JURISDICTION CLAUSES AND FORUM NON CONVENIENS IN THE CARRIAGE OF GOODS BY SEA
© 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
Bob Force combines all this with a happy.
. as Director of the Tulane Maritime Law Center. counsel to Langlois Kronström Desjardins (Langlois Gaudreau O’Connor) of Montreal. a doctor son and what could be a spoiled grandson. I have known him for twenty-five years as a devoted and very competent law teacher. he can also be a pleasant and popular guest. B. William Tetley.C.A. B.C.4
JURISDICTION AND FORUM NON CONVENIENS IN THE CARRIAGE OF GOODS BY SEA
Prof. which is much more difficult. cheerful persona. a third-year student at the Faculty of Law of McGill University and to Robert C. analyst and writer on law – in other words. Johnsen Professor of Maritime Law at Tulane University Law School. He is also an administrator who.L. Q. CANADA
Professor of Law. took the great tradition of maritime law teaching at Tulane and gave it form.C. He has also been a kind and generous friend. Wilkins. With appreciation and gratitude. Professor McGill Law Faculty Montreal. for their assistance with the preparation and correction of the text. order and direction.. William Tetley. as well as a researcher. McGill University. Q. He has been happily married to Ruth for 42 years.∗
PROFESSOR ROBERT FORCE
It is an especial pleasure to join with colleagues from around the world in honouring Robert Force. An esteemed chef. so that the Tulane Maritime Law program is outranked nowhere else. Distinguished Visiting Professor of Maritime and Commercial Law. Niels F. as a scholar. Tulane University. judge of good wine and remarkable and generous host. has a lawyer son.. The author is indebted to Vanessa Rochester.
Miller 510 U.3 so is it essential that choice of jurisdiction rules used by various seafaring nations be the same. 200 and Lord Wilberforce at p. See American Dredging Co. 65 F. 559 (No. however. 413 at pp. 4 Canada Malting Co. 865-868. ibid. 457 (1870). 3 Ibid. International Conflict of Laws.) 435 at p. 443 at p. 235 at p. 1932 AMC 512 at p.D.S. A/S Den Norske Afrika Og Australie Line. 1099 (1950).S. although deciding that forum
. 209. 1933).6 which latter has its closest connection with the civil law. courts properly seized with a dispute.A. To fully understand forum non conveniens and the discretionary right of the trial judge. 420-421. Supreme Court justices. one must appreciate that forum non conveniens has been used by both courts of Equity and of common law. Recently. v. where three of five U. 697.4 while it has been known much earlier in some civil law regimes5 and in Admiralty law. 450. 443 at p. 791 and 867. Tel Aviv 711 F. Paterson Steamships Ltd. United States Merchants' & Shippers' Ins. 1994 at pp. Rep.R.C. 451. have usually refused motions calling for the stay of proceedings. v. v. 1994 AMC 913 at p. See also American Dredging Co. 504 (1947).S.2d 392 (2 Cir. Unfortunately that is not the case today. v. 918 (1994). citing Piper Aircraft Co. 207. 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.S. Co. 413.
In the past. in recognizing that forum non conveniens “originated in Scotland. Miller 510 U. 285 U. 516 (1932). as does Lord Reid in The Atlantic Star  2 Lloyd's Rep..C. (9 Wall. Just as it is imperative that maritime law be uniform and international and that choice of law rules be similar throughout the world. v. 684 at p. Compania Colombiana del Caribe) 339 U. 71-72 (5 Cir. 1982 AMC 214 at p. Perusahaan Umum v. because of the mobility of ships (the usual defendant) and the fact that carriage by sea very often involves more than one jurisdiction. 5 See Lord Diplock in The Abidin Daver  1 Lloyd's Rep.S. The Cali (Swift & Co. (1925) 23 L. 285 U. See Tetley. at pp. 1985 AMC 67 at pp. 223 note 13 (1981). who mentions Société du Gaz de Paris v. 344. 918 (1994).2d 1231 at p. Paterson Steamships Ltd.S. v. 501 at p.S. (H. 1932 AMC 512 at p.S. The use of a consistent conflict of law methodology would be another major boon to transnational harmony in private international law. 449. The Capricorn. and became part of the common law of many States.5
I. 7293) (C. 1950 AMC 1089 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.1 Choice of jurisdiction is one of the three major branches of conflict of laws. where he refers to “the Scottish legal doctrine of forum non conveniens”. 248 note 13. v. Reyno 454 U. so that a whole new body of forum non conveniens law has sprung up. 37-43.2 and is of major importance in maritime law. Navigation (Les Armateurs Français)  S. In consequence. 1983). 1814). S. 422-423. 197 at p. 1994 AMC 913 at p. See Tetley. Mass. where the House of Lords recognized forum non conveniens as a doctrine of general application in Scotland. as well as the yet more recent movement towards international conventions on procedure.) 13. which passage was quoted in Gulf Oil Corp. 422 at p.L.S. v. See also the reference to “Scottish authorities” in Antares Shipping v. 2 The other two branches are choice of law and recognition of foreign judgments. 355 at p. at pp. 1235.  2 S. 339 at p. 365-366 (1885). The Jerusalem 13 Fed Cas. 515 (1932). Gilbert 330 U. at pp. the courts of all nations have jealously guarded their jurisdictions and have looked unfavourably on clauses in contracts which called for suit elsewhere. motions for stay have been received more sympathetically.7
Canada Malting Co.” 6 The Belgenland 114 U.C. The Maggie Hammond 76 U.L.S.
13 Only if it has jurisdiction may it proceed. and in force June 23. 137. reprinted  ETL 469. 10 United Nations Convention on the Carriage of Goods by Sea. not in force. F-7. stay proceedings in any cause or matter. Choice of Jurisdiction – Six Steps to Follow Choice of jurisdiction problems may be settled by the following six steps taken in order. 13 The first principle of Lord Brandon in The El Amria  2 Lloyd’s Rep.L. International Maritime and Admiralty Law. 1980.14 Secondly. signed at Brussels. 123 (H. signed at Brussels.” 7 Tetley.K. R. Finally. sect. 9-24 and 473-474.A. Tetley. the Australian Carriage of Goods by
non conveniens was not a characteristic feature of admiralty law. signed at Geneva. 725 (C. 317. 1924. 1998. the Visby Rules. 422 at pp. Also examined is the effect of the Hague Rules. 54). and in force November 1. There are two distinct kinds of jurisdiction therefore: “the first is jurisdiction to decide the action on its merits. Which Benefits from Both Its Civil and Common Law Heritages)” (1999) 23 Tul. 7-60.6
The present article describes choice of jurisdiction rules and the principle of forum non conveniens in Admiralty in the United States. L. 1931.”
. 2 Ed. Barking Corporation  1 K. otherwise. signed at Hamburg March 31.C. Mar. 12 There is no intention in this article to go into questions regarding the jurisdiction conferred upon various courts by national legislation. the court must look to the law which applies to the case before it. 721 at p.C.) reads: “assuming the claim to be otherwise within its jurisdiction…” 14 The House of Lords. the court seized with the case must decide if it has jurisdiction12 by virtue of the legislation which created it. “Maritime Law as a Mixed Legal System (with Particular Reference to the Distinctive Nature of American Maritime Law. 119 at p. Astro Dinamico  1 Lloyd's Rep. 1981. or (b) where for any other reason it is in the interest of justice that the proceedings be stayed. “A Definition of Canadian Maritime Law” (1996) 30 U.J.9 the Hamburg Rules10 and the Multimodal Convention11 on jurisdiction clauses and on the principle of forum non conveniens. Firstly. 50: “(1) The Court may. it was not deciding whether it had jurisdiction to determine the case on its merits. 453 at p. II.S. & Comm. at pp. it must dismiss the suit.B. 456.J. but that.C. For example. 1981. in so doing. nevertheless agreed that “… within federal courts it [forum non conveniens] may have been given its earliest and most frequent expression in admiralty cases. to determine if there is a direction in that law as to jurisdiction. 1968.Rev. however.” See Wilkinson v. See also Canada’s Federal Court Act. 107. 49(3) of the Supreme Court Act. held that it had jurisdiction to entertain an application for a stay (in virtue of sect.R. consideration is given to the very special Admiralty problem of declining jurisdiction when an in rem arrest of a ship has been made. August 25. a court which may not have jurisdiction on the merits may have jurisdiction by statute to decide a question of stay. C. See also comments by Laskin.1 at pp. in William Glyn's v. 1985. Tetley. out of hand.L. c. Chap. 439-440. and the second is jurisdiction to decide whether the Court has jurisdiction of the former kind. The Capricorn  2 S. in its discretion. and in force June 2.. of course. in Antares Shipping v. February 23.). U. “The General Maritime Law – The Lex Maritima” (1994) Syracuse J. 8 International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading. Tetley. (a) on the ground that the claim is being proceeded with in another court or jurisdiction. 1978. c. May 24. 1977. Maritime Liens & Claims. 9 Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading. In some jurisdictions. Int’l L. Tetley. the United Kingdom. 11 United Nations Convention on International Multimodal Transport of Goods. 2003.B. Canada and France in respect to carriage of goods8 under bills of lading. 1992.
The Hamburg Rules on the Carriage of Goods by Sea. Thirdly. the court will stay the suit by an order which will preserve the rights of the parties. III. Appendices “P” and “Q”. the terms and specific wording of that clause must be considered carefully. as amended by the Carriage of Goods by Sea Regulations 1998. which arrest normally gives jurisdiction in the place of the arrest. of November 2000 at clause 4. both types of clauses have generally been held valid by courts in bill of lading disputes. the court must decide if the other jurisdiction. No. 174. International Maritime and Admiralty Law. at pp. August 25.. 11(1) and (2). 17 See. Otherwise the court will retain the suit in its own jurisdiction and will refuse the motion for stay. is appropriate and whether the balance of convenience favours the case being heard there. i. Inc. 1997 at clause 3. at pp. ibid.. For the texts of these two forms. e. if there is a jurisdiction clause in the contract (the bill of lading). See also BIMCO's non-negotiable Liner Sea Waybill (LINEWAYBILL"). unless they have a regular course of dealing with the carrier and are then presumed to be aware of the fact that such a clause is typically found in such a document. See the official French text reproduced in Tetley. 160 of 1991 (Cth.7 Sea Act 199115 holds invalid any clauses in most sea carriage documents ousting Australian jurisdiction. adopted at Brussels. 3 Ed. 1978 at p. and an English translation.17 Bills of lading under the Rules are often not signed by the shippers. if the new jurisdiction is deemed to be convenient and proper in the circumstances. Sijthoff. the BIMCO Liner Bill of Lading (Conlinebill 2000”). Leyden/Boston. 861-862 and 863-864 respectively. August 22. 1111-1120. issued by BIMCO. to which it is called upon to defer. 1121-1129. see Tetley. See also two sample clauses in S.. Nevertheless. as amended. provided they are clear and unambiguous. If the jurisdiction clause is not in the bill of lading (or other immediate evidence of the contract). 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. but in some document (such as a charterparty). Marine Cargo Claims. sect. Montreal.). Statutory Rules 1998.e. Such clauses ordinarily call for suit or arbitration in the jurisdiction most convenient to the carrier. 1988 at pp.
. 1931 (commonly known in English-speaking countries as the "Hague Rules"). who therefore do not have the jurisdiction/arbitration provisions brought specifically to their attention. consignees or endorsees. the incorporation by reference and notice of the incorporation must be considered carefully. 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. 2)
The Hague/Visby Rules 1968/1979
No. Fifthly. Fourthly. and in force as of June 2. 1924. Sixthly. 16 International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading. 2003.g. to verify that such incorporation is complete and valid. Mankabady. ed. 98. Les Éditions Yvon Blais. very often in the place of the carrier’s principal place of business. if it is reasonable..
1979 (in force February 14. contain no provisions on jurisdiction or arbitration. 31. 1994. A number of countries have enacted national legislation in an effort to give effect to the Hamburg Rules options as to jurisdiction. but in some cases with certain national qualifications. Norway and Sweden). Again. 4) the port of discharge. the jurisdictional provisions do not apply if they would violate any provision of either the Brussels Convention 196821 (binding Denmark) or the Lugano
Protocol to Amend the International Convention for the Unification of Certain Rules Relating to Bills of Lading. 21(1) upon the defendant providing adequate security to ensure payment of any subsequent judgment. 1968 (O. nevertheless adopted a common maritime code in 1994. 21(2) solves the difficult problem of jurisdiction being acquired by the arrest of the ship in rem. however.E. Protocol 1979").J. In particular. as between the Danish and Norwegian versions of the Code. The Hague Rules 1924. the suit must be transferred to an acceptable jurisdiction defined in art. December 21. published in Swedish and English by the Axel Ax:son Johnsons Institut för sjörätt och annan transporträtt. 19 United Nations Conventions on the Carriage of Goods by Sea. signed at Hamburg on March 31.R.R. 21 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. such clauses are generally upheld by courts and may be set up against parties to the bill of lading or similar document of carriage. 21(5) permis the parties.10. 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.1978). 2) the place where the contract of carriage was made if the defendant has a place of business. L. and 5) any additional place designated for that purposes in the contract of carriage by sea. 1978. on the one hand. 2000. adopted at Brussels. by agreement. whether or not those parties have really taken cognizance of their terms.E. however. 20 This common Nordic Maritime Code came into force on October 1. 2 Ed.1972. at his option. 2001.C.18 like the original Hague Rules. 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. as amended by the Visby Protocol 1968 and the Visby S. as
. February 23. at the petition of the defendant. 30. See.J. Art. 1984) (commonly known as the "Visby S. 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. for example. L.8
The Hague/Visby Rules 1968/1979.C. 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. The Nordic countries (Denmark. on the other. art. are commonly known as the "Hague/Visby Rules 1968/1979". nr 22. updated to June 30.20 Under this Code. while still adhering to the Hague/Visby Rules. to designate the place of suit after a claim under the contract of carriage by sea has arisen. Finland. In addition. 3) The Hamburg Rules 1978
The Hamburg Rules19 at art. adopted at Brussels on September 27.12. Stockholm. branch or agency there the contract through which the contract was made. the options as to places for suit are similar to those permitted by the Hamburg Rules. 21(1) authorizes the cargo claimant. for example. The numbering of the articles differs.D. Art. 299/32. the Swedish Maritime Code. 1992. The arrest is valid but.D. and in force November 1. see English text in O. Jure AB. and the Finnish and Swedish versions.. 304/36. 3) the port of loading. Protocol 1979. 1968 (in force June 23. adopted at Brussels.
1988.C. 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. No. para.1 and 6. referring to arts. branch or agency through which the contract was made.9 Convention 1988.E. 319/9.C. The Carriage of Goods by Sea Regulations 1998 amending the Carriage of Goods by Sea Act 1991.26 reads: “11 (1) All parties to: (a) a sea carriage document27 to which. adopted at Lugano. effective March 1. sect. “Scope of Application. 25 No. were authorized by the Carriage of Goods by Sea (Amendment) Act 1997. except in respect to actions in rem. This Schedule of Modifications is Schedule 1A of the 1998 Regulations. 319-321. 6. See also Tetley. and as later replaced for all European Union states. 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. (O. Choice of Law and Jurisdiction in the New Nordic Law of Carriage of Goods by Sea” (1996) Il Diritto Marittimo 308 at pp. Norway and Switzerland). 26.11. 1980. September 16. 2000 (O. By art. at art. 310 and 311 of the Danish Maritime Code. not in force.E.2001).2. 24 United Nations Convention on International Multimodal Transport of Goods. L 12/1. in force July 1. 16.C. or 3) the place of taking the goods in charge for international multimodal transport. 1998. 753-754. Chap. “Arbitration & Jurisdiction in Carriage of Goods by Sea and Multimodal Transport – Can we have international uniformity?”  ETL 735 at pp. paras. 60. 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. Liechtenstein.) 26 Statutory Rules 174 of 1998. except Denmark. or a negotiable document of title
. or relating to a contract of carriage to which. to mean any of the following: a bill of lading. provided that the defendant has there a place of business. L.J. 2) the place where the multimodal transport contract was made. the amended Hague Rules28 apply.22 both of which conventions make the domicile of the defendant the major criterion of jurisdiction.25 as amended by the Carriage of Goods by Sea Regulations 1998.J. 23 See Swedish Maritime Code. For example. 26(3). Regulation 44/2001 of December 22. 27 The term “sea carriage document” is defined in Schedule 1A (Schedule of Modifications) of the Carriage of Goods by Sea Regulations 1998. 22 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. 123 of 1997. 198024 has similar provisions at art. 11 of the Australian Carriage of Goods by Sea Act 1991. Allan Philip. relating to the carriage of goods from any place in Australia to any place outside Australia or
subsequently amended. signed at Geneva on May 24. Schedule 1. or 5) any other place designated for that purpose in the multimodal transport contract and evidenced in the multimodal transport document. 160 of 1991 (Cth. 25. or 4) the place of delivery of the goods. IV. the parties may agree on a place for instituting an action after a claim has arisen.1. by E.23 4) The Multimodal Convention 1980
The Multimodal Convention. 7(2) of which authorized the addition of a “Schedule of Modifications” to the 1991 statute as amended. 1(1)(g). 13. 2002.1988). sect.
v. 22 of 1924. 1994 at p. 28 The “amended Hague Rules” refers to the Hague/Visby Rules 1968/1979.W. Sup. 11(3) to the 1991 statute. 229 (N. 1988. See Tetley. 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). of Aust.  2 N. however. 374 (Aust. relating to the carriage of goods from any place outside Australia to any place in Australia.R.S.R. (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.R. or a bill of lading that.).” 30 The Australian Carriage of Goods by Sea Act 1991 was amended by the Carriage of Goods by Sea (Amendment) Act 1997.
.. 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. Aust.S.10 (b) a non-negotiable document of a kind mentioned in subparagraph 10(1)(b)(iii). the amended Hague Rules apply. 32 The Federal Court of Australia has been held that sect 11 of the Carriage of Goods by Sea Act 1991. Limited v.”30 This legislation is very similar to sect. Marine Cargo Claims. 29 Subsect. 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.W. the Hague/Visby Rules 1968/1979] are to govern the contract as if the document were a bill of lading. (1996) 141 A.) 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.29 relating to such a carriage of goods. 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). 9 of the former 1924 statute as interpreted in the Wilson decision (supra). See also Wilson v. 9 of Australia’s former Sea-Carriage of Goods Act 1924. note 16. 164-165 (Fed. is not negotiable. John Churcher Pty Ltd. (Australia) Ltd. No. in appeal  2 Lloyd's Rep. Ct. 3 Ed. or relating to a contract of carriage to which. Compagnie des Messageries Maritimes  1 Lloyd's Rep. (1974) 24 F. v. Sup. Tetley.L. See Hi-Fert Pty. like sect.): A French bill of lading for a shipment from France to Australia called for suit in France. so as to add sect. being a contract that contains express provision to the effect that the amended Hague Rules [i. declared that a clause calling for actions to be tried in a French Court was invalid. 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).).R. See also Akai Pty Ltd.L. 142 at pp.). See. 31 No.L. C. The People's Insurance Co. as amended for Australia by the Schedule of Modifications (Schedule 1A) of the Carriage of Goods by Sea Regulations 1998. upheld by the Australian High Court. by law. at pp. 191. 153. Mitsui & Co. 123 of 1997 (Cth. and has received a similar interpretation. 9(1) of the Act.e.W. England.32
that is similar to a bill of lading and that contains or evidences a contract of carriage of goods by sea. 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.S. High C. where an exclsive English jurisdiction clause in an insurance policy was not enforced because the English court would not apply a mandatory and otherwise applicable Australian statute on insurance contracts. 179 (N. note 80. International Conflict of Laws. The Supreme Court of New South Wales. or (ii) a non-negotiable document of a kind mentioned in subparagraph 10(1)(b)(iii) relating to such a carriage of goods. 544 (High C. are taken to have intended to contract according to the laws in force at the place of shipment. Kiukiang Maritime Carriers (The Kiukiang Carrier)  159 A. 783-784. but only on condition that the arbitration is conducted in Australia. Ct.).L. Ltd.
the Civil Procedure Law 1991 of the People’s Republic of China.
.34 have enacted similar nationalistic legislation on jurisdiction clauses in bills of lading and other sea carriage documents. in a case concerning contract disputes or disputes over property rights involving foreigners (including maritime contract disputes). 210(1) and (2). for example.36 it must nevertheless be proven that cargo genuinely consented to the clause. 7.R. 38 See. prohibiting the ouster of local jurisdiction. 1966.37 The People’s Republic of China enforces foreign jurisdiction clauses in carriage of goods by sea contracts only on the basis of reciprocity – i. and jurisprudence cited there. V. 87-922 of November 12. 1993. exclusive jurisdiction clause or agreement to refer any dispute to arbitration”.1). would seem to mean the court of the P. which permits both parties. 386-387. although the requirement that the shipper sign the bill was repealed in 1987. New Zealand. therefore. 384. as well as the consignee or holder of any bill of lading. Jurisdiction Clauses Restricted by National Law
The former French domestic Law of April 2.R. similar documents of title or nonnegotiable documents covering shipments to and from New Zealand. in French internal law. International Maritime Bureau. sect. The word “court” in this context.2 at p. Witherby Publishers. 1997. Droit Maritime. Vialard. 1987. which permit any person carrying on business in the Republic. sects. amending art.11 A number of other countries.R. China’s Maritime Courts and Justice. “[n]otwithstanding any purported ouster of jurisdiction. para. which preclude the ouster of New Zealand jurisdiction by foreign jurisdiction clauses in bills of lading. thus being slightly more liberal than the corresponding Australian statute which allows only Australian arbitration. Journal officiel. London.. although the article does not expressly preclude selection of a foreign forum.C. I. waybill or document before the competent court in the Republic. however.C. Loi relative aux transports des marchandises par mer. Presses universitaires de France.C. 104 of 1994. having an actual connection with the case. 447 at pp. however. 34 See South Africa’s Carriage of Goods by Sea Act 1986. the burden of making such proof resting with the carrier. 3(1) and 3(2). under art. 499 at pp. to agree in writing to trial by the court at the place that has an actual connection with the dispute. 48. 244. Droit Maritime. para.R. “Arbitration & Jurisdiction in Carriage of Goods by Sea and Multimodal Transport – Can we have international uniformity?”  ETL 735.1937. the autonomy of parties to agree on a foreign jurisdiction for litigating their cargo claims is severely restricted. 37 of Decree No. adopted by the Fourth Session of the Seventh National People’s Congress of the People’s Republic of China on April 9.4. Paris. to bring an action on the bill. D. jurisdiction clauses in bills of lading may only be invoked against merchants and these clauses must figure prominently in the bills. only Dutch and German jurisdiction clauses were recognized in the P. Pedone. Rèmond-Gouilloud. at art. As of 1997. 37 See M. See generally Tetley. Act 1 of 1986.C. 2 Ed. 533 at pp. 445 at p. as well as inside.C. 426427 and para.) jurisdiction clauses in bills of lading. 36 The requirement that bills of lading be signed by shippers was repealed by Decree No. 10 also prohibited jurisdiction clauses which ousted the authority of French courts in cases of carriage between French ports in a French vessel (navigation réservée). The court selected must be clearly identified in the bill and. A. 48 of France’s Nouveau Code de procédure civile.’s maritime courts. In practice. 1997. where the foreign jurisdictions designated by such clauses enforce forum selection provisions in similar contracts calling for suit in the P. No.38
See New Zealand’s Maritime Transport Act 1994. although that statute does permits arbitration of cargo claims outside. Today. para. Nevertheless. para.e. Art. 621 at p. 346347. 1936. 35 Loi du 2 avril 1936. foreign jurisdiction clauses in ocean bills of lading are recognized by Chinese maritime courts only where the foreign country concerned recognizes Chinese (P. See Zhang Jinxian. 1991. 257 of the Civil Procedure Law 1991 is more liberal as regards foreign arbitration. such as New Zealand33 and South Africa. 66-1078 of December 31. 193635 at art. 400 and para.C. waybill or like document for the carriage of goods inbound to South Africa. April 11.
or (c) the contract was made in Canada. in accordance with the contractual clause or. Nestlé Canada Inc. The Viljandi  ETL 760 (Fed.). under sect. of Can.A.c. C. 46. the proposal is a way of giving the cargo claimant a Canadian litigation/arbitration option. while still favouring local jurisdiction and arbitration. New Zealand and South Africa. as an alternative to suing or arbitrating abroad as per the bill of lading. 2001. (b) the person against whom the claim is made resides or has a place of business. It does not prohibit ousting Canadian jurisdiction over bill of lading disputes. the plaintiff. but permits the cargo claimant to opt instead for suit or arbitration in Canada. the claim must have arisen after the jurisdictional provision has been agreed. or the intended port of loading or discharge under the contract. The Castor (2002) 297 N. designate by agreement the place where the claimant may institute judicial or arbitral proceedings.” Sect. 46.S.) s. see IncremonaSalerno Marmi Affini Siciliani (I. 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.C. in situations where that option would exist under Hamburg. 2001. v. c. after a claim arises under the contract.C.39 provides the marine cargo claimant with the option of suing or arbitrating in Canada. 21 and 22 of the Hamburg Rules.R. c. 6. of course. however. where (a) the actual port of loading or discharge. alternatively. branch or agency in Canada.
. 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. 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. 151. Sect. the parties to a contract referred to in that subsection may. S. In effect..40 In the latter case. the residence or place of business of the defendant or the place of contracting). in force August 8. even where Hamburg does not apply to the bill of lading contract of its own force or through incorporation by reference.M.S. For decisions on the application of sect. It seems fair. 46(1) of Canada's Marine Liability Act. is in Canada. “(2) Notwithstanding subsection (1).). the cargo claimant may sue in the contractually stipulated place or in any of the other optional venues listed in those Rules. despite the presence in the bill of lading of a foreign jurisdiction or a foreign arbitration clause. If the Hamburg Rules apply to the contract.n. balanced and
S. under certain conditions. 6. 2001. to sue or arbitrate in Canada. under its Marine Liability Act. may choose to litigate or arbitrate outside Canada. 2003 AMC 305 (Fed C. But if Hamburg does not apply.A. v. is significantly less restrictive and nationalistic than the corresponding legislation in Australia.12 Canada. in cases similar to those enumerated in arts.
C-106/95. 15.10. See also Estasis Salotti di Colzani Aimo e Gianmario Colzani v.J.97 at p. see English text in O. L. 106).b. it has also adopted the Hamburg Rules 1978 and retains the option to bring those Rules into force.10.C. 1) Jurisdiction Clauses Restricted by European Law The Brussels Convention 1968
The Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (the Brussels Convention 1968) was signed at Brussels on September 27.45 Subsequent decisions of the European Court of Justice. 1968.E. the Republic of Ireland and the United Kingdom. 1989 for Spain and Portugal (O. L. C.U. 44 Convention on the accession to the 1968 Convention and the 1971 Protocol of Denmark. in order to protect the weaker bargaining party from foreign forum selection clauses inserted in boilerplate language by the stronger party. 31. c. The Brussels Convention 1968 was re-amended three more times. L. 43(1) and (2) and Schedule 3 of this Act). the Brussels Convention 1968 was given the force of law by the Civil Jurisdiction and Judgments Act 1982.J.10.E.” 46 See. Mainschiffahrts-Genossenschaft Eg v. 27.J. the decision of the Court of Justice of the European Communities in The Tilly Russ  ETL 3 at p.C.E. on the admission to the European Union of Greece.E. 30. 2005 and every five years thereafter (see sects. 44.  ECR I-911.C. following the making of a report to Parliament by the federal Minister of Transport on the advisability of doing so before January 1.1989) and the Accession Convention of November 29. for example. provided a rule requiring the courts of Contracting States to respect written jurisdiction agreements.C. Civil Jurisdiction and Judgments. as so amended and re-amended.15/1.13 reasonable. and of which the weaker party remains unaware until it is too late. rendered under art. 299/32. 17 of the Brussels Convention 1968. which came into force on January 1.J. 41..R. 2. 03. 55.1978). 1831.41 VI. 285/1.E.44 Art.C. U.1997). which must be clearly and precisely demonstrated.K. 17 as it has evolved in wording since 1968. 1996 for Austria. 41.. 3 Ed. 304/1. for example.12.C.C. pending Canada's possible eventual transition from the Hague/Visby Rules to the Hamburg Rules. 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. Les Gravières Rhénanes SARL. “Maritime Claims: The European Judgments Convention”. have reaffirmed the essential importance of a genuine agreement between the parties as to the foreign jurisdiction concerned. requiring that a jurisdiction clause. 1975. Spain and Portugal.12. LLP.m. perfect and sufficient guarantee of the existence of consent or consensus” (see Briggs & Rees. London. RUWA Polstereimaschinen G. L.42 This Convention. was amended by the 1978 Accession Convention and subsequent Accession Conventions.J. 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. and Austria. 1978 (O. to be effective under art. para. there must be the possibility of attacking
. The rule was applied to bill of lading jurisdiction clauses agreed to by the parties.H. 31.  E.J. 1982 for Greece (O. signed at Luxembourg on October 9. be the “subject of a consensus between the parties. the Accession Convention of May 26. (see sects. Case No. 1987. 304/36.K. as subsequently amended by various accession conventions. 2002.46
Although under its Marine Liability Act.  LMCLQ 281. 30. See of the Accession Convention of October 25. Member States. 43 Protocol on the interpretation of the 1968 Convention by the European Court. Although this and other ECJ decisions maintain that the formalities required by the article are themselves “… a full. 45(1) and (2) and Schedule 4 of the Act).01. 1982. In the U.98). which includes the 1971 Protocol of Interpretation43 annexed to it. to clauses confirming a previous oral agreement between them and to clause forming part of “the steady business relations” between the parties. signed at Luxembourg on June 3.1972. 45 See. 388/1. Some of these accession conventions made substantive amendments to the Brussels Convention 1968.E. 42 Hereinafter described as the 1968 Brussels Convention (O. Finland and Sweden. Finland and Sweden (O. 17. 1971 and in force September 1. See generally Geoffrey Brice.1978). L.
Norway and Switzerland. 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. but not Liechtenstein).e.1988).C. at art. unlike art.E.E. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters.47 by the Regulation of the Council of the European Union (EC Regulation 44/2001)48. 23(1)(a). is couched in terms very similar to those of the most recent text of art. The Lugano Convention of September 16.J. mistake. very similar to the Brussels Convention 1968. (i. “L’entrée en vigueur du règlement communautaire no 44-2001 du 22 décembre 2000 concernant la compétence judiciaire. also continues to govern three of the four remaining remaining States of the European Free Trade Association (EFTA). Any communication by electronic means which provides a durable record of the agreement shall be equivalent to ‘writing’. provides for jurisdiction clauses and agreements evidenced by electronic documents to be treated as “writings” for the purposes of art.11. the EC Regulation establishes uniform rules on civil jurisdiction and the enforcement of judgments in civil and commercial matters. For the text. which applies directly (i. L.U. 47 Denmark chose not to bound by the EC Regulation. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. that court or those courts shall have jurisdiction. Its rule on jurisdiction agreements. 48 EC Regulation No. If the parties. Like the old Brussels Convention. or (b) in a form which accords with practices which the parties have established between themselves.C. 17 of the Brussels Convention 1968 as amended by the various Accession Conventions.14
EC Regulation 44/2001
The Brussels Convention 1968 was replaced. without the need for any implementing national legislation) to proceedings instituted on or after March 1. read as follows: “1. 2000.. see Pierre Bonassies. 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. adopted on by the Council of the European Union on December 22. 2000) in matters of civil jurisdiction and the enforcement of judgments. and also binds Poland (since that country acceded to the Lugano Convention on February 1. see O. misrepresentation or frustration. and therefore is still governed by the Brussels Convention 1968 in its relations with the other Member States of the E. For commentary. 1988 (O. 2002.49
the jurisdiction clause as invalid for fraud.
. if the electronic communications leave a “durable record”. in respect of civil jurisdiction and the enforcement of judgments. 2002. 25. L 12/1 to L 12/23. 107). 23 (1) to (3). duress. or (c) in international trade or commerce. 319/9. one or more of whom is domiciled in a Member State. Briggs and Rees suggest that such a possibility may lie in the development of an autonomous definition of “agreement” (see ibid. at p. la reconnaissance et l’exécution des décisions de justice en matière civile et commerciale”  ETL 727. and regularly observed by. parties to contracts of the type involved in the particular trade or commerce concerned. 49 The EC Regulation. in any court of a European Union Member State. Iceland. 17 of the Brussels Convention 1968.J. 23. except Denmark. Such an agreement conferring jurisdiction shall be either: (a) in writing or evidenced in writing. Art. This latter expression has yet to be interpreted by the European Court. except for Denmark. “2. as of March 1.e. and in force in all Member States of the European Union except Denmark. the most pertinent portion of the new Regulation.
 ECR I-1597.81. Art. Where such an agreement is concluded by parties. 11. 54 Thus. at p. In Trasporti Castelletti Spedizioni Internazionali SpA v. under art. 734. 52 November 9. See also Cour d’Appel de Versailles. June 21. Asariotis & Baatz. In fact. 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. 17.. June 19. DMF 2001. 2001 (The Nedlloyd Van Neck)  ETL 926. parties to contracts of the type involved in the particular trade or commerce concerned”. applying the Castelletti decision. may be “concretized”. 1984. and regularly observed by. Delebecque. where applicable. obs. 23 of EC Regulation 44/2001 is basically unchanged from art.52 and its three main findings would appear to remain applicable to such clauses now that the very similar art. These elements. Handelsveem BV. 733.” (Emphasis added) The text of art. 17 of the Brussels Convention 1968 and that the decisions rendered under art. indicating that art. but rather by the practice generally and regularly followed in concluding a certain type of contract. 2000 at paras. first para. of the Brussels Convention 1968 in relation to bill of lading jurisdiction clauses. of the Brussels Convention 1968) is different from the pre-1978 text of art. 23 of EC Regulation 44/2001 (like the most recent text of art. Delebecque. DMF 2001. See P. 2002. the jurisdiction clause must be given effect when one of the parties is domiciled in a Member State of the European Union.20. 337. the objective knowledge of the trade usage by either party to the contract is irrelevant. March 16. 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. Hugo Trumpy SpA. Handelsveem BV. 187. 187. none of whom is domiciled in a Member State. 53 See P.51 If this requirement of form is complied with. not by the national law of one of the contracting states. Delebecque. (Case No. Ph. supra. the European Court of Justice held that the knowledge of the usage concerned is “independent of any specific form of publicity”. obs. where the bill of lading jurisdiction clause did not expressly specify the name of the court selected. Ph. which must be sufficiently precise to enable the judge seized of the case to determine whether he has jurisdiction. March 21. 17 from which the European Court of Justice in The Tilly Russ50 drew the criteria for a valid and enforceable jurisdiction clause. knowledge of such a generally and regularly observed usage is “imposed” on the shipper.15
“3. particularly in the Castelletti (supra) and Coreck Maritime (supra) cases. Ph.54
European Court of Justice. need not name the court having jurisdiction. 17 of the Brussels Convention generally. by the circumstances of the case. C-159/97). will probably continue to apply under art. Bulletin des transports 2002. See also Cour d’Appel de Rouen. obs.  ETL 727 at p. but rather merely called for suit in the court of the place of the “principal establishment
. 2000. 2000. Bonassies. (Case No 387/98). which might be given to the standard form on which the clause appears. November 9. 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. 17. Bonassies. with the result that the usage may be considered to be a consolidated practice. 17. 387-98). DMF 2000. Bills of Lading: Law and Contracts. the courts of other Member States shall have no jurisdiction over their disputes unless the court or courts chosen have declined jurisdiction. for example. therefore. see Gaskell. in the Coreck Maritime case. 23 of EC Regulation 44/2001 is in force:53 (1) the wording of the jurisdiction clause. The existence of the usage must be established. supra. The European Court of Justice interpreted the most recent text of art.  ETL 3. first para. in its decision in Coreck Maritime GmbH v.  ECR I-9337. 17 of the Convention by the Court of Justice of the European Communities. On art.  ECR I-9337.51to20. 1999 (Case No. 23 of the Regulation.
first para. Revue Scapel 2003. 17 and the changes introduced into art. 556.73 and 20. 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.60 3) Arrest in rem under other conventions
Under art. because it was not proven that the consignee had consented to the clause at the latest at the time of delivery. where those provisions reflect a genuine. Asariotis & Baatz. 17 of the Brussels and Lugano Conventions were inapplicable to a bill of lading jurisdiction clause calling for suit in New York courts. 2002 (The Dymphna). 364 at p. the Regulation does not affect any conventions to which the Member States are parties and
of the carrier”. obs. October 8. observations Y. See also Rechtbank van Koophandel te Antwerpen.16
(2) art. rather than Belgian law. See Cour d’Appel de Rouen. but rather that that law fell to be determined by the judge seized of the case. incorporation by reference of a jurisdiction clause into a bill of lading is effective. emphasizing that under art. Delebecque. See also Cour de Cassation. 1997 (The Adamastos). DMF 2003. 17 of the Brussels Convention 1968. produces effects with respect to a third party holder of the bill. demonstrates clearly and precisely a consensus by the parties on the subject matter of the clause.  2 Lloyd’s Rep.57 European law thus accepts jurisdiction clauses in bills of lading and other contracts. Ph. Bills of Lading: Law and Contracts. DMF 2003. holding that art. 2003 (The Houston Express). has succeeded to the rights and obligations of the shipper under the applicable national law.
. March 4. for example. April 9.A. 373. March 4.. notwithstanding the amendments to art. being the successor to the rights and obligations of the shipper under the bill. as interpreted by the European Court.  ETL 321. in acquiring the bill. 20. 71(1) of EC Regulation 44/2001 (similar to art. 60 Siboti v. 55 Where the court selected is in a “third State”.56 If such is not the case. 23 to accommodate a course of dealings between the parties and practices in international trade. Tassel.59 Acceptance of forum selection agreements is not unconditional. interpreted in the light of the commercial background of the case. where the language of the bill. 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. jurisdiction clauses must still reflect a consensus between the parties to the contract that is clearly and precisely demonstrated. 17. it is proper to verify the reality of the holder’s consent to the clause by reference to the requirements of art. 59 See Gaskell. The same test has been applied in France to arbitration clauses. 57 See.A. 2000 at paras. however.  2 Lloyd’s Rep. 20.77. mutual consent between the contracting parties to sue in a determined or determinable forum. of the Convention. 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. 547. 58 See Siboti v. 2003 (The Sonara). See also Rechtbank van Koophandel te Antwerpen. the forum designation was held valid. where under the applicable French law. 2002 (The Walka Mlodych). applied to the bill of lading contract and therefore that the third party holder of the bill was bound by its jurisdiction clause. as under the art. where the Belgian Court decided that English. agreed to by a shipper and a carrier.55 (3) a jurisdiction clause in a bill of lading. rather. 372. June 18.58 and whether or not that forum has any connection with the dispute or the parties. applying the conflicts rules of his national law. provided that the holder. 23 of EC Regulation 44/2001. BP France S. BP France S.  ETL 453. Cour de Cassation. 57 of the Brussels Convention 1968). 364 at p. it is governed by the very specific terms of the EC Regulation 44/2001 (and the Brussels Convention 1968 in the case of Denmark). Under those provisions. 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. the foreign jurisdiction clause was held unenforceable as against the subrogated underwriter of the consignee/ holder of the bill of lading.
U. 23 of the EC Regulation) purporting to assign jurisdiction to the courts of another E.17 which in relation to particular matters. 2002 at para. even if the shipowner or demise charterer is domiciled in another E. Various other maritime law conventions also have rules on jurisdiction which would override the Regulation. the Athens Passenger Convention 1974. the place of the carrier’s place of business. 3 Ed. In England. there is another. 17 of the Brussels Convention (now art. 63 Briggs & Rees. courts today generally have the discretion to either dismiss or (more usually) to stay conditionally the proceedings validly instituted before them.U. but still relevant under the Regulation) in The Deichland  1 Q.K. as in fact has been done in at least one case where the bill of lading expressly provided for jurisdiction in Germany.
.) and The Anna H  1 Lloyd’s Rep. 805-809. 54. notably. 66 The Bergen (No. 62 U. 8.62 which. decisions on this matter (rendered with respect to art. the Civil Jurisdiction in Collision Convention 1952.65 Nevertheless. State whose courts would normally have jurisdiction under the Regulation.66 VII. 20-24 implements the Arrest Convention in English domestic law. Gaskell. See also Briggs & Rees.). either of their own motion or at the petition of one of the parties. 57 of the Brussels Convention 1968 prior to the enactment of EC Regulation 44/2001. ibid. will have a valid basis of jurisdiction over the underlying “maritime claim”. even if that foundation does not exist in the Regulation. 8. the domestic law permits such arrest in rem under the Supreme Court Act 1981. 8.. 65 See The Bergen (No. The most important example of this type of convention on a “particular matter” is the Arrest Convention 195261 Art. if their domestic law gives jurisdiction to their courts. Asariotis & Baatz. if they believe that.64 Jurisdiction in rem (even where the defendant is not available for service in the U. 2)  1 Lloyd’s Rep. Civil Jurisdiction and Judgments. the Limitation Convention 1976 and the Hamburg Rules 1978. although they have jurisdiction to decide the dispute. 20. The importance of this provision is that it permits Member States of the E. clearly more appropriate forum in another jurisdiction where it would be better to try the suit. State. 1952.U. 7 of that Convention permits Contracting States to take jurisdiction on the basis of the arrest of a ship in their territorial waters.13 at p. 2003 at pp. Bill of Lading: Law and Contracts. 513. International Maritime and Admiralty Law.. 3 Ed.15. Tetley. 20. as they did the Brussels Convention. Briggs & Rees. Is There a More Convenient Jurisdiction?
In common law countries. 2000 at para. the Penal Jurisdiction in Collision Convention 1952.15 at p. 2000 at para. English jurisdiction based on ship arrest would remain unaffected by an exclusive jurisdiction clause as contemplated by art. Civil Jurisdiction and Judgments. 11 (C.K. c. 64 See the classic U. at sects.B.63 In consequence. May 10. 361 (C. 380. the English court. 1956. at para.A. 421-423.K. to take jurisdiction over a dispute on the basis of jurisdictional foundations provided in another convention governing a “particular matter”.) is thus preserved and is permitted to override jurisdiction under the EU’s ordinary rules. 710.114-20. 515. 1)  1 Lloyd’s Rep. The court therefore embarks on an analysis to identify what court is the “more
International Convention Relating to the Arrest of Sea-Going Ships. See Gaskell. Tetley. 2002 at para. the Civil Liability Convention 1992. 1952 and in force February 24. govern jurisdiction or the recognition or enforcement of judgments. adopted at Brussels.A. Bills of Lading: Law and Contracts.126. International Conflict of Laws. 1981.128. Asariotis & Baatz. 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. 1994 at pp. and in some other cases. having arrested a ship in rem in accordance with the applicable procedure. having regard to the interests of the parties and the ends of justice.
striking out or dismissing any proceedings before it on the ground of forum non conveniens or otherwise.L. Spiliada Maritime Corp.Q.A. British Columbia (Workers’ Compensation Board)  1 S. it is nevertheless not the forum conveniens and that a court of competent jurisdiction in another jurisdiction is clearly and distinctly more appropriate as a venue for the litigation (the burden of proof on these two points falling on the defendant). 1994 AMC 913 (1994).67 Civilian countries. 3135 c.  1 Lloyd’s Rep. 897 at pp. Nevertheless. The forum court which has stayed the proceedings
Among the classic decisions on forum non conveniens in the United Kingdom. J. Lamborghini (Canada) Inc. v.C.K.).” For decisions applying art. C.L. Banque Royale du Canada  R.J. and Lubbe v. the Lugano Convention. 398. v. See generally Tetley. 1982. c.C. but should preferably stay them conditionally.L. DeSavoye  3 S. 1991.q.c. Spar Aerosapce v.S.C. provides: “Even though a Québec authority has jurisdiction to hear a dispute. sect. Reyno 454 U. or the “more appropriate forum”. v.” 68 The Québec Civil Code 1994. S. See also the U. see H. as the case may be.68 After having determined that it has jurisdiction and that there is no direction in the substantive law before it as to jurisdiction. 1992: “Nothing in this Act shall prevent any court in the U.J. 69 See Tetley. 443.q. as amended by the Civil Jurisdiction and Judgments Act 1991.  A. 460. A conditional stay is preferable to dismissal. Connelly v.  A. 412-413. and American Dredging Co. see Morguard Investments Ltd. 213 (Qué. decline jurisdiction if it considers that the authorities of another country are in a better position to decide. Tetley.).  R.  1 Lloyd’s Rep.18 convenient forum”.K.Q. 854 (H.C.J. 2003 at pp. in case the foreign court does not accept jurisdiction or renders a decision not susceptible of subsequent recognition and enforcement in the forum court.S. For Canada.C. U. International Conflict.’s Civil Jurisidction and Judgments Act 1982. the court seized of the proceedings may dismiss the proceedings. Supr.L. 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. Automobili Lamborghini S. if it is the "natural forum" for trial of the dispute. as a mixed jurisdiction. 1994 at pp. 1077. International Maritime and Admiralty Law. 1 (H.  R. v. 49. the landmark decisions on forum non conveniens include Gulf Oil Corp. Rockware Glass Ltd.L. Miller 510 U. Amchem Products Inc.A. due to constitutional restrictions. The Abidin Daver  1 A. Quebec. 383 (H. Grecon Dimter Inc. it may exceptionally and on an application by a party. Piper Aircraft Co.). which statute came into force on May 1. v. Normand Inc.C. 413. Cansulex Ltd. 798-803. or the “natural forum”. sisting.e.R.S. on grounds of forum non conveniens.A.P.Q. RTZ Corp. i. see MacShannon v. although it has jurisdiction. where to do so is not inconsistent with the 1968 [Brussels] Convention or.). 235.K.R.. on the ground that another forum appears more convenient or appropriate or natural for the litigation. c. Ct. 915-922. If the forum court is convinced that. American Mobile Satellite  4 S.C. 88 (Qué. 1982 AMC 214 (1981). generally do not have the discretion to dismiss or stay actions which fall within their jurisdiction under their respective national laws. v.).).).
. Cape plc  2 Lloyd’s Rep. Gilbert 330 U.K.R. at art.L.A. v. 3135 c. v. 205. In the United States. U. 2003 at p. 12.c. International Maritime and Admiralty Law. from staying. Boulton & Co. 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". The doctrine applying to this determination is known as forum non conveniens. 339 (H. 27.C.). v. C.C. 58 (Qué. 795 (H.  A.R. Forum non conveniens therefore has no place in their legal systems. for the adjudication of the dispute. 501 (1947)..
Gilbert 330 U. for example. N. 9. where a forum non conveniens stay was granted on a cargo claim arising under a bill of lading calling for suit in Pakistan. 1962 AMC 1217 at p. S.Y. v.  4 All E.2d 806 at p. 224 F.L.19 conditionally may then reassume jurisdiction over the dispute.C. 508 (1947). 1220 (S. Swedish American Line.  ETL 45 (S. RTZ Corp. and 5) that security acquired by either party be preserved. United Thai Shipping Corp. see The Arctic Explorer 590 F. following this analysis.  2 Lloyd's Rep. 76. v.  A. 1983).Y.1985 AMC 1493 (S. the connections of the case with one or other of the potential venues and the comparative juridical advantages and disadvantages to each party of having to sue or be sued in one jurisdiction or the other. The Globe Nova 1985 AMC 1977. Takemura & Co. 1346 at p. 268. 2) that the other court accept jurisdiction. Pirelli Cables ltd. The Hamburg Star  1 Lloyd's Rep. Supp. where the court stayed proceedings on a cargo claim in deference to a Russian jurisdiction clause in the bill of lading. however. International Maritime and Admiralty Law. 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. Transytur Line. Pakistan National Shipping Co. the stay will ordinarily be refused. Cape plc  4 All E. for example. 74 Tetley. 183. 383 (H.  1 W. makes its decision as a question of fact based on the whole of the circumstances of each individual case. the convenience and expense of the parties of litigating in either of the competing fora.  2 Lloyd's Rep. 2003 at p.Y. 501 at P.A.S.R. 1984). the existence of such a term or agreement is a factor of great weight in forum
See. v.71 Convenience. or if the evidence on the question appears to be equally balanced. See also LN. Margit 1966 AMC 1217 at p. 1307. 1955 AMC 1687 at p.Y. when it appeared that a Pakistani court might not recognize such a waiver. 373 (H.R.). See also The Kidlovodsk  1 Lloyd's Rep.S. 909 at pp. Subsequently. 707 F. N.78 Clearly. Supp.73 is the touchstone in respect to deciding forum non conveniens motions. 1689 (2 Cir. 1984 AMC 2413 at p. 3) that the defendant submit to service of suit and to the jurisdiction of the other court with the time period stipulated. the House of Lords found that it was wiser to avoid use of the word “convenience” and refer rather to the appropriate forum. Baghlaf Al Zafer v.L.76 If. for example. 663. 75 Gulf Oil Corp.  3 W. 72 La Seguridad v.A. 1218 (S. 2434 (S.D. (No.L.70 The conditions of the stay may vary depending on the circumstances of the case.R. For an example of such a conditional stay in a maritime case. Supp. the stay order was reversed.2d 1304 at p. 854. 77 See. Tsuneshima Maru 197 F. Ltd. 1 at p.D. however. 1961). on condition that the defendant waive any time bar under Pakistani law. Connelly v. Tex. 78 See.C.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. See Baghlaf Al Zafer v. v. 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. 76 G. In general. v.72 sometimes described as reasonableness. 1 (C. 1984). 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. 4) that the defendant waive any defence based on a statute of limitations or prescription in the foreign court. 1966).). N. and no single factor is decisive. 229 (C. 73 Muller & Co. S. 1360. 1983 AMC 2559 at p. Lubbe v. 412. the law applicable to the substance of the dispute. Nigeria v. no foreign court of competent jurisdiction appears definitely more "convenient" than the court first seized. 911-912. for its part. 1985). Sophia First 588 F.R.D.L. In The Spiliada  1 Lloyd's Rep.75 The trial court. N. 2564 (11 Cir.S.D. the court making a forum non conveniens determination considers such factors as the location and availability of proof and witnesses. 335. 399. 808.  1 Lloyd's Rep.B. Pakistan National Shipping Co.A.D.74 No one can foresee or list all the criteria which the court must decide and weigh. 2)  1 Lloyd's Rep. 1955).). 1545.
of Canada). with the result that it was
Among many other decisions of this kind. 2) Forum non conveniens not a characteristic feature of U. c) the choice of the proper place to study questions of foreign law. .. v.. and the cost of obtaining attendance of willing. Private interests are: “a) relative ease of access to sources of proof.79 This matter is dealt with in greater detail in sections IX. 80 The Belgenland 114 U. 197 at p.). 679 (H. 207 (H. 1985 AMC 67 at pp.B.” Public interest factors82 include a) avoiding “congested centers” of litigation. d) enforceability of a judgment . who has taken suit in another jurisdiction. Supreme Court decided that.A. b) the benefit of publicity of the trial in the seat of the conflict.R. 422 at p. 501 at p.S. c) possibility of view of the premises . b) availability of compulsory process for attendance of unwilling. 'vex'. it did not originate there and was not a characteristic feature of the general maritime law of the United States.” Nor may the plaintiff f) “by choice of an inconvenient forum..). See also Perusahaan Umum v. Crédit Suisse  3 All E. with special reference to foreign jurisdiction clauses in ocean bills of lading and other contracts for the carriage of goods by sea. [and] e) the relative advantages and obstacles to fair trial. 443 at p. but was rather a doctrine of general application. Tel Aviv 711 F.R. Mass. Cas.L. 508 (1947). 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.2d 1231 at p.20 non conveniens determinations. see Trendtex Trading Corp.S. 82 Ibid. .L. 1994 AMC 913 at p.D. although forum non conveniens had taken root early on in American admiralty law. The Capricorn  2 S. 509-509.).S.. 355 (1885) is an example of an early admiralty case. 450. Miller. 365. See Antares Shipping v. The Atlantic Star  2 Lloyd's Rep. infra. aff’d  A. See especially p. doctrine.S.. Where the dispute at hand falls within the scope of such a forum selection provision. Ct. rather than as a substantive. at pp.C. forum non conveniens was characterized as a procedural. 918 (1994). the plaintiff. X and XI. 721. aff’d  Q. This very authoritative decision has been referred to by non-American courts. 559 (No.Forum Non Conveniens 1) Private and public interest factors
Forum non conveniens has long been an accepted principle in admiralty in the United States. witnesses. United States . Gilbert. 7293) (C. 83 510 U. 451 (Supr.C. 1983). in breach of that agreement.C.81 where the theory of the private and public interests was enunciated. general maritime law
In American Dredging Co. must show strong reasons why he should not be kept to his original bargain. v. In addition. 1234.80 The principle was first applied to a non-admiralty matter by the Supreme Court in Gulf Oil Corp. VIII.
.83 three of five justices of the U. 'harass' or 'oppress' the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. The Jerusalem 13 Fed. 1814). v.S. 81 330 U. 69 and 70 (5 Cir. 629 (C. and d) the avoidance of conflicts of law.
1238. 85 Ibid. finding that that provision was not pre-empted by federal maritime law. Olaf Pedersen's Rederei) 239 F. Supreme Court in Gulf Oil Corp. general maritime law. 60 (5 Cir. Reyno. “Forum Non Conveniens and Choice of Law” (1987) 18 JMLC 185. Gilbert 330 U. 536. 501. 1597-1598 (E. 89 Perusahaan Umum v.Y. 1983). 508 (1947): “[U]nless the balance is strongly in favour of the defendant. one can rarely count on the fact that jurisdiction will be declined. when the jurisdiction of the underlying action has been maintained. 922. v.86 made uniformity and predictability in the application of forum non conveniens almost impossible... however. 1985 AMC 67 pp. 1600-1601. N. 76-77. Co.S. Note. at p. at p. `982 AMC 214 (1982). 453. 88 Sunny Prince-Hoheweg (Motors Distributors Ltd. v. 501 at p.”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. however. 1972 AMC 1682 (2 Cir. AMC at p. and reaffirmed in Piper Aircraft. 1980 AMC 309 (2 Cir. U.2d 376.S. AMC at pp. U.S.S. 1980 en banc). will also be determined by the principles set out in Gulf Oil Corp. 235. 73-74 (5 Cir.S. Tel Aviv 711 F. 123(c) of its Code of Civil Procedure in 1999. See Perusahaan. the plaintiff’s choice of forum should rarely be disturbed. No.S. AMC at pp. “jurisdiction should be taken unless to do so would work an injustice. 1236. 1972).84 The Supreme Court further observed that the discretionary nature of the doctrine. 1982 AMC 214 (1981). See also Alcoa S.S. 91 454 U. 1. Inc. ibid.2d 1231 at p. 1994 AMC 913 at p. but was rather a procedural rule within the legislative jurisdiction of the individual U. Olympic Corp. v.
. 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. 1984). F. 123(C) of the Louisiana Code of Civil Procedure). sect. the majority in the Supreme Court upheld the validity of the Louisiana statute out of which the litigation had arisen (art. See also Excel Shipping v. 455. 465.S. M/V Nordic Regent 654 F. 235. See Louisiana Acts 1999. v. 922. 1986 AMC at pp. combined with the “multifariousness”85 of the public and private interest factors set forth in Gulf Oil v.”).92 4) Forum non conveniens and in rem jurisdiction
Ibid.no special restrictive rule
Ten years after Gulf Oil Corp. This statement recalls that of the U. that Louisiana amended art. 87 510 U. 1957 AMC 57 at p. states. 86 330 U. supra.21 not deemed essential to the proper harmony and uniformity of the federal. 90 454 U. See also Paula K. 443 at p. Speck. which rendered forum non conveniens unavailable in Jones Act and maritime law cases brought in Louisiana state courts.2d 463 at p.91 The court should be wary. Whether or not an action impleading a third party should be dismissed on the ground of forum non conveniens.” 3) Admiralty . Seatrain International 1986 AMC 1587 at pp.S. 455. Société Générale 462 F.S. 92 Excel Shipping. v. 1956).2d at p. so that forum non conveniens may now be applied in maritime cases. Hoheweg that in Admiralty.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. It held that:87 “In such a regime. Gilbert.D.. it was held in Sunny Prince v. Gilbert. In consequence of this procedural characterization. 920-921.2d 147.
Supp. 76. before embarking on a Gulf Oil balancing analysis. 355 at p.  2 Lloyd's Rep. 1990): “the Gilbert analysis. American Lumbermens Mutual Casualty Co. 99 Ibid.K. pp. Cactus Pipe & Supply Co.. Del. See also Warn v. Owen in  JMLC 133. v.2d at p.2d 1103. 508-509 (1947). “The Integrity of the Judicial Sale”. Tel Aviv. 1239.. 1966). 555 and The Alletta  1 Lloyd's Rep. 454 U.101 but also deny him an adequate security. Gotham Marine Corp. In Sunny Prince-Hoheweg (Motor Distributors v. 145. 630. 100 A ship cannot be arrested twice on the same claim. supra. 104 Ibid.99 Since the seizure of a ship in rem releases the ship from the maritime lien arising from the claim. Tel Aviv. 1990 AMC 1583 at p.S.94 After referring to The Belgenland95 and Gulf Oil Corp.. 711 F. 1985 AMC 2150 (5 Cir.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. 1238. the Court affirmed that “the release or removal of the vessel from the jurisdiction of the court destroys in rem jurisdiction . Supp. 1983). supra. 249 F. 1236. 1238. 142 at p.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.2d 1231 at p. See also Cliffs-Neddrill v. 1985 AMC at pp.22 Perusahaan Umum v. 711 F. 1966 AMC 121 at p. added to the normal presumption in favour of the plaintiff's choice of forum.2d at p. and Van Cauwenberghe v. the Fifth Circuit had declared that in admiralty actions in rem. See also The New England (J. 1234... position. Olaf Pedersen's Rederi A/S) 239 F.D.” See. 1585 (D. 1985 AMC at p.Y. 1985 AMC at p.S. 1998. 60. M/V Montmartre 756 F. 103 Ibid. “jurisdiction should be taken unless to do so would work an injustice.104
711 F. however. 235. v. 1957 AMC 57 at p.
.96 the Fifth Circuit stated that the in rem action did not represent an exception to the Gulf Oil balancing analysis. 40. strong enough to strike the forum non conveniens balance in his favour. Barge Sea-Span 241.) 47 F. 503 at p. 1985 AMC at p.S. 69 (5 Cir.. unless the inconvenience he would suffer was tantamount to injustice. as clarified by Koster v. 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. v. 1999 AMC 1070 at p..97 The Court did point out. 96 330 U.K. 1985 AMC 67 at p. N. 505. Thus courts have been compelled to deny forum non conveniens dismissals in actions in rem. 711 F. 1999). 517 (1988).1076 (9 Cir.2d 1215 at p. 1970). N. that the in rem factor. 465. 2 Ed.103 A conditional dismissal. 97 Perusahaan Umum v. v. 1985 AMC at p. 330 U. For the U. however. v.S.” 95 114 U. because he would no longer be able to seize the ship102 to enforce whatever judgment he might obtain in the alternative forum. 1239. 711 F.2d 620 (9 Cir.2d 332. 769 F. 1098-1104. M/T Rich Duke 734 F. did make it nearly impossible for the defendant to show interests in an alternative forum. 1931 AMC 407 (S. including in rem admiralty actions. 124 (S. Welding Co. Tel Aviv.2d at p.2d at p. except in special circumstances: see generally Tetley. 518 (1947). 78.2d at p.S. 1985) and Farwest Steel Corp. 501 at pp. 73. See Shalom-Stolt Dagali. 486 U.D. M/V Maridome 169 F. however.K. is fully applicable to all forum non conveniens motions. 367 (1885). 1302 (9 Cir.” 98 Ibid. 101 In M/S Galveston Navigator 431 F. 78-79. Maritime Liens & Claims. 1985) and a critical commentary by David R. 1971 AMC 1298 at p. 26. 1218.2d 463 at p. Gilbert. the court can embark upon the Gulf Oil balancing analysis and decide whether or not it is a convenient forum. Biard. 711 F. 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.3d 625 at p. 1982 AMC 214 (1981). see The Despina.98 The Court emphasized that the balancing analysis in Gulf Oil was predicated upon finding that an adequate and available alternative forum did exist. G. 1931). 77. 102 Perusahaan Umum v. Reyno. Piper Aircraft Co.Y. Chap.
” The concern was that foreign law rather than U. 1955 AMC 1687 at p. where the bill of lading includes such a provision. COGSA would be applied by the foreign court. it would have done so in a forthright manner. to evaluate the enforceability of jurisdiction clauses and agreements in general. Cal. 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. 593. v. while at the same time the courts retained their discretion. See. at p. LG Electronics Inc. 109 Ibid. Particular principles have been developed in the U. Soc.23
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. 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. 1967 AMC at pp. 105. 594-595. however. M/V
. Fritz Transportation International 2002 AMC 106 (N. 101 at p. 807. See.105 are now considered. 3(8) of COGSA 1936. 1981). 108 377 F. 590-593 (4 Cir.2d at p. 1982 AMC 588 at pp.S. of Canton.S. 2001). Conklin & Garrett. 104 (2 Cir.D. including those appearing in ocean bills of lading. Ltd. v. en banc 1967). the Second Circuit in Muller v.” Twelve years later the Second Circuit took a completely different approach in Indussa Corp.109 Thereafter. 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. Ltd.110
330 U. as outlined in Gulf Oil Corp.2d 200 at p. In view of current American law.  2 Lloyd's Rep. v. 1955).2d 721 at pp. S. S. it tends to be the paramount factor in that analysis. as was done in the Canadian Act of 1910. for example. 1967 AMC 589 at p. S. for example.S. Swedish American Line upheld a jurisdiction clause and declared:107 “…if Congress had intended to invalidate such agreements. 107 224 F.106 There were radical swings of the legal pendulum. 501 (1947). Union Ins. Gilbert. v. before a relatively stable doctrine of forum non conveniens and jurisdiction clause enforcement were arrived at in the United States. 377 F. 110 In accordance with the holding in Indussa.S. 203. American courts began systematically invalidating foreign forum selection clauses as contrary to sect. 1688 (2 Cir. In 1955. 202. It is only when the clause or agreement concerned fails the test of enforceability under those principles that forum non conveniens principles.. 723-725.2d 806 at p. such clauses were treated much more strictly. v.Elikon 642 F.  2 Lloyd's Rep.
M/V Wesermunde 838 F. 2002). Although the clause provided that disputes “… shall be determined by the Court of Bremen”. 1998) (“All and any claims and disputes under the Bill of Lading shall exclusively be referred to [a]rbitration in Bremen [Germany] . however.D. 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”
. by which the parties simply agree to the jurisdiction of a specified court without expressly excluding jurisdiction elsewhere.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. 1442-1444.V.) v. Lucent Technologies.S. See also Union Insurance Society of Canton v.3d 923 at p.b. See. S. Tokio Express.2d 1576 at pp. 1418 (1972).S.3d 51 at p. v. 2002). Inc. supra.b. which obligates the parties to the bill of lading (or other contract) to litigate in one specified court.”).. 158 (C. 156 F. In the case at hand.S. Novocargo USA Inc. Co. 1994) and other authorities collected there. N. 1982 AMC 588 (4 Cir.m. 531 (D. 1999).112 recognized a jurisdiction clause giving jurisdiction outside the United States. Elikon 642 F. 111 407 U. 1. 2002 AMC 1477 at p.Supp. Md. and relied on Indussa Corp.D. Ferrostaal.G. 1987).D. Compare with Reed & Barton Corp.  ETL 57 (S. 1972 AMC 1407 (1972) This was a freely negotiated private international agreement for towage. Sun Castor 1978 AMC 1756 (D.111 The United States Supreme Court. the mere use of “shall” did not make the clause “mandatory”. Alas. v. 1090 (S.2d 1441 at pp.V. v. Tokio Express 1999 AMC 1088 at p.Supp. Acciai Speciali Terni USA Inc.  2 Lloyd's Rep.m. international contract should be enforced. 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. Ranborg. 114 See John Boutari & Sons v. M. 1996) and listing. instead. 112 (The Chaparral) Unterweser Reederei G. 2002 AMC 314. 2d 675 at p. 1981). This followed the English tradition of giving effect to jurisdiction clauses. v. M. N. 1988 AMC 318 at pp. 1580-1581. Chemical v. Supp. 156 F. in an international towage case. v. v.2d 721. as grounds of non-enforcement of a foreign forum selection clause: 1) fraud or overreaching. v. 928 (4 Cir. The U. 1972 AMC 1407 at p. Inc.D. as it did not exclude jurisdiction elsewhere or employ other mandatory venue language. Lloyd’s of London 94 F. both the American and English Courts ordered suit in England under the same clause in the same matter. A bill of lading of course is not freely negotiated but a standard-form contract. 678.S.Y. aff’d without opinion sub nom.D. N. 115 For an example of a purely “permissive” forum selection clause.”). v. citing Allen v.). v. Attiki Importers 22 F. Supreme Court held that a foreign jurisdiction clause in a freely negotiated. 210 F. 320-322 (5 Cir.Y.Y. 2334-2335 (11 Cir.114 as opposed to the merely “permissive” clause. in a matter which was subject to suit simultaneously in England.2d 372. 2002).S. 113 407 U. M/S Bremen (and Unterweser G.N. State Establishment for Agricultural Product Trading v. 2002 AMC 528 at p. 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. 15.Y.  ETL 57 (S. 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.H..24
Foreign jurisdiction clauses presumptively valid
A major change in judicial attitudes towards foreign forum selection by contract occurred. See also Hartford Fire Ins.115 A jurisdiction clause may still be
Finnrose 826 F. M/V Sersou 1999 AMC 2352 (S. 53 (2 Cir.3d 355 (2 Cir. 2002). 1 at p. 1988). Inc. the Court refused to follow Bremen. Novocargo USA Inc. pointing out that COGSA was not involved in that case. Central National-Gottesman. 3) fundamental unfairness of the chosen law depriving the plaintiff of a remedy or 4) a strong public policy of the forum.H..2d 372. 2002 AMC 314. N. M/V Berane 181 F. 1479 (S. In M. for example.2d 458 at pp. Zapata OffShore Co. The same hostility was demonstrated with respect to foreign arbitration clauses. S.Y.A. Supp. The freely negotiated agreement must be unaffected by fraud or undue influence or overreaching bargaining power. 462-463. see Hartford Fire Ins. M/V Gertrude Oldendorff 204 F. 1988 AMC 2328 at pp. Zapata Off-Shore Co. Co. 1977).
Cal. and related inconvenience. an exception giving the carrier an option to sue the merchant elsewhere than in the courts of Hamburg. 1050-1051 (C.Y. in its decision in Green Tree Financial Corp. because no evidence on the prohibitive expense of arbitrating had been adduced by the party seeking to circumvent the agreement.
. – Alabama v. Ltd. 2004 AMC 769 (Fla. 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. 116 See.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. 2002). Hapag-Lloyd Container Line 2003 AMC 1175 (S. 117 499 U. for example. 2002). Ltd. 183c. airfare and hotel bills). N. which did not vitiate the mandatory character of the clause. The argument that enforcement of a jurisdiction clause should be denied where the clause required plaintiffs to incur substantial “transaction costs” (e.116 Because foreign jurisdiction clauses and agreements are now presumptively valid in the United States. Burns v.D. 4 District. however.D. 867 So. 2002 AMC 1477 at p. . Inc. that the words “shall” or “must” are not essential to the mandatory character of the clause.” (Central National-Gottesman. Supp.”. Intermetals Corp. Appx. Hanover Intern. 2004). however.J. 118 Ibid.. travel expenses. weaken. 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.118 More recent decisions have similarly downplayed the relevance of inconvenience in forum selection clause analysis.g. 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. for example.Appx. 2001 AMC 2417 at p. Inc. or “[a]ny disputes under the Bill of Lading to be decided in London according to English Law. 2003 AMC 2608 (N. M/V Gertrude Oldendorff 204 F.D. Dist.” The second sentence was held to be a qualification on the first sentence. was rejected by the Supreme Court in Carnival Cruise Lines. 2001). 678. Supp.S. 2004). Ct.D. but merely permitted. Cal.Y. that the Court. Supp. N. Aktiengesellschaft Fur Industrie Versicherungen 188 F.C. 1479 (S. 2003). 79 (2000). Supp.g. where in addition to providing for the exclusive jurisdiction of a given court. AMC at pp. found the arbitration clause in that case to be enforceable. M/V Pergamos 1996 AMC 2022 at p. U. Lines. Co.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). where the Court found to be mandatory. Note. Inc.N.S. which may be just as mandatory where “will” is used. 491 (3 Cir. 2422 (D. 1704-1705. v. as the first sentence contemplated. App. 2030 (S.119 Nevertheless. which made it unlawful for the owner of a maritime passenger carrier to "lessen. M/V Tramper 263 F. See Vogt-Nem. or avoid the right of any claimant to a trial by a court of competent jurisdiction. v.D. 2002). Mitsui O. Fla. v. 1995)). 2003 AMC 21 at p. an arbitration agreement could be held unenforceable. Cal. Shute. 2002). M/V Tramper 263 F. 121 Ibid at p. v. Note.. at pp. of the Southeast v. 585. COSCO 2004 AMC 1048 at pp.25 mandatory.D. v. v. 1991 AMC 1697 (1991). 459.2d 1191. Tokio Marine and Fire Ins. The case concerned a consumer finance contract containing an arbitration agreement which omitted any details regarding filing fees and arbitration costs.S. permitting the carrier to sue the merchant in the latter’s place of business). 2003 AMC 21 at pp. rather than permissive.27 (N... 1233. v. by a 5 to 4 majority. Inc. the United States Supreme Court.2d 1226 at p. 46 U.. 92. in order to litigate in the designated court..K. however. The relevant enactment in this case was the Limitation of Vessel Owners’ Liability Act of 1851. 2d 675 at p.2d 1226 at p. aff'd 36 Fed. v. Co. 119 See. 2003). it also qualifies that provision by an exception (e. 120 513 U. Barbara Lloyd Design. 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…. Inc.S. Vogt-Nem.2d 454 at p.D. 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. Hartford Ins. rather than permissive. Radisson Seven Seas Cruises. Inc.S. 24-25 (N. 596-597. 1231. Randolph.
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).
This is particularly true in actions in rem. COGSA.A. however. Va. 794. v.V. took the opposite position in Fireman’s Fund Ins. Cho Yang Shipping Co. 2000 AMC 2947 at p. D. citing The Sky Reefer 515 U.. M/V Kasif Kalkavan 989 F. Supp. 1998 AMC 765 at p. 794. however. N. v. See.. 521 U.”148
2001 AMC 1692 (D. Co. which they have acquired by the suit already taken. 528.S. 1998 AMC 583.S. where the Court said that the D.S. of Canada v. The Supreme Court upheld a foreign arbitration clause even though it appeared in a ‘standard form bill of lading. of Canada v.3d 1336 at pp. 131 F. Carnival Cruise Lines.” 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. the unavailability of an in rem action in the designated foreign forum is irrelevant to the enforcement of the forum clause. AMC at pp.. 2000 AMC 2947 at p. See Allianz. Inc. Appx. 1995 AMC 1817.145 for example. 2955 (E. Inc.3d 1336. The Supreme Court also held that a ‘nonnegotiated forum-selection clause in a form ticket contract’ is enforceable against a consumer. 1703 (1991).S. M. 2955 (E. v. M/V Kasif Kalkavan 989 F. M/V Sky Reefer. 528 at p.S. N. 2000). Supp. Supp. ibid. But see also Hyundai Corp.D. 498 at p. 1997).’ See Vimar Seguros y Reaseguros. Similar positions have been taken by district courts in the Second Circuit.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. N.U.S. 794. 148 In Allianz Ins.R. 2001). International Marine Underwriters C. F. Note. 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…. however. 593. Co. under Rule 4(m) of the Federal Rules of Civil Procedure). 1998). S. See also Fireman's Fund Ins.R. 1339-1340. v. Ltd. cert. v. Therefore the mere fact that the forum selection clause appears in the standard form bill of lading does not render it invalid.A. 530. v. following M. 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. 2955-2956.Y. 499. the Eastern District of Virginia. 131 F. denied. Va. however. criticizing the Ninth Circuit’s view. M/V An Long Jiang 1998 AMC 854 (S. v. 587 (9 Cir. 1998).D. In Tokio Marine & Fire Ins.). 1991 AMC 1697.
. 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).147 holding that this purely “procedural” difference between American and Korean law was not a lessening of the “specific liability” imposed by COGSA. 1303(8)) to the ship’s own liability.C. 1998 AMC 765 at p.D. 1818 (1995). 2d at p.S.C. 131 F.Y. M/V D. 1339 (9 Cir. 1995 AMC 1817 at p.U.V. 1998 AMC 583 at p. 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. 1998). Atlantic court “appears to have wholly ignored” the reference in 46 U. S.S. 585.2d 787 at p. over whether the lack of in rem process in the selected forum abroad precludes enforcement of the jurisdiction clause. 499 U. 767 (S. M/V Turquoise. DSR Atlantic. 498 at p. International Marine Underwriters C.Y. 147 131 F. Supp. v. Co.2d 787 at p.R. Atlantic. 515 U.” (ibid. 921 (1998). 499. American courts appear divided. Allianz Ins. 2000). Shute.146 The Ninth Circuit.S. Cho Yang Shipping Co. 767 (S.S.D. Co. U. Atlantic on the point.” b) The parties should not lose rights already acquired
A change in jurisdiction should not cause the parties to lose rights. Co. 534. 1821 (1995). but that it merely presented “a question of the means of enforcing that liability.D. Supp.
The purpose of a change in jurisdiction is to provide cheaper. 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 1966 AMC 1217 (S. Cal. 324 (S. 1975).D.30 If the court is concerned that rights may be lost. Street. Margit. v. M/V Royal Container 30 F.152 In Sherkat Tazamoni Auto v.D.Y.1968 AMC 328 (S. 151 Great American Ins. 1967). 1998 AMC 603 [DRO] (2 Cir. 1999). 1966). v.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.S. however.D. N.D. v. Hellenic Lines. N.D.S. N. 1996). 462. where the bill of lading includes a clear and mandatory foreign jurisdiction or foreign arbitration clause covering the dispute in question. Co. Co. Nor will the U. Supp. Supp. Orient Overseas Line.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. 1605 (S. 322 (S. S. it is doubtful today whether the mere inconvenience of the clause
Snam Progetti v. N. Gilbert 330 U.150 the Court declined jurisdiction “subject to the provision that none of the parties be prejudiced as to any rights they had on . In Snam Progetti v. Inc. Carnival Cruise and The Sky Reefer. the date of filing of this lawsuit.Y. Lauro Lines 387 F. 322 at p. 1974). 2758 (N. 1999). in such a situation.
. 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. Supp. Wash. quicker and more convenient justice.. Lauro Lines. Man B&W Diesel AG 121 F. N. 33. v. 1974).N. 153 277 F.Y. In view of the decisions in Bremen.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. order the defendant to waive the statute of limitations in the chosen forum abroad.”149 In Hartford Fire Ins.Y. M/V Hyundai Freedom 1999 AMC 1603 at p. v.3d 24 at p.154 after the shipowner had petitioned in New York to limit its liability following a total loss at sea. 155 387 F. Chiyoda Fire & Marine Ins.2d 661. 152 Gulf Oil Corp. and the cargo claimant deliberately takes suit in another court despite that clause. court. Sound Around Electronics. Ltd. 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. 2124 (W. 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. See also New Moon Shipping Co. and without taking any steps to protect the running of time in the designated forum. 1997). 501 at p.151 c) The convenience of the new jurisdiction is less important today
Older U. M/V Kapitan Byankin 1996 AMC 2754 at p.. None of the parties had offices in New York and the bill of lading called for suit in Italy under Italian law.Y.” Where there is a foreign forum selection clause in the bill of lading.D. 1999 AMC 1805 (S. Co.S. 508. of America v. In the S. Supp.D. 1976 AMC 212 at p.D. Rotterdam or Oslo.. however.
Cho Yang Shipping Co. 158 515 U. forum. in either case.S. M/V Kapitan Byankin 1997 AMC 2754 at p. 159 1996 AMC 2022 at pp. Cal. or tainted with fraud or overreaching. 15. the Bremen Court concluded that a ‘forum clause should control absent a strong showing that it should be set aside. 2956 (E. as was held in Bison Pulp & Paper Limited v. 1972 AMC at 1419). Thus.S. 131 F. COSCO 2004 AMC 1048 at p.D. 1 at p. 499 U. 536.’ ‘ Carnival Cruise Lines. 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. Supp. 417 U.S. accord Scherk v. 506. at 7. 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..2d 787 at p. See also Allianz Ins. court to stay proceedings conditionally or to dismiss them. 1420 (1972).S. 1823 (1995).Y. 518 (1974).S. Ltd. 157 407 U.” The finding in Carnival Cruise Lines v. at 17.D. Alberto-Culver Co. 528 at p. 1995 AMC 1817 at p.31 to one party to the contract would permit a U. Inc. Absent that there is no basis for concluding that it would be unfair. Co. the ultimate decision depends upon the exercise of judicial discretion.. 592. 1418. 1972 AMC 1407 at p. even when the forum clause designates a remote forum for the resolution of conflicts. 2758 (N. 585. Supreme Court in Bremen.
. inconvenience can be considered only if it is grave enough to render the clause unenforceable as being unreasonable or unjust. v..S. 795. 2000).” Proving so high a level of inconvenience is no easy task. Cal. 1972 AMC at 1412. N. or repugnant to a strong public policy of the U. reinforced the limited role that the factor of “inconvenience” now plays in assessing the enforceability of such a provision in American courts. Ltd.S.S. 2004). 1702 (1991) (quoting Bremen.D. Co. 18. see Great American Ins. Va. 1995). Nevertheless.D.S. 1050 (C. 2031-2032 (S. the size of their claims.. V. Rather. ‘the party claiming (unfairness) should bear a heavy burden of proof. 1996). 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. where the difference between forum non conveniens dismissals and dismissals for improper venue (because of a foreign forum selection clause) was emphasized. and the relative burden on the carrier. v. 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.”
In this regard.’ 407 U. 1991 AMC 1697. 407 U. or unreasonable to hold that party to his bargain. unjust. Shute. Tokio Marine and Fire Ins. Co. 2000 AMC 2947 at p.156 In this regard. of Canada v. the U.
N.Y. 2000). U. COGSA (46 U.Y.D.Y.S.161 d) Must not contravene sect. 595. where although Korea (the foreign jurisdiction specified in the bill of lading) would permit suit against only the shipowner or the charterer but not both.S. Pasztory v. 105 (2 Cir. “judicial economy” (the greater convenience of having all disputes settled in one forum. 663. 1996) (plaintiff failed to refute defendant’s showing that Australia. 163 See..D. the Court deciding that the claimant could subsequently sue the shipowner and/or the vessel in rem in the Southern District of New York. Appx.D. v. In Central National-Gottesman. see In re Rationis Enterprises. 3(8). 2003). Although such efforts usually fail. 1196 (E.164 for example. Supp. 2757 (N. where it appeared that Croatia applied the Hague Rules). aff’d without opinion. Great American Ins. permitting suit only against the shipowner as carrier.  2 Lloyd's Rep. 674-675 (S.D.S. 1806 (S. The U. 165 But see also Hyundai Corp. 3(8)
In Indussa Corp. 1967). the vessel owner had waived enforcement of the forum selection clause by filing a claim in the pending U. 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.S. Inc. Gertrude Oldendorff. so as to avoid the risk of non-enforcement of the Japanese law and forum clause in the bill. v.D. Supp. M/V An Long Jiang 1998 AMC 854 at p. COGSA.S. In Nippon Fire & Marine Ins Co.S. the contractual forum. 856 (S. however. 2002 AMC 1477 at pp. M/V Coral Halo 2004 AMC 273 at p. Conti Singapore 2003 AMC 667 at pp. 1967 AMC 589 at p. 164 204 F.
. Ranborg. whereas U. v. 283 (E. 1996) (a mere “conclusory allegation” that Croatia was “politically unstable and jurisprudentially immature” was insufficient to set aside the Croatian forum clause.S. 161 For an example of such serious inconvenience. however. action and availing itself of the limitation proceeding. Inc. N. the argument was accepted. Street. notwithstanding the demise clause in the bill. the U. S. Sound Around Electronics v. 961 at pp. COGSA.Y. 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. District Court therefore kept jurisdiction. 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." Accord: Glyphics Media. thus reducing litigation costs and the risk of inconsistent judgments) is refused as a ground for refusing to enforce a jurisdiction clause. Since Bremen and The Sky Reefer. 3(8) of U. 894 (S. where hundreds of plaintiffs around the world in a limitation of liability suit held bills of lading issued by the defendant with inconsistent forum-selection clauses.165
See. the Japanese ship manager agreed to waive the demise clause in the bill of lading.C.163 they can still be successful on occasion. under which foreign jurisdiction and foreign arbitration clauses are deemed presumptively valid.A. 680. M/V Kapitan Byankin 1996 AMC 2754 at p. 1483-1484 (S. because it would relieve or lessen the carrier’s liability contrary to that provision. Inc. of Panama 1999 AMC 889 at p. 1996 AMC 1189 at p.32 In most cases. for example. M. Croatian Line 918 F. N.Y. N. sect.160 Where many claims were involved in a limitation proceeding. 162 377 F. Supp.S.D.2d 200 at p. 1998).162after referring to COGSA. v. 2002). M/V Royal Container 30 F. however. D. Court of Appeals decided that a foreign jurisdiction clause was invalid generally. would not reduce the carrier’s liability contrary to COGSA).3d 432 (2 Cir. N. The Court noted. Inc.S. the Korean clause was upheld. for example. Co. 1999 AMC 1805 at p. because English courts applying English law would uphold a demise clause in the bill of lading. v. would permit suit against the time charterer who issued the bill as well as the shipowner. 3(8) of U. 1999).V. 101 at p. Cal.2d 661 at p.V. La. 2d 675 at p. 204.D. as judicially interpreted by American courts. an English law and jurisdiction clause was found unenforceable as lessening the liability of the carrier contrary to sect. 1303(8)). 1999). 201 F. so that giving effect to those clauses would “fragment this case beyond recognition”. v. 966-967. Va. M.
S. Conti Singapore 2003 AMC 667 at p. 574 at p. for example.S. v. 91. 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.D. the carrier had intended to cause the loss or had acted recklessly with knowledge that the loss would probably occur. Sligan Plastics Corp.e. 2003). N. Union Steel America Co. the foreign jurisdiction clause was denied enforcement on grounds of public policy.D.D. Supp. 2960 (D. COGSA. 2000 AMC 1717 at p. Conversely. in the U. Glyphics. 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.. 1998). 168 See.167 a Korean jurisdiction clause in a bill of lading was held to be invalid.170
2003 AMC 30 (C. S. where a Japanese forum selection clause was found null and void and unenforceable. Sanko Spruce 1999 AMC 366 (D. In these cases. 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. 169 See. even if negligent. v. Co. applying its law. 3(8) of U. the foreign forum selection clause has been denied enforcement. 170 For a similar European decision. 576. v. M.
. see Rechtbank van Koophandel te Antwerpen. 2000). will in fact lessen the carrier’s responsibility below the COGSA threshold.166 a bill of lading calling for German law and Hamburg jurisdiction contained a general liberties clause.  ETL 509 (E. 1997).S. for example.Y. where on-deck stowage constitutes.  ETL 453. because it appeared that Korean law would not grant the cargo underwriter claimant an action in subrogation. 1997 AMC 2954 at p. Federal Ins. In Gibbs International Inc.D. v. if and when interpreted by the designated foreign forum applying the designated foreign law. Cal.A. Inc. the deck stowage) was reasonable. Inc. 2003). would not break its package limitation under German law. M/V Spring Wave 92 F. La. The carrier’s act in stowing the cargo on deck.S. and the shipper would be deemed to have consented to deck stowage. The American court noted that such a clause would be upheld in Germany. where a Belgian Court decided that a bill of lading clause granting jurisdiction over cargo claims to U.169 there must be proof positive that the foreign court. if it could not be established that those courts would apply the obligatory Hague/Visby Rules enacted by Belgium’s Maritime Law. M/V Ocean Sunrise 2003 AMC 2200 (E. N. which the insurer would enjoy under COGSA. La. M/V Nedlloyd Holland 1998 AMC 2163 at p. v. Because it was clear that a German court would take a view so different from an American court of the effect of the liberties clause. unless cargo could prove that in doing so. unless consented to expressly by the shipper or permitted by a general port custom. Co. Majestic Electronics. 1701(C. permitting the carrier to stow a helicopter on deck. unless he had immediately objected to it on receiving the bill of lading. Nippon Fire & Marine Ins.D. 1998). M/V OOCL Faith. under sect. M/V Jin He 1999 AMC 1700 at p. Cal. 1999). 2166 (S.C. v. There are also decisions in which American courts.Y.D. v. 1719. 2002 (The Dymphna. N. have been uncertain whether particular bill of lading clauses. June 18.J. an “unreasonable deviation” from the contract of carriage. unless the carrier could prove that the deviation (i.. 2001).S. would or would not in effect be construed so as to relieve or lessen the carrier’s liability contrary to sect. See also Kanematsu U. art. v. COGSA package limitation for resulting cargo loss or damage.33
In Heli-Lift Ltd. courts would be void by Belgian law. facing contradictory affidavits from foreign law experts. Inc. prima facie.168 One point is very clear in this regard.V. 675 (S. 3(8) of COGSA.
2002 AMC 1477 at p. What is reasonable is a question of fact for the trial court to decide. v.K. See Effron v. v. citing Haynsworth v. 2002). Supp.D. 400 (S. N. N. 1363 (2 Cir. Supp. v. Supp.D.3d 956 at p. Dist.S. S. v. or (4) if the clauses contravene a strong public policy of the forum state” (citations omitted). Lines Ltd. 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.. v.2d 1353. Dk. 259 (2 Cir. Tsuneshima Maru 197 F.. the basic criterion (which is perhaps a summation of all the other criteria) in refusing or accepting jurisdiction has been that it be “reasonable”171 for the parties to litigate in the chosen jurisdiction.D.D.2d 806 at p.177
Muller & Co. 1479 (S. v. at pp. Margit 1966 AMC 1217 at p. 1966). Glyphics Media. such as by fraudulent means. 808. forum’s public policy172). 1971. S. 1996 AMC 253 at p. N. The fact that plaintiffs in many jurisdictions are permitted to plead by deposition often precludes acceptance of the “day in court” argument. 909 at pp. 177 Barbara Lloyd Designs.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. 1418 (1972). which factors. cert. M. 510 U. 672 (S.34 e) Reasonableness
For a great many years. Subsequent U.V. 174 See also Asoma Corp. Inc. 945 (1993). fraud or overreaching. 1218 (S.Y.S. 2381 (S.”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”. at pp.176 Public policy must be “strong” in order to defeat a choice of forum provision. however.’ due to the grave inconvenience or unfairness of the selected forum. Conti Singapore 2003 AMC 667 at p. See also Restatement (Second) on Conflict of Laws. and is also usually dismissed as a ground of nonenforcement. Corporation 121 F. 2003 AMC 2608 at p. or violation of the U.D. 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. N. Takemura & Co. 176 Barbara Lloyd Designs. N. 1961).2d 675 at p. (2) if the complaining party ‘will for all practical purposes be deprived of his day in court. as where one party takes unfair commercial advantage of another. Central National-Gottesman. 2616 (N. 7 Ed. 175 Barbara Lloyd Designs. 2003). 67 F.S. Gertrude Oldendorff 204 F.Y. Swedish American Line.D. 678. The Second Circuit. Inc. Mitsui O.
. Sun Line Cruises. denied.S. ibid. 224 F. N. 172 407 U. 451. in Roby v. Inc.S. 11. 1972 AMC 1407 at p.. 911-912. 1220 (S. 1129. for example.2d 447 at p. 2002 AMC 2377 at p.V. Inc. are rarely accepted as grounds for refusing enforcement to an otherwise valid forum clause in the United States.Y. 1962 AMC 1217 at p. 15.Y. Inc. Inc. M. 80. 2617-2618. of Lloyd’s. M/V Southgate 2000 AMC 399 at p.S. Corp. 2002) (bill of lading cases relying on the same criteria). 2003). 1997 at p. 965 (5 Cir. 1955). 1689 (2 Cir. Ltd. ibid. 1995). 1 at p. Jockey v. (3) if the fundamental unfairness of the chosen law may deprive the plaintiff of a remedy. sect. 1993). 1955 AMC 1687 at p.Y. decisions have generally not strayed far from the three very general grounds of unenforceability articulated in Bremen (injustice or unreasonableness (unfairness).3d 7 at p. 173 996 F.S.Y. 1999). 2618-2619. Leverkusen 217 F. Ct. 1997) and Black’s Law Dictionary.
Companhia Fabricadora De Pecas. the port of discharge.35 In Allianz Ins. 770 (S.D. of Canada v. Nor did the provision require suit to be brought exclusively in any one specific forum.C. 2003). 489-490 (6 Cir. Inc. Fritz Transportation International. particularly as regards delays for trial. were invoked in enforcing the jurisdiction clause. was therefore not enforced.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. 1996 AMC 769 at p.e. the bill of lading clause specified United States law and U. where the carrier’s option to sue in either Mexico City or Rio de Janeiro was upheld.
.” Mere procedural differences between trial in the designated court and trial in the U. 182 See also Tokio Marine and Fire Ins.D Cal. Other evidence indicated that Brazilian courts were fully competent and that trial there. Tex. 790.D. See also Tokio Marine & Fire Ins. N. Cho Yang Shipping Co. Cal.178 the Court noted that: “Additional considerations include the relative bargaining power of the contracting parties.D. 2001).) forum applied. Co. with other authorities cited there. 1992).2 million U. which parties must have considered when negotiating the agreement. 110 (N. v. at pp. Dismissal on forum non conveniens grounds was also denied. does not justify refusal to enforce the clause. because the forum selection clause in the bill of lading required that suit be brought exclusively in one or other of those fora.186
131 F. 184 2002 AMC 106 (N. although more inconvenient for one party. was not an adequate ground for nonenforcement of an exclusive Indian law and forum selection clause in an ocean carrier’s bill of lading. 179 973 F. 489-490): “speculative concern regarding fairness of a foreign court. S. M/V Turquoise 2001 AMC 1692 at p. have generally been found insufficient to constitute “unreasonableness” justifying sidestepping of the designated forum. The clause failed to specify when the carrier had to exercise its option and when the “default” (i..S. 1995).S. 1694 (D. and the fact that foreign witnesses were permitted to testify by way of affidavit in India. the awarding by Brazilian courts of judgments in cruzeiros rather than in dollars.D. COSCO 2004 AMC 1048 (C.184 In that case.180 Similarly. Supp. 18 at p.. M/V Conti.S. Ltd.183 On the other hand. Co.. v. and the alleged difficulty of getting money out of Brazil..S. and the convenience and relatedness of the forum to the contract. 183 Ibid.D. v. 2004).179 the unavailability of a jury trial in Brazil. at p. Cal. jurisdiction. 20. 2001). the presence of bad faith. the lack of trial by deposition. 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. were all dismissed as grounds of non-enforcement of the Brazilian jurisdiction agreement. 2001). Co.2d 487 at pp. as security. the requirement to post over $2. M. in Glyphics Media.V. In Interamerican Trade Corp. v.185 The clause. 2000 AMC 2947 at p. provision of an adequate remedy for the aggrieved party. Va. held to be “unreasonable”. the slowness of the Brazilian judicial process. 186 2002 AMC 106 at p. the transshipment port or the place of delivery). 2000). 2950 (E. the port of loading. was nevertheless not unjust.” 181 2003 AMC 667 (S. Ltd. U. 185 Compare with Industria Fotografica v.181 the allegedly “deplorable state of India’s court system”. unreasonableness was found in the “floating choice of law and jurisdiction clause” considered in LG Electronics Inc. Jalisco 903 F. Supp. even where a non-vessel-operating common carrier (NVOCC) had issued its own bill of lading to the shipper conferring exclusive and mandatory jurisdiction on the “New York District Court”. 180 The Sixth Circuit noted (ibid. v.Y. 673.2d 787 at p. the place of delivery.
D. 1895 at pp. The Vessel Bay Ridge 703 F. 2 Ed. 1422. the U. Rev. however. 2732 (9 Cir. and concluded that191 “…the language of the [Bremen] clause is clearly mandatory and all-encompassing. 1983) re Supplementary Rule C. Carbon Black Export.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. 408-409. AMC at p. 2. 1408 (1972). 1987): “Bremen. so the forum selection clause was not enforced. See also J. See also Tetley.. 1995). Monrosa v.law. where the jurisdiction clause in the towage contract stipulated that:190 “…(a)ny dispute arising must be treated before the London Court of Justice". See Tetley. 384. 180. 406407. Accordingly.. Inc. 321 (5 Cir. however. 1959 AMC 1327 (1959).mcgill. 944. 190 407 U. 2003). M/V Finnrose 826 F. 20. ibid. Attachment and Related Maritime Law Procedures” (1999) 73 Tul. 429-431. the wording of the foreign forum selection provision has been held wide enough to encompass claims in rem as well as those in personam.S. Supreme Court distinguished Monrosa. owners or agents of the vessel. Mediterranean Shipping Co.htm. 189 359 U.”
.. 1983 AMC 2719 at p. most modern foreign forum selection clauses are not limited to claims against the master.v. The arrest of the ship in rem under Supplemental Rule C gives the Federal District Court jurisdiction.187 f) In rem . See also Conklin & Garrett. but where the ocean carrier was also faced with crossclaims by co-defendant inland carriers arising out of the same facts.2d 1441 at p. 191 Ibid. at p.36 Where a bill of lading forum selection clause required the cargo claimant to sue the ocean carrier in the Southern District of New York. the language of the clause in the Carbon Black case was far different”. v. 1 at p. International Maritime and Admiralty Law.S. See Tetley. Co. Maritime Liens & Claims. 1972 AMC 1407 at p. Geneva 2003 AMC 2511 (S. Dashwood Shipping. The admiralty attachment under Supplemental Rule B also gives jurisdiction. S. 1933-1936 and on-line at http://tetley.S. where the clause was so much more narrowly drafted. overrules the broad reading this Court gave to the clause in Monrosa. 1443. The bill of lading jurisdiction clause did not specifically refer to in rem proceedings. 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. 1995 AMC 2730 at p.
Dias v. 1988 AMC 318 at p. Zapata Offshore Co.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. itself. S. Indeed in M/S Bremen v. it was held to be “unreasonable and unjust” to require the ocean carrier to defend the claim and cross-claims in two different districts. Lauritzen A/S v. Fla. 418. 2003 at pp.United States
A very particular problem arises in admiralty in respect to the enforcement of forum selection clauses. 1998 at p. U.ca/maritime/arrest.2d 381 at p. Ltd. “Arrest.” The clause was held to be insufficiently specific to cover the in rem claim and thus the District Court could keep jurisdiction.S. Ltd. The jurisdiction was also convenient to the parties.A. at p. L. see also Alyeska Pipeline Serv. Tetley. although reading: “No legal proceedings may be brought against the Captain or shipowners or their agents except in Genoa. Unlike the clause in Monrosa. 2721 (9 Cir.
decline jurisdiction and dismiss the attachment or order the release of whatever security the defendant has posted. 498. 1.Y.3d 1336 at p.V. Lucent Technologies. which has obtained jurisdiction by an arrest in rem (under Supplemental Rule C) can nevertheless give effect to a jurisdiction clause and decline jurisdiction. Code sect. . M. at p. 196 Teyseer Cement v.Y. The suit is transferred. 240 F. 1984). which has acquired jurisdiction by an admiralty attachment (under Supplemental Rule B). N. although some other jurisdiction is more appropriate." The Ninth Circuit interpreted this clause to include in rem claims. 1995). 535. under this Bill of Lading .D. 1995
. (citations omitted). 197 Signed at Hamburg.D.D. Co v. 210 F. Supp. In Reed & Barton Corp. 1270-1271. Jalisco 903 F. Halla Maritime 583 F.197 at art.S. 198 28 U. N. 584 (9 Cir. 1337. unlike the clause considered in Monrosa.N.199
131 F. (4) the cost of obtaining the presence of witnesses. 18 at p.S. Supp. Inc.Y.37 Again in Fireman's Fund Ins. 20. Supp.2d 532 at p. (2) the convenience of material witnesses.D. v. . give effect to a clearly worded jurisdiction clause. 2002): “These criteria include: (1) the convenience of the parties. M. 1404(a) provides: "For the convenience of the parties and witnesses.D.b." For an example of the use of this provision in a case involving a forum selection clause (in a cruise passenger ticket). 1611 (E. see Lurie v.S.V. 1996 AMC 769 at p. DSR Atlantic. 1997). Tex. .
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. Convenience is the main criterion. in the interest of justice. Lim.S. Inc. The parties agreed to the jurisdiction choices in the contract. District Court pointed out that.194 In the same way that a court. 2004 AMC 1278 (S.V. . 194 Ibid.193 where the clause similarly subjected “… any claim or dispute arising under this Bill of Lading”. provide useful rules and procedures when suit has been taken by an action in rem. Tokio Express. and (8) the interests of justice in general. 1090) also cited Industria Fotografical Interamericana v. M.m. v. Supp. 1978. the U. Norwegian Cruise Lines. 770 (S. . Procs.H. this clause was broad enough to cover in rem claims. 1998 AMC 765 (S. 1972 AMC 1407 (1972). 1268 at pp. 199 See Norfolk Dredging Co. The Court (at p.196 The Hamburg Rules. 2002 AMC 1608 at p. although it did not mention them expressly. See also International Marine Underwriters v.192 the clause stated: " . supp. aff’d without opinion sub nom. 1992. 193 1999 AMC 1088 (S. g) Transfer within the U.V.195 so can a court. (5) the relative ease of access to sources of proof.. 1091. 2004). 1998). (7) where the events in issue took place. 305 F. Tokio Express. to German law as determined in the “Hamburg courts to the exclusion of the jurisdiction of the courts of any other place”. Ltd. (6) calendar congestion. M/V Kasif Kalkavan 989 F. . a district court may transfer any civil action to any other district where it might have been brought. Wash. shall be brought before the Seoul Civil District Court in Korea" to encompass in rem claims. and in force November 1. Zapata Off-Shore Co.” 195 M/S Bremen (and Unterweser G.) v. 1985 AMC 356 at pp. 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. 1998 AMC 583 at p. 359-360 (W. any claim or dispute arising hereunder or in connection herewith shall be determined by the courts in Seoul and no other courts. see also In re the Complaint of American President Lines.2d 352. Va. 21(2). 2000). 407 U. on March 31. 1999). (3) the availability of process to compel the presence of witnesses.D.3d 355 (2 Cir. M. where the Court interpreted a clause that read "any and all action . but only upon the defendant furnishing security to ensure payment of a subsequent judgment.
not as principals. 464-469. Supp. Glyphics Media. the shipper or the subrogated cargo underwriter). 2002 AMC 1598 at p. 2002).Y.Forum Non Conveniens Introduction
It was the practice and tradition in the United Kingdom to jealously guard the jurisdiction of its courts.D. M/V Hyundai Liberty 294 F. Other factors that inform the Court’s inquiry are intermingled with these considerations. Corporation of Lloyd’s 999 F. so that it becomes “foreseeable” that they will be so bound.D. 677 (S. Va. See also International Private Satellite Partners.A. Ltd. 204 The Fehmarn  2 Lloyd's Rep.  2 Lloyd's Rep. Supp.2d 118 at p. third parties have been held bound by forum selection clauses in various types of contract. 1985). 2000 AMC 2947 at pp. 514. Supp. N.). 203. v.Y.A.R. 2003).K. and the public interest in the local adjudication of local controversies. but it is subject to the overriding principle that no one. Kukje Hwajae Ins. 975 F. Allianz Ins. 626 at pp. Dukane Fabrics Int’l Inc. 1980). 191-194 (H. App.V. 791. Paterson. United States 883 F.C. v. 341 (S. 1988) (perfume dealership contract). 202 A NVOCC is “a common carrier that does not operate the vessels by which the ocean transportation is provided. 1991 AMC 302 (summary) (D.. where Denning. 32 F. 483 at pp. 197 at pp. 2000). 2303.) Ltd. N. 2951-2952 (E.P. 203 Indemnity Ins.” 200 See.Supp. v. can oust these Courts of their jurisdiction in a matter that properly belongs to them”. v. Supp.C. and is a shipper in its relationship with an ocean common carrier.2d 206 at p. S. L. Inc. Zochonis (U.D. 858 F. v. Lucky Cat Ltd. 485-486 (W. the shippers have been held bound by the forum selection clauses of the ocean carriers’ bills of lading. Inc. Supp. see Lord Wilberforce in The Atlantic Star. 493 F. 629-630 (S.Y. See National Customs Brokers & Forwarders Ass’n v. 101. 201 See. 1985 AMC 1192 at pp.201 In particular. v.2d 509 at p. the existence of a forum selection clause.. Inc. Cho Yang Shipping Ltd. for example. but merely as agents of the shippers. for example. Farrell Lines. 1)
The United Kingdom . 436 at pp.2d 93 at p.Y. L.D. 209 (7 Cir. by his private stipulation. Compania United Arrows. v. For a useful history of the law of forum non conveniens in the United Kingdom.38
Jurisdiction clauses and third parties
In the United States. 2158-2160 (C. the relative familiarity of the courts with the applicable law. NVOCCs perform a function similar to overland freight forwarders. 1989). 890 F. 175 at pp. of Canada v. may be the owner of the goods. Conti Singapore 2003 AMC 667 at p. 1993) (contract for membership in insurance market).  A. (Emphasis added). 1997) (contract for satellite communications services).D. Inc. where freight forwarders or NVOCC’s (non-vessel-operating common carriers ) contract with ocean carriers. standard-sized reusable containers that can be quickly loaded on and off ships and onto trucks or other types of transportation. 551 at p. of North America v. judicial economy.N. Gucci Am. consolidating small shipments from multiple shippers into large. Included are the original choice of forum. Hugel v. N.C.L.” See 46 U.D. Co.Y.J. 308. 202 at p.) and Adrian Briggs “The staying of actions on the
. 131 F. 1997) and other decisions cited there. 2001 AMC 2153 at pp. 1998 AMC 334 at p.200 Jurisdiction clause in marine bills of lading have been held applicable to third parties to those contracts (who.S. where they have been adjudged to be “closely related” to the dispute. 1995).3d 1171 at p. 1175. 555 (C. D. N. 1702(17(B). Columbus Cello-Poly Corp.  2 All E. Hrelijin 600 F. note 5 (9 Cir. Co.Y. Schneider Freight USA Inc. N. 315 (S. the enforceability of the judgment. Cal. 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. depending on the case. Co. M.D.204 Those courts have the reputation of giving quick and fair justice and. 1602 (9 Cir. 1193-1194 (S.2d 787 at p. 126. citing Manetti-Farrow. 2001). 207-210. Cir.203
X. for that reason
” The next step was MacShannon v.C.).  1 All E. 382 at p. but their Lordships rejected the technical argument that they were not entitled to consider such an offer made after the commencement of proceedings.an update”. as Kipling more forthrightly phrased it. two conditions must be satisfied. it is a good place to shop in.R. 181 (H.” To which quotation. 197. at p. and the question would be whether the defendants have clearly shown that to allow the case to proceed in England would in a reasonable sense be oppressive looking to all the circumstances including the personal position of the defendant. 175 (H.”
ground of ‘forum non conveniens’ in England today”. 201.U.  2 Lloyd's Rep. 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. 339 at p. 705 at p. both for the quality of the goods and the speed of service.). 197 at p. thereby modifying Scott L.
. Lord Diplock added in The Abidin Daver  1 Lloyd's Rep. 709 (C. 795 at p.C. It extends to any friendly foreigner. Rockware Glass Ltd. but if the forum is England. 398 (C. 'lesser breeds without the law'.  LMCLQ 360. 181. the passing of which many may regret. 200.A.
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.R. 451.L. 209  A.K. Lloyd's Rep. 630 (H.. All E.  1 K.” 207  A. at p.206 2) The modern regime . 208 Ibid.C. He can seek the aid of our Courts if he desires to do so.R. South American Stores (Gath and Chaves) Ltd.” Lord Denning's comment was specifically questioned “with all respect” by Lord Reid in The Atlantic Star. 206 The Atlantic Star  A. An offer to provide security was made after the proceedings had commenced.or. with all respect. 454.  3 All E.).A.R.  2 All E. when inhabitants of this island felt an innate superiority over those unfortunate enough to belong to other races. 436 at p.). at p.'s statement of the rule in St. where Lord Diplock established two rules:209 “In order to justify a stay. 436. 625 at p.L. 205 The Atlantic Star  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. 453. 341: “.B. A. 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.  2 Lloyd's Rep.. As Lord Reid said:208 “In the end it must be left to the discretion of the court in each case where a stay is sought.J. 175 at p.C.  2 All E. Pierre v.): “My Lords.  LMCLQ 227 and in a subsequent article “Forum non conveniens . 446 at p. 812.R. that seems to me to recall the good old days. You may call this 'forum shopping' if you please.L.
L. 10. 1 (H. in referring to a comparison of the quality of justice obtainable in England and elsewhere.L. 365 at p. there is of course authority binding on me which deplores any discussion or entertainment of those types of argument. having competent jurisdiction.e. Co. Kuwait Insurance Co.. are lacking in one respect a reasonable balance between the interests of the parties .. Lloyd.).”211 The foregoing views. in a foreign forum is to be based upon objective standards supported by evidence.and this feature was added by Lord Diplock in The Abidin Daver:212 “.). v.).R.210 Lord Wilberforce. at p.A. Furthermore. declared in New Hampshire Ins. noted: “It is not appropriate. referring to The El Amria  2 Lloyd's Rep. 361 at p. MacShannon. or methods. The Al Wahab and The Abidin Daver. i.J.40 In The Al Wahab (Amin Rasheed Shipping Corpn.. in which the case may be tried more suitably for the interests of all the parties and the ends of justice.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. 126-127 (C. to embark upon a comparison of the procedures. 371 (C.R. and The Spiliada.): ""Every court has different procedures.” Lord Diplock continued and summed up the change in the attitude of the English Courts:213 “My Lords.). in my opinion. per Lord Justice Brandon)..). or reputation or standing of the Courts of one country as compared with those of another (cf." 212  1 Lloyd's Rep. W. 203. the balancing of advantage and disadvantage to plaintiff and defendant of permitting litigation to proceed in England rather than.A. 119 at pp. 196 at p. 344. 343. or as well as. 215 Ibid. 214  1 Lloyd's Rep. Nothing is gained by any discussion of the relative merits of various different procedures. v.L. which is the appropriate forum for the trial of the action. 211 More recently.K. nevertheless. Lloyd's Rep. 339 at p. MacShannon. 375 (H.” Finally in The Spiliada. 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. 213 Ibid. L. Strabag Bau  1 Lloyd's Rep. the House of Lords had gradually adopted the doctrine of forum non
 2 Lloyd's Rep.” Thus by its decisions in The Atlantic Star. in the field of law with which this appeal is concerned. at p.L.L.
.. and Amin Rasheed. 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. indistinguishable from the Scottish legal doctrine of forum non conveniens. at p. approving a statement by Hobhouse J. 202 (H.  2 W. The El Amria U.
). 237 at p. In this latter judgment.). 242.). Lord Goff formulated an authoritative approach to forum non conveniens: 217  1 Lloyd's Rep. 219  1 Lloyd's Rep. 374 at p. 235 (C. The Sennar (No.A.  1 Lloyds Rep. 283-290. 527-528 (H.A.  1 Lloyd’s Rep. 226 Unterweser Reederei G. 12851286. See Akai Pty Ltd. and in many more recent decisions. 227 The Sennar (No. 220 Proving that it is quite fitting to cite oneself. no doubt with some satisfaction.A.C.I.C. (1996) 141 A.R. 1) 2 Lloyd's Rep. 237 at p. 593 at p. 171.L. Zapata Off-Shore Co..L. High C.). The rule has also been referred to in Australia.C. 327.L.A. 142 at pp. 221  2 Lloyd's Rep. The Benarty  3 W. 123-124 (C.4. assuming the claim to be otherwise within its jurisdiction. 223 Donohue v. 3) The rule in The El Amria
In the The Eleftheria. v.R. 2003 AMC 1280 at pp. 2002. 169 at p. 324. 119 at pp. Pakistan National Shipping Co.). Baghlaf Al Zafer v. 218  2 Lloyd's Rep.V. himself220 repeated the principles in the Court of Appeal in The El Amria221 and his criteria laid down in that case have now been taken as the basic statement on the question. v. In the El Amria itself.  1 Lloyd's Rep.  1 WLR 1367 and The MC Pearl  1 Lloyd's Rep 566. 237 at p. Citi-March Ltd. Ltd. 142 at p.). 225 The agreement must be valid and enforceable and the claim must fall within the scope of the agreement. (The Humber Bridge)  1 Lloyd's Rep 72. is not bound to grant a stay but has a discretion226 whether to do so or not. (No. 2)  2 Lloyd's Rep. including notably Z. At first this remarkable decision was not generally followed.C. The Regal Scout  2 F.23 at pp. 10 (H.).219 Brandon J. 123-124 (C.J. in fact failure to cite oneself is often evidence that the previous statement was erroneous.). 2)  2 Lloyd's Rep. (2) The discretion should be exercised by granting a stay unless strong cause227 for not doing so is shown. Baghlaf Al Zafer v. of Canada v. 856. 1095.). 459-460. how The El Amria had been cited by others.  1 S. ___ (Aust. 3 Ed. Neptune Orient Lines Ltd.41 conveniens.). See also The Nile Rhapsody  1 Lloyd's Rep 382 (C.  1 Lloyd's Rep 593 (P. 527 (H.  2 Lloyd's Rep. 119 at pp. 521 at p.21 to 4. 119 at pp. 4.).A. 851 at p. 521 at p.A. In The Spiliada  1 Lloyd's Rep. 432-433 (H. paras.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.b. per Lord Bingham).A.A. 158 at p. 1 at p. The Pioneer Container  2 A.). Standard Chartered Bank v Pakistan National Shipping Corporation  2 Lloyd's Rep 365.). ECULine.). v.222 reiterated by the House of Lords in Donohue v.R. The Pioneer Container  2 A. 244 at p. Lord Brandon noted. Armco Inc. (2003) 224 D. 385. Armco. 229 (C.  2 Lloyd's Rep.C.L. 123-124 (C.A. 324 at p. but Brandon L. 154 (C.m.H.). For further commentary on these points.L.L.L. The Iran Vojdan  2 Lloyd's Rep.R.A. 242.C. 222 See The Pia Vesta [198411 Lloyd's Rep. 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.). (No.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. 224 The El Amria  2 Lloyd's Rep. The Eleftheria rule has been cited in Canada in Agro Co. 605 (P. Pakistan National Shipping Co. 586-587. despite the choice of a court in Alexandria. and the defendants apply for a stay.. the English Court. 380 at p. Pompey v. 450 at p. jurisdiction was kept in England because the witnesses were English and related litigation had already commenced in
. 1)  2 Lloyd's Rep. 2)  1 Lloyd's Rep. See also The Sennar (No. see Briggs & Rees. 229 at p. for example.. The People's Insurance Co. 242. (4th) 577 at pp. The Eleftheria  1 Lloyd's Rep. 251 (C. Civil Jurisdiction and Judgments. 154-155 (C. 163 (C. N. 1082 at p.
Ibid. 425 at pp.
whether it differs from English law in any material respects. where the plaintiffs in a cargo claim failed
. 324.R. see also The Sennar (No. 246. But in The Bergen (No. 453 at pp. 286 at p. The Eleftheria  1 Lloyd's Rep. 236 Evans Marshall & Co. the foreign time bar might be grounds for refusing the stay. after all. v. 142 (N. 288.). 79. 2)  2 Lloyd’s Rep. Civil Jurisdiction and Judgments.A. H. 586-592. van Heeren  1 N.229 (4) In exercising its discretion the Court should take into account all the circumstances of the particular case.Z. 135 at p.A. The El Amria. v.L.  1 W. 169 at p. 288. 126-127.L.A. 288. or are only seeking procedural advantages. see Ocean Sun Line Special Shipping Co. 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. and the effect of that on the relative convenience230 and expense of trial231 as between the English and foreign Courts. 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. Fay (1988) 165 C. 550 and 552 (C. (ii) be unable to enforce any judgment obtained. supra. C. The Vishva Prabha  2 Lloyd's Rep. supra.A.A.233 (d) Whether the defendants genuinely desire trial in the foreign country. where there is no forum selection agreement. 232 The Eleftheria. The “strong cause” requirement was also strongly reaffirmed by the Supreme Court of Canada in Z.L. (4th) 577 at pp. the clearly more appropriate forum for trial. High C. ECU-Line N. and how closely. 228 The Fehmarn  1 Lloyd's Rep. 2002 at para. 511 at p. But see also The Pioneer Container  2 A. Stay was refused where the delay for suit had expired in the foreign court. at p. High C. 237 The Vishva Prabha  2 Lloyd's Rep. 229 Where there is a forum selection agreement.C. (2003) 224 D. 418 at pp.25 at p. made an admission in this case that “the burden of proof was upon him to displace the prima facie right of the defendants to have these proceedings stayed and to have the case tried by the chosen foreign tribunal”. Hyslop  3 N.  1 Lloyd's Rep.A. Conversely. See also in appeal  2 Lloyd's Rep.).).V.I. ibid.V.42 (3) The burden of proving228 such strong cause is on the plaintiffs. C.  1 S. 428-429 (Aust. 473 and 479. See also The Bergen (No. 461-469. Bertola S. 710 (C. Brandon.A.. v. and why England is. supra.Z. The Vishva Prabha  2 Lloyd's Rep.R. Pompey v. 237 at p. see Society of Lloyd's & Oxford Members' Agency Ltd.C.) and Kidd v. 349 at pp.). 172.). 230-231 (Aust. (5) In particular. See Briggs & Rees. 2003 AMC 1280 at pp.L.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. 76 at p. or more readily available. (b) Whether the law of the foreign Court applies and. see also The Pia Vesta  1 Lloyd's Rep.R. 4. 1287-1293. 293. 546 at pp. The Traugutt  1 Lloyd's Rep.). 514.C. where it was suggested that if the failure to protect time in the chosen foreign forum was not the fault of the claimant. 155 (C. 76 at p. See also The Sidr Bashr 235 The Lisboa  2 Lloyd's Rep. For the same principle in Australia. but without prejudice to (4). 125.L. where they arise. Ltd. 142 at p.). 721 (C. 377 and 385 (C. 286 at p. By refusing the cargo owner the right to arrest in England. Akai Pty Ltd. 2)  2 Lloyd’s Rep. where the advantage of the English process of discovery was held not to be a consideration.236 (iii) be faced with a time-bar237 not
England. 3 Ed. 450 at pp. 233 The El Amria. 231 The Traugutt. 551 (C. it would lose its only available security.R.A. 245. The People's Insurance Co.L.). v. who was Counsel for the plaintiffs. and in New Zealand. 710 at p. 324 (N. if so. may properly be regarded: (a) In what country the evidence on the issues of fact is situated. at p.Z. (1996) 188 C.A. 234 The Iran Vojdan  2 Lloyd's Rep. at pp.).232 (c) With what country either party is connected. 380 at p. Inc. the following matters. 2)  2 Lloyd's Rep. 197 at pp.  1 Lloyd's Rep 593 (P.R. 230 The Traugutt  1 Lloyd's Rep. 79 (convenience to the parties and to witnesses).Z.R. 387. 286 at p.R.).
90 at p. CSAV  1 Lloyd’s Rep. Metro v. Co. 239 Akai Pty. the Court held that the defendants should not be denied the right to rely on the foreign time-bar (which also applied under art. The stay was therefore granted.
. Howard. on the usual forum non conveniens principles applied in cases where there is no jurisdiction clause. 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. 242 British Aerospace Plc v. 405 at pp. 45. 104. 41 at p.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. 241 JPMSA v. 243 In both res judicata (also termed estoppel by judgment) and chose jugée. Sinochem International Oil (London) Ltd. the latter of which cases concerned a non-exclusive jurisdiction clause. 3) the same object. and even arguments as to multiple proceedings. Dee Howard Co. 405 at p. 679-680. Ace v.43 applicable in England. 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. People’s Ins. Ltd.  1 Lloyd’s Rep. 405 at p. (M. and the importance of Chilean law (the law of the place of performance of the bill of lading contract under the Rome Convention 1980). CSAV  1 Lloyd’s Rep.) It has been held more recently in England that this basic approach.242 4) Res judicata
A court must. of course. 376-377. See also Metro v. applies whether the contractual forum is England or another country. Mobil Sales and Supply Corp. (Comm) 33 at p. Co. v. 2) the same subject matter.).239 whether the jurisdiction clause is an exclusive or non-exclusive one. 670 at pp. 40. Metro v. 410. 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.  2 All E. Metro v. 410-416. after consideration of all relevant circumstances. Communication Telesystems Ltd. Ltd. 618 at p. 127. 368 at pp. Q.R. 238 The El Amria  2 Lloyd's Rep. See generally Phipson on Evidence. MNI  2 Lloyd’s Rep. 240 Mercury Plc.  1 Lloyd’s Rep. CSAV  1 Lloyd’s Rep. Ltd.N. where factors such as the greater availability of evidence in Chile. 38-23 to 38-64. 3(6) of the Hague and Hague/Visby Rules).C. This is not really a problem of jurisdiction or of forum non conveniens. v. Sweet & Maxwell. even when the cause of action in the subsequent proceedings differs from that in the original proceedings. 15 Ed. Furthermore. 2000 at paras. 410. were found not to be strong enough reasons to overturn the non-exclusive English forum selection clause. by taking suit there within one year of discharge of the cargo. requiring the plaintiff to show “strong reasons” why the contractually agreed forum should not try the case. v. 405 at p. racial. 119 at p.. not grant jurisdiction to a claimant if the same question has already been heard in a foreign court. Where a nonexclusive jurisdiction clause permits suit in or out of England. They have been added for the purposes of this commentary. but of recognition of a foreign judgment.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”.240 and whether the clause was negotiated by the parties or was only a term in a standard-form contract. gen. there must be the three identities: 1) the same parties acting in the same qualities. London.  1 Lloyd’s Rep.. ed. CSAV  1 Lloyd’s Rep. 410. or (iv) for political.  1 Lloyd’s Rep. Zurich Ins. whether or not the English proceedings will be stayed will be determined by the court in its discretion. 630.
245 the applicable law was the English version of the Hague/Visby Rules.C. L. stay was ordered.L. however. that article meant that an applicable foreign tonnage limitation statute. selecting as forum a court which does not apply the Hague/Visby Rules.C.244 5) Public policy. it has been held that there need not be identity as to the parties for collateral or issue estoppel to apply: W. 322 (1979). 3(8) of Visby or the U.S.  1 Lloyd's Rep.K. 67 at p.U.44 not be relitigated in the subsequent proceedings if it arises once again. Carl Zeiss Stiftung v. 935 (H.1972). – 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. 6-7 (H. not package limitation. 1002. 247  1 Lloyd's Rep. 1 at pp. 6) U. 3) there must be identity of parties.. and.D. In The Good Challenger  1 Lloyd’s Rep. . Therefore jurisdiction was retained by order of the Court of Appeal247 and the House of Lords. This would have meant a lower per package limitation and thus a violation of art. N. will necessarily be a violation of art.).L.C. the Hague Rules 1924. Roberts v.Y.J. meaning that the issue decided by the foreign court must be the same as that arising in the English proceedings. Hellenic Glory 471 F.  1 Lloyd's Rep. since art. could have resulted in Dutch law being applied (because the clause also invoked Dutch law).).E. Rayner & Keeler Ltd. 249  2 Lloyd's Rep. permitting transfer of the suit to Djakarta..S. v. 565. where the U. Carriage of Goods by Sea Act. and 4) there must be identity of subject matter. It was held that the transfer of jurisdiction did not offend art.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
. where issue estoppel is often referred to as collateral estoppel. being the Carriage of Goods by Sea Act 1971.L.A.248 In The Benarty. c. it was held that in order to establish issue estoppel: 1) the judgment must be given by a foreign court of competent jurisdiction. The damaged cargo had been shipped from London and continental European ports. L. 853 at p. Supreme Court severely limited the doctrine of mutuality. adopted at Lugano on September 16. In the U. 250 Hereinafter described as the Brussels Convention 1968 ( O.E. 299/32. 565 at pp. (No.A. 1979 AMC 2152 (S. because the carrier was seeking to rely on tonnage limitation. Inc. 2) the judgment must be final and conclusive and on the merits. In The Morviken.C. although the tonnage limitation under Indonesian law was much lower than under English law.S.C. 574-575. This is termed “issue estoppel”. 245  1 A.246 Transfer of the case to a Dutch court in accordance with the jurisdiction clause. 3(8) of the 1971 Act and of the Hague/Visby Rules. 19. 251 The Lugano Convention on Jurisdiction and Recognition of Judgments in Civil and Commercial Matters. 248  1 A. Their Lordships were careful to note that not every jurisdiction clause. 8 of the Hague/Visby Rules and of the 1971 Act used the words “any statute”.K.).11. 325 (C. particularly in cases where one of the
The Sennar (No.12. 3(8). Shore 439 U. 527 (H. was not affected by the provisions of the Rules.K. 1988 (O. 1979). 25. 77 (C. Supp. 319/9. 31. 2)  A. 521 at p. 246 1971 U.).e. 1971.J.249 however.). i.J.E. 1 (H.). 2)  1 Lloyd's Rep. such as the Indonesian Commercial Code. referring to Parklane Hosiery Co.) (where the case is styled The Hollandia). 244 (C. English law
The choice of forum clause (jurisdiction clause) must not reduce the carrier's responsibilities under the applicable law.A.L.
as of March 1. and therefore is still governed by the Brussels Convention 1968 in its relations with the other Member States of the E..R.C.A.45 defendants is domiciled in a member-State of the E. Co. The Court of Justice of the European Communities.). Delebecque. See Owusu v. Sun Life Assurance Company of Canada (UK) Ltd. Handelsveem BV of November 9. in respect of civil jurisdiction and the enforcement of judgments.A.-N. v. 337 at p. v. ibid. ibid. 227-228. 2002.) (giving effect to a service of suit clause providing for U. the validity of the clause must be assessed in accordance with the conflicts rules of the forum.. London. 877.A. Norway and Switzerland. This holding would seem relevant under EC Regulation 44/2001 as well. and American Motor Ins. 217-223.A.. under art.U.
.A. 257 The English Court of Appeal has requested the European Court of Justice to rule on this question of interpretation of the Brussels Convention. first para. (Case No. Re (No 2)  4 All ER 348. unreported. 255 EC Regulation No.A. Ph.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.S.  3 W. 253 See Briggs & Rees.U. Frangos  2 Lloyd’s Rep. Jackson (t/a Villa Holidays Ball-Inn Villas)  EWCA Civ.210 at p. For the text. 2000. 252 Harrods (Buenos Aires) Ltd.). 13 Ed. 17.L.). court. appeared to confirm this position. Zurich Ins. and in force in all Member States of the European Union except Denmark. para. Thus a U.J. L 12/1. See also Lawrence Collins. The English Court of Appeal decided in Re Harrod's (Buenos Aires) Ltd. eds.218 at pp. 256 Denmark chose not to bound by the EC Regulation. obs.  EWCA Civ.: C-387/98)  ECR I-9337. which became a party to the Lugano Convention in 2000). 260 See Travelers Casualty and Surety Company of Europe Ltd.A. 397 (C.  Ch 72. Cellstar Corp.252 that it had jurisdiction to grant a stay of proceedings on forum non conveniens grounds in such cases and send disputes to clearly more appropriate courts in nonBrussels Convention States. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. Civil Jurisdiction and Judgments. 535 and Cheshire & North's Private International Law (P.  All ER (D) 294 (Jul) (Q. 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.) (forum non conveniens applied to send dispute to Panama).. 2. Den Norske Bank ASA  Q.260 in favour of courts outside such
European Free Trade Association (EFTA) other than Liechtenstein (viz.B.256 The European Court of Justice is expected to rule on the issue on more recent references by English courts. 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. as part of its conflicts of law rules.Q. Anton Durbeck GmbH v. DMF 2001.. Co. v. 16.U.). 206 (C. 2. 618 at pp.K. 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.e the jurisdiction having the most real and substantial connection with the case) is determined to be a non-Member-State.).  All ER (D) 130 (Jun) (C. Fawcett.  1 Lloyd’s Rep. 259 See Ace Ins. S.E..). See also Haji-Ioannou v. 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. 2.257 In the meantime. 1160. 217.J. North & J.  EWHC 1704. unreported. 3 Ed. or EFTA.  4 All ER 543 (C. as well as Poland. 264-266. See Briggs & Rees.V. 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. 622 and 626 (C. para. of the Brussels Convention 1968. "Forum Non Conveniens and the Brussels Convention"  L. without such action infringing the Brussels Convention.. and yet the "natural forum" for the litigation (i. 2000.B.2001. 187. as well as EC Regulation States. in Coreck Maritime GmbH v. Butterworths.214 at pp.210 to 2. adopted by the Council of the European Union on December 22. see O.  All ER (D) 26 (Mar). litigation). Iceland.R. 346 (C. 2002 at paras. 258 Supra.1.M. would appear to be free to apply its forum non conveniens analysis. 1999 at pp.
To effect service out of jurisdiction.K. of the Brussels Convention 1968.  1 Lloyd’s Rep. art. the courts of other Member States shall have no jurisdiction over their disputes unless the court or courts chosen have declined jurisdiction. or c) in a form which accords with a usage in international trade or commerce of which the parties are. and regularly observed by. 266 Service of process out of the jurisdiction is governed by the Civil Procedure Rules 1998. State. or ought to have been.46 States. 382 (C. 262 See the discussion of the conditions of art. Art. the jurisdiction clause designating the forum of another E. none of whom is domiciled in an E. to comply with art. State must be either: a) in writing or evidenced in writing (including electronic form). the Civil Procedure Rules 1998 are referred to under their common abbreviation. which came into force on January 1. In this article. parties to contracts of the type concerned (art.A. 399. the claimant in some cases must obtain leave of the High Court. court in determining the validity of a jurisdiction clause in a bill of lading.19(1)
See.K. Delebecque. “CPR”.U.19 and 6. the test provided by the European Court of Justice in Coreck Maritime GmbH v. in so far as those principles indicate whether the clause in question accords with international trade or commerce. of the Brussels Convention 1968 at section VI. giving effect to an Egyptian choice of law clause in a case where an English defendant was sued in England.266 a) Where leave is not required-CPR Rule 6. 17. SI 1998/3132. aware and which in such trade or commerce is widely known to. and which bind parties one or more of whom are domiciled in an E. 263  1 Lloyd's Rep. As regards the jurisdiction clause's enforceability as against consignees and subsequent endorsees. Member State. Handelsveem BV would be applicable. 23. first para. such leave is not necessary.U. The Nile Rhapsody  2 Lloyd’s Rep.261 With respect to jurisdiction clauses calling for adjudication of disputes in an E. Art. supra. 1987. first para.  ECR I-9337. 1999. in other cases. 23 is almost identical in wording to the most recent text of art 17. Ph. 23 are met.U. 265 “Claim form” is the new term for “writ” under the U. obs. or b) in a form which accords with practices which the parties have established between themselves. where the conditions of art.U. State.20
To commence an action to recover for loss or damage to cargo in England.
. 1998 and in force April 26. 242. for example. replacing the former Order 11 of the Rules of the Supreme Court 1965. 23(1) and (2)).). 23(3) also provides that where a jurisdiction agreement is concluded by parties. Some of these decisions have applied forum non conveniens to enforce jurisdiction clauses requiring litigation of disputes in such non-Member States.The 1982 Act and CPR rules 6. made December 10. 387-98). The principles set out in The Eleftheria263 would therefore be applied by a 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. 23 of EC Regulation 44/2001 and the most recent text of art. the claimant will serve a claim form265 on the carrier who at times is out of the jurisdiction. 237 at p.’s Civil Procedure Rules 1998. 2001 DMF 187. 2000 (Case No. 264 November 9.262 In brief.264 7) Service out of jurisdiction .
If the defendant carrier is not domiciled in any “Convention territory” or “Regulation State” or is not party to a jurisdiction agreement under art. 9 to 12 of Schedule 1 of this Order define the conditions under which a person is “domiciled” in the U. the claimant. has a wide meaning in the light of sects. can serve a claim form upon the carrier. O.K. refers to sect.. rule 6. 17 of the Brussels or Lugano Conventions applies. 9 to 12 of Schedule 1 to the Civil Jurisdiction and Judgments Order 2001.U. 2002. 12/1.18(k).19(1A)(a). c. a particular part of it or a particular place within it. or an EFTA state. 270 EC Regulation 44/2001 of December 22. therefore. provided that either the claimant or the carrier is domiciled in such a state.19(1)(b)(i). U.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”. 1982.273 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.. 275 CPR rule 6. CPR rule 6. 23
CPR rule 6. the only court that has jurisdiction.. other than Denmark271.E.19(1)(a). 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. however. There is an important proviso. sects. 1(1) of the Civil Jurisdiction and Judgments Act 1982. reflecting the EC Regulation 44/2001 and paras. In relation to a “Regulation State”. 41-46 of the Civi1 Jurisdiction and Judgments Act 1982272 and clearly a defendant carrier can be domiciled in many jurisdictions concurrently. 1(3).274 or on a court contemplated by art. 274 CPR rule 6. art.
. The term “domiciled”. 269 CPR rule 6. b) Where the court's leave is required – CPR.270 i. 272 CPR rule 6. if the jurisdiction clause in the bill of lading designates the court of an E. 41-46.2000. 271 CPR rule 6. c. domicile has a similarly broad meaning.269 while the term “Regulation State” means a Member State as defined in EC Regulation 44/2001.277 The court where the action is first commenced is.19(1)(b)(iii). Paras.18(g)(i) and U.e. 1982. 276 CPR rule 6. or any other Convention territory 276 or any other Regulation State.C. 2000.19(1A)(b)(i). 17 of the Brussels or Lugano Conventions or art. 27.268 The term “Convention territory” encompasses the territory or territories of any Contracting State to which the Brussels or Lugano Conventions apply. a Member State of the EU. 277 CPR rule 6. L. 16. 23 of the EC Regulation 44/2001. who is out of that court's jurisdiction. in relation to a Convention territory.K. in commencing his action there.275 In other words. applicable to all proceedings instituted on or after March 1. without obtaining the court's leave.J. 27. 273 SI 2001/3929.K.18(d) in defining “Convention territory”.19(1A)(b)(iii).
20(2)). c. 1 at pp. at p.284 In the light of The Spiliada. a claim form may be served out of the jurisdiction with permission of the court if the contract was made within the jurisdiction. para. 363. in contractual matters.20(9).20(5)(d).K. 281 CPR rule 6. See also Briggs & Rees.21(1)(a)) and that 3) he “… believes that his claim has a reasonable prospect of success” (CPR. 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. where these authors state that CPR.20(8).278 There are various grounds listed in CPR rule 6.287 When the court is asked to stay an action on the ground of forum non conveniens. See also ibid. U. the claimant must obtain the leave of the High Court to serve the defendant outside of the jurisdiction. 283 CPR rule 6. and 14 (H.K.283 There are various other types of claim which authorize service out with the court's leave as well.21(2A)
. para. 21 (CPR rule 6. service out may also be authorized where a claim is made for a remedy against a defendant domiciled in the jurisdiction (CPR rule 6. 1991. an exclusive jurisdiction clause).). not subject to the jurisdiction of the High Court) (CPR rule 6. or for an injunction ordering the defendant to do or to refrain from doing an act within the jurisdiction (CPR rule 6. 1 (H.21(1)(b)). rule 6.20(1)).20 relied on in this regard (CPR. 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. 5. 1982. 2002. or was made by or through an agent trading or residing within the jurisdiction or is governed by English law or contains a term to the effect that the court shall have jurisdiction to determine any claim in respect of the contract (i. as well claims relating to property in the jurisdiction (CPR rule 6.. rule 6. U. the claimant who seeks to serve a claim form upon the Japanese carrier who is outside of English jurisdiction will have to obtain the High Court's leave under CPR rule 6.20(7). 325. on the other hand. 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.K. or for an interim remedy under sect. 13. 3 Ed. Civil Jurisdiction and Judgments.54 at p. 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.286 When leave is sought to serve out of the jurisdiction.20 justifying the grant of leave to serve the claim form out of the jurisdiction.L. 3 Ed. 153. Civil Jurisdiction and Judgments. See also Briggs & Rees.33 at p..L. 2002.e. 4. 280 CPR rule 6. 154 or 175 of the Merchant Shipping Act 1995. provided that service out would be justified if one did exist. Claims to enforce a judgment or arbitral award may also authorize service out (CPR rule 6.281 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.20(4)). 287 The claimant must show that 1) England and Wales constitutes “the proper place in which to bring the claim” (CPR.288
For example. or b) to enforce a claim under sects.20(10)). at p.). 286 Ibid. 285  1 Lloyd's Rep. 284 For example.20(5)(a) to (d). rule 6. 324.20(6). For example.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. c.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. the burden of proof is on the plaintiff to show that the forum is the most appropriate. rule 6. 25(1) of the Civil Jurisdiction and Judgments Act 1982. The claimant must also show that 2) the grounds on which the application for service out is made and the paragraph(s) of CPR. 288 The Spiliada  1 Lloyd’s Rep. 279 CPR rule 6.20(17A)). 282 CPR rule 6.21(2A)).48 of EC Regulation 44/2001. rule 6..20(9)).
2(3). it would not.the principle The Federal Court Act295 of Canada stipulates at sect.293 It also recognizes forum non conveniens under national law. Maritime Electric (1985) 60 N. 7.B. c. March 12. 293 Art. 2 Ed. 26 of the Civil Jurisdiction and Judgments Act 1982. may refuse to exercise that jurisdiction where that refusal is permitted by the law of that State and a court of another State accepts jurisdiction.291 Similarly art. 28. 290 Convention Relating to the Arrest of Sea-going Ships. found as Schedule I to the Civil Jurisdiction and Judgments Act. and in force February 24. contains a similar provision. 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 cf. 15 (H.Forum Non Conveniens Introduction .. 1999. 7(3)).K.49
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. 4 & 5 Eliz. consistent with the manner in which the process of saisie conservatoire is applied in civil law countries. c.05-8. adopted at Geneva. 203 (Fed. Brussels. 7(2). Where the arresting court lacks jurisdiction under art.289 Nor is it necessary to do so.A. paras.
. 5077-508. now happily in force. 1952. shall) order a period of time within which the claimant must bring proceedings before a competent court or arbitral tribunal (art.. 26 of the Civil Jurisdiction and judgments Act. 294 Art. it may (or at the request of a party. 7(2) of the Arrest Convention 1999 provides that notwithstanding art. The Arrest Convention 1999.L. 27. 54. where Lord Goff stated “. See The Spiliada  1 Lloyd's Rep. 1) Canada . See Tetley.3(5) specifies that the claim form must be served: (a) in accordance with the practice direction. 7(2).).07 at pp. 291 See sect. 1982. 1982. rule 61. c. even though a jurisdiction clause has designated a court in another jurisdiction to decide the action on the merits. and (b) within 12 months after the date of issue. C. but not in force. See N. 2002. except where the parties validly agree or have agreed to submit the dispute to a court of another State that accepts jurisdiction.K.). 1 at p.” See also Chap.C. Civil Jurisdiction and Judgments. 292 International Convention on the Arrest of Ships. This international convention has been almost completely implemented in the United Kingdom by the Supreme Court Act 1981. Such a conclusion is. I understand. Electric Power Commission v. 1985. 1982. sect. while at the same time granting a stay of proceedings in this country to enable the action to proceed in the appropriate forum. 50(l) that:
is intended to reproduce the substance of the previous case law. 2.. “Arbitration Clauses”. 8. 24 of the 1968 Convention. 1033-1036. at pp. U. 3 Ed. See also art. or to arbitration. I think.R. 7(1) on the merits or has refused to exercise it under art. CPR. the courts of the State in which the ship has been arrested or security has been provided for its release. 1956. which replaced the former Administration of Justice Act.” 289 See Briggs & Rees.S. envisages that a vessel may be arrested on a cargo claim in one jurisdiction and retained as security pending the outcome of the cargo claimant's action on the merits heard in another jurisdiction.290 at art. 1956. That Convention also requires respect for jurisdiction and arbitration agreements by the arresting court.. normally be wrong to allow a plaintiff to keep the benefit obtained by commencing proceedings here. U. 46. The Arrest Convention. 1998. Maritime Liens & Claims. 7(1). May 10. 1981.294 XI. c. 7(3) permits the vessel to be arrested in one jurisdiction and held as security there. 295 R. 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.292 at art.
302 Ibid. British Columbia (Workers’ Compensation Board). the undesirability of trespassing on the jurisdiction of a foreign state. The Ship Friedrich Busse (1982) 134 D. Supr. 269. 921.R. The Court stated that its discretion to refuse to make such a direction depended on whether there was: “some other forum more convenient and appropriate for the pursuit of the action and for securing the ends of justice. The Nosira Lin.R. stated that: “The factors affecting the application of this doctrine have been differently described in various cases .P. and the cost of assembling foreign witnesses. in Amchem Products Inc. 303 (Fed. citing various authorities. whereas in seeking a forum non conveniens stay. v. the Supreme Court of Canada considered the doctrine of forum non conveniens in determining whether the Court should direct for service ex juris.L. at p. including the plaintiff. stay proceedings in any cause or matter. Rockware Glass Ltd.” The clearly more appropriate jurisdiction (the “natural forum”) was declared to be the jurisdiction having the most real and substantial connection to the parties and the circumstances of the case.. J. Ritchie. Holdings Ltd.301 Concluding his analysis. 299  1 Lloyd’s Rep. 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).298 In 1993. 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. 795 at p. 301  1 S. 448. 422 at p. 8 (Ont. Supr. C. 897. in its discretion. 1 (H.
.C.R. Ct). The Ship Capricorn. 442. Sopinka J. including the House of Lords The Spiliada. v.C. 812 (H. and they include the balance of convenience to all the parties concerned.C. Westmin Resources (1983) 32 C.303
 2 S. (1982) 27 C.296 a case involving an application for leave to serve ex juris.” In Antares Shipping v. BP Can.C.). The burden of proving the clearly more appropriate forum fell on the plaintiff in service ex juris motions.C.R. Referring to forum non conveniens. the Supreme Court of Canada. at pp. (1984) 52 N. C.L. v. Suncor Inc.R. Ct). the impropriety and inconvenience of trying a case in one country when the cause of action arose in another where the laws are different. Plibrico (Canada) Ltd.300 definitively opted for the English view of forum non conveniens.). 303 Ibid.). 5 at p. (3d) 261 at p. 297  1 F.299 as well as its own precedent in Antares. 300  2 S. 917 and 921. … (b) where for any other reason it is in the interest of justice that the proceedings be stayed. 298  A.297 relying on the two criteria (positive and negative) laid down by the House of Lords in MacShannon v. the defendant had the onus of proof.50 “The Court may..L.C.” See also Kuhr v.A.” Canadian courts followed the English courts on the question of forum non conveniens in decisions such as Yasuda Fire & Marine Insurance Co.P. v. 895. 304 (Ont. 300 at p. however.
). v.T. ECU-Line N.).T.C..C. C. P. per Morneau. 1998 AMC 1864 at p.R. of Can. C.).T. 203 (Fed. 450 at pp. The Hoegh Merchant  1 F. 221 (Fed.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”.R. applies forum non conveniens slightly differently.  3 F. Can.R.) (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).586-592. 248 at p. C. per Hargrave. 418 at p. 144. 255 (Fed.). v. 237 at p. Can.I. Hyundai Merchant Marine Co. 257 (N. C. Other Commonwealth countries have similarly adopted the forum non conveniens principle. 461-469. 278 (Fed.Z. 307  1 S. (2001) 185 F. including maritime case law.Z. 234 (Fed. Can-Am Produce and Trading Ltd.). 427-428 (Fed.) (cargo claim). 140 at p.R.306 and was reaffirmed by the Supreme Court of Canada in 2003 in Z. the landmark New Zealand decisions in McConnell Dowell Constructors Ltd. 851 at p. C.). 856 (Fed.A. 427.T.). which the Federal Court of Appeal had found applicable to stay applications as well. 306 Burrard-Yarrows Corp. Manildra Flour Mills (1990) 171 C. in The Eleftheria305 has been relied on in quite consistently over the years. 1287-1293. (2003) 224 D. Pompey v. v. The Hansa Bay  F. The Senator (1996) 112 F.
With respect to the enforcement of jurisdiction clauses. C. v.R. and rejected the “tripartite test” applicable to motions for interlocutory injunctions. leave to appeal to Supreme Court of Canada denied  S. ECU-Line N. (1999) 176 F. Jian Sheng Co. Lloyd's Syndicate  2 N. Itochu Canada v. for example. 250 (Fed. 308 Z. See also Jian Sheng Co.R.L.A.310
See.) (personal injury and death).51 The clearly more appropriate test continues to apply to forum non conveniens decisions in Canadian case law today.V.Z.R. The Fu Nin Hai (1999) 173 F. Great Tempo S. the authoritative summary of principles by Brandon J.R. 309 Burrard-Yarrows Corporation v.R.).C.  3 F. C. 2003 AMC 1280 at pp.C.C. See also Trans Continental Textile Recycling v. ibid. This tripartite test involves a judicial determination as to: 1) whether there is a serious issue to be tried. C. Can.A. (1996) 106 F. and 3) which party would suffer the greater harm as a result of the granting or refusing the interlocutory injunction (or stay).the criteria . v. Wendell  1 N.).304 2) Jurisdiction clauses . 404. See.C. The Hoegh Merchant  1 F. Australia. v.A. Can.L. 105.) and Club Mediterranee NZ v. but rather on whether the Australian forum is clearly inappropriate. 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. 216 (N. (4th) 577 at pp. Nissho Iwai Co. P. 2) whether the party seeking the interlocutory injunction (or stay) would suffer irreparable harm unless the injunction (or stay) were granted. C. Napa v.A. 231 at p.A.). (1998) 225 N.Z.).A. Can. 310 The Agelos Raphael  1 Lloyd's Rep.C.309 c) A strong reason for not honouring a foreign jurisdiction clause may be that all the facts are in Canada. 287 (decisions of motions judges on applications for stays of proceedings based on foreign jurisdiction clauses should be upheld.L. 54 (Fed. C. unless arrived at on wrong basis or plainly wrong).C. Anraj Fish Products Industries Ltd. (1998) 173 F. Great Tempo S. C. 538 (Aukst.R.I.R. C. C. v. as fully articulated in England in The Spiliada. Shanghai Ocean Shipping Co. 495 (Fed.). focusing not on whether there is a more clearly appropriate forum elsewhere.V. C. See also Agro Co. C. Can. Pompey v. A. however. 305  1 Lloyd's Rep.T. See also Bomar Navigation Ltée v. Can.  ETL 39 (Fed.307 a) There must be “strong reasons” for not honouring a jurisdiction clause calling for jurisdiction before a foreign court. 418 at pp. of Canada Ltd.C.T. See Voth v. The Regal Scout  2 F. Can. High C. 242. Abta Shipping Co. 314 (Fed.L. for example. 1867 (Fed.C. The Erato  1 F. v. Can.
May 14. 3(8) of those Rules.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. ECU-Line N. 314 R. 1983. 450 at pp. Pompey v. (2003) 224 D.R. 315 See the comments of the Supreme Court of Canada on this point in Z. 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.R. 594.g. 718. 2003 AMC1280 at pp.315 XII.
Agro Co. 1986. DMF 1985. October 31. 341. 1984. the French court either has or has not compétence (jurisdiction).c. Rather. 713. 46 of the Marine Liability Act.I. 123 c.317 An action is not stayed or suspended so that suit may be taken in a more convenient court. C.
. DMF 1987. 42-48 of the New Code of Civil Procedure (NCP). so that suit may be taken in a more convenient forum. 2001.311 e) Courts deciding on the enforceability of jurisdiction clauses should avoid considering substantive issues (e. 113. February 15.. in section V.c. In Germany.R. art. Traité. (3d) 412 (Fed. mise à jour 1978. the right to request that an action already before a court with jurisdiction over the subject matter be stayed. (4th) 577 at pp. para. Jurisdiction Clauses Restricted by National Law”. 1981. DMF 1985. the French courts will have jurisdiction by virtue of art. DMF 1986. Nicolas. 6. 2001.g. The Regal Scout  2 F. Cour de Cassation. 469-472. It should also be noted that when the plaintiff in an action is of French nationality. Z. of Canada Ltd. 1293-1295. (4th) 577 at p. 3135 c.C. ECU-Line N. See also Tribunal de Commerce de Paris. December 7. in force August 8. (2003) 224 D. of Can.C. art.V. affirming Cour d’Appel d’Aix.C. 851.).I. April 18. 706. 316 A few civil law jurisdictions. 313 S. (1983) 148 D.  1 S. leaving such questions to be decided by the contractually selected foreign forum. 1987. member state): Cour de Cassation.p. 50 of the Federal Court Act314 to enforce foreign jurisdiction and arbitration clauses in bills of lading. irrespective of the nationality of the person (e. Québec Civil Code 1994.e. see Rodière. 672. See discussion of this statute supra. Affrètements & Transports. 472. F-7. DMF 1982. contrary to art. i.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. 104 with note by P.313 Sect. notably Louisiana and Québec. See Louisiana Code of Civil Procedure.U. 46 in effect restricts the discretionary power of the Federal Court of Canada under sect.q. 1984. constitutional provisions prevent German courts from refusing to exercise their statutory jurisdiction.g. a foreign insured) in whose rights the plaintiff (e.R.R. a French insurer) has been subrogated: Tribunal de Commerce de Paris.L. DMF 1985. c. have incorporated forum non conveniens into their legislation. Pompey v. 520. v. 668 at p.C.V.C.L. 2003 AMC 1280 at p. 1) France Introduction
France and the civil law generally316 does not recognize the principle of forum non conveniens. 1984. 592-594.  1 S. November 25. 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.S. 14 of the French Civil Code. 1295. however. March 10. c. 450 at p.-Y. 1985.L. Cour d’Appel de Paris. 317 The rules governing which court has territorial competence are found in arts. DMF 1984. fundamental breach of the contract of carriage).
1966 restrict jurisdiction clauses. (J. p. DMF 1952. See arts. 165. 360. Procedure 3. however. 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.O. DMF 1983. 1974. Tribunal de Commerce de Paris. 75-99 NCPC: Les exceptions d’incompétence. D.
.323 the general rule is that choice of forum clauses are to be treated as unwritten and therefore with no effect. 206. 1975.jurisdiction clauses
Under present French civil procedure. 1966 sur les contrats d'affrètement et de transport maritimes.S. 325 Established by Decree No. jurisdiction ratione loci) were formerly considered to be merely of private interest and thus derogation from these rules was generally permissible. 515. 1979.4. D. 162 at p.325 (NCPC) which also establishes an important exception: i.321 In addition to stating that actions may be brought before the court of the French port of loading or discharge. 54 is in fact merely a supplementary provision to arts. Les clauses attributives de compétence dans le transport maritime de marchandises.. para.1.65. DMF 1982. See generally Bertrand de la Grassière.324 This general rule is enshrined in art. 10 of the former Law of April 2. September 25. June 24. where the impact of the changes in the New Code of Civil Procedure is discussed. 323 Formerly. (J. 515. fascicule 211. «La clause attributive de compétence à un tribunal étranger». «Les clauses des connaissements attribuant compétence à un tribunal étranger sont-elles encore valables?».K.4. February 8. 1966. 1966.295. Presses universitaires d’Aix-Marseille. 483. 1967. 1983. Nor does art. DMF 1981. p. Cour d’Appel de Rouen. 1966320 contains no prohibition in respect to jurisdiction clauses. 42-48 NCPC: Cour d’Appel de Bordeaux. 54 of the Decree of December 31. 119. 1937. in which case the court will declare itself (“incompétent”) (without jurisdiction).319 The domestic Law of June 18. DMF 1980. See Fraikin et Boquet.318 In carriage of goods by sea cases. 66-1078 of December 31.O. 320 Law No. 322 Tribunal de Commerce de Nantes. 1936 prohibited jurisdiction clauses ousting the jurisdiction of French courts in cases of carriage between French ports in a French vessel (navigation réservée). Amoussou. 1936). «Les clauses des connaissements attribuant compétence à un tribunal étranger sont-elles encore valables?» DMF 1980. January 11. 48 of the New Code of Civil Procedure.322 art.e. 1966. September 30.O. art. 1967. A. 397. April 11.4. 235.53 A jurisdiction clause validly agreed upon by two “commerçants” (merchants) will be recognized by a court which has jurisdiction to hear the case.
See Bertrand de la Grassière. 2) Prohibition under law
The rules governing territorial competence (i. 189.e. 319 Loi relative aux transports des marchandises par mer. 2002. the territorial jurisdiction rules were considered to be of private interest and thus derogations therefrom were permitted: Juris-Classeur. 119. February 27. DMF 1980. See Cour d’Appel de Rouen. 3) French domestic law . 66-420 of June 18. Fraikin et Boquet. D. 1980.S. sur les contrats d’affrètement et de transport maritimes (J. 75-1123 of December 5. La clause attributive de compétence à un tribunal étranger. 54 merely refers to the normal procedural rules that govern the validity of jurisdiction clauses. January 13. 496. Art. 321 Decree No. DMF 1952. 1981. DMF 1974.
D. See. DMF 1983. December 17. May 9. 1983. March 19. however. The jurisdiction clause need not. dr. February 27. with note by Normand.1. 1971. 1982. 162. February 8. DMF 1982. 1. See comment by R. and cannot decline the jurisdiction of that court even by invoking a jurisdiction clause: art. 331 Cour de Cassation.327 Consent to such a clause in a bill of lading was formerly established under French law by the shipper’s signature on the bill. 29 with note by R. 1998 (The Lode Bay). was not deemed consented to. 118. 531. Achard. 330 Cour d’Appel d’Aix. 720. 415. 1996. Cour de Cassation. 802. 1983. July 20. 1982. DMF 1983. 1979. May 30. p. See. who is impleaded into the action. Cour d'Appel de Paris. When there are several defendants and the action is indivisible. DMF 1987. cr. obs. 327 Cour de Cassation. DMF 1980. where the rule is different when the 1968 Brussels Convention applies. 1982. somm. 1.326 The clause must be clearly apparent so that the parties can be found to have given their informed and unequivocal consent to it. where the foreign court was not determinable and the clause was therefore unenforceable. without that clause being pointed out. 1972. 1971. 1980. it must at least be identifiable. 262. DMF 1974. November 14. obs. 332 Cour de Cassation. no. S.-Y.330 nor was a clause written in a foreign language that the party did not understand. art. however. second para. March 3. Rev. January 14. 1986. 1982. Cour de Cassation. civ. 1928. July 12. Bull. Cour de Cassation. 1979.-P. June 27. if it is not identified. 1982. 1981. February 4. Rev. Gaudemet-Talon.54 where the jurisdiction clause has been agreed to by parties acting in a commercial capacity and has been clearly specified in the agreement.S.S. 1987 so that the shipper is no longer obliged to sign the bill of lading under French law. Achard. regardless of the presence of a jurisdiction clause: see art. 1984. the Court should have refused to give effect to the clauses concerned. note H. with note by Ghestin. 329 Art. 1981. Cour de Cassation. pr. DMF 1983. March 3. as well as in Cour d’Appel de Rouen. 78. D. 274. 1974. Cour de Cassation. See also Cour d’Appel de Paris. II. no. 334 Tribunal de Commerce du Havre. 518. May 3. 37. DMF 1983. 546. Cour de Cassation. Until 1987. 66-1078 was amended by Decree No. 1983. 1998. Y. 37 of Decree No. Pal. must proceed before the court which is seized of the principal action. February 13. DMF 1983. 77 328 Cour d’Appel de Rouen. inf. 87-922 of November 12. which merely designated the courts of the country where the carrier had his principal business. 609. even if acting in a commercial capacity. Cour d’Appel de Rouen. May 24. Achard appended to Cour de Cassation. pan. Thus a clause printed in ultra-fine letters below the line where the party was to sign. Bulletin des transports 1987. DMF 1998. report J. 11. 98. 1979. be consented to apart from the other clauses in the bill of lading: Cour de Cassation. See also Cour d’Appel de Rouen. November 14. 1981. 1980.328 until the requirement for the shipper to sign bills of lading was repealed in 1987. Cour d’Appel de Paris. the plaintiff can pursue the action in the jurisdiction of any one of the defendants. 33. dr. Cour d’Appel de Paris. 1979. 1986. note R. 1978. 1980. DMF 1981. Cour d’Appel d’Aix. 431 with note by R. 492. In Cour d’Appel de Rouen. 325. 1979. 333 Cour de Cassation. 42. Rémery. February 20. 1985. Achard. Achard. int. March 11. 1927. DMF 1998. Ph. 725 at p. See Cour d’Appel de Paris.
. NCPC. IV. DMF 1979. 282. 85. 730. Cour de Cassation. DMF 1986. 333 NCPC. however. 1984.329 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. December 1. no.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. 1966 required the shipper to sign the bill within 24 hours of the loading. 537. January 16. 489. DMF 1981. 143 with note by R. November 30. February 25. DMF 1981.64. 37 of Decree No. 128. jur. Cour d’Appel de Paris. 1991. Tassel. 726. 661078 of December 31. Bull. 1982. 678 with an excellent commentary by P. 270. November 8. trim. 1980. Delebecque. 507. March 20. Bull. Bull 1980. Gaz. DMF 1979. no. May 24. Cour de Cassation. June 26. Nicolas. rep. October 1. DMF 1997. DMF 1983. DMF 1991. DMF 1985. Cour d’Appel de Paris. DMF 1983. February 28. 1986. 489.331 The forum chosen in the clause must be clearly designated. 1980. Cour d’Appel de Bordeaux.
but not always. would seem to invalidate jurisdiction clauses which do not appear in the bill of lading issued to the shipper. 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. January 20. June 17.337 Of course when the whole agreement is challenged. 336 Cour de Cassation. if the clause designates the court of the carrier's domicile. 87. Cour d’Appel de Paris. fascicule 212-1. 2003 (The MSC Dymphna). in the case of international carriage. the Hague/Visby Rules. 710. however. that since such a clause derogates from the normal rules of civil procedure. 1966 (governing domestic carriage) makes that law of public order. 546.336 It must be remembered. DMF 1982. the French court should refuse to give effect to the jurisdiction clause. 29 of Law No. para.338 But art. where the Court notes that the bill of lading is the typical case of a contract of adhesion. para. 5. Nor is a clause designating a court which one of the parties has the option to eventually name. 1980. 3(8) of the Hague/Visby Rules makes those rules of public order. See Tribunal de Commerce de Paris. But see also Cour de Cassation. DMF 1980. holding that the acceptance of a jurisdiction clause could not be inferred from the existence of prior commercial relations between the parties. DMF 1983. See also Cour d’Appel de Rouen. Rev. February. Cour d’Appel de Paris. fascicule 212-1. Any restriction of the shipper's rights beyond what is permitted by the Law of June 18. civ. 1993. as where there has been a fundamental breach of the contract. DMF 1982. 548. 1994. the contra proferentem rule will apply if such designation disadvantages the shipper. dr. 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. 612. as in the case of a short form bill of lading. would be contrary to public order. 602. March
. 550. 48.  ETL 496. 338 Juris-Classeur Procédure 3. March 1. para. fascicule 212-1. just as art. the clause will be interpreted restrictively by the courts. 203. the courts had at one time given effect to foreign jurisdiction clauses. If the jurisdiction clause designates a foreign court which is likely to apply its own law. DMF 1994. Cour d’Appel de Rouen. March 7. 66-420 of June 18. In Belgium.55 since that port could change from voyage to voyage. DMF 1985. but only on the condition that the designated foreign court apply the Belgian equivalent of the Hague Rules: Hof van Beroep te Brussel. 337 Juris-Classeur Procédure 3. fascicule 212-1. because the carrier drew up the clauses in the bill of lading. Normand. which must be performed in good faith. 23. See Hof van Beroep te Antwerpen. Notably.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. Thus merely referring to a jurisdiction clause appearing in another document would not be sufficient. 100. the courts have in some cases given effect to the jurisdiction clause. DMF 187. trim.341
See Juris-Classeur Procédure 3. 1982. 339 Cour d’Appel de Paris. para. June 22. 1984. 1983. Sometimes the jurisdiction clause is not found in the document itself. April 23. 95.340 In such circumstances. 416.335 The court will sometimes. March 2. 1966 or. para. 1979. fascicule 211. 1986. Belgium takes a similar position. Juris-Classeur Procédure 3. January 14. Bulltein des transports 1994. 340 Art. 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. 93. 341 Belgium takes a similar position. the jurisdiction clause's effectiveness will be jeopardized. 236. 198 1. by requiring that the clause “be specified very clearly in the agreement” itself. the French court must consider whether giving effect to the clause would violate French public order.
May 15. 73-63 of January 13. art. actions taken before the court of one European Union Member State by or against a corporation or individual domiciled in another Member State. as amended by various Accession Conventions. September 27. jurisdiction clauses in contracts between parties both of whom are domiciled in France continue to be governed by art. referred to in Jurisclasseur. D.12/1. The draftsmen of the old art. supplants art. DMF 1987. October 9. 515 at p. 16. fascicule 631. 1973.e. 723.344 Today. Subsequently. 1979. art. where the bill of lading was signed outside of France.2001. even though the clause in question arose in respect of an action in warranty and the principal action was being taken in another jurisdiction. 469. aff'd Cour de Cassation. Switzerland or Poland. 17 of the Convention and not necessarily with the national law (i. 48 NCPC. where one or more of the parties is a domiciliary of any other E. DMF 1985. Droit international 8. 48 NCPC). DMF 1983.U.347 In The Tilly Russ. 1983.  ETL 641. see also Cour d’Appel de Paris. see Fraikin and Boquet. 117. 48 NCPC where the clause specifies a court in another E. which. The Lugano Convention 1988 will also continue to apply to jurisdictional matters involving a Member-State of the European Union and either Iceland. DMF 1979.56
France and EC Regulation 44/2001
Until the coming into force on March 1.
. 1984. however. 23 of the Regulation. Cour d’Appel de Rouen. DMF 1982. Hof van Beroep te Brussel. 713. French courts have not gone as far as Belgian courts in this regard: Cour d’Appel de Rouen. See Cour de Cassation.342 French courts were bound by the Brussels Convention 1968343 on the same subject. the other Member States of the European Union). 17 wanted to avoid making compliance with formalistic requirements a criterion for the validity of jurisdiction. The Convention as amended covered. Cour d’Appel d’Aix. 98. 303. 620.U. 1982. not by art. DMF 1983. March 10. see also the Protocol on the Interpretation of the 1968 Convention by the European Court. June 3. 214.Y. Belgian courts did not consider such a condition to be sufficient. 1985. L. 17 on jurisdiction clauses. State and the case involves a Danish domiciliary. See Cour d’Appel de Rouen. July 5.345 The Brussels Convention 1968. See also Cour d’Appel de Rouen. DMF 1980. 1974. p. May 25. 22. October 31. Nicolas. because the foreign courts might not interpret the Belgian version of the Hague Rules in the same manner that a Belgian court would: Hof van Beroep te Antwerpen. DMF 1986.  ETL 50. with note by P. and its 1971 Protocol of Interpretation continue to apply between Denmark and the Member States bound by the Regulation (i. country except Denmark. 520. by which the Brussels Convention 1968.96. 98. Member State. 17:
18. 1987.S. Nicolas. 1984. Norway.346 On the other hand. art. 622. even if there is an international element to the contract: e. 17 of the Convention had precedence over the other means of acquiring jurisdiction. para. both published by Decree No. 343 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. preamble. March 14. with note by P. Actes de la 8ème session. 345 Cour de Cassation. 492.1. 342 O. Cour d'Appel de Rouen. 1982. 1971. 23 of the Regulation governing the validity of a jurisdiction clause. June 27.4. March 1.  ETL 704. as the Regulation now does. supra. continues to displace art. May 24. DMF 1983. where it was held that jurisdiction acquired by means of a jurisdiction clause which complied with art. 604. 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. June 10. signed at Luxembourg. See also Cour d’Appel de Rouen. July 12. 1971. 1977. 346 See EC Regulation 44/2001. 1985. Rapport sur les travaux de la 2ème Commission. 17 of the Convention or art. 1984. DMF 1986. 1982. para.Y.g.U. 1973. 1979. 1968. DMF 1985.C.E. 347 Conférence de droit international privé de la Haye. signed at Brussels. 344 See Cour de Cassation. par Frédéricq. 557.J. DMF 1980. where it was held that the jurisdiction clause need only comply with art. July 12. August 29. DMF 1985.348 the European Court of Justice held that a jurisdiction clause in a bill of lading would satisfy the requirements of art.e. 550. 2002 of EC Regulation 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. was essentially the same as the Regulation in respect of jurisdiction clauses.
March 2. 353 By the San Sebastian Convention of May 26. which appeared only in the long form bill. 23 of the EC Regulation 44/2001 is reproduced supra. 12 Ed. Cour de Cassation. 23(1) authorizes jurisdiction clauses which are in writing or evidenced in writing. section of this article. in the U.C. If the jurisdiction clause is only printed on the front of the bill. 351 Again. 354 Art. para. L. 89. 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.354 Art. to ensure that the shipper had such notice as to be able to consent to it: Tribunal de Commerce de Paris. 1981. 557. DMF 1985. Also accepted are forum selection clauses in a form which accords with a usage in international trade or commerce of which the parties were. Rodière & du Pontavice. Bull.J. at art. Droit Maritime.10. 355 Rèmond-Gouilloud. 548.K. signed at Luxembourg on October 9. October 9. 23 constitutes an important distancing from French law: a jurisdiction clause may be deemed valid under art.e. DMF 1985. September 30. The text is found in DMF 1987. i. 1984. 23 even when the shipper has not signed the
(The Tilly Russ).1989. or ought to have been. 1989. The French courts emphasized that the jurisdiction clause had to be printed on the back of the bill of lading. aware and which is widely known to. 209. where the shipper put his signature.351 The version of art. 48 NCPC) which requires the clause to appear on the document issued itself: See Cour d’Appel de Paris. 285/1.355 Thus art. IV. The inclusion of electronic communications in art. Ireland and the United Kingdom acceded to the 1968 Brussels Convention352 and was reamended in the Accession Convention of 1989 when Spain and Portugal became parties to the Convention. 235. even though the short form specifically referred to the long form. 1978. a jurisdiction clause in these circumstances would not meet the requirements of French domestic law: art. 1984. para. 386-2. the shipper was never advised of the existence of the clause.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. its validity will depend on whether it fulfils the requirements of category b). and regularly observed by. no. 23. 1984. 1993. nor had the shipper agreed to such a clause in previous voyages.e. 23(2) is the major addition made by the Regulation to the wording of the immediately preceding version of art. June 19.. 2 Ed. 03.349 or b) if the jurisdiction clause was specifically included in a prior oral or written agreement and the bill of lading. Droit Maritime. 352 Convention on the Accession to the 1968 Convention and the 1971 Protocol of Denmark. 1997..e. 17 of the Brussels Convention 1968. parties to the type of contract concerned in that particular trade or commerce. 17 that was adjudicated upon in The Tilly Russ was modified when Denmark. art. 1984.350 (this set of circumstances is rare in maritime matters). was not given effect since the shipper had only been issued the short form bill. 1986. where a jurisdiction clause. 83 at p. O. the Republic of Ireland and the United Kingdom. though signed only by the carrier and not by the shipper. acted as the written confirmation of that prior agreement.E. It came into force on November 1. the side where the shipper signs). p.353 It is essentially this latter version which was reproduced by the drafters of EC Regulation 44/2001. 623-3. as well as those in a form which accords with practices the parties have established between themselves.
. DMF 1982. 350 The jurisdiction clause in this situation would not comply with the requirements of French domestic law (i. 48 requires the jurisdiction clause to appear on the document issued. European Court of Justice. 254.
361 the European Court of Justice. 1984. 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. See also Cour d'Appel de Rouen. holding that. 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. 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. DMF 2001. DMF 1985. 2002 (The Ubangui). 750. the European Court of Justice answered this question. 2000 (The Seinehaven). DMF 1998. Delebecque. See Tribunal de Commerce de Paris.  ECR I-9337. The consignee and subsequent endorsees. it is proper to
As was required by art. 684. September 30. 17 of the 1968 Brussels Convention. the third party. obs. 612. 1038. produces effects with respect to a third party holder who. 96. reaffirmed that a jurisdiction clause in a bill of lading. relating to the opposability to shippers and consignees of bill of lading jurisdiction clauses subject to art. Nicolas. 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. difficult-to-reconcile decisions of the Cour d’Appel de Paris and the Cour d’Appel de Rouen. DMF 2001. 1981. interpreting the final. 235. agreed to by a shipper and a carrier. 361 November 9. have no notice of this clause. June 19. 48 NCPC. 360 Supra. 359 As between the shipowner and the charterer. June 21. 1093. 187. 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. however. 89 at p. 2001. In Coreck Maritime GmbH v. 17 established in The Tilly Russ and other decisions. DMF 2003. 6. re-amended version of art. DMF 2001. 1966 and art. in acquiring the bill became the assignee of the shipper’s rights and obligations. DMF 1985. November 30. 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. has succeeded to the rights and obligations of the shipper under the applicable national law. 66-1078 of December 31. obs. The question therefore is whether they also are bound by it. 1997 (The Clyde Bank).362 If such is not the case. by virtue of the applicable national law. 17. 358 Cour d’Appel de Rouen.
.356 French courts have been rather inconsistent in giving effect to art. April 5. however. no. December 5. DMF 2001. Ph. applying the conflicts rules of his national law. under art.359 In The Tilly Russ. 2000. 2001 (The Transvaal). 102 at pp. May 22. DMF 2001. P. 2000 (The Nuevo Leon). 17 of the Brussels Convention 1968. See DMF Hors série no. DMF 1982.357 and in other cases insisting. (Case No 387/98). 77-79 for a summary of various. Cour d’Appel de Rouen. in acquiring the bill. Handelsveem BV. on proof of the shipper’s actual consent to the jurisdiction clause before the conclusion of the contract of carriage. despite art. This is especially problematic when the bill of lading in the hands of the third party was issued under a charterparty which contained the jurisdiction clause and which could only be known by the parties to the charter. November 29. 83 at p.-Y. 2002. Cour d’Appel de Rouen. Art. DMF 1985. Cour d’Appel de Rouen. See the commentary by Pierre Bonassies. in some cases recognizing practices established between the parties and international usages in regard to forum selection provisions. 357 See Cour d’Appel de Paris. but rather that that law fell to be determined by the judge seized of the case. 17 of the Brussels Convention 1968. 37 of Decree No.358 5) Opposability to consignee and endorsees
As stated above. 89.58 bill of lading nor been specifically shown the clause in the bill. 1038. 616. 17.
23 of EC Regulation 44/2001. See also the commentary of P. “Des clauses des connaissements maritimes attribuant compétence à une juridiction étrangère : essai de démystification”. DMF 2003. DMF 1995. note P. 393. Ph. 46. DMF 1995. Bonassies. 1007. Cour de Cassation. P. observations Ph. 23 of EC Regulation 44/2001 is basically unchanged from art. “L’autonomie de la clause de juridiction”. Cour de Cassation. January 16. P. Delebecque in DMF Hors série no. October 15. States like Germany. Cour de Cassation. Revue Scapel 2003. cr. Cour de Cassation. Cour d’Appel de Paris. 1994 (The Stolt Osprey). as opposed to “special acceptance”. 1998. Nicolas. Rev. including Coreck Maritime (supra).59 verify the reality of the holder’s consent to the clause by reference to the requirements of art. amounts to such express acceptance. 209.363 In France. 2003. will probably continue to apply under art. Cour de Cassation. Nicolas on the decision of the Cour d’Appel de Paris. DMF 2003. Ph. November 29. June 25. para. 1998 (The Silver Sky). 14. of the bill of lading by the third party bearer of the bill. 259. DMF 1999. It would appear that the same principle will apply under the almost identical art. 1992. DMF 1995. Cour de Cassation. 1996 (The Fiona)..
. obs. obs. P. p. May 26. 41. DMF 1999. (The Silver Sky). “L’entrée en vigueur du règlement communautaire no 44-2001 du 22 décembre 2000 concernant la compétence judiciaire. Tassel (an arbitration clause). note H. no. Ph. DMF 1997.-Y. 1994 (The Harmony and The Nagasaki). to the bill of lading (a tripartite contract) or at least the beneficiary of a “stipulation pour autrui”. of the Convention. cr. 572. 93. 556. la reconnaissance et l’exécution des décisions de justice en matière civile et commerciale”. Bonassies. (The Sonara). 1996 (The Köln Atlantic). 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. Gaudemet-Talon. 1997 (The City of Durban). November 29. 218. Revue Scapel 2003. 684 at p. 703. 2000 (The Nuevo Leon).e. 368 Cour d’Appel de Rouen. November 13. no later than at the time of delivery. DMF 2003. June 25. 17.  ETL 727 at p. 733. 99. 23 of the Regulation. obs. Rèmond-Gouilloud. Tassel. 1992.366 Neither the mere possession of the bill of lading by the consignee or endorsee367 nor its “accomplishment” (i. 2000. Cour de Cassation. 11. first para.  ETL 193. by signature or rubber stamp. but rather as either a true party. May 27. 1999. Bulletin des transports 1997. referring only to “acceptance”. its presentation to the carrier in return for delivery of the goods after discharge) suffices to constitute the “special acceptance” required to make the clause “opposable” to the consignee. 339. November 29. 694.U. 154.369
See P. 369 Cour de Cassation. 4.-Y. 1996 (The Chang Ping). M. April 2. 2003 ETL 321.364 French courts have therefore held that in order to bind consignees and their subrogated underwriters.  ETL 551. 723. 74. but doubtful. See also Cour de Cassation. DMF 1997.-Y Nicolas. 17 of the Convention by the Court of Justice of the European Communities. 1997 (The Tonia Bondarchuck). 41. obs. note Y. obs. DMF 2003. Delebecque. Nicolas. obs. indicating that art. note P. December 8. DMF 1995.-Y. d’Haussy. Cour de Cassation. March 4. 72 at p. 2002 (The Aptmariner). December 8. 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 (The Aptmariner). note P. Delebecque. DMF 2000. 365 See generally Y. November 14. Nicolas. Nicolas. Delebecque. 2003 (The Houston Express). endorsee or subrogated insurer. 17 of the Brussels Convention 1968 and that the decisions rendered under art. 1007. DMF 2001. obs. Cour de Cassation. 20.368 It is unclear. November 28. 705. note P. 2002 (The Elpa). 364 See the commentary by P. 367 Cour de Cassation. DMF 1996. int. Bonassies. indicating that in France the consignee is not seen as a mere successor to the shipper’s rights as in certain other E. together with the shipper and carrier. March 4. DMF 1997. where the Court did not decide the point because it had not been pleaded by the defendants. whether the mere endorsement of the bill by the consignee. pr.  ETL 551. 366 Cour de Cassation. See also Cour d'Appel de Nìmes. F. Bonassies on the decision of the European Court of Justice in the Castelleti decision of March 16.-Y.-Y. 2002. the consignee is not generally considered to be a mere successor to the rights of the shipper under the bill of lading.
374 Adopted at Rome. Bulletin des Transports 2003. see Tetley. 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. The principle emphasises how necessary it is to have uniform conflict of law rules. 1984.373 In consequence. more recently. 530.K. 548. 1997 (The Istanbul Z). 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. 2002 (The M/V Marimar). must apply “the system of law with which the transaction has its closest and most real connection . 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.. 529 at p.C.J.1980. no. however. 479. 89 at p. 380 at p. since the latter is not deemed to have known of its contents. or France respectively. 9. International Conflict of Laws. This is a basic principle of conflict of laws. since not only the consignee. Jurisdiction Clauses Per Se . October 14. Appendix “F” at pp. without actually reproducing the jurisdiction clause itself. The European Union. including the jurisdiction clause. Achard. Droit international privé. For the text and a brief commentary. DMF 1985. uniform conflict rules are most helpful. 1032-1048. 304. therefore.372 XIII.371 Where. The Rome Convention 1980 on the Law Applicable to Contractual Obligations374 is a particularly advanced international instrument. 688. 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. ”. such a clause was not enforceable as against the consignee. see also Batiffol et Lagarde. 1976. O. DMF 1976. has taken a major step towards that kind of unification. Here again. 371 Cour d’Appel de Paris.. R.E. 373 The Iran Vojdan  2 Lloyd's Rep. the U. in a shipment from Hamburg via Bremen and Valencia to Dubai on an Iranian ship. L 266/1. Cour d'Appel de Paris. EC Regulation 44/2001. 383. that clause will not be enforceable as against the third party holder.S.370 When the bill of lading has been issued under a charterparty and generally refers to the terms. DMF 1998. with the Brussels Convention 1968 and.note. in the field of conflict of jurisdiction. 333 at p. found in the charterparty. the consignee is proven to have been aware of the clause at or before the completion of delivery of the cargo. DMF 1983.10. 1980 and in force April 1.60 When the jurisdiction clause was among the clauses printed only on the long form bill of lading. DMF 1985. in deciding whether a jurisdiction clause should be given effect. November 27. obs. 372 See Cour d’Appel de Rouen. December 16. however. 80/934/EEC. See. March 2. a court. affirming Tribunal de Commerce de Paris. he has been held to be bound by it. The Frank Pais  1 Lloyd's Rep. 371.
. and only a short form bill was issued and signed by the shipper before being transferred to the consignee. but also the shipper could not have had proper notice of the existence of the clause. 1981.. 1994.The Criteria . 337. which
Cour d’Appel de Paris. 2) The law by which to judge the clause
On the other hand. judged under German law. 93. June 19. January 5. an English Court held that German law had the closest and most real connection and the validity of the jurisdiction clause was. Pierre Bonassies .
arts. and Cour de Cassation. the court's discretion is based on a number of criteria in respect to the clause itself. September 9. DMF 2003. it has been held that a clause calling for suit “before the courts of England”
Rome Convention 1980. Revue Scapel 2003. All jurisdictions use roughly the same criteria.C.Nicolas. 378 Cour d’Appel de Rouen. application for leave to appeal to the Supreme Court of Canada dismissed with costs and without reasons. See Rechtbank van Koophandel te Antwerpen.).378 A clause which merely conferred jurisdiction on the courts of the “principal place of business” of the carrier has sometimes been held to be null and void.-Y. although the clause was found unenforceable because of lack of proof that it had been consented to by the shipper. See also Jian Sheng Co. 2000 (The Nuevo Leon). July 12. a jurisdiction clause is not valid unless the name of the actual court is spelled out. DMF 2001. 3(1) and 4(1). 2003. 1959. 684. November 29. arts. these presumptions “… shall be disregarded if it appears from the circumstances as a whole that the contract is more closely connected with another country.A. 829. 4(4) in a bill of lading case. see Cour d’Appel de Paris. 996. and has sometimes been enforced. DMF 2001. 4(5). In some countries. 2000 (The Bunga Pelang).” For an example of the application of art. upheld by the Cour de Cassation. March 4. For an example of the application of art. 377 February 2. 4(2) to 4(4). 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. 1037. Note. Great Tempo S.  S. 1966. 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. November 30. 287.A. 1998 AMC 1864 (Fed.61 has harmonized choice of law in contractual matters for all Member States of the European Union. the carrier was unable to adduce sufficient evidence to support its contention that its “principal place of business” was located in Hong Kong. DMF 2001. 2003 (The Houston Express0.  ETL 780. Rome Convention 1980.  3 F. 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. 1984. March 4. DMF 1959. although such a clause was found to be quite frequent in bills of lading. see Cour d’Appel de Paris.  ETL 238. DMF 1999. 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. C.
.A. November 18.376 3) Discretion
Although there is no general rule as to whether a court will honour a jurisdiction clause. a) Clear and precise
Unless the jurisdiction clause is clear and precise. No. upheld Cour de Cassation. 2001. where. 556. 418.375 The Convention also establishes rebuttable presumptions to assist the court in determining the national law with which the case is most closely connected. v. obs. 379 Hof van Beroep te Brussel. 4(5) in such a case. however.C. note P. Ph. June 12. that by art. 20.379 Similarly.C. it should not be honoured because it will not allow the parties to know with certainty before which court they are to proceed. 1999 (The Bonastar II). 618. Delebecque. absent any express or implied choice of law. On the other hand.
381 The Media (1931) 41 Ll. One wonders. Rep. July 20. 1975. DMF 1985. DMF 1971. See also Cour d’Appel de Rouen. 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 .A. ”(emphasis added) was not held to bind the “ship” and an action in rem could therefore be taken in Italy. DMF 1973. 1040. DMF 2001. 336 and Cour d’Appel de Rouen.S.381 On the other hand.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. 1984. nevertheless. 659. 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. 1995 (The Frauke). 80. DMF 1976.384 Where a bill of lading referred to a long form bill of lading. was held to be valid. DMF 1975. December 17. January 5. 35. 1971. 382 Cour d’Appel de Douai. 724. A note of E. Jurisdiction was to beat the port of destination (Calcutta) or. 385 Cour d’Appel de Rouen. Revue Scapel 1996. In consequence.). if this is sufficient notice and is sufficiently certain. 1976.” in a bill of lading signed by the shipper.
. in the United Kingdom. at the shipowner's option. see also Cour d’Appel de Poitiers.. and consequently. 293. June 22. 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. 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. 2000. 383  2 Lloyd's Rep.. see also Cour d’Appel de Paris. DMF 1976. it was inapplicable. 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. 484.62 is not sufficient. 1973. L. In The Lisboa. DMF 2001. where clauses giving the carrier the option of suing in more than one court were held null and void. 546 at p. June 19. March 2. where the jurisdiction clause in a standard-form contract incorporated into a contract of carriage was held to be unenforceable. February 5. 548
. 335. 384 Cour d'Appel de Paris.385 c) Jurisdiction clauses and third parties
Jurisdiction clauses may only be enforced against parties to the contract or persons who are apprised of or consent to the jurisdiction clause in the bill of lading. 542. 1974.R. 1960. November 30. May 9. 2000. DMF 1961.S. June 27. 549 (C. See also Cour d’Appel de Paris. See also Cour de Cassation. b) Jurisdiction clauses by reference
The reference in another document to a jurisdiction clause should be detailed and precise. which in turn contained a jurisdiction clause.
in their discretion. N.390 On the other hand. because the size of the print of the clause was too small. 407 U. DMF 1983. or where it violates a strong public policy of the forum. cited supra. Delebecque. 37 and Oberlandesgericht Dusseldorf. February 2. 143. DMF 1965. the suits against the various defendants need only be connected. 392 See particularly the American decisions flowing from Bremen v.D. June 11.S. S. 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. DMF 1983.392
Insurance Co. 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. (France). February 25. 232. November 20. May 24. Zapata Off-Shore Co. 1979-80 J. Ph. where a defendant domiciled in a Member State is one of a number of defendants. 1972 AMC 1407 (1972).391 f) Fairness and public policy
Courts. suit at the place of business of any one of the defendants can be convenient.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. 1974). 29. 1982. DMF 1983. 9. he may be sued in the courts where any one of them is domiciled. referred to in The Iran Vojdan  2 Lloyd's Rep 380 at p. New Zealand and South Africa. as where it seems to be the product of fraud or overreaching by the carrier or is inherently unjust or unreasonable.R.c.388 d) Legibility of the clause
A jurisdiction clause is an exception. 616. of North America v.1975. 1965.A. See a note on the judgment at DMF 1983. May 30. where it was held that.P. obs. Cour d’Appel d’Aix.Y.386 Similarly. at p. 1982. Note that under art. 6(1) of the 1968 Convention. will normally refuse to enforce a jurisdiction clause that appears fundamentally unfair. May 11. the Supreme Court of the Federal German Republic in Allianz v. 531. 235.  ETL 217. 1384. para.P. DMF 1977. not indivisible. 390 Cour de Cassation. India Steamship Company389 declared a jurisdiction clause invalid. 135/82. 81. 1998 (The Albasgracht). 389 11 Z. 1982. 1976. 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. 1983.63 damage action brought by a third party. May 30. In this regard. 6(1) of the Brussels Convention 1968).  ETL 270. 197980 J. 1983.S. October 15. DMF 1999. 1. Bundesgerichtshof. the jurisdiction clause cannot apply if the circumstances of the case forbid dividing the action. 383. October 27. February 4. 388 Cour de Cassation. 295 at p.
. Jotina 1974 AMC 1190 (S. DMF 1983. c. 1. 296. 1982. for the application of art. the shipowner was held not bound by a jurisdiction clause in a bill of lading issued to the shipper by the time charterer.A. See also the legislation of jurisdictions such as Australia. 6(1) of the EC Regulation 44/2001 (similar to art. which generally invalidates foreign jurisdiction clauses on the public policy ground that they oust the jurisdiction of local courts. Cour d’Appel de Paris. See also European Court of Justice. 391 Cour d’Appel de Paris. See also Cour de Cassation de Belgique. 1979. Tribunal de Commerce de Marseille. e) Plurality of defendants
Where there is a plurality of defendants.
2000). Pompey v. one where the starting point is that parties should be held to their bargain. 1985. but the presence of a forum selection clause in the former is. 2003 AMC 1280 at pp. AMC at p. See also Antares Shipping v. R. The burden is therefore initially on the claimant (plaintiff) to prove the jurisdiction of the forum. 54. 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. then the suit must be dismissed. see sect.. Bastarache J. 396 The jurisdiction of the plaintiff’s chosen forum over the subject-matter of the dispute is often not an issue. In France. however. 22 of the Act. “ordinary” forum non conveniens cases]. I am not convinced that a unified approach to forum non conveniens. See also the rules governing the court's jurisdiction ratione personae or loci (compétence territoriale) set out at arts.V. 513 (9 Cir. 42-48 of the New Code of Civil Procedure: these rules are not of public order.I. where a choice of jurisdiction clause constitutes but one factor to be considered. (4th) at p. most courts have jurisdiction to decide whether they have jurisdiction over the subject matter and whether to hear a motion of forum non conveniens and eventually order a stay of proceedings. Mar. see the rules governing the court's jurisdiction ratione materiae (compétence d'attribution) set out at arts. and the burden of proof has been deemed to be different as well.R. Jurisdiction cannot be accepted nor can suit be stayed.). Davies. 1333.R.K. 439-440 per Laskin. 1981. In both cases. 422 at pp. 588. the Federal Court of Canada has the jurisdiction to construe its originating act and especially heads of maritime jurisdiction set out in sect. see 28 U.J. does not have forum non conveniens. is preferable. see also Williams & Glyn's Bank v. 463-464.S.C. the burden is normally on the defendant to show why a stay should be granted.64 XIV. sufficiently important to warrant a different test.” 394 Ibid.C. Fortunately.C.S. under sect. 50(1) of the Federal Court Act.  1 S.L.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.396 If the court does not have jurisdiction over the subject matter.R. because so often plaintiffs take suit in “… the quintessentially convenient forum for the defendant – the defendant’s home forum”.7. cited by M. 456 (H. L.C. CJ. by virtue of the legislation which establishes them.S.L.393 Nevertheless. (2003) 224 D. Burden of Proof – Forum Non Conveniens and Jurisdiction Clauses A motion for a stay of proceedings on grounds of forum non conveniens (where there is no jurisdiction or arbitration clause to contend with) and a motion for a stay of proceedings because of a jurisdiction or an arbitration clause in the relevant contract are similar.C. 33-41 of the New Code of Civil Procedure: these rules are of public order. S. 453 at p. The Ship Capricorn  2 S. in my view. 587. See also arts.” 395 In the U. c. Rosa 211 F. 1289 “In the latter inquiry [i. (4th) 577 at p. 368.R. 450 at p. at pp.L. U.. as a civil law jurisdiction. 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.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. See Ravelo Monegro v. France.. Astro Dinamico  1 Lloyd's Rep. 75-99.e. Code sect. note 2.
. 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. and where the plaintiff has the burden of showing why a stay should not be granted.
In Z. In the U. 49-51 and the declinatory exceptions described at arts. c.K. “Forum Selection Clauses in Maritime Cases” (2003) 27 Tul.R. ECU-Line N. D. 1288-1289. 49 of the Supreme Court Act 1981. In Canada. 367 at p. 463.3d 509 at p.
1985 AMC 1192 (S.”398 The party seeking the forum non conveniens dismissal must convince the court of every element of the forum non conveniens analysis.I. ECU-Line N. to make a ‘strong showing’ that the court should exercise jurisdiction in derogation of the contract. (2003) 224 D. See also Allen v. 1341 (5 Cir.L. There is no unanimity among American courts. properly defines the other jurisdiction. ECU-Line N. 464. Inc. (4th) 577 at p. Md. 588. 1164. Only by making such proof can the plaintiff hope to be released from his bargain to sue or arbitrate elsewhere. 1987 AMC 2735 at p. 5) Thereafter. 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. 2003 AMC 1280 at p. 1985). 462. 1996). 508. N. at p. Pompey v. 301. 1958 AMC 1335 at p.R.Y. As was said in Gulf Oil v. that the clause is legible.R. 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. Supp. Vaasa Line Oy.S. the party who challenges the jurisdiction clause (usually the plaintiff) has the burden of establishing why a stay should not be granted400 (i. the plaintiff's choice of forum should rarely be disturbed. 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). 402 407 U.R.V.399 4) If there is a jurisdiction clause. 1975). (2003) 224 D. 1289. however.401 it was held: “This is a forum-selection clause and it is prima facie valid and enforceable”. Lloyd’s of London 94 F. 588.L. it was held in Acciai Speciali Terni USA. that the clause is validly incorporated into the contract of carriage.S. etc. and 1972 AMC at p. 1 at p. “Thus. Monroga 254 F. 400 Z. 450 at p. that: “The seminal Supreme Court decision enforcing a forum selection clause places the burden on the plaintiff.I.” Dukane Fabrics v. relying on M/S Bremen v. and also quoted in Perusahaan Umum v. 1958). upheld in the Supreme Court. 359 U. Zapata Off-Shore Co. 464.2d 1147 at p. 1973 (S. Tel Aviv 711 F. 1235. 10. Supp. 1959 AMC 1327 (1959). Pompey v. 399 See In re Air Crash Disaster Near New Orleans. Thus in Kooperativa Forbundet v. 2003 AMC 1280 at p. 1414 (1972). courts frequently dismiss suits instituted in breach of valid foreign jurisdiction or foreign arbitration clauses.2d 1231 at p. 202. 928 (4 Cir.C. 1972 AMC 1407 at p. where the Court stated.S. who brings suit in a forum other than the contractually agreed one. 398 See also Z. as to the precise legal basis for such unconditional dismissals.S. 71 (5 Cir. the party (defendant) attempting to change jurisdiction has the burden of proof as to why the stay of proceedings should be granted. N. 1418.65
3) Once it is shown that the forum has jurisdiction over the subject matter of the suit. 531 (D. 1289. S.S. 450 at p. Some Circuits tend to apply the
330 U. Gilbert:397 “But unless the balance is strongly in favour of the defendant.2d 458 at p. v. 403 181 F.e. 2002). 2760 (1987). 15.
. 821 F. M/V Berane.”403 XV.2d 297 at p. 501 at p.  1 S. to which he has (presumably) agreed. 2002 AMC 528 at p. why the contractually stipulated jurisdiction.D. 1985 AMC 67 at p. and that there has been notice to the other party.D. La.  1 S. 1983). quoted in Carbon Black Export v.3d 923 at p. 180.402 Citing the same precedent.Y. (4th) 577 at p. 401 1975 AMC 1972 at p.C.R. See also 407 U. Hre1jin 600 F.V. Staying Suit -All Jurisdictions
In the United States.
for example.Y. Allianz Ins. Hugel v. for example. faced with a motion of forum non conveniens. 1222 (10 Cir.3d 1171 at p.R.C. 409 The stay of proceedings is the temporary suspension of the proceedings by a court in order that certain conditions be fulfilled or some act be carried out by one or more of the parties. v. Inc. 1975.S. Inc.2d 628 at p. United Int’l Holdings. For a thorough analysis of the differing approaches of different American circuit courts of appeal to this matter.66 Federal Rules of Civil Procedure.410 This is an intelligent and proper approach. 367 at pp. Inc. 698 (D. 1999 AMC 2053 at p. 2001 U.A. 1996)..). Dis. 407-408. v. Davies. 1975: “The motion to decline jurisdiction is granted subject to the provision that none of the parties be prejudiced as to any rights they had on July 24. v. for example.3d 1207 at p.A. M/V Orsula 354 F. 1995). 1999). particularly as a stay would permit the U. v. 376. N. 406 See. Co.D. 119 at p. 630. ibid. 324. v. 131 F. unreported.2d 206 at p. by contrast.P. supra at p. 2000 AMC 2947 at pp. 123 (C. Commerce Consultants Int’l. of Aust. court to re-assume jurisdiction in situations where U.3d 825 ast p. 1998). 1601 (9 Cir. Longwall-Associates.2d 697 at p. Orient Overseas Line 1976 AMC 212 at p.S. whereby the courts seized of the motion to enforce the clause does not deny its own jurisdiction. judgments staying suit will be conditional on the defendant agreeing to appear and appearing in the new jurisdiction.A. 2948-2949 (E. Kysar 983 F. Corporation of Lloyd’s 999 F. 2d 787 at pp. Inc.S. whether service may be made. v. 2002). but merely declines to exercise it. 830 (7 Cir.Y. Inc. 606.3d 603 at p. Technicians & Health Care Workers of N. 405 See. 407 Licensed Practical Nurses. 2000).407 In England and Commonwealth countries. The El Amria 1981] 2 Lloyd’s Rep. Co. London 148 F. Akai Pty. Frietsch v. 886-887 (S.S. Co. 1174. 2001 WL 667804. 410 Hartford Fire Ins. This preserves the legitimate rights of the claimant as to time for suit and other unknowns and imponderables (e.C. 2002 AMC 1598 at p. M. In foreign forum selection clause cases too. Va. Ulysses Cruises. see M. L. stays would seem preferable to unconditional dismissals. Lexis 8113 (W.2d 393 at pp. Davies. 444-445 (High C. Vetrerie Riunite.D. 2000).. 2055 (D. 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. Ltd. 1993). N. GmbH. has jurisdiction.p. 322 at p. v. 2001 AMC 869 at pp. 418 at pp. cited by M. 2003). Co. Fourth Circuit decisions such as Jewel Seafooods Ltd. 1993). and even whether the other court will accept jurisdiction). but rather by stays of proceedings. 1290 (11 Cir.406 The inherent power of the court to regulate its own proceedings can also be applied either to dismiss or to stay proceedings. v. Supp.L.
See. Lipcon v. 867 F. June 12.”
. 214 (W.D. the date of the filing of this lawsuit” See also Snam Progetti S. 369-376. 2001. Refco. Davies. v. forum selection clauses and foreign arbitration clauses are typically enforced not by dismissals. Supp. Lauro Lines 387 F. COGSA applies and the foreign court reduced the rights of cargo claimants below the minimum guaranteed by U. 210 F.408 Where a court. Supp. 633 (S. S. of Canada v. Lambert . Va. Mar. on the time for suit defence being waived and on appropriate security being filed. 408 See.2d 1110 at p. Underwriters at Lloyd’s. v. S. Wash. Wolfgang Preinfalk. 1112. 188 C. 2001). COGSA. 131 F. Kukje Hwajae Ins.D. Co. Cho Yang Shipping Co.Y.v.g. note 1 (1 Cir.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 1285 at p. Cir.J. M/V Hyundai Liberty 294 F. it is preferable that the court stay proceedings409 rather than dismiss them. 207 (7 Cir. M/V Peace River 39 F. 789-790. Supp. 2000). “Forum Selection Clauses in Maritime Cases” (2002) 27 Tul. 175 (7 Cir. Inc. Rules 12(b)(1) (dismissal for want of subject-matter jurisdiction). 1975 AMC 631 at p. Abatement is the dismissal of the action. for example. People’s Ins. 2004 AMC 172 at p. 1989).D. 56 F. Wharf (Holdings) Ltd. Continental Ins. Very often.
). 413 See.C. for example. Sabena Belgian World Airlines 731 F. GmbH 428 F. For Australia.S. British Columbia (Workers’ Compensation Board)  1 S.C. Laker Airways Ltd. however. Laker Airways Ltd. Armco  1 Lloyd’s Rep.C. infra.). 24. British Columbia (Workers’Compensation Board)  1 S. of Aust. see CSR Ltd. In general. C-159/02). for example. Where a party has already taken suit in a foreign jurisdiction or is about to do so.L. 425 (H. Anti-Suit Injunctions Anti-suit injunctions are closely related to forum non conveniens. see. 1999 AMC 305 (2 Cir.L. 119 at p. 119. SNI Aérospatiale v. 637 (H.2d 888 (5 Cir. For the U. see.). v. Assurantie Maatschappij ‘de Zeven Provincien’  A.L. where the foreign proceedings are viewed by the domestic court as vexatious or oppressive or unconscionable.C. Australia Ltd. 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.2d 33. M.. In the U. 138. 1984). 631 at p. iCigna Ins. and the foreign court has taken. 871 at p. N.C. 407 U. Bankers Trust Co. where the House of Lords referred to the “… indirect interference with the foreign court which an anti-suit injunction entails. because anti-suit injunctions interfere. or is about to assume. see Amchem Products Inc.). 893 (P. Cir.Y. Airbus Industrie GIE v. See. 1 (1972). 897.  1 Lloyd’s Rep. 58 at p. In re Unterweser Reederei.L. Sabena Belgian World airlines 731 F. 1 (1972). 1988 AMC 880 (2 Cir.R. Airbus Industrie GIE v. v.L. rev’d on other grounds.2d 888 (5 Cir. Patel  1 A.  A. had it applied the forum’s principles of forum non conveniens. Donohue v. because of its real and substantial connection with the case. The Second.C. 1998).
. would have had a reasonable basis for concluding that there was no clearly more appropriate alternative forum.K.. for example.S. Grovit (Case No. v.C. jurisdiction. Patel  1 A. 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. the Fifth. v.C. 2004 (E. 1970). Sixth and District of Columbia Circuits. and that the injunction is necessary to prevent and injustice.L. For the U.R.” See also Turner v.J.C. supra. v. for example.C. See Laker Airways Ltd.S. In Canada.67 XVI.C. Patel  1 A. 58 (H. In re Unterweser Reederei.3d 115.413 they are issued only sparingly. 123. 1987): Gau Shan Co. GmbH 428 F. aff’d 161 F. which involves a forum non conveniens type of analysis. 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. Cir. 897.  1 Lloyd’s Rep..2d 909 (D. International Maritime and Admiralty Law.D.C.). 1984). 956 F. the injunction should only be granted if the forum court decides that the foreign court. Seventh and Ninth Circuits have issued anti-suit injunctions where the foreign proceedings are vexatious. v. 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. Lee Kui Jak  A. rev’d on other grounds. for example. Co. April 27. v. 119 at p. Farrell Lines Inc. 407 U.C. v. and Others (1997) 146 A.L. under pain of contempt of court. 317 (H. For Canada.). Airbus Industrie v.R. 1998). v. 95 (H.411 XVII.C. China Trade & Development Corp. at least indirectly. 402 (H. Ceres Terminals Inc. 2003 at pp.412 The forum court will only grant an anti-suit injunction where it is convinced that it is an appropriate forum for the litigation.414 They have also been issued. Laker Airways Ltd. The acceptance of anti-suit injunctions has become widespread. In addition. in Amchem Corp. 1970).). on the other hand. Choon Yong 837 F. 414-415. British Airways Board v. 1992). for example.2d 1349 (6 Cir. 414 See. contrary to the principle of comity.). South Carolina Ins. 631 (H. with the jurisdiction of foreign courts.  2 Lloyd’s Rep.  A. British Airways Board v. 1998 AMC 334 (S.2d 909 (D.S.V. oppressive or will otherwise cause inequitable hardship.  1 Lloyd’s Rep. 631 at p. to prevent parties from
See the discussion of the six steps in this process surrounding notes 12 to 15.). See other examples cited in Tetley. 640.
2002 for all
Continental Bank NA v. adopted by the Council of the European Union on December 22. Grovit.J.)." This proscription of anti-suit injunctions as between the courts of Brussels Convention States would presumably also apply to preclude anti-suit injunctions (whether sought to prohibit vexatious proceedings or to enforce jurisdiction clauses and agreements) as between States party to EC Regulation 44/2001.A.C. Grovit (Case No. 416  1 W.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. 29 and 30 of the ECJ decision.R. 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. including bills of lading. Aeakos Compania Naviera SA  1 Lloyd’s Rep.) (exclusive jurisdiction clause in loan agreement). Such an assessment runs counter to the principle of mutual trust which.) (bill of lading arbitration clause).68 breaching exclusive foreign jurisdiction or foreign arbitration clauses in contracts. The ECJ endorsed the opinion expressed by Advocate General Ruiz-Jarabo Colomer in Turner v.). 216 (E.A. 1968.A.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. 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. C-159/02).419 even where such injunctions are issued so as to prevent an abuse of process by a party acting in bad faith with a view to frustrating the existing proceedings. 2004. in Turner v. 2004 at paras. See paras. 107 (H.422 which replaced the Brussels Convention as of March 1. adopted at Brussels. Any injunction prohibiting a claimant from bringing such an action must be seen as constituting interference with the jurisdiction of the foreign court which. 417 Convention on Jurisdiction and the Recognition of Judgments in Civil and Commercial Matters. 418 See the judgment of the European Court of Justice. The Angelic Grace  1 Lloyd’s Rep.416 has held. The Epsilon Rosa  2 Lloyd’s Rep. 505 (C. as such. (2004) 10 JIML 134. 710 (bill of lading jurisdiction clause). Grovit. except in special circumstances which are not applicable in this case. 422 EC Regulation 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. 380 and The Bergen (No. and which came into force
." 421 Ibid. underpins the Convention and prohibits a court. 509 (C.). See also the case comment by D. Grovit (Case No. restraining a party from commencing or continuing proceedings before a foreign court undermines the latter court's jurisdiction to determine the dispute. at para. is incompatible with the system of the Convention. on a preliminary reference from the House of Lords in Turner v.L. 420 Ibid. 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. September 27. 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. 24 and 25. 27. backed by a penalty.L. from reviewing the jurisdiction of the court of another member State. Rhidian Thomas. 2)  2 Lloyd’s Rep. 87 (C. as pointed out in paragraphs 24 to 26 of this judgment. reported in  1 Lloyd’s Rep. The Bergen  1 Lloyd’s Rep. April 27.415 The Court of Justice of the European Communities. at para. 419 Turner v. April 27. C-159/02). leave to appeal to House of Lords refused (charterparty arbitration clause). however. 2000.
but must stay the proceedings before it of its own motion.C. 424 (Case C-116/02). 413. corresponding to arts.C.69 E. v. 222 (E. "Anti-Suit Injunction: La CJCE met fin à un anachronisme" DMF 2004. as a result of another development in European law.g. render anti-suit injunctions unnecessary. Hijazy (The Kribi)  1 Lloyd’s Rep.423 Moreover. being the court “second seized”. 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. thus reversing the controversial English decision in Continental Bank NA v. This is a positive development.U. on March 1. 21. L 12/1 to L 12/23. in alleged violation of a clause conferring exclusive jurisdiction on a court in another such State. 21 over art. 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. to prohibit the institution or prosecution of litigation in jurisdictions outside the E. Member States except Denmark.g. within the meaning of art. art. In Gasser GmbH v. the court second seized must decline its jurisdiction.A. where a jurisdiction clause is involved. 21 of the Brussels Convention 1968. Aeakos Compania Naviera SA  1 Lloyd’s Rep. where the initial proceedings in such a case are instituted before a court in a Brussels Convention State. 76. 17. 21 of the Convention. in effect. Gasser thus promises to also ensure the supremacy of art. it is the court first seized of the dispute. 2002. because the court first seized is obliged (by art. On the other hand. (2004) 10 JIML 131. MISAT SrL. 505 (C. The court designated by the clause and before which proceedings are subsequently taken on the basis of that agreed jurisdiction. it is the court where the proceedings were taken. Member States therefore seems to be a thing of the past. 17 of the Convention.E. that decides on its jurisdiction in the light of the clause.U. except Denmark. Rhidian Thomas. 23 of EC Regulation 44/2001. such injunctions arguably continue to be available in cases where neither the Brussels Convention and E. see DMF 2004.  1 Lloyd’s Rep. 21 of the Brussels Convention 1968 or the court designated by the jurisdiction clause under art.
. unless and until the court first seized declines jurisdiction.) and subsequent decisions such as OT Africa Line Ltd.424 the Court of Justice of the European Communities held that. 21 and 17 respectively of the Brussels Convention 1968. The application of this rule will. See also the critical commentary of the Gasser decision by D. see O. In consequence. Denmark continues to be governed by the Brussels Convention 1968. anti-suit injunctions now seem to be unnecessary as between courts in Brussels Convention and EC Regulation 44/2001 States.). For the text. may not rule on its jurisdiction. 27 over art. 423 See the case comment by Renaud Carrier. 17 of the Convention) to decline jurisdiction in the face of a valid clause attributing exclusive jurisdiction to the court second seized. In this way. being the court “first seized” within the meaning of art. “Who Decides on Jurisdiction Clauses?” in  LMCLQ 25 at p. Regulation 44/2001 applies (e.J. and possibly also in cases within the
in all Member States of the European Union.425 While the issuance of anti-suit injunctions as between E. 403. The Gasser decision will likely also apply to the determination of jurisdiction under EC Regulation 44/2001. if the court first seized establishes its jurisdiction to try the dispute (e. because the jurisdiction clause is not valid or is not exclusive). 27 of which is similar to art.C. that is entitled to decide whether it has jurisdiction in the light of the clause. For the official French text of this decision. under the Brussels Convention 1968. 425 See Y. Baatz.).U. which is entitled to rule first on whether or not it has jurisdiction to try a dispute. consistent with the historic principle of comity in private international law and the increased judicial integration of Europe since 1968. The decision constitutes the triumph of art. 29. even if proceedings there are protracted.J.
. art. in particular art.11 at p. 27 of EC Regulation 44/2001 did not apply to an arbitration clause.S. 391-392. 3 Ed. 3. and E.U. Clunet 1964. 73 at p. so that it was not necessary to stay proceedings until the Finnish Court had ruled on its jurisdiction in the light of the clause. 3 Ed.C. because the Regulation did not apply to arbitration. third para. 2002.49 at pp. See also Phillip Alexander Securities and Futures Ltd. In cases subject to the Convention or the Regulation. at art. sect. the Brussels Convention 1968 at art. 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. June 10. 28.T. 427 See. For France.) and The Hari Bhum  1 Lloyd’s Rep. note Goldman. in force June 7. 27. 21 of the Brussels Convention 1968. 3155(1) (lack of jurisdiction) and (5) (manifest inconsistency with public order as understood in international relations). see the Civil Jurisdiction and Judgments Act 1982. adopted at New York. 330 U. 1982. For the U. enforcement could probably also be resisted on grounds of lack of (international) jurisdiction of the court or tribunal that rendered the decision or on grounds of public order. 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. 206 at p. art. 36(1)(a)(iv) and art. v. and actually obtains a judgment or award from the foreign authority.70 E. 1985. 212. See Briggs & Rees. V(2) (recognition or enforcement not in accordance with public policy of country where recognition and enforcement are sought). See also EC Regulation 44/2001.429 These basic conflict of law principles and rules constitute a strong support for jurisdiction and arbitration clauses in bills of lading.427 Even if no anti-suit injunction has been issued. as in other contracts.. 32(1) in cases not subject to either the Brussels Convention 1968 or the E. involving arbitration clauses.C. holding that the first seized rule of art. on the ground that it violates public policy. for example. and also disregards an anti-suit injunction prohibiting him from commencing or continuing such proceedings. 439. 115 (C. for example. The Hari Bhum  1 Lloyd’s Rep. adopted at Geneva. 7. being The Ivan Zagubanski  1 Lloyd’s Rep. c. 35(3)). June 21. 27(1) or the Regulation’s art.302. Bamberger  I.N. U. 5. 206 at p. See also the corresponding provisions of the UNCITRAL Model Law on International Commercial Arbitration. 36(1)(b)(ii). lack of jurisdiction may not be invoked to refuse recognition to a judgment rendered in another Member State (Brussels Convention.L.426 XVIII. The decision invoked a similar decision rendered under art. 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. 34(1). 34(1). the Québec Civil Code 1994. corresponding to art. State contrary to an anti-suit injunction issued in England in support of an English arbitration clause. 1959. 429 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention 1958”).A. 2002. 1(2)(d).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. Regulation 44/2001. See also Briggs and Rees.U.
See. 27(1) of the Brussels Convention 1968. arbitration being excluded from both the scope of both the Brussels Convention and the EC Regulation. and a powerful defence against attempts to circumvent them.K. 428 See. 27(1). 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. para. V(1)(d) (composition of the arbitral tribunal or arbitral procedure not in accordance with agreement of parties) and art. 1958.K. art. art. by virtue of its art. Civil Jurisdiction and Judgment. 106. Regulation. for example.Pr...
. Civil Jurisdiction and Judgments. the decision may be refused recognition and enforcement in the contractual forum. para. 215.
Rees. See also A. Damages for Breach of Jurisdiction and Arbitration Clauses and Agreements Besides anti-suit injunctions and the non-recognition of judgments and awards rendered by “non-contractual” foreign courts and tribunals. Doleman & Sons v. connection with the parties and their contract and is typically more convenient to the carrier than to cargo. “Breaking promises to litigate in a particular forum: are damages an appropriate remedy?”  LMCLQ 435. 375 (C. 432 See D. the possibility of such damages also being awarded for breaches of exclusive English jurisdiction clauses has also been recognized by English courts. 5) the in rem and/or in personam nature of the suit. 2) any legislative constraints on that jurisdiction. In addition. Zoller  1 W.R. Neither the Hague Rules nor the Hague/Visby Rules regulate jurisdiction or arbitration. Union Discount Co. on the other hand.).). forum selection and arbitration agreements may now be further reinforced (in England at least) by the awarding of damages for their breach. provide the cargo claimant with options of places in which to sue or arbitrate. 25 (H. and 6) the propriety of granting or refusing a stay of proceedings.C. a charterparty). 431 See Donohue v. The forum selection clause is usually a “boilerplate” term of the bill.. but nevertheless suggesting that an alternative basis for such damage awards may be found in English tort law (e.430 More recently. Armco  1 Lloyd’s Rep. “Anti-suit injunctions in cross-border insolvency: A restatement” (2003) 52 ICLQ 697. para. seldom negotiated or expressly consented to by the shipper or the consignee. 1524 and 1527 (C. v. Ltd. the forum court usually follows a six-step process. 293-296. Tan & N.L. 4. who criticizes this development.). But see also L.g.g. comparing the two positions and arguing that contractual damages for such breaches are problematic because of basic differences between arbitration and jurisdiction clauses. It is therefore scarcely surprising that “choice of forum” clauses tend to be contested. “Damages for breach of English jurisdiction clauses: more than meets the eye”  LMCLQ 46.A. Yeo. for example.A. Briggs & P. however.432 XX. The Hamburg Rules and the Multimodal Convention. Civil Jurisdiction and Judgments. Ho. according to a specified national law or international carriage by sea convention. Mantovani v. unreported. supporting the availability of contractual damages as a sanction for the breach of an exclusive English jurisdiction clause. Carapelli SpA  1 Lloyd’s Rep. Ossett Corporation  3 K. This development appears somewhat controversial within the British academic circles. and A/S D/S Svendborg D/S of 1912 A/S Bodies Corporate trading in partnership as ‘Maersk Sealand’ v. 1517 at pp.26 at pp.
. of which he may avail himself notwithstanding
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.). Akar  EWHC 797.A. 4) the wording and effect of the clause in the bill or incorporated document (e.L. if any. When such contestation arises. the designated jurisdiction frequently has little. 2002.B. in the tort of malicious prosecution and/or the tort of unlawful interference with business or trade). 3 Ed. See also Chee Ho Tham. London. 3) the appropriateness of sending the case elsewhere for trial or arbitration.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. It has been recognized for some time that contractual damages may be awarded for the violation of an agreement to arbitrate in England. 257 (C.71
XIX. inquiring into: 1) its own jurisdiction.
however. has permitted Canadian suit or arbitration. the Lugano Convention 1988. to overturn a clearly-worded
The resistance of many carriers and their underwriters to the prospect of cargo consignees exercising those jurisdiction/arbitration options and thus overriding boilerplate forum clauses in carriers’ bills of lading. Courts in common law countries and some mixed jurisdictions are empowered to exercise discretion. explains much of the unwillingness of major shipping nations to becoming party to the Hamburg regime. on grounds of forum non conveniens. In Europe. far from uniform in this important area. despite a foreign forum selection or foreign arbitration clause. National law is. where such an option would be available if the Hamburg Rules applied to the contract of carriage. 119 at pp. and genuinely agreed to by the shipper and consignee.
. although such laws typically treat arbitration clauses more liberally than jurisdiction clauses. following the principles laid down in The Eleftheria434 and The El Amria.433 The options enable claimants to institute proceedings in places having some genuine connection with the contract of carriage and its performance. as well as convenience and expense for the parties and the juridical advantages and disadvantages of proceeding in one or other venue. It is by no means easy. or reflects established practices between the parties. at the cargo claimant’s option. unfortunately. the Brussels Convention 1968. in its Marine Liability Act. so as to send the case to its “natural forum”. courts in such nations are thrown back on their national law in assessing the enforceability of the impugned clause. Canada. 237. Where no statute prohibits or restricts jurisdiction clauses. requiring them to be between merchants. as a condition of release from his jurisdictional “bargain”. by comparison. is the clearly more appropriate venue for adjudicating the dispute. New Zealand and South Africa) prohibits parties from “ousting” the jurisdiction of the national courts by way of forum selection clauses. rather than the defendant. clear and apparent on the face of the bill of lading. the forum non conveniens analysis has been articulated differently and it also requires the plaintiff. including the location of witnesses and evidence. Because few major shipping nations are party to the Hamburg or the Multimodal conventions. connections with the competing jurisdictions and the law applicable to the dispute. however.A. all permit choice of forum by contract. 434  1 Lloyd's Rep. Most standard forum selection provisions in bills of lading would be enforceable under those rules. All relevant circumstances are considered. National legislation in certain countries (e. however. in ordering stays of proceedings. 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.435 require the plaintiff to show “strong cause” why he should be permitted to proceed elsewhere than where the contract stipulates. 123-124 (C.g.). the Nouveau code de procédure civile lays down strict criteria under which contractual forum selection provisions will be upheld. rather than the contractually designated one. In the presence of a jurisdiction or arbitration clause. Australia. or generally conforms to international usage in the trade concerned. in international shipments to and/or from their ports. where the relevant clause is written or evidenced in writing. In French internal law. British and Commonwealth courts. 435  2 Lloyd's Rep.72 any inconsistent forum selection or arbitration clause in the bill of lading.
A fair and effective international cargo liability regime must strive to resolve this important problem. 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. fraudulent or repugnant to public policy – a daunting task. if shippers. carriers. In consequence. receivers and underwriters are to be well served in the years ahead. Nor is it easy in the United States. Faculty of Law McGill University Montreal.tetley@mcgill.S.ca/
407 U. but within Europe it increasingly appears that their employment to enforce jurisdiction clauses is invalid. and are. Jurisdiction and arbitration of marine cargo claims thus remains a controversial issue and an ongoing challenge for maritime carriage of goods law everywhere.ca website: http://tetley. Q. 528.mcgill. William Tetley. where since the Bremen436 and Sky Reefer437 were decided. Anti-suit injunctions can be.
Prof. in a more uniform manner than at present. and because they may be unnecessary in the light of recent interpretation of the provisions of those instruments. 1995 AMC 1817 (1995).
. used to enforce jurisdiction and arbitration clauses. Canada e-mail: william.73 forum clause applicable to the claim.C. the importance of the convenience of the litigants and the connections of the case have declined in significance.law. 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. Quebec. 1. 515 U. because they have been found incompatible with the Brussels Convention 1968 (and presumably with EC Regulation 44/2001 as well). 1972 AMC 1407 (1972). obliging cargo claimants to meet the heavier onus of proving that enforcement of the clause would be unreasonable.S.