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© Prof. William Tetley, Q.C.∗
Preface I. II. III. Introduction Choice of Jurisdiction – Six Steps to Follow International Carriage of Goods Conventions and Choice of Jurisdiction 1) 2) 3) 4) IV. V. VI. The Hague Rules 1924 The Hague/Visby Rules 1968/1979 The Hamburg Rules 1978 The Multimodal Convention 1980
Jurisdiction Clauses Invalid under National Law Jurisdiction Clauses Restricted by National Law Jurisdiction Clauses Restricted by European Law 1) 2) 3) The Brussels Convention 1968 EC Regulation 44/2001 Other conventions
Is There a More Convenient Jurisdiction?
VIII. United States - Forum Non Conveniens 1) 2) 3)
Private and public interest factors Forum non conveniens –not a characteristic feature of U.S. general maritime law Admiralty - no special restrictive rule
Professor of Law, McGill University; Distinguished Visiting Professor of Maritime and Commercial Law, Tulane University; counsel to Langlois Kronström Desjardins (Langlois Gaudreau O’Connor) of Montreal. The author is indebted to Vanessa Rochester, a third-year student at the Faculty of Law of McGill University and to Robert C. Wilkins, B.A., B.C.L., for their assistance with the preparation and correction of the text.
2 4) XI. Forum non conveniens and in rem jurisdiction
United States – Foreign Forum Selection Clauses in Bills of Lading 1) 2) 3) 4) Foreign jurisdiction clauses generally unenforceable Foreign jurisdiction clauses presumptively valid Foreign arbitration clauses presumptively valid Criteria as to enforcement - U.S. a) Is U.S. law being avoided? b) The parties should not lose rights already acquired c) The convenience of the new jurisdiction is less important today d) Must not contravene sect. 3(8) e) Reasonableness f) In rem - United States g) Transfer within the U.S. Jurisdiction clauses and third parties
The United Kingdom - Forum Non Conveniens 1) 2) 3) 4) 5) 6) 7) Introduction The modern regime – U.K. The rule in The El Amria Res judicata Public policy, English law U.K. - E.U. – EC Regulation 44/2001 Service out of jurisdiction - The 1982 Act and CPR Rule 6.20 a) Where leave is not required b) Where the court's leave is required 8) No service of a claim form in rem out of jurisdiction Canada - Forum Non Conveniens 1) 2) Introduction - the principle Jurisdiction clauses - the criteria - Canada
France 1) 2) 3) 4) 5) Introduction Prohibition under law French domestic law - jurisdiction clauses France and the 1968 and 1978 Conventions Opposability to consignee and endorsees
XIII. Jurisdiction Clauses Per Se - The Criteria - All Jurisdictions 1) The conflict of law rules
3 2) 3) The law by which to judge the clause Discretion a) Clear and precise b) Jurisdiction clauses by reference c) Jurisdiction clauses and third parties d) Legibility of the clause e) Plurality of defendants
XIV. Burden of Proof – Forum Non Conveniens and Jurisdiction Clauses XV . Staying Suit -All Jurisdictions
XVI. The Six Steps Applied XVII. Anti-Suit Injunctions XVIII. Non-Recognition of Foreign Judgments and Awards XIX. Damages for Breach of Jurisdiction and Arbitration Clauses and Agreements XVIII. Conclusion
he can also be a pleasant and popular guest. Tulane University. The author is indebted to Vanessa Rochester. CANADA ∗ Professor of Law. a third-year student at the Faculty of Law of McGill University and to Robert C. William Tetley. He is also an administrator who.∗ Preface PROFESSOR ROBERT FORCE It is an especial pleasure to join with colleagues from around the world in honouring Robert Force. With appreciation and gratitude. for their assistance with the preparation and correction of the text. William Tetley. He has also been a kind and generous friend. order and direction. McGill University. He has been happily married to Ruth for 42 years. judge of good wine and remarkable and generous host. Bob Force combines all this with a happy. analyst and writer on law – in other words. Professor McGill Law Faculty Montreal. I have known him for twenty-five years as a devoted and very competent law teacher.. as a scholar. a doctor son and what could be a spoiled grandson.C. Wilkins. . Q. which is much more difficult. B.A. An esteemed chef.C.L. Niels F.. has a lawyer son. B.4 JURISDICTION AND FORUM NON CONVENIENS IN THE CARRIAGE OF GOODS BY SEA Prof. Q. so that the Tulane Maritime Law program is outranked nowhere else. as well as a researcher. Johnsen Professor of Maritime Law at Tulane University Law School.C. cheerful persona. took the great tradition of maritime law teaching at Tulane and gave it form. counsel to Langlois Kronström Desjardins (Langlois Gaudreau O’Connor) of Montreal. Distinguished Visiting Professor of Maritime and Commercial Law. as Director of the Tulane Maritime Law Center.
because of the mobility of ships (the usual defendant) and the fact that carriage by sea very often involves more than one jurisdiction. (1925) 23 L. Paterson Steamships Ltd.2d 1231 at p. 355 at p. v. as well as the yet more recent movement towards international conventions on procedure. who mentions Société du Gaz de Paris v. 235 at p.” 6 The Belgenland 114 U.2d 392 (2 Cir. 504 (1947). 420-421.2 and is of major importance in maritime law. 7293) (C. Unfortunately that is not the case today. United States Merchants' & Shippers' Ins. at pp. Reyno 454 U. v.C. 344. 207. Introduction In the past. v. Recently. v. 200 and Lord Wilberforce at p. 865-868. as does Lord Reid in The Atlantic Star  2 Lloyd's Rep.S.S. 1994 AMC 913 at p. 4 Canada Malting Co. 684 at p.5 I. where the House of Lords recognized forum non conveniens as a doctrine of general application in Scotland. although deciding that forum 1 . 1814). Compania Colombiana del Caribe) 339 U. 1235. 71-72 (5 Cir. v.. See Tetley. International Conflict of Laws. v. 918 (1994).S.D. where he refers to “the Scottish legal doctrine of forum non conveniens”. S. the courts of all nations have jealously guarded their jurisdictions and have looked unfavourably on clauses in contracts which called for suit elsewhere. v. 449. 451. 1933). To fully understand forum non conveniens and the discretionary right of the trial judge.S.S. Gilbert 330 U. 516 (1932). See also the reference to “Scottish authorities” in Antares Shipping v. so that a whole new body of forum non conveniens law has sprung up. 413. 443 at p. 223 note 13 (1981).S. where three of five U. The use of a consistent conflict of law methodology would be another major boon to transnational harmony in private international law. Perusahaan Umum v. 443 at p. Miller 510 U. 2 The other two branches are choice of law and recognition of foreign judgments. The Capricorn. 248 note 13. 37-43. ibid.S. 5 See Lord Diplock in The Abidin Daver  1 Lloyd's Rep. The Cali (Swift & Co. 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.4 while it has been known much earlier in some civil law regimes5 and in Admiralty law. A/S Den Norske Afrika Og Australie Line. 65 F. 1950 AMC 1089 at p. courts properly seized with a dispute.3 so is it essential that choice of jurisdiction rules used by various seafaring nations be the same. 365-366 (1885).C. 559 (No. Navigation (Les Armateurs Français)  S. 515 (1932).S. 1983).C. The Maggie Hammond 76 U. 339 at p. Co. 197 at p. See Tetley. 1982 AMC 214 at p. See also American Dredging Co. however.1 Choice of jurisdiction is one of the three major branches of conflict of laws. Rep.S. have usually refused motions calling for the stay of proceedings. Just as it is imperative that maritime law be uniform and international and that choice of law rules be similar throughout the world. 285 U. in recognizing that forum non conveniens “originated in Scotland. one must appreciate that forum non conveniens has been used by both courts of Equity and of common law.L. 791 and 867.R. (H.6 which latter has its closest connection with the civil law.A. 1099 (1950). 1932 AMC 512 at p. motions for stay have been received more sympathetically. 209. which passage was quoted in Gulf Oil Corp. citing Piper Aircraft Co. See American Dredging Co. at pp. Paterson Steamships Ltd. 918 (1994). 285 U. 450. at pp.) 13. 422 at p.) 435 at p. 3 Ibid. 413 at pp. 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.L. v. Mass. Tel Aviv 711 F. The Jerusalem 13 Fed Cas. and became part of the common law of many States. Supreme Court justices. 457 (1870). 1994 AMC 913 at p. 1932 AMC 512 at p. 501 at p.  2 S. Miller 510 U. 1994 at pp.7 Canada Malting Co. In consequence. 1985 AMC 67 at pp.S. (9 Wall. 422-423. 697.
12 There is no intention in this article to go into questions regarding the jurisdiction conferred upon various courts by national legislation. II. 107.C. held that it had jurisdiction to entertain an application for a stay (in virtue of sect. 54). but that. Finally. Which Benefits from Both Its Civil and Common Law Heritages)” (1999) 23 Tul. Choice of Jurisdiction – Six Steps to Follow Choice of jurisdiction problems may be settled by the following six steps taken in order.” See Wilkinson v. 1931.J. 1924. Tetley. 422 at pp. 1981.R. signed at Brussels. 1985.14 Secondly. Also examined is the effect of the Hague Rules. and in force June 23. 453 at p.. it must dismiss the suit.) reads: “assuming the claim to be otherwise within its jurisdiction…” 14 The House of Lords.J. Canada and France in respect to carriage of goods8 under bills of lading. the court seized with the case must decide if it has jurisdiction12 by virtue of the legislation which created it. 9-24 and 473-474. out of hand. 119 at p. in its discretion. and in force June 2. consideration is given to the very special Admiralty problem of declining jurisdiction when an in rem arrest of a ship has been made. 725 (C. 2 Ed. Firstly. L. August 25.C. not in force. 10 United Nations Convention on the Carriage of Goods by Sea.S. at pp. otherwise. in so doing.Rev. 13 The first principle of Lord Brandon in The El Amria  2 Lloyd’s Rep. Barking Corporation  1 K. Maritime Liens & Claims. R.L. 721 at p. the court must look to the law which applies to the case before it.). In some jurisdictions. the United Kingdom. “Maritime Law as a Mixed Legal System (with Particular Reference to the Distinctive Nature of American Maritime Law. There are two distinct kinds of jurisdiction therefore: “the first is jurisdiction to decide the action on its merits. the Visby Rules. & Comm.1 at pp. See also comments by Laskin. c.A. 11 United Nations Convention on International Multimodal Transport of Goods. 1980. signed at Brussels. 439-440. 49(3) of the Supreme Court Act. (a) on the ground that the claim is being proceeded with in another court or jurisdiction. signed at Hamburg March 31. of course. 1998. 1978.” 7 Tetley. to determine if there is a direction in that law as to jurisdiction. the Australian Carriage of Goods by non conveniens was not a characteristic feature of admiralty law. International Maritime and Admiralty Law. Tetley. and in force November 1.13 Only if it has jurisdiction may it proceed. Astro Dinamico  1 Lloyd's Rep. reprinted  ETL 469. 1992. it was not deciding whether it had jurisdiction to determine the case on its merits. 137. sect.6 The present article describes choice of jurisdiction rules and the principle of forum non conveniens in Admiralty in the United States. 1977.” .9 the Hamburg Rules10 and the Multimodal Convention11 on jurisdiction clauses and on the principle of forum non conveniens.B. and the second is jurisdiction to decide whether the Court has jurisdiction of the former kind. “The General Maritime Law – The Lex Maritima” (1994) Syracuse J. Tetley. however. Int’l L. 7-60. The Capricorn  2 S. a court which may not have jurisdiction on the merits may have jurisdiction by statute to decide a question of stay. Mar. 123 (H. in William Glyn's v. For example. Tetley. stay proceedings in any cause or matter. “A Definition of Canadian Maritime Law” (1996) 30 U. Chap.C. May 24. 1981. See also Canada’s Federal Court Act. 456. or (b) where for any other reason it is in the interest of justice that the proceedings be stayed. U. 50: “(1) The Court may. c. 2003. F-7.L. 9 Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading. 1968. C. 317. nevertheless agreed that “… within federal courts it [forum non conveniens] may have been given its earliest and most frequent expression in admiralty cases. 8 International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading.B. signed at Geneva. in Antares Shipping v.K. February 23.
1988 at pp. 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... Leyden/Boston. 2003.17 Bills of lading under the Rules are often not signed by the shippers. Nevertheless. 1997 at clause 3. Les Éditions Yvon Blais. if the new jurisdiction is deemed to be convenient and proper in the circumstances. 1924. 3 Ed. as amended by the Carriage of Goods by Sea Regulations 1998. and an English translation. see Tetley. if there is a jurisdiction clause in the contract (the bill of lading). III. to which it is called upon to defer. Montreal.e. if it is reasonable. International Maritime and Admiralty Law. Otherwise the court will retain the suit in its own jurisdiction and will refuse the motion for stay. 174. is appropriate and whether the balance of convenience favours the case being heard there. both types of clauses have generally been held valid by courts in bill of lading disputes. Statutory Rules 1998. See also two sample clauses in S. Fifthly. 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. See the official French text reproduced in Tetley. i. 17 See. ed. e. 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. to verify that such incorporation is complete and valid. For the texts of these two forms. at pp. adopted at Brussels.g. August 22. Sijthoff.. Marine Cargo Claims. as amended. 1111-1120. The Hamburg Rules on the Carriage of Goods by Sea. 1121-1129. 98. the terms and specific wording of that clause must be considered carefully. and in force as of June 2. Appendices “P” and “Q”. 16 International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading. which arrest normally gives jurisdiction in the place of the arrest. at pp. who therefore do not have the jurisdiction/arbitration provisions brought specifically to their attention. Fourthly. issued by BIMCO. consignees or endorsees. 1978 at p.). Thirdly. See also BIMCO's non-negotiable Liner Sea Waybill (LINEWAYBILL"). sect. 160 of 1991 (Cth. provided they are clear and unambiguous. August 25. of November 2000 at clause 4. ibid. the court will stay the suit by an order which will preserve the rights of the parties. the court must decide if the other jurisdiction. Such clauses ordinarily call for suit or arbitration in the jurisdiction most convenient to the carrier. If the jurisdiction clause is not in the bill of lading (or other immediate evidence of the contract). Mankabady. Sixthly. the incorporation by reference and notice of the incorporation must be considered carefully.. 1931 (commonly known in English-speaking countries as the "Hague Rules"). 861-862 and 863-864 respectively. very often in the place of the carrier’s principal place of business. the BIMCO Liner Bill of Lading (Conlinebill 2000”). . No. 2) 15 The Hague/Visby Rules 1968/1979 No.7 Sea Act 199115 holds invalid any clauses in most sea carriage documents ousting Australian jurisdiction. but in some document (such as a charterparty). 11(1) and (2). Inc.
Again. 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. contain no provisions on jurisdiction or arbitration.C.12. such clauses are generally upheld by courts and may be set up against parties to the bill of lading or similar document of carriage. the Swedish Maritime Code. by agreement. published in Swedish and English by the Axel Ax:son Johnsons Institut för sjörätt och annan transporträtt. signed at Hamburg on March 31. 2001. while still adhering to the Hague/Visby Rules. at his option.D. See. adopted at Brussels. Protocol 1979.J.R. The Hague Rules 1924.E. Jure AB.. 21(5) permis the parties. The Nordic countries (Denmark.10. 21(1) upon the defendant providing adequate security to ensure payment of any subsequent judgment. the options as to places for suit are similar to those permitted by the Hamburg Rules. however. 1979 (in force February 14. 2) the place where the contract of carriage was made if the defendant has a place of business. branch or agency there the contract through which the contract was made. see English text in O. 1992. In addition. at the petition of the defendant.D. December 21. whether or not those parties have really taken cognizance of their terms. 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. 2 Ed. 20 This common Nordic Maritime Code came into force on October 1. Finland. 1968 (O. 21(2) solves the difficult problem of jurisdiction being acquired by the arrest of the ship in rem. 299/32. The arrest is valid but. 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 1968.8 The Hague/Visby Rules 1968/1979. February 23.20 Under this Code. 3) the port of loading. and in force November 1. 3) The Hamburg Rules 1978 The Hamburg Rules19 at art. 1994. Art. on the one hand. nevertheless adopted a common maritime code in 1994.R. 304/36. to designate the place of suit after a claim under the contract of carriage by sea has arisen. 19 United Nations Conventions on the Carriage of Goods by Sea. Norway and Sweden). art. are commonly known as the "Hague/Visby Rules 1968/1979". adopted at Brussels. 4) the port of discharge.18 like the original Hague Rules. 2000. A number of countries have enacted national legislation in an effort to give effect to the Hamburg Rules options as to jurisdiction. L. Stockholm. In particular. 21 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. as between the Danish and Norwegian versions of the Code. adopted at Brussels on September 27. 21(1) authorizes the cargo claimant. however. for example. updated to June 30. as . and the Finnish and Swedish versions. 1978. nr 22. on the other. 1984) (commonly known as the "Visby S. Art. The numbering of the articles differs. 1968 (in force June 23. as amended by the Visby Protocol 1968 and the Visby S. 30. 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. for example.1978). 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. 31.1972. L. but in some cases with certain national qualifications.C.J. Protocol 1979"). and 5) any additional place designated for that purposes in the contract of carriage by sea.E. the suit must be transferred to an acceptable jurisdiction defined in art.
See also Tetley. By art. 23 See Swedish Maritime Code.22 both of which conventions make the domicile of the defendant the major criterion of jurisdiction. 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. 26.J.C. 25 No. 6. 319-321. 1988. provided that the defendant has there a place of business. 1998. 26(3).9 Convention 1988. Schedule 1. 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. to mean any of the following: a bill of lading. Chap. L. “Arbitration & Jurisdiction in Carriage of Goods by Sea and Multimodal Transport – Can we have international uniformity?”  ETL 735 at pp. sect. 310 and 311 of the Danish Maritime Code. and as later replaced for all European Union states. 27 The term “sea carriage document” is defined in Schedule 1A (Schedule of Modifications) of the Carriage of Goods by Sea Regulations 1998. sect. branch or agency through which the contract was made. Allan Philip.C. at art.26 reads: “11 (1) All parties to: (a) a sea carriage document27 to which. 16. September 16.25 as amended by the Carriage of Goods by Sea Regulations 1998. Regulation 44/2001 of December 22.E. 24 United Nations Convention on International Multimodal Transport of Goods. 1(1)(g). or relating to a contract of carriage to which.23 4) The Multimodal Convention 1980 The Multimodal Convention.1 and 6.1. or 5) any other place designated for that purpose in the multimodal transport contract and evidenced in the multimodal transport document. 11 of the Australian Carriage of Goods by Sea Act 1991. except in respect to actions in rem. Liechtenstein. by E.1988). IV. (O. 13.) 26 Statutory Rules 174 of 1998.2. relating to the carriage of goods from any place in Australia to any place outside Australia or subsequently amended. 22 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. 319/9. in force July 1. effective March 1. or 4) the place of delivery of the goods. 2) the place where the multimodal transport contract was made. 123 of 1997. 2002. except Denmark. para.C. “Scope of Application.J. Choice of Law and Jurisdiction in the New Nordic Law of Carriage of Goods by Sea” (1996) Il Diritto Marittimo 308 at pp. 60. L 12/1. or a negotiable document of title .2001). 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. 198024 has similar provisions at art. were authorized by the Carriage of Goods by Sea (Amendment) Act 1997. No. 160 of 1991 (Cth. The Carriage of Goods by Sea Regulations 1998 amending the Carriage of Goods by Sea Act 1991. or 3) the place of taking the goods in charge for international multimodal transport. referring to arts. This Schedule of Modifications is Schedule 1A of the 1998 Regulations. 753-754. 25. not in force. the amended Hague Rules28 apply.E.11. 7(2) of which authorized the addition of a “Schedule of Modifications” to the 1991 statute as amended. adopted at Lugano. the parties may agree on a place for instituting an action after a claim has arisen. paras. For example. Norway and Switzerland). 1980. 2000 (O. signed at Geneva on May 24.
31 No. 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. Marine Cargo Claims. Mitsui & Co. 164-165 (Fed. in appeal  2 Lloyd's Rep. 123 of 1997 (Cth. 142 at pp. or relating to a contract of carriage to which.) 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. v. Kiukiang Maritime Carriers (The Kiukiang Carrier)  159 A. Sup. John Churcher Pty Ltd.L. (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. Compagnie des Messageries Maritimes  1 Lloyd's Rep. by law. (Australia) Ltd. 153.”30 This legislation is very similar to sect.” 30 The Australian Carriage of Goods by Sea Act 1991 was amended by the Carriage of Goods by Sea (Amendment) Act 1997.W. See also Akai Pty Ltd.S.R. at pp. Ct. and has received a similar interpretation. 191. 22 of 1924. or a bill of lading that.  2 N.R.W. 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). relating to the carriage of goods from any place outside Australia to any place in Australia. International Conflict of Laws. (1996) 141 A.). 1994 at p. v. 374 (Aust. note 80.).R. Sup. or (ii) a non-negotiable document of a kind mentioned in subparagraph 10(1)(b)(iii) relating to such a carriage of goods. 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). The People's Insurance Co.e. Ltd.): A French bill of lading for a shipment from France to Australia called for suit in France. See Tetley. as amended for Australia by the Schedule of Modifications (Schedule 1A) of the Carriage of Goods by Sea Regulations 1998. Ct. High C. 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.W. 29 Subsect.10 (b) a non-negotiable document of a kind mentioned in subparagraph 10(1)(b)(iii). 9 of Australia’s former Sea-Carriage of Goods Act 1924. See. 3 Ed.S. 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. . 11(3) to the 1991 statute. upheld by the Australian High Court. See Hi-Fert Pty. declared that a clause calling for actions to be tried in a French Court was invalid. like sect. of Aust. being a contract that contains express provision to the effect that the amended Hague Rules [i. 783-784. 1988. England.L. but only on condition that the arbitration is conducted in Australia. is not negotiable.). See also Wilson v..L.). are taken to have intended to contract according to the laws in force at the place of shipment. however. 179 (N. 28 The “amended Hague Rules” refers to the Hague/Visby Rules 1968/1979. No. 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).S.R. 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.L. 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. 9(1) of the Act. (1974) 24 F. so as to add sect. the amended Hague Rules apply. C. Aust. the Hague/Visby Rules 1968/1979] are to govern the contract as if the document were a bill of lading. note 16. The Supreme Court of New South Wales. 544 (High C. 229 (N. 32 The Federal Court of Australia has been held that sect 11 of the Carriage of Goods by Sea Act 1991. Limited v. Tetley.29 relating to such a carriage of goods.
1937. Today. 37 of Decree No. having an actual connection with the case. See generally Tetley. V. 445 at p.R. waybill or like document for the carriage of goods inbound to South Africa. I. 447 at pp. As of 1997. 1997.R.C. China’s Maritime Courts and Justice. however. Rèmond-Gouilloud. 3(1) and 3(2). 48 of France’s Nouveau Code de procédure civile. for example. although that statute does permits arbitration of cargo claims outside. 244. Act 1 of 1986. foreign jurisdiction clauses in ocean bills of lading are recognized by Chinese maritime courts only where the foreign country concerned recognizes Chinese (P. thus being slightly more liberal than the corresponding Australian statute which allows only Australian arbitration. 66-1078 of December 31.38 See New Zealand’s Maritime Transport Act 1994. 426427 and para. 1987. 621 at p. jurisdiction clauses in bills of lading may only be invoked against merchants and these clauses must figure prominently in the bills. Nevertheless. 533 at pp. The court selected must be clearly identified in the bill and.2 at p.11 A number of other countries. the autonomy of parties to agree on a foreign jurisdiction for litigating their cargo claims is severely restricted. which permits both parties.C. adopted by the Fourth Session of the Seventh National People’s Congress of the People’s Republic of China on April 9. 384. para. Pedone. Art. Witherby Publishers. as well as the consignee or holder of any bill of lading.4. to bring an action on the bill. 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). only Dutch and German jurisdiction clauses were recognized in the P. No. Journal officiel. which preclude the ouster of New Zealand jurisdiction by foreign jurisdiction clauses in bills of lading. prohibiting the ouster of local jurisdiction.C. 193635 at art. sects. 7. and jurisprudence cited there. 210(1) and (2). waybill or document before the competent court in the Republic. Vialard.. at art. 1993. under art.34 have enacted similar nationalistic legislation on jurisdiction clauses in bills of lading and other sea carriage documents. would seem to mean the court of the P. 386-387.1). Droit Maritime. Jurisdiction Clauses Restricted by National Law The former French domestic Law of April 2.’s maritime courts.R. amending art. International Maritime Bureau. 37 See M. A. similar documents of title or nonnegotiable documents covering shipments to and from New Zealand. D. 346347. the Civil Procedure Law 1991 of the People’s Republic of China. 499 at pp. 34 See South Africa’s Carriage of Goods by Sea Act 1986. 1997. See Zhang Jinxian. in a case concerning contract disputes or disputes over property rights involving foreigners (including maritime contract disputes). “Arbitration & Jurisdiction in Carriage of Goods by Sea and Multimodal Transport – Can we have international uniformity?”  ETL 735. Loi relative aux transports des marchandises par mer. Paris. 33 .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. 48. the burden of making such proof resting with the carrier. 38 See. New Zealand. 1966. in French internal law.) jurisdiction clauses in bills of lading. “[n]otwithstanding any purported ouster of jurisdiction. as well as inside. 104 of 1994. 35 Loi du 2 avril 1936. exclusive jurisdiction clause or agreement to refer any dispute to arbitration”. para. 400 and para. para. Presses universitaires de France. Droit Maritime. para. although the article does not expressly preclude selection of a foreign forum.R. 1936. In practice. such as New Zealand33 and South Africa. however.e. which permit any person carrying on business in the Republic. London. The word “court” in this context.C. although the requirement that the shipper sign the bill was repealed in 1987.C. where the foreign jurisdictions designated by such clauses enforce forum selection provisions in similar contracts calling for suit in the P. 2 Ed. 257 of the Civil Procedure Law 1991 is more liberal as regards foreign arbitration. to agree in writing to trial by the court at the place that has an actual connection with the dispute. therefore.36 it must nevertheless be proven that cargo genuinely consented to the clause.C. 87-922 of November 12. 36 The requirement that bills of lading be signed by shippers was repealed by Decree No. April 11. sect. 1991.
2001. The Viljandi  ETL 760 (Fed. the proposal is a way of giving the cargo claimant a Canadian litigation/arbitration option. But if Hamburg does not apply. as an alternative to suing or arbitrating abroad as per the bill of lading. “(2) Notwithstanding subsection (1).40 In the latter case. to sue or arbitrate in Canada.12 Canada. in situations where that option would exist under Hamburg. It seems fair. is in Canada.A. of course. under its Marine Liability Act. branch or agency in Canada. in cases similar to those enumerated in arts. after a claim arises under the contract. (b) the person against whom the claim is made resides or has a place of business. If the Hamburg Rules apply to the contract. despite the presence in the bill of lading of a foreign jurisdiction or a foreign arbitration clause. c. . balanced and 39 40 S. 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. even where Hamburg does not apply to the bill of lading contract of its own force or through incorporation by reference. 46. 2001. in accordance with the contractual clause or. 46(1) of Canada's Marine Liability Act. 6.) s. or (c) the contract was made in Canada. 2003 AMC 305 (Fed C. 46. the plaintiff. New Zealand and South Africa.n. the parties to a contract referred to in that subsection may. but permits the cargo claimant to opt instead for suit or arbitration in Canada. It does not prohibit ousting Canadian jurisdiction over bill of lading disputes.). 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.M.C. Sect.A.R.S.” Sect. v. In effect..39 provides the marine cargo claimant with the option of suing or arbitrating in Canada. the claim must have arisen after the jurisdictional provision has been agreed. the residence or place of business of the defendant or the place of contracting). 151.c. however.). The Castor (2002) 297 N. 2001. 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. under sect. designate by agreement the place where the claimant may institute judicial or arbitral proceedings. of Can. For decisions on the application of sect. alternatively. where (a) the actual port of loading or discharge. in force August 8. may choose to litigate or arbitrate outside Canada. the cargo claimant may sue in the contractually stipulated place or in any of the other optional venues listed in those Rules. Nestlé Canada Inc.S.C. under certain conditions. v. or the intended port of loading or discharge under the contract. 21 and 22 of the Hamburg Rules. while still favouring local jurisdiction and arbitration. see IncremonaSalerno Marmi Affini Siciliani (I. is significantly less restrictive and nationalistic than the corresponding legislation in Australia. S. C. 6.
 ECR I-911.46 Although under its Marine Liability Act.97 at p.41 VI. London.10. U. as subsequently amended by various accession conventions. 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. 3 Ed. 30. the Accession Convention of May 26. which came into force on January 1. RUWA Polstereimaschinen G.10.1978). as so amended and re-amended. for example. In the U.E. 42 Hereinafter described as the 1968 Brussels Convention (O. 45 See. 1982 for Greece (O. 299/32. rendered under art. was amended by the 1978 Accession Convention and subsequent Accession Conventions.J. provided a rule requiring the courts of Contracting States to respect written jurisdiction agreements.12.C. requiring that a jurisdiction clause. Spain and Portugal. 388/1.  LMCLQ 281. there must be the possibility of attacking 41 . 17. 1987.E. L. Canada gives the force of law to the Hague/Visby Rules 1968/1979 in respect of both international and domestic carriage of goods by water.J. See also Estasis Salotti di Colzani Aimo e Gianmario Colzani v.1978).E. 2. Some of these accession conventions made substantive amendments to the Brussels Convention 1968.1997). have reaffirmed the essential importance of a genuine agreement between the parties as to the foreign jurisdiction concerned. Finland and Sweden. 1975.10. signed at Luxembourg on October 9. See of the Accession Convention of October 25. Les Gravières Rhénanes SARL. 1968. LLP. 1971 and in force September 1. See generally Geoffrey Brice. L.H. pending Canada's possible eventual transition from the Hague/Visby Rules to the Hamburg Rules. “Maritime Claims: The European Judgments Convention”.C. following the making of a report to Parliament by the federal Minister of Transport on the advisability of doing so before January 1.C. which must be clearly and precisely demonstrated..J.C. C.12. 304/1. and Austria. 1831. 2005 and every five years thereafter (see sects. The rule was applied to bill of lading jurisdiction clauses agreed to by the parties. 1996 for Austria. Finland and Sweden (O.1972.98). on the admission to the European Union of Greece. (see sects. 17 of the Brussels Convention 1968. 41. 44 Convention on the accession to the 1968 Convention and the 1971 Protocol of Denmark. C-106/95. Case No. L. Mainschiffahrts-Genossenschaft Eg v. to clauses confirming a previous oral agreement between them and to clause forming part of “the steady business relations” between the parties. the decision of the Court of Justice of the European Communities in The Tilly Russ  ETL 3 at p. be the “subject of a consensus between the parties.J. 285/1. to be effective under art. Although this and other ECJ decisions maintain that the formalities required by the article are themselves “… a full.13 reasonable. para. 1989 for Spain and Portugal (O.K. L. 31. 30.U. 45(1) and (2) and Schedule 4 of the Act).45 Subsequent decisions of the European Court of Justice.R. and of which the weaker party remains unaware until it is too late. 304/36. perfect and sufficient guarantee of the existence of consent or consensus” (see Briggs & Rees. the Republic of Ireland and the United Kingdom.” 46 See. signed at Luxembourg on June 3.44 Art. 43 Protocol on the interpretation of the 1968 Convention by the European Court. Civil Jurisdiction and Judgments.E. 03. 27. 1978 (O.C.  E.b. it has also adopted the Hamburg Rules 1978 and retains the option to bring those Rules into force.42 This Convention. The Brussels Convention 1968 was re-amended three more times.1989) and the Accession Convention of November 29. 15.01. 106). the Brussels Convention 1968 was given the force of law by the Civil Jurisdiction and Judgments Act 1982. which includes the 1971 Protocol of Interpretation43 annexed to it. L. 41. for example..C.E. 43(1) and (2) and Schedule 3 of this Act).m. in order to protect the weaker bargaining party from foreign forum selection clauses inserted in boilerplate language by the stronger party. Member States. 31. c.E. see English text in O. 44. 55.K.15/1. 2002.C. 1982.J. 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.J. 17 as it has evolved in wording since 1968.
2000. that court or those courts shall have jurisdiction. as of March 1. unlike art. 23 (1) to (3). at art. in any court of a European Union Member State. Like the old Brussels Convention. “2. 107). except for Denmark.J. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. without the need for any implementing national legislation) to proceedings instituted on or after March 1.C. adopted on by the Council of the European Union on December 22. 1988 (O. except Denmark.e. 17 of the Brussels Convention 1968 as amended by the various Accession Conventions. L. and therefore is still governed by the Brussels Convention 1968 in its relations with the other Member States of the E. 17 of the Brussels Convention 1968. at p. Any communication by electronic means which provides a durable record of the agreement shall be equivalent to ‘writing’. L 12/1 to L 12/23.E. 319/9. mistake. 48 EC Regulation No. la reconnaissance et l’exécution des décisions de justice en matière civile et commerciale”  ETL 727. Such an agreement conferring jurisdiction shall be either: (a) in writing or evidenced in writing. 2002.C. Briggs and Rees suggest that such a possibility may lie in the development of an autonomous definition of “agreement” (see ibid. one or more of whom is domiciled in a Member State. Iceland.14 2) EC Regulation 44/2001 The Brussels Convention 1968 was replaced. which applies directly (i. have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship. 25. . and also binds Poland (since that country acceded to the Lugano Convention on February 1.. 23(1)(a). very similar to the Brussels Convention 1968. parties to contracts of the type involved in the particular trade or commerce concerned. 47 Denmark chose not to bound by the EC Regulation. For the text. see O. read as follows: “1.49 the jurisdiction clause as invalid for fraud. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. and in force in all Member States of the European Union except Denmark. or (b) in a form which accords with practices which the parties have established between themselves. “L’entrée en vigueur du règlement communautaire no 44-2001 du 22 décembre 2000 concernant la compétence judiciaire. The Lugano Convention of September 16. Art. misrepresentation or frustration.e. Its rule on jurisdiction agreements. 49 The EC Regulation.E. in respect of civil jurisdiction and the enforcement of judgments. but not Liechtenstein). provides for jurisdiction clauses and agreements evidenced by electronic documents to be treated as “writings” for the purposes of art.J. if the electronic communications leave a “durable record”. also continues to govern three of the four remaining remaining States of the European Free Trade Association (EFTA). the EC Regulation establishes uniform rules on civil jurisdiction and the enforcement of judgments in civil and commercial matters. This latter expression has yet to be interpreted by the European Court. (i.47 by the Regulation of the Council of the European Union (EC Regulation 44/2001)48. Norway and Switzerland. duress. 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. 2000) in matters of civil jurisdiction and the enforcement of judgments. is couched in terms very similar to those of the most recent text of art. 2002. see Pierre Bonassies.1988).U.11. and regularly observed by. the most pertinent portion of the new Regulation. or (c) in international trade or commerce. 23. If the parties. For commentary.
first para. See also Cour d’Appel de Versailles. 387-98). The European Court of Justice interpreted the most recent text of art. 11. of the Brussels Convention 1968 in relation to bill of lading jurisdiction clauses. DMF 2000. 1999 (Case No. the objective knowledge of the trade usage by either party to the contract is irrelevant. 734. These elements. may be “concretized”. 52 November 9. first para. see Gaskell. applying the Castelletti decision. knowledge of such a generally and regularly observed usage is “imposed” on the shipper.15 “3. Art. 17. 23 of the Regulation. On art. June 21. obs. 187. In Trasporti Castelletti Spedizioni Internazionali SpA v. 17. with the result that the usage may be considered to be a consolidated practice. of the Brussels Convention 1968) is different from the pre-1978 text of art. 2000. supra. the courts of other Member States shall have no jurisdiction over their disputes unless the court or courts chosen have declined jurisdiction.52 and its three main findings would appear to remain applicable to such clauses now that the very similar art. 17 of the Brussels Convention generally. which must be sufficiently precise to enable the judge seized of the case to determine whether he has jurisdiction. DMF 2001. Bonassies. Ph. will probably continue to apply under art. 733.  ETL 3.81. but rather merely called for suit in the court of the place of the “principal establishment 51 50 . 23 of EC Regulation 44/2001 is in force:53 (1) the wording of the jurisdiction clause. Bulletin des transports 2002. in the Coreck Maritime case.  ECR I-9337. it suffices if the clause identifies objective elements on which the parties have agreed to select the court or courts to which to submit their present or future disputes. 17. obs.54 European Court of Justice. 2000. Ph. for example.51 If this requirement of form is complied with. Bills of Lading: Law and Contracts. Where such an agreement is concluded by parties. but rather by the practice generally and regularly followed in concluding a certain type of contract. 1984. Asariotis & Baatz. 187. 17 of the Brussels Convention 1968 and that the decisions rendered under art. under art. 23 of EC Regulation 44/2001 (like the most recent text of art. Hugo Trumpy SpA. where the bill of lading jurisdiction clause did not expressly specify the name of the court selected. particularly in the Castelletti (supra) and Coreck Maritime (supra) cases. (Case No.51to20. See also Cour d’Appel de Rouen.20.  ECR I-9337. the jurisdiction clause must be given effect when one of the parties is domiciled in a Member State of the European Union. Delebecque. which might be given to the standard form on which the clause appears. therefore. 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. The same “imposed knowledge” of the usage concerned would seem to be imposed on the consignee of the bill of lading in the European Court’s decision in Coreck Maritime GmbH v. The existence of the usage must be established. 2000 at paras. in its decision in Coreck Maritime GmbH v. by the circumstances of the case. 17 from which the European Court of Justice in The Tilly Russ50 drew the criteria for a valid and enforceable jurisdiction clause. Handelsveem BV. 337. obs. Handelsveem BV. the European Court of Justice held that the knowledge of the usage concerned is “independent of any specific form of publicity”. none of whom is domiciled in a Member State. need not name the court having jurisdiction.. March 21. C-159/97). supra. 53 See P. 54 Thus.  ETL 727 at p. 2001 (The Nedlloyd Van Neck)  ETL 926. 23 of EC Regulation 44/2001 is basically unchanged from art. indicating that art. March 16. June 19. See P. 2002. In fact.  ECR I-1597. (Case No 387/98). not by the national law of one of the contracting states. DMF 2001. where applicable. and regularly observed by. 17 of the Convention by the Court of Justice of the European Communities. parties to contracts of the type involved in the particular trade or commerce concerned”. Delebecque.” (Emphasis added) The text of art. Ph. Bonassies. November 9. at p. Delebecque.
77. for example. has succeeded to the rights and obligations of the shipper under the applicable national law. 60 Siboti v. where the language of the bill. 57 See. interpreted in the light of the commercial background of the case. where under the applicable French law. obs.. 2002 (The Dymphna). Cour de Cassation. See also Cour de Cassation. first para. 372.A. BP France S.59 Acceptance of forum selection agreements is not unconditional. applied to the bill of lading contract and therefore that the third party holder of the bill was bound by its jurisdiction clause. notwithstanding the amendments to art. Revue Scapel 2003. 17 of the Brussels Convention 1968. See also Rechtbank van Koophandel te Antwerpen. rather than Belgian law. where the Belgian Court decided that English. 58 See Siboti v. 364 at p. 2002 (The Walka Mlodych). Asariotis & Baatz. 57 of the Brussels Convention 1968). 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. agreed to by a shipper and a carrier.73 and 20. 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. March 4. 2000 at paras. it is governed by the very specific terms of the EC Regulation 44/2001 (and the Brussels Convention 1968 in the case of Denmark). DMF 2003. BP France S. in acquiring the bill. produces effects with respect to a third party holder of the bill. Delebecque. 373. See also Rechtbank van Koophandel te Antwerpen. The same test has been applied in France to arbitration clauses. 23 of EC Regulation 44/2001.16 (2) art. applying the conflicts rules of his national law. 20. the Regulation does not affect any conventions to which the Member States are parties and of the carrier”.  ETL 321. Tassel. 2003 (The Sonara). . the forum designation was held valid. 17 and the changes introduced into art. April 9. 59 See Gaskell. observations Y. 20. emphasizing that under art. March 4. DMF 2003. the foreign jurisdiction clause was held unenforceable as against the subrogated underwriter of the consignee/ holder of the bill of lading. where those provisions reflect a genuine. jurisdiction clauses must still reflect a consensus between the parties to the contract that is clearly and precisely demonstrated.  2 Lloyd’s Rep. 17 of the Brussels and Lugano Conventions were inapplicable to a bill of lading jurisdiction clause calling for suit in New York courts. it is proper to verify the reality of the holder’s consent to the clause by reference to the requirements of art.  ETL 453. 547. 1997 (The Adamastos). mutual consent between the contracting parties to sue in a determined or determinable forum. because it was not proven that the consignee had consented to the clause at the latest at the time of delivery. as under the art. holding that art. 364 at p. however.60 3) Arrest in rem under other conventions Under art. 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. incorporation by reference of a jurisdiction clause into a bill of lading is effective. Ph. being the successor to the rights and obligations of the shipper under the bill. June 18. provided that the holder. 55 Where the court selected is in a “third State”. See Cour d’Appel de Rouen. demonstrates clearly and precisely a consensus by the parties on the subject matter of the clause. 71(1) of EC Regulation 44/2001 (similar to art.A.  2 Lloyd’s Rep. rather. but rather that that law fell to be determined by the judge seized of the case. 17. 556. 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. 23 to accommodate a course of dealings between the parties and practices in international trade. of the Convention. Bills of Lading: Law and Contracts. Under those provisions.55 (3) a jurisdiction clause in a bill of lading. October 8. 2003 (The Houston Express). as interpreted by the European Court.57 European law thus accepts jurisdiction clauses in bills of lading and other contracts.56 If such is not the case.58 and whether or not that forum has any connection with the dispute or the parties.
361 (C. 2003 at pp. even if that foundation does not exist in the Regulation. 11 (C. 2)  1 Lloyd’s Rep. 2000 at para. Civil Jurisdiction and Judgments. either of their own motion or at the petition of one of the parties..A.U. 8. 20. 17 of the Brussels Convention (now art. Tetley. 1981. 2002 at para. 805-809.U.U. 8.128. Asariotis & Baatz. In England. the English court. although they have jurisdiction to decide the dispute. 54. Gaskell.114-20. 20-24 implements the Arrest Convention in English domestic law. 1994 at pp.A. Is There a More Convenient Jurisdiction? In common law countries. there is another..63 In consequence. 1956. 64 See the classic U. Bill of Lading: Law and Contracts. 1952 and in force February 24. International Conflict of Laws. 1952. as in fact has been done in at least one case where the bill of lading expressly provided for jurisdiction in Germany. courts today generally have the discretion to either dismiss or (more usually) to stay conditionally the proceedings validly instituted before them. the Civil Liability Convention 1992. at sects. even if the shipowner or demise charterer is domiciled in another E.K.15. Tetley. to take jurisdiction over a dispute on the basis of jurisdictional foundations provided in another convention governing a “particular matter”. ibid. having arrested a ship in rem in accordance with the applicable procedure. 8. Civil Jurisdiction and Judgments. 380. the place of the carrier’s place of business. 3 Ed. The most important example of this type of convention on a “particular matter” is the Arrest Convention 195261 Art. 710.13 at p. the Civil Jurisdiction in Collision Convention 1952. if they believe that. See Gaskell. c. 1)  1 Lloyd’s Rep. will have a valid basis of jurisdiction over the underlying “maritime claim”. 57 of the Brussels Convention 1968 prior to the enactment of EC Regulation 44/2001. at para. 3 Ed.) is thus preserved and is permitted to override jurisdiction under the EU’s ordinary rules. State. adopted at Brussels. 23 of the EC Regulation) purporting to assign jurisdiction to the courts of another E.K. 63 Briggs & Rees. decisions on this matter (rendered with respect to art. Asariotis & Baatz. 7 of that Convention permits Contracting States to take jurisdiction on the basis of the arrest of a ship in their territorial waters. 515. but still relevant under the Regulation) in The Deichland  1 Q.66 VII.17 which in relation to particular matters. and in some other cases. the Penal Jurisdiction in Collision Convention 1952. 66 The Bergen (No.15 at p. as they did the Brussels Convention. 513.64 Jurisdiction in rem (even where the defendant is not available for service in the U. Various other maritime law conventions also have rules on jurisdiction which would override the Regulation. the Limitation Convention 1976 and the Hamburg Rules 1978.126. 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. International Maritime and Admiralty Law. May 10. if their domestic law gives jurisdiction to their courts. See also Briggs & Rees. 2000 at para.K.B.62 which. 421-423. The court therefore embarks on an analysis to identify what court is the “more International Convention Relating to the Arrest of Sea-Going Ships. 20. notably.). having regard to the interests of the parties and the ends of justice. 2002 at para. 65 See The Bergen (No.) and The Anna H  1 Lloyd’s Rep. 61 . English jurisdiction based on ship arrest would remain unaffected by an exclusive jurisdiction clause as contemplated by art. The importance of this provision is that it permits Member States of the E.65 Nevertheless. the domestic law permits such arrest in rem under the Supreme Court Act 1981. the Athens Passenger Convention 1974. Briggs & Rees. govern jurisdiction or the recognition or enforcement of judgments. State whose courts would normally have jurisdiction under the Regulation. Bills of Lading: Law and Contracts. 62 U. clearly more appropriate forum in another jurisdiction where it would be better to try the suit.
R.).L.A. where to do so is not inconsistent with the 1968 [Brussels] Convention or.c. 58 (Qué. 1982.). 1991.). i. c. British Columbia (Workers’ Compensation Board)  1 S. 27.  A.  1 Lloyd’s Rep. 235. DeSavoye  3 S.L. Piper Aircraft Co.C. 2003 at p. see Morguard Investments Ltd. Quebec. 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"..R. sisting. 2003 at pp. C.18 convenient forum”. 1077. at art. v.). For Canada. if it is the "natural forum" for trial of the dispute.). 213 (Qué. The forum court which has stayed the proceedings 67 Among the classic decisions on forum non conveniens in the United Kingdom.L. If the forum court is convinced that. 412-413.L. 12.Q.K. it may exceptionally and on an application by a party.R. v.C. S.A. Rockware Glass Ltd.C. In the United States. 383 (H.L. from staying. 49. as a mixed jurisdiction.  A.J. 460. Nevertheless.L. 897 at pp.e. Automobili Lamborghini S. in case the foreign court does not accept jurisdiction or renders a decision not susceptible of subsequent recognition and enforcement in the forum court. or the “natural forum”. Spiliada Maritime Corp. 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).Q. for the adjudication of the dispute. Miller 510 U. 1994 at pp. c.q. v. Grecon Dimter Inc.68 After having determined that it has jurisdiction and that there is no direction in the substantive law before it as to jurisdiction. generally do not have the discretion to dismiss or stay actions which fall within their jurisdiction under their respective national laws.P. 798-803. International Maritime and Admiralty Law.Q. Amchem Products Inc. 915-922.” 68 The Québec Civil Code 1994.S. but should preferably stay them conditionally.” For decisions applying art. Gilbert 330 U.K.). U.  R. which statute came into force on May 1. decline jurisdiction if it considers that the authorities of another country are in a better position to decide. 3135 c.  A. 88 (Qué.C. v. . v.C. International Conflict. The Abidin Daver  1 A.c. C. 795 (H.R. RTZ Corp.). v. 413. International Maritime and Admiralty Law. A conditional stay is preferable to dismissal. Normand Inc. provides: “Even though a Québec authority has jurisdiction to hear a dispute.). 398. v. see MacShannon v.’s Civil Jurisidction and Judgments Act 1982. Reyno 454 U. Cansulex Ltd.  1 Lloyd’s Rep. due to constitutional restrictions. 1982 AMC 214 (1981).J. Ct. Lamborghini (Canada) Inc. or the “more appropriate forum”. v. Supr. although it has jurisdiction.C. on grounds of forum non conveniens. the landmark decisions on forum non conveniens include Gulf Oil Corp.S. v. 1994 AMC 913 (1994). J. 205.. U. on the ground that another forum appears more convenient or appropriate or natural for the litigation. 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. 443. the court seized of the proceedings may dismiss the proceedings.q.S. Spar Aerosapce v. 3135 c. as amended by the Civil Jurisdiction and Judgments Act 1991.A.C. Connelly v. 339 (H. sect.K.K. the Lugano Convention.C. striking out or dismissing any proceedings before it on the ground of forum non conveniens or otherwise. see H.67 Civilian countries. Tetley. 501 (1947). The doctrine applying to this determination is known as forum non conveniens. American Mobile Satellite  4 S. 1 (H. See also the U.C. Boulton & Co. See generally Tetley.J. Forum non conveniens therefore has no place in their legal systems. 69 See Tetley. as the case may be.  R. and Lubbe v. 1992: “Nothing in this Act shall prevent any court in the U. Banque Royale du Canada  R. and American Dredging Co. 854 (H. Cape plc  2 Lloyd’s Rep.A.
2003 at p. Gilbert 330 U.). the convenience and expense of the parties of litigating in either of the competing fora.).  2 Lloyd's Rep. no foreign court of competent jurisdiction appears definitely more "convenient" than the court first seized.Y. however. 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.Y.2d 806 at p. See also The Kidlovodsk  1 Lloyd's Rep. Pakistan National Shipping Co. 508 (1947).R. 911-912.2d 1304 at p.73 is the touchstone in respect to deciding forum non conveniens motions. for its part. Sophia First 588 F. 2434 (S. the court making a forum non conveniens determination considers such factors as the location and availability of proof and witnesses. N. v. 1984 AMC 2413 at p. for example. 399. Nigeria v.A. 1955 AMC 1687 at p.C.D.B. 1 at p. 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. the existence of such a term or agreement is a factor of great weight in forum See.71 Convenience. N.). 383 (H. Pakistan National Shipping Co. 1962 AMC 1217 at p.L.  3 W. S. 77 See. Connelly v. 1966).C.). Supp. 1983 AMC 2559 at p. the House of Lords found that it was wiser to avoid use of the word “convenience” and refer rather to the appropriate forum. In The Spiliada  1 Lloyd's Rep. and 5) that security acquired by either party be preserved.Y. 78 See.75 The trial court. 1689 (2 Cir. 1218 (S.19 conditionally may then reassume jurisdiction over the dispute.D. see The Arctic Explorer 590 F. 501 at P. United Thai Shipping Corp. or if the evidence on the question appears to be equally balanced. 268. Takemura & Co.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. RTZ Corp.  1 W. v. 1985). 663. Supp. 1545. 229 (C. the stay order was reversed. when it appeared that a Pakistani court might not recognize such a waiver.D.D.S. Margit 1966 AMC 1217 at p. 183. International Maritime and Admiralty Law.74 No one can foresee or list all the criteria which the court must decide and weigh. 1984). where the court stayed proceedings on a cargo claim in deference to a Russian jurisdiction clause in the bill of lading. S. the law applicable to the substance of the dispute. 1346 at p. 73 Muller & Co. 3) that the defendant submit to service of suit and to the jurisdiction of the other court with the time period stipulated.L.1985 AMC 1493 (S. 909 at pp. 9. and no single factor is decisive. 1984). Supp. See also LN.  A. 2) that the other court accept jurisdiction. v. 224 F. 76.A. on condition that the defendant waive any time bar under Pakistani law. 412. 854. (No. 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.R. 1307.R. Subsequently. where a forum non conveniens stay was granted on a cargo claim arising under a bill of lading calling for suit in Pakistan.A.  4 All E. Transytur Line. v. Baghlaf Al Zafer v. 70 .D. for example. 373 (H. The Hamburg Star  1 Lloyd's Rep. For an example of such a conditional stay in a maritime case. See Baghlaf Al Zafer v. 1983). 72 La Seguridad v.  ETL 45 (S. Pirelli Cables ltd. 808. 707 F.78 Clearly. N. 335. N.L.76 If.L. Swedish American Line. 75 Gulf Oil Corp. 4) that the defendant waive any defence based on a statute of limitations or prescription in the foreign court. however. 1220 (S. 1961). 74 Tetley. 76 G. makes its decision as a question of fact based on the whole of the circumstances of each individual case. following this analysis. 1 (C. Cape plc  4 All E. for example. 1955). 2564 (11 Cir. The Globe Nova 1985 AMC 1977. 1360.Y. Tex. 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. Tsuneshima Maru 197 F. 2)  1 Lloyd's Rep.  1 Lloyd's Rep.72 sometimes described as reasonableness.70 The conditions of the stay may vary depending on the circumstances of the case. the stay will ordinarily be refused.R. v.  2 Lloyd's Rep. Ltd.S.S. In general. Lubbe v.
81 330 U. although forum non conveniens had taken root early on in American admiralty law. 80 The Belgenland 114 U.81 where the theory of the private and public interests was enunciated. Private interests are: “a) relative ease of access to sources of proof.S. X and XI. 365. 79 . [and] e) the relative advantages and obstacles to fair trial. VIII. b) the benefit of publicity of the trial in the seat of the conflict.83 three of five justices of the U. Ct. it did not originate there and was not a characteristic feature of the general maritime law of the United States. 7293) (C. Supreme Court decided that. 679 (H.2d 1231 at p.). 450.). in breach of that agreement. 1983). Mass. at pp. must show strong reasons why he should not be kept to his original bargain. 422 at p. 443 at p. who has taken suit in another jurisdiction. 1994 AMC 913 at p. the plaintiff. infra. b) availability of compulsory process for attendance of unwilling.” Public interest factors82 include a) avoiding “congested centers” of litigation.). Where the dispute at hand falls within the scope of such a forum selection provision. 355 (1885) is an example of an early admiralty case. 559 (No. of Canada).B. forum non conveniens was characterized as a procedural. 82 Ibid.C. d) enforceability of a judgment . 'harass' or 'oppress' the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. and the cost of obtaining attendance of willing. The Jerusalem 13 Fed. 1814). Crédit Suisse  3 All E. v.79 This matter is dealt with in greater detail in sections IX. 629 (C. The Atlantic Star  2 Lloyd's Rep. witnesses. v. 1234. Tel Aviv 711 F. 508 (1947). United States . 721. Gilbert. general maritime law In American Dredging Co.C. Cas. rather than as a substantive. In addition.R. This very authoritative decision has been referred to by non-American courts. 2) Forum non conveniens not a characteristic feature of U. and d) the avoidance of conflicts of law. 'vex'. 1985 AMC 67 at pp. with special reference to foreign jurisdiction clauses in ocean bills of lading and other contracts for the carriage of goods by sea. See also Perusahaan Umum v. See Antares Shipping v. aff’d  A. but was rather a doctrine of general application... .S.” Nor may the plaintiff f) “by choice of an inconvenient forum. 918 (1994).S. Miller. c) the choice of the proper place to study questions of foreign law.C.R. 69 and 70 (5 Cir. v. see Trendtex Trading Corp.L.D.S. See especially p.A. aff’d  Q. 83 510 U.. 501 at p. .L. 509-509. 451 (Supr.Forum Non Conveniens 1) Private and public interest factors Forum non conveniens has long been an accepted principle in admiralty in the United States. with the result that it was Among many other decisions of this kind.80 The principle was first applied to a non-admiralty matter by the Supreme Court in Gulf Oil Corp..20 non conveniens determinations. 207 (H. The Capricorn  2 S. 197 at p. c) possibility of view of the premises . doctrine.S.. 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.
D.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.S.91 The court should be wary. Olaf Pedersen's Rederei) 239 F. 92 Excel Shipping. 1986 AMC at pp.S. Gilbert.2d at p. v. 89 Perusahaan Umum v. See Perusahaan. 1600-1601. 123(c) of its Code of Civil Procedure in 1999. 85 Ibid. In consequence of this procedural characterization..”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. when the jurisdiction of the underlying action has been maintained. This statement recalls that of the U. 501 at p.S. AMC at p. 60 (5 Cir. 920-921. 501. states. `982 AMC 214 (1982).S. See also Excel Shipping v.21 not deemed essential to the proper harmony and uniformity of the federal. however. 1985 AMC 67 pp.S. will also be determined by the principles set out in Gulf Oil Corp. which rendered forum non conveniens unavailable in Jones Act and maritime law cases brought in Louisiana state courts. 84 .2d 147. at p. that Louisiana amended art. 1. 922.no special restrictive rule Ten years after Gulf Oil Corp. It held that:87 “In such a regime. Olympic Corp.2d 1231 at p. “jurisdiction should be taken unless to do so would work an injustice. U. 88 Sunny Prince-Hoheweg (Motors Distributors Ltd. 536. M/V Nordic Regent 654 F. finding that that provision was not pre-empted by federal maritime law. v. 90 454 U. 453. sect. 1238. Whether or not an action impleading a third party should be dismissed on the ground of forum non conveniens. 91 454 U. See also Paula K. 508 (1947): “[U]nless the balance is strongly in favour of the defendant.S. the majority in the Supreme Court upheld the validity of the Louisiana statute out of which the litigation had arisen (art. See also Alcoa S. combined with the “multifariousness”85 of the public and private interest factors set forth in Gulf Oil v. so that forum non conveniens may now be applied in maritime cases. 443 at p. Gilbert. 1994 AMC 913 at p.S.Y. 1980 en banc). 1972 AMC 1682 (2 Cir. 235. Hoheweg that in Admiralty. “Forum Non Conveniens and Choice of Law” (1987) 18 JMLC 185. AMC at pp. Seatrain International 1986 AMC 1587 at pp. 1236. AMC at pp. 1980 AMC 309 (2 Cir. 922. v. the plaintiff’s choice of forum should rarely be disturbed. 235. N. Note. 1983). one can rarely count on the fact that jurisdiction will be declined. No. 455. Co.. U.86 made uniformity and predictability in the application of forum non conveniens almost impossible. 1972).92 4) Forum non conveniens and in rem jurisdiction Ibid.S. Gilbert 330 U. 465.S.2d 463 at p. at p. 87 510 U. 455. but was rather a procedural rule within the legislative jurisdiction of the individual U. 123(C) of the Louisiana Code of Civil Procedure). 1597-1598 (E.S. 1956). Société Générale 462 F. 1984). 86 330 U.. 76-77. however. and reaffirmed in Piper Aircraft. Inc. Tel Aviv 711 F. 73-74 (5 Cir. it was held in Sunny Prince v. F.2d 376. ibid. v.” 3) Admiralty . Speck. supra.84 The Supreme Court further observed that the discretionary nature of the doctrine. Reyno.”). See Louisiana Acts 1999. general maritime law. 1982 AMC 214 (1981). v. of the possibility that separating the actions and having the case heard in two different jurisdictions may lead to inconsistent results as well as prejudice one of the parties to the underlying action. Supreme Court in Gulf Oil Corp. 1957 AMC 57 at p.
American Lumbermens Mutual Casualty Co. 1998.2d at p. 60.K. 100 A ship cannot be arrested twice on the same claim. 1234. Maritime Liens & Claims.D. Barge Sea-Span 241. Tel Aviv.K.101 but also deny him an adequate security.3d 625 at p. and Van Cauwenberghe v.S. 711 F. Supp. Biard.K.S. 355 at p. 1971 AMC 1298 at p.” See. 1957 AMC 57 at p. Welding Co. 505. 1985 AMC at p. 1931 AMC 407 (S. 486 U. 1990 AMC 1583 at p. v. 77. 1966 AMC 121 at p. 1585 (D. strong enough to strike the forum non conveniens balance in his favour.1076 (9 Cir. the court can embark upon the Gulf Oil balancing analysis and decide whether or not it is a convenient forum. 503 at p. that the in rem factor. See Shalom-Stolt Dagali. 96 330 U. see The Despina. 1985) and a critical commentary by David R.104 711 F.97 The Court did point out. 769 F.) 47 F.2d at p. 94 93 .S.2d 1215 at p. 1982 AMC 214 (1981). 1239. added to the normal presumption in favour of the plaintiff's choice of forum. Piper Aircraft Co. the Fifth Circuit had declared that in admiralty actions in rem. 99 Ibid. 711 F. 711 F. Reyno. v. did make it nearly impossible for the defendant to show interests in an alternative forum. Olaf Pedersen's Rederi A/S) 239 F. 97 Perusahaan Umum v. including in rem admiralty actions. 1985 AMC 2150 (5 Cir. Cactus Pipe & Supply Co.2d 620 (9 Cir. position.. 508-509 (1947).2d at p. 465. v. M/V Montmartre 756 F. before embarking on a Gulf Oil balancing analysis.. 69 (5 Cir. Tel Aviv. 1985 AMC at p.98 The Court emphasized that the balancing analysis in Gulf Oil was predicated upon finding that an adequate and available alternative forum did exist. v. 76.. N. 1236. 249 F.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. supra. 517 (1988). Tel Aviv. Del. 454 U.2d 1231 at p. except in special circumstances: see generally Tetley. 1098-1104. N.Y.2d 463 at p. See also Warn v.. 555 and The Alletta  1 Lloyd's Rep. v.” 98 Ibid. however. Owen in  JMLC 133. 1999). 103 Ibid. 1985 AMC at p. as clarified by Koster v.2d 1103. unless the inconvenience he would suffer was tantamount to injustice. 1985 AMC 67 at p.2d at p. Gotham Marine Corp.Y. because he would no longer be able to seize the ship102 to enforce whatever judgment he might obtain in the alternative forum. “The Integrity of the Judicial Sale”. 1999 AMC 1070 at p. G.  2 Lloyd's Rep.S. 78-79. 102 Perusahaan Umum v.103 A conditional dismissal. 1238. 711 F. 1985 AMC at p. 142 at p. 1302 (9 Cir.. supra. 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. 1990): “the Gilbert analysis.94 After referring to The Belgenland95 and Gulf Oil Corp. 1238. For the U. 104 Ibid.2d at p. In Sunny Prince-Hoheweg (Motor Distributors v. is fully applicable to all forum non conveniens motions. however. 711 F. Thus courts have been compelled to deny forum non conveniens dismissals in actions in rem.22 Perusahaan Umum v. Supp. 518 (1947).. 1985 AMC at pp.S.D. 630. 501 at pp.96 the Fifth Circuit stated that the in rem action did not represent an exception to the Gulf Oil balancing analysis.99 Since the seizure of a ship in rem releases the ship from the maritime lien arising from the claim.2d 332. 145. M/T Rich Duke 734 F. however. 1239.. pp. “jurisdiction should be taken unless to do so would work an injustice. 1970). See also Cliffs-Neddrill v. 1931). 2 Ed. 101 In M/S Galveston Navigator 431 F. 78. 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. 1966). M/V Maridome 169 F.” 95 114 U. the Court affirmed that “the release or removal of the vessel from the jurisdiction of the court destroys in rem jurisdiction . 40. 235. 1983). 26. 124 (S. 367 (1885). See also The New England (J. Chap. Gilbert.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. 1985) and Farwest Steel Corp. 330 U. 1218. 73.
109 Ibid. Ltd. In view of current American law. v. Swedish American Line upheld a jurisdiction clause and declared:107 “…if Congress had intended to invalidate such agreements. See. 1967 AMC at pp.110 330 U. Cal. Conklin & Garrett. 590-593 (4 Cir. Union Ins. including those appearing in ocean bills of lading. before a relatively stable doctrine of forum non conveniens and jurisdiction clause enforcement were arrived at in the United States.  2 Lloyd's Rep. 3(8) of COGSA 1936. It is only when the clause or agreement concerned fails the test of enforceability under those principles that forum non conveniens principles.106 There were radical swings of the legal pendulum. 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. 501 (1947).” Twelve years later the Second Circuit took a completely different approach in Indussa Corp. to evaluate the enforceability of jurisdiction clauses and agreements in general.109 Thereafter. 1955). such clauses were treated much more strictly. as was done in the Canadian Act of 1910. v. M/V 106 105 . Soc. 1981). Gilbert. 107 224 F. 807. 593. 1955 AMC 1687 at p. 202. Particular principles have been developed in the U. S. 110 In accordance with the holding in Indussa. 1688 (2 Cir. while at the same time the courts retained their discretion.D. 377 F.2d 721 at pp. en banc 1967).” The concern was that foreign law rather than U. LG Electronics Inc.Elikon 642 F. In 1955. v. 108 377 F. 723-725.S. for example. 203. Ltd.  2 Lloyd's Rep. however.S. 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.105 are now considered. 1967 AMC 589 at p. of Canton. Fritz Transportation International 2002 AMC 106 (N. it would have done so in a forthright manner. it tends to be the paramount factor in that analysis.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.S.2d 200 at p. S. American courts began systematically invalidating foreign forum selection clauses as contrary to sect.S. COGSA would be applied by the foreign court. 101 at p. 104 (2 Cir. the Second Circuit in Muller v. 105. where the bill of lading includes such a provision.2d at p. S. 1982 AMC 588 at pp. v. 594-595. 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.. v. See.2d 806 at p. 2001). for example. as outlined in Gulf Oil Corp. at p.
15. 3) fundamental unfairness of the chosen law depriving the plaintiff of a remedy or 4) a strong public policy of the forum. international contract should be enforced.m. Ranborg. 2334-2335 (11 Cir. 113 407 U. 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. 678. 156 F. M/V Wesermunde 838 F. S. 53 (2 Cir.”). Zapata OffShore Co.114 as opposed to the merely “permissive” clause. Chemical v.H. 114 See John Boutari & Sons v. 1479 (S.111 The United States Supreme Court. 2d 675 at p. Central National-Gottesman. Lucent Technologies.D. v. Compare with Reed & Barton Corp.2d 372. Alas. and relied on Indussa Corp. 111 407 U.. Inc. 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. The U. See also Hartford Fire Ins. The same hostility was demonstrated with respect to foreign arbitration clauses. The mandatory character of the clause may also be established by wording such as: “Any dispute arising under this Bill of Lading shall be decided in the country where the carrier has his principal place of business” . see Hartford Fire Ins.S. Supreme Court held that a foreign jurisdiction clause in a freely negotiated. as grounds of non-enforcement of a foreign forum selection clause: 1) fraud or overreaching. M/V Berane 181 F. the mere use of “shall” did not make the clause “mandatory”. The freely negotiated agreement must be unaffected by fraud or undue influence or overreaching bargaining power.Supp. 2002 AMC 314. 1994) and other authorities collected there. 1988 AMC 2328 at pp. Zapata Off-Shore Co.N. Co. the Court refused to follow Bremen.b. 2002 AMC 528 at p.Y. in an international towage case. Ferrostaal. 210 F. Elikon 642 F. State Establishment for Agricultural Product Trading v. Tokio Express. M/V Gertrude Oldendorff 204 F. 2002). for example.3d 923 at p.. N. See also Union Insurance Society of Canton v.H. in a matter which was subject to suit simultaneously in England.) v. 112 (The Chaparral) Unterweser Reederei G. v. In the case at hand. v.A. 1972 AMC 1407 at p. 1. 1982 AMC 588 (4 Cir. 1580-1581.  ETL 57 (S.V. S. 1999). Acciai Speciali Terni USA Inc. Sun Castor 1978 AMC 1756 (D. 156 F. 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. however.b. M/V Sersou 1999 AMC 2352 (S. 2002 AMC 1477 at p. 1090 (S. v.2d 721.D. v. v. v. pointing out that COGSA was not involved in that case. Md. which obligates the parties to the bill of lading (or other contract) to litigate in one specified court. N. 1981). 928 (4 Cir.3d 51 at p. M/S Bremen (and Unterweser G.S. citing Allen v. 1972 AMC 1407 (1972) This was a freely negotiated private international agreement for towage. Supp. supra..V.  ETL 57 (S. aff’d without opinion sub nom.”). M.2d 458 at pp.S.Y. N.D.Y. Novocargo USA Inc. Co. instead. 2002). 1418 (1972). 320-322 (5 Cir. See. 1977). N. 1988 AMC 318 at pp.D.Y. 2002). as it did not exclude jurisdiction elsewhere or employ other mandatory venue language. In M.m.). M. 1988).2d 372. A bill of lading of course is not freely negotiated but a standard-form contract. Lloyd’s of London 94 F. Inc.2d 1441 at pp.S.115 A jurisdiction clause may still be Finnrose 826 F. 2002). 462-463. Novocargo USA Inc. Tokio Express 1999 AMC 1088 at p.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.  2 Lloyd's Rep.Supp. 1442-1444. This followed the English tradition of giving effect to jurisdiction clauses. v.112 recognized a jurisdiction clause giving jurisdiction outside the United States. 1998) (“All and any claims and disputes under the Bill of Lading shall exclusively be referred to [a]rbitration in Bremen [Germany] .2d 1576 at pp.Y. Supp. 1 at p. both the American and English Courts ordered suit in England under the same clause in the same matter.24 2) Foreign jurisdiction clauses presumptively valid A major change in judicial attitudes towards foreign forum selection by contract occurred. 1996) and listing. 2002 AMC 314.3d 355 (2 Cir. v.G. Inc. 115 For an example of a purely “permissive” forum selection clause. by which the parties simply agree to the jurisdiction of a specified court without expressly excluding jurisdiction elsewhere.D. 531 (D. 158 (C. Although the clause provided that disputes “… shall be determined by the Court of Bremen”. Attiki Importers 22 F.S. 1987).
M/V Tramper 263 F. 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.D. 2001 AMC 2417 at p. 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. in order to litigate in the designated court. it also qualifies that provision by an exception (e. as the first sentence contemplated.D.S. v. COSCO 2004 AMC 1048 at pp. 1479 (S. Dist. See Vogt-Nem. 183c. where the Court found to be mandatory.S. which may be just as mandatory where “will” is used. Hartford Ins. 2004). 1050-1051 (C. 119 See. Hanover Intern. an exception giving the carrier an option to sue the merchant elsewhere than in the courts of Hamburg. Inc. Inc. 2003 AMC 21 at pp. N. of the Southeast v. 2d 675 at p. 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. Fla. Ltd. 1233. Burns v. The relevant enactment in this case was the Limitation of Vessel Owners’ Liability Act of 1851. 4 District. Aktiengesellschaft Fur Industrie Versicherungen 188 F.Y. the United States Supreme Court. found the arbitration clause in that case to be enforceable. 1995)). 2004 AMC 769 (Fla. an arbitration agreement could be held unenforceable. Mitsui O.25 mandatory..119 Nevertheless. 491 (3 Cir. 79 (2000). Vogt-Nem. 678. App. rather than permissive.2d 1226 at p. 116 See. Supp. Inc. 92.118 More recent decisions have similarly downplayed the relevance of inconvenience in forum selection clause analysis.C.” (Central National-Gottesman. for example. v. Supp.. 2003 AMC 2608 (N. The case concerned a consumer finance contract containing an arbitration agreement which omitted any details regarding filing fees and arbitration costs.D. or “[a]ny disputes under the Bill of Lading to be decided in London according to English Law. Co. 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. 2002). Co. Intermetals Corp.”.” The second sentence was held to be a qualification on the first sentence.S. 24-25 (N.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. 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…. however. 1231. M/V Gertrude Oldendorff 204 F. 1991 AMC 1697 (1991). which did not vitiate the mandatory character of the clause. 117 499 U. or avoid the right of any claimant to a trial by a court of competent jurisdiction. which made it unlawful for the owner of a maritime passenger carrier to "lessen. v. weaken. airfare and hotel bills). 2002). where in addition to providing for the exclusive jurisdiction of a given court. Radisson Seven Seas Cruises.K. 2003 AMC 21 at p. 2030 (S. 585. Inc. that the words “shall” or “must” are not essential to the mandatory character of the clause. rather than permissive. N. 2001).. 2002 AMC 1477 at p. permitting the carrier to sue the merchant in the latter’s place of business). that the Court. . v. was rejected by the Supreme Court in Carnival Cruise Lines. for example. however.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). and related inconvenience. because no evidence on the prohibitive expense of arbitrating had been adduced by the party seeking to circumvent the agreement. 46 U. aff'd 36 Fed. Cal.27 (N... 459. The argument that enforcement of a jurisdiction clause should be denied where the clause required plaintiffs to incur substantial “transaction costs” (e. Ct. Shute. v. Lines.D. at pp. however. 867 So. 2003). – Alabama v. Supp. Ltd. Supp. 2422 (D. Note. 2002). Inc. M/V Pergamos 1996 AMC 2022 at p.2d 1226 at p.2d 454 at p.D. 118 Ibid.2d 1191. 1704-1705. 2003).g. 596-597.g. v. but merely permitted. Barbara Lloyd Design.S. Tokio Marine and Fire Ins.D.Appx.. 121 Ibid at p.Y. v. Inc. U. Appx.N. 2002). by a 5 to 4 majority.D. 120 513 U. Randolph. Cal. Cal. v. in its decision in Green Tree Financial Corp. travel expenses. Note. M/V Tramper 263 F.S.J. Hapag-Lloyd Container Line 2003 AMC 1175 (S. AMC at pp.116 Because foreign jurisdiction clauses and agreements are now presumptively valid in the United States. . 2004).
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).
521 U. Supp. over whether the lack of in rem process in the selected forum abroad precludes enforcement of the jurisdiction clause.3d 1336. 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). Note. however.” (ibid. 587 (9 Cir. M/V D.Y.U. following M. 530. 1821 (1995). 794. citing The Sky Reefer 515 U. Cho Yang Shipping Co. Inc. 1995 AMC 1817. v. Cho Yang Shipping Co.3d 1336 at pp. 1818 (1995). the unavailability of an in rem action in the designated foreign forum is irrelevant to the enforcement of the forum clause. however. under Rule 4(m) of the Federal Rules of Civil Procedure). 1995 AMC 1817 at p. Atlantic. F. v. 2d at p. 1998 AMC 765 at p. but that it merely presented “a question of the means of enforcing that liability. the Eastern District of Virginia. 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…. See. 2955 (E. v. of Canada v. D. 767 (S. 2955 (E. 2000 AMC 2947 at p.D.D. 131 F. 1998 AMC 583.146 The Ninth Circuit.147 holding that this purely “procedural” difference between American and Korean law was not a lessening of the “specific liability” imposed by COGSA. 498 at p. cert. denied. where the Court said that the D. took the opposite position in Fireman’s Fund Ins. U. M. N.S. 147 131 F. ibid. See also Fireman's Fund Ins. of Canada v. Ltd.A. 1998).S. however. 585. M/V An Long Jiang 1998 AMC 854 (S. 1997). Carnival Cruise Lines. 499 U.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.S.D. 1998). 1998 AMC 583 at p. 131 F. N.S. 1991 AMC 1697. 1303(8)) to the ship’s own liability. Appx.C. M/V Kasif Kalkavan 989 F. 2001). S. This is particularly true in actions in rem. 2955-2956. 1998 AMC 765 at p. 2000 AMC 2947 at p.S. Supp.145 for example.S. 499. 921 (1998). AMC at pp. 528.U.D. Shute. which they have acquired by the suit already taken. DSR Atlantic. 593. 1998).”148 145 146 2001 AMC 1692 (D. 794. Co.S. 515 U. American courts appear divided.D. Co. 1339 (9 Cir. Supp. See Allianz.A. M/V Turquoise. Va. International Marine Underwriters C..” b) The parties should not lose rights already acquired A change in jurisdiction should not cause the parties to lose rights. v. 498 at p.S. 2000).S.V. 2000).Y. v. 534. 499. But see also Hyundai Corp. . 131 F. Co.C.2d 787 at p. Allianz Ins. 1703 (1991). International Marine Underwriters C. v.S.2d 787 at p. Co. 528 at p. 148 In Allianz Ins. Supp. In Tokio Marine & Fire Ins.R. however. Va.). Atlantic court “appears to have wholly ignored” the reference in 46 U. v. The Supreme Court upheld a foreign arbitration clause even though it appeared in a ‘standard form bill of lading.R. Supp. N. 767 (S.. COGSA.’ See Vimar Seguros y Reaseguros.R.” 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 Kasif Kalkavan 989 F. criticizing the Ninth Circuit’s view. that if the time limitation for serving the defendant vessel in rem in the United States has also passed (120 days from the filing of the complaint. Atlantic on the point. 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. Inc. v.. M/V Sky Reefer. 794. 1339-1340. The Supreme Court also held that a ‘nonnegotiated forum-selection clause in a form ticket contract’ is enforceable against a consumer. Similar positions have been taken by district courts in the Second Circuit. Co.Y.V. Therefore the mere fact that the forum selection clause appears in the standard form bill of lading does not render it invalid. S.
court. 1967). 1999). 462. 154 1966 AMC 1217 (S. Inc.Y.. N. 2758 (N. 324 (S. Gilbert 330 U. 322 (S. v. v.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. Sound Around Electronics.D. Co.. in such a situation.D. Hellenic Lines.Y. N. Chiyoda Fire & Marine Ins.Y. 33. 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. and without taking any steps to protect the running of time in the designated forum. 508. Street.D. Co. Carnival Cruise and The Sky Reefer. 322 at p. Supp. 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. 1976 AMC 212 at p. Man B&W Diesel AG 121 F. 151 Great American Ins.”149 In Hartford Fire Ins.D. decisions tend to indicate that there is no point in changing jurisdiction if the new jurisdiction is inconvenient to the parties and to witnesses. See also New Moon Shipping Co.N.3d 24 at p. quicker and more convenient justice. Orient Overseas Line. 1605 (S. 1999 AMC 1805 (S. however. it is doubtful today whether the mere inconvenience of the clause Snam Progetti v.2d 661.S. where the bill of lading includes a clear and mandatory foreign jurisdiction or foreign arbitration clause covering the dispute in question. In the S.D. None of the parties had offices in New York and the bill of lading called for suit in Italy under Italian law.154 after the shipowner had petitioned in New York to limit its liability following a total loss at sea. Cal. v.Y. the date of filing of this lawsuit. of America v.. 2124 (W. 1998 AMC 603 [DRO] (2 Cir. Rotterdam or Oslo. Ltd. N.150 the Court declined jurisdiction “subject to the provision that none of the parties be prejudiced as to any rights they had on . however.” Where there is a foreign forum selection clause in the bill of lading. 1975). Supp. Nor will the U. Supp. 1966). v.S. N. M/V Kapitan Byankin 1996 AMC 2754 at p.Y. Supp. 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. 1997). 152 Gulf Oil Corp. Co. Margit. 153 277 F. Wash. M/V Hyundai Freedom 1999 AMC 1603 at p.D.30 If the court is concerned that rights may be lost. and the cargo claimant deliberately takes suit in another court despite that clause. In view of the decisions in Bremen.Y. 1974). 501 at p. 1974). order the defendant to waive the statute of limitations in the chosen forum abroad. M/V Royal Container 30 F. 1996). Lauro Lines 387 F. In Snam Progetti v. 155 387 F. Lauro Lines.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. The purpose of a change in jurisdiction is to provide cheaper.152 In Sherkat Tazamoni Auto v. S. 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. 150 149 .D.1968 AMC 328 (S. v.151 c) The convenience of the new jurisdiction is less important today Older U. N. 1999).S.D.
.S. even when the forum clause designates a remote forum for the resolution of conflicts.S. Shute. the size of their claims. 1972 AMC at 1419). v. 1972 AMC 1407 at p. 592. where the difference between forum non conveniens dismissals and dismissals for improper venue (because of a foreign forum selection clause) was emphasized. of Canada v.D. at 17. Cal.’ ‘ Carnival Cruise Lines. 1995 AMC 1817 at p. 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. 158 515 U. 795. 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. the ultimate decision depends upon the exercise of judicial discretion. as was held in Bison Pulp & Paper Limited v. 1823 (1995).S. 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. 2000). the Bremen Court concluded that a ‘forum clause should control absent a strong showing that it should be set aside. Co. 499 U. 506. Inc.D. 159 1996 AMC 2022 at pp. 1702 (1991) (quoting Bremen. 585.” The finding in Carnival Cruise Lines v.S. reinforced the limited role that the factor of “inconvenience” now plays in assessing the enforceability of such a provision in American courts. and the relative burden on the carrier. accord Scherk v. court to stay proceedings conditionally or to dismiss them. or tainted with fraud or overreaching. 1418. 1996). Cho Yang Shipping Co. 528 at p. 1050 (C. or unreasonable to hold that party to his bargain. see Great American Ins. at 7.D. V.S.D. Rather.. 1420 (1972). Supp..31 to one party to the contract would permit a U. 18. 15.S. Co. 2758 (N. 2031-2032 (S. ‘the party claiming (unfairness) should bear a heavy burden of proof.” Proving so high a level of inconvenience is no easy task. Cal.S. the U. 2956 (E. 2004).” In this regard. Ltd.156 In this regard. Thus.’ 407 U. N. 131 F. 407 U. 156 . M/V Kapitan Byankin 1997 AMC 2754 at p.2d 787 at p. 518 (1974). or repugnant to a strong public policy of the U. Co. Nevertheless. 1991 AMC 1697. 157 407 U. Ltd. Supreme Court in Bremen. See also Allianz Ins. Alberto-Culver Co. Tokio Marine and Fire Ins. 417 U. Absent that there is no basis for concluding that it would be unfair. COSCO 2004 AMC 1048 at p. forum. in either case. v. 2000 AMC 2947 at p. 1 at p.S. unjust. 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. 1972 AMC at 1412. Va. inconvenience can be considered only if it is grave enough to render the clause unenforceable as being unreasonable or unjust.Y.S.. 536. 1995).
V. 1996) (plaintiff failed to refute defendant’s showing that Australia. 164 204 F. Sound Around Electronics v.D. 2002). the Japanese ship manager agreed to waive the demise clause in the bill of lading. the party challenging the contractually agreed foreign venue has a heavy burden of proof to make in order to convince the American court not to enforce the clause because of its incompatibility with sect. 105 (2 Cir. N.S. N. 201 F. M/V Coral Halo 2004 AMC 273 at p. v. Since Bremen and The Sky Reefer. Cal. so that giving effect to those clauses would “fragment this case beyond recognition”. COGSA. would permit suit against the time charterer who issued the bill as well as the shipowner.2d 200 at p. because English courts applying English law would uphold a demise clause in the bill of lading. Although such efforts usually fail. notwithstanding the demise clause in the bill. Inc. 162 377 F.C. 1303(8)). 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. In Central National-Gottesman. the U. 663. because it would relieve or lessen the carrier’s liability contrary to that provision.  2 Lloyd's Rep. Va. La. Inc. the argument was accepted. “judicial economy” (the greater convenience of having all disputes settled in one forum. 1999). v.160 Where many claims were involved in a limitation proceeding.S. 856 (S. 2002 AMC 1477 at pp.S.3d 432 (2 Cir. 204.S. so as to avoid the risk of non-enforcement of the Japanese law and forum clause in the bill. 1806 (S. 161 For an example of such serious inconvenience. N. Croatian Line 918 F. thus reducing litigation costs and the risk of inconsistent judgments) is refused as a ground for refusing to enforce a jurisdiction clause. The U.165 See. Supp. M/V Royal Container 30 F.D.162after referring to COGSA. v. 1967). 283 (E. under which foreign jurisdiction and foreign arbitration clauses are deemed presumptively valid. Gertrude Oldendorff.2d 661 at p. permitting suit only against the shipowner as carrier. 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. 1998). sect.S. 2003). the contractual forum.164 for example." Accord: Glyphics Media.Y.. aff’d without opinion. 3(8) of U.S. Conti Singapore 2003 AMC 667 at pp.Y. Supp. the vessel owner had waived enforcement of the forum selection clause by filing a claim in the pending U. Inc. 2d 675 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. M. Court of Appeals decided that a foreign jurisdiction clause was invalid generally. 3(8) In Indussa Corp.D. 2000).S. 1483-1484 (S. 1999). 165 But see also Hyundai Corp. action and availing itself of the limitation proceeding.D. 674-675 (S. M.Y.V. however. Co.A.S. 894 (S. 595. S. 1196 (E. the Korean clause was upheld. Street. of Panama 1999 AMC 889 at p. see In re Rationis Enterprises.D. however. U. whereas U. District Court therefore kept jurisdiction. COGSA.32 In most cases. 961 at pp. 160 . v. M/V Kapitan Byankin 1996 AMC 2754 at p. 966-967. as judicially interpreted by American courts. 1996 AMC 1189 at p.Y. Ranborg. Inc. where it appeared that Croatia applied the Hague Rules). The Court noted. N.D. COGSA (46 U. D.S. 1999 AMC 1805 at p. Supp.163 they can still be successful on occasion. In Nippon Fire & Marine Ins Co. 163 See. 680.Y. 3(8). 2757 (N. v. an English law and jurisdiction clause was found unenforceable as lessening the liability of the carrier contrary to sect. 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. Pasztory v. 1967 AMC 589 at p. Great American Ins. however. Appx. 101 at p. 1996) (a mere “conclusory allegation” that Croatia was “politically unstable and jurisprudentially immature” was insufficient to set aside the Croatian forum clause. would not reduce the carrier’s liability contrary to COGSA). 3(8) of U.D. for example. for example.161 d) Must not contravene sect. 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. M/V An Long Jiang 1998 AMC 854 at p. v.
COGSA package limitation for resulting cargo loss or damage. 1998).. Majestic Electronics.A. 168 See. 2001).S.D. 1701(C. La. 574 at p.J. the foreign jurisdiction clause was denied enforcement on grounds of public policy. 3(8) of U. M/V Jin He 1999 AMC 1700 at p.S.S. 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. N. unless the carrier could prove that the deviation (i. Conversely.169 there must be proof positive that the foreign court.Y. would or would not in effect be construed so as to relieve or lessen the carrier’s liability contrary to sect.170 2003 AMC 30 (C. 2166 (S. N. M/V OOCL Faith. if it could not be established that those courts would apply the obligatory Hague/Visby Rules enacted by Belgium’s Maritime Law. The American court noted that such a clause would be upheld in Germany. Sanko Spruce 1999 AMC 366 (D. Conti Singapore 2003 AMC 667 at p. 2000). 1997 AMC 2954 at p. 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. Supp. 2960 (D. M. Union Steel America Co. Cal. under sect. because it appeared that Korean law would not grant the cargo underwriter claimant an action in subrogation. 1998). the carrier had intended to cause the loss or had acted recklessly with knowledge that the loss would probably occur. where on-deck stowage constitutes. 675 (S. have been uncertain whether particular bill of lading clauses. N. unless cargo could prove that in doing so. and the shipper would be deemed to have consented to deck stowage. The carrier’s act in stowing the cargo on deck. In Gibbs International Inc. in the U. art. La. v. applying its law. S.Y.V.167 a Korean jurisdiction clause in a bill of lading was held to be invalid. where a Japanese forum selection clause was found null and void and unenforceable.S. 1719. Because it was clear that a German court would take a view so different from an American court of the effect of the liberties clause. M/V Ocean Sunrise 2003 AMC 2200 (E. There are also decisions in which American courts. 1997).  ETL 509 (E. unless he had immediately objected to it on receiving the bill of lading. permitting the carrier to stow a helicopter on deck. see Rechtbank van Koophandel te Antwerpen. for example. COGSA. In these cases.168 One point is very clear in this regard. v. even if negligent. will in fact lessen the carrier’s responsibility below the COGSA threshold. Inc. 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. Co. if and when interpreted by the designated foreign forum applying the designated foreign law. the deck stowage) was reasonable. for example.D. 169 See. Nippon Fire & Marine Ins. v. unless consented to expressly by the shipper or permitted by a general port custom. See also Kanematsu U.166 a bill of lading calling for German law and Hamburg jurisdiction contained a general liberties clause. 576. 2002 (The Dymphna.S.. 3(8) of COGSA.C. Co. 2000 AMC 1717 at p.e. the foreign forum selection clause has been denied enforcement. M/V Spring Wave 92 F.D.D. prima facie.D. Cal. 2003). v. Inc.  ETL 453. an “unreasonable deviation” from the contract of carriage. which the insurer would enjoy under COGSA. Glyphics. 167 166 . Sligan Plastics Corp. Inc.33 In Heli-Lift Ltd. 2003). 91. Federal Ins. M/V Nedlloyd Holland 1998 AMC 2163 at p. June 18. v.D. v. courts would be void by Belgian law. would not break its package limitation under German law. 1999). where a Belgian Court decided that a bill of lading clause granting jurisdiction over cargo claims to U. v. v. facing contradictory affidavits from foreign law experts. 170 For a similar European decision.
for example.176 Public policy must be “strong” in order to defeat a choice of forum provision. decisions have generally not strayed far from the three very general grounds of unenforceability articulated in Bremen (injustice or unreasonableness (unfairness). cert. M/V Southgate 2000 AMC 399 at p. 911-912. Mitsui O. Swedish American Line. 259 (2 Cir.177 Muller & Co. 1218 (S. 1689 (2 Cir.. and is also usually dismissed as a ground of nonenforcement. Inc. 510 U. 2617-2618. Jockey v. as where one party takes unfair commercial advantage of another. 451. 1479 (S. 2003 AMC 2608 at p. at pp.V. Dk. 1961).3d 7 at p. (3) if the fundamental unfairness of the chosen law may deprive the plaintiff of a remedy.S. are rarely accepted as grounds for refusing enforcement to an otherwise valid forum clause in the United States. 1962 AMC 1217 at p.2d 806 at p. 1999). N.”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”. Inc. 1220 (S. N. Takemura & Co. The fact that plaintiffs in many jurisdictions are permitted to plead by deposition often precludes acceptance of the “day in court” argument. What is reasonable is a question of fact for the trial court to decide. Corp. 945 (1993). 1955 AMC 1687 at p. 1 at p. Corporation 121 F. Conti Singapore 2003 AMC 667 at p.K. 1418 (1972). 171 . 678.S. 2002 AMC 2377 at p. Supp. 909 at pp. held that forum selection and choice of law clauses could be found “unreasonable” if:173 “(1) if their incorporation into the agreement was the result of fraud or overreaching. in Roby v.2d 1353. 1995). or violation of the U. Dist. 1997 at p. Sun Line Cruises. 7 Ed. 2003). S. 2002) (bill of lading cases relying on the same criteria). 965 (5 Cir. 176 Barbara Lloyd Designs. v. S. M.Y. 808. forum’s public policy172). 400 (S. fraud or overreaching.. of Lloyd’s.S.D. Lines Ltd.Y. ibid.S. 1363 (2 Cir. 1971. sect. Leverkusen 217 F. N. v. N. N. 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. Central National-Gottesman. See also Restatement (Second) on Conflict of Laws. 15.V.D. v. 2002).D. denied. 2002 AMC 1477 at p.S.34 e) Reasonableness For a great many years. Supp.D. Gertrude Oldendorff 204 F. v. (2) if the complaining party ‘will for all practical purposes be deprived of his day in court. 1993). v.2d 447 at p. or (4) if the clauses contravene a strong public policy of the forum state” (citations omitted). 174 See also Asoma Corp.2d 675 at p. The Second Circuit. 2003). See Effron v. 172 407 U. Ct. 1966).Y. Tsuneshima Maru 197 F. 80.’ due to the grave inconvenience or unfairness of the selected forum. 1996 AMC 253 at p.Y. Ltd. Inc. 173 996 F. Inc. 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. at pp. 672 (S. N. Inc. citing Haynsworth v. 67 F. Supp. Glyphics Media.3d 956 at p.S. ibid. 1129.175 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. 11. 175 Barbara Lloyd Designs. however. 1955). Subsequent U. 1997) and Black’s Law Dictionary.S. such as by fraudulent means. Margit 1966 AMC 1217 at p.D. 177 Barbara Lloyd Designs. 2616 (N. 224 F..Y. Inc. 2618-2619. v. 2381 (S. which factors. M.Y. 1972 AMC 1407 at p.D.
Jalisco 903 F. although more inconvenient for one party.. COSCO 2004 AMC 1048 (C. Va.D.. at pp.35 In Allianz Ins. Co.184 In that case. because the forum selection clause in the bill of lading required that suit be brought exclusively in one or other of those fora.” 181 2003 AMC 667 (S. See also Tokio Marine & Fire Ins. 2004). M/V Turquoise 2001 AMC 1692 at p. in Glyphics Media. 178 .V. Dismissal on forum non conveniens grounds was also denied. 673. does not justify refusal to enforce the clause.2d 787 at p.2 million U. 2001). Tex. Inc. Ltd. the presence of bad faith. with other authorities cited there. 2000 AMC 2947 at p. 1996 AMC 769 at p. 20. v. v. 2001).183 On the other hand. v.181 the allegedly “deplorable state of India’s court system”.. Companhia Fabricadora De Pecas. was therefore not enforced. the bill of lading clause specified United States law and U. 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”. M. 183 Ibid. and the alleged difficulty of getting money out of Brazil. 770 (S.e. Cal.D. 2001). 1694 (D. 185 Compare with Industria Fotografica v.S. U. and the convenience and relatedness of the forum to the contract. was nevertheless not unjust. particularly as regards delays for trial. Ltd. was not an adequate ground for nonenforcement of an exclusive Indian law and forum selection clause in an ocean carrier’s bill of lading.182 The affidavit of a practicing Indian maritime lawyer expressing the opinion that a typical Admiralty suit such as the plaintiffs’ could be heard and disposed of in the Bombay High Court within a maximum period of three years. the place of delivery. Fritz Transportation International. 489-490): “speculative concern regarding fairness of a foreign court. 2000).D Cal. 18 at p. 180 The Sixth Circuit noted (ibid. 182 See also Tokio Marine and Fire Ins. 1995). 1992). have generally been found insufficient to constitute “unreasonableness” justifying sidestepping of the designated forum. at p.) forum applied. jurisdiction. where the carrier’s option to sue in either Mexico City or Rio de Janeiro was upheld.S.186 131 F. v. provision of an adequate remedy for the aggrieved party. M/V Conti.S. 186 2002 AMC 106 at p. of Canada v. as security. 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. In Interamerican Trade Corp.D. Cho Yang Shipping Co. the port of loading. the requirement to post over $2.178 the Court noted that: “Additional considerations include the relative bargaining power of the contracting parties. 184 2002 AMC 106 (N. Other evidence indicated that Brazilian courts were fully competent and that trial there. v. held to be “unreasonable”. Cal.2d 487 at pp.. the slowness of the Brazilian judicial process.179 the unavailability of a jury trial in Brazil. were invoked in enforcing the jurisdiction clause. the port of discharge. Supp. 489-490 (6 Cir. 179 973 F. Co. which parties must have considered when negotiating the agreement. S. Supp.Y. unreasonableness was found in the “floating choice of law and jurisdiction clause” considered in LG Electronics Inc.185 The clause.D. N. the lack of trial by deposition. Nor did the provision require suit to be brought exclusively in any one specific forum. the awarding by Brazilian courts of judgments in cruzeiros rather than in dollars. 2950 (E.180 Similarly.” Mere procedural differences between trial in the designated court and trial in the U. were all dismissed as grounds of non-enforcement of the Brazilian jurisdiction agreement.C. and the fact that foreign witnesses were permitted to testify by way of affidavit in India. The clause failed to specify when the carrier had to exercise its option and when the “default” (i. Co.D.S. 2003). the transshipment port or the place of delivery). 110 (N. 790.
Geneva 2003 AMC 2511 (S. Attachment and Related Maritime Law Procedures” (1999) 73 Tul.D. Tetley.law. The jurisdiction was also convenient to the parties. 1 at p. M/V Finnrose 826 F.” The clause was held to be insufficiently specific to cover the in rem claim and thus the District Court could keep jurisdiction. 2.” 188 187 . 1988 AMC 318 at p. however. 2732 (9 Cir. See also J.S. 20. 1895 at pp. where the clause was so much more narrowly drafted..S. but where the ocean carrier was also faced with crossclaims by co-defendant inland carriers arising out of the same facts. 2721 (9 Cir. 418. Monrosa v. itself. it was held to be “unreasonable and unjust” to require the ocean carrier to defend the claim and cross-claims in two different districts. most modern foreign forum selection clauses are not limited to claims against the master. See also Tetley.S. 1983 AMC 2719 at p. “Arrest.ca/maritime/arrest. 944. 2003). 2003 at pp. 321 (5 Cir. 406407. 1408 (1972). 1987): “Bremen. Accordingly.. Zapata Offshore Co. 1972 AMC 1407 at p.v. See Tetley. The Vessel Bay Ridge 703 F. Dias v. Ltd. Co. The admiralty attachment under Supplemental Rule B also gives jurisdiction. 191 Ibid. S. 1422. Supreme Court distinguished Monrosa. 2 Ed. 1959 AMC 1327 (1959). Indeed in M/S Bremen v. v.A. Inc.htm.S. the U. and concluded that191 “…the language of the [Bremen] clause is clearly mandatory and all-encompassing. The arrest of the ship in rem under Supplemental Rule C gives the Federal District Court jurisdiction.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. the language of the clause in the Carbon Black case was far different”. Ltd.. 1998 at p. International Maritime and Admiralty Law. Mediterranean Shipping Co. 180. 189 359 U. See Tetley. Dashwood Shipping. so the forum selection clause was not enforced. 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. at p. at p. however. Carbon Black Export. although reading: “No legal proceedings may be brought against the Captain or shipowners or their agents except in Genoa.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. Fla. 1995 AMC 2730 at p. see also Alyeska Pipeline Serv. the wording of the foreign forum selection provision has been held wide enough to encompass claims in rem as well as those in personam. ibid. S. See also Conklin & Garrett. Lauritzen A/S v. 1933-1936 and on-line at http://tetley.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. 408-409. 190 407 U.United States A very particular problem arises in admiralty in respect to the enforcement of forum selection clauses.2d 381 at p. AMC at p. where the jurisdiction clause in the towage contract stipulated that:190 “…(a)ny dispute arising must be treated before the London Court of Justice". 429-431. 384. Rev. Maritime Liens & Claims. overrules the broad reading this Court gave to the clause in Monrosa. U. Unlike the clause in Monrosa.2d 1441 at p.mcgill.187 f) In rem . The bill of lading jurisdiction clause did not specifically refer to in rem proceedings. owners or agents of the vessel. L. 1443. 1983) re Supplementary Rule C. 1995).
Supp. Code sect. 1984). 193 1999 AMC 1088 (S. In Reed & Barton Corp. Tex. N. 1. see also In re the Complaint of American President Lines. where it was held: “Confusing a right in rem to seize with a proper court under the contract is confusing a remedy for a forum.) v. Supp. g) Transfer within the U.197 at art. in the interest of justice. Supp. Halla Maritime 583 F. 535. 1999). (3) the availability of process to compel the presence of witnesses. 1091. The Court (at p." The Ninth Circuit interpreted this clause to include in rem claims. 210 F. 196 Teyseer Cement v.V. District Court pointed out that. aff’d without opinion sub nom.D. decline jurisdiction and dismiss the attachment or order the release of whatever security the defendant has posted. M. provide useful rules and procedures when suit has been taken by an action in rem. (4) the cost of obtaining the presence of witnesses. M.D. . which has acquired jurisdiction by an admiralty attachment (under Supplemental Rule B).2d 532 at p. (6) calendar congestion.3d 1336 at p. any claim or dispute arising hereunder or in connection herewith shall be determined by the courts in Seoul and no other courts.S. 1404(a) provides: "For the convenience of the parties and witnesses. 2002): “These criteria include: (1) the convenience of the parties. Lim.V. (2) the convenience of material witnesses. unlike the clause considered in Monrosa. (5) the relative ease of access to sources of proof. 1997). Procs.Y.” 195 M/S Bremen (and Unterweser G. 359-360 (W. 2002 AMC 1608 at p. . M. Norwegian Cruise Lines.Y. 1611 (E.2d 352. give effect to a clearly worded jurisdiction clause. 198 28 U. 2004 AMC 1278 (S. 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. 1268 at pp.S. and in force November 1. . 1337.V. 770 (S. 1978.V. (citations omitted). 1992. Co v. 199 See Norfolk Dredging Co. 1998). and (8) the interests of justice in general. this clause was broad enough to cover in rem claims.195 so can a court. 1972 AMC 1407 (1972). 1995). Jalisco 903 F.N. The parties agreed to the jurisdiction choices in the contract. although some other jurisdiction is more appropriate.D. 1996 AMC 769 at p. 20. at p.194 In the same way that a court. 240 F. 1995 192 . 584 (9 Cir.192 the clause stated: " . Ltd. Tokio Express. under this Bill of Lading .Y. v.37 Again in Fireman's Fund Ins. 21(2). a district court may transfer any civil action to any other district where it might have been brought.m. although it did not mention them expressly.196 The Hamburg Rules. on March 31. Supp. v. 1998 AMC 765 (S. . 197 Signed at Hamburg.D. to German law as determined in the “Hamburg courts to the exclusion of the jurisdiction of the courts of any other place”. N. . Convenience is the main criterion. 2000). 18 at p. 1270-1271. but only upon the defendant furnishing security to ensure payment of a subsequent judgment. 2004)..H. 194 Ibid. DSR Atlantic. Inc.193 where the clause similarly subjected “… any claim or dispute arising under this Bill of Lading”.D. 498." For an example of the use of this provision in a case involving a forum selection clause (in a cruise passenger ticket). where the Court interpreted a clause that read "any and all action . 407 U. . M. See also International Marine Underwriters v. (7) where the events in issue took place. 1985 AMC 356 at pp. which has obtained jurisdiction by an arrest in rem (under Supplemental Rule C) can nevertheless give effect to a jurisdiction clause and decline jurisdiction. Inc. Lucent Technologies. Va.b.S. Wash. supp.D. Zapata Off-Shore Co. 305 F. Tokio Express. 1998 AMC 583 at p.S. shall be brought before the Seoul Civil District Court in Korea" to encompass in rem claims. see Lurie v. The suit is transferred. 1090) also cited Industria Fotografical Interamericana v.3d 355 (2 Cir. the U. M/V Kasif Kalkavan 989 F.199 131 F.
N. 1997) (contract for satellite communications services). the shipper or the subrogated cargo underwriter). v. Supp. See also International Private Satellite Partners. by his private stipulation. (Emphasis added). L. For a useful history of the law of forum non conveniens in the United Kingdom. Other factors that inform the Court’s inquiry are intermingled with these considerations. 201 See. Conti Singapore 2003 AMC 667 at p. 209 (7 Cir. M. but it is subject to the overriding principle that no one.203 202 X. 1993) (contract for membership in insurance market). 2158-2160 (C.2d 206 at p. 1985 AMC 1192 at pp. Glyphics Media.L. 1991 AMC 302 (summary) (D. Supp. v. Co. not as principals. N. Allianz Ins.Supp. Supp. see Lord Wilberforce in The Atlantic Star.Y. 1175. Co. See National Customs Brokers & Forwarders Ass’n v.3d 1171 at p. depending on the case. 202 A NVOCC is “a common carrier that does not operate the vessels by which the ocean transportation is provided. 32 F.  2 All E. Schneider Freight USA Inc. Hugel v.C.J.C. L. where freight forwarders or NVOCC’s (non-vessel-operating common carriers ) contract with ocean carriers. Gucci Am. Hrelijin 600 F. Co. 485-486 (W. United States 883 F. 858 F. 341 (S.A. N. 483 at pp. may be the owner of the goods. M/V Hyundai Liberty 294 F.). Lucky Cat Ltd. 555 (C. note 5 (9 Cir. v. 1) The United Kingdom . 203 Indemnity Ins. Inc. NVOCCs perform a function similar to overland freight forwarders. 202 at p.K.D.2d 787 at p. Cho Yang Shipping Ltd.D.Y. Paterson.38 5) Jurisdiction clauses and third parties In the United States.D. of North America v.D. 1985). Va. 1995). Inc.2d 509 at p.204 Those courts have the reputation of giving quick and fair justice and. Inc.. 551 at p. Cal. 2002 AMC 1598 at p. third parties have been held bound by forum selection clauses in various types of contract. and is a shipper in its relationship with an ocean common carrier.S. the enforceability of the judgment. 315 (S. 126. 464-469.D. the shippers have been held bound by the forum selection clauses of the ocean carriers’ bills of lading. 1998 AMC 334 at p. Zochonis (U. for that reason AMC 2296. 975 F. so that it becomes “foreseeable” that they will be so bound. 2303. 2951-2952 (E.  A. 890 F. 101. 791.) and Adrian Briggs “The staying of actions on the . v.  2 Lloyd's Rep. of Canada v. v. declared: a jurisdiction clause “is a matter to which the Courts of this country will pay much regard and to which they will normally give effect. N. 197 at pp.N. 131 F. 629-630 (S. App. Dukane Fabrics Int’l Inc. 514. N.) Ltd. Farrell Lines. 493 F. 308.V. Kukje Hwajae Ins.D. S.201 In particular. where they have been adjudged to be “closely related” to the dispute.2d 118 at p. 1988) (perfume dealership contract). 175 at pp.” 200 See. the relative familiarity of the courts with the applicable law. 1997) and other decisions cited there.C. for example. 1193-1194 (S.Forum Non Conveniens Introduction It was the practice and tradition in the United Kingdom to jealously guard the jurisdiction of its courts.2d 93 at p. Corporation of Lloyd’s 999 F. 1702(17(B). 2000 AMC 2947 at pp. 2003).” See 46 U. Cir. citing Manetti-Farrow. for example.Y. 677 (S. v. standard-sized reusable containers that can be quickly loaded on and off ships and onto trucks or other types of transportation. Included are the original choice of forum.R. 1602 (9 Cir. 191-194 (H. 203.P. can oust these Courts of their jurisdiction in a matter that properly belongs to them”.200 Jurisdiction clause in marine bills of lading have been held applicable to third parties to those contracts (who. 2000).D. 204 The Fehmarn  2 Lloyd's Rep. where Denning. Supp.Y. v. 2001). judicial economy. Ltd. the existence of a forum selection clause. 2001 AMC 2153 at pp.Y. Inc. 1980).. 2002).Y. consolidating small shipments from multiple shippers into large. 1989). but merely as agents of the shippers. 207-210.A. and the public interest in the local adjudication of local controversies. D. 436 at pp. Compania United Arrows. Supp. 626 at pp. Columbus Cello-Poly Corp.
.L.). 175 at p. 'lesser breeds without the law'. but their Lordships rejected the technical argument that they were not entitled to consider such an offer made after the commencement of proceedings. 197 at p. 436. 705 at p.J. He can seek the aid of our Courts if he desires to do so.  2 Lloyd's Rep.A. two conditions must be satisfied.” ground of ‘forum non conveniens’ in England today”.L. 206 The Atlantic Star  A.” Lord Denning's comment was specifically questioned “with all respect” by Lord Reid in The Atlantic Star..  2 All E.'s statement of the rule in St. as Kipling more forthrightly phrased it. where Lord Diplock established two rules:209 “In order to justify a stay. All E. 339 at p.  2 Lloyd's Rep. at p.  LMCLQ 227 and in a subsequent article “Forum non conveniens . 398 (C. 200. 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. A. both for the quality of the goods and the speed of service. 382 at p.A.” 207  A. It extends to any friendly foreigner. at p. 209  A.R. An offer to provide security was made after the proceedings had commenced.  3 All E. Rockware Glass Ltd. 709 (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.R. with all respect. but if the forum is England.). 451.C.39 many foreign litigants have sought and still seek resolution of their commercial disputes in London either before the courts or in arbitration. South American Stores (Gath and Chaves) Ltd. 630 (H.206 2) The modern regime .K. 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. thereby modifying Scott L.an update”. when inhabitants of this island felt an innate superiority over those unfortunate enough to belong to other races. Lloyd's Rep. that seems to me to recall the good old days. 181 (H. 201. the passing of which many may regret. Pierre v.L.C. it is a good place to shop in.  1 All E. 208 Ibid.U.C.C.R. 453. Lord Diplock added in The Abidin Daver  1 Lloyd's Rep.” To which quotation. 625 at p. 205 The Atlantic Star  2 Lloyd's Rep. You may call this 'forum shopping' if you please. 812. 795 at p.). 181. 197. at p.).  1 K.  LMCLQ 360.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. 341: “.B.  2 All E. 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. 454.R. . 436 at p. 175 (H. 446 at p.R.): “My Lords.” The next step was MacShannon v.
202 (H..). W. v.A. the balancing of advantage and disadvantage to plaintiff and defendant of permitting litigation to proceed in England rather than. The Al Wahab and The Abidin Daver. 126-127 (C. 339 at p. referring to The El Amria  2 Lloyd's Rep. Kuwait Insurance Co.): ""Every court has different procedures. 343.L. 211 More recently.K. 361 at p.210 Lord Wilberforce. 10. 196 at p. Nothing is gained by any discussion of the relative merits of various different procedures. Lloyd. 1 (H. nevertheless.. having competent jurisdiction. in which the case may be tried more suitably for the interests of all the parties and the ends of justice. or as well as. i.L. 215 Ibid.). at p.). L. declared in New Hampshire Ins.e. Furthermore. 214  1 Lloyd's Rep.”211 The foregoing views. in a foreign forum is to be based upon objective standards supported by evidence.L.” Finally in The Spiliada. are lacking in one respect a reasonable balance between the interests of the parties . indistinguishable from the Scottish legal doctrine of forum non conveniens.J. 203. Strabag Bau  1 Lloyd's Rep. and The Spiliada. to embark upon a comparison of the procedures. at p. MacShannon. Co.” Thus by its decisions in The Atlantic Star. 365 at p. 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." 212  1 Lloyd's Rep. in the field of law with which this appeal is concerned. MacShannon. 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.. v. 210 . noted: “It is not appropriate.40 In The Al Wahab (Amin Rasheed Shipping Corpn. the House of Lords had gradually adopted the doctrine of forum non  2 Lloyd's Rep.” Lord Diplock continued and summed up the change in the attitude of the English Courts:213 “My Lords. 344. 213 Ibid. or methods. The El Amria U.).). which is the appropriate forum for the trial of the action. approving a statement by Hobhouse J. in my opinion. 119 at pp.and this feature was added by Lord Diplock in The Abidin Daver:212 “.A.L. or reputation or standing of the Courts of one country as compared with those of another (cf. and Amin Rasheed.R.R. in referring to a comparison of the quality of justice obtainable in England and elsewhere. 371 (C.L. per Lord Justice Brandon).. at p.. 375 (H. Lloyd's Rep.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. there is of course authority binding on me which deplores any discussion or entertainment of those types of argument.  2 W.
).  1 S.41 conveniens. The Pioneer Container  2 A.C. 324 at p.  1 Lloyd’s Rep. no doubt with some satisfaction. The People's Insurance Co. ECULine. 123-124 (C. 2)  1 Lloyd's Rep. including notably Z.).  1 WLR 1367 and The MC Pearl  1 Lloyd's Rep 566. 123-124 (C. (4th) 577 at pp. 527 (H. 324. 229 at p. 4. High C. (2003) 224 D.R. N. 226 Unterweser Reederei G. 218  2 Lloyd's Rep.A. and the defendants apply for a stay. 219  1 Lloyd's Rep. 225 The agreement must be valid and enforceable and the claim must fall within the scope of the agreement.L. 10 (H. Pompey v. 586-587. The rule has also been referred to in Australia.A. see Briggs & Rees. 385. See also The Nile Rhapsody  1 Lloyd's Rep 382 (C. Pakistan National Shipping Co. Lord Brandon noted. See also The Sennar (No.A. The Benarty  3 W.A. The Eleftheria rule has been cited in Canada in Agro Co. 283-290. 521 at p. 527-528 (H.C. 221  2 Lloyd's Rep. assuming the claim to be otherwise within its jurisdiction.C. per Lord Bingham).. jurisdiction was kept in England because the witnesses were English and related litigation had already commenced in 216 . Baghlaf Al Zafer v. 242. 432-433 (H.V. 123-124 (C.). Lord Goff formulated an authoritative approach to forum non conveniens: 217  1 Lloyd's Rep. At first this remarkable decision was not generally followed.  1 Lloyd's Rep. 158 at p. 119 at pp. See Akai Pty Ltd.23 at pp. The Eleftheria  1 Lloyd's Rep. of Canada v. 425 at pp. 142 at p. 1095. The Iran Vojdan  2 Lloyd's Rep. 1) 2 Lloyd's Rep. In this latter judgment. 229 (C.  2 Lloyd's Rep.  1 Lloyd's Rep 593 (P.  1 Lloyds Rep. (2) The discretion should be exercised by granting a stay unless strong cause227 for not doing so is shown.). Ibid. despite the choice of a court in Alexandria.). 593 at p. 142 at pp. paras. is not bound to grant a stay but has a discretion226 whether to do so or not. 154 (C.223 Lord Brandon's principles are as follows:224 “(1) Where plaintiffs sue in England in breach of an agreement225 to refer disputes to a foreign Court. 169 at p.). Citi-March Ltd. Armco.). (No. 12851286. (No. 2)  2 Lloyd's Rep. ___ (Aust.C.I.). but Brandon L. 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.C. for example. In The Spiliada  1 Lloyd's Rep.J. 3) The rule in The El Amria In the The Eleftheria. 605 (P. Zapata Off-Shore Co. (The Humber Bridge)  1 Lloyd's Rep 72. 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.219 Brandon J.222 reiterated by the House of Lords in Donohue v.). 1 at p. 3 Ed. 2003 AMC 1280 at pp... v.H.R. 223 Donohue v. 251 (C. and in many more recent decisions.  2 Lloyd's Rep. 220 Proving that it is quite fitting to cite oneself. Standard Chartered Bank v Pakistan National Shipping Corporation  2 Lloyd's Rep 365. 851 at p. v. For further commentary on these points. the English Court.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.A. 2002.b.m. 222 See The Pia Vesta [198411 Lloyd's Rep. 171. In the El Amria itself.L. 521 at p.A. 1082 at p. (1996) 141 A. how The El Amria had been cited by others. 237 at p. Baghlaf Al Zafer v.C.).L. 235 (C. Pakistan National Shipping Co. 119 at pp. 459-460. 242.).).A. 380 at p. 237 at p.). 154-155 (C.A. 224 The El Amria  2 Lloyd's Rep. 450 at p.A. 163 (C. The Regal Scout  2 F.).L.). 856.L. Neptune Orient Lines Ltd.). v.4. The Pioneer Container  2 A.L.A. 1)  2 Lloyd's Rep. 242.21 to 4.R. 244 at p. in fact failure to cite oneself is often evidence that the previous statement was erroneous. 119 at pp. The Sennar (No. 227 The Sennar (No. 327.L. 374 at p. Armco Inc.R. 237 at p. Ltd. Civil Jurisdiction and Judgments. 2)  2 Lloyd's Rep.
2002 at para.L. 377 and 385 (C. Stay was refused where the delay for suit had expired in the foreign court. 387.236 (iii) be faced with a time-bar237 not England. The Vishva Prabha  2 Lloyd's Rep.A. 126-127. The Eleftheria  1 Lloyd's Rep. 3 Ed. 546 at pp. The El Amria. see Society of Lloyd's & Oxford Members' Agency Ltd.  1 Lloyd's Rep 593 (P.).R. (ii) be unable to enforce any judgment obtained. See Briggs & Rees.). Inc. 155 (C.). 125.). 76 at p. 428-429 (Aust. 324 (N.R. Civil Jurisdiction and Judgments. v. Brandon. 234 The Iran Vojdan  2 Lloyd's Rep. see also The Pia Vesta  1 Lloyd's Rep. 197 at pp. 76 at p.L.R. Bertola S. 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. it would lose its only available security.A. ECU-Line N.  1 Lloyd's Rep.R.A. supra.R.R.V. (b) Whether the law of the foreign Court applies and. v.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.). By refusing the cargo owner the right to arrest in England.233 (d) Whether the defendants genuinely desire trial in the foreign country. 245. 710 at p. 135 at p. C. (5) In particular. 293. may properly be regarded: (a) In what country the evidence on the issues of fact is situated.Z. the following matters. The Traugutt  1 Lloyd's Rep. 2)  2 Lloyd's Rep. whether it differs from English law in any material respects. the clearly more appropriate forum for trial. For the same principle in Australia. the foreign time bar might be grounds for refusing the stay. Conversely. Hyslop  3 N. 288. 79.229 (4) In exercising its discretion the Court should take into account all the circumstances of the particular case. (2003) 224 D. See also The Bergen (No.A.) and Kidd v.C. 1287-1293. But see also The Pioneer Container  2 A. 246.). 286 at p. 236 Evans Marshall & Co. 550 and 552 (C. 380 at p. supra. and why England is. where the plaintiffs in a cargo claim failed .. 2)  2 Lloyd’s Rep. (4th) 577 at pp. See also in appeal  2 Lloyd's Rep.). 237 The Vishva Prabha  2 Lloyd's Rep. 229 Where there is a forum selection agreement.A. C.L. 286 at p. and how closely. 349 at pp. 286 at p.). 721 (C. 514. 473 and 479.L. Akai Pty Ltd. 551 (C. 710 (C. 418 at pp. High C. 2003 AMC 1280 at pp.R. Pompey v. 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”.232 (c) With what country either party is connected. or are only seeking procedural advantages.Z. where the advantage of the English process of discovery was held not to be a consideration.  1 W.). Fay (1988) 165 C. but without prejudice to (4). 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. 172.Z. 237 at p. 461-469. But in The Bergen (No. 288.  1 S. 288.A. 231 The Traugutt. and in New Zealand. after all. where there is no forum selection agreement. 142 (N. v. and the effect of that on the relative convenience230 and expense of trial231 as between the English and foreign Courts. ibid.A. 233 The El Amria. if so. or more readily available. 2)  2 Lloyd’s Rep. 511 at p. 228 The Fehmarn  1 Lloyd's Rep. 453 at pp.A. see also The Sennar (No. See also The Sidr Bashr 235 The Lisboa  2 Lloyd's Rep. 169 at p.25 at p.V.I.Z. at pp.A. High C. 450 at pp. supra.). 586-592. 79 (convenience to the parties and to witnesses). who was Counsel for the plaintiffs. van Heeren  1 N. (1996) 188 C. 142 at p. The People's Insurance Co.42 (3) The burden of proving228 such strong cause is on the plaintiffs. 4. The “strong cause” requirement was also strongly reaffirmed by the Supreme Court of Canada in Z. at p. The Vishva Prabha  2 Lloyd's Rep. see Ocean Sun Line Special Shipping Co. where it was suggested that if the failure to protect time in the chosen foreign forum was not the fault of the claimant. 324.L. where they arise. Ltd. v. 230 The Traugutt  1 Lloyd's Rep. 230-231 (Aust.C. H.L. 232 The Eleftheria. at p.
CSAV  1 Lloyd’s Rep. Metro v. Co. Where a nonexclusive jurisdiction clause permits suit in or out of England. 405 at p. not grant jurisdiction to a claimant if the same question has already been heard in a foreign court. 2000 at paras. 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. 670 at pp. Ltd.). whether or not the English proceedings will be stayed will be determined by the court in its discretion. 241 JPMSA v. the latter of which cases concerned a non-exclusive jurisdiction clause.) It has been held more recently in England that this basic approach. Mobil Sales and Supply Corp. 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. Communication Telesystems Ltd.  1 Lloyd’s Rep. 410. on the usual forum non conveniens principles applied in cases where there is no jurisdiction clause. gen. and the importance of Chilean law (the law of the place of performance of the bill of lading contract under the Rome Convention 1980). 2) the same subject matter. even when the cause of action in the subsequent proceedings differs from that in the original proceedings. Zurich Ins. and even arguments as to multiple proceedings. v. v. 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. where factors such as the greater availability of evidence in Chile. 239 Akai Pty. ed. but of recognition of a foreign judgment. racial.  2 All E. 410.  1 Lloyd’s Rep. 45. MNI  2 Lloyd’s Rep. The stay was therefore granted. (Comm) 33 at p. This is not really a problem of jurisdiction or of forum non conveniens. Ace v. Sinochem International Oil (London) Ltd.239 whether the jurisdiction clause is an exclusive or non-exclusive one. 38-23 to 38-64. People’s Ins. .. by taking suit there within one year of discharge of the cargo. after consideration of all relevant circumstances. Dee Howard Co. CSAV  1 Lloyd’s Rep. 405 at p. there must be the three identities: 1) the same parties acting in the same qualities.  1 Lloyd’s Rep. CSAV  1 Lloyd’s Rep. Q.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”. (M. Furthermore. requiring the plaintiff to show “strong reasons” why the contractually agreed forum should not try the case.  1 Lloyd’s Rep. Metro v. 119 at p. 368 at pp. 405 at pp. 238 The El Amria  2 Lloyd's Rep. Sweet & Maxwell. 15 Ed. 3(6) of the Hague and Hague/Visby Rules). 127. They have been added for the purposes of this commentary. 243 In both res judicata (also termed estoppel by judgment) and chose jugée. were found not to be strong enough reasons to overturn the non-exclusive English forum selection clause. the Court held that the defendants should not be denied the right to rely on the foreign time-bar (which also applied under art. 410-416. 240 Mercury Plc. 405 at p.C. 40.N. 242 British Aerospace Plc v. 618 at p. See generally Phipson on Evidence. 104. See also Metro v.242 4) Res judicata A court must. 376-377. or (iv) for political. 90 at p. Ltd. 3) the same object. London.. 410.240 and whether the clause was negotiated by the parties or was only a term in a standard-form contract.R.43 applicable in England. 41 at p. v. 679-680. Ltd. applies whether the contractual forum is England or another country.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. CSAV  1 Lloyd’s Rep. Metro v. Howard. 630. Co. of course.
K. – 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. (No. it was held that in order to establish issue estoppel: 1) the judgment must be given by a foreign court of competent jurisdiction..E. 1002. 19. c. Their Lordships were careful to note that not every jurisdiction clause.C. 31. although the tonnage limitation under Indonesian law was much lower than under English law. stay was ordered. English law The choice of forum clause (jurisdiction clause) must not reduce the carrier's responsibilities under the applicable law.44 not be relitigated in the subsequent proceedings if it arises once again.).E. 3) there must be identity of parties. selecting as forum a court which does not apply the Hague/Visby Rules.. 246 1971 U. 1 at pp. Therefore jurisdiction was retained by order of the Court of Appeal247 and the House of Lords.  1 Lloyd's Rep. such as the Indonesian Commercial Code. 25. and.S. will necessarily be a violation of art. Hellenic Glory 471 F.245 the applicable law was the English version of the Hague/Visby Rules.11. Inc. i. 325 (C. it has been held that there need not be identity as to the parties for collateral or issue estoppel to apply: W.J.A.E.1972). 574-575. . In the U. 249  2 Lloyd's Rep. Carl Zeiss Stiftung v.Y. Rayner & Keeler Ltd. 2) the judgment must be final and conclusive and on the merits.12. 319/9. 3(8) of Visby or the U. In The Good Challenger  1 Lloyd’s Rep.K. adopted at Lugano on September 16.A.S.K. where issue estoppel is often referred to as collateral estoppel. 245  1 A. 8 of the Hague/Visby Rules and of the 1971 Act used the words “any statute”.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 . 251 The Lugano Convention on Jurisdiction and Recognition of Judgments in Civil and Commercial Matters. could have resulted in Dutch law being applied (because the clause also invoked Dutch law). 6-7 (H. In The Morviken. 67 at p. 2)  A.). 1988 (O.J.C.S. referring to Parklane Hosiery Co.C. not package limitation. because the carrier was seeking to rely on tonnage limitation. 247  1 Lloyd's Rep. It was held that the transfer of jurisdiction did not offend art.L. 527 (H.e.A. particularly in cases where one of the The Sennar (No. 565 at pp. permitting transfer of the suit to Djakarta. 1971. being the Carriage of Goods by Sea Act 1971.C. 6) U. L. and 4) there must be identity of subject matter.). was not affected by the provisions of the Rules.244 5) Public policy. that article meant that an applicable foreign tonnage limitation statute. 322 (1979). since art. 935 (H. The damaged cargo had been shipped from London and continental European ports. 853 at p. This would have meant a lower per package limitation and thus a violation of art. N. 565. 1 (H. meaning that the issue decided by the foreign court must be the same as that arising in the English proceedings.). Supp.L.D. where the U. 299/32.J.  1 Lloyd's Rep. L. 3(8). 244 (C. 1979 AMC 2152 (S.246 Transfer of the case to a Dutch court in accordance with the jurisdiction clause. Carriage of Goods by Sea Act. 250 Hereinafter described as the Brussels Convention 1968 ( O. however. 2)  1 Lloyd's Rep.U.249 however. v. 3(8) of the 1971 Act and of the Hague/Visby Rules.). 1979). This is termed “issue estoppel”. Shore 439 U. 248  1 A.). Roberts v. Supreme Court severely limited the doctrine of mutuality. the Hague Rules 1924.L.248 In The Benarty.L. 77 (C.C. 521 at p.) (where the case is styled The Hollandia).
R.R. 2002.252 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. 264-266. 260 See Travelers Casualty and Surety Company of Europe Ltd. DMF 2001.) (giving effect to a service of suit clause providing for U.S. 618 at pp. 2000. 255 EC Regulation No. 397 (C. see O.  Ch 72. and therefore is still governed by the Brussels Convention 1968 in its relations with the other Member States of the E. 3 Ed. L 12/1. 258 Supra. 535 and Cheshire & North's Private International Law (P. and American Motor Ins.). ibid. 259 See Ace Ins.).A. and in force in all Member States of the European Union except Denmark.). See Owusu v. 17.A. appeared to confirm this position. 16. Norway and Switzerland. 2000. Thus a U. Fawcett.: C-387/98)  ECR I-9337. para. See also Lawrence Collins. 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. eds.218 at pp. in Coreck Maritime GmbH v.210 at p.256 The European Court of Justice is expected to rule on the issue on more recent references by English courts. under art. v. first para.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. 227-228. unreported.  All ER (D) 294 (Jul) (Q.V.A. "Forum Non Conveniens and the Brussels Convention"  L. 217-223. Cellstar Corp.. This holding would seem relevant under EC Regulation 44/2001 as well. Anton Durbeck GmbH v. Butterworths. Frangos  2 Lloyd’s Rep..  EWHC 1704.).. para..257 In the meantime. 2002 at paras. London. 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.Q.2001. v. ibid. . Handelsveem BV of November 9.260 in favour of courts outside such European Free Trade Association (EFTA) other than Liechtenstein (viz. v.). court. See also Haji-Ioannou v.J.B. North & J.  1 Lloyd’s Rep. or EFTA.U. 1999 at pp.-N. 217. Jackson (t/a Villa Holidays Ball-Inn Villas)  EWCA Civ. 13 Ed.45 defendants is domiciled in a member-State of the E.1. as of March 1.  All ER (D) 130 (Jun) (C. The English Court of Appeal decided in Re Harrod's (Buenos Aires) Ltd. would appear to be free to apply its forum non conveniens analysis. 346 (C. Den Norske Bank ASA  Q.A.U.M. adopted by the Council of the European Union on December 22.e the jurisdiction having the most real and substantial connection with the case) is determined to be a non-Member-State. See Briggs & Rees. 2.K.). 252 Harrods (Buenos Aires) Ltd.. 1160. in respect of civil jurisdiction and the enforcement of judgments. as well as EC Regulation States. Ph. without such action infringing the Brussels Convention.A. 622 and 626 (C. the validity of the clause must be assessed in accordance with the conflicts rules of the forum. Re (No 2)  4 All ER 348. 253 See Briggs & Rees.214 at pp. 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.  EWCA Civ. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. 2. Iceland. Zurich Ins.) (forum non conveniens applied to send dispute to Panama). as well as Poland. For the text. 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. 877. Delebecque. Co. (Case No. Civil Jurisdiction and Judgments. obs.B.E. of the Brussels Convention 1968.210 to 2. 257 The English Court of Appeal has requested the European Court of Justice to rule on this question of interpretation of the Brussels Convention. and yet the "natural forum" for the litigation (i. 187. 337 at p. S..  All ER (D) 26 (Mar).  3 W. unreported.J. 206 (C. which became a party to the Lugano Convention in 2000). Sun Life Assurance Company of Canada (UK) Ltd.  4 All ER 543 (C.L. Co.U. The Court of Justice of the European Communities. 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.A. litigation). 256 Denmark chose not to bound by the EC Regulation. as part of its conflicts of law rules.C. 2..
none of whom is domiciled in an E. the claimant in some cases must obtain leave of the High Court.K. or c) in a form which accords with a usage in international trade or commerce of which the parties are. In this article. parties to contracts of the type concerned (art.A. such leave is not necessary. the test provided by the European Court of Justice in Coreck Maritime GmbH v. where the conditions of art. 23 of EC Regulation 44/2001 and the most recent text of art. 23 is almost identical in wording to the most recent text of art 17. the Civil Procedure Rules 1998 are referred to under their common abbreviation.’s Civil Procedure Rules 1998. 264 November 9. 266 Service of process out of the jurisdiction is governed by the Civil Procedure Rules 1998. 23 are met.U. 23(3) also provides that where a jurisdiction agreement is concluded by parties. made December 10. to comply with art. 265 “Claim form” is the new term for “writ” under the U. 1987.K. The Nile Rhapsody  2 Lloyd’s Rep. 1998 and in force April 26. 23. 17.19(1) See.  1 Lloyd’s Rep.U. court in determining the validity of a jurisdiction clause in a bill of lading. 382 (C. Ph. first para. the courts of other Member States shall have no jurisdiction over their disputes unless the court or courts chosen have declined jurisdiction.  ECR I-9337. 387-98). aware and which in such trade or commerce is widely known to. The principles set out in The Eleftheria263 would therefore be applied by a U. 242. SI 1998/3132. Member State. Art. the claimant will serve a claim form265 on the carrier who at times is out of the jurisdiction. obs. the jurisdiction clause designating the forum of another E. supra. “CPR”. 237 at p. 23(1) and (2)).266 a) Where leave is not required-CPR Rule 6.20 To commence an action to recover for loss or damage to cargo in England. which came into force on January 1.The 1982 Act and CPR rules 6. in other cases. 23 of EC Regulation 44/2001 applies and requires the courts of Regulation States to stay the proceedings in favour of the specified court.19 and 6.264 7) Service out of jurisdiction . in so far as those principles indicate whether the clause in question accords with international trade or commerce. State must be either: a) in writing or evidenced in writing (including electronic form). 262 See the discussion of the conditions of art. or ought to have been.).U.U. Some of these decisions have applied forum non conveniens to enforce jurisdiction clauses requiring litigation of disputes in such non-Member States. giving effect to an Egyptian choice of law clause in a case where an English defendant was sued in England. of the Brussels Convention 1968. Art. To effect service out of jurisdiction. replacing the former Order 11 of the Rules of the Supreme Court 1965. 2000 (Case No. and regularly observed by. State. Handelsveem BV would be applicable.46 States. State. 399. As regards the jurisdiction clause's enforceability as against consignees and subsequent endorsees. for example. first para. of the Brussels Convention 1968 at section VI.262 In brief. art. 263  1 Lloyd's Rep. or b) in a form which accords with practices which the parties have established between themselves. 1999. 2001 DMF 187. and which bind parties one or more of whom are domiciled in an E. 261 .261 With respect to jurisdiction clauses calling for adjudication of disputes in an E. Delebecque.
therefore. The term “domiciled”. who is out of that court's jurisdiction. other than Denmark271. provided that either the claimant or the carrier is domiciled in such a state. c.K. reflecting the EC Regulation 44/2001 and paras. domicile has a similarly broad meaning.e.J. 16. 27.K.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.2000. applicable to all proceedings instituted on or after March 1. if the jurisdiction clause in the bill of lading designates the court of an E.U. 273 SI 2001/3929.18(d) in defining “Convention territory”. 1982. 2000.19(1)(b)(iii).1.18(k). 23 267 268 CPR rule 6.274 or on a court contemplated by art. 27. or any other Convention territory 276 or any other Regulation State. 23 of the EC Regulation 44/2001. sects. 17 of the Brussels or Lugano Conventions applies. art. Service out of jurisdiction without leave is only permissible if no other proceedings between the cargo claimant and the carrier in respect of the same cause of action are pending in the courts of any other part of the U.K. O. the only court that has jurisdiction.18(g)(i) and U. a Member State of the EU. 9 to 12 of Schedule 1 of this Order define the conditions under which a person is “domiciled” in the U.275 In other words.19(1)(a). 274 CPR rule 6. 269 CPR rule 6. 1(1) of the Civil Jurisdiction and Judgments Act 1982.269 while the term “Regulation State” means a Member State as defined in EC Regulation 44/2001.. without obtaining the court's leave.C.. CPR rule 6.277 The court where the action is first commenced is. L. 276 CPR rule 6. In relation to a “Regulation State”. .270 i. 275 CPR rule 6. U. or an EFTA state.E..19(1)(b)(i). 272 CPR rule 6. a particular part of it or a particular place within it. c.K. 12/1.268 The term “Convention territory” encompasses the territory or territories of any Contracting State to which the Brussels or Lugano Conventions apply. 17 of the Brussels or Lugano Conventions or art. has a wide meaning in the light of sects. There is an important proviso. 41-46 of the Civi1 Jurisdiction and Judgments Act 1982272 and clearly a defendant carrier can be domiciled in many jurisdictions concurrently. 9 to 12 of Schedule 1 to the Civil Jurisdiction and Judgments Order 2001.47 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”. 41-46. Paras. 277 CPR rule 6. 270 EC Regulation 44/2001 of December 22. however. 2002.19(1A)(a). refers to sect.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. b) Where the court's leave is required – CPR. in relation to a Convention territory. in commencing his action there.19(1A)(b)(i). 271 CPR rule 6. the claimant.19(1A)(b)(iii). can serve a claim form upon the carrier. rule 6. 1982. 1(3).
rule 6.20 justifying the grant of leave to serve the claim form out of the jurisdiction.20(2)). at p.20(9)).L. 282 CPR rule 6. para. at p. 280 CPR rule 6. U.21(1)(b)).283 There are various other types of claim which authorize service out with the court's leave as well. 4.K.20(4)).20(5)(a) to (d).288 For example. or b) to enforce a claim under sects.48 of EC Regulation 44/2001. 1991. 324.K. See also Briggs & Rees. 25(1) of the Civil Jurisdiction and Judgments Act 1982. 3 Ed. 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. 1982. an exclusive jurisdiction clause). 5. 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.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. provided that service out would be justified if one did exist. Civil Jurisdiction and Judgments. service out may also be authorized where a claim is made for a remedy against a defendant domiciled in the jurisdiction (CPR rule 6. in contractual matters.21(2A) 278 . 1 at pp. 1 (H.L.20(17A)). Claims to enforce a judgment or arbitral award may also authorize service out (CPR rule 6.33 at p. 283 CPR rule 6..281 Service out may also be granted on a claim in tort where damage was sustained within the jurisdiction282 or where the damage sustained resulted from an act committed within the jurisdiction. 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.e.20(7). a claim form may be served out of the jurisdiction with permission of the court if the contract was made within the jurisdiction.K. or for an interim remedy under sect.).20(6). where these authors state that CPR. 13. Civil Jurisdiction and Judgments.20(5)(d). 287 The claimant must show that 1) England and Wales constitutes “the proper place in which to bring the claim” (CPR. 2002. 21 (CPR rule 6. 284 For example.. 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. 2002. not subject to the jurisdiction of the High Court) (CPR rule 6.20(9). para. 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. For example.286 When leave is sought to serve out of the jurisdiction. as well claims relating to property in the jurisdiction (CPR rule 6. rule 6. the burden of proof is on the plaintiff to show that the forum is the most appropriate.20 relied on in this regard (CPR.20(8). 286 Ibid. 281 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(10)). 285  1 Lloyd's Rep. 3 Ed. 153. and 14 (H.21(2A)). 325.54 at p. U. 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. the claimant must obtain the leave of the High Court to serve the defendant outside of the jurisdiction. See also Briggs & Rees. on the other hand. 279 CPR rule 6. rule 6.287 When the court is asked to stay an action on the ground of forum non conveniens. c.). 363.284 In the light of The Spiliada. 288 The Spiliada  1 Lloyd’s Rep.278 There are various grounds listed in CPR rule 6. rule 6. or for an injunction ordering the defendant to do or to refrain from doing an act within the jurisdiction (CPR rule 6. 154 or 175 of the Merchant Shipping Act 1995.285 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. See also ibid. c.20(1)).21(1)(a)) and that 3) he “… believes that his claim has a reasonable prospect of success” (CPR.
shall) order a period of time within which the claimant must bring proceedings before a competent court or arbitral tribunal (art.B. it may (or at the request of a party. 7(1) on the merits or has refused to exercise it under art.” 289 See Briggs & Rees. found as Schedule I to the Civil Jurisdiction and Judgments Act.292 at art. while at the same time granting a stay of proceedings in this country to enable the action to proceed in the appropriate forum.K. May 10. at pp.the principle The Federal Court Act295 of Canada stipulates at sect. That Convention also requires respect for jurisdiction and arbitration agreements by the arresting court.” See also Chap. 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.289 Nor is it necessary to do so. 291 See sect.R.Forum Non Conveniens Introduction . or to arbitration. 1 at p. 1956. normally be wrong to allow a plaintiff to keep the benefit obtained by commencing proceedings here.. the courts of the State in which the ship has been arrested or security has been provided for its release. and (b) within 12 months after the date of issue. 1981. but not in force.3(5) specifies that the claim form must be served: (a) in accordance with the practice direction.C. C.). where Lord Goff stated “.L. 7(2) of the Arrest Convention 1999 provides that notwithstanding art. even though a jurisdiction clause has designated a court in another jurisdiction to decide the action on the merits. See The Spiliada  1 Lloyd's Rep. March 12. and in force February 24.05-8. 295 R.291 Similarly art. 293 Art. I think. Electric Power Commission v. CPR. 7(3)). 2002. c. 46. This international convention has been almost completely implemented in the United Kingdom by the Supreme Court Act 1981. 294 Art. 7(2). Brussels. 7(2).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. U. 8. 1956.S. paras. 2. except where the parties validly agree or have agreed to submit the dispute to a court of another State that accepts jurisdiction. Maritime Electric (1985) 60 N. 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.07 at pp. The Arrest Convention 1999. The Arrest Convention. sect. See N. 7(3) permits the vessel to be arrested in one jurisdiction and held as security there. 1982.293 It also recognizes forum non conveniens under national law. 2 Ed. 1033-1036. 15 (H.A.. it would not. now happily in force. consistent with the manner in which the process of saisie conservatoire is applied in civil law countries.). 1999. I understand.290 at art. c. 290 Convention Relating to the Arrest of Sea-going Ships. 203 (Fed. 7(1). 4 & 5 Eliz. Civil Jurisdiction and Judgments.. . 1985. which replaced the former Administration of Justice Act. Maritime Liens & Claims. Where the arresting court lacks jurisdiction under art. rule 61. See Tetley. c. 3 Ed. 28. adopted at Geneva. 7. 54. contains a similar provision. 26 of the Civil Jurisdiction and judgments Act. 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. 26 of the Civil Jurisdiction and Judgments Act 1982. c. 1982. 1) Canada . Such a conclusion is. See also art. 292 International Convention on the Arrest of Ships.K. 1982. 27. 50(l) that: is intended to reproduce the substance of the previous case law. 1998.. “Arbitration Clauses”. 24 of the 1968 Convention.294 XI. 5077-508. 2(3). 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. and cf. 1952. U.
795 at p. 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. citing various authorities.R.300 definitively opted for the English view of forum non conveniens. Supr. 422 at p. Ritchie. at p. (3d) 261 at p. C.299 as well as its own precedent in Antares.C. in its discretion.P. including the plaintiff.298 In 1993.R. 303 (Fed.R. the Supreme Court of Canada considered the doctrine of forum non conveniens in determining whether the Court should direct for service ex juris. 448.297 relying on the two criteria (positive and negative) laid down by the House of Lords in MacShannon v. 917 and 921.” The clearly more appropriate jurisdiction (the “natural forum”) was declared to be the jurisdiction having the most real and substantial connection to the parties and the circumstances of the case. the Supreme Court of Canada. Sopinka J. J. Holdings Ltd. The Ship Friedrich Busse (1982) 134 D. 895. 8 (Ont. The Nosira Lin. … (b) where for any other reason it is in the interest of justice that the proceedings be stayed. C. Referring to forum non conveniens.). BP Can. v.C. (1984) 52 N. Supr. 1 (H. 296 . 297  1 F. 269. 301  1 S. Rockware Glass Ltd.). (1982) 27 C.A. 897. 299  1 Lloyd’s Rep.R.C. the defendant had the onus of proof.. in Amchem Products Inc.” Canadian courts followed the English courts on the question of forum non conveniens in decisions such as Yasuda Fire & Marine Insurance Co. including the House of Lords The Spiliada. 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). 302 Ibid. stated that: “The factors affecting the application of this doctrine have been differently described in various cases . v. however. at pp.296 a case involving an application for leave to serve ex juris.R. 304 (Ont. v.C. and the cost of assembling foreign witnesses.P.C. 303 Ibid.C. 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.L. 298  A. Westmin Resources (1983) 32 C. Plibrico (Canada) Ltd. 442.L. and they include the balance of convenience to all the parties concerned. The Ship Capricorn. British Columbia (Workers’ Compensation Board). the impropriety and inconvenience of trying a case in one country when the cause of action arose in another where the laws are different.50 “The Court may. 812 (H. 300 at p. stay proceedings in any cause or matter.).303  2 S. Ct).” In Antares Shipping v. Suncor Inc. 300  2 S. the undesirability of trespassing on the jurisdiction of a foreign state.301 Concluding his analysis.. Ct). 921.” See also Kuhr v. 5 at p. v. whereas in seeking a forum non conveniens stay. The burden of proving the clearly more appropriate forum fell on the plaintiff in service ex juris motions.L.
C. Lloyd's Syndicate  2 N. C. 203 (Fed. 851 at p.  3 F.R. The Fu Nin Hai (1999) 173 F.C. 237 at p. but rather on whether the Australian forum is clearly inappropriate. C. High C. 306 Burrard-Yarrows Corp.T. focusing not on whether there is a more clearly appropriate forum elsewhere.) (cargo claim). Great Tempo S.306 and was reaffirmed by the Supreme Court of Canada in 2003 in Z. (2003) 224 D.). Can. (1998) 173 F. C.Canada With respect to the enforcement of jurisdiction clauses.304 2) Jurisdiction clauses .T. Can-Am Produce and Trading Ltd.) (personal injury and death). 450 at pp. Manildra Flour Mills (1990) 171 C.).A. See also Jian Sheng Co.). applies forum non conveniens slightly differently. however.51 The clearly more appropriate test continues to apply to forum non conveniens decisions in Canadian case law today.A.309 c) A strong reason for not honouring a foreign jurisdiction clause may be that all the facts are in Canada.) (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). 287 (decisions of motions judges on applications for stays of proceedings based on foreign jurisdiction clauses should be upheld. C. This tripartite test involves a judicial determination as to: 1) whether there is a serious issue to be tried. Can. 250 (Fed. Can. (2001) 185 F. 231 at p.L. 404.A.L. v. 304 .). Hyundai Merchant Marine Co. 310 The Agelos Raphael  1 Lloyd's Rep. 856 (Fed.T. C. C.). 255 (Fed. C.308 b) Discretion is with the trial judge and his decision should not be reversed “unless it was arrived at on a wrong basis or was plainly wrong”.C.R. v. leave to appeal to Supreme Court of Canada denied  S. Wendell  1 N. See also Trans Continental Textile Recycling v.R.C. which the Federal Court of Appeal had found applicable to stay applications as well. Can. 248 at p. ECU-Line N. v. 427-428 (Fed. Australia. Pompey v.R. C.R. P. P.586-592.C.).T. C.A.A. C. ibid.the criteria . for example. 1867 (Fed. 495 (Fed. for example. as fully articulated in England in The Spiliada. Can. See Voth v. (1998) 225 N. 418 at pp.C. C. unless arrived at on wrong basis or plainly wrong). Pompey v. (4th) 577 at pp.L. The Hoegh Merchant  1 F. ECU-Line N.Z. and rejected the “tripartite test” applicable to motions for interlocutory injunctions.I. the landmark New Zealand decisions in McConnell Dowell Constructors Ltd. C. 54 (Fed. The Regal Scout  2 F. 257 (N. 221 (Fed. Jian Sheng Co. Can. The Erato  1 F.A. 307  1 S. See.A. v. Can. (1999) 176 F. v.Z. 105. per Hargrave. 144.. See also Agro Co. Itochu Canada v.I. and 3) which party would suffer the greater harm as a result of the granting or refusing the interlocutory injunction (or stay).310 See.R. 2) whether the party seeking the interlocutory injunction (or stay) would suffer irreparable harm unless the injunction (or stay) were granted.Z.Z. Shanghai Ocean Shipping Co. The Senator (1996) 112 F. 140 at p. Can.R.307 a) There must be “strong reasons” for not honouring a jurisdiction clause calling for jurisdiction before a foreign court. 1287-1293. 309 Burrard-Yarrows Corporation v. C.  ETL 39 (Fed.V. 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.R.T. 461-469.R.C.L. including maritime case law. The Hoegh Merchant  1 F. 314 (Fed. Nissho Iwai Co. A. v. 216 (N. Abta Shipping Co.).) and Club Mediterranee NZ v. of Can.C. of Canada Ltd. in The Eleftheria305 has been relied on in quite consistently over the years. Anraj Fish Products Industries Ltd.R. Can.T. Napa v. the authoritative summary of principles by Brandon J. 538 (Aukst.C. (1996) 106 F. 2003 AMC 1280 at pp. 305  1 Lloyd's Rep. 1998 AMC 1864 at p.).C. Other Commonwealth countries have similarly adopted the forum non conveniens principle. The Hansa Bay  F. Great Tempo S.). 242. 427.). v.R. 418 at p.).V. v. 278 (Fed. per Morneau. See also Bomar Navigation Ltée v.). 308 Z.R. C. C. 234 (Fed.  3 F.
L. Traité. contrary to art. 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. member state): Cour de Cassation. DMF 1985. however. 1981. F-7. November 25.R. 450 at p. 2001.I.p. DMF 1982. in section V.313 Sect. October 31. 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.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. (2003) 224 D. 450 at pp. 592-594.C.C. 313 S. Pompey v. the French court either has or has not compétence (jurisdiction).317 An action is not stayed or suspended so that suit may be taken in a more convenient court. Cour d’Appel de Paris. 1984. 46 in effect restricts the discretionary power of the Federal Court of Canada under sect. 14 of the French Civil Code. ECU-Line N. 672. fundamental breach of the contract of carriage). 1987.g. 1) France Introduction France and the civil law generally316 does not recognize the principle of forum non conveniens. 1985.311 e) Courts deciding on the enforceability of jurisdiction clauses should avoid considering substantive issues (e. Québec Civil Code 1994.U. have incorporated forum non conveniens into their legislation.). 316 A few civil law jurisdictions. 317 The rules governing which court has territorial competence are found in arts. irrespective of the nationality of the person (e.315 XII. 6. art. 713. 520. 312 311 . 2003 AMC 1280 at p. 315 See the comments of the Supreme Court of Canada on this point in Z. of Can.g. 3(8) of those Rules. v. DMF 1986. 1293-1295.C. 668 at p. 46 of the Marine Liability Act.. 314 R. It should also be noted that when the plaintiff in an action is of French nationality. leaving such questions to be decided by the contractually selected foreign forum. DMF 1987.c. 104 with note by P.L.R.R. see Rodière. Cour de Cassation. See also Tribunal de Commerce de Paris. (1983) 148 D. May 14. c. 1986. In Germany. The Regal Scout  2 F.R. Agro Co. 50 of the Federal Court Act314 to enforce foreign jurisdiction and arbitration clauses in bills of lading. See discussion of this statute supra. ECU-Line N. c. 113.C. 341.C. mise à jour 1978. C. 3135 c. affirming Cour d’Appel d’Aix. 851. Nicolas. a foreign insured) in whose rights the plaintiff (e. Pompey v. of Canada Ltd.  1 S. (3d) 412 (Fed. in force August 8.I. 1984.g. April 18. 42-48 of the New Code of Civil Procedure (NCP).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. See Louisiana Code of Civil Procedure. (4th) 577 at pp. December 7.  1 S. (4th) 577 at p. Affrètements & Transports. the right to request that an action already before a court with jurisdiction over the subject matter be stayed. 706.L.e. DMF 1984.V. 2001. the French courts will have jurisdiction by virtue of art. Z. art. Jurisdiction Clauses Restricted by National Law”. DMF 1985. 1295. 469-472. Rather. notably Louisiana and Québec. DMF 1985.-Y. 718. a French insurer) has been subrogated: Tribunal de Commerce de Paris. 594. February 15. para. 2003 AMC1280 at pp. 1983. constitutional provisions prevent German courts from refusing to exercise their statutory jurisdiction. 123 c.c.R. 1984. i. so that suit may be taken in a more convenient forum. (2003) 224 D.q.V. March 10. 472.S.
10 of the former Law of April 2. 1966 restrict jurisdiction clauses. La clause attributive de compétence à un tribunal étranger. 1966. See Fraikin et Boquet. Les clauses attributives de compétence dans le transport maritime de marchandises. 320 Law No. «Les clauses des connaissements attribuant compétence à un tribunal étranger sont-elles encore valables?» DMF 1980. 206.4. February 27. 119.53 A jurisdiction clause validly agreed upon by two “commerçants” (merchants) will be recognized by a court which has jurisdiction to hear the case. 1966. January 11.4. 1966 sur les contrats d'affrètement et de transport maritimes. 322 Tribunal de Commerce de Nantes. Nor does art. (J. 321 Decree No. DMF 1952. 48 of the New Code of Civil Procedure. 75-1123 of December 5. April 11. Procedure 3. 1936 prohibited jurisdiction clauses ousting the jurisdiction of French courts in cases of carriage between French ports in a French vessel (navigation réservée). Presses universitaires d’Aix-Marseille. September 25. 1967. Cour d’Appel de Rouen. 75-99 NCPC: Les exceptions d’incompétence. where the impact of the changes in the New Code of Civil Procedure is discussed.O. fascicule 211.O. DMF 1980. September 30.e. in which case the court will declare itself (“incompétent”) (without jurisdiction). D. 1966.e. 496. DMF 1952. See generally Bertrand de la Grassière. 3) French domestic law . DMF 1981.1.322 art. 2) Prohibition under law The rules governing territorial competence (i. 1967. however. 1981. p. «Les clauses des connaissements attribuant compétence à un tribunal étranger sont-elles encore valables?». DMF 1983. 42-48 NCPC: Cour d’Appel de Bordeaux. p. DMF 1974.jurisdiction clauses Under present French civil procedure. 318 .325 (NCPC) which also establishes an important exception: i. 515.S.321 In addition to stating that actions may be brought before the court of the French port of loading or discharge. 1980.S. Tribunal de Commerce de Paris. 66-420 of June 18.. 2002. 54 merely refers to the normal procedural rules that govern the validity of jurisdiction clauses. Art. 325 Established by Decree No. 515. art. 54 is in fact merely a supplementary provision to arts. «La clause attributive de compétence à un tribunal étranger». January 13. June 24. 397. 319 Loi relative aux transports des marchandises par mer. 165. D. sur les contrats d’affrètement et de transport maritimes (J. 189. 1937. para. See Cour d’Appel de Rouen. 483. 323 Formerly.319 The domestic Law of June 18. See Bertrand de la Grassière.295. 1974.324 This general rule is enshrined in art. DMF 1982. 1966320 contains no prohibition in respect to jurisdiction clauses.318 In carriage of goods by sea cases. 119. 162 at p. D. 1975. Amoussou. 66-1078 of December 31.4.65. February 8. 1936). 1983.O. 54 of the Decree of December 31. 360. See arts. Fraikin et Boquet. DMF 1980.K.323 the general rule is that choice of forum clauses are to be treated as unwritten and therefore with no effect. jurisdiction ratione loci) were formerly considered to be merely of private interest and thus derogation from these rules was generally permissible. 235. (J. 1979. the territorial jurisdiction rules were considered to be of private interest and thus derogations therefrom were permitted: Juris-Classeur. A. 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.
329 Art. even if acting in a commercial capacity. Cour d’Appel de Bordeaux. DMF 1974. DMF 1985. 1996. See. Cour de Cassation. Cour de Cassation. p. 1981. 492. 1998. November 8. 1982. 37. must proceed before the court which is seized of the principal action. Cour de Cassation. IV. Cour de Cassation. 1985. DMF 1998. without that clause being pointed out. no. 331 Cour de Cassation. May 30.S. 1978. 1986. February 4. who is impleaded into the action. DMF 1987. 546. December 1. DMF 1998. 1979. February 28. DMF 1986. DMF 1983. DMF 1980. with note by Ghestin. Cour d’Appel de Rouen. obs. 1927. 1982. 725 at p. July 20. S. 1979. 87-922 of November 12. 85. 162. 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. 1982. rep. Bull. DMF 1982. 726.328 until the requirement for the shipper to sign bills of lading was repealed in 1987.-P. Achard. was not deemed consented to. cr. where the foreign court was not determinable and the clause was therefore unenforceable. 1986. December 17. Achard. dr. 1981. second para. DMF 1983. See also Cour d’Appel de Paris.-Y. 325. 730. 1. pan. Until 1987. February 25.54 where the jurisdiction clause has been agreed to by parties acting in a commercial capacity and has been clearly specified in the agreement. jur.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. 1966 required the shipper to sign the bill within 24 hours of the loading. DMF 1979. DMF 1997. 1998 (The Lode Bay). the Court should have refused to give effect to the clauses concerned. 431 with note by R. 609. 489. Pal. 274. no. Nicolas. DMF 1983. 1987 so that the shipper is no longer obliged to sign the bill of lading under French law. 33. Bull. January 14. 1971. 1979. 333 NCPC. February 8. regardless of the presence of a jurisdiction clause: see art. DMF 1981. November 14. November 14. Rémery. 518. it must at least be identifiable. Achard appended to Cour de Cassation. DMF 1981. DMF 1983. Cour d'Appel de Paris. 1972. November 30. March 20. 330 Cour d’Appel d’Aix. March 3. Rev. however. 537. 1979. 29 with note by R. 282. trim. int. May 9. Cour d’Appel de Paris. May 3. June 26. 1980. which merely designated the courts of the country where the carrier had his principal business. Achard. 118. 1982. 1980. 11. February 13. NCPC. 1971. 270. report J.331 The forum chosen in the clause must be clearly designated. 1984.S. Achard. May 24. inf. DMF 1983. however. no. 507. 489. Cour d’Appel d’Aix. 1982. 98. June 27. Rev. Y. 77 328 Cour d’Appel de Rouen. 78. The jurisdiction clause need not. 66-1078 was amended by Decree No. 128. where the rule is different when the 1968 Brussels Convention applies. note R. obs. 1974. DMF 1983. and cannot decline the jurisdiction of that court even by invoking a jurisdiction clause: art. February 27. 1983. Cour de Cassation. See also Cour d’Appel de Rouen. 678 with an excellent commentary by P. note H. Cour d’Appel de Paris. no. Cour d’Appel de Paris. March 19.330 nor was a clause written in a foreign language that the party did not understand. 1928. Cour d’Appel de Paris. See. be consented to apart from the other clauses in the bill of lading: Cour de Cassation. 333 Cour de Cassation. July 12. Thus a clause printed in ultra-fine letters below the line where the party was to sign. somm. D. 415. 1980. civ. dr. March 3. art. 1979. 1. When there are several defendants and the action is indivisible.64. See Cour d’Appel de Paris. 802. 531. See comment by R. if it is not identified. the plaintiff can pursue the action in the jurisdiction of any one of the defendants. Bull 1980. Tassel. II.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 1983. In Cour d’Appel de Rouen.326 The clause must be clearly apparent so that the parties can be found to have given their informed and unequivocal consent to it. Cour de Cassation. 262. Delebecque. 1991. 1980. 1984. 334 Tribunal de Commerce du Havre. 326 . March 11. 1983. Gaudemet-Talon. 332 Cour de Cassation. Cour de Cassation. May 24. October 1. 1981. January 16. DMF 1979. 37 of Decree No. 42. February 20. as well as in Cour d’Appel de Rouen. 1982. 1986. Ph. 720. 37 of Decree No. 1983. however. Bulletin des transports 1987. Bull. DMF 1981. pr. Gaz. with note by Normand.1. 661078 of December 31. 143 with note by R. D. 1980. DMF 1991. 327 Cour de Cassation.
the courts had at one time given effect to foreign jurisdiction clauses. 23. the French court should refuse to give effect to the jurisdiction clause. June 17. in the case of international carriage.  ETL 496. DMF 1983. February. however. the contra proferentem rule will apply if such designation disadvantages the shipper. 93. Any restriction of the shipper's rights beyond what is permitted by the Law of June 18. Cour d’Appel de Rouen. 5. 48. See also Cour d’Appel de Rouen. 198 1. June 22.55 since that port could change from voyage to voyage. fascicule 212-1. 1966 (governing domestic carriage) makes that law of public order. because the carrier drew up the clauses in the bill of lading. Belgium takes a similar position. 612. April 23. as where there has been a fundamental breach of the contract. the jurisdiction clause's effectiveness will be jeopardized. DMF 1985. March 7. 2003 (The MSC Dymphna). 1980. para. but not always. 602.339 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. Juris-Classeur Procédure 3. 550. by requiring that the clause “be specified very clearly in the agreement” itself. Normand. If the jurisdiction clause designates a foreign court which is likely to apply its own law. 29 of Law No. 338 Juris-Classeur Procédure 3. DMF 1982. 1982. Cour d’Appel de Paris.335 The court will sometimes. 1986. DMF 1982. fascicule 212-1. be less stringent in its evaluation of the clause if the shipper and other cargo interests are professionals or have had previous dealings with the carrier. 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. the clause will be interpreted restrictively by the courts. dr. 87. trim. 340 Art. para. 1966 or. civ.337 Of course when the whole agreement is challenged. See Hof van Beroep te Antwerpen. 95. Sometimes the jurisdiction clause is not found in the document itself. would seem to invalidate jurisdiction clauses which do not appear in the bill of lading issued to the shipper. but only on the condition that the designated foreign court apply the Belgian equivalent of the Hague Rules: Hof van Beroep te Brussel. See Tribunal de Commerce de Paris. 548. 337 Juris-Classeur Procédure 3. March 335 . DMF 1980. Where the document clearly referred to another document containing the clause and the consent of the parties clearly extended to the clauses in the long form document. as in the case of a short form bill of lading. March 2. 1984. para. 546. 100. March 1.341 See Juris-Classeur Procédure 3.340 In such circumstances. 336 Cour de Cassation. fascicule 211. January 14. para. the French court must consider whether giving effect to the clause would violate French public order. 1979. But see also Cour de Cassation. where the Court notes that the bill of lading is the typical case of a contract of adhesion. 236.338 But art. para. 3(8) of the Hague/Visby Rules makes those rules of public order.336 It must be remembered. Bulltein des transports 1994. DMF 187. 1993. Nor is a clause designating a court which one of the parties has the option to eventually name. would be contrary to public order. 1994. 1983. holding that the acceptance of a jurisdiction clause could not be inferred from the existence of prior commercial relations between the parties. DMF 1994. 203. Thus merely referring to a jurisdiction clause appearing in another document would not be sufficient. Rev. 339 Cour d’Appel de Paris. 416. Notably. 341 Belgium takes a similar position. fascicule 212-1. which must be performed in good faith. Cour d’Appel de Paris. that since such a clause derogates from the normal rules of civil procedure. January 20. 66-420 of June 18. the courts have in some cases given effect to the jurisdiction clause. fascicule 212-1. 710. if the clause designates the court of the carrier's domicile. the Hague/Visby Rules. just as art. In Belgium.
where one or more of the parties is a domiciliary of any other E. 1968. 1973. DMF 1979. 1982. see also Cour d’Appel de Paris. as amended by various Accession Conventions. 303. not by art. 17 on jurisdiction clauses.  ETL 50.Y. preamble. 1985. actions taken before the court of one European Union Member State by or against a corporation or individual domiciled in another Member State. October 31. 1987. The Lugano Convention 1988 will also continue to apply to jurisdictional matters involving a Member-State of the European Union and either Iceland. State and the case involves a Danish domiciliary. 17: 18. 1974. art. 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. Subsequently.  ETL 704. 1983. 1982. 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.U. 48 NCPC). 17 of the Convention or art. art. was essentially the same as the Regulation in respect of jurisdiction clauses.U. March 1. June 3.346 On the other hand. Rapport sur les travaux de la 2ème Commission. DMF 1982. June 27. even though the clause in question arose in respect of an action in warranty and the principal action was being taken in another jurisdiction. DMF 1987.347 In The Tilly Russ. 347 Conférence de droit international privé de la Haye.1. DMF 1985. March 14. Switzerland or Poland.g. jurisdiction clauses in contracts between parties both of whom are domiciled in France continue to be governed by art. 1971.4. 98. DMF 1986. 604. 48 NCPC. See also Cour d’Appel de Rouen. July 12.S. DMF 1980. May 15. Nicolas. 2002 of EC Regulation 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. The Convention as amended covered. 492. 98. art. March 10. French courts have not gone as far as Belgian courts in this regard: Cour d’Appel de Rouen. see also the Protocol on the Interpretation of the 1968 Convention by the European Court. and its 1971 Protocol of Interpretation continue to apply between Denmark and the Member States bound by the Regulation (i.345 The Brussels Convention 1968. Droit international 8. May 24. Nicolas. The draftsmen of the old art. 73-63 of January 13. June 10. 1977.344 Today. 48 NCPC where the clause specifies a court in another E. 1984. DMF 1980. 23 of the Regulation. 342 O. See Cour d’Appel de Rouen.E. DMF 1985. referred to in Jurisclasseur. signed at Luxembourg. by which the Brussels Convention 1968. even if there is an international element to the contract: e. 557. 1985. May 25. continues to displace art. See also Cour d’Appel de Rouen. fascicule 631. with note by P. where the bill of lading was signed outside of France. Belgian courts did not consider such a condition to be sufficient. 1979. Norway. with note by P. 23 of the Regulation governing the validity of a jurisdiction clause. See Cour de Cassation.e. 117. Hof van Beroep te Brussel. L.U. see Fraikin and Boquet. July 12. 520. DMF 1983. August 29. Cour d’Appel d’Aix.  ETL 641. 622. 713. 17 wanted to avoid making compliance with formalistic requirements a criterion for the validity of jurisdiction. 550. 1973. September 27. 17 of the Convention had precedence over the other means of acquiring jurisdiction.Y. 214. supplants art. Actes de la 8ème session. which.56 4) France and EC Regulation 44/2001 Until the coming into force on March 1. DMF 1985. 1984.342 French courts were bound by the Brussels Convention 1968343 on the same subject. where it was held that the jurisdiction clause need only comply with art. 723.J. aff'd Cour de Cassation. supra. para. as the Regulation now does. 343 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. DMF 1983. 1971. para. however. July 5.C. 345 Cour de Cassation.2001. signed at Brussels. Member State. the other Member States of the European Union).12/1. 22.348 the European Court of Justice held that a jurisdiction clause in a bill of lading would satisfy the requirements of art. 1982. p. both published by Decree No. Cour d’Appel de Rouen. DMF 1986. 1979. country except Denmark. par Frédéricq. where it was held that jurisdiction acquired by means of a jurisdiction clause which complied with art. 344 See Cour de Cassation. 16. Cour d'Appel de Rouen. 1984. 17 of the Convention and not necessarily with the national law (i. .e. 469.96. 346 See EC Regulation 44/2001. 620. October 9. 515 at p. DMF 1983. D.
557. It came into force on November 1. in the U. section of this article. i. 83 at p.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. 03. though signed only by the carrier and not by the shipper. 349 348 . 350 The jurisdiction clause in this situation would not comply with the requirements of French domestic law (i. The French courts emphasized that the jurisdiction clause had to be printed on the back of the bill of lading. European Court of Justice. June 19. 254. where the shipper put his signature. or ought to have been. October 9. at art. IV. 623-3. March 2. 23(2) is the major addition made by the Regulation to the wording of the immediately preceding version of art. Rodière & du Pontavice. 1986. DMF 1985. DMF 1985. 12 Ed. Bull. 352 Convention on the Accession to the 1968 Convention and the 1971 Protocol of Denmark. to ensure that the shipper had such notice as to be able to consent to it: Tribunal de Commerce de Paris. signed at Luxembourg on October 9. If the jurisdiction clause is only printed on the front of the bill. 48 requires the jurisdiction clause to appear on the document issued. as well as those in a form which accords with practices the parties have established between themselves. 23(1) authorizes jurisdiction clauses which are in writing or evidenced in writing.K. 23 even when the shipper has not signed the (The Tilly Russ). the shipper was never advised of the existence of the clause.354 Art. 23. which appeared only in the long form bill. L.10. and regularly observed by. aware and which is widely known to. the Republic of Ireland and the United Kingdom. 548. 353 By the San Sebastian Convention of May 26. DMF 1982. acted as the written confirmation of that prior agreement. 1981. 1984.E. art. was not given effect since the shipper had only been issued the short form bill.1989. 386-2. Droit Maritime.355 Thus art. 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. p. 1989. para. Droit Maritime.e.351 The version of art.349 or b) if the jurisdiction clause was specifically included in a prior oral or written agreement and the bill of lading. The inclusion of electronic communications in art. where a jurisdiction clause.C. 1984. para.. even though the short form specifically referred to the long form.e. 2 Ed. 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. O. the side where the shipper signs). 285/1. 1997.e. The text is found in DMF 1987. 1993. its validity will depend on whether it fulfils the requirements of category b).350 (this set of circumstances is rare in maritime matters). 235. parties to the type of contract concerned in that particular trade or commerce. September 30. 354 Art. 23 constitutes an important distancing from French law: a jurisdiction clause may be deemed valid under art. 351 Again. 1984. no. a jurisdiction clause in these circumstances would not meet the requirements of French domestic law: art. 23 of the EC Regulation 44/2001 is reproduced supra. 48 NCPC) which requires the clause to appear on the document issued itself: See Cour d’Appel de Paris. Cour de Cassation.353 It is essentially this latter version which was reproduced by the drafters of EC Regulation 44/2001. 17 of the Brussels Convention 1968. 1978. nor had the shipper agreed to such a clause in previous voyages.. 17 that was adjudicated upon in The Tilly Russ was modified when Denmark. 209. 89. 355 Rèmond-Gouilloud.J. Also accepted are forum selection clauses in a form which accords with a usage in international trade or commerce of which the parties were. 1984.
Ph. 2000. Cour d’Appel de Rouen. 37 of Decree No. obs. 684. Cour d’Appel de Rouen. the European Court of Justice answered this question. April 5. under art.58 bill of lading nor been specifically shown the clause in the bill. agreed to by a shipper and a carrier. reaffirmed that a jurisdiction clause in a bill of lading. May 22.362 If such is not the case. 1038. on proof of the shipper’s actual consent to the jurisdiction clause before the conclusion of the contract of carriage.358 5) Opposability to consignee and endorsees As stated above. DMF 1982. 66-1078 of December 31. however.-Y. 1984. interpreting the final. 1966 and art. 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. (Case No 387/98). Nicolas. no. Cour d’Appel de Rouen. 2001. despite art. DMF 2003. 750. 361 November 9. DMF 2001. Handelsveem BV. DMF 1985. DMF 1985.361 the European Court of Justice. June 19. 17. 359 As between the shipowner and the charterer. 616. December 5. the third party. 356 . September 30. 358 Cour d’Appel de Rouen. 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. 187. DMF 1998. 48 NCPC. Delebecque. DMF 2001. 2000 (The Seinehaven). 357 See Cour d’Appel de Paris. See DMF Hors série no. 102 at pp. 17 established in The Tilly Russ and other decisions. DMF 1985. however. produces effects with respect to a third party holder who. The consignee and subsequent endorsees. This is especially problematic when the bill of lading in the hands of the third party was issued under a charterparty which contained the jurisdiction clause and which could only be known by the parties to the charter. November 29. P. See also Cour d'Appel de Rouen. 2002. applying the conflicts rules of his national law. 360 Supra. See the commentary by Pierre Bonassies. 96. relating to the opposability to shippers and consignees of bill of lading jurisdiction clauses subject to art. 89. 235. 2000 (The Nuevo Leon). in acquiring the bill became the assignee of the shipper’s rights and obligations.359 In The Tilly Russ. 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. 1997 (The Clyde Bank). holding that. 1093. 89 at p. it is proper to As was required by art. has succeeded to the rights and obligations of the shipper under the applicable national law. 1038.357 and in other cases insisting. The question therefore is whether they also are bound by it. in some cases recognizing practices established between the parties and international usages in regard to forum selection provisions. but rather that that law fell to be determined by the judge seized of the case. 17 of the Brussels Convention 1968. 2002 (The Ubangui). DMF 2001. 83 at p.356 French courts have been rather inconsistent in giving effect to art. DMF 2001. See Tribunal de Commerce de Paris. in acquiring the bill. 17. by virtue of the applicable national law. 2001 (The Transvaal). 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. DMF 2001. 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. November 30. 17 of the Brussels Convention 1968. June 21. 6.  ECR I-9337. 77-79 for a summary of various. re-amended version of art. a jurisdiction clause would be enforceable as against a third party holder360 if the clause would be valid as between the shipper and the carrier and if. obs. have no notice of this clause. 1981. difficult-to-reconcile decisions of the Cour d’Appel de Paris and the Cour d’Appel de Rouen. 17 of the 1968 Brussels Convention. 612. In Coreck Maritime GmbH v. Art.
p. November 29. DMF 2001. “L’entrée en vigueur du règlement communautaire no 44-2001 du 22 décembre 2000 concernant la compétence judiciaire. pr. as opposed to “special acceptance”. 23 of the Regulation.. 46. will probably continue to apply under art. including Coreck Maritime (supra). by signature or rubber stamp. DMF 2003. no. Cour de Cassation. Gaudemet-Talon. 23 of EC Regulation 44/2001. 2002. Tassel (an arbitration clause). December 8.  ETL 193. 259. Nicolas. See also Cour d'Appel de Nìmes. note H.U. Cour de Cassation. 694. M. note P. Ph. 733. 1997 (The City of Durban). “L’autonomie de la clause de juridiction”. 1998 (The Silver Sky). DMF 1999. Cour de Cassation. Cour de Cassation. 17 of the Convention by the Court of Justice of the European Communities.366 Neither the mere possession of the bill of lading by the consignee or endorsee367 nor its “accomplishment” (i. Rèmond-Gouilloud. DMF 2000. obs. Bonassies. November 13.364 French courts have therefore held that in order to bind consignees and their subrogated underwriters. 41. DMF 1996. 218. la reconnaissance et l’exécution des décisions de justice en matière civile et commerciale”. 367 Cour de Cassation. January 16. P.-Y. P.363 In France. 684 at p. P. 41. Delebecque. endorsee or subrogated insurer.e. observations Ph. DMF 2003. Revue Scapel 2003. the consignee is not generally considered to be a mere successor to the rights of the shipper under the bill of lading. 1007. Ph. 93. 17 of the Brussels Convention 1968 and that the decisions rendered under art. DMF 1995. 366 Cour de Cassation. See also the commentary of P. Nicolas on the decision of the Cour d’Appel de Paris. Bulletin des transports 1997. d’Haussy. 2002 (The Aptmariner). December 8. DMF 1999. DMF 1997. note P. int. where the Court did not decide the point because it had not been pleaded by the defendants. Cour de Cassation.-Y. March 4. 74. 1994 (The Harmony and The Nagasaki). 209. November 28. no later than at the time of delivery. note P. DMF 1995. first para. of the bill of lading by the third party bearer of the bill. Bonassies. 72 at p. April 2. indicating that in France the consignee is not seen as a mere successor to the shipper’s rights as in certain other E. Rev. 11. 154. 2003. 1992. Delebecque. 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. 723.-Y. Delebecque. 2003 (The Houston Express).-Y Nicolas. 17. (The Sonara). March 4. obs. 1996 (The Fiona). 369 Cour de Cassation. obs. 556.369 See P. para. cr. DMF 1995. November 29. DMF 2003. 1996 (The Chang Ping). Tassel. 1996 (The Köln Atlantic). but doubtful. 2002 (The Elpa). 2000 (The Nuevo Leon). (The Silver Sky). May 27. Cour de Cassation. 2003 ETL 321. Delebecque in DMF Hors série no.59 verify the reality of the holder’s consent to the clause by reference to the requirements of art.368 It is unclear. November 14. DMF 1997. DMF 1995. note Y. States like Germany. Ph. cr. 1992. See also Cour de Cassation.  ETL 551. 364 See the commentary by P. DMF 1997. 705. obs.  ETL 727 at p. 393. but rather as either a true party. Cour de Cassation. 23 of EC Regulation 44/2001 is basically unchanged from art. May 26.-Y.  ETL 551. 14. Cour d’Appel de Paris. June 25. 1997 (The Tonia Bondarchuck). Cour de Cassation. November 29. 1998. 365 See generally Y. 2002 (The Aptmariner). amounts to such express acceptance. 1007. 572. 703. Revue Scapel 2003. referring only to “acceptance”. 363 . It would appear that the same principle will apply under the almost identical art.-Y. Cour de Cassation. 4. of the Convention. 99. 20. 1994 (The Stolt Osprey). to the bill of lading (a tripartite contract) or at least the beneficiary of a “stipulation pour autrui”. F. Bonassies on the decision of the European Court of Justice in the Castelleti decision of March 16. 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. together with the shipper and carrier. Nicolas. 339. although the commentary strongly suggests that such action would not constitute the “special acceptance” of the clause by the consignee required by French law. 2000. Bonassies. “Des clauses des connaissements maritimes attribuant compétence à une juridiction étrangère : essai de démystification”. indicating that art. 1999. June 25. Nicolas. October 15. whether the mere endorsement of the bill by the consignee. DMF 2003. obs. Nicolas. note P. obs. 368 Cour d’Appel de Rouen. obs.
2002 (The M/V Marimar). Appendix “F” at pp. 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. October 14. The Frank Pais  1 Lloyd's Rep. see also Batiffol et Lagarde. DMF 1998. in deciding whether a jurisdiction clause should be given effect. since not only the consignee.371 Where. 1981. 1991. has taken a major step towards that kind of unification. This is a basic principle of conflict of laws. 1994.. 371 Cour d’Appel de Paris. judged under German law. 304. see Tetley.K. he has been held to be bound by it. and only a short form bill was issued and signed by the shipper before being transferred to the consignee. L 266/1.372 XIII. DMF 1983. ”. however. O. obs.note. affirming Tribunal de Commerce de Paris. or France respectively. in the field of conflict of jurisdiction. 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. 370 . R. 337. 80/934/EEC. 380 at p. DMF 1976.1980. June 19. The Rome Convention 1980 on the Law Applicable to Contractual Obligations374 is a particularly advanced international instrument. December 16.60 When the jurisdiction clause was among the clauses printed only on the long form bill of lading.. since the latter is not deemed to have known of its contents. 89 at p. without actually reproducing the jurisdiction clause itself. such a clause was not enforceable as against the consignee. which Cour d’Appel de Paris. including the jurisdiction clause. Droit international privé. 372 See Cour d’Appel de Rouen. the U.10. EC Regulation 44/2001. The European Union. therefore. Achard. 530. uniform conflict rules are most helpful.. Here again. that clause will not be enforceable as against the third party holder. 479. 1032-1048.370 When the bill of lading has been issued under a charterparty and generally refers to the terms. 529 at p. 93. 374 Adopted at Rome. 688. a court. 373 The Iran Vojdan  2 Lloyd's Rep. International Conflict of Laws. Pierre Bonassies . For the text and a brief commentary. 1984. with the Brussels Convention 1968 and. November 27. Cour d'Appel de Paris.C. in a shipment from Hamburg via Bremen and Valencia to Dubai on an Iranian ship. See. found in the charterparty.E. however. an English Court held that German law had the closest and most real connection and the validity of the jurisdiction clause was. Jurisdiction Clauses Per Se . 333 at p. no. DMF 1985. January 5. 1997 (The Istanbul Z). more recently. but also the shipper could not have had proper notice of the existence of the clause. DMF 1985. 1976. must apply “the system of law with which the transaction has its closest and most real connection . 371. 9. 548. 383.S. 2) The law by which to judge the clause On the other hand. March 2.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.The Criteria .J. the consignee is proven to have been aware of the clause at or before the completion of delivery of the cargo. Bulletin des Transports 2003. 1980 and in force April 1. The principle emphasises how necessary it is to have uniform conflict of law rules. 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.373 In consequence.
” For an example of the application of art. that by art. 287. No. application for leave to appeal to the Supreme Court of Canada dismissed with costs and without reasons.  S. 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. June 12. 4(5). the court's discretion is based on a number of criteria in respect to the clause itself. November 18. Great Tempo S.C. 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. 1966. arts. 618. 1959. see Cour d’Appel de Paris. July 12.375 The Convention also establishes rebuttable presumptions to assist the court in determining the national law with which the case is most closely connected. 379 Hof van Beroep te Brussel. although the clause was found unenforceable because of lack of proof that it had been consented to by the shipper.Nicolas. 996. September 9. 2003 (The Houston Express0. Delebecque. Rome Convention 1980. 1999 (The Bonastar II). DMF 1999. 2000 (The Bunga Pelang).376 3) Discretion Although there is no general rule as to whether a court will honour a jurisdiction clause. All jurisdictions use roughly the same criteria. 1998 AMC 1864 (Fed. although such a clause was found to be quite frequent in bills of lading. absent any express or implied choice of law.  3 F. 684. C. see Cour d’Appel de Paris. 556.61 has harmonized choice of law in contractual matters for all Member States of the European Union. 2000 (The Nuevo Leon). note P. 418. Note. Ph.A. Revue Scapel 2003. 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. 1984. 377 February 2. DMF 2003. November 29. and has sometimes been enforced. March 4. March 4. the carrier was unable to adduce sufficient evidence to support its contention that its “principal place of business” was located in Hong Kong. 20.-Y. 4(4) in a bill of lading case. 2003. In some countries. November 30.  ETL 238.). arts.A. See also Jian Sheng Co. a) Clear and precise Unless the jurisdiction clause is clear and precise.A.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. For an example of the application of art. upheld Cour de Cassation.C.  ETL 780. obs. 2001. DMF 2001. and Cour de Cassation. DMF 1959. it should not be honoured because it will not allow the parties to know with certainty before which court they are to proceed. v. 4(2) to 4(4). 829. these presumptions “… shall be disregarded if it appears from the circumstances as a whole that the contract is more closely connected with another country. 3(1) and 4(1). 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. however. it has been held that a clause calling for suit “before the courts of England” Rome Convention 1980. 376 375 . a jurisdiction clause is not valid unless the name of the actual court is spelled out. DMF 2001. upheld by the Cour de Cassation. See Rechtbank van Koophandel te Antwerpen. 1037. 378 Cour d’Appel de Rouen.379 Similarly. 4(5) in such a case. DMF 2001. where. On the other hand.
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..S. DMF 1976. it was inapplicable. 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. 384 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. In consequence. jurisdiction and arbitration clauses in a charterparty were held to be invalid against a holder of a bill of lading when this document bore a simple reference to the “freight and conditions as per the charterparty” and the text of these clauses of the charterparty was not attached to the bill of lading. 293. see also Cour d’Appel de Paris. DMF 2001. 383  2 Lloyd's Rep. ”(emphasis added) was not held to bind the “ship” and an action in rem could therefore be taken in Italy. See also Cour de Cassation. 2000. and consequently. May 9. 1974. L. 542. June 27.A. July 20. One wonders. where clauses giving the carrier the option of suing in more than one court were held null and void. 1984. In The Lisboa.” in a bill of lading signed by the shipper. 1040. 2000. 1975. 80. See also Cour d’Appel de Rouen. 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. A note of E. November 30. 1973. DMF 1985. DMF 1975. in the United Kingdom. where the jurisdiction clause in a standard-form contract incorporated into a contract of carriage was held to be unenforceable. June 19. February 5. at the shipowner's option. 484. 1971. 35.381 On the other hand. DMF 1973. March 2.R.384 Where a bill of lading referred to a long form bill of lading. 381 The Media (1931) 41 Ll..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. 546 at p. Jurisdiction was to beat the port of destination (Calcutta) or. which in turn contained a jurisdiction clause. See also Cour d’Appel de Paris. 548 .62 is not sufficient. was held to be valid. 385 Cour d’Appel de Rouen. DMF 2001. 549 (C. nevertheless. if this is sufficient notice and is sufficiently certain. June 22. 1960. 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.S. DMF 1971. 336 and Cour d’Appel de Rouen. 380 . 1976. 335. Rep. b) Jurisdiction clauses by reference The reference in another document to a jurisdiction clause should be detailed and precise. 724. Revue Scapel 1996. 1995 (The Frauke). January 5. 382 Cour d’Appel de Douai.).383 a jurisdiction clause reading: “Any and all proceedings against the carrier shall be brought before the competent Court of London . 659. see also Cour d’Appel de Poitiers. DMF 1961. December 17.
407 U. para. or where it violates a strong public policy of the forum. 232. See also European Court of Justice. e) Plurality of defendants Where there is a plurality of defendants. he may be sued in the courts where any one of them is domiciled. 29.P. October 27. N. 390 Cour de Cassation. 296. 389 11 Z. Tribunal de Commerce de Marseille. referred to in The Iran Vojdan  2 Lloyd's Rep 380 at p.388 d) Legibility of the clause A jurisdiction clause is an exception.  ETL 270. DMF 1977. 392 See particularly the American decisions flowing from Bremen v. This decision ignores the argument that the shipowner and time charterer share the role of carrier and also that the shipowner is responsible for the fault of the charterer per art. February 4. 1. where it was held that. 387 386 . June 11. DMF 1999.387 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. 531. India Steamship Company389 declared a jurisdiction clause invalid. 143. of North America v.390 On the other hand. DMF 1983. 1998 (The Albasgracht). Bundesgerichtshof. Zapata Off-Shore Co.  ETL 217. obs. the Supreme Court of the Federal German Republic in Allianz v. See also the legislation of jurisdictions such as Australia. 235.1975. 616. at p. 1983. 1976. 6(1) of the 1968 Convention.D. 37 and Oberlandesgericht Dusseldorf. 1979. 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. the jurisdiction clause cannot apply if the circumstances of the case forbid dividing the action. DMF 1983. Cour d’Appel d’Aix. 388 Cour de Cassation. Note that under art. 6(1) of the Brussels Convention 1968). 1982. 383.63 damage action brought by a third party. 1965.A. 9. Ph. cited supra.A. May 30. February 2. the suits against the various defendants need only be connected. 1982. 1979-80 J. because the size of the print of the clause was too small. DMF 1983. May 11.c. will normally refuse to enforce a jurisdiction clause that appears fundamentally unfair. for the application of art.392 Insurance Co. October 15. in their discretion.S. which generally invalidates foreign jurisdiction clauses on the public policy ground that they oust the jurisdiction of local courts. See a note on the judgment at DMF 1983.391 f) Fairness and public policy Courts. New Zealand and South Africa. (France). 1982. 6(1) of the EC Regulation 44/2001 (similar to art. See also Cour de Cassation de Belgique. 1982. c. 295 at p. 391 Cour d’Appel de Paris. 1972 AMC 1407 (1972). 1974). Delebecque. 197980 J. 81. as where it seems to be the product of fraud or overreaching by the carrier or is inherently unjust or unreasonable. May 30. suit at the place of business of any one of the defendants can be convenient.R. 1384.Y. DMF 1965. In this regard. 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. 1. Cour d’Appel de Paris. November 20.S. not indivisible.P. 135/82. February 25. May 24.386 Similarly. the shipowner was held not bound by a jurisdiction clause in a bill of lading issued to the shipper by the time charterer. 1983. where a defendant domiciled in a Member State is one of a number of defendants. S. DMF 1983. Jotina 1974 AMC 1190 (S.
453 at p.). Davies. 33-41 of the New Code of Civil Procedure: these rules are of public order.3d 509 at p. at pp. 50(1) of the Federal Court Act.396 If the court does not have jurisdiction over the subject matter. Rosa 211 F. Bastarache J. “ordinary” forum non conveniens cases]. and the burden of proof has been deemed to be different as well. In Canada.R. (4th) 577 at p. The Ship Capricorn  2 S. the Federal Court of Canada has the jurisdiction to construe its originating act and especially heads of maritime jurisdiction set out in sect.64 XIV. See also Antares Shipping v.C. 75-99.K.C. under sect. 513 (9 Cir. c.. France. and where the plaintiff has the burden of showing why a stay should not be granted.R. 463.J. 422 at pp.K.V.I. 1289 “In the latter inquiry [i. In the U. 1981. see sect. but the presence of a forum selection clause in the former is. because so often plaintiffs take suit in “… the quintessentially convenient forum for the defendant – the defendant’s home forum”. 587.C. 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.393 Nevertheless.” 395 In the U. in my view. 393 . 368.S. I am not convinced that a unified approach to forum non conveniens. In both cases. 2003 AMC 1280 at pp. 456 (H. AMC at p.S. Mar.. is preferable. c. 1288-1289. ECU-Line N. however.R.L.e. the specific principles and tests used in forum non conveniens cases for determining the “natural forum” have been articulated in different language from those applied in deciding whether or not to give effect to jurisdiction/arbitration clauses. where a choice of jurisdiction clause constitutes but one factor to be considered. 22 of the Act. Astro Dinamico  1 Lloyd's Rep.L. Code sect. see also Williams & Glyn's Bank v. 49-51 and the declinatory exceptions described at arts.R. D. sufficiently important to warrant a different test.” 394 Ibid. 588. cited by M.. In France. “Forum Selection Clauses in Maritime Cases” (2003) 27 Tul. by virtue of the legislation which establishes them. 54. the burden is normally on the defendant to show why a stay should be granted. see 28 U. Jurisdiction cannot be accepted nor can suit be stayed. 396 The jurisdiction of the plaintiff’s chosen forum over the subject-matter of the dispute is often not an issue. 1985. one where the starting point is that parties should be held to their bargain. CJ.S.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.7. R. 450 at p. 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. 463-464. See also arts.R. The burden is therefore initially on the claimant (plaintiff) to prove the jurisdiction of the forum. 1333.L. 367 at p. then the suit must be dismissed. see the rules governing the court's jurisdiction ratione materiae (compétence d'attribution) set out at arts. 42-48 of the New Code of Civil Procedure: these rules are not of public order. (4th) at p. (2003) 224 D. Burden of Proof – Forum Non Conveniens and Jurisdiction Clauses A motion for a stay of proceedings on grounds of forum non conveniens (where there is no jurisdiction or arbitration clause to contend with) and a motion for a stay of proceedings because of a jurisdiction or an arbitration clause in the relevant contract are similar. Pompey v. S. 2000). as a civil law jurisdiction. 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.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.  1 S. note 2. Fortunately. See also the rules governing the court's jurisdiction ratione personae or loci (compétence territoriale) set out at arts. See Ravelo Monegro v. L.C. 439-440 per Laskin. does not have forum non conveniens. 49 of the Supreme Court Act 1981. In Z. U.C.
S. 501 at p. 5) Thereafter.V. 1414 (1972). 10. 2002). Pompey v. 1972 AMC 1407 at p. 15.R. the party (usually the defendant) wishing to rely on the clause must prove that the clause applies to the suit and to the parties at hand. etc. 1958). 399 See In re Air Crash Disaster Near New Orleans. 464. 397 . 1975).S. 71 (5 Cir. 1418.Y. (2003) 224 D. who brings suit in a forum other than the contractually agreed one. 1164.C.D. that the clause is legible. 402 407 U. Only by making such proof can the plaintiff hope to be released from his bargain to sue or arbitrate elsewhere. Tel Aviv 711 F. quoted in Carbon Black Export v. Some Circuits tend to apply the 330 U. Lloyd’s of London 94 F. 359 U. Inc. Vaasa Line Oy. however. 464. There is no unanimity among American courts. 1958 AMC 1335 at p. 1996). 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.” Dukane Fabrics v. and 1972 AMC at p.e.R. 821 F. N.2d 1147 at p. 202. 2003 AMC 1280 at p. 1341 (5 Cir.C. relying on M/S Bremen v.S. the party who challenges the jurisdiction clause (usually the plaintiff) has the burden of establishing why a stay should not be granted400 (i. (4th) 577 at p. 928 (4 Cir. Hre1jin 600 F. 1983). 450 at p. 1235. “Thus. upheld in the Supreme Court. it was held in Acciai Speciali Terni USA. 588. 588. See also Allen v. 403 181 F. 450 at p.  1 S. that the clause is validly incorporated into the contract of carriage. where the Court stated. 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).”403 XV. Gilbert:397 “But unless the balance is strongly in favour of the defendant. 1959 AMC 1327 (1959). 1987 AMC 2735 at p. 1289. the party (defendant) attempting to change jurisdiction has the burden of proof as to why the stay of proceedings should be granted. Pompey v.399 4) If there is a jurisdiction clause. Zapata Off-Shore Co. and that there has been notice to the other party. Supp. why the contractually stipulated jurisdiction. Md. Staying Suit -All Jurisdictions In the United States.65 3) Once it is shown that the forum has jurisdiction over the subject matter of the suit.I. to make a ‘strong showing’ that the court should exercise jurisdiction in derogation of the contract. 1973 (S. 398 See also Z. 1985 AMC 67 at p.2d 297 at p. 2003 AMC 1280 at p.R.402 Citing the same precedent. as to the precise legal basis for such unconditional dismissals.D. 1289. 400 Z. 180. 531 (D. Supp. 1985 AMC 1192 (S. 2760 (1987). M/V Berane. 301.L. La. Monroga 254 F. that: “The seminal Supreme Court decision enforcing a forum selection clause places the burden on the plaintiff. 462.  1 S. courts frequently dismiss suits instituted in breach of valid foreign jurisdiction or foreign arbitration clauses.2d 1231 at p. properly defines the other jurisdiction. v. Thus in Kooperativa Forbundet v. ECU-Line N. As was said in Gulf Oil v.I. (2003) 224 D. the plaintiff's choice of forum should rarely be disturbed.S. (4th) 577 at p. 1 at p.R. S. 508.3d 923 at p. N. and also quoted in Perusahaan Umum v. 1985). to which he has (presumably) agreed.Y.S.401 it was held: “This is a forum-selection clause and it is prima facie valid and enforceable”. 401 1975 AMC 1972 at p. See also 407 U. ECU-Line N.2d 458 at p. at p.V. 2002 AMC 528 at p.”398 The party seeking the forum non conveniens dismissal must convince the court of every element of the forum non conveniens analysis.L.
supra at p. 1996). whereby the courts seized of the motion to enforce the clause does not deny its own jurisdiction. Ltd. M/V Hyundai Liberty 294 F. v.C. 2001).Y. Inc. Co. 367 at pp.408 Where a court. “Forum Selection Clauses in Maritime Cases” (2002) 27 Tul. Inc. N. by contrast. 2001. Longwall-Associates.P.). Continental Ins. Frietsch v. Kukje Hwajae Ins. 408 See. 1998). L. 1975 AMC 631 at p. Orient Overseas Line 1976 AMC 212 at p. of Canada v.3d 825 ast p. v. ibid.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). Supp. for example. 324. Davies. Ulysses Cruises.” 404 . 376. Davies. 407-408. but merely declines to exercise it. 606. 407 Licensed Practical Nurses.D.S.D. for example. 867 F. Co. 2000 AMC 2947 at pp. Lauro Lines 387 F. 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. 2002 AMC 1598 at p. Va. 1995). 1999). 630.D. Allianz Ins. 119 at p. 444-445 (High C. Va. the date of the filing of this lawsuit” See also Snam Progetti S.2d 206 at p. Co. v. M/V Orsula 354 F. Supp.A..g. 131 F. People’s Ins. Fourth Circuit decisions such as Jewel Seafooods Ltd. on the time for suit defence being waived and on appropriate security being filed.3d 603 at p.3d 1207 at p. The El Amria 1981] 2 Lloyd’s Rep. Kysar 983 F. Inc. 1993). 405 See.J. 886-887 (S. particularly as a stay would permit the U. 1989). Rules 12(b)(1) (dismissal for want of subject-matter jurisdiction). 1112. COGSA applies and the foreign court reduced the rights of cargo claimants below the minimum guaranteed by U. S. 1601 (9 Cir. Inc. Wharf (Holdings) Ltd. v. unreported. For a thorough analysis of the differing approaches of different American circuit courts of appeal to this matter. 418 at pp.A. Abatement is the dismissal of the action. 207 (7 Cir. Cir. This preserves the legitimate rights of the claimant as to time for suit and other unknowns and imponderables (e. Vetrerie Riunite. Supp. v. London 148 F. 2003). 2004 AMC 172 at p. 188 C.2d 393 at pp. 2055 (D.S. 633 (S.2d 697 at p. 406 See.S. 698 (D. Co. 1974): “Defendant's motion to dismiss this case on the ground of forum non conveniens is hereby granted without prejudice to the commencement of a similar suit in another jurisdiction and on condition that defendant waive any time bar defense not presently available to it in the present action. 131 F. Lipcon v.Y.Y. Co. 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. Corporation of Lloyd’s 999 F. 410 Hartford Fire Ins. for example. and even whether the other court will accept jurisdiction). Underwriters at Lloyd’s. Akai Pty. June 12. 2000). 2000). M/V Peace River 39 F. Technicians & Health Care Workers of N.R. N. 56 F. See. 2001 U. v. 1993). judgments staying suit will be conditional on the defendant agreeing to appear and appearing in the new jurisdiction. whether service may be made. 1975.2d 1110 at p.66 Federal Rules of Civil Procedure. v. COGSA. Cho Yang Shipping Co. 1222 (10 Cir. stays would seem preferable to unconditional dismissals. forum selection clauses and foreign arbitration clauses are typically enforced not by dismissals. v.D.A. 210 F. Inc. cited by M. Dis. 369-376. Supp. 214 (W. S. 830 (7 Cir. 2001 WL 667804. v. In foreign forum selection clause cases too. 322 at p. 1290 (11 Cir.D.L. M. 123 (C. faced with a motion of forum non conveniens. v. 789-790. Lambert . Wash. 2002). 2000). court to re-assume jurisdiction in situations where U. see M. Inc. Lexis 8113 (W.3d 1171 at p. of Aust. note 1 (1 Cir. but rather by stays of proceedings. it is preferable that the court stay proceedings409 rather than dismiss them. 1174. 2d 787 at pp.S. 175 (7 Cir. Hugel v. for example.407 In England and Commonwealth countries. Refco. Davies.406 The inherent power of the court to regulate its own proceedings can also be applied either to dismiss or to stay proceedings. 2948-2949 (E. Very often. GmbH..v. United Int’l Holdings.3d 1285 at p. 2001 AMC 869 at pp.C. 1999 AMC 2053 at p.2d 628 at p.p. has jurisdiction.410 This is an intelligent and proper approach. Wolfgang Preinfalk. Commerce Consultants Int’l. Mar.
956 F. Cir.C.C. For Australia. see Amchem Products Inc. in Amchem Corp.R.C. Australia Ltd. Airbus Industrie GIE v.2d 888 (5 Cir. Anti-Suit Injunctions Anti-suit injunctions are closely related to forum non conveniens. 414-415. however. Lee Kui Jak  A.). and Others (1997) 146 A. 119 at p.C. because anti-suit injunctions interfere.). v.L. 138. Sabena Belgian World Airlines 731 F.  2 Lloyd’s Rep.C.R.C. v.C. to prevent parties from See the discussion of the six steps in this process surrounding notes 12 to 15. Sabena Belgian World airlines 731 F. 1988 AMC 880 (2 Cir. 1987): Gau Shan Co. 425 (H..L. 414 See. In Canada. The acceptance of anti-suit injunctions has become widespread. had it applied the forum’s principles of forum non conveniens.). British Columbia (Workers’ Compensation Board)  1 S. For Canada. Laker Airways Ltd.). rev’d on other grounds. 24.2d 33. 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.L.. 897. where the House of Lords referred to the “… indirect interference with the foreign court which an anti-suit injunction entails. Assurantie Maatschappij ‘de Zeven Provincien’  A. v. Donohue v. 95 (H. 1998 AMC 334 (S.C. see CSR Ltd.C. 1984).). aff’d 161 F. China Trade & Development Corp. Grovit (Case No. 1998). 631 (H. Laker Airways Ltd. See Laker Airways Ltd.412 The forum court will only grant an anti-suit injunction where it is convinced that it is an appropriate forum for the litigation. April 27. 897. Co. 317 (H. 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. M. 893 (P. 631 at p. would have had a reasonable basis for concluding that there was no clearly more appropriate alternative forum. In re Unterweser Reederei. contrary to the principle of comity. 1992). GmbH 428 F. 1999 AMC 305 (2 Cir. because of its real and substantial connection with the case. 1970).2d 909 (D.R.S. 402 (H. International Maritime and Admiralty Law.J.S. 412 411 . on the other hand. for example. and that the injunction is necessary to prevent and injustice. and the foreign court has taken.  1 Lloyd’s Rep. In addition. Airbus Industrie GIE v. or is about to assume. In re Unterweser Reederei. 631 at p. The Second. Sixth and District of Columbia Circuits.). 58 at p. 871 at p.L. Farrell Lines Inc. See other examples cited in Tetley.  1 Lloyd’s Rep. 119 at p. under pain of contempt of court. at least indirectly. 407 U. In the U.2d 909 (D. For the U. v.  1 Lloyd’s Rep.” See also Turner v.414 They have also been issued.K. Choon Yong 837 F. 413 See. oppressive or will otherwise cause inequitable hardship. British Columbia (Workers’Compensation Board)  1 S. iCigna Ins.L. the Fifth.S. see. rev’d on other grounds.2d 888 (5 Cir. British Airways Board v. jurisdiction. v. the injunction should only be granted if the forum court decides that the foreign court. Where a party has already taken suit in a foreign jurisdiction or is about to do so. Seventh and Ninth Circuits have issued anti-suit injunctions where the foreign proceedings are vexatious. Bankers Trust Co. v. of Aust. Patel  1 A. N.C.L. Airbus Industrie v. The Six Steps Applied The decision as to whether or not to stay proceedings completes the sixth and final step of the entire process of determining where the action or arbitration will occur.  A. Ceres Terminals Inc. Armco  1 Lloyd’s Rep.C.). C-159/02). 1970). for example. Patel  1 A.2d 1349 (6 Cir. v. British Airways Board 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. GmbH 428 F. 407 U.  A. supra. Cir. 1 (1972). Laker Airways Ltd. 1984). for example. 1998). For the U.)..67 XVI.411 XVII.C. v.S. 58 (H. see. 637 (H. where the foreign proceedings are viewed by the domestic court as vexatious or oppressive or unconscionable.L. Patel  1 A. 1 (1972). which involves a forum non conveniens type of analysis. 640. 2003 at pp.D. v.Y. 2004 (E.V.C. SNI Aérospatiale v. for example.). for example. 123. with the jurisdiction of foreign courts.3d 115. for example. infra.413 they are issued only sparingly. In general. 119.C. See. South Carolina Ins.
). Grovit (Case No. The ECJ endorsed the opinion expressed by Advocate General Ruiz-Jarabo Colomer in Turner v. that courts of States party to the Brussels Convention 1968417 have no jurisdiction to grant anti-suit injunctions in order to restrain the commencement or continuation of litigation in the courts of other States party to the Convention. 420 Ibid. Grovit. and which came into force 415 .422 which replaced the Brussels Convention as of March 1. as such. in Turner v. 2004 at paras.) (bill of lading arbitration clause). See also the case comment by D. however. Such an assessment runs counter to the principle of mutual trust which.A.).R. at para. Any injunction prohibiting a claimant from bringing such an action must be seen as constituting interference with the jurisdiction of the foreign court which.68 breaching exclusive foreign jurisdiction or foreign arbitration clauses in contracts. restraining a party from commencing or continuing proceedings before a foreign court undermines the latter court's jurisdiction to determine the dispute. Grovit (Case No.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. as pointed out in paragraphs 24 to 26 of this judgment.J. The Bergen  1 Lloyd’s Rep. September 27. 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. is incompatible with the system of the Convention. C-159/02). 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. 380 and The Bergen (No. Rhidian Thomas. The Angelic Grace  1 Lloyd’s Rep. 216 (E. 422 EC Regulation 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. 710 (bill of lading jurisdiction clause). leave to appeal to House of Lords refused (charterparty arbitration clause). including bills of lading. C-159/02). 107 (H. adopted by the Council of the European Union on December 22.420 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. from reviewing the jurisdiction of the court of another member State. April 27. 509 (C.A. at para. 2000. on a preliminary reference from the House of Lords in Turner v. The Epsilon Rosa  2 Lloyd’s Rep. underpins the Convention and prohibits a court.L." 421 Ibid. 419 Turner v. 417 Convention on Jurisdiction and the Recognition of Judgments in Civil and Commercial Matters. 418 See the judgment of the European Court of Justice. 29 and 30 of the ECJ decision.C. 2002 for all Continental Bank NA v. Grovit." 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. 1968.415 The Court of Justice of the European Communities. (2004) 10 JIML 134. reported in  1 Lloyd’s Rep.). backed by a penalty. 2004. the judgment made as to the abusive nature of that conduct implies an assessment of the appropriateness of bringing proceedings before a court of another Member State.L. 2)  2 Lloyd’s Rep. 416  1 W. except in special circumstances which are not applicable in this case.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. 87 (C.416 has held. 505 (C. adopted at Brussels.A. Aeakos Compania Naviera SA  1 Lloyd’s Rep. 24 and 25. 27. See paras.) (exclusive jurisdiction clause in loan agreement). April 27.
505 (C.A. the court second seized must decline its jurisdiction. 27 of which is similar to art.425 While the issuance of anti-suit injunctions as between E. 27 over art.J. thus reversing the controversial English decision in Continental Bank NA v.U. This is a positive development. unless and until the court first seized declines jurisdiction. under the Brussels Convention 1968. it is the court where the proceedings were taken. 17 of the Convention) to decline jurisdiction in the face of a valid clause attributing exclusive jurisdiction to the court second seized. being the court “first seized” within the meaning of art. MISAT SrL.C. such injunctions arguably continue to be available in cases where neither the Brussels Convention and E. In consequence. v. Baatz points out that the Gasser decision puts an end to a longstanding controversy as to whether it is the court “first seized” under art.69 E.). 29. L 12/1 to L 12/23.U. may not rule on its jurisdiction. 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. see DMF 2004. except Denmark. 21 of the Convention. anti-suit injunctions now seem to be unnecessary as between courts in Brussels Convention and EC Regulation 44/2001 States. in alleged violation of a clause conferring exclusive jurisdiction on a court in another such State. 21 of the Brussels Convention 1968 or the court designated by the jurisdiction clause under art. Gasser thus promises to also ensure the supremacy of art. Regulation 44/2001 applies (e. see O. Member States therefore seems to be a thing of the past. Rhidian Thomas.E. See also the critical commentary of the Gasser decision by D. 21. Member States except Denmark.C. 425 See Y. it is the court first seized of the dispute. in effect. even if proceedings there are protracted. Baatz.). “Who Decides on Jurisdiction Clauses?” in  LMCLQ 25 at p.  1 Lloyd’s Rep. 21 and 17 respectively of the Brussels Convention 1968. Denmark continues to be governed by the Brussels Convention 1968. . 23 of EC Regulation 44/2001. The court designated by the clause and before which proceedings are subsequently taken on the basis of that agreed jurisdiction. 424 (Case C-116/02). 2002. 21 of the Brussels Convention 1968.) and subsequent decisions such as OT Africa Line Ltd. that is entitled to decide whether it has jurisdiction in the light of the clause. In this way. and possibly also in cases within the in all Member States of the European Union. For the text. 423 See the case comment by Renaud Carrier. that decides on its jurisdiction in the light of the clause.U. art. consistent with the historic principle of comity in private international law and the increased judicial integration of Europe since 1968. The decision constitutes the triumph of art.J. "Anti-Suit Injunction: La CJCE met fin à un anachronisme" DMF 2004. 76.423 Moreover. (2004) 10 JIML 131. Hijazy (The Kribi)  1 Lloyd’s Rep. if the court first seized establishes its jurisdiction to try the dispute (e. where the initial proceedings in such a case are instituted before a court in a Brussels Convention State. because the court first seized is obliged (by art. 403. On the other hand. render anti-suit injunctions unnecessary. For the official French text of this decision. where a jurisdiction clause is involved. being the court “second seized”. on March 1. corresponding to arts. Aeakos Compania Naviera SA  1 Lloyd’s Rep. which is entitled to rule first on whether or not it has jurisdiction to try a dispute.C. The application of this rule will.g. In Gasser GmbH v. to prohibit the institution or prosecution of litigation in jurisdictions outside the E. because the jurisdiction clause is not valid or is not exclusive). 222 (E. 17 of the Convention. 413.424 the Court of Justice of the European Communities held that. The Gasser decision will likely also apply to the determination of jurisdiction under EC Regulation 44/2001. 21 over art. within the meaning of art. 17. as a result of another development in European law.g. but must stay the proceedings before it of its own motion.
for example.U. 32(1) in cases not subject to either the Brussels Convention 1968 or the E. in particular art. 3155(1) (lack of jurisdiction) and (5) (manifest inconsistency with public order as understood in international relations). holding that the first seized rule of art. Non-Recognition of Foreign Judgments Where a party to a jurisdiction or arbitration clause or agreement requiring suit or arbitration in one country institutes legal or arbitral proceedings in another country contrary to his contractual bargain. Civil Jurisdiction and Judgments. and E. 428 See. The Hari Bhum  1 Lloyd’s Rep.. 35(3)). involving arbitration clauses. lack of jurisdiction may not be invoked to refuse recognition to a judgment rendered in another Member State (Brussels Convention. June 21. art.T. For the U. 206 at p. for example. 2002.C. For France. V(1)(d) (composition of the arbitral tribunal or arbitral procedure not in accordance with agreement of parties) and art. June 10. and also disregards an anti-suit injunction prohibiting him from commencing or continuing such proceedings. the Brussels Convention 1968 at art. 7. 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. adopted at Geneva. Regulation. See.11 at p. at art. 2002. See also Briggs and Rees.S. arbitration being excluded from both the scope of both the Brussels Convention and the EC Regulation. corresponding to art.U.302. 427 See. art. 27 of EC Regulation 44/2001 did not apply to an arbitration clause. 27(1) or the Regulation’s art. See also the corresponding provisions of the UNCITRAL Model Law on International Commercial Arbitration.N.A. c. The decision invoked a similar decision rendered under art. 1958. 21 of the Brussels Convention 1968. so that it was not necessary to stay proceedings until the Finnish Court had ruled on its jurisdiction in the light of the clause. 1959.427 Even if no anti-suit injunction has been issued. 34(1). 36(1)(a)(iv) and art. para. Clunet 1964. V(2) (recognition or enforcement not in accordance with public policy of country where recognition and enforcement are sought). v. 28.426 XVIII. 73 at p. In cases subject to the Convention or the Regulation. the Québec Civil Code 1994. third para. 1982. 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. 1985.C. sect. See also EC Regulation 44/2001. Regulation 44/2001. because the Regulation did not apply to arbitration. 106. on the ground that it violates public policy. 3. as in other contracts. see the Civil Jurisdiction and Judgments Act 1982. the decision may be refused recognition and enforcement in the contractual forum. 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. 439. 3 Ed. Civil Jurisdiction and Judgment. Bamberger  I. See also Phillip Alexander Securities and Futures Ltd. para.) and The Hari Bhum  1 Lloyd’s Rep. being The Ivan Zagubanski  1 Lloyd’s Rep. note Goldman.70 E. See Briggs & Rees. for example.K. 27(1) of the Brussels Convention 1968. 115 (C. 215. 426 . and actually obtains a judgment or award from the foreign authority.. State contrary to an anti-suit injunction issued in England in support of an English arbitration clause. 27. art.L. 1(2)(d). 429 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention 1958”).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. and a powerful defence against attempts to circumvent them.. by virtue of its art. 206 at p. 36(1)(b)(ii). 5. 3 Ed. 27(1). 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.429 These basic conflict of law principles and rules constitute a strong support for jurisdiction and arbitration clauses in bills of lading.Pr.K. U. in force June 7. 330 U. adopted at New York. 212. 34(1).49 at pp. art. 391-392..
provide the cargo claimant with options of places in which to sue or arbitrate. 431 See Donohue v.B. Ltd.A. supporting the availability of contractual damages as a sanction for the breach of an exclusive English jurisdiction clause. Civil Jurisdiction and Judgments.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. but nevertheless suggesting that an alternative basis for such damage awards may be found in English tort law (e. It has been recognized for some time that contractual damages may be awarded for the violation of an agreement to arbitrate in England. 430 . 432 See D. Carapelli SpA  1 Lloyd’s Rep. 1517 at pp. The Hamburg Rules and the Multimodal Convention. in the tort of malicious prosecution and/or the tort of unlawful interference with business or trade). “Breaking promises to litigate in a particular forum: are damages an appropriate remedy?”  LMCLQ 435. inquiring into: 1) its own jurisdiction. for example. para. the designated jurisdiction frequently has little. 375 (C. and 6) the propriety of granting or refusing a stay of proceedings.). Zoller  1 W. of which he may avail himself notwithstanding See. But see also L.R. 25 (H. 293-296.g. Doleman & Sons v. 2) any legislative constraints on that jurisdiction. 4.L. 5) the in rem and/or in personam nature of the suit. however. the possibility of such damages also being awarded for breaches of exclusive English jurisdiction clauses has also been recognized by English courts. See also Chee Ho Tham.). When such contestation arises. according to a specified national law or international carriage by sea convention. See also A.C. The forum selection clause is usually a “boilerplate” term of the bill. the forum court usually follows a six-step process.A. Yeo.432 XX. 3 Ed. and A/S D/S Svendborg D/S of 1912 A/S Bodies Corporate trading in partnership as ‘Maersk Sealand’ v. seldom negotiated or expressly consented to by the shipper or the consignee. Neither the Hague Rules nor the Hague/Visby Rules regulate jurisdiction or arbitration.L.. Mantovani v. forum selection and arbitration agreements may now be further reinforced (in England at least) by the awarding of damages for their breach. Tan & N. comparing the two positions and arguing that contractual damages for such breaches are problematic because of basic differences between arbitration and jurisdiction clauses.). Armco  1 Lloyd’s Rep. It is therefore scarcely surprising that “choice of forum” clauses tend to be contested. unreported. London. “Damages for breach of English jurisdiction clauses: more than meets the eye”  LMCLQ 46. This development appears somewhat controversial within the British academic circles.A. Ho. 4) the wording and effect of the clause in the bill or incorporated document (e. 257 (C.430 More recently.71 XIX. Akar  EWHC 797. Union Discount Co. a charterparty). if any. v. 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.). In addition. 1524 and 1527 (C. who criticizes this development. on the other hand. 2002.26 at pp. Briggs & P. 3) the appropriateness of sending the case elsewhere for trial or arbitration. Rees. 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. connection with the parties and their contract and is typically more convenient to the carrier than to cargo.g. “Anti-suit injunctions in cross-border insolvency: A restatement” (2003) 52 ICLQ 697. Ossett Corporation  3 K.
123-124 (C. courts in such nations are thrown back on their national law in assessing the enforceability of the impugned clause. as well as convenience and expense for the parties and the juridical advantages and disadvantages of proceeding in one or other venue. 237. 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.g. has permitted Canadian suit or arbitration. is the clearly more appropriate venue for adjudicating the dispute. on grounds of forum non conveniens. the forum non conveniens analysis has been articulated differently and it also requires the plaintiff.). Most standard forum selection provisions in bills of lading would be enforceable under those rules. 435  2 Lloyd's Rep. as a condition of release from his jurisdictional “bargain”. however. however. far from uniform in this important area. British and Commonwealth courts.433 The options enable claimants to institute proceedings in places having some genuine connection with the contract of carriage and its performance. although such laws typically treat arbitration clauses more liberally than jurisdiction clauses. the Lugano Convention 1988. It is by no means easy. at the cargo claimant’s option. In Europe. and now EC Regulation 44/2001 on jurisdiction and the enforcement of judgments in civil and commercial matters. 119 at pp. following the principles laid down in The Eleftheria434 and The El Amria. the Nouveau code de procédure civile lays down strict criteria under which contractual forum selection provisions will be upheld. Australia.72 any inconsistent forum selection or arbitration clause in the bill of lading. where the relevant clause is written or evidenced in writing. in international shipments to and/or from their ports. In French internal law. or reflects established practices between the parties. 434  1 Lloyd's Rep. explains much of the unwillingness of major shipping nations to becoming party to the Hamburg regime. In the presence of a jurisdiction or arbitration clause. National legislation in certain countries (e. in ordering stays of proceedings. rather than the defendant. the Brussels Convention 1968. however. where such an option would be available if the Hamburg Rules applied to the contract of carriage. despite a foreign forum selection or foreign arbitration clause. by comparison. and genuinely agreed to by the shipper and consignee. so as to send the case to its “natural forum”. Where no statute prohibits or restricts jurisdiction clauses. all permit choice of forum by contract. to establish that the local forum court. Because few major shipping nations are party to the Hamburg or the Multimodal conventions. New Zealand and South Africa) prohibits parties from “ousting” the jurisdiction of the national courts by way of forum selection clauses. connections with the competing jurisdictions and the law applicable to the dispute. in its Marine Liability Act. clear and apparent on the face of the bill of lading. Canada. or generally conforms to international usage in the trade concerned. including the location of witnesses and evidence.A. Courts in common law countries and some mixed jurisdictions are empowered to exercise discretion.435 require the plaintiff to show “strong cause” why he should be permitted to proceed elsewhere than where the contract stipulates. National law is. unfortunately. 433 . requiring them to be between merchants. All relevant circumstances are considered. rather than the contractually designated one.
C. . carriers. Jurisdiction and arbitration of marine cargo claims thus remains a controversial issue and an ongoing challenge for maritime carriage of goods law everywhere. 1.S.law. where since the Bremen436 and Sky Reefer437 were decided.73 forum clause applicable to the claim. in a more uniform manner than at present.ca/ 436 437 407 U. A fair and effective international cargo liability regime must strive to resolve this important problem. obliging cargo claimants to meet the heavier onus of proving that enforcement of the clause would be unreasonable. the importance of the convenience of the litigants and the connections of the case have declined in significance. 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. 1995 AMC 1817 (1995). Q.tetley@mcgill. Nor is it easy in the United States. receivers and underwriters are to be well served in the years ahead. Prof. because they have been found incompatible with the Brussels Convention 1968 (and presumably with EC Regulation 44/2001 as well). 528.S. 515 U. Canada e-mail: william. In consequence. if shippers. 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. Anti-suit injunctions can be. Quebec. William Tetley. fraudulent or repugnant to public policy – a daunting task. and because they may be unnecessary in the light of recent interpretation of the provisions of those instruments. and are. 1972 AMC 1407 (1972).ca website: http://tetley. but within Europe it increasingly appears that their employment to enforce jurisdiction clauses is invalid. Faculty of Law McGill University Montreal.mcgill. used to enforce jurisdiction and arbitration clauses.
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