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© Prof. William Tetley, Q.C.∗
Preface I. II. III. Introduction Choice of Jurisdiction – Six Steps to Follow International Carriage of Goods Conventions and Choice of Jurisdiction 1) 2) 3) 4) IV. V. VI. The Hague Rules 1924 The Hague/Visby Rules 1968/1979 The Hamburg Rules 1978 The Multimodal Convention 1980
Jurisdiction Clauses Invalid under National Law Jurisdiction Clauses Restricted by National Law Jurisdiction Clauses Restricted by European Law 1) 2) 3) The Brussels Convention 1968 EC Regulation 44/2001 Other conventions
Is There a More Convenient Jurisdiction?
VIII. United States - Forum Non Conveniens 1) 2) 3)
Private and public interest factors Forum non conveniens –not a characteristic feature of U.S. general maritime law Admiralty - no special restrictive rule
Professor of Law, McGill University; Distinguished Visiting Professor of Maritime and Commercial Law, Tulane University; counsel to Langlois Kronström Desjardins (Langlois Gaudreau O’Connor) of Montreal. The author is indebted to Vanessa Rochester, a third-year student at the Faculty of Law of McGill University and to Robert C. Wilkins, B.A., B.C.L., for their assistance with the preparation and correction of the text.
2 4) XI. Forum non conveniens and in rem jurisdiction
United States – Foreign Forum Selection Clauses in Bills of Lading 1) 2) 3) 4) Foreign jurisdiction clauses generally unenforceable Foreign jurisdiction clauses presumptively valid Foreign arbitration clauses presumptively valid Criteria as to enforcement - U.S. a) Is U.S. law being avoided? b) The parties should not lose rights already acquired c) The convenience of the new jurisdiction is less important today d) Must not contravene sect. 3(8) e) Reasonableness f) In rem - United States g) Transfer within the U.S. Jurisdiction clauses and third parties
The United Kingdom - Forum Non Conveniens 1) 2) 3) 4) 5) 6) 7) Introduction The modern regime – U.K. The rule in The El Amria Res judicata Public policy, English law U.K. - E.U. – EC Regulation 44/2001 Service out of jurisdiction - The 1982 Act and CPR Rule 6.20 a) Where leave is not required b) Where the court's leave is required 8) No service of a claim form in rem out of jurisdiction Canada - Forum Non Conveniens 1) 2) Introduction - the principle Jurisdiction clauses - the criteria - Canada
France 1) 2) 3) 4) 5) Introduction Prohibition under law French domestic law - jurisdiction clauses France and the 1968 and 1978 Conventions Opposability to consignee and endorsees
XIII. Jurisdiction Clauses Per Se - The Criteria - All Jurisdictions 1) The conflict of law rules
3 2) 3) The law by which to judge the clause Discretion a) Clear and precise b) Jurisdiction clauses by reference c) Jurisdiction clauses and third parties d) Legibility of the clause e) Plurality of defendants
XIV. Burden of Proof – Forum Non Conveniens and Jurisdiction Clauses XV . Staying Suit -All Jurisdictions
XVI. The Six Steps Applied XVII. Anti-Suit Injunctions XVIII. Non-Recognition of Foreign Judgments and Awards XIX. Damages for Breach of Jurisdiction and Arbitration Clauses and Agreements XVIII. Conclusion
He has also been a kind and generous friend.L. as a scholar. as well as a researcher.. He has been happily married to Ruth for 42 years. cheerful persona. An esteemed chef. analyst and writer on law – in other words. Bob Force combines all this with a happy. counsel to Langlois Kronström Desjardins (Langlois Gaudreau O’Connor) of Montreal. for their assistance with the preparation and correction of the text.∗ Preface PROFESSOR ROBERT FORCE It is an especial pleasure to join with colleagues from around the world in honouring Robert Force. which is much more difficult. William Tetley. B. took the great tradition of maritime law teaching at Tulane and gave it form. he can also be a pleasant and popular guest. so that the Tulane Maritime Law program is outranked nowhere else. Q. a third-year student at the Faculty of Law of McGill University and to Robert C. William Tetley. I have known him for twenty-five years as a devoted and very competent law teacher. . Professor McGill Law Faculty Montreal. Johnsen Professor of Maritime Law at Tulane University Law School. Wilkins.C.C. With appreciation and gratitude. B. CANADA ∗ Professor of Law. The author is indebted to Vanessa Rochester. Distinguished Visiting Professor of Maritime and Commercial Law. as Director of the Tulane Maritime Law Center. Q. McGill University.. He is also an administrator who. Tulane University.A.C.4 JURISDICTION AND FORUM NON CONVENIENS IN THE CARRIAGE OF GOODS BY SEA Prof. Niels F. judge of good wine and remarkable and generous host. has a lawyer son. order and direction. a doctor son and what could be a spoiled grandson.
515 (1932). 413 at pp. Supreme Court justices.1 Choice of jurisdiction is one of the three major branches of conflict of laws. 420-421. 451. v.C.S. 223 note 13 (1981). Perusahaan Umum v. and became part of the common law of many States. Tel Aviv 711 F. (H. citing Piper Aircraft Co. A/S Den Norske Afrika Og Australie Line.S. 1099 (1950). The Jerusalem 13 Fed Cas.S. 516 (1932). although deciding that forum 1 .2 and is of major importance in maritime law.7 Canada Malting Co. The Capricorn. The Maggie Hammond 76 U. in recognizing that forum non conveniens “originated in Scotland. at pp. 197 at p. Paterson Steamships Ltd. v. See also American Dredging Co. who mentions Société du Gaz de Paris v. Rep. Miller 510 U. Co. The Cali (Swift & Co.C. v.” 6 The Belgenland 114 U. where he refers to “the Scottish legal doctrine of forum non conveniens”.S.3 so is it essential that choice of jurisdiction rules used by various seafaring nations be the same. 235 at p.L. 457 (1870). 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.5 I.) 435 at p. In consequence.6 which latter has its closest connection with the civil law. 1950 AMC 1089 at p. ibid. 1982 AMC 214 at p.2d 1231 at p. because of the mobility of ships (the usual defendant) and the fact that carriage by sea very often involves more than one jurisdiction.) 13. Paterson Steamships Ltd. v. 449. 684 at p.A. 443 at p. 1933). 501 at p. motions for stay have been received more sympathetically. Compania Colombiana del Caribe) 339 U.S. which passage was quoted in Gulf Oil Corp. the courts of all nations have jealously guarded their jurisdictions and have looked unfavourably on clauses in contracts which called for suit elsewhere. 355 at p. 1235. 1985 AMC 67 at pp. however. so that a whole new body of forum non conveniens law has sprung up.S. v.S. United States Merchants' & Shippers' Ins. 71-72 (5 Cir. 365-366 (1885). 559 (No.  2 S. (9 Wall. 65 F. International Conflict of Laws.2d 392 (2 Cir. Just as it is imperative that maritime law be uniform and international and that choice of law rules be similar throughout the world.S. 450. 791 and 867. 1814). 918 (1994). where three of five U. v.S.D. 1932 AMC 512 at p. 2 The other two branches are choice of law and recognition of foreign judgments. Introduction In the past. as well as the yet more recent movement towards international conventions on procedure. 1983). 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. 207. 918 (1994). 209. 37-43. 200 and Lord Wilberforce at p. 504 (1947). one must appreciate that forum non conveniens has been used by both courts of Equity and of common law. where the House of Lords recognized forum non conveniens as a doctrine of general application in Scotland. 697.C. Navigation (Les Armateurs Français)  S. To fully understand forum non conveniens and the discretionary right of the trial judge. courts properly seized with a dispute. 413. (1925) 23 L. The use of a consistent conflict of law methodology would be another major boon to transnational harmony in private international law. at pp. 443 at p. See also the reference to “Scottish authorities” in Antares Shipping v. 285 U. See American Dredging Co. 4 Canada Malting Co. 248 note 13. 344. 285 U. 422-423. have usually refused motions calling for the stay of proceedings. Miller 510 U. S. Recently. See Tetley. 1994 AMC 913 at p. 3 Ibid.S. 339 at p.L. 7293) (C. Reyno 454 U. 1932 AMC 512 at p. 5 See Lord Diplock in The Abidin Daver  1 Lloyd's Rep. Unfortunately that is not the case today.4 while it has been known much earlier in some civil law regimes5 and in Admiralty law. v. See Tetley. v. 865-868. Gilbert 330 U. 1994 at pp.R. at pp. as does Lord Reid in The Atlantic Star  2 Lloyd's Rep. Mass. 422 at p. 1994 AMC 913 at p..
out of hand. 1977. 13 The first principle of Lord Brandon in The El Amria  2 Lloyd’s Rep. reprinted  ETL 469. 119 at p. 1924. Also examined is the effect of the Hague Rules. Which Benefits from Both Its Civil and Common Law Heritages)” (1999) 23 Tul.J. Barking Corporation  1 K. C. it must dismiss the suit. and in force June 23. 1985.J. nevertheless agreed that “… within federal courts it [forum non conveniens] may have been given its earliest and most frequent expression in admiralty cases. signed at Brussels.B. R. See also Canada’s Federal Court Act. 1992. 10 United Nations Convention on the Carriage of Goods by Sea.S.A. or (b) where for any other reason it is in the interest of justice that the proceedings be stayed.” See Wilkinson v. the United Kingdom.6 The present article describes choice of jurisdiction rules and the principle of forum non conveniens in Admiralty in the United States. Firstly. Tetley. 1981. the Visby Rules.. International Maritime and Admiralty Law. 12 There is no intention in this article to go into questions regarding the jurisdiction conferred upon various courts by national legislation.K.C. c.13 Only if it has jurisdiction may it proceed. Finally. “Maritime Law as a Mixed Legal System (with Particular Reference to the Distinctive Nature of American Maritime Law.9 the Hamburg Rules10 and the Multimodal Convention11 on jurisdiction clauses and on the principle of forum non conveniens. In some jurisdictions.” .1 at pp. a court which may not have jurisdiction on the merits may have jurisdiction by statute to decide a question of stay. 9-24 and 473-474. L. Tetley. the court seized with the case must decide if it has jurisdiction12 by virtue of the legislation which created it.Rev. signed at Brussels. “The General Maritime Law – The Lex Maritima” (1994) Syracuse J. 422 at pp.B. II. 1978. c.) reads: “assuming the claim to be otherwise within its jurisdiction…” 14 The House of Lords. in so doing. in Antares Shipping v. 317.L. 1998. Int’l L. stay proceedings in any cause or matter. Tetley. and in force June 2. August 25. 721 at p. The Capricorn  2 S. Canada and France in respect to carriage of goods8 under bills of lading. 1980. to determine if there is a direction in that law as to jurisdiction. 137. “A Definition of Canadian Maritime Law” (1996) 30 U. and in force November 1. signed at Geneva. the Australian Carriage of Goods by non conveniens was not a characteristic feature of admiralty law. and the second is jurisdiction to decide whether the Court has jurisdiction of the former kind. Tetley. consideration is given to the very special Admiralty problem of declining jurisdiction when an in rem arrest of a ship has been made.C. 123 (H. in its discretion.). (a) on the ground that the claim is being proceeded with in another court or jurisdiction.R.C.L. the court must look to the law which applies to the case before it. 439-440. U. held that it had jurisdiction to entertain an application for a stay (in virtue of sect. May 24. Choice of Jurisdiction – Six Steps to Follow Choice of jurisdiction problems may be settled by the following six steps taken in order. Mar. 54). 8 International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading. There are two distinct kinds of jurisdiction therefore: “the first is jurisdiction to decide the action on its merits. 453 at p. 456. 107. 1981. For example. however. it was not deciding whether it had jurisdiction to determine the case on its merits. at pp. sect. 9 Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading. 1931. Chap. Astro Dinamico  1 Lloyd's Rep. 49(3) of the Supreme Court Act. 725 (C. but that. See also comments by Laskin. Maritime Liens & Claims. 1968. February 23. in William Glyn's v. signed at Hamburg March 31. of course. otherwise. 11 United Nations Convention on International Multimodal Transport of Goods. F-7.14 Secondly. & Comm.” 7 Tetley. 2003. 50: “(1) The Court may. 2 Ed. 7-60. not in force.
III. For the texts of these two forms. Such clauses ordinarily call for suit or arbitration in the jurisdiction most convenient to the carrier. 1988 at pp.. Thirdly. consignees or endorsees. 3 Ed. Montreal. 1931 (commonly known in English-speaking countries as the "Hague Rules"). 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. and an English translation. Fifthly. at pp. provided they are clear and unambiguous. 174. but in some document (such as a charterparty). 1924. very often in the place of the carrier’s principal place of business. The Hamburg Rules on the Carriage of Goods by Sea. Leyden/Boston. issued by BIMCO. 1121-1129. if there is a jurisdiction clause in the contract (the bill of lading). the court must decide if the other jurisdiction. See also two sample clauses in S. Sijthoff.g. International Maritime and Admiralty Law. to verify that such incorporation is complete and valid.7 Sea Act 199115 holds invalid any clauses in most sea carriage documents ousting Australian jurisdiction. both types of clauses have generally been held valid by courts in bill of lading disputes. . Appendices “P” and “Q”. to which it is called upon to defer.). Mankabady. 1978 at p. 2003. No. Sixthly. 17 See. Inc. which arrest normally gives jurisdiction in the place of the arrest. Statutory Rules 1998. August 22. see Tetley. Nevertheless. See also BIMCO's non-negotiable Liner Sea Waybill (LINEWAYBILL"). is appropriate and whether the balance of convenience favours the case being heard there. at pp. Marine Cargo Claims. ed. the court will stay the suit by an order which will preserve the rights of the parties.. 98.. e. the terms and specific wording of that clause must be considered carefully. 160 of 1991 (Cth. 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. who therefore do not have the jurisdiction/arbitration provisions brought specifically to their attention. sect.. See the official French text reproduced in Tetley. 861-862 and 863-864 respectively. if it is reasonable. of November 2000 at clause 4. 1111-1120.17 Bills of lading under the Rules are often not signed by the shippers. as amended. Fourthly. Les Éditions Yvon Blais. August 25. 1) International Carriage of Goods Conventions and Choice of Jurisdiction The Hague Rules 1924 The Hague Rules 192416 have no provision dealing with jurisdiction or arbitration of cargo claims. the incorporation by reference and notice of the incorporation must be considered carefully. as amended by the Carriage of Goods by Sea Regulations 1998. 1997 at clause 3. the BIMCO Liner Bill of Lading (Conlinebill 2000”). 2) 15 The Hague/Visby Rules 1968/1979 No. if the new jurisdiction is deemed to be convenient and proper in the circumstances. Otherwise the court will retain the suit in its own jurisdiction and will refuse the motion for stay. 11(1) and (2). i. If the jurisdiction clause is not in the bill of lading (or other immediate evidence of the contract). and in force as of June 2. adopted at Brussels.e. 16 International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading. ibid.
R. such clauses are generally upheld by courts and may be set up against parties to the bill of lading or similar document of carriage. December 21. to take suit before the court of: 1) the principal place of business or (if there is no such place) the habitual residence of the defendant. Art. the jurisdictional provisions do not apply if they would violate any provision of either the Brussels Convention 196821 (binding Denmark) or the Lugano 18 Protocol to Amend the International Convention for the Unification of Certain Rules Relating to Bills of Lading. 2000. Jure AB. Norway and Sweden).12. however. 1979 (in force February 14. 1994.E. Protocol 1979. for example.1978). Art. 1968 (O. art. The numbering of the articles differs. In addition. Finland. at the petition of the defendant. L. whether or not those parties have really taken cognizance of their terms. adopted at Brussels.C. adopted at Brussels. 21(2) solves the difficult problem of jurisdiction being acquired by the arrest of the ship in rem. on the one hand. 21(1) authorizes the cargo claimant. The Nordic countries (Denmark. 1992. 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.1972. see English text in O. 2 Ed. as between the Danish and Norwegian versions of the Code. and 5) any additional place designated for that purposes in the contract of carriage by sea.C. 20 This common Nordic Maritime Code came into force on October 1. 1984) (commonly known as the "Visby S.E. 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. 31. published in Swedish and English by the Axel Ax:son Johnsons Institut för sjörätt och annan transporträtt. 3) the port of loading.D. 1977) (commonly known as the "Visby Protocol 1968" and the Protocol to Amend the International Convention for the Unification of Certain Rules Relating to Bills of Lading as modified by the Amending Protocol of 23rd February 1968. and the Finnish and Swedish versions. by agreement. but in some cases with certain national qualifications. February 23.20 Under this Code. while still adhering to the Hague/Visby Rules. A number of countries have enacted national legislation in an effort to give effect to the Hamburg Rules options as to jurisdiction. 1978.J. to designate the place of suit after a claim under the contract of carriage by sea has arisen. at his option. 2) the place where the contract of carriage was made if the defendant has a place of business. signed at Hamburg on March 31. adopted at Brussels on September 27. The arrest is valid but. See. as amended by the Visby Protocol 1968 and the Visby S. for example. the Swedish Maritime Code.10. Stockholm. 299/32.R. updated to June 30. 30. 21(1) upon the defendant providing adequate security to ensure payment of any subsequent judgment. 21 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. contain no provisions on jurisdiction or arbitration. Again. 19 United Nations Conventions on the Carriage of Goods by Sea. the options as to places for suit are similar to those permitted by the Hamburg Rules.D. L.8 The Hague/Visby Rules 1968/1979. as . 304/36.18 like the original Hague Rules. branch or agency there the contract through which the contract was made. The Hague Rules 1924.J. however. 2001. 4) the port of discharge. Protocol 1979"). 3) The Hamburg Rules 1978 The Hamburg Rules19 at art. nevertheless adopted a common maritime code in 1994. nr 22.. 21(5) permis the parties. In particular. are commonly known as the "Hague/Visby Rules 1968/1979". the suit must be transferred to an acceptable jurisdiction defined in art. and in force November 1. on the other. 1968 (in force June 23.
25. 123 of 1997. 310 and 311 of the Danish Maritime Code. were authorized by the Carriage of Goods by Sea (Amendment) Act 1997.11. 319/9. L. 26(3). By art. 16. 198024 has similar provisions at art. 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. 160 of 1991 (Cth. “Arbitration & Jurisdiction in Carriage of Goods by Sea and Multimodal Transport – Can we have international uniformity?”  ETL 735 at pp. Liechtenstein. by E. 2) the place where the multimodal transport contract was made. at art. the parties may agree on a place for instituting an action after a claim has arisen. (O. “Scope of Application. Schedule 1. in force July 1. L 12/1. provided that the defendant has there a place of business. Allan Philip. the amended Hague Rules28 apply. to mean any of the following: a bill of lading.J. This Schedule of Modifications is Schedule 1A of the 1998 Regulations. 1988. 13.2.1988). 6. 7(2) of which authorized the addition of a “Schedule of Modifications” to the 1991 statute as amended.25 as amended by the Carriage of Goods by Sea Regulations 1998.1. 22 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. branch or agency through which the contract was made. or 4) the place of delivery of the goods. relating to the carriage of goods from any place in Australia to any place outside Australia or subsequently amended.J.22 both of which conventions make the domicile of the defendant the major criterion of jurisdiction. September 16. For example. or 5) any other place designated for that purpose in the multimodal transport contract and evidenced in the multimodal transport document. 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.) 26 Statutory Rules 174 of 1998.C.E. 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. except in respect to actions in rem. 1(1)(g).C. 24 United Nations Convention on International Multimodal Transport of Goods. or a negotiable document of title . 753-754. 2000 (O. 1980. Choice of Law and Jurisdiction in the New Nordic Law of Carriage of Goods by Sea” (1996) Il Diritto Marittimo 308 at pp. 1998. See also Tetley.1 and 6.9 Convention 1988.E. referring to arts. Chap. 25 No. IV. 2002.2001). except Denmark. paras. 23 See Swedish Maritime Code. 27 The term “sea carriage document” is defined in Schedule 1A (Schedule of Modifications) of the Carriage of Goods by Sea Regulations 1998. or relating to a contract of carriage to which. sect. 319-321. sect.26 reads: “11 (1) All parties to: (a) a sea carriage document27 to which. adopted at Lugano. effective March 1. 60. not in force.23 4) The Multimodal Convention 1980 The Multimodal Convention. para. or 3) the place of taking the goods in charge for international multimodal transport. The Carriage of Goods by Sea Regulations 1998 amending the Carriage of Goods by Sea Act 1991. No. 26.C. Norway and Switzerland). signed at Geneva on May 24. Regulation 44/2001 of December 22. and as later replaced for all European Union states. 11 of the Australian Carriage of Goods by Sea Act 1991.
S. International Conflict of Laws. Limited v. (Australia) Ltd. 9 of Australia’s former Sea-Carriage of Goods Act 1924.R. are taken to have intended to contract according to the laws in force at the place of shipment. 374 (Aust.). 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. 32 The Federal Court of Australia has been held that sect 11 of the Carriage of Goods by Sea Act 1991. 28 The “amended Hague Rules” refers to the Hague/Visby Rules 1968/1979. 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. John Churcher Pty Ltd.S. 29 Subsect. 22 of 1924.29 relating to such a carriage of goods. 31 No.W. note 16. 229 (N. Ct. the Hague/Visby Rules 1968/1979] are to govern the contract as if the document were a bill of lading. 9(1) of the Act.10 (b) a non-negotiable document of a kind mentioned in subparagraph 10(1)(b)(iii). See also Akai Pty Ltd. Compagnie des Messageries Maritimes  1 Lloyd's Rep. declared that a clause calling for actions to be tried in a French Court was invalid. in appeal  2 Lloyd's Rep. Sup. C.R. relating to the carriage of goods from any place outside Australia to any place in Australia. High C. of Aust.L. The Supreme Court of New South Wales. as amended for Australia by the Schedule of Modifications (Schedule 1A) of the Carriage of Goods by Sea Regulations 1998. Mitsui & Co. 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. but only on condition that the arbitration is conducted in Australia. 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). 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.”30 This legislation is very similar to sect. 123 of 1997 (Cth. so as to add sect.  2 N.R. 179 (N.” 30 The Australian Carriage of Goods by Sea Act 1991 was amended by the Carriage of Goods by Sea (Amendment) Act 1997. No. See. See also Wilson v. 1994 at p. 1988. or relating to a contract of carriage to which. England. Tetley. (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. upheld by the Australian High Court. note 80. Kiukiang Maritime Carriers (The Kiukiang Carrier)  159 A. 9 of the former 1924 statute as interpreted in the Wilson decision (supra).32 31 that is similar to a bill of lading and that contains or evidences a contract of carriage of goods by sea. 142 at pp. 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). The People's Insurance Co. the amended Hague Rules apply. (1996) 141 A. .L. 191.L.). is not negotiable.. or a bill of lading that. (1974) 24 F.L. Aust.). Marine Cargo Claims.). Sup. Ct.): A French bill of lading for a shipment from France to Australia called for suit in France. like sect. See Hi-Fert Pty. 3 Ed.W.S.) 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. by law. and has received a similar interpretation. v. 164-165 (Fed. 783-784. at pp.W. v. or (ii) a non-negotiable document of a kind mentioned in subparagraph 10(1)(b)(iii) relating to such a carriage of goods.R. 11(3) to the 1991 statute. 153. being a contract that contains express provision to the effect that the amended Hague Rules [i. however. 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). 544 (High C. Ltd. See Tetley.e.
See generally Tetley. See Zhang Jinxian.11 A number of other countries. for example. only Dutch and German jurisdiction clauses were recognized in the P. sect. Paris. as well as inside. 1997. China’s Maritime Courts and Justice. which permits both parties. at art. in a case concerning contract disputes or disputes over property rights involving foreigners (including maritime contract disputes). Pedone.4. As of 1997. A. Art. Witherby Publishers. International Maritime Bureau. V. Vialard. “Arbitration & Jurisdiction in Carriage of Goods by Sea and Multimodal Transport – Can we have international uniformity?”  ETL 735.) jurisdiction clauses in bills of lading. 426427 and para. 1991. In practice. the autonomy of parties to agree on a foreign jurisdiction for litigating their cargo claims is severely restricted. 34 See South Africa’s Carriage of Goods by Sea Act 1986.34 have enacted similar nationalistic legislation on jurisdiction clauses in bills of lading and other sea carriage documents.e.1). 447 at pp. therefore. thus being slightly more liberal than the corresponding Australian statute which allows only Australian arbitration. 35 Loi du 2 avril 1936.C.38 See New Zealand’s Maritime Transport Act 1994. to bring an action on the bill. “[n]otwithstanding any purported ouster of jurisdiction. New Zealand. Loi relative aux transports des marchandises par mer. waybill or like document for the carriage of goods inbound to South Africa. para. The word “court” in this context. although the requirement that the shipper sign the bill was repealed in 1987. Rèmond-Gouilloud. No. exclusive jurisdiction clause or agreement to refer any dispute to arbitration”. para. 210(1) and (2). London. 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). waybill or document before the competent court in the Republic. Presses universitaires de France. 193635 at art. which preclude the ouster of New Zealand jurisdiction by foreign jurisdiction clauses in bills of lading. 1966.R. 257 of the Civil Procedure Law 1991 is more liberal as regards foreign arbitration. 36 The requirement that bills of lading be signed by shippers was repealed by Decree No. prohibiting the ouster of local jurisdiction. 38 See. foreign jurisdiction clauses in ocean bills of lading are recognized by Chinese maritime courts only where the foreign country concerned recognizes Chinese (P. to agree in writing to trial by the court at the place that has an actual connection with the dispute. 244. 346347. would seem to mean the court of the P. adopted by the Fourth Session of the Seventh National People’s Congress of the People’s Republic of China on April 9. 1997.R. the Civil Procedure Law 1991 of the People’s Republic of China. Act 1 of 1986. 48.1937. amending art. 386-387. 66-1078 of December 31. 37 See M.C. 37 of Decree No.36 it must nevertheless be proven that cargo genuinely consented to the clause. Journal officiel. 87-922 of November 12.2 at p. Nevertheless. D. 1987. under art. 1936. 445 at p.C. such as New Zealand33 and South Africa. 7. 48 of France’s Nouveau Code de procédure civile. although the article does not expressly preclude selection of a foreign forum. para.. as well as the consignee or holder of any bill of lading. 533 at pp.C.C. Droit Maritime. 1993. April 11. Today. 2 Ed. 3(1) and 3(2). 33 . similar documents of title or nonnegotiable documents covering shipments to and from New Zealand. 400 and para. however.’s maritime courts. Jurisdiction Clauses Restricted by National Law The former French domestic Law of April 2. I. The court selected must be clearly identified in the bill and. jurisdiction clauses in bills of lading may only be invoked against merchants and these clauses must figure prominently in the bills. however. where the foreign jurisdictions designated by such clauses enforce forum selection provisions in similar contracts calling for suit in the P. 384.R. although that statute does permits arbitration of cargo claims outside.C. sects.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. para. and jurisprudence cited there. which permit any person carrying on business in the Republic. 104 of 1994. the burden of making such proof resting with the carrier. 621 at p. in French internal law. 499 at pp. Droit Maritime. having an actual connection with the case.R.
even where Hamburg does not apply to the bill of lading contract of its own force or through incorporation by reference. of course. It does not prohibit ousting Canadian jurisdiction over bill of lading disputes. Nestlé Canada Inc. designate by agreement the place where the claimant may institute judicial or arbitral proceedings. while still favouring local jurisdiction and arbitration. If the Hamburg Rules apply to the contract. But if Hamburg does not apply. where (a) the actual port of loading or discharge. C. under its Marine Liability Act. alternatively. the residence or place of business of the defendant or the place of contracting). For decisions on the application of sect. In effect. but permits the cargo claimant to opt instead for suit or arbitration in Canada. 46. The Viljandi  ETL 760 (Fed. 6.C.c. 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. the claim must have arisen after the jurisdictional provision has been agreed. however. see IncremonaSalerno Marmi Affini Siciliani (I. the parties to a contract referred to in that subsection may. balanced and 39 40 S. is in Canada. the plaintiff.n.39 provides the marine cargo claimant with the option of suing or arbitrating in Canada. 6. 151.S. c.” Sect. to sue or arbitrate in Canada.R. as an alternative to suing or arbitrating abroad as per the bill of lading. v. c. or the intended port of loading or discharge under the contract. 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. New Zealand and South Africa. 21 and 22 of the Hamburg Rules. in situations where that option would exist under Hamburg. 2001. 46 of the Marine Liability Act provides: “46(1) If a contract for the carriage of goods by water to which the Hamburg Rules do not apply provides for the adjudication or arbitration of claims arising under the contract in a place other than Canada. the cargo claimant may sue in the contractually stipulated place or in any of the other optional venues listed in those Rules. Sect. despite the presence in the bill of lading of a foreign jurisdiction or a foreign arbitration clause.S. 46(1) of Canada's Marine Liability Act. in force August 8. is significantly less restrictive and nationalistic than the corresponding legislation in Australia. may choose to litigate or arbitrate outside Canada.C. It seems fair.. of Can.). in accordance with the contractual clause or. in cases similar to those enumerated in arts.). 46. branch or agency in Canada.M. under sect. 2003 AMC 305 (Fed C. 2001. (b) the person against whom the claim is made resides or has a place of business.40 In the latter case. 2001. after a claim arises under the contract. v. “(2) Notwithstanding subsection (1). under certain conditions.) s.12 Canada. The Castor (2002) 297 N. the proposal is a way of giving the cargo claimant a Canadian litigation/arbitration option. . S. or (c) the contract was made in Canada.A.A.
was amended by the 1978 Accession Convention and subsequent Accession Conventions.J.1978).” 46 See. in order to protect the weaker bargaining party from foreign forum selection clauses inserted in boilerplate language by the stronger party.C. Member States. 388/1. 31. U.C. Some of these accession conventions made substantive amendments to the Brussels Convention 1968. 1975.  E.  ECR I-911. which came into force on January 1.R.U. 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. 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.b. for example. 44 Convention on the accession to the 1968 Convention and the 1971 Protocol of Denmark.C. requiring that a jurisdiction clause. pending Canada's possible eventual transition from the Hague/Visby Rules to the Hamburg Rules. C-106/95. RUWA Polstereimaschinen G. The rule was applied to bill of lading jurisdiction clauses agreed to by the parties.K. and Austria. 42 Hereinafter described as the 1968 Brussels Convention (O. 1987. Finland and Sweden (O. which includes the 1971 Protocol of Interpretation43 annexed to it.E.10. 03.E. Les Gravières Rhénanes SARL.C.15/1. 30. the decision of the Court of Justice of the European Communities in The Tilly Russ  ETL 3 at p. following the making of a report to Parliament by the federal Minister of Transport on the advisability of doing so before January 1. 43(1) and (2) and Schedule 3 of this Act). See also Estasis Salotti di Colzani Aimo e Gianmario Colzani v. the Brussels Convention 1968 was given the force of law by the Civil Jurisdiction and Judgments Act 1982. “Maritime Claims: The European Judgments Convention”.42 This Convention. and of which the weaker party remains unaware until it is too late. Although this and other ECJ decisions maintain that the formalities required by the article are themselves “… a full. 27.E.13 reasonable. London.46 Although under its Marine Liability Act. to be effective under art.C. C. as so amended and re-amended.J. 55.H. L.J. 31. 17 of the Brussels Convention 1968.E. perfect and sufficient guarantee of the existence of consent or consensus” (see Briggs & Rees.10. Spain and Portugal. 304/36. 2002. signed at Luxembourg on June 3. Civil Jurisdiction and Judgments. The Brussels Convention 1968 was re-amended three more times. Case No. L. the Accession Convention of May 26. on the admission to the European Union of Greece. be the “subject of a consensus between the parties. 41. 1982.  LMCLQ 281. (see sects. as subsequently amended by various accession conventions..C. 1982 for Greece (O.1978). 44. 299/32.12.01. 2005 and every five years thereafter (see sects.C. 1968.J. L. 17 as it has evolved in wording since 1968. 3 Ed.E. 1971 and in force September 1. para. 285/1. have reaffirmed the essential importance of a genuine agreement between the parties as to the foreign jurisdiction concerned. 1996 for Austria. the Republic of Ireland and the United Kingdom. 106). there must be the possibility of attacking 41 . 17.97 at p. 41. c. See generally Geoffrey Brice. In the U. rendered under art. to clauses confirming a previous oral agreement between them and to clause forming part of “the steady business relations” between the parties. which must be clearly and precisely demonstrated. 2. LLP.E. see English text in O. This Protocol permits the Court of Justice of the European Communities to interpret the Brussels Convention 1968 in cases referred by national courts of E. it has also adopted the Hamburg Rules 1978 and retains the option to bring those Rules into force. provided a rule requiring the courts of Contracting States to respect written jurisdiction agreements.1997). L. 45 See. signed at Luxembourg on October 9.10. L.K. See of the Accession Convention of October 25. 43 Protocol on the interpretation of the 1968 Convention by the European Court. 1831. 45(1) and (2) and Schedule 4 of the Act). for example.45 Subsequent decisions of the European Court of Justice.J.12. 15. Mainschiffahrts-Genossenschaft Eg v. 304/1. 1978 (O.98).1972. Finland and Sweden. 1989 for Spain and Portugal (O. 30.41 VI.J..1989) and the Accession Convention of November 29.44 Art.m.
23 (1) to (3). Any communication by electronic means which provides a durable record of the agreement shall be equivalent to ‘writing’. Its rule on jurisdiction agreements. read as follows: “1. as of March 1. 2000) in matters of civil jurisdiction and the enforcement of judgments. duress.C. unlike art. 107). the most pertinent portion of the new Regulation. L. 2002..C.J. .47 by the Regulation of the Council of the European Union (EC Regulation 44/2001)48. adopted on by the Council of the European Union on December 22. without the need for any implementing national legislation) to proceedings instituted on or after March 1. Briggs and Rees suggest that such a possibility may lie in the development of an autonomous definition of “agreement” (see ibid. very similar to the Brussels Convention 1968. 47 Denmark chose not to bound by the EC Regulation. but not Liechtenstein). Art. If the parties. in any court of a European Union Member State. except Denmark. L 12/1 to L 12/23. Norway and Switzerland. 319/9.E. 23. at art. “2.49 the jurisdiction clause as invalid for fraud. and also binds Poland (since that country acceded to the Lugano Convention on February 1. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. and in force in all Member States of the European Union except Denmark. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. mistake. The Lugano Convention of September 16. see Pierre Bonassies. if the electronic communications leave a “durable record”. and therefore is still governed by the Brussels Convention 1968 in its relations with the other Member States of the E. at p. (i. 17 of the Brussels Convention 1968. except for Denmark. and regularly observed by. 17 of the Brussels Convention 1968 as amended by the various Accession Conventions. parties to contracts of the type involved in the particular trade or commerce concerned. 1988 (O. one or more of whom is domiciled in a Member State. which applies directly (i. or (b) in a form which accords with practices which the parties have established between themselves. la reconnaissance et l’exécution des décisions de justice en matière civile et commerciale”  ETL 727. 23(1)(a). 2002.U. or (c) in international trade or commerce. also continues to govern three of the four remaining remaining States of the European Free Trade Association (EFTA). Like the old Brussels Convention.E.J. is couched in terms very similar to those of the most recent text of art. 2000. the EC Regulation establishes uniform rules on civil jurisdiction and the enforcement of judgments in civil and commercial matters. that court or those courts shall have jurisdiction. Such an agreement conferring jurisdiction shall be either: (a) in writing or evidenced in writing. “L’entrée en vigueur du règlement communautaire no 44-2001 du 22 décembre 2000 concernant la compétence judiciaire. see O. For the text.14 2) EC Regulation 44/2001 The Brussels Convention 1968 was replaced. 48 EC Regulation No. 25.11. provides for jurisdiction clauses and agreements evidenced by electronic documents to be treated as “writings” for the purposes of art. For commentary. 49 The EC Regulation.1988). This latter expression has yet to be interpreted by the European Court.e. 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. Iceland.e. 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. misrepresentation or frustration. in respect of civil jurisdiction and the enforcement of judgments.
March 21. under art. 17 of the Convention by the Court of Justice of the European Communities. obs. by the circumstances of the case.51to20. 17. On art. Hugo Trumpy SpA. need not name the court having jurisdiction. 733.20. Bulletin des transports 2002..  ETL 3. 187. Bonassies. In Trasporti Castelletti Spedizioni Internazionali SpA v. parties to contracts of the type involved in the particular trade or commerce concerned”. which must be sufficiently precise to enable the judge seized of the case to determine whether he has jurisdiction. 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. not by the national law of one of the contracting states. 734. In fact. DMF 2001. Delebecque. 2001 (The Nedlloyd Van Neck)  ETL 926. in its decision in Coreck Maritime GmbH v. 53 See P. Art.” (Emphasis added) The text of art. March 16. 17 from which the European Court of Justice in The Tilly Russ50 drew the criteria for a valid and enforceable jurisdiction clause. the courts of other Member States shall have no jurisdiction over their disputes unless the court or courts chosen have declined jurisdiction. Ph. first para.52 and its three main findings would appear to remain applicable to such clauses now that the very similar art. See also Cour d’Appel de Rouen. 23 of EC Regulation 44/2001 (like the most recent text of art. 337. Bonassies. 2002. supra. 23 of EC Regulation 44/2001 is in force:53 (1) the wording of the jurisdiction clause. 54 Thus. at p. See P.15 “3. 1999 (Case No. where the bill of lading jurisdiction clause did not expressly specify the name of the court selected. 1984. 387-98). June 21.  ETL 727 at p. Delebecque. supra. 17. of the Brussels Convention 1968) is different from the pre-1978 text of art. 17 of the Brussels Convention generally. Bills of Lading: Law and Contracts. Handelsveem BV. November 9. 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.  ECR I-9337. may be “concretized”. therefore.54 European Court of Justice. 2000 at paras. the objective knowledge of the trade usage by either party to the contract is irrelevant. 52 November 9. first para.  ECR I-9337.  ECR I-1597. indicating that art. The European Court of Justice interpreted the most recent text of art. 2000. Asariotis & Baatz. the jurisdiction clause must be given effect when one of the parties is domiciled in a Member State of the European Union. Where such an agreement is concluded by parties. but rather merely called for suit in the court of the place of the “principal establishment 51 50 . and regularly observed by. 17 of the Brussels Convention 1968 and that the decisions rendered under art. for example. C-159/97). June 19.81. but rather by the practice generally and regularly followed in concluding a certain type of contract. Handelsveem BV. See also Cour d’Appel de Versailles. DMF 2001. which might be given to the standard form on which the clause appears. DMF 2000. the European Court of Justice held that the knowledge of the usage concerned is “independent of any specific form of publicity”. with the result that the usage may be considered to be a consolidated practice. see Gaskell.51 If this requirement of form is complied with. none of whom is domiciled in a Member State. Delebecque. 23 of the Regulation. These elements. will probably continue to apply under art. in the Coreck Maritime case. of the Brussels Convention 1968 in relation to bill of lading jurisdiction clauses. 17. knowledge of such a generally and regularly observed usage is “imposed” on the shipper. particularly in the Castelletti (supra) and Coreck Maritime (supra) cases. (Case No. 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. (Case No 387/98). Ph. Ph. obs. 23 of EC Regulation 44/2001 is basically unchanged from art. The existence of the usage must be established. where applicable. 11. obs. applying the Castelletti decision. 187. 2000.
60 3) Arrest in rem under other conventions Under art. . observations Y. The same test has been applied in France to arbitration clauses. it is governed by the very specific terms of the EC Regulation 44/2001 (and the Brussels Convention 1968 in the case of Denmark). 2000 at paras. obs. 364 at p. provided that the holder. notwithstanding the amendments to art. 71(1) of EC Regulation 44/2001 (similar to art. 23 of EC Regulation 44/2001. first para. 55 Where the court selected is in a “third State”. 17 of the Brussels and Lugano Conventions were inapplicable to a bill of lading jurisdiction clause calling for suit in New York courts. 59 See Gaskell. incorporation by reference of a jurisdiction clause into a bill of lading is effective. interpreted in the light of the commercial background of the case. applying the conflicts rules of his national law. March 4. See also Rechtbank van Koophandel te Antwerpen. DMF 2003. 373.  ETL 453. 1997 (The Adamastos). demonstrates clearly and precisely a consensus by the parties on the subject matter of the clause.59 Acceptance of forum selection agreements is not unconditional. as interpreted by the European Court. BP France S. rather than Belgian law. where under the applicable French law. 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. has succeeded to the rights and obligations of the shipper under the applicable national law. 364 at p. 17 of the Brussels Convention 1968. 547.73 and 20.58 and whether or not that forum has any connection with the dispute or the parties. DMF 2003.57 European law thus accepts jurisdiction clauses in bills of lading and other contracts. Delebecque.77. March 4. for example. Ph. the Regulation does not affect any conventions to which the Member States are parties and of the carrier”.. Revue Scapel 2003. applied to the bill of lading contract and therefore that the third party holder of the bill was bound by its jurisdiction clause. Asariotis & Baatz.56 If such is not the case. 2002 (The Walka Mlodych). April 9. emphasizing that under art. 58 See Siboti v. 2003 (The Sonara). where those provisions reflect a genuine. Bills of Lading: Law and Contracts. 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. 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. rather. because it was not proven that the consignee had consented to the clause at the latest at the time of delivery. See also Rechtbank van Koophandel te Antwerpen. 556. holding that art. 20. the foreign jurisdiction clause was held unenforceable as against the subrogated underwriter of the consignee/ holder of the bill of lading. 372. where the Belgian Court decided that English. produces effects with respect to a third party holder of the bill. Tassel. 2002 (The Dymphna).16 (2) art. 23 to accommodate a course of dealings between the parties and practices in international trade. but rather that that law fell to be determined by the judge seized of the case.A. mutual consent between the contracting parties to sue in a determined or determinable forum.  2 Lloyd’s Rep. See Cour d’Appel de Rouen. where the language of the bill. 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. it is proper to verify the reality of the holder’s consent to the clause by reference to the requirements of art. however. as under the art. See also Cour de Cassation. Under those provisions. October 8. of the Convention. BP France S. being the successor to the rights and obligations of the shipper under the bill.  ETL 321.  2 Lloyd’s Rep. 60 Siboti v.A. 17. the forum designation was held valid.55 (3) a jurisdiction clause in a bill of lading. 2003 (The Houston Express). 20. June 18. agreed to by a shipper and a carrier. jurisdiction clauses must still reflect a consensus between the parties to the contract that is clearly and precisely demonstrated. 57 See. 57 of the Brussels Convention 1968). 17 and the changes introduced into art. Cour de Cassation. in acquiring the bill.
U. 380. the Limitation Convention 1976 and the Hamburg Rules 1978. 20. 1952. 2)  1 Lloyd’s Rep. 62 U. 20-24 implements the Arrest Convention in English domestic law. 17 of the Brussels Convention (now art. at para. Asariotis & Baatz.U.15 at p. The importance of this provision is that it permits Member States of the E. State. 7 of that Convention permits Contracting States to take jurisdiction on the basis of the arrest of a ship in their territorial waters. 2003 at pp. Tetley. the English court could exercise its discretion to stay the English proceedings and refer the case to the court designated by the exclusive jurisdiction provision. the Penal Jurisdiction in Collision Convention 1952. the Athens Passenger Convention 1974. May 10.66 VII. courts today generally have the discretion to either dismiss or (more usually) to stay conditionally the proceedings validly instituted before them.. c. but still relevant under the Regulation) in The Deichland  1 Q.65 Nevertheless. International Maritime and Admiralty Law. 54.) is thus preserved and is permitted to override jurisdiction under the EU’s ordinary rules. 1956. having arrested a ship in rem in accordance with the applicable procedure. as they did the Brussels Convention. 1994 at pp. notably.). International Conflict of Laws. as in fact has been done in at least one case where the bill of lading expressly provided for jurisdiction in Germany. 11 (C. Civil Jurisdiction and Judgments. 64 See the classic U.114-20. even if that foundation does not exist in the Regulation. Various other maritime law conventions also have rules on jurisdiction which would override the Regulation.128. In England. the place of the carrier’s place of business. See Gaskell.U. if their domestic law gives jurisdiction to their courts. 2002 at para.126.62 which. 805-809.) and The Anna H  1 Lloyd’s Rep. 2002 at para. there is another. 3 Ed.13 at p. 8. Civil Jurisdiction and Judgments. if they believe that. ibid. English jurisdiction based on ship arrest would remain unaffected by an exclusive jurisdiction clause as contemplated by art. 1)  1 Lloyd’s Rep. Tetley. 3 Ed. 66 The Bergen (No. 23 of the EC Regulation) purporting to assign jurisdiction to the courts of another E.K. clearly more appropriate forum in another jurisdiction where it would be better to try the suit. 1981. 8. State whose courts would normally have jurisdiction under the Regulation. having regard to the interests of the parties and the ends of justice. decisions on this matter (rendered with respect to art.K. 515.A. 2000 at para. Is There a More Convenient Jurisdiction? In common law countries. See also Briggs & Rees. Gaskell.64 Jurisdiction in rem (even where the defendant is not available for service in the U. the English court. 20. 63 Briggs & Rees. the Civil Jurisdiction in Collision Convention 1952. The court therefore embarks on an analysis to identify what court is the “more International Convention Relating to the Arrest of Sea-Going Ships. at sects. 421-423. either of their own motion or at the petition of one of the parties. The most important example of this type of convention on a “particular matter” is the Arrest Convention 195261 Art. will have a valid basis of jurisdiction over the underlying “maritime claim”.K.A. although they have jurisdiction to decide the dispute. Bills of Lading: Law and Contracts. Asariotis & Baatz. 65 See The Bergen (No.17 which in relation to particular matters.. 361 (C. the domestic law permits such arrest in rem under the Supreme Court Act 1981. even if the shipowner or demise charterer is domiciled in another E. and in some other cases. 57 of the Brussels Convention 1968 prior to the enactment of EC Regulation 44/2001.B. 710. govern jurisdiction or the recognition or enforcement of judgments.15. 1952 and in force February 24. Briggs & Rees.63 In consequence. adopted at Brussels. 61 . 513. 2000 at para. 8. Bill of Lading: Law and Contracts. to take jurisdiction over a dispute on the basis of jurisdictional foundations provided in another convention governing a “particular matter”. the Civil Liability Convention 1992.
 A.R. .  1 Lloyd’s Rep. 501 (1947). v.C. generally do not have the discretion to dismiss or stay actions which fall within their jurisdiction under their respective national laws. i.18 convenient forum”. British Columbia (Workers’ Compensation Board)  1 S.C. from staying. striking out or dismissing any proceedings before it on the ground of forum non conveniens or otherwise. 2003 at pp.. Cape plc  2 Lloyd’s Rep.C. American Mobile Satellite  4 S.67 Civilian countries. 339 (H. 412-413. J. see MacShannon v. it is nevertheless not the forum conveniens and that a court of competent jurisdiction in another jurisdiction is clearly and distinctly more appropriate as a venue for the litigation (the burden of proof on these two points falling on the defendant).). Miller 510 U.). Spiliada Maritime Corp. 3135 c.S. 49. Reyno 454 U. The doctrine applying to this determination is known as forum non conveniens. 798-803. Automobili Lamborghini S. Spar Aerosapce v.  R.c.). c. for the adjudication of the dispute. the Lugano Convention. as amended by the Civil Jurisdiction and Judgments Act 1991. Forum non conveniens therefore has no place in their legal systems. 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".L. Lamborghini (Canada) Inc.J. 58 (Qué.A.q. Nevertheless. 443. 205.e.’s Civil Jurisidction and Judgments Act 1982. if it is the "natural forum" for trial of the dispute.R.L. 1 (H. or the “natural forum”.K.K. where to do so is not inconsistent with the 1968 [Brussels] Convention or. v. v. U.C.68 After having determined that it has jurisdiction and that there is no direction in the substantive law before it as to jurisdiction. Connelly v. c.. Boulton & Co. v. 854 (H. Cansulex Ltd. 1991. as the case may be.  1 Lloyd’s Rep.A. 213 (Qué. 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. C. A conditional stay is preferable to dismissal.R.L. 398. In the United States. v. 69 See Tetley. Grecon Dimter Inc. For Canada. U. 1994 AMC 913 (1994). 1982 AMC 214 (1981).). due to constitutional restrictions.J.C. but should preferably stay them conditionally. 235. 795 (H. see H. RTZ Corp. 3135 c. Tetley. v.A. The Abidin Daver  1 A. International Conflict. Ct.K.S. as a mixed jurisdiction. or the “more appropriate forum”.Q.” 68 The Québec Civil Code 1994.L. which statute came into force on May 1. The forum court which has stayed the proceedings 67 Among the classic decisions on forum non conveniens in the United Kingdom.C.). Normand Inc. on grounds of forum non conveniens. 1992: “Nothing in this Act shall prevent any court in the U.L. 897 at pp.L.P. in case the foreign court does not accept jurisdiction or renders a decision not susceptible of subsequent recognition and enforcement in the forum court.” For decisions applying art.c. Supr. 1994 at pp.K. See generally Tetley.R.  R. sisting. on the ground that another forum appears more convenient or appropriate or natural for the litigation.  A.). Quebec. decline jurisdiction if it considers that the authorities of another country are in a better position to decide.Q. If the forum court is convinced that. International Maritime and Admiralty Law. provides: “Even though a Québec authority has jurisdiction to hear a dispute.q. see Morguard Investments Ltd.J. Amchem Products Inc. DeSavoye  3 S.Q. 915-922. Banque Royale du Canada  R. 383 (H. the landmark decisions on forum non conveniens include Gulf Oil Corp. 2003 at p.  A. See also the U. 1982. S. the court seized of the proceedings may dismiss the proceedings.). at art. International Maritime and Admiralty Law. Rockware Glass Ltd. and Lubbe v. 413. Gilbert 330 U.S. v. 1077. although it has jurisdiction.A. v.C. 88 (Qué.C.C. Piper Aircraft Co. v.). C. it may exceptionally and on an application by a party. sect. 12. 27. and American Dredging Co. 460.
S. S. Ltd.71 Convenience.76 If. on condition that the defendant waive any time bar under Pakistani law. and no single factor is decisive. the stay order was reversed. Pakistan National Shipping Co. following this analysis.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. 1346 at p. 1984). 508 (1947). 1983).S. 2)  1 Lloyd's Rep.D. 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.Y.  ETL 45 (S. In general. for its part. 76 G. In The Spiliada  1 Lloyd's Rep. 1984 AMC 2413 at p.  2 Lloyd's Rep. 72 La Seguridad v. 70 . 75 Gulf Oil Corp. Tex.R. the court making a forum non conveniens determination considers such factors as the location and availability of proof and witnesses. where a forum non conveniens stay was granted on a cargo claim arising under a bill of lading calling for suit in Pakistan. 909 at pp. Cape plc  4 All E.1985 AMC 1493 (S.R. 1545. (No. Subsequently. v.A. 2434 (S.  2 Lloyd's Rep. 383 (H. Takemura & Co.L. 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. 224 F. 73 Muller & Co. Supp.  A. 412. 1 (C. 854.2d 1304 at p.75 The trial court.B.19 conditionally may then reassume jurisdiction over the dispute. Gilbert 330 U.R. RTZ Corp.  4 All E. 229 (C.Y. N. Supp. See Baghlaf Al Zafer v. v. 335.D. v.  3 W. no foreign court of competent jurisdiction appears definitely more "convenient" than the court first seized.). for example. N. See also The Kidlovodsk  1 Lloyd's Rep.L. International Maritime and Admiralty Law.D. 663. the House of Lords found that it was wiser to avoid use of the word “convenience” and refer rather to the appropriate forum. Margit 1966 AMC 1217 at p. For an example of such a conditional stay in a maritime case. 4) that the defendant waive any defence based on a statute of limitations or prescription in the foreign court. Pakistan National Shipping Co. Tsuneshima Maru 197 F. 74 Tetley. 3) that the defendant submit to service of suit and to the jurisdiction of the other court with the time period stipulated. Nigeria v. N. The Hamburg Star  1 Lloyd's Rep. 1961). for example. 2564 (11 Cir. the existence of such a term or agreement is a factor of great weight in forum See.S. 399. 1360. 1985). 9. 1966).73 is the touchstone in respect to deciding forum non conveniens motions. 501 at P. v.78 Clearly. Supp. Pirelli Cables ltd.  1 Lloyd's Rep. 268. 373 (H. 808. 77 See.Y. 1689 (2 Cir. 911-912.).R.). 183. Baghlaf Al Zafer v. Lubbe v.L. when it appeared that a Pakistani court might not recognize such a waiver. v. where the court stayed proceedings on a cargo claim in deference to a Russian jurisdiction clause in the bill of lading. Swedish American Line. 1955 AMC 1687 at p. United Thai Shipping Corp. 1962 AMC 1217 at p.  1 W. see The Arctic Explorer 590 F. 76. 1220 (S. 707 F. Connelly v. for example.A.C.D. 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. 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.A.L.Y.2d 806 at p. or if the evidence on the question appears to be equally balanced.C.D. 1983 AMC 2559 at p. S. 1307. 1218 (S. 2003 at p. The Globe Nova 1985 AMC 1977. however.74 No one can foresee or list all the criteria which the court must decide and weigh. 2) that the other court accept jurisdiction. the stay will ordinarily be refused.72 sometimes described as reasonableness. Transytur Line. Sophia First 588 F. makes its decision as a question of fact based on the whole of the circumstances of each individual case. N. the law applicable to the substance of the dispute. 1 at p. however. 1984). 78 See.70 The conditions of the stay may vary depending on the circumstances of the case. the convenience and expense of the parties of litigating in either of the competing fora.). See also LN. and 5) that security acquired by either party be preserved. 1955).
451 (Supr. at pp. in breach of that agreement. Miller.R. 1814). Private interests are: “a) relative ease of access to sources of proof. 508 (1947).). 81 330 U. See Antares Shipping v.S.C. 79 .. and the cost of obtaining attendance of willing. See especially p. v.S.C. 'harass' or 'oppress' the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. must show strong reasons why he should not be kept to his original bargain. doctrine. 559 (No.S. see Trendtex Trading Corp. 1234. 501 at p. 721.2d 1231 at p. with special reference to foreign jurisdiction clauses in ocean bills of lading and other contracts for the carriage of goods by sea.79 This matter is dealt with in greater detail in sections IX.D. 'vex'. b) the benefit of publicity of the trial in the seat of the conflict. See also Perusahaan Umum v. Crédit Suisse  3 All E. although forum non conveniens had taken root early on in American admiralty law. the plaintiff. 629 (C..” Nor may the plaintiff f) “by choice of an inconvenient forum. 422 at p. 207 (H. general maritime law In American Dredging Co.C. witnesses. aff’d  A. forum non conveniens was characterized as a procedural. it did not originate there and was not a characteristic feature of the general maritime law of the United States. The Atlantic Star  2 Lloyd's Rep. The Jerusalem 13 Fed. 365. d) enforceability of a judgment .. 83 510 U. Where the dispute at hand falls within the scope of such a forum selection provision. 82 Ibid. 918 (1994).). In addition. Gilbert. 443 at p. 450.. and d) the avoidance of conflicts of law. c) possibility of view of the premises . 80 The Belgenland 114 U. Tel Aviv 711 F. [and] e) the relative advantages and obstacles to fair trial.. This very authoritative decision has been referred to by non-American courts. with the result that it was Among many other decisions of this kind. . Mass.S. 679 (H.R. v. 355 (1885) is an example of an early admiralty case. 7293) (C. infra.80 The principle was first applied to a non-admiralty matter by the Supreme Court in Gulf Oil Corp. 2) Forum non conveniens not a characteristic feature of U. 1983). 69 and 70 (5 Cir. The Capricorn  2 S. .Forum Non Conveniens 1) Private and public interest factors Forum non conveniens has long been an accepted principle in admiralty in the United States. v. but was rather a doctrine of general application. Ct. 509-509. rather than as a substantive. of Canada).L. who has taken suit in another jurisdiction. 197 at p.” Public interest factors82 include a) avoiding “congested centers” of litigation. 1994 AMC 913 at p. otherwise the court seized of the action will ordinarily exercise its forum non conveniens discretion by granting a stay of proceedings (usually on a motion by the defendant) and sending the dispute to be tried or arbitrated in the contractually designated forum. 1985 AMC 67 at pp.B.83 three of five justices of the U. VIII.20 non conveniens determinations. Supreme Court decided that.S.L. aff’d  Q. Cas.A. b) availability of compulsory process for attendance of unwilling. c) the choice of the proper place to study questions of foreign law. X and XI. United States .81 where the theory of the private and public interests was enunciated.).
that Louisiana amended art. one can rarely count on the fact that jurisdiction will be declined. Reyno. 1984). 1980 AMC 309 (2 Cir. 89 Perusahaan Umum v.2d 1231 at p. It held that:87 “In such a regime. 1972 AMC 1682 (2 Cir.no special restrictive rule Ten years after Gulf Oil Corp. 1982 AMC 214 (1981). 73-74 (5 Cir.S. 90 454 U.S.S. 501 at p. finding that that provision was not pre-empted by federal maritime law. No. the plaintiff’s choice of forum should rarely be disturbed. 508 (1947): “[U]nless the balance is strongly in favour of the defendant. 86 330 U. 1980 en banc). See Perusahaan. Supreme Court in Gulf Oil Corp. “jurisdiction should be taken unless to do so would work an injustice. 455. U.. 91 454 U. Co. so that forum non conveniens may now be applied in maritime cases. AMC at pp. 501. 1957 AMC 57 at p. at p. states. v.”). 88 Sunny Prince-Hoheweg (Motors Distributors Ltd. In consequence of this procedural characterization. 1956). however.2d 376. Whether or not an action impleading a third party should be dismissed on the ground of forum non conveniens. 1985 AMC 67 pp. v. combined with the “multifariousness”85 of the public and private interest factors set forth in Gulf Oil v. See also Paula K.Y. and reaffirmed in Piper Aircraft.S. 922. sect. 1600-1601.S. 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. the majority in the Supreme Court upheld the validity of the Louisiana statute out of which the litigation had arisen (art. “Forum Non Conveniens and Choice of Law” (1987) 18 JMLC 185. See also Excel Shipping v. Gilbert. 123(C) of the Louisiana Code of Civil Procedure). AMC at pp. but was rather a procedural rule within the legislative jurisdiction of the individual U. `982 AMC 214 (1982). will also be determined by the principles set out in Gulf Oil Corp.” 3) Admiralty . Gilbert. v. general maritime law. Olympic Corp.D. Note. 60 (5 Cir. 1597-1598 (E. 123(c) of its Code of Civil Procedure in 1999. it was held in Sunny Prince v. U. at p.S.92 4) Forum non conveniens and in rem jurisdiction Ibid.2d at p. 453. 1994 AMC 913 at p. 1238.86 made uniformity and predictability in the application of forum non conveniens almost impossible.2d 463 at p. 1986 AMC at pp. v.2d 147. 92 Excel Shipping. Hoheweg that in Admiralty. 1. ibid. v. 1236. Speck. 1972). 1983). N. Seatrain International 1986 AMC 1587 at pp. 84 . AMC at p.84 The Supreme Court further observed that the discretionary nature of the doctrine.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. See also Alcoa S. 455. 235. which rendered forum non conveniens unavailable in Jones Act and maritime law cases brought in Louisiana state courts. 465. Tel Aviv 711 F.S. 443 at p. 920-921.S. 922. supra.91 The court should be wary.S. See Louisiana Acts 1999.21 not deemed essential to the proper harmony and uniformity of the federal.. however. Inc. 87 510 U.”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. Société Générale 462 F. F. This statement recalls that of the U. M/V Nordic Regent 654 F. 85 Ibid. Gilbert 330 U.. when the jurisdiction of the underlying action has been maintained. 235.S. 536. 76-77. Olaf Pedersen's Rederei) 239 F.
is fully applicable to all forum non conveniens motions. See also Cliffs-Neddrill v. 1982 AMC 214 (1981). Del. 711 F. 73. 711 F. however. 1239. 100 A ship cannot be arrested twice on the same claim. 1585 (D. Tel Aviv. Reyno. 97 Perusahaan Umum v. 1234. added to the normal presumption in favour of the plaintiff's choice of forum.2d at p. except in special circumstances: see generally Tetley. 1931 AMC 407 (S. 486 U. Gilbert. See Shalom-Stolt Dagali.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. 26. including in rem admiralty actions.” 98 Ibid.97 The Court did point out. supra. and Van Cauwenberghe v.” See. 505.94 After referring to The Belgenland95 and Gulf Oil Corp.103 A conditional dismissal. Owen in  JMLC 133.2d 332. 76. 518 (1947).98 The Court emphasized that the balancing analysis in Gulf Oil was predicated upon finding that an adequate and available alternative forum did exist.) 47 F.. 711 F. 1302 (9 Cir. 501 at pp..2d at p. Olaf Pedersen's Rederi A/S) 239 F.104 711 F. Biard.2d at p. the court can embark upon the Gulf Oil balancing analysis and decide whether or not it is a convenient forum. position.S. however. supra. 2 Ed. 1999).. G. 1236. Thus courts have been compelled to deny forum non conveniens dismissals in actions in rem.2d at p.. “jurisdiction should be taken unless to do so would work an injustice. Cactus Pipe & Supply Co. American Lumbermens Mutual Casualty Co.D.. 555 and The Alletta  1 Lloyd's Rep. pp. the Fifth Circuit had declared that in admiralty actions in rem. 517 (1988). v. 1999 AMC 1070 at p.2d 620 (9 Cir. 1238. 330 U. See also The New England (J. 465. 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. 142 at p. Chap. 40. 1985 AMC 67 at p. the Court affirmed that “the release or removal of the vessel from the jurisdiction of the court destroys in rem jurisdiction . because he would no longer be able to seize the ship102 to enforce whatever judgment he might obtain in the alternative forum. See also Warn v. 1985 AMC at pp. 102 Perusahaan Umum 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. Barge Sea-Span 241. see The Despina. 99 Ibid. 104 Ibid. 1966). 235. 69 (5 Cir. 103 Ibid.3d 625 at p. 94 93 .K.K.S. 711 F. v. 630.96 the Fifth Circuit stated that the in rem action did not represent an exception to the Gulf Oil balancing analysis. 1985 AMC 2150 (5 Cir. 101 In M/S Galveston Navigator 431 F. Maritime Liens & Claims. 1985 AMC at p. 1966 AMC 121 at p.K. 508-509 (1947). did make it nearly impossible for the defendant to show interests in an alternative forum. 1218.Y.101 but also deny him an adequate security. N. 1239. 1985) and a critical commentary by David R. 1971 AMC 1298 at p. M/V Montmartre 756 F. 355 at p. 78-79. however. Piper Aircraft Co. 1931). M/V Maridome 169 F. Welding Co. 711 F.D. v. 454 U. 77.. 1985 AMC at p. “The Integrity of the Judicial Sale”.1076 (9 Cir.2d 463 at p. 1985 AMC at p. 1238. 60. 124 (S.2d at p. 1985) and Farwest Steel Corp. 1990 AMC 1583 at p. Supp. strong enough to strike the forum non conveniens balance in his favour. 1983). Tel Aviv.” 95 114 U. For the U. 769 F. 249 F. Supp. v. before embarking on a Gulf Oil balancing analysis. 96 330 U.Y.22 Perusahaan Umum v. as clarified by Koster v.  2 Lloyd's Rep. v.. 367 (1885).99 Since the seizure of a ship in rem releases the ship from the maritime lien arising from the claim. 78. 1990): “the Gilbert analysis.2d 1103.S.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.S. 1985 AMC at p. 503 at p. 145. 1970). 1957 AMC 57 at p. Tel Aviv. 1098-1104. N. In Sunny Prince-Hoheweg (Motor Distributors v. M/T Rich Duke 734 F. unless the inconvenience he would suffer was tantamount to injustice.2d 1215 at p. that the in rem factor.2d 1231 at p. Gotham Marine Corp.S. 1998.
LG Electronics Inc. See. 1981). Union Ins. v. it would have done so in a forthright manner. In 1955. it tends to be the paramount factor in that analysis. 593.110 330 U.. Soc. of Canton. the Second Circuit in Muller v.S.  2 Lloyd's Rep. COGSA would be applied by the foreign court. 501 (1947). as was done in the Canadian Act of 1910. 104 (2 Cir. where the bill of lading includes such a provision. v. Swedish American Line upheld a jurisdiction clause and declared:107 “…if Congress had intended to invalidate such agreements. S. 1955 AMC 1687 at p. Particular principles have been developed in the U. 590-593 (4 Cir. S. 723-725. however. 203.” Twelve years later the Second Circuit took a completely different approach in Indussa Corp. before a relatively stable doctrine of forum non conveniens and jurisdiction clause enforcement were arrived at in the United States. 3(8) of COGSA 1936.S. 2001).S. 1688 (2 Cir. v. Fritz Transportation International 2002 AMC 106 (N. for example. 105. 1955). 110 In accordance with the holding in Indussa.2d at p.  2 Lloyd's Rep.106 There were radical swings of the legal pendulum.Elikon 642 F. 594-595. at p. as outlined in Gulf Oil Corp. M/V 106 105 . 1982 AMC 588 at pp. to evaluate the enforceability of jurisdiction clauses and agreements in general. en banc 1967). 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. 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. Ltd. while at the same time the courts retained their discretion.23 IX 1) United States – Foreign Forum Selection Clauses in Bills of Lading Foreign jurisdiction clauses generally unenforceable in the past A jurisdiction clause in a bill of lading is only one of many factors that have to be weighed by the trial judge in his decision to accept or refuse jurisdiction. It is only when the clause or agreement concerned fails the test of enforceability under those principles that forum non conveniens principles.2d 721 at pp. In view of current American law. 101 at p. 1967 AMC 589 at p.D. 1967 AMC at pp. v. Ranborg108 and held: “We think that in upholding a clause in a bill of lading making claims for damage to goods shipped to or from the United States triable only in a foreign court. American courts began systematically invalidating foreign forum selection clauses as contrary to sect. such clauses were treated much more strictly. Ltd. 377 F. including those appearing in ocean bills of lading. 107 224 F.109 Thereafter. S.S. Cal.2d 200 at p. 807. Gilbert.105 are now considered. for example. v. 202. See. 108 377 F.2d 806 at p.” The concern was that foreign law rather than U. Conklin & Garrett. 109 Ibid.
Co. Novocargo USA Inc.N. 928 (4 Cir. 2002 AMC 528 at p. M. 1982 AMC 588 (4 Cir. N. as it did not exclude jurisdiction elsewhere or employ other mandatory venue language. v. 2002). N. M. Inc. 1580-1581. 1090 (S. Attiki Importers 22 F.H.Y. 1977).V. Alas. 1972 AMC 1407 (1972) This was a freely negotiated private international agreement for towage. which obligates the parties to the bill of lading (or other contract) to litigate in one specified court. 2002). 15. Central National-Gottesman. as grounds of non-enforcement of a foreign forum selection clause: 1) fraud or overreaching. N. Supp. pointing out that COGSA was not involved in that case.m. The U.) v. Chemical v. 1479 (S. 1996) and listing.3d 51 at p.S. see Hartford Fire Ins. 1972 AMC 1407 at p. M/V Berane 181 F.115 A jurisdiction clause may still be Finnrose 826 F.Supp.2d 1441 at pp. v. in an international towage case. 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. 1998) (“All and any claims and disputes under the Bill of Lading shall exclusively be referred to [a]rbitration in Bremen [Germany] . 111 407 U. Ferrostaal... for example. 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.Y. 1987).D. See also Hartford Fire Ins. Acciai Speciali Terni USA Inc. Novocargo USA Inc. aff’d without opinion sub nom. 1994) and other authorities collected there.3d 923 at p. v. The freely negotiated agreement must be unaffected by fraud or undue influence or overreaching bargaining power. Ranborg. 2002 AMC 314. Zapata OffShore Co.”). Inc. 2334-2335 (11 Cir.b. M/V Sersou 1999 AMC 2352 (S.2d 372.2d 458 at pp. Tokio Express.).24 2) Foreign jurisdiction clauses presumptively valid A major change in judicial attitudes towards foreign forum selection by contract occurred.Y.  2 Lloyd's Rep.S.V. A bill of lading of course is not freely negotiated but a standard-form contract. international contract should be enforced. 158 (C..H. 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” . 114 See John Boutari & Sons v.112 recognized a jurisdiction clause giving jurisdiction outside the United States. 1981).D. See also Union Insurance Society of Canton v. Supp. v. 2002).Y. 156 F. Lucent Technologies.  ETL 57 (S. 2d 675 at p. 53 (2 Cir. and relied on Indussa Corp. State Establishment for Agricultural Product Trading v. Elikon 642 F.b. M/S Bremen (and Unterweser G.S. 115 For an example of a purely “permissive” forum selection clause.S.3d 355 (2 Cir. Tokio Express 1999 AMC 1088 at p. v. 678. 1 at p.2d 1576 at pp. instead. See. v. 3) fundamental unfairness of the chosen law depriving the plaintiff of a remedy or 4) a strong public policy of the forum.2d 372.D. 1988 AMC 2328 at pp. 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. 156 F. by which the parties simply agree to the jurisdiction of a specified court without expressly excluding jurisdiction elsewhere. v. 1418 (1972). 1999). M/V Gertrude Oldendorff 204 F. N. In M. 2002 AMC 1477 at p. The same hostility was demonstrated with respect to foreign arbitration clauses.Supp. 1988). 113 407 U.  ETL 57 (S. 210 F. Co. S.S. citing Allen v. v. This followed the English tradition of giving effect to jurisdiction clauses.”).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. the mere use of “shall” did not make the clause “mandatory”. 1442-1444. S. the Court refused to follow Bremen.D. 1988 AMC 318 at pp. 1.A.Y. 112 (The Chaparral) Unterweser Reederei G. 2002 AMC 314. 320-322 (5 Cir. 531 (D. Inc.2d 721. 2002).D.G.114 as opposed to the merely “permissive” clause. 462-463. Md. Lloyd’s of London 94 F.111 The United States Supreme Court. Supreme Court held that a foreign jurisdiction clause in a freely negotiated. v. in a matter which was subject to suit simultaneously in England. Although the clause provided that disputes “… shall be determined by the Court of Bremen”.m. Zapata Off-Shore Co. Compare with Reed & Barton Corp. Sun Castor 1978 AMC 1756 (D. both the American and English Courts ordered suit in England under the same clause in the same matter. In the case at hand. however. supra. M/V Wesermunde 838 F.
v.119 Nevertheless.g..D.J. Inc. 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…. Mitsui O. . Intermetals Corp. M/V Tramper 263 F. Hapag-Lloyd Container Line 2003 AMC 1175 (S. Fla. Dist.2d 1191.D.116 Because foreign jurisdiction clauses and agreements are now presumptively valid in the United States. App. Hartford Ins. v. that the words “shall” or “must” are not essential to the mandatory character of the clause. – Alabama v. Note. See Vogt-Nem. 2001). Inc. Cal.2d 454 at p.. 2004). 1233.S. Note. COSCO 2004 AMC 1048 at pp.D. for example. of the Southeast v. which did not vitiate the mandatory character of the clause. 2002). 2004 AMC 769 (Fla. v. rather than permissive. Shute. v. 24-25 (N. M/V Pergamos 1996 AMC 2022 at p. was rejected by the Supreme Court in Carnival Cruise Lines. Cal.D. at pp.K. 1704-1705. as the first sentence contemplated. Inc. 1050-1051 (C. 2003 AMC 21 at pp. The relevant enactment in this case was the Limitation of Vessel Owners’ Liability Act of 1851. found the arbitration clause in that case to be enforceable. 46 U. AMC at pp.Y. 2004). and related inconvenience. 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 Ibid. Supp. 459. 2003). 2002). 183c. Inc. by a 5 to 4 majority. Barbara Lloyd Design. 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. Inc. because no evidence on the prohibitive expense of arbitrating had been adduced by the party seeking to circumvent the agreement. permitting the carrier to sue the merchant in the latter’s place of business).. M/V Gertrude Oldendorff 204 F. an arbitration agreement could be held unenforceable.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. that the Court. 79 (2000). Hanover Intern. Burns v.” The second sentence was held to be a qualification on the first sentence.. N. 117 499 U. 2003). The case concerned a consumer finance contract containing an arbitration agreement which omitted any details regarding filing fees and arbitration costs. 2003 AMC 2608 (N. v. for example.118 More recent decisions have similarly downplayed the relevance of inconvenience in forum selection clause analysis. in order to litigate in the designated court. v.120 indicated that if a party seeking to avoid arbitration can show that it would be “prohibitively expensive”121 (a term which the Court declined to define).S. 121 Ibid at p. 2002 AMC 1477 at p.2d 1226 at p. N.D.Appx. or avoid the right of any claimant to a trial by a court of competent jurisdiction.Y. however. 92. U. Ct. aff'd 36 Fed. Tokio Marine and Fire Ins. Appx. 1231.27 (N. The argument that enforcement of a jurisdiction clause should be denied where the clause required plaintiffs to incur substantial “transaction costs” (e.C.25 mandatory. 2001 AMC 2417 at p.D. or “[a]ny disputes under the Bill of Lading to be decided in London according to English Law. 2003 AMC 21 at p. the United States Supreme Court. which may be just as mandatory where “will” is used. it also qualifies that provision by an exception (e. 491 (3 Cir. however. 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. Ltd. where the Court found to be mandatory. M/V Tramper 263 F. where in addition to providing for the exclusive jurisdiction of a given court.”. but merely permitted. 2002). an exception giving the carrier an option to sue the merchant elsewhere than in the courts of Hamburg.. Radisson Seven Seas Cruises. 120 513 U. travel expenses. Supp. Co.. Cal. Aktiengesellschaft Fur Industrie Versicherungen 188 F. 4 District.S. airfare and hotel bills). Randolph. 596-597.g. The Supreme Court thus left a narrow window open for striking down foreign arbitration (and presumably also foreign jurisdiction) clauses or agreements where a party (Bison Pulp & Paper Ltd.2d 1226 at p.D. 2422 (D. v. 678. rather than permissive. . 2002). Supp. v. 2030 (S. Co.” (Central National-Gottesman. 2d 675 at p. 1479 (S.S. Supp. Lines. weaken. 119 See.S. which made it unlawful for the owner of a maritime passenger carrier to "lessen. 867 So.N. Inc. 1991 AMC 1697 (1991). 116 See. Vogt-Nem. in its decision in Green Tree Financial Corp. Ltd. 1995)). however. 585.
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).
denied. N.D. citing The Sky Reefer 515 U.V. M/V Sky Reefer.’ See Vimar Seguros y Reaseguros.145 for example. Co.D.3d 1336. 2955 (E. 1991 AMC 1697. 921 (1998). v. v. See also Fireman's Fund Ins. See Allianz. of Canada v. But see also Hyundai Corp. 498 at p. D. Cho Yang Shipping Co. COGSA. following M. DSR Atlantic. N. 2955 (E. 2000).” b) The parties should not lose rights already acquired A change in jurisdiction should not cause the parties to lose rights. U.S. International Marine Underwriters C. Similar positions have been taken by district courts in the Second Circuit. The Supreme Court upheld a foreign arbitration clause even though it appeared in a ‘standard form bill of lading. Allianz Ins.S. Va.A. American courts appear divided. v. over whether the lack of in rem process in the selected forum abroad precludes enforcement of the jurisdiction clause. v. Ltd.C.R. M/V Kasif Kalkavan 989 F. N.D. 2955-2956. M/V D. 521 U.S.S.. 1303(8)) to the ship’s own liability. 515 U. Supp. Inc. took the opposite position in Fireman’s Fund Ins. however. Supp. however. 499 U.R. 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 AMC 583 at p. AMC at pp. Appx. 767 (S. 131 F. 534. 148 In Allianz Ins. v. 1998). Atlantic. 2000).Y. under Rule 4(m) of the Federal Rules of Civil Procedure). 1998).. Note. The Supreme Court also held that a ‘nonnegotiated forum-selection clause in a form ticket contract’ is enforceable against a consumer.147 holding that this purely “procedural” difference between American and Korean law was not a lessening of the “specific liability” imposed by COGSA. 1821 (1995). 1703 (1991).V. 2d at p. 131 F. 1998 AMC 765 at p. Co.A. criticizing the Ninth Circuit’s view.C. Va. S. 498 at p. Atlantic court “appears to have wholly ignored” the reference in 46 U. 794.D.S. 1997). 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. but that it merely presented “a question of the means of enforcing that liability. 1995 AMC 1817 at p. 499. 499. 1339 (9 Cir. S. 1339-1340.U.Y.3d 1336 at pp.S. Therefore the mere fact that the forum selection clause appears in the standard form bill of lading does not render it invalid. Inc.”148 145 146 2001 AMC 1692 (D.2d 787 at p. International Marine Underwriters C.146 The Ninth Circuit.. M/V Turquoise. 528. which they have acquired by the suit already taken. 794. 593. F. of Canada v.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. 1998).S. 2000 AMC 2947 at p.Y. 585. v.S. however. Atlantic on the point. Carnival Cruise Lines. This is particularly true in actions in rem. 794. Co. Supp. v. Co. ibid. M/V Kasif Kalkavan 989 F. Co. M.U.2d 787 at p. 767 (S.” 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. M/V An Long Jiang 1998 AMC 854 (S. 131 F. 530. the unavailability of an in rem action in the designated foreign forum is irrelevant to the enforcement of the forum clause. 528 at p. however. cert. 147 131 F. See. 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). 2001). 2000 AMC 2947 at p. 587 (9 Cir.D. In Tokio Marine & Fire Ins. Supp.” (ibid. the Eastern District of Virginia. 1998 AMC 765 at p. Cho Yang Shipping Co. Supp. 1818 (1995). 1995 AMC 1817. 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….S. v.S. Shute.R. . 1998 AMC 583. where the Court said that the D.).
Retaining jurisdiction would have been unfair to the carrier who was willing to defend the action in Iran where most of the evidence and witnesses were located. 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.Y. 1999). Sound Around Electronics.D. 1976 AMC 212 at p. Co.Y.S. however. Co. v.Y. 1974). the date of filing of this lawsuit. None of the parties had offices in New York and the bill of lading called for suit in Italy under Italian law. N.150 the Court declined jurisdiction “subject to the provision that none of the parties be prejudiced as to any rights they had on .D. 322 at p. 152 Gulf Oil Corp. Rotterdam or Oslo. Lauro Lines. in such a situation.1968 AMC 328 (S. Supp.S. Street. S. N.Y. 1967).Y. 2124 (W. 155 387 F.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. 462. Inc. and without taking any steps to protect the running of time in the designated forum. Supp.” Where there is a foreign forum selection clause in the bill of lading. Carnival Cruise and The Sky Reefer. 1998 AMC 603 [DRO] (2 Cir. Co. N..Y. Cal. 151 Great American Ins.154 after the shipowner had petitioned in New York to limit its liability following a total loss at sea. Nor will the U.D. M/V Royal Container 30 F. Wash. Lauro Lines 387 F. 1996). See also New Moon Shipping Co. 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.D. 1605 (S.”149 In Hartford Fire Ins. M/V Hyundai Freedom 1999 AMC 1603 at p. 508. Hellenic Lines. 501 at p.D. and the cargo claimant deliberately takes suit in another court despite that clause. N.152 In Sherkat Tazamoni Auto v. M/V Kapitan Byankin 1996 AMC 2754 at p. 150 149 . Margit. 1997).151 c) The convenience of the new jurisdiction is less important today Older U. v. v.S. 1974).30 If the court is concerned that rights may be lost. In the S. 322 (S. decisions tend to indicate that there is no point in changing jurisdiction if the new jurisdiction is inconvenient to the parties and to witnesses.D.3d 24 at p. however. where the bill of lading includes a clear and mandatory foreign jurisdiction or foreign arbitration clause covering the dispute in question. 33.N. 1999 AMC 1805 (S. v. 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. Man B&W Diesel AG 121 F. 154 1966 AMC 1217 (S. v. 1975). 153 277 F. Supp. The purpose of a change in jurisdiction is to provide cheaper. court. 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. 1999). quicker and more convenient justice. of America v. In Snam Progetti v. Chiyoda Fire & Marine Ins..2d 661. 2758 (N. N..D. order the defendant to waive the statute of limitations in the chosen forum abroad. Supp. it is doubtful today whether the mere inconvenience of the clause Snam Progetti v. 1966). In view of the decisions in Bremen. 324 (S. Ltd. Gilbert 330 U.D.
Rather. 18. forum. at 7. Cho Yang Shipping Co. Ltd.S. Absent that there is no basis for concluding that it would be unfair. 528 at p. court to stay proceedings conditionally or to dismiss them. 1823 (1995).31 to one party to the contract would permit a U. v.” The finding in Carnival Cruise Lines v. 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. N.S. 157 407 U. 1972 AMC at 1419). 1702 (1991) (quoting Bremen. see Great American Ins. Alberto-Culver Co. 1418.” Proving so high a level of inconvenience is no easy task.S. at 17. 1996). where the difference between forum non conveniens dismissals and dismissals for improper venue (because of a foreign forum selection clause) was emphasized.D. and the relative burden on the carrier. 407 U. 15. 1972 AMC at 1412.S. Cal. See also Allianz Ins. in either case. inconvenience can be considered only if it is grave enough to render the clause unenforceable as being unreasonable or unjust. 417 U. 499 U. Shute. Co. even when the forum clause designates a remote forum for the resolution of conflicts. 1050 (C. the Bremen Court concluded that a ‘forum clause should control absent a strong showing that it should be set aside. 585. 2000). 159 1996 AMC 2022 at pp. or repugnant to a strong public policy of the U. the size of their claims. V. the ultimate decision depends upon the exercise of judicial discretion. as was held in Bison Pulp & Paper Limited v. 2031-2032 (S. v. 1995).S. Co. Supp.S. 536.S.. 1995 AMC 1817 at p. 506. Cal.S. 131 F. or tainted with fraud or overreaching.” In this regard.2d 787 at p.Y. 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. Inc. 2000 AMC 2947 at p. Nevertheless. of Canada v. Supreme Court in Bremen. 518 (1974). the U. 1420 (1972). M/V Kapitan Byankin 1997 AMC 2754 at p.S. 1972 AMC 1407 at p. 2004). Thus.’ 407 U. 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. COSCO 2004 AMC 1048 at p. Co.D. accord Scherk v. reinforced the limited role that the factor of “inconvenience” now plays in assessing the enforceability of such a provision in American courts. 156 . 2758 (N.. or unreasonable to hold that party to his bargain.. ‘the party claiming (unfairness) should bear a heavy burden of proof. Va. 795. 158 515 U. 1 at p.D. 1991 AMC 1697.’ ‘ Carnival Cruise Lines.D. Ltd.156 In this regard. The Supreme Court held in The Sky Reefer that:158 “It would be unwieldy and unsupported by the terms or policy of [COGSA] to require courts to proceed case by case to tally the costs and burdens to particular plaintiffs in light of their means. Tokio Marine and Fire Ins. 592. unjust. 2956 (E..
S. Great American Ins. for example. 856 (S.2d 200 at p. under which foreign jurisdiction and foreign arbitration clauses are deemed presumptively valid. Co. 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. M/V An Long Jiang 1998 AMC 854 at p. 162 377 F.164 for example. notwithstanding the demise clause in the bill. v.32 In most cases. the vessel owner had waived enforcement of the forum selection clause by filing a claim in the pending U. Inc. whereas U. 204. 160 . so that giving effect to those clauses would “fragment this case beyond recognition”.  2 Lloyd's Rep.D. 3(8) of U. 1996 AMC 1189 at p. v. The U." Accord: Glyphics Media. 1967 AMC 589 at p. 2002 AMC 1477 at pp. 105 (2 Cir.Y.163 they can still be successful on occasion. 2000). The Court noted. 966-967. 595.D.S.D. the argument was accepted. U. thus reducing litigation costs and the risk of inconsistent judgments) is refused as a ground for refusing to enforce a jurisdiction clause. where it appeared that Croatia applied the Hague Rules). M/V Kapitan Byankin 1996 AMC 2754 at p. however.. M. 1483-1484 (S. Pasztory v. S. Appx. COGSA (46 U. 1999 AMC 1805 at p. 1998). 2d 675 at p. 3(8). 101 at p. sect. 680. D. 961 at pp.V.Y. 161 For an example of such serious inconvenience. N. Inc. Va. however. “judicial economy” (the greater convenience of having all disputes settled in one forum. 1967). 894 (S. the U. 3(8) In Indussa Corp. In Nippon Fire & Marine Ins Co. 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. Although such efforts usually fail.Y.162after referring to COGSA. however.D. Since Bremen and The Sky Reefer. COGSA. N. see In re Rationis Enterprises.A.S. 164 204 F. In Central National-Gottesman. N. La. M/V Royal Container 30 F. the contractual forum. 283 (E. N. Croatian Line 918 F. an English law and jurisdiction clause was found unenforceable as lessening the liability of the carrier contrary to sect. aff’d without opinion.V. v. Supp.D. where hundreds of plaintiffs around the world in a limitation of liability suit held bills of lading issued by the defendant with inconsistent forum-selection clauses. 1996) (plaintiff failed to refute defendant’s showing that Australia. 3(8) of U. the Korean clause was upheld. because it would relieve or lessen the carrier’s liability contrary to that provision. as judicially interpreted by American courts. would permit suit against the time charterer who issued the bill as well as the shipowner. 1999). 165 But see also Hyundai Corp. v. the Court deciding that the claimant could subsequently sue the shipowner and/or the vessel in rem in the Southern District of New York. N. 2003).Y.C. so as to avoid the risk of non-enforcement of the Japanese law and forum clause in the bill. Inc. of Panama 1999 AMC 889 at p. 1999): "Refusing to enforce a forum selection clause on this basis [the risk of multiple proceedings] would undermine whatever measure of certainty such clauses bring to the international shipping transactions in which they are commonly employed. COGSA.3d 432 (2 Cir. 1999). action and availing itself of the limitation proceeding.D. 2757 (N. Gertrude Oldendorff. the Japanese ship manager agreed to waive the demise clause in the bill of lading.S.S. Cal. Conti Singapore 2003 AMC 667 at pp.160 Where many claims were involved in a limitation proceeding. 1196 (E. Supp. Court of Appeals decided that a foreign jurisdiction clause was invalid generally. for example. permitting suit only against the shipowner as carrier. 663.S. 1806 (S. 201 F. would not reduce the carrier’s liability contrary to COGSA).S. v.2d 661 at p. District Court therefore kept jurisdiction.S. Sound Around Electronics v.Y. because English courts applying English law would uphold a demise clause in the bill of lading. 163 See. 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. Street.161 d) Must not contravene sect. 1303(8)). 2002). 674-675 (S. v. 1996) (a mere “conclusory allegation” that Croatia was “politically unstable and jurisprudentially immature” was insufficient to set aside the Croatian forum clause. M/V Coral Halo 2004 AMC 273 at p. Inc.D.165 See.S. Supp. Ranborg. M.
S.D. 167 166 .S. courts would be void by Belgian law. Supp.D.V.  ETL 509 (E. where a Japanese forum selection clause was found null and void and unenforceable.S. under sect. would not break its package limitation under German law.C. N. 2003). Sanko Spruce 1999 AMC 366 (D. where a Belgian Court decided that a bill of lading clause granting jurisdiction over cargo claims to U. 1998). 2003). 3(8) of U. Union Steel America Co. The American court noted that such a clause would be upheld in Germany. facing contradictory affidavits from foreign law experts. Co. 1701(C. COGSA package limitation for resulting cargo loss or damage.D. N. Nippon Fire & Marine Ins.. 675 (S. 574 at p. v. v. 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. if it could not be established that those courts would apply the obligatory Hague/Visby Rules enacted by Belgium’s Maritime Law. 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. 1997). June 18. because it appeared that Korean law would not grant the cargo underwriter claimant an action in subrogation. S. The carrier’s act in stowing the cargo on deck. M/V OOCL Faith. Inc. for example. would or would not in effect be construed so as to relieve or lessen the carrier’s liability contrary to sect.J.Y. Federal Ins. 170 For a similar European decision. 2001). for example.D. Sligan Plastics Corp. M/V Nedlloyd Holland 1998 AMC 2163 at p.Y. have been uncertain whether particular bill of lading clauses. Co. art.S. 2166 (S. M/V Jin He 1999 AMC 1700 at p. La. and the shipper would be deemed to have consented to deck stowage. an “unreasonable deviation” from the contract of carriage. In these cases. the deck stowage) was reasonable. the foreign jurisdiction clause was denied enforcement on grounds of public policy. La. 1719. Cal. M. v. where the affidavits of Japanese lawyers showed there was “substantial uncertainty” that the designated Japanese court would recognize multiple carriers as COGSA carriers the way an American court would do. 3(8) of COGSA. prima facie. 168 See. even if negligent. 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. 1997 AMC 2954 at p. Majestic Electronics.D. unless consented to expressly by the shipper or permitted by a general port custom. Conti Singapore 2003 AMC 667 at p.S.167 a Korean jurisdiction clause in a bill of lading was held to be invalid.D.  ETL 453.. Cal. the carrier had intended to cause the loss or had acted recklessly with knowledge that the loss would probably occur.169 there must be proof positive that the foreign court. where on-deck stowage constitutes. 91. will in fact lessen the carrier’s responsibility below the COGSA threshold. the foreign forum selection clause has been denied enforcement. Conversely. 2002 (The Dymphna.e. 2960 (D. if and when interpreted by the designated foreign forum applying the designated foreign law. in the U. see Rechtbank van Koophandel te Antwerpen. 2000 AMC 1717 at p. applying its law. Glyphics. which the insurer would enjoy under COGSA. There are also decisions in which American courts.168 One point is very clear in this regard. N. 169 See. v. 576. 1998). v. unless he had immediately objected to it on receiving the bill of lading. M/V Spring Wave 92 F. M/V Ocean Sunrise 2003 AMC 2200 (E. See also Kanematsu U. v. In Gibbs International Inc. unless cargo could prove that in doing so. 2000). Inc. Inc. COGSA. v. unless the carrier could prove that the deviation (i.A. permitting the carrier to stow a helicopter on deck. v.170 2003 AMC 30 (C. 1999).33 In Heli-Lift Ltd.166 a bill of lading calling for German law and Hamburg jurisdiction contained a general liberties clause.
Jockey v. The Second Circuit. 1418 (1972). v.Y.K. N. 2002 AMC 1477 at p. 173 996 F. 171 .Y.2d 675 at p. Ltd. Dk. in Roby v. ibid. Tsuneshima Maru 197 F. 1999). 945 (1993).3d 956 at p. 11. such as by fraudulent means. 174 See also Asoma Corp.. N. 1218 (S. fraud or overreaching.2d 1353.S. 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. (2) if the complaining party ‘will for all practical purposes be deprived of his day in court.S. 909 at pp. N.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.V. Lines Ltd. however. 400 (S.D. S. 2381 (S. See also Restatement (Second) on Conflict of Laws. ibid. 1997) and Black’s Law Dictionary. 172 407 U. v. 911-912. held that forum selection and choice of law clauses could be found “unreasonable” if:173 “(1) if their incorporation into the agreement was the result of fraud or overreaching.V. 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. 1997 at p. cert.. Inc.Y. which factors. 1995).3d 7 at p. Leverkusen 217 F. Corp. N. 67 F.D. 1479 (S. as where one party takes unfair commercial advantage of another. or (4) if the clauses contravene a strong public policy of the forum state” (citations omitted). and is also usually dismissed as a ground of nonenforcement. 259 (2 Cir. 1961). at pp. 451. 80. of Lloyd’s. 1972 AMC 1407 at p. v. Inc.2d 806 at p.S. sect. 2002 AMC 2377 at p. Margit 1966 AMC 1217 at p. 1689 (2 Cir. 1955 AMC 1687 at p. 2617-2618. forum’s public policy172).2d 447 at p. 2003). citing Haynsworth v. Glyphics Media. M/V Southgate 2000 AMC 399 at p.34 e) Reasonableness For a great many years. N. Gertrude Oldendorff 204 F.D. (3) if the fundamental unfairness of the chosen law may deprive the plaintiff of a remedy. or violation of the U. Supp. 1993). 7 Ed.S. Inc. 965 (5 Cir.177 Muller & Co. What is reasonable is a question of fact for the trial court to decide. Inc. 175 Barbara Lloyd Designs. Mitsui O. 224 F. 177 Barbara Lloyd Designs. Supp. N. 2002) (bill of lading cases relying on the same criteria). denied. Inc. 2003). 1 at p. are rarely accepted as grounds for refusing enforcement to an otherwise valid forum clause in the United States. 2616 (N.Y. Takemura & Co. Corporation 121 F. 176 Barbara Lloyd Designs. M.176 Public policy must be “strong” in order to defeat a choice of forum provision. Subsequent U. at pp. 2618-2619.Y. 1129. 1220 (S. M.D. 672 (S. v.’ due to the grave inconvenience or unfairness of the selected forum. 2003 AMC 2608 at p.S. decisions have generally not strayed far from the three very general grounds of unenforceability articulated in Bremen (injustice or unreasonableness (unfairness). Swedish American Line. Inc. 1996 AMC 253 at p. 1966).S. for example.D. v.S. 15. Dist. v. 1962 AMC 1217 at p. Conti Singapore 2003 AMC 667 at p. 808. Sun Line Cruises. 2002). Central National-Gottesman.”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”.D. 1363 (2 Cir. Ct. Supp. 1971.Y. See Effron v. 678.. S. The fact that plaintiffs in many jurisdictions are permitted to plead by deposition often precludes acceptance of the “day in court” argument. 510 U. 1955).
v. and the fact that foreign witnesses were permitted to testify by way of affidavit in India. 1992). 2950 (E. was not an adequate ground for nonenforcement of an exclusive Indian law and forum selection clause in an ocean carrier’s bill of lading. where the carrier’s option to sue in either Mexico City or Rio de Janeiro was upheld.S.D Cal. the requirement to post over $2.. 2003). 2000 AMC 2947 at p. 489-490): “speculative concern regarding fairness of a foreign court. the port of loading. as security.S. the bill of lading clause specified United States law and U. Ltd.V. Co. v. Supp. Other evidence indicated that Brazilian courts were fully competent and that trial there. Supp. because the forum selection clause in the bill of lading required that suit be brought exclusively in one or other of those fora. See also Tokio Marine & Fire Ins.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.179 the unavailability of a jury trial in Brazil. the lack of trial by deposition. Jalisco 903 F. Cal.C.178 the Court noted that: “Additional considerations include the relative bargaining power of the contracting parties. v. Tex.186 131 F. Fritz Transportation International. 180 The Sixth Circuit noted (ibid. 1995). in Glyphics Media. held to be “unreasonable”. have generally been found insufficient to constitute “unreasonableness” justifying sidestepping of the designated forum. the port of discharge. 1694 (D. v.D. at p. In Interamerican Trade Corp. 178 . was therefore not enforced. particularly as regards delays for trial. although more inconvenient for one party. Ltd.e. v. Cho Yang Shipping Co. the transshipment port or the place of delivery). unreasonableness was found in the “floating choice of law and jurisdiction clause” considered in LG Electronics Inc.Y. was nevertheless not unjust. 186 2002 AMC 106 at p. N.. the place of delivery.2d 487 at pp.D. Co. M. 2000). 770 (S.. were all dismissed as grounds of non-enforcement of the Brazilian jurisdiction agreement. which parties must have considered when negotiating the agreement. 2001). Va.D. U. 489-490 (6 Cir. Dismissal on forum non conveniens grounds was also denied. 179 973 F. 110 (N. the presence of bad faith. 1996 AMC 769 at p.2d 787 at p.S. 182 See also Tokio Marine and Fire Ins. 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”. 673.185 The clause. and the alleged difficulty of getting money out of Brazil. were invoked in enforcing the jurisdiction clause. does not justify refusal to enforce the clause.184 In that case. 2001). with other authorities cited there.S.” 181 2003 AMC 667 (S. S. 2004).2 million U. Nor did the provision require suit to be brought exclusively in any one specific forum. Cal.183 On the other hand. The clause failed to specify when the carrier had to exercise its option and when the “default” (i. 183 Ibid. COSCO 2004 AMC 1048 (C. M/V Conti.” Mere procedural differences between trial in the designated court and trial in the U.D. the slowness of the Brazilian judicial process. Companhia Fabricadora De Pecas. 18 at p. 185 Compare with Industria Fotografica v. jurisdiction. at pp. M/V Turquoise 2001 AMC 1692 at p. 184 2002 AMC 106 (N..180 Similarly. of Canada v.) forum applied. 20. Inc.35 In Allianz Ins. the awarding by Brazilian courts of judgments in cruzeiros rather than in dollars. while also giving the carrier the choice of six other fora in which to litigate under their respective laws (the place of acceptance of the goods. 2001). 790. and the convenience and relatedness of the forum to the contract. provision of an adequate remedy for the aggrieved party. Co.181 the allegedly “deplorable state of India’s court system”.D.
it was held to be “unreasonable and unjust” to require the ocean carrier to defend the claim and cross-claims in two different districts. Fla. 1422. S. however. 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. See also J. 384. 1408 (1972). 2003). Ltd.S. overrules the broad reading this Court gave to the clause in Monrosa. however. at p. 429-431.. The admiralty attachment under Supplemental Rule B also gives jurisdiction. “Arrest. Unlike the clause in Monrosa.36 Where a bill of lading forum selection clause required the cargo claimant to sue the ocean carrier in the Southern District of New York. 1895 at pp. Lauritzen A/S v. 180. Supreme Court distinguished Monrosa. so the forum selection clause was not enforced. See also Conklin & Garrett. See Tetley. International Maritime and Admiralty Law. where the clause was so much more narrowly drafted. at p. Carbon Black Export.2d 381 at p. although reading: “No legal proceedings may be brought against the Captain or shipowners or their agents except in Genoa.2d 1441 at p.S. Tetley. 2721 (9 Cir. 2.” 188 187 .S. 1983 AMC 2719 at p. owners or agents of the vessel. The Vessel Bay Ridge 703 F. 1972 AMC 1407 at p. Inc. and concluded that191 “…the language of the [Bremen] clause is clearly mandatory and all-encompassing.v. 1987): “Bremen.United States A very particular problem arises in admiralty in respect to the enforcement of forum selection clauses.S. Geneva 2003 AMC 2511 (S.188 Does the fact that jurisdiction has been obtained by arrest make any difference to the consideration of a direction in a jurisdiction clause? A leading decision has been S. Accordingly. ibid.A. 2732 (9 Cir.D. See Tetley. 1983) re Supplementary Rule C. The bill of lading jurisdiction clause did not specifically refer to in rem proceedings.. Maritime Liens & Claims. the wording of the foreign forum selection provision has been held wide enough to encompass claims in rem as well as those in personam.ca/maritime/arrest. Indeed in M/S Bremen v. See also Tetley.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. 2003 at pp. 2 Ed. M/V Finnrose 826 F.187 f) In rem . 1959 AMC 1327 (1959). Ltd. Rev. Monrosa v. 408-409. see also Alyeska Pipeline Serv. Dashwood Shipping. 1988 AMC 318 at p. 1995).law. Zapata Offshore Co. where the jurisdiction clause in the towage contract stipulated that:190 “…(a)ny dispute arising must be treated before the London Court of Justice".mcgill. 418. AMC at p. most modern foreign forum selection clauses are not limited to claims against the master. The arrest of the ship in rem under Supplemental Rule C gives the Federal District Court jurisdiction. Co.htm. 191 Ibid. 1 at p.. 1443. itself. 944. Attachment and Related Maritime Law Procedures” (1999) 73 Tul. 321 (5 Cir. U. L. 1995 AMC 2730 at p. 406407. the language of the clause in the Carbon Black case was far different”. the U. 189 359 U. 1933-1936 and on-line at http://tetley. 20. The jurisdiction was also convenient to the parties. S. 1998 at p. but where the ocean carrier was also faced with crossclaims by co-defendant inland carriers arising out of the same facts. Mediterranean Shipping Co.” The clause was held to be insufficiently specific to cover the in rem claim and thus the District Court could keep jurisdiction. v. Dias v. 190 407 U.
1270-1271. Va.D. 240 F. 359-360 (W. 2004). N. 197 Signed at Hamburg.3d 355 (2 Cir.192 the clause stated: " .Y. M.2d 352. Halla Maritime 583 F. Procs. 1995). Code sect. 1091. (4) the cost of obtaining the presence of witnesses. (7) where the events in issue took place. . unlike the clause considered in Monrosa. Supp.D. a district court may transfer any civil action to any other district where it might have been brought. give effect to a clearly worded jurisdiction clause. The Court (at p. 1337. The suit is transferred. v.195 so can a court.b. 1984).V. 305 F. (2) the convenience of material witnesses. 199 See Norfolk Dredging Co. g) Transfer within the U. provide useful rules and procedures when suit has been taken by an action in rem. M. Wash. .D. 2004 AMC 1278 (S. aff’d without opinion sub nom. v. on March 31. (6) calendar congestion. 194 Ibid. 210 F. 1997). 2002): “These criteria include: (1) the convenience of the parties. and in force November 1.S. but only upon the defendant furnishing security to ensure payment of a subsequent judgment." The Ninth Circuit interpreted this clause to include in rem claims. Norwegian Cruise Lines. . which has obtained jurisdiction by an arrest in rem (under Supplemental Rule C) can nevertheless give effect to a jurisdiction clause and decline jurisdiction. shall be brought before the Seoul Civil District Court in Korea" to encompass in rem claims. DSR Atlantic. 193 1999 AMC 1088 (S.D. 498. Inc. 196 Teyseer Cement v. Transfer of a suit from one federal district court in the United States to another198 is fraught with far fewer problems because a change in law is not involved. The parties agreed to the jurisdiction choices in the contract. Tokio Express. 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.H. 1090) also cited Industria Fotografical Interamericana v. Jalisco 903 F. supp. 1995 192 . and (8) the interests of justice in general. 18 at p. Co v.S.194 In the same way that a court. Convenience is the main criterion. Lim. 584 (9 Cir.Y. see also In re the Complaint of American President Lines. M/V Kasif Kalkavan 989 F. 1999). 20.. where the Court interpreted a clause that read "any and all action . M.S. in the interest of justice. 1611 (E.199 131 F.V. 535. 1978. 1. 198 28 U. .S.Y. Inc. .” 195 M/S Bremen (and Unterweser G. District Court pointed out that.197 at art. . although some other jurisdiction is more appropriate. Zapata Off-Shore Co. 1985 AMC 356 at pp. decline jurisdiction and dismiss the attachment or order the release of whatever security the defendant has posted." For an example of the use of this provision in a case involving a forum selection clause (in a cruise passenger ticket). In Reed & Barton Corp. this clause was broad enough to cover in rem claims. Supp. 407 U. 1404(a) provides: "For the convenience of the parties and witnesses. M. 1998 AMC 765 (S. 21(2). Tokio Express. see Lurie v. which has acquired jurisdiction by an admiralty attachment (under Supplemental Rule B).D. 2000). Tex.3d 1336 at p. 1992. at p. the U. 1996 AMC 769 at p. although it did not mention them expressly.193 where the clause similarly subjected “… any claim or dispute arising under this Bill of Lading”.m. Supp. 2002 AMC 1608 at p.2d 532 at p. 1998). 1268 at pp. N. (3) the availability of process to compel the presence of witnesses. 1972 AMC 1407 (1972). 770 (S.N. (5) the relative ease of access to sources of proof.37 Again in Fireman's Fund Ins.196 The Hamburg Rules. any claim or dispute arising hereunder or in connection herewith shall be determined by the courts in Seoul and no other courts. under this Bill of Lading . 1998 AMC 583 at p. Supp.) v. Lucent Technologies.D. Ltd. See also International Marine Underwriters v.V. to German law as determined in the “Hamburg courts to the exclusion of the jurisdiction of the courts of any other place”.V. (citations omitted).
890 F. See also International Private Satellite Partners.  A. the shippers have been held bound by the forum selection clauses of the ocean carriers’ bills of lading. Supp. 308. the relative familiarity of the courts with the applicable law.201 In particular. note 5 (9 Cir. Inc. of Canada v. v.N.2d 93 at p. 191-194 (H.A.D. M. United States 883 F.) Ltd. 2000). Supp.C.2d 787 at p. Schneider Freight USA Inc.D. 203. 2000 AMC 2947 at pp. see Lord Wilberforce in The Atlantic Star. 1988) (perfume dealership contract). citing Manetti-Farrow. Va. v. N. 551 at p. the existence of a forum selection clause. Inc. NVOCCs perform a function similar to overland freight forwarders. Co. 175 at pp. Supp. N. not as principals.3d 1171 at p. the shipper or the subrogated cargo underwriter). Gucci Am. 1997) and other decisions cited there. v. 2003). 1175. but merely as agents of the shippers.204 Those courts have the reputation of giving quick and fair justice and. 204 The Fehmarn  2 Lloyd's Rep.200 Jurisdiction clause in marine bills of lading have been held applicable to third parties to those contracts (who. of North America v. 203 Indemnity Ins. for that reason AMC 2296. App. 514. v.” See 46 U. 975 F.Y. 1193-1194 (S.C. 207-210. 1995). v. by his private stipulation. Inc. 126. 1985).2d 206 at p.L. N. 131 F. for example. so that it becomes “foreseeable” that they will be so bound. where they have been adjudged to be “closely related” to the dispute. S. Co.D.Y.38 5) Jurisdiction clauses and third parties In the United States.  2 Lloyd's Rep. 1702(17(B).D. Glyphics Media.). Zochonis (U. M/V Hyundai Liberty 294 F.J.D.Y.Y. Included are the original choice of forum. Allianz Ins. 555 (C. may be the owner of the goods.Y. Ltd.D. 209 (7 Cir. L. 2001 AMC 2153 at pp. N.R. 629-630 (S. the enforceability of the judgment.K.  2 All E. 493 F.Forum Non Conveniens Introduction It was the practice and tradition in the United Kingdom to jealously guard the jurisdiction of its courts. D. 485-486 (W. 2002 AMC 1598 at p. Conti Singapore 2003 AMC 667 at p. 858 F. but it is subject to the overriding principle that no one. 483 at pp.S. 791. Hrelijin 600 F.. where freight forwarders or NVOCC’s (non-vessel-operating common carriers ) contract with ocean carriers. 202 A NVOCC is “a common carrier that does not operate the vessels by which the ocean transportation is provided. consolidating small shipments from multiple shippers into large. For a useful history of the law of forum non conveniens in the United Kingdom. Hugel v. 197 at pp. Dukane Fabrics Int’l Inc. 1998 AMC 334 at p. can oust these Courts of their jurisdiction in a matter that properly belongs to them”. 2001). Columbus Cello-Poly Corp. 436 at pp.. Cal. 315 (S. 32 F. v.) and Adrian Briggs “The staying of actions on the .” 200 See. Supp. judicial economy.2d 509 at p. Inc.203 202 X. Co. v. 2303. 2951-2952 (E. Compania United Arrows. Cir. 626 at pp. (Emphasis added).A. 2158-2160 (C. 1985 AMC 1192 at pp.D. Corporation of Lloyd’s 999 F. 1993) (contract for membership in insurance market).Y. for example. N. 464-469. standard-sized reusable containers that can be quickly loaded on and off ships and onto trucks or other types of transportation. 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. L. See National Customs Brokers & Forwarders Ass’n v. Lucky Cat Ltd. 1991 AMC 302 (summary) (D. Cho Yang Shipping Ltd. 2002). 341 (S.Supp. 202 at p. 1989). third parties have been held bound by forum selection clauses in various types of contract.V. where Denning. 1980). 677 (S. 1997) (contract for satellite communications services).C. Supp. 201 See. 1) The United Kingdom . Paterson. and is a shipper in its relationship with an ocean common carrier.P. depending on the case. 1602 (9 Cir. Other factors that inform the Court’s inquiry are intermingled with these considerations. 101. Kukje Hwajae Ins. Farrell Lines.2d 118 at p. and the public interest in the local adjudication of local controversies.
'lesser breeds without the law'.R.'s statement of the rule in St. 630 (H. 382 at p. You may call this 'forum shopping' if you please. 197. two conditions must be satisfied.” 207  A. All E. It extends to any friendly foreigner. 454. 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. 341: “. 197 at p. 709 (C.). 200. 209  A.” Lord Denning's comment was specifically questioned “with all respect” by Lord Reid in The Atlantic Star.): “My Lords. 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.39 many foreign litigants have sought and still seek resolution of their commercial disputes in London either before the courts or in arbitration. 339 at p.R. Rockware Glass Ltd. 181. 398 (C. 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. 625 at p.  LMCLQ 227 and in a subsequent article “Forum non conveniens . Pierre v.C. where Lord Diplock established two rules:209 “In order to justify a stay. 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.B.R. with all respect. An offer to provide security was made after the proceedings had commenced. 812.).K.J.  1 All E.R.  2 All E. the passing of which many may regret. at p. thereby modifying Scott L. 446 at p.C.).A.  2 Lloyd's Rep. .an update”.” ground of ‘forum non conveniens’ in England today”.L.” The next step was MacShannon v.).or. 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.L. South American Stores (Gath and Chaves) Ltd. 705 at p. 181 (H. 453. as Kipling more forthrightly phrased it.  2 All E. Lloyd's Rep.206 2) The modern regime . A. Lord Diplock added in The Abidin Daver  1 Lloyd's Rep. He can seek the aid of our Courts if he desires to do so. 175 (H.. 451.  2 Lloyd's Rep. when inhabitants of this island felt an innate superiority over those unfortunate enough to belong to other races. 175 at p.C. 795 at p.U.” To which quotation.L..  3 All E. 205 The Atlantic Star  2 Lloyd's Rep.  1 K.C. but their Lordships rejected the technical argument that they were not entitled to consider such an offer made after the commencement of proceedings. at p.  LMCLQ 360.A. that seems to me to recall the good old days. 208 Ibid. both for the quality of the goods and the speed of service. but if the forum is England. it is a good place to shop in. 436 at p. 201.R. 436. at p. 206 The Atlantic Star  A.
” Thus by its decisions in The Atlantic Star.. Kuwait Insurance Co. i.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. at p." 212  1 Lloyd's Rep. v.L. 203. 210 . or as well as. 371 (C. Lloyd.L.e. and The Spiliada. there is of course authority binding on me which deplores any discussion or entertainment of those types of argument. Furthermore. or reputation or standing of the Courts of one country as compared with those of another (cf. 211 More recently. noted: “It is not appropriate. The El Amria U. 119 at pp.A. approving a statement by Hobhouse J.K. are lacking in one respect a reasonable balance between the interests of the parties . 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. MacShannon. nevertheless.). in a foreign forum is to be based upon objective standards supported by evidence. MacShannon. the House of Lords had gradually adopted the doctrine of forum non  2 Lloyd's Rep. 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.” Finally in The Spiliada. Strabag Bau  1 Lloyd's Rep.). 361 at p.R.L. 196 at p. per Lord Justice Brandon). 214  1 Lloyd's Rep. 339 at p. 215 Ibid.).and this feature was added by Lord Diplock in The Abidin Daver:212 “. Nothing is gained by any discussion of the relative merits of various different procedures.210 Lord Wilberforce. having competent jurisdiction. 375 (H. W. v.  2 W. in my opinion. at p.. declared in New Hampshire Ins. the balancing of advantage and disadvantage to plaintiff and defendant of permitting litigation to proceed in England rather than. referring to The El Amria  2 Lloyd's Rep.. 1 (H. 344.”211 The foregoing views.). 365 at p. 126-127 (C. in referring to a comparison of the quality of justice obtainable in England and elsewhere. 343. which is the appropriate forum for the trial of the action. or methods.A. 10.. The Al Wahab and The Abidin Daver.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.).J. 202 (H.L. Lloyd's Rep.” Lord Diplock continued and summed up the change in the attitude of the English Courts:213 “My Lords.. in the field of law with which this appeal is concerned.): ""Every court has different procedures. at p. 213 Ibid.R. Co. to embark upon a comparison of the procedures. and Amin Rasheed.L. L.
229 at p. Standard Chartered Bank v Pakistan National Shipping Corporation  2 Lloyd's Rep 365. The Pioneer Container  2 A. v.A.223 Lord Brandon's principles are as follows:224 “(1) Where plaintiffs sue in England in breach of an agreement225 to refer disputes to a foreign Court. (1996) 141 A.L.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. 459-460. and in many more recent decisions. The Benarty  3 W. N. 283-290. 169 at p. is not bound to grant a stay but has a discretion226 whether to do so or not.. 242. (2003) 224 D.A. 521 at p.).  2 Lloyd's Rep. Ltd. 123-124 (C.).V.m.21 to 4.A. jurisdiction was kept in England because the witnesses were English and related litigation had already commenced in 216 . 1 at p. 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. 3) The rule in The El Amria In the The Eleftheria.H. 244 at p. The Regal Scout  2 F.  1 WLR 1367 and The MC Pearl  1 Lloyd's Rep 566. in fact failure to cite oneself is often evidence that the previous statement was erroneous. assuming the claim to be otherwise within its jurisdiction. 154 (C. 327. Pakistan National Shipping Co. The Eleftheria  1 Lloyd's Rep.). 119 at pp. High C.L.  1 S.  1 Lloyd's Rep. ECULine. (2) The discretion should be exercised by granting a stay unless strong cause227 for not doing so is shown. 242. See also The Sennar (No. despite the choice of a court in Alexandria. how The El Amria had been cited by others. At first this remarkable decision was not generally followed.). 1)  2 Lloyd's Rep. Civil Jurisdiction and Judgments.  1 Lloyds Rep.). Pakistan National Shipping Co.).b.). Armco. 227 The Sennar (No. Neptune Orient Lines Ltd. 385. See Akai Pty Ltd. 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. (4th) 577 at pp.R. 224 The El Amria  2 Lloyd's Rep.A.23 at pp. See also The Nile Rhapsody  1 Lloyd's Rep 382 (C. 119 at pp. per Lord Bingham). The Iran Vojdan  2 Lloyd's Rep. 12851286. The People's Insurance Co. (No.A. 593 at p.41 conveniens.). 2)  2 Lloyd's Rep. 142 at p.R. 856. 2003 AMC 1280 at pp. 119 at pp. 163 (C. Armco Inc.A.C. but Brandon L. 851 at p.219 Brandon J. 229 (C. 2002. 222 See The Pia Vesta [198411 Lloyd's Rep.  1 Lloyd's Rep 593 (P.C.222 reiterated by the House of Lords in Donohue v.). including notably Z. 237 at p. 527 (H. In the El Amria itself. 374 at p.L. 521 at p.I. 605 (P. Lord Goff formulated an authoritative approach to forum non conveniens: 217  1 Lloyd's Rep. 223 Donohue v.C. 123-124 (C.C. 324 at p. 1) 2 Lloyd's Rep.A. Lord Brandon noted. 235 (C.L. 324. Citi-March Ltd. 242. v. no doubt with some satisfaction. v. Zapata Off-Shore Co.). (No.L. 425 at pp. 527-528 (H. 1095.). For further commentary on these points.. 450 at p. 219  1 Lloyd's Rep. ___ (Aust. Ibid. see Briggs & Rees. The Pioneer Container  2 A.R.L. 3 Ed.. Baghlaf Al Zafer v.). 225 The agreement must be valid and enforceable and the claim must fall within the scope of the agreement.C. 2)  1 Lloyd's Rep. 142 at pp. 1082 at p. paras.4. for example. The Sennar (No. of Canada v.L.  1 Lloyd’s Rep. In this latter judgment. 221  2 Lloyd's Rep.). 237 at p.  2 Lloyd's Rep.). 2)  2 Lloyd's Rep. In The Spiliada  1 Lloyd's Rep. Pompey v. (The Humber Bridge)  1 Lloyd's Rep 72. 251 (C.C.).A.R.). 154-155 (C. 586-587.J. 226 Unterweser Reederei G. 432-433 (H. and the defendants apply for a stay. 123-124 (C. 4. The rule has also been referred to in Australia. 171.A. 220 Proving that it is quite fitting to cite oneself. 380 at p. 218  2 Lloyd's Rep. 10 (H. Baghlaf Al Zafer v. 158 at p. 237 at p. the English Court.A. The Eleftheria rule has been cited in Canada in Agro Co.
3 Ed. 428-429 (Aust. 125.  1 Lloyd's Rep 593 (P.R. The Traugutt  1 Lloyd's Rep. 142 (N. (ii) be unable to enforce any judgment obtained. Stay was refused where the delay for suit had expired in the foreign court. Fay (1988) 165 C. 2002 at para. 349 at pp. where the plaintiffs in a cargo claim failed . 230 The Traugutt  1 Lloyd's Rep. 324 (N. 546 at pp..) and Kidd v.). it would lose its only available security.I.25 at p.R.L. 2)  2 Lloyd’s Rep. C. The “strong cause” requirement was also strongly reaffirmed by the Supreme Court of Canada in Z.R.Z. High C. 1287-1293. 288. where there is no forum selection agreement. 76 at p. 197 at pp. Pompey v.). See also The Bergen (No. 79.L.).C.Z. v. 231 The Traugutt. 387.A. By refusing the cargo owner the right to arrest in England. at p. For the same principle in Australia.229 (4) In exercising its discretion the Court should take into account all the circumstances of the particular case. see also The Sennar (No. 710 (C. but without prejudice to (4).  1 Lloyd's Rep. see Ocean Sun Line Special Shipping Co. may properly be regarded: (a) In what country the evidence on the issues of fact is situated. where it was suggested that if the failure to protect time in the chosen foreign forum was not the fault of the claimant. 246. 228 The Fehmarn  1 Lloyd's Rep.A. 237 The Vishva Prabha  2 Lloyd's Rep. and in New Zealand. 169 at p. whether it differs from English law in any material respects. 135 at p. and how closely. 380 at p. the foreign time bar might be grounds for refusing the stay. or more readily available. (4th) 577 at pp.232 (c) With what country either party is connected.A. van Heeren  1 N.  1 S. 286 at p. High C.R. who was Counsel for the plaintiffs.233 (d) Whether the defendants genuinely desire trial in the foreign country. 721 (C. and why England is. Conversely.A.42 (3) The burden of proving228 such strong cause is on the plaintiffs. 514. But see also The Pioneer Container  2 A. Bertola S. 2003 AMC 1280 at pp.A.).). (1996) 188 C.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.C.A. see also The Pia Vesta  1 Lloyd's Rep. 550 and 552 (C. 288. 2)  2 Lloyd’s Rep.L. v. 293.L. 76 at p. 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.). and the effect of that on the relative convenience230 and expense of trial231 as between the English and foreign Courts.).Z.236 (iii) be faced with a time-bar237 not England. the following matters. But in The Bergen (No. where they arise. 551 (C. Hyslop  3 N. ECU-Line N.A. 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. 324. The People's Insurance Co. 586-592. the clearly more appropriate forum for trial. See Briggs & Rees. (5) In particular. 126-127. (b) Whether the law of the foreign Court applies and. v. Akai Pty Ltd.Z. 288. 233 The El Amria. Civil Jurisdiction and Judgments. at pp.R. 453 at pp. (2003) 224 D. supra. 450 at pp. 418 at pp. 229 Where there is a forum selection agreement. See also The Sidr Bashr 235 The Lisboa  2 Lloyd's Rep. 232 The Eleftheria. 286 at p. 286 at p. 4. 230-231 (Aust. if so. after all.V. 245. 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”. Brandon.R.A. H. or are only seeking procedural advantages. 377 and 385 (C. 236 Evans Marshall & Co. 172.R. 142 at p. see Society of Lloyd's & Oxford Members' Agency Ltd.L. 237 at p. 473 and 479.A. where the advantage of the English process of discovery was held not to be a consideration. C. 155 (C. ibid. The Vishva Prabha  2 Lloyd's Rep. The Vishva Prabha  2 Lloyd's Rep. The Eleftheria  1 Lloyd's Rep. at p. Ltd. 234 The Iran Vojdan  2 Lloyd's Rep. Inc. supra.C. 2)  2 Lloyd's Rep. 461-469.  1 W. The El Amria. 79 (convenience to the parties and to witnesses).L. See also in appeal  2 Lloyd's Rep. 511 at p.V.). supra.).). 710 at p. v.
of course. People’s Ins. on the usual forum non conveniens principles applied in cases where there is no jurisdiction clause.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.  1 Lloyd’s Rep. were found not to be strong enough reasons to overturn the non-exclusive English forum selection clause. Q. Ltd. 38-23 to 38-64.C. and even arguments as to multiple proceedings. 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.240 and whether the clause was negotiated by the parties or was only a term in a standard-form contract. 45. CSAV  1 Lloyd’s Rep. 240 Mercury Plc. . 679-680.N. Dee Howard Co. The stay was therefore granted. 405 at pp. whether or not the English proceedings will be stayed will be determined by the court in its discretion. 127. (Comm) 33 at p. Zurich Ins. 405 at p. the latter of which cases concerned a non-exclusive jurisdiction clause. Mobil Sales and Supply Corp. 630. there must be the three identities: 1) the same parties acting in the same qualities. Sweet & Maxwell. Sinochem International Oil (London) Ltd. 2) the same subject matter. 670 at pp. 15 Ed.239 whether the jurisdiction clause is an exclusive or non-exclusive one. after consideration of all relevant circumstances. 90 at p. 242 British Aerospace Plc v. This is not really a problem of jurisdiction or of forum non conveniens. applies whether the contractual forum is England or another country. 40. or (iv) for political. the Court held that the defendants should not be denied the right to rely on the foreign time-bar (which also applied under art. v. 405 at p. Metro v. Ltd. 41 at p. They have been added for the purposes of this commentary. Co. where factors such as the greater availability of evidence in Chile. v.  1 Lloyd’s Rep. 368 at pp. Howard. 243 In both res judicata (also termed estoppel by judgment) and chose jugée. 410. (M.  1 Lloyd’s Rep. 376-377. not grant jurisdiction to a claimant if the same question has already been heard in a foreign court. Co.43 applicable in England.  1 Lloyd’s Rep. but of recognition of a foreign judgment. 618 at p. requiring the plaintiff to show “strong reasons” why the contractually agreed forum should not try the case. Furthermore. Ltd. v.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”. an issue which was decided in the original proceedings will be considered as settled between the parties and will to show that they had acted reasonably in failing to take steps to protect time in the foreign (German) forum specified by the jurisdiction clause. Metro v.R. 238 The El Amria  2 Lloyd's Rep. 410-416. 104. by taking suit there within one year of discharge of the cargo. CSAV  1 Lloyd’s Rep. Communication Telesystems Ltd. Ace v. gen.. 241 JPMSA v. Metro v.. 239 Akai Pty. 119 at p. 405 at p.). 410. CSAV  1 Lloyd’s Rep. ed. CSAV  1 Lloyd’s Rep. and the importance of Chilean law (the law of the place of performance of the bill of lading contract under the Rome Convention 1980). 3) the same object.) It has been held more recently in England that this basic approach. See also Metro v.242 4) Res judicata A court must. 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. MNI  2 Lloyd’s Rep. 3(6) of the Hague and Hague/Visby Rules).  2 All E. racial. See generally Phipson on Evidence. 410. London. even when the cause of action in the subsequent proceedings differs from that in the original proceedings. Where a nonexclusive jurisdiction clause permits suit in or out of England. 2000 at paras.
J. v. c.A. 31. Their Lordships were careful to note that not every jurisdiction clause.1972). 244 (C. particularly in cases where one of the The Sennar (No. 1 (H.E. 25. where the U. 574-575.K. .). 3(8) of Visby or the U. 1988 (O. This would have meant a lower per package limitation and thus a violation of art.244 5) Public policy.246 Transfer of the case to a Dutch court in accordance with the jurisdiction clause.E. 251 The Lugano Convention on Jurisdiction and Recognition of Judgments in Civil and Commercial Matters. Roberts v.K. such as the Indonesian Commercial Code. Supreme Court severely limited the doctrine of mutuality. 250 Hereinafter described as the Brussels Convention 1968 ( O. 246 1971 U. although the tonnage limitation under Indonesian law was much lower than under English law. it was held that in order to establish issue estoppel: 1) the judgment must be given by a foreign court of competent jurisdiction.C.12. Rayner & Keeler Ltd. – 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. 1 at pp.C. English law The choice of forum clause (jurisdiction clause) must not reduce the carrier's responsibilities under the applicable law.1988) applies to civil jurisdiction and the recognition and enforcement of civil and commercial judgments as between the Member States of the European Union and those of the 244 . (No. 249  2 Lloyd's Rep. was not affected by the provisions of the Rules. referring to Parklane Hosiery Co. i.C.J. 325 (C. being the Carriage of Goods by Sea Act 1971. 19. could have resulted in Dutch law being applied (because the clause also invoked Dutch law).A. and 4) there must be identity of subject matter. it has been held that there need not be identity as to the parties for collateral or issue estoppel to apply: W. In The Morviken. 853 at p.248 In The Benarty.. 2)  A. 1002. 527 (H.A. meaning that the issue decided by the foreign court must be the same as that arising in the English proceedings. Supp. L.L.K. 1979). 6-7 (H. 8 of the Hague/Visby Rules and of the 1971 Act used the words “any statute”.C. 1971. 319/9. selecting as forum a court which does not apply the Hague/Visby Rules. Hellenic Glory 471 F.  1 Lloyd's Rep. 77 (C. adopted at Lugano on September 16.e.S. 3(8).11. Inc. 3(8) of the 1971 Act and of the Hague/Visby Rules. 3) there must be identity of parties. This is termed “issue estoppel”. Carriage of Goods by Sea Act. however. Shore 439 U. Therefore jurisdiction was retained by order of the Court of Appeal247 and the House of Lords. where issue estoppel is often referred to as collateral estoppel. will necessarily be a violation of art.L.).D. not package limitation.E.S.). the Hague Rules 1924.  1 Lloyd's Rep. 299/32.J.).245 the applicable law was the English version of the Hague/Visby Rules. stay was ordered. In the U. 521 at p. N. 2) the judgment must be final and conclusive and on the merits. 245  1 A. 935 (H. 248  1 A.L. 565 at pp. In The Good Challenger  1 Lloyd’s Rep. 322 (1979).). 2)  1 Lloyd's Rep. because the carrier was seeking to rely on tonnage limitation.Y.. 1979 AMC 2152 (S.249 however.S.). and. permitting transfer of the suit to Djakarta.) (where the case is styled The Hollandia). 247  1 Lloyd's Rep. 67 at p.L. 565. The damaged cargo had been shipped from London and continental European ports. since art. that article meant that an applicable foreign tonnage limitation statute.C.44 not be relitigated in the subsequent proceedings if it arises once again.U. L. Carl Zeiss Stiftung v. 6) U. It was held that the transfer of jurisdiction did not offend art.
Norway and Switzerland. 622 and 626 (C.  All ER (D) 130 (Jun) (C. 258 Supra. and in force in all Member States of the European Union except Denmark.J.K. 877.  EWHC 1704.R.260 in favour of courts outside such European Free Trade Association (EFTA) other than Liechtenstein (viz. and American Motor Ins. Iceland. ibid.  EWCA Civ.E.B. and therefore is still governed by the Brussels Convention 1968 in its relations with the other Member States of the E.. See Briggs & Rees.218 at pp. adopted by the Council of the European Union on December 22. Delebecque. 256 Denmark chose not to bound by the EC Regulation. court. first para. in respect of civil jurisdiction and the enforcement of judgments. 3 Ed. ibid.M.B. which became a party to the Lugano Convention in 2000). 2002. (Case No.V. The English Court of Appeal decided in Re Harrod's (Buenos Aires) Ltd. 16.253 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.A.2001.U..e the jurisdiction having the most real and substantial connection with the case) is determined to be a non-Member-State.S. 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. North & J. Co. 217. 227-228. 259 See Ace Ins. v. and yet the "natural forum" for the litigation (i. See Owusu v. Anton Durbeck GmbH v. 252 Harrods (Buenos Aires) Ltd. L 12/1. Zurich Ins. Sun Life Assurance Company of Canada (UK) Ltd.210 to 2. Frangos  2 Lloyd’s Rep.) (giving effect to a service of suit clause providing for U..  Ch 72. . or EFTA. of the Brussels Convention 1968.A.A.256 The European Court of Justice is expected to rule on the issue on more recent references by English courts. para.45 defendants is domiciled in a member-State of the E. 206 (C. "Forum Non Conveniens and the Brussels Convention"  L. 17.L. 217-223. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters..  4 All ER 543 (C.U. DMF 2001. 2.252 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. the validity of the clause must be assessed in accordance with the conflicts rules of the forum. 187.A. in Coreck Maritime GmbH v.  All ER (D) 294 (Jul) (Q. Re (No 2)  4 All ER 348.214 at pp. 2000.257 In the meantime.U. 346 (C. as well as EC Regulation States. under art.A.  3 W. The Court of Justice of the European Communities. 337 at p. unreported. Handelsveem BV of November 9. Den Norske Bank ASA  Q. For the text. 1999 at pp.210 at p. as well as Poland. 2. Thus a U.) (forum non conveniens applied to send dispute to Panama).). para.1. See also Haji-Ioannou v. 13 Ed. as of March 1. Fawcett. Jackson (t/a Villa Holidays Ball-Inn Villas)  EWCA Civ.  1 Lloyd’s Rep.). London.). 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. Cellstar Corp. 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.A.. 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. Ph. 264-266. appeared to confirm this position.Q. 257 The English Court of Appeal has requested the European Court of Justice to rule on this question of interpretation of the Brussels Convention. obs. 2002 at paras. 255 EC Regulation No. unreported.). 253 See Briggs & Rees. would appear to be free to apply its forum non conveniens analysis. 397 (C. 2000. litigation). See also Lawrence Collins.).-N.A. Co.C. 260 See Travelers Casualty and Surety Company of Europe Ltd. eds. as part of its conflicts of law rules. Civil Jurisdiction and Judgments.: C-387/98)  ECR I-9337. 2. This holding would seem relevant under EC Regulation 44/2001 as well. 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.. without such action infringing the Brussels Convention. 1160. see O. S. v..). v.R. 618 at pp.J. 535 and Cheshire & North's Private International Law (P. Butterworths.  All ER (D) 26 (Mar).
261 With respect to jurisdiction clauses calling for adjudication of disputes in an E.The 1982 Act and CPR rules 6.).U. 264 November 9. 1987. 2000 (Case No. 23 are met. made December 10. replacing the former Order 11 of the Rules of the Supreme Court 1965.19 and 6. Some of these decisions have applied forum non conveniens to enforce jurisdiction clauses requiring litigation of disputes in such non-Member States.U. The Nile Rhapsody  2 Lloyd’s Rep. Ph. 1999.’s Civil Procedure Rules 1998. 387-98). 261 . giving effect to an Egyptian choice of law clause in a case where an English defendant was sued in England. 265 “Claim form” is the new term for “writ” under the U.19(1) See. none of whom is domiciled in an E. the claimant in some cases must obtain leave of the High Court. the test provided by the European Court of Justice in Coreck Maritime GmbH v. Member State. 263  1 Lloyd's Rep. 23 is almost identical in wording to the most recent text of art 17. or ought to have been. 237 at p. 2001 DMF 187. “CPR”. 17.46 States. Handelsveem BV would be applicable. the claimant will serve a claim form265 on the carrier who at times is out of the jurisdiction. first para. the Civil Procedure Rules 1998 are referred to under their common abbreviation. and which bind parties one or more of whom are domiciled in an E. 23(1) and (2)). Art. To effect service out of jurisdiction. The principles set out in The Eleftheria263 would therefore be applied by a U.20 To commence an action to recover for loss or damage to cargo in England. 23 of EC Regulation 44/2001 applies and requires the courts of Regulation States to stay the proceedings in favour of the specified court. Art.  ECR I-9337. 382 (C. aware and which in such trade or commerce is widely known to. of the Brussels Convention 1968. in so far as those principles indicate whether the clause in question accords with international trade or commerce. As regards the jurisdiction clause's enforceability as against consignees and subsequent endorsees. for example. 242. where the conditions of art. parties to contracts of the type concerned (art. and regularly observed by.262 In brief. or b) in a form which accords with practices which the parties have established between themselves.U. first para. the courts of other Member States shall have no jurisdiction over their disputes unless the court or courts chosen have declined jurisdiction. 23 of EC Regulation 44/2001 and the most recent text of art. to comply with art. 1998 and in force April 26.U. Delebecque. SI 1998/3132. court in determining the validity of a jurisdiction clause in a bill of lading. 399. State must be either: a) in writing or evidenced in writing (including electronic form).A. or c) in a form which accords with a usage in international trade or commerce of which the parties are.266 a) Where leave is not required-CPR Rule 6. 266 Service of process out of the jurisdiction is governed by the Civil Procedure Rules 1998. of the Brussels Convention 1968 at section VI.K. State.K. State. In this article. 23. in other cases. the jurisdiction clause designating the forum of another E. supra. 262 See the discussion of the conditions of art. such leave is not necessary.264 7) Service out of jurisdiction . obs. 23(3) also provides that where a jurisdiction agreement is concluded by parties.  1 Lloyd’s Rep. art. which came into force on January 1.
CPR rule 6. art.19(1)(b)(iii).U. 277 CPR rule 6. 270 EC Regulation 44/2001 of December 22. 1982. O.18(d) in defining “Convention territory”. the claimant.275 In other words. has a wide meaning in the light of sects. applicable to all proceedings instituted on or after March 1. without obtaining the court's leave. 17 of the Brussels or Lugano Conventions applies. 27. if the jurisdiction clause in the bill of lading designates the court of an E. 27. provided that either the claimant or the carrier is domiciled in such a state. 23 267 268 CPR rule 6. 17 of the Brussels or Lugano Conventions or art. however.19(1)(b)(i).e.19(1A)(a). 2002. 1(1) of the Civil Jurisdiction and Judgments Act 1982. a particular part of it or a particular place within it. The term “domiciled”.19(1)(a). sects. 274 CPR rule 6.K. 41-46 of the Civi1 Jurisdiction and Judgments Act 1982272 and clearly a defendant carrier can be domiciled in many jurisdictions concurrently. b) Where the court's leave is required – CPR. .1.J.18(g)(i) and U. In relation to a “Regulation State”. a Member State of the EU. 271 CPR rule 6. or any other Convention territory 276 or any other Regulation State..2000. L. reflecting the EC Regulation 44/2001 and paras.K.277 The court where the action is first commenced is. 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.274 or on a court contemplated by art.E.19(1A)(b)(iii).K.269 while the term “Regulation State” means a Member State as defined in EC Regulation 44/2001. who is out of that court's jurisdiction.C. in relation to a Convention territory. 275 CPR rule 6. 9 to 12 of Schedule 1 of this Order define the conditions under which a person is “domiciled” in the U. in commencing his action there. can serve a claim form upon the carrier.. or an EFTA state.K.18(k).. 273 SI 2001/3929. U. c. rule 6.268 The term “Convention territory” encompasses the territory or territories of any Contracting State to which the Brussels or Lugano Conventions apply. There is an important proviso. the only court that has jurisdiction. refers to sect.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”. 16. 272 CPR rule 6. 1(3). 9 to 12 of Schedule 1 to the Civil Jurisdiction and Judgments Order 2001.270 i.19(1A)(b)(i). therefore. domicile has a similarly broad meaning. 41-46. 276 CPR rule 6. 269 CPR rule 6.273 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. 1982. Paras. 2000.20 If the defendant carrier is not domiciled in any “Convention territory” or “Regulation State” or is not party to a jurisdiction agreement under art. c. 23 of the EC Regulation 44/2001. 12/1. other than Denmark271.
rule 6. where these authors state that CPR. para. rule 6.20(5)(a) to (d).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. 2002. 13.281 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. 1991. service out may also be authorized where a claim is made for a remedy against a defendant domiciled in the jurisdiction (CPR rule 6. provided that service out would be justified if one did exist.21(1)(a)) and that 3) he “… believes that his claim has a reasonable prospect of success” (CPR.. or for an interim remedy under sect.20(9)).20(4)). the claimant must obtain the leave of the High Court to serve the defendant outside of the jurisdiction. 281 CPR rule 6. 3 Ed..278 There are various grounds listed in CPR rule 6. and 14 (H. Civil Jurisdiction and Judgments. 154 or 175 of the Merchant Shipping Act 1995. See also Briggs & Rees. para.L. on the other hand. See also ibid.L. Claims to enforce a judgment or arbitral award may also authorize service out (CPR rule 6. 27 (interim relief in proceedings falling within the scope of the Regulation that are commenced or about to be commenced in another Convention State or Regulation State or in a part of the U.20(5)(d). 280 CPR rule 6.21(1)(b)). the burden of proof is on the plaintiff to show that the forum is the most appropriate.K.21(2A)).20(6).286 When leave is sought to serve out of the jurisdiction. 1982. 153.285 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.20(10)). 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. rule 6. 284 For example. U. 1 at pp. c. in contractual matters.K. 285  1 Lloyd's Rep.54 at p.).20(8). See also Briggs & Rees. not subject to the jurisdiction of the High Court) (CPR rule 6. The claimant must also show that 2) the grounds on which the application for service out is made and the paragraph(s) of CPR. at p. 325.20(9). 3 Ed.K.20(7).20(1)). For example.288 For example. 2002.33 at p. c. 21 (CPR rule 6. 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. as well claims relating to property in the jurisdiction (CPR rule 6.48 of EC Regulation 44/2001. 287 The claimant must show that 1) England and Wales constitutes “the proper place in which to bring the claim” (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.. 363. an exclusive jurisdiction clause).20(2)).e. rule 6. U. or for an injunction ordering the defendant to do or to refrain from doing an act within the jurisdiction (CPR rule 6.287 When the court is asked to stay an action on the ground of forum non conveniens.).20 relied on in this regard (CPR. 288 The Spiliada  1 Lloyd’s Rep. 286 Ibid. 25(1) of the Civil Jurisdiction and Judgments Act 1982.20 justifying the grant of leave to serve the claim form out of the jurisdiction. Permission to serve out is also required for Admiralty claims a) in the nature of salvage where any part of the services took place within the jurisdiction. 283 CPR rule 6. 282 CPR rule 6.20(17A)). 324.284 In the light of The Spiliada. or b) to enforce a claim under sects. 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. Civil Jurisdiction and Judgments.283 There are various other types of claim which authorize service out with the court's leave as well. 279 CPR rule 6.21(2A) 278 . a claim form may be served out of the jurisdiction with permission of the court if the contract was made within the jurisdiction. rule 6. at p. 4. 1 (H. 5.
1952. 7(2) of the Arrest Convention 1999 provides that notwithstanding art. See N. 5077-508.07 at pp. I understand. 26 of the Civil Jurisdiction and judgments Act. May 10. 295 R.C.Forum Non Conveniens Introduction . consistent with the manner in which the process of saisie conservatoire is applied in civil law countries.. and in force February 24. The Arrest Convention 1999. 1982.289 Nor is it necessary to do so. it may (or at the request of a party. 293 Art. paras. U. now happily in force. 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.49 8) No service of a claim form in rem out of jurisdiction An in rem claim form cannot be served upon a vessel which is out of the jurisdiction. the courts of the State in which the ship has been arrested or security has been provided for its release. 2 Ed.B.R. CPR. 24 of the 1968 Convention. at pp. 203 (Fed.S.291 Similarly art. c.L. See Tetley. 50(l) that: is intended to reproduce the substance of the previous case law. 2002. and (b) within 12 months after the date of issue. 1956. 2(3). 1981. c. 54.the principle The Federal Court Act295 of Canada stipulates at sect. Civil Jurisdiction and Judgments. The Arrest Convention. c. rule 61. 4 & 5 Eliz. except where the parties validly agree or have agreed to submit the dispute to a court of another State that accepts jurisdiction.K. while at the same time granting a stay of proceedings in this country to enable the action to proceed in the appropriate forum. See also art. adopted at Geneva. 8. U. c.). and cf. or to arbitration. 1982.293 It also recognizes forum non conveniens under national law.). 15 (H.294 XI. “Arbitration Clauses”. C. March 12. sect. normally be wrong to allow a plaintiff to keep the benefit obtained by commencing proceedings here. . Maritime Electric (1985) 60 N. 1 at p. 7(1). Brussels. 1982. even though a jurisdiction clause has designated a court in another jurisdiction to decide the action on the merits. 3 Ed. 291 See sect. which replaced the former Administration of Justice Act.” See also Chap. 1985.05-8. 27. 7. found as Schedule I to the Civil Jurisdiction and Judgments Act. where Lord Goff stated “. Where the arresting court lacks jurisdiction under art. it would not. 292 International Convention on the Arrest of Ships. 1) Canada . but not in force.” 289 See Briggs & Rees. 28. 294 Art. 46. 7(2). shall) order a period of time within which the claimant must bring proceedings before a competent court or arbitral tribunal (art.A. 26 of the Civil Jurisdiction and Judgments Act 1982. 7(2).3(5) specifies that the claim form must be served: (a) in accordance with the practice direction.. 7(3)). Electric Power Commission v.292 at art. 290 Convention Relating to the Arrest of Sea-going Ships. I think. 7(3) permits the vessel to be arrested in one jurisdiction and held as security there.. Maritime Liens & Claims. 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. 1999. contains a similar provision. This international convention has been almost completely implemented in the United Kingdom by the Supreme Court Act 1981. See The Spiliada  1 Lloyd's Rep.. 1956. That Convention also requires respect for jurisdiction and arbitration agreements by the arresting court. 2.K. 1033-1036. 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.290 at art. Such a conclusion is. 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. 7(1) on the merits or has refused to exercise it under art. 1998.
301  1 S. Suncor Inc. The Ship Friedrich Busse (1982) 134 D.” Canadian courts followed the English courts on the question of forum non conveniens in decisions such as Yasuda Fire & Marine Insurance Co. 302 Ibid.C.L.” See also Kuhr v. 269. Ritchie. the defendant had the onus of proof. Supr. 448. The Nosira Lin.P. J. 917 and 921. citing various authorities. v. 795 at p.296 a case involving an application for leave to serve ex juris. 299  1 Lloyd’s Rep. Rockware Glass Ltd.R. The Ship Capricorn.” 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. and the cost of assembling foreign witnesses. 442. the Supreme Court of Canada considered the doctrine of forum non conveniens in determining whether the Court should direct for service ex juris. C. the impropriety and inconvenience of trying a case in one country when the cause of action arose in another where the laws are different.R. and they include the balance of convenience to all the parties concerned. British Columbia (Workers’ Compensation Board). stated that: “The factors affecting the application of this doctrine have been differently described in various cases .C. Westmin Resources (1983) 32 C.R. v.303  2 S. 8 (Ont. (1982) 27 C.P.300 definitively opted for the English view of forum non conveniens. 812 (H. Referring to forum non conveniens.L.50 “The Court may. v. 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).297 relying on the two criteria (positive and negative) laid down by the House of Lords in MacShannon v. 422 at p. whereas in seeking a forum non conveniens stay.L.). the Supreme Court of Canada.C. 5 at p..). 297  1 F. however. 303 Ibid. The burden of proving the clearly more appropriate forum fell on the plaintiff in service ex juris motions.301 Concluding his analysis. 300  2 S. in its discretion. Supr. BP Can.298 In 1993.C. v. Ct). including the House of Lords The Spiliada. at pp. 304 (Ont.299 as well as its own precedent in Antares. Sopinka J. 921. the undesirability of trespassing on the jurisdiction of a foreign state. 298  A. C. 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. Plibrico (Canada) Ltd. (3d) 261 at p. in Amchem Products Inc.R. 303 (Fed. Ct).C.A. stay proceedings in any cause or matter.). 300 at p. at p. Holdings Ltd. (1984) 52 N.C.” In Antares Shipping v. 895.R. 897. 1 (H. including the plaintiff. 296 . … (b) where for any other reason it is in the interest of justice that the proceedings be stayed.. 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.
C. C.R. C. See also Bomar Navigation Ltée v. C. The Senator (1996) 112 F. 404.C. The Erato  1 F. Great Tempo S.R. of Can. unless arrived at on wrong basis or plainly wrong).51 The clearly more appropriate test continues to apply to forum non conveniens decisions in Canadian case law today. P.C. C.R. 140 at p.Z.  3 F.C.C. ibid. Can. 450 at pp.).Z. C. Can.).A. (1999) 176 F. C. High C.A.L. but rather on whether the Australian forum is clearly inappropriate. 2) whether the party seeking the interlocutory injunction (or stay) would suffer irreparable harm unless the injunction (or stay) were granted. Itochu Canada v. See also Jian Sheng Co.R. Lloyd's Syndicate  2 N. Can. v. 851 at p. 221 (Fed. (2003) 224 D. 309 Burrard-Yarrows Corporation v. See also Trans Continental Textile Recycling v. (1998) 225 N. 495 (Fed.Z.R.).T. v. Australia. 287 (decisions of motions judges on applications for stays of proceedings based on foreign jurisdiction clauses should be upheld. 242.310 See.R. The Regal Scout  2 F. 203 (Fed.A. Jian Sheng Co. 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. C. Anraj Fish Products Industries Ltd.309 c) A strong reason for not honouring a foreign jurisdiction clause may be that all the facts are in Canada.) (cargo claim). Pompey v.R. 105. 255 (Fed. Abta Shipping Co.L. See Voth v.307 a) There must be “strong reasons” for not honouring a jurisdiction clause calling for jurisdiction before a foreign court. per Hargrave. v.304 2) Jurisdiction clauses . and rejected the “tripartite test” applicable to motions for interlocutory injunctions.T.).R. The Fu Nin Hai (1999) 173 F.Z. however.I. ECU-Line N. 231 at p. See. The Hansa Bay  F.C. 461-469.) and Club Mediterranee NZ v. v.). Hyundai Merchant Marine Co.)..C.A. 54 (Fed. 427.C. the landmark New Zealand decisions in McConnell Dowell Constructors Ltd.).A.A. 310 The Agelos Raphael  1 Lloyd's Rep. 216 (N. 314 (Fed. including maritime case law. v. 427-428 (Fed. 237 at p. v.  ETL 39 (Fed. C.  3 F. 1287-1293. (4th) 577 at pp.C. C. in The Eleftheria305 has been relied on in quite consistently over the years. C. This tripartite test involves a judicial determination as to: 1) whether there is a serious issue to be tried.T.C. C. 418 at p.) (personal injury and death).).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”. Wendell  1 N. Nissho Iwai Co. leave to appeal to Supreme Court of Canada denied  S. of Canada Ltd. 257 (N. Great Tempo S.I. Manildra Flour Mills (1990) 171 C. (1996) 106 F. for example. v.R. Napa v. as fully articulated in England in The Spiliada. focusing not on whether there is a more clearly appropriate forum elsewhere.R. which the Federal Court of Appeal had found applicable to stay applications as well. 308 Z. per Morneau. P.V. 307  1 S. 278 (Fed. The Hoegh Merchant  1 F.T.). C. 538 (Aukst. Can-Am Produce and Trading Ltd. Can. 144.306 and was reaffirmed by the Supreme Court of Canada in 2003 in Z. 248 at p.L.586-592. v. 306 Burrard-Yarrows Corp. (2001) 185 F. 856 (Fed.). Can. for example. See also Agro Co.C. 305  1 Lloyd's Rep.T.the criteria .L.Canada With respect to the enforcement of jurisdiction clauses. 418 at pp. Other Commonwealth countries have similarly adopted the forum non conveniens principle.). Can.A. the authoritative summary of principles by Brandon J. 304 . 1998 AMC 1864 at p. and 3) which party would suffer the greater harm as a result of the granting or refusing the interlocutory injunction (or stay).R. applies forum non conveniens slightly differently. 234 (Fed. Can. 250 (Fed. Shanghai Ocean Shipping Co. 2003 AMC 1280 at pp. Can. Can. C. Pompey v. (1998) 173 F. The Hoegh Merchant  1 F. ECU-Line N.).V.T.) (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). C.R. A. 1867 (Fed.
c. 1983. 450 at pp. 312 311 . 341. (2003) 224 D. See Louisiana Code of Civil Procedure. 313 S. Cour d’Appel de Paris.R. of Can. 1987. (4th) 577 at pp. April 18. 450 at p.52 d) A jurisdiction clause should not be honoured if the law of the court designated by the clause would permit the carrier to avoid its responsibility under the Hague Rules.p. DMF 1985. 1) France Introduction France and the civil law generally316 does not recognize the principle of forum non conveniens.C. 851. 113.R. the right to request that an action already before a court with jurisdiction over the subject matter be stayed. 14 of the French Civil Code. 2001. DMF 1984. 520. ECU-Line N. Agro Co. 6. of Canada Ltd. see Rodière. 469-472. Rather. ECU-Line N. DMF 1985. October 31. 123 c. 316 A few civil law jurisdictions. Québec Civil Code 1994.312 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. so that suit may be taken in a more convenient forum. In Germany. February 15. 314 R. 46 of the Marine Liability Act. It should also be noted that when the plaintiff in an action is of French nationality.L. 2003 AMC 1280 at p. 46 in effect restricts the discretionary power of the Federal Court of Canada under sect.g. the French courts will have jurisdiction by virtue of art..I. 472. DMF 1986. Jurisdiction Clauses Restricted by National Law”. Pompey v. 315 See the comments of the Supreme Court of Canada on this point in Z. 1984. 50 of the Federal Court Act314 to enforce foreign jurisdiction and arbitration clauses in bills of lading.C. Traité. 42-48 of the New Code of Civil Procedure (NCP).c. 1984. 3(8) of those Rules. constitutional provisions prevent German courts from refusing to exercise their statutory jurisdiction. member state): Cour de Cassation.C. (2003) 224 D. C.R. See also Tribunal de Commerce de Paris. 706. F-7. 317 The rules governing which court has territorial competence are found in arts. v. (1983) 148 D. art. 2001. (4th) 577 at p. The Regal Scout  2 F. affirming Cour d’Appel d’Aix. 104 with note by P. have incorporated forum non conveniens into their legislation. irrespective of the nationality of the person (e. March 10. 1295. 1985.C.L.). fundamental breach of the contract of carriage). 713.L. 1984.311 e) Courts deciding on the enforceability of jurisdiction clauses should avoid considering substantive issues (e.  1 S.U.c. 3135 c.-Y. 2003 AMC1280 at pp.315 XII.V.I. the French court either has or has not compétence (jurisdiction). 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. para. contrary to art.S.g. 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. December 7. i. 1293-1295.  1 S. a foreign insured) in whose rights the plaintiff (e. 594. in section V.V. mise à jour 1978. c. Pompey v. 718.317 An action is not stayed or suspended so that suit may be taken in a more convenient court. 592-594. May 14. November 25. 1981. leaving such questions to be decided by the contractually selected foreign forum.R. 1986.313 Sect. DMF 1987. however. in force August 8. 668 at p. See discussion of this statute supra. notably Louisiana and Québec. art. Nicolas. DMF 1982.R.e. (3d) 412 (Fed.C. 672.g.q. DMF 1985. Z. Cour de Cassation. a French insurer) has been subrogated: Tribunal de Commerce de Paris. Affrètements & Transports.
art. 397.S. See generally Bertrand de la Grassière.e. See arts. 318 . jurisdiction ratione loci) were formerly considered to be merely of private interest and thus derogation from these rules was generally permissible. (J. 165. A. «La clause attributive de compétence à un tribunal étranger». 1980. June 24.53 A jurisdiction clause validly agreed upon by two “commerçants” (merchants) will be recognized by a court which has jurisdiction to hear the case.65. DMF 1981. 54 merely refers to the normal procedural rules that govern the validity of jurisdiction clauses. 323 Formerly. 1936). September 25.S. 119. where the impact of the changes in the New Code of Civil Procedure is discussed. 3) French domestic law . 1967. sur les contrats d’affrètement et de transport maritimes (J.jurisdiction clauses Under present French civil procedure. 321 Decree No. Procedure 3. DMF 1982. 10 of the former Law of April 2. 320 Law No. 1936 prohibited jurisdiction clauses ousting the jurisdiction of French courts in cases of carriage between French ports in a French vessel (navigation réservée). 75-1123 of December 5. «Les clauses des connaissements attribuant compétence à un tribunal étranger sont-elles encore valables?» DMF 1980. (J. 322 Tribunal de Commerce de Nantes.O. 1966. 48 of the New Code of Civil Procedure. 360. p. D. 1979. DMF 1952. Les clauses attributives de compétence dans le transport maritime de marchandises. D. April 11. 75-99 NCPC: Les exceptions d’incompétence.O.325 (NCPC) which also establishes an important exception: i. 1983. Cour d’Appel de Rouen. See Bertrand de la Grassière. fascicule 211. 66-1078 of December 31. however. Amoussou. DMF 1952.321 In addition to stating that actions may be brought before the court of the French port of loading or discharge. 119. 1981.323 the general rule is that choice of forum clauses are to be treated as unwritten and therefore with no effect. La clause attributive de compétence à un tribunal étranger. 66-420 of June 18.4. 325 Established by Decree No. 1966. 1974. 1966. 189. para. 54 of the Decree of December 31.295. DMF 1980. September 30. 2002. 206. 162 at p.4. in which case the court will declare itself (“incompétent”) (without jurisdiction). 515. 235. 483. 319 Loi relative aux transports des marchandises par mer. 42-48 NCPC: Cour d’Appel de Bordeaux.324 This general rule is enshrined in art. January 13. Art. February 8. DMF 1983. See Cour d’Appel de Rouen. 515. February 27. 1966 restrict jurisdiction clauses. 496. 1937.322 art.. 1967.1. D.e. January 11. 1966320 contains no prohibition in respect to jurisdiction clauses. 54 is in fact merely a supplementary provision to arts. Presses universitaires d’Aix-Marseille. Fraikin et Boquet. the territorial jurisdiction rules were considered to be of private interest and thus derogations therefrom were permitted: Juris-Classeur.K. p. DMF 1980. 1966 sur les contrats d'affrètement et de transport maritimes. DMF 1974. 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.4.318 In carriage of goods by sea cases.O. «Les clauses des connaissements attribuant compétence à un tribunal étranger sont-elles encore valables?».319 The domestic Law of June 18. See Fraikin et Boquet. 2) Prohibition under law The rules governing territorial competence (i. Nor does art. Tribunal de Commerce de Paris. 1975.
Cour d’Appel de Paris. must proceed before the court which is seized of the principal action. 1981. Y. 1991. 78. See also Cour d’Appel de Rouen.330 nor was a clause written in a foreign language that the party did not understand. 1981. DMF 1983. Achard. 1. be consented to apart from the other clauses in the bill of lading: Cour de Cassation. with note by Ghestin. 678 with an excellent commentary by P. D. art. Cour d’Appel d’Aix. Delebecque. May 24. DMF 1981. February 8. rep. note H. DMF 1998. int. DMF 1980. Cour de Cassation. Bulletin des transports 1987. Cour d’Appel de Rouen. Thus a clause printed in ultra-fine letters below the line where the party was to sign. Nicolas. DMF 1985. Gaudemet-Talon. November 8. July 20. 546. March 19. 1928. December 1. S. October 1. 1983. Cour d’Appel de Paris. 661078 of December 31. In Cour d’Appel de Rouen.328 until the requirement for the shipper to sign bills of lading was repealed in 1987. DMF 1981.S. 1984. 87-922 of November 12. IV. 1981. See comment by R. Cour d’Appel de Bordeaux. where the rule is different when the 1968 Brussels Convention applies. 1979. 1. somm. DMF 1997. even if acting in a commercial capacity. pan. it must at least be identifiable. Cour de Cassation. July 12. 489. March 3. 492. May 3. 1979. February 28. March 20. Cour de Cassation. Bull. inf. 327 Cour de Cassation. pr. Cour de Cassation. civ. Achard. DMF 1991. no. dr. 1996. 270. Cour de Cassation.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. Until 1987. note R. regardless of the presence of a jurisdiction clause: see art. 1982. See.-Y. report J. 274. 1966 required the shipper to sign the bill within 24 hours of the loading. 1978. Rev. February 25. Ph. Cour de Cassation. Achard. 37 of Decree No. March 11. Cour de Cassation. 333 NCPC. February 27. 1927. where the foreign court was not determinable and the clause was therefore unenforceable. Rev. 431 with note by R. DMF 1983. January 14. DMF 1983. 1987 so that the shipper is no longer obliged to sign the bill of lading under French law. 415. no. 1980. 537. 118.1. 1980. 726. Bull. See also Cour d’Appel de Paris. 33. trim. 1982. February 13.326 The clause must be clearly apparent so that the parties can be found to have given their informed and unequivocal consent to it. 609. 1986. obs.54 where the jurisdiction clause has been agreed to by parties acting in a commercial capacity and has been clearly specified in the agreement. who is impleaded into the action. Cour d’Appel de Paris. When there are several defendants and the action is indivisible. DMF 1998. cr. with note by Normand. DMF 1983. 1983. 332 Cour de Cassation. 1979. DMF 1981. dr. 1980. 333 Cour de Cassation. without that clause being pointed out. Bull. 1986.332 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. DMF 1979. 1986. February 4. p. 77 328 Cour d’Appel de Rouen. 531.327 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. 1971. 331 Cour de Cassation. obs. March 3. Cour d'Appel de Paris. November 30. D. Cour de Cassation. was not deemed consented to. II. 507. however. 37. and cannot decline the jurisdiction of that court even by invoking a jurisdiction clause: art. if it is not identified. See. 1982. 128. DMF 1983. June 26. no. 330 Cour d’Appel d’Aix. January 16. jur. 1982. 37 of Decree No. Cour d’Appel de Paris. February 20. 329 Art. DMF 1982. 1972. 518. The jurisdiction clause need not. 262. 326 . second para.-P. 85. 1982. 98. DMF 1987. June 27. See Cour d’Appel de Paris. DMF 1983. which merely designated the courts of the country where the carrier had his principal business. Achard appended to Cour de Cassation. 802. DMF 1974. 282. the plaintiff can pursue the action in the jurisdiction of any one of the defendants. May 24. May 9. Tassel. 730. Rémery. 1983. however. no. December 17. 725 at p. 1979. DMF 1986. however. Bull 1980. 1998. 489. NCPC. 1982. the Court should have refused to give effect to the clauses concerned. 1979. May 30. 42. DMF 1979. 1974. 143 with note by R.331 The forum chosen in the clause must be clearly designated.64. 66-1078 was amended by Decree No. 325. November 14. 1984. 11. 1998 (The Lode Bay). 1971. 162. 720. November 14. DMF 1983. 1985. 1980. Achard. Pal. as well as in Cour d’Appel de Rouen. 1980.S. Gaz. 334 Tribunal de Commerce du Havre.
if the clause designates the court of the carrier's domicile. 1984.  ETL 496. the courts had at one time given effect to foreign jurisdiction clauses. See Hof van Beroep te Antwerpen. 3(8) of the Hague/Visby Rules makes those rules of public order. 602. 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. 29 of Law No. 1986. the courts have in some cases given effect to the jurisdiction clause. however. just as art. Bulltein des transports 1994. Nor is a clause designating a court which one of the parties has the option to eventually name. 5. DMF 1980. Belgium takes a similar position. civ. 550. 1966 (governing domestic carriage) makes that law of public order. the jurisdiction clause's effectiveness will be jeopardized. April 23. February. 1979.337 Of course when the whole agreement is challenged. fascicule 212-1. fascicule 212-1. 87. in the case of international carriage. because the carrier drew up the clauses in the bill of lading. para. trim. 1983. the contra proferentem rule will apply if such designation disadvantages 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. 2003 (The MSC Dymphna). See Tribunal de Commerce de Paris. In Belgium. fascicule 212-1.335 The court will sometimes. 338 Juris-Classeur Procédure 3. 95. Thus merely referring to a jurisdiction clause appearing in another document would not be sufficient. DMF 1982. June 17. But see also Cour de Cassation. Notably. but not always. para.341 See Juris-Classeur Procédure 3. the Hague/Visby Rules. 198 1. March 335 . Juris-Classeur Procédure 3. the French court must consider whether giving effect to the clause would violate French public order. 546. that since such a clause derogates from the normal rules of civil procedure. 1982. DMF 1983. Normand. January 14. 100. 341 Belgium takes a similar position. but only on the condition that the designated foreign court apply the Belgian equivalent of the Hague Rules: Hof van Beroep te Brussel. which must be performed in good faith. If the jurisdiction clause designates a foreign court which is likely to apply its own law. fascicule 211. 23. 336 Cour de Cassation. 337 Juris-Classeur Procédure 3. para. where the Court notes that the bill of lading is the typical case of a contract of adhesion. 548. 236. fascicule 212-1. Rev. DMF 1985. DMF 1994. Any restriction of the shipper's rights beyond what is permitted by the Law of June 18. 66-420 of June 18. 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. 203. holding that the acceptance of a jurisdiction clause could not be inferred from the existence of prior commercial relations between the parties. See also Cour d’Appel de Rouen. 340 Art. 1966 or. 612.339 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. the French court should refuse to give effect to the jurisdiction clause. 416. as in the case of a short form bill of lading. DMF 1982. by requiring that the clause “be specified very clearly in the agreement” itself. Cour d’Appel de Paris. 1993. March 7. Sometimes the jurisdiction clause is not found in the document itself.336 It must be remembered. 48. dr. para. would be contrary to public order.55 since that port could change from voyage to voyage. 93. DMF 187. March 2.338 But art. March 1. 710. 1980. would seem to invalidate jurisdiction clauses which do not appear in the bill of lading issued to the shipper. June 22.340 In such circumstances. the clause will be interpreted restrictively by the courts. as where there has been a fundamental breach of the contract. Cour d’Appel de Rouen. 1994. Cour d’Appel de Paris. January 20. 339 Cour d’Appel de Paris. para.
Cour d’Appel d’Aix.e. 73-63 of January 13. 1973. See Cour de Cassation.344 Today. Norway. Member State. 17 of the Convention had precedence over the other means of acquiring jurisdiction. 16. 1971. not by art. 622.  ETL 704. DMF 1986. See also Cour d’Appel de Rouen. Cour d’Appel de Rouen.C. L. para. fascicule 631. 1984. July 12. May 15. see also Cour d’Appel de Paris. The Lugano Convention 1988 will also continue to apply to jurisdictional matters involving a Member-State of the European Union and either Iceland. 346 See EC Regulation 44/2001. 1985. DMF 1985. 214. even though the clause in question arose in respect of an action in warranty and the principal action was being taken in another jurisdiction. 17 on jurisdiction clauses. 1987. 48 NCPC). as the Regulation now does. State and the case involves a Danish domiciliary. June 3. 2002 of EC Regulation 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. May 25. by which the Brussels Convention 1968.U. see Fraikin and Boquet.347 In The Tilly Russ. signed at Brussels. jurisdiction clauses in contracts between parties both of whom are domiciled in France continue to be governed by art. 117. 48 NCPC where the clause specifies a court in another E. art. 713.348 the European Court of Justice held that a jurisdiction clause in a bill of lading would satisfy the requirements of art. with note by P. art. Subsequently. was essentially the same as the Regulation in respect of jurisdiction clauses. actions taken before the court of one European Union Member State by or against a corporation or individual domiciled in another Member State. 620. Nicolas. Nicolas. Cour d'Appel de Rouen. and its 1971 Protocol of Interpretation continue to apply between Denmark and the Member States bound by the Regulation (i.  ETL 641. D.345 The Brussels Convention 1968. with note by P. 1971.1. 17: 18. DMF 1983. March 1. 22. June 10. 469. 1983. DMF 1987. 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. March 10. Actes de la 8ème session. par Frédéricq.56 4) France and EC Regulation 44/2001 Until the coming into force on March 1. even if there is an international element to the contract: e. See also Cour d’Appel de Rouen. 1982. 344 See Cour de Cassation. 1979. July 5. 1984. 604. as amended by various Accession Conventions. 1968. where one or more of the parties is a domiciliary of any other E. 98. 48 NCPC. 520. see also the Protocol on the Interpretation of the 1968 Convention by the European Court. August 29. 17 of the Convention and not necessarily with the national law (i. 492.J. DMF 1979. signed at Luxembourg. . 1984. the other Member States of the European Union). See Cour d’Appel de Rouen. continues to displace art. DMF 1983.Y. however. October 31. art. 23 of the Regulation. where it was held that jurisdiction acquired by means of a jurisdiction clause which complied with art. 98. Switzerland or Poland. country except Denmark. September 27. 723. March 14. which.  ETL 50. 23 of the Regulation governing the validity of a jurisdiction clause.S. DMF 1985. 1974.346 On the other hand. 342 O.342 French courts were bound by the Brussels Convention 1968343 on the same subject.U.4.U. 1982.g. May 24. 557. 1973. supra. DMF 1983. 1979. 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. Rapport sur les travaux de la 2ème Commission.e. where the bill of lading was signed outside of France. 343 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. The Convention as amended covered. where it was held that the jurisdiction clause need only comply with art. 17 of the Convention or art. supplants art. 303. French courts have not gone as far as Belgian courts in this regard: Cour d’Appel de Rouen. 345 Cour de Cassation. 1985.2001. 347 Conférence de droit international privé de la Haye.96. DMF 1982. para. DMF 1986. 1982. DMF 1980. p. both published by Decree No. Droit international 8. DMF 1980. referred to in Jurisclasseur. 17 wanted to avoid making compliance with formalistic requirements a criterion for the validity of jurisdiction. The draftsmen of the old art. July 12. aff'd Cour de Cassation. 1977. 515 at p. 550.Y. preamble. June 27.12/1. October 9. Belgian courts did not consider such a condition to be sufficient.E. DMF 1985. Hof van Beroep te Brussel.
351 Again. para. no. to ensure that the shipper had such notice as to be able to consent to it: Tribunal de Commerce de Paris. 1984.e. the shipper was never advised of the existence of the clause.J. art. 17 that was adjudicated upon in The Tilly Russ was modified when Denmark. 285/1. was not given effect since the shipper had only been issued the short form bill. para. at art. 83 at p.354 Art. It came into force on November 1. 12 Ed. Bull. October 9.10. 23 of the EC Regulation 44/2001 is reproduced supra. 1986. L. 23 constitutes an important distancing from French law: a jurisdiction clause may be deemed valid under art. 349 348 . and regularly observed by.349 or b) if the jurisdiction clause was specifically included in a prior oral or written agreement and the bill of lading. March 2.e. nor had the shipper agreed to such a clause in previous voyages. 03. Cour de Cassation.350 (this set of circumstances is rare in maritime matters). 548... The inclusion of electronic communications in art. the side where the shipper signs). 254. 1989. 1984. 209. Also accepted are forum selection clauses in a form which accords with a usage in international trade or commerce of which the parties were. signed at Luxembourg on October 9. 2 Ed. Droit Maritime. DMF 1985.351 The version of art. which appeared only in the long form bill. p. 23(1) authorizes jurisdiction clauses which are in writing or evidenced in writing. 350 The jurisdiction clause in this situation would not comply with the requirements of French domestic law (i. IV.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. 1978. DMF 1985. June 19. though signed only by the carrier and not by the shipper. O. or ought to have been. 23(2) is the major addition made by the Regulation to the wording of the immediately preceding version of art. aware and which is widely known to. a jurisdiction clause in these circumstances would not meet the requirements of French domestic law: art. 1997. i. 557.C.355 Thus art. Rodière & du Pontavice. September 30. 48 requires the jurisdiction clause to appear on the document issued. parties to the type of contract concerned in that particular trade or commerce. European Court of Justice. where the shipper put his signature. DMF 1982. section of this article. 48 NCPC) which requires the clause to appear on the document issued itself: See Cour d’Appel de Paris. The French courts emphasized that the jurisdiction clause had to be printed on the back of the bill of lading. Droit Maritime.e. 23 even when the shipper has not signed the (The Tilly Russ). 1984.1989. 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. 353 By the San Sebastian Convention of May 26. The text is found in DMF 1987. 355 Rèmond-Gouilloud. 1993. 354 Art.E. the Republic of Ireland and the United Kingdom. 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. even though the short form specifically referred to the long form.353 It is essentially this latter version which was reproduced by the drafters of EC Regulation 44/2001. If the jurisdiction clause is only printed on the front of the bill. 23. 235. 1981. 623-3. as well as those in a form which accords with practices the parties have established between themselves. 89. 17 of the Brussels Convention 1968. 1984. where a jurisdiction clause. 386-2. its validity will depend on whether it fulfils the requirements of category b). in the U. acted as the written confirmation of that prior agreement.K. 352 Convention on the Accession to the 1968 Convention and the 1971 Protocol of Denmark.
359 In The Tilly Russ. 2001 (The Transvaal). December 5. 89 at p. 17 of the 1968 Brussels Convention. 1093. 2000. June 19.358 5) Opposability to consignee and endorsees As stated above. Cour d’Appel de Rouen. however. the third party. 235. 358 Cour d’Appel de Rouen. DMF 2001. difficult-to-reconcile decisions of the Cour d’Appel de Paris and the Cour d’Appel de Rouen. Delebecque. in acquiring the bill became the assignee of the shipper’s rights and obligations. in some cases recognizing practices established between the parties and international usages in regard to forum selection provisions. The shipper who used to be required by law to sign the bill of lading could be made aware of the clause and was therefore usually bound by it. DMF 1982.  ECR I-9337. obs. 77-79 for a summary of various. 37 of Decree No. 362 The Court held that it was not its responsibility to determine the applicable national law as a matter of interpretation of the Brussels Convention. 17 established in The Tilly Russ and other decisions. 187. The question therefore is whether they also are bound by it. despite art. 2002. 356 . 360 Supra. See DMF Hors série no. The consignee and subsequent endorsees. DMF 1985. November 30. agreed to by a shipper and a carrier. in acquiring the bill. 17. Nicolas. re-amended version of art. holding that. 359 As between the shipowner and the charterer. DMF 2001. DMF 2001. November 29. 17 of the Brussels Convention 1968. DMF 2001. has succeeded to the rights and obligations of the shipper under the applicable national law. May 22. See also Cour d'Appel de Rouen. but rather that that law fell to be determined by the judge seized of the case. 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. 89. 1997 (The Clyde Bank). DMF 2001. 83 at p. 96. Cour d’Appel de Rouen. June 21. no. DMF 1985. Ph. 2001. September 30. produces effects with respect to a third party holder who. See Tribunal de Commerce de Paris. 1038. (Case No 387/98). 616. Handelsveem BV. DMF 1998. applying the conflicts rules of his national law. In Coreck Maritime GmbH v. Cour d’Appel de Rouen. DMF 2003. it is proper to As was required by art.58 bill of lading nor been specifically shown the clause in the bill. 1038. P. relating to the opposability to shippers and consignees of bill of lading jurisdiction clauses subject to art. have no notice of this clause. on proof of the shipper’s actual consent to the jurisdiction clause before the conclusion of the contract of carriage. 66-1078 of December 31. obs. 17. 612. under art. 357 See Cour d’Appel de Paris. 102 at pp. 48 NCPC. 2000 (The Nuevo Leon).-Y. This is especially problematic when the bill of lading in the hands of the third party was issued under a charterparty which contained the jurisdiction clause and which could only be known by the parties to the charter. 750. 2002 (The Ubangui). 1984. 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.356 French courts have been rather inconsistent in giving effect to art. by virtue of the applicable national law. 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.357 and in other cases insisting. reaffirmed that a jurisdiction clause in a bill of lading.361 the European Court of Justice. 17 of the Brussels Convention 1968. April 5. Art. See the commentary by Pierre Bonassies.362 If such is not the case. interpreting the final. 361 November 9. 1966 and art. the European Court of Justice answered this question. DMF 1985. 684. however. 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. 1981. 6. 2000 (The Seinehaven).
4. Bulletin des transports 1997. 368 Cour d’Appel de Rouen. obs. 1999. December 8. to the bill of lading (a tripartite contract) or at least the beneficiary of a “stipulation pour autrui”. as opposed to “special acceptance”. 2000 (The Nuevo Leon). See also Cour de Cassation. March 4. DMF 2003. 41. Cour de Cassation. indicating that art. 2000. d’Haussy. November 14. DMF 2001.-Y. note P. DMF 1995. October 15. Bonassies. DMF 1999. Nicolas on the decision of the Cour d’Appel de Paris. Cour de Cassation. (The Silver Sky). DMF 1995. DMF 1996. 1992. June 25. November 28. note P. obs.  ETL 193. Cour de Cassation. “L’autonomie de la clause de juridiction”. 23 of EC Regulation 44/2001. 1998 (The Silver Sky).363 In France. together with the shipper and carrier. 684 at p. Rèmond-Gouilloud. 369 Cour de Cassation. the consignee is not generally considered to be a mere successor to the rights of the shipper under the bill of lading. 1996 (The Köln Atlantic). but rather as either a true party. 17 of the Convention by the Court of Justice of the European Communities. Delebecque. 74. April 2. note Y. DMF 1997. Cour de Cassation. Bonassies.-Y. int. 259. obs. 367 Cour de Cassation. 705. 339. 2002. cr. January 16. It would appear that the same principle will apply under the almost identical art. Bonassies on the decision of the European Court of Justice in the Castelleti decision of March 16.366 Neither the mere possession of the bill of lading by the consignee or endorsee367 nor its “accomplishment” (i. Revue Scapel 2003. 1007. Cour de Cassation.U. 2002 (The Aptmariner). “Des clauses des connaissements maritimes attribuant compétence à une juridiction étrangère : essai de démystification”. DMF 1997. Cour de Cassation. 17 of the Brussels Convention 1968 and that the decisions rendered under art. cr. 703. Gaudemet-Talon.  ETL 551. 17. November 29. Tassel. November 29. Cour d’Appel de Paris. “L’entrée en vigueur du règlement communautaire no 44-2001 du 22 décembre 2000 concernant la compétence judiciaire. DMF 2003. 1997 (The City of Durban). June 25. no. where the Court did not decide the point because it had not been pleaded by the defendants. (The Sonara). See also the commentary of P. Delebecque. Delebecque. first para. Nicolas.  ETL 551. endorsee or subrogated insurer.-Y. including Coreck Maritime (supra). 11. para. P. F. Ph.e. 366 Cour de Cassation. DMF 1999. December 8. States like Germany. Bonassies. May 26. whether the mere endorsement of the bill by the consignee. pr. but doubtful. 2002 (The Elpa). 46.. 733. 209.59 verify the reality of the holder’s consent to the clause by reference to the requirements of art. indicating that in France the consignee is not seen as a mere successor to the shipper’s rights as in certain other E. 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.-Y. of the bill of lading by the third party bearer of the bill. Ph. 1998. 154. 218. observations Ph. p. March 4. Revue Scapel 2003. DMF 1995. referring only to “acceptance”. amounts to such express acceptance. obs. although the commentary strongly suggests that such action would not constitute the “special acceptance” of the clause by the consignee required by French law. 1996 (The Chang Ping). obs.-Y Nicolas. will probably continue to apply under art. 72 at p. Rev. 694. obs. 20.-Y. May 27. 723. note H. la reconnaissance et l’exécution des décisions de justice en matière civile et commerciale”. 1992. DMF 2003. 2003 (The Houston Express). 393. November 13. P. Cour de Cassation. 1007.  ETL 727 at p. 365 See generally Y. 364 See the commentary by P. Ph. note P. 2003 ETL 321. Cour de Cassation. note P.364 French courts have therefore held that in order to bind consignees and their subrogated underwriters. 1994 (The Harmony and The Nagasaki). 363 . See also Cour d'Appel de Nìmes. P. by signature or rubber stamp. Cour de Cassation. 1997 (The Tonia Bondarchuck). 99. 2003. Delebecque in DMF Hors série no. 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. 14.368 It is unclear. 556. 93. 41. no later than at the time of delivery. DMF 1995. November 29. 1996 (The Fiona). 572. 23 of the Regulation.369 See P. DMF 2003. DMF 1997. of the Convention. Nicolas. 2002 (The Aptmariner). 1994 (The Stolt Osprey). obs. Nicolas. Tassel (an arbitration clause). M. 23 of EC Regulation 44/2001 is basically unchanged from art. Nicolas. DMF 2000.
479. the consignee is proven to have been aware of the clause at or before the completion of delivery of the cargo. March 2. 374 Adopted at Rome.. This is a basic principle of conflict of laws. see also Batiffol et Lagarde.1980. must apply “the system of law with which the transaction has its closest and most real connection . See.370 When the bill of lading has been issued under a charterparty and generally refers to the terms. 333 at p. EC Regulation 44/2001..note. 1976. International Conflict of Laws. however.The Criteria . 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. Droit international privé. 93. L 266/1. October 14.373 In consequence. The principle emphasises how necessary it is to have uniform conflict of law rules. he has been held to be bound by it. 530. no. 9. has taken a major step towards that kind of unification. Bulletin des Transports 2003. The Frank Pais  1 Lloyd's Rep. in the field of conflict of jurisdiction. 1981.60 When the jurisdiction clause was among the clauses printed only on the long form bill of lading. 2) The law by which to judge the clause On the other hand.E. with the Brussels Convention 1968 and. 1980 and in force April 1. 304. DMF 1985. 529 at p. 372 See Cour d’Appel de Rouen. judged under German law. O.C. 89 at p. 1994.372 XIII. a court. DMF 1976. Here again. therefore. 373 The Iran Vojdan  2 Lloyd's Rep. 370 . 1984. uniform conflict rules are most helpful. 1032-1048. in deciding whether a jurisdiction clause should be given effect. without actually reproducing the jurisdiction clause itself. Appendix “F” at pp.371 Where. For the text and a brief commentary.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. obs. an English Court held that German law had the closest and most real connection and the validity of the jurisdiction clause was. but also the shipper could not have had proper notice of the existence of the clause. see Tetley. found in the charterparty. Cour d'Appel de Paris. 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. Jurisdiction Clauses Per Se . more recently. 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. 383. 371.J. or France respectively. The European Union. in a shipment from Hamburg via Bremen and Valencia to Dubai on an Iranian ship. the U. Pierre Bonassies . November 27.K.. that clause will not be enforceable as against the third party holder. 380 at p. DMF 1998. January 5. 337. R. since the latter is not deemed to have known of its contents. 371 Cour d’Appel de Paris. DMF 1983. however. and only a short form bill was issued and signed by the shipper before being transferred to the consignee.10. June 19. 1991. DMF 1985. 1997 (The Istanbul Z). 2002 (The M/V Marimar). 548. 80/934/EEC. including the jurisdiction clause. December 16. 688.S. Achard. ”. since not only the consignee. which Cour d’Appel de Paris. such a clause was not enforceable as against the consignee. The Rome Convention 1980 on the Law Applicable to Contractual Obligations374 is a particularly advanced international instrument. affirming Tribunal de Commerce de Paris.
v. where. 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. a jurisdiction clause is not valid unless the name of the actual court is spelled out. arts. June 12. 3(1) and 4(1). July 12. absent any express or implied choice of law. 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.C. 996. DMF 2001. November 30. See Rechtbank van Koophandel te Antwerpen. Ph. DMF 2001. DMF 2003. 379 Hof van Beroep te Brussel.  S. 376 375 .379 Similarly. see Cour d’Appel de Paris. On the other hand. and Cour de Cassation. March 4. it has been held that a clause calling for suit “before the courts of England” Rome Convention 1980. 1037. a) Clear and precise Unless the jurisdiction clause is clear and precise.61 has harmonized choice of law in contractual matters for all Member States of the European Union.375 The Convention also establishes rebuttable presumptions to assist the court in determining the national law with which the case is most closely connected. and has sometimes been enforced.). 1966. November 29. however. All jurisdictions use roughly the same criteria. 684. although the clause was found unenforceable because of lack of proof that it had been consented to by the shipper.  3 F. 556. March 4.” For an example of the application of art. 829. the court's discretion is based on a number of criteria in respect to the clause itself.  ETL 238. Rome Convention 1980. DMF 2001.C.376 3) Discretion Although there is no general rule as to whether a court will honour a jurisdiction clause. 4(4) in a bill of lading case. DMF 1999. Delebecque.A. obs. 20. In some countries. 418. For an example of the application of art. No.-Y. 1959.Nicolas. Great Tempo S. it should not be honoured because it will not allow the parties to know with certainty before which court they are to proceed. September 9. 1998 AMC 1864 (Fed. C.  ETL 780. 2001. 2003. these presumptions “… shall be disregarded if it appears from the circumstances as a whole that the contract is more closely connected with another country. November 18.A. see Cour d’Appel de Paris. 1984. the carrier was unable to adduce sufficient evidence to support its contention that its “principal place of business” was located in Hong Kong. upheld Cour de Cassation.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. Revue Scapel 2003. 2000 (The Nuevo Leon). 1999 (The Bonastar II).C. 4(5) in such a case. that by art. 2003 (The Houston Express0. 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. 287. arts. 4(2) to 4(4). 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.A. Note. application for leave to appeal to the Supreme Court of Canada dismissed with costs and without reasons. See also Jian Sheng Co. 377 February 2. 378 Cour d’Appel de Rouen. upheld by the Cour de Cassation. 4(5). 2000 (The Bunga Pelang). although such a clause was found to be quite frequent in bills of lading. note P. 618. DMF 1959.
In The Lisboa. DMF 1976. January 5. DMF 2001. June 22. 80. DMF 1975. June 27. nevertheless.A. DMF 1961. 1973. was held to be valid. November 30.381 On the other hand. 1040. 546 at p. 549 (C. December 17. See also Cour d’Appel de Rouen. at the shipowner's option. 542. Rep. 381 The Media (1931) 41 Ll. where clauses giving the carrier the option of suing in more than one court were held null and void. 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. 35. 383  2 Lloyd's Rep. Thus the mere fact that the shipowner had agreed to arbitrate disputes with the charterer in New York did not mean that the shipowner agreed to be amenable to suit in the Southern District of New York in respect of a cargo Tribunal de Commerce de Paris. 385 Cour d’Appel de Rouen.” in a bill of lading signed by the shipper.384 Where a bill of lading referred to a long form bill of lading. 1971. L.S. 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. ”(emphasis added) was not held to bind the “ship” and an action in rem could therefore be taken in Italy. 548 . DMF 2001. 336 and Cour d’Appel de Rouen.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. Jurisdiction was to beat the port of destination (Calcutta) or. See also Cour d’Appel 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. May 9.383 a jurisdiction clause reading: “Any and all proceedings against the carrier shall be brought before the competent Court of London . July 20.R. 1995 (The Frauke). March 2. 659. 2000..S. 1975. 1974. if this is sufficient notice and is sufficiently certain. 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. and consequently. DMF 1971.62 is not sufficient. February 5. 335. b) Jurisdiction clauses by reference The reference in another document to a jurisdiction clause should be detailed and precise. 293. DMF 1973.380 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. DMF 1976. 380 . 384 Cour d'Appel de Paris. 1976. 1960. In consequence. see also Cour d’Appel de Paris. June 19. Revue Scapel 1996. it was inapplicable. DMF 1985..). where the jurisdiction clause in a standard-form contract incorporated into a contract of carriage was held to be unenforceable. see also Cour d’Appel de Poitiers. 382 Cour d’Appel de Douai. 2000. One wonders. See also Cour de Cassation. 724. in the United Kingdom. 484. A note of E. which in turn contained a jurisdiction clause. 1984.
1982.387 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. 135/82.A. February 25.388 d) Legibility of the clause A jurisdiction clause is an exception. where it was held that. as where it seems to be the product of fraud or overreaching by the carrier or is inherently unjust or unreasonable. 390 Cour de Cassation. 232.  ETL 270. 407 U. 1983. (France). N. 392 See particularly the American decisions flowing from Bremen v. 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 1977. 295 at p. November 20.P. 387 386 . February 4. Ph. Tribunal de Commerce de Marseille.390 On the other hand. 388 Cour de Cassation. 1982.P. See also European Court of Justice. e) Plurality of defendants Where there is a plurality of defendants. 1998 (The Albasgracht). DMF 1983. October 27. where a defendant domiciled in a Member State is one of a number of defendants.S. which generally invalidates foreign jurisdiction clauses on the public policy ground that they oust the jurisdiction of local courts. 1. 1.1975. at p. the jurisdiction clause cannot apply if the circumstances of the case forbid dividing the action. DMF 1983. 1982. 1974). 9. 383.S. DMF 1965. 235.c. in their discretion. referred to in The Iran Vojdan  2 Lloyd's Rep 380 at p. 1979-80 J. cited supra. 6(1) of the Brussels Convention 1968). 197980 J. 1982. See a note on the judgment at DMF 1983. DMF 1983. Bundesgerichtshof. because the size of the print of the clause was too small.A. DMF 1999.D. 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. 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. Cour d’Appel de Paris. October 15. 6(1) of the 1968 Convention. 29. c. See also the legislation of jurisdictions such as Australia. 616. 531. New Zealand and South Africa. 81. for the application of art.392 Insurance Co. 1972 AMC 1407 (1972). 143. May 30.386 Similarly. 391 Cour d’Appel de Paris. or where it violates a strong public policy of the forum. Jotina 1974 AMC 1190 (S. 6(1) of the EC Regulation 44/2001 (similar to art.R. 296. the suits against the various defendants need only be connected. May 30. May 24. India Steamship Company389 declared a jurisdiction clause invalid. 1965. Delebecque. June 11. will normally refuse to enforce a jurisdiction clause that appears fundamentally unfair.Y. the Supreme Court of the Federal German Republic in Allianz v. of North America v. para.63 damage action brought by a third party. In this regard. See also Cour de Cassation de Belgique.391 f) Fairness and public policy Courts. he may be sued in the courts where any one of them is domiciled. S. the shipowner was held not bound by a jurisdiction clause in a bill of lading issued to the shipper by the time charterer. 1976. suit at the place of business of any one of the defendants can be convenient. not indivisible. 1979. 389 11 Z. 1384. Cour d’Appel d’Aix. February 2. 37 and Oberlandesgericht Dusseldorf.  ETL 217. obs. May 11. Note that under art. DMF 1983. Zapata Off-Shore Co. 1983.
note 2. S.64 XIV. See also Antares Shipping v. (2003) 224 D. 463. because so often plaintiffs take suit in “… the quintessentially convenient forum for the defendant – the defendant’s home forum”.R.). c. is preferable. 453 at p. CJ. where a choice of jurisdiction clause constitutes but one factor to be considered. 54. at pp.S.J. under sect.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. 49 of the Supreme Court Act 1981. 588. (4th) 577 at p.R. and the burden of proof has been deemed to be different as well. by virtue of the legislation which establishes them. however. see also Williams & Glyn's Bank v. 439-440 per Laskin.R.K. 1333. the Federal Court of Canada has the jurisdiction to construe its originating act and especially heads of maritime jurisdiction set out in sect.L.396 If the court does not have jurisdiction over the subject matter. ECU-Line N.L. one where the starting point is that parties should be held to their bargain. 1288-1289. but the presence of a forum selection clause in the former is.e. See also arts. The Ship Capricorn  2 S. sufficiently important to warrant a different test. U.C. see 28 U.C. R. held: “There is a similarity between the factors which are to be taken into account when considering an application for a stay based on a forum selection clause and those factors which are weighed by a court considering whether to stay proceedings in ‘ordinary’ cases applying the forum non conveniens doctrine. See Ravelo Monegro v. 463-464. Mar. Code sect.C.395 2) It must next be proven that the court hearing a motion of forum non conveniens has jurisdiction over the subject matter of the suit. in my view.  1 S. 1985. Jurisdiction cannot be accepted nor can suit be stayed. 2003 AMC 1280 at pp. Rosa 211 F. See also the rules governing the court's jurisdiction ratione personae or loci (compétence territoriale) set out at arts. 50(1) of the Federal Court Act.393 Nevertheless. 33-41 of the New Code of Civil Procedure: these rules are of public order.C.I. 367 at p. I am not convinced that a unified approach to forum non conveniens. c. France. “Forum Selection Clauses in Maritime Cases” (2003) 27 Tul. Astro Dinamico  1 Lloyd's Rep.L. 22 of the Act. cited by M.” 394 Ibid. and where the plaintiff has the burden of showing why a stay should not be granted. 450 at p. the burden is normally on the defendant to show why a stay should be granted. 456 (H.7. 49-51 and the declinatory exceptions described at arts. The burden is therefore initially on the claimant (plaintiff) to prove the jurisdiction of the forum.S. In Z. (4th) at p. D. L. 75-99. 393 . 422 at pp. 396 The jurisdiction of the plaintiff’s chosen forum over the subject-matter of the dispute is often not an issue.V. 513 (9 Cir.. Fortunately. see sect.R.C.S.. 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. Pompey v. 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. then the suit must be dismissed. as a civil law jurisdiction. 2000).” 395 In the U. In both cases. Davies. AMC at p. In Canada. 42-48 of the New Code of Civil Procedure: these rules are not of public order.3d 509 at p. “ordinary” forum non conveniens cases]. 587.R. see the rules governing the court's jurisdiction ratione materiae (compétence d'attribution) set out at arts. 368.K. 1289 “In the latter inquiry [i. Bastarache J. the court seized of the motion must follow a process of legal analysis directed at identifying the most appropriate venue for the litigation or arbitration of the claims asserted. In France. 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. In the U. does not have forum non conveniens.. 1981.
464.e.”398 The party seeking the forum non conveniens dismissal must convince the court of every element of the forum non conveniens analysis. 1985 AMC 67 at p. 1987 AMC 2735 at p.V. to make a ‘strong showing’ that the court should exercise jurisdiction in derogation of the contract. ECU-Line N. 399 See In re Air Crash Disaster Near New Orleans.2d 1231 at p. Monroga 254 F.R. Supp. to which he has (presumably) agreed. quoted in Carbon Black Export v. 2002 AMC 528 at p.”403 XV. 2002).R. and 1972 AMC at p.C. 403 181 F. There is no unanimity among American courts. 821 F. the plaintiff's choice of forum should rarely be disturbed.D. why the contractually stipulated jurisdiction. (4th) 577 at p.Y.S. 1418. Vaasa Line Oy.  1 S. etc. Only by making such proof can the plaintiff hope to be released from his bargain to sue or arbitrate elsewhere. (4th) 577 at p. 464. 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. 2003 AMC 1280 at p.I. and also quoted in Perusahaan Umum v. 301.399 4) If there is a jurisdiction clause.S. See also 407 U. 1235.R. courts frequently dismiss suits instituted in breach of valid foreign jurisdiction or foreign arbitration clauses. 397 . 450 at p. 398 See also Z. S. 2760 (1987). 359 U.2d 297 at p. Zapata Off-Shore Co. See also Allen v. Inc. 2003 AMC 1280 at p. Pompey v. 588. 1996). 531 (D. 450 at p. Staying Suit -All Jurisdictions In the United States.  1 S. Md. 401 1975 AMC 1972 at p.3d 923 at p. 402 407 U. 928 (4 Cir.D. Some Circuits tend to apply the 330 U.S. 1414 (1972).S. 1958). 1958 AMC 1335 at p.I. as to the precise legal basis for such unconditional dismissals. and that there has been notice to the other party. La. 1289.402 Citing the same precedent. 1972 AMC 1407 at p. 508. 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). 10. 1975). 180. who brings suit in a forum other than the contractually agreed one. ECU-Line N. v. 1959 AMC 1327 (1959). properly defines the other jurisdiction.S.401 it was held: “This is a forum-selection clause and it is prima facie valid and enforceable”. 1983).L. N. the party who challenges the jurisdiction clause (usually the plaintiff) has the burden of establishing why a stay should not be granted400 (i. 1973 (S. Lloyd’s of London 94 F. 462.V. N. the party (defendant) attempting to change jurisdiction has the burden of proof as to why the stay of proceedings should be granted. Pompey v.L.65 3) Once it is shown that the forum has jurisdiction over the subject matter of the suit. 588. 1289. upheld in the Supreme Court. 1164. Hre1jin 600 F. however. that: “The seminal Supreme Court decision enforcing a forum selection clause places the burden on the plaintiff.Y. M/V Berane. 501 at p.2d 458 at p. relying on M/S Bremen v. 5) Thereafter. As was said in Gulf Oil v. 1 at p. 1985 AMC 1192 (S.” Dukane Fabrics v. “Thus. (2003) 224 D. (2003) 224 D. 202. at p. 1341 (5 Cir. 1985). 400 Z. Tel Aviv 711 F. that the clause is legible.C.2d 1147 at p. that the clause is validly incorporated into the contract of carriage. 15. 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. it was held in Acciai Speciali Terni USA. 71 (5 Cir. Gilbert:397 “But unless the balance is strongly in favour of the defendant. Thus in Kooperativa Forbundet v. where the Court stated.R. Supp.
2d 787 at pp. 123 (C. 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.L. Wolfgang Preinfalk. Underwriters at Lloyd’s. 376. judgments staying suit will be conditional on the defendant agreeing to appear and appearing in the new jurisdiction. stays would seem preferable to unconditional dismissals. ibid. Allianz Ins. 418 at pp. Ltd. M/V Hyundai Liberty 294 F. S. 1601 (9 Cir. it is preferable that the court stay proceedings409 rather than dismiss them. for example.66 Federal Rules of Civil Procedure.2d 628 at p.. Supp. for example. 210 F.D.2d 1110 at p.Y. 1975. cited by M.406 The inherent power of the court to regulate its own proceedings can also be applied either to dismiss or to stay proceedings.S.3d 603 at p. Longwall-Associates. 2004 AMC 172 at p. In foreign forum selection clause cases too. Inc.g. v. v. 369-376. 886-887 (S. 367 at pp. 1290 (11 Cir. People’s Ins. Inc.C.404 while others invoke Rule 12(b)(3) (dismissal for improper venue)405 and yet others rely on Rule 12(b)(6) (dismissal for failure to state a claim).410 This is an intelligent and proper approach. of Aust. Wharf (Holdings) Ltd. Co. of Canada v. 606. M. 1112. Continental Ins.). for example. Mar. 407 Licensed Practical Nurses. 2001 AMC 869 at pp.Y. 2002 AMC 1598 at p.R. 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. 2001).3d 1207 at p. “Forum Selection Clauses in Maritime Cases” (2002) 27 Tul. Hugel v. 1995). Co. COGSA. unreported.” 404 . v. 1222 (10 Cir. note 1 (1 Cir.A. For a thorough analysis of the differing approaches of different American circuit courts of appeal to this matter.p. v. Lauro Lines 387 F. 131 F. M/V Orsula 354 F. Co. 1174. 2948-2949 (E. 1999). 214 (W.A. June 12. 830 (7 Cir. Va. Fourth Circuit decisions such as Jewel Seafooods Ltd. 2001. 2003). Va. whether service may be made.D. Inc. Dis. L.2d 697 at p. whereby the courts seized of the motion to enforce the clause does not deny its own jurisdiction. Frietsch v. 1993). This preserves the legitimate rights of the claimant as to time for suit and other unknowns and imponderables (e.3d 825 ast p. COGSA applies and the foreign court reduced the rights of cargo claimants below the minimum guaranteed by U. Orient Overseas Line 1976 AMC 212 at p. Vetrerie Riunite. 410 Hartford Fire Ins. Co. the date of the filing of this lawsuit” See also Snam Progetti S. 698 (D. 322 at p. S. See. Corporation of Lloyd’s 999 F. Wash.S.3d 1171 at p. The El Amria 1981] 2 Lloyd’s Rep. 405 See.3d 1285 at p. 789-790.. 175 (7 Cir.408 Where a court. 633 (S. Kysar 983 F.407 In England and Commonwealth countries. 188 C. v. 444-445 (High C. United Int’l Holdings. 630. v. 2000). supra at p. N. court to re-assume jurisdiction in situations where U. Davies. Technicians & Health Care Workers of N. 2000). on the time for suit defence being waived and on appropriate security being filed. Cho Yang Shipping Co. Commerce Consultants Int’l. 867 F. Supp. Supp. Ulysses Cruises.D.2d 206 at p. 1989). 2002). 2001 U. Lexis 8113 (W. v.J.C. see M. faced with a motion of forum non conveniens. 407-408.S. Very often. 1993). Akai Pty. Inc. N. v. 406 See. by contrast. 324. but merely declines to exercise it. for example. but rather by stays of proceedings. Co.A. Lambert .D. v. 56 F. 2001 WL 667804.Y. 207 (7 Cir. GmbH. and even whether the other court will accept jurisdiction). 131 F. 408 See. 2000). London 148 F. 1999 AMC 2053 at p. 2000 AMC 2947 at pp.S. Supp. 1975 AMC 631 at p. 119 at p. has jurisdiction.P. Refco. Davies. Lipcon v. Davies.D. M/V Peace River 39 F. 1996). 1998). Rules 12(b)(1) (dismissal for want of subject-matter jurisdiction). Cir.v. forum selection clauses and foreign arbitration clauses are typically enforced not by dismissals. particularly as a stay would permit the U. Kukje Hwajae Ins. 2055 (D.2d 393 at pp. 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. Inc. Inc. Abatement is the dismissal of the action.
119 at p.). British Airways Board v.” See also Turner v. at least indirectly. In the U. 414-415. SNI Aérospatiale v. 123. 631 at p. the injunction should only be granted if the forum court decides that the foreign court. or is about to assume. where the foreign proceedings are viewed by the domestic court as vexatious or oppressive or unconscionable. 631 (H.413 they are issued only sparingly.L. Patel  1 A.414 They have also been issued.D.C. Sabena Belgian World airlines 731 F. 1998 AMC 334 (S. Anti-Suit Injunctions Anti-suit injunctions are closely related to forum non conveniens... 2004 (E. For the U. Laker Airways Ltd. 58 at p. 893 (P. jurisdiction. Bankers Trust Co. for example. see.3d 115. for example. 956 F. Patel  1 A. 407 U.C. 1 (1972). See other examples cited in Tetley. Sixth and District of Columbia Circuits. GmbH 428 F.C.L. for example. of Aust. 1988 AMC 880 (2 Cir. v. Where a party has already taken suit in a foreign jurisdiction or is about to do so. Ceres Terminals Inc. 1998). 1970).S.2d 33.C. had it applied the forum’s principles of forum non conveniens.  1 Lloyd’s Rep. In addition.L. See. The acceptance of anti-suit injunctions has become widespread. because anti-suit injunctions interfere. 1 (1972).2d 1349 (6 Cir.  2 Lloyd’s Rep. British Airways Board v.). C-159/02).L. N. 58 (H. Australia Ltd. Laker Airways Ltd.2d 909 (D. 413 See. Armco  1 Lloyd’s Rep.C. 414 See. rev’d on other grounds. see CSR Ltd. M. British Columbia (Workers’Compensation Board)  1 S. 412 411 .C.L. 1999 AMC 305 (2 Cir. See Laker Airways Ltd.  1 Lloyd’s Rep. 119. 637 (H. Lee Kui Jak  A. and Others (1997) 146 A. Assurantie Maatschappij ‘de Zeven Provincien’  A. with the jurisdiction of foreign courts. Farrell Lines Inc. 631 at p.R.). the Fifth. 897. aff’d 161 F. 24.C.  A.411 XVII. 1984). In re Unterweser Reederei. 1987): Gau Shan Co.V. see Amchem Products Inc. 1984). on the other hand. infra. where the House of Lords referred to the “… indirect interference with the foreign court which an anti-suit injunction entails. Co. Choon Yong 837 F. GmbH 428 F. In general. v.R. see. v. Patel  1 A.412 The forum court will only grant an anti-suit injunction where it is convinced that it is an appropriate forum for the litigation.C. 138. which involves a forum non conveniens type of analysis.Y. 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. British Columbia (Workers’ Compensation Board)  1 S.S. The Second. For Canada. in Amchem Corp.  1 Lloyd’s Rep.C.67 XVI. 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.R.L. v.). Seventh and Ninth Circuits have issued anti-suit injunctions where the foreign proceedings are vexatious. because of its real and substantial connection with the case. v.). to prevent parties from See the discussion of the six steps in this process surrounding notes 12 to 15.S. April 27. for example. v. 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.). Laker Airways Ltd. v. 119 at p.K. v.L. 402 (H.C. however. 1992). For the U.S. Airbus Industrie v. For Australia. International Maritime and Admiralty Law. 1998). 897. under pain of contempt of court.). iCigna Ins. 407 U. In re Unterweser Reederei. would have had a reasonable basis for concluding that there was no clearly more appropriate alternative forum. oppressive or will otherwise cause inequitable hardship. Cir. for example. Airbus Industrie GIE 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. 95 (H. for example. China Trade & Development Corp.2d 888 (5 Cir. rev’d on other grounds. supra.2d 909 (D.C. 425 (H. 317 (H. 2003 at pp.C. Grovit (Case No. South Carolina Ins. and the foreign court has taken.).). v.C.  A.C.2d 888 (5 Cir. Sabena Belgian World Airlines 731 F. and that the injunction is necessary to prevent and injustice. contrary to the principle of comity. Donohue v. 640. In Canada. Airbus Industrie GIE v. Cir. 1970).J.. 871 at p.
The ECJ endorsed the opinion expressed by Advocate General Ruiz-Jarabo Colomer in Turner v. 27. Grovit (Case No. 420 Ibid. however. as such. backed by a penalty. is incompatible with the system of the Convention. The Epsilon Rosa  2 Lloyd’s Rep. 2)  2 Lloyd’s Rep. The Bergen  1 Lloyd’s Rep. reported in  1 Lloyd’s Rep.C. Grovit. 416  1 W.A.) (bill of lading arbitration clause).A. 419 Turner v.L. 24 and 25. 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.). 29 and 30 of the ECJ decision.68 breaching exclusive foreign jurisdiction or foreign arbitration clauses in contracts. 2002 for all Continental Bank NA v. except in special circumstances which are not applicable in this case. 710 (bill of lading jurisdiction clause). 2000. 216 (E. 380 and The Bergen (No. 509 (C. Grovit (Case No. 417 Convention on Jurisdiction and the Recognition of Judgments in Civil and Commercial Matters. in Turner v.L. 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.415 The Court of Justice of the European Communities." 421 Ibid. C-159/02). leave to appeal to House of Lords refused (charterparty arbitration clause). See paras. April 27. from reviewing the jurisdiction of the court of another member State. at para. restraining a party from commencing or continuing proceedings before a foreign court undermines the latter court's jurisdiction to determine the dispute. 107 (H.A. The Angelic Grace  1 Lloyd’s Rep. 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. and which came into force 415 .J.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. 422 EC Regulation 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters.422 which replaced the Brussels Convention as of March 1. including bills of lading.416 has held. 418 See the judgment of the European Court of Justice. 505 (C. 2004 at paras. on a preliminary reference from the House of Lords in Turner v. as pointed out in paragraphs 24 to 26 of this judgment. Rhidian Thomas.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. C-159/02). (2004) 10 JIML 134. at para. See also the case comment by D." 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. Grovit. 87 (C. Aeakos Compania Naviera SA  1 Lloyd’s Rep.) (exclusive jurisdiction clause in loan agreement). adopted at Brussels. 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. underpins the Convention and prohibits a court.). Any injunction prohibiting a claimant from bringing such an action must be seen as constituting interference with the jurisdiction of the foreign court which. 1968. 2004. September 27.). Such an assessment runs counter to the principle of mutual trust which.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. adopted by the Council of the European Union on December 22. April 27.R.
“Who Decides on Jurisdiction Clauses?” in  LMCLQ 25 at p. The court designated by the clause and before which proceedings are subsequently taken on the basis of that agreed jurisdiction. 76. 403. in effect. corresponding to arts. Member States therefore seems to be a thing of the past. except Denmark. 423 See the case comment by Renaud Carrier. on March 1. For the official French text of this decision.). Member States except Denmark. consistent with the historic principle of comity in private international law and the increased judicial integration of Europe since 1968. 21 over art. The application of this rule will. because the court first seized is obliged (by art. being the court “second seized”. 424 (Case C-116/02). The decision constitutes the triumph of art. This is a positive development. 17. 2002. For the text. 21 of the Brussels Convention 1968 or the court designated by the jurisdiction clause under art. In consequence.424 the Court of Justice of the European Communities held that. Gasser thus promises to also ensure the supremacy of art. (2004) 10 JIML 131. Hijazy (The Kribi)  1 Lloyd’s Rep. but must stay the proceedings before it of its own motion. In this way. the court second seized must decline its jurisdiction. under the Brussels Convention 1968. such injunctions arguably continue to be available in cases where neither the Brussels Convention and E. 29.U.g. in alleged violation of a clause conferring exclusive jurisdiction on a court in another such State.  1 Lloyd’s Rep. In Gasser GmbH v. even if proceedings there are protracted. thus reversing the controversial English decision in Continental Bank NA v. 21.E. unless and until the court first seized declines jurisdiction.J. 21 and 17 respectively of the Brussels Convention 1968.g.U. see DMF 2004. 425 See Y. that is entitled to decide whether it has jurisdiction in the light of the clause. 21 of the Brussels Convention 1968. 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. being the court “first seized” within the meaning of art.U. to prohibit the institution or prosecution of litigation in jurisdictions outside the E. it is the court first seized of the dispute. where the initial proceedings in such a case are instituted before a court in a Brussels Convention State. 413.) and subsequent decisions such as OT Africa Line Ltd. Denmark continues to be governed by the Brussels Convention 1968. within the meaning of art.425 While the issuance of anti-suit injunctions as between E. Rhidian Thomas. it is the court where the proceedings were taken. 21 of the Convention. 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. which is entitled to rule first on whether or not it has jurisdiction to try a dispute. 505 (C.).C. 27 over art. may not rule on its jurisdiction. as a result of another development in European law. and possibly also in cases within the in all Member States of the European Union. 23 of EC Regulation 44/2001.J. Aeakos Compania Naviera SA  1 Lloyd’s Rep. "Anti-Suit Injunction: La CJCE met fin à un anachronisme" DMF 2004. see O. anti-suit injunctions now seem to be unnecessary as between courts in Brussels Convention and EC Regulation 44/2001 States. The Gasser decision will likely also apply to the determination of jurisdiction under EC Regulation 44/2001. See also the critical commentary of the Gasser decision by D. if the court first seized establishes its jurisdiction to try the dispute (e. Regulation 44/2001 applies (e. Baatz. that decides on its jurisdiction in the light of the clause. because the jurisdiction clause is not valid or is not exclusive). On the other hand.C. .423 Moreover.A. MISAT SrL. where a jurisdiction clause is involved.C. 27 of which is similar to art. v. 222 (E. render anti-suit injunctions unnecessary.69 E. 17 of the Convention. L 12/1 to L 12/23. 17 of the Convention) to decline jurisdiction in the face of a valid clause attributing exclusive jurisdiction to the court second seized.
11 at p. 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. See also EC Regulation 44/2001. arbitration being excluded from both the scope of both the Brussels Convention and the EC Regulation. 1959. for example. on the ground that it violates public policy. note Goldman. para. See also the corresponding provisions of the UNCITRAL Model Law on International Commercial Arbitration. 27(1) of the Brussels Convention 1968. by virtue of its art.428 The major international instruments on the recognition and enforcement of foreign arbitral awards also preclude recognition or enforcement of arbitral awards rendered by an arbitrator or arbitral tribunal other than the one designated by the parties in their arbitration agreement. V(1)(d) (composition of the arbitral tribunal or arbitral procedure not in accordance with agreement of parties) and 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. at art.S. V(2) (recognition or enforcement not in accordance with public policy of country where recognition and enforcement are sought). endorsing the use of public policy as a ground for denying recognition and enforcement in England to a judgment rendered by a foreign court in another E. 27(1) or the Regulation’s art.70 E. 1958. See also Phillip Alexander Securities and Futures Ltd. 391-392.302. v. Bamberger  I. 1(2)(d).. and also disregards an anti-suit injunction prohibiting him from commencing or continuing such proceedings.426 XVIII. para. see the Civil Jurisdiction and Judgments Act 1982.. third para. 28. 34(1). 27 of EC Regulation 44/2001 did not apply to an arbitration clause. because the Regulation did not apply to arbitration. June 10. 215. 106. 2002. June 21. Civil Jurisdiction and Judgments. so that it was not necessary to stay proceedings until the Finnish Court had ruled on its jurisdiction in the light of the clause. art. being The Ivan Zagubanski  1 Lloyd’s Rep. for example. holding that the first seized rule of art. Regulation 44/2001.C. 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.U.L.429 These basic conflict of law principles and rules constitute a strong support for jurisdiction and arbitration clauses in bills of lading. 5. Clunet 1964. the Québec Civil Code 1994. the decision may be refused recognition and enforcement in the contractual forum.T. 21 of the Brussels Convention 1968. 3 Ed. 428 See. for example.A.C. art. 35(3)). 426 . and actually obtains a judgment or award from the foreign authority. 206 at p. and a powerful defence against attempts to circumvent them.Pr. 73 at p. State contrary to an anti-suit injunction issued in England in support of an English arbitration clause.427 Even if no anti-suit injunction has been issued. The Hari Bhum  1 Lloyd’s Rep. 27. art. 1985. 206 at p. 2002. 27(1). sect. lack of jurisdiction may not be invoked to refuse recognition to a judgment rendered in another Member State (Brussels Convention. 439. corresponding to art. See Briggs & Rees. 115 (C. See. Civil Jurisdiction and Judgment. 32(1) in cases not subject to either the Brussels Convention 1968 or the E.K. 427 See. c. art. For France. 36(1)(a)(iv) and art.. 7. adopted at New York. For the U. involving arbitration clauses. adopted at Geneva. In cases subject to the Convention or the Regulation. the Brussels Convention 1968 at art. 36(1)(b)(ii). in particular art. 34(1).K. 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.) and The Hari Bhum  1 Lloyd’s Rep. 429 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention 1958”).U. See also Briggs and Rees. 3. as in other contracts. Regulation.. in force June 7. and E. 3 Ed. 330 U. 212. The decision invoked a similar decision rendered under art.N. 1982. 3155(1) (lack of jurisdiction) and (5) (manifest inconsistency with public order as understood in international relations).49 at pp. U.
430 More recently. a charterparty). and 6) the propriety of granting or refusing a stay of proceedings.g.A. Union Discount Co. It has been recognized for some time that contractual damages may be awarded for the violation of an agreement to arbitrate in England. “Anti-suit injunctions in cross-border insolvency: A restatement” (2003) 52 ICLQ 697. 375 (C. It is therefore scarcely surprising that “choice of forum” clauses tend to be contested. connection with the parties and their contract and is typically more convenient to the carrier than to cargo. 3 Ed. Carapelli SpA  1 Lloyd’s Rep.L. Briggs & P. 2002.). Conclusion Virtually all standard-form bills of lading in contemporary maritime commerce require disputes to be resolved in a stipulated court or by an arbitral tribunal. 4. In addition. 257 (C. Tan & N.R. 1517 at pp. of which he may avail himself notwithstanding See.71 XIX. 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. seldom negotiated or expressly consented to by the shipper or the consignee. The forum selection clause is usually a “boilerplate” term of the bill.A. according to a specified national law or international carriage by sea convention. if any. on the other hand. Rees. “Damages for breach of English jurisdiction clauses: more than meets the eye”  LMCLQ 46.A.L.). Doleman & Sons v. the designated jurisdiction frequently has little. Armco  1 Lloyd’s Rep. 5) the in rem and/or in personam nature of the suit. Ho. But see also L. v. See also A. for example.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. Akar  EWHC 797. 4) the wording and effect of the clause in the bill or incorporated document (e. Yeo. 430 . the possibility of such damages also being awarded for breaches of exclusive English jurisdiction clauses has also been recognized by English courts. Mantovani v. 431 See Donohue v. This development appears somewhat controversial within the British academic circles. provide the cargo claimant with options of places in which to sue or arbitrate.g. London. unreported.C. supporting the availability of contractual damages as a sanction for the breach of an exclusive English jurisdiction clause. Neither the Hague Rules nor the Hague/Visby Rules regulate jurisdiction or arbitration.. inquiring into: 1) its own jurisdiction. 432 See D. 3) the appropriateness of sending the case elsewhere for trial or arbitration. however.26 at pp. comparing the two positions and arguing that contractual damages for such breaches are problematic because of basic differences between arbitration and jurisdiction clauses. who criticizes this development. 25 (H.432 XX. Ossett Corporation  3 K.B. 293-296. forum selection and arbitration agreements may now be further reinforced (in England at least) by the awarding of damages for their breach. and A/S D/S Svendborg D/S of 1912 A/S Bodies Corporate trading in partnership as ‘Maersk Sealand’ v. “Breaking promises to litigate in a particular forum: are damages an appropriate remedy?”  LMCLQ 435. the forum court usually follows a six-step process. para. When such contestation arises.). Civil Jurisdiction and Judgments. 1524 and 1527 (C.). in the tort of malicious prosecution and/or the tort of unlawful interference with business or trade). Zoller  1 W. Ltd. but nevertheless suggesting that an alternative basis for such damage awards may be found in English tort law (e. See also Chee Ho Tham. 2) any legislative constraints on that jurisdiction. The Hamburg Rules and the Multimodal Convention.
requiring them to be between merchants. explains much of the unwillingness of major shipping nations to becoming party to the Hamburg regime. Because few major shipping nations are party to the Hamburg or the Multimodal conventions. rather than the defendant. the Brussels Convention 1968. has permitted Canadian suit or arbitration. 435  2 Lloyd's Rep.72 any inconsistent forum selection or arbitration clause in the bill of lading. so as to send the case to its “natural forum”.g. New Zealand and South Africa) prohibits parties from “ousting” the jurisdiction of the national courts by way of forum selection clauses. to overturn a clearly-worded The resistance of many carriers and their underwriters to the prospect of cargo consignees exercising those jurisdiction/arbitration options and thus overriding boilerplate forum clauses in carriers’ bills of lading. All relevant circumstances are considered. British and Commonwealth courts. where the relevant clause is written or evidenced in writing. clear and apparent on the face of the bill of lading. including the location of witnesses and evidence. in international shipments to and/or from their ports. 237.435 require the plaintiff to show “strong cause” why he should be permitted to proceed elsewhere than where the contract stipulates. 433 . 119 at pp. Australia. Courts in common law countries and some mixed jurisdictions are empowered to exercise discretion. Where no statute prohibits or restricts jurisdiction clauses. far from uniform in this important area. the Lugano Convention 1988. It is by no means easy. National law is. in ordering stays of proceedings. Most standard forum selection provisions in bills of lading would be enforceable under those rules. despite a foreign forum selection or foreign arbitration clause. or generally conforms to international usage in the trade concerned. and genuinely agreed to by the shipper and consignee.). on grounds of forum non conveniens. following the principles laid down in The Eleftheria434 and The El Amria. and now EC Regulation 44/2001 on jurisdiction and the enforcement of judgments in civil and commercial matters. in its Marine Liability Act. where such an option would be available if the Hamburg Rules applied to the contract of carriage. courts in such nations are thrown back on their national law in assessing the enforceability of the impugned clause. In Europe. the Nouveau code de procédure civile lays down strict criteria under which contractual forum selection provisions will be upheld. In French internal law. however. is the clearly more appropriate venue for adjudicating the dispute. National legislation in certain countries (e. or reflects established practices between the parties. Canada. at the cargo claimant’s option. 434  1 Lloyd's Rep. as a condition of release from his jurisdictional “bargain”. as well as convenience and expense for the parties and the juridical advantages and disadvantages of proceeding in one or other venue.433 The options enable claimants to institute proceedings in places having some genuine connection with the contract of carriage and its performance. however. 123-124 (C. unfortunately. In the presence of a jurisdiction or arbitration clause. by comparison. however. the forum non conveniens analysis has been articulated differently and it also requires the plaintiff.A. to establish that the local forum court. connections with the competing jurisdictions and the law applicable to the dispute. although such laws typically treat arbitration clauses more liberally than jurisdiction clauses. rather than the contractually designated one. all permit choice of forum by contract.
law. Anti-suit injunctions can be. 1995 AMC 1817 (1995).S.ca/ 436 437 407 U. Nor is it easy in the United States. 1972 AMC 1407 (1972). obliging cargo claimants to meet the heavier onus of proving that enforcement of the clause would be unreasonable. used to enforce jurisdiction and arbitration clauses. fraudulent or repugnant to public policy – a daunting task. the importance of the convenience of the litigants and the connections of the case have declined in significance.S.73 forum clause applicable to the claim. if shippers. A fair and effective international cargo liability regime must strive to resolve this important problem. and because they may be unnecessary in the light of recent interpretation of the provisions of those instruments. Canada e-mail: william. Q. Prof. Quebec.tetley@mcgill. because they have been found incompatible with the Brussels Convention 1968 (and presumably with EC Regulation 44/2001 as well). but within Europe it increasingly appears that their employment to enforce jurisdiction clauses is invalid. Jurisdiction and arbitration of marine cargo claims thus remains a controversial issue and an ongoing challenge for maritime carriage of goods law everywhere. 528. The violation of exclusive jurisdiction clauses and arbitration clauses and agreements is also strengthened today by conflict of laws rules precluding recognition and enforcement of foreign judgments and awards rendered in breach of such provisions and (in England) by the possibility of damage awards for such violations. William Tetley. In consequence.C.ca website: http://tetley. and are. . Faculty of Law McGill University Montreal. 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. receivers and underwriters are to be well served in the years ahead. where since the Bremen436 and Sky Reefer437 were decided. in a more uniform manner than at present. 1. carriers. 515 U.mcgill.
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