XCHRX HABIB FINANCE INTERNATIONAL LTD. v. APL CO. PTE. LTD. AND OTHERS

HCAJ70/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY ACTION NO. 70 OF 2001

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J U D G M E N T

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1. This is an application by the 3rd defendant, Nippon Yusen Kaisha, a well-known Japanese carrier, for a stay of the proceedings brought by the plaintiff, Habib Finance International Limited, in relation to a shipment of cargo shipped under the Bill of Lading issued by the 3rd defendant and of which the plaintiff is now the endorsee as well as the holder, which shipment had been misdelivered without production of the Bill of Lading to parties not entitled to such delivery. The plaintiff still has the original Bill of Lading and the plaintiff, therefore, has brought proceedings in Hong Kong.

2. The shipment was for carriage from a port in China to a port in Chile. The Bill of Lading, however, was issued in Hong Kong. The 3rd defendant relies on clause 3 of the Bill of Lading which provides for exclusive jurisdiction. Clause 3 reads :

"(Government Law and Jurisdiction) The contract evidenced by or contained in this Bill of Lading shall be governed by Japanese law except as may be otherwise provided herein, and any action thereunder shall be brought before the Tokyo District Court in Japan."

This is a fairly standard exclusive law and jurisdiction clause and it is perfectly understandable that such a clause would be applicable and would been included in a Bill of Lading issued by a Japanese carrier such as the 3rd defendant.

3. The Bill of Lading, however, also contains, stamped on the front page of the Bill of Lading in fine print, the following clauses A, B and C :

"(A) PURSUANT TO TRANSITORY ARTICLE NO.1 OF 18,680 AND THE PERMANENT ARTICLES OF THE NEW BOOK 3 OF THE CHILEAN CODE OF COMMERCE, THE PARTIES HEREBY CONCERNED (CARRIER, SHIPPER, CONSIGNEE AND RECEIVER) MUTUALLY AGREE THAT IN SUBSTITUTION FOR ARTICLES 984 AND 987 SHALL BE SUBSTITUTED THE PROVISIONS OF ARTICLES 3 AND 4 OF THE INTERNATIONAL CONVENTION FOR THE UNIFICATION OF CERTAIN RULES CONCERNING BILLS OF LADING SUBSCRIBED AT BRUSSELS ON THE 25TH AUGUST 1924 (THE HAGUE RULES).

(B) THE PARTIES DECLARE THAT IN RESPECT OF ANY PROCEEDINGS WHICH MAY BE COMMENCED IN CHILE ARISING OUT OF THIS CONTRACT SUCH PROCEEDINGS SHALL BE REFERRED TO THE VALPARIASO COURTS AND THAT UNLESS OTHERWISE MUTUALLY AGREED BY THE PARTIES, ARBITRATORS SHALL NOT BE COMPETENT TO DEAL WITH ANY SUCH DISPUTES.

(C) IT IS HEREBY AGREED THAT THE TIME FOR DELIVERY FOR THE GOODS SHALL BE 6 MONTHS FROM THE DATE OF SHIPMENT."

4. The disputes between the parties on the 3rd defendant's application for a stay are :

(1) whether the 3rd defendant can rely on clause 3, having regard to the existence of the stamp clauses A, B and C.

(2) on the basis that the 3rd defendant can rely on clause 3, whether as required by the decision of "The Eleftheria", strong grounds had been shown by the plaintiff to persuade the court that, notwithstanding the existence of clause 3, in the circumstances a stay should not be ordered.

I will first deal with the first issue because that is the principal and most controversial issue that had been argued by the parties.

5. It is clear that, in the absence of the stamp clauses A, B and C, clause 3 would be a simple everyday exclusive law and jurisdiction clause and I do not think this is in dispute. The question is that : could clause 3 be said to be undermined by the stamp clauses A, B and C? Clauses A and B envisage, and they must be read together, a situation where proceedings are brought in Chile. That, of course, would make sense in terms of possibilities because this is a shipment of goods to Chile. The evidence produced by the 3rd defendant shows that in Chile there is a very rigid legal regime which requires all proceedings brought in Chile to be decided by arbitration but there is provision for opting out and that is what stamp clause B was intended to vary. Stamp clause A is for the limited purpose of allowing the carrier to have the lesser burden under the Chilean maritime statutory provisions in terms of liability as carrier.

6. It was very strongly argued by Mr Kerr for the plaintiff that the effect of stamp clauses A and B would have either the effect of knocking out clause 3 altogether, that is displacing it, so that clause 3 no longer bites but is replaced solely by stamp clauses A, B and C; or alternatively because the two of them, i.e. clause 3 and stamp clauses A, B and C, cannot coexist together because there is such a conflict, that there is a floating clause situation, so that clause 3 can no longer be relied upon. I think in construing the total effect of clause 3 and stamp clauses A, B and C, I obviously must take into account, firstly, that it is a stamped provision and that some effect is intended to be given to it. Secondly, that clause 3 had not been crossed out. Thirdly, that clause 3 is, commercially and generally in all shipping cases, considered to be of substantial importance to the parties not just specially to the carrier. Fourthly, that the court should strive, whenever possible, to give effect to all clauses rather than to be reduced to a position of knocking out a clause altogether. Fifthly, that the court ought to approach, in this day and age, a construction exercise with a commercial document in a commercial way and not to attempt to reach a result which is both commercially and legally extreme, unless, of course, the language of the provisions do not permit such an exercise. So with these remarks, I would try to carry out an exercise of construction to see, firstly, if I can reconcile clause 3 with the stamp clauses A, B and C. I find no difficulty in reconciling the two and I accept the submission of Mr Shieh for the 3rd defendant and reject the submission of Mr Kerr that the two cannot coexist happily together because, what is envisaged is an ordinary situation that clause 3 will apply and apply worldwide and it is only in the extraordinary unusual situation where the carrier finds it is compelled by proceedings brought in Chile, then, stamp clauses A and B would have a possible limited application, and that limited application was brought about by the special legal position in Chile which will, in any event, knock out clause 3. That, it seems to me, is a common sense and commercial way to approach the coexistence of clause 3 and stamp clauses A, B and C. So, therefore, I accept the primary case of Mr Shieh and clause 3, therefore, is valid and can be relied upon.

7. It seems to me, therefore, it is unnecessary to go on to consider the other two backup submissions of Mr Shieh but I agree that if it is necessary, his backup submissions are also perfectly good, namely, the first backup is what is described in the learned article of Professor Biggs that if there is a floating clause situation, it is still perfectly good and that is to say if Mr Kerr is correct because of the coexistence of these two provisions, clause 3 and stamp clauses A, B and C, that is still acceptable to the court and clause 3 can be relied upon. The second alternative backup position of Mr Shieh is that in any event, if necessary, then following the approach adopted by Sheen J in "The Frank Pais", you just ignore the non-offensive part and, in this case, the part to be ignored and not relied upon, would be the stamp clauses A, B and C.

8. What has happened in this case is that the plaintiff has not brought proceedings in Chile but has brought deliberately court proceedings in Hong Kong and there is no reason, as far as I can see, why the 3rd defendant cannot rely on clause 3, namely the exclusive Japanese law and jurisdiction clause. On the first issue, therefore, I find in favour of the 3rd defendant and the 3rd defendant can rely on its exclusive Japanese law and jurisdiction clause. Therefore, the primary case for stay is established.

9. I now turn to the second issue. The second issue can be summarized by the question as to whether the plaintiff, by its evidence, has shown to the court a sufficient case that notwithstanding the exclusive jurisdiction clause, the action brought should not be stayed, that is that the court should not apply the contractual provision. If I may say so, I think the plaintiff falls down by a long way as I have indicated to Mr Darton for the plaintiff in the preliminary hearings before me. I just see no basis for a resistance to the application.

10. Reliance was placed by Mr Kerr in the course of his submission on the possibility (I use the word advisedly) of conflict of evidence which would necessitate the bringing of witnesses or evidence from Hong Kong and therefore Hong Kong is a more convenient forum as opposed to Japan. If I may say so, I do not think the material put before the court comes anywhere near showing this.

11. The dispute at the moment shows that the complaint by the plaintiff is as to the release of the cargo to an unauthorized person without the original Bill of Lading. The scheme, both factual and customary as well as legal prevailing in Chile, would be the primary focus in the Action. What actually happened in Chile will be the primary focus: the way the goods arrived in Chile, then handed over by the 3rd defendant to the Chilean Customs, then eventually, with possibly false documentation, i.e. a forged Bill of Lading, somehow the unauthorized person obtained delivery of the goods which were released by the Chilean Customs. The primary material is therefore (as in all cases involving the peculiar South American countries maritime arrangements of the national customs having unique primacy over goods imported into such countries) what happened in Chile which would be the centre of investigation. The case of "The Brij" decided by me in 1990 after a long trial, is a primary illustration of the sort of concentration a court would have in the case involving a claim for misdelivery of goods released by a South American Customs Authorities to people unauthorized to receive the goods.

12. I can see hardly any scope for evidence coming from Hong Kong that would be of substantial importance in the trial of this kind of action. The submissions made to me by Mr Kerr and the material that had been put before the court show that there is, in fact at the moment, hardly any material coming from Hong Kong which would have a huge impact on the trial. I hope I will be forgiven for saying to Mr Kerr in the course of his submissions that the plaintiff is just piling speculation upon speculation when it based its case against a stay on the factual side with submissions of Hong Kong material being possibly important for the trial.

13. In my view, the plaintiff has woefully failed to show a case factually of the necessity for a trial in Hong Kong or even the convenience for a trial in Hong Kong. I think the other matters relied upon are not really of significant substance or weight. I have no doubt that this is a case where the plaintiff should not have resisted the application for a stay. I hold, therefore, that the summons succeeds and the 3rd defendant ought to have the costs of the application.