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© Prof. William Tetley, Q.C.∗
Preface I. II. III. Introduction Choice of Jurisdiction – Six Steps to Follow International Carriage of Goods Conventions and Choice of Jurisdiction 1) 2) 3) 4) IV. V. VI. The Hague Rules 1924 The Hague/Visby Rules 1968/1979 The Hamburg Rules 1978 The Multimodal Convention 1980
Jurisdiction Clauses Invalid under National Law Jurisdiction Clauses Restricted by National Law Jurisdiction Clauses Restricted by European Law 1) 2) 3) The Brussels Convention 1968 EC Regulation 44/2001 Other conventions
Is There a More Convenient Jurisdiction?
VIII. United States - Forum Non Conveniens 1) 2) 3)
Private and public interest factors Forum non conveniens –not a characteristic feature of U.S. general maritime law Admiralty - no special restrictive rule
Professor of Law, McGill University; Distinguished Visiting Professor of Maritime and Commercial Law, Tulane University; counsel to Langlois Kronström Desjardins (Langlois Gaudreau O’Connor) of Montreal. The author is indebted to Vanessa Rochester, a third-year student at the Faculty of Law of McGill University and to Robert C. Wilkins, B.A., B.C.L., for their assistance with the preparation and correction of the text.
2 4) XI. Forum non conveniens and in rem jurisdiction
United States – Foreign Forum Selection Clauses in Bills of Lading 1) 2) 3) 4) Foreign jurisdiction clauses generally unenforceable Foreign jurisdiction clauses presumptively valid Foreign arbitration clauses presumptively valid Criteria as to enforcement - U.S. a) Is U.S. law being avoided? b) The parties should not lose rights already acquired c) The convenience of the new jurisdiction is less important today d) Must not contravene sect. 3(8) e) Reasonableness f) In rem - United States g) Transfer within the U.S. Jurisdiction clauses and third parties
The United Kingdom - Forum Non Conveniens 1) 2) 3) 4) 5) 6) 7) Introduction The modern regime – U.K. The rule in The El Amria Res judicata Public policy, English law U.K. - E.U. – EC Regulation 44/2001 Service out of jurisdiction - The 1982 Act and CPR Rule 6.20 a) Where leave is not required b) Where the court's leave is required 8) No service of a claim form in rem out of jurisdiction Canada - Forum Non Conveniens 1) 2) Introduction - the principle Jurisdiction clauses - the criteria - Canada
France 1) 2) 3) 4) 5) Introduction Prohibition under law French domestic law - jurisdiction clauses France and the 1968 and 1978 Conventions Opposability to consignee and endorsees
XIII. Jurisdiction Clauses Per Se - The Criteria - All Jurisdictions 1) The conflict of law rules
3 2) 3) The law by which to judge the clause Discretion a) Clear and precise b) Jurisdiction clauses by reference c) Jurisdiction clauses and third parties d) Legibility of the clause e) Plurality of defendants
XIV. Burden of Proof – Forum Non Conveniens and Jurisdiction Clauses XV . Staying Suit -All Jurisdictions
XVI. The Six Steps Applied XVII. Anti-Suit Injunctions XVIII. Non-Recognition of Foreign Judgments and Awards XIX. Damages for Breach of Jurisdiction and Arbitration Clauses and Agreements XVIII. Conclusion
he can also be a pleasant and popular guest. Wilkins. for their assistance with the preparation and correction of the text. He has been happily married to Ruth for 42 years. He is also an administrator who.. McGill University. cheerful persona. He has also been a kind and generous friend.C.A. judge of good wine and remarkable and generous host. counsel to Langlois Kronström Desjardins (Langlois Gaudreau O’Connor) of Montreal. With appreciation and gratitude. which is much more difficult. B..C. analyst and writer on law – in other words. I have known him for twenty-five years as a devoted and very competent law teacher. took the great tradition of maritime law teaching at Tulane and gave it form. as well as a researcher. Niels F. Q. as a scholar. so that the Tulane Maritime Law program is outranked nowhere else. order and direction. William Tetley. Tulane University. B. Johnsen Professor of Maritime Law at Tulane University Law School. William Tetley. a doctor son and what could be a spoiled grandson. Q. The author is indebted to Vanessa Rochester.L.C. has a lawyer son. . Distinguished Visiting Professor of Maritime and Commercial Law. a third-year student at the Faculty of Law of McGill University and to Robert C. CANADA ∗ Professor of Law.∗ Preface PROFESSOR ROBERT FORCE It is an especial pleasure to join with colleagues from around the world in honouring Robert Force.4 JURISDICTION AND FORUM NON CONVENIENS IN THE CARRIAGE OF GOODS BY SEA Prof. as Director of the Tulane Maritime Law Center. An esteemed chef. Bob Force combines all this with a happy. Professor McGill Law Faculty Montreal.
Paterson Steamships Ltd. 285 U. v. at pp. The Jerusalem 13 Fed Cas. so that a whole new body of forum non conveniens law has sprung up.4 while it has been known much earlier in some civil law regimes5 and in Admiralty law. Compania Colombiana del Caribe) 339 U. 1983).) 13. 420-421.A. where the House of Lords recognized forum non conveniens as a doctrine of general application in Scotland. showing the significant progress that has been made towards international uniformity of conflict of law rules through international conventions and national legislation based on such conventions. v. 865-868. 365-366 (1885). A/S Den Norske Afrika Og Australie Line. 209. 501 at p. 422 at p.R. Introduction In the past. See also American Dredging Co. which passage was quoted in Gulf Oil Corp. 344. 918 (1994). 1994 AMC 913 at p. To fully understand forum non conveniens and the discretionary right of the trial judge. motions for stay have been received more sympathetically. 413. 71-72 (5 Cir. International Conflict of Laws. 516 (1932).1 Choice of jurisdiction is one of the three major branches of conflict of laws. although deciding that forum 1 .5 I. 4 Canada Malting Co. at pp.S. 339 at p. 1235. as well as the yet more recent movement towards international conventions on procedure. 450.2 and is of major importance in maritime law. at pp. in recognizing that forum non conveniens “originated in Scotland. however. ibid. courts properly seized with a dispute. Supreme Court justices. 443 at p.) 435 at p. Reyno 454 U. See American Dredging Co. where he refers to “the Scottish legal doctrine of forum non conveniens”. 449. 285 U. Gilbert 330 U. 7293) (C.  2 S. Navigation (Les Armateurs Français)  S. because of the mobility of ships (the usual defendant) and the fact that carriage by sea very often involves more than one jurisdiction.S.L. 1932 AMC 512 at p. v. 1994 at pp.7 Canada Malting Co. 1099 (1950). 451. 1933). the courts of all nations have jealously guarded their jurisdictions and have looked unfavourably on clauses in contracts which called for suit elsewhere. 1982 AMC 214 at p. who mentions Société du Gaz de Paris v.S. and became part of the common law of many States.S. 5 See Lord Diplock in The Abidin Daver  1 Lloyd's Rep. 1932 AMC 512 at p. Unfortunately that is not the case today.L. See Tetley.” 6 The Belgenland 114 U.D. Recently. Paterson Steamships Ltd.S. 1985 AMC 67 at pp. 200 and Lord Wilberforce at p. 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. 355 at p. The Cali (Swift & Co. v. 697. 791 and 867. v. The Maggie Hammond 76 U. one must appreciate that forum non conveniens has been used by both courts of Equity and of common law. In consequence. 65 F. 422-423.S.C. v. Perusahaan Umum v.C. (1925) 23 L. (H. 559 (No. Just as it is imperative that maritime law be uniform and international and that choice of law rules be similar throughout the world. Miller 510 U. 207.S. See also the reference to “Scottish authorities” in Antares Shipping v. 918 (1994). 248 note 13. 504 (1947). 197 at p. The Capricorn. Mass. 1994 AMC 913 at p. 443 at p..2d 392 (2 Cir. v. S. have usually refused motions calling for the stay of proceedings.3 so is it essential that choice of jurisdiction rules used by various seafaring nations be the same. United States Merchants' & Shippers' Ins. citing Piper Aircraft Co.C. where three of five U. Rep. 457 (1870). 3 Ibid. The use of a consistent conflict of law methodology would be another major boon to transnational harmony in private international law. 1814).2d 1231 at p.6 which latter has its closest connection with the civil law. 2 The other two branches are choice of law and recognition of foreign judgments. Miller 510 U. 1950 AMC 1089 at p. 515 (1932). 684 at p. 37-43. 235 at p. as does Lord Reid in The Atlantic Star  2 Lloyd's Rep.S. Co.S. (9 Wall. 223 note 13 (1981). v. Tel Aviv 711 F. 413 at pp. See Tetley.S.
1998. in so doing. Int’l L. of course.C. it was not deciding whether it had jurisdiction to determine the case on its merits. There are two distinct kinds of jurisdiction therefore: “the first is jurisdiction to decide the action on its merits. and in force November 1. February 23. (a) on the ground that the claim is being proceeded with in another court or jurisdiction..A. the court must look to the law which applies to the case before it. 50: “(1) The Court may. 1992. signed at Brussels. See also Canada’s Federal Court Act. sect. Astro Dinamico  1 Lloyd's Rep. 1985. and in force June 2.). Which Benefits from Both Its Civil and Common Law Heritages)” (1999) 23 Tul. to determine if there is a direction in that law as to jurisdiction. 2 Ed. 422 at pp. 1980. and in force June 23. 11 United Nations Convention on International Multimodal Transport of Goods. the Visby Rules. L. 1981. F-7. “Maritime Law as a Mixed Legal System (with Particular Reference to the Distinctive Nature of American Maritime Law. For example. See also comments by Laskin. consideration is given to the very special Admiralty problem of declining jurisdiction when an in rem arrest of a ship has been made. 7-60.K. 439-440.B.” . Canada and France in respect to carriage of goods8 under bills of lading. signed at Brussels. 123 (H.J. signed at Geneva. out of hand. 9 Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading. August 25. 9-24 and 473-474. In some jurisdictions. held that it had jurisdiction to entertain an application for a stay (in virtue of sect.6 The present article describes choice of jurisdiction rules and the principle of forum non conveniens in Admiralty in the United States. 1977. 12 There is no intention in this article to go into questions regarding the jurisdiction conferred upon various courts by national legislation. c.14 Secondly. Tetley.) reads: “assuming the claim to be otherwise within its jurisdiction…” 14 The House of Lords.L. Firstly. Barking Corporation  1 K. Chap. C. The Capricorn  2 S.L. 2003. 1924. otherwise. 1968. at pp. Also examined is the effect of the Hague Rules. 137.” 7 Tetley. 107. Finally. Tetley. Maritime Liens & Claims. stay proceedings in any cause or matter. in its discretion. 1978. “A Definition of Canadian Maritime Law” (1996) 30 U. nevertheless agreed that “… within federal courts it [forum non conveniens] may have been given its earliest and most frequent expression in admiralty cases. the United Kingdom. 1931.C. R.B.” See Wilkinson v. it must dismiss the suit. U. a court which may not have jurisdiction on the merits may have jurisdiction by statute to decide a question of stay. however. 721 at p. in Antares Shipping v. International Maritime and Admiralty Law. the Australian Carriage of Goods by non conveniens was not a characteristic feature of admiralty law. 453 at p.9 the Hamburg Rules10 and the Multimodal Convention11 on jurisdiction clauses and on the principle of forum non conveniens. but that. May 24. 49(3) of the Supreme Court Act. 13 The first principle of Lord Brandon in The El Amria  2 Lloyd’s Rep. 10 United Nations Convention on the Carriage of Goods by Sea. 119 at p. the court seized with the case must decide if it has jurisdiction12 by virtue of the legislation which created it. or (b) where for any other reason it is in the interest of justice that the proceedings be stayed. 456. & Comm. Mar. 8 International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading.C. 725 (C. Tetley. in William Glyn's v.R. 1981. II. c. reprinted  ETL 469. Tetley.S. “The General Maritime Law – The Lex Maritima” (1994) Syracuse J. not in force.J.13 Only if it has jurisdiction may it proceed. and the second is jurisdiction to decide whether the Court has jurisdiction of the former kind. signed at Hamburg March 31.Rev.1 at pp. Choice of Jurisdiction – Six Steps to Follow Choice of jurisdiction problems may be settled by the following six steps taken in order. 317. 54).
is appropriate and whether the balance of convenience favours the case being heard there. 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. as amended.. adopted at Brussels. at pp. III. consignees or endorsees. 17 See. 861-862 and 863-864 respectively. No. Montreal. if the new jurisdiction is deemed to be convenient and proper in the circumstances. International Maritime and Admiralty Law. 11(1) and (2). Such clauses ordinarily call for suit or arbitration in the jurisdiction most convenient to the carrier. 98. See also BIMCO's non-negotiable Liner Sea Waybill (LINEWAYBILL").e. the incorporation by reference and notice of the incorporation must be considered carefully. See the official French text reproduced in Tetley.17 Bills of lading under the Rules are often not signed by the shippers. 1111-1120. Sijthoff. Fifthly. which arrest normally gives jurisdiction in the place of the arrest. 3 Ed. 1924.. but in some document (such as a charterparty). August 25. e. August 22. to which it is called upon to defer. the court will stay the suit by an order which will preserve the rights of the parties. the terms and specific wording of that clause must be considered carefully. Inc. the BIMCO Liner Bill of Lading (Conlinebill 2000”).. ed. who therefore do not have the jurisdiction/arbitration provisions brought specifically to their attention. issued by BIMCO. 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. 2003. Marine Cargo Claims.g. provided they are clear and unambiguous. 1978 at p. See also two sample clauses in S. If the jurisdiction clause is not in the bill of lading (or other immediate evidence of the contract).). 1931 (commonly known in English-speaking countries as the "Hague Rules"). Les Éditions Yvon Blais. 174. 1988 at pp. i. if there is a jurisdiction clause in the contract (the bill of lading). at pp. and an English translation. Statutory Rules 1998. 16 International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading. 1997 at clause 3. of November 2000 at clause 4. Thirdly. For the texts of these two forms. as amended by the Carriage of Goods by Sea Regulations 1998. Otherwise the court will retain the suit in its own jurisdiction and will refuse the motion for stay. Appendices “P” and “Q”. see Tetley. 1121-1129. 160 of 1991 (Cth. if it is reasonable. sect. Mankabady. Sixthly.7 Sea Act 199115 holds invalid any clauses in most sea carriage documents ousting Australian jurisdiction. to verify that such incorporation is complete and valid. the court must decide if the other jurisdiction. Fourthly. very often in the place of the carrier’s principal place of business.. . ibid. The Hamburg Rules on the Carriage of Goods by Sea. 2) 15 The Hague/Visby Rules 1968/1979 No. Nevertheless. 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. both types of clauses have generally been held valid by courts in bill of lading disputes. Leyden/Boston. and in force as of June 2.
C. adopted at Brussels. 4) the port of discharge. L. as amended by the Visby Protocol 1968 and the Visby S.E. while still adhering to the Hague/Visby Rules. L. such clauses are generally upheld by courts and may be set up against parties to the bill of lading or similar document of carriage.D. on the other. 2001. however.R.10. for example.J. as . Again. See. to designate the place of suit after a claim under the contract of carriage by sea has arisen. at the petition of the defendant. 21(2) solves the difficult problem of jurisdiction being acquired by the arrest of the ship in rem. 1994. Norway and Sweden). The arrest is valid but. the suit must be transferred to an acceptable jurisdiction defined in art. 30. the Swedish Maritime Code.20 Under this Code. 1968 (O. at his option. published in Swedish and English by the Axel Ax:son Johnsons Institut för sjörätt och annan transporträtt. In particular. 2000. art. the options as to places for suit are similar to those permitted by the Hamburg Rules. 21(1) upon the defendant providing adequate security to ensure payment of any subsequent judgment. 2) the place where the contract of carriage was made if the defendant has a place of business. The Hague Rules 1924. however. 1978. 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. 2 Ed. 19 United Nations Conventions on the Carriage of Goods by Sea. by agreement. and 5) any additional place designated for that purposes in the contract of carriage by sea. 1979 (in force February 14.12. adopted at Brussels on September 27. A number of countries have enacted national legislation in an effort to give effect to the Hamburg Rules options as to jurisdiction. Finland. nr 22. December 21. 20 This common Nordic Maritime Code came into force on October 1. In addition. 1992. as between the Danish and Norwegian versions of the Code. 1984) (commonly known as the "Visby S. 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. adopted at Brussels.8 The Hague/Visby Rules 1968/1979. for example. branch or agency there the contract through which the contract was made. 21(5) permis the parties. Jure AB. updated to June 30. on the one hand.D.1972. 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.C. Stockholm. and the Finnish and Swedish versions. 304/36.18 like the original Hague Rules.R. The numbering of the articles differs. 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. contain no provisions on jurisdiction or arbitration. 31. see English text in O. Art.. and in force November 1. are commonly known as the "Hague/Visby Rules 1968/1979". nevertheless adopted a common maritime code in 1994. Protocol 1979. Art. Protocol 1979"). 299/32. The Nordic countries (Denmark. 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. signed at Hamburg on March 31.E. 3) the port of loading. 3) The Hamburg Rules 1978 The Hamburg Rules19 at art. 21 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters.1978). February 23. whether or not those parties have really taken cognizance of their terms.J. 21(1) authorizes the cargo claimant. 1968 (in force June 23. but in some cases with certain national qualifications.
6. and as later replaced for all European Union states. 123 of 1997. 2002. 310 and 311 of the Danish Maritime Code. branch or agency through which the contract was made.1988). No. 27 The term “sea carriage document” is defined in Schedule 1A (Schedule of Modifications) of the Carriage of Goods by Sea Regulations 1998. not in force.C. 198024 has similar provisions at art. 7(2) of which authorized the addition of a “Schedule of Modifications” to the 1991 statute as amended.22 both of which conventions make the domicile of the defendant the major criterion of jurisdiction. or 3) the place of taking the goods in charge for international multimodal transport. adopted at Lugano. which governs jurisdiction and the recognition and enforcement of judgments in civil and commercial matters as between the states of the European Union and those of the European Free Trade Association (Iceland. 319-321.2. Chap. provided that the defendant has there a place of business. 1988. or 5) any other place designated for that purpose in the multimodal transport contract and evidenced in the multimodal transport document.25 as amended by the Carriage of Goods by Sea Regulations 1998. 23 See Swedish Maritime Code.E. at art. 2) the place where the multimodal transport contract was made. 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. effective March 1. L 12/1. referring to arts. Choice of Law and Jurisdiction in the New Nordic Law of Carriage of Goods by Sea” (1996) Il Diritto Marittimo 308 at pp.1 and 6. 25 No. 24 United Nations Convention on International Multimodal Transport of Goods. 2000 (O. For example.11. except in respect to actions in rem. para. or 4) the place of delivery of the goods.J.E. sect.2001). the amended Hague Rules28 apply. Allan Philip. This Schedule of Modifications is Schedule 1A of the 1998 Regulations. 25.C. to mean any of the following: a bill of lading. By art. 1980. See also Tetley. 60. The Carriage of Goods by Sea Regulations 1998 amending the Carriage of Goods by Sea Act 1991. IV. were authorized by the Carriage of Goods by Sea (Amendment) Act 1997. September 16. Schedule 1. 26.) 26 Statutory Rules 174 of 1998. L. Regulation 44/2001 of December 22. 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. (O. 11 of the Australian Carriage of Goods by Sea Act 1991. 753-754. in force July 1. 160 of 1991 (Cth. 319/9. or relating to a contract of carriage to which. 1998. 16.23 4) The Multimodal Convention 1980 The Multimodal Convention.J. 26(3). paras. “Scope of Application. Liechtenstein. except Denmark.26 reads: “11 (1) All parties to: (a) a sea carriage document27 to which. 22 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. by E. relating to the carriage of goods from any place in Australia to any place outside Australia or subsequently amended.1.9 Convention 1988. 1(1)(g). signed at Geneva on May 24. 13. “Arbitration & Jurisdiction in Carriage of Goods by Sea and Multimodal Transport – Can we have international uniformity?”  ETL 735 at pp. the parties may agree on a place for instituting an action after a claim has arisen.C. or a negotiable document of title . Norway and Switzerland). sect.
or a bill of lading that. 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. 31 No. note 16. 3 Ed. at pp. 1988.e. . relating to the carriage of goods from any place outside Australia to any place in Australia. Marine Cargo Claims. (Australia) Ltd.). 153. Mitsui & Co.R.): A French bill of lading for a shipment from France to Australia called for suit in France. Kiukiang Maritime Carriers (The Kiukiang Carrier)  159 A. declared that a clause calling for actions to be tried in a French Court was invalid. like sect.R. or relating to a contract of carriage to which. 22 of 1924.  2 N. 28 The “amended Hague Rules” refers to the Hague/Visby Rules 1968/1979. The People's Insurance Co. C.). 544 (High C. See Hi-Fert Pty. v. See.S. are taken to have intended to contract according to the laws in force at the place of shipment. International Conflict of Laws. however.W. 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. Ltd. 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). No. by law.L. being a contract that contains express provision to the effect that the amended Hague Rules [i. See also Akai Pty Ltd.L. Ct.R. (1996) 141 A. 9 of Australia’s former Sea-Carriage of Goods Act 1924.W. 783-784.) 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. but only on condition that the arbitration is conducted in Australia. of Aust.). High C.”30 This legislation is very similar to sect. The Supreme Court of New South Wales. 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. 164-165 (Fed. note 80. Sup. 9(1) of the Act. England. v.32 31 that is similar to a bill of lading and that contains or evidences a contract of carriage of goods by sea. 123 of 1997 (Cth.L. See Tetley. 32 The Federal Court of Australia has been held that sect 11 of the Carriage of Goods by Sea Act 1991. 142 at pp. 374 (Aust.R. 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).10 (b) a non-negotiable document of a kind mentioned in subparagraph 10(1)(b)(iii). Limited v. Sup. Tetley. the amended Hague Rules apply. upheld by the Australian High Court. 1994 at p.S. 11(3) to the 1991 statute. (1974) 24 F. Aust. the Hague/Visby Rules 1968/1979] are to govern the contract as if the document were a bill of lading. as amended for Australia by the Schedule of Modifications (Schedule 1A) of the Carriage of Goods by Sea Regulations 1998. 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 also Wilson v. in appeal  2 Lloyd's Rep. Ct. 29 Subsect.W.S. so as to add sect. 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). (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. 9 of the former 1924 statute as interpreted in the Wilson decision (supra).L.” 30 The Australian Carriage of Goods by Sea Act 1991 was amended by the Carriage of Goods by Sea (Amendment) Act 1997. is not negotiable. 229 (N. Compagnie des Messageries Maritimes  1 Lloyd's Rep. 191. 179 (N. and has received a similar interpretation.). John Churcher Pty Ltd.. or (ii) a non-negotiable document of a kind mentioned in subparagraph 10(1)(b)(iii) relating to such a carriage of goods.29 relating to such a carriage of goods.
37 of Decree No. 48 of France’s Nouveau Code de procédure civile. which preclude the ouster of New Zealand jurisdiction by foreign jurisdiction clauses in bills of lading. 1991. para. therefore. 34 See South Africa’s Carriage of Goods by Sea Act 1986. and jurisprudence cited there. D.1). Vialard. amending art.C.C. 533 at pp. to agree in writing to trial by the court at the place that has an actual connection with the dispute. 36 The requirement that bills of lading be signed by shippers was repealed by Decree No.C. 499 at pp. adopted by the Fourth Session of the Seventh National People’s Congress of the People’s Republic of China on April 9.’s maritime courts. Paris. for example. The word “court” in this context. In practice. the autonomy of parties to agree on a foreign jurisdiction for litigating their cargo claims is severely restricted. 33 . although that statute does permits arbitration of cargo claims outside. 384. 386-387.. 346347. such as New Zealand33 and South Africa. where the foreign jurisdictions designated by such clauses enforce forum selection provisions in similar contracts calling for suit in the P. 426427 and para. sect.R. 447 at pp. The court selected must be clearly identified in the bill and. prohibiting the ouster of local jurisdiction. Nevertheless.e. Droit Maritime.C. 1936. 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). 445 at p. Art. as well as the consignee or holder of any bill of lading. A. International Maritime Bureau. 257 of the Civil Procedure Law 1991 is more liberal as regards foreign arbitration.R. para. having an actual connection with the case. 2 Ed. “Arbitration & Jurisdiction in Carriage of Goods by Sea and Multimodal Transport – Can we have international uniformity?”  ETL 735. See Zhang Jinxian. at art. No. Presses universitaires de France.) jurisdiction clauses in bills of lading. Rèmond-Gouilloud. Witherby Publishers. although the requirement that the shipper sign the bill was repealed in 1987. 1993. however. Journal officiel.36 it must nevertheless be proven that cargo genuinely consented to the clause. the Civil Procedure Law 1991 of the People’s Republic of China. 244. 621 at p. 400 and para. See generally Tetley. 48. as well as inside. 7. which permit any person carrying on business in the Republic.11 A number of other countries. 210(1) and (2).R. although the article does not expressly preclude selection of a foreign forum.34 have enacted similar nationalistic legislation on jurisdiction clauses in bills of lading and other sea carriage documents. would seem to mean the court of the P. 38 See.1937.4. sects. “[n]otwithstanding any purported ouster of jurisdiction. exclusive jurisdiction clause or agreement to refer any dispute to arbitration”. 193635 at art.R. London.2 at p. Jurisdiction Clauses Restricted by National Law The former French domestic Law of April 2. 35 Loi du 2 avril 1936. para. 1966. para. which permits both parties. 66-1078 of December 31. V. Pedone. similar documents of title or nonnegotiable documents covering shipments to and from New Zealand. New Zealand. 1987. the burden of making such proof resting with the carrier. China’s Maritime Courts and Justice. only Dutch and German jurisdiction clauses were recognized in the P. Act 1 of 1986. I. under art. Droit Maritime. 104 of 1994.C. 3(1) and 3(2). 87-922 of November 12. As of 1997. in French internal law. Today. thus being slightly more liberal than the corresponding Australian statute which allows only Australian arbitration. April 11. 1997. however. foreign jurisdiction clauses in ocean bills of lading are recognized by Chinese maritime courts only where the foreign country concerned recognizes Chinese (P. 1997. Loi relative aux transports des marchandises par mer. waybill or like document for the carriage of goods inbound to South Africa. 37 See M. jurisdiction clauses in bills of lading may only be invoked against merchants and these clauses must figure prominently in the bills.38 See New Zealand’s Maritime Transport Act 1994.C. in a case concerning contract disputes or disputes over property rights involving foreigners (including maritime contract disputes).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. waybill or document before the competent court in the Republic. to bring an action on the bill.
see IncremonaSalerno Marmi Affini Siciliani (I. Sect. 21 and 22 of the Hamburg Rules. 151. under its Marine Liability Act. under certain conditions.A. the claim must be one which the Canadian court or tribunal would have jurisdiction to adjudicate and the case must have some real and substantial connection with Canada (determined either by the location of the actual or intended ports of loading or discharge.C. the claim must have arisen after the jurisdictional provision has been agreed. 2001. alternatively. 46. But if Hamburg does not apply.12 Canada. balanced and 39 40 S. 6. where (a) the actual port of loading or discharge. despite the presence in the bill of lading of a foreign jurisdiction or a foreign arbitration clause. v. or (c) the contract was made in Canada. to sue or arbitrate in Canada. S. however. (b) the person against whom the claim is made resides or has a place of business. 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. “(2) Notwithstanding subsection (1).S.40 In the latter case. as an alternative to suing or arbitrating abroad as per the bill of lading. in cases similar to those enumerated in arts. but permits the cargo claimant to opt instead for suit or arbitration in Canada. 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. the proposal is a way of giving the cargo claimant a Canadian litigation/arbitration option. 2001.c. or the intended port of loading or discharge under the contract.n. branch or agency in Canada. is significantly less restrictive and nationalistic than the corresponding legislation in Australia. For decisions on the application of sect. after a claim arises under the contract. c. the plaintiff. in situations where that option would exist under Hamburg. in accordance with the contractual clause or..S. The Viljandi  ETL 760 (Fed.R. the cargo claimant may sue in the contractually stipulated place or in any of the other optional venues listed in those Rules. 6.M. In effect. New Zealand and South Africa.). The Castor (2002) 297 N.) s. in force August 8. v.” Sect. the residence or place of business of the defendant or the place of contracting).39 provides the marine cargo claimant with the option of suing or arbitrating in Canada. If the Hamburg Rules apply to the contract. while still favouring local jurisdiction and arbitration. of Can. c. 2003 AMC 305 (Fed C. the parties to a contract referred to in that subsection may. of course. It does not prohibit ousting Canadian jurisdiction over bill of lading disputes. 46(1) of Canada's Marine Liability Act.A. is in Canada. under sect. . 2001. C. Nestlé Canada Inc. may choose to litigate or arbitrate outside Canada. designate by agreement the place where the claimant may institute judicial or arbitral proceedings. It seems fair. 46.C.). even where Hamburg does not apply to the bill of lading contract of its own force or through incorporation by reference.
C. (see sects. 1971 and in force September 1. Although this and other ECJ decisions maintain that the formalities required by the article are themselves “… a full. 2005 and every five years thereafter (see sects.E. L. 388/1.15/1. Civil Jurisdiction and Judgments. the decision of the Court of Justice of the European Communities in The Tilly Russ  ETL 3 at p. for example. 43 Protocol on the interpretation of the 1968 Convention by the European Court. rendered under art.13 reasonable. following the making of a report to Parliament by the federal Minister of Transport on the advisability of doing so before January 1. be the “subject of a consensus between the parties.E.12. 1968. 1989 for Spain and Portugal (O.J.C.12.E. as so amended and re-amended. 31.C. 285/1. 1982 for Greece (O.01. 106). 304/1.E. 30. Finland and Sweden (O.J.42 This Convention.H. it has also adopted the Hamburg Rules 1978 and retains the option to bring those Rules into force. Some of these accession conventions made substantive amendments to the Brussels Convention 1968. for example. Member States.98). Case No. In the U.1978). RUWA Polstereimaschinen G. Finland and Sweden. the Accession Convention of May 26. and Austria. to be effective under art. 45 See. 2. 1978 (O. 44 Convention on the accession to the 1968 Convention and the 1971 Protocol of Denmark. 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. London. 17 as it has evolved in wording since 1968. L. See also Estasis Salotti di Colzani Aimo e Gianmario Colzani v. See generally Geoffrey Brice.C. 55.1989) and the Accession Convention of November 29.44 Art.K. 17 of the Brussels Convention 1968. “Maritime Claims: The European Judgments Convention”. 03.J. 2002. requiring that a jurisdiction clause.97 at p.R.J. 1987. 31. c. The Brussels Convention 1968 was re-amended three more times. 42 Hereinafter described as the 1968 Brussels Convention (O. 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.46 Although under its Marine Liability Act.C. C. which includes the 1971 Protocol of Interpretation43 annexed to it.10. have reaffirmed the essential importance of a genuine agreement between the parties as to the foreign jurisdiction concerned. perfect and sufficient guarantee of the existence of consent or consensus” (see Briggs & Rees. 27. in order to protect the weaker bargaining party from foreign forum selection clauses inserted in boilerplate language by the stronger party. 3 Ed.1978). Mainschiffahrts-Genossenschaft Eg v.  ECR I-911. 1982..10. signed at Luxembourg on June 3.U. which must be clearly and precisely demonstrated.” 46 See. LLP. U. the Republic of Ireland and the United Kingdom. L. 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.E. Spain and Portugal. The rule was applied to bill of lading jurisdiction clauses agreed to by the parties. 41. and of which the weaker party remains unaware until it is too late. 44. there must be the possibility of attacking 41 . 17. 30.C.C. provided a rule requiring the courts of Contracting States to respect written jurisdiction agreements. 1996 for Austria. Les Gravières Rhénanes SARL. 1831. 41.J. 15. 1975. para.m.1972.J. 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. 45(1) and (2) and Schedule 4 of the Act).E.10. C-106/95. to clauses confirming a previous oral agreement between them and to clause forming part of “the steady business relations” between the parties. the Brussels Convention 1968 was given the force of law by the Civil Jurisdiction and Judgments Act 1982.  E.  LMCLQ 281. as subsequently amended by various accession conventions.. 43(1) and (2) and Schedule 3 of this Act). 299/32. 304/36. see English text in O. signed at Luxembourg on October 9. L. L. on the admission to the European Union of Greece. which came into force on January 1.45 Subsequent decisions of the European Court of Justice.b. See of the Accession Convention of October 25.K.1997).41 VI.
14 2) EC Regulation 44/2001 The Brussels Convention 1968 was replaced. 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. 49 The EC Regulation. 25. la reconnaissance et l’exécution des décisions de justice en matière civile et commerciale”  ETL 727. Iceland.11. Such an agreement conferring jurisdiction shall be either: (a) in writing or evidenced in writing. Art. provides for jurisdiction clauses and agreements evidenced by electronic documents to be treated as “writings” for the purposes of art. Norway and Switzerland. the EC Regulation establishes uniform rules on civil jurisdiction and the enforcement of judgments in civil and commercial matters.E. . 107). misrepresentation or frustration. 2002. 48 EC Regulation No. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. read as follows: “1. if the electronic communications leave a “durable record”. and also binds Poland (since that country acceded to the Lugano Convention on February 1. 2002.. except Denmark.C. For commentary.e. in any court of a European Union Member State. at art. without the need for any implementing national legislation) to proceedings instituted on or after March 1. The Lugano Convention of September 16. and therefore is still governed by the Brussels Convention 1968 in its relations with the other Member States of the E. Like the old Brussels Convention.U. 47 Denmark chose not to bound by the EC Regulation. Its rule on jurisdiction agreements.e. For the text. duress. “2. “L’entrée en vigueur du règlement communautaire no 44-2001 du 22 décembre 2000 concernant la compétence judiciaire.47 by the Regulation of the Council of the European Union (EC Regulation 44/2001)48. and regularly observed by. 2000) in matters of civil jurisdiction and the enforcement of judgments. one or more of whom is domiciled in a Member State.49 the jurisdiction clause as invalid for fraud. 319/9. that court or those courts shall have jurisdiction. is couched in terms very similar to those of the most recent text of art. L 12/1 to L 12/23. as of March 1.J.E. If the parties. see O. 1988 (O. or (c) in international trade or commerce. 17 of the Brussels Convention 1968 as amended by the various Accession Conventions. adopted on by the Council of the European Union on December 22.J.1988). Any communication by electronic means which provides a durable record of the agreement shall be equivalent to ‘writing’.C. This latter expression has yet to be interpreted by the European Court. (i. 23 (1) to (3). 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. L. 2000. 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. 23(1)(a). very similar to the Brussels Convention 1968. see Pierre Bonassies. also continues to govern three of the four remaining remaining States of the European Free Trade Association (EFTA). and in force in all Member States of the European Union except Denmark. 17 of the Brussels Convention 1968. except for Denmark. which applies directly (i. unlike art. 23. or (b) in a form which accords with practices which the parties have established between themselves. in respect of civil jurisdiction and the enforcement of judgments. Briggs and Rees suggest that such a possibility may lie in the development of an autonomous definition of “agreement” (see ibid. the most pertinent portion of the new Regulation. at p. but not Liechtenstein). parties to contracts of the type involved in the particular trade or commerce concerned. mistake.
52 November 9. 17 of the Convention by the Court of Justice of the European Communities. 53 See P. Where such an agreement is concluded by parties. particularly in the Castelletti (supra) and Coreck Maritime (supra) cases. with the result that the usage may be considered to be a consolidated practice. where the bill of lading jurisdiction clause did not expressly specify the name of the court selected. C-159/97). indicating that art. Ph. obs. 17 of the Brussels Convention 1968 and that the decisions rendered under art. Delebecque. Ph. 23 of EC Regulation 44/2001 is basically unchanged from art. See also Cour d’Appel de Versailles. DMF 2001. 2001 (The Nedlloyd Van Neck)  ETL 926.. first para. 2000. 17. On art. 17 from which the European Court of Justice in The Tilly Russ50 drew the criteria for a valid and enforceable jurisdiction clause. 734. See also Cour d’Appel de Rouen. the courts of other Member States shall have no jurisdiction over their disputes unless the court or courts chosen have declined jurisdiction. (Case No. by the circumstances of the case. knowledge of such a generally and regularly observed usage is “imposed” on the shipper. first para. the European Court of Justice held that the knowledge of the usage concerned is “independent of any specific form of publicity”. may be “concretized”.15 “3. of the Brussels Convention 1968) is different from the pre-1978 text of art. 2000 at paras.52 and its three main findings would appear to remain applicable to such clauses now that the very similar art. supra. which might be given to the standard form on which the clause appears. of the Brussels Convention 1968 in relation to bill of lading jurisdiction clauses. for example. 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. therefore.  ECR I-9337. and regularly observed by. 11. but rather merely called for suit in the court of the place of the “principal establishment 51 50 . Bonassies. Ph. applying the Castelletti decision.” (Emphasis added) The text of art. 1984. at p.  ETL 727 at p. in its decision in Coreck Maritime GmbH v. 17. DMF 2001. Bulletin des transports 2002. 187.81. will probably continue to apply under art. In Trasporti Castelletti Spedizioni Internazionali SpA v. parties to contracts of the type involved in the particular trade or commerce concerned”. 23 of the Regulation. not by the national law of one of the contracting states.  ETL 3.51to20. 387-98). 1999 (Case No.  ECR I-9337. 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. DMF 2000. supra. 23 of EC Regulation 44/2001 is in force:53 (1) the wording of the jurisdiction clause. which must be sufficiently precise to enable the judge seized of the case to determine whether he has jurisdiction. 17 of the Brussels Convention generally. Delebecque. the objective knowledge of the trade usage by either party to the contract is irrelevant. Handelsveem BV. Hugo Trumpy SpA. need not name the court having jurisdiction. 2000. Bills of Lading: Law and Contracts.51 If this requirement of form is complied with. Asariotis & Baatz. 17. 337. March 16. obs.20. the jurisdiction clause must be given effect when one of the parties is domiciled in a Member State of the European Union.  ECR I-1597. See P. Bonassies. in the Coreck Maritime case. 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. 23 of EC Regulation 44/2001 (like the most recent text of art. under art. Handelsveem BV. These elements. see Gaskell. The European Court of Justice interpreted the most recent text of art. March 21. The existence of the usage must be established.54 European Court of Justice. but rather by the practice generally and regularly followed in concluding a certain type of contract. November 9. In fact. June 19. none of whom is domiciled in a Member State. 54 Thus. 733. 2002. Art. 187. (Case No 387/98). Delebecque. June 21. where applicable. obs.
60 3) Arrest in rem under other conventions Under art. 55 Where the court selected is in a “third State”. March 4.  2 Lloyd’s Rep. where those provisions reflect a genuine. 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. 57 See. emphasizing that under art. 2003 (The Sonara). interpreted in the light of the commercial background of the case. Cour de Cassation. The same test has been applied in France to arbitration clauses. 59 See Gaskell. 23 of EC Regulation 44/2001. produces effects with respect to a third party holder of the bill. Asariotis & Baatz. observations Y.58 and whether or not that forum has any connection with the dispute or the parties. 60 Siboti v. incorporation by reference of a jurisdiction clause into a bill of lading is effective. See Cour d’Appel de Rouen. 20. Bills of Lading: Law and Contracts. 71(1) of EC Regulation 44/2001 (similar to art. 17 of the Brussels Convention 1968.  ETL 321. obs. provided that the holder. has succeeded to the rights and obligations of the shipper under the applicable national law. 17 of the Brussels and Lugano Conventions were inapplicable to a bill of lading jurisdiction clause calling for suit in New York courts. 373. April 9. rather.59 Acceptance of forum selection agreements is not unconditional. 23 to accommodate a course of dealings between the parties and practices in international trade. 547. mutual consent between the contracting parties to sue in a determined or determinable forum. where the language of the bill.A.A. 17 and the changes introduced into art. 364 at p. See also Rechtbank van Koophandel te Antwerpen. 20. 17. 364 at p. the foreign jurisdiction clause was held unenforceable as against the subrogated underwriter of the consignee/ holder of the bill of lading. 2000 at paras. BP France S. of the Convention. 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. the Regulation does not affect any conventions to which the Member States are parties and of the carrier”. it is proper to verify the reality of the holder’s consent to the clause by reference to the requirements of art. DMF 2003. Under those provisions.55 (3) a jurisdiction clause in a bill of lading..  2 Lloyd’s Rep. where under the applicable French law. applied to the bill of lading contract and therefore that the third party holder of the bill was bound by its jurisdiction clause.73 and 20. 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. as under the art.77. 2003 (The Houston Express). 2002 (The Dymphna). Tassel. agreed to by a shipper and a carrier. in acquiring the bill. 372. but rather that that law fell to be determined by the judge seized of the case. the forum designation was held valid. demonstrates clearly and precisely a consensus by the parties on the subject matter of the clause. however. Ph. 1997 (The Adamastos).16 (2) art. 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. holding that art. Revue Scapel 2003. October 8. 2002 (The Walka Mlodych). applying the conflicts rules of his national law. BP France S. because it was not proven that the consignee had consented to the clause at the latest at the time of delivery. first para. 57 of the Brussels Convention 1968). where the Belgian Court decided that English. as interpreted by the European Court. jurisdiction clauses must still reflect a consensus between the parties to the contract that is clearly and precisely demonstrated. 556. March 4. notwithstanding the amendments to art. June 18.  ETL 453.57 European law thus accepts jurisdiction clauses in bills of lading and other contracts. See also Rechtbank van Koophandel te Antwerpen. rather than Belgian law. See also Cour de Cassation. being the successor to the rights and obligations of the shipper under the bill. for example. Delebecque. DMF 2003.56 If such is not the case. 58 See Siboti v. . it is governed by the very specific terms of the EC Regulation 44/2001 (and the Brussels Convention 1968 in the case of Denmark).
the Limitation Convention 1976 and the Hamburg Rules 1978.114-20.A. Tetley. 7 of that Convention permits Contracting States to take jurisdiction on the basis of the arrest of a ship in their territorial waters. although they have jurisdiction to decide the dispute. 23 of the EC Regulation) purporting to assign jurisdiction to the courts of another E. 20. 20-24 implements the Arrest Convention in English domestic law. clearly more appropriate forum in another jurisdiction where it would be better to try the suit. In England. International Conflict of Laws. 3 Ed. even if the shipowner or demise charterer is domiciled in another E. having arrested a ship in rem in accordance with the applicable procedure.B. as they did the Brussels Convention. Asariotis & Baatz. May 10.A.K. 3 Ed. 2002 at para. Civil Jurisdiction and Judgments.U. Bills of Lading: Law and Contracts.. as in fact has been done in at least one case where the bill of lading expressly provided for jurisdiction in Germany. and in some other cases. c. 2003 at pp. 66 The Bergen (No. will have a valid basis of jurisdiction over the underlying “maritime claim”. notably. 2002 at para.15 at p. govern jurisdiction or the recognition or enforcement of judgments. 2)  1 Lloyd’s Rep. 710. State. Asariotis & Baatz. 1952.).62 which.126. 17 of the Brussels Convention (now art. 513. 515. 54. International Maritime and Admiralty Law. 64 See the classic U.. at para. if they believe that. See Gaskell. 1981. the domestic law permits such arrest in rem under the Supreme Court Act 1981. 421-423. The importance of this provision is that it permits Member States of the E. the English court.65 Nevertheless. decisions on this matter (rendered with respect to art. 1994 at pp. The court therefore embarks on an analysis to identify what court is the “more International Convention Relating to the Arrest of Sea-Going Ships.64 Jurisdiction in rem (even where the defendant is not available for service in the U.) is thus preserved and is permitted to override jurisdiction under the EU’s ordinary rules. Briggs & Rees. 2000 at para. 61 . 361 (C. See also Briggs & Rees. Gaskell.K. 63 Briggs & Rees. courts today generally have the discretion to either dismiss or (more usually) to stay conditionally the proceedings validly instituted before them. 8. if their domestic law gives jurisdiction to their courts. at sects.) and The Anna H  1 Lloyd’s Rep. adopted at Brussels. Civil Jurisdiction and Judgments. 2000 at para. the Civil Liability Convention 1992. the Civil Jurisdiction in Collision Convention 1952. The most important example of this type of convention on a “particular matter” is the Arrest Convention 195261 Art.66 VII.128. but still relevant under the Regulation) in The Deichland  1 Q. Various other maritime law conventions also have rules on jurisdiction which would override the Regulation.U. 1956. having regard to the interests of the parties and the ends of justice. 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.13 at p. 65 See The Bergen (No. there is another. 380. 1952 and in force February 24. the Athens Passenger Convention 1974. 57 of the Brussels Convention 1968 prior to the enactment of EC Regulation 44/2001. 20.K. Is There a More Convenient Jurisdiction? In common law countries. the Penal Jurisdiction in Collision Convention 1952. ibid. 11 (C.63 In consequence. even if that foundation does not exist in the Regulation.U. to take jurisdiction over a dispute on the basis of jurisdictional foundations provided in another convention governing a “particular matter”.17 which in relation to particular matters.15. 62 U. 8. Bill of Lading: Law and Contracts. the place of the carrier’s place of business. 1)  1 Lloyd’s Rep. 8. 805-809. either of their own motion or at the petition of one of the parties. Tetley. State whose courts would normally have jurisdiction under the Regulation. English jurisdiction based on ship arrest would remain unaffected by an exclusive jurisdiction clause as contemplated by art.
Banque Royale du Canada  R. v.). Ct. C. Cape plc  2 Lloyd’s Rep. as amended by the Civil Jurisdiction and Judgments Act 1991. where to do so is not inconsistent with the 1968 [Brussels] Convention or. RTZ Corp.J. 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). Boulton & Co. at art. 339 (H. Lamborghini (Canada) Inc. 383 (H. 1982 AMC 214 (1981). 413.C.J. 1994 at pp. 27. Miller 510 U. Grecon Dimter Inc.  R. as a mixed jurisdiction.R. Gilbert 330 U. 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. 1982. and Lubbe v.L.18 convenient forum”. decline jurisdiction if it considers that the authorities of another country are in a better position to decide. Nevertheless.C. Spiliada Maritime Corp. v. 854 (H.C.C. 460. as the case may be. Normand Inc. sisting. 795 (H.).K.S. v. International Maritime and Admiralty Law. the court seized of the proceedings may dismiss the proceedings. 3135 c. J. 2003 at p. Spar Aerosapce v.K. c.A. C. 1077. See also the U. 12. see MacShannon v. See generally Tetley. the landmark decisions on forum non conveniens include Gulf Oil Corp.). In the United States. v.P. The doctrine applying to this determination is known as forum non conveniens.L.q.C. v. striking out or dismissing any proceedings before it on the ground of forum non conveniens or otherwise.L. A conditional stay is preferable to dismissal. For Canada. Connelly v. International Conflict. Quebec. or the “natural forum”.). International Maritime and Admiralty Law. c.. 897 at pp.  A.R.. DeSavoye  3 S. If the forum court is convinced that. U.L. 398. American Mobile Satellite  4 S. Supr. Piper Aircraft Co.S. The forum court which has stayed the proceedings 67 Among the classic decisions on forum non conveniens in the United Kingdom. see H. 213 (Qué.’s Civil Jurisidction and Judgments Act 1982.K.c. 49. provides: “Even though a Québec authority has jurisdiction to hear a dispute.C. S.S. British Columbia (Workers’ Compensation Board)  1 S. .  A. v.K. 3135 c.c. on the ground that another forum appears more convenient or appropriate or natural for the litigation. U. 412-413. and American Dredging Co. 88 (Qué. which statute came into force on May 1. 69 See Tetley.Q. the Lugano Convention.A. Rockware Glass Ltd. 915-922. Forum non conveniens therefore has no place in their legal systems.q. 443.  1 Lloyd’s Rep. Amchem Products Inc. Cansulex Ltd. Reyno 454 U.  R.R.e. generally do not have the discretion to dismiss or stay actions which fall within their jurisdiction under their respective national laws. 58 (Qué.J.L.Q. see Morguard Investments Ltd. due to constitutional restrictions.” 68 The Québec Civil Code 1994. 1 (H. i.C. although it has jurisdiction.68 After having determined that it has jurisdiction and that there is no direction in the substantive law before it as to jurisdiction. it may exceptionally and on an application by a party. 1991.). v. 2003 at pp.  1 Lloyd’s Rep.). 798-803. Automobili Lamborghini S. v.C. for the adjudication of the dispute.Q. Tetley. if it is the "natural forum" for trial of the dispute. v.C. 1994 AMC 913 (1994).67 Civilian countries.R.  A.A. The Abidin Daver  1 A. sect.” For decisions applying art. 235. but should preferably stay them conditionally. from staying.). or the “more appropriate forum”. on grounds of forum non conveniens. in case the foreign court does not accept jurisdiction or renders a decision not susceptible of subsequent recognition and enforcement in the forum court.L. 501 (1947).A. 1992: “Nothing in this Act shall prevent any court in the U. 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".). 205.
707 F. the stay will ordinarily be refused. N.L. See Baghlaf Al Zafer v.S.A. the stay order was reversed. Pirelli Cables ltd. the House of Lords found that it was wiser to avoid use of the word “convenience” and refer rather to the appropriate forum. 76. however. 77 See. 1961). 373 (H. 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. 808. 2564 (11 Cir. In general. 1983). 1220 (S.C. makes its decision as a question of fact based on the whole of the circumstances of each individual case. International Maritime and Admiralty Law. 663. Cape plc  4 All E. Supp. 1962 AMC 1217 at p.Y. 1307.  A. for example.L. Supp.B. S. S. Subsequently.72 sometimes described as reasonableness. Swedish American Line. 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. Transytur Line.78 Clearly. 1983 AMC 2559 at p. Nigeria v. 1985). 501 at P.A.R. on condition that the defendant waive any time bar under Pakistani law.D.  2 Lloyd's Rep. for example.19 conditionally may then reassume jurisdiction over the dispute.Y. and no single factor is decisive. the court making a forum non conveniens determination considers such factors as the location and availability of proof and witnesses. Ltd. 1955 AMC 1687 at p. 399. 74 Tetley. 383 (H. Baghlaf Al Zafer v. v. (No. Connelly v. v. 854. the law applicable to the substance of the dispute. 73 Muller & Co. 268. Lubbe v. and 5) that security acquired by either party be preserved.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.  4 All E.). 1346 at p. 1 (C. the convenience and expense of the parties of litigating in either of the competing fora.D. when it appeared that a Pakistani court might not recognize such a waiver. In The Spiliada  1 Lloyd's Rep. v.S.Y.2d 1304 at p. RTZ Corp.C. 2) that the other court accept jurisdiction. 911-912.A. 1955). 183.1985 AMC 1493 (S.  3 W.  ETL 45 (S. 75 Gulf Oil Corp.D.Y. 508 (1947). The Hamburg Star  1 Lloyd's Rep. N. 1984). Pakistan National Shipping Co. 70 . 1 at p.). however. 335. where the court stayed proceedings on a cargo claim in deference to a Russian jurisdiction clause in the bill of lading.R. 72 La Seguridad v. Takemura & Co. 1966). 224 F. no foreign court of competent jurisdiction appears definitely more "convenient" than the court first seized.  1 Lloyd's Rep. where a forum non conveniens stay was granted on a cargo claim arising under a bill of lading calling for suit in Pakistan. The Globe Nova 1985 AMC 1977.  1 W. See also LN. 1984 AMC 2413 at p. for example. Sophia First 588 F. following this analysis.S. or if the evidence on the question appears to be equally balanced.). 1218 (S.  2 Lloyd's Rep. v. 2434 (S. 2)  1 Lloyd's Rep.D. See also The Kidlovodsk  1 Lloyd's Rep. Tsuneshima Maru 197 F.R.D.2d 806 at p. 76 G.70 The conditions of the stay may vary depending on the circumstances of the case. N. 3) that the defendant submit to service of suit and to the jurisdiction of the other court with the time period stipulated.R. for its part.L. For an example of such a conditional stay in a maritime case. 1545.76 If. 412. United Thai Shipping Corp. 909 at pp.L. 9. 1984). the existence of such a term or agreement is a factor of great weight in forum See.75 The trial court. 1360. Gilbert 330 U.74 No one can foresee or list all the criteria which the court must decide and weigh. Supp. Tex.73 is the touchstone in respect to deciding forum non conveniens motions.). Pakistan National Shipping Co. 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. 229 (C. 2003 at p. v.71 Convenience. N. 1689 (2 Cir. 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. 78 See. 4) that the defendant waive any defence based on a statute of limitations or prescription in the foreign court. Margit 1966 AMC 1217 at p. see The Arctic Explorer 590 F.
'harass' or 'oppress' the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. doctrine. 197 at p. [and] e) the relative advantages and obstacles to fair trial. United States .80 The principle was first applied to a non-admiralty matter by the Supreme Court in Gulf Oil Corp. of Canada). VIII. 508 (1947)..” Public interest factors82 include a) avoiding “congested centers” of litigation. with special reference to foreign jurisdiction clauses in ocean bills of lading and other contracts for the carriage of goods by sea. 83 510 U. d) enforceability of a judgment . and the cost of obtaining attendance of willing.R.S.C. v. See especially p. 2) Forum non conveniens not a characteristic feature of U. 365. 'vex'. but was rather a doctrine of general application. Gilbert. c) possibility of view of the premises . 1814). 81 330 U. In addition. 501 at p. . general maritime law In American Dredging Co. See also Perusahaan Umum v.D.S. Private interests are: “a) relative ease of access to sources of proof.C.).R. Miller. 422 at p. otherwise the court seized of the action will ordinarily exercise its forum non conveniens discretion by granting a stay of proceedings (usually on a motion by the defendant) and sending the dispute to be tried or arbitrated in the contractually designated forum. and d) the avoidance of conflicts of law. 509-509.L. 1985 AMC 67 at pp. although forum non conveniens had taken root early on in American admiralty law. Crédit Suisse  3 All E. the plaintiff. 355 (1885) is an example of an early admiralty case. c) the choice of the proper place to study questions of foreign law. 450.Forum Non Conveniens 1) Private and public interest factors Forum non conveniens has long been an accepted principle in admiralty in the United States. 629 (C. The Capricorn  2 S. b) the benefit of publicity of the trial in the seat of the conflict. in breach of that agreement.83 three of five justices of the U. 559 (No. 207 (H. 451 (Supr. 1983). The Atlantic Star  2 Lloyd's Rep.. Where the dispute at hand falls within the scope of such a forum selection provision.81 where the theory of the private and public interests was enunciated. Supreme Court decided that. with the result that it was Among many other decisions of this kind. rather than as a substantive. 79 . 679 (H. witnesses.C. Tel Aviv 711 F. The Jerusalem 13 Fed. 80 The Belgenland 114 U. 1234. infra.S. at pp.).S. Cas. must show strong reasons why he should not be kept to his original bargain. forum non conveniens was characterized as a procedural. 443 at p. X and XI.20 non conveniens determinations. Mass. b) availability of compulsory process for attendance of unwilling. 82 Ibid. aff’d  A. who has taken suit in another jurisdiction.2d 1231 at p. 1994 AMC 913 at p. Ct..L. See Antares Shipping v. 7293) (C.A..” Nor may the plaintiff f) “by choice of an inconvenient forum.79 This matter is dealt with in greater detail in sections IX. 721. aff’d  Q.B. 69 and 70 (5 Cir. 918 (1994). This very authoritative decision has been referred to by non-American courts. see Trendtex Trading Corp. it did not originate there and was not a characteristic feature of the general maritime law of the United States..S. v.). v. .
F. 1986 AMC at pp. 1982 AMC 214 (1981). This statement recalls that of the U. See Perusahaan. 60 (5 Cir. 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. Gilbert 330 U. 235.S. Olympic Corp. 1985 AMC 67 pp. that Louisiana amended art. Speck. v. 453. Tel Aviv 711 F. one can rarely count on the fact that jurisdiction will be declined. it was held in Sunny Prince v. but was rather a procedural rule within the legislative jurisdiction of the individual U. ibid. N. 123(C) of the Louisiana Code of Civil Procedure).S. v. 1597-1598 (E. Inc. combined with the “multifariousness”85 of the public and private interest factors set forth in Gulf Oil v. the majority in the Supreme Court upheld the validity of the Louisiana statute out of which the litigation had arisen (art. See also Alcoa S. however. 87 510 U. will also be determined by the principles set out in Gulf Oil Corp. 73-74 (5 Cir. See also Excel Shipping v. 86 330 U. In consequence of this procedural characterization. general maritime law. 1983). Note. supra.” 3) Admiralty . 89 Perusahaan Umum v. AMC at p. 1972). 443 at p. 465.86 made uniformity and predictability in the application of forum non conveniens almost impossible. `982 AMC 214 (1982).D.91 The court should be wary. finding that that provision was not pre-empted by federal maritime law. Gilbert. at p.2d 147. 508 (1947): “[U]nless the balance is strongly in favour of the defendant. Hoheweg that in Admiralty..no special restrictive rule Ten years after Gulf Oil Corp. 76-77.S.92 4) Forum non conveniens and in rem jurisdiction Ibid. so that forum non conveniens may now be applied in maritime cases. 1956).84 The Supreme Court further observed that the discretionary nature of the doctrine. v.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. Seatrain International 1986 AMC 1587 at pp. when the jurisdiction of the underlying action has been maintained. U. Reyno.S. 88 Sunny Prince-Hoheweg (Motors Distributors Ltd.. Gilbert.S. Olaf Pedersen's Rederei) 239 F. 1. See Louisiana Acts 1999. AMC at pp. 1957 AMC 57 at p.Y. at p. 1980 en banc). 84 .21 not deemed essential to the proper harmony and uniformity of the federal. which rendered forum non conveniens unavailable in Jones Act and maritime law cases brought in Louisiana state courts. See also Paula K. 90 454 U. 455. Whether or not an action impleading a third party should be dismissed on the ground of forum non conveniens. 922. 501 at p. Co.S. U.S. M/V Nordic Regent 654 F. however. and reaffirmed in Piper Aircraft. sect. Société Générale 462 F. 85 Ibid.. 1980 AMC 309 (2 Cir. v. the plaintiff’s choice of forum should rarely be disturbed. v. 536.2d 1231 at p. 123(c) of its Code of Civil Procedure in 1999.S. 235. 1984). 1238.S. 1972 AMC 1682 (2 Cir. “jurisdiction should be taken unless to do so would work an injustice. 501.2d 376. 92 Excel Shipping. AMC at pp. Supreme Court in Gulf Oil Corp. 1994 AMC 913 at p. 1236. 91 454 U. It held that:87 “In such a regime. 920-921.S. 455. “Forum Non Conveniens and Choice of Law” (1987) 18 JMLC 185. 1600-1601. 922. No.2d at p.2d 463 at p. states.”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.”).
v.98 The Court emphasized that the balancing analysis in Gulf Oil was predicated upon finding that an adequate and available alternative forum did exist. 630. Barge Sea-Span 241. 1990): “the Gilbert analysis. 100 A ship cannot be arrested twice on the same claim.K. 1218. 501 at pp. Del. 1302 (9 Cir. Tel Aviv. “The Integrity of the Judicial Sale”. Reyno. 508-509 (1947). 1985 AMC 67 at p.2d 463 at p. 555 and The Alletta  1 Lloyd's Rep. M/V Maridome 169 F. 1585 (D.2d 332. Piper Aircraft Co. M/T Rich Duke 734 F.K. Thus courts have been compelled to deny forum non conveniens dismissals in actions in rem. Supp. added to the normal presumption in favour of the plaintiff's choice of forum. N.2d at p.. 1983). 503 at p. 1957 AMC 57 at p. 26. 711 F. 465. 2 Ed.K. 124 (S. 330 U. 1999). the court can embark upon the Gulf Oil balancing analysis and decide whether or not it is a convenient forum. Gilbert. 1239. N.94 After referring to The Belgenland95 and Gulf Oil Corp. supra. 517 (1988). Olaf Pedersen's Rederi A/S) 239 F. 486 U. In Sunny Prince-Hoheweg (Motor Distributors v. 1998. Gotham Marine Corp. v. that the in rem factor. 94 93 .2d at p. 1931 AMC 407 (S.104 711 F.D. For the U.) 47 F. pp. Chap. 1985 AMC 2150 (5 Cir.. 249 F. M/V Montmartre 756 F. 1966). position. See also The New England (J.Y. 518 (1947).2d 1215 at p. before embarking on a Gulf Oil balancing analysis. 1985 AMC at pp. 73. 1985 AMC at p. however.1076 (9 Cir. including in rem admiralty actions. 367 (1885).2d at p. 505. the Fifth Circuit had declared that in admiralty actions in rem. 97 Perusahaan Umum v. 454 U.96 the Fifth Circuit stated that the in rem action did not represent an exception to the Gulf Oil balancing analysis. Welding Co. 99 Ibid. American Lumbermens Mutual Casualty Co.103 A conditional dismissal. Tel Aviv.” See. 77. Tel Aviv. 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. did make it nearly impossible for the defendant to show interests in an alternative forum. and Van Cauwenberghe v. 711 F.99 Since the seizure of a ship in rem releases the ship from the maritime lien arising from the claim. the Court affirmed that “the release or removal of the vessel from the jurisdiction of the court destroys in rem jurisdiction . Owen in  JMLC 133. 1985 AMC at p. 355 at p. 1966 AMC 121 at p. 235.93 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. 76. v. strong enough to strike the forum non conveniens balance in his favour. Maritime Liens & Claims. 711 F. 1985 AMC at p.101 but also deny him an adequate security. 1970).2d at p.S.” 98 Ibid. 1239. v. 60.  2 Lloyd's Rep. 102 Perusahaan Umum v. 1098-1104.3d 625 at p..2d 620 (9 Cir. as clarified by Koster 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. 1982 AMC 214 (1981).S. 101 In M/S Galveston Navigator 431 F. 145. see The Despina. 69 (5 Cir. “jurisdiction should be taken unless to do so would work an injustice. is fully applicable to all forum non conveniens motions.22 Perusahaan Umum v. unless the inconvenience he would suffer was tantamount to injustice. v.2d at p.D. 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. 104 Ibid. 1985 AMC at p. 78-79. 40. Biard.97 The Court did point out. See also Cliffs-Neddrill v. G. 103 Ibid. 711 F. See also Warn v. 96 330 U. Supp. 1236.S. 1999 AMC 1070 at p. 142 at p. 1971 AMC 1298 at p.Y.. See Shalom-Stolt Dagali. Cactus Pipe & Supply Co. 1238. 769 F.. 1985) and a critical commentary by David R. supra. however. however. except in special circumstances: see generally Tetley. because he would no longer be able to seize the ship102 to enforce whatever judgment he might obtain in the alternative forum.. 1985) and Farwest Steel Corp.” 95 114 U. 1234. 1931). 78.S. 1990 AMC 1583 at p.2d 1231 at p. 711 F.S.. 1238.2d 1103.
2d 200 at p. S. v. 723-725. 1982 AMC 588 at pp. 110 In accordance with the holding in Indussa. 377 F. S.S. 807. v.. In view of current American law.S. while at the same time the courts retained their discretion. the Second Circuit in Muller v.D.106 There were radical swings of the legal pendulum. LG Electronics Inc.109 Thereafter. 1967 AMC 589 at p. M/V 106 105 . 590-593 (4 Cir. however. 1955). where the bill of lading includes such a provision. It is only when the clause or agreement concerned fails the test of enforceability under those principles that forum non conveniens principles. such clauses were treated much more strictly. Particular principles have been developed in the U.2d 721 at pp. 594-595.  2 Lloyd's Rep. Gilbert. 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.Elikon 642 F. Fritz Transportation International 2002 AMC 106 (N. at p.2d at p. S. Union Ins. the Muller court leaned too heavily on general principles of contract law and gave insufficient effect to the enactments of Congress governing bills of lading for shipments to or from the United States. it tends to be the paramount factor in that analysis. for example. v. American courts began systematically invalidating foreign forum selection clauses as contrary to sect. 501 (1947). Ltd. as was done in the Canadian Act of 1910. Ltd.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. 107 224 F.” The concern was that foreign law rather than U. v. to evaluate the enforceability of jurisdiction clauses and agreements in general.  2 Lloyd's Rep. COGSA would be applied by the foreign court. 109 Ibid.S. 1955 AMC 1687 at p. en banc 1967). 2001). Cal. including those appearing in ocean bills of lading. Swedish American Line upheld a jurisdiction clause and declared:107 “…if Congress had intended to invalidate such agreements.S. 1688 (2 Cir. 108 377 F. Conklin & Garrett. it would have done so in a forthright manner. In 1955. 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. as outlined in Gulf Oil Corp.105 are now considered. v. 1967 AMC at pp. before a relatively stable doctrine of forum non conveniens and jurisdiction clause enforcement were arrived at in the United States. 104 (2 Cir. 1981). 3(8) of COGSA 1936. See. 101 at p. Soc. See. 203.” Twelve years later the Second Circuit took a completely different approach in Indussa Corp. 593.2d 806 at p. for example. 202. of Canton. 105.110 330 U.
v.S. Zapata Off-Shore Co. see Hartford Fire Ins. by which the parties simply agree to the jurisdiction of a specified court without expressly excluding jurisdiction elsewhere. 928 (4 Cir. Novocargo USA Inc. Inc. which obligates the parties to the bill of lading (or other contract) to litigate in one specified court. the Court refused to follow Bremen. and relied on Indussa Corp. in an international towage case. supra. 1988 AMC 318 at pp.2d 1441 at pp. Co. N.  ETL 57 (S.112 recognized a jurisdiction clause giving jurisdiction outside the United States. Tokio Express 1999 AMC 1088 at p.) v.2d 1576 at pp. 1999).. 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. 1 at p. Tokio Express.m. 1580-1581. A bill of lading of course is not freely negotiated but a standard-form contract. 1442-1444.Y. See also Union Insurance Society of Canton v. aff’d without opinion sub nom. 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” . Alas. In M. 678. v.24 2) Foreign jurisdiction clauses presumptively valid A major change in judicial attitudes towards foreign forum selection by contract occurred. 113 407 U.D.V. S.3d 355 (2 Cir.”). Lloyd’s of London 94 F. Ranborg. 1479 (S.S.H. 3) fundamental unfairness of the chosen law depriving the plaintiff of a remedy or 4) a strong public policy of the forum. Central National-Gottesman. Novocargo USA Inc. 210 F. In the case at hand. See. 1. See also Hartford Fire Ins. Chemical v. for example.V. M/V Sersou 1999 AMC 2352 (S. unless the claimant could show convincing evidence that the clause was unjust or unreasonable or was the product of fraud or overreaching or was contrary to a strong public policy of the forum.Y. Zapata OffShore Co. 2002 AMC 314. N. v. 2002 AMC 1477 at p. 156 F.”). international contract should be enforced. 2002 AMC 314. both the American and English Courts ordered suit in England under the same clause in the same matter.2d 721.3d 923 at p. 1981). v. 1977). 462-463. State Establishment for Agricultural Product Trading v. in a matter which was subject to suit simultaneously in England.D. 2002). 111 407 U.D. M/V Berane 181 F.  2 Lloyd's Rep. The freely negotiated agreement must be unaffected by fraud or undue influence or overreaching bargaining power.. v. N. Ferrostaal. Supp. 2002 AMC 528 at p. 531 (D.). 2002). Compare with Reed & Barton Corp.111 The United States Supreme Court.m. 1994) and other authorities collected there. instead. M.D. the mere use of “shall” did not make the clause “mandatory”. 112 (The Chaparral) Unterweser Reederei G. 320-322 (5 Cir. 158 (C. v. The U. 2002). 1998) (“All and any claims and disputes under the Bill of Lading shall exclusively be referred to [a]rbitration in Bremen [Germany] . M/S Bremen (and Unterweser G. as it did not exclude jurisdiction elsewhere or employ other mandatory venue language. 1987).Y. 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. 1988). 1418 (1972). however.2d 372.2d 458 at pp. 2002). 1090 (S. 53 (2 Cir.Supp. 15.S. Md. Lucent Technologies. Elikon 642 F.115 A jurisdiction clause may still be Finnrose 826 F. citing Allen v.Y.S. 1996) and listing. v. M/V Wesermunde 838 F. 2334-2335 (11 Cir. 1972 AMC 1407 (1972) This was a freely negotiated private international agreement for towage.b.b. Inc.2d 372. This followed the English tradition of giving effect to jurisdiction clauses. Attiki Importers 22 F.114 as opposed to the merely “permissive” clause.A.  ETL 57 (S. The same hostility was demonstrated with respect to foreign arbitration clauses. v. 1982 AMC 588 (4 Cir. M/V Gertrude Oldendorff 204 F.. Supp.H. S.N.S. as grounds of non-enforcement of a foreign forum selection clause: 1) fraud or overreaching. Supreme Court held that a foreign jurisdiction clause in a freely negotiated. v. Inc.Y. Sun Castor 1978 AMC 1756 (D. N.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. Co. Although the clause provided that disputes “… shall be determined by the Court of Bremen”.Supp. 2d 675 at p. 1988 AMC 2328 at pp. Acciai Speciali Terni USA Inc. M. 156 F.3d 51 at p.D. pointing out that COGSA was not involved in that case. 114 See John Boutari & Sons v.G. 115 For an example of a purely “permissive” forum selection clause. 1972 AMC 1407 at p.
2001). v.D. 46 U. however. 118 Ibid. 2002 AMC 1477 at p. 24-25 (N.119 Nevertheless. rather than permissive. Aktiengesellschaft Fur Industrie Versicherungen 188 F. but merely permitted. or avoid the right of any claimant to a trial by a court of competent jurisdiction. Radisson Seven Seas Cruises. 2002). 1479 (S. Tokio Marine and Fire Ins. 491 (3 Cir.g. 2422 (D. Supp. 459. Hanover Intern. v. or “[a]ny disputes under the Bill of Lading to be decided in London according to English Law.25 mandatory. Burns v. Note. 1995)). Fla.. N. Note. The case concerned a consumer finance contract containing an arbitration agreement which omitted any details regarding filing fees and arbitration costs. M/V Tramper 263 F. 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. for example. 1050-1051 (C. an exception giving the carrier an option to sue the merchant elsewhere than in the courts of Hamburg. because no evidence on the prohibitive expense of arbitrating had been adduced by the party seeking to circumvent the agreement. Co.S.”. Supp. v. 120 513 U.2d 1191. that the words “shall” or “must” are not essential to the mandatory character of the clause. by a 5 to 4 majority.S. airfare and hotel bills). 2003 AMC 21 at pp. aff'd 36 Fed. 2d 675 at p. M/V Pergamos 1996 AMC 2022 at p. Co.D. 2004).g. where the Court found to be mandatory. Barbara Lloyd Design.2d 1226 at p. 117 499 U.116 Because foreign jurisdiction clauses and agreements are now presumptively valid in the United States. App. Inc. at pp. in order to litigate in the designated court. 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…. Lines. 596-597.N. Appx. Mitsui O. 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. was rejected by the Supreme Court in Carnival Cruise Lines. M/V Gertrude Oldendorff 204 F. COSCO 2004 AMC 1048 at pp. – Alabama v. 4 District. Supp. travel expenses. weaken... Cal. . v. AMC at pp. the United States Supreme Court.S.. The relevant enactment in this case was the Limitation of Vessel Owners’ Liability Act of 1851. of the Southeast v. 183c.2d 454 at p.” The second sentence was held to be a qualification on the first sentence. Dist. See Vogt-Nem. Ltd.K.120 indicated that if a party seeking to avoid arbitration can show that it would be “prohibitively expensive”121 (a term which the Court declined to define). Cal.Y. an arbitration agreement could be held unenforceable. 2004 AMC 769 (Fla. Randolph.D. Inc. 79 (2000). Intermetals Corp. Cal. N..118 More recent decisions have similarly downplayed the relevance of inconvenience in forum selection clause analysis. v. permitting the carrier to sue the merchant in the latter’s place of business).S. Ct. 116 See. Inc. Inc. Hartford Ins. rather than permissive. Hapag-Lloyd Container Line 2003 AMC 1175 (S.D. v. 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. however.2d 1226 at p.. 2003 AMC 2608 (N. where in addition to providing for the exclusive jurisdiction of a given court. 2030 (S. Inc. 121 Ibid at p. 119 See. 1231. . that the Court. 678. Inc. found the arbitration clause in that case to be enforceable. 1233. and related inconvenience. 2003). 867 So. 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. 1991 AMC 1697 (1991).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. which may be just as mandatory where “will” is used.D.C.” (Central National-Gottesman. as the first sentence contemplated. 1704-1705. which did not vitiate the mandatory character of the clause. 2003). Supp. 2002). Ltd. however.D. 2002).Appx. v. 92. 2003 AMC 21 at p. v.S. in its decision in Green Tree Financial Corp. 2002).J. which made it unlawful for the owner of a maritime passenger carrier to "lessen. it also qualifies that provision by an exception (e.Y.D. U. 2004).27 (N. M/V Tramper 263 F. The argument that enforcement of a jurisdiction clause should be denied where the clause required plaintiffs to incur substantial “transaction costs” (e. 585. Vogt-Nem. for example. Shute. 2001 AMC 2417 at p.
26 can demonstrate that the costs of compliance with the provision in question would prevent it from “effectively vindicating [its] federal statutory rights in the arbitral forum”.122 3) Foreign arbitration clauses held presumptively valid
Both Bremen123 and Carnival Cruise124 paved the way for the U.S. Supreme Court’s landmark decision in Vimar Seguros y Reaseguros S.A. v. M/V Sky Reefer,125 upholding the enforceability of foreign arbitration clauses in bills of lading, and effectively overruling the Indussa126 line of cases. The Sky Reefer decision applies equally to foreign jurisdiction clauses, because Justice Kennedy held foreign arbitration clauses to be “… but a subset of foreign forum selection clauses in general.”127 Sky Reefer involved a shipment of fruit from Morocco to the U.S. under a bill of lading calling for Japanese law and requiring cargo claims to be arbitrated in Japan, whose only connection with the case was that it was the country of the time charterer of the Panamanian-owned carrying ship. Two main arguments were raised to contest the foreign arbitration clause: 1) that the clause lessened COGSA liability by increasing the transaction costs of obtaining relief; and 2) that COGSA might not be applied by the Japanese arbitrators. With respect to the first argument, the Supreme Court found that sect. 3(8) of COGSA (46 U.S.C. Appx. 1303(8)) precluded the lessening of the carrier’s or the ship’s liability for loss or damage arising from negligence, fault or failure in their duties or obligations, but that this prohibition of the reduction of “explicit statutory guarantees” was quite distinct from the question of the procedures for enforcing them and the “forum in which they are to be vindicated”.128 In addition, Carnival Cruise129 had rejected high transaction costs and associated inconvenience as reasons for refusing to enforce forum selection clauses, as English courts had also done long before in interpreting the Hague Rules.130 Enforcement of the arbitration clause in the case at bar was also found to be in keeping with the objects of the Federal Arbitration Act,131giving effect to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New
Ibid at p. 90. 407 U.S. 1, 1972 AMC 1407 (1972). 124 499 U.S. 585, 1991 AMC 1697 (1991). 125 515 U.S. 528, 1995 AMC 1817 (1995). The majority decision was supported by seven justices to one (Stevens, J.), although Justice O’Connor issued a separate, concurring opinion. 126 377 F.2d 200 at p. 202, 1967 AMC 589 at p. 593,  2 Lloyd's Rep. 101 at p. 104 (2 Cir. en banc 1967). 127 515 U.S. 528 at p. 534, 1995 AMC 1817 at p. 1821, citing Scherk v. Alberto-Culver Co 417 U.S. 506 at p. 519 (1974). See also the dissent of Justice Stevens in The Sky Reefer (515 U.S. at p. 549, note 7, 1995 AMC at p. 1832, note 7), who nevertheless admitted: “Of course, the objectionable feature in the instant bill of lading is a foreign arbitration clause, not a foreign forum selection clause. But this distinction is of little importance; in relevant aspects, there is little difference between the two. . . . The majority's reasoning . . . thus presumably covers forum selection clauses as well as arbitration.” For decisions on foreign jurisdiction clause applying the Sky Reefer decision, see, among many others, Mitsui & Co. (USA), Inc. v. Mira M/V 111 F.3d 33 at p. 36, 1997 AMC 2126 at p. 2129 (5 Cir. 1997); Fireman’s Fund Ins. Co. v. M.V. DSR Atlantic 131 F.3d 1336 at p. 1339, 1998 AMC 583 at p. 587 (9 Cir. 1997), cert denied, 525 U.S. 921 (1998). 128 515 U.S. 528 at p. 534, 1995 AMC 1817 at p. 1821. 129 499 U.S. 585, 1991 AMC 1697 (1991). 130 515 U.S. 528 at p. 537, 1995 AMC 1817 at p. 1823, citing Maharani Woollen Mills Co. v. Anchor Line (1927) 29 Ll. L. L. Rep. 169 (C.A.). 131 9 U.S.C. 201 et seq.
27 York Convention 1958).132 The Court further held, citing Bremen, that “… [t]he expansion of American business and industry will hardly be encouraged if, notwithstanding solemn contracts, we insist on a parochial concept that all disputes must be resolved under our laws and in our courts.”133 On the second argument, the Supreme Court held that it was premature to predict what law the arbitrators would apply to the claim. In any event, the U.S. District Court had retained jurisdiction over the case and so would have the opportunity of reviewing the eventual Japanese arbitral award, in U.S. enforcement proceedings, to verify its conformity to U.S. public policy. The Sky Reefer decision is controversial, especially inasmuch as it apparently disregards the importance of a real and substantial connection between the chosen forum and the parties and circumstances of the case, in deciding whether or not to enforce a provision calling for arbitration outside the U.S. But it has changed American law significantly by downplaying the convenience issue and emphasizing contemporary international practice, in assessing the enforceability of both foreign jurisdiction and foreign arbitration clauses in contracts generally and international ocean bills of lading in particular. Although foreign forum clauses and agreements are now generally upheld in the U.S., American courts nevertheless retain their discretion to refuse such enforcement on the grounds stated in the above-mentioned landmark decisions, which grounds are further examined below.134 4) Criteria as to enforcement - U.S. a) Is U.S. law being avoided?
American courts were traditionally reluctant to stay actions when the alternative jurisdiction might invoke a law different from U.S. law. This rule is not absolute since Piper Aircraft v. Reyno,135 but is most effective where U.S. law would normally apply and a change of jurisdiction would result in foreign law being applied. Thus in Volkswagen of America Inc. v. S.S. Silver Isle,136 it was first noted that, when in the United States the colliding vessels are both at fault, the innocent cargo may recover full damages against either vessel. In consequence, the Court held that, even though the carrying vessel had already begun a collision suit, on her own behalf and as bailee of her cargo, against the other vessel in a Canadian court, the U.S. Court would not dismiss an action filed against the other vessel by American cargo interests not shown to have been actual parties to the Canadian suit.
Adopted at New York, June 10, 1958, and in force June 7, 1959, 330 U.N.T.S. 3, 21 U.S.T. 2517, T.I.A.S. No. 6997. 133 515 U.S.528 at p. 538, 1995 AMC 1817 at p. 1824, citing Bremen v. Zapata Off-Shore Co. 407 U.S. 1 at p. 12, 1972 AMC 1407 at pp. 1415-1416 (1972). The Court further warned (515 U.S. 528 at p. 539, 1995 AMC 1817 at p. 1825) that U.S. courts should be “… most cautious before interpreting its domestic legislation in such manner as to violate international agreements. That concern counsels against construing COGSA to nullify foreign arbitration clauses because of inconvenience to the plaintiff or insular distrust of the ability of foreign arbitrators to apply the law.” 134 See Polar Shipping Ltd. v. Oriental Shipping Corporation 680 F.2d 627 at p. 632, 1982 AMC 2330 at p. 2337 (9 Cir. 1982): “… under United States law, the enforceability of a foreign court selection clause is a matter of judicial discretion”, citing Bremen 407 U.S. 1 at p. 11, 1972 AMC 1407 at p. 1415, note 12 (1972). 135 454 U.S. 235, 1982 AMC 214 (1981). 136 1966 AMC 925 at pp. 927-928 (N.D. Oh. 1966) “even assuming that the Court will apply different legal standards than the Canadian court, this is not a factor to consider in determining whether to decline jurisdiction.”
In Indussa Corp. v. S.S. Ranborg,137 the Second Circuit held that a jurisdiction clause calling for suit in Norway and which ousted COGSA in a shipment from Belgium to San Francisco was contrary to sect. 3(8) of COGSA. In view of the Bremen138 and Sky Reefer139 decisions, which arguably overruled Indussa, 140 however, foreign forum selection and foreign arbitration clauses are now presumptively valid under U.S. law.141 Such clauses can even benefit third parties pursuant to clear Himalaya clauses extending the protections of the contract of carriage to such parties.142 Consequently, where a party is seeking to persuade a U.S. court to keep jurisdiction despite such a clause in a bill of lading, it no longer suffices to prove that the foreign court (or arbitral tribunal) would apply some law other than U.S. COGSA. As the Supreme Court declared in The Sky Reefer:“… mere speculation that the foreign arbitrators might apply Japanese law which, depending on the proper construction of COGSA, might reduce respondents’ legal obligations, does not in and of itself lessen liability under COGSA §3(8).”143 Nor may the foreign forum clause be set aside merely because it was not freely bargained for. The Southern District of New York, in Silgan Plastics Corp v. M/V Nedlloyd Holland, held:144
377 F.2d 200, 1967 AMC 589,  2 Lloyd's Rep. 101 (2 Cir. 1967). 407 U.S. 1, 1972 AMC 1407 (1972). 139 515 U.S. 528, 1995 AMC 1817 (1995). 140 See, for example, Nippon Fire & Marine Ins. Co. v. M.V. Egasco Star 899 F. Supp. 164 at p. 170 note 8 (S.D. N.Y. 1995), aff’d 104 F.3d 351 (2 Cir. 1996): “Overruling the Second Circuit's decision in Indussa Corp. v. S.S. Ranborg, 377 F.2d 200 (2d Cir.1967), the [U.S. Supreme] Court in Sky Reefer held that COGSA does not nullify foreign forum selection clauses.” See also Great American Ins. Co. v. M/V Kapitan Byankin 1996 AMC 2754 at p. 2756 (N.D. Cal. 1996): “… since the Sky Reefer Court flatly rejected both the conclusion and rationale of Indussa Corp. v. S.S. Ranborg, 1967 AMC 589, 377 F.2d 200 (2 Cir. 1967), which held that COGSA invalidated foreign forum selection clauses in general, it follows that foreign forum selection clauses generally do not lessen a carrier's liability or violate COGSA.” But see also Union Steel America Co. v. M/V Sanko Spruce 14 F. Supp.2d 682 at p. 689-691, 1999 AMC 344 at pp. 354-356 (D. N.J. 1998), where it was held that although Indussa had not really been “overruled”, its rule was “not viable” (ibid., F. Supp.2d at p. 691, AMC at p. 356) in view of the presumptive validity of foreign forum selection clauses under Bremen and The Sky Reefer. 141 See M/S Bremen v. Zapata Off-Shore Co. 407 U.S. 1 at p. 10, 1972 AMC 1407 at p. 1414 (1972); and many other decisions, including Mitsui & Co. v. Mira M/V 111 F.3d 33 at p. 35, 1997 AMC 2126 at p. 2127 (5 Cir. 1997); Asoma Corp. v. M/V Southgate 2000 AMC 399 at p. 400 (S.D. N.Y. 1999); Allianz Ins. Co. of Canada v. Cho Yang Shipping Co., Ltd. 131 F. Supp.2d 787 at p. 790, 2000 AMC 2947 at p. 2950 (E.D.Va. 2000); Tokio Marine & Fire Ins. Co. v. M/V Turquoise 2001 AMC 1692 at p. 1694 (D. S.C. 2001); Hartford Fire Ins. Co. v. Novocargo USA Inc. 156 F. Supp.2d 372, 2002 AMC 314,  ETL 57 (S.D. N.Y. 2002). 142 See, for example, Tokio Marine and Fire Ins. Co., Ltd. v. COSCO 2004 AMC 1048 at p. 1051 (C.D. Cal. 2004), where the U.S. general agent of the defendant ocean carrier was held to be entitled by the Himalaya clause of a sea waybill to the protection of the exclusive jurisdiction clause in the waybill. 143 515 U.S. 528 at p. 541, 1995 AMC 1817 at p. 1827 (1995). See also Abrar Surgery (PVT) Ltd. v. M.V. Jolly Oro 2000 AMC 109 at p. 112 (S.D. N.Y. 1999): “Although the application of COGSA plainly mitigates concern that the forum clause is defendant's attempt to exempt itself from its statutory obligations, it is not required that COGSA, or even the Hague Rules, apply to validate a foreign forum selection clause.” 144 1998 AMC 2163 at p. 2164 (S.D. N.Y. 1998). See also Mitsui & Co. v. Mira M/V 111 F.3d 33 at p. 36, 1997 AMC 2126 at p. 2129 (5 Cir. 1997); Galaxy Export Corp. v. M/V Hektor 1983 AMC 2637 at p. 2639 (S.D. N.Y. 1983); Dukane Fabrics Int’l Inc. v. M.V. Hreljin 600 F. Supp. 202 at p. 203, 1985 AMC 1192 at pp. 193-1194 (S. D. N. Y. 1985); Reed & Barton Corp. v. M.V. Tokio Express 1999 AMC 1088 at p. 1092 (S.D. N.Y. 1999), aff’d without opinion sub nom. Lucent Technologies, Inc. v. M.V. Tokio Express 210 F.3d 355 (2 Cir. 2000).
534. 2000). Co. 1821 (1995). 528. 499. M/V An Long Jiang 1998 AMC 854 (S.Y. International Marine Underwriters C. Atlantic court “appears to have wholly ignored” the reference in 46 U.” (ibid. M/V Sky Reefer.”148 145 146 2001 AMC 1692 (D. of Canada v..R. 1997). Va.” 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.’ See Vimar Seguros y Reaseguros. 921 (1998). N.C. Supp.Y. 2000).. 587 (9 Cir. Co. v. 794.S. however.2d 787 at p. See. 1998). v. ibid. Note. M.).147 holding that this purely “procedural” difference between American and Korean law was not a lessening of the “specific liability” imposed by COGSA. Ltd. 2955 (E. the unavailability of an in rem action in the designated foreign forum is irrelevant to the enforcement of the forum clause. 521 U. v. denied.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. 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. v. American courts appear divided.” b) The parties should not lose rights already acquired A change in jurisdiction should not cause the parties to lose rights. N. Co. In Tokio Marine & Fire Ins. Cho Yang Shipping Co.R. Inc.D. 530. The Supreme Court also held that a ‘nonnegotiated forum-selection clause in a form ticket contract’ is enforceable against a consumer. 1998 AMC 765 at p. D. 1995 AMC 1817. See Allianz. cert. S.U. 593. N. of Canada v.S.C. which they have acquired by the suit already taken. Similar positions have been taken by district courts in the Second Circuit. 1998). 2955 (E. 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…. Allianz Ins. Co. M/V Turquoise.A. v. however. Shute. 498 at p. however. Supp. 147 131 F. v.V. 1339-1340. Cho Yang Shipping Co. COGSA. This is particularly true in actions in rem.S. Appx. 499 U. 1998). took the opposite position in Fireman’s Fund Ins. 794. following M. 767 (S.S. 1818 (1995). F. 2000 AMC 2947 at p. 2001).U.D. v. Atlantic. Co. 499.145 for example. v. Supp. 585. M/V D. AMC at pp.V. Supp. however. U.D. but that it merely presented “a question of the means of enforcing that liability. 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.D. 1303(8)) to the ship’s own liability. 131 F.S. M/V Kasif Kalkavan 989 F.146 The Ninth Circuit. DSR Atlantic. 767 (S. See also Fireman's Fund Ins. The Supreme Court upheld a foreign arbitration clause even though it appeared in a ‘standard form bill of lading.. 148 In Allianz Ins. 1995 AMC 1817 at p.3d 1336 at pp.S. 1998 AMC 583. 528 at p. 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). over whether the lack of in rem process in the selected forum abroad precludes enforcement of the jurisdiction clause.A. criticizing the Ninth Circuit’s view. M/V Kasif Kalkavan 989 F. 2d at p. 1991 AMC 1697. 1998 AMC 583 at p.R.3d 1336.2d 787 at p. Carnival Cruise Lines. Supp.Y. 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.S. . 2000 AMC 2947 at p. 131 F. 1703 (1991). Atlantic on the point.S. Va. the Eastern District of Virginia.D. 2955-2956. where the Court said that the D. 1998 AMC 765 at p. S. But see also Hyundai Corp. 498 at p. under Rule 4(m) of the Federal Rules of Civil Procedure). Inc.S. 794. 131 F. International Marine Underwriters C. 515 U. 1339 (9 Cir.
322 at p. 33. 1966). Chiyoda Fire & Marine Ins. 1967). Co. however.155 the forum non conveniens doctrine was held to justify the dismissal of a New York action brought by an Italian shipper and a Bahamian consignee against an Italian steamship company for damage to cargo shipped from Europe to Grand Bahama Island. N. and without taking any steps to protect the running of time in the designated forum. M/V Hyundai Freedom 1999 AMC 1603 at p. Nor will the U.D. In Snam Progetti v. 1976 AMC 212 at p. In the S. Supp. 152 Gulf Oil Corp. Rotterdam or Oslo. Lauro Lines. Supp. M/V Royal Container 30 F. v.”149 In Hartford Fire Ins. 1999). M/V Kapitan Byankin 1996 AMC 2754 at p. 1999).D.3d 24 at p. Supp. Man B&W Diesel AG 121 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.Y. however.S. Cal. v. 324 (S. v. N..1968 AMC 328 (S.D.D. 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. N. 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.30 If the court is concerned that rights may be lost.. Inc. Ltd. 1997). 1974).2d 661.152 In Sherkat Tazamoni Auto v. Margit. order the defendant to waive the statute of limitations in the chosen forum abroad.D. None of the parties had offices in New York and the bill of lading called for suit in Italy under Italian law. Co. 1975). Wash. quicker and more convenient justice. 1974). 2124 (W. of America 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. Carnival Cruise and The Sky Reefer.150 the Court declined jurisdiction “subject to the provision that none of the parties be prejudiced as to any rights they had on . N. Street. In view of the decisions in Bremen. 155 387 F.S.N. 1996). court. Gilbert 330 U. Orient Overseas Line. decisions tend to indicate that there is no point in changing jurisdiction if the new jurisdiction is inconvenient to the parties and to witnesses.154 after the shipowner had petitioned in New York to limit its liability following a total loss at sea. 154 1966 AMC 1217 (S. Lauro Lines 387 F. v. in such a situation. v. N.151 c) The convenience of the new jurisdiction is less important today Older U.D.D. S. and the cargo claimant deliberately takes suit in another court despite that clause. Hellenic Lines. 462. 151 Great American Ins. Co. 501 at p. it is doubtful today whether the mere inconvenience of the clause Snam Progetti v. 1605 (S.Y.Y. See also New Moon Shipping Co. 2758 (N.D. 508.Y.S. 1999 AMC 1805 (S. 322 (S.. 1998 AMC 603 [DRO] (2 Cir.Y.Y. the Court allowed cargo interests to sue the charterers in New York for their cargo claims despite a clause in the bill of lading requiring that suits against the charterers be brought in Amsterdam.” Where there is a foreign forum selection clause in the bill of lading. The purpose of a change in jurisdiction is to provide cheaper. 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. Sound Around Electronics. 150 149 . Supp. 153 277 F.
unjust.S. 417 U. 1702 (1991) (quoting Bremen. Thus. Absent that there is no basis for concluding that it would be unfair. or tainted with fraud or overreaching. the U. or unreasonable to hold that party to his bargain.S. 159 1996 AMC 2022 at pp. 506.S. Nevertheless. 536. 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. 15. of Canada v. 131 F. 592. 2031-2032 (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.D. 1418.S. where the difference between forum non conveniens dismissals and dismissals for improper venue (because of a foreign forum selection clause) was emphasized. Ltd. 1991 AMC 1697. the Bremen Court concluded that a ‘forum clause should control absent a strong showing that it should be set aside. court to stay proceedings conditionally or to dismiss them.S.Y. Cho Yang Shipping Co. 499 U. M/V Kapitan Byankin 1997 AMC 2754 at p. or repugnant to a strong public policy of the U. at 17. Shute..S. 1050 (C. Alberto-Culver Co. 2956 (E. 1995).. 2758 (N. 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. Tokio Marine and Fire Ins. 1823 (1995). at 7. 528 at p.’ 407 U.. inconvenience can be considered only if it is grave enough to render the clause unenforceable as being unreasonable or unjust. v. Cal. Co. even when the forum clause designates a remote forum for the resolution of conflicts. V. ‘the party claiming (unfairness) should bear a heavy burden of proof. v. Co.156 In this regard. 156 . 157 407 U. 1972 AMC at 1419). see Great American Ins. the ultimate decision depends upon the exercise of judicial discretion. N.D.” The finding in Carnival Cruise Lines v. 518 (1974). forum. the size of their claims.D.” In this regard. 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. 1996). Cal. reinforced the limited role that the factor of “inconvenience” now plays in assessing the enforceability of such a provision in American courts.D. 407 U.S. Co. COSCO 2004 AMC 1048 at p. Ltd. Rather. 18.S. in either case.2d 787 at p. Supp.S. 1995 AMC 1817 at p. accord Scherk v. as was held in Bison Pulp & Paper Limited v. 2000 AMC 2947 at p. 585. Va. 1972 AMC 1407 at p. 1972 AMC at 1412. 1 at p.. 2000). 795. and the relative burden on the carrier. 158 515 U.” Proving so high a level of inconvenience is no easy task.’ ‘ Carnival Cruise Lines. 2004). See also Allianz Ins. 1420 (1972). Supreme Court in Bremen. Inc.31 to one party to the contract would permit a U.
2003). 165 But see also Hyundai Corp.S. N. M/V An Long Jiang 1998 AMC 854 at p. N.V.C. the U. Croatian Line 918 F. Inc. where it appeared that Croatia applied the Hague Rules). whereas U. 1999 AMC 1805 at p. 3(8) of U. D. Inc. Appx. 2d 675 at p. 101 at p.D. Court of Appeals decided that a foreign jurisdiction clause was invalid generally. 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. the Japanese ship manager agreed to waive the demise clause in the bill of lading.2d 200 at p.D. U. 3(8) In Indussa Corp. 1996) (a mere “conclusory allegation” that Croatia was “politically unstable and jurisprudentially immature” was insufficient to set aside the Croatian forum clause.D. Supp. M/V Coral Halo 2004 AMC 273 at p. Supp. permitting suit only against the shipowner as carrier. 1998).Y. The U. as judicially interpreted by American courts.S.V. 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. COGSA. 163 See." Accord: Glyphics Media.S. action and availing itself of the limitation proceeding. District Court therefore kept jurisdiction.D.162after referring to COGSA. of Panama 1999 AMC 889 at p. aff’d without opinion. Sound Around Electronics v.Y. thus reducing litigation costs and the risk of inconsistent judgments) is refused as a ground for refusing to enforce a jurisdiction clause. so as to avoid the risk of non-enforcement of the Japanese law and forum clause in the bill.161 d) Must not contravene sect.3d 432 (2 Cir. La. 1196 (E. notwithstanding the demise clause in the bill. Great American Ins. M/V Royal Container 30 F.A. 1303(8)). v.Y.S.Y. COGSA. 595. v. Although such efforts usually fail. however.Y. Cal.D.2d 661 at p. 1999). 162 377 F..165 See.32 In most cases. under which foreign jurisdiction and foreign arbitration clauses are deemed presumptively valid. 2000). 1996 AMC 1189 at p. Pasztory v. v.163 they can still be successful on occasion. 1999). so that giving effect to those clauses would “fragment this case beyond recognition”.S. Gertrude Oldendorff.  2 Lloyd's Rep. 2002 AMC 1477 at pp. 1996) (plaintiff failed to refute defendant’s showing that Australia. 966-967. COGSA (46 U. 283 (E. Ranborg. the vessel owner had waived enforcement of the forum selection clause by filing a claim in the pending U. 856 (S. 680. 160 . N.S. In Central National-Gottesman. 201 F. however. 674-675 (S. however.160 Where many claims were involved in a limitation proceeding. M. 1967 AMC 589 at p. 105 (2 Cir. the Court deciding that the claimant could subsequently sue the shipowner and/or the vessel in rem in the Southern District of New York. 164 204 F. 961 at pp. N. Va. the contractual forum. M/V Kapitan Byankin 1996 AMC 2754 at p. because English courts applying English law would uphold a demise clause in the bill of lading. 2002).D. Inc. 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. In Nippon Fire & Marine Ins Co. because it would relieve or lessen the carrier’s liability contrary to that provision. 3(8). Co. 1483-1484 (S. Supp. Since Bremen and The Sky Reefer. sect. 1967). N. 663. 3(8) of U. Conti Singapore 2003 AMC 667 at pp. Street. 2757 (N. would not reduce the carrier’s liability contrary to COGSA). M. 894 (S. the Korean clause was upheld. 204.164 for example.D. Inc.S.S. for example. an English law and jurisdiction clause was found unenforceable as lessening the liability of the carrier contrary to sect. The Court noted. 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. for example.S. “judicial economy” (the greater convenience of having all disputes settled in one forum. 161 For an example of such serious inconvenience. would permit suit against the time charterer who issued the bill as well as the shipowner. see In re Rationis Enterprises. 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. v. S. v. 1806 (S. the argument was accepted. v.
S. where a Japanese forum selection clause was found null and void and unenforceable. unless he had immediately objected to it on receiving the bill of lading. M/V Jin He 1999 AMC 1700 at p.D. Inc.166 a bill of lading calling for German law and Hamburg jurisdiction contained a general liberties clause.168 One point is very clear in this regard. v. v. and the shipper would be deemed to have consented to deck stowage.S. if and when interpreted by the designated foreign forum applying the designated foreign law.D. M/V Ocean Sunrise 2003 AMC 2200 (E. permitting the carrier to stow a helicopter on deck.A. 168 See.170 2003 AMC 30 (C. There are also decisions in which American courts. v. for example. 170 For a similar European decision.V. because it appeared that Korean law would not grant the cargo underwriter claimant an action in subrogation. see Rechtbank van Koophandel te Antwerpen.167 a Korean jurisdiction clause in a bill of lading was held to be invalid. Sligan Plastics Corp. will in fact lessen the carrier’s responsibility below the COGSA threshold. for example.. N. unless cargo could prove that in doing so. v. 1719.D.C. 1999). an “unreasonable deviation” from the contract of carriage. 1997). Co. Supp. in the U. June 18. 2003).S. M/V Nedlloyd Holland 1998 AMC 2163 at p. N.  ETL 453. Co. Majestic Electronics. Sanko Spruce 1999 AMC 366 (D. 91. 3(8) of COGSA. 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.S. 675 (S. 2001). Cal. 1998). the deck stowage) was reasonable. unless the carrier could prove that the deviation (i. M. courts would be void by Belgian law. M/V OOCL Faith. Conversely. 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. Nippon Fire & Marine Ins.D. 2000 AMC 1717 at p. have been uncertain whether particular bill of lading clauses. v. would or would not in effect be construed so as to relieve or lessen the carrier’s liability contrary to sect. 167 166 . La. In Gibbs International Inc. 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. Inc. 576. v. unless consented to expressly by the shipper or permitted by a general port custom. which the insurer would enjoy under COGSA. 3(8) of U. COGSA package limitation for resulting cargo loss or damage. the foreign forum selection clause has been denied enforcement. would not break its package limitation under German law. Conti Singapore 2003 AMC 667 at p. See also Kanematsu U.S.Y.J. 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. The carrier’s act in stowing the cargo on deck.169 there must be proof positive that the foreign court. COGSA. M/V Spring Wave 92 F.e. Cal. In these cases. applying its law.33 In Heli-Lift Ltd. the carrier had intended to cause the loss or had acted recklessly with knowledge that the loss would probably occur. 1998).D. 2002 (The Dymphna.D. 169 See. S.Y. where on-deck stowage constitutes. 1997 AMC 2954 at p. Glyphics.. 574 at p. Inc. Federal Ins. where a Belgian Court decided that a bill of lading clause granting jurisdiction over cargo claims to U. 1701(C. 2166 (S. if it could not be established that those courts would apply the obligatory Hague/Visby Rules enacted by Belgium’s Maritime Law. the foreign jurisdiction clause was denied enforcement on grounds of public policy.  ETL 509 (E. prima facie. Union Steel America Co. facing contradictory affidavits from foreign law experts. 2003). 2960 (D. art. 2000). v. The American court noted that such a clause would be upheld in Germany. even if negligent. La. N. v. under sect.
Margit 1966 AMC 1217 at p.Y. 909 at pp.2d 1353.3d 956 at p. 1363 (2 Cir. 510 U. 1689 (2 Cir. 7 Ed. 2381 (S. Ct. 1972 AMC 1407 at p. 1218 (S.2d 675 at p. 175 Barbara Lloyd Designs. Inc.Y. citing Haynsworth v.3d 7 at p. 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. The fact that plaintiffs in many jurisdictions are permitted to plead by deposition often precludes acceptance of the “day in court” argument. S. Lines Ltd. 67 F.2d 447 at p. at pp.S.Y.D. of Lloyd’s. forum’s public policy172). 259 (2 Cir.. Swedish American Line. 2002). decisions have generally not strayed far from the three very general grounds of unenforceability articulated in Bremen (injustice or unreasonableness (unfairness). 172 407 U. Gertrude Oldendorff 204 F. 911-912.S. (2) if the complaining party ‘will for all practical purposes be deprived of his day in court.V. Inc.D. ibid. 2003). in Roby v. 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. are rarely accepted as grounds for refusing enforcement to an otherwise valid forum clause in the United States. 2616 (N. Corporation 121 F.S. Central National-Gottesman. at pp. 1962 AMC 1217 at p.2d 806 at p. Supp. or (4) if the clauses contravene a strong public policy of the forum state” (citations omitted). v.V..S. 1129. 2617-2618. 1955 AMC 1687 at p. 2002) (bill of lading cases relying on the same criteria).Y. 2002 AMC 1477 at p. and is also usually dismissed as a ground of nonenforcement. Inc. however.D. 672 (S. 174 See also Asoma Corp. 15.D. 1220 (S. for example. Inc. v. v. N. Inc.S. 224 F. 1997) and Black’s Law Dictionary. See Effron v.K. 1955). 1997 at p. Tsuneshima Maru 197 F. 176 Barbara Lloyd Designs. Jockey v. which factors. N. M/V Southgate 2000 AMC 399 at p. 177 Barbara Lloyd Designs. as where one party takes unfair commercial advantage of another. See also Restatement (Second) on Conflict of Laws. 173 996 F. such as by fraudulent means.’ due to the grave inconvenience or unfairness of the selected forum. (3) if the fundamental unfairness of the chosen law may deprive the plaintiff of a remedy..176 Public policy must be “strong” in order to defeat a choice of forum provision. or violation of the U. S. Inc. 1966). Dk. Supp.S. v. 2002 AMC 2377 at p. 2003). 400 (S. Corp. 171 . 1479 (S. 1995). Supp. Takemura & Co.34 e) Reasonableness For a great many years. cert. 1418 (1972). 1961). Glyphics Media. 80.Y.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. sect. The Second Circuit. M. Conti Singapore 2003 AMC 667 at p. Dist.D. N. 1996 AMC 253 at p. 2618-2619. N. v. Sun Line Cruises. Ltd. 678.177 Muller & Co. 945 (1993).D. 1971. What is reasonable is a question of fact for the trial court to decide. fraud or overreaching. Mitsui O. 1 at p. 11. 2003 AMC 2608 at p. v.S. Subsequent U.”174 “Overreaching” refers to inequality of bargaining power between the parties or other circumstances in which there is “an absence of meaningful choice on the part of the parties”. 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. denied. N. 808. ibid.Y. 965 (5 Cir. N. Leverkusen 217 F. 1999). 1993). M. 451.
does not justify refusal to enforce the clause. 178 . 2003).” 181 2003 AMC 667 (S.) forum applied.181 the allegedly “deplorable state of India’s court system”. Supp.178 the Court noted that: “Additional considerations include the relative bargaining power of the contracting parties.S. although more inconvenient for one party.” Mere procedural differences between trial in the designated court and trial in the U. Co.184 In that case. 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”. U. 1992). at pp. have generally been found insufficient to constitute “unreasonableness” justifying sidestepping of the designated forum. See also Tokio Marine & Fire Ins. at p. 110 (N.D. 186 2002 AMC 106 at p. N. 185 Compare with Industria Fotografica v.35 In Allianz Ins. was nevertheless not unjust. 18 at p. was not an adequate ground for nonenforcement of an exclusive Indian law and forum selection clause in an ocean carrier’s bill of lading. the requirement to post over $2.D.D Cal. unreasonableness was found in the “floating choice of law and jurisdiction clause” considered in LG Electronics Inc.V. Cal.D. with other authorities cited there. of Canada v. the port of loading. Supp..179 the unavailability of a jury trial in Brazil. In Interamerican Trade Corp.. 790. 2001). because the forum selection clause in the bill of lading required that suit be brought exclusively in one or other of those fora. which parties must have considered when negotiating the agreement. Co. the awarding by Brazilian courts of judgments in cruzeiros rather than in dollars. M/V Turquoise 2001 AMC 1692 at p. Companhia Fabricadora De Pecas. Tex. the bill of lading clause specified United States law and U. were all dismissed as grounds of non-enforcement of the Brazilian jurisdiction agreement. v. and the fact that foreign witnesses were permitted to testify by way of affidavit in India.e.S. Cal.C. was therefore not enforced.2d 787 at p.180 Similarly. were invoked in enforcing the jurisdiction clause. the presence of bad faith. 180 The Sixth Circuit noted (ibid. the transshipment port or the place of delivery). Dismissal on forum non conveniens grounds was also denied.183 On the other hand. 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.2d 487 at pp. and the alleged difficulty of getting money out of Brazil.. the port of discharge. 2000). the place of delivery. 20. 179 973 F. COSCO 2004 AMC 1048 (C. and the convenience and relatedness of the forum to the contract.D. 2950 (E. 1694 (D. 184 2002 AMC 106 (N. 673. Inc.S. the lack of trial by deposition. 2004). v. Ltd. 770 (S.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. S. in Glyphics Media. 1996 AMC 769 at p. as security. 1995). Other evidence indicated that Brazilian courts were fully competent and that trial there. Fritz Transportation International. 2001). jurisdiction. 2000 AMC 2947 at p. 489-490 (6 Cir. Ltd. M. Nor did the provision require suit to be brought exclusively in any one specific forum.S. Va. provision of an adequate remedy for the aggrieved party. particularly as regards delays for trial. where the carrier’s option to sue in either Mexico City or Rio de Janeiro was upheld. Co. held to be “unreasonable”.D. the slowness of the Brazilian judicial process. v. 489-490): “speculative concern regarding fairness of a foreign court.185 The clause. 183 Ibid. v. Cho Yang Shipping Co. Jalisco 903 F. The clause failed to specify when the carrier had to exercise its option and when the “default” (i.Y.2 million U.186 131 F. 2001).. M/V Conti. v. 182 See also Tokio Marine and Fire Ins.
at p.. overrules the broad reading this Court gave to the clause in Monrosa. 1995 AMC 2730 at p. 406407. however. most modern foreign forum selection clauses are not limited to claims against the master. Carbon Black Export.v. Indeed in M/S Bremen v. L. S. the language of the clause in the Carbon Black case was far different”. but where the ocean carrier was also faced with crossclaims by co-defendant inland carriers arising out of the same facts. The bill of lading jurisdiction clause did not specifically refer to in rem proceedings. Lauritzen A/S v. See also Conklin & Garrett.ca/maritime/arrest. Monrosa v.mcgill. Ltd. 1987): “Bremen. owners or agents of the vessel. The jurisdiction was also convenient to the parties. See Tetley. 2. 321 (5 Cir.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.A. 1983 AMC 2719 at p.” The clause was held to be insufficiently specific to cover the in rem claim and thus the District Court could keep jurisdiction.D. Tetley. 944. “Arrest. Accordingly. 190 407 U. Supreme Court distinguished Monrosa. 1983) re Supplementary Rule C. See also J. Geneva 2003 AMC 2511 (S. 418. Co. 1998 at p. the wording of the foreign forum selection provision has been held wide enough to encompass claims in rem as well as those in personam. 2 Ed. 384. Ltd. 1988 AMC 318 at p.htm.. Maritime Liens & Claims. The Vessel Bay Ridge 703 F. Zapata Offshore Co. Inc. ibid. Rev.S.S. 2003 at pp. 2003). The admiralty attachment under Supplemental Rule B also gives jurisdiction. 1995).2d 381 at p. 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. so the forum selection clause was not enforced. and concluded that191 “…the language of the [Bremen] clause is clearly mandatory and all-encompassing.United States A very particular problem arises in admiralty in respect to the enforcement of forum selection clauses. the U. Dias v. 429-431.S. The arrest of the ship in rem under Supplemental Rule C gives the Federal District Court jurisdiction..187 f) In rem . 2732 (9 Cir. 20. 1408 (1972). See Tetley. although reading: “No legal proceedings may be brought against the Captain or shipowners or their agents except in Genoa. 1959 AMC 1327 (1959).law. Fla.” 188 187 . Dashwood Shipping. 189 359 U. Unlike the clause in Monrosa. 1443. 408-409. 1 at p. International Maritime and Admiralty Law. 191 Ibid. See also Tetley.S. 2721 (9 Cir. v. AMC at p. 180. where the jurisdiction clause in the towage contract stipulated that:190 “…(a)ny dispute arising must be treated before the London Court of Justice". S.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. it was held to be “unreasonable and unjust” to require the ocean carrier to defend the claim and cross-claims in two different districts. at p. 1933-1936 and on-line at http://tetley. 1895 at pp. Attachment and Related Maritime Law Procedures” (1999) 73 Tul. see also Alyeska Pipeline Serv. 1422. M/V Finnrose 826 F. U. itself. 1972 AMC 1407 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. however. Mediterranean Shipping Co. where the clause was so much more narrowly drafted.2d 1441 at p.
V. and in force November 1. a district court may transfer any civil action to any other district where it might have been brought. 2004 AMC 1278 (S. (3) the availability of process to compel the presence of witnesses. although some other jurisdiction is more appropriate.2d 532 at p. Code sect. Zapata Off-Shore Co. 1404(a) provides: "For the convenience of the parties and witnesses. Wash. 1337.Y. M. The suit is transferred. supp. . Tokio Express. 1998 AMC 765 (S. Supp." The Ninth Circuit interpreted this clause to include in rem claims. 1090) also cited Industria Fotografical Interamericana v. 18 at p. decline jurisdiction and dismiss the attachment or order the release of whatever security the defendant has posted. N. unlike the clause considered in Monrosa. 1984).D. 1998 AMC 583 at p. . g) Transfer within the U. 1985 AMC 356 at pp. 1972 AMC 1407 (1972). Convenience is the main criterion. . at p. 2000). 1999). 305 F.197 at art. 359-360 (W. and (8) the interests of justice in general.199 131 F.2d 352. but only upon the defendant furnishing security to ensure payment of a subsequent judgment. any claim or dispute arising hereunder or in connection herewith shall be determined by the courts in Seoul and no other courts. (2) the convenience of material witnesses. 1268 at pp. DSR Atlantic. Lim. to German law as determined in the “Hamburg courts to the exclusion of the jurisdiction of the courts of any other place”. Tokio Express. 20. Supp. (5) the relative ease of access to sources of proof. Procs." For an example of the use of this provision in a case involving a forum selection clause (in a cruise passenger ticket). (4) the cost of obtaining the presence of witnesses.3d 355 (2 Cir. 199 See Norfolk Dredging Co. v. Jalisco 903 F. ..Y.” 195 M/S Bremen (and Unterweser G. shall be brought before the Seoul Civil District Court in Korea" to encompass in rem claims. although it did not mention them expressly. Norwegian Cruise Lines.S.N. 1998).S. 1270-1271. see also In re the Complaint of American President Lines. Inc. The Court (at p.3d 1336 at p.V. 193 1999 AMC 1088 (S. 1997). 1611 (E. 2004).m.37 Again in Fireman's Fund Ins. see Lurie v. which has obtained jurisdiction by an arrest in rem (under Supplemental Rule C) can nevertheless give effect to a jurisdiction clause and decline jurisdiction. District Court pointed out that. M. the U. (citations omitted).D.H. 535. (7) where the events in issue took place. M. aff’d without opinion sub nom.195 so can a court. in the interest of justice. 1992. 1.D. 407 U. 2002 AMC 1608 at p.D.194 In the same way that a court. 194 Ibid. 2002): “These criteria include: (1) the convenience of the parties.V. where the Court interpreted a clause that read "any and all action . 210 F.S. 1996 AMC 769 at p. 770 (S.Y. 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. 584 (9 Cir. (6) calendar congestion.D.S. give effect to a clearly worded jurisdiction clause.192 the clause stated: " . 1995). M/V Kasif Kalkavan 989 F. 1091. See also International Marine Underwriters v. 240 F. Halla Maritime 583 F. Transfer of a suit from one federal district court in the United States to another198 is fraught with far fewer problems because a change in law is not involved. 198 28 U. on March 31.V. Inc. Co v. In Reed & Barton Corp. Supp. 197 Signed at Hamburg.) v. Lucent Technologies. this clause was broad enough to cover in rem claims. Supp. The parties agreed to the jurisdiction choices in the contract. Ltd.b. M. . 1978. 196 Teyseer Cement v. 1995 192 . v.193 where the clause similarly subjected “… any claim or dispute arising under this Bill of Lading”.D.196 The Hamburg Rules. under this Bill of Lading . Va. 21(2). Tex. provide useful rules and procedures when suit has been taken by an action in rem. N. which has acquired jurisdiction by an admiralty attachment (under Supplemental Rule B). 498. .
197 at pp. For a useful history of the law of forum non conveniens in the United Kingdom. See also International Private Satellite Partners. 493 F.  A. 1) The United Kingdom .203 202 X. Schneider Freight USA Inc. 202 A NVOCC is “a common carrier that does not operate the vessels by which the ocean transportation is provided. 1997) and other decisions cited there. where freight forwarders or NVOCC’s (non-vessel-operating common carriers ) contract with ocean carriers. the existence of a forum selection clause. for example. the shippers have been held bound by the forum selection clauses of the ocean carriers’ bills of lading. Supp. Supp. 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. N. (Emphasis added).K. 201 See. Cir. 1997) (contract for satellite communications services). Columbus Cello-Poly Corp. 1985 AMC 1192 at pp. 1991 AMC 302 (summary) (D. Inc.D. 341 (S. 308. 315 (S. 126.Y. Paterson. 32 F. 191-194 (H. 1995). 626 at pp. 1998 AMC 334 at p.  2 Lloyd's Rep. United States 883 F.  2 All E. See National Customs Brokers & Forwarders Ass’n v.A. the shipper or the subrogated cargo underwriter). 2002).D. 202 at p. of Canada v.) Ltd.L. 483 at pp. 131 F. for that reason AMC 2296. 2000). 2001). standard-sized reusable containers that can be quickly loaded on and off ships and onto trucks or other types of transportation.Y. 1193-1194 (S. 1175. Glyphics Media. depending on the case. 204 The Fehmarn  2 Lloyd's Rep. Kukje Hwajae Ins. Co. 1989). note 5 (9 Cir.2d 206 at p. Inc. 2158-2160 (C. but it is subject to the overriding principle that no one. 436 at pp. Zochonis (U. by his private stipulation.201 In particular. third parties have been held bound by forum selection clauses in various types of contract. Co. Farrell Lines.D.2d 509 at p. N. citing Manetti-Farrow. the relative familiarity of the courts with the applicable law.Y. v. App. Va.D. Supp. 2001 AMC 2153 at pp.Y. 175 at pp. D. Conti Singapore 2003 AMC 667 at p.P. v. N. 2002 AMC 1598 at p. Cho Yang Shipping Ltd. of North America v.2d 787 at p.S. Ltd.2d 118 at p.” 200 See. Gucci Am. 1702(17(B). 2000 AMC 2947 at pp. Corporation of Lloyd’s 999 F. so that it becomes “foreseeable” that they will be so bound. where Denning. and the public interest in the local adjudication of local controversies. M. 207-210. NVOCCs perform a function similar to overland freight forwarders. S.C.A. Included are the original choice of forum. N. Other factors that inform the Court’s inquiry are intermingled with these considerations. Cal.38 5) Jurisdiction clauses and third parties In the United States. 1980). for example. Hrelijin 600 F. Hugel v.D..N.204 Those courts have the reputation of giving quick and fair justice and. and is a shipper in its relationship with an ocean common carrier.Supp. Co. 551 at p. 203 Indemnity Ins. 464-469.. M/V Hyundai Liberty 294 F.J. v. can oust these Courts of their jurisdiction in a matter that properly belongs to them”. 555 (C. v. 1985). v.C.” See 46 U. 2951-2952 (E. 791. may be the owner of the goods. but merely as agents of the shippers. v. 485-486 (W. where they have been adjudged to be “closely related” to the dispute. 975 F. judicial economy. see Lord Wilberforce in The Atlantic Star. Allianz Ins.) and Adrian Briggs “The staying of actions on the .3d 1171 at p.V. Supp. 1993) (contract for membership in insurance market).).C. Lucky Cat Ltd. 1602 (9 Cir.R.Y. not as principals. consolidating small shipments from multiple shippers into large. N.200 Jurisdiction clause in marine bills of lading have been held applicable to third parties to those contracts (who. 203. 677 (S.Y. 101. L.D. 890 F.D. 2003). 629-630 (S. 858 F. 2303. L. 514. 1988) (perfume dealership contract).Forum Non Conveniens Introduction It was the practice and tradition in the United Kingdom to jealously guard the jurisdiction of its courts. v. Compania United Arrows. Supp. Inc. Dukane Fabrics Int’l Inc. 209 (7 Cir. Inc.2d 93 at p. the enforceability of the judgment.
705 at p. 398 (C. 451. 812.R.). 436. the passing of which many may regret.J. 625 at p.  2 Lloyd's Rep.39 many foreign litigants have sought and still seek resolution of their commercial disputes in London either before the courts or in arbitration.L. 175 (H.R. A. at p.  1 All E. 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.  LMCLQ 227 and in a subsequent article “Forum non conveniens . with all respect.).C. 206 The Atlantic Star  A. He can seek the aid of our Courts if he desires to do so. that seems to me to recall the good old days. Pierre v. as Kipling more forthrightly phrased it.  3 All E.or. 209  A. at p. 341: “. 453. South American Stores (Gath and Chaves) Ltd. Lloyd's Rep. Rockware Glass Ltd. It extends to any friendly foreigner. but their Lordships rejected the technical argument that they were not entitled to consider such an offer made after the commencement of proceedings. thereby modifying Scott L. 205 The Atlantic Star  2 Lloyd's Rep.B.” To which quotation. 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.).  1 K.  2 Lloyd's Rep..206 2) The modern regime . You may call this 'forum shopping' if you please. 709 (C. 197.  2 All E.U. 454.” Lord Denning's comment was specifically questioned “with all respect” by Lord Reid in The Atlantic Star.): “My Lords.. it is a good place to shop in. 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. where Lord Diplock established two rules:209 “In order to justify a stay. 197 at p. at p. 446 at p. 208 Ibid. 382 at p. both for the quality of the goods and the speed of service.L. 630 (H.A. 795 at p. 181.K. 175 at p. 436 at p.L.A.R. 181 (H.  LMCLQ 360.R. . 339 at p. 200. An offer to provide security was made after the proceedings had commenced.C.R. 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.” The next step was MacShannon v.” ground of ‘forum non conveniens’ in England today”.  2 All E. 'lesser breeds without the law'.C. but if the forum is England. when inhabitants of this island felt an innate superiority over those unfortunate enough to belong to other races. Lord Diplock added in The Abidin Daver  1 Lloyd's Rep.'s statement of the rule in St.an update”. two conditions must be satisfied.C.” 207  A. 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.). 201. All E.
e..). or as well as.A.). 1 (H. referring to The El Amria  2 Lloyd's Rep.R. in which the case may be tried more suitably for the interests of all the parties and the ends of justice." 212  1 Lloyd's Rep. 126-127 (C. 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. the House of Lords had gradually adopted the doctrine of forum non  2 Lloyd's Rep. at p. in a foreign forum is to be based upon objective standards supported by evidence. 344. per Lord Justice Brandon).” Finally in The Spiliada.. 119 at pp. 196 at p. 215 Ibid. The El Amria U.J. v. Lloyd's Rep. in referring to a comparison of the quality of justice obtainable in England and elsewhere. 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.” Lord Diplock continued and summed up the change in the attitude of the English Courts:213 “My Lords. Furthermore. 365 at p.). Nothing is gained by any discussion of the relative merits of various different procedures.). 210 .L. i. 371 (C. v.): ""Every court has different procedures.K. 339 at p. Co. in the field of law with which this appeal is concerned. 214  1 Lloyd's Rep..”211 The foregoing views. there is of course authority binding on me which deplores any discussion or entertainment of those types of argument. noted: “It is not appropriate. the balancing of advantage and disadvantage to plaintiff and defendant of permitting litigation to proceed in England rather than.and this feature was added by Lord Diplock in The Abidin Daver:212 “.). 343. or reputation or standing of the Courts of one country as compared with those of another (cf. which is the appropriate forum for the trial of the action. in my opinion.L. to embark upon a comparison of the procedures.210 Lord Wilberforce. having competent jurisdiction. at p. indistinguishable from the Scottish legal doctrine of forum non conveniens. and The Spiliada. W. MacShannon. The Al Wahab and The Abidin Daver. approving a statement by Hobhouse J. 361 at p. Kuwait Insurance Co. 211 More recently. or methods.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. nevertheless. Strabag Bau  1 Lloyd's Rep. declared in New Hampshire Ins.R. 202 (H. 213 Ibid.L. at p. 10.L. MacShannon.L.40 In The Al Wahab (Amin Rasheed Shipping Corpn.” Thus by its decisions in The Atlantic Star. 375 (H. L.. 203. Lloyd.A. and Amin Rasheed. are lacking in one respect a reasonable balance between the interests of the parties ..  2 W.
A. 1)  2 Lloyd's Rep. Zapata Off-Shore Co. 142 at pp.L. Baghlaf Al Zafer v. 851 at p.). 158 at p.A. including notably Z. 244 at p. 242.).222 reiterated by the House of Lords in Donohue v. 2002. see Briggs & Rees.A. 223 Donohue v. 237 at p. 527 (H. 242. despite the choice of a court in Alexandria. 425 at pp. 856. 222 See The Pia Vesta [198411 Lloyd's Rep. 2)  2 Lloyd's Rep. no doubt with some satisfaction.R. 432-433 (H.A. 283-290. 229 (C.V. 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. jurisdiction was kept in England because the witnesses were English and related litigation had already commenced in 216 .).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. The Regal Scout  2 F. 235 (C.  1 Lloyd’s Rep. Standard Chartered Bank v Pakistan National Shipping Corporation  2 Lloyd's Rep 365.4.C. 4. 450 at p.R. 224 The El Amria  2 Lloyd's Rep.). 385.  1 Lloyds Rep. (2003) 224 D. 237 at p. 242. In this latter judgment.  1 WLR 1367 and The MC Pearl  1 Lloyd's Rep 566.C.  1 S. 1095. 171. 459-460. 119 at pp. 327. 227 The Sennar (No.). 225 The agreement must be valid and enforceable and the claim must fall within the scope of the agreement.219 Brandon J.m. 527-528 (H. v. The Sennar (No. 251 (C. Pakistan National Shipping Co. Lord Goff formulated an authoritative approach to forum non conveniens: 217  1 Lloyd's Rep. (No.). 220 Proving that it is quite fitting to cite oneself. The Eleftheria  1 Lloyd's Rep.L. 229 at p.A. Pakistan National Shipping Co. 1) 2 Lloyd's Rep. See also The Nile Rhapsody  1 Lloyd's Rep 382 (C. Neptune Orient Lines Ltd. is not bound to grant a stay but has a discretion226 whether to do so or not.J.C. See Akai Pty Ltd. The Pioneer Container  2 A. 154 (C. The Pioneer Container  2 A.223 Lord Brandon's principles are as follows:224 “(1) Where plaintiffs sue in England in breach of an agreement225 to refer disputes to a foreign Court.). 324. 521 at p. 374 at p. per Lord Bingham). High C. Lord Brandon noted.L. 586-587. the English Court. (1996) 141 A. 2)  2 Lloyd's Rep. ECULine.  1 Lloyd's Rep 593 (P.). 142 at p. 226 Unterweser Reederei G. and in many more recent decisions. 1 at p. In The Spiliada  1 Lloyd's Rep.41 conveniens. 10 (H. The Eleftheria rule has been cited in Canada in Agro Co. 237 at p.). (2) The discretion should be exercised by granting a stay unless strong cause227 for not doing so is shown. and the defendants apply for a stay. 119 at pp.).L. The Iran Vojdan  2 Lloyd's Rep. assuming the claim to be otherwise within its jurisdiction.). 163 (C. 221  2 Lloyd's Rep.A. For further commentary on these points. 154-155 (C.A.R. 380 at p.  1 Lloyd's Rep.I. of Canada v. paras. Civil Jurisdiction and Judgments.). v.C.C. but Brandon L. (The Humber Bridge)  1 Lloyd's Rep 72. 123-124 (C. 593 at p. 169 at p.. 1082 at p.H. The Benarty  3 W. 3) The rule in The El Amria In the The Eleftheria.23 at pp. At first this remarkable decision was not generally followed.). 219  1 Lloyd's Rep. 123-124 (C. 605 (P.C.L. Ibid.. 218  2 Lloyd's Rep.b.A.). N. (No. 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. 12851286.  2 Lloyd's Rep. in fact failure to cite oneself is often evidence that the previous statement was erroneous.R. v. 2003 AMC 1280 at pp.L. how The El Amria had been cited by others. 3 Ed. (4th) 577 at pp. 123-124 (C.A. The People's Insurance Co. 119 at pp. for example. The rule has also been referred to in Australia. Ltd..). Pompey v.L. See also The Sennar (No. 521 at p. ___ (Aust. 324 at p. Armco Inc. Citi-March Ltd. 2)  1 Lloyd's Rep.A.  2 Lloyd's Rep. Armco. Baghlaf Al Zafer v. In the El Amria itself.).21 to 4.
172. where the plaintiffs in a cargo claim failed . 236 Evans Marshall & Co. Brandon. 232 The Eleftheria. at p.). The El Amria. and the effect of that on the relative convenience230 and expense of trial231 as between the English and foreign Courts. 2002 at para. ibid. See also in appeal  2 Lloyd's Rep.42 (3) The burden of proving228 such strong cause is on the plaintiffs. 418 at pp.  1 Lloyd's Rep.).A. For the same principle in Australia. 234 The Iran Vojdan  2 Lloyd's Rep. 169 at p.233 (d) Whether the defendants genuinely desire trial in the foreign country.L. made an admission in this case that “the burden of proof was upon him to displace the prima facie right of the defendants to have these proceedings stayed and to have the case tried by the chosen foreign tribunal”.V.).R. 228 The Fehmarn  1 Lloyd's Rep. C. 286 at p. 710 at p.L. or more readily available. 514.Z. 245.A. supra. 142 at p. By refusing the cargo owner the right to arrest in England. where there is no forum selection agreement. 230-231 (Aust.).C. supra. see also The Sennar (No. Stay was refused where the delay for suit had expired in the foreign court.L.Z. where the advantage of the English process of discovery was held not to be a consideration. Conversely. 473 and 479.25 at p.).C. 450 at pp. 231 The Traugutt. 377 and 385 (C. H. 4. 286 at p. 288.Z. 3 Ed.A.V. Bertola S. it would lose its only available security. where they arise. 286 at p.A. 237 at p. whether it differs from English law in any material respects. at p. may properly be regarded: (a) In what country the evidence on the issues of fact is situated. But see also The Pioneer Container  2 A. (2003) 224 D. 428-429 (Aust. the clearly more appropriate forum for trial. where it was suggested that if the failure to protect time in the chosen foreign forum was not the fault of the claimant. The “strong cause” requirement was also strongly reaffirmed by the Supreme Court of Canada in Z. 126-127.). 79 (convenience to the parties and to witnesses). 710 (C. 324.R..) and Kidd v.  1 W. 1287-1293. 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. 233 The El Amria. High C. The Vishva Prabha  2 Lloyd's Rep. v. (b) Whether the law of the foreign Court applies and. 79.236 (iii) be faced with a time-bar237 not England.  1 S. v.R. (ii) be unable to enforce any judgment obtained. the following matters. 246. and why England is. 461-469. High C. But in The Bergen (No. 586-592.A.L. The People's Insurance Co. 349 at pp.). Civil Jurisdiction and Judgments. see Ocean Sun Line Special Shipping Co. See also The Bergen (No. after all. 387.R. (5) In particular. Fay (1988) 165 C.229 (4) In exercising its discretion the Court should take into account all the circumstances of the particular case. v.L. if so.R. 229 Where there is a forum selection agreement. 135 at p.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. ECU-Line N.A. 546 at pp. 380 at p. and how closely.  1 Lloyd's Rep 593 (P. 2)  2 Lloyd's Rep.R. 76 at p.R.). 125. 511 at p. 2003 AMC 1280 at pp. at pp. Pompey v. supra. 453 at pp.). Hyslop  3 N.A.Z. The Eleftheria  1 Lloyd's Rep. The Traugutt  1 Lloyd's Rep. 237 The Vishva Prabha  2 Lloyd's Rep. 155 (C.I. 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. the foreign time bar might be grounds for refusing the stay. 230 The Traugutt  1 Lloyd's Rep. (4th) 577 at pp. 324 (N. but without prejudice to (4). 288. and in New Zealand. see Society of Lloyd's & Oxford Members' Agency Ltd. 293.C. 288. 142 (N. 721 (C. C. See also The Sidr Bashr 235 The Lisboa  2 Lloyd's Rep.). The Vishva Prabha  2 Lloyd's Rep. 550 and 552 (C. van Heeren  1 N. 2)  2 Lloyd’s Rep. 76 at p. See Briggs & Rees. 197 at pp. Inc.L. 2)  2 Lloyd’s Rep. 551 (C. v.A. (1996) 188 C.232 (c) With what country either party is connected. Akai Pty Ltd. who was Counsel for the plaintiffs. or are only seeking procedural advantages.A. see also The Pia Vesta  1 Lloyd's Rep. Ltd.
 1 Lloyd’s Rep. 405 at pp. MNI  2 Lloyd’s Rep. Zurich Ins. but of recognition of a foreign judgment. 119 at p.  1 Lloyd’s Rep.R. gen. 243 In both res judicata (also termed estoppel by judgment) and chose jugée. 241 JPMSA v. even when the cause of action in the subsequent proceedings differs from that in the original proceedings. 127. 410. CSAV  1 Lloyd’s Rep. Metro v. 630. Metro v. not grant jurisdiction to a claimant if the same question has already been heard in a foreign court. v. 410. an issue which was decided in the original proceedings will be considered as settled between the parties and will to show that they had acted reasonably in failing to take steps to protect time in the foreign (German) forum specified by the jurisdiction clause. See also Metro v. See generally Phipson on Evidence. 41 at p. (Comm) 33 at p.  1 Lloyd’s Rep. religious or other reasons be unlikely to get a fair trial”238 (Nota Bene: There are no references or footnotes in Lord Brandon's original statement above. 90 at p. The stay was therefore granted. 40. Mobil Sales and Supply Corp. Co. Sweet & Maxwell. 240 Mercury Plc. CSAV  1 Lloyd’s Rep. and the importance of Chilean law (the law of the place of performance of the bill of lading contract under the Rome Convention 1980). 45. .241 It has also been held that the “strong reasons” for refusing enforcement to such a clause must “… ordinarily go beyond a mere matter of foreseeable convenience and extend either to some unforeseeable matter of convenience or enter into the interests of justice itself”. Ltd. 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.240 and whether the clause was negotiated by the parties or was only a term in a standard-form contract. Dee Howard Co. 2) the same subject matter. v.  2 All E. 405 at p. 15 Ed. Metro v. 618 at p. Ltd. where factors such as the greater availability of evidence in Chile.) It has been held more recently in England that this basic approach. Ltd. Furthermore.C. and even arguments as to multiple proceedings.  1 Lloyd’s Rep. requiring the plaintiff to show “strong reasons” why the contractually agreed forum should not try the case. 376-377. Q. 368 at pp. 3(6) of the Hague and Hague/Visby Rules). 104. Where a nonexclusive jurisdiction clause permits suit in or out of England. 410-416. racial. were found not to be strong enough reasons to overturn the non-exclusive English forum selection clause. v. (M.. or (iv) for political. London. Communication Telesystems Ltd. the Court held that the defendants should not be denied the right to rely on the foreign time-bar (which also applied under art. 242 British Aerospace Plc v.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. there must be the three identities: 1) the same parties acting in the same qualities. the latter of which cases concerned a non-exclusive jurisdiction clause. 679-680. 405 at p. whether or not the English proceedings will be stayed will be determined by the court in its discretion. after consideration of all relevant circumstances. People’s Ins.43 applicable in England. ed.242 4) Res judicata A court must. on the usual forum non conveniens principles applied in cases where there is no jurisdiction clause. CSAV  1 Lloyd’s Rep. of course. Howard. This is not really a problem of jurisdiction or of forum non conveniens. CSAV  1 Lloyd’s Rep. Sinochem International Oil (London) Ltd.. 405 at p.N. 238 The El Amria  2 Lloyd's Rep. 2000 at paras. Ace v.).239 whether the jurisdiction clause is an exclusive or non-exclusive one. They have been added for the purposes of this commentary. Co. 410. 670 at pp. 239 Akai Pty. 38-23 to 38-64. 3) the same object. by taking suit there within one year of discharge of the cargo. applies whether the contractual forum is England or another country.
319/9. 250 Hereinafter described as the Brussels Convention 1968 ( O. 1979).E.). 521 at p. Their Lordships were careful to note that not every jurisdiction clause.Y. In The Morviken. 249  2 Lloyd's Rep.11.). 8 of the Hague/Visby Rules and of the 1971 Act used the words “any statute”.). it has been held that there need not be identity as to the parties for collateral or issue estoppel to apply: W. The damaged cargo had been shipped from London and continental European ports. 935 (H. . v. Roberts v.C. Supreme Court severely limited the doctrine of mutuality.A. 1002.C.U. selecting as forum a court which does not apply the Hague/Visby Rules. 251 The Lugano Convention on Jurisdiction and Recognition of Judgments in Civil and Commercial Matters. and. Shore 439 U.D. In the U. particularly in cases where one of the The Sennar (No. permitting transfer of the suit to Djakarta. adopted at Lugano on September 16. English law The choice of forum clause (jurisdiction clause) must not reduce the carrier's responsibilities under the applicable law. and 4) there must be identity of subject matter. it was held that in order to establish issue estoppel: 1) the judgment must be given by a foreign court of competent jurisdiction.1972).J. In The Good Challenger  1 Lloyd’s Rep. referring to Parklane Hosiery Co.  1 Lloyd's Rep.J. 322 (1979). 574-575. where the U.245 the applicable law was the English version of the Hague/Visby Rules.249 however. 853 at p.C. 67 at p. Therefore jurisdiction was retained by order of the Court of Appeal247 and the House of Lords. since art.244 5) Public policy.L.C.J. 246 1971 U.L. 2) the judgment must be final and conclusive and on the merits. where issue estoppel is often referred to as collateral estoppel.12. 1 (H..E. 299/32. will necessarily be a violation of art. 3(8) of the 1971 Act and of the Hague/Visby Rules. 3) there must be identity of parties. such as the Indonesian Commercial Code. although the tonnage limitation under Indonesian law was much lower than under English law.S. Rayner & Keeler Ltd. 3(8) of Visby or the U. (No.C. Inc. 31.248 In The Benarty. – 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. 247  1 Lloyd's Rep.K.).A. This would have meant a lower per package limitation and thus a violation of art. not package limitation. 1979 AMC 2152 (S.K. however. This is termed “issue estoppel”. Supp. that article meant that an applicable foreign tonnage limitation statute. 6) U. L.e. meaning that the issue decided by the foreign court must be the same as that arising in the English proceedings. N. 244 (C.246 Transfer of the case to a Dutch court in accordance with the jurisdiction clause.L. 1971. because the carrier was seeking to rely on tonnage limitation. 1 at pp.). 6-7 (H.A. 245  1 A.). L.1988) applies to civil jurisdiction and the recognition and enforcement of civil and commercial judgments as between the Member States of the European Union and those of the 244 .  1 Lloyd's Rep.L. 1988 (O. 565. could have resulted in Dutch law being applied (because the clause also invoked Dutch law).E. 77 (C. c. 3(8). Carriage of Goods by Sea Act. the Hague Rules 1924. being the Carriage of Goods by Sea Act 1971. Hellenic Glory 471 F. i. 25.44 not be relitigated in the subsequent proceedings if it arises once again. 2)  1 Lloyd's Rep.K. Carl Zeiss Stiftung v.S. 19.S. 527 (H. was not affected by the provisions of the Rules. 325 (C.) (where the case is styled The Hollandia). 248  1 A. It was held that the transfer of jurisdiction did not offend art. stay was ordered. 565 at pp. 2)  A..
S. 2002.. Iceland. eds. The Court of Justice of the European Communities. Norway and Switzerland.). Handelsveem BV of November 9.256 The European Court of Justice is expected to rule on the issue on more recent references by English courts. 2002 at paras. in Coreck Maritime GmbH v. 206 (C.L.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. See Briggs & Rees.e the jurisdiction having the most real and substantial connection with the case) is determined to be a non-Member-State.A.  1 Lloyd’s Rep.C. "Forum Non Conveniens and the Brussels Convention"  L. 2000. para.214 at pp.M. Sun Life Assurance Company of Canada (UK) Ltd.218 at pp. as well as EC Regulation States. Cellstar Corp.B.A. 346 (C. 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. Zurich Ins. 264-266. 257 The English Court of Appeal has requested the European Court of Justice to rule on this question of interpretation of the Brussels Convention.A. without such action infringing the Brussels Convention.  All ER (D) 130 (Jun) (C. 622 and 626 (C..A. 13 Ed. 877.Q. 259 See Ace Ins. 17. London. unreported.J. Frangos  2 Lloyd’s Rep.2001. and in force in all Member States of the European Union except Denmark. L 12/1. 2. DMF 2001. 3 Ed. adopted by the Council of the European Union on December 22. Co. Anton Durbeck GmbH v..  Ch 72.V. Delebecque. as of March 1.. under art.). of the Brussels Convention 1968.E. v. para.  All ER (D) 26 (Mar). or EFTA. first para. 1999 at pp. This holding would seem relevant under EC Regulation 44/2001 as well.R.A. as well as Poland.45 defendants is domiciled in a member-State of the E.1.) (giving effect to a service of suit clause providing for U.). v.K. 16.. Ph. obs. and American Motor Ins.). court. 227-228. see O. (Case No.U.  EWHC 1704. 337 at p.260 in favour of courts outside such European Free Trade Association (EFTA) other than Liechtenstein (viz. ibid. 187. For the text. in respect of civil jurisdiction and the enforcement of judgments.: C-387/98)  ECR I-9337. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. See also Lawrence Collins. Thus a U. 258 Supra. and yet the "natural forum" for the litigation (i.210 at p. 252 Harrods (Buenos Aires) Ltd.-N. Co.  3 W. Re (No 2)  4 All ER 348. 1160. v. 535 and Cheshire & North's Private International Law (P. See also Haji-Ioannou v.).  EWCA Civ.A.210 to 2. litigation). appeared to confirm this position. 618 at pp. and therefore is still governed by the Brussels Convention 1968 in its relations with the other Member States of the E. 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. 253 See Briggs & Rees. North & J.  4 All ER 543 (C. 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.B.U. 256 Denmark chose not to bound by the EC Regulation.R. would appear to be free to apply its forum non conveniens analysis. Butterworths. 2. See Owusu v.257 In the meantime. 255 EC Regulation No.A. 217.U. the validity of the clause must be assessed in accordance with the conflicts rules of the forum.J. which became a party to the Lugano Convention in 2000). 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. 217-223. 260 See Travelers Casualty and Surety Company of Europe Ltd. ibid.  All ER (D) 294 (Jul) (Q.. The English Court of Appeal decided in Re Harrod's (Buenos Aires) Ltd. 2000.) (forum non conveniens applied to send dispute to Panama).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. . Den Norske Bank ASA  Q. unreported. 397 (C. as part of its conflicts of law rules. Jackson (t/a Villa Holidays Ball-Inn Villas)  EWCA Civ. Civil Jurisdiction and Judgments.. Fawcett.S. 2. 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.).
Member State. 264 November 9. Art. first para. parties to contracts of the type concerned (art. and which bind parties one or more of whom are domiciled in an E. Delebecque. supra. 23(3) also provides that where a jurisdiction agreement is concluded by parties. made December 10. State must be either: a) in writing or evidenced in writing (including electronic form). where the conditions of art. As regards the jurisdiction clause's enforceability as against consignees and subsequent endorsees. giving effect to an Egyptian choice of law clause in a case where an English defendant was sued in England. 266 Service of process out of the jurisdiction is governed by the Civil Procedure Rules 1998. 2001 DMF 187.A.46 States. The Nile Rhapsody  2 Lloyd’s Rep. 1998 and in force April 26. the test provided by the European Court of Justice in Coreck Maritime GmbH v.U. or b) in a form which accords with practices which the parties have established between themselves.). to comply with art. 1999. or c) in a form which accords with a usage in international trade or commerce of which the parties are.20 To commence an action to recover for loss or damage to cargo in England. 23 of EC Regulation 44/2001 and the most recent text of art. 237 at p. Handelsveem BV would be applicable. 23 is almost identical in wording to the most recent text of art 17. Some of these decisions have applied forum non conveniens to enforce jurisdiction clauses requiring litigation of disputes in such non-Member States. aware and which in such trade or commerce is widely known to.’s Civil Procedure Rules 1998. of the Brussels Convention 1968.K. and regularly observed by.K. the claimant in some cases must obtain leave of the High Court. “CPR”. SI 1998/3132. such leave is not necessary. in so far as those principles indicate whether the clause in question accords with international trade or commerce. none of whom is domiciled in an E.266 a) Where leave is not required-CPR Rule 6.U. 23 of EC Regulation 44/2001 applies and requires the courts of Regulation States to stay the proceedings in favour of the specified court. which came into force on January 1.19 and 6. 262 See the discussion of the conditions of art. State. 387-98).19(1) See. The principles set out in The Eleftheria263 would therefore be applied by a U. replacing the former Order 11 of the Rules of the Supreme Court 1965. 242.264 7) Service out of jurisdiction . 399. 23. 1987. In this article.261 With respect to jurisdiction clauses calling for adjudication of disputes in an E. the Civil Procedure Rules 1998 are referred to under their common abbreviation. 17.U. 382 (C. the courts of other Member States shall have no jurisdiction over their disputes unless the court or courts chosen have declined jurisdiction. in other cases. obs.  1 Lloyd’s Rep. To effect service out of jurisdiction. 23 are met. the jurisdiction clause designating the forum of another E.U.The 1982 Act and CPR rules 6. State. Ph. 265 “Claim form” is the new term for “writ” under the U.  ECR I-9337. 23(1) and (2)). first para. the claimant will serve a claim form265 on the carrier who at times is out of the jurisdiction. 261 . for example. of the Brussels Convention 1968 at section VI. art. 263  1 Lloyd's Rep. court in determining the validity of a jurisdiction clause in a bill of lading. or ought to have been. Art.262 In brief. 2000 (Case No.
12/1.J.277 The court where the action is first commenced is. the claimant. other than Denmark271.268 The term “Convention territory” encompasses the territory or territories of any Contracting State to which the Brussels or Lugano Conventions apply. c. refers to sect. 271 CPR rule 6.18(d) in defining “Convention territory”. without obtaining the court's leave.K.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”. reflecting the EC Regulation 44/2001 and paras.19(1)(b)(iii).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. 27. can serve a claim form upon the carrier. 9 to 12 of Schedule 1 of this Order define the conditions under which a person is “domiciled” in the U. art. 27. O. 273 SI 2001/3929.19(1A)(a). rule 6.K.274 or on a court contemplated by art. 1982. 41-46. U.K. 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.1.K. therefore. 23 267 268 CPR rule 6.19(1)(b)(i). if the jurisdiction clause in the bill of lading designates the court of an E. or any other Convention territory 276 or any other Regulation State.269 while the term “Regulation State” means a Member State as defined in EC Regulation 44/2001. L. 275 CPR rule 6..18(g)(i) and U. 1(1) of the Civil Jurisdiction and Judgments Act 1982. sects. 9 to 12 of Schedule 1 to the Civil Jurisdiction and Judgments Order 2001. 269 CPR rule 6. Paras. 17 of the Brussels or Lugano Conventions or art. however. a Member State of the EU.2000. 270 EC Regulation 44/2001 of December 22. 2000. . In relation to a “Regulation State”.19(1A)(b)(i). The term “domiciled”.e. 41-46 of the Civi1 Jurisdiction and Judgments Act 1982272 and clearly a defendant carrier can be domiciled in many jurisdictions concurrently. CPR rule 6. 1(3).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. 276 CPR rule 6.19(1)(a).C. 17 of the Brussels or Lugano Conventions applies. 1982. the only court that has jurisdiction. b) Where the court's leave is required – CPR.275 In other words.270 i. in relation to a Convention territory. has a wide meaning in the light of sects. There is an important proviso. domicile has a similarly broad meaning.. c. provided that either the claimant or the carrier is domiciled in such a state. 272 CPR rule 6.U. 16. who is out of that court's jurisdiction.E. or an EFTA state. 277 CPR rule 6. 274 CPR rule 6.19(1A)(b)(iii). applicable to all proceedings instituted on or after March 1. in commencing his action there. a particular part of it or a particular place within it.. 23 of the EC Regulation 44/2001.18(k). 2002.
284 For example. 3 Ed.20(17A)).20(6). Civil Jurisdiction and Judgments. 286 Ibid. 2002. c.20(2)). para.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. and 14 (H. Claims to enforce a judgment or arbitral award may also authorize service out (CPR rule 6. the claimant must obtain the leave of the High Court to serve the defendant outside of the jurisdiction.20(5)(d).54 at p.283 There are various other types of claim which authorize service out with the court's leave as well. where these authors state that CPR. 325.278 There are various grounds listed in CPR rule 6. 21 (CPR rule 6.K.20(8). 324. on the other hand. not subject to the jurisdiction of the High Court) (CPR rule 6. 363..287 When the court is asked to stay an action on the ground of forum non conveniens.K.20(9). or b) to enforce a claim under sects. 280 CPR rule 6. or for an interim remedy under sect. 154 or 175 of the Merchant Shipping Act 1995.K. provided that service out would be justified if one did exist.20 justifying the grant of leave to serve the claim form out of the jurisdiction.21(1)(a)) and that 3) he “… believes that his claim has a reasonable prospect of success” (CPR. 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.288 For example. para. service out may also be authorized where a claim is made for a remedy against a defendant domiciled in the jurisdiction (CPR rule 6. rule 6. 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.284 In the light of The Spiliada.L. 279 CPR rule 6. in contractual matters.. The claimant must also show that 2) the grounds on which the application for service out is made and the paragraph(s) of CPR.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. 153. 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. as well claims relating to property in the jurisdiction (CPR rule 6. 2002. 25(1) of the Civil Jurisdiction and Judgments Act 1982. or for an injunction ordering the defendant to do or to refrain from doing an act within the jurisdiction (CPR rule 6. 1 (H. 3 Ed. 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. 1982. rule 6.20(4)). 288 The Spiliada  1 Lloyd’s Rep. at p.20(1)).48 of EC Regulation 44/2001. 5. a claim form may be served out of the jurisdiction with permission of the court if the contract was made within the jurisdiction.21(2A) 278 . 282 CPR rule 6. 4. 13. rule 6. 281 CPR rule 6. Civil Jurisdiction and Judgments. an exclusive jurisdiction clause). 1991.21(2A)). 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 6.33 at p. 283 CPR rule 6. c. See also ibid. See also Briggs & Rees. See also Briggs & Rees. 285  1 Lloyd's Rep. 287 The claimant must show that 1) England and Wales constitutes “the proper place in which to bring the claim” (CPR.20 relied on in this regard (CPR.L. rule 6.21(1)(b)).20(9)).).). at p. the burden of proof is on the plaintiff to show that the forum is the most appropriate.20(10)).20(5)(a) to (d). 1 at pp.20(7). U.. For example. U.e.286 When leave is sought to serve out of the jurisdiction. 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.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. rule 6.
K. 1) Canada . it may (or at the request of a party.290 at art.” 289 See Briggs & Rees. 3 Ed. rule 61. Brussels. See N. now happily in force.Forum Non Conveniens Introduction . 8. 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. and in force February 24. 1952. c. consistent with the manner in which the process of saisie conservatoire is applied in civil law countries. paras.C. at pp. c. c. and (b) within 12 months after the date of issue. 27. 1982. May 10. or to arbitration. C. 7(3))..” See also Chap. contains a similar provision. 15 (H. 1 at p. I understand. except where the parties validly agree or have agreed to submit the dispute to a court of another State that accepts jurisdiction. 7(2). 7(1). 1956. This international convention has been almost completely implemented in the United Kingdom by the Supreme Court Act 1981. where Lord Goff stated “. Such a conclusion is. 1999. 292 International Convention on the Arrest of Ships. 2002. the courts of the State in which the ship has been arrested or security has been provided for its release. 28. Maritime Electric (1985) 60 N. 54. 1981. may refuse to exercise that jurisdiction where that refusal is permitted by the law of that State and a court of another State accepts jurisdiction. 2(3). 1985.49 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(2).291 Similarly art. shall) order a period of time within which the claimant must bring proceedings before a competent court or arbitral tribunal (art. The Arrest Convention 1999. 1033-1036. Maritime Liens & Claims. c. which replaced the former Administration of Justice Act. adopted at Geneva. 1956. Where the arresting court lacks jurisdiction under art.293 It also recognizes forum non conveniens under national law. it would not. and cf. Electric Power Commission v.L. while at the same time granting a stay of proceedings in this country to enable the action to proceed in the appropriate forum. See Tetley. normally be wrong to allow a plaintiff to keep the benefit obtained by commencing proceedings here.). 293 Art.05-8.. but not in force. 295 R. 24 of the 1968 Convention.K. 1982.292 at art. 5077-508.the principle The Federal Court Act295 of Canada stipulates at sect. I think. 7(3) permits the vessel to be arrested in one jurisdiction and held as security there. 7(1) on the merits or has refused to exercise it under art. 291 See sect.289 Nor is it necessary to do so. found as Schedule I to the Civil Jurisdiction and Judgments Act. 2 Ed. The Arrest Convention. 26 of the Civil Jurisdiction and Judgments Act 1982. See also art. 26 of the Civil Jurisdiction and judgments Act. U. . 294 Art. Civil Jurisdiction and Judgments. 203 (Fed. See The Spiliada  1 Lloyd's Rep.. March 12. 7(2) of the Arrest Convention 1999 provides that notwithstanding art.07 at pp. 50(l) that: is intended to reproduce the substance of the previous case law. even though a jurisdiction clause has designated a court in another jurisdiction to decide the action on the merits.3(5) specifies that the claim form must be served: (a) in accordance with the practice direction. “Arbitration Clauses”. 1998. 46.). 7. 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. 4 & 5 Eliz. sect. 290 Convention Relating to the Arrest of Sea-going Ships. That Convention also requires respect for jurisdiction and arbitration agreements by the arresting court.R.A. 2. 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. 1982..294 XI.S.B. U. CPR.
The Nosira Lin.). whereas in seeking a forum non conveniens stay. 442. and they include the balance of convenience to all the parties concerned. 8 (Ont. C.R.296 a case involving an application for leave to serve ex juris. the undesirability of trespassing on the jurisdiction of a foreign state.L. Holdings Ltd. Ct). BP Can. v. Referring to forum non conveniens. Supr. however. 297  1 F. 303 Ibid. 422 at p. 448. the Supreme Court of Canada considered the doctrine of forum non conveniens in determining whether the Court should direct for service ex juris. Rockware Glass Ltd.L. C. Plibrico (Canada) Ltd. … (b) where for any other reason it is in the interest of justice that the proceedings be stayed. Supr. 812 (H. Westmin Resources (1983) 32 C.C. The Ship Capricorn. at pp. 897.R.299 as well as its own precedent in Antares. and the cost of assembling foreign witnesses. 301  1 S. v..50 “The Court may. 298  A.” See also Kuhr v. British Columbia (Workers’ Compensation Board). Sopinka J. Ritchie. Ct). 795 at p. at p. including the plaintiff.” In Antares Shipping v. 300 at p. Suncor Inc. 296 . 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. 1 (H.C. 917 and 921.C. (1982) 27 C.C.298 In 1993. 303 (Fed. 300  2 S. 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. (3d) 261 at p. 895. The Ship Friedrich Busse (1982) 134 D. 304 (Ont.R.P. the defendant had the onus of proof. the Supreme Court of Canada. 5 at p.).C. in its discretion. stay proceedings in any cause or matter.” 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. the impropriety and inconvenience of trying a case in one country when the cause of action arose in another where the laws are different. J.” Canadian courts followed the English courts on the question of forum non conveniens in decisions such as Yasuda Fire & Marine Insurance Co.301 Concluding his analysis.A. (1984) 52 N. v. in Amchem Products Inc. 299  1 Lloyd’s Rep. including the House of Lords The Spiliada. citing various authorities. 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).L.300 definitively opted for the English view of forum non conveniens. 302 Ibid. 269. The burden of proving the clearly more appropriate forum fell on the plaintiff in service ex juris motions.).C. stated that: “The factors affecting the application of this doctrine have been differently described in various cases ..R.303  2 S. 921.297 relying on the two criteria (positive and negative) laid down by the House of Lords in MacShannon v.P.R. v.
T. Pompey v. per Hargrave. Lloyd's Syndicate  2 N.R.). (1998) 225 N. ibid. and rejected the “tripartite test” applicable to motions for interlocutory injunctions. per Morneau.T. 2) whether the party seeking the interlocutory injunction (or stay) would suffer irreparable harm unless the injunction (or stay) were granted.C.  3 F. See also Agro Co.  3 F.). C.R. C.C. v. See also Bomar Navigation Ltée v. The Fu Nin Hai (1999) 173 F. and 3) which party would suffer the greater harm as a result of the granting or refusing the interlocutory injunction (or stay). 851 at p. Jian Sheng Co. 2003 AMC 1280 at pp. 461-469.A. applies forum non conveniens slightly differently. the authoritative summary of principles by Brandon J. focusing not on whether there is a more clearly appropriate forum elsewhere.586-592. 309 Burrard-Yarrows Corporation v.309 c) A strong reason for not honouring a foreign jurisdiction clause may be that all the facts are in Canada. See also Jian Sheng Co.). Can. 248 at p.L.C. This tripartite test involves a judicial determination as to: 1) whether there is a serious issue to be tried. 1998 AMC 1864 at p. See also Trans Continental Textile Recycling v.A. 231 at p.R. Wendell  1 N.) (cargo claim). 140 at p. for example.) and Club Mediterranee NZ v. 237 at p.C.) (personal injury and death). 418 at pp.304 2) Jurisdiction clauses .A.C. Great Tempo S. C. Hyundai Merchant Marine Co.). C. 856 (Fed. C. C. 305  1 Lloyd's Rep.). ECU-Line N. C.C.I. which the Federal Court of Appeal had found applicable to stay applications as well. Can. 1867 (Fed. See Voth v.Z. 250 (Fed.R. v. Shanghai Ocean Shipping Co. High C.308 b) Discretion is with the trial judge and his decision should not be reversed “unless it was arrived at on a wrong basis or was plainly wrong”. The Hoegh Merchant  1 F. v. 54 (Fed.  ETL 39 (Fed. (1996) 106 F. Australia.R. The Regal Scout  2 F. 304 . P. but rather on whether the Australian forum is clearly inappropriate.V.C.306 and was reaffirmed by the Supreme Court of Canada in 2003 in Z.I. v. of Canada Ltd.). Pompey v.R. v.). Anraj Fish Products Industries Ltd. Itochu Canada v. P. See.A. 427. 287 (decisions of motions judges on applications for stays of proceedings based on foreign jurisdiction clauses should be upheld.C. 427-428 (Fed. 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 criteria . the landmark New Zealand decisions in McConnell Dowell Constructors Ltd. The Hansa Bay  F.A. C. 495 (Fed. C. in The Eleftheria305 has been relied on in quite consistently over the years.R.C. (2001) 185 F.Z. Can-Am Produce and Trading Ltd. including maritime case law. 308 Z. leave to appeal to Supreme Court of Canada denied  S. 1287-1293. (2003) 224 D.).). C. as fully articulated in England in The Spiliada. Can.R. for example.Z. A. 306 Burrard-Yarrows Corp.) (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). 242. Can. ECU-Line N. 314 (Fed. 255 (Fed. 257 (N.L. C.).T. v. 216 (N.51 The clearly more appropriate test continues to apply to forum non conveniens decisions in Canadian case law today. 418 at p. (1998) 173 F. 278 (Fed. v. Other Commonwealth countries have similarly adopted the forum non conveniens principle. Great Tempo S. 105. 234 (Fed. 203 (Fed. The Erato  1 F. Can. v. Can. Manildra Flour Mills (1990) 171 C. C.R. unless arrived at on wrong basis or plainly wrong). 221 (Fed.T.R.). (1999) 176 F.Canada With respect to the enforcement of jurisdiction clauses.. Nissho Iwai Co. however.L.).T.A. 307  1 S.A. Can. The Senator (1996) 112 F.Z. 310 The Agelos Raphael  1 Lloyd's Rep. of Can. 450 at pp. C. 144.R.V. Can. Can. C.307 a) There must be “strong reasons” for not honouring a jurisdiction clause calling for jurisdiction before a foreign court. 538 (Aukst.R. 404.C. C. The Hoegh Merchant  1 F. Abta Shipping Co.310 See.L.T. (4th) 577 at pp. Napa v.
Jurisdiction Clauses Restricted by National Law”. 313 S. 668 at p. Pompey v. It should also be noted that when the plaintiff in an action is of French nationality.L.g. c. affirming Cour d’Appel d’Aix. 1984. 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. (4th) 577 at p. Rather. December 7. 42-48 of the New Code of Civil Procedure (NCP). 1293-1295. See also Tribunal de Commerce de Paris. the French court either has or has not compétence (jurisdiction). para. i. 851.C.L.  1 S. (2003) 224 D.I. 672.q. Québec Civil Code 1994. 1986.V. See discussion of this statute supra. the right to request that an action already before a court with jurisdiction over the subject matter be stayed. 317 The rules governing which court has territorial competence are found in arts. in force August 8. 472.C. v. Agro Co. contrary to art. 315 See the comments of the Supreme Court of Canada on this point in Z. 2001.312 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. 706.c. DMF 1984. 1983. Pompey v.S. 113. 469-472. 2001.. 594. DMF 1986. November 25. 450 at p. Cour de Cassation. 592-594. 713. 50 of the Federal Court Act314 to enforce foreign jurisdiction and arbitration clauses in bills of lading. Traité. DMF 1982. (4th) 577 at pp. F-7.I. 450 at pp. See Louisiana Code of Civil Procedure. 14 of the French Civil Code. 123 c. (1983) 148 D. notably Louisiana and Québec. 6. February 15. (3d) 412 (Fed.-Y.g. April 18. In Germany. of Can. 3135 c. however. Z.p. mise à jour 1978. DMF 1985. 46 in effect restricts the discretionary power of the Federal Court of Canada under sect.R.R. ECU-Line N. the French courts will have jurisdiction by virtue of art. 1985. have incorporated forum non conveniens into their legislation. 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. a French insurer) has been subrogated: Tribunal de Commerce de Paris. May 14.R. c. 520. in section V.C.c. 718. so that suit may be taken in a more convenient forum. March 10. 312 311 .311 e) Courts deciding on the enforceability of jurisdiction clauses should avoid considering substantive issues (e. 1984. 341. fundamental breach of the contract of carriage). Affrètements & Transports. DMF 1985. 2003 AMC 1280 at p. art.L. The Regal Scout  2 F.C. 104 with note by P.313 Sect. leaving such questions to be decided by the contractually selected foreign forum. 1981. 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.315 XII.e. ECU-Line N. C. irrespective of the nationality of the person (e. Nicolas.R. art. (2003) 224 D. 1984. 1987. Cour d’Appel de Paris. a foreign insured) in whose rights the plaintiff (e. 2003 AMC1280 at pp.g.V. member state): Cour de Cassation.U. DMF 1987. DMF 1985. 1) France Introduction France and the civil law generally316 does not recognize the principle of forum non conveniens.). of Canada Ltd.R. 3(8) of those Rules.  1 S. October 31.C. 314 R. 1295. constitutional provisions prevent German courts from refusing to exercise their statutory jurisdiction. 316 A few civil law jurisdictions. 46 of the Marine Liability Act.317 An action is not stayed or suspended so that suit may be taken in a more convenient court.
2) Prohibition under law The rules governing territorial competence (i. however. Fraikin et Boquet.4. 1966. 1966. Procedure 3. 54 merely refers to the normal procedural rules that govern the validity of jurisdiction clauses. 119.1. See generally Bertrand de la Grassière. 323 Formerly. sur les contrats d’affrètement et de transport maritimes (J.O. DMF 1980. See arts. September 30.e. 48 of the New Code of Civil Procedure. where the impact of the changes in the New Code of Civil Procedure is discussed. 2002. «Les clauses des connaissements attribuant compétence à un tribunal étranger sont-elles encore valables?».O.jurisdiction clauses Under present French civil procedure. 66-420 of June 18. p. 322 Tribunal de Commerce de Nantes. 1967. Amoussou. 320 Law No. 206. (J. 10 of the former Law of April 2.S. 1966.4. jurisdiction ratione loci) were formerly considered to be merely of private interest and thus derogation from these rules was generally permissible. (J. DMF 1983. September 25. April 11. 119. fascicule 211.e. «La clause attributive de compétence à un tribunal étranger». June 24. A. «Les clauses des connaissements attribuant compétence à un tribunal étranger sont-elles encore valables?» DMF 1980.319 The domestic Law of June 18.O. para. DMF 1952. 1966 sur les contrats d'affrètement et de transport maritimes. 515. DMF 1980. 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. D. 1979. Tribunal de Commerce de Paris. 1974. La clause attributive de compétence à un tribunal étranger. Les clauses attributives de compétence dans le transport maritime de marchandises.K.324 This general rule is enshrined in art. DMF 1982. January 13. 397.4.. 496. 1981. D.325 (NCPC) which also establishes an important exception: i. 325 Established by Decree No. 3) French domestic law .318 In carriage of goods by sea cases. See Bertrand de la Grassière. 1966 restrict jurisdiction clauses. 321 Decree No. 1936). 42-48 NCPC: Cour d’Appel de Bordeaux. February 8.S.295. Nor does art. See Cour d’Appel de Rouen. 1983. 483. p. 1967.65.321 In addition to stating that actions may be brought before the court of the French port of loading or discharge. 1980. 75-99 NCPC: Les exceptions d’incompétence. the territorial jurisdiction rules were considered to be of private interest and thus derogations therefrom were permitted: Juris-Classeur. 75-1123 of December 5. 1966320 contains no prohibition in respect to jurisdiction clauses. 515. 1975. 1936 prohibited jurisdiction clauses ousting the jurisdiction of French courts in cases of carriage between French ports in a French vessel (navigation réservée). DMF 1981. in which case the court will declare itself (“incompétent”) (without jurisdiction). February 27. 1937. 360.53 A jurisdiction clause validly agreed upon by two “commerçants” (merchants) will be recognized by a court which has jurisdiction to hear the case. 165. DMF 1974.323 the general rule is that choice of forum clauses are to be treated as unwritten and therefore with no effect. 189. DMF 1952. art. 318 . 66-1078 of December 31. D. 54 of the Decree of December 31. Presses universitaires d’Aix-Marseille. See Fraikin et Boquet. January 11. 319 Loi relative aux transports des marchandises par mer. Art. 54 is in fact merely a supplementary provision to arts. 162 at p.322 art. 235.
1971. Cour de Cassation. DMF 1985. 118. 37. DMF 1981. regardless of the presence of a jurisdiction clause: see art. Cour de Cassation. Achard. 492. jur. Ph. 726. 1979. February 4. which merely designated the courts of the country where the carrier had his principal business. 1979.329 A party was held to have tacitly consented to the clause only if the court was convinced that the clause was brought to the party's attention at the moment of the formation of the contract. 1971. Cour de Cassation. however.64. Until 1987. 802. 78. S. 162. trim. July 20. Tassel. 1998 (The Lode Bay). 274. Cour d’Appel de Paris. DMF 1983. however. 1972. When there are several defendants and the action is indivisible.1. 507. DMF 1979. if it is not identified. Delebecque. 42. 1974. 1983. D. May 3. DMF 1983. 1966 required the shipper to sign the bill within 24 hours of the loading. DMF 1980. March 20. Bull. 37 of Decree No. 1982. 730. 431 with note by R. 1979. See comment by R. Nicolas. 1985. no. no. May 30.327 Consent to such a clause in a bill of lading was formerly established under French law by the shipper’s signature on the bill. as well as in Cour d’Appel de Rouen. and cannot decline the jurisdiction of that court even by invoking a jurisdiction clause: art. civ. Cour de Cassation. Cour d'Appel de Paris. Cour d’Appel de Paris. June 27. 1928.328 until the requirement for the shipper to sign bills of lading was repealed in 1987. March 3. Rev. Cour de Cassation. 1991. 1980. Cour de Cassation. January 16. 87-922 of November 12. December 1. Rev. be consented to apart from the other clauses in the bill of lading: Cour de Cassation. 546. was not deemed consented to. 1987 so that the shipper is no longer obliged to sign the bill of lading under French law. dr. 333 Cour de Cassation. 37 of Decree No. See. 1982.S. DMF 1986. Bulletin des transports 1987. 489. In Cour d’Appel de Rouen. Rémery. 1983. See also Cour d’Appel de Rouen. 329 Art. See. February 25. rep. March 11. Gaudemet-Talon. note R. 1983.326 The clause must be clearly apparent so that the parties can be found to have given their informed and unequivocal consent to it. without that clause being pointed out.330 nor was a clause written in a foreign language that the party did not understand. second para. DMF 1991. February 20. November 30. D. DMF 1983. DMF 1987. March 19. Cour d’Appel de Paris. 331 Cour de Cassation. Cour d’Appel de Bordeaux. 327 Cour de Cassation. 537. 1. 128. Gaz. 1980. February 28. 1981. November 8. Bull.54 where the jurisdiction clause has been agreed to by parties acting in a commercial capacity and has been clearly specified in the agreement. 1996. February 27.332 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. dr. June 26. February 8. 1982. 330 Cour d’Appel d’Aix. pr. 1986. inf. November 14. Cour d’Appel d’Aix. DMF 1982. Thus a clause printed in ultra-fine letters below the line where the party was to sign. The jurisdiction clause need not. Pal. DMF 1974. 1. 678 with an excellent commentary by P. p. 1984. 325. DMF 1981. 661078 of December 31. 609. 66-1078 was amended by Decree No. who is impleaded into the action. 282. Achard appended to Cour de Cassation. See also Cour d’Appel de Paris. it must at least be identifiable. DMF 1983. 270. Cour de Cassation. DMF 1998. DMF 1997. 326 . Achard. 77 328 Cour d’Appel de Rouen. 1980. no. 143 with note by R. January 14. December 17. July 12. DMF 1979. 1981. 1984. 1980. October 1. 1980. 85. DMF 1981. 720.S. 725 at p. cr. 1986. DMF 1983. DMF 1998. art.331 The forum chosen in the clause must be clearly designated. Achard. even if acting in a commercial capacity. 262. 29 with note by R. II. 1986. IV. with note by Ghestin. Bull. obs. May 24. with note by Normand. must proceed before the court which is seized of the principal action. Bull 1980. DMF 1983. 333 NCPC. 1927. NCPC. 1981. 489. March 3. Achard. 98. 518. where the rule is different when the 1968 Brussels Convention applies. May 9. 33. DMF 1983. 1982. no. 1979. 1982. int.-Y. however. Cour d’Appel de Rouen. Cour de Cassation. 531. 1979. 1978. 11. Y. the plaintiff can pursue the action in the jurisdiction of any one of the defendants. 415.-P. 334 Tribunal de Commerce du Havre. somm. May 24. 1998. 332 Cour de Cassation. note H. See Cour d’Appel de Paris. the Court should have refused to give effect to the clauses concerned. obs. 1982. November 14. February 13. where the foreign court was not determinable and the clause was therefore unenforceable. Cour d’Appel de Paris. pan. report J.
Bulltein des transports 1994. the jurisdiction clause's effectiveness will be jeopardized. fascicule 212-1. the Hague/Visby Rules.55 since that port could change from voyage to voyage. In Belgium. as in the case of a short form bill of lading. para. DMF 1982. if the clause designates the court of the carrier's domicile. 1984. which must be performed in good faith. holding that the acceptance of a jurisdiction clause could not be inferred from the existence of prior commercial relations between the parties. where the Court notes that the bill of lading is the typical case of a contract of adhesion. 66-420 of June 18. fascicule 212-1. para. 2003 (The MSC Dymphna). DMF 1994. 1994. in the case of international carriage. 612. 337 Juris-Classeur Procédure 3. Notably. 416. DMF 1982. 550. Normand. March 1. 198 1. 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. April 23. Cour d’Appel de Paris. just as art. DMF 1983. January 20. would seem to invalidate jurisdiction clauses which do not appear in the bill of lading issued to the shipper. 339 Cour d’Appel de Paris. 29 of Law No. 87. 203. para. Any restriction of the shipper's rights beyond what is permitted by the Law of June 18. 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. 336 Cour de Cassation. 1982. that since such a clause derogates from the normal rules of civil procedure. fascicule 212-1. See also Cour d’Appel de Rouen.336 It must be remembered. DMF 1985. 341 Belgium takes a similar position. If the jurisdiction clause designates a foreign court which is likely to apply its own law. 546. March 7. 3(8) of the Hague/Visby Rules makes those rules of public order. March 2. civ.340 In such circumstances. January 14.335 The court will sometimes. 340 Art. fascicule 211. the courts had at one time given effect to foreign jurisdiction clauses. 93. trim. para. the contra proferentem rule will apply if such designation disadvantages the shipper. June 22. 1966 (governing domestic carriage) makes that law of public order. as where there has been a fundamental breach of the contract. 602. Juris-Classeur Procédure 3. Nor is a clause designating a court which one of the parties has the option to eventually name. the clause will be interpreted restrictively by the courts. DMF 187. 1993. 236. DMF 1980.341 See Juris-Classeur Procédure 3. March 335 . Thus merely referring to a jurisdiction clause appearing in another document would not be sufficient. June 17.  ETL 496. para. 548. the courts have in some cases given effect to the jurisdiction clause. however. but only on the condition that the designated foreign court apply the Belgian equivalent of the Hague Rules: Hof van Beroep te Brussel. 1983. 1986. 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. 1979. 23. the French court should refuse to give effect to the jurisdiction clause.338 But art.337 Of course when the whole agreement is challenged. 100. See Tribunal de Commerce de Paris. Rev. See Hof van Beroep te Antwerpen. dr. would be contrary to public order. Belgium takes a similar position. 710. 1966 or. February. 48. Cour d’Appel de Paris. by requiring that the clause “be specified very clearly in the agreement” itself. Cour d’Appel de Rouen. but not always. 5. 1980. because the carrier drew up the clauses in the bill of lading. Sometimes the jurisdiction clause is not found in the document itself. 338 Juris-Classeur Procédure 3. 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. 95. the French court must consider whether giving effect to the clause would violate French public order. But see also Cour de Cassation.
17 on jurisdiction clauses.e. 48 NCPC where the clause specifies a court in another E.348 the European Court of Justice held that a jurisdiction clause in a bill of lading would satisfy the requirements of art. 550. 723. 492. DMF 1983. as the Regulation now does. see Fraikin and Boquet. D. 214. 344 See Cour de Cassation. March 1. jurisdiction clauses in contracts between parties both of whom are domiciled in France continue to be governed by art.1.344 Today. June 3. 469. by which the Brussels Convention 1968. DMF 1987. DMF 1979. supra. 1971. L. continues to displace art. July 12. however.  ETL 704.g. 23 of the Regulation. the other Member States of the European Union). 2002 of EC Regulation 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. June 10. 1979.E. June 27. 17 of the Convention had precedence over the other means of acquiring jurisdiction. 1985. See also Cour d’Appel de Rouen. with note by P. October 9.345 The Brussels Convention 1968. 342 O. 1971. para.U. 1982. 48 NCPC). 345 Cour de Cassation. 1985.U. 17 of the Convention and not necessarily with the national law (i. 520.Y. DMF 1985. DMF 1980. fascicule 631. May 24. Switzerland or Poland. 98. State and the case involves a Danish domiciliary. par Frédéricq. 48 NCPC. 1977. 1974. Hof van Beroep te Brussel.346 On the other hand. 303.  ETL 50. where one or more of the parties is a domiciliary of any other E. 1973. October 31. 22. 17 of the Convention or art. 1982. 16. Actes de la 8ème session. 23 of the Regulation governing the validity of a jurisdiction clause. Rapport sur les travaux de la 2ème Commission.4.C. aff'd Cour de Cassation. and its 1971 Protocol of Interpretation continue to apply between Denmark and the Member States bound by the Regulation (i. Cour d’Appel d’Aix. where it was held that the jurisdiction clause need only comply with art.  ETL 641. signed at Brussels. May 15. as amended by various Accession Conventions. 346 See EC Regulation 44/2001. 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. 604. DMF 1985.J. 347 Conférence de droit international privé de la Haye. even though the clause in question arose in respect of an action in warranty and the principal action was being taken in another jurisdiction. DMF 1986. 98. DMF 1983. art. actions taken before the court of one European Union Member State by or against a corporation or individual domiciled in another Member State. May 25. 17 wanted to avoid making compliance with formalistic requirements a criterion for the validity of jurisdiction.347 In The Tilly Russ. para. 117. even if there is an international element to the contract: e. 1979. 1973. 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. see also the Protocol on the Interpretation of the 1968 Convention by the European Court. See Cour d’Appel de Rouen. where it was held that jurisdiction acquired by means of a jurisdiction clause which complied with art. The draftsmen of the old art. DMF 1983. see also Cour d’Appel de Paris. was essentially the same as the Regulation in respect of jurisdiction clauses.Y. September 27. art. art. 73-63 of January 13. 557. March 10. August 29.12/1. DMF 1980. 1982. 1987. 1983. not by art. Nicolas. which. 620. 1984. signed at Luxembourg. DMF 1985. The Lugano Convention 1988 will also continue to apply to jurisdictional matters involving a Member-State of the European Union and either Iceland. July 12. 622. Belgian courts did not consider such a condition to be sufficient. 17: 18. referred to in Jurisclasseur. July 5. p. country except Denmark.56 4) France and EC Regulation 44/2001 Until the coming into force on March 1. Nicolas. The Convention as amended covered. Cour d'Appel de Rouen. Droit international 8.96. 343 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. See Cour de Cassation.U. Member State. with note by P.342 French courts were bound by the Brussels Convention 1968343 on the same subject.e. DMF 1986. supplants art.2001. Cour d’Appel de Rouen. DMF 1982. 515 at p. both published by Decree No. 1968. where the bill of lading was signed outside of France.S. French courts have not gone as far as Belgian courts in this regard: Cour d’Appel de Rouen. Subsequently. 1984. See also Cour d’Appel de Rouen. 1984. March 14. Norway. preamble.
The French courts emphasized that the jurisdiction clause had to be printed on the back of the bill of lading. 353 By the San Sebastian Convention of May 26. 1978. and regularly observed by. The text is found in DMF 1987. Rodière & du Pontavice. 548. at art. 254. 1984. parties to the type of contract concerned in that particular trade or commerce. 352 Convention on the Accession to the 1968 Convention and the 1971 Protocol of Denmark. Bull. Also accepted are forum selection clauses in a form which accords with a usage in international trade or commerce of which the parties were. 48 requires the jurisdiction clause to appear on the document issued. The inclusion of electronic communications in art. aware and which is widely known to. 1984. Droit Maritime. p. DMF 1985.. March 2. 1993. 48 NCPC) which requires the clause to appear on the document issued itself: See Cour d’Appel de Paris. 623-3. O. i. IV. where a jurisdiction clause. 1997. It came into force on November 1. 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. 2 Ed.e. 89. 1984. If the jurisdiction clause is only printed on the front of the bill. 209. the shipper was never advised of the existence of the clause. was not given effect since the shipper had only been issued the short form bill.354 Art. para. art. the Republic of Ireland and the United Kingdom. 23 constitutes an important distancing from French law: a jurisdiction clause may be deemed valid under art.C. 349 348 . 23(1) authorizes jurisdiction clauses which are in writing or evidenced in writing. where the shipper put his signature. 23 of the EC Regulation 44/2001 is reproduced supra. para.355 Thus art. nor had the shipper agreed to such a clause in previous voyages. 23.J.e. even though the short form specifically referred to the long form. European Court of Justice.353 It is essentially this latter version which was reproduced by the drafters of EC Regulation 44/2001. signed at Luxembourg on October 9.349 or b) if the jurisdiction clause was specifically included in a prior oral or written agreement and the bill of lading. 1984. 23(2) is the major addition made by the Regulation to the wording of the immediately preceding version of art. 350 The jurisdiction clause in this situation would not comply with the requirements of French domestic law (i. 12 Ed. 1981. 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.e. its validity will depend on whether it fulfils the requirements of category b). 386-2. 235.351 The version of art. October 9. June 19. a jurisdiction clause in these circumstances would not meet the requirements of French domestic law: art.57 a) if the bill of lading had been signed by the shipper and the jurisdiction clause itself appeared on the back of the document (i. 1986. 17 of the Brussels Convention 1968. 355 Rèmond-Gouilloud. Droit Maritime. 285/1. acted as the written confirmation of that prior agreement. 354 Art. section of this article. 83 at p. 557.K. DMF 1985.350 (this set of circumstances is rare in maritime matters). as well as those in a form which accords with practices the parties have established between themselves. or ought to have been. 03.E. L. no. in the U.10.1989. though signed only by the carrier and not by the shipper. 17 that was adjudicated upon in The Tilly Russ was modified when Denmark. to ensure that the shipper had such notice as to be able to consent to it: Tribunal de Commerce de Paris.. 351 Again. the side where the shipper signs). 1989. Cour de Cassation. which appeared only in the long form bill. DMF 1982. 23 even when the shipper has not signed the (The Tilly Russ). September 30.
2001. 361 November 9. produces effects with respect to a third party holder who. See DMF Hors série no. DMF 2001. re-amended version of art. no. 359 As between the shipowner and the charterer. 2000 (The Seinehaven). See the commentary by Pierre Bonassies. 358 Cour d’Appel de Rouen. reaffirmed that a jurisdiction clause in a bill of lading. 6.356 French courts have been rather inconsistent in giving effect to art. DMF 2001. DMF 2001. 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. relating to the opposability to shippers and consignees of bill of lading jurisdiction clauses subject to art. 48 NCPC. 616. Art. See also Cour d'Appel de Rouen. April 5. on proof of the shipper’s actual consent to the jurisdiction clause before the conclusion of the contract of carriage. has succeeded to the rights and obligations of the shipper under the applicable national law. 37 of Decree No. obs. 17 of the Brussels Convention 1968. in acquiring the bill. DMF 1985. 235. 17 of the Brussels Convention 1968. it is proper to As was required by art. 2002 (The Ubangui). in some cases recognizing practices established between the parties and international usages in regard to forum selection provisions. 684.58 bill of lading nor been specifically shown the clause in the bill. 187.  ECR I-9337. Cour d’Appel de Rouen.362 If such is not the case. 1981. 2000.-Y. 750. November 30. 356 . 77-79 for a summary of various. 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. 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. have no notice of this clause. a jurisdiction clause would be enforceable as against a third party holder360 if the clause would be valid as between the shipper and the carrier and if. 17. obs. Nicolas. 357 See Cour d’Appel de Paris. DMF 2001. P. 612. 89. 17 established in The Tilly Russ and other decisions. by virtue of the applicable national law. 1997 (The Clyde Bank). 1093. 1984. the third party. December 5. Cour d’Appel de Rouen. 17 of the 1968 Brussels Convention. DMF 1985. 2002. 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. 360 Supra. 2000 (The Nuevo Leon). difficult-to-reconcile decisions of the Cour d’Appel de Paris and the Cour d’Appel de Rouen. 89 at p.358 5) Opposability to consignee and endorsees As stated above. May 22. The question therefore is whether they also are bound by it. Delebecque. holding that. but rather that that law fell to be determined by the judge seized of the case. despite art. September 30. In Coreck Maritime GmbH v. 2001 (The Transvaal). under art. November 29.361 the European Court of Justice. June 19. DMF 1998. 83 at p. however. in acquiring the bill became the assignee of the shipper’s rights and obligations. 96. applying the conflicts rules of his national law. June 21. (Case No 387/98).357 and in other cases insisting. The consignee and subsequent endorsees. Ph. DMF 2001. agreed to by a shipper and a carrier. interpreting the final.359 In The Tilly Russ. Handelsveem BV. DMF 2003. DMF 1985. DMF 1982. Cour d’Appel de Rouen. however. 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. 1966 and art. 102 at pp. 66-1078 of December 31. 17. the European Court of Justice answered this question. See Tribunal de Commerce de Paris. 1038. 1038. 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.
endorsee or subrogated insurer. 369 Cour de Cassation. DMF 1995. 72 at p. amounts to such express acceptance. note P. DMF 2003. DMF 1995. DMF 2003. 705. but doubtful.-Y. where the Court did not decide the point because it had not been pleaded by the defendants. Bulletin des transports 1997. June 25. It would appear that the same principle will apply under the almost identical art. of the bill of lading by the third party bearer of the bill. Ph. 41. 393. 23 of EC Regulation 44/2001 is basically unchanged from art. 209. November 14. Cour de Cassation.369 See P. 2002 (The Aptmariner). M. (The Sonara). 2000. January 16.59 verify the reality of the holder’s consent to the clause by reference to the requirements of art. November 13. indicating that art. cr. 723. DMF 2001. 1994 (The Harmony and The Nagasaki). DMF 2003. 364 See the commentary by P. Bonassies. para. 368 Cour d’Appel de Rouen. April 2. obs. (The Silver Sky). Ph. 1996 (The Fiona). DMF 1997.-Y Nicolas. obs. 1994 (The Stolt Osprey). referring only to “acceptance”. DMF 1995. Nicolas. Tassel (an arbitration clause). 1999. DMF 2000. Nicolas. 4. Tassel. note P. 93. Delebecque. See also Cour de Cassation. November 29. 99. May 26. indicating that in France the consignee is not seen as a mere successor to the shipper’s rights as in certain other E.-Y. observations Ph. Nicolas on the decision of the Cour d’Appel de Paris. d’Haussy. first para.  ETL 551. pr. See also the commentary of P. 1996 (The Chang Ping).-Y. note P. 572. to the bill of lading (a tripartite contract) or at least the beneficiary of a “stipulation pour autrui”. DMF 1999. 365 See generally Y. whether the mere endorsement of the bill by the consignee. 17. note P. 1997 (The City of Durban). 367 Cour de Cassation. 1997 (The Tonia Bondarchuck). obs. 363 . Ph. the consignee is not generally considered to be a mere successor to the rights of the shipper under the bill of lading. “L’entrée en vigueur du règlement communautaire no 44-2001 du 22 décembre 2000 concernant la compétence judiciaire. 1998 (The Silver Sky). 23 of EC Regulation 44/2001. 1992. March 4. Delebecque in DMF Hors série no. Nicolas.  ETL 727 at p. 1992. October 15. Cour de Cassation. 366 Cour de Cassation. June 25. May 27. Revue Scapel 2003.. 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. 17 of the Convention by the Court of Justice of the European Communities. Rèmond-Gouilloud. 2002 (The Aptmariner). 703. DMF 1995. Revue Scapel 2003. F. Cour de Cassation. See also Cour d'Appel de Nìmes. Gaudemet-Talon. 74. as opposed to “special acceptance”. but rather as either a true party. 46. 733.-Y. P. 2003 ETL 321. Rev. 41.  ETL 193.U. DMF 1997.363 In France. obs. December 8. Delebecque. Bonassies on the decision of the European Court of Justice in the Castelleti decision of March 16. 218. of the Convention. obs. Cour de Cassation. Nicolas. 684 at p. 2002 (The Elpa).364 French courts have therefore held that in order to bind consignees and their subrogated underwriters. 20. although the commentary strongly suggests that such action would not constitute the “special acceptance” of the clause by the consignee required by French law. 2002. DMF 1999. Cour de Cassation. obs. March 4. 154. 2000 (The Nuevo Leon). November 29. 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. 14. Cour de Cassation. 259. DMF 1997. 694. together with the shipper and carrier. 339. Bonassies. 23 of the Regulation. obs. no later than at the time of delivery. 11. no. November 29. DMF 2003. by signature or rubber stamp. 556. “Des clauses des connaissements maritimes attribuant compétence à une juridiction étrangère : essai de démystification”.e. including Coreck Maritime (supra). Cour de Cassation. Cour de Cassation. will probably continue to apply under art. 2003. cr.368 It is unclear. P.366 Neither the mere possession of the bill of lading by the consignee or endorsee367 nor its “accomplishment” (i. 1998. P. 17 of the Brussels Convention 1968 and that the decisions rendered under art. p. Cour d’Appel de Paris. DMF 1996. States like Germany. la reconnaissance et l’exécution des décisions de justice en matière civile et commerciale”. Cour de Cassation. int. note Y. 1007. Bonassies.  ETL 551.-Y. November 28. 1996 (The Köln Atlantic). note H. “L’autonomie de la clause de juridiction”. 2003 (The Houston Express). Delebecque. 1007. December 8.
The Frank Pais  1 Lloyd's Rep. since not only the consignee. obs. in a shipment from Hamburg via Bremen and Valencia to Dubai on an Iranian ship. however. in the field of conflict of jurisdiction. 80/934/EEC. 380 at p. Appendix “F” at pp. See. 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. 1994. 529 at p. January 5. L 266/1. such a clause was not enforceable as against the consignee. 370 . 337. 1981. 372 See Cour d’Appel de Rouen. the U. The Rome Convention 1980 on the Law Applicable to Contractual Obligations374 is a particularly advanced international instrument. The European Union. 93. uniform conflict rules are most helpful. 530.1980. more recently. 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. 2) The law by which to judge the clause On the other hand. March 2.C. with the Brussels Convention 1968 and.. DMF 1998. Jurisdiction Clauses Per Se .J. 89 at p. a court... DMF 1985. including the jurisdiction clause. DMF 1983. affirming Tribunal de Commerce de Paris. the consignee is proven to have been aware of the clause at or before the completion of delivery of the cargo. but also the shipper could not have had proper notice of the existence of the clause. 371 Cour d’Appel de Paris. 373 The Iran Vojdan  2 Lloyd's Rep. Bulletin des Transports 2003. see Tetley. International Conflict of Laws. DMF 1985. ”. in deciding whether a jurisdiction clause should be given effect. must apply “the system of law with which the transaction has its closest and most real connection .E. which Cour d’Appel de Paris. EC Regulation 44/2001. 1997 (The Istanbul Z).S. and only a short form bill was issued and signed by the shipper before being transferred to the consignee. see also Batiffol et Lagarde. R. therefore. he has been held to be bound by it. 479.60 When the jurisdiction clause was among the clauses printed only on the long form bill of lading. 304. 688. however. Here again. 383. no. since the latter is not deemed to have known of its contents.373 In consequence. 374 Adopted at Rome. an English Court held that German law had the closest and most real connection and the validity of the jurisdiction clause was. 1980 and in force April 1. 9. 548. November 27. that clause will not be enforceable as against the third party holder. 1984.K.note. DMF 1976. 1032-1048. O. Cour d'Appel de Paris. October 14. found in the charterparty. without actually reproducing the jurisdiction clause itself.372 XIII. 2002 (The M/V Marimar). December 16. The principle emphasises how necessary it is to have uniform conflict of law rules. For the text and a brief commentary.10. Droit international privé.The Criteria . has taken a major step towards that kind of unification. judged under German law. 333 at p. This is a basic principle of conflict of laws. Pierre Bonassies .370 When the bill of lading has been issued under a charterparty and generally refers to the terms.371 Where. 1976. 1991.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. Achard. June 19. or France respectively. 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. 371.
287.  3 F. 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. For an example of the application of art. 2003 (The Houston Express0.Nicolas. July 12. arts.A. 377 February 2.378 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. June 12. 2003.C. On the other hand. although the clause was found unenforceable because of lack of proof that it had been consented to by the shipper. v. although such a clause was found to be quite frequent in bills of lading. it has been held that a clause calling for suit “before the courts of England” Rome Convention 1980. 2001. 1984.379 Similarly. Revue Scapel 2003. DMF 2001. DMF 2001. where. arts.). 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.  ETL 238.61 has harmonized choice of law in contractual matters for all Member States of the European Union. No. upheld Cour de Cassation. see Cour d’Appel de Paris. 1959. 1998 AMC 1864 (Fed. it should not be honoured because it will not allow the parties to know with certainty before which court they are to proceed. 20. 3(1) and 4(1). DMF 2001. 418. Great Tempo S. DMF 2003. 684. See also Jian Sheng Co. In some countries. 829. application for leave to appeal to the Supreme Court of Canada dismissed with costs and without reasons.-Y. a) Clear and precise Unless the jurisdiction clause is clear and precise. November 30. 2000 (The Bunga Pelang). note P. 996. DMF 1959. 379 Hof van Beroep te Brussel. 1037. see Cour d’Appel de Paris. the court's discretion is based on a number of criteria in respect to the clause itself.375 The Convention also establishes rebuttable presumptions to assist the court in determining the national law with which the case is most closely connected. Note.A. March 4. November 29. 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. 378 Cour d’Appel de Rouen. Rome Convention 1980. a jurisdiction clause is not valid unless the name of the actual court is spelled out. 1966. 4(5).C. C. 376 375 . March 4. that by art. November 18. 4(4) in a bill of lading case. and has sometimes been enforced. DMF 1999.A.  ETL 780. 4(5) in such a case. See Rechtbank van Koophandel te Antwerpen. 556. 618. All jurisdictions use roughly the same criteria. upheld by the Cour de Cassation. absent any express or implied choice of law. 4(2) to 4(4).C.376 3) Discretion Although there is no general rule as to whether a court will honour a jurisdiction clause. these presumptions “… shall be disregarded if it appears from the circumstances as a whole that the contract is more closely connected with another country. Ph. obs. and Cour de Cassation.  S. the carrier was unable to adduce sufficient evidence to support its contention that its “principal place of business” was located in Hong Kong.” For an example of the application of art. however. September 9. Delebecque. 1999 (The Bonastar II). 2000 (The Nuevo Leon). 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.
1984. 380 .” in a bill of lading signed by the shipper. 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. 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.). 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. February 5. in the United Kingdom. Revue Scapel 1996. 1975. June 22.R.S. 1973. 659. See also Cour d’Appel de Rouen.380 Clauses which give jurisdiction to two courts at the shipowner's option have also been very properly declared invalid as being insufficiently clear and quite unreasonable. see also Cour d’Appel de Poitiers. at the shipowner's option. b) Jurisdiction clauses by reference The reference in another document to a jurisdiction clause should be detailed and precise. 385 Cour d’Appel de Rouen. December 17. 2000. 1976.62 is not sufficient. 548 .. L. see also Cour d’Appel de Paris. DMF 1985.A. 384 Cour d'Appel de Paris. DMF 1976. July 20. 35. June 27. DMF 1961. 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. nevertheless. 383  2 Lloyd's Rep. November 30. 484. ”(emphasis added) was not held to bind the “ship” and an action in rem could therefore be taken in Italy. In consequence. 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.383 a jurisdiction clause reading: “Any and all proceedings against the carrier shall be brought before the competent Court of London . and consequently. DMF 2001. 542. January 5. One wonders. DMF 1975. where the jurisdiction clause in a standard-form contract incorporated into a contract of carriage was held to be unenforceable.S. See also Cour d’Appel de Paris. DMF 1973. 335. 1995 (The Frauke). 336 and Cour d’Appel de Rouen. 382 Cour d’Appel de Douai. DMF 1976. was held to be valid. March 2. 1974. 546 at p. it was inapplicable.384 Where a bill of lading referred to a long form bill of lading. In The Lisboa. 2000. May 9. 724. which in turn contained a jurisdiction clause.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. where clauses giving the carrier the option of suing in more than one court were held null and void. DMF 1971. 1971. Jurisdiction was to beat the port of destination (Calcutta) or.381 On the other hand. See also Cour de Cassation. 1960. A note of E. 381 The Media (1931) 41 Ll. DMF 2001. 1040. 293. if this is sufficient notice and is sufficiently certain. 80. Rep.. 549 (C. June 19.
February 25. 6(1) of the EC Regulation 44/2001 (similar to art. DMF 1999. where a defendant domiciled in a Member State is one of a number of defendants. will normally refuse to enforce a jurisdiction clause that appears fundamentally unfair. 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. c. 296. (France). the Supreme Court of the Federal German Republic in Allianz v. not indivisible. 37 and Oberlandesgericht Dusseldorf. 143.A. S. New Zealand and South Africa. 135/82. 383. Delebecque. 391 Cour d’Appel de Paris. 29. e) Plurality of defendants Where there is a plurality of defendants. DMF 1983. May 11. India Steamship Company389 declared a jurisdiction clause invalid. 388 Cour de Cassation. 1979-80 J.D. 295 at p. Ph.390 On the other hand. Tribunal de Commerce de Marseille. 1982. October 27.387 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. November 20. in their discretion. 1. 531. 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. of North America v.  ETL 270.S.  ETL 217. or where it violates a strong public policy of the forum. 1965. 1384. obs. at p. the suits against the various defendants need only be connected. because the size of the print of the clause was too small. See also Cour de Cassation de Belgique. as where it seems to be the product of fraud or overreaching by the carrier or is inherently unjust or unreasonable. 387 386 . 1982. 1976. the shipowner was held not bound by a jurisdiction clause in a bill of lading issued to the shipper by the time charterer. In this regard. 235. May 24. 392 See particularly the American decisions flowing from Bremen v. 1998 (The Albasgracht). which generally invalidates foreign jurisdiction clauses on the public policy ground that they oust the jurisdiction of local courts.392 Insurance Co. 1982. October 15. he may be sued in the courts where any one of them is domiciled. May 30. 197980 J. 407 U. 9. 1.63 damage action brought by a third party. February 2.388 d) Legibility of the clause A jurisdiction clause is an exception. 390 Cour de Cassation. DMF 1965. Zapata Off-Shore Co. 616.391 f) Fairness and public policy Courts.A. Jotina 1974 AMC 1190 (S. February 4. DMF 1983. 1979. para. Bundesgerichtshof. the jurisdiction clause cannot apply if the circumstances of the case forbid dividing the action. See also the legislation of jurisdictions such as Australia.P. referred to in The Iran Vojdan  2 Lloyd's Rep 380 at p. May 30.P. DMF 1977.R. 81. Cour d’Appel d’Aix. June 11.386 Similarly. suit at the place of business of any one of the defendants can be convenient. See a note on the judgment at DMF 1983. 1982. 1983. where it was held that. N. 6(1) of the Brussels Convention 1968). 6(1) of the 1968 Convention. DMF 1983.Y. Note that under art. 1983. 1974). for the application of art. See also European Court of Justice. 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.c. Cour d’Appel de Paris. 232. 389 11 Z. cited supra. 1972 AMC 1407 (1972).S.1975. DMF 1983.
one where the starting point is that parties should be held to their bargain. 1985. Jurisdiction cannot be accepted nor can suit be stayed. see also Williams & Glyn's Bank v. because so often plaintiffs take suit in “… the quintessentially convenient forum for the defendant – the defendant’s home forum”.K. Astro Dinamico  1 Lloyd's Rep. see sect. 75-99. 42-48 of the New Code of Civil Procedure: these rules are not of public order. Pompey v.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. 367 at p. Code sect.C. I am not convinced that a unified approach to forum non conveniens. sufficiently important to warrant a different test.J. See also Antares Shipping v. The burden is therefore initially on the claimant (plaintiff) to prove the jurisdiction of the forum. is preferable. 54. U. See Ravelo Monegro v.S. 22 of the Act. See also the rules governing the court's jurisdiction ratione personae or loci (compétence territoriale) set out at arts. ECU-Line N.R. as a civil law jurisdiction. CJ. 450 at p.I. Bastarache J.C.).. however. by virtue of the legislation which establishes them. note 2. Mar. but the presence of a forum selection clause in the former is.R. 588. 393 . 456 (H. AMC at p. 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. 439-440 per Laskin. S.” 394 Ibid. in my view. In the U. In France. under sect. 2000). the burden is normally on the defendant to show why a stay should be granted.V. the Federal Court of Canada has the jurisdiction to construe its originating act and especially heads of maritime jurisdiction set out in sect.393 Nevertheless.C. “ordinary” forum non conveniens cases]. 50(1) of the Federal Court Act. D.7.L. (2003) 224 D. does not have forum non conveniens.S. 463. c. “Forum Selection Clauses in Maritime Cases” (2003) 27 Tul.L. 368.R.C.S.R. 1981. 33-41 of the New Code of Civil Procedure: these rules are of public order.. at pp. 1288-1289. 453 at p. 2003 AMC 1280 at pp.R. 1333. 463-464. The Ship Capricorn  2 S. In Z. 396 The jurisdiction of the plaintiff’s chosen forum over the subject-matter of the dispute is often not an issue. Fortunately. (4th) at p. cited by M.  1 S.3d 509 at p.” 395 In the U. 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. 1289 “In the latter inquiry [i. Davies. See also arts.396 If the court does not have jurisdiction over the subject matter. and where the plaintiff has the burden of showing why a stay should not be granted. In Canada. 49 of the Supreme Court Act 1981. R. Rosa 211 F. (4th) 577 at p. where a choice of jurisdiction clause constitutes but one factor to be considered. 422 at pp.K. 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. see 28 U.L. France.. and the burden of proof has been deemed to be different as well. held: “There is a similarity between the factors which are to be taken into account when considering an application for a stay based on a forum selection clause and those factors which are weighed by a court considering whether to stay proceedings in ‘ordinary’ cases applying the forum non conveniens doctrine. see the rules governing the court's jurisdiction ratione materiae (compétence d'attribution) set out at arts. 587. then the suit must be dismissed.64 XIV.e. 513 (9 Cir. In both cases. 49-51 and the declinatory exceptions described at arts. c.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. L. 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.C.
588. 402 407 U. the party who challenges the jurisdiction clause (usually the plaintiff) has the burden of establishing why a stay should not be granted400 (i. 1985). 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. however. who brings suit in a forum other than the contractually agreed one.S. ECU-Line N. and 1972 AMC at p. at p.2d 1231 at p. M/V Berane. 5) Thereafter. 202. 398 See also Z. Only by making such proof can the plaintiff hope to be released from his bargain to sue or arbitrate elsewhere. the plaintiff's choice of forum should rarely be disturbed. There is no unanimity among American courts. 1959 AMC 1327 (1959). As was said in Gulf Oil v. Supp. Md.2d 297 at p. 2760 (1987). 399 See In re Air Crash Disaster Near New Orleans. Some Circuits tend to apply the 330 U.  1 S. Hre1jin 600 F. 462. upheld in the Supreme Court.V. 1235. 403 181 F. 1414 (1972). 2002 AMC 528 at p. etc. 180.I. See also 407 U.I. relying on M/S Bremen v. Monroga 254 F. as to the precise legal basis for such unconditional dismissals. Pompey v. 1418.L.2d 1147 at p. 301. (2003) 224 D. Supp. 1975).399 4) If there is a jurisdiction clause. 1996). 1985 AMC 67 at p. 1164.”398 The party seeking the forum non conveniens dismissal must convince the court of every element of the forum non conveniens analysis.D.402 Citing the same precedent. Lloyd’s of London 94 F. 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. 450 at p. 531 (D. 1341 (5 Cir. 928 (4 Cir. 397 . 359 U. Tel Aviv 711 F.Y.S.Y. that: “The seminal Supreme Court decision enforcing a forum selection clause places the burden on the plaintiff.401 it was held: “This is a forum-selection clause and it is prima facie valid and enforceable”. 464. La.S. 1973 (S.  1 S. 10. Vaasa Line Oy. quoted in Carbon Black Export v.65 3) Once it is shown that the forum has jurisdiction over the subject matter of the suit. 1289. where the Court stated. Pompey v. 71 (5 Cir. and also quoted in Perusahaan Umum v. 1958). properly defines the other jurisdiction. Thus in Kooperativa Forbundet v.C. (2003) 224 D. 2003 AMC 1280 at p. Zapata Off-Shore Co. 464. N. 1987 AMC 2735 at p.V. 588. to make a ‘strong showing’ that the court should exercise jurisdiction in derogation of the contract. that the clause is validly incorporated into the contract of carriage. (4th) 577 at p.3d 923 at p. v. the party (defendant) attempting to change jurisdiction has the burden of proof as to why the stay of proceedings should be granted. Staying Suit -All Jurisdictions In the United States. 450 at p. is inconvenient or why suing there will be unjust or unreasonable to him or will lead to consequences contrary to public order or to public policy of the original forum). 400 Z. to which he has (presumably) agreed. Gilbert:397 “But unless the balance is strongly in favour of the defendant.” Dukane Fabrics v.L. 1 at p.R.S. 2002). 821 F. 15. N.R. 508. See also Allen v. S. “Thus. 1289.2d 458 at p. courts frequently dismiss suits instituted in breach of valid foreign jurisdiction or foreign arbitration clauses.D. (4th) 577 at p. that the clause is legible. it was held in Acciai Speciali Terni USA. why the contractually stipulated jurisdiction. 501 at p. Inc.R.R.e. 1983).C. 1985 AMC 1192 (S. ECU-Line N. and that there has been notice to the other party. 1972 AMC 1407 at p. 401 1975 AMC 1972 at p.S. 2003 AMC 1280 at p. 1958 AMC 1335 at p.”403 XV.
N.408 Where a court. 2000).D. 2004 AMC 172 at p. Davies.C. Frietsch v. Technicians & Health Care Workers of N. June 12. v. 409 The stay of proceedings is the temporary suspension of the proceedings by a court in order that certain conditions be fulfilled or some act be carried out by one or more of the parties.D. Lauro Lines 387 F. judgments staying suit will be conditional on the defendant agreeing to appear and appearing in the new jurisdiction. 789-790. Co.A. 606. See. 207 (7 Cir. 1975 AMC 631 at p. v.2d 1110 at p. of Aust. v. M. Refco. 1975. Supp. 2001 AMC 869 at pp. S. 2000 AMC 2947 at pp.410 This is an intelligent and proper approach. 1989). for example. 2d 787 at pp.3d 1207 at p. 408 See. faced with a motion of forum non conveniens. 830 (7 Cir. 1999 AMC 2053 at p. Davies. 886-887 (S. supra at p.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).3d 1171 at p. 1999). Co.406 The inherent power of the court to regulate its own proceedings can also be applied either to dismiss or to stay proceedings. stays would seem preferable to unconditional dismissals. 2001 U. Wolfgang Preinfalk.3d 1285 at p. note 1 (1 Cir. Lipcon v. 2002 AMC 1598 at p. Co. N.2d 206 at p. 1993). Lexis 8113 (W. Vetrerie Riunite. v. Va.S. for example. 214 (W.2d 697 at p. In foreign forum selection clause cases too. v. Inc. 633 (S. Va. Kysar 983 F. 324. v. Very often. People’s Ins. Cho Yang Shipping Co.D. 406 See. v.). for example. 119 at p. Fourth Circuit decisions such as Jewel Seafooods Ltd. M/V Hyundai Liberty 294 F. 1995). 630. Underwriters at Lloyd’s. 2055 (D. Corporation of Lloyd’s 999 F.S. 2000). has jurisdiction. see M. Ltd.P.3d 603 at p. 444-445 (High C. Allianz Ins. Inc. 131 F. COGSA. 131 F. ibid. v.S. particularly as a stay would permit the U.R.2d 393 at pp. Rules 12(b)(1) (dismissal for want of subject-matter jurisdiction). Orient Overseas Line 1976 AMC 212 at p. it is preferable that the court stay proceedings409 rather than dismiss them. Co. 322 at p. 2000).2d 628 at p. cited by M. L.g. 376. whether service may be made.A. 2001).L. 1174. S.v.C. 1601 (9 Cir. Inc. forum selection clauses and foreign arbitration clauses are typically enforced not by dismissals.Y. and even whether the other court will accept jurisdiction). Dis. 2002).66 Federal Rules of Civil Procedure. Commerce Consultants Int’l. For a thorough analysis of the differing approaches of different American circuit courts of appeal to this matter. 407-408. 1996). Davies. London 148 F. 56 F. but merely declines to exercise it.p. United Int’l Holdings.” 404 . for example. Mar. 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. on the time for suit defence being waived and on appropriate security being filed. Supp. Cir. by contrast. 367 at pp. the date of the filing of this lawsuit” See also Snam Progetti S.S. GmbH. Wharf (Holdings) Ltd. Inc. unreported. 188 C. 1222 (10 Cir. 369-376. 698 (D. COGSA applies and the foreign court reduced the rights of cargo claimants below the minimum guaranteed by U..3d 825 ast p. v. but rather by stays of proceedings.Y. Ulysses Cruises. Longwall-Associates.D. The El Amria 1981] 2 Lloyd’s Rep. “Forum Selection Clauses in Maritime Cases” (2002) 27 Tul. Supp. 175 (7 Cir. Lambert . Continental Ins. 405 See. Supp. 1290 (11 Cir. v.. 2003). 2001. Abatement is the dismissal of the action.A. Co. M/V Orsula 354 F.Y. 1993). 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. 1998). Inc. 407 Licensed Practical Nurses.407 In England and Commonwealth countries. Hugel v. 2001 WL 667804. 1112. Akai Pty. court to re-assume jurisdiction in situations where U. M/V Peace River 39 F. 867 F. 410 Hartford Fire Ins.D. whereby the courts seized of the motion to enforce the clause does not deny its own jurisdiction. 2948-2949 (E. 418 at pp. of Canada v. 123 (C. This preserves the legitimate rights of the claimant as to time for suit and other unknowns and imponderables (e.J. Inc. 210 F. Kukje Hwajae Ins. Wash.
67 XVI. Sabena Belgian World Airlines 731 F. N. 637 (H. 1984). aff’d 161 F. oppressive or will otherwise cause inequitable hardship. which involves a forum non conveniens type of analysis. 1970). in Amchem Corp. where the foreign proceedings are viewed by the domestic court as vexatious or oppressive or unconscionable. or is about to assume.R.R. however. would have had a reasonable basis for concluding that there was no clearly more appropriate alternative forum.). v.S. 2004 (E. In addition. v.).411 XVII.. 956 F.S. The Second. see CSR Ltd. Assurantie Maatschappij ‘de Zeven Provincien’  A. SNI Aérospatiale v. 119 at p. Co. South Carolina Ins. Ceres Terminals Inc. and Others (1997) 146 A. 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. 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. Donohue v. jurisdiction. for example. had it applied the forum’s principles of forum non conveniens. 402 (H. Armco  1 Lloyd’s Rep. For the U. C-159/02). at least indirectly. 1984). Lee Kui Jak  A. where the House of Lords referred to the “… indirect interference with the foreign court which an anti-suit injunction entails. the injunction should only be granted if the forum court decides that the foreign court. Airbus Industrie v. See. iCigna Ins.K. 1 (1972). 1999 AMC 305 (2 Cir. GmbH 428 F. 897. Anti-Suit Injunctions Anti-suit injunctions are closely related to forum non conveniens.). Farrell Lines Inc. 631 at p.2d 909 (D. 893 (P. 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. 1 (1972). for example. Airbus Industrie GIE v.).412 The forum court will only grant an anti-suit injunction where it is convinced that it is an appropriate forum for the litigation.C.  1 Lloyd’s Rep. 631 (H.L. For the U. 425 (H. For Australia. 1998).L. see Amchem Products Inc. 317 (H.  1 Lloyd’s Rep. 1988 AMC 880 (2 Cir. rev’d on other grounds. 897. In Canada. Australia Ltd. Cir.C. 123.). see. 1998 AMC 334 (S. British Columbia (Workers’Compensation Board)  1 S. Choon Yong 837 F. supra. 119.C.C. under pain of contempt of court.  A. Sabena Belgian World airlines 731 F. 58 at p. 407 U.. 407 U.D.2d 888 (5 Cir.).L. In the U. See Laker Airways Ltd.). Laker Airways Ltd.414 They have also been issued.Y.2d 1349 (6 Cir.). v. 58 (H.3d 115.C.C. 1998).R. British Columbia (Workers’ Compensation Board)  1 S. for example. China Trade & Development Corp. and the foreign court has taken.2d 909 (D.413 they are issued only sparingly. Bankers Trust Co. British Airways Board v. see. In general. Patel  1 A. with the jurisdiction of foreign courts. for example. v.C. v.S. 24.C. For Canada. v.L.  1 Lloyd’s Rep.C.” See also Turner v. Laker Airways Ltd. on the other hand. 1970). 414-415. the Fifth.  2 Lloyd’s Rep.C. April 27.J. M. Patel  1 A.2d 33.).L. 138. 412 411 . v. GmbH 428 F. Seventh and Ninth Circuits have issued anti-suit injunctions where the foreign proceedings are vexatious. and that the injunction is necessary to prevent and injustice. Airbus Industrie GIE v.C. contrary to the principle of comity. 119 at p. The acceptance of anti-suit injunctions has become widespread.S. Where a party has already taken suit in a foreign jurisdiction or is about to do so. to prevent parties from See the discussion of the six steps in this process surrounding notes 12 to 15.C. 631 at p. Laker Airways Ltd.V. 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. Patel  1 A.C. because anti-suit injunctions interfere.L.L. 2003 at pp. 95 (H. In re Unterweser Reederei.C. for example. British Airways Board v. of Aust. Sixth and District of Columbia Circuits. 413 See. because of its real and substantial connection with the case. Grovit (Case No. 1987): Gau Shan Co. 414 See. 640. rev’d on other grounds. See other examples cited in Tetley. v. 1992). International Maritime and Admiralty Law. for example. Cir..2d 888 (5 Cir. infra. v.  A. In re Unterweser Reederei. 871 at p.
).422 which replaced the Brussels Convention as of March 1. on a preliminary reference from the House of Lords in Turner v. Such an assessment runs counter to the principle of mutual trust which. Aeakos Compania Naviera SA  1 Lloyd’s Rep. C-159/02). 2004. 710 (bill of lading jurisdiction clause).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. is incompatible with the system of the Convention.C. 2)  2 Lloyd’s Rep. Nor could the issuance of such restrainging orders be justified on grounds of national procedural rules or to minimize the risk of conflicting decisions and to avoid a multiplicity of proceedings. leave to appeal to House of Lords refused (charterparty arbitration clause). at para. 29 and 30 of the ECJ decision. See paras. 2004 at paras. 422 EC Regulation 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. Rhidian Thomas.416 has held. 216 (E. including bills of lading. The Angelic Grace  1 Lloyd’s Rep.R.L. See also the case comment by D. 2002 for all Continental Bank NA v.A. as pointed out in paragraphs 24 to 26 of this judgment. Grovit (Case No. 505 (C.68 breaching exclusive foreign jurisdiction or foreign arbitration clauses in contracts." 421 Ibid. that courts of States party to the Brussels Convention 1968417 have no jurisdiction to grant anti-suit injunctions in order to restrain the commencement or continuation of litigation in the courts of other States party to the Convention. April 27. C-159/02). backed by a penalty. April 27. at para.) (bill of lading arbitration clause). The Bergen  1 Lloyd’s Rep. in Turner v.L. Grovit (Case No.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. 420 Ibid.) (exclusive jurisdiction clause in loan agreement). 24 and 25. The Epsilon Rosa  2 Lloyd’s Rep.419 even where such injunctions are issued so as to prevent an abuse of process by a party acting in bad faith with a view to frustrating the existing proceedings. 418 See the judgment of the European Court of Justice. 419 Turner v. September 27.A. Grovit. The ECJ endorsed the opinion expressed by Advocate General Ruiz-Jarabo Colomer in Turner v. and which came into force 415 . 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. 107 (H.J. 380 and The Bergen (No. except in special circumstances which are not applicable in this case. 417 Convention on Jurisdiction and the Recognition of Judgments in Civil and Commercial Matters. 509 (C. as such. 87 (C. from reviewing the jurisdiction of the court of another member State. however.). adopted at Brussels. 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. underpins the Convention and prohibits a court." 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. adopted by the Council of the European Union on December 22.). 27.415 The Court of Justice of the European Communities. Any injunction prohibiting a claimant from bringing such an action must be seen as constituting interference with the jurisdiction of the foreign court which. reported in  1 Lloyd’s Rep. 1968. (2004) 10 JIML 134. 416  1 W. restraining a party from commencing or continuing proceedings before a foreign court undermines the latter court's jurisdiction to determine the dispute. Grovit.A. 2000.
505 (C. 21 of the Brussels Convention 1968. On the other hand.U.g. it is the court where the proceedings were taken. 17. that decides on its jurisdiction in the light of the clause.C. The decision constitutes the triumph of art. 21 and 17 respectively of the Brussels Convention 1968.U. For the official French text of this decision. except Denmark. 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.C. For the text. the court second seized must decline its jurisdiction. In Gasser GmbH v. 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.J. and possibly also in cases within the in all Member States of the European Union. corresponding to arts.424 the Court of Justice of the European Communities held that. Member States except Denmark.J. art. see DMF 2004. 21 of the Convention.g. Rhidian Thomas. because the jurisdiction clause is not valid or is not exclusive). that is entitled to decide whether it has jurisdiction in the light of the clause. where the initial proceedings in such a case are instituted before a court in a Brussels Convention State. 29. because the court first seized is obliged (by art.  1 Lloyd’s Rep. it is the court first seized of the dispute. Hijazy (The Kribi)  1 Lloyd’s Rep. This is a positive development. 17 of the Convention. 27 of which is similar to art. on March 1. render anti-suit injunctions unnecessary. within the meaning of art. See also the critical commentary of the Gasser decision by D. Denmark continues to be governed by the Brussels Convention 1968. which is entitled to rule first on whether or not it has jurisdiction to try a dispute. if the court first seized establishes its jurisdiction to try the dispute (e. where a jurisdiction clause is involved. v.) and subsequent decisions such as OT Africa Line Ltd. being the court “first seized” within the meaning of art. even if proceedings there are protracted. In this way. 21. but must stay the proceedings before it of its own motion. being the court “second seized”. 423 See the case comment by Renaud Carrier. see O. as a result of another development in European law. Regulation 44/2001 applies (e. 21 of the Brussels Convention 1968 or the court designated by the jurisdiction clause under art. 2002. The application of this rule will. unless and until the court first seized declines jurisdiction. 17 of the Convention) to decline jurisdiction in the face of a valid clause attributing exclusive jurisdiction to the court second seized. anti-suit injunctions now seem to be unnecessary as between courts in Brussels Convention and EC Regulation 44/2001 States. In consequence. in effect. The court designated by the clause and before which proceedings are subsequently taken on the basis of that agreed jurisdiction. L 12/1 to L 12/23. may not rule on its jurisdiction. in alleged violation of a clause conferring exclusive jurisdiction on a court in another such State. Baatz.69 E. The Gasser decision will likely also apply to the determination of jurisdiction under EC Regulation 44/2001. “Who Decides on Jurisdiction Clauses?” in  LMCLQ 25 at p. under the Brussels Convention 1968. such injunctions arguably continue to be available in cases where neither the Brussels Convention and E. 23 of EC Regulation 44/2001. 425 See Y. 21 over art.423 Moreover. Member States therefore seems to be a thing of the past. consistent with the historic principle of comity in private international law and the increased judicial integration of Europe since 1968. 424 (Case C-116/02). . 76. 222 (E. Aeakos Compania Naviera SA  1 Lloyd’s Rep. Gasser thus promises to also ensure the supremacy of art. 413.A.C.U. 27 over art. "Anti-Suit Injunction: La CJCE met fin à un anachronisme" DMF 2004. 403. thus reversing the controversial English decision in Continental Bank NA v.E. to prohibit the institution or prosecution of litigation in jurisdictions outside the E. (2004) 10 JIML 131.425 While the issuance of anti-suit injunctions as between E.).
at art. third para.C.) and The Hari Bhum  1 Lloyd’s Rep. 27 of EC Regulation 44/2001 did not apply to an arbitration clause. 427 See.. as in other contracts.426 XVIII.C. the decision may be refused recognition and enforcement in the contractual forum. 27(1) of the Brussels Convention 1968. 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. and a powerful defence against attempts to circumvent them.. sect. June 10. Regulation. For the U. adopted at Geneva. the Québec Civil Code 1994. 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. 206 at p. 1959. lack of jurisdiction may not be invoked to refuse recognition to a judgment rendered in another Member State (Brussels Convention. 34(1). 28. arbitration being excluded from both the scope of both the Brussels Convention and the EC Regulation. for example. para. 73 at p. 3 Ed. 32(1) in cases not subject to either the Brussels Convention 1968 or the E. 106. for example. c. 35(3)). by virtue of its art.429 These basic conflict of law principles and rules constitute a strong support for jurisdiction and arbitration clauses in bills of lading. 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. V(2) (recognition or enforcement not in accordance with public policy of country where recognition and enforcement are sought). 36(1)(b)(ii). See also the corresponding provisions of the UNCITRAL Model Law on International Commercial Arbitration.Pr. corresponding to art. see the basic criteria of recognition and enforcement of foreign judgments set forth by the Cour de Cassation in its famous decision in the Munzer case. art. 391-392.T.49 at pp. 1(2)(d). 215. 5. See also Phillip Alexander Securities and Futures Ltd. 27(1). 36(1)(a)(iv) and 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. 2002. 7. 439. 426 ..K.. art. See also Briggs and Rees. See also EC Regulation 44/2001. In cases subject to the Convention or the Regulation. and actually obtains a judgment or award from the foreign authority. holding that the first seized rule of art.S. 1982. 330 U. Civil Jurisdiction and Judgments. For France.L. The decision invoked a similar decision rendered under art. Clunet 1964. 2002. the Brussels Convention 1968 at art. Non-Recognition of Foreign Judgments Where a party to a jurisdiction or arbitration clause or agreement requiring suit or arbitration in one country institutes legal or arbitral proceedings in another country contrary to his contractual bargain. being The Ivan Zagubanski  1 Lloyd’s Rep. for example. 27. and also disregards an anti-suit injunction prohibiting him from commencing or continuing such proceedings. Civil Jurisdiction and Judgment. on the ground that it violates public policy. in force June 7. in particular art. The Hari Bhum  1 Lloyd’s Rep. 429 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention 1958”). and E. 3 Ed. 21 of the Brussels Convention 1968. 34(1).U. art. because the Regulation did not apply to arbitration.11 at p. 1985.N. U.K.302. so that it was not necessary to stay proceedings until the Finnish Court had ruled on its jurisdiction in the light of the clause.U. 3155(1) (lack of jurisdiction) and (5) (manifest inconsistency with public order as understood in international relations). 212. note Goldman.70 E. art. See Briggs & Rees. Regulation 44/2001. 3. V(1)(d) (composition of the arbitral tribunal or arbitral procedure not in accordance with agreement of parties) and art. v. adopted at New York. 115 (C. 428 See.A.427 Even if no anti-suit injunction has been issued. involving arbitration clauses. para. See. 27(1) or the Regulation’s art. 206 at p. Bamberger  I. 1958. see the Civil Jurisdiction and Judgments Act 1982. State contrary to an anti-suit injunction issued in England in support of an English arbitration clause. June 21.
431 See Donohue v. the forum court usually follows a six-step process. who criticizes this development. forum selection and arbitration agreements may now be further reinforced (in England at least) by the awarding of damages for their breach. It has been recognized for some time that contractual damages may be awarded for the violation of an agreement to arbitrate in England. In addition. Rees. 3 Ed. provide the cargo claimant with options of places in which to sue or arbitrate. seldom negotiated or expressly consented to by the shipper or the consignee. 3) the appropriateness of sending the case elsewhere for trial or arbitration. Doleman & Sons v. Union Discount Co.). 4) the wording and effect of the clause in the bill or incorporated document (e.C. The Hamburg Rules and the Multimodal Convention. Ltd. 4. according to a specified national law or international carriage by sea convention. 432 See D. however. para.430 More recently. But see also L.A.R. 2002. 1517 at pp. It is therefore scarcely surprising that “choice of forum” clauses tend to be contested.L. a charterparty). 430 . 1524 and 1527 (C. This development appears somewhat controversial within the British academic circles.). connection with the parties and their contract and is typically more convenient to the carrier than to cargo. of which he may avail himself notwithstanding See. 375 (C.. Akar  EWHC 797.A. 25 (H. Armco  1 Lloyd’s Rep. Civil Jurisdiction and Judgments. but nevertheless suggesting that an alternative basis for such damage awards may be found in English tort law (e.). “Anti-suit injunctions in cross-border insolvency: A restatement” (2003) 52 ICLQ 697.431 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. London. “Damages for breach of English jurisdiction clauses: more than meets the eye”  LMCLQ 46. Carapelli SpA  1 Lloyd’s Rep. on the other hand.B. When such contestation arises. Ho.g. 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. Ossett Corporation  3 K. unreported. Mantovani v. the possibility of such damages also being awarded for breaches of exclusive English jurisdiction clauses has also been recognized by English courts. the designated jurisdiction frequently has little.). Yeo. 2) any legislative constraints on that jurisdiction. 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. inquiring into: 1) its own jurisdiction. See also Chee Ho Tham. “Breaking promises to litigate in a particular forum: are damages an appropriate remedy?”  LMCLQ 435. in the tort of malicious prosecution and/or the tort of unlawful interference with business or trade).g. Neither the Hague Rules nor the Hague/Visby Rules regulate jurisdiction or arbitration. and A/S D/S Svendborg D/S of 1912 A/S Bodies Corporate trading in partnership as ‘Maersk Sealand’ v. The forum selection clause is usually a “boilerplate” term of the bill.A. supporting the availability of contractual damages as a sanction for the breach of an exclusive English jurisdiction clause. comparing the two positions and arguing that contractual damages for such breaches are problematic because of basic differences between arbitration and jurisdiction clauses. See also A. Zoller  1 W. Briggs & P. and 6) the propriety of granting or refusing a stay of proceedings. 293-296.71 XIX. v. for example.432 XX. 5) the in rem and/or in personam nature of the suit.L. 257 (C. Tan & N.26 at pp. if any.
rather than the contractually designated one. following the principles laid down in The Eleftheria434 and The El Amria. 237. Canada. clear and apparent on the face of the bill of lading. on grounds of forum non conveniens. 119 at pp. connections with the competing jurisdictions and the law applicable to the dispute. 435  2 Lloyd's Rep. It is by no means easy. requiring them to be between merchants. by comparison.). as a condition of release from his jurisdictional “bargain”. however.g. explains much of the unwillingness of major shipping nations to becoming party to the Hamburg regime. British and Commonwealth courts. has permitted Canadian suit or arbitration. although such laws typically treat arbitration clauses more liberally than jurisdiction clauses. 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. National legislation in certain countries (e. all permit choice of forum by contract. Where no statute prohibits or restricts jurisdiction clauses. or generally conforms to international usage in the trade concerned. the forum non conveniens analysis has been articulated differently and it also requires the plaintiff. far from uniform in this important area. the Lugano Convention 1988. the Brussels Convention 1968. including the location of witnesses and evidence. In French internal law. in its Marine Liability Act.433 The options enable claimants to institute proceedings in places having some genuine connection with the contract of carriage and its performance. is the clearly more appropriate venue for adjudicating the dispute.72 any inconsistent forum selection or arbitration clause in the bill of lading. In the presence of a jurisdiction or arbitration clause. in ordering stays of proceedings. unfortunately. at the cargo claimant’s option. Australia. in international shipments to and/or from their ports. to establish that the local forum court. and now EC Regulation 44/2001 on jurisdiction and the enforcement of judgments in civil and commercial matters. as well as convenience and expense for the parties and the juridical advantages and disadvantages of proceeding in one or other venue. 433 . so as to send the case to its “natural forum”. despite a foreign forum selection or foreign arbitration clause.435 require the plaintiff to show “strong cause” why he should be permitted to proceed elsewhere than where the contract stipulates. where such an option would be available if the Hamburg Rules applied to the contract of carriage. the Nouveau code de procédure civile lays down strict criteria under which contractual forum selection provisions will be upheld. rather than the defendant. New Zealand and South Africa) prohibits parties from “ousting” the jurisdiction of the national courts by way of forum selection clauses. however. courts in such nations are thrown back on their national law in assessing the enforceability of the impugned clause. 123-124 (C.A. where the relevant clause is written or evidenced in writing. 434  1 Lloyd's Rep. In Europe. National law is. All relevant circumstances are considered. Courts in common law countries and some mixed jurisdictions are empowered to exercise discretion. or reflects established practices between the parties. Most standard forum selection provisions in bills of lading would be enforceable under those rules. however. Because few major shipping nations are party to the Hamburg or the Multimodal conventions. and genuinely agreed to by the shipper and consignee.
Quebec. but within Europe it increasingly appears that their employment to enforce jurisdiction clauses is invalid.law. cargo claimants must often travel long distances and incur significant costs in order to seek justice in a forum with at best a tenuous relationship to them or their transactions. Canada e-mail: william. 1.S. and are.ca/ 436 437 407 U. A fair and effective international cargo liability regime must strive to resolve this important problem. used to enforce jurisdiction and arbitration clauses.73 forum clause applicable to the claim.mcgill. where since the Bremen436 and Sky Reefer437 were decided. Q. obliging cargo claimants to meet the heavier onus of proving that enforcement of the clause would be unreasonable. fraudulent or repugnant to public policy – a daunting task. the importance of the convenience of the litigants and the connections of the case have declined in significance. carriers. in a more uniform manner than at present. Nor is it easy in the United States.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.S. 1972 AMC 1407 (1972). 1995 AMC 1817 (1995). if shippers. 528. Jurisdiction and arbitration of marine cargo claims thus remains a controversial issue and an ongoing challenge for maritime carriage of goods law everywhere. and because they may be unnecessary in the light of recent interpretation of the provisions of those instruments. Prof. Anti-suit injunctions can be. William Tetley. because they have been found incompatible with the Brussels Convention 1968 (and presumably with EC Regulation 44/2001 as well). Faculty of Law McGill University Montreal. In consequence. . 515 U. receivers and underwriters are to be well served in the years firstname.lastname@example.org website: http://tetley.
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