 wanted to avoid making compliance with formalistic requirements a criterion for the validity of jurisdiction. DMF 1985. Actes de la 8ème session. [1971] ETL 641. supplants art. 48 NCPC where the clause specifies a court in another E. see also the Protocol on the Interpretation of the 1968 Convention by the European Court. 73-63 of January 13. DMF 1986. where it was held that the jurisdiction clause need only comply with art. See Cour de Cassation. DMF 1986. July 5. . 303.2001. art. 347 Conférence de droit international privé de la Haye. see also Cour d’Appel de Paris.e. 22. 345 Cour de Cassation. 550. aff'd Cour de Cassation. the other Member States of the European Union). was essentially the same as the Regulation in respect of jurisdiction clauses. 1968. The draftsmen of the old art. 17 on jurisdiction clauses.C.56 4) France and EC Regulation 44/2001 Until the coming into force on March 1. 2002 of EC Regulation 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. 1985.345 The Brussels Convention 1968. 1982.Y. para. 723.12/1.348 the European Court of Justice held that a jurisdiction clause in a bill of lading would satisfy the requirements of art. 1982. Member State.1. by which the Brussels Convention 1968. 1985. 1984. DMF 1982. March 14. Cour d’Appel d’Aix. Cour d’Appel de Rouen. 48 NCPC. 17 of the Convention or art. country except Denmark. June 10. where one or more of the parties is a domiciliary of any other E. July 12. see Fraikin and Boquet. May 15. where the bill of lading was signed outside of France.E. 622. 1971. Subsequently. continues to displace art. preamble.J. Norway. and its 1971 Protocol of Interpretation continue to apply between Denmark and the Member States bound by the Regulation (i. 17: 18. State and the case involves a Danish domiciliary. 1979. actions taken before the court of one European Union Member State by or against a corporation or individual domiciled in another Member State. August 29. [1975] ETL 50.

355 Thus art. where a jurisdiction clause. DMF 1982. June 19. 89. 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. as well as those in a form which accords with practices the parties have established between themselves. 353 By the San Sebastian Convention of May 26. or ought to have been. 352 Convention on the Accession to the 1968 Convention and the 1971 Protocol of Denmark. 1978. 1981. Bull. where the shipper put his signature. 285/1. IV. O. 23. 350 The jurisdiction clause in this situation would not comply with the requirements of French domestic law (i.1989. no. nor had the shipper agreed to such a clause in previous voyages. Also accepted are forum selection clauses in a form which accords with a usage in international trade or commerce of which the parties were. 557. 23 of the EC Regulation 44/2001 is reproduced supra.K. which appeared only in the long form bill. in the U. para. was not given effect since the shipper had only been issued the short form bill. 1989. Rodière & du Pontavice.e.351 The version of art. section of this article. 23 even when the shipper has not signed the (The Tilly Russ). signed at Luxembourg on October 9. its validity will depend on whether it fulfils the requirements of category b). 23(1) authorizes jurisdiction clauses which are in writing or evidenced in writing. European Court of Justice.. Droit Maritime. 355 Rèmond-Gouilloud. the Republic of Ireland and the United Kingdom. 12 Ed.E. 354 Art.C. at art. 1984. 235. 1993. para. DMF 1985. The text is found in DMF 1987. DMF 1985. 386-2. 23(2) is the major addition made by the Regulation to the wording of the immediately preceding version of art. acted as the written confirmation of that prior agreement. 548. 1984. 351 Again. Droit Maritime.e. 48 requires the jurisdiction clause to appear on the document issued. March 2. p.354 Art.350 (this set of circumstances is rare in maritime matters). 349 348 . 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. 17 that was adjudicated upon in The Tilly Russ was modified when Denmark. 83 at p. even though the short form specifically referred to the long form. parties to the type of contract concerned in that particular trade or commerce. 03.10. 48 NCPC) which requires the clause to appear on the document issued itself: See Cour d’Appel de Paris. If the jurisdiction clause is only printed on the front of the bill. the side where the shipper signs). The French courts emphasized that the jurisdiction clause had to be printed on the back of the bill of lading.353 It is essentially this latter version which was reproduced by the drafters of EC Regulation 44/2001. L. art. October 9. to ensure that the shipper had such notice as to be able to consent to it: Tribunal de Commerce de Paris. 23 constitutes an important distancing from French law: a jurisdiction clause may be deemed valid under art. The inclusion of electronic communications in art.349 or b) if the jurisdiction clause was specifically included in a prior oral or written agreement and the bill of lading. aware and which is widely known to. 2 Ed. and regularly observed by. though signed only by the carrier and not by the shipper.J. 254. September 30. 17 of the Brussels Convention 1968. Cour de Cassation. i. 209..e. 1984.57 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. a jurisdiction clause in these circumstances would not meet the requirements of French domestic law: art. 1997. 623-3. 1984. 1986. the shipper was never advised of the existence of the clause. It came into force on November 1.

holding that.362 If such is not the case. Ph. See also Cour d'Appel de Rouen. on proof of the shipper’s actual consent to the jurisdiction clause before the conclusion of the contract of carriage. 96. 2001 (The Transvaal). 187. 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. April 5. 66-1078 of December 31. 89 at p. December 5. by virtue of the applicable national law. Cour d’Appel de Rouen. 235.-Y. 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. 360 Supra. 1038. DMF 2003. 6. The consignee and subsequent endorsees. it is proper to As was required by art. despite art. but rather that that law fell to be determined by the judge seized of the case. DMF 2001. has succeeded to the rights and obligations of the shipper under the applicable national law. 357 See Cour d’Appel de Paris. the third party. May 22. the European Court of Justice answered this question. 750. Cour d’Appel de Rouen. 77-79 for a summary of various. 1093. September 30. 17 of the Brussels Convention 1968. 37 of Decree No. 102 at pp. obs. in acquiring the bill. 1981. DMF 1985. 17 established in The Tilly Russ and other decisions. applying the conflicts rules of his national law. 2002. agreed to by a shipper and a carrier. have no notice of this clause. 17 of the Brussels Convention 1968. See the commentary by Pierre Bonassies. DMF 1985.358 5) Opposability to consignee and endorsees As stated above. 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. 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. 17 of the 1968 Brussels Convention. (Case No 387/98). in acquiring the bill became the assignee of the shipper’s rights and obligations. 1038. reaffirmed that a jurisdiction clause in a bill of lading. 356 . difficult-to-reconcile decisions of the Cour d’Appel de Paris and the Cour d’Appel de Rouen. DMF 2001. June 19. June 21. 2000 (The Seinehaven). [2000] ECR I-9337. Handelsveem BV. DMF 1982. Cour d’Appel de Rouen. DMF 1985. Art. 89. P. however. 2000. Nicolas. DMF 2001. The question therefore is whether they also are bound by it. obs.361 the European Court of Justice.356 French courts have been rather inconsistent in giving effect to art. 17. 83 at p. DMF 1998. 1984. 359 As between the shipowner and the charterer. 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. 17. interpreting the final. re-amended version of art. 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. 2000 (The Nuevo Leon). 1966 and art. DMF 2001. 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. 616. See Tribunal de Commerce de Paris. however. In Coreck Maritime GmbH v. DMF 2001. no.357 and in other cases insisting. 2001. 612. 361 November 9. 48 NCPC.58 bill of lading nor been specifically shown the clause in the bill. November 30. Delebecque. 2002 (The Ubangui). November 29. 1997 (The Clyde Bank). under art. See DMF Hors série no.359 In The Tilly Russ. in some cases recognizing practices established between the parties and international usages in regard to forum selection provisions. produces effects with respect to a third party holder who. 358 Cour d’Appel de Rouen. 684. relating to the opposability to shippers and consignees of bill of lading jurisdiction clauses subject to art.

Delebecque. 1007. 1994 (The Stolt Osprey). 23 of EC Regulation 44/2001 is basically unchanged from art. December 8. indicating that art. 2003. Cour de Cassation. April 2. 2002 (The Aptmariner). pr. DMF 1999. P. See also Cour d'Appel de Nìmes. 1992. November 29. 1997 (The City of Durban). DMF 1995. Bonassies. where the Court did not decide the point because it had not been pleaded by the defendants. (The Silver Sky). Ph. will probably continue to apply under art. 154. 1997 (The Tonia Bondarchuck). 684 at p. together with the shipper and carrier. obs. int. December 8. 1996 (The Fiona).59 verify the reality of the holder’s consent to the clause by reference to the requirements of art. obs. as opposed to “special acceptance”. 572. Cour de Cassation. 72 at p. 556. 2002 (The Aptmariner). amounts to such express acceptance.-Y. cr. note P. Delebecque. 1007. March 4. indicating that in France the consignee is not seen as a mere successor to the shipper’s rights as in certain other E. 74. 20. M. June 25. Cour d’Appel de Paris. November 13. including Coreck Maritime (supra). DMF 1999. Bonassies. of the Convention. 703. 1994 (The Harmony and The Nagasaki). States like Germany. November 28. 41. 93. 694. but rather as either a true party. referring only to “acceptance”. 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. 2002 (The Elpa). Rev. 705.-Y. 1998. 17. P. “Des clauses des connaissements maritimes attribuant compétence à une juridiction étrangère : essai de démystification”. Bonassies on the decision of the European Court of Justice in the Castelleti decision of March 16. [1999] ETL 551. Tassel (an arbitration clause). Delebecque. first para. no. 2003 ETL 321.368 It is unclear. DMF 1997. obs. [2002] ETL 727 at p. para. DMF 1996. November 29. Nicolas. 2000. 723. January 16. [1999] ETL 551. by signature or rubber stamp. 363 . 1999. obs. March 4. note P. “L’entrée en vigueur du règlement communautaire no 44-2001 du 22 décembre 2000 concernant la compétence judiciaire. 368 Cour d’Appel de Rouen. 17 of the Brussels Convention 1968 and that the decisions rendered under art. 339. Revue Scapel 2003. DMF 2003. obs. endorsee or subrogated insurer. 209.U. cr.-Y Nicolas. 367 Cour de Cassation.364 French courts have therefore held that in order to bind consignees and their subrogated underwriters. Bonassies. DMF 1995.-Y. Cour de Cassation. 733. 366 Cour de Cassation. 1992. 23 of the Regulation. Revue Scapel 2003. DMF 1995. note P. 4.369 See P. Bulletin des transports 1997. Delebecque in DMF Hors série no. See also Cour de Cassation.-Y. Cour de Cassation. observations Ph.366 Neither the mere possession of the bill of lading by the consignee or endorsee367 nor its “accomplishment” (i. p. Tassel. Nicolas. la reconnaissance et l’exécution des décisions de justice en matière civile et commerciale”. DMF 2003. June 25. “L’autonomie de la clause de juridiction”.-Y. DMF 2003. 1996 (The Köln Atlantic). 1998 (The Silver Sky).e. 218. October 15. Nicolas on the decision of the Cour d’Appel de Paris. Nicolas. May 27. to the bill of lading (a tripartite contract) or at least the beneficiary of a “stipulation pour autrui”. DMF 1995. 17 of the Convention by the Court of Justice of the European Communities. 2000 (The Nuevo Leon). the consignee is not generally considered to be a mere successor to the rights of the shipper under the bill of lading. Cour de Cassation. Gaudemet-Talon. Cour de Cassation. [2003] ETL 193. DMF 1997. Rèmond-Gouilloud. 259. 14. obs. DMF 2000. Ph. note H. d’Haussy. 41. 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. It would appear that the same principle will apply under the almost identical art. Cour de Cassation. Ph. F. November 14. whether the mere endorsement of the bill by the consignee. note P. no later than at the time of delivery. May 26. note Y. DMF 2003. DMF 1997. Nicolas. 365 See generally Y. 2002. 11. P. 364 See the commentary by P. 369 Cour de Cassation. (The Sonara). 1996 (The Chang Ping). but doubtful. although the commentary strongly suggests that such action would not constitute the “special acceptance” of the clause by the consignee required by French law. obs. See also the commentary of P. of the bill of lading by the third party bearer of the bill.. Cour de Cassation. November 29. DMF 2001. 2003 (The Houston Express). 46. 23 of EC Regulation 44/2001.363 In France. 99. Cour de Cassation. 393.

DMF 1998. See. since not only the consignee. affirming Tribunal de Commerce de Paris.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. 380 at p. Pierre Bonassies . 529 at p. 383. 304. This is a basic principle of conflict of laws. 688. Here again.372 XIII. 479. see Tetley. 374 Adopted at Rome. October 14. DMF 1983.60 When the jurisdiction clause was among the clauses printed only on the long form bill of lading. 372 See Cour d’Appel de Rouen.J. however.371 Where.note. more recently. For the text and a brief commentary. see also Batiffol et Lagarde. or France respectively. in the field of conflict of jurisdiction. 80/934/EEC. 1976. The Frank Pais [1986] 1 Lloyd's Rep..K. 2) The law by which to judge the clause On the other hand. 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. 548. the consignee is proven to have been aware of the clause at or before the completion of delivery of the cargo. January 5. with the Brussels Convention 1968 and.S. R.. DMF 1985. the U. has taken a major step towards that kind of unification. March 2. Achard. in a shipment from Hamburg via Bremen and Valencia to Dubai on an Iranian ship. however. 2002 (The M/V Marimar). in deciding whether a jurisdiction clause should be given effect.E. 1991. he has been held to be bound by it. such a clause was not enforceable as against the consignee.373 In consequence. Appendix “F” at pp. International Conflict of Laws. 371. and only a short form bill was issued and signed by the shipper before being transferred to the consignee. The principle emphasises how necessary it is to have uniform conflict of law rules. ”. therefore. a court. must apply “the system of law with which the transaction has its closest and most real connection . 370 . The European Union. 1981. 333 at p. judged under German law. that clause will not be enforceable as against the third party holder. found in the charterparty. 1984. 373 The Iran Vojdan [1984] 2 Lloyd's Rep. 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. 93. an English Court held that German law had the closest and most real connection and the validity of the jurisdiction clause was.C. Jurisdiction Clauses Per Se . no. December 16. Bulletin des Transports 2003. 1994. 9. 89 at p. obs. L 266/1.1980. November 27. 1980 and in force April 1.10. June 19. Droit international privé. which Cour d’Appel de Paris. but also the shipper could not have had proper notice of the existence of the clause. 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.370 When the bill of lading has been issued under a charterparty and generally refers to the terms. O.The Criteria . without actually reproducing the jurisdiction clause itself. Cour d'Appel de Paris. DMF 1985. EC Regulation 44/2001. 1032-1048. since the latter is not deemed to have known of its contents. including the jurisdiction clause. 1997 (The Istanbul Z).. 371 Cour d’Appel de Paris. The Rome Convention 1980 on the Law Applicable to Contractual Obligations374 is a particularly advanced international instrument. 337. uniform conflict rules are most helpful. DMF 1976. 530.

All jurisdictions use roughly the same criteria. 3(1) and 4(1). 2000 (The Nuevo Leon). 1966. 4(5). 2003. 2003 (The Houston Express0. 1984. see Cour d’Appel de Paris. [1998] S. 376 375 . November 18. absent any express or implied choice of law. July 12. arts. 556. it has been held that a clause calling for suit “before the courts of England” Rome Convention 1980. 996. 684. 20.” For an example of the application of art.C. 377 February 2. See Rechtbank van Koophandel te Antwerpen.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. 2001. March 4. 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. 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. however. 287.Nicolas. v. 418. the carrier was unable to adduce sufficient evidence to support its contention that its “principal place of business” was located in Hong Kong. upheld by the Cour de Cassation. the court's discretion is based on a number of criteria in respect to the clause itself. and Cour de Cassation. 4(5) in such a case. September 9. March 4. that by art. Great Tempo S. DMF 2001. obs. 1998 AMC 1864 (Fed. a jurisdiction clause is not valid unless the name of the actual court is spelled out.61 has harmonized choice of law in contractual matters for all Member States of the European Union. a) Clear and precise Unless the jurisdiction clause is clear and precise. Rome Convention 1980. application for leave to appeal to the Supreme Court of Canada dismissed with costs and without reasons. note P.A. arts. although the clause was found unenforceable because of lack of proof that it had been consented to by the shipper. In some countries. 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. Revue Scapel 2003.-Y.).C. June 12. On the other hand. [1998] 3 F.A.A. 2000 (The Bunga Pelang). although such a clause was found to be quite frequent in bills of lading. November 29. upheld Cour de Cassation. DMF 2001. No. 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.379 Similarly.376 3) Discretion Although there is no general rule as to whether a court will honour a jurisdiction clause. DMF 2001.C. DMF 2003. [1967] ETL 780. November 30. 829. Delebecque. see Cour d’Appel de Paris. where. 4(4) in a bill of lading case. Ph. DMF 1959. See also Jian Sheng Co. DMF 1999. and has sometimes been enforced. 618. 1999 (The Bonastar II). 1037. these presumptions “… shall be disregarded if it appears from the circumstances as a whole that the contract is more closely connected with another country.375 The Convention also establishes rebuttable presumptions to assist the court in determining the national law with which the case is most closely connected. 1959. 379 Hof van Beroep te Brussel. C. Note. [1986] ETL 238. it should not be honoured because it will not allow the parties to know with certainty before which court they are to proceed. For an example of the application of art. 378 Cour d’Appel de Rouen. 4(2) to 4(4).

1040. 382 Cour d’Appel de Douai. 1974. at the shipowner's option. 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. 1976. Jurisdiction was to beat the port of destination (Calcutta) or. which in turn contained a jurisdiction clause. 293. 1973. November 30. See also Cour de Cassation.. March 2.383 a jurisdiction clause reading: “Any and all proceedings against the carrier shall be brought before the competent Court of London . 1995 (The Frauke). 35. DMF 1973. where the jurisdiction clause in a standard-form contract incorporated into a contract of carriage was held to be unenforceable. DMF 1961. ”(emphasis added) was not held to bind the “ship” and an action in rem could therefore be taken in Italy. and consequently.R. July 20. DMF 1976. 336 and Cour d’Appel de Rouen.62 is not sufficient. 385 Cour d’Appel de Rouen. 2000. it was inapplicable. 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. in the United Kingdom.. One wonders. where clauses giving the carrier the option of suing in more than one court were held null and void. nevertheless. DMF 1971. 546 at p. 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. 1984. b) Jurisdiction clauses by reference The reference in another document to a jurisdiction clause should be detailed and precise. 380 . 659. See also Cour d’Appel de Rouen. if this is sufficient notice and is sufficiently certain. 1975. 384 Cour d'Appel de Paris. 548 .S. DMF 1985. see also Cour d’Appel de Paris. 724.384 Where a bill of lading referred to a long form bill of lading. A note of E. DMF 1976. February 5.). Revue Scapel 1996. See also Cour d’Appel de Paris. June 27. 1971. L. 335. May 9. DMF 2001. 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. June 22. 383 [1980] 2 Lloyd's Rep. 381 The Media (1931) 41 Ll.S. June 19. 2000. 1960. In consequence. 80. 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. 549 (C. January 5.381 On the other hand. Rep.” in a bill of lading signed by the shipper. was held to be valid. DMF 1975. 484. In The Lisboa.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. DMF 2001.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. 542. December 17. see also Cour d’Appel de Poitiers.

390 On the other hand. 6(1) of the Brussels Convention 1968). or where it violates a strong public policy of the forum. where a defendant domiciled in a Member State is one of a number of defendants. N. February 25. 531. 391 Cour d’Appel de Paris. c. October 15. DMF 1983.P. obs. 388 Cour de Cassation.388 d) Legibility of the clause A jurisdiction clause is an exception. 1. for the application of art. Tribunal de Commerce de Marseille. May 30. 1982.392 Insurance Co. Zapata Off-Shore Co. 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. February 2.A. Bundesgerichtshof. 6(1) of the 1968 Convention. India Steamship Company389 declared a jurisdiction clause invalid.P.c. 1972 AMC 1407 (1972).386 Similarly. 296. 383. 1979. Jotina 1974 AMC 1190 (S. of North America v. the jurisdiction clause cannot apply if the circumstances of the case forbid dividing the action. Note that under art. See also the legislation of jurisdictions such as Australia. 1979-80 J. May 24. 1. 616. 407 U. not indivisible. DMF 1983. May 30. he may be sued in the courts where any one of them is domiciled. 389 11 Z. Delebecque. DMF 1999. because the size of the print of the clause was too small. 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. See also Cour de Cassation de Belgique. 197980 J. DMF 1983. 295 at p. S. See also European Court of Justice. the Supreme Court of the Federal German Republic in Allianz v. 29. (France). 9. May 11. Cour d’Appel de Paris. 1982. 232.63 damage action brought by a third party. 1976.391 f) Fairness and public policy Courts. DMF 1977.S. New Zealand and South Africa. DMF 1983. the shipowner was held not bound by a jurisdiction clause in a bill of lading issued to the shipper by the time charterer.A. November 20.Y. where it was held that. para. 392 See particularly the American decisions flowing from Bremen v. See a note on the judgment at DMF 1983.S. cited supra.R. 6(1) of the EC Regulation 44/2001 (similar to art. 1974). in their discretion. 387 386 . October 27. 1983. Ph. which generally invalidates foreign jurisdiction clauses on the public policy ground that they oust the jurisdiction of local courts. 81. at p. 37 and Oberlandesgericht Dusseldorf. suit at the place of business of any one of the defendants can be convenient. referred to in The Iran Vojdan [1984] 2 Lloyd's Rep 380 at p. the suits against the various defendants need only be connected. 1965. [1966] ETL 270. Cour d’Appel d’Aix. 1982. In this regard. 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.1975. 1998 (The Albasgracht). [1984] ETL 217. 390 Cour de Cassation. e) Plurality of defendants Where there is a plurality of defendants. DMF 1965. 1982.D. 235. will normally refuse to enforce a jurisdiction clause that appears fundamentally unfair. as where it seems to be the product of fraud or overreaching by the carrier or is inherently unjust or unreasonable. February 4. 143.387 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. 1384. 1983. June 11. 135/82.

C. L. Code sect. D.L. because so often plaintiffs take suit in “… the quintessentially convenient forum for the defendant – the defendant’s home forum”. I am not convinced that a unified approach to forum non conveniens. 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.R. 75-99. however. the burden is normally on the defendant to show why a stay should be granted. then the suit must be dismissed.396 If the court does not have jurisdiction over the subject matter. 1981. Rosa 211 F. See also arts.S.64 XIV. at pp. AMC at p. See also Antares Shipping v. but the presence of a forum selection clause in the former is. In Z. 2000). 368.393 Nevertheless. 450 at p.. “ordinary” forum non conveniens cases]. is preferable.K.J. note 2. (4th) at p. 49 of the Supreme Court Act 1981. France. 50(1) of the Federal Court Act. 1289 “In the latter inquiry [i. 33-41 of the New Code of Civil Procedure: these rules are of public order. In Canada. CJ. see the rules governing the court's jurisdiction ratione materiae (compétence d'attribution) set out at arts.S.C. 393 . See Ravelo Monegro v. see 28 U. c.V. does not have forum non conveniens. 1288-1289. 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. 439-440 per Laskin.S. Davies. ECU-Line N. Pompey v. 22 of the Act. in my view. Fortunately. 463-464.R. 367 at p. Bastarache J. (4th) 577 at p.. 453 at p. 513 (9 Cir. See also the rules governing the court's jurisdiction ratione personae or loci (compétence territoriale) set out at arts. S. In both cases. one where the starting point is that parties should be held to their bargain.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. 588. 42-48 of the New Code of Civil Procedure: these rules are not of public order. sufficiently important to warrant a different test. 587.7. by virtue of the legislation which establishes them.C. Jurisdiction cannot be accepted nor can suit be stayed. In the U.R.).L. under sect. Mar.K. (2003) 224 D. [2003] 1 S. 2003 AMC 1280 at pp.C. 463. and the burden of proof has been deemed to be different as well.R. 456 (H. “Forum Selection Clauses in Maritime Cases” (2003) 27 Tul. The burden is therefore initially on the claimant (plaintiff) to prove the jurisdiction of the forum. 1985.I. where a choice of jurisdiction clause constitutes but one factor to be considered. cited by M. The Ship Capricorn [1977] 2 S. 422 at pp. 1333.L. 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. the Federal Court of Canada has the jurisdiction to construe its originating act and especially heads of maritime jurisdiction set out in sect.R. U. 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. 54.C. 396 The jurisdiction of the plaintiff’s chosen forum over the subject-matter of the dispute is often not an issue. and where the plaintiff has the burden of showing why a stay should not be granted. see also Williams & Glyn's Bank v. c..3d 509 at p.” 395 In the U. 49-51 and the declinatory exceptions described at arts. In France.” 394 Ibid. see sect. R. as a civil law jurisdiction.e. 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.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. Astro Dinamico [1984] 1 Lloyd's Rep.

508. See also 407 U. 400 Z.” Dukane Fabrics v. 402 407 U. Vaasa Line Oy. (2003) 224 D. Only by making such proof can the plaintiff hope to be released from his bargain to sue or arbitrate elsewhere.D. relying on M/S Bremen v. 588. (4th) 577 at p. 501 at p. Some Circuits tend to apply the 330 U. There is no unanimity among American courts.S. 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. upheld in the Supreme Court. why the contractually stipulated jurisdiction. “Thus. 1164. 5) Thereafter.401 it was held: “This is a forum-selection clause and it is prima facie valid and enforceable”. 1985 AMC 67 at p.I.Y. 1 at p.2d 297 at p.D. however. where the Court stated. Pompey v. it was held in Acciai Speciali Terni USA. (2003) 224 D.C. the plaintiff's choice of forum should rarely be disturbed.399 4) If there is a jurisdiction clause. 1414 (1972). 403 181 F. that: “The seminal Supreme Court decision enforcing a forum selection clause places the burden on the plaintiff. 462. Supp. S. 1289.S.Y. M/V Berane.”398 The party seeking the forum non conveniens dismissal must convince the court of every element of the forum non conveniens analysis. ECU-Line N.65 3) Once it is shown that the forum has jurisdiction over the subject matter of the suit. 1985). 464. 2002). 1235.R.V. 1975). Monroga 254 F. 1996). 464. 1418. etc. 398 See also Z. 531 (D. 450 at p. Gilbert:397 “But unless the balance is strongly in favour of the defendant. 1973 (S. that the clause is legible. as to the precise legal basis for such unconditional dismissals. 301. Supp. Zapata Off-Shore Co. to make a ‘strong showing’ that the court should exercise jurisdiction in derogation of the contract. Pompey v. 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.L. 10. Tel Aviv 711 F. 1959 AMC 1327 (1959). at p. 450 at p. 2760 (1987). 397 . 2003 AMC 1280 at p. 180. ECU-Line N. Inc. 928 (4 Cir. that the clause is validly incorporated into the contract of carriage. N. 202. 821 F.”403 XV. 1985 AMC 1192 (S.e. 71 (5 Cir. Lloyd’s of London 94 F.S. 588. and 1972 AMC at p. 399 See In re Air Crash Disaster Near New Orleans. 1289. the party who challenges the jurisdiction clause (usually the plaintiff) has the burden of establishing why a stay should not be granted400 (i. N. 1987 AMC 2735 at p.V. [2003] 1 S. and that there has been notice to the other party. v.3d 923 at p. 359 U. As was said in Gulf Oil v. See also Allen v. 1958). Hre1jin 600 F. [2003] 1 S. to which he has (presumably) agreed.R. courts frequently dismiss suits instituted in breach of valid foreign jurisdiction or foreign arbitration clauses. (4th) 577 at p. Thus in Kooperativa Forbundet v. 2003 AMC 1280 at p.I. the party (defendant) attempting to change jurisdiction has the burden of proof as to why the stay of proceedings should be granted. and also quoted in Perusahaan Umum v.S.S. 1341 (5 Cir. quoted in Carbon Black Export v. 1972 AMC 1407 at p. Md.R.2d 1231 at p. La. 15.L. 1958 AMC 1335 at p. 401 1975 AMC 1972 at p. properly defines the other jurisdiction.402 Citing the same precedent. who brings suit in a forum other than the contractually agreed one. Staying Suit -All Jurisdictions In the United States. 2002 AMC 528 at p.2d 458 at p. is inconvenient or why suing there will be unjust or unreasonable to him or will lead to consequences contrary to public order or to public policy of the original forum).2d 1147 at p.C. 1983).R.

of Aust. S.2d 393 at pp.S.406 The inherent power of the court to regulate its own proceedings can also be applied either to dismiss or to stay proceedings. 2002). 606. Inc. judgments staying suit will be conditional on the defendant agreeing to appear and appearing in the new jurisdiction. Dis. 1999). Underwriters at Lloyd’s. London 148 F. Kysar 983 F. Supp. 324.S. 56 F. v.66 Federal Rules of Civil Procedure. 1174. Davies. 1998). ibid. the date of the filing of this lawsuit” See also Snam Progetti S. Cir.P. Akai Pty. 123 (C.2d 1110 at p. 407 Licensed Practical Nurses. v. 2001 U. Orient Overseas Line 1976 AMC 212 at p. M. see M.D. Very often. Wash. whether service may be made. note 1 (1 Cir. Va. on the time for suit defence being waived and on appropriate security being filed. L. 444-445 (High C. Refco.3d 825 ast p. 408 See. 410 Hartford Fire Ins.3d 1285 at p. 1975 AMC 631 at p. 2000).407 In England and Commonwealth countries. N. but rather by stays of proceedings. Co. 119 at p. v. Vetrerie Riunite. Corporation of Lloyd’s 999 F. 1999 AMC 2053 at p. In foreign forum selection clause cases too. 1996). COGSA. Co. Co. “Forum Selection Clauses in Maritime Cases” (2002) 27 Tul. 418 at pp. Frietsch v. 2948-2949 (E. cited by M.S. Inc. June 12. N. Inc. 214 (W. unreported. 210 F. 376. Ltd. 2001.” 404 . COGSA applies and the foreign court reduced the rights of cargo claimants below the minimum guaranteed by U. 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. 633 (S.D. Lambert . it is preferable that the court stay proceedings409 rather than dismiss them. 2001 WL 667804. 2004 AMC 172 at p. Rules 12(b)(1) (dismissal for want of subject-matter jurisdiction). Lauro Lines 387 F. and even whether the other court will accept jurisdiction).C. For a thorough analysis of the differing approaches of different American circuit courts of appeal to this matter. Allianz Ins. Supp. 407-408. 131 F. See.C.. Davies. 886-887 (S. v. 406 See. 207 (7 Cir.2d 206 at p. 175 (7 Cir. Lipcon v. by contrast. M/V Peace River 39 F.3d 603 at p.410 This is an intelligent and proper approach. This preserves the legitimate rights of the claimant as to time for suit and other unknowns and imponderables (e. 2003). Ulysses Cruises. Wolfgang Preinfalk.A. 789-790. Hugel v.A.. 630. 1975. 188 C.v. 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. v. 1989). Va. Kukje Hwajae Ins. Wharf (Holdings) Ltd. of Canada v.R. for example. 1993). 1995). v. Inc.3d 1207 at p. 830 (7 Cir. Commerce Consultants Int’l. Supp. Co. 2055 (D. stays would seem preferable to unconditional dismissals. 2001). supra at p. 2d 787 at pp. v. Mar. 369-376. faced with a motion of forum non conveniens. 1290 (11 Cir.D.g.D. 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. for example. Supp.2d 628 at p. v. 405 See.Y. forum selection clauses and foreign arbitration clauses are typically enforced not by dismissals. S. Abatement is the dismissal of the action. 2000).J. 2000 AMC 2947 at pp. Longwall-Associates. Fourth Circuit decisions such as Jewel Seafooods Ltd. 1222 (10 Cir.L. Technicians & Health Care Workers of N. 322 at p.). court to re-assume jurisdiction in situations where U.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). 2002 AMC 1598 at p.S. Inc.2d 697 at p.3d 1171 at p.408 Where a court. whereby the courts seized of the motion to enforce the clause does not deny its own jurisdiction. v. but merely declines to exercise it. The El Amria 1981] 2 Lloyd’s Rep. 1601 (9 Cir. United Int’l Holdings. Inc. 131 F. Lexis 8113 (W. People’s Ins. M/V Orsula 354 F. 2000). 2001 AMC 869 at pp. for example.A. GmbH. 1112. Co. 698 (D. Davies. 367 at pp. M/V Hyundai Liberty 294 F. 867 F. Continental Ins. v.Y.p. 1993). Cho Yang Shipping Co.D. particularly as a stay would permit the U. has jurisdiction. for example.Y.

119 at p. See Laker Airways Ltd. Ceres Terminals Inc. where the foreign proceedings are viewed by the domestic court as vexatious or oppressive or unconscionable. for example. for example.L. Grovit (Case No. See other examples cited in Tetley. 2004 (E.S. v. for example. 407 U. [1998] 1 Lloyd’s Rep. Patel [1999] 1 A. The acceptance of anti-suit injunctions has become widespread. Laker Airways Ltd. International Maritime and Admiralty Law. the injunction should only be granted if the forum court decides that the foreign court. Laker Airways Ltd. see CSR Ltd.R. In addition. 412 411 . 402 (H.2d 909 (D. Co. Lee Kui Jak [1987] A. 1970).S. Anti-Suit Injunctions Anti-suit injunctions are closely related to forum non conveniens. Cir. see Amchem Products Inc. and Others (1997) 146 A. v. v.C.). rev’d on other grounds. In the U. 58 at p. 1998). 425 (H. China Trade & Development Corp.412 The forum court will only grant an anti-suit injunction where it is convinced that it is an appropriate forum for the litigation. April 27. See. British Airways Board v.C. Cir. in Amchem Corp.). v. Australia Ltd. v. Sabena Belgian World airlines 731 F. In re Unterweser Reederei. under pain of contempt of court. N.K. SNI Aérospatiale v. 1 (1972). [1986] 2 Lloyd’s Rep. supra. with the jurisdiction of foreign courts. British Columbia (Workers’Compensation Board) [1993] 1 S. oppressive or will otherwise cause inequitable hardship. would have had a reasonable basis for concluding that there was no clearly more appropriate alternative forum. 1987): Gau Shan Co.). For Australia. v. 893 (P. for example.).2d 888 (5 Cir. Patel [1999] 1 A. In Canada. Patel [1999] 1 A. 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. Seventh and Ninth Circuits have issued anti-suit injunctions where the foreign proceedings are vexatious. Assurantie Maatschappij ‘de Zeven Provincien’ [1987] A. Sabena Belgian World Airlines 731 F. aff’d 161 F.” See also Turner v. 2003 at pp. Airbus Industrie GIE v. because anti-suit injunctions interfere. 871 at p. In re Unterweser Reederei. Airbus Industrie v..C. to prevent parties from See the discussion of the six steps in this process surrounding notes 12 to 15. and the foreign court has taken. Choon Yong 837 F.S. where the House of Lords referred to the “… indirect interference with the foreign court which an anti-suit injunction entails. C-159/02).Y. and that the injunction is necessary to prevent and injustice. 1970). 119 at p. M. v. For the U.C. 413 See. 123. [1998] 1 Lloyd’s Rep. iCigna Ins. because of its real and substantial connection with the case.R. jurisdiction. For Canada.D.2d 33. British Airways Board v.). Laker Airways Ltd.2d 888 (5 Cir. 414-415. Where a party has already taken suit in a foreign jurisdiction or is about to do so. see. British Columbia (Workers’ Compensation Board) [1993] 1 S.S. of Aust. 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. 1999 AMC 305 (2 Cir. 637 (H. 1998). 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. 119. v. for example. GmbH 428 F.C. For the U.C. [1998] 1 Lloyd’s Rep. infra.). 1998 AMC 334 (S.411 XVII.L.V. Bankers Trust Co.3d 115. Airbus Industrie GIE v. v. see.67 XVI. [1985] A. or is about to assume. 1 (1972). contrary to the principle of comity.L. 640.C.). 58 (H. however. 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. Farrell Lines Inc..C.C. Armco [2002] 1 Lloyd’s Rep. had it applied the forum’s principles of forum non conveniens.C. 1992). rev’d on other grounds.L.C. 897. 95 (H.R.).C. In general.). Sixth and District of Columbia Circuits.2d 909 (D. South Carolina Ins. 24. 631 at p.J. 956 F. the Fifth. 1988 AMC 880 (2 Cir.L. [1985] A.L. 138. at least indirectly.. which involves a forum non conveniens type of analysis.C. 317 (H.414 They have also been issued. 631 at p. 897.413 they are issued only sparingly. GmbH 428 F.2d 1349 (6 Cir. The Second. 1984). 1984). 414 See. for example. Donohue v.C. 631 (H.L. on the other hand. 407 U.

Grovit. and which came into force 415 ." This proscription of anti-suit injunctions as between the courts of Brussels Convention States would presumably also apply to preclude anti-suit injunctions (whether sought to prohibit vexatious proceedings or to enforce jurisdiction clauses and agreements) as between States party to EC Regulation 44/2001. 2004. 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. 417 Convention on Jurisdiction and the Recognition of Judgments in Civil and Commercial Matters. at para. on a preliminary reference from the House of Lords in Turner v. (2004) 10 JIML 134.L. Aeakos Compania Naviera SA [1994] 1 Lloyd’s Rep. 2) [1997] 2 Lloyd’s Rep. at para. 422 EC Regulation 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. including bills of lading. in Turner v. 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.).). 416 [2002] 1 W. Rhidian Thomas. 24 and 25. 509 (C. 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.) (bill of lading arbitration clause). 419 Turner v. 87 (C. adopted at Brussels. as such.) (exclusive jurisdiction clause in loan agreement). 418 See the judgment of the European Court of Justice. Any injunction prohibiting a claimant from bringing such an action must be seen as constituting interference with the jurisdiction of the foreign court which. Such an assessment runs counter to the principle of mutual trust which.68 breaching exclusive foreign jurisdiction or foreign arbitration clauses in contracts.R. 710 (bill of lading jurisdiction clause). September 27. 107 (H. C-159/02). adopted by the Council of the European Union on December 22. 2002 for all Continental Bank NA v.415 The Court of Justice of the European Communities. Grovit (Case No. 380 and The Bergen (No.). 1968. 216 (E. Grovit. reported in [2004] 1 Lloyd’s Rep. April 27. April 27. The Epsilon Rosa [2003] 2 Lloyd’s Rep. however. from reviewing the jurisdiction of the court of another member State. See also the case comment by D. C-159/02). except in special circumstances which are not applicable in this case. is incompatible with the system of the Convention.A. leave to appeal to House of Lords refused (charterparty arbitration clause). 2000. as pointed out in paragraphs 24 to 26 of this judgment.L.416 has held.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." 421 Ibid. The ECJ endorsed the opinion expressed by Advocate General Ruiz-Jarabo Colomer in Turner v. The Bergen [1997] 1 Lloyd’s Rep. backed by a penalty. 420 Ibid.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. underpins the Convention and prohibits a court.A.A. 27.418 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. restraining a party from commencing or continuing proceedings before a foreign court undermines the latter court's jurisdiction to determine the dispute. See paras. 2004 at paras.C. 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. 505 (C. The Angelic Grace [1995] 1 Lloyd’s Rep.422 which replaced the Brussels Convention as of March 1. 29 and 30 of the ECJ decision.J. Grovit (Case No.

J. to prohibit the institution or prosecution of litigation in jurisdictions outside the E. Gasser thus promises to also ensure the supremacy of art.423 Moreover. In Gasser GmbH v. thus reversing the controversial English decision in Continental Bank NA v. in effect. that is entitled to decide whether it has jurisdiction in the light of the clause. In consequence. anti-suit injunctions now seem to be unnecessary as between courts in Brussels Convention and EC Regulation 44/2001 States. but must stay the proceedings before it of its own motion.E. render anti-suit injunctions unnecessary. (2004) 10 JIML 131. Member States therefore seems to be a thing of the past.C. where a jurisdiction clause is involved. Baatz. where the initial proceedings in such a case are instituted before a court in a Brussels Convention State. in alleged violation of a clause conferring exclusive jurisdiction on a court in another such State.U. 29. [2004] 1 Lloyd’s Rep. The court designated by the clause and before which proceedings are subsequently taken on the basis of that agreed jurisdiction. "Anti-Suit Injunction: La CJCE met fin à un anachronisme" DMF 2004. Member States except Denmark. For the official French text of this decision. 2002. Regulation 44/2001 applies (e. The Gasser decision will likely also apply to the determination of jurisdiction under EC Regulation 44/2001.C.) and subsequent decisions such as OT Africa Line Ltd.). 76. such injunctions arguably continue to be available in cases where neither the Brussels Convention and E. being the court “first seized” within the meaning of art. 21 of the Convention. This is a positive development. Hijazy (The Kribi) [2001] 1 Lloyd’s Rep. 424 (Case C-116/02).424 the Court of Justice of the European Communities held that. it is the court where the proceedings were taken. 423 See the case comment by Renaud Carrier. See also the critical commentary of the Gasser decision by D. 17 of the Convention. if the court first seized establishes its jurisdiction to try the dispute (e. which is entitled to rule first on whether or not it has jurisdiction to try a dispute. may not rule on its jurisdiction. 21 and 17 respectively of the Brussels Convention 1968. 17 of the Convention) to decline jurisdiction in the face of a valid clause attributing exclusive jurisdiction to the court second seized. 27 of which is similar to art. on March 1. “Who Decides on Jurisdiction Clauses?” in [2004] LMCLQ 25 at p. 27 over art.U.C. 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. 23 of EC Regulation 44/2001. In this way. because the jurisdiction clause is not valid or is not exclusive). 21 of the Brussels Convention 1968.A.U.425 While the issuance of anti-suit injunctions as between E. see DMF 2004. Aeakos Compania Naviera SA [1994] 1 Lloyd’s Rep. L 12/1 to L 12/23. 413. being the court “second seized”. as a result of another development in European law. 17. For the text.J. 21 over art.69 E. On the other hand. 425 See Y. The application of this rule will. .g. 21 of the Brussels Convention 1968 or the court designated by the jurisdiction clause under art. 21. 505 (C. it is the court first seized of the dispute. 222 (E. The decision constitutes the triumph of art. 403. unless and until the court first seized declines jurisdiction. Rhidian Thomas. consistent with the historic principle of comity in private international law and the increased judicial integration of Europe since 1968. that decides on its jurisdiction in the light of the clause. because the court first seized is obliged (by art. under the Brussels Convention 1968. the court second seized must decline its jurisdiction. except Denmark. Denmark continues to be governed by the Brussels Convention 1968. even if proceedings there are protracted. art.g. see O.). corresponding to arts. and possibly also in cases within the in all Member States of the European Union. 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. MISAT SrL. v. within the meaning of art.

c. 428 See. and E. See also Phillip Alexander Securities and Futures Ltd. third para. see the Civil Jurisdiction and Judgments Act 1982. for example. Regulation 44/2001. 36(1)(a)(iv) and art. art.. sect. the Québec Civil Code 1994.U. 2002. 115 (C. 35(3)). U. See.A.429 These basic conflict of law principles and rules constitute a strong support for jurisdiction and arbitration clauses in bills of lading. adopted at New York. For the U. See Briggs & Rees. See also EC Regulation 44/2001. 206 at p. because the Regulation did not apply to arbitration. Regulation. June 21. See also Briggs and Rees. 391-392. and a powerful defence against attempts to circumvent them.L.K. 1985. being The Ivan Zagubanski [2002] 1 Lloyd’s Rep.11 at p. 215. and also disregards an anti-suit injunction prohibiting him from commencing or continuing such proceedings. 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.302.C. 27. 212. 21 of the Brussels Convention 1968. June 10. para. 439. on the ground that it violates public policy. 206 at p. Civil Jurisdiction and Judgment. art. 27(1). V(2) (recognition or enforcement not in accordance with public policy of country where recognition and enforcement are sought). Bamberger [1997] I. for example. 7.U. 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. 106. involving arbitration clauses.427 Even if no anti-suit injunction has been issued. 1959. note Goldman. lack of jurisdiction may not be invoked to refuse recognition to a judgment rendered in another Member State (Brussels Convention. 330 U. in particular art. 3 Ed. 5.K. para. The Hari Bhum [2004] 1 Lloyd’s Rep. Civil Jurisdiction and Judgments.N. 1(2)(d).C.S. See also the corresponding provisions of the UNCITRAL Model Law on International Commercial Arbitration. adopted at Geneva. 73 at p. 27(1) of the Brussels Convention 1968. 427 See. 34(1).426 XVIII. art. holding that the first seized rule of art. corresponding to art. by virtue of its art. The decision invoked a similar decision rendered under art. 3. 1958.49 at pp. 3155(1) (lack of jurisdiction) and (5) (manifest inconsistency with public order as understood in international relations). 3 Ed. arbitration being excluded from both the scope of both the Brussels Convention and the EC Regulation. the Brussels Convention 1968 at art. 27(1) or the Regulation’s art. 27 of EC Regulation 44/2001 did not apply to an arbitration clause. 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. 34(1). the decision may be refused recognition and enforcement in the contractual forum. for example.) and The Hari Bhum [2004] 1 Lloyd’s Rep.Pr. In cases subject to the Convention or the Regulation. 1982. For France. art. 32(1) in cases not subject to either the Brussels Convention 1968 or the E.T. Clunet 1964. as in other contracts. 36(1)(b)(ii). so that it was not necessary to stay proceedings until the Finnish Court had ruled on its jurisdiction in the light of the clause. State contrary to an anti-suit injunction issued in England in support of an English arbitration clause. 2002. 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. in force June 7. v. V(1)(d) (composition of the arbitral tribunal or arbitral procedure not in accordance with agreement of parties) and art. 429 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention 1958”). 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. and actually obtains a judgment or award from the foreign authority. 426 .70 E. at 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.. 28..

293-296. 4. the forum court usually follows a six-step process. “Anti-suit injunctions in cross-border insolvency: A restatement” (2003) 52 ICLQ 697.A.). 432 See D. supporting the availability of contractual damages as a sanction for the breach of an exclusive English jurisdiction clause. and 6) the propriety of granting or refusing a stay of proceedings. 3) the appropriateness of sending the case elsewhere for trial or arbitration. comparing the two positions and arguing that contractual damages for such breaches are problematic because of basic differences between arbitration and jurisdiction clauses.. seldom negotiated or expressly consented to by the shipper or the consignee. 430 . 431 See Donohue v.C.26 at pp. Akar [2003] EWHC 797.A. of which he may avail himself notwithstanding See. Ho. Ltd. Union Discount Co. “Breaking promises to litigate in a particular forum: are damages an appropriate remedy?” [2003] LMCLQ 435. 25 (H. Neither the Hague Rules nor the Hague/Visby Rules regulate jurisdiction or arbitration. In addition. The forum selection clause is usually a “boilerplate” term of the bill. 375 (C. v. provide the cargo claimant with options of places in which to sue or arbitrate.g. if any. and A/S D/S Svendborg D/S of 1912 A/S Bodies Corporate trading in partnership as ‘Maersk Sealand’ v. 1517 at pp. inquiring into: 1) its own jurisdiction.). a charterparty).430 More recently. however. See also A. 2) any legislative constraints on that jurisdiction. Yeo. It is therefore scarcely surprising that “choice of forum” clauses tend to be contested. who criticizes this development.R. the designated jurisdiction frequently has little.). “Damages for breach of English jurisdiction clauses: more than meets the eye” [2004] LMCLQ 46. It has been recognized for some time that contractual damages may be awarded for the violation of an agreement to arbitrate in England. connection with the parties and their contract and is typically more convenient to the carrier than to cargo. 2002.B. London. Civil Jurisdiction and Judgments.). When such contestation arises. Rees. para. Doleman & Sons v.A. Ossett Corporation [1912] 3 K. Tan & N. Mantovani v. on the other hand. The Hamburg Rules and the Multimodal Convention.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.L. Zoller [2002] 1 W.432 XX.71 XIX. See also Chee Ho Tham. But see also L. 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. 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. but nevertheless suggesting that an alternative basis for such damage awards may be found in English tort law (e. in the tort of malicious prosecution and/or the tort of unlawful interference with business or trade).g.L. 4) the wording and effect of the clause in the bill or incorporated document (e. 3 Ed. unreported. the possibility of such damages also being awarded for breaches of exclusive English jurisdiction clauses has also been recognized by English courts. 257 (C. This development appears somewhat controversial within the British academic circles. Armco [2002] 1 Lloyd’s Rep. according to a specified national law or international carriage by sea convention. for example. Carapelli SpA [1980] 1 Lloyd’s Rep. 5) the in rem and/or in personam nature of the suit. forum selection and arbitration agreements may now be further reinforced (in England at least) by the awarding of damages for their breach. Briggs & P. 1524 and 1527 (C.

Australia. at the cargo claimant’s option. Because few major shipping nations are party to the Hamburg or the Multimodal conventions. all permit choice of forum by contract. following the principles laid down in The Eleftheria434 and The El Amria. where such an option would be available if the Hamburg Rules applied to the contract of carriage. British and Commonwealth courts. and now EC Regulation 44/2001 on jurisdiction and the enforcement of judgments in civil and commercial matters. connections with the competing jurisdictions and the law applicable to the dispute. the Lugano Convention 1988. rather than the defendant.435 require the plaintiff to show “strong cause” why he should be permitted to proceed elsewhere than where the contract stipulates. the Brussels Convention 1968. in ordering stays of proceedings. 123-124 (C. is the clearly more appropriate venue for adjudicating the dispute. National law is. New Zealand and South Africa) prohibits parties from “ousting” the jurisdiction of the national courts by way of forum selection clauses. has permitted Canadian suit or arbitration. 434 [1969] 1 Lloyd's Rep.A. explains much of the unwillingness of major shipping nations to becoming party to the Hamburg regime. the Nouveau code de procédure civile lays down strict criteria under which contractual forum selection provisions will be upheld. where the relevant clause is written or evidenced in writing. 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. by comparison. 433 . so as to send the case to its “natural forum”. Most standard forum selection provisions in bills of lading would be enforceable under those rules. clear and apparent on the face of the bill of lading. In French internal law. In the presence of a jurisdiction or arbitration clause. on grounds of forum non conveniens. although such laws typically treat arbitration clauses more liberally than jurisdiction clauses. courts in such nations are thrown back on their national law in assessing the enforceability of the impugned clause. Canada. 237. In Europe.).72 any inconsistent forum selection or arbitration clause in the bill of lading. however. All relevant circumstances are considered. the forum non conveniens analysis has been articulated differently and it also requires the plaintiff. and genuinely agreed to by the shipper and consignee. rather than the contractually designated one. as well as convenience and expense for the parties and the juridical advantages and disadvantages of proceeding in one or other venue. unfortunately. however. 119 at pp. as a condition of release from his jurisdictional “bargain”. requiring them to be between merchants. or reflects established practices between the parties.g. despite a foreign forum selection or foreign arbitration clause. including the location of witnesses and evidence. National legislation in certain countries (e. or generally conforms to international usage in the trade concerned. Where no statute prohibits or restricts jurisdiction clauses. Courts in common law countries and some mixed jurisdictions are empowered to exercise discretion. 435 [1981] 2 Lloyd's Rep. It is by no means easy. however. far from uniform in this important area. in international shipments to and/or from their ports.433 The options enable claimants to institute proceedings in places having some genuine connection with the contract of carriage and its performance. in its Marine Liability Act. to establish that the local forum court.

fraudulent or repugnant to public policy – a daunting task. if shippers. Jurisdiction and arbitration of marine cargo claims thus remains a controversial issue and an ongoing challenge for maritime carriage of goods law everywhere. Q. carriers.law.ca website: http://tetley. 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. A fair and effective international cargo liability regime must strive to resolve this important problem. because they have been found incompatible with the Brussels Convention 1968 (and presumably with EC Regulation 44/2001 as well). but within Europe it increasingly appears that their employment to enforce jurisdiction clauses is invalid. Quebec. obliging cargo claimants to meet the heavier onus of proving that enforcement of the clause would be unreasonable. used to enforce jurisdiction and arbitration clauses. In consequence. William Tetley. 1. the importance of the convenience of the litigants and the connections of the case have declined in significance.ca/ 436 437 407 U. 528. Prof. Canada e-mail: william. 515 U. 1972 AMC 1407 (1972).tetley@mcgill.S.S. in a more uniform manner than at present.73 forum clause applicable to the claim. where since the Bremen436 and Sky Reefer437 were decided. receivers and underwriters are to be well served in the years ahead. and because they may be unnecessary in the light of recent interpretation of the provisions of those instruments.C. . The violation of exclusive jurisdiction clauses and arbitration clauses and agreements is also strengthened today by conflict of laws rules precluding recognition and enforcement of foreign judgments and awards rendered in breach of such provisions and (in England) by the possibility of damage awards for such violations. Faculty of Law McGill University Montreal. and are.mcgill. 1995 AMC 1817 (1995). Nor is it easy in the United States. Anti-suit injunctions can be.

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