THE OWNERS OF CARGO LATELY LADEN ON BOARD THE SHIP OR VESSEL "FRINTON" v. THE OWNERS AND/OR DEMISE CHARTERERS OF THE SHIP OR VESSEL "FRINTON"

Conflict of laws - carriage of goods by sea - application to stay proceedings instituted in Hong Kong - bills of lading containing choice of law and exclusive jurisdiction clause (Greek law and the courts of Greece) binding all but 2 or 87 cargo owners who joined together as plaintiffs in the action against a Greece-based carrier - whether defendants' principal place of business in Greece - whether stay should be granted.

BETWEEN

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JUDGMENT

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Fuad, V.-P.:

1. On 28th September 1988, while the vessel "Frinton" was sailing in the Indian Ocean bound for ports in the Far East, a fire was discovered in two of its holds. The vessel had loaded a cargo of steel bars in Recife, Brazil between 12th and 19th August and a cargo of cotton bales in Buenos Aires, Argentina between 30th August and 5th September.

2. The "Frinton" sailed for Singapore, her first port of call, on 7th September, reaching there on 8th October. It had been intended that she would stay in that port for only 36 hours or so, sufficient time to allow a small amount cargo to be unloaded. However, she had to remain there for much longer during which time firefignting continued until the fire could be extinguished - fire fighters, surveyors, salvors and a number of experts attended the vessel. It was not until 16th November that it was felt that the condition of the vessel and her cargo would permit her to complete her journey. She sailed to Keelung, Taiwan and discharged part of her cargo there. She reached Hong Kong on 6th December and the remainder of her cargo had been unloaded by. 12th December. Surveys of the "Frinton" and her cargo were also carried out in Keelung and Hong Kong. She was repaired in Hong Kong.

3. Meanwhile, on 11th November 11 owners of cargo on board the vessel issued a writ in the Admiralty jurisdiction against the defendants as "the owners and/or demise charterers of the ship or vessel 'Frinton'." The claim was for:

"Damages for breach of contract (written and/or oral) and/or duty and/or negligence by the Defendants and/or their servants and/or agents in and about the loading, stowage, handling, custody, care and discharge of the Plaintiffs' cargoes of Argentine and Paraguayan raw cotton, steel deformed bars, and tubing and the carriage there of on board the Defendants' ship or vessel 'FRINTON' from Buenos Aires and Recite to Singapore, Hong Kong and Keelung in or about the months of August to November, 1988 which resulted in loss and/or damage and/or delay;"

4. The indorsement also asks for other relief, mostly in declaratory form. The vessel was arrested in Hong Kong on 30th December.

5. As a result of a number of amendments to the writ (no points of claim have yet been filed) there are now 87 plaintiffs as cargo owners. 22 of these plaintiffs give addresses in Hong Kong and 35 in Taiwan. As to the other addresses indorsed on the writ, the countries are Switzerland (8); Argentina (8); U.S.A. (8); England (2);  France (2), Panama; Brazil; Singapore and Liechtenstein.

6. In the introductory paragraphs of his judgment, the judge mentions that the cargo carried by the vessel was covered by 18 bills of lading. This would have been an accurate statement at an earlier stage of the proceedings, but we were told from the Bar that by the time the matter came before the judge, 69 bills of lading were being relied upon, 65 of which were on the "CONLINEBILL" form (those covering the bales of cotton) and 4 of the "CONGENBILL" form (those covering the steel bars). We were  also told that in terms of the value of the claims, 27% of the total value are put forward by Hong Kong plaintiffs and that the claims relating to steel bars represent 13% of the total value of the claims.

7. These are standard form bills of lading. The 65 "CONLINEBILL" form bills to which 85 of the 87 plaintiffs were parties, included the following clause:

                "3. Jurisdiction.

Any dispute arising under this Bill of Lading shall be decided in the country where the carrier has his principal place of business, and the law of such country shall apply except as provided elsewhere herein."

8. The "Frinton" is registered at the Port of Piraeus in Greece. The defendants, her registered owners, are Sea Maritime Corporation, a Liberian corporation whose registered office is at 80, Broad Street, Monrovia. It is common ground that the defendants have no office or staff in Liberia.

9. On 1st June 1989, the defendants took out a summons under RSC U.12, r.8, and the inherent jurisdiction, seeking an order that the proceedings instituted against them by the cargo owners be stayed in favour of the Courts of Greece on the grounds:

10. The matter came for hearing before Barnett, J. and in a reserved judgment dated 4th December 1989 the judge dismissed the summons. The defendants now appeal and there is a Respondents' Notice seeking to uphold the judge's decision on additional or alternative grounds.

11. On the question of the carrier's principal place of business, the evidence before the judge included an affidavit sworn on 2nd November 1989 by Mr. Emmanuel Sevastopoulos. He describes himself as the President and one of the Directors of Pleiades Shipping Agents S.A. ("Pleiades"). The company, he says, is registered in Monrovia, Liberia, but "carries on business" at 137, Filonos, Piraeus, Greece. He states that he is also the President and a Director of Sea Topaz Maritime Corporation ("Sea Topaz") of Monrovia, the owners of the "Frinton" registered at Piraeus.

12. Mr. Sevastopoulos gives the names of his 3 fellow Directors of Pleiades (they double up respectively as Vice-President, Secretary and Treasurer) and of his 2 fellow Directors (who hold office also as Vice-President and Secretary) of Sea Topaz, all Greek nationals resident in Greece. He deposes that Pleiades manages a fleet of 11 vessels including the "Frinton". The "Frinton" and one other are bulk carriers, 4 are cargo ships and 5 are tankers. A list of the vessels managed by Pleiades (which includes the "Frinton") is exhibited although "the list is now out of date as Pleiades have been active in the sale and purchase market."

13. Mr. Sevastopoulos, by his affidavit, also exhibits copies of:

14. Mr. Sevastopoulos goes on to say that Pleiades occupies two floors of the Laxis Building at 137 Filonos Street, Piraeus, and has had the tenancy of those floors since 1974; Pleiades employs 41 staff (their names are given) and their work comes under one of 3 departments: Technical, Crew and Operations and Accounts.

15. Regarding the Operations Department of Pleiades, Mr. Sevastopoulos explains that it employs 3 Port Captains. Captain Trimis is the one responsible for the "Frinton" and the other dry cargo ships managed by Pleiades. The other 2 Captains named are responsible for the tanker fleet. It is the responsibility of Captain Trimis to advise the Master of the dry cargo vessels on the stowage of their cargoes and when difficulties arise in interpreting charterparty terms. The Captain also has the duty of supervising the maintenance of the vessel's hull. The Port Captains supervise the recruitment of the vessel's Masters and deck officers. Each vessel is required to make a report to Pleiades at two monthly intervals on the condition of the hull and the superstructure. These reports are kept at the Piraeus office. A set of builders' plans of the ''Frinton" is also kept there for use as required. Captain Trimis was involved, it is said, from the outset in advising the master of the "Frinton" of steps to take in fighting the outbreak of fire in September 1988 and the Captain regularly kept the affiant informed of developments.

16. Mr. Sevastopoulos states that the Technical Department of Pleiades employs 3 Engineer Superintendents (their names are given). A Mr. Probonas is the one who has responsibility for the maintenance of the "Frinton" and supervises the upkeep of her hull and machinery - he also supervises drydocking and repairs, the renewal of statutory certificates etc.. He authorises payment for repairs (including spare parts) and for maintenance work. It was Mr. Probonas who inspected the "Frinton" in August 1987 before she was acquired by Sea Topaz and it was he who took delivery of the vessel in December 1987 in Singapore. Mr. Probonas made a routine visit to the "Frinton" whilst she was at Toyohaski, in March 1988.

17. The affidavit continues by stating that the Crew Department is responsible for the appointment of the Master, officers and crew of all vessels managed by Pleiades,including the "Frinton" - however, the appropriate Port captain recruits the Master and the Deck Officers, whilst the appropriate Engineer Superintendent recruits the Chief and the Senior Engineer Officers. The Crew Department handles payment of the crew's wages   and relief crew for vacation periods.

18. Mr. Sevastopoulos refers in the opening paragraph of his affidavit to Pegasus Ocean Services Ltd. ("P.O.S.") which he said was formed in London in 1964, taking over the work previously handled by Frinton Shipbrokers Ltd.. He had worked for P.O.S. before returning to Greece in 1965 to set up the office in Piraeus of Pleiades Shipping Ltd. later known as Pleiades Shipping Agents S.A. He states that P.O.S. is the London agency of Pleiades and act as a forwarding address for the owners of the vessels managed in the Pleiades fleet. Port agency accounts, he says, are often sent to P.O.S. in the first instance but their payment has to be authorised by Pleiades. In addition, P.O.S. attend to the placing of the null and machinery and P and I polices of insurance of vessels managed by Pleiades. Claims arising from the operation of the "Frinton" and other vessels in the fleet are presented for settlement by P.O.S., but never without the authorisation of Pleiades.

19. Mr. Sevastopoulos goes on to depose that he personally attends to the freight statements of the "Frinton" which he prepares and sends to P.O.S., liaising with his brother. The freights for that vessel are paid into bank accounts in London or New York, and Pleiades draws money from those accounts as needed to settle the running expenses of the vessel. He states that while port disbursements incurred by the "Frinton" are checked and then authorised for payment by Pleiades, if, for example, prompt payment is required to a ship's agent, this is done through the London office of P.O.S. to save the delay that exchange control requirements would bring about if payment were to be made by a Greek bank.

20. As regards the supply of, and payment for, spare parts for the "Frinton's" deck and engine room, and such items as paint, rope, engine parts, drydocking, food and provisions etc. this is all arranged by Pleiades under the supervision of Captain Trimis or Mr. Probonas. The invoice is then either settled directly by Pleiades or authority is given for payment by their London agents.

21. Mr. Sevastopoulos states that with regard to the operation of the "Frinton" her fixing had to date been carried out by Pegasus Ocean Chartering Ltd. in London. He says that while Pegasus are negotiating a proposed fixture, he is kept fully informed of developments by telephone. He personally authorises any fixture on behalf of the owners before it is concluded and he signs the charter party on their behalf. He signed the relevant charter party in Piraeus on behalf of Sea Topaz. He exhibits telexes which confirm Pleiades' agreement to the charter fixture of the "Frinton" during 1988, including the voyage during which the fire which gives rise to this action arises.

22. In his judgment, the learned judge said that the first question to be resolved was whether the jurisdiction clause was a valid exclusive jurisdiction clause. Happily, there was, he noted, no dispute but that the Greek courts recognised the validity of and would give effect to such a clause. It was also common ground that the principal place of business of the defendants fell to be ascertained by looking at the reality of the situation and not simply by reference to where the owners may have an office. The judge then summarised the affidavit evidence before him relevant to this issue and mentioned a number of "attacks" made by Mr. Michael Thomas for the cargo owners "on the credibility of Mr. Sevastopoulos". The judge refers particularly to the fact that in his affidavit Mr. Sevastopoulos had sworn that P.O.S. in London referred to Pleiades "for approval of fixturing and chartering" whereas the telexes he drew attention to and explained in his affidavit were sent to and from a company called Monarca S.A. which he said was an offshore company " which was utilised when Pleiades Ltd. was a company registered in Greece." Mr. Thomas had, observed the judge, drawn attention to the fact that the telexes were dated 1988 despite the fact that Pleiades was incorporated as a Liberian corporation in 1984; this the judge Categorised as a "conundrum" and on this issue he concluded:

"Whatever the true explanation for the latter conundrum, it is clear that the London agents, whom Mr. Thomas characterised as the top men, had to seek approval elsewhere before engaging the vessel. I accept that Mr. Sevastopoulos' affidavit is not, perhaps, as powerful as appears at first sight. Nonetneless, I am satisfied and so find for the purpose of this application that through its agents, Pleiades, the defendants' principal place of business is in Greece."

23. The judge went on to say that this finding did not necessarily resolve the matter by reason of a contention put forward by Mr. Thomas that the affidavits of the Greek lawyers, Mr. Voutsinos and Mr. Nassikas, showed that a principal place of business to be recognised by the Greek Courts must be readily ascertainable. The learned judge summarised Mr. Thomas's submission in this way. It was hot right for a jurisdiction clause to depend upon an enquiry of fact which led to the identification of two places, neither of which was trivial. In other words, a cargo owner should be able to discover the principal place of business of the owner of the vessel from the usual enquiries which are to be made and the usual sources commonly available. Ascertaining the principal place of business should not depend upon a close scrutiny of evidence marshalled by each party in the court. A contract must have a proper law at the time when it was made: The Blue Wave [1982] 1 Lloyd's Rep. 151. It was at the time when the contract was made that the principal place of business ought to be known or ascertainable. At that time, there would not be available the sort of evidence that was ultimately canvassed in court when objection was taken to jurisdiction.

24. The judge said that this argument was not without attraction, but that he would accept the submission made by Mr. Ribeiro for the owners of the vessel that the phrase "readily ascertainable" implied a process of ascertainment which would have to be undertaken by the court when and if the jurisdiction point were taken in proceedings already commenced in its jurisdiction. The clause in question was to De found in a standard form of bill which had been found to be just and commercially acceptable in the snipping industry. Some support for Mr. Ribeiro's submission was, said the judge, to be found in The Blue Wave where Sheen J. had been faced with an identical clause in a bill of lading. In that case the judge had resolved a dispute between the parties as to the country in which the owners had their principal place of business upon the evidence and arguments that were then before him. Barnett, J. held that under the jurisdiction clause the Greek courts had jurisdiction.

25. By their Respondent's Notice, the plaintiffs challenge the judge's conclusions on the facts and the law relating to the exclusive jurisdiction clause. The contention urged before us by Mr. Michael Thomas is put in this Way:

26. The plaintiffs also submit that the judge's approach is open to objection on policy considerations because such an approach:

27. It is argued that had the judge applied the right test he ought to have found on the evidence that the defendants' principal place of business (if indeed it was in Greece) was not readily ascertainable by the plaintiffs using reasonable diligence, before the commencement of the action or at all.

28. Mr. Thomas advances the alternative submission that on the evidence the judge ought to have found that the defendant principal place of business was not in Greece. If they could be called upon to do so, the plaintiffs would point to London as the principal place of business shown by the evidence, or possibly Liberia - certainly, it was their contention that the defendants had not discharged the burden of proving that their principal place of business was in Greece.

29. For their submissions on the Greek law on the issue, the plaintiffs rely principally on the affidavit sworn by Mr. Dimitrios Voutsinos dated 14th July 1989. He is a lawyer of the Piraeus Court of Appeal. He states that under Greek law, as a general rule, the parties are free to agree that present or future disputes arising out of a contract shall be referred to a specific Court, which but for the agreement, would have ho jurisdiction to try and determine the dispute. That proposition was based on art.42 of the Greek Code of Civil Procedure. He adds that where the parties have failed to designate with certainly the Court to which the disputes should be referred or where one party seeks to escape liability altogether by relying on a unclear jurisdiction clause, the Courts would not give effect to such a clause. Similarly, a person seeking to rely on a defective jurisdiction clause would be estopped, on considerations of fairness, from taxing advantage of the difficulty in which the plaintiffs might find themselves so as to frustrate the action or the enforcement of a judgment.

30. Mr. Voutsinos goes on to say that if the carrier's principal place of business is not readily ascertainable, the carrier would be estopped from relying on the clause. He concludes his opinion on this point  in the following terms:

"Whether or not the carrier's principal place of business is readily ascertainable or not and whether it is fair or not to allow the carrier to rely on the specific jurisdiction. clause under consideration, are questions of fact and, therefore, each case has to be considered on its own specific facts.

 

My conclusion, therefore, is that, as a matter of Greek law, and on considerations of fairness and commercial certainty, a carrier may be estopped from relying on the specific jurisdiction clause under consideration if his principal place of business is not readily ascertainable."

31. Another lawyer of the Piraeus Court of Appeal, Mr. Andrews Nassikas, in his affidavit, refers to the affidavit of Mr. Voutsinos and points out that the clause is a standard one found in a large number of carriers' bills of lading. It was a clause the validity of which the Greek Court would not examine per se, but only if one of the litigants disputed its validity. Such clauses were upheld and given effect to by the Greek Courts, particularly in cases like the present where the litigants had no room to dispute it. The approaon the Greek Courts would take to the clause would be "to determine whether or not the carrier has his principal place of business in Greece and whether that place of business is readily ascertainable."

32. Mr. Nassikas refers to the evidence and says that it is clear to him that the Greek Courts would determine that the company's place of business was readily ascertainable and that it was at 137, Filonas Street, Piraeus.

33. A third Greek lawyer, Mr. Apostolos Bournelis, qualified in Maritime and Commercial Law, and a legal adviser to Maritime Companies, by his affidavit deposes that in his opinion the jurisdiction clause " whereby exclusive jurisdiction was conferred upon the Court of the principal place of the carrier is valid and binding under Greek law upon both parties to the contract evidenced by the bill of lading and the Greek Courts would give effect to it."

34. A fourth lawyer, Mr. Panos Mavroyannis, possessing the highest qualifications and with great experience in maritime and commercial law, expresses the following opinion about the jurisdiction clause in his affidavit:

35. It is perfectly clear from all this that the jurisdiction clause we have to consider is in fairly frequent use. Indeed, as has been pointed out to us, a clause in identical wording featured in The Eleftheria [1970] p.94; The E1 Amria [1981] 2 Lloyd's Rep. 119 (C.A.) and The Blue wave [1982] 1 Lloyd's Rep. 151. Whether one applies Greek law or the law of Hong Kong there can be no doubt that such a clause cannot be struck down for uncertainty - of course, for it to be effective, if the parties cannot agree where the carrier's principal place of business is, a Court before which the hatter is raised will have to decide whether a party arguing for a particular place has established the fact to its satisfaction for the purposes of the issues raised.

36. When the matter arises, as it has here, on an application for a stay, it seems to me that the Hong Kong Courts must recognise that it will ultimately be a question of Greek law for the Courts of Greece to decide. However, without resolving the issue finally on the merits as the Greek Courts would have to do, the Hong Kong Court must come to a decision on the question if it is to dispose of the application for a stay. As I have said, I do not think that there can be any doubt about the validity of the clause, per se.

37. When seeking a stay on account of the clause, to what degree must the applicant satisfy the Hong Kong Court  that the clause is effective (because the principal place of business of the carrier is in Greece)? To put it another way, what probability of success must the applicant for a stay demonstrate for his contention that the Greek Courts would uphold the validity of the clause and give effect to it on the facts as presently known?

38. With due respect to the forceful submissions made by Mr. Thomas on behalf of the plaintiffs, when one examines the evidence before the judge and the opinions of the Greek lawyers, I am not persuaded that the judge erred in his findings on this issue - and I reach this conclusion whether the defendants were required to make it "sufficiently to appear" to the judge that the jurisdiction clause was valid and effective, or to establish a "clear case", or a "strong case" or a "good arguable case" for that contention.

39. I am bound to say that in my view the plaintiffs make too much of the use of the expression "readily ascertainable" in the affidavit of Mr. Voutsinos, picked up and echoed by Mr. Nassikas in his. I do not read anything that they say in their opinions to justify a proposition that for the clause we are considering to be effective under Greek law, the principal place of business must be readily ascertainable by a putative plaintiff at the time the jurisdiction clause is agreed to. The issue must surely fall for decision on facts determined by the Court seised with the matter.

40. In my judgment the defendants sufficiently, and indeed amply, demonstrated for the purposes of their application that the clause in question was a valid and effective exclusive jurisdiction clause. I have no hesitation in saying, respectfully, that I myself would have come to the same conclusion as did the judge: the only finding open to the Court on such evidence was, in my view, that the defendants have a place of business in Piraeus and that it is their principal place of business.

41. I have no doubt, therefore, that the controversy which divides the parties on this appeal must be decided against the background that 65 of the 69 bills of lading covering the cargo, the subject matter of the action, included an effective exclusive jurisdiction clause. Therefore, all but 2 of the 87 plaintiffs contracted that disputes arising between them would be decided in the Greek courts, applying Greek law.

42. The judge said that the matter before him fell to be decided in accordance with the principles laid down in the Eleftheria and elucidated in the E1 Amria. He did not feel it necessary to recite the principles since they were how tolerably well-known - he would only say that the burden was on the plaintiffs to show a strong cause for not granting a stay.

43. The judge remarked that some of the matters relevant to the exercise of the court's discretion were not in issue here. There was no suggested differences between Hong Kong and Greek law. It was not contended "that the defendants are seeking no more than procedural advantages''. It was not suggested that the plaintiffs would be prejudiced by having to sue in Greece, for juridical or other reasons. Much therefore, depended upon the first matter which Brandon L.J. said a court may take into account, namely in what country the evidence on the issues of fact is situated or more readily available, and the effect of that on the relative convenience and expense of trial as between the two courts.

44. The judge observed that the Hague Rules applied to all the bills of lading. Questions of seaworthiness might arise under Article 3, and fault or privity on the part of the defendants under Article 4. Thus, an important evidential role would be played by the management of Pleiades, particularly its technical and operations management and staff. The vessel's records would also be required. These witnesses and documents were, of course, in Piraeus in Greece. Further, some at least of the vessel's crew during the voyage in which the casualty occurred would be required as witnesses. They were Greek speaking. It had been suggested that it would be more appropriate for them to give their evidence in their home port and in their own language.

45. The judge then remarked that the crew would be likely be employed at sea when the action came on for trial. As to arrangements for, and the expense of, bringing them to court, Hong Kong was no less appropriate than Greece.

46. The judge then referred to the two different forms of bill of lading involved. The bills covering the steel bars did not include a jurisdiction clause. Further, the sellers, the consignees and the insurers of the bars, all had Hong Kong addresses. The evidence seemed to him to suggest that the value of the damaged bars was approximately US$3 million. [Counsel agree that this was a considerable over estimate.] The claims by those particular cargo owners, therefore, would hot be insignificant.

47. The judge continued his judgment by citing passages from the speech of Lord Goff in Spiliada Maritime Corporation v. Cansulex Ltd. [1987] AC 460 (at p.477) and of Lord Keith in Rockware Glass Ltd. v. Macshannon [1978] AC 795 (at p.829) which had been relied upon by Mr. Thomas for the proposition that a distinction could be drawn between a plaintiff who was forum shopping and one who had some connection with the jurisdiction in which he had instituted his action, so that in the latter case, the burden on the defendant was heavier. The judge expressed the view that there was no significance in this. The fact relied upon was simply one of the factors to be taken into account in favour of the plaintiff, in deciding whether or not another clearly more appropriate forum had been established. However, he felt that he did not need to decide that point because he was satisfied that he could not in effect "partition off" the plaintiffs claiming under the steel bills, and deal with them on principles different from the cotton cargo owners. He was obliged to deal with the case as a whole on Eleftheria principles.

48. In the judge's view, the steel cargo owners were a powerful factor in favour of the plaintiffs generally. There were the Hong Kong addresses; the steel cargos had been surveyed in Hong Kong, so that the witnesses as to damage and loss were in this jurisdiction. Yet, in order to avoid duplication of action (against which he felt the court must firmly set its face), it would be necessary for those plaintiffs to commence a fresh action in Greece if the proceedings against the cotton cargo owners were stayed.

49. The judge went on to recall that 22 of the  "cotton plaintiffs" had Hong Kong addresses. There was a survey of the vessel carried out here, but the important survey was the one carried out in Singapore for their cargo and for the cargo belonging to the 35 plaintiffs with addresses in Taiwan. All this, said the judge, added up to a substantial bogy of evidence coming from the Far East which could more easily and conveniently be assembled in Hong Kong rather than in Greece. As to the two fire experts, apparently from London, it might be marginally easier for them to attend court in Greece rather than Hong Kong, but he thought there was little in it. There might also be witnesses from South America to give evidence as to the loading of the cargo. It seemed to be immaterial whether they had to attend court in Greece of Hong Kong.

50. The learned judge concluded his judgment as follows:

"I come then to my conclusion. I must, of course, give full weight to the prima facie case for a stay, having found the cotton cargo owners as least to be in breach of their agreement by commencing proceedings in Hong Kong. There is at least one substantial factor for and one against the stay. For the stay, there is the heed to call witnesses and produce documents from Pleiades' office in Piraeus. Against the stay is the position of the steel cargo owners, where Hong Kong addresses and substantial claims are concerned, and their heed to call witnesses from Hong Kong. Added to this is what I will call the Hong Kong and Far East connection, which is exemplified by the plaintiffs who have addresses in Hong Kong and Taiwan, and the witnesses who will have to be called from these two places as well as Singapore. In my judgment, therefore, the plaintiffs have discharged the burden which lies upon them and established good cause way their action should continue in Hong Kong. I exercise mydiscretion in their favour. Accordingly, I dismiss the defendants' summons."

 

51. I mention here that Mr. Sussex, for the defendants (he did not appear in the Court below) submitted that it was the right and duty of this Court to exercise its own discretion afresh in respect of the application for a stay (see e.g. The El Amria, p.127 col. 2) because the judge had erred in law in "dealing with the case as a whole or Eleftheria principles." Mr. Thomas has not invited this Court to uphold judge's exercise of discretion upon the usual principles and has agreed that we must exercise our own discretion anew for broadly the same reasons.

52. It is common ground (1) that if the exclusive jurisdiction clause were contained in bills of lading covering all the cargo so that all the plaintiffs were contractually bound by it, the application for a stay would fall to be decided upon the principles set out in The Elefherid, re-stated and applied in The El Amria, and (2) that if none of the bills of lading contained such a clause, the principles which govern the Court's discretion are those set out in The Spiliada[1987] A.C. 460.

53. Counsel appearing before us on this appeal, who have (if I may say so) great experience in these matters, tell us that these proceedings raise a point which has not hitherto featured in any reported case - what principles should the Court apply in the exercise of its discretion in deciding an application to stay an action brought in Hong Kong by a number of cargo-owners who, although they each have their separate causes of action arising out of facts common to all, and individual claims for loss and damage (so that they could have instituted separate proceedings) have elected to join together as co-plaintiffs when some, but not all of them, were parties to contracts of carriage on "CONLINEBILL" terms with an exclusive foreign jurisdiction clause?

54. The authorities exemplified by The Elefheria and the E1 Amria show that the Court will usually enforce an exclusive jurisdiction agreement and it is the plaintiffs who must show strong reasons (or "a strong cause") why a stay should be refused. Broadly speaking, the Spiliada approach, where a foreign jurisdiction clause is not present, is to answer the question "whether there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably for the interests of all the parties and the interests of justice" (and see The Adhiguna Meranti [1987] HKLR 904). The burden generally is on the defendant.

55. I do not think it is necessary further to examine the differences between the principles laid down by the two lines of authority. Mr. Thomas has frankly, and helpfully, conceded that if his submissions about the validity and efficacy of the jurisdiction clauses do not find favour with the Court, and if only bills of lading containing the clause featured in the case, he would not feel able to argue against a stay. Mr. Sussex was not prepared to make any concession the other way (I am not suggesting he should have done so) but I will say, without more, that had the application for the stay been in respect only of the claims in relation to the steel bars covered by the 4 "CONGENBILLS", and the stay had been refused by the judge on the material before him, I would have thought that an appeal against the exercise of his discretion would have been hopeless.

56. The defendants say that the judge should not have assimilated the principles applicable to an application for a stay where there is a foreign jurisdiction clause to those which should be applied to such an application based on the forum non conveniens ground. They say that since the former,(The Eleftheria) principles had no application to two of the plaintiffs (there being no exclusive jurisdiction clause binding them) the judge should first have applied the Eleftneria principles in respect of the 85 other plaintiffs to determine provisionally whether, on such principles, the plaintiffs had established "strong cause" why their action in Hong Kong should not be stayed. Having prima facie decided such question, the judge should then have considered whether the action instituted by the two steel bars plaintiffs ought to be stayed applying the principles laid down in The Spiliada, taxing into account all the circumstances, including any provisional decision to stay the action brought by the 85 plaintiffs in breach of the exclusive jurisdiction clause. It is submitted that the judge should then have come to a final decision regarding the disposition of the action as a whole.

57. The defendants contended that if the judge had approached the matter in this way, he ought to have held that there was no basis for allowing the 85 "cotton bales" plaintiffs to proceed in Hong Kong in breach of contract and that this, taken together the evidence as a whole, made the Greek Court at Piraeus clearly and distinctly the more appropriate forum in which the action as a whole could most suitably be tried in the interests of all the parties and for the ends of justice.

58. The defendants also say that in any event, although the judge purported to apply The Eleftheria principles, he had not applied them correctly, because the evidence as a whole in favour of permitting the plaintiffs to continue their action in Hong Kong was insignificant and incapable of discharging the nature of burden imposed on a plaintiff by those principles.

59. On behalf of the plaintiffs, it is argued that the correct starting point for the judge was to consider the position of the plaintiffs who had the steel cargo claims to which no jurisdiction clause applied. Since there would have been no proper basis, on the evidence, for ordering a stay in relation to the steel claims, the cotton claims ought to be allowed to continue to be litigated in Hong Kong, despite the existence of the jurisdiction clause because it would clearly be undesirable to have two trials in two countries, rather than one trial in one country.

60. The plaintiffs suggest that the following "policy considerations" support the submission that such a single trial should take place in Hong Kong rather than in Greece:

61. Mr. Thomas said that as a matter of principle it would be quite wrong if the fate of claims properly brought in Hong Kong were allowed to depend upon the fact that other claims had been brought in breach of contract, and would have been stayed, had they been the only claims. He points out that there could be nothing more reasonable than a decision by consignees of goods damaged on a voyage to bring their action in the jurisdiction of the port of discharge. He suggests that it would be an unprecedented extension of the The Spiliada principles were the Court to deprive plaintiffs of their right to sue in their natural forum simply because of the terms of contracts made by others. The defendant shipowners should not be allowed to take advantage of the fact that some bills stipulated a particular forum when other bills they had issued contained no such stipulation thus exposing them to the ordinary consequences.Mr. Thomas submitted that the appropriate forum in Spiliada terms for a composite trial was Hong Kong and that it would not be fair to stay the action to suit the preference of the defendants. In so far as the jurisdiction clauses were concerned, those stipulations were only a prima facie ground for a stay.

62. I wish to say here that although some argument was addressed to us on this Court's power to stay the claims of some of the plaintiffs and not of others (e.g. the Court could, it was suggested, order a stay of only the cotton cargo claims, to which the jurisdiction clause would be relevant, permitting the steel cargo claims to continue to be litigated in Hong Kong) I, for my part, do not consider that it would be right to contemplate disposing of the appeal before us in that way. It seems clear enough that no such suggestion was made to the judge. As the parties to this action are presently constituted, and in the light of the order sought from the judge (and from this Court before we allowed a late amendment to the Notice of Appeal) I propose to approach the issues before us upon the basis that this Court should decline to exercise any discretion it may have to make an order the undesirable effect of which would be that separate trials would be held in Hong Kong and in Greece.

63. I will not be so presumptuous as to attempt to lay down general guidelines for the exercise of the Court's discretion where an application for a stay is made in circumstances such are present here. Ultimately, with the assistance of such guidance as the authorities are able to offer, the task of the Court, in exercising its discretion, must be to weigh in the balance the factors shown by the evidence for and against a stay and take into account all the circumstances of the case.

64. I do not for one moment suggest that the Court should play a kind of "numbers game", but it seems to he a most important factor in this case (once it is decided that making an order which results in separate trials is not the appropriate solution) that no less than 85 of the 87 plaintiffs were parties to the exclusive jurisdiction clause contained in 65 of the 69 bills of lading and their claims, as it happens, represent 87% of the total value of the claims. Their claims, had they stood alone, would . inevitably have been stayed. The other two plaintiffs have chosen (very sensibly, no doubt) to throw their lot in. with their fellows. All these, in my judgment, are powerful factors pointing to Greece, more particularly so, since the choice of that jurisdiction was a perfectly sensible one by the Greek owners residing in Greece, and not a capricious. or arbitrary choice. Nor is there any suggestion that the defendants are, by their application, only seeking procedural advantages, or that the plaintiffs with the steel cargo claims would be prejudiced in any way by being deprived of a personal or juridical advantage if the jurisdiction clause is enforced.

65. I am also of the opinion that since a fire caused the damage out of which these claims arise, the most pertinent evidence is likely to concern the organisation and management of the operation of the "Frinton" by the management in Greece (see the observations of Viscount Haldane L.C., in Lennards Carrying Company Ltd. v. Asiatic Petroleum Company Ltd. [1915] AC 705, at p.713), because the Hague Rules, which are also applied in the Greek jurisdiction, provide by Article IV r.2(b) that "Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from ...... (b) Fire, unless caused by the actual fault or privity of the carrier.

66. After considering the factors said by the plaintiffs to point to Hong Kong as the appropriate place for the trial of the action, and giving due weight to the very important factor that the action was instituted here as of right, in my view, the defendants have discharged the burden (I have assumed it is ultimately upon them in the circumstances of this case) of showing that Greece is an available forum plainly more appropriate than the Hong Kong forum, and where the action can more suitably be tried "for the interests of all the parties and the ends of justice". I cannot accept that it would be unjust to the plaintiffs to confine them to their remedies in another jurisdiction. The balance of factors seem to me to be strongly in favour of the defendants.

67. I have reached the conclusion, therefore, that it would be fair and just that a stay be granted. I would therefore allow the appeal and order that all further proceedings in this action be  stayed, without prejudice to the right of the plaintiffs to commence (or prosecute or continue to prosecute) proceedings for the same or similar claims elsewhere out of the jurisdiction.'

Penlington, J.A. :

68. I have read the judgment of Fuad V.P. in draft. I agree with it and would also allow this appeal.

69. It seems to me clear that on the evidence before the judge the defendant's principal place of business was in Greece. I am also of the view that within the context of a standard clause in a bill of lading it was reasonably easy for a claimant cargo owner to ascertain where that place of business was. It could not by any process of reasoning be Liberia and clearly while charters were fixed in London they had to be approved in Greece. All the other business activities involved in the management of the "Frinton" were carried out in Greece and I have no doubt that was the owner's principal place of business. Mr. Thomas has endeavoured however to show that even if that was so it was not readily ascertainable and, according to Mr. Voutsinos, the Greek Courts would not then give effect to the clause. He refers to well known shipping directories which give the defendant's office as the London office of P.O.S.

70. The phrase "readily ascertainable" is one used by the Greek legal experts and it should not be considered as if it was a statutory or contractual term. In the context here I think it would mean no more than could a diligent claimant have found out by making reasonable inquiries where the defendant's principal place of business was. I am satisfied that here such inquiries would have shown that it was in Greece.

71. That being so it also seems to me that as the great majority of the cargo owners can rely on the jurisdiction clause it would be wrong to force them to litigate in Hong Kong. Mr. Sussex has suggested that so far as the defendant is concerned it does not rule out litigation in both Hong Kong and Greece but that was not an option put before the judge below and the plaintiffs who are the owners of the steel bars have themselves joined in this action with the owners of the cotton. If the claims in respect of those cotton vales are to be litigated in Greece it seems to me that on Spiliada principles there can be no doubt that the other claims should be also heard there.

Barnes, J.:

72. I agree with Fuad, V.-P., that there is a valid and effective jurisdiction clause, that the evidence shows that the principal place of business of the Defendant was, and is, in Piraeus and that, accordingly, the effect of that clause is that 85 of the 87 plaintiffs in this action "contracted that disputes arising between them would be decided in the Greek courts, applying Greek law".

73. It is common ground that, once it is held that those 85 plaintiffs so contracted, the question which then arises is one of general importance involving a novel point. In this written outline of the respondents' submissions on appeal, Mr. Thomas put the question as follows: -

"The principles governing the exercise of discretion in the case of those who sue in breach of contract are set out in The Eleftheria ([1969] 1 Lloyd's Rep. 237) and The El Amria [1981] 2 Lloyd's Rep. 119). The principles governing the exercise of discretion in the case of the others are set out in Spiliada [1987] A.C. 460). What approach should the Court apply to the application for stay of the various claims when neither party seeks separate trials in Greece and in Hong Kong?"

 

74. The principles, as set out in The Eleftheria and The E1 Amria, are as follows: -

75. The principles, as set out in Spiliada, are as follows: -

"(a)     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, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e., in which the case may be tried more suitably for the interests of all the parties and the ends of justice; (b) the legal burden of proof is on the defendant, but the evidential burden will rest on the party who asserts the existence of a relevant factor; (c) the burden is on the defendant to show both that [Hong Kong] is not the natural or appropriate forum, and also that there is another available forum which is clearly or distinctly more appropriate than the [Hong Kong] forum; (d) the court will look to see what factors there are which point to the direction of another forum, as being the forum with which tae action has the most real and substantial connection, e.g., factors affecting convenience or expense (such as availability of witnesses), the law governing the transaction, and the places where the parties reside or carry on business; (e) if at that stage the court concludes that there is no other available forum which is clearly more appropriate it will ordinarily refuse a stay; (f) if there is another forum which prima facie is clearly more appropriate the court will ordinarily grant a stay unless there are circumstances by reason of which justice requires that a stay should not be granted, and, in this enquiry the court will consider all the circumstances of the case. But the mere fact that the plaintiff has a legitimate personal or juridical advantage in proceeding in [Hong Kong] is not decisive; regard must be had to the interests of all the parties and the ends of justice." (Dicey & Morris, The Conflict of Laws, Second Cumulative supplement to the 11th edn., 1989, pp.28-9).

 

76. In this application, no party has made reference to any of the matters mentioned in (5) (e) and, as Fuad, V.-P., has earlier mentioned, there is no suggestion that the defendant is only seeking a procedural advantage of the kind contemplated by (5) (d) of the principles set out in E1 Amria. The remaining matters set out in the E1 Amria principles are also matters which are relevant for the purpose of applying spiliada principles. Consequently, whilst this is a "double discretion" case, the principles governing the exercise of the discretion, whether they be extracted from E1 Amria or Spiliada, focus upon factors relevant in determining whether Hong Kong or some foreign forum is the appropriate forum for the hearing of this action.  The only difference in treatment of those factors arises from the need to ensure that the burden of proof is shouldered by the party to whom each set of principles assigns it.

77. The evidence relating to those factors has been set out in the judgment of Fuad, V.-P., and I agree with the findings he makes on the basis thereof.

78. From those findings it follows that -

79. The only remaining principle to which regard must now be had is principle (f) of Spiliada. Having regard "to the interests of all the parties and the ends of justice" I cannot find any circumstance which calls for the exercise of a discretion to refuse to grant the stay which, at this stage on Spiliada principles, should "ordinarily" be granted.

80. I therefore agree with the order proposed by Fuad, V.-P.

Fuad, V.-P.:

81. In handing down these judgments allowing this appeal, we make an order nisi that the plaintiffs shall pay the defendants costs here and below.