THE OWNERS OF CARGO LATELY LADEN ON BOARD THE SHIP OR VESSEL "ADHIGUNA MERANTI" v. THE OWNERS OF THE SHIPS OR VESSELS "ADHIGUNA HARAPAN" AND OTHERS

HEADNOTE

Admiralty Jurisdiction - Application to Stay Proceeding in Hong Kong on ground Indonesia is natural and convenient forum - The proper approach to Evidence of Foreign Law canvassed - The Principle's governing the exercise of the Court's Discretion to Stay Outlined - Established law as to Governing Law of the Tort affirmed and submissions as to Proper Law of the Tort rejected - Juridical Disadvantages canvassed involving consideration of

Consideration as to whether juridical disadvantages can properly be set at nought by undertakings from Defendant.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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The Nature of the actions

1. These 3 actions arise out of the grounding of the vessel "ADHIGUNA MERANTI" on the 15th of November 1981 on Chi Lung Island just north of the breakwater of Keelung Harbour in the territorial waters of Taiwan. On 12th November 1982, the plaintiffs issued a writ in the Admiralty Jurisdiction, folio 319 of 1982, as owners of cargo lately laden on board the vessel "ADHIGUNA MERANTI" against the defendants as owners of the vessels both "ADHIGUNA JAYA", "ADHIGUNA NUGRAHA" and "BAGAK".

2. The statement of claim alleged that the owners of the aforesaid vessels were at all material times the owners of the "ADHIGUNA MERANTI". The claim was for:

The endorsement on the writ gave addresses for 77 plaintiffs 39 of  which were in Taiwan and 38 in Indonesia. A second writ arising out of the gounding was issued in the Admiralty Jurisdiction, (Folio 321 of 1982) on the 13th November 1982. The parties on the face of that writ were described in exactly the same terms as the parties had been in the first writ and the statement of claim was in the same terms as the statement in the first writ. Addresses for 4 plaintiffs were endorsed on the second writ. One of the addresses was in Taiwan, one in Indonesia and two in Singapore. A third writ arising out of the grounding was issued on 1st June 1983. This writ was in identical terms, as regards the deseription of the plaintiffs and defendants on its face and as regards the statement of claim, to those in the first two writs. Addresses for two plaintiffs were endorsed on the writ. One of these was in Taiwan and one was in Indonesia.

3. In June of 1983 the "ADHIGUNA NUGRAHA", which was one of the vessels mentioned in each of the three writs and was alleged to be a sister ship of the "ADHIGUNA MERANTI", was arrested in Hong Kong. It was, thereafter, released upon security being provided for the claims in all the three actions, without prejudice to any application the defendants might make for a stay of proceedings.

4. On the 4th August 1983 a notice of motion was issued in each of the three actions asking that the proceedings in each action be stayed on the ground that the court of Jakarta, Indonesia was the most natural and convenient forum for the resolution of the disputes between the parties in all the circumstances. These three notices of motion are presently before the Court.

The Facts Upon which the Parties Rely

5. It is common ground that all Bills of Lading issued in relation to the cargo were on Hawkins Maritime S.A. forms and were expressed to be signed for the master and that clause 24 of each provides:

"The Bill of Lading and contracts evidenced by this Bill of Lading shall be construed and governed by Japanese law."

6. The first affidavit, of Mr. Peter Rees Smith, was filed by the defendants on 3rd August 1983. He stated that, despite salvage attempts, the vessel "ADHIGUNA MERANTI" was declared a constructive total loss and abandoned. Mr. Rees Smith said that he anticipated that the defendants would be faced with "allegations of failure to exercise due diligence prior to the commencement of the voyage and negligent navigation".  evidence in connection with such allegations would have to come from the master and crew of the vessel, the defendants' technical staff and possibly persons involved with the vessel at the loading port. He stated that the master and the crew were Indonesian, that the owners were Indonesian and that all relevant documentary evidence was held by the defendants at their office in Jakarta.  He submitted further that it was "highly probable that this cargo had been sold on C.I.F. term and, as a result, it is probably the case that title to sue in connection therewith passed to the Indonesian receivers on negotiation of the bills of lading notwithstanding the casualty. Accordingly, in my respectful submission, it is probable that the receivers and not the shippers are the proper plaintiffs in these actions and, of course, the receivers are all resident in Indonesia".

7. It must, however, be said in this regard that there is no evidence that the goods had been sold on C.I.F. terms and that it was not conceded by Mr. Ribeiro, who appeared for the plaintiffs, either that the receivers were the proper plaintiffs or that the proper plaintiffs were all resident in Indonesia.

8. Mr. Rees Smith went on to say that, as the documentary evidence was in Indonesia, as the witnesses would be either Taiwanese or Indonesian, and as the expense and inconvenience of bringing them to Hong Kong and of translating the documents that were in Indonesian would be considerable, the Courts of Indonesia provided the most natural and convenient forum.

9. The plaintiffs filed an affidavit by Mr. Timbul Thomas Lubis on 30th November 1983. Mr. Lubis dealt with the law and procedure which would be applied in the present actions in an Indonesian Court. He stated that the Commercial Code, which would apply to the present litigation, was a refinement of the Civil Code and that it included specific provisions dealing with maritime matters. He said that the whole of the Commercial Code was mandatory and that the Civil Code was mandatory except for the section relating to contracts. He indicated difficulties that have arisen from the application of the Civil and the Commercial Codes because no official translations have ever been made of the codes from Dutch into Indonesian. He also stated that there had been little judicial refinement of the provisions of the code as there had been only a limited number of commercial and maritime cases. Mr Lubis suggested that the Indonesian courts might find difficulty in dealing with "the issues of law involved" because of the "very limited experience" of the judges. I will not refer again to such suggestions as I am satisfied that it would be quite wrong to give any weight to suggestions that the Indonesian courts are not competent to deal with this litigation. I am satisfied also, bearing in mind the later evidence of Mr. Nugroho that competent translators are available, that no weight should be given to the suggestion from Mr. Lubis that it might be difficult to obtain accurate translation. Mr. Lubis also appeared to be suggesting that any damages recovered under the Codes might be insignificant because "references to guilders (the old Dutch East Indies currency) have routinely simply been treated as references to the same number of Rupiahs (despite a substantial difference in exchange value between the 2 currencies)". He pointed out that, if 50 guilders had attributed to it the value of 50 rupiah, it would be worth only U.S. 5 cents.

10. Mr. Lubis said that he had been referred to clause 24 of the Bills of Lading which provided that "the Bill of Lading and contracts evidenced by the Bill of Lading shall be construed and governed by Japanese law". He said that this clause would be recognised in the Indonesian Courts.  Mr. Lubis discussed various Articles in the Commercial Code and, in particular, referred to Article 474 which sets out a tonnage liability limit. Mr. Lubis also stated that legal costs apart from court fees are not normally allowed by an Indonesian Court, that there is no court procedure for the taxing of costs and that, even if legal costs were allowed, they would form part of the order for damages and would be subject to the overall limitation of liability under Article 474.

11. He stated that interest accrued only from the date of the action but that it was in the discretion of "the individual judge and can exceptionally be awarded from the day when the cause of action arose." He said that in the absence of agreement the rate was fixed at 6%.

12. He finally referred to Article 741 of the Commercial Code which Provides that actions in respect of claims against the carrier in respect of the carriage of travellers and of goods shall be subjected to a limitation period of one  year. He said that the Indonesian Court "may not and is not obligated to give effect to an agreement between the parties to extend the time limit or to a waver by one party of the time limit". He referred to one case governed by the Civil Code where the Court had itself raised the question of time-bar and had held that the claim was time barred "even where the defendants had not specifically pleaded a time-bar in their defence".

13. On 1st December 1983 the plaintiffs filed an affidavit by Julian Michael Gray. Mr. Gray said that, in view of the master's statement that he had to take action to avoid a collision immediately before the grounding, it would be necessary to have evidence from various persons involved in the matter in Keelung, such as the harbour master, and that it may also be necessary to call evidence from the crew of the other vessel.

14. Mr. Gray stated that the master appeared to speak English because he kept his log in English and that he would therefore be able to give evidence in English and that much of the documentary evidence appeared to be in English.  He suggested that any documentary evidence that was in Indonesian could be translated for use in the Hong Kong Court.

15. He confirmed that the receivers of the cargo on board the vessel were Indonesian but said that issues of title may arise that would require enquiries in and, possibly, evidence from Taiwan. He referred to the Bills of Lading which were in English and said that these would have to be translated into Indonesian if the matter was heard in Jakarta. He referred to some evidence which would be more readily available in Hong Kong than in Indonesia particularly that of Captain Weeks of the Salvage Association who attended at the scene of the casualty. He finally submitted that the plaintiffs would suffer severe juridical disadvantage if the matters were heard in Indonesia primarily because of the small limitation fund available in Indonesia and because of the existence of a time bar not applicable in Hong Kong.

16. On 3rd August 1983 the defendants filed an affidavit by Mr. Yutaka Tsurusaki dealing with questions of Japanese law. It is not necessary for me to canvass that affidavit in detail.

17. The next affidavit, of Mr. Nugroho, an Indonesian lawyer, was filed by the defendants on the 30th January 1984. Mr. Nugroho said that the Indonesian Courts had jurisdiction in the matter as the defendants were an Indonesian corporation and as there was no jurisdiction clause in the Bill of Lading providing otherwise. There did not seem to me to be any real issue in this regard. He stated that the Indonesian Courts would in principle apply Japanese law because of the Japanese law clause in the Bills of Lading. Mr. Nugroho did not agree with Mr. Lubis' statement that the Commercial and Civil Codes of Indonesia are, with only one exception, mandatory. He said that whether or not a provision in either code is mandatory depends upon the interpretation of that provision. He agreed that there was no official translation of the Dutch code but said that, in practice, certain specific translations were relied upon and that "in my experience no practical difficulties are encountered in Maritime Law due to the existence of varied translations". Mr. Lubis had stated in his affidavit that guilders were "routinely" translated into the same number of rupiahs ignoring the substantial difference in exchange value between the two currencies. Mr. Nugroho said:

"I believe it is not correct that this means that Indonesian courts will apply such conversion rates. I have made enquires on this matter with the Directorate General of Sea Communications of the Department of Communications, and I have been advised by sources thereat that the Indonesian courts would, in application of Articles 470 and 474, not use the Rupiah figures mentioned in the affidavit (of Mr. Lubis), but would use amounts which are determined by the Indonesian courts on a case by case basis."

This evidence is far from satisfactory both because if leaves unexplained the part, if any, which the Directorate General is allowed to play in the judicial process and because it fails to address itself to the simple statement of fact made by Mr. Lubis that in the courts of Indonesia references to guilders "have routinely simply been treated as reference to" rupiahs.

18. Mr. Nugroho went on to say that, in Indonesian Courts, parties may only recover court fees unless they have otherwise agreed in writing and that, as a general rule, interest accrues only from the date when the action is commenced but that Indonesian Courts do have a discretion to award interest from the date when the cause of action arose. He said that, unless the parties have contractually agreed, the rate of interest applies is 6%.

19. He agreed with Mr. Lubis that the limitation period of one year applied under Article 741 of the commercial code. He did not agree, however, that this was a mandatory provision and said that Indonesian Courts would in his opinion uphold an agreement by the parties that the time-bar should not apply. He said that he had made enquiries at the Supreme Court of the Republic of Indonesia and had been advised that his opinion was correct and he cited two Dutch cases, which he said have persuasive authority in Indonesia, which confirmed that time-bars in the Commercial Code could be deviated from by contractual arrangements.

20. Finally Mr. Nugroho said that although he was "not entirely certain" how the Indonesian courts would deal with the question of the translation of guilders into rupiahs, he believed "that the courts would address the issue on a case by case basis possibly after having obtained expert advice from officials attached to the Directorate General of Sea Communications".

21. There was a further affidavit from Mr. Peter Rees Smith filed on 10th February 1985 by the defendants in which he said that neither the plaintiffs nor their solicitors had informed the defendants or his firm of the basis on which the plaintiff's claim is made or why the plaintiffs considered that the defendants are liable therefor. In this affidavit Mr. Rees Smith said that the defendants were not going to contend that the grounding was caused or contributed to by the need to take action to avoid a collision and that it would not, therefore, be necessary to adduce evidence on this issue from Taiwan or elsewhere. He stated that neither the Taiwanese navy nor the Keelung Harbour Authorities would allow their personnel to give evidence in legal proceedings outside Taiwan. He stated that he had been informed that the master's knowledge and understanding of English was poor and that the logs kept by the master's chief engineer and radio operator on the "ADHIGUNA MERANTI" were written in a combination of English and Indonesian. He stated that he believed the evidence to be given at the trial would be largely as to matters of fact which would have to be given in Indonesian and that the vessel's files covering the last 3 years of its existence contained a substantial volume of documents more than 75% of which was in Indonesian. He stated that the master and the chief officer lived in Jakarta and that they and all of the other crew members could more conveniently give their evidence in Indonesian in Jakarta. Mr. Rees Smith again stated that it was highly probable that the proper plaintiffs in the actions were the Indonesian receivers of the cargo and not the Taiwanese shippers. He suggested that the evidence of Captain Weeks who attended the scene of the casualty after its occurrence would not he material in the trial.

22. He submitted that "the defendants and (almost certainly) the proper plaintiffs are Indonesian, the vast majority (if not all) of the material evidence is in Jakarta, Indonesia, and much of it is written in the Indonesian languages. In all of the circumstances a trial in Jakarta, Indonesia, would be substantially more convenient and less expensive for both the  plaintiffs and the defendants."

23. In an endeavour to counter any suggestion that the plaintiffs would be prejudiced by the existence of a time bar in Indonesia he said that the defendants were "prepared to reach agreement with the plaintiffs whereby if the proceedings herein are stayed they will not seek to rely on any time bar defence in proceedings commenced before the Indonesian Courts in respect of the plaintiffs' claims herein as long as such proceedings are commenced within a reasonable time of the decision of this Honourable Court on the defendants' application for a stay of these three actions''.

24. On the 26th September 1984, the plaintiffs filed a notice pursuant to Order 38, rule 7 of the Rules of the Supreme Court stating that the plaintiffs desired "to adduce in evidence at the hearing of the defendants' motion to stay proceedings herein, the findings of the Court of Appeal of this Honourable Court in Action No. 1938 No. 70 (Civil Codes) (Fukuyo Industries Corporation and Others v. The Owners of the ship or vessel "GRIESHEIM" and Others), as to Japanese law and in particular the findings on the effect of Article 704 of the Japanese Commercial Code and whether or not there can be more than one contractual shipper under a bill of lading subject to Japanese law".

25. On the 27th September the plaintiffs filed an affidavit by Mr. Julian Michael Gray in which he stated that "THE GRIESHEIM judgment and the findings as to Japanese law therein are particularly relevant to this case in which the bills of lading are also expressed to be subject to Japanese law. In my respectful submission, the extent to which the material issues on Japanese law were argued, and the evidence adduced, before the Court of Appeal make it doubly relevant that it should be before this Honourable Court on the hearing of the defendant's motion to stay proceedings." The importance of the Griesheim decision to the present proceedings is that it would, if applied thereto, prevent the defendants in an action against them in tort from relying to their advantage upon the provisions of the Bills of Lading.

26. On 1st May 1985, an affidavit was filed by the plaintiffs from a Mr. C.C. Wen, an attorney practising in Taiwan, in which he stated that the casualty had taken place within Taiwan territorial waters. He set out how ship's limit would be calculated under the law of the Republic of China, the amount per limitation ton and how each limitation ton is calculated.

27. He advised that the cause of action in tort is known to the Republic of China Courts and is actionable. He stated finally that under "our Merchant Shipping Act the liability of a carrier for damage to cargo carried is limited to NT$9,000 per unit or package where the characteristic and/or value of the cargo ship is not stated in the bill of lading."

28. On the 10th April 1984, the plaintiffs filed a further affidavit from Mr. Lubis in which he stated that there is neither at the moment, nor has there been, any decided case before the Indonesian Courts where the same matters of Japanese law have been considered" as were dealt with in The GRIESHEIM. He said that if the matter "were to proceed in Indonesia, then of course the Indonesian Court would come to the matter anew and would have to go ever exactly the same areas of law and fact which had already been canvassed at great length and great expense in Hong Kong". He stated that in an action in tort in the Indonesian Court "pre-independence jurisprudence would lead to a conclusion that the Republic of China's law as the law of the tort, (lex loci delecti commissi) would be applied. This view is supported by authoritative Indonesian Scholars." He went on to state that "the Indonesian Court should apply Taiwanese law with respect to limitation of liability, if any, as being governed by the law of the tort".

29. On the 11th November, the plaintiffs filed an affidavit from Mr. Sumowidjojo, an Indonesian lawyer, in which he referred to the approach of the Indonesian courts to the conversion from guilders to rupiahs. He said that in an action commenced in 1963 against Garuda airline in which the plaintiff sought damages Garuda had suggested that the Dutch guilder figure should be converted into Rupiah at the conversion rate of 1 to 1. The High Court, on appeal in 1967, "dealing with the limitation figure in Rupiah and the conversion from Dutch Florins (guilders), referred to evidence from the Indonesian State Bank as to the value of the respective currencies and how those values have changed since the 1939 Ordinance and awarded Rupiah 495,560 to the widow. The conversion rate used can be calculated at Rupiah 38.12 to 1 Dutch Florin". On 6th July 1968, the Supreme Court upheld the High Court's judgment.

30. On 13th November 1985, the defendants filed a further affidavit from Mr. Sumowidjojo who stated that it was his view that Indonesian Courts would apply Indonesian law in an action in tort. He stated that the traditional conflict of laws rule in Indonesia was that the Court had a choice between either "the law of the country in whose water the incident took place" or "the law of the country whose flag flew on the vessel". He submitted that the Indonesian Courts would inquire into the facts surrounding the alleged negligence and would opt for the law which had the greater connection with the facts, subject matter and the parties. He confirmed that "limitation of liability is a matter of substantive law in Indonesia". Mr. Sumowidjojo gave no authorities of any sort for the opinions he expressed in this affidavit.

The Proper approach to the Evidence of foreign Law

31. When dealing with the evidence of foreign law experts, I intend to follow the guidelines laid down in the GRIESHEIM which are set out, at page 6 of my judgment, as follows :-

32. It must further be recognised -

The Principles Governing the Exercise of the Court's Discretion

33. I turn now to consider the principles which govern the exercise of the court's discretion in an application for a stay of proceedings. In The Palawan (1982) H.K.L.R. 513 at 516 I stated "that the rule to be now applied can be properly stated as follows :-

34. The burden of proving the positive condition is clearly on the defendant and if he fails in this then a stay must be refused. If he satisfies this burden then, I am satisfied, that the plaintiff cannot avoid the granting of a stay unless he places before the Court evidence sufficient to raise the issue of deprivation of a legitimate advantage. If the plaintiff fails so to do then the defendant must succeed and the stay be granted. Once the plaintiff produces such evidence, then the onus is upon the defendant to leave the Court satisfied that to refuse to let the trial go on would not deprive the plaintiff of a legitimate advantage. In the outcome, then the onus is upon the defendant to satisfy the Court as to both the positive and negative conditions."

35. Mr Sussex submitted that the rule as stated in The Palawan has now been considerably "watered down". He submitted that (1) of the rule no longer has any real application and that the law is now properly stated in (2) as long as it is understood that there is no onus as regards (2)(h) upon the defendant. He submitted that it is for the plaintiff to produce acceptable evidence to establish that the stay will not deprive him of a legitimate personal or juridical advantage and that it is for the court to consider, in the light of all the evidence before it, where the balance properly falls.

36. He referred in support of these submissions to The Abidin Daver (1984) A.C. 398. He relied, inter alia, when submitting that (1) of the rule no longer had any real application upon the words of Lord Brandon, at 423, where he said -

"With great respect to the members of the Court of appeal in the present case, I think that they have fallen into error by giving insufficient weight to the epithet "mere" in the expressions "mere balance of convenience" and "mere disadvantage of multiplicity of suits," as these expressions, or other expressions similar to them, are used in the authorities. Mere balance of convenience cannot, of itself, be decisive in tilting the scales; but strong, and a fortiori overwhelming, balance of convenience may easily, and in most cases probably will, be so. Similarly, the mere disadvantage of multiplicity of suits cannot of itself be decisive in tilting the scales; but multiplicity of suits involving serious consequences with regard to expense or other matters, may well do so. "

Statements such as this do not, in my view, cast any doubt upon the validity of the first part of the rule. Lord Brandon is, in my view, saying here that balance of convenience and the disadvantage of multiplicity of suits can, in certain circumstances, weigh heavily when the Court comes finally to consider whether it should exercise its discretion. It may well be that the test which I propounded in THE PALAWAN should have added to it the additional consideration that the Court must, when it comes finally to decide whether or not to exercise its discretion, weigh all of the matters placed before it including the matters considered in (1) and (2)(a) of the rule. It would be open for the Court then to consider whether the balance of convenience or the disadvantage of multiplicity of suits was of such importance that it outweighed some legitimate personal or juridical advantage established under (2)(b). This is not, of course, to say that (1) of the rule no longer has any application but rather that balance of convenience is to be accorded the weight it deserves when the final balance is struck. That this is the correct view seems to me to be supported by the words of Lord Brandon, at 419, where he said:-

"Thirdly, and this concept emerges most clearly from the speech of Lord Wilberforce in The Atlantic Star [1974] A.C. 436, the exercise of the court's discretion in any particular case necessarily involves the balancing of all the relevant factors on either side, those favouring the grant of a stay on the one hand, and those militating against it on the other. Such balancing may be a difficult process and some cases may be very near the line."

37. This clearly indicates that all of the factors both for and against, should be thrown into the final balance.

38. Mr. Sussex relied upon The Abidin Daver when arguing that the onus at the end of the day does not lie upon the defendant. In this regard Mr. Sussex referred to the words of Lord Diplock, at 411 , where he said :-

"Unlike the rule as it was stated by Lord Reid to have been applied before The Atlantic Star [1974] A.C. 436, a mere belief, however genuinely held, by a would-be plaintiff or his legal adviser that it would be to his advantage to pursue an action in the English court rather than to participate in proceedings in what would appear to be the more natural and appropriate forum is insufficient to justify refusal of a stay, unless the belief is supported by objective evidence."

This passage does not, in my view, deal with onus at all. It simply says that it lies upon a plaintiff who is urging that he will be deprived of a legitimate personal or juridical advantage to produce objective evidence to the Court in that regard.

39. What must not be forgotten when the The Abidin Daver is being cited is that it was dealing with a situation where proceedings had already been commenced in an appropriate foreign jurisdiction. Lord Diplock states the position, at 411, as follows -

It seems to me to be beyond argument that where action has already been commenced in a natural and appropriate forum the plaintiff should not be entitled to ask the Court to act upon a suggestion unsupported by objective evidence that he might not receive justice in that forum. If he fails to present objective evidence in this regard then he must fail upon that issue. If he does so, then it will be for the Court, at the end of the day, weighing all of the evidence before it, to determine where the balance falls. The question of onus will, of course, be of importance if the balance is evenly struck or if a defendant has failed to produce evidence on the issues of personal or juridical disadvantage once they are properly raised by objective evidence. In such circumstances it seems to me proper that the application of the person who is asking the Court to exercise its discretion, i.e. the defendant, should fail.

40. Mr. Sussex also relied upon a passage from Lord Diplock, at 411, which reads as follows :-

"My Lords, 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 result of the successive decisions of this House in The Atlantic Star [1974] A.C. 436; MacShannon [1978] A.C. 795 and Amin Rasheed [1984] A.C. 50, is that judicial chauvinism has been replaced by judicial comity to an extent which I think the time is now rip to acknowledge frankly is, in the field of law with which this appeal is concerned, indistinguishable from the Scottish legal doctrine of forum non conveniens.

Mr. Sussex suggested that this passage supported the "watered down'' approach to the rule for which he was contending. I do not consider this to be so at all. What Lord Diplord was saying was that "in the field of law with which this appeal is concerned" (i.e. where there is, in Lord Diplock's own words which appear earlier on p. 411, "a ls alibi pendens in a foreign jurisdiction which constitutes a natural and appropriate forum for the resolution of the dispute") the approach of English law was indistinguishable from the Scottish doctrine of forum non conveniens.

41. I am reinforced in my view that the onus remains upon the defendant at all times by the statement of Robert Goff, J. in Trendex Trading Corporation v. Credit Suisse [1980] 3 All E.R. 721 at 734 where he restated the principles set out in MacShannon as follows :-

42. Bingham, J. in The Iran Vojdan [1984] 2 Lloyds Reports 380 at 386, after referring to the above distillation of the principles, said :-

"It is clear that the burden of proof in this situation rests on the defendant to show that there should in justice be a stay, the burden being on him initially to show that there is another clearly more appropriate forum than that in which the proceedings have been brought. The existence of such a more appropriate forum must be clear since the authorities are emphatic that the Court will not, even today, lightly stay an action properly brought against the defendant so within the jurisdiction. The burden is, as I say, on the defendants to prove the existence of that other more appropriate forum."

The situation which faced the learned judge in that case was one where there was no exclusive jurisdiction clause and he clearly and correctly, in my respectful view, held that the burden overall rested upon the defendant.

The Governing Law of the Tort

43. Before applying the principles which govern the exercise of the Court's discretion I turn to consider the governing law of the tort. This is of particular importance in the present action as it appears that, whether the matter be tried in Hong Kong or in Indonesia, the plaintiffs will be pursuing a claim in tort. Mr. Sussex submitted that Indonesian Law would be the governing law of the Tort because it was the only law that had any real connection with the occurrence. He argued that, because of this real connection, Indonesian Law would oust Taiwan Law which was, of course, the lex loci delicti. He submitted that Taiwan's connection with the occurrence, resting solely upon the fact that it occurred as the vessel was leaving Taiwan waters, was tenuous in the extreme. He contended that in such circumstances, the littoral state could not be said to have any real connection with the occurrence.

44. He relied in this regard, upon the opinion of Mr. Sumowidjojo that Indonesian courts would apply Indonesian law. This opinion was, in my view, of little weight as it was unsupported by authority of any kind. Mr. Lubis on the other hand said that "pre-independence jurisprudence would lead to a conclusion that the Republic of China's law, as the law of the tort (lex loci delicti commissi) would be applied. This view is supported by authoritative Indonesian scholars (Prof. Dr. Wirjona Prodjodikoro S.H., Prof. Dr. Sudargo Gautama S.H.). If the court were to follow the view of the majority of scholars then it would apply Taiwanese law. Leading or from this where there is no contractual relationship, the Indonesian court should apply Taiwanese law with respect to limitation of liability, if any, as being governed by the law of the tort". I have no hesitation in accepting the opinion of Mr. Lubis, supported as it is by scholarly writings, and in rejecting that of Mr. Sumowidjojo.

45. The view of the Indonesian scholars appears to be the same as that which Mr. Sussex, when dealing with English law in this regard, referred to as the "old" approach. This approach is set out in Alexander MacKennan v. The Iberia Shipping Company [1955] SC 20. In that case the court held, following principles of established law, that "although the events in question were entirely internal to the ship, the ship's presence within foreign territorial waters involved that the locus delicti was the foreign country." Mr. Sussex argued that this was no longer the proper approach submitting that today a court should address itself to the task of ascertaining the proper law of the tort and should, when so doing, take into account all of the circumstances of the occurrence and, in particular, whether anything more than geography connected the vessel to the littoral state in whose territorial waters it found itself at the time of the occurrence. He relied heavily upon Sayers v. The International Drilling company [1971] 1 WLR 1176 and Chaplin v. Boys [1971] AC 356 and suggested that support could also be found for his views in Dicey & Morris "The Conflict of Laws" Vol. 2, at 936, and in Cheshire and North's "Private international" Law 10th Ed at 277. It is true that some remarks of Denning, L.J. in Sayers' Case give support to the arguments of Mr. Sussex. I am however, satisfied that these remarks were obiter dicta as the case was concerned with the proper law of the contract not the governing law of the tort. Further these remarks find no support from either of the other judgments.

46. As to Boys v. Chaplin, I am satisfied that the majority of the Court, rejected the proper law of the tort approach. I an satisfied that the judgments are correctly summarized in Cheshire and North, at 266, as follows:-

"Despite such varied assessments of the affect of the decision, there would appear to be a majority of their Lordships opposed to the introduction into English law of the general concept of the proper law of the tort, on the ground, particularly, that it produces uncertainty.''

47. Having considered the above decisions and notwithstanding the opinions of the learned authors I am satisfied that, in the present case, the lex locus delicti, i.e. the law of Taiwan, is the governing law of the tort and that Indonesian law has no application. I am satisfied that both the courts of Hong Kong and those of Indonesia would find that the law of Taiwan is the governing law of the tort.

Proof of an alternative Forum at less Convenience and Expense

48. When dealing with (2)(a) of the Rule Mr. Sussex submitted that the Indonesian Court was a forum to whose jurisdiction the suit was amenable. There was no real issue in this regard. He submitted that justice could be done therein. There was nothing before me, to which I could properly give consideration, to suggest that  justice could not be done in the Courts of Indonesia. He contended that, as the defendants were Indonesian, as the probability was that the real plaintiffs were also Indonesian, as the witnesses who would be expected to be called would, for the most part, be Indonesians, and as the documents would, in large part, be in Indonesian, the matter could be heard with less inconvenience and expense in Indonesia. Mr. Ribeiro did not concede that the real plaintiffs were Indonesian. He said that this was a matter upon which was no concrete evidence before the Court. He conceded that some of the documents would be in Indonesian, but submitted that other important documents were in English.

49. Mr. Sussex also argued that the law to be applied by the Court would be Indonesian. I am, however, satisfied that whichever court hears the matter the law to be applied will be the law of Taiwan and that there is no advantage either way in this regard.

50. As there was no evidence before me as to the relative cost of proceedings in Indonesia as against the cost of proceedings in Hong Kong I am unable to make my finding in that regard.

51. The defendants have satisfied me, even though the law to be applied is not Indonesian, that justice could be done between the parties at substantially less inconvenience in Indonesia. This is so in the main because most of those who will have to give evidence reside in Indonesia and can mere conveniently give evidence in Jakarta and because there will be much less need for translation of evidence and of documents if the trial is in Indonesia. The question of convenience will probably not affect the plaintiffs themselves as it seems to me unlikely that, wherever the trial behold, they will play any real part in the hearing. If, of Course, the law to be applied were Indonesian the defendant's ease in this regard would be considerably stronger.

The Juridical Disadvantages alleged by the Plaintiff

52. I turn now to the juridical disadvantages which Mr. Ribeiro contended the plaintiffs would suffer if the Hong Kong proceedings were to be stayed in favour of proceedings in Jakarta. He submitted that there were four instances of disadvantage which would be suffered by the plaintiff -

(1)    The benefit to be derived from The GRIESHEIM decision

53. On the 24th August 1984 the Court of Appeal upheld my finding at  first instance that the owners of the GRIESHEIM were not parties to the bill of lading issued by the charterer because of Article 2(2) of the Japanese Carriage of Goods by Sea Act (COGSA). Indeed the Court of Appeal went further by holding, in the decision of Sir Alan Huggins which was the decision of the Court, that "a demise charterer does not have "the same rights and duties as the owner" but has all the rights and duties which the owner formerly had other than his reversionary rights; for most purposes he stands in the shoes of the owner for the duration of the charter party. There cannot be two persons with the same conflicting rights and duties. Hence it is really Article 704 (of the Japanese Commercial Code) which makes it impossible for there to be two carriers for the purposes of the COGSA". The Court held that, the bill of lading having been issued by a charterer, Japanese law had the effect of excluding the owners from being parties to that bill of lading not withstanding the fact that on its face it had been apparently signed on behalf of the owners. It is common ground that the bills of lading in the present case are, for all material purposes, the same as those which were being dealt with by the Court in The GRIESHEIM. Where there is such a bill lading, cargo plaintiffs, relying upon the decision in The GRIESHEIM, have a very distinct advantage in action in tort against owners. As long as the plaintiff has a cause of action which is independent of the bill of lading, as he does when he is entitled to frame his action in tort for negligence, owners cannot rely on any of the provisions of the bill of lading by way of defence since they are not a party thereto. The hearing at first instance in The GRIESHEIM, took 11 days and the hearing before the Court of Appeal took a further 5 days. The plaintiffs in the present proceedings, relying upon s. 59 of the Evidence Ordinance, have served a notice of intention to adduce in evidence a finding on a question of foreign law under Order 38 Rule 7 of the Rules of the Supreme Court. This being so, Mr. Ribeiro contends that the plaintiffs have the benefit of The GRIESHEIM decision and that, in accordance with Section 59(2)(b) of the Evidence Ordinance, the law of Japan with respect to the matters decided in The GRIESHEIM shall be taken to be in accordance with the findings therein unless the contrary is proved. He submits that unless the defendants are able to prove the contrary they will not be able to rely upon the defences which are open to a party to the bill of lading. He submits that as there is in Indonesia no equivalent decision to The GRIESHEIM (Mr. Lubis stated this in paragraphs 6 and 7 of his second affidavit) the effect of staying the Hong Kong  proceedings would be that the plaintiffs would have to prove afresh the position in Japanese law before the Indonesian court.

54. Mr. Sussex submitted that Section 59 did not give any real  juridical advantage to the plaintiff. He submitted firstly that the suggestion by the plaintiff that he had an advantage was based upon a supposition that the defendant would be taking the point despite the weight of authority to the contrary.He went on to submit that if the defendant took the point and sought to rely upon the contract, the matter having been put in issue, was at large and no weight could be given to the fact that a judgment had been previously given in The GRIESHEIM. I fully appreciate what Mr. Sussex is saying but I am unable to see how it can be said that a plaintiff does not go into a litigation with a juridical advantage when a matter, which is likely to be in issue, must be taken to have been resolved in his favour unless the contrary is proved. The burden that lay upon the plaintiff to prove the foreign law as a matter of fact is lifted from him. He is entitled to rely upon the finding as to foreign law in the case cited in his notice. The onus falls on the defendant to prove that this finding should not be acted upon. This seems to me to be a clear juridical advantage and I so hold.

(2)    The plaintiff is deprived of the substantially higher Hong Kong tonnage limitation

55. The plaintiff argues with regard to tonnage limitation that, if he is sent to the Court in Jakarta and if, after argument, it hands down a ruling equivalent to that given in The Griesheim, the defendants would limit their liability either according to the Indonesian limit or according to the Taiwanese limit. I have found that the governing law of the tort is the law of Taiwan and am therefore satisfied that the Taiwan limit would be applied.

56. It was agreed by Mr. Sussex that the Hong Kong  limit was higher than that of Taiwan. It is not, in the circumstances, really necessary for me to examine the evidence as to the Indonesian limit. I will, however, briefly set out my views thereon in case they should be of assistance should this matter be taken on appeal.

57. There was considerable doubt as to the Indonesian limit. I accept the evidence of Mr. Lubis that routinely references to guilders have been translated one for one into rupiahs. If this was done the Indonesian limit would be far below that of both Hong Kong and Taiwan. I reject the evidence of Mr. Nugroho that the Indonesian Courts would deal with the matter in a way unspecified on a case by case basis as it is not supported by authority of any sort. There is however the evidence of Mr. Sumowidjojo that in the Garuda case the court referred to "the values of the respective currencies and how those values have charged since the 1939 Ordinance''. This resulted in the application of a conversion rate of 38.12 Rupiah to 1 guilder which produced a limitation figure more than 22 times less than the Hong Kong figure and more than 12 times less than the Taiwan figure. I am prepared to accept that the Indonesian courts might see fit to apply such a formula. Even if this were to be done I am satisfied that the application of such a formula to the Indonesian limitation would realize a limit far below that applicable in both Hong Kong and Taiwan.

58. It is the contention of the plaintiffs that the Hong Kong Court would apply the tonnage limitation contained in the Merchant Shipping Act  even though the port was governed by  Taiwan law and that the court in Hong Hong would, therefore, apply a higher tonnage limitation, by virtue of section 503 of the Act, than would be applied by Taiwanese law. Mr. Ribeiro relied, when contending that a higher tonnage limitation, was a juridical advantage, upon the statement of Lord Kilbrandon in the Atlantic Star [1974] A.C. 436 at 478 where he stated -

"It may be that if a plaintiff could point to some advantage of a juridical kind which he would enjoy in one court but not in another he might be said to be disadvantaged by being confined to the latter. Examples might be, more favourable terms of limitation of liability, or possibly longer time limits to actions."

59. I accept that having the benefit of a higher tonnage limitation is a juridical advantage. This court must now ask itself whether section 503 of the Merchant Shipping Act, which is made applicable to Hong Kong by section 509, is a piece of overriding legislation which will have application even if the tort is otherwise governed by Taiwan law. Mr. Ribeiro says that support for this view is to be found in Dicey and Morris "The Conflict of laws" 10th Ed. Vol. 2 at 976, which states ''irrespective of the locus delicti the provisions of the Merchant Shipping Acts regarding limitation of liability are applied within the scope Laid down in the Acts themselves". Mr. Ribeiro submits that this approach is supported both by the wording of the Acts and by an analysis of the relevant cases. Section 503 (1) reads :-

"The owners of a ship British or foreign shall not where all or any of the following occurrences take place without their actual fraud or privity ........ be liable to damages beyond the following amounts.

It is Mr. Ribeiro's contention that these words are clear and that the intention of Parliament, clearly expressed through them, was that the section should apply to all matters in which ships, whether British or foreign, came before the Courts. He finds supports for this contention in The Amalia 15 English Reports 778 which dealt with similar words in the Merchant Shipping Amendment Act of 1862 in the case of a collision on the high seas. He referred to the judgment of Dr. Lushington, at 779, where he said :-

on appeal affirming the decision of Dr. Lushington, Lord Chelmsford said, at 783 : -

"And it may be asked, what breach of international law or interference with the natural rights of foreigners is produced by the Legislature saying that all suitors having recourse to our Courts to obtain damages for an injury from a person not himself actually in fault, but being responsible for the acts of his servant, shall recover only to the value of the thing by which the loss or damage was occasioned, estimated in a particular manner."

It is appreciated that the collision in The Amalia took place on the high seas but the Court clearly consider that the English legislation overrode the ordinary principles as to conflict of laws. He also referred to The Kronprinz Olaf [1921] p. 52 and relied particularly on the words of Younger, J.J. at 65 where he said :-

Mr. Ribeiro also argued that, if, in an action proceeding in an English Court, section 503 was to be by-passed whenever the substantive law of the tort or other cause of action was foreign, there would be absolutely no need for section 2(4) of the Merchant Shipping (Liability of Ship Owners and Others) Act 1958 which excludes from the right to limit cases involving loss of life or personal injury involving persons on board or employed in connection with the ship under a contract of service governed by a foreign law which either does not set any limit or sets a limit exceeding the limit set by section 503. Mr. Ribeiro submits that this is a clear indication that it was not the intention of the legislature to make the limitation section otherwise dependant on the governing law whether it was the proper law of the contract or the governing law of the tort.

60. Mr. Sussex submitted that any defence known to the lex foci is available to the defendant, although such a defence is not known to the lex loci delicti, and that any defence know to the lex loci delicti, except for purely procedural defences, is also available to him, although unknown to the lex fori. He submitted that as long as the Hong Kong Courts characterize a statutory defence under the lox substantive it was open to the defendant. He referred, in this regard, to the Scottish judgment of Lord Jamieson in M'Elroy v. M'Allister [1949] SC 110 at 127 where he said when dealing with a tort committed in England and the limitation imposed by English law:-

"For my own part I consider that, in as much as the statute which gives the right of action expressly limits the endurance of that right, the right itself and the cause of action which it is designed to enforce both ceased to exist at the expiry of the period of endurance where, as here, the action has not been commenced within that period. In other words, the effect of the so called time limitation is to extinguish at its expiry the liability of the defendant.

61. He relied upon the statement in Dicey & Morris "The Conflicts of Laws" Vol. 2 at 1179 which says :-

62. He relied also, in this regard, on Panozza Co. v. Allied Interstate [1976] 2 NS WLR 192 where the Court of Appeal of New South Wales held that limitation on carriers liability was substantive and not procedural.

63. He submitted that the Taiwan limit would, therefore, be applied as part of the lex loci delicti whether the matter was heard in Hong Kong or Indonesian and that the plaintiffs would obtain no advantage in this regard by having the matter heard in Hong Kong.

64. Mr. Sussex argued that s. 503 of the Merchant Shipping Act was not an overriding provision. He submitted that one must distinguish between limitation that is established by the constitution of a fund in a limitation action and limitation that is raised by way of defence. He submitted that in the former case the Hong Kong Court would properly apply its own limitation, i.e. the limitation under section 503, but that this would not be so in the latter case. He submitted that the applicability of the latter limitation should be dealt with by the ordinary rules as to the conflict of laws.

65. Mr. Sussex submitted that The AMALIA and The KRONPRINZ OLAV - were both limitation actions and have no application to the present circumstances. I appreciate that in a limitation action a plaintiff comes to the court and submits to its jurisdiction. I, nonetheless, find it difficult to see how any distinction can be properly drawn between the application of the statute in a limitation action and its application in an action in tort. Mr. Sussex said that, when one looked at the words of section 503, there was nothing in them to suggest the intention of Parliament was to make it an overriding provision which would oust the normal conflict of laws rules. He submitted that the word "foreign," upon which much reliance must be placed when arguing that it is an overriding provision, was included because the law, as it stood at the time in the decision in Cope v. Doherty 70 ER 154, was, because of its very restricted applications, unsatisfactory.

66. Mr. Sussex may well be correct in his submission that the Taiwan limitation provision should be characterized as substantive. I am, however, persuaded by the arguments of Mr. Ribeiro and by the authorities cited by him that section 503 is an overriding provision and that the plaintiff is entitled to the benefit thereof.

3.    The Plaintiff will be faced with a time bar in Indonesia

67. It is the contention of the plaintiff that the time bar of one year after the commencement of the voyage which is laid down by Article 741 of the Indonesian Commercial Code would have application to the circumstances of the present case and that it is established by evidence of the foreign law experts, on the balance of probabilities, that this time bar cannot be waived or, alternatively, that it is for this court, if the matter is not proved by the evidence of the foreign law experts, to construe the Commercial Code and that, properly so doing, it will hold that it is mandatory in its terns and that the terms are to be read as meaning what they say. It is not contested that Article 741 of the Commercial Code, properly translated, reads as follows :-

It is now necessary to examine the evidence of the Indonesian lawyers in some detail.

68. Mr. Lubis in his first affidavit after referring to the Commercial Code and the Civil Code said-

"Both Codes are mandatory, subject to one exception explained below. This means that the Indonesian Courts will always apply the Codes to actions brought before it. The whole of the Commercial Code is mandatory and therefore there can be no departure by contract from its provisions. The Civil Code, too, is meant to be extent for Book 3 relating to contracts, which allows freedom of contract but again subject to there being no conflict with any mandatory provisions and to the contract not offending against public order or morality."

Mr. Lubis went on in paragraph 7 and paragraph 10 in the above affidavit to refer to the mandatory provisions of the two Codes. Mr. Lubis did not cite any textbooks or decisions to support his contention that the Codes were mandatory.

69. The wording of his statement as to the effect of Article 741 as a mandatory provision is, moreover, strangely ambivalent. He says that he is "of the view that an Indonesian Court may not, and is not obligated to, give effect to an agreement between the parties to extend the time limit, or to a waiver by one party of the time limit". The words "may  not and is not obligated to" would seem to me to be wholly inappropriate if one were describing a provision which one believed to be mandatory. Surely if the provision was mandatory one would say that the Court "cannot" give effect to an agreement or a waiver.

70. Mr. Lubis referred to a decision where, in 1955, a District Court is Jakarta had itself raised the question of time bar and held that the claim was time barried although the defendants had not specifically pleaded the time bar in their defence. I do not find any real assistance from this decision as there is no indication as to whether the defendants, once the time bar was raised, were prepared to waive it or whether they indicated a desire to take advantage thereof. It seems to me that this decision would only be of assistance if the Court had insisted that it was required to enforce the time bar in the face of indication from the defendants that they were prepared to waive it.

71. Mr. Nugroho did not agree that both the Commercial and the Civil Codes were mandatory, and said that whether or not a provision was mandatory depended "on the interpretation of the provision in question''. He agrees with the wording as deposed to by Mr. Lubis and says that the decision as to whether or not a section is mandatory depends upon the interpretation of the wording of each provision. He does not agree that Article 741 is mandatory and gives his opinion that the Indonesian Courts would give effect to an agreement between the parties that a time bar should not applied.

72. Mr. Nugroho said that he had "made inquiries at the Supreme Court of the Republic of Indonesia and have been advised that my opinion on this issue, is correct''.

73. I do not consider that I can give any weight to the suggestion that inquiries from some unspecified person confirmed the correctness of the opinion of the deponent.

74. Mr. Nugroho in his affidavit said that Dutch case law has persuasive authority in Indonesia. He cited two Dutch cases which he said confirmed that the time bar provided for in the Commercial Code may be deviated from by contractual agreement between the parities. He then took one step further saying that in his opinion the court would recognize a waiver.

75. Weight must be given to the evidence from Mr. Nugroho that Dutch case law, which he cited, indicates that time bars provided in the Commercial Code may be deviated from by contractual arrangement. Mr. Nugroho placed before he court not only his opinion that Article 741 was not mandatory but also referred to authorities, which are persuasive in the Indonesian Courts, in support of this view. Although the plaintiffs filed a further affidavit from Mr. Lubis he made no mention of the opinion expressed by Mr. Nugroho in this regard nor did he suggest that Mr. Nugroho was not entitled to rely upon the authorities which he cited.

76. I fully appreciate that in the present case we do not have an agreement not to rely upon a time bar but only an indication from one side that it is prepared to waive the bar. Common sense, however, in my view, impels one towards acceptance of Mr. Nugroho's view that a Court which has power to give effect to an agreement not rely on a time bar would also have power to give effect to a waiver. As to the Dutch cases cited by Mr. Nugroho, it is suggested by Mr. Ribeiro that I should refuse to be guided by them as Holland applies the Haig Rules and Dutch decisions would, therefore, not have any application to the Commercial Code of Indonesia. I do not consider that I can properly take this view. Mr. Nugroho, to whose qualifications as an expert no challenge was made, has cited two Dutch decisions and said that they confirm his view that the Commercial Code is not mandatory. In the circumstances I am satisfied to accept the evidence of Mr. Nugroho and am satisfied that the Indonesian Court would, if a party were to indicate that it did not wish to rely upon a time bar, be entitled to act upon hat waiver.

(4)    The Plaintiffs will be deprived of legal costs and interest

77. Mr. Nugroho agreed with Mr. Lubis that in Indonesia the successful party is not ontitled to an award of costs other court fees. He said, however, that Indonesian courts do allow parties to come to their own agreement as to costs and that such agreement would be upheld by the court. He took no issue with Mr. Lubis' statements that there was no court procedure for taxing costs and that, even if legal costs were allowed, they would form part of the award of damages and would be subject to the overall limitation of liability under Article 474.

78. Mr. Nugroho agreed with Mr. Lubis that interest accrused only from the date on which the action is commenced but said that the courts did have a discretion to award interest from the date the cause of action arose. He said the rate of 6% would be applied unless the parties concerned had contractually agreed that a different rate should apply.

79. Mr. Ribeiro argued that there was a real disadvantage to the plaintiff if the was forced to litigate in a jurisdiction where he could recover no costs and where he would be limited to the recovery of interest at the rate of 6%. Mr. Ribeiro argued that, even if interest was ordered to be paid from the date on which the cause of action arose, if it was to be paid at the rate of 6%, that was a disadvantage as against any award that would be made in Hong Kong where the award would be at the discretion of the judge and would, for the period in question, be at a rate substantially in excess of 6%.

The Undertakings offered by the Defendants

80. On the third day of the hearing, Mr. Sussex handed up to the Court a letter which had been sent by his solicitors to the solicitors for the plaintiff. This letter read as follows -

81. I turn to examine the disadvantages of which Mr. Ribeiro complained in the light of the above findings :

 

        The defendants undertake, as regards costs, that, if successful in Indonesia, they will pay the plaintiffs reasonable costs on the basis equivalent to party and pasty costs before the Hong Kong Court, which, if not agreed, would be assessed by an independent costs clerk sitting as a sole arbitrator in Hong Kong. The plaintiffs, if successful in Hong Kong, would, as a matter of right, be entitled to an order that the defendants pay their costs to be taxed by the taxing master of the Supreme Court. The award of costs and the taxing thereof are an integral part of the judicial procedure. In many cases, the award of costs and their proper taxation is just as important to a party as is a decision in his favour on the merits. In an admiralty action, such as the present one, the amount of costs that the successful party will recover is likely to be very substantial indeed. It is clearly a juridical advantage to proceed in a jurisdiction which permits the recovery of taxed costs.

 

        I must ask myself whether this advantage is negatived by an undertaking that, if costs are not agreed after a trial in Indonesia, they can be assessed by an independent costs clerk. I am satisfied that an undertaking of this sort is quite different from an undertaking to waive. The latter involves the performance of a single, certain act, about which there can he no further argument. The same cannot be said with regard to the undertaking as to costs. If it was given and the matter procedure in Indonesia the judicial process would be split into two parts; one would take place in Indonesia and the other in Hong Kong. The undertaking would require the finding of a person with a sufficient knowledge of the costs properly incurred in Indonesian litigation to enable him to tax those costs on a party and party basis in accordance with the principles of taxation applicable in Hong Kong. While I would not like to say that such a person could not be found there might well be considerable difficulty in so doing. I am satisfied that it would be quite wrong to allow the defendant upon the basis of their undertaking as to costs to set aside the juridicial advantage with regard to costs which the plaintiffs would have if their action was to proceed in Hong Kong.

 

        The same observations apply, but perhaps with less force, to the matter of interest. The defendants undertake to pay interest at "the Hong Kong judgment interest rates prevailing during" the period from date of stranding to date of payment of the judgment. There is in fact no "Hong Kong judgment interest rate prevailing" during any period. The rate in each case is fixed by the trial judge at the conclusion of the trial.

 

        When Mr. Sussex was asked what he meant by "the Hong Kong judgment interest rates prevailing during that period", he said that he would be happy with any formula that would give the plaintiff the same interest rate as would have been ordered if the action had been tried in Hong Kong. As I have said in Hong Kong the rate of interest is fixed by the trial judge at the end of the trial. It is as much a part of the judicial process as the award of costs. Different judges have different approaches to the fixing of the interest rate. The entitlement to have interest at a rate fixed by a judge at the end of a trial is a juridical advantage. Should such an advantage be set aside upon the giving of an undertaking by a defendant that he will pay interest in accordance with a formula which will give the same rate of interest as would have been awarded by a judge. Perhaps it should, but only, I am satisfied, if the one seeking to rely upon the formula, i.e., the defendants, produce a formula and satisfy the court that it will have the effect intended. In fact no formula has been produced. This being so I am satisfied that  it would be wrong to deprive the plaintiffs of this advantage.

 

82. I am satisfied that a trial in Indonesia will deprive the plaintiff of:

83. Any one of the above matters would, in my view, be sufficient to warrant a refusal to grant a stay. The defendants have not, therefore, satisfied me that they are entitled to a stay of proceedings and their application is refused. I make an nisi order, to be final within 14 days, that plaintiff to have costs of this application to be taxed.