Jurisdiction

JURISDICTION CLAUSES AND FORUM NON CONVENIENS IN THE CARRIAGE OF GOODS BY SEA© Prof. William Tetley, Q.C.∗ INDEX Preface I. II. III. Introduction Choice of Jurisdiction – Six Steps to Follow International Carriage of Goods Conventions and Choice of Jurisdiction 1) 2) 3) 4) IV. V. VI. The Hague Rules 1924 The Hague/Visby Rules 1968/1979 The Hamburg Rules 1978 The Multimodal Convention 1980 Jurisdiction Clauses Invalid under National Law Jurisdiction Clauses Restricted by National Law Jurisdiction Clauses Restricted by European Law 1) 2) 3) The Brussels Convention 1968 EC Regulation 44/2001 Other conventions VII. Is There a More Convenient Jurisdiction? VIII. United States - Forum Non Conveniens 1) 2) 3) ∗ Private and public interest factors Forum non conveniens –not a characteristic feature of U.S. general maritime law Admiralty - no special restrictive rule Professor of Law, McGill University; Distinguished Visiting Professor of Maritime and Commercial Law, Tulane University; counsel to Langlois Kronström Desjardins (Langlois Gaudreau O’Connor) of Montreal. The author is indebted to Vanessa Rochester, a third-year student at the Faculty of Law of McGill University and to Robert C. Wilkins, B.A., B.C.L., for their assistance with the preparation and correction of the text. 2 4) XI. Forum non conveniens and in rem jurisdiction United States – Foreign Forum Selection Clauses in Bills of Lading 1) 2) 3) 4) Foreign jurisdiction clauses generally unenforceable Foreign jurisdiction clauses presumptively valid Foreign arbitration clauses presumptively valid Criteria as to enforcement - U.S. a) Is U.S. law being avoided? b) The parties should not lose rights already acquired c) The convenience of the new jurisdiction is less important today d) Must not contravene sect. 3(8) e) Reasonableness f) In rem - United States g) Transfer within the U.S. Jurisdiction clauses and third parties 5) X. The United Kingdom - Forum Non Conveniens 1) 2) 3) 4) 5) 6) 7) Introduction The modern regime – U.K. The rule in The El Amria Res judicata Public policy, English law U.K. - E.U. – EC Regulation 44/2001 Service out of jurisdiction - The 1982 Act and CPR Rule 6.20 a) Where leave is not required b) Where the court's leave is required 8) No service of a claim form in rem out of jurisdiction Canada - Forum Non Conveniens 1) 2) Introduction - the principle Jurisdiction clauses - the criteria - Canada XI. XII. France 1) 2) 3) 4) 5) Introduction Prohibition under law French domestic law - jurisdiction clauses France and the 1968 and 1978 Conventions Opposability to consignee and endorsees XIII. Jurisdiction Clauses Per Se - The Criteria - All Jurisdictions 1) The conflict of law rules 3 2) 3) The law by which to judge the clause Discretion a) Clear and precise b) Jurisdiction clauses by reference c) Jurisdiction clauses and third parties d) Legibility of the clause e) Plurality of defendants XIV. Burden of Proof – Forum Non Conveniens and Jurisdiction Clauses XV . Staying Suit -All Jurisdictions XVI. The Six Steps Applied XVII. Anti-Suit Injunctions XVIII. Non-Recognition of Foreign Judgments and Awards XIX. Damages for Breach of Jurisdiction and Arbitration Clauses and Agreements XVIII. Conclusion I have known him for twenty-five years as a devoted and very competent law teacher.A. which is much more difficult. as a scholar.C. order and direction. CANADA ∗ Professor of Law.L.∗ Preface PROFESSOR ROBERT FORCE It is an especial pleasure to join with colleagues from around the world in honouring Robert Force. for their assistance with the preparation and correction of the text. William Tetley.C. William Tetley. With appreciation and gratitude. Distinguished Visiting Professor of Maritime and Commercial Law. The author is indebted to Vanessa Rochester. Bob Force combines all this with a happy. as well as a researcher. counsel to Langlois Kronström Desjardins (Langlois Gaudreau O’Connor) of Montreal. An esteemed chef. He is also an administrator who.4 JURISDICTION AND FORUM NON CONVENIENS IN THE CARRIAGE OF GOODS BY SEA Prof. so that the Tulane Maritime Law program is outranked nowhere else. took the great tradition of maritime law teaching at Tulane and gave it form. McGill University. B. Wilkins. B. analyst and writer on law – in other words. Johnsen Professor of Maritime Law at Tulane University Law School. a doctor son and what could be a spoiled grandson. He has been happily married to Ruth for 42 years. Q. Professor McGill Law Faculty Montreal. has a lawyer son. judge of good wine and remarkable and generous host. Niels F. a third-year student at the Faculty of Law of McGill University and to Robert C.. as Director of the Tulane Maritime Law Center.C. he can also be a pleasant and popular guest. . Tulane University. Q. He has also been a kind and generous friend.. cheerful persona. 1983). 285 U. v. Just as it is imperative that maritime law be uniform and international and that choice of law rules be similar throughout the world. Miller 510 U. 697.4 while it has been known much earlier in some civil law regimes5 and in Admiralty law. 918 (1994).S. 1814). The Cali (Swift & Co. See also American Dredging Co.S.3 so is it essential that choice of jurisdiction rules used by various seafaring nations be the same. (H. 7293) (C. 918 (1994). because of the mobility of ships (the usual defendant) and the fact that carriage by sea very often involves more than one jurisdiction.) 435 at p. have usually refused motions calling for the stay of proceedings. at pp. v. The Capricorn.L. United States Merchants' & Shippers' Ins. 420-421. 1235. at pp.D. [1977] 2 S. at pp. 422-423.5 I. 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. 1994 AMC 913 at p. Mass. Co. in recognizing that forum non conveniens “originated in Scotland. 285 U. where three of five U. 449. 71-72 (5 Cir. ibid. Perusahaan Umum v.) 13. 1932 AMC 512 at p. 1099 (1950). as does Lord Reid in The Atlantic Star [1973] 2 Lloyd's Rep.L. Recently. 443 at p. 504 (1947). 559 (No. so that a whole new body of forum non conveniens law has sprung up.S. Paterson Steamships Ltd. 1985 AMC 67 at pp. 2 The other two branches are choice of law and recognition of foreign judgments. courts properly seized with a dispute. 344. 443 at p. v. International Conflict of Laws.S. 413. 339 at p.S. 516 (1932). 207. 422 at p.2d 1231 at p.C. motions for stay have been received more sympathetically. citing Piper Aircraft Co. 65 F. where the House of Lords recognized forum non conveniens as a doctrine of general application in Scotland. 413 at pp. 37-43.” 6 The Belgenland 114 U.S. Navigation (Les Armateurs Français) [1926] S. where he refers to “the Scottish legal doctrine of forum non conveniens”. 450. however.6 which latter has its closest connection with the civil law. Unfortunately that is not the case today. v. 4 Canada Malting Co. S. who mentions Société du Gaz de Paris v. 197 at p. 1994 at pp.C. See Tetley.S. (1925) 23 L. See Tetley. which passage was quoted in Gulf Oil Corp.C.2 and is of major importance in maritime law.2d 392 (2 Cir. Tel Aviv 711 F. 457 (1870). 684 at p.A. v. 1982 AMC 214 at p. as well as the yet more recent movement towards international conventions on procedure. 200 and Lord Wilberforce at p. 223 note 13 (1981). Compania Colombiana del Caribe) 339 U. 209. Introduction In the past. In consequence. the courts of all nations have jealously guarded their jurisdictions and have looked unfavourably on clauses in contracts which called for suit elsewhere. Paterson Steamships Ltd. 451. Rep. See also the reference to “Scottish authorities” in Antares Shipping v. 248 note 13. 1994 AMC 913 at p. 5 See Lord Diplock in The Abidin Daver [1984] 1 Lloyd's Rep. The Maggie Hammond 76 U. Supreme Court justices. 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.R. Gilbert 330 U. v. A/S Den Norske Afrika Og Australie Line. (9 Wall.7 Canada Malting Co. Miller 510 U. one must appreciate that forum non conveniens has been used by both courts of Equity and of common law.S. 1950 AMC 1089 at p. See American Dredging Co. 1932 AMC 512 at p. 791 and 867. 865-868.S. 501 at p. v. To fully understand forum non conveniens and the discretionary right of the trial judge. 355 at p. 515 (1932). 3 Ibid. v.1 Choice of jurisdiction is one of the three major branches of conflict of laws. and became part of the common law of many States. 365-366 (1885). Reyno 454 U. 1933)..S. The Jerusalem 13 Fed Cas. although deciding that forum 1 . 235 at p. The use of a consistent conflict of law methodology would be another major boon to transnational harmony in private international law. Firstly. 1968. otherwise. 1978. Barking Corporation [1948] 1 K.R. 107. the United Kingdom. Which Benefits from Both Its Civil and Common Law Heritages)” (1999) 23 Tul. but that. the court must look to the law which applies to the case before it. 2003.” . 1977. 1980. 137. consideration is given to the very special Admiralty problem of declining jurisdiction when an in rem arrest of a ship has been made. 8 International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading.A. and in force June 2. & Comm. 12 There is no intention in this article to go into questions regarding the jurisdiction conferred upon various courts by national legislation. however.C. to determine if there is a direction in that law as to jurisdiction. “Maritime Law as a Mixed Legal System (with Particular Reference to the Distinctive Nature of American Maritime Law. Mar.B. 123 (H. International Maritime and Admiralty Law. not in force. R. or (b) where for any other reason it is in the interest of justice that the proceedings be stayed. the Australian Carriage of Goods by non conveniens was not a characteristic feature of admiralty law.. 119 at p. it was not deciding whether it had jurisdiction to determine the case on its merits. C. signed at Geneva.” See Wilkinson v. For example. 7-60. and the second is jurisdiction to decide whether the Court has jurisdiction of the former kind. 2 Ed.1 at pp. held that it had jurisdiction to entertain an application for a stay (in virtue of sect. and in force June 23. sect. 1985. L. signed at Hamburg March 31. at pp. signed at Brussels.S.L. 456. February 23. 9-24 and 473-474. There are two distinct kinds of jurisdiction therefore: “the first is jurisdiction to decide the action on its merits. “A Definition of Canadian Maritime Law” (1996) 30 U. August 25.J. Also examined is the effect of the Hague Rules. 1931. reprinted [1996] ETL 469. 50: “(1) The Court may. 1998. Astro Dinamico [1984] 1 Lloyd's Rep. Finally. c. the court seized with the case must decide if it has jurisdiction12 by virtue of the legislation which created it. Canada and France in respect to carriage of goods8 under bills of lading.” 7 Tetley. 721 at p. U. out of hand.) reads: “assuming the claim to be otherwise within its jurisdiction…” 14 The House of Lords. 1924. 10 United Nations Convention on the Carriage of Goods by Sea.). 54). Tetley. of course.14 Secondly. “The General Maritime Law – The Lex Maritima” (1994) Syracuse J. Chap. May 24. in its discretion. 1992.9 the Hamburg Rules10 and the Multimodal Convention11 on jurisdiction clauses and on the principle of forum non conveniens.Rev. 725 (C. Tetley.C.C. 9 Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading. c. stay proceedings in any cause or matter. The Capricorn [1977] 2 S.K. nevertheless agreed that “… within federal courts it [forum non conveniens] may have been given its earliest and most frequent expression in admiralty cases. signed at Brussels. See also Canada’s Federal Court Act.J.L. 439-440. See also comments by Laskin. In some jurisdictions. and in force November 1. 422 at pp.13 Only if it has jurisdiction may it proceed. 317. the Visby Rules. 11 United Nations Convention on International Multimodal Transport of Goods. Tetley. 13 The first principle of Lord Brandon in The El Amria [1981] 2 Lloyd’s Rep. 453 at p. in Antares Shipping v. it must dismiss the suit. a court which may not have jurisdiction on the merits may have jurisdiction by statute to decide a question of stay. II. Int’l L. F-7. 49(3) of the Supreme Court Act. Tetley. 1981. in William Glyn's v. (a) on the ground that the claim is being proceeded with in another court or jurisdiction.6 The present article describes choice of jurisdiction rules and the principle of forum non conveniens in Admiralty in the United States.B. 1981. in so doing. Maritime Liens & Claims. Choice of Jurisdiction – Six Steps to Follow Choice of jurisdiction problems may be settled by the following six steps taken in order. 1978 at p. very often in the place of the carrier’s principal place of business. 1997 at clause 3. Otherwise the court will retain the suit in its own jurisdiction and will refuse the motion for stay. i.. which arrest normally gives jurisdiction in the place of the arrest. and an English translation. 17 See. Such clauses ordinarily call for suit or arbitration in the jurisdiction most convenient to the carrier. 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.). The Hamburg Rules on the Carriage of Goods by Sea.. 1111-1120. the court will stay the suit by an order which will preserve the rights of the parties. Les Éditions Yvon Blais. both types of clauses have generally been held valid by courts in bill of lading disputes. the incorporation by reference and notice of the incorporation must be considered carefully. August 22. 16 International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading. Sixthly. Appendices “P” and “Q”. of November 2000 at clause 4. issued by BIMCO. e. See also two sample clauses in S. as amended. August 25. ed. 3 Ed. the terms and specific wording of that clause must be considered carefully. consignees or endorsees. Leyden/Boston. For the texts of these two forms. 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. Thirdly. 2003. 1931 (commonly known in English-speaking countries as the "Hague Rules"). Marine Cargo Claims. . Mankabady. 174. if the new jurisdiction is deemed to be convenient and proper in the circumstances. to verify that such incorporation is complete and valid. 1121-1129. 2) 15 The Hague/Visby Rules 1968/1979 No. ibid. Fourthly.. the BIMCO Liner Bill of Lading (Conlinebill 2000”). International Maritime and Admiralty Law. See also BIMCO's non-negotiable Liner Sea Waybill (LINEWAYBILL"). as amended by the Carriage of Goods by Sea Regulations 1998. 98. Fifthly. if it is reasonable. the court must decide if the other jurisdiction.g. No. to which it is called upon to defer. at pp..e. 160 of 1991 (Cth. 1988 at pp.7 Sea Act 199115 holds invalid any clauses in most sea carriage documents ousting Australian jurisdiction. and in force as of June 2. at pp. 861-862 and 863-864 respectively. 1924. Montreal. Sijthoff. who therefore do not have the jurisdiction/arbitration provisions brought specifically to their attention. 11(1) and (2). provided they are clear and unambiguous. See the official French text reproduced in Tetley. III. sect. but in some document (such as a charterparty). is appropriate and whether the balance of convenience favours the case being heard there.17 Bills of lading under the Rules are often not signed by the shippers. if there is a jurisdiction clause in the contract (the bill of lading). adopted at Brussels. Nevertheless. Statutory Rules 1998. Inc. 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. If the jurisdiction clause is not in the bill of lading (or other immediate evidence of the contract). see Tetley. 2000. L. 1992. on the one hand. 1968 (in force June 23. Jure AB. while still adhering to the Hague/Visby Rules.J. 3) the port of loading. Art. to designate the place of suit after a claim under the contract of carriage by sea has arisen.12. Finland. contain no provisions on jurisdiction or arbitration. Stockholm. as between the Danish and Norwegian versions of the Code. branch or agency there the contract through which the contract was made. 20 This common Nordic Maritime Code came into force on October 1. the options as to places for suit are similar to those permitted by the Hamburg Rules. The numbering of the articles differs. See. Protocol 1979"). In particular. 299/32.D. by agreement.1972. the suit must be transferred to an acceptable jurisdiction defined in art. for example. L. 1994. but in some cases with certain national qualifications. 21(1) authorizes the cargo claimant. 4) the port of discharge. as amended by the Visby Protocol 1968 and the Visby S. as . adopted at Brussels. 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. 1978. 21(2) solves the difficult problem of jurisdiction being acquired by the arrest of the ship in rem. The Hague Rules 1924. and 5) any additional place designated for that purposes in the contract of carriage by sea. February 23. December 21. In addition. 1984) (commonly known as the "Visby S.C. adopted at Brussels on September 27. art. whether or not those parties have really taken cognizance of their terms. 2 Ed. for example. 1979 (in force February 14. adopted at Brussels. 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. however.20 Under this Code. 1968 (O. Norway and Sweden). The Nordic countries (Denmark. 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. 31. 21 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. 2001.R. 3) The Hamburg Rules 1978 The Hamburg Rules19 at art. and the Finnish and Swedish versions. are commonly known as the "Hague/Visby Rules 1968/1979". 21(1) upon the defendant providing adequate security to ensure payment of any subsequent judgment. 19 United Nations Conventions on the Carriage of Goods by Sea.8 The Hague/Visby Rules 1968/1979. the Swedish Maritime Code. signed at Hamburg on March 31. The arrest is valid but. nr 22. such clauses are generally upheld by courts and may be set up against parties to the bill of lading or similar document of carriage.C.1978). however.E.J. 2) the place where the contract of carriage was made if the defendant has a place of business. Protocol 1979. at his option. and in force November 1. updated to June 30. at the petition of the defendant.D.R.. 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. 30. nevertheless adopted a common maritime code in 1994.E.10. 304/36.18 like the original Hague Rules. 21(5) permis the parties. see English text in O. on the other. Again. 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. A number of countries have enacted national legislation in an effort to give effect to the Hamburg Rules options as to jurisdiction. published in Swedish and English by the Axel Ax:son Johnsons Institut för sjörätt och annan transporträtt. Art. Norway and Switzerland). 2) the place where the multimodal transport contract was made. Choice of Law and Jurisdiction in the New Nordic Law of Carriage of Goods by Sea” (1996) Il Diritto Marittimo 308 at pp. referring to arts. L 12/1.) 26 Statutory Rules 174 of 1998. 23 See Swedish Maritime Code. Allan Philip.E. See also Tetley. para. The Carriage of Goods by Sea Regulations 1998 amending the Carriage of Goods by Sea Act 1991. 1988. sect. except in respect to actions in rem. 26. were authorized by the Carriage of Goods by Sea (Amendment) Act 1997. to mean any of the following: a bill of lading.E. (O. effective March 1. 60. 310 and 311 of the Danish Maritime Code. Liechtenstein. 24 United Nations Convention on International Multimodal Transport of Goods. branch or agency through which the contract was made. Regulation 44/2001 of December 22.C. 160 of 1991 (Cth. 25 No. September 16.11. 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. except Denmark. Schedule 1. 2002. 319/9. L. at art. 1980. 22 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. No.1 and 6.C.1988).26 reads: “11 (1) All parties to: (a) a sea carriage document27 to which. 27 The term “sea carriage document” is defined in Schedule 1A (Schedule of Modifications) of the Carriage of Goods by Sea Regulations 1998. paras. provided that the defendant has there a place of business. adopted at Lugano. 6. “Arbitration & Jurisdiction in Carriage of Goods by Sea and Multimodal Transport – Can we have international uniformity?” [1998] ETL 735 at pp. 319-321. Chap.C.2.J. For example. 26(3).1. and as later replaced for all European Union states.22 both of which conventions make the domicile of the defendant the major criterion of jurisdiction. or a negotiable document of title . 11 of the Australian Carriage of Goods by Sea Act 1991. sect. 123 of 1997. relating to the carriage of goods from any place in Australia to any place outside Australia or subsequently amended. or 3) the place of taking the goods in charge for international multimodal transport. 1(1)(g). 16.25 as amended by the Carriage of Goods by Sea Regulations 1998. This Schedule of Modifications is Schedule 1A of the 1998 Regulations. or 4) the place of delivery of the goods. or relating to a contract of carriage to which. the parties may agree on a place for instituting an action after a claim has arisen. 7(2) of which authorized the addition of a “Schedule of Modifications” to the 1991 statute as amended. 25. by E. the amended Hague Rules28 apply. 198024 has similar provisions at art. which governs jurisdiction and the recognition and enforcement of judgments in civil and commercial matters as between the states of the European Union and those of the European Free Trade Association (Iceland.J. “Scope of Application. 2000 (O. 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. IV.2001). 13.23 4) The Multimodal Convention 1980 The Multimodal Convention. not in force. in force July 1.9 Convention 1988. 1998. By art. or 5) any other place designated for that purpose in the multimodal transport contract and evidenced in the multimodal transport document. signed at Geneva on May 24. 753-754. in appeal [1954] 2 Lloyd's Rep. See Hi-Fert Pty. Compagnie des Messageries Maritimes [1954] 1 Lloyd's Rep. See also Wilson v. Limited v. Ltd. 123 of 1997 (Cth.L.”30 This legislation is very similar to sect. upheld by the Australian High Court.). Tetley. 783-784. 153. 22 of 1924. 9(1) of the Act. 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. the Hague/Visby Rules 1968/1979] are to govern the contract as if the document were a bill of lading. Ct. but only on condition that the arbitration is conducted in Australia. (1996) 141 A. 229 (N.W. Aust. and has received a similar interpretation. at pp.S. Marine Cargo Claims. as amended for Australia by the Schedule of Modifications (Schedule 1A) of the Carriage of Goods by Sea Regulations 1998. note 16. 544 (High C. (1974) 24 F.32 31 that is similar to a bill of lading and that contains or evidences a contract of carriage of goods by sea. are taken to have intended to contract according to the laws in force at the place of shipment. Kiukiang Maritime Carriers (The Kiukiang Carrier) [1998] 159 A.L.R. See. 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). John Churcher Pty Ltd. or relating to a contract of carriage to which. relating to the carriage of goods from any place outside Australia to any place in Australia.). is not negotiable.29 relating to such a carriage of goods. 374 (Aust. International Conflict of Laws. of Aust.L. declared that a clause calling for actions to be tried in a French Court was invalid. 9 of Australia’s former Sea-Carriage of Goods Act 1924.e. Sup. note 80. Ct. 31 No. (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. 1994 at p. See also Akai Pty Ltd. or (ii) a non-negotiable document of a kind mentioned in subparagraph 10(1)(b)(iii) relating to such a carriage of goods. .R. the amended Hague Rules apply.S.10 (b) a non-negotiable document of a kind mentioned in subparagraph 10(1)(b)(iii). 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. v. 11(3) to the 1991 statute.W. by law. like sect. being a contract that contains express provision to the effect that the amended Hague Rules [i. The Supreme Court of New South Wales. 179 (N. 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). 142 at pp. however.S. 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).): A French bill of lading for a shipment from France to Australia called for suit in France. C.) 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. 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. 3 Ed. The People's Insurance Co.R. so as to add sect. Mitsui & Co.R. 28 The “amended Hague Rules” refers to the Hague/Visby Rules 1968/1979. 32 The Federal Court of Australia has been held that sect 11 of the Carriage of Goods by Sea Act 1991.). England. Sup. 164-165 (Fed. 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. No. 29 Subsect.L. High C. 1988. See Tetley.). 191. or a bill of lading that..” 30 The Australian Carriage of Goods by Sea Act 1991 was amended by the Carriage of Goods by Sea (Amendment) Act 1997. 9 of the former 1924 statute as interpreted in the Wilson decision (supra).W. (Australia) Ltd. [1974] 2 N. 87-922 of November 12. Witherby Publishers. “[n]otwithstanding any purported ouster of jurisdiction. exclusive jurisdiction clause or agreement to refer any dispute to arbitration”.34 have enacted similar nationalistic legislation on jurisdiction clauses in bills of lading and other sea carriage documents.4.1).36 it must nevertheless be proven that cargo genuinely consented to the clause. Vialard. 2 Ed. 48. waybill or like document for the carriage of goods inbound to South Africa. Pedone. Today. similar documents of title or nonnegotiable documents covering shipments to and from New Zealand. April 11.R.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. 1993. 244. the autonomy of parties to agree on a foreign jurisdiction for litigating their cargo claims is severely restricted. 621 at p. although the requirement that the shipper sign the bill was repealed in 1987. therefore. 257 of the Civil Procedure Law 1991 is more liberal as regards foreign arbitration. para. although that statute does permits arbitration of cargo claims outside. para. as well as inside. to bring an action on the bill. D. 34 See South Africa’s Carriage of Goods by Sea Act 1986. 37 of Decree No. In practice. and jurisprudence cited there. jurisdiction clauses in bills of lading may only be invoked against merchants and these clauses must figure prominently in the bills. See generally Tetley. 533 at pp.R. having an actual connection with the case. International Maritime Bureau. amending art. which preclude the ouster of New Zealand jurisdiction by foreign jurisdiction clauses in bills of lading.C. 35 Loi du 2 avril 1936. I.C. Art. 38 See. however. The court selected must be clearly identified in the bill and. 33 . para. under art. Rèmond-Gouilloud. 1997. Droit Maritime. 193635 at art.R.11 A number of other countries. Droit Maritime. to agree in writing to trial by the court at the place that has an actual connection with the dispute. although the article does not expressly preclude selection of a foreign forum.R. as well as the consignee or holder of any bill of lading. prohibiting the ouster of local jurisdiction. China’s Maritime Courts and Justice. 7. Journal officiel. 1966. 1936. waybill or document before the competent court in the Republic. such as New Zealand33 and South Africa. for example. London. only Dutch and German jurisdiction clauses were recognized in the P. sects. sect. 36 The requirement that bills of lading be signed by shippers was repealed by Decree No. in a case concerning contract disputes or disputes over property rights involving foreigners (including maritime contract disputes). 386-387. 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).) jurisdiction clauses in bills of lading. foreign jurisdiction clauses in ocean bills of lading are recognized by Chinese maritime courts only where the foreign country concerned recognizes Chinese (P. 1997. where the foreign jurisdictions designated by such clauses enforce forum selection provisions in similar contracts calling for suit in the P.2 at p. 37 See M.C. 48 of France’s Nouveau Code de procédure civile. As of 1997. V. 346347. adopted by the Fourth Session of the Seventh National People’s Congress of the People’s Republic of China on April 9. 426427 and para. 400 and para..C. Act 1 of 1986. para. the Civil Procedure Law 1991 of the People’s Republic of China. A. the burden of making such proof resting with the carrier. in French internal law. New Zealand. which permits both parties. Paris. 66-1078 of December 31. 1991. 1987. The word “court” in this context. 3(1) and 3(2). “Arbitration & Jurisdiction in Carriage of Goods by Sea and Multimodal Transport – Can we have international uniformity?” [1998] ETL 735. See Zhang Jinxian. Presses universitaires de France. however.’s maritime courts. which permit any person carrying on business in the Republic.38 See New Zealand’s Maritime Transport Act 1994. Loi relative aux transports des marchandises par mer. Jurisdiction Clauses Restricted by National Law The former French domestic Law of April 2. 104 of 1994. 445 at p. at art. 499 at pp. would seem to mean the court of the P. thus being slightly more liberal than the corresponding Australian statute which allows only Australian arbitration.e.C. Nevertheless.1937. 447 at pp. No. 384.C. 210(1) and (2). even where Hamburg does not apply to the bill of lading contract of its own force or through incorporation by reference. where (a) the actual port of loading or discharge. a claimant may institute judicial or arbitral proceedings in a court or arbitral tribunal in Canada that would be competent to determine the claim if the contract had referred the claim to Canada. S. after a claim arises under the contract. is significantly less restrictive and nationalistic than the corresponding legislation in Australia. New Zealand and South Africa. the residence or place of business of the defendant or the place of contracting). while still favouring local jurisdiction and arbitration. The Viljandi [2003] ETL 760 (Fed.A. in accordance with the contractual clause or. in force August 8. balanced and 39 40 S.n. or (c) the contract was made in Canada. 2001. 151. alternatively. is in Canada. or the intended port of loading or discharge under the contract. however. The Castor (2002) 297 N. the proposal is a way of giving the cargo claimant a Canadian litigation/arbitration option. branch or agency in Canada.. c. 2003 AMC 305 (Fed C. v. But if Hamburg does not apply. the cargo claimant may sue in the contractually stipulated place or in any of the other optional venues listed in those Rules. 46. in situations where that option would exist under Hamburg.). For decisions on the application of sect. 6. 6. under sect. c. under its Marine Liability Act. “(2) Notwithstanding subsection (1). as an alternative to suing or arbitrating abroad as per the bill of lading. 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. 46. the plaintiff. . v.” Sect. (b) the person against whom the claim is made resides or has a place of business. In effect.M. 21 and 22 of the Hamburg Rules. 2001. 46 of the Marine Liability Act provides: “46(1) If a contract for the carriage of goods by water to which the Hamburg Rules do not apply provides for the adjudication or arbitration of claims arising under the contract in a place other than Canada. designate by agreement the place where the claimant may institute judicial or arbitral proceedings. the claim must have arisen after the jurisdictional provision has been agreed.R. of Can. in cases similar to those enumerated in arts.) s. It seems fair. to sue or arbitrate in Canada. 46(1) of Canada's Marine Liability Act.C.C. Sect. the parties to a contract referred to in that subsection may.S. see IncremonaSalerno Marmi Affini Siciliani (I.S.). C. despite the presence in the bill of lading of a foreign jurisdiction or a foreign arbitration clause. It does not prohibit ousting Canadian jurisdiction over bill of lading disputes. 2001. under certain conditions. but permits the cargo claimant to opt instead for suit or arbitration in Canada.40 In the latter case. may choose to litigate or arbitrate outside Canada.A.12 Canada.c. If the Hamburg Rules apply to the contract. Nestlé Canada Inc.39 provides the marine cargo claimant with the option of suing or arbitrating in Canada. of course. Les Gravières Rhénanes SARL. 388/1..C. 17 of the Brussels Convention 1968.1972. in order to protect the weaker bargaining party from foreign forum selection clauses inserted in boilerplate language by the stronger party.m. see English text in O. 106). Although this and other ECJ decisions maintain that the formalities required by the article are themselves “… a full. See generally Geoffrey Brice. The rule was applied to bill of lading jurisdiction clauses agreed to by the parties.1978). [1987] LMCLQ 281. Finland and Sweden (O. 1989 for Spain and Portugal (O. 1968. to clauses confirming a previous oral agreement between them and to clause forming part of “the steady business relations” between the parties.J. L. 1831. 03. 1971 and in force September 1. [1997] ECR I-911..J. 44 Convention on the accession to the 1968 Convention and the 1971 Protocol of Denmark. requiring that a jurisdiction clause. 43 Protocol on the interpretation of the 1968 Convention by the European Court. L.12.” 46 See.41 VI. London.J.10.01. the decision of the Court of Justice of the European Communities in The Tilly Russ [1985] ETL 3 at p. 2. which includes the 1971 Protocol of Interpretation43 annexed to it. the Republic of Ireland and the United Kingdom. 55. which came into force on January 1. for example. U. 31. 44. C-106/95. Finland and Sweden. was amended by the 1978 Accession Convention and subsequent Accession Conventions.1997).97 at p.K. signed at Luxembourg on June 3.1989) and the Accession Convention of November 29. c.98). which must be clearly and precisely demonstrated. and Austria. 42 Hereinafter described as the 1968 Brussels Convention (O.42 This Convention. 1982 for Greece (O. 43(1) and (2) and Schedule 3 of this Act). 45(1) and (2) and Schedule 4 of the Act). 2002.R.10. [1976] E. 17 as it has evolved in wording since 1968.C. the Accession Convention of May 26.J.E. 3 Ed. 1975. pending Canada's possible eventual transition from the Hague/Visby Rules to the Hamburg Rules. there must be the possibility of attacking 41 . be the “subject of a consensus between the parties.J. 1978 (O. L. as so amended and re-amended. 1982. have reaffirmed the essential importance of a genuine agreement between the parties as to the foreign jurisdiction concerned. 1996 for Austria. The Brussels Convention 1968 was re-amended three more times. Member States.C. 30. provided a rule requiring the courts of Contracting States to respect written jurisdiction agreements. 304/1. following the making of a report to Parliament by the federal Minister of Transport on the advisability of doing so before January 1.E.H.E. perfect and sufficient guarantee of the existence of consent or consensus” (see Briggs & Rees.b. para. Some of these accession conventions made substantive amendments to the Brussels Convention 1968. it has also adopted the Hamburg Rules 1978 and retains the option to bring those Rules into force.13 reasonable. 304/36. for example. 31.C.K. 299/32. “Maritime Claims: The European Judgments Convention”. (see sects. signed at Luxembourg on October 9.E.15/1. LLP. See also Estasis Salotti di Colzani Aimo e Gianmario Colzani v. rendered under art.46 Although under its Marine Liability Act.U. Civil Jurisdiction and Judgments. 27. on the admission to the European Union of Greece. 45 See.E.E. 15. the Brussels Convention 1968 was given the force of law by the Civil Jurisdiction and Judgments Act 1982. Spain and Portugal.J. 1987. 17. Case No. 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.45 Subsequent decisions of the European Court of Justice. as subsequently amended by various accession conventions. C.12. See of the Accession Convention of October 25. and of which the weaker party remains unaware until it is too late. 1) Jurisdiction Clauses Restricted by European Law The Brussels Convention 1968 The Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (the Brussels Convention 1968) was signed at Brussels on September 27.C. 41. RUWA Polstereimaschinen G. 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. Mainschiffahrts-Genossenschaft Eg v. L. L. 41.1978). 285/1. to be effective under art.C. 2005 and every five years thereafter (see sects.10.44 Art. In the U.C. 30. is couched in terms very similar to those of the most recent text of art. which applies directly (i. L. Norway and Switzerland. Like the old Brussels Convention. mistake. in respect of civil jurisdiction and the enforcement of judgments. “L’entrée en vigueur du règlement communautaire no 44-2001 du 22 décembre 2000 concernant la compétence judiciaire. 23. duress.J. 48 EC Regulation No. 23(1)(a).1988). If the parties. see O. unlike art. the most pertinent portion of the new Regulation. la reconnaissance et l’exécution des décisions de justice en matière civile et commerciale” [2002] ETL 727. except for Denmark.e. provides for jurisdiction clauses and agreements evidenced by electronic documents to be treated as “writings” for the purposes of art. 2000. in any court of a European Union Member State.. Briggs and Rees suggest that such a possibility may lie in the development of an autonomous definition of “agreement” (see ibid. 2000) in matters of civil jurisdiction and the enforcement of judgments.U. 319/9.11. 49 The EC Regulation. very similar to the Brussels Convention 1968. but not Liechtenstein). see Pierre Bonassies. in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to. 47 Denmark chose not to bound by the EC Regulation. 23 (1) to (3).47 by the Regulation of the Council of the European Union (EC Regulation 44/2001)48. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. and in force in all Member States of the European Union except Denmark. The Lugano Convention of September 16. one or more of whom is domiciled in a Member State. or (b) in a form which accords with practices which the parties have established between themselves.E. and therefore is still governed by the Brussels Convention 1968 in its relations with the other Member States of the E. read as follows: “1. This latter expression has yet to be interpreted by the European Court. “2. L 12/1 to L 12/23. (i.14 2) EC Regulation 44/2001 The Brussels Convention 1968 was replaced. 17 of the Brussels Convention 1968 as amended by the various Accession Conventions.e. Its rule on jurisdiction agreements. except Denmark. . Such an agreement conferring jurisdiction shall be either: (a) in writing or evidenced in writing. or (c) in international trade or commerce. 25. if the electronic communications leave a “durable record”. For the text.49 the jurisdiction clause as invalid for fraud. 107). misrepresentation or frustration. parties to contracts of the type involved in the particular trade or commerce concerned. Art. that court or those courts shall have jurisdiction. 2002. at p. 1988 (O.E.J. and also binds Poland (since that country acceded to the Lugano Convention on February 1. Any communication by electronic means which provides a durable record of the agreement shall be equivalent to ‘writing’. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. 2002. For commentary. without the need for any implementing national legislation) to proceedings instituted on or after March 1. adopted on by the Council of the European Union on December 22. and regularly observed by. also continues to govern three of the four remaining remaining States of the European Free Trade Association (EFTA).C. the EC Regulation establishes uniform rules on civil jurisdiction and the enforcement of judgments in civil and commercial matters. 17 of the Brussels Convention 1968.C. as of March 1. at art. 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. Iceland. C-159/97). in its decision in Coreck Maritime GmbH v. under art. 2000. 23 of the Regulation. the objective knowledge of the trade usage by either party to the contract is irrelevant. of the Brussels Convention 1968) is different from the pre-1978 text of art. The European Court of Justice interpreted the most recent text of art. Delebecque. which must be sufficiently precise to enable the judge seized of the case to determine whether he has jurisdiction. which might be given to the standard form on which the clause appears. June 19. supra. where applicable. 733. Handelsveem BV. in the Coreck Maritime case. therefore. 17. See also Cour d’Appel de Rouen. 23 of EC Regulation 44/2001 is in force:53 (1) the wording of the jurisdiction clause. parties to contracts of the type involved in the particular trade or commerce concerned”. Hugo Trumpy SpA. March 16. but rather merely called for suit in the court of the place of the “principal establishment 51 50 . 17. 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. 387-98). Bulletin des transports 2002. [1999] ECR I-1597. DMF 2000. 54 Thus. of the Brussels Convention 1968 in relation to bill of lading jurisdiction clauses. Art.15 “3. Ph. March 21. 17 of the Brussels Convention generally. Bonassies. 17. not by the national law of one of the contracting states. Bonassies. Handelsveem BV. the European Court of Justice held that the knowledge of the usage concerned is “independent of any specific form of publicity”. June 21. See P.. These elements. see Gaskell. 11. Asariotis & Baatz. 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. where the bill of lading jurisdiction clause did not expressly specify the name of the court selected.52 and its three main findings would appear to remain applicable to such clauses now that the very similar art. and regularly observed by.” (Emphasis added) The text of art.54 European Court of Justice. at p. 52 November 9. 337.51 If this requirement of form is complied with. 53 See P. November 9. with the result that the usage may be considered to be a consolidated practice. the courts of other Member States shall have no jurisdiction over their disputes unless the court or courts chosen have declined jurisdiction. [1985] ETL 3. 23 of EC Regulation 44/2001 (like the most recent text of art. Delebecque. supra. will probably continue to apply under art. 17 from which the European Court of Justice in The Tilly Russ50 drew the criteria for a valid and enforceable jurisdiction clause. 1984. by the circumstances of the case. obs. none of whom is domiciled in a Member State. applying the Castelletti decision. [2000] ECR I-9337.20. 187.51to20. first para. Ph. Where such an agreement is concluded by parties. 17 of the Convention by the Court of Justice of the European Communities. 17 of the Brussels Convention 1968 and that the decisions rendered under art. DMF 2001. obs. particularly in the Castelletti (supra) and Coreck Maritime (supra) cases. for example.81. knowledge of such a generally and regularly observed usage is “imposed” on the shipper. but rather by the practice generally and regularly followed in concluding a certain type of contract. 1999 (Case No. 2000. 23 of EC Regulation 44/2001 is basically unchanged from art. 734. See also Cour d’Appel de Versailles. The existence of the usage must be established. 2001 (The Nedlloyd Van Neck) [2002] ETL 926. (Case No. 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. need not name the court having jurisdiction. 2002. (Case No 387/98). DMF 2001. Ph. the jurisdiction clause must be given effect when one of the parties is domiciled in a Member State of the European Union. On art. first para. In Trasporti Castelletti Spedizioni Internazionali SpA v. [2000] ECR I-9337. [2002] ETL 727 at p. In fact. Delebecque. 2000 at paras. obs. indicating that art. may be “concretized”. Bills of Lading: Law and Contracts. 187. . 23 of EC Regulation 44/2001. Tassel. See also Rechtbank van Koophandel te Antwerpen. 2000 at paras. 59 See Gaskell. See Cour d’Appel de Rouen. applied to the bill of lading contract and therefore that the third party holder of the bill was bound by its jurisdiction clause. 17 and the changes introduced into art. however. demonstrates clearly and precisely a consensus by the parties on the subject matter of the clause. 20. 364 at p.16 (2) art. obs. but rather that that law fell to be determined by the judge seized of the case.55 (3) a jurisdiction clause in a bill of lading. applying the conflicts rules of his national law. Ph. emphasizing that under art. the foreign jurisdiction clause was held unenforceable as against the subrogated underwriter of the consignee/ holder of the bill of lading. as under the art. 372. June 18. 2002 (The Dymphna). jurisdiction clauses must still reflect a consensus between the parties to the contract that is clearly and precisely demonstrated. March 4. as interpreted by the European Court. because it was not proven that the consignee had consented to the clause at the latest at the time of delivery. March 4. See also Rechtbank van Koophandel te Antwerpen. October 8. where the Belgian Court decided that English. 364 at p. notwithstanding the amendments to art. agreed to by a shipper and a carrier. 56 The Court held that it was not its responsibility to determine the applicable national law as a matter of interpretation of the Brussels Convention. 57 of the Brussels Convention 1968). has succeeded to the rights and obligations of the shipper under the applicable national law. [2003] 2 Lloyd’s Rep. [2003] 2 Lloyd’s Rep. holding that art. 2002 (The Walka Mlodych). Asariotis & Baatz. incorporation by reference of a jurisdiction clause into a bill of lading is effective. DMF 2003. 57 See. BP France S. 556. 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.73 and 20. produces effects with respect to a third party holder of the bill. the Regulation does not affect any conventions to which the Member States are parties and of the carrier”. 58 See Siboti v. April 9. DMF 2003. where those provisions reflect a genuine.56 If such is not the case.57 European law thus accepts jurisdiction clauses in bills of lading and other contracts. being the successor to the rights and obligations of the shipper under the bill. Under those provisions. Bills of Lading: Law and Contracts. where under the applicable French law. in acquiring the bill. observations Y. 17 of the Brussels and Lugano Conventions were inapplicable to a bill of lading jurisdiction clause calling for suit in New York courts.59 Acceptance of forum selection agreements is not unconditional. BP France S. See also Cour de Cassation. The same test has been applied in France to arbitration clauses. 20. for example. of the Convention. it is governed by the very specific terms of the EC Regulation 44/2001 (and the Brussels Convention 1968 in the case of Denmark). 1997 (The Adamastos). 23 to accommodate a course of dealings between the parties and practices in international trade. Delebecque. rather.58 and whether or not that forum has any connection with the dispute or the parties. 547. the Court held that the validity of the forum selection agreement would have to be assessed by applying the conflict of law rules of the court seized of the dispute. the forum designation was held valid.A. 55 Where the court selected is in a “third State”. [2003] ETL 321.60 3) Arrest in rem under other conventions Under art. 2003 (The Sonara). . Cour de Cassation. rather than Belgian law. 2003 (The Houston Express). where the language of the bill. 373. it is proper to verify the reality of the holder’s consent to the clause by reference to the requirements of art. 71(1) of EC Regulation 44/2001 (similar to art.A. 17 of the Brussels Convention 1968. 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. interpreted in the light of the commercial background of the case. Revue Scapel 2003. 60 Siboti v. first para. 17. provided that the holder. [2002] ETL 453.77. mutual consent between the contracting parties to sue in a determined or determinable forum. 2002 at para. 2003 at pp. The court therefore embarks on an analysis to identify what court is the “more International Convention Relating to the Arrest of Sea-Going Ships. Asariotis & Baatz. Asariotis & Baatz. 11 (C.17 which in relation to particular matters. even if the shipowner or demise charterer is domiciled in another E.65 Nevertheless. 805-809. the Civil Liability Convention 1992. the place of the carrier’s place of business. 7 of that Convention permits Contracting States to take jurisdiction on the basis of the arrest of a ship in their territorial waters.128. English jurisdiction based on ship arrest would remain unaffected by an exclusive jurisdiction clause as contemplated by art. even if that foundation does not exist in the Regulation.). 8. the Athens Passenger Convention 1974. the domestic law permits such arrest in rem under the Supreme Court Act 1981.13 at p. the Limitation Convention 1976 and the Hamburg Rules 1978. 2000 at para. 1952 and in force February 24.126.) is thus preserved and is permitted to override jurisdiction under the EU’s ordinary rules. Civil Jurisdiction and Judgments. 3 Ed.A. govern jurisdiction or the recognition or enforcement of judgments. adopted at Brussels. 23 of the EC Regulation) purporting to assign jurisdiction to the courts of another E. See Gaskell. Gaskell. May 10. 1994 at pp. Various other maritime law conventions also have rules on jurisdiction which would override the Regulation. International Maritime and Admiralty Law. having regard to the interests of the parties and the ends of justice.. Tetley. the Civil Jurisdiction in Collision Convention 1952. 2002 at para.) and The Anna H [1995] 1 Lloyd’s Rep. the Penal Jurisdiction in Collision Convention 1952. 61 .B. to take jurisdiction over a dispute on the basis of jurisdictional foundations provided in another convention governing a “particular matter”.63 In consequence. 20. 710.U. Bills of Lading: Law and Contracts.K. 3 Ed. Is There a More Convenient Jurisdiction? In common law countries. 2000 at para. if their domestic law gives jurisdiction to their courts. 66 The Bergen (No. 57 of the Brussels Convention 1968 prior to the enactment of EC Regulation 44/2001. 17 of the Brussels Convention (now art. 20-24 implements the Arrest Convention in English domestic law. State. and in some other cases.62 which. there is another. The importance of this provision is that it permits Member States of the E.U. at para. 380. as in fact has been done in at least one case where the bill of lading expressly provided for jurisdiction in Germany. 62 U.U. In England. See also Briggs & Rees. 1952. 361 (C. decisions on this matter (rendered with respect to art.K. clearly more appropriate forum in another jurisdiction where it would be better to try the suit.66 VII. 515. either of their own motion or at the petition of one of the parties. 513. 421-423. 1981. 54. notably. 8.. The most important example of this type of convention on a “particular matter” is the Arrest Convention 195261 Art.114-20. 1956. as they did the Brussels Convention.15 at p. courts today generally have the discretion to either dismiss or (more usually) to stay conditionally the proceedings validly instituted before them. 64 See the classic U.15. having arrested a ship in rem in accordance with the applicable procedure. ibid. if they believe that. will have a valid basis of jurisdiction over the underlying “maritime claim”.A. 65 See The Bergen (No. 63 Briggs & Rees. but still relevant under the Regulation) in The Deichland [1990] 1 Q. 1) [1997] 1 Lloyd’s Rep. 20. State whose courts would normally have jurisdiction under the Regulation. at sects. c. the English court. Tetley. the English court could exercise its discretion to stay the English proceedings and refer the case to the court designated by the exclusive jurisdiction provision. 2) [1997] 1 Lloyd’s Rep. International Conflict of Laws. Bill of Lading: Law and Contracts.64 Jurisdiction in rem (even where the defendant is not available for service in the U.K. Civil Jurisdiction and Judgments. although they have jurisdiction to decide the dispute. 8. Briggs & Rees. sect. sisting. Cansulex Ltd. from staying. the landmark decisions on forum non conveniens include Gulf Oil Corp. Amchem Products Inc. as a mixed jurisdiction. the Lugano Convention. International Maritime and Admiralty Law. 383 (H.Q.” 68 The Québec Civil Code 1994. 897 at pp..K. Ct.. 3135 c. Supr.” For decisions applying art. v. v.). Automobili Lamborghini S.67 Civilian countries. v. c.L. 2003 at p. International Conflict.). v. Gilbert 330 U. U. In the United States.P.C. Quebec.). 798-803. it may exceptionally and on an application by a party. See also the U. at art.S. v. or the “natural forum”. as amended by the Civil Jurisdiction and Judgments Act 1991. on grounds of forum non conveniens. 1994 at pp. striking out or dismissing any proceedings before it on the ground of forum non conveniens or otherwise.J.S.). which statute came into force on May 1. [1978] A. Forum non conveniens therefore has no place in their legal systems. 443. British Columbia (Workers’ Compensation Board) [1993] 1 S. i.R. 27.q.L. decline jurisdiction if it considers that the authorities of another country are in a better position to decide. S.C.R. Tetley. v. The doctrine applying to this determination is known as forum non conveniens.C.A. [1987] A. if it is the "natural forum" for trial of the dispute. If the forum court is convinced that. 205. Grecon Dimter Inc. Spiliada Maritime Corp. American Mobile Satellite [2002] 4 S. [1984] 1 Lloyd’s Rep.). see H. v. where to do so is not inconsistent with the 1968 [Brussels] Convention or.c. Reyno 454 U. due to constitutional restrictions.L. 213 (Qué. 3135 c. Lamborghini (Canada) Inc. 1991. U. [1987] 1 Lloyd’s Rep. [1997] R. 1982 AMC 214 (1981). [2004] R.J.). 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.Q. 460. J. in case the foreign court does not accept jurisdiction or renders a decision not susceptible of subsequent recognition and enforcement in the forum court. 854 (H. and American Dredging Co.C. and Lubbe v.C. 2003 at pp. Connelly v. Normand Inc. generally do not have the discretion to dismiss or stay actions which fall within their jurisdiction under their respective national laws.C. on the ground that another forum appears more convenient or appropriate or natural for the litigation. 915-922. v. For Canada. 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). 1077.L.A. but should preferably stay them conditionally.A.18 convenient forum”. 413. International Maritime and Admiralty Law.A. 1992: “Nothing in this Act shall prevent any court in the U.K. for the adjudication of the dispute. C.Q. The forum court which has stayed the proceedings 67 Among the classic decisions on forum non conveniens in the United Kingdom. 398.R. Spar Aerosapce v.). Banque Royale du Canada [1995] R. 1 (H. as the case may be. Boulton & Co.C. Cape plc [2000] 2 Lloyd’s Rep. see Morguard Investments Ltd. 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".c. provides: “Even though a Québec authority has jurisdiction to hear a dispute. A conditional stay is preferable to dismissal. Miller 510 U. see MacShannon v.C. 412-413. Rockware Glass Ltd.L. the court seized of the proceedings may dismiss the proceedings. v. RTZ Corp.S.’s Civil Jurisidction and Judgments Act 1982. Nevertheless. 339 (H. [1998] A. The Abidin Daver [1984] 1 A. 1982. 49. 795 (H. C.C.68 After having determined that it has jurisdiction and that there is no direction in the substantive law before it as to jurisdiction. 12.L. 501 (1947). 69 See Tetley. See generally Tetley. DeSavoye [1990] 3 S. 235.K. although it has jurisdiction. Piper Aircraft Co. . c. or the “more appropriate forum”.q. 1994 AMC 913 (1994).K.).R.e.J. 58 (Qué. 88 (Qué. 75 The trial court.D. for example. Cape plc [2000] 4 All E.A. 1961). following this analysis.D. the stay order was reversed. In general.73 is the touchstone in respect to deciding forum non conveniens motions. N.D. 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. 1 (C. Subsequently. 663. 335.Y.C. 77 See. 909 at pp. N.76 If. 1346 at p.S.L.19 conditionally may then reassume jurisdiction over the dispute.). where the court stayed proceedings on a cargo claim in deference to a Russian jurisdiction clause in the bill of lading. 72 La Seguridad v. Nigeria v. for its part. See also LN. 808. 1983 AMC 2559 at p. (No. the existence of such a term or agreement is a factor of great weight in forum See. S. [2000] 1 Lloyd's Rep. Margit 1966 AMC 1217 at p. [1998] A. v. 70 . v. [1987] ETL 45 (S.). 73 Muller & Co. and 5) that security acquired by either party be preserved.R. 183.R. Pakistan National Shipping Co. The Hamburg Star [1994] 1 Lloyd's Rep. 75 Gulf Oil Corp. 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. Gilbert 330 U.2d 806 at p. Ltd. 1 at p. and no single factor is decisive. Tsuneshima Maru 197 F. 1360. RTZ Corp. 383 (H. 2) that the other court accept jurisdiction. no foreign court of competent jurisdiction appears definitely more "convenient" than the court first seized.71 Convenience. 76.L. on condition that the defendant provide satisfactory security for proceedings in Leningrad and that the plaintiff's witnesses be granted visas to attend the hearing there. 76 G.A. 373 (H.A. 1689 (2 Cir. See also The Kidlovodsk [1980] 1 Lloyd's Rep. where a forum non conveniens stay was granted on a cargo claim arising under a bill of lading calling for suit in Pakistan. 1307. For an example of such a conditional stay in a maritime case. or if the evidence on the question appears to be equally balanced. 1218 (S. 2434 (S.B. [1997] 3 W. Supp. Tex. the stay will ordinarily be refused. 707 F.L. 911-912. [1997] 4 All E.72 sometimes described as reasonableness. 1955). 4) that the defendant waive any defence based on a statute of limitations or prescription in the foreign court. see The Arctic Explorer 590 F.2d 1304 at p. Pirelli Cables ltd. In The Spiliada [1987] 1 Lloyd's Rep. 508 (1947).70 The conditions of the stay may vary depending on the circumstances of the case. Lubbe v. makes its decision as a question of fact based on the whole of the circumstances of each individual case. the House of Lords found that it was wiser to avoid use of the word “convenience” and refer rather to the appropriate forum. 229 (C.). 1984 AMC 2413 at p. Supp. 412. 78 See.R. 399. however.1985 AMC 1493 (S.L.74 No one can foresee or list all the criteria which the court must decide and weigh.D. v. for example. 268. the convenience and expense of the parties of litigating in either of the competing fora. 2003 at p. N.Y. 1220 (S. 1983). when it appeared that a Pakistani court might not recognize such a waiver. on condition that the defendant waive any time bar under Pakistani law. 3) that the defendant submit to service of suit and to the jurisdiction of the other court with the time period stipulated. Transytur Line. Baghlaf Al Zafer v. Sophia First 588 F. 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.D. United Thai Shipping Corp. 9. 1985). See Baghlaf Al Zafer v. for example. v. 1955 AMC 1687 at p.78 Clearly.R. International Maritime and Admiralty Law.C. 1966). 74 Tetley. S. 1984). 501 at P. 2564 (11 Cir.). Supp. N. [2000] 2 Lloyd's Rep. Pakistan National Shipping Co. the law applicable to the substance of the dispute. 224 F. [1998] 2 Lloyd's Rep.Y. 854. Connelly v. Swedish American Line. the court making a forum non conveniens determination considers such factors as the location and availability of proof and witnesses. v. Takemura & Co. 1984).S.S. The Globe Nova 1985 AMC 1977. however. 1545. [2000] 1 W. 1962 AMC 1217 at p.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.Y. 2) [2000] 1 Lloyd's Rep. 79 .. v. 355 (1885) is an example of an early admiralty case. Crédit Suisse [1980] 3 All E. 1985 AMC 67 at pp. Tel Aviv 711 F.S.R.A. In addition. 'vex'. 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.). 81 330 U. 1994 AMC 913 at p. 422 at p. Ct. The Atlantic Star [1973] 2 Lloyd's Rep. 2) Forum non conveniens not a characteristic feature of U. the plaintiff. The Jerusalem 13 Fed.C. 443 at p. must show strong reasons why he should not be kept to his original bargain.D. 365. see Trendtex Trading Corp.” Nor may the plaintiff f) “by choice of an inconvenient forum.R.S. doctrine.80 The principle was first applied to a non-admiralty matter by the Supreme Court in Gulf Oil Corp. The Capricorn [1977] 2 S. at pp.20 non conveniens determinations. v. 629 (C. 721. c) possibility of view of the premises . [and] e) the relative advantages and obstacles to fair trial. . United States . 508 (1947).B. 1234. in breach of that agreement. 559 (No. Gilbert. 'harass' or 'oppress' the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. forum non conveniens was characterized as a procedural. b) availability of compulsory process for attendance of unwilling. 1814). 83 510 U.C.2d 1231 at p. 80 The Belgenland 114 U. 918 (1994). b) the benefit of publicity of the trial in the seat of the conflict.Forum Non Conveniens 1) Private and public interest factors Forum non conveniens has long been an accepted principle in admiralty in the United States. it did not originate there and was not a characteristic feature of the general maritime law of the United States. 501 at p.C. witnesses. 207 (H.83 three of five justices of the U..L.S. Miller. rather than as a substantive. although forum non conveniens had taken root early on in American admiralty law.S. c) the choice of the proper place to study questions of foreign law. infra.). v. but was rather a doctrine of general application.). See Antares Shipping v. aff’d [1980] A.79 This matter is dealt with in greater detail in sections IX. Mass. general maritime law In American Dredging Co. 451 (Supr. who has taken suit in another jurisdiction. X and XI.. VIII. See also Perusahaan Umum v.S. See especially p. and d) the avoidance of conflicts of law. 7293) (C. Cas. and the cost of obtaining attendance of willing. 679 (H. Private interests are: “a) relative ease of access to sources of proof. of Canada). 450. 509-509. 69 and 70 (5 Cir. 1983). 197 at p.81 where the theory of the private and public interests was enunciated. with the result that it was Among many other decisions of this kind.. d) enforceability of a judgment .” 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. aff’d [1980] Q. Supreme Court decided that. .L. 82 Ibid. with special reference to foreign jurisdiction clauses in ocean bills of lading and other contracts for the carriage of goods by sea. This very authoritative decision has been referred to by non-American courts.. 455. the majority in the Supreme Court upheld the validity of the Louisiana statute out of which the litigation had arisen (art. states. which rendered forum non conveniens unavailable in Jones Act and maritime law cases brought in Louisiana state courts. AMC at p. v.S. 536.Y.S. 235. sect. Gilbert.. the plaintiff’s choice of forum should rarely be disturbed. 1982 AMC 214 (1981). 60 (5 Cir. of the possibility that separating the actions and having the case heard in two different jurisdictions may lead to inconsistent results as well as prejudice one of the parties to the underlying action. v. 88 Sunny Prince-Hoheweg (Motors Distributors Ltd.S. See also Excel Shipping v. Supreme Court in Gulf Oil Corp. Whether or not an action impleading a third party should be dismissed on the ground of forum non conveniens.2d at p.92 4) Forum non conveniens and in rem jurisdiction Ibid. 90 454 U. 1972 AMC 1682 (2 Cir. at p.21 not deemed essential to the proper harmony and uniformity of the federal.”). 86 330 U. Société Générale 462 F. AMC at pp. 920-921.84 The Supreme Court further observed that the discretionary nature of the doctrine. 501. No. 1597-1598 (E.2d 147. “jurisdiction should be taken unless to do so would work an injustice. See Louisiana Acts 1999. 922. 1238. however. Speck. 465. It held that:87 “In such a regime. Hoheweg that in Admiralty. ibid. v. 235.. 85 Ibid.S. 1980 en banc). 1600-1601. See also Paula K.86 made uniformity and predictability in the application of forum non conveniens almost impossible. In consequence of this procedural characterization. combined with the “multifariousness”85 of the public and private interest factors set forth in Gulf Oil v. 123(c) of its Code of Civil Procedure in 1999. This statement recalls that of the U. v. See also Alcoa S.”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. general maritime law. so that forum non conveniens may now be applied in maritime cases. Gilbert 330 U. “Forum Non Conveniens and Choice of Law” (1987) 18 JMLC 185. 453. 1980 AMC 309 (2 Cir.91 The court should be wary. 123(C) of the Louisiana Code of Civil Procedure). 443 at p.no special restrictive rule Ten years after Gulf Oil Corp. 1957 AMC 57 at p. Seatrain International 1986 AMC 1587 at pp.D.2d 1231 at p. Inc. 92 Excel Shipping. 1984). U.S. that Louisiana amended art. however. 84 . Tel Aviv 711 F.S. Olaf Pedersen's Rederei) 239 F. F. See Perusahaan. N.2d 376. and reaffirmed in Piper Aircraft. 455. 87 510 U. v.S. one can rarely count on the fact that jurisdiction will be declined. 1985 AMC 67 pp. 1972). 76-77. 1236. 1983). will also be determined by the principles set out in Gulf Oil Corp. 1994 AMC 913 at p.. when the jurisdiction of the underlying action has been maintained. finding that that provision was not pre-empted by federal maritime law. 508 (1947): “[U]nless the balance is strongly in favour of the defendant. U.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. 89 Perusahaan Umum v. 1986 AMC at pp. M/V Nordic Regent 654 F. but was rather a procedural rule within the legislative jurisdiction of the individual U. `982 AMC 214 (1982). Reyno. 91 454 U. 73-74 (5 Cir. Olympic Corp. at p. 501 at p. 1. supra. Note. Gilbert.S. Co.S. AMC at pp. it was held in Sunny Prince v. 1956).S.” 3) Admiralty . 922.2d 463 at p. D. 503 at p. 78-79. supra. Barge Sea-Span 241. 1218. Owen in [1986] JMLC 133. 1985 AMC 67 at p.Y.22 Perusahaan Umum v. 1985 AMC at pp. 97 Perusahaan Umum v.2d 1103. except in special circumstances: see generally Tetley. added to the normal presumption in favour of the plaintiff's choice of forum.S. 76. See also Warn v. 103 Ibid. 235. 1966 AMC 121 at p.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. N.97 The Court did point out. however.2d 620 (9 Cir. 100 A ship cannot be arrested twice on the same claim. 1098-1104. 1990): “the Gilbert analysis. 355 at p. 1985 AMC at p. 1985 AMC at p. 1990 AMC 1583 at p. 1999).2d 463 at p. 1239. 1239. “The Integrity of the Judicial Sale”. M/V Maridome 169 F.3d 625 at p. Biard. 249 F.. and Van Cauwenberghe v. 102 Perusahaan Umum v. 555 and The Alletta [1974] 1 Lloyd's Rep. See also The New England (J.S. 1236. Gotham Marine Corp. 1931 AMC 407 (S. position. 1971 AMC 1298 at p. 2 Ed. Supp. is fully applicable to all forum non conveniens motions.2d at p. 1970). Piper Aircraft Co. G. 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. 517 (1988). as clarified by Koster v. 1238.2d 1215 at p.. [1982] 2 Lloyd's Rep. “jurisdiction should be taken unless to do so would work an injustice. Olaf Pedersen's Rederi A/S) 239 F. 145.” See. however. Maritime Liens & Claims. 711 F.) 47 F. see The Despina. 1234. 142 at p. Cactus Pipe & Supply Co. 94 93 . pp. 1985) and a critical commentary by David R.2d at p.D. 1985 AMC at p. 1957 AMC 57 at p. 367 (1885).104 711 F. that the in rem factor. 518 (1947). 40. 1985) and Farwest Steel Corp. did make it nearly impossible for the defendant to show interests in an alternative forum. 1985 AMC at p. Tel Aviv.1076 (9 Cir. 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. the court can embark upon the Gulf Oil balancing analysis and decide whether or not it is a convenient forum. Thus courts have been compelled to deny forum non conveniens dismissals in actions in rem. v.” 95 114 U.103 A conditional dismissal.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. however.101 but also deny him an adequate security. strong enough to strike the forum non conveniens balance in his favour.2d 1231 at p. In Sunny Prince-Hoheweg (Motor Distributors v. 711 F.2d at p. including in rem admiralty actions. 711 F. 104 Ibid. 1985 AMC 2150 (5 Cir. 1999 AMC 1070 at p. v.K. 711 F.” 98 Ibid. 124 (S. Supp. See Shalom-Stolt Dagali.K. Del.98 The Court emphasized that the balancing analysis in Gulf Oil was predicated upon finding that an adequate and available alternative forum did exist. 1302 (9 Cir. 78.S. 1966). Tel Aviv. 60. 465.S.S. 69 (5 Cir. 77. Chap. 1982 AMC 214 (1981).2d at p.. unless the inconvenience he would suffer was tantamount to injustice. 1931).Y. 1998. 630. Reyno.. the Fifth Circuit had declared that in admiralty actions in rem. 73. 1238. For the U. supra.96 the Fifth Circuit stated that the in rem action did not represent an exception to the Gulf Oil balancing analysis. 508-509 (1947). 26. 505. Tel Aviv.. v.2d 332.K. because he would no longer be able to seize the ship102 to enforce whatever judgment he might obtain in the alternative forum. Gilbert. v. 330 U. 454 U. 769 F. American Lumbermens Mutual Casualty Co. M/T Rich Duke 734 F. 486 U. See also Cliffs-Neddrill v. v. 1983). 711 F. N.. before embarking on a Gulf Oil balancing analysis..94 After referring to The Belgenland95 and Gulf Oil Corp.99 Since the seizure of a ship in rem releases the ship from the maritime lien arising from the claim. 101 In M/S Galveston Navigator 431 F. 96 330 U.2d at p. 99 Ibid. 1585 (D. 501 at pp. M/V Montmartre 756 F. Welding Co. the Court affirmed that “the release or removal of the vessel from the jurisdiction of the court destroys in rem jurisdiction . COGSA would be applied by the foreign court.S.109 Thereafter. Union Ins. In view of current American law. the Second Circuit in Muller v. 104 (2 Cir.” Twelve years later the Second Circuit took a completely different approach in Indussa Corp.106 There were radical swings of the legal pendulum.S. Particular principles have been developed in the U. of Canton. 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. 501 (1947). en banc 1967). 1982 AMC 588 at pp.2d 721 at pp. S. 1981). Fritz Transportation International 2002 AMC 106 (N.105 are now considered. American courts began systematically invalidating foreign forum selection clauses as contrary to sect. Ltd. 203. 2001). [1967] 2 Lloyd's Rep. Swedish American Line upheld a jurisdiction clause and declared:107 “…if Congress had intended to invalidate such agreements. Ltd. 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.. 1688 (2 Cir. Soc. M/V 106 105 . v. 108 377 F. as was done in the Canadian Act of 1910. 377 F. such clauses were treated much more strictly. 1967 AMC 589 at p. 594-595. for example. v. 590-593 (4 Cir. LG Electronics Inc. 101 at p. however. 202. where the bill of lading includes such a provision. 723-725. It is only when the clause or agreement concerned fails the test of enforceability under those principles that forum non conveniens principles. Gilbert. 807. while at the same time the courts retained their discretion. as outlined in Gulf Oil Corp. 1955 AMC 1687 at p.110 330 U.D. 105. See. it would have done so in a forthright manner.2d at p.2d 200 at p. 110 In accordance with the holding in Indussa. v.2d 806 at p.Elikon 642 F. 1967 AMC at pp. S. S. at p. 1955). to evaluate the enforceability of jurisdiction clauses and agreements in general. Cal. 107 224 F. for example. 3(8) of COGSA 1936. it tends to be the paramount factor in that analysis. v.” The concern was that foreign law rather than U. including those appearing in ocean bills of lading. the Muller court leaned too heavily on general principles of contract law and gave insufficient effect to the enactments of Congress governing bills of lading for shipments to or from the United States. Conklin & Garrett. v. See.S.S.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. 593. [1967] 2 Lloyd's Rep. 109 Ibid. before a relatively stable doctrine of forum non conveniens and jurisdiction clause enforcement were arrived at in the United States. In 1955. 2002 AMC 314.S. pointing out that COGSA was not involved in that case. 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. as grounds of non-enforcement of a foreign forum selection clause: 1) fraud or overreaching. Alas. 1090 (S. 320-322 (5 Cir. Inc. Sun Castor 1978 AMC 1756 (D.2d 1441 at pp. both the American and English Courts ordered suit in England under the same clause in the same matter. v. Supp. Supreme Court held that a foreign jurisdiction clause in a freely negotiated.). 2002 AMC 528 at p. 1 at p. v. M/V Sersou 1999 AMC 2352 (S.b. 53 (2 Cir.2d 372. Co. supra. international contract should be enforced. 1998) (“All and any claims and disputes under the Bill of Lading shall exclusively be referred to [a]rbitration in Bremen [Germany] . See.114 as opposed to the merely “permissive” clause. 1580-1581. in a matter which was subject to suit simultaneously in England.3d 923 at p. 2002).A.2d 721. Attiki Importers 22 F. Zapata OffShore Co. 1977). The freely negotiated agreement must be unaffected by fraud or undue influence or overreaching bargaining power. S. N.D..111 The United States Supreme Court. v.S.Y. 210 F. Ferrostaal. 531 (D. 156 F. and relied on Indussa Corp.D. v.m. Supp. 111 407 U. Lloyd’s of London 94 F. v. Ranborg. In the case at hand. 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” . 1972 AMC 1407 at p.Supp. by which the parties simply agree to the jurisdiction of a specified court without expressly excluding jurisdiction elsewhere.115 A jurisdiction clause may still be Finnrose 826 F. 114 See John Boutari & Sons v.S. Although the clause provided that disputes “… shall be determined by the Court of Bremen”. Novocargo USA Inc. the Court refused to follow Bremen. 2002 AMC 1477 at p. N. M/V Wesermunde 838 F. 1972 AMC 1407 (1972) This was a freely negotiated private international agreement for towage. 2d 675 at p. 156 F. [2002] ETL 57 (S. 1418 (1972). This followed the English tradition of giving effect to jurisdiction clauses. 1999). Inc. Co.V. M/S Bremen (and Unterweser G. 462-463.Y. 1988 AMC 318 at pp. Compare with Reed & Barton Corp. 1987).H.S. 1479 (S. Zapata Off-Shore Co. Tokio Express 1999 AMC 1088 at p. Lucent Technologies. which obligates the parties to the bill of lading (or other contract) to litigate in one specified court. v. A bill of lading of course is not freely negotiated but a standard-form contract.3d 355 (2 Cir.N.. 678. 158 (C. Inc.m. 15. 1981). See also Hartford Fire Ins. as it did not exclude jurisdiction elsewhere or employ other mandatory venue language.2d 1576 at pp. instead. 1996) and listing. 2002). Central National-Gottesman. v. 2002 AMC 314. M. M/V Berane 181 F. 1. 2334-2335 (11 Cir.2d 372. the mere use of “shall” did not make the clause “mandatory”. 928 (4 Cir. 1982 AMC 588 (4 Cir.113 It is important to note that the type of jurisdiction clause which Bremen and subsequent decisions have upheld is the “mandatory” (or “exclusive”) type of clause. v.. 1988). The U. v. Md.Supp. 115 For an example of a purely “permissive” forum selection clause. 1988 AMC 2328 at pp.D.Y.”).H. In M. M. 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. N. [2002] ETL 57 (S. aff’d without opinion sub nom.2d 458 at pp. 112 (The Chaparral) Unterweser Reederei G.S. [1968] 2 Lloyd's Rep.V.G.D. S. 3) fundamental unfairness of the chosen law depriving the plaintiff of a remedy or 4) a strong public policy of the forum. Elikon 642 F. See also Union Insurance Society of Canton v. 2002).”). 1442-1444. 113 407 U. Chemical v.3d 51 at p.Y. see Hartford Fire Ins. N. citing Allen v. Novocargo USA Inc. Acciai Speciali Terni USA Inc. however.D. 1994) and other authorities collected there. State Establishment for Agricultural Product Trading v. The same hostility was demonstrated with respect to foreign arbitration clauses. 2002).Y.b. M/V Gertrude Oldendorff 204 F.112 recognized a jurisdiction clause giving jurisdiction outside the United States.24 2) Foreign jurisdiction clauses presumptively valid A major change in judicial attitudes towards foreign forum selection by contract occurred. Tokio Express. 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.) v. for example. in an international towage case. 118 More recent decisions have similarly downplayed the relevance of inconvenience in forum selection clause analysis. that the Court. 116 See. permitting the carrier to sue the merchant in the latter’s place of business).g. 2003). where the Court found to be mandatory. 46 U. 2003 AMC 2608 (N. . Inc. 118 Ibid. Appx. Ct. v. Vogt-Nem. 2001). 183c. 79 (2000).” The second sentence was held to be a qualification on the first sentence. Radisson Seven Seas Cruises.. 1233.D. or “[a]ny disputes under the Bill of Lading to be decided in London according to English Law. 2d 675 at p. 92. weaken.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. but merely permitted. because no evidence on the prohibitive expense of arbitrating had been adduced by the party seeking to circumvent the agreement.g. an arbitration agreement could be held unenforceable. Ltd. AMC at pp. 121 Ibid at p.D. 4 District. Supp. v. 2002).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). Randolph..D. Co. Co. v. 2001 AMC 2417 at p. Fla. Aktiengesellschaft Fur Industrie Versicherungen 188 F. Supp.D..D. 2004 AMC 769 (Fla. an exception giving the carrier an option to sue the merchant elsewhere than in the courts of Hamburg. Inc. 2003 AMC 21 at pp. 1704-1705. for example. was rejected by the Supreme Court in Carnival Cruise Lines.D.S. which may be just as mandatory where “will” is used. 120 513 U. Tokio Marine and Fire Ins. rather than permissive. and related inconvenience. See Vogt-Nem. however. Hartford Ins. 2002). Cal.119 Nevertheless. Hanover Intern. the United States Supreme Court.. 2004). N.. 491 (3 Cir. U. which did not vitiate the mandatory character of the clause. 1991 AMC 1697 (1991). Lines. however.J. M/V Tramper 263 F.116 Because foreign jurisdiction clauses and agreements are now presumptively valid in the United States.K. 2003 AMC 21 at p. v. 1995)).2d 1226 at p. at pp. 585. 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. v. airfare and hotel bills). found the arbitration clause in that case to be enforceable.2d 1191.Appx. 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. 1479 (S.S.C.S. 678.2d 1226 at p. by a 5 to 4 majority. Ltd.. in order to litigate in the designated court. Supp. 2002 AMC 1477 at p. Cal. 117 499 U. Mitsui O. v.Y. that the words “shall” or “must” are not essential to the mandatory character of the clause. 2030 (S. The relevant enactment in this case was the Limitation of Vessel Owners’ Liability Act of 1851. Inc. however. Shute. 2003). 2002). 867 So. N. as the first sentence contemplated. 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. Note. rather than permissive. it also qualifies that provision by an exception (e. in its decision in Green Tree Financial Corp. Intermetals Corp. The case concerned a consumer finance contract containing an arbitration agreement which omitted any details regarding filing fees and arbitration costs.D. of the Southeast v.N. Inc. Dist. where in addition to providing for the exclusive jurisdiction of a given court. COSCO 2004 AMC 1048 at pp. for example. 2004).27 (N.”. M/V Pergamos 1996 AMC 2022 at p. 1050-1051 (C. 2422 (D. 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…. travel expenses. Note. . Inc. Inc. 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. aff'd 36 Fed. Supp. Burns v.2d 454 at p. M/V Gertrude Oldendorff 204 F.S. App.25 mandatory.S.” (Central National-Gottesman. or avoid the right of any claimant to a trial by a court of competent jurisdiction. 24-25 (N. 2002). Cal. Hapag-Lloyd Container Line 2003 AMC 1175 (S. v. – Alabama v. 596-597. which made it unlawful for the owner of a maritime passenger carrier to "lessen.Y. Barbara Lloyd Design. v. 1231. 459. 119 See. The argument that enforcement of a jurisdiction clause should be denied where the clause required plaintiffs to incur substantial “transaction costs” (e. M/V Tramper 263 F. 26 can demonstrate that the costs of compliance with the provision in question would prevent it from “effectively vindicating [its] federal statutory rights in the arbitral forum”.122 3) Foreign arbitration clauses held presumptively valid Both Bremen123 and Carnival Cruise124 paved the way for the U.S. Supreme Court’s landmark decision in Vimar Seguros y Reaseguros S.A. v. M/V Sky Reefer,125 upholding the enforceability of foreign arbitration clauses in bills of lading, and effectively overruling the Indussa126 line of cases. The Sky Reefer decision applies equally to foreign jurisdiction clauses, because Justice Kennedy held foreign arbitration clauses to be “… but a subset of foreign forum selection clauses in general.”127 Sky Reefer involved a shipment of fruit from Morocco to the U.S. under a bill of lading calling for Japanese law and requiring cargo claims to be arbitrated in Japan, whose only connection with the case was that it was the country of the time charterer of the Panamanian-owned carrying ship. Two main arguments were raised to contest the foreign arbitration clause: 1) that the clause lessened COGSA liability by increasing the transaction costs of obtaining relief; and 2) that COGSA might not be applied by the Japanese arbitrators. With respect to the first argument, the Supreme Court found that sect. 3(8) of COGSA (46 U.S.C. Appx. 1303(8)) precluded the lessening of the carrier’s or the ship’s liability for loss or damage arising from negligence, fault or failure in their duties or obligations, but that this prohibition of the reduction of “explicit statutory guarantees” was quite distinct from the question of the procedures for enforcing them and the “forum in which they are to be vindicated”.128 In addition, Carnival Cruise129 had rejected high transaction costs and associated inconvenience as reasons for refusing to enforce forum selection clauses, as English courts had also done long before in interpreting the Hague Rules.130 Enforcement of the arbitration clause in the case at bar was also found to be in keeping with the objects of the Federal Arbitration Act,131giving effect to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New Ibid at p. 90. 407 U.S. 1, 1972 AMC 1407 (1972). 124 499 U.S. 585, 1991 AMC 1697 (1991). 125 515 U.S. 528, 1995 AMC 1817 (1995). The majority decision was supported by seven justices to one (Stevens, J.), although Justice O’Connor issued a separate, concurring opinion. 126 377 F.2d 200 at p. 202, 1967 AMC 589 at p. 593, [1967] 2 Lloyd's Rep. 101 at p. 104 (2 Cir. en banc 1967). 127 515 U.S. 528 at p. 534, 1995 AMC 1817 at p. 1821, citing Scherk v. Alberto-Culver Co 417 U.S. 506 at p. 519 (1974). See also the dissent of Justice Stevens in The Sky Reefer (515 U.S. at p. 549, note 7, 1995 AMC at p. 1832, note 7), who nevertheless admitted: “Of course, the objectionable feature in the instant bill of lading is a foreign arbitration clause, not a foreign forum selection clause. But this distinction is of little importance; in relevant aspects, there is little difference between the two. . . . The majority's reasoning . . . thus presumably covers forum selection clauses as well as arbitration.” For decisions on foreign jurisdiction clause applying the Sky Reefer decision, see, among many others, Mitsui & Co. (USA), Inc. v. Mira M/V 111 F.3d 33 at p. 36, 1997 AMC 2126 at p. 2129 (5 Cir. 1997); Fireman’s Fund Ins. Co. v. M.V. DSR Atlantic 131 F.3d 1336 at p. 1339, 1998 AMC 583 at p. 587 (9 Cir. 1997), cert denied, 525 U.S. 921 (1998). 128 515 U.S. 528 at p. 534, 1995 AMC 1817 at p. 1821. 129 499 U.S. 585, 1991 AMC 1697 (1991). 130 515 U.S. 528 at p. 537, 1995 AMC 1817 at p. 1823, citing Maharani Woollen Mills Co. v. Anchor Line (1927) 29 Ll. L. L. Rep. 169 (C.A.). 131 9 U.S.C. 201 et seq. 123 122 27 York Convention 1958).132 The Court further held, citing Bremen, that “… [t]he expansion of American business and industry will hardly be encouraged if, notwithstanding solemn contracts, we insist on a parochial concept that all disputes must be resolved under our laws and in our courts.”133 On the second argument, the Supreme Court held that it was premature to predict what law the arbitrators would apply to the claim. In any event, the U.S. District Court had retained jurisdiction over the case and so would have the opportunity of reviewing the eventual Japanese arbitral award, in U.S. enforcement proceedings, to verify its conformity to U.S. public policy. The Sky Reefer decision is controversial, especially inasmuch as it apparently disregards the importance of a real and substantial connection between the chosen forum and the parties and circumstances of the case, in deciding whether or not to enforce a provision calling for arbitration outside the U.S. But it has changed American law significantly by downplaying the convenience issue and emphasizing contemporary international practice, in assessing the enforceability of both foreign jurisdiction and foreign arbitration clauses in contracts generally and international ocean bills of lading in particular. Although foreign forum clauses and agreements are now generally upheld in the U.S., American courts nevertheless retain their discretion to refuse such enforcement on the grounds stated in the above-mentioned landmark decisions, which grounds are further examined below.134 4) Criteria as to enforcement - U.S. a) Is U.S. law being avoided? American courts were traditionally reluctant to stay actions when the alternative jurisdiction might invoke a law different from U.S. law. This rule is not absolute since Piper Aircraft v. Reyno,135 but is most effective where U.S. law would normally apply and a change of jurisdiction would result in foreign law being applied. Thus in Volkswagen of America Inc. v. S.S. Silver Isle,136 it was first noted that, when in the United States the colliding vessels are both at fault, the innocent cargo may recover full damages against either vessel. In consequence, the Court held that, even though the carrying vessel had already begun a collision suit, on her own behalf and as bailee of her cargo, against the other vessel in a Canadian court, the U.S. Court would not dismiss an action filed against the other vessel by American cargo interests not shown to have been actual parties to the Canadian suit. Adopted at New York, June 10, 1958, and in force June 7, 1959, 330 U.N.T.S. 3, 21 U.S.T. 2517, T.I.A.S. No. 6997. 133 515 U.S.528 at p. 538, 1995 AMC 1817 at p. 1824, citing Bremen v. Zapata Off-Shore Co. 407 U.S. 1 at p. 12, 1972 AMC 1407 at pp. 1415-1416 (1972). The Court further warned (515 U.S. 528 at p. 539, 1995 AMC 1817 at p. 1825) that U.S. courts should be “… most cautious before interpreting its domestic legislation in such manner as to violate international agreements. That concern counsels against construing COGSA to nullify foreign arbitration clauses because of inconvenience to the plaintiff or insular distrust of the ability of foreign arbitrators to apply the law.” 134 See Polar Shipping Ltd. v. Oriental Shipping Corporation 680 F.2d 627 at p. 632, 1982 AMC 2330 at p. 2337 (9 Cir. 1982): “… under United States law, the enforceability of a foreign court selection clause is a matter of judicial discretion”, citing Bremen 407 U.S. 1 at p. 11, 1972 AMC 1407 at p. 1415, note 12 (1972). 135 454 U.S. 235, 1982 AMC 214 (1981). 136 1966 AMC 925 at pp. 927-928 (N.D. Oh. 1966) “even assuming that the Court will apply different legal standards than the Canadian court, this is not a factor to consider in determining whether to decline jurisdiction.” 132 28 In Indussa Corp. v. S.S. Ranborg,137 the Second Circuit held that a jurisdiction clause calling for suit in Norway and which ousted COGSA in a shipment from Belgium to San Francisco was contrary to sect. 3(8) of COGSA. In view of the Bremen138 and Sky Reefer139 decisions, which arguably overruled Indussa, 140 however, foreign forum selection and foreign arbitration clauses are now presumptively valid under U.S. law.141 Such clauses can even benefit third parties pursuant to clear Himalaya clauses extending the protections of the contract of carriage to such parties.142 Consequently, where a party is seeking to persuade a U.S. court to keep jurisdiction despite such a clause in a bill of lading, it no longer suffices to prove that the foreign court (or arbitral tribunal) would apply some law other than U.S. COGSA. As the Supreme Court declared in The Sky Reefer:“… mere speculation that the foreign arbitrators might apply Japanese law which, depending on the proper construction of COGSA, might reduce respondents’ legal obligations, does not in and of itself lessen liability under COGSA §3(8).”143 Nor may the foreign forum clause be set aside merely because it was not freely bargained for. The Southern District of New York, in Silgan Plastics Corp v. M/V Nedlloyd Holland, held:144 377 F.2d 200, 1967 AMC 589, [1967] 2 Lloyd's Rep. 101 (2 Cir. 1967). 407 U.S. 1, 1972 AMC 1407 (1972). 139 515 U.S. 528, 1995 AMC 1817 (1995). 140 See, for example, Nippon Fire & Marine Ins. Co. v. M.V. Egasco Star 899 F. Supp. 164 at p. 170 note 8 (S.D. N.Y. 1995), aff’d 104 F.3d 351 (2 Cir. 1996): “Overruling the Second Circuit's decision in Indussa Corp. v. S.S. Ranborg, 377 F.2d 200 (2d Cir.1967), the [U.S. Supreme] Court in Sky Reefer held that COGSA does not nullify foreign forum selection clauses.” See also Great American Ins. Co. v. M/V Kapitan Byankin 1996 AMC 2754 at p. 2756 (N.D. Cal. 1996): “… since the Sky Reefer Court flatly rejected both the conclusion and rationale of Indussa Corp. v. S.S. Ranborg, 1967 AMC 589, 377 F.2d 200 (2 Cir. 1967), which held that COGSA invalidated foreign forum selection clauses in general, it follows that foreign forum selection clauses generally do not lessen a carrier's liability or violate COGSA.” But see also Union Steel America Co. v. M/V Sanko Spruce 14 F. Supp.2d 682 at p. 689-691, 1999 AMC 344 at pp. 354-356 (D. N.J. 1998), where it was held that although Indussa had not really been “overruled”, its rule was “not viable” (ibid., F. Supp.2d at p. 691, AMC at p. 356) in view of the presumptive validity of foreign forum selection clauses under Bremen and The Sky Reefer. 141 See M/S Bremen v. Zapata Off-Shore Co. 407 U.S. 1 at p. 10, 1972 AMC 1407 at p. 1414 (1972); and many other decisions, including Mitsui & Co. v. Mira M/V 111 F.3d 33 at p. 35, 1997 AMC 2126 at p. 2127 (5 Cir. 1997); Asoma Corp. v. M/V Southgate 2000 AMC 399 at p. 400 (S.D. N.Y. 1999); Allianz Ins. Co. of Canada v. Cho Yang Shipping Co., Ltd. 131 F. Supp.2d 787 at p. 790, 2000 AMC 2947 at p. 2950 (E.D.Va. 2000); Tokio Marine & Fire Ins. Co. v. M/V Turquoise 2001 AMC 1692 at p. 1694 (D. S.C. 2001); Hartford Fire Ins. Co. v. Novocargo USA Inc. 156 F. Supp.2d 372, 2002 AMC 314, [2002] ETL 57 (S.D. N.Y. 2002). 142 See, for example, Tokio Marine and Fire Ins. Co., Ltd. v. COSCO 2004 AMC 1048 at p. 1051 (C.D. Cal. 2004), where the U.S. general agent of the defendant ocean carrier was held to be entitled by the Himalaya clause of a sea waybill to the protection of the exclusive jurisdiction clause in the waybill. 143 515 U.S. 528 at p. 541, 1995 AMC 1817 at p. 1827 (1995). See also Abrar Surgery (PVT) Ltd. v. M.V. Jolly Oro 2000 AMC 109 at p. 112 (S.D. N.Y. 1999): “Although the application of COGSA plainly mitigates concern that the forum clause is defendant's attempt to exempt itself from its statutory obligations, it is not required that COGSA, or even the Hague Rules, apply to validate a foreign forum selection clause.” 144 1998 AMC 2163 at p. 2164 (S.D. N.Y. 1998). See also Mitsui & Co. v. Mira M/V 111 F.3d 33 at p. 36, 1997 AMC 2126 at p. 2129 (5 Cir. 1997); Galaxy Export Corp. v. M/V Hektor 1983 AMC 2637 at p. 2639 (S.D. N.Y. 1983); Dukane Fabrics Int’l Inc. v. M.V. Hreljin 600 F. Supp. 202 at p. 203, 1985 AMC 1192 at pp. 193-1194 (S. D. N. Y. 1985); Reed & Barton Corp. v. M.V. Tokio Express 1999 AMC 1088 at p. 1092 (S.D. N.Y. 1999), aff’d without opinion sub nom. Lucent Technologies, Inc. v. M.V. Tokio Express 210 F.3d 355 (2 Cir. 2000). 138 137 International Marine Underwriters C. Cho Yang Shipping Co. 2000 AMC 2947 at p. 499 U. 528. Therefore the mere fact that the forum selection clause appears in the standard form bill of lading does not render it invalid. v. Co. v.V. however.S. 585. 1998). Inc. Co. N. 530. DSR Atlantic. 1998 AMC 583 at p. 1339-1340. citing The Sky Reefer 515 U. Supp. M/V Turquoise. Co.” 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.). 499. v.D. 2955 (E. M/V Kasif Kalkavan 989 F. 2001).Y.C. 1997). 1998).3d 1336 at pp.”148 145 146 2001 AMC 1692 (D. Va.’ See Vimar Seguros y Reaseguros. Atlantic on the point. criticizing the Ninth Circuit’s view. 794. 521 U. Atlantic court “appears to have wholly ignored” the reference in 46 U. Supp.3d 1336. See also Fireman's Fund Ins.C. In Tokio Marine & Fire Ins. 498 at p. ..147 holding that this purely “procedural” difference between American and Korean law was not a lessening of the “specific liability” imposed by COGSA.A. 131 F.S. 534. Va. Note. M. ibid. where the Court said that the D.S. 147 131 F. Co. U. 1821 (1995). 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.2d 787 at p. Supp.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. took the opposite position in Fireman’s Fund Ins. The Supreme Court upheld a foreign arbitration clause even though it appeared in a ‘standard form bill of lading.R. F. Atlantic. This is particularly true in actions in rem. 499.U. 921 (1998).A. v. 587 (9 Cir. See Allianz.D. S. but that it merely presented “a question of the means of enforcing that liability. 2d at p.S. 794. 131 F.S. 1995 AMC 1817. 1998 AMC 765 at p. 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. 528 at p.S.R. 1303(8)) to the ship’s own liability. over whether the lack of in rem process in the selected forum abroad precludes enforcement of the jurisdiction clause. N. 767 (S. cert. the unavailability of an in rem action in the designated foreign forum is irrelevant to the enforcement of the forum clause. 767 (S. COGSA. 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). Inc. Supp. The Supreme Court also held that a ‘nonnegotiated forum-selection clause in a form ticket contract’ is enforceable against a consumer.V. Supp. 1339 (9 Cir.Y. that if the time limitation for serving the defendant vessel in rem in the United States has also passed (120 days from the filing of the complaint. 1998). under Rule 4(m) of the Federal Rules of Civil Procedure). 515 U. 794. of Canada v.146 The Ninth Circuit.S. which they have acquired by the suit already taken. 1703 (1991). But see also Hyundai Corp. S..S.S. 2000). Cho Yang Shipping Co. 593.U.” (ibid. of Canada v. 2955-2956.145 for example.D. the Eastern District of Virginia. Allianz Ins. Carnival Cruise Lines. 1998 AMC 765 at p. 1995 AMC 1817 at p. AMC at pp. 1991 AMC 1697.S. 1818 (1995). following M. however. v. N. Appx. v. Co. 131 F. American courts appear divided.Y.2d 787 at p. 2955 (E. M/V Sky Reefer. 498 at p. D. denied. Similar positions have been taken by district courts in the Second Circuit. however.R. 148 In Allianz Ins.D. International Marine Underwriters C. M/V D. 2000 AMC 2947 at p. M/V An Long Jiang 1998 AMC 854 (S. 1998 AMC 583.” b) The parties should not lose rights already acquired A change in jurisdiction should not cause the parties to lose rights. v. 2000). M/V Kasif Kalkavan 989 F. v.D. however. Shute. Ltd.. Co. in such a situation. 1999 AMC 1805 (S. N. it is doubtful today whether the mere inconvenience of the clause Snam Progetti 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. 322 (S. 153 277 F. Orient Overseas Line. N. 1966). Supp. however. Lauro Lines 387 F. Retaining jurisdiction would have been unfair to the carrier who was willing to defend the action in Iran where most of the evidence and witnesses were located. 501 at p.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. 151 Great American Ins.. decisions tend to indicate that there is no point in changing jurisdiction if the new jurisdiction is inconvenient to the parties and to witnesses. Rotterdam or Oslo. Co. In the S. In Snam Progetti v. where the bill of lading includes a clear and mandatory foreign jurisdiction or foreign arbitration clause covering the dispute in question. S. Supp. 322 at p. None of the parties had offices in New York and the bill of lading called for suit in Italy under Italian law.151 c) The convenience of the new jurisdiction is less important today Older U..Y. Supp.D. v.150 the Court declined jurisdiction “subject to the provision that none of the parties be prejudiced as to any rights they had on . v. 1605 (S.. 1976 AMC 212 at p. Co. v. 2758 (N. N. however. 154 1966 AMC 1217 (S. See also New Moon Shipping Co. 324 (S. Lauro Lines. 508. court. Man B&W Diesel AG 121 F. and the cargo claimant deliberately takes suit in another court despite that clause. 155 387 F. Street. 152 Gulf Oil Corp. of America v.D. 1967). 1975). 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. M/V Royal Container 30 F. M/V Hyundai Freedom 1999 AMC 1603 at p. 1999).D.D. 1974).S. Nor will the U. Inc. 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.” Where there is a foreign forum selection clause in the bill of lading. 1997). Carnival Cruise and The Sky Reefer. v.3d 24 at p. 150 149 . Wash. 1996).1968 AMC 328 (S.Y. Cal. Supp.154 after the shipowner had petitioned in New York to limit its liability following a total loss at sea. 462.S.Y.D.”149 In Hartford Fire Ins. 1974). v.152 In Sherkat Tazamoni Auto v. and without taking any steps to protect the running of time in the designated forum. Ltd. the date of filing of this lawsuit. In view of the decisions in Bremen.N. quicker and more convenient justice. M/V Kapitan Byankin 1996 AMC 2754 at p. order the defendant to waive the statute of limitations in the chosen forum abroad. N. Chiyoda Fire & Marine Ins.Y.D.S.D.2d 661.Y. 1999). 33. N.D.30 If the court is concerned that rights may be lost. 2124 (W. 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. Gilbert 330 U. 1998 AMC 603 [DRO] (2 Cir. The purpose of a change in jurisdiction is to provide cheaper. Sound Around Electronics. Hellenic Lines. Margit.Y. Tokio Marine and Fire Ins. forum. the U. Cal. unjust. 536. in either case. or tainted with fraud or overreaching. accord Scherk v. at 17. 156 . M/V Kapitan Byankin 1997 AMC 2754 at p. 157 407 U. 1996). 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. v. 15. 1991 AMC 1697. even when the forum clause designates a remote forum for the resolution of conflicts. 131 F. 2956 (E. 1050 (C.. 592. Co.S. Co.156 In this regard. and the relative burden on the carrier..D. at 7. 2004). 2031-2032 (S.S.’ ‘ Carnival Cruise Lines.S. 1972 AMC 1407 at p.D. or repugnant to a strong public policy of the U. 158 515 U. Shute that the high “transaction costs” of suing in the contractual forum did not furnish a sufficient reason for not enforcing the forum selection made by the parties. Cal.D. 1972 AMC at 1419). 407 U. Co. v. Ltd. See also Allianz Ins.” Proving so high a level of inconvenience is no easy task. Inc. the ultimate decision depends upon the exercise of judicial discretion.S. Cho Yang Shipping Co. Supp.’ 407 U. Nevertheless. 1995 AMC 1817 at p. Va. 585. 1995).Y.S.S. the Bremen Court concluded that a ‘forum clause should control absent a strong showing that it should be set aside. the size of their claims. as was held in Bison Pulp & Paper Limited v. COSCO 2004 AMC 1048 at p... Ltd. 18. 528 at p. 506. Rather. 2758 (N. Supreme Court in Bremen. inconvenience can be considered only if it is grave enough to render the clause unenforceable as being unreasonable or unjust. Shute.31 to one party to the contract would permit a U.S. 1823 (1995). or unreasonable to hold that party to his bargain.” The finding in Carnival Cruise Lines v. 499 U. Absent that there is no basis for concluding that it would be unfair. 2000 AMC 2947 at p. ‘the party claiming (unfairness) should bear a heavy burden of proof. 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. 1 at p.2d 787 at p. see Great American Ins.S. 795.S. 2000). 1420 (1972). Thus. where the difference between forum non conveniens dismissals and dismissals for improper venue (because of a foreign forum selection clause) was emphasized. N. court to stay proceedings conditionally or to dismiss them. 417 U. Alberto-Culver Co. 1702 (1991) (quoting Bremen. 159 1996 AMC 2022 at pp. 1418. reinforced the limited role that the factor of “inconvenience” now plays in assessing the enforceability of such a provision in American courts.D. 1972 AMC at 1412.” In this regard. of Canada v. 518 (1974). 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. V. would not reduce the carrier’s liability contrary to COGSA). COGSA (46 U. Inc. 894 (S. Street. 2002 AMC 1477 at pp. 1483-1484 (S. M. 1303(8)). the Korean clause was upheld. 101 at p. D. 966-967.32 In most cases. 164 204 F. v.161 d) Must not contravene sect. as judicially interpreted by American courts. Since Bremen and The Sky Reefer. M/V Royal Container 30 F. because English courts applying English law would uphold a demise clause in the bill of lading.S. permitting suit only against the shipowner as carrier. notwithstanding the demise clause in the bill. 1967).Y. the U. 674-675 (S. would permit suit against the time charterer who issued the bill as well as the shipowner. for example.165 See. Inc.Y.3d 432 (2 Cir. thus reducing litigation costs and the risk of inconsistent judgments) is refused as a ground for refusing to enforce a jurisdiction clause. 2d 675 at p. Supp. 1998). 2003). for example. Co. 3(8). because it would relieve or lessen the carrier’s liability contrary to that provision.162after referring to COGSA. M/V Coral Halo 2004 AMC 273 at p.Y. v. Gertrude Oldendorff.163 they can still be successful on occasion.D. M. [1967] 2 Lloyd's Rep. 283 (E. District Court therefore kept jurisdiction. whereas U." Accord: Glyphics Media. La. 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. 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. Appx. In Nippon Fire & Marine Ins Co. where although Korea (the foreign jurisdiction specified in the bill of lading) would permit suit against only the shipowner or the charterer but not both. aff’d without opinion. so that giving effect to those clauses would “fragment this case beyond recognition”. Court of Appeals decided that a foreign jurisdiction clause was invalid generally.S. Croatian Line 918 F.D. N. U. “judicial economy” (the greater convenience of having all disputes settled in one forum. Although such efforts usually fail. 161 For an example of such serious inconvenience. the Japanese ship manager agreed to waive the demise clause in the bill of lading.2d 200 at p. v. the vessel owner had waived enforcement of the forum selection clause by filing a claim in the pending U. COGSA.S.D. COGSA. 663. under which foreign jurisdiction and foreign arbitration clauses are deemed presumptively valid. 1999): "Refusing to enforce a forum selection clause on this basis [the risk of multiple proceedings] would undermine whatever measure of certainty such clauses bring to the international shipping transactions in which they are commonly employed. S. v. 204. 162 377 F. 2757 (N. 3(8) of U. N. the Court deciding that the claimant could subsequently sue the shipowner and/or the vessel in rem in the Southern District of New York. Inc. 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. where it appeared that Croatia applied the Hague Rules).Y. Supp. 1999). N. 680. sect. v. Sound Around Electronics v. 1999 AMC 1805 at p.S. Supp. 165 But see also Hyundai Corp. 160 . Great American Ins. In Central National-Gottesman.2d 661 at p. Cal.164 for example.S. 105 (2 Cir. 1996) (a mere “conclusory allegation” that Croatia was “politically unstable and jurisprudentially immature” was insufficient to set aside the Croatian forum clause. 1996 AMC 1189 at p. 595. 1967 AMC 589 at p.C. see In re Rationis Enterprises. however. N. Va. 201 F. an English law and jurisdiction clause was found unenforceable as lessening the liability of the carrier contrary to sect. the argument was accepted.Y. Ranborg.V. action and availing itself of the limitation proceeding. 961 at pp. 1999). the contractual forum.A. 1996) (plaintiff failed to refute defendant’s showing that Australia.D.V. 2002). however. 1196 (E. Pasztory v. however.S. Conti Singapore 2003 AMC 667 at pp. 3(8) In Indussa Corp.S.D. M/V Kapitan Byankin 1996 AMC 2754 at p.D. N.D. 163 See.S. Inc.160 Where many claims were involved in a limitation proceeding. of Panama 1999 AMC 889 at p.S. The U. 856 (S. so as to avoid the risk of non-enforcement of the Japanese law and forum clause in the bill. v. The Court noted. 1806 (S. M/V An Long Jiang 1998 AMC 854 at p.. 3(8) of U. 2000). 169 See. Co. La. 1998). 3(8) of U.. unless the carrier could prove that the deviation (i. would not break its package limitation under German law. the carrier had intended to cause the loss or had acted recklessly with knowledge that the loss would probably occur. Sanko Spruce 1999 AMC 366 (D.Y. 2960 (D. facing contradictory affidavits from foreign law experts. if it could not be established that those courts would apply the obligatory Hague/Visby Rules enacted by Belgium’s Maritime Law. M/V Spring Wave 92 F. M/V Jin He 1999 AMC 1700 at p. Nippon Fire & Marine Ins. 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. even if negligent. have been uncertain whether particular bill of lading clauses. Co. In these cases. prima facie. N. v. 1719. v. applying its law. 168 See. in the U. 1998). M/V Nedlloyd Holland 1998 AMC 2163 at p.S. Conti Singapore 2003 AMC 667 at p. 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. 2000). for example. 170 For a similar European decision. Cal. COGSA. would or would not in effect be construed so as to relieve or lessen the carrier’s liability contrary to sect. M. 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. [2002] ETL 453. where a Belgian Court decided that a bill of lading clause granting jurisdiction over cargo claims to U. 3(8) of COGSA. unless cargo could prove that in doing so.S. unless he had immediately objected to it on receiving the bill of lading. art.V. M/V OOCL Faith. unless consented to expressly by the shipper or permitted by a general port custom. S. v.D.J.166 a bill of lading calling for German law and Hamburg jurisdiction contained a general liberties clause. 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. 2003). 2001). M/V Ocean Sunrise 2003 AMC 2200 (E. v. See also Kanematsu U. COGSA package limitation for resulting cargo loss or damage. if and when interpreted by the designated foreign forum applying the designated foreign law. 2000 AMC 1717 at p. N. where on-deck stowage constitutes. Majestic Electronics. 1997 AMC 2954 at p. 576. the foreign jurisdiction clause was denied enforcement on grounds of public policy. will in fact lessen the carrier’s responsibility below the COGSA threshold.e.D. which the insurer would enjoy under COGSA. 2166 (S.D.170 2003 AMC 30 (C. the foreign forum selection clause has been denied enforcement. 1999). courts would be void by Belgian law.C. The American court noted that such a clause would be upheld in Germany. Cal.A.D. Glyphics. 91.S. Supp. Federal Ins. 675 (S. v. In Gibbs International Inc. permitting the carrier to stow a helicopter on deck. Conversely.D. [2000] ETL 509 (E.S. 2003). the deck stowage) was reasonable. and the shipper would be deemed to have consented to deck stowage. Inc. under sect. Inc. v.33 In Heli-Lift Ltd..Y. where a Japanese forum selection clause was found null and void and unenforceable. La.169 there must be proof positive that the foreign court. The carrier’s act in stowing the cargo on deck. for example. 167 166 .S. v. Union Steel America Co. an “unreasonable deviation” from the contract of carriage. v.167 a Korean jurisdiction clause in a bill of lading was held to be invalid. There are also decisions in which American courts. June 18. 1701(C.D. because it appeared that Korean law would not grant the cargo underwriter claimant an action in subrogation. N.168 One point is very clear in this regard. see Rechtbank van Koophandel te Antwerpen. Inc. 1997). 2002 (The Dymphna. Sligan Plastics Corp. 574 at p. Subsequent U. Corporation 121 F. Supp. such as by fraudulent means. forum’s public policy172). v. 400 (S.34 e) Reasonableness For a great many years. N. of Lloyd’s.”174 “Overreaching” refers to inequality of bargaining power between the parties or other circumstances in which there is “an absence of meaningful choice on the part of the parties”.S.S. 2002).. The Second Circuit.2d 675 at p.S. ibid. ibid. at pp. M/V Southgate 2000 AMC 399 at p. 1418 (1972). Dist. 2618-2619.K.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.Y. in Roby v. Sun Line Cruises.Y. 672 (S. Inc.2d 806 at p... Inc. at pp. for example. 7 Ed. 224 F. 1689 (2 Cir. 173 996 F. M. 1966). (3) if the fundamental unfairness of the chosen law may deprive the plaintiff of a remedy.3d 956 at p. N. 510 U. 1995). v.S. 2003). v. 909 at pp. 177 Barbara Lloyd Designs. 2003 AMC 2608 at p. Conti Singapore 2003 AMC 667 at p. M. S. 1955). sect. 1955 AMC 1687 at p. 2002 AMC 2377 at p. 1996 AMC 253 at p.Y. Glyphics Media. 174 See also Asoma Corp. 1993). Inc. 1997) and Black’s Law Dictionary. 451.D.Y. 911-912. 965 (5 Cir.Y. 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. 2617-2618. however. 1997 at p. Swedish American Line. 67 F. (2) if the complaining party ‘will for all practical purposes be deprived of his day in court.S. v. N. Supp. 175 Barbara Lloyd Designs. 808. S.S. Corp. 2616 (N.D. fraud or overreaching. 11. Takemura & Co. 1 at p. or (4) if the clauses contravene a strong public policy of the forum state” (citations omitted).Y. 1999). 15. N. Inc. 2002) (bill of lading cases relying on the same criteria). Inc. 2003).3d 7 at p. which factors. 1971. What is reasonable is a question of fact for the trial court to decide. Gertrude Oldendorff 204 F. Tsuneshima Maru 197 F. Mitsui O. 176 Barbara Lloyd Designs. 1220 (S.176 Public policy must be “strong” in order to defeat a choice of forum provision.’ due to the grave inconvenience or unfairness of the selected forum. Central National-Gottesman. See Effron v. and is also usually dismissed as a ground of nonenforcement. Jockey v. 1961). 1479 (S.D. decisions have generally not strayed far from the three very general grounds of unenforceability articulated in Bremen (injustice or unreasonableness (unfairness). Dk. 1363 (2 Cir. 1218 (S. Ct. 2381 (S. 945 (1993). 2002 AMC 1477 at p. 172 407 U.D. Margit 1966 AMC 1217 at p. cert. 1129. The fact that plaintiffs in many jurisdictions are permitted to plead by deposition often precludes acceptance of the “day in court” argument. as where one party takes unfair commercial advantage of another. N. denied. citing Haynsworth v. Leverkusen 217 F. 171 .177 Muller & Co.V. Inc. 80.2d 447 at p.V.D. Supp. or violation of the U. 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. Lines Ltd. v. v. Ltd. 1962 AMC 1217 at p.D. N.2d 1353. See also Restatement (Second) on Conflict of Laws. 259 (2 Cir. 1972 AMC 1407 at p. are rarely accepted as grounds for refusing enforcement to an otherwise valid forum clause in the United States.S. 678. 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. Ltd. Nor did the provision require suit to be brought exclusively in any one specific forum.D Cal. at p.D. and the convenience and relatedness of the forum to the contract. at pp.. v.e. in Glyphics Media. Tex. the port of loading.2d 787 at p. 18 at p. although more inconvenient for one party. Companhia Fabricadora De Pecas. the bill of lading clause specified United States law and U.183 On the other hand.185 The clause. the transshipment port or the place of delivery). v. Co. does not justify refusal to enforce the clause. Cal. Va. N. 2001).C.. the place of delivery. M/V Turquoise 2001 AMC 1692 at p. 489-490 (6 Cir. Fritz Transportation International. The clause failed to specify when the carrier had to exercise its option and when the “default” (i. the requirement to post over $2.D. 770 (S. Co. jurisdiction. of Canada v.) forum applied. Dismissal on forum non conveniens grounds was also denied.35 In Allianz Ins.180 Similarly. U. Cal.2d 487 at pp. the awarding by Brazilian courts of judgments in cruzeiros rather than in dollars. 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”. held to be “unreasonable”.S. and the alleged difficulty of getting money out of Brazil. 20. Jalisco 903 F. v. 184 2002 AMC 106 (N. See also Tokio Marine & Fire Ins. 179 973 F. 2003). provision of an adequate remedy for the aggrieved party. unreasonableness was found in the “floating choice of law and jurisdiction clause” considered in LG Electronics Inc. 2001). 2004). S. 180 The Sixth Circuit noted (ibid. as security. 489-490): “speculative concern regarding fairness of a foreign court. 2000).D.S. which parties must have considered when negotiating the agreement. was nevertheless not unjust. the presence of bad faith. 2001).” 181 2003 AMC 667 (S. Ltd. the port of discharge. have generally been found insufficient to constitute “unreasonableness” justifying sidestepping of the designated forum. 1996 AMC 769 at p. where the carrier’s option to sue in either Mexico City or Rio de Janeiro was upheld. 2950 (E. was not an adequate ground for nonenforcement of an exclusive Indian law and forum selection clause in an ocean carrier’s bill of lading.Y.S..D. Inc. were invoked in enforcing the jurisdiction clause. because the forum selection clause in the bill of lading required that suit be brought exclusively in one or other of those fora. Co. In Interamerican Trade Corp.186 131 F.2 million U.181 the allegedly “deplorable state of India’s court system”.178 the Court noted that: “Additional considerations include the relative bargaining power of the contracting parties. and the fact that foreign witnesses were permitted to testify by way of affidavit in India. Supp. v. 1992).” Mere procedural differences between trial in the designated court and trial in the U.184 In that case. was therefore not enforced. 178 . 182 See also Tokio Marine and Fire Ins. 790. with other authorities cited there. Other evidence indicated that Brazilian courts were fully competent and that trial there. v.. 185 Compare with Industria Fotografica v.S.179 the unavailability of a jury trial in Brazil. M. 2000 AMC 2947 at p. particularly as regards delays for trial. were all dismissed as grounds of non-enforcement of the Brazilian jurisdiction agreement. 183 Ibid.V. Supp.D. 186 2002 AMC 106 at p. 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. 1995). the slowness of the Brazilian judicial process.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. 1694 (D. the lack of trial by deposition. 110 (N. M/V Conti. 673. COSCO 2004 AMC 1048 (C. Cho Yang Shipping Co. Fla. See Tetley. Inc. however. Unlike the clause in Monrosa. Dias v.. at p. Maritime Liens & Claims. although reading: “No legal proceedings may be brought against the Captain or shipowners or their agents except in Genoa. 418.2d 381 at p.” 188 187 . 190 407 U. 180. 20. S. Co. Ltd. 1422. most modern foreign forum selection clauses are not limited to claims against the master. Accordingly. Ltd. 1933-1936 and on-line at http://tetley. 2 Ed.. AMC at p. 1972 AMC 1407 at p. Monrosa v. 384. 1995).S. however. ibid.2d 1441 at p. the wording of the foreign forum selection provision has been held wide enough to encompass claims in rem as well as those in personam. 1895 at pp. International Maritime and Admiralty Law. where the clause was so much more narrowly drafted. 1983) re Supplementary Rule C.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. The bill of lading jurisdiction clause did not specifically refer to in rem proceedings. The arrest of the ship in rem under Supplemental Rule C gives the Federal District Court jurisdiction. and concluded that191 “…the language of the [Bremen] clause is clearly mandatory and all-encompassing. 189 359 U. so the forum selection clause was not enforced.. Rev. owners or agents of the vessel. 2732 (9 Cir. 191 Ibid. 429-431. 1 at p.S. Dashwood Shipping. The admiralty attachment under Supplemental Rule B also gives jurisdiction.S. 1988 AMC 318 at p. but where the ocean carrier was also faced with crossclaims by co-defendant inland carriers arising out of the same facts. L. U. see also Alyeska Pipeline Serv. 408-409. the language of the clause in the Carbon Black case was far different”. 406407. See also Conklin & Garrett.” The clause was held to be insufficiently specific to cover the in rem claim and thus the District Court could keep jurisdiction. 1998 at p. the U.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. Carbon Black Export. 1408 (1972). 1443.law. 2. at p. See also J. Tetley. 1995 AMC 2730 at p.ca/maritime/arrest.S.v. 321 (5 Cir. 2003). See also Tetley. See Tetley. where the jurisdiction clause in the towage contract stipulated that:190 “…(a)ny dispute arising must be treated before the London Court of Justice".United States A very particular problem arises in admiralty in respect to the enforcement of forum selection clauses. Supreme Court distinguished Monrosa. M/V Finnrose 826 F.187 f) In rem . Lauritzen A/S v. 1987): “Bremen.A.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. overrules the broad reading this Court gave to the clause in Monrosa. 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. Zapata Offshore Co. it was held to be “unreasonable and unjust” to require the ocean carrier to defend the claim and cross-claims in two different districts. 1959 AMC 1327 (1959). S. 2003 at pp. “Arrest. 944. Attachment and Related Maritime Law Procedures” (1999) 73 Tul. Geneva 2003 AMC 2511 (S. 1983 AMC 2719 at p.mcgill. The Vessel Bay Ridge 703 F.htm. v. 2721 (9 Cir. The jurisdiction was also convenient to the parties. Mediterranean Shipping Co.D. itself. Indeed in M/S Bremen v. although some other jurisdiction is more appropriate. Inc. .3d 1336 at p. 2002 AMC 1608 at p. which has acquired jurisdiction by an admiralty attachment (under Supplemental Rule B).S. District Court pointed out that. 1978.S. 1972 AMC 1407 (1972).37 Again in Fireman's Fund Ins. 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. Halla Maritime 583 F. M/V Kasif Kalkavan 989 F.197 at art. any claim or dispute arising hereunder or in connection herewith shall be determined by the courts in Seoul and no other courts. at p. Zapata Off-Shore Co. 1611 (E.b. Supp.3d 355 (2 Cir.S. this clause was broad enough to cover in rem claims. Tokio Express. Co v.2d 352.196 The Hamburg Rules. which has obtained jurisdiction by an arrest in rem (under Supplemental Rule C) can nevertheless give effect to a jurisdiction clause and decline jurisdiction.” 195 M/S Bremen (and Unterweser G. 1985 AMC 356 at pp. (4) the cost of obtaining the presence of witnesses.193 where the clause similarly subjected “… any claim or dispute arising under this Bill of Lading”. shall be brought before the Seoul Civil District Court in Korea" to encompass in rem claims. 193 1999 AMC 1088 (S. decline jurisdiction and dismiss the attachment or order the release of whatever security the defendant has posted. 198 28 U. Va. Norwegian Cruise Lines. Tokio Express. M. 1090) also cited Industria Fotografical Interamericana v.199 131 F.m. 1337. Supp. (6) calendar congestion. . 770 (S. 1998 AMC 583 at p. v. Supp. DSR Atlantic. in the interest of justice.V.194 In the same way that a court.V. The Court (at p. but only upon the defendant furnishing security to ensure payment of a subsequent judgment. Lim. The suit is transferred. under this Bill of Lading . and in force November 1. 407 U. Convenience is the main criterion. 20. . the U. 1270-1271. 2004 AMC 1278 (S. (5) the relative ease of access to sources of proof. see Lurie v. M. 18 at p.N. 194 Ibid. Code sect.D. 359-360 (W.Y. where the Court interpreted a clause that read "any and all action .D.D. provide useful rules and procedures when suit has been taken by an action in rem. . In Reed & Barton Corp. (7) where the events in issue took place. v. 1998 AMC 765 (S. The parties agreed to the jurisdiction choices in the contract. 305 F. 535. 1999).195 so can a court. 1091.S. Supp. 1998). see also In re the Complaint of American President Lines. Procs.) v. . 240 F. M. 196 Teyseer Cement v. 1995 192 . N. 199 See Norfolk Dredging Co. M. 1992. Ltd." For an example of the use of this provision in a case involving a forum selection clause (in a cruise passenger ticket).. give effect to a clearly worded jurisdiction clause. and (8) the interests of justice in general. (3) the availability of process to compel the presence of witnesses. unlike the clause considered in Monrosa. 1268 at pp. g) Transfer within the U. 21(2).Y. 1995). 2000). Inc. 197 Signed at Hamburg.V. .V. a district court may transfer any civil action to any other district where it might have been brought. 1996 AMC 769 at p.Y. 210 F.H. See also International Marine Underwriters v. Jalisco 903 F. Lucent Technologies. 2002): “These criteria include: (1) the convenience of the parties. Tex. (2) the convenience of material witnesses. 1404(a) provides: "For the convenience of the parties and witnesses." The Ninth Circuit interpreted this clause to include in rem claims. 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. supp. to German law as determined in the “Hamburg courts to the exclusion of the jurisdiction of the courts of any other place”.D. 1997). (citations omitted). 2004). on March 31. 584 (9 Cir. 1984).D.192 the clause stated: " . N. 498.2d 532 at p. Wash. 1. although it did not mention them expressly.D. aff’d without opinion sub nom. 2001 AMC 2153 at pp.C. v. L. 315 (S. [1973] 2 All E. 493 F. 677 (S. Dukane Fabrics Int’l Inc. M. where Denning. 101.200 Jurisdiction clause in marine bills of lading have been held applicable to third parties to those contracts (who. v. 464-469. 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. 890 F. 485-486 (W.2d 118 at p. 1988) (perfume dealership contract). the shippers have been held bound by the forum selection clauses of the ocean carriers’ bills of lading.Supp.) Ltd.Y. judicial economy.D. 1602 (9 Cir.2d 206 at p. 629-630 (S. but it is subject to the overriding principle that no one. S. 2000). Hrelijin 600 F.C. 204 The Fehmarn [1957] 2 Lloyd's Rep.C. citing Manetti-Farrow. 2951-2952 (E. may be the owner of the goods.P.L. [1974] A. Supp. 1993) (contract for membership in insurance market). see Lord Wilberforce in The Atlantic Star. N. 2000 AMC 2947 at pp. note 5 (9 Cir. L. standard-sized reusable containers that can be quickly loaded on and off ships and onto trucks or other types of transportation. N. Compania United Arrows. Inc. United States 883 F. the shipper or the subrogated cargo underwriter). by his private stipulation. Cir. 131 F.V. of North America v.D. 209 (7 Cir. Co. and the public interest in the local adjudication of local controversies. Inc. 1985). depending on the case. 1193-1194 (S. the existence of a forum selection clause. 1997) and other decisions cited there. 32 F. Kukje Hwajae Ins. 1995). N. Va.J.2d 93 at p. 201 See. 2303. v. Other factors that inform the Court’s inquiry are intermingled with these considerations.K. See National Customs Brokers & Forwarders Ass’n v. 1989). 341 (S. 483 at pp. of Canada v. N. Schneider Freight USA Inc. 197 at pp. Supp.204 Those courts have the reputation of giving quick and fair justice and. the enforceability of the judgment. Cal. 555 (C. 436 at pp.D. for example.Forum Non Conveniens Introduction It was the practice and tradition in the United Kingdom to jealously guard the jurisdiction of its courts. Hugel v. M/V Hyundai Liberty 294 F. can oust these Courts of their jurisdiction in a matter that properly belongs to them”. Corporation of Lloyd’s 999 F. Zochonis (U.Y. so that it becomes “foreseeable” that they will be so bound. Supp. v.A. Paterson. D. Inc. 2002 AMC 1598 at p. v.” See 46 U.38 5) Jurisdiction clauses and third parties In the United States.A. Allianz Ins.D. 1985 AMC 1192 at pp. See also International Private Satellite Partners. Conti Singapore 2003 AMC 667 at p.D. third parties have been held bound by forum selection clauses in various types of contract. For a useful history of the law of forum non conveniens in the United Kingdom.2d 509 at p. not as principals. Co. but merely as agents of the shippers.Y.S. NVOCCs perform a function similar to overland freight forwarders.. for that reason AMC 2296. 2002). 126. 1991 AMC 302 (summary) (D.).Y.3d 1171 at p. 203. Columbus Cello-Poly Corp.” 200 See.Y. 2001). v. 1) The United Kingdom . 1980). 202 at p.Y.D.D. N. 308. 1998 AMC 334 at p. 207-210. 975 F.201 In particular. 791. Supp.R. 1997) (contract for satellite communications services). 202 A NVOCC is “a common carrier that does not operate the vessels by which the ocean transportation is provided. 175 at pp. 1702(17(B). Inc. v. 1175. [1973] 2 Lloyd's Rep. 514. Included are the original choice of forum. and is a shipper in its relationship with an ocean common carrier. for example. Glyphics Media.N. Co. Ltd. 858 F.. 191-194 (H. Cho Yang Shipping Ltd. Lucky Cat Ltd. the relative familiarity of the courts with the applicable law. Supp. 2003).) and Adrian Briggs “The staying of actions on the . 626 at pp.2d 787 at p. Gucci Am. Farrell Lines. where they have been adjudged to be “closely related” to the dispute.203 202 X. 551 at p. App. (Emphasis added). where freight forwarders or NVOCC’s (non-vessel-operating common carriers ) contract with ocean carriers. 2158-2160 (C. 203 Indemnity Ins. consolidating small shipments from multiple shippers into large. 446 at p.C.).” The next step was MacShannon v. The decision of the House of Lords in The Atlantic Star207 was the turning point at which the United Kingdom effectively adopted a more reasonable forum non conveniens position. 341: “. 453.). You may call this 'forum shopping' if you please.L.A. 451.L. thereby modifying Scott L.an update”.). 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. All E.): “My Lords. 197. 709 (C. 812. 436 at p. but if the forum is England. at p. [1984] LMCLQ 227 and in a subsequent article “Forum non conveniens . 205 The Atlantic Star [1972] 2 Lloyd's Rep. An offer to provide security was made after the proceedings had commenced.206 2) The modern regime . 454. both for the quality of the goods and the speed of service. 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. A. at p. at p.).R.. when inhabitants of this island felt an innate superiority over those unfortunate enough to belong to other races. Rockware Glass Ltd. that seems to me to recall the good old days.R. 382 at p.39 many foreign litigants have sought and still seek resolution of their commercial disputes in London either before the courts or in arbitration. It extends to any friendly foreigner. [1973] 2 All E.K. 200. the passing of which many may regret. [1978] 1 All E. as Kipling more forthrightly phrased it. it is a good place to shop in.R. but their Lordships rejected the technical argument that they were not entitled to consider such an offer made after the commencement of proceedings. 398 (C.” ground of ‘forum non conveniens’ in England today”. Pierre v.R. He can seek the aid of our Courts if he desires to do so. [1972] 3 All E. 181 (H. 'lesser breeds without the law'. South American Stores (Gath and Chaves) Ltd. 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.A.U. [1973] 2 Lloyd's Rep. 197 at p. [1973] 2 Lloyd's Rep. 181. 208 Ibid.J. with all respect. two conditions must be satisfied.. 175 (H.” Lord Denning's comment was specifically questioned “with all respect” by Lord Reid in The Atlantic Star. where Lord Diplock established two rules:209 “In order to justify a stay. 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. 206 The Atlantic Star [1974] A.R. 705 at p.C.B. [1936] 1 K. 339 at p. 175 at p. [1985] LMCLQ 360.C. 436.” 207 [1974] A. 625 at p. Lloyd's Rep.or. . [1973] 2 All E.'s statement of the rule in St. 209 [1978] A.C. 630 (H.” To which quotation. Lord Diplock added in The Abidin Daver [1984] 1 Lloyd's Rep. 201. 795 at p.L. L. i. in the field of law with which this appeal is concerned.): ""Every court has different procedures.. at p. 202 (H.. are lacking in one respect a reasonable balance between the interests of the parties . the balancing of advantage and disadvantage to plaintiff and defendant of permitting litigation to proceed in England rather than.L. The El Amria U. W. 339 at p. referring to The El Amria [1981] 2 Lloyd's Rep. 213 Ibid. approving a statement by Hobhouse J.L.” Finally in The Spiliada. 215 Ibid. 210 . 126-127 (C. in a foreign forum is to be based upon objective standards supported by evidence.A. or as well as.R.40 In The Al Wahab (Amin Rasheed Shipping Corpn. MacShannon. 214 [1987] 1 Lloyd's Rep. indistinguishable from the Scottish legal doctrine of forum non conveniens.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.. v.). in which the case may be tried more suitably for the interests of all the parties and the ends of justice. 365 at p. in my opinion. or reputation or standing of the Courts of one country as compared with those of another (cf. nevertheless. 10. MacShannon..” Lord Diplock continued and summed up the change in the attitude of the English Courts:213 “My Lords. 344. 375 (H.and this feature was added by Lord Diplock in The Abidin Daver:212 “.J. The Al Wahab and The Abidin Daver. and The Spiliada. Kuwait Insurance Co. which is the appropriate forum for the trial of the action. in referring to a comparison of the quality of justice obtainable in England and elsewhere. Furthermore. Nothing is gained by any discussion of the relative merits of various different procedures.. 361 at p. Lloyd. 211 More recently. [1984] 2 W. noted: “It is not appropriate. 371 (C. at p. 119 at pp.” Thus by its decisions in The Atlantic Star.). having competent jurisdiction. Strabag Bau [1992] 1 Lloyd's Rep.).e. per Lord Justice Brandon).). there is of course authority binding on me which deplores any discussion or entertainment of those types of argument. or methods. the essential change in the attitude of the English Courts to pending or prospective litigation in foreign jurisdictions that has been achieved step-by-step during the last 10 years as a result of the successive decisions of this House in The Atlantic Star.210 Lord Wilberforce. 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. Lloyd's Rep. 203. L.K.L. the House of Lords had gradually adopted the doctrine of forum non [1983] 2 Lloyd's Rep." 212 [1984] 1 Lloyd's Rep. v. 1 (H. 343. at p.A.R. declared in New Hampshire Ins. and Amin Rasheed. 196 at p.). Co.”211 The foregoing views. to embark upon a comparison of the procedures.L. 119 at pp. [1985] 1 Lloyd's Rep. 1 at p.C. 169 at p. See also The Sennar (No. 219 [1969] 1 Lloyd's Rep.). 154 (C. and the defendants apply for a stay. including notably Z.L. 225 The agreement must be valid and enforceable and the claim must fall within the scope of the agreement..23 at pp. 527 (H. Citi-March Ltd. Ltd. 237 at p. v. 605 (P.b. and in many more recent decisions.41 conveniens. 229 (C. (2) The discretion should be exercised by granting a stay unless strong cause227 for not doing so is shown.A. (4th) 577 at pp. the English Court. 1)[1998] 2 Lloyd's Rep. 220 Proving that it is quite fitting to cite oneself. 2002. jurisdiction was kept in England because the witnesses were English and related litigation had already commenced in 216 .). [1994] 1 Lloyds Rep.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. Baghlaf Al Zafer v. (1996) 141 A. 119 at pp. 226 Unterweser Reederei G. Armco.L.A. 251 (C. 237 at p.. 586-587.).).).216 It only required the adoption of the principles set down by Lord Brandon in The Eleftheria217 and repeated in The El Amria218 for the application of the doctrine to be complete. The Benarty [1984] 3 W. ___ (Aust. 521 at p. for example. 123-124 (C. In this latter judgment. 593 at p. 123-124 (C. but Brandon L.R. 856.A. 1) [1998] 2 Lloyd's Rep. 324. 1082 at p. see Briggs & Rees. 3 Ed. Lord Brandon noted.J. in fact failure to cite oneself is often evidence that the previous statement was erroneous. of Canada v. Pakistan National Shipping Co. N. The Regal Scout [1984] 2 F.). 123-124 (C. 224 The El Amria [1981] 2 Lloyd's Rep. 10 (H.A. Zapata Off-Shore Co.R. 244 at p.L. The Sennar (No. 227 The Sennar (No. 221 [1981] 2 Lloyd's Rep.). 235 (C. The Eleftheria [1969] 1 Lloyd's Rep. 527-528 (H. (No. 142 at p.V. See also The Nile Rhapsody [1994] 1 Lloyd's Rep 382 (C.). In the El Amria itself.C. is not bound to grant a stay but has a discretion226 whether to do so or not. The Iran Vojdan [1984] 2 Lloyd's Rep.H. 374 at p. 158 at p. 242. Baghlaf Al Zafer v.). 223 Donohue v. 163 (C.m.). 142 at pp.C. 851 at p.). no doubt with some satisfaction. Civil Jurisdiction and Judgments. 327. 222 See The Pia Vesta [198411 Lloyd's Rep.C. 242. assuming the claim to be otherwise within its jurisdiction. paras.R. Armco Inc. At first this remarkable decision was not generally followed. Lord Goff formulated an authoritative approach to forum non conveniens: 217 [1969] 1 Lloyd's Rep.R. Pakistan National Shipping Co.C. 283-290. 171.).219 Brandon J. (The Humber Bridge) [1997] 1 Lloyd's Rep 72.222 reiterated by the House of Lords in Donohue v. [1994] 1 Lloyd's Rep 593 (P.). 380 at p. The Eleftheria rule has been cited in Canada in Agro Co. The People's Insurance Co. Pompey v.A. The rule has also been referred to in Australia. 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. 459-460.). v.21 to 4. 2) [1984] 2 Lloyd's Rep. v. how The El Amria had been cited by others.I. 119 at pp. 2) [1984] 2 Lloyd's Rep. [1984] 2 Lloyd's Rep. 218 [1981] 2 Lloyd's Rep. [1968] 2 Lloyd's Rep. Neptune Orient Lines Ltd. For further commentary on these points.C. despite the choice of a court in Alexandria. 237 at p. (2003) 224 D.A.A. See Akai Pty Ltd. [2003] 1 S. 229 at p. 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.L. The Pioneer Container [1994] 2 A..A.L. 242. 154-155 (C.4. Ibid.A. per Lord Bingham). [2002] 1 Lloyd’s Rep. Standard Chartered Bank v Pakistan National Shipping Corporation [1995] 2 Lloyd's Rep 365. 425 at pp. 3) The rule in The El Amria In the The Eleftheria. [1996] 1 WLR 1367 and The MC Pearl [1997] 1 Lloyd's Rep 566. 385. 450 at p.A. The Pioneer Container [1994] 2 A. 2003 AMC 1280 at pp. 1095. 521 at p. (No. ECULine. In The Spiliada [1987] 1 Lloyd's Rep. 2) [1985] 1 Lloyd's Rep. High C.L. 432-433 (H.).). 4. 12851286. 324 at p.L. v. 228 The Fehmarn [1957] 1 Lloyd's Rep.). 586-592.232 (c) With what country either party is connected. See also in appeal [1957] 2 Lloyd's Rep. 232 The Eleftheria.A. and in New Zealand.R. see Society of Lloyd's & Oxford Members' Agency Ltd. 387.). 233 The El Amria. 546 at pp.). if so. 2003 AMC 1280 at pp. 197 at pp. 288. or more readily available.A. 293. Conversely. and the effect of that on the relative convenience230 and expense of trial231 as between the English and foreign Courts.25 at p. 473 and 479. Brandon. v. who was Counsel for the plaintiffs.R. The Eleftheria [1969] 1 Lloyd's Rep. 246. [2003] 1 S. H. 710 (C. [1973] 1 W. the foreign time bar might be grounds for refusing the stay. The Vishva Prabha [1979] 2 Lloyd's Rep. Civil Jurisdiction and Judgments. Stay was refused where the delay for suit had expired in the foreign court. 230-231 (Aust. where the plaintiffs in a cargo claim failed . High C. 172. and how closely. (ii) be unable to enforce any judgment obtained. van Heeren [1998] 1 N. but without prejudice to (4). 79. 288. may properly be regarded: (a) In what country the evidence on the issues of fact is situated.A.R. at p. The Traugutt [1985] 1 Lloyd's Rep. Fay (1988) 165 C. 380 at p.236 (iii) be faced with a time-bar237 not England.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. and why England is. 1287-1293. 79 (convenience to the parties and to witnesses). 76 at p. But in The Bergen (No. 288. v. 236 Evans Marshall & Co. 126-127. 377 and 385 (C. ibid. [1973] 1 Lloyd's Rep.C. C. see also The Sennar (No.42 (3) The burden of proving228 such strong cause is on the plaintiffs. 710 at p. supra. v.Z. where they arise. Akai Pty Ltd. the clearly more appropriate forum for trial.L.A.A.). see Ocean Sun Line Special Shipping Co. 324 (N. 428-429 (Aust.Z. (b) Whether the law of the foreign Court applies and. The Vishva Prabha [1979] 2 Lloyd's Rep.C. 551 (C. where the advantage of the English process of discovery was held not to be a consideration.R. Inc. 550 and 552 (C.I. ECU-Line N.A. after all. supra. 418 at pp. 142 (N. 237 at p. 511 at p. where it was suggested that if the failure to protect time in the chosen foreign forum was not the fault of the claimant.R. or are only seeking procedural advantages. 169 at p. 125.). 229 Where there is a forum selection agreement. The “strong cause” requirement was also strongly reaffirmed by the Supreme Court of Canada in Z.C. By refusing the cargo owner the right to arrest in England. 286 at p.A. 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”.. 2) [1997] 2 Lloyd’s Rep. The People's Insurance Co. See Briggs & Rees. 3 Ed. 2) [1997] 2 Lloyd’s Rep. see also The Pia Vesta [1984] 1 Lloyd's Rep.A. 324. 237 The Vishva Prabha [1979] 2 Lloyd's Rep.). 721 (C.Z. 349 at pp. 286 at p. 2) [1984] 2 Lloyd's Rep.).229 (4) In exercising its discretion the Court should take into account all the circumstances of the particular case. (2003) 224 D. But see also The Pioneer Container [1994] 2 A. 450 at pp. 453 at pp. 245. 76 at p. 231 The Traugutt. at pp. High C.). 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. See also The Sidr Bashr 235 The Lisboa [1980] 2 Lloyd's Rep.).). it would lose its only available security.L. 461-469. whether it differs from English law in any material respects. 234 The Iran Vojdan [1984] 2 Lloyd's Rep. 230 The Traugutt [1985] 1 Lloyd's Rep. See also The Bergen (No.V. the following matters. 2002 at para. 514. Pompey v. 155 (C. (4th) 577 at pp.L. 286 at p.L. Bertola S. 142 at p. [1994] 1 Lloyd's Rep 593 (P. 4.) and Kidd v. (1996) 188 C. 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. at p.R.Z.V. Ltd. The El Amria.L. C. Hyslop [1993] 3 N.233 (d) Whether the defendants genuinely desire trial in the foreign country.L. 135 at p.R. supra. (5) In particular.A. where there is no forum selection agreement. For the same principle in Australia. the latter of which cases concerned a non-exclusive jurisdiction clause. 241 JPMSA v. 630. [1998] 1 Lloyd’s Rep. (M.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. 405 at p. by taking suit there within one year of discharge of the cargo. Sweet & Maxwell. They have been added for the purposes of this commentary. or (iv) for political. Mobil Sales and Supply Corp. London. Dee Howard Co. 127. Where a nonexclusive jurisdiction clause permits suit in or out of England. 15 Ed. Metro v.241 It has also been held that the “strong reasons” for refusing enforcement to such a clause must “… ordinarily go beyond a mere matter of foreseeable convenience and extend either to some unforeseeable matter of convenience or enter into the interests of justice itself”. 670 at pp. 2) the same subject matter. 410. 3) the same object.) It has been held more recently in England that this basic approach. 405 at p. CSAV [2003] 1 Lloyd’s Rep. whether or not the English proceedings will be stayed will be determined by the court in its discretion. Co.242 4) Res judicata A court must. 3(6) of the Hague and Hague/Visby Rules). 40.). [2001] 1 Lloyd’s Rep. CSAV [2003] 1 Lloyd’s Rep. Co. 238 The El Amria [1981] 2 Lloyd's Rep. [1999] 2 All E. the Court held that the defendants should not be denied the right to rely on the foreign time-bar (which also applied under art. 368 at pp. 45. and even arguments as to multiple proceedings. Communication Telesystems Ltd. Howard. 410. 240 Mercury Plc. Sinochem International Oil (London) Ltd. Metro v. 410-416. 38-23 to 38-64. (Comm) 33 at p. not grant jurisdiction to a claimant if the same question has already been heard in a foreign court. v. CSAV [2003] 1 Lloyd’s Rep. CSAV [2003] 1 Lloyd’s Rep. Ltd. 2000 at paras.C. [1993] 1 Lloyd’s Rep. MNI [2001] 2 Lloyd’s Rep. v. applies whether the contractual forum is England or another country. See also Metro v..43 applicable in England. 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. where factors such as the greater availability of evidence in Chile. on the usual forum non conveniens principles applied in cases where there is no jurisdiction clause. requiring the plaintiff to show “strong reasons” why the contractually agreed forum should not try the case.240 and whether the clause was negotiated by the parties or was only a term in a standard-form contract. v. Q. People’s Ins.239 whether the jurisdiction clause is an exclusive or non-exclusive one. . Ltd. 410. 376-377. an issue which was decided in the original proceedings will be considered as settled between the parties and will to show that they had acted reasonably in failing to take steps to protect time in the foreign (German) forum specified by the jurisdiction clause. [2000] 1 Lloyd’s Rep. 119 at p. Metro v. but of recognition of a foreign judgment. racial. 679-680. after consideration of all relevant circumstances. Furthermore. 405 at pp. even when the cause of action in the subsequent proceedings differs from that in the original proceedings..N.R. 104. 242 British Aerospace Plc v. Ace v. This is not really a problem of jurisdiction or of forum non conveniens. 618 at p. 239 Akai Pty. 90 at p. Zurich Ins. were found not to be strong enough reasons to overturn the non-exclusive English forum selection clause. 405 at p. ed. of course. and the importance of Chilean law (the law of the place of performance of the bill of lading contract under the Rome Convention 1980). Ltd. See generally Phipson on Evidence. there must be the three identities: 1) the same parties acting in the same qualities. The stay was therefore granted. gen. 41 at p. 243 In both res judicata (also termed estoppel by judgment) and chose jugée. 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. 6) U.S. 325 (C. 2) [1967] A. 8 of the Hague/Visby Rules and of the 1971 Act used the words “any statute”. This would have meant a lower per package limitation and thus a violation of art.K. 1979 AMC 2152 (S. [1983] 1 Lloyd's Rep. 1979). and 4) there must be identity of subject matter.. N.1972).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 . 565 at pp. stay was ordered.J. 565. 1 (H.). 3(8). 250 Hereinafter described as the Brussels Convention 1968 ( O. 67 at p.S. where the U. not package limitation.44 not be relitigated in the subsequent proceedings if it arises once again.). 246 1971 U.245 the applicable law was the English version of the Hague/Visby Rules. L. 19. 251 The Lugano Convention on Jurisdiction and Recognition of Judgments in Civil and Commercial Matters.K. 3) there must be identity of parties. 3(8) of the 1971 Act and of the Hague/Visby Rules.248 In The Benarty.) (where the case is styled The Hollandia). selecting as forum a court which does not apply the Hague/Visby Rules. Supp.E. where issue estoppel is often referred to as collateral estoppel. such as the Indonesian Commercial Code. Hellenic Glory 471 F. i. 319/9. 1971. Inc.249 however..A.244 5) Public policy.L. Shore 439 U.L. although the tonnage limitation under Indonesian law was much lower than under English law. 3(8) of Visby or the U. The damaged cargo had been shipped from London and continental European ports. 1988 (O.C. was not affected by the provisions of the Rules. 2) [1985] 1 Lloyd's Rep. 249 [1984] 2 Lloyd's Rep. Their Lordships were careful to note that not every jurisdiction clause. 935 (H. 853 at p. however.S. 2) the judgment must be final and conclusive and on the merits. In the U.E.J.C. L. that article meant that an applicable foreign tonnage limitation statute. 245 [1983] 1 A. referring to Parklane Hosiery Co.12. 248 [1983] 1 A. meaning that the issue decided by the foreign court must be the same as that arising in the English proceedings. it was held that in order to establish issue estoppel: 1) the judgment must be given by a foreign court of competent jurisdiction.11.E. 244 (C. 574-575. 77 (C. will necessarily be a violation of art.C. 6-7 (H. – 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. adopted at Lugano on September 16. .e.C.).A.J.K. since art. 322 (1979). particularly in cases where one of the The Sennar (No. 1002. 247 [1982] 1 Lloyd's Rep. permitting transfer of the suit to Djakarta. the Hague Rules 1924. [1983] 1 Lloyd's Rep. In The Good Challenger [2004] 1 Lloyd’s Rep. it has been held that there need not be identity as to the parties for collateral or issue estoppel to apply: W.).L.). c. This is termed “issue estoppel”.C.246 Transfer of the case to a Dutch court in accordance with the jurisdiction clause. In The Morviken. It was held that the transfer of jurisdiction did not offend art. Carriage of Goods by Sea Act. 527 (H. Roberts v. Therefore jurisdiction was retained by order of the Court of Appeal247 and the House of Lords. (No. 25. 521 at p. because the carrier was seeking to rely on tonnage limitation.D. Supreme Court severely limited the doctrine of mutuality. Carl Zeiss Stiftung v. v. 1 at pp.A. 31. being the Carriage of Goods by Sea Act 1971.U. English law The choice of forum clause (jurisdiction clause) must not reduce the carrier's responsibilities under the applicable law. could have resulted in Dutch law being applied (because the clause also invoked Dutch law). Rayner & Keeler Ltd. 299/32. and.).Y.L. 214 at pp. v. 17. "Forum Non Conveniens and the Brussels Convention" [1990] L.45 defendants is domiciled in a member-State of the E. and therefore is still governed by the Brussels Convention 1968 in its relations with the other Member States of the E. para. 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. [2002] All ER (D) 130 (Jun) (C. 217-223.J. Norway and Switzerland. DMF 2001. See also Haji-Ioannou v. 258 Supra. [2003] EWCA Civ. 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. of the Brussels Convention 1968. the validity of the clause must be assessed in accordance with the conflicts rules of the forum.A. see O. For the text.. unreported. 259 See Ace Ins. first para. Handelsveem BV of November 9.2001.). ibid.. 535 and Cheshire & North's Private International Law (P.) (forum non conveniens applied to send dispute to Panama). 187.252 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. 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. as of March 1. Thus a U. Iceland.) (giving effect to a service of suit clause providing for U. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters.R. [2004] All ER (D) 294 (Jul) (Q. 260 See Travelers Casualty and Surety Company of Europe Ltd.218 at pp. 2. 16. under art. 2002 at paras.A. 217. Anton Durbeck GmbH v..M.C. 257 The English Court of Appeal has requested the European Court of Justice to rule on this question of interpretation of the Brussels Convention.A. L 12/1. or EFTA. 622 and 626 (C.B. 13 Ed. 877. 255 EC Regulation No. unreported.S. [2001] 1 Lloyd’s Rep. Butterworths. as part of its conflicts of law rules. as well as EC Regulation States. S. London.U.V.U. 206 (C.-N.. obs.. See also Lawrence Collins. would appear to be free to apply its forum non conveniens analysis. 337 at p. 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. 397 (C.K. The Court of Justice of the European Communities.210 at p. [2004] EWHC 1704.A. eds.J. 256 Denmark chose not to bound by the EC Regulation. 2000. and yet the "natural forum" for the litigation (i. Jackson (t/a Villa Holidays Ball-Inn Villas) [2002] EWCA Civ.R.256 The European Court of Justice is expected to rule on the issue on more recent references by English courts. 2. [2003] 4 All ER 543 (C.A. which became a party to the Lugano Convention in 2000). Ph.A. in respect of civil jurisdiction and the enforcement of judgments. [1991] 3 W. as well as Poland. [1992] Ch 72. 2000.B. 1160. (Case No.257 In the meantime. and in force in all Member States of the European Union except Denmark. See Owusu v. [2003] All ER (D) 26 (Mar). 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. 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.). Cellstar Corp. v. appeared to confirm this position. Fawcett. 618 at pp. 3 Ed. 227-228.210 to 2. Co. Frangos [1999] 2 Lloyd’s Rep.).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. Zurich Ins. This holding would seem relevant under EC Regulation 44/2001 as well. in Coreck Maritime GmbH v.1. without such action infringing the Brussels Convention. Co.). Den Norske Bank ASA [2003] Q. 264-266.A. Civil Jurisdiction and Judgments. 346 (C. and American Motor Ins. 1999 at pp.E.U.). See Briggs & Rees. 2002.L. v. Sun Life Assurance Company of Canada (UK) Ltd.: C-387/98) [2000] ECR I-9337. 253 See Briggs & Rees. litigation). para. . 252 Harrods (Buenos Aires) Ltd. ibid.Q.). The English Court of Appeal decided in Re Harrod's (Buenos Aires) Ltd.. 2..260 in favour of courts outside such European Free Trade Association (EFTA) other than Liechtenstein (viz. court. Re (No 2) [1991] 4 All ER 348. North & J. Delebecque. in other cases. or b) in a form which accords with practices which the parties have established between themselves.U. 2001 DMF 187. made December 10.U.A.266 a) Where leave is not required-CPR Rule 6. 1998 and in force April 26. and which bind parties one or more of whom are domiciled in an E. 264 November 9. 1987. the claimant will serve a claim form265 on the carrier who at times is out of the jurisdiction. 23 is almost identical in wording to the most recent text of art 17. and regularly observed by. Member State.). where the conditions of art. Some of these decisions have applied forum non conveniens to enforce jurisdiction clauses requiring litigation of disputes in such non-Member States. or ought to have been. the courts of other Member States shall have no jurisdiction over their disputes unless the court or courts chosen have declined jurisdiction. 23 of EC Regulation 44/2001 and the most recent text of art.46 States. art. such leave is not necessary. 263 [1969] 1 Lloyd's Rep. 1999. 23. State.19 and 6. first para. [1994] 1 Lloyd’s Rep. SI 1998/3132. the claimant in some cases must obtain leave of the High Court. 242. for example. of the Brussels Convention 1968 at section VI. 399.20 To commence an action to recover for loss or damage to cargo in England. 23 of EC Regulation 44/2001 applies and requires the courts of Regulation States to stay the proceedings in favour of the specified court.U. The Nile Rhapsody [1992] 2 Lloyd’s Rep. supra. [2000] ECR I-9337.262 In brief. As regards the jurisdiction clause's enforceability as against consignees and subsequent endorsees.U. which came into force on January 1. 382 (C. first para. aware and which in such trade or commerce is widely known to. 387-98). 2000 (Case No. court in determining the validity of a jurisdiction clause in a bill of lading. in so far as those principles indicate whether the clause in question accords with international trade or commerce. The principles set out in The Eleftheria263 would therefore be applied by a U. 23(1) and (2)).K. none of whom is domiciled in an E.The 1982 Act and CPR rules 6. 237 at p. giving effect to an Egyptian choice of law clause in a case where an English defendant was sued in England. State must be either: a) in writing or evidenced in writing (including electronic form). the Civil Procedure Rules 1998 are referred to under their common abbreviation. replacing the former Order 11 of the Rules of the Supreme Court 1965. State.19(1) See. 261 . 23 are met. 266 Service of process out of the jurisdiction is governed by the Civil Procedure Rules 1998. 17. 265 “Claim form” is the new term for “writ” under the U. the test provided by the European Court of Justice in Coreck Maritime GmbH v.’s Civil Procedure Rules 1998. 262 See the discussion of the conditions of art. to comply with art. of the Brussels Convention 1968.K. Handelsveem BV would be applicable. Art. the jurisdiction clause designating the forum of another E. To effect service out of jurisdiction. In this article. 23(3) also provides that where a jurisdiction agreement is concluded by parties. or c) in a form which accords with a usage in international trade or commerce of which the parties are.261 With respect to jurisdiction clauses calling for adjudication of disputes in an E. parties to contracts of the type concerned (art. Delebecque. obs. Art. “CPR”.264 7) Service out of jurisdiction . Ph. provided that either the claimant or the carrier is domiciled in such a state.269 while the term “Regulation State” means a Member State as defined in EC Regulation 44/2001. in relation to a Convention territory. 17 of the Brussels or Lugano Conventions or art. 1982. 27. sects. if the jurisdiction clause in the bill of lading designates the court of an E.270 i. 1(3). 275 CPR rule 6.275 In other words. 9 to 12 of Schedule 1 to the Civil Jurisdiction and Judgments Order 2001. There is an important proviso..18(d) in defining “Convention territory”.18(g)(i) and U. 273 SI 2001/3929. or any other Convention territory 276 or any other Regulation State.19(1)(b)(iii). has a wide meaning in the light of sects. 9 to 12 of Schedule 1 of this Order define the conditions under which a person is “domiciled” in the U. c. can serve a claim form upon the carrier.2000. 23 of the EC Regulation 44/2001. c. 23 267 268 CPR rule 6. O. however. .E. 270 EC Regulation 44/2001 of December 22. 1(1) of the Civil Jurisdiction and Judgments Act 1982. other than Denmark271. 272 CPR rule 6. the claimant.1. CPR rule 6.. 16.19(1A)(b)(i). 17 of the Brussels or Lugano Conventions applies.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”. who is out of that court's jurisdiction.19(1A)(b)(iii). refers to sect. 12/1. Paras. domicile has a similarly broad meaning. 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.U. art. 276 CPR rule 6.K. In relation to a “Regulation State”. without obtaining the court's leave.K. 274 CPR rule 6.19(1A)(a).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.18(k). 41-46 of the Civi1 Jurisdiction and Judgments Act 1982272 and clearly a defendant carrier can be domiciled in many jurisdictions concurrently. applicable to all proceedings instituted on or after March 1. b) Where the court's leave is required – CPR.274 or on a court contemplated by art.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.K.. a Member State of the EU. in commencing his action there. the only court that has jurisdiction. 41-46. 277 CPR rule 6.J. or an EFTA state.e. U. a particular part of it or a particular place within it. 1982.19(1)(b)(i). 269 CPR rule 6. 2000.19(1)(a).277 The court where the action is first commenced is.C. reflecting the EC Regulation 44/2001 and paras. 27. therefore. L. 2002. 271 CPR rule 6. The term “domiciled”. rule 6.268 The term “Convention territory” encompasses the territory or territories of any Contracting State to which the Brussels or Lugano Conventions apply. 279 CPR rule 6.). 286 Ibid.21(2A)).20(9)). rule 6. an exclusive jurisdiction clause). The claimant must also show that 2) the grounds on which the application for service out is made and the paragraph(s) of CPR.K. 284 For example.288 For example. rule 6. See also Briggs & Rees. U. 13.20(5)(d). 283 CPR rule 6. in contractual matters.21(1)(b)). 25(1) of the Civil Jurisdiction and Judgments Act 1982. 363. 280 CPR rule 6.48 of EC Regulation 44/2001. 288 The Spiliada [1987] 1 Lloyd’s Rep. where these authors state that CPR. c. 3 Ed. service out may also be authorized where a claim is made for a remedy against a defendant domiciled in the jurisdiction (CPR rule 6.286 When leave is sought to serve out of the jurisdiction.21(2A) 278 .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. Civil Jurisdiction and Judgments. at p..20(1)).20(9).278 There are various grounds listed in CPR rule 6.20(8). U.54 at p.20(6). rule 6. See also ibid. 5. or b) to enforce a claim under sects. 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.283 There are various other types of claim which authorize service out with the court's leave as well.20 justifying the grant of leave to serve the claim form out of the jurisdiction. 3 Ed. 325. 282 CPR rule 6. 2002. a claim form may be served out of the jurisdiction with permission of the court if the contract was made within the jurisdiction.20(5)(a) to (d). For example.21(1)(a)) and that 3) he “… believes that his claim has a reasonable prospect of success” (CPR. or for an injunction ordering the defendant to do or to refrain from doing an act within the jurisdiction (CPR rule 6. or for an interim remedy under sect.L. rule 6. as well claims relating to property in the jurisdiction (CPR rule 6. Permission to serve out is also required for Admiralty claims a) in the nature of salvage where any part of the services took place within the jurisdiction.20(7). at p. 285 [1987] 1 Lloyd's Rep. 4. 21 (CPR rule 6.L. para. 154 or 175 of the Merchant Shipping Act 1995. c. 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. 153. 1 (H.20(10)).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.33 at p. on the other hand... rule 6.287 When the court is asked to stay an action on the ground of forum non conveniens.20(17A)). 1 at pp.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. 2002.K. 1991.).K.e. the burden of proof is on the plaintiff to show that the forum is the most appropriate. 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. 281 CPR rule 6. 287 The claimant must show that 1) England and Wales constitutes “the proper place in which to bring the claim” (CPR. provided that service out would be justified if one did exist.284 In the light of The Spiliada. Claims to enforce a judgment or arbitral award may also authorize service out (CPR rule 6. the claimant who seeks to serve a claim form upon the Japanese carrier who is outside of English jurisdiction will have to obtain the High Court's leave under CPR rule 6.20(4)).20(2)). 324. 1982. not subject to the jurisdiction of the High Court) (CPR rule 6. the claimant must obtain the leave of the High Court to serve the defendant outside of the jurisdiction. and 14 (H.20 relied on in this regard (CPR. Civil Jurisdiction and Judgments. See also Briggs & Rees. 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. 1) Canada . 1999. Brussels.” See also Chap. but not in force.L. 203 (Fed. 7(2).K. 1985. 1981. 26 of the Civil Jurisdiction and judgments Act. . 1 at p. 46. The Arrest Convention 1999. Maritime Electric (1985) 60 N. March 12. 7(1) on the merits or has refused to exercise it under art.. 24 of the 1968 Convention. 27. Where the arresting court lacks jurisdiction under art. 2(3). or to arbitration. 1952. Such a conclusion is. “Arbitration Clauses”. 1033-1036. 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. 7(1).). See also art. except where the parties validly agree or have agreed to submit the dispute to a court of another State that accepts jurisdiction.. 291 See sect. I think. consistent with the manner in which the process of saisie conservatoire is applied in civil law countries. 2 Ed.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. 1956. 1982. 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. 290 Convention Relating to the Arrest of Sea-going Ships. c.the principle The Federal Court Act295 of Canada stipulates at sect. U. 15 (H. 7(3)).Forum Non Conveniens Introduction . This international convention has been almost completely implemented in the United Kingdom by the Supreme Court Act 1981. May 10. See The Spiliada [1987] 1 Lloyd's Rep.” 289 See Briggs & Rees. now happily in force. See Tetley. 7(2).292 at art. 50(l) that: is intended to reproduce the substance of the previous case law. I understand.290 at art. 7. 3 Ed.R. it may (or at the request of a party.S. Maritime Liens & Claims. 26 of the Civil Jurisdiction and Judgments Act 1982.07 at pp. 28. and (b) within 12 months after the date of issue. c. 2002. See N. 5077-508. 54. 7(2) of the Arrest Convention 1999 provides that notwithstanding art. 1956. contains a similar provision. adopted at Geneva. paras. Civil Jurisdiction and Judgments. 1982.. 8. The Arrest Convention. and cf. C. U. and in force February 24. 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. 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. found as Schedule I to the Civil Jurisdiction and Judgments Act.). normally be wrong to allow a plaintiff to keep the benefit obtained by commencing proceedings here.289 Nor is it necessary to do so.294 XI. c. it would not. That Convention also requires respect for jurisdiction and arbitration agreements by the arresting court.C.A. CPR. 1998.05-8. at pp. 295 R.3(5) specifies that the claim form must be served: (a) in accordance with the practice direction. which replaced the former Administration of Justice Act.293 It also recognizes forum non conveniens under national law. 4 & 5 Eliz. the courts of the State in which the ship has been arrested or security has been provided for its release. c. shall) order a period of time within which the claimant must bring proceedings before a competent court or arbitral tribunal (art. 292 International Convention on the Arrest of Ships. 1982. 2.K. Electric Power Commission v. while at the same time granting a stay of proceedings in this country to enable the action to proceed in the appropriate forum.291 Similarly art. 293 Art. rule 61. where Lord Goff stated “.B. 7(3) permits the vessel to be arrested in one jurisdiction and held as security there. sect. even though a jurisdiction clause has designated a court in another jurisdiction to decide the action on the merits. 294 Art.. 302 Ibid. the Supreme Court of Canada.C.). 442. 300 [1977] 2 S. 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. v. citing various authorities.” See also Kuhr v. 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. 448.50 “The Court may. 8 (Ont. 297 [1984] 1 F. The Ship Capricorn. Suncor Inc.C.L. Referring to forum non conveniens. in its discretion.C. British Columbia (Workers’ Compensation Board). stay proceedings in any cause or matter.. the undesirability of trespassing on the jurisdiction of a foreign state. the Supreme Court of Canada considered the doctrine of forum non conveniens in determining whether the Court should direct for service ex juris.298 In 1993. 296 . (1982) 27 C. stated that: “The factors affecting the application of this doctrine have been differently described in various cases .L.” 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. in Amchem Products Inc. Westmin Resources (1983) 32 C. (3d) 261 at p. Supr. 5 at p.L.R. the defendant had the onus of proof.” In Antares Shipping v.). v. including the House of Lords The Spiliada. The Ship Friedrich Busse (1982) 134 D. 795 at p. 897. however.297 relying on the two criteria (positive and negative) laid down by the House of Lords in MacShannon v. 304 (Ont. 921. and the cost of assembling foreign witnesses. The Nosira Lin. Plibrico (Canada) Ltd.301 Concluding his analysis. C. … (b) where for any other reason it is in the interest of justice that the proceedings be stayed. 812 (H.R. at pp. 303 Ibid. Holdings Ltd. The burden of proving the clearly more appropriate forum fell on the plaintiff in service ex juris motions. and they include the balance of convenience to all the parties concerned. 303 (Fed. Rockware Glass Ltd. Sopinka J.” Canadian courts followed the English courts on the question of forum non conveniens in decisions such as Yasuda Fire & Marine Insurance Co. including the plaintiff.C. whereas in seeking a forum non conveniens stay. 298 [1978] A. 299 [1987] 1 Lloyd’s Rep.P.299 as well as its own precedent in Antares.300 definitively opted for the English view of forum non conveniens. 895. v.C.R..A.R. Supr. Ritchie. at p. Ct). J. BP Can. 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).C.R. 301 [1993] 1 S. (1984) 52 N.303 [1977] 2 S. 917 and 921. the impropriety and inconvenience of trying a case in one country when the cause of action arose in another where the laws are different. 300 at p. Ct).). C.P. v. 1 (H. 269.296 a case involving an application for leave to serve ex juris. 422 at p. C.T.A. C. Can.R.). 242.R. ibid. The Hansa Bay [1975] F. 221 (Fed. The Hoegh Merchant [1983] 1 F. 495 (Fed.R. Lloyd's Syndicate [1988] 2 N. (2001) 185 F. [1978] ETL 39 (Fed. 54 (Fed.A.T.A.307 a) There must be “strong reasons” for not honouring a jurisdiction clause calling for jurisdiction before a foreign court. This tripartite test involves a judicial determination as to: 1) whether there is a serious issue to be tried.R. Australia. Can.R. [1998] 3 F. Other Commonwealth countries have similarly adopted the forum non conveniens principle. Can.). v. however. The Regal Scout [1984] 2 F.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”. 427. The Erato [1996] 1 F.Z. Itochu Canada v. 1998 AMC 1864 at p. v.T.C. 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. 450 at pp.I. See also Agro Co. See also Bomar Navigation Ltée v.310 See.). Pompey v. A.R.L. C. [1998] 3 F. Great Tempo S. 257 (N. (2003) 224 D.L. Wendell [1989] 1 N. See also Trans Continental Textile Recycling v.) (cargo claim). (1998) 173 F.L.C.).A.). 278 (Fed. ECU-Line N. The Senator (1996) 112 F. which the Federal Court of Appeal had found applicable to stay applications as well. Abta Shipping Co. Shanghai Ocean Shipping Co. C.) (personal injury and death).C. 234 (Fed. C.R. 851 at p..) (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). 427-428 (Fed. Can.R.C. High C. 314 (Fed. 2) whether the party seeking the interlocutory injunction (or stay) would suffer irreparable harm unless the injunction (or stay) were granted. C.I.C.V.L. 304 . (1996) 106 F.C.Z. 418 at pp.C. unless arrived at on wrong basis or plainly wrong). 308 Z. including maritime case law. 105. applies forum non conveniens slightly differently. of Can. 287 (decisions of motions judges on applications for stays of proceedings based on foreign jurisdiction clauses should be upheld. 216 (N.R.C.). Hyundai Merchant Marine Co. as fully articulated in England in The Spiliada. C.586-592. C. 1867 (Fed. leave to appeal to Supreme Court of Canada denied [1998] S.). The Fu Nin Hai (1999) 173 F.Canada With respect to the enforcement of jurisdiction clauses. See. Can. 2003 AMC 1280 at pp.C.) and Club Mediterranee NZ v. 461-469.V. 237 at p. 418 at p. v.R. 250 (Fed. P. C.C. 255 (Fed. 309 Burrard-Yarrows Corporation v. Manildra Flour Mills (1990) 171 C. of Canada Ltd. C. Can.T. (1998) 225 N. 310 The Agelos Raphael [1978] 1 Lloyd's Rep.). for example. 856 (Fed.T. 306 Burrard-Yarrows Corp. v. Great Tempo S.). for example. 305 [1969] 1 Lloyd's Rep.51 The clearly more appropriate test continues to apply to forum non conveniens decisions in Canadian case law today. 538 (Aukst. C. v.A.304 2) Jurisdiction clauses . C.). C.R. in The Eleftheria305 has been relied on in quite consistently over the years. 248 at p.A.A. C. Can. C.T.the criteria . ECU-Line N. P. per Morneau.R. Jian Sheng Co. and rejected the “tripartite test” applicable to motions for interlocutory injunctions.309 c) A strong reason for not honouring a foreign jurisdiction clause may be that all the facts are in Canada. Pompey v.Z. 203 (Fed. The Hoegh Merchant [1982] 1 F. Anraj Fish Products Industries Ltd. 144. 140 at p.).). Can-Am Produce and Trading Ltd. but rather on whether the Australian forum is clearly inappropriate. 307 [2003] 1 S. Can. Can. and 3) which party would suffer the greater harm as a result of the granting or refusing the interlocutory injunction (or stay).306 and was reaffirmed by the Supreme Court of Canada in 2003 in Z. 1287-1293. v. (1999) 176 F. See also Jian Sheng Co. 404. See Voth v. per Hargrave. (4th) 577 at pp. v. Nissho Iwai Co. 231 at p. focusing not on whether there is a more clearly appropriate forum elsewhere. Napa v. the authoritative summary of principles by Brandon J. the landmark New Zealand decisions in McConnell Dowell Constructors Ltd.Z. v. art.c. 14 of the French Civil Code.. of Can. mise à jour 1978. Nicolas. 718. 1295. March 10. a French insurer) has been subrogated: Tribunal de Commerce de Paris. art. See discussion of this statute supra. 450 at pp. (2003) 224 D.315 XII.C.V.311 e) Courts deciding on the enforceability of jurisdiction clauses should avoid considering substantive issues (e. 113. 3135 c.L. 1986. 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. It should also be noted that when the plaintiff in an action is of French nationality. 1984.q. 2001.R.317 An action is not stayed or suspended so that suit may be taken in a more convenient court. constitutional provisions prevent German courts from refusing to exercise their statutory jurisdiction. DMF 1985. 312 311 . F-7.C. 672. DMF 1986. fundamental breach of the contract of carriage). so that suit may be taken in a more convenient forum.p. 3(8) of those Rules. ECU-Line N.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.g. 1984. the French courts will have jurisdiction by virtue of art. 1987. Agro Co. (2003) 224 D.R. 1985.312 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. 46 in effect restricts the discretionary power of the Federal Court of Canada under sect. Jurisdiction Clauses Restricted by National Law”. Pompey v. DMF 1985. in force August 8. DMF 1984.C. 50 of the Federal Court Act314 to enforce foreign jurisdiction and arbitration clauses in bills of lading. DMF 1987. 668 at p.g.I. para. April 18. [2003] 1 S. (4th) 577 at pp. 42-48 of the New Code of Civil Procedure (NCP). 1983. 1293-1295. affirming Cour d’Appel d’Aix.S. 472. v. 713.c. 341. Affrètements & Transports.V. 46 of the Marine Liability Act. 123 c. 2003 AMC 1280 at p. member state): Cour de Cassation.). Pompey v.-Y. (4th) 577 at p. leaving such questions to be decided by the contractually selected foreign forum. 6.C. 450 at p. 317 The rules governing which court has territorial competence are found in arts. notably Louisiana and Québec.313 Sect.I. The Regal Scout [1984] 2 F. C. 1981. 592-594. 469-472. of Canada Ltd.R. 1) France Introduction France and the civil law generally316 does not recognize the principle of forum non conveniens. contrary to art. May 14. however. 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. 314 R. 1984.L. see Rodière. 706. 851.L. 2003 AMC1280 at pp. Z. a foreign insured) in whose rights the plaintiff (e. See also Tribunal de Commerce de Paris. i. Cour de Cassation. 315 See the comments of the Supreme Court of Canada on this point in Z.C. DMF 1985. DMF 1982. October 31.R.U. c. 594. Québec Civil Code 1994. the right to request that an action already before a court with jurisdiction over the subject matter be stayed. 2001. In Germany. 104 with note by P. (1983) 148 D. (3d) 412 (Fed. December 7. have incorporated forum non conveniens into their legislation. ECU-Line N. c.g. the French court either has or has not compétence (jurisdiction). See Louisiana Code of Civil Procedure. 520.R. Traité. Cour d’Appel de Paris. 316 A few civil law jurisdictions.e. 313 S. Rather. [2003] 1 S. February 15. irrespective of the nationality of the person (e. in section V. November 25. 515.295.318 In carriage of goods by sea cases. 515. DMF 1980. 162 at p. 323 Formerly. 319 Loi relative aux transports des marchandises par mer.4. 360. 397. February 27.S. 66-1078 of December 31. 1967.53 A jurisdiction clause validly agreed upon by two “commerçants” (merchants) will be recognized by a court which has jurisdiction to hear the case. 1981. 54 of the Decree of December 31.323 the general rule is that choice of forum clauses are to be treated as unwritten and therefore with no effect. 1966320 contains no prohibition in respect to jurisdiction clauses.O. (J.. D. (J. 322 Tribunal de Commerce de Nantes. 75-1123 of December 5. September 30. 119. 165. jurisdiction ratione loci) were formerly considered to be merely of private interest and thus derogation from these rules was generally permissible. Amoussou. 2002. January 11. 206. 318 . DMF 1974. 75-99 NCPC: Les exceptions d’incompétence. D.65.S. 1966 restrict jurisdiction clauses. DMF 1982. See Cour d’Appel de Rouen. 1936). 1936 prohibited jurisdiction clauses ousting the jurisdiction of French courts in cases of carriage between French ports in a French vessel (navigation réservée). 2) Prohibition under law The rules governing territorial competence (i. fascicule 211. 1937. 1983. February 8. DMF 1980. 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. DMF 1983. 66-420 of June 18. 119. See generally Bertrand de la Grassière.e. 1974.4. art. September 25. 189. 321 Decree No. 1966. 1979. Tribunal de Commerce de Paris. See Bertrand de la Grassière. «Les clauses des connaissements attribuant compétence à un tribunal étranger sont-elles encore valables?».e. Cour d’Appel de Rouen. 1966. Procedure 3.319 The domestic Law of June 18. Nor does art. 48 of the New Code of Civil Procedure.K. para. 1966.321 In addition to stating that actions may be brought before the court of the French port of loading or discharge.1.O. 496. Les clauses attributives de compétence dans le transport maritime de marchandises. DMF 1981. 1967. DMF 1952. 1966 sur les contrats d'affrètement et de transport maritimes. D. p. p. «La clause attributive de compétence à un tribunal étranger». 54 is in fact merely a supplementary provision to arts. January 13. however. See arts.322 art. 42-48 NCPC: Cour d’Appel de Bordeaux. Art. 3) French domestic law . the territorial jurisdiction rules were considered to be of private interest and thus derogations therefrom were permitted: Juris-Classeur. June 24.jurisdiction clauses Under present French civil procedure. Presses universitaires d’Aix-Marseille. sur les contrats d’affrètement et de transport maritimes (J. DMF 1952. 54 merely refers to the normal procedural rules that govern the validity of jurisdiction clauses. 10 of the former Law of April 2. See Fraikin et Boquet.324 This general rule is enshrined in art. in which case the court will declare itself (“incompétent”) (without jurisdiction). «Les clauses des connaissements attribuant compétence à un tribunal étranger sont-elles encore valables?» DMF 1980. 1980.4. A. April 11. La clause attributive de compétence à un tribunal étranger. where the impact of the changes in the New Code of Civil Procedure is discussed.325 (NCPC) which also establishes an important exception: i. 1975. 483. 325 Established by Decree No. 320 Law No.O. 235. Fraikin et Boquet. 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. February 25. 1985. Cour d'Appel de Paris. be consented to apart from the other clauses in the bill of lading: Cour de Cassation. 489. 1983. 1.54 where the jurisdiction clause has been agreed to by parties acting in a commercial capacity and has been clearly specified in the agreement. June 27. 1982. 1981. 1983. obs. Bull 1980. no. July 12. DMF 1983. 282. 1984. D. DMF 1998. where the foreign court was not determinable and the clause was therefore unenforceable. 1980. 325. DMF 1983. 1980. May 3. DMF 1983. the Court should have refused to give effect to the clauses concerned. 431 with note by R. 33. 1998 (The Lode Bay). Gaz. May 24. second para. note H. and cannot decline the jurisdiction of that court even by invoking a jurisdiction clause: art. December 17. II. 1991. even if acting in a commercial capacity. When there are several defendants and the action is indivisible. 1974. 1986. DMF 1982. Until 1987. no. dr. November 8. 1984. with note by Normand. 78. inf. 1982. 77 328 Cour d’Appel de Rouen. Y. DMF 1980. 37. dr. somm. NCPC. 1972. February 27. which merely designated the courts of the country where the carrier had his principal business. March 20.331 The forum chosen in the clause must be clearly designated. May 9. Achard. Achard. DMF 1979. 415. In Cour d’Appel de Rouen. report J. June 26. March 3. however. 332 Cour de Cassation. May 24. DMF 1981. 678 with an excellent commentary by P. p. 270. DMF 1986. Bull. with note by Ghestin. 262. 489. November 14. 1987 so that the shipper is no longer obliged to sign the bill of lading under French law. November 14. Cour de Cassation. Rev. January 14. DMF 1985. Thus a clause printed in ultra-fine letters below the line where the party was to sign. Cour de Cassation. note R. Cour d’Appel de Paris. November 30. See also Cour d’Appel de Paris. July 20. 1928. regardless of the presence of a jurisdiction clause: see art. 274. 85. 1982. 1980. 492. art. 1986. 326 .1. February 4. 518. 1980. DMF 1983. DMF 1979. See also Cour d’Appel de Rouen. 1971. Rev. 661078 of December 31. 725 at p. 1927. Achard. 1986. 333 Cour de Cassation. it must at least be identifiable. 327 Cour de Cassation. 720. 330 Cour d’Appel d’Aix. 162. Cour d’Appel de Rouen. however. 37 of Decree No.64. Bulletin des transports 1987. 1. 1966 required the shipper to sign the bill within 24 hours of the loading. 1981. 1998. cr.326 The clause must be clearly apparent so that the parties can be found to have given their informed and unequivocal consent to it. 98.329 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. pr. 1983. 1981. DMF 1983. March 3. 609.332 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.-Y.-P. DMF 1974. if it is not identified.S. must proceed before the court which is seized of the principal action. D. 1980. 1978. 37 of Decree No. Cour d’Appel de Paris. 329 Art. without that clause being pointed out. 1979. Achard. was not deemed consented to. 537. March 11. Pal. February 28. DMF 1997.328 until the requirement for the shipper to sign bills of lading was repealed in 1987. See. DMF 1981.S. Cour de Cassation. 331 Cour de Cassation. See comment by R. 1979. DMF 1991. no. Cour d’Appel de Bordeaux. 42. October 1. Cour d’Appel de Paris. 66-1078 was amended by Decree No. 29 with note by R. 1996. 1979. 1971. February 8. 1982. int. jur. 802. however. Gaudemet-Talon. civ. IV. December 1. February 20. Cour de Cassation. Bull. March 19. DMF 1998. Cour de Cassation. the plaintiff can pursue the action in the jurisdiction of any one of the defendants. Cour de Cassation. Ph. 546. DMF 1981. Delebecque. 1982. 334 Tribunal de Commerce du Havre. Tassel. January 16. 143 with note by R. DMF 1987. Rémery. 128. where the rule is different when the 1968 Brussels Convention applies. 1982. no. See. 726. 118. 333 NCPC. May 30. 1979. pan. The jurisdiction clause need not. 11. Nicolas. Achard appended to Cour de Cassation.330 nor was a clause written in a foreign language that the party did not understand. See Cour d’Appel de Paris. rep. Cour de Cassation. trim. 1979. 531. obs. DMF 1983. 507. DMF 1983. Bull. February 13. as well as in Cour d’Appel de Rouen. 730. S. 87-922 of November 12. Cour d’Appel de Paris. Cour de Cassation. who is impleaded into the action. Cour d’Appel d’Aix. 1966 (governing domestic carriage) makes that law of public order. as in the case of a short form bill of lading. 3(8) of the Hague/Visby Rules makes those rules of public order. para. fascicule 212-1. para. 548. 710.337 Of course when the whole agreement is challenged. 341 Belgium takes a similar position. Cour d’Appel de Rouen. the French court must consider whether giving effect to the clause would violate French public order. 1979. Belgium takes a similar position. 1984. would be contrary to public order.341 See Juris-Classeur Procédure 3. 236. 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. 339 Cour d’Appel de Paris. 203. Cour d’Appel de Paris. March 1. 198 1. 100. the clause will be interpreted restrictively by the courts. DMF 187. Normand. Rev. 66-420 of June 18. 1982. 48.336 It must be remembered. January 20. para. 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.335 The court will sometimes. DMF 1982. 340 Art. by requiring that the clause “be specified very clearly in the agreement” itself. fascicule 211. March 2. 87. dr. If the jurisdiction clause designates a foreign court which is likely to apply its own law. 337 Juris-Classeur Procédure 3. DMF 1982. Nor is a clause designating a court which one of the parties has the option to eventually name. 550. [2003] ETL 496. the contra proferentem rule will apply if such designation disadvantages the shipper. Juris-Classeur Procédure 3. DMF 1980. the courts had at one time given effect to foreign jurisdiction clauses. because the carrier drew up the clauses in the bill of lading. But see also Cour de Cassation. Any restriction of the shipper's rights beyond what is permitted by the Law of June 18. fascicule 212-1. para. 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. the courts have in some cases given effect to the jurisdiction clause. 338 Juris-Classeur Procédure 3. 23. Cour d’Appel de Paris. as where there has been a fundamental breach of the contract. March 7. 29 of Law No. Bulltein des transports 1994. in the case of international carriage. 416. that since such a clause derogates from the normal rules of civil procedure. where the Court notes that the bill of lading is the typical case of a contract of adhesion. See Hof van Beroep te Antwerpen. the Hague/Visby Rules. Sometimes the jurisdiction clause is not found in the document itself. fascicule 212-1. DMF 1994.338 But art. March 335 . 612. 93. April 23. but only on the condition that the designated foreign court apply the Belgian equivalent of the Hague Rules: Hof van Beroep te Brussel. just as art. fascicule 212-1. trim. which must be performed in good faith. if the clause designates the court of the carrier's domicile. 602. would seem to invalidate jurisdiction clauses which do not appear in the bill of lading issued to the shipper. 1986. February. 1980. See also Cour d’Appel de Rouen. 546. 5. June 17. but not always.55 since that port could change from voyage to voyage. January 14. the jurisdiction clause's effectiveness will be jeopardized. In Belgium. 2003 (The MSC Dymphna). Notably. 95. para. 336 Cour de Cassation. DMF 1983. Thus merely referring to a jurisdiction clause appearing in another document would not be sufficient. 1993. See Tribunal de Commerce de Paris. 1983. DMF 1985. however. holding that the acceptance of a jurisdiction clause could not be inferred from the existence of prior commercial relations between the parties. civ. 1966 or. June 22. 1994. the French court should refuse to give effect to the jurisdiction clause.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.340 In such circumstances. preamble. as amended by various Accession Conventions. 1968. 515 at p. Rapport sur les travaux de la 2ème Commission. 622. 1974. July 12. 1971. DMF 1982. 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.56 4) France and EC Regulation 44/2001 Until the coming into force on March 1. 1982. even though the clause in question arose in respect of an action in warranty and the principal action was being taken in another jurisdiction. October 31. 17 of the Convention and not necessarily with the national law (i. 1973. October 9. DMF 1985. DMF 1987. actions taken before the court of one European Union Member State by or against a corporation or individual domiciled in another Member State. was essentially the same as the Regulation in respect of jurisdiction clauses. even if there is an international element to the contract: e. Cour d’Appel d’Aix. 23 of the Regulation. 2002 of EC Regulation 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. 1987. where one or more of the parties is a domiciliary of any other E. Nicolas. 557. DMF 1985. both published by Decree No. 1982. signed at Brussels. 347 Conférence de droit international privé de la Haye.96. 1984. Subsequently. 723. DMF 1983.U. with note by P. May 25. 344 See Cour de Cassation.342 French courts were bound by the Brussels Convention 1968343 on the same subject. DMF 1986.1. 604. art. as the Regulation now does. art. 1984. See Cour d’Appel de Rouen.344 Today. 1977. 17 on jurisdiction clauses. 98. July 12. March 14. DMF 1983.Y. 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. May 15.348 the European Court of Justice held that a jurisdiction clause in a bill of lading would satisfy the requirements of art. 22. May 24.e. See Cour de Cassation. 1979. 1983. See also Cour d’Appel de Rouen. Cour d'Appel de Rouen. Cour d’Appel de Rouen. par Frédéricq. see also Cour d’Appel de Paris. 713. not by art.S. State and the case involves a Danish domiciliary. referred to in Jurisclasseur. DMF 1979. DMF 1986. L. French courts have not gone as far as Belgian courts in this regard: Cour d’Appel de Rouen. art. DMF 1983. The draftsmen of the old art. 469. 23 of the Regulation governing the validity of a jurisdiction clause. p.U.C. which. continues to displace art. fascicule 631.12/1. by which the Brussels Convention 1968.4.Y. March 10. 48 NCPC where the clause specifies a court in another E. DMF 1980. Member State. Droit international 8.347 In The Tilly Russ. August 29. however. 1971. the other Member States of the European Union). Norway. 1982. [1975] ETL 50. [1971] ETL 641. March 1. 1984. supra. Actes de la 8ème session. signed at Luxembourg. see also the Protocol on the Interpretation of the 1968 Convention by the European Court. 17 of the Convention had precedence over the other means of acquiring jurisdiction. 98. 346 See EC Regulation 44/2001. 73-63 of January 13. July 5. June 27. 342 O. June 3. 17 of the Convention or art. 17: 18. jurisdiction clauses in contracts between parties both of whom are domiciled in France continue to be governed by art. country except Denmark. Hof van Beroep te Brussel.J. 1985. para.E. 345 Cour de Cassation. 16. 48 NCPC). 343 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. 520. [1977] ETL 704. 620. 492. DMF 1980. supplants art. 17 wanted to avoid making compliance with formalistic requirements a criterion for the validity of jurisdiction.2001. aff'd Cour de Cassation. . 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. The Lugano Convention 1988 will also continue to apply to jurisdictional matters involving a Member-State of the European Union and either Iceland. See also Cour d’Appel de Rouen. 1985.e.U. where it was held that jurisdiction acquired by means of a jurisdiction clause which complied with art. Belgian courts did not consider such a condition to be sufficient. 1973. where the bill of lading was signed outside of France. where it was held that the jurisdiction clause need only comply with art. 303. June 10. September 27. 48 NCPC.346 On the other hand.g. see Fraikin and Boquet. 550. 214. The Convention as amended covered. Nicolas. 1979. 117. para. Switzerland or Poland. D. DMF 1985. with note by P. March 2. 89. October 9. the side where the shipper signs). Droit Maritime. 285/1. 1997.K. the Republic of Ireland and the United Kingdom. para. 03. 235. para. parties to the type of contract concerned in that particular trade or commerce. Rodière & du Pontavice. 254.355 Thus art. 23 of the EC Regulation 44/2001 is reproduced supra. 548. DMF 1985. Also accepted are forum selection clauses in a form which accords with a usage in international trade or commerce of which the parties were.J. was not given effect since the shipper had only been issued the short form bill. September 30. 17 that was adjudicated upon in The Tilly Russ was modified when Denmark. Bull. 48 NCPC) which requires the clause to appear on the document issued itself: See Cour d’Appel de Paris. If the jurisdiction clause is only printed on the front of the bill. The French courts emphasized that the jurisdiction clause had to be printed on the back of the bill of lading. as well as those in a form which accords with practices the parties have established between themselves. 349 348 . The inclusion of electronic communications in art.e. where a jurisdiction clause. 1993. 23 constitutes an important distancing from French law: a jurisdiction clause may be deemed valid under art. acted as the written confirmation of that prior agreement. 1984. 1989. 2 Ed.. The text is found in DMF 1987. even though the short form specifically referred to the long form. 355 Rèmond-Gouilloud. p. 23(2) is the major addition made by the Regulation to the wording of the immediately preceding version of art. section of this article.10. aware and which is widely known to. 17 of the Brussels Convention 1968. which appeared only in the long form bill. O. 1984.C.e. 1984. 351 Again. the shipper was never advised of the existence of the clause. Droit Maritime. 353 By the San Sebastian Convention of May 26. 83 at p. nor had the shipper agreed to such a clause in previous voyages. 1984.353 It is essentially this latter version which was reproduced by the drafters of EC Regulation 44/2001. 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. DMF 1985. 48 requires the jurisdiction clause to appear on the document issued.350 (this set of circumstances is rare in maritime matters). 1981. though signed only by the carrier and not by the shipper. L.E. art. 12 Ed. 23(1) authorizes jurisdiction clauses which are in writing or evidenced in writing. DMF 1982. a jurisdiction clause in these circumstances would not meet the requirements of French domestic law: art.1989. 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. or ought to have been. and regularly observed by. 386-2. no.e. 623-3. in the U. 1986. 354 Art. 557. i. European Court of Justice. It came into force on November 1. to ensure that the shipper had such notice as to be able to consent to it: Tribunal de Commerce de Paris. at art. 23 even when the shipper has not signed the (The Tilly Russ). 209.351 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. IV. 23. its validity will depend on whether it fulfils the requirements of category b). signed at Luxembourg on October 9. where the shipper put his signature.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. June 19.. 1978. 352 Convention on the Accession to the 1968 Convention and the 1971 Protocol of Denmark. Cour de Cassation.354 Art. 350 The jurisdiction clause in this situation would not comply with the requirements of French domestic law (i. 1984. 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. 1038. The consignee and subsequent endorsees. DMF 2001. however. DMF 1985. P. 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. on proof of the shipper’s actual consent to the jurisdiction clause before the conclusion of the contract of carriage. 235. 2001. 17. Cour d’Appel de Rouen. 361 November 9. Cour d’Appel de Rouen. difficult-to-reconcile decisions of the Cour d’Appel de Paris and the Cour d’Appel de Rouen. See the commentary by Pierre Bonassies. June 19. 357 See Cour d’Appel de Paris. 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.359 In The Tilly Russ. applying the conflicts rules of his national law. 1966 and art. 1038. has succeeded to the rights and obligations of the shipper under the applicable national law. 616. 77-79 for a summary of various. however. obs. 2000 (The Nuevo Leon). 83 at p. produces effects with respect to a third party holder who. December 5. 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. the European Court of Justice answered this question. 17 of the Brussels Convention 1968. DMF 2001. See Tribunal de Commerce de Paris. Delebecque. 358 Cour d’Appel de Rouen. 2002. but rather that that law fell to be determined by the judge seized of the case. [2000] ECR I-9337. in acquiring the bill became the assignee of the shipper’s rights and obligations. no. 17 of the 1968 Brussels Convention.358 5) Opposability to consignee and endorsees As stated above. September 30. despite art. 356 . obs. May 22. 2000 (The Seinehaven). have no notice of this clause. by virtue of the applicable national law. 1093. Art. 17. Nicolas. June 21. relating to the opposability to shippers and consignees of bill of lading jurisdiction clauses subject to art. in acquiring the bill. 48 NCPC. reaffirmed that a jurisdiction clause in a bill of lading. DMF 2001.362 If such is not the case. 89. Cour d’Appel de Rouen. 2000. 360 Supra. April 5. 2001 (The Transvaal). Handelsveem BV. 96. Ph. 1997 (The Clyde Bank). DMF 1985. re-amended version of art. See DMF Hors série no. the third party. 612. 17 of the Brussels Convention 1968. 37 of Decree No. in some cases recognizing practices established between the parties and international usages in regard to forum selection provisions. 187. 684.356 French courts have been rather inconsistent in giving effect to art. 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. 2002 (The Ubangui). (Case No 387/98). 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. 89 at p. 6. The question therefore is whether they also are bound by it.361 the European Court of Justice.357 and in other cases insisting. November 29. See also Cour d'Appel de Rouen. 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. DMF 2003.58 bill of lading nor been specifically shown the clause in the bill.-Y. 750. 17 established in The Tilly Russ and other decisions. it is proper to As was required by art. In Coreck Maritime GmbH v. DMF 1998. 1981. interpreting the final. 66-1078 of December 31. holding that. under art. DMF 2001. November 30. DMF 1982. DMF 1985. 102 at pp. 359 As between the shipowner and the charterer. agreed to by a shipper and a carrier. including Coreck Maritime (supra). Bonassies. Delebecque. where the Court did not decide the point because it had not been pleaded by the defendants. 2003. 72 at p. cr. [1999] ETL 551. as opposed to “special acceptance”. 1007. 393. Tassel (an arbitration clause). DMF 1997. See also Cour d'Appel de Nìmes.-Y. Tassel. la reconnaissance et l’exécution des décisions de justice en matière civile et commerciale”. 733. DMF 2000. 1996 (The Chang Ping). DMF 1995. Delebecque.59 verify the reality of the holder’s consent to the clause by reference to the requirements of art. d’Haussy. p. 1994 (The Harmony and The Nagasaki). 1994 (The Stolt Osprey). 99.-Y. but rather as either a true party. 368 Cour d’Appel de Rouen. DMF 2003.-Y.366 Neither the mere possession of the bill of lading by the consignee or endorsee367 nor its “accomplishment” (i. DMF 2003. Ph. November 29. 703.e. Nicolas. 694. int. Bonassies. May 26. Cour de Cassation. June 25. 1007. Delebecque in DMF Hors série no. Ph. January 16. Revue Scapel 2003. obs. Nicolas. obs. 364 See the commentary by P. “L’autonomie de la clause de juridiction”. 1992. 2002 (The Aptmariner). obs. Delebecque. States like Germany. 2003 ETL 321. Cour de Cassation. Cour de Cassation. 74. DMF 1999. 367 Cour de Cassation. April 2. [2003] ETL 193.368 It is unclear. 1996 (The Köln Atlantic). the consignee is not generally considered to be a mere successor to the rights of the shipper under the bill of lading. 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. P. first para. 2000 (The Nuevo Leon). 2000. Cour d’Appel de Paris. 1998.. Cour de Cassation. cr. note Y. 2002. P. to the bill of lading (a tripartite contract) or at least the beneficiary of a “stipulation pour autrui”. 684 at p. note H. 705. November 13. Bonassies. referring only to “acceptance”. Cour de Cassation. 723. See also the commentary of P. amounts to such express acceptance. indicating that in France the consignee is not seen as a mere successor to the shipper’s rights as in certain other E. although the commentary strongly suggests that such action would not constitute the “special acceptance” of the clause by the consignee required by French law. 209. note P. together with the shipper and carrier. indicating that art. Revue Scapel 2003. November 28.U. Bonassies on the decision of the European Court of Justice in the Castelleti decision of March 16. DMF 2001. 259.369 See P. 369 Cour de Cassation. 339.363 In France. Cour de Cassation. 2003 (The Houston Express). 363 . Nicolas. Nicolas on the decision of the Cour d’Appel de Paris. 17 of the Convention by the Court of Justice of the European Communities. note P. (The Silver Sky). 1996 (The Fiona). DMF 1995. November 29. endorsee or subrogated insurer. 20. 93. March 4. 154. 1997 (The Tonia Bondarchuck). M. (The Sonara). 366 Cour de Cassation. no. whether the mere endorsement of the bill by the consignee. F.-Y. DMF 1995. 556. Rev. October 15. DMF 1997. pr.-Y Nicolas. Gaudemet-Talon. DMF 1995. DMF 1996. “L’entrée en vigueur du règlement communautaire no 44-2001 du 22 décembre 2000 concernant la compétence judiciaire. Rèmond-Gouilloud. 1999. note P. 41. 1998 (The Silver Sky). 23 of EC Regulation 44/2001. 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. 572. observations Ph. of the bill of lading by the third party bearer of the bill. March 4. obs. Nicolas. para. [2002] ETL 727 at p. See also Cour de Cassation. 17 of the Brussels Convention 1968 and that the decisions rendered under art.-Y. 14. 218. 41. 4. DMF 2003. but doubtful. November 14. Ph. [1999] ETL 551. Bulletin des transports 1997. DMF 1997. by signature or rubber stamp. 2002 (The Elpa). 23 of the Regulation. note P. Cour de Cassation. Cour de Cassation. December 8. will probably continue to apply under art. November 29. “Des clauses des connaissements maritimes attribuant compétence à une juridiction étrangère : essai de démystification”. 365 See generally Y. 23 of EC Regulation 44/2001 is basically unchanged from art. It would appear that the same principle will apply under the almost identical art. of the Convention. 2002 (The Aptmariner). obs. DMF 1999. December 8. June 25. 1997 (The City of Durban). P.364 French courts have therefore held that in order to bind consignees and their subrogated underwriters. no later than at the time of delivery. 11. Cour de Cassation. obs. 1992. DMF 2003. obs. 46. May 27. 17. The Rome Convention 1980 on the Law Applicable to Contractual Obligations374 is a particularly advanced international instrument. affirming Tribunal de Commerce de Paris. EC Regulation 44/2001.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. 373 The Iran Vojdan [1984] 2 Lloyd's Rep. Pierre Bonassies . that clause will not be enforceable as against the third party holder. or France respectively. R.S. June 19. uniform conflict rules are most helpful. 1981. judged under German law. 371 Cour d’Appel de Paris. found in the charterparty. 1032-1048. DMF 1998.note. in deciding whether a jurisdiction clause should be given effect.. 548. but also the shipper could not have had proper notice of the existence of the clause. a court. For the text and a brief commentary. This is a basic principle of conflict of laws. must apply “the system of law with which the transaction has its closest and most real connection . 337. such a clause was not enforceable as against the consignee. 1980 and in force April 1. January 5. 93. Here again. more recently. 9.370 When the bill of lading has been issued under a charterparty and generally refers to the terms. the U. 333 at p. 1994. since not only the consignee. The European Union. 1976. however. Cour d'Appel de Paris.371 Where. the consignee is proven to have been aware of the clause at or before the completion of delivery of the cargo.. since the latter is not deemed to have known of its contents.373 In consequence. in the field of conflict of jurisdiction. has taken a major step towards that kind of unification. 2002 (The M/V Marimar). 383.The Criteria . 371. October 14. O. DMF 1985. December 16. including the jurisdiction clause.. November 27. 89 at p. 304. DMF 1976. Achard. ”.60 When the jurisdiction clause was among the clauses printed only on the long form bill of lading. International Conflict of Laws. DMF 1983. with the Brussels Convention 1968 and. 529 at p. see also Batiffol et Lagarde. The principle emphasises how necessary it is to have uniform conflict of law rules. therefore. 2) The law by which to judge the clause On the other hand. Appendix “F” at pp. 370 . without actually reproducing the jurisdiction clause itself. in a shipment from Hamburg via Bremen and Valencia to Dubai on an Iranian ship. no. he has been held to be bound by it.10. obs. 374 Adopted at Rome. 1997 (The Istanbul Z). and only a short form bill was issued and signed by the shipper before being transferred to the consignee. however. 530. 80/934/EEC. 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. DMF 1985.C. 372 See Cour d’Appel de Rouen. which Cour d’Appel de Paris. Jurisdiction Clauses Per Se . March 2. 688. 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. L 266/1. 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. an English Court held that German law had the closest and most real connection and the validity of the jurisdiction clause was. See.J.1980. 1991. 479. Bulletin des Transports 2003.E. The Frank Pais [1986] 1 Lloyd's Rep.372 XIII. 1984. 380 at p. see Tetley.K. Droit international privé. C. Delebecque. obs. [1998] S. DMF 2003. For an example of the application of art. 4(4) in a bill of lading case.375 The Convention also establishes rebuttable presumptions to assist the court in determining the national law with which the case is most closely connected. it has been held that a clause calling for suit “before the courts of England” Rome Convention 1980. see Cour d’Appel de Paris. November 29. 2003. the carrier was unable to adduce sufficient evidence to support its contention that its “principal place of business” was located in Hong Kong. DMF 2001. [1967] ETL 780. upheld Cour de Cassation.376 3) Discretion Although there is no general rule as to whether a court will honour a jurisdiction clause. the court's discretion is based on a number of criteria in respect to the clause itself. November 30. 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. See also Jian Sheng Co. 1999 (The Bonastar II). 20. 2001. DMF 2001. Revue Scapel 2003. DMF 1999. Great Tempo S. [1986] ETL 238. No. 2000 (The Nuevo Leon).A. Note. 996. 1998 AMC 1864 (Fed. March 4.). 618.379 Similarly. 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. note P.A. these presumptions “… shall be disregarded if it appears from the circumstances as a whole that the contract is more closely connected with another country. and has sometimes been enforced. 378 Cour d’Appel de Rouen. July 12.C. 829. 377 February 2. 379 Hof van Beroep te Brussel.” For an example of the application of art. it should not be honoured because it will not allow the parties to know with certainty before which court they are to proceed. 4(5).61 has harmonized choice of law in contractual matters for all Member States of the European Union. 4(5) in such a case.C. and Cour de Cassation. 684. that by art. [1998] 3 F. 4(2) to 4(4). All jurisdictions use roughly the same criteria. In some countries. a jurisdiction clause is not valid unless the name of the actual court is spelled out. June 12. 1966. 287. 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. 376 375 . a) Clear and precise Unless the jurisdiction clause is clear and precise. upheld by the Cour de Cassation. DMF 2001. absent any express or implied choice of law. although the clause was found unenforceable because of lack of proof that it had been consented to by the shipper. 2003 (The Houston Express0. arts. 1984. On the other hand.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. 3(1) and 4(1). DMF 1959.-Y. Rome Convention 1980. see Cour d’Appel de Paris. September 9. 1959. November 18. 556. 1037. Ph. 418. March 4. arts. v. where.C.A. application for leave to appeal to the Supreme Court of Canada dismissed with costs and without reasons. although such a clause was found to be quite frequent in bills of lading. 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. 2000 (The Bunga Pelang).Nicolas. See Rechtbank van Koophandel te Antwerpen. DMF 1971. 380 . 1974. 35. 1040. 293. May 9. March 2. see also Cour d’Appel de Paris. 336 and Cour d’Appel de Rouen. DMF 1985. 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.S. DMF 1975. In The Lisboa. 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. DMF 2001. June 27. June 19.. in the United Kingdom. was held to be valid. 542. at the shipowner's option. ”(emphasis added) was not held to bind the “ship” and an action in rem could therefore be taken in Italy. DMF 1976. if this is sufficient notice and is sufficiently certain. See also Cour d’Appel de Paris.384 Where a bill of lading referred to a long form bill of lading. One wonders. January 5. 80. 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. November 30.380 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. 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. 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.” in a bill of lading signed by the shipper. 1960. 335. Jurisdiction was to beat the port of destination (Calcutta) or.S. Rep. See also Cour d’Appel de Rouen. 385 Cour d’Appel de Rouen. 2000. DMF 1961. 548 . 484. which in turn contained a jurisdiction clause. A note of E. DMF 1976. DMF 2001. July 20. 381 The Media (1931) 41 Ll. where clauses giving the carrier the option of suing in more than one court were held null and void.62 is not sufficient. June 22. 1995 (The Frauke).A. nevertheless. 724. see also Cour d’Appel de Poitiers. 384 Cour d'Appel de Paris. 2000. Revue Scapel 1996. In consequence. February 5.R. 659. L.383 a jurisdiction clause reading: “Any and all proceedings against the carrier shall be brought before the competent Court of London . where the jurisdiction clause in a standard-form contract incorporated into a contract of carriage was held to be unenforceable. December 17. b) Jurisdiction clauses by reference The reference in another document to a jurisdiction clause should be detailed and precise. it was inapplicable. 383 [1980] 2 Lloyd's Rep. 1975. 549 (C. 382 Cour d’Appel de Douai.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.). 1976. 1971.381 On the other hand. 1973. DMF 1973. and consequently. 1984. 546 at p.. See also Cour de Cassation. Y. 1982. he may be sued in the courts where any one of them is domiciled. 235. Jotina 1974 AMC 1190 (S. suit at the place of business of any one of the defendants can be convenient. where a defendant domiciled in a Member State is one of a number of defendants. Ph. June 11. 295 at p. because the size of the print of the clause was too small. obs.391 f) Fairness and public policy Courts. Bundesgerichtshof. DMF 1983. for the application of art. Delebecque. May 30. 531. 389 11 Z. DMF 1977. para. S. cited supra. February 4. [1984] ETL 217. November 20. Note that under art. See a note on the judgment at DMF 1983. 296. May 24.R. 407 U. 1. Cour d’Appel de Paris.63 damage action brought by a third party. at p. May 11. the suits against the various defendants need only be connected. 1976. DMF 1983. the jurisdiction clause cannot apply if the circumstances of the case forbid dividing the action. In this regard. Tribunal de Commerce de Marseille. DMF 1983. See also Cour de Cassation de Belgique. DMF 1999. See also the legislation of jurisdictions such as Australia. 6(1) of the Brussels Convention 1968). 391 Cour d’Appel de Paris. DMF 1965. See also European Court of Justice. 392 See particularly the American decisions flowing from Bremen v. which generally invalidates foreign jurisdiction clauses on the public policy ground that they oust the jurisdiction of local courts. of North America v.386 Similarly.S.388 d) Legibility of the clause A jurisdiction clause is an exception. 1.A. 1979. October 15. 1972 AMC 1407 (1972). where it was held that. 143. 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. 1974). February 2. 29. as where it seems to be the product of fraud or overreaching by the carrier or is inherently unjust or unreasonable. February 25. [1966] ETL 270.A. 37 and Oberlandesgericht Dusseldorf. 9. 1982. 1998 (The Albasgracht). DMF 1983. 383. N. India Steamship Company389 declared a jurisdiction clause invalid.P. 1983.P. will normally refuse to enforce a jurisdiction clause that appears fundamentally unfair. 6(1) of the 1968 Convention. 1982. 1983. 1982.1975. Zapata Off-Shore Co.S. Cour d’Appel d’Aix.390 On the other hand. or where it violates a strong public policy of the forum. (France).D.c. 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. 616. 6(1) of the EC Regulation 44/2001 (similar to art. 387 386 . the Supreme Court of the Federal German Republic in Allianz v. 197980 J. c. 390 Cour de Cassation. e) Plurality of defendants Where there is a plurality of defendants. 232.387 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. October 27. in their discretion. New Zealand and South Africa. 1965. May 30. the shipowner was held not bound by a jurisdiction clause in a bill of lading issued to the shipper by the time charterer. 1384. not indivisible. 135/82. 388 Cour de Cassation.392 Insurance Co. referred to in The Iran Vojdan [1984] 2 Lloyd's Rep 380 at p. 1979-80 J. 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. 81. 393 . 513 (9 Cir. see also Williams & Glyn's Bank v. Fortunately.K. sufficiently important to warrant a different test. 463-464.3d 509 at p. 33-41 of the New Code of Civil Procedure: these rules are of public order.R. S. the Federal Court of Canada has the jurisdiction to construe its originating act and especially heads of maritime jurisdiction set out in sect. but the presence of a forum selection clause in the former is.393 Nevertheless. [2003] 1 S. then the suit must be dismissed. 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. is preferable. See also Antares Shipping v. does not have forum non conveniens. 588. Davies.C.R.L. 1288-1289. as a civil law jurisdiction. 439-440 per Laskin. 42-48 of the New Code of Civil Procedure: these rules are not of public order.C. (4th) at p. Jurisdiction cannot be accepted nor can suit be stayed.). 422 at pp.S..L.64 XIV. Bastarache J. L.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. Code sect. 587. U. 49-51 and the declinatory exceptions described at arts. 50(1) of the Federal Court Act. 75-99. where a choice of jurisdiction clause constitutes but one factor to be considered. 1981. In Canada. In Z. (2003) 224 D.. In France. See Ravelo Monegro v. 456 (H. “ordinary” forum non conveniens cases]. (4th) 577 at p. France. however. D. 368. Mar.396 If the court does not have jurisdiction over the subject matter. under sect.R.S. 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. note 2.R. 450 at p.C. see 28 U. I am not convinced that a unified approach to forum non conveniens. Rosa 211 F. 1985. the specific principles and tests used in forum non conveniens cases for determining the “natural forum” have been articulated in different language from those applied in deciding whether or not to give effect to jurisdiction/arbitration clauses. and where the plaintiff has the burden of showing why a stay should not be granted. AMC at p. The Ship Capricorn [1977] 2 S.C. See also the rules governing the court's jurisdiction ratione personae or loci (compétence territoriale) set out at arts. at pp. 1289 “In the latter inquiry [i.V. “Forum Selection Clauses in Maritime Cases” (2003) 27 Tul. CJ. 49 of the Supreme Court Act 1981.” 394 Ibid. because so often plaintiffs take suit in “… the quintessentially convenient forum for the defendant – the defendant’s home forum”. and the burden of proof has been deemed to be different as well. by virtue of the legislation which establishes them. Pompey v. 367 at p. Astro Dinamico [1984] 1 Lloyd's Rep.J. 2003 AMC 1280 at pp. 453 at p. the burden is normally on the defendant to show why a stay should be granted.I. see the rules governing the court's jurisdiction ratione materiae (compétence d'attribution) set out at arts. R. See also arts.K. In both cases. one where the starting point is that parties should be held to their bargain. in my view. c. 54. In the U.7.C. ECU-Line N. 22 of the Act.S. 1333. 463.” 395 In the U. 2000). 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.L.395 2) It must next be proven that the court hearing a motion of forum non conveniens has jurisdiction over the subject matter of the suit. c. cited by M.e. 396 The jurisdiction of the plaintiff’s chosen forum over the subject-matter of the dispute is often not an issue.R. see sect. 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. The burden is therefore initially on the claimant (plaintiff) to prove the jurisdiction of the forum.. the party (defendant) attempting to change jurisdiction has the burden of proof as to why the stay of proceedings should be granted.Y. 2002 AMC 528 at p. who brings suit in a forum other than the contractually agreed one. See also Allen v. M/V Berane. 397 .2d 297 at p. relying on M/S Bremen v. 202. “Thus. to which he has (presumably) agreed. 1289. upheld in the Supreme Court. See also 407 U. Supp. (4th) 577 at p. 450 at p. Gilbert:397 “But unless the balance is strongly in favour of the defendant. quoted in Carbon Black Export v.D. 2003 AMC 1280 at p. and that there has been notice to the other party.2d 458 at p. (4th) 577 at p. 588. 1985). There is no unanimity among American courts. 1996). 464. 402 407 U. 1987 AMC 2735 at p. Staying Suit -All Jurisdictions In the United States. 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). that the clause is legible. v.e. that: “The seminal Supreme Court decision enforcing a forum selection clause places the burden on the plaintiff. 1958). Some Circuits tend to apply the 330 U. 1983). why the contractually stipulated jurisdiction. Supp.65 3) Once it is shown that the forum has jurisdiction over the subject matter of the suit. 1414 (1972). 401 1975 AMC 1972 at p.V. ECU-Line N. 1164. 2003 AMC 1280 at p. ECU-Line N. Pompey v. 2760 (1987).R. it was held in Acciai Speciali Terni USA. Monroga 254 F. S. Pompey v.402 Citing the same precedent.S. 359 U. Tel Aviv 711 F. 462. 398 See also Z.S.D.Y. the party who challenges the jurisdiction clause (usually the plaintiff) has the burden of establishing why a stay should not be granted400 (i. Md.S. Lloyd’s of London 94 F.” Dukane Fabrics v. Vaasa Line Oy. 403 181 F. properly defines the other jurisdiction. (2003) 224 D. 531 (D.”403 XV. as to the precise legal basis for such unconditional dismissals. 2002). 588. 5) Thereafter.2d 1231 at p. 928 (4 Cir. 1985 AMC 1192 (S. 450 at p.I. [2003] 1 S. the plaintiff's choice of forum should rarely be disturbed.S. the party (usually the defendant) wishing to rely on the clause must prove that the clause applies to the suit and to the parties at hand.R. (2003) 224 D. that the clause is validly incorporated into the contract of carriage. 1972 AMC 1407 at p. La. 508.R.”398 The party seeking the forum non conveniens dismissal must convince the court of every element of the forum non conveniens analysis. Only by making such proof can the plaintiff hope to be released from his bargain to sue or arbitrate elsewhere. Inc. 1975).L.C. 1235. Zapata Off-Shore Co. 180. 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. 400 Z. 1418. Hre1jin 600 F. 15. and 1972 AMC at p.2d 1147 at p. 1 at p.S. 501 at p. Thus in Kooperativa Forbundet v.C. 1958 AMC 1335 at p.399 4) If there is a jurisdiction clause.R. N.I.3d 923 at p. etc. 10.L. 71 (5 Cir. As was said in Gulf Oil v. 821 F. 301. however. 464. 1973 (S. 399 See In re Air Crash Disaster Near New Orleans. N. to make a ‘strong showing’ that the court should exercise jurisdiction in derogation of the contract. and also quoted in Perusahaan Umum v.V. where the Court stated. courts frequently dismiss suits instituted in breach of valid foreign jurisdiction or foreign arbitration clauses.401 it was held: “This is a forum-selection clause and it is prima facie valid and enforceable”. 1959 AMC 1327 (1959). 1341 (5 Cir. [2003] 1 S. at p. 1289. 1985 AMC 67 at p. D. 207 (7 Cir. note 1 (1 Cir. whether service may be made. 2000). Akai Pty. 1993).410 This is an intelligent and proper approach. M/V Peace River 39 F. Lauro Lines 387 F. Hugel v. Orient Overseas Line 1976 AMC 212 at p. 2001 AMC 869 at pp. 408 See. 131 F. 1112. Co.A. of Aust. 376. This preserves the legitimate rights of the claimant as to time for suit and other unknowns and imponderables (e. 1975. M. Supp. London 148 F.2d 697 at p. 188 C. 2055 (D. 2948-2949 (E.. Supp. For a thorough analysis of the differing approaches of different American circuit courts of appeal to this matter.v.C.. 2002 AMC 1598 at p. 405 See. 2000 AMC 2947 at pp. stays would seem preferable to unconditional dismissals. Ulysses Cruises. 369-376. Va. 210 F. the date of the filing of this lawsuit” See also Snam Progetti S. v. cited by M. Davies. 410 Hartford Fire Ins. Continental Ins. Inc.3d 1171 at p. Corporation of Lloyd’s 999 F. Abatement is the dismissal of the action.66 Federal Rules of Civil Procedure. 2002). 324. Supp. GmbH. Mar. 2001 WL 667804. 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. unreported. Rules 12(b)(1) (dismissal for want of subject-matter jurisdiction). M/V Hyundai Liberty 294 F.C. supra at p. see M. v. v. Dis. 2003).J. for example.406 The inherent power of the court to regulate its own proceedings can also be applied either to dismiss or to stay proceedings.3d 825 ast p. of Canada v. 56 F. has jurisdiction. Co. Allianz Ins. Kysar 983 F. Lipcon v. Va. Inc. Davies. for example. 406 See. Inc. Underwriters at Lloyd’s. United Int’l Holdings.S.P.S. 633 (S. People’s Ins. Co. 407-408. 407 Licensed Practical Nurses. v. but rather by stays of proceedings. 131 F. 886-887 (S. “Forum Selection Clauses in Maritime Cases” (2002) 27 Tul. Davies. 1999 AMC 2053 at p.3d 1285 at p. 1993).R. Inc. N. Vetrerie Riunite. 830 (7 Cir. M/V Orsula 354 F. v.408 Where a court. Inc.3d 1207 at p. v. 2001). faced with a motion of forum non conveniens.D. 2004 AMC 172 at p. for example.3d 603 at p. ibid. v.g. forum selection clauses and foreign arbitration clauses are typically enforced not by dismissals.2d 206 at p. 2000).Y. In foreign forum selection clause cases too. Lambert .D.D. 1222 (10 Cir. 1290 (11 Cir. Wharf (Holdings) Ltd.S. 418 at pp. COGSA applies and the foreign court reduced the rights of cargo claimants below the minimum guaranteed by U.404 while others invoke Rule 12(b)(3) (dismissal for improper venue)405 and yet others rely on Rule 12(b)(6) (dismissal for failure to state a claim). 119 at p. 367 at pp. Wash. 175 (7 Cir. 1174.Y. Cho Yang Shipping Co.2d 1110 at p. on the time for suit defence being waived and on appropriate security being filed. 698 (D.D. 444-445 (High C. 2d 787 at pp.” 404 . Cir.).p. v. See. Supp. v. but merely declines to exercise it. judgments staying suit will be conditional on the defendant agreeing to appear and appearing in the new jurisdiction.L. 2000). Commerce Consultants Int’l. 2001 U.2d 393 at pp. Inc. Ltd. June 12. whereby the courts seized of the motion to enforce the clause does not deny its own jurisdiction. particularly as a stay would permit the U.A. S. 867 F. Longwall-Associates. 1995). 214 (W. Fourth Circuit decisions such as Jewel Seafooods Ltd. 2001.2d 628 at p. court to re-assume jurisdiction in situations where U. Co. 606. 1601 (9 Cir. v. 1989). 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. Technicians & Health Care Workers of N. N. Wolfgang Preinfalk. by contrast. The El Amria 1981] 2 Lloyd’s Rep. and even whether the other court will accept jurisdiction).407 In England and Commonwealth countries. 1975 AMC 631 at p. 789-790. 123 (C. 1996). 630.Y.A. 322 at p. 1998). it is preferable that the court stay proceedings409 rather than dismiss them. 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. Co. for example. 1999). Kukje Hwajae Ins. S. COGSA.S. Refco. Lexis 8113 (W. Very often. Frietsch v. L. N.). 413 See. M. 1984). Farrell Lines Inc.C. 631 at p. 138. Patel [1999] 1 A.). v. would have had a reasonable basis for concluding that there was no clearly more appropriate alternative forum.67 XVI. in Amchem Corp. 631 (H.K. In addition. 1 (1972). 1998). April 27. GmbH 428 F.C. The Second.Y. 637 (H. Ceres Terminals Inc. or is about to assume. The acceptance of anti-suit injunctions has become widespread. and that the injunction is necessary to prevent and injustice. [1998] 1 Lloyd’s Rep. For the U. In re Unterweser Reederei.414 They have also been issued.S. See Laker Airways Ltd.C.L.C. 58 at p. 897. 402 (H.L. [1986] 2 Lloyd’s Rep. for example. 407 U.413 they are issued only sparingly. International Maritime and Admiralty Law. 871 at p. Laker Airways Ltd.” See also Turner v. 1 (1972). the injunction should only be granted if the forum court decides that the foreign court. and Others (1997) 146 A. [1985] A. Grovit (Case No. 897.C.S.R. Seventh and Ninth Circuits have issued anti-suit injunctions where the foreign proceedings are vexatious.. 2003 at pp. 1987): Gau Shan Co. supra. 414-415. with the jurisdiction of foreign courts. because anti-suit injunctions interfere.C.C. Sabena Belgian World Airlines 731 F. Donohue v. For Canada. British Columbia (Workers’ Compensation Board) [1993] 1 S. 640. v. where the House of Lords referred to the “… indirect interference with the foreign court which an anti-suit injunction entails. rev’d on other grounds. Choon Yong 837 F. of Aust. 1984).S. 119.3d 115.C. 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. Airbus Industrie GIE v. Assurantie Maatschappij ‘de Zeven Provincien’ [1987] A. Airbus Industrie GIE v. v. 58 (H. 407 U.). 1992). to prevent parties from See the discussion of the six steps in this process surrounding notes 12 to 15. which involves a forum non conveniens type of analysis. and the foreign court has taken. 2004 (E. 119 at p.. iCigna Ins.2d 909 (D. South Carolina Ins.). Bankers Trust Co.L. See. jurisdiction. Anti-Suit Injunctions Anti-suit injunctions are closely related to forum non conveniens. contrary to the principle of comity. 1998). for example.L. see.). 893 (P. 1999 AMC 305 (2 Cir. 1970). British Airways Board v. 956 F. for example. because of its real and substantial connection with the case. C-159/02).C. China Trade & Development Corp.2d 888 (5 Cir.. In re Unterweser Reederei.C. see. [1998] 1 Lloyd’s Rep.). 631 at p.J. 317 (H. Co. In the U. For the U. Laker Airways Ltd. 95 (H. Cir. British Airways Board v. Where a party has already taken suit in a foreign jurisdiction or is about to do so.2d 1349 (6 Cir. the Fifth. British Columbia (Workers’Compensation Board) [1993] 1 S.D. Laker Airways Ltd.2d 888 (5 Cir. 1998 AMC 334 (S. In general. 24.2d 909 (D. Patel [1999] 1 A. Cir. 123. under pain of contempt of court. v. v. For Australia. on the other hand. In Canada.C. 1988 AMC 880 (2 Cir.).2d 33. at least indirectly. [1985] A. have held that an anti-suit injunction should be granted only to protect the domestic court’s own jurisdiction or to prevent evasion of its public policy.). Sixth and District of Columbia Circuits. 1970).).C.C. infra. had it applied the forum’s principles of forum non conveniens. v. see Amchem Products Inc. Armco [2002] 1 Lloyd’s Rep. however.R. v. 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. see CSR Ltd. 414 See.411 XVII. for example. 119 at p. rev’d on other grounds. Lee Kui Jak [1987] A.L. for example. Patel [1999] 1 A. Australia Ltd. Sabena Belgian World airlines 731 F. 412 411 .C. [1998] 1 Lloyd’s Rep. SNI Aérospatiale v. v.V.L. 425 (H. v. oppressive or will otherwise cause inequitable hardship.S.R. aff’d 161 F. where the foreign proceedings are viewed by the domestic court as vexatious or oppressive or unconscionable. See other examples cited in Tetley. GmbH 428 F. 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. for example. Airbus Industrie v.412 The forum court will only grant an anti-suit injunction where it is convinced that it is an appropriate forum for the litigation. 107 (H. 419 Turner v.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. 416 [2002] 1 W. reported in [2004] 1 Lloyd’s Rep. The ECJ endorsed the opinion expressed by Advocate General Ruiz-Jarabo Colomer in Turner v. 2002 for all Continental Bank NA v. 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. at para." 421 Ibid. 2004.) (exclusive jurisdiction clause in loan agreement). however. 1968. 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.A. restraining a party from commencing or continuing proceedings before a foreign court undermines the latter court's jurisdiction to determine the dispute.L. Any injunction prohibiting a claimant from bringing such an action must be seen as constituting interference with the jurisdiction of the foreign court which. 2000.A. Grovit (Case No. 216 (E. is incompatible with the system of the Convention. See paras.R. 380 and The Bergen (No.J. Grovit. including bills of lading. at para. Nor could the issuance of such restrainging orders be justified on grounds of national procedural rules or to minimize the risk of conflicting decisions and to avoid a multiplicity of proceedings.) (bill of lading arbitration clause). 29 and 30 of the ECJ decision.416 has held.422 which replaced the Brussels Convention as of March 1. C-159/02). 509 (C.C. and which came into force 415 . Grovit. in Turner v.L. underpins the Convention and prohibits a court.A. adopted by the Council of the European Union on December 22.). on a preliminary reference from the House of Lords in Turner v." 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. backed by a penalty. 2) [1997] 2 Lloyd’s Rep. 710 (bill of lading jurisdiction clause). 417 Convention on Jurisdiction and the Recognition of Judgments in Civil and Commercial Matters.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. September 27. 505 (C. as pointed out in paragraphs 24 to 26 of this judgment. April 27. 2004 at paras. See also the case comment by D. 24 and 25.420 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. April 27. Aeakos Compania Naviera SA [1994] 1 Lloyd’s Rep. Such an assessment runs counter to the principle of mutual trust which. 418 See the judgment of the European Court of Justice.). The Bergen [1997] 1 Lloyd’s Rep. as such.68 breaching exclusive foreign jurisdiction or foreign arbitration clauses in contracts. 420 Ibid. 27.). Grovit (Case No. Rhidian Thomas. adopted at Brussels. from reviewing the jurisdiction of the court of another member State. except in special circumstances which are not applicable in this case. The Angelic Grace [1995] 1 Lloyd’s Rep. 87 (C. (2004) 10 JIML 134. C-159/02). 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. 422 EC Regulation 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. The Epsilon Rosa [2003] 2 Lloyd’s Rep. leave to appeal to House of Lords refused (charterparty arbitration clause).415 The Court of Justice of the European Communities. being the court “first seized” within the meaning of art. as a result of another development in European law. 423 See the case comment by Renaud Carrier. 27 over art.423 Moreover. unless and until the court first seized declines jurisdiction.U.C. where a jurisdiction clause is involved. (2004) 10 JIML 131. art. 2002. because the court first seized is obliged (by art. to prohibit the institution or prosecution of litigation in jurisdictions outside the E.E. in alleged violation of a clause conferring exclusive jurisdiction on a court in another such State. 17 of the Convention) to decline jurisdiction in the face of a valid clause attributing exclusive jurisdiction to the court second seized. 424 (Case C-116/02).425 While the issuance of anti-suit injunctions as between E. For the official French text of this decision. This is a positive development.J.g. v. 29. The decision constitutes the triumph of art. except Denmark. For the text. Gasser thus promises to also ensure the supremacy of art.g. anti-suit injunctions now seem to be unnecessary as between courts in Brussels Convention and EC Regulation 44/2001 States. and possibly also in cases within the in all Member States of the European Union. may not rule on its jurisdiction. Baatz points out that the Gasser decision puts an end to a longstanding controversy as to whether it is the court “first seized” under art. thus reversing the controversial English decision in Continental Bank NA v. where the initial proceedings in such a case are instituted before a court in a Brussels Convention State.). because the jurisdiction clause is not valid or is not exclusive). [2004] 1 Lloyd’s Rep. 222 (E. 505 (C. it is hoped to achieve two of the main goals of the Brussels Convention: to prevent parallel proceedings before courts in two different Contracting States and to avoid possible conflicts between the decisions that might result from such proceedings. see O. that decides on its jurisdiction in the light of the clause. which is entitled to rule first on whether or not it has jurisdiction to try a dispute. such injunctions arguably continue to be available in cases where neither the Brussels Convention and E. under the Brussels Convention 1968.U. 17. See also the critical commentary of the Gasser decision by D. L 12/1 to L 12/23. The Gasser decision will likely also apply to the determination of jurisdiction under EC Regulation 44/2001.69 E. "Anti-Suit Injunction: La CJCE met fin à un anachronisme" DMF 2004. on March 1. 403. Regulation 44/2001 applies (e. that is entitled to decide whether it has jurisdiction in the light of the clause.424 the Court of Justice of the European Communities held that. “Who Decides on Jurisdiction Clauses?” in [2004] LMCLQ 25 at p. In this way. see DMF 2004. 425 See Y.C. it is the court first seized of the dispute.) and subsequent decisions such as OT Africa Line Ltd. Member States therefore seems to be a thing of the past.). Denmark continues to be governed by the Brussels Convention 1968. On the other hand. 21 over art. In consequence. 21 of the Brussels Convention 1968 or the court designated by the jurisdiction clause under art. 76. MISAT SrL.U. Member States except Denmark. 21 and 17 respectively of the Brussels Convention 1968. the court second seized must decline its jurisdiction. being the court “second seized”. 413. if the court first seized establishes its jurisdiction to try the dispute (e. 17 of the Convention. even if proceedings there are protracted. .A. corresponding to arts. 21 of the Brussels Convention 1968. but must stay the proceedings before it of its own motion. consistent with the historic principle of comity in private international law and the increased judicial integration of Europe since 1968. 21 of the Convention. Hijazy (The Kribi) [2001] 1 Lloyd’s Rep. 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. 27 of which is similar to art. Aeakos Compania Naviera SA [1994] 1 Lloyd’s Rep. in effect. Baatz. 21. Rhidian Thomas. The application of this rule will. within the meaning of art. it is the court where the proceedings were taken.C. render anti-suit injunctions unnecessary.J. In Gasser GmbH v. holding that the first seized rule of art. 330 U. para. 206 at p.U. corresponding to art. 215. on the ground that it violates public policy. 3 Ed. 27(1) of the Brussels Convention 1968. The decision invoked a similar decision rendered under art.C. 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. 1985.11 at p. 27(1) or the Regulation’s art. art.. see the Civil Jurisdiction and Judgments Act 1982. Civil Jurisdiction and Judgments.C. v. 1958. third para. because the Regulation did not apply to arbitration. 427 See. 36(1)(b)(ii). In cases subject to the Convention or the Regulation. 27 of EC Regulation 44/2001 did not apply to an arbitration clause. the decision may be refused recognition and enforcement in the contractual forum. c.429 These basic conflict of law principles and rules constitute a strong support for jurisdiction and arbitration clauses in bills of lading. for example. Bamberger [1997] I. 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.Pr. in force June 7. Clunet 1964. Regulation 44/2001. 2002.K. 3 Ed.) and The Hari Bhum [2004] 1 Lloyd’s Rep. 32(1) in cases not subject to either the Brussels Convention 1968 or the E. For the U. Civil Jurisdiction and Judgment.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. for example. 2002. 36(1)(a)(iv) and art. V(1)(d) (composition of the arbitral tribunal or arbitral procedure not in accordance with agreement of parties) and art.U. June 10. for example. See also Phillip Alexander Securities and Futures Ltd.427 Even if no anti-suit injunction has been issued.426 XVIII. 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.A. as in other contracts. See. State contrary to an anti-suit injunction issued in England in support of an English arbitration clause.70 E. lack of jurisdiction may not be invoked to refuse recognition to a judgment rendered in another Member State (Brussels Convention. 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.L. para. 1982. 21 of the Brussels Convention 1968. by virtue of its art. arbitration being excluded from both the scope of both the Brussels Convention and the EC Regulation. 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.S. 73 at p.N. 212. 428 See. V(2) (recognition or enforcement not in accordance with public policy of country where recognition and enforcement are sought). 426 . 3. See also the corresponding provisions of the UNCITRAL Model Law on International Commercial Arbitration. 35(3)). 429 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention 1958”). at art.. See also EC Regulation 44/2001. 1959. and also disregards an anti-suit injunction prohibiting him from commencing or continuing such proceedings.. 7. art. adopted at New York. 115 (C. and E.. and a powerful defence against attempts to circumvent them. See Briggs & Rees. involving arbitration clauses. 1(2)(d).302. art. in particular art. 27. See also Briggs and Rees. and actually obtains a judgment or award from the foreign authority. Regulation. 5. adopted at Geneva. 206 at p. art. 3155(1) (lack of jurisdiction) and (5) (manifest inconsistency with public order as understood in international relations).K. so that it was not necessary to stay proceedings until the Finnish Court had ruled on its jurisdiction in the light of the clause. 391-392. being The Ivan Zagubanski [2002] 1 Lloyd’s Rep. 106. 34(1). For France. U. 34(1). sect.49 at pp. 27(1). the Québec Civil Code 1994. June 21. the Brussels Convention 1968 at art. 28.T. note Goldman. 439. The Hari Bhum [2004] 1 Lloyd’s Rep. 432 See D. and 6) the propriety of granting or refusing a stay of proceedings.L. 25 (H. comparing the two positions and arguing that contractual damages for such breaches are problematic because of basic differences between arbitration and jurisdiction clauses. 1524 and 1527 (C. 431 See Donohue v. 430 . Briggs & P.432 XX. but nevertheless suggesting that an alternative basis for such damage awards may be found in English tort law (e. if any. Union Discount Co. provide the cargo claimant with options of places in which to sue or arbitrate. The Hamburg Rules and the Multimodal Convention. according to a specified national law or international carriage by sea convention. 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. When such contestation arises.L. Mantovani v.A. Doleman & Sons v. on the other hand. In addition. Ho. however. for example. Civil Jurisdiction and Judgments. It is therefore scarcely surprising that “choice of forum” clauses tend to be contested. Tan & N.A. Zoller [2002] 1 W.71 XIX. in the tort of malicious prosecution and/or the tort of unlawful interference with business or trade). of which he may avail himself notwithstanding See. Armco [2002] 1 Lloyd’s Rep.26 at pp. 3) the appropriateness of sending the case elsewhere for trial or arbitration. para.A. the forum court usually follows a six-step process.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. and A/S D/S Svendborg D/S of 1912 A/S Bodies Corporate trading in partnership as ‘Maersk Sealand’ v. Ltd. forum selection and arbitration agreements may now be further reinforced (in England at least) by the awarding of damages for their breach.). Ossett Corporation [1912] 3 K.B. the possibility of such damages also being awarded for breaches of exclusive English jurisdiction clauses has also been recognized by English courts.C. 257 (C. The forum selection clause is usually a “boilerplate” term of the bill. 4) the wording and effect of the clause in the bill or incorporated document (e. connection with the parties and their contract and is typically more convenient to the carrier than to cargo. who criticizes this development. Neither the Hague Rules nor the Hague/Visby Rules regulate jurisdiction or arbitration.). v. 2) any legislative constraints on that jurisdiction. This development appears somewhat controversial within the British academic circles. Rees.). supporting the availability of contractual damages as a sanction for the breach of an exclusive English jurisdiction clause. Yeo. the designated jurisdiction frequently has little.. unreported.430 More recently. 4. a charterparty).). 5) the in rem and/or in personam nature of the suit.R. Akar [2003] EWHC 797. See also A. 293-296.g. inquiring into: 1) its own jurisdiction. But see also L. It has been recognized for some time that contractual damages may be awarded for the violation of an agreement to arbitrate in England. Carapelli SpA [1980] 1 Lloyd’s Rep. See also Chee Ho Tham. “Breaking promises to litigate in a particular forum: are damages an appropriate remedy?” [2003] LMCLQ 435. London. 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. “Anti-suit injunctions in cross-border insolvency: A restatement” (2003) 52 ICLQ 697. seldom negotiated or expressly consented to by the shipper or the consignee. 375 (C. 3 Ed. 1517 at pp. “Damages for breach of English jurisdiction clauses: more than meets the eye” [2004] LMCLQ 46.g. 2002. to establish that the local forum court. is the clearly more appropriate venue for adjudicating the dispute. All relevant circumstances are considered. at the cargo claimant’s option. explains much of the unwillingness of major shipping nations to becoming party to the Hamburg regime. as well as convenience and expense for the parties and the juridical advantages and disadvantages of proceeding in one or other venue. although such laws typically treat arbitration clauses more liberally than jurisdiction clauses.A. or generally conforms to international usage in the trade concerned. however. the Nouveau code de procédure civile lays down strict criteria under which contractual forum selection provisions will be upheld.g. where such an option would be available if the Hamburg Rules applied to the contract of carriage. 434 [1969] 1 Lloyd's Rep. so as to send the case to its “natural forum”. Because few major shipping nations are party to the Hamburg or the Multimodal conventions. however. National law is. despite a foreign forum selection or foreign arbitration clause. where the relevant clause is written or evidenced in writing. In the presence of a jurisdiction or arbitration clause.435 require the plaintiff to show “strong cause” why he should be permitted to proceed elsewhere than where the contract stipulates. as a condition of release from his jurisdictional “bargain”. all permit choice of forum by contract. 435 [1981] 2 Lloyd's Rep. the forum non conveniens analysis has been articulated differently and it also requires the plaintiff. has permitted Canadian suit or arbitration. Where no statute prohibits or restricts jurisdiction clauses. 123-124 (C. connections with the competing jurisdictions and the law applicable to the dispute. or reflects established practices between the parties. 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. following the principles laid down in The Eleftheria434 and The El Amria. requiring them to be between merchants. in international shipments to and/or from their ports. far from uniform in this important area. 433 . In Europe. rather than the contractually designated one. Courts in common law countries and some mixed jurisdictions are empowered to exercise discretion. in its Marine Liability Act. rather than the defendant. by comparison. the Lugano Convention 1988.72 any inconsistent forum selection or arbitration clause in the bill of lading. courts in such nations are thrown back on their national law in assessing the enforceability of the impugned clause. New Zealand and South Africa) prohibits parties from “ousting” the jurisdiction of the national courts by way of forum selection clauses. and genuinely agreed to by the shipper and consignee. however. Most standard forum selection provisions in bills of lading would be enforceable under those rules. Australia. 119 at pp. In French internal law.). Canada. on grounds of forum non conveniens. clear and apparent on the face of the bill of lading. in ordering stays of proceedings. 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. It is by no means easy. the Brussels Convention 1968. including the location of witnesses and evidence. National legislation in certain countries (e. unfortunately. and now EC Regulation 44/2001 on jurisdiction and the enforcement of judgments in civil and commercial matters. 237. used to enforce jurisdiction and arbitration clauses. and because they may be unnecessary in the light of recent interpretation of the provisions of those instruments. 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. obliging cargo claimants to meet the heavier onus of proving that enforcement of the clause would be unreasonable.ca website: http://tetley. fraudulent or repugnant to public policy – a daunting task. 528. .73 forum clause applicable to the claim.S. 1972 AMC 1407 (1972). 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. in a more uniform manner than at present.C. Anti-suit injunctions can be. the importance of the convenience of the litigants and the connections of the case have declined in significance. receivers and underwriters are to be well served in the years ahead.S. Faculty of Law McGill University Montreal. Prof.ca/ 436 437 407 U. Nor is it easy in the United States.mcgill. but within Europe it increasingly appears that their employment to enforce jurisdiction clauses is invalid. if shippers.tetley@mcgill. 1995 AMC 1817 (1995). and are. 1. 515 U. A fair and effective international cargo liability regime must strive to resolve this important problem.law. Q. carriers. Canada e-mail: william. Jurisdiction and arbitration of marine cargo claims thus remains a controversial issue and an ongoing challenge for maritime carriage of goods law everywhere. Quebec. because they have been found incompatible with the Brussels Convention 1968 (and presumably with EC Regulation 44/2001 as well). where since the Bremen436 and Sky Reefer437 were decided. William Tetley. In consequence.