TRAFALGAR HOUSE CONSTRUCTION (ASIA) LTD. AND ANOTHER v. THE OWNERS AND/OR DEMISE CHARTERERS OF M.V. "THORSCAN"(NETHERLANDS ANTILLES FLAG)

IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL

1998, No. 148
(Civil)

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J U D G M E N T

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Mortimer V-P :

1. This is a defendant's appeal against Yuen J's refusal to stay the proceedings on 18th May 1998. The defendant's summons to stay the proceedings relying upon an exclusive law and jurisdiction clause in favour of the Netherlands was issued in July 1996. The defendant applied to amend the summons in favour of the Netherlands Antilles. This application was also refused.

Background

2. The two plaintiffs are companies incorporated in England and are registered in Hong Kong. The 1st plaintiff was a sub-contractor for steelwork used in the construction of the extension to the Hong Kong Convention and Exhibition Centre. The 2nd plaintiff was the 1st plaintiff's sub-contractor. The 2nd plaintiff sub-contracted the fabrication and delivery to Hong Kong of the steelwork to Atlantic Gulf and Pacific Company (AGP) of Manila. The 1st plaintiff was liable to indemnify the main contractor for claims consequent upon any breach by the 1st plaintiff. The contracts were time sensitive.

3. The action is in rem. The defendant is the owner of the M.V. "Thorscan" (the vessel).

4. AGP entered a time charterparty for the vessel and by 29th February 1996, she had made three shipments of steelwork to Hong Kong under the contracts. On 29th February 1996, AGP shipped another instalment of steel.

5. Clause 3 of the Bill of Lading provided:

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

6. On 29th February 1996, the plaintiffs received a 'Notice of Lien' from the agent of the owners. The agent contended that AGP was in default under the charterparty and the owners exercised rights of lien against the cargo under Clause 18 of the charterparty for any 'freights' due from the plaintiffs to AGP.

7. However the vessel sailed with the cargo and should have arrived in Hong Kong on 3rd March 1996. She failed to arrive and remained for the time being outside Hong Kong waters. On 5th March 1996, the vessel owner exercised a lien on the cargo for US$1.249 million - the full amount of the time charter said to be outstanding.

8. In order to secure a release of the cargo, the plaintiffs provided a guarantee for that sum under protest. Consequently on 10th March 1996, the vessel entered Hong Kong and discharged the cargo.

9. On 18th April 1996 the guarantee was paid but on 6th June 1996, the plaintiffs issued these proceedings against the vessel claiming:

"(1) that the defendant was not entitled to exercise a lien over the cargo or to delay its discharge;

(2) repayment of the US$1.249 million paid under the guarantee; and

(3) damages for delay in the arrival of the cargo including not only additional costs to the 1st and 2nd plaintiffs, but also to any damages for which they may be liable for delay incompletion of the Convention Centre."

10. On 7th June 1996, the plaintiffs arrested the vessel, and the following day prepared the draft guarantee for the defendant to sign to release the ship. The plaintiffs asked for an agreement to submit to the jurisdiction of the Hong Kong court. The defendant did not agree but on 18th June 1996, replied by fax as follows:

"As you are no doubt aware, according to the bill of lading disputes arising thereunder are to be governed by the law and to be decided in the jurisdiction of the principal place of business of the carrier. The carrier is, of course, Mammoet Transport (Antilles) NV which is based in the Netherlands Antilles. Disputes are, therefore, to be resolved according to the law of and in the Netherlands Antilles.

As a compromise, we are instructed to attempt to agree with you that law and jurisdiction should be that of the Netherlands. Failing such an agreement, we are instructed to apply for a stay of the current proceedings in favour of the Dutch Antilles.

In order to achieve the speedy release of the vessel, and failing agreement to law and jurisdiction of the Netherlands, we are instructed to offer security in the terms that it is to respond to the law and jurisdiction of a 'competent court'.

We would be grateful if you could kindly take urgent instructions with regard to the proposals above. We are concerned to have the vessel released from arrest as soon as possible and so would be particularly grateful if you would kindly inform us as to our proposal to agree 'competent court' to enable this even if an agreement as to a specific law and jurisdiction cannot be reached in the short term."

But the plaintiffs were not prepared to agree that the dispute should be heard in the Netherlands and on 21st June 1996, the vessel was released on a bail bond.

11. In the meantime, on 20th June 1996, the defendant issued proceedings in Amsterdam for a declaration that under Clause 3 of the Bill of Lading, it was entitled to exercise a lien over the cargo and alleged that the carrier's principal place of business was the Netherlands. On 16th July 1996, the defendant started limitation proceedings in Rotterdam.

12. The summons to stay the Hong Kong proceedings, the subject to this appeal, was issued by the defendant on 18th July 1996, but was adjourned in October 1996 by Waung J to await the decision of the Amsterdam Court on the exclusive jurisdiction clause. The summons asked for a stay of the Hong Kong proceedings in favour of the Netherlands - not the Netherlands Antilles.

13. The Amsterdam Court did not make its decision until December 1997. It held itself incompetent to deal with the claim as the defendant's principal place of business was in the Netherlands Antilles. In the reasons it was pointed out that the principal place of business was not specified in the Bill of Lading. In Dutch Law the defendant had a duty to advise the plaintiffs of the place on request and it had done so in the fax of 18th July 1996.

14. The defendant then pursued the summons to stay but applied to amend it in favour of the Netherlands Antilles. Yuen J refused to amend the summons but heard the case de bene esse, as if the application was for a stay in favour of the Netherlands Antilles. Having regard to her decision, she refused to amend the summons and dismissed it.

Issues

15. There were two issues before the judge:

"(1) Had the defendant waived its right to seek a stay in favour of the Netherlands Antilles by commencing proceedings in the Netherlands? and

(2) In any event, should the Court refuse a stay applying the principal in the El Amria [1981] 2 LLR 119?"

The issues on appeal

16. The issues before this Court are:

"(1) Whether the judge was correct in holding that the owners had waived their right to apply for a stay on the exclusive jurisdiction clause in favour of the Netherlands Antilles having taken the proceedings in Amsterdam and Rotterdam?

(2) Whether she wrongly exercised her discretion under the EL Amria principles by taking into account the evidence which she said would be available in Hong Kong? and

(3) If she exercised her discretion wrongly, whether this Court will also exercise its discretion in the owner's favour and stay the proceedings?"

Waiver

17. The judge held that the defendant had waived its contractual right to litigate only in the Antilles by choosing to litigate in the Netherlands (Amsterdam) which she held was "consistent only with choosing not to litigate exclusively in the Antilles."

18. She so held because the determination of the principle place of business was a matter of mixed law and fact. The Bill of Lading did not expressly name the principal place of business but the disclosure by the defendant of the Antilles as the principal place of business in the 18th June 1996 fax was significant in the determination of the point, and was consistent with the fax.

19. Mr Kerr, for the defendant, submits that it never made any election or choice between two or more contractual rights such as would be necessary to lead to a waiver. The defendant, he points out, has consistently tried to enforce the exclusive jurisdiction clause in the Bill of Lading. He said that the averment in the fax that the Antilles was the principal place of business and the application for a stay in favour of the Netherlands in these proceedings together with the taking of proceedings in Amsterdam were consistent because in each case the defendant sought to rely upon and enforce the same exclusive jurisdiction clause. He submits that this is so even though the defendant was mistaken as to the legal effect of the clause when action was taken in Amsterdam.

20. But, as Mr Fok for the plaintiffs points out, there is no such thing as "a floating clause" in a contract. The meaning of the principal place of business was established at the time of the contract, and not later. See the Iran Vojdan [1984] 2 LLR 380 at 385 per Bingham J (as he then was):

"The proper law is something so fundamental to question relating to the formation, validity, interpretation and performance of a contract that it must, in my judgment, he built into the fabric of the contract from the start and cannot float in an indeterminate way until determinate at the option of one party."

The right given in the contract was to litigate in the Antilles and nowhere else.

21. Further, in The Kanchenjunga [1990] 1 LLR 391 at 399 Lord Goff said of waiver:

"In the context of a contract, the principle of election applies when a state of affairs comes into existence in which one party becomes entitled to exercise the right or not. His election has generally to be an informed choice, made with knowledge of the facts giving rise to the right. His election once made is final: it is not dependant upon reliance upon it by the other party."

22. The judge below was entitled to accept the fax of 18th June 1996 as indicating knowledge of the facts giving rise to the right to litigate in the Antilles only.

23. The bringing of proceedings in Amsterdam only two days later (20th June 1996) and the summons in this case on 18th July 1996 requesting a stay in favour of Amsterdam were acts which indicated an election not to exercise its right to litigate in the Antilles.

24. The proceedings in Amsterdam were pursued until the court there declared itself incompetent in December 1997.

25. For my part, I am unable to say that it was not open to the judge to hold that the defendant had waived its right to litigate in the Antilles. This was not simply an uncertain right to exclusive jurisdiction somewhere. The only right which could be pursued under the clause was to litigate in the Antilles.

26. The effect of bringing proceedings in Amsterdam in these circumstances can be tested by asking the question whether the defendant could have asked for a stay in these proceedings in favour of the Antilles during the currency of the Amsterdam proceedings? Of course it could not. The reason is that the right had been waived.

The application to stay the Hong Kong proceedings under the El Amria principles

27. In the event that I am wrong upon the waiver I, like the judge, turn to consider separately the appeal concerning the judge's refusal to order a stay.

28. The El Amria principles are well known. If the plaintiffs sue in the Hong Kong courts in breach of an exclusive jurisdiction clause, the Hong Kong court has a discretion whether to grant the defendant a stay but such should be granted unless there is a "strong case" for not doing so. In the exercise of this discretion all the circumstances of the case must be taken into account.

29. Although the plaintiffs contended below that they risked the prejudice of being unsecured and they faced the possibility of a claim for wrongful arrest of the vessel, these matters were resolved by appropriate undertakings from the defendant. Further, there is no question here of a risk of an unfair trial in the Antilles.

30. The judge considered whether foreign law applied and whether it was different from Hong Kong Law and concluded:

"... where legal issues are concerned, I find that the Plaintiffs have failed to persuade me that a stay should not be granted, especially since a finding of the law of the Antilles in a Hong Kong court would be a finding of fact, and not a finding of law, a distinction which affects the appeal process."

31. As to country connections the judge found that the plaintiffs had close connection with Hong Kong, but the defendant had little connection with the Antilles. If anything, this weighed against a stay.

32. There were however two matters which the judge found weighed heavily against a stay. The first was where the evidence of fact was situated and was more readily available, and the effect of this on the expense of the trial. She identified one area of importance:

"But as I see it, the area where factual evidence will be most substantial is in respect of the Plaintiffs' claim for damages - was there a delay in the Defendant's delivery of the Cargo; did that result in any delay in the Plaintiffs' performance of the sub-contract; were the Plaintiffs (or the 1st Plaintiff) liable to indemnify the Main Contractor under the terms of the sub-contract; and what is the amount for which the Plaintiff(s) would be liable."

33. The focus of Mr Kerr's attack on the judge's exercise of discretion was that she was wrong to find that evidence of the exercise of the lien was required and also wrong to assume that any evidence of a claim for delay would be advanced. He submits that no relevant claim was formulated before the judge and none has been formulated since.

34. The bulk of any evidence called will relate to the issue on delay. That on lien will be insignificant. The issue on delay is raised in the pleadings. It was not necessary for the judge to determine the viability of that issue. There can be no question that most evidence on this issue is situated in Hong Kong. Most of the witnesses and the documents will be more readily available here and a trial in the Antilles would involve the extra expense of calling that evidence in the Antilles. For my part, I do not accept that the judge was wrong to take this matter into account. Thereafter the precise weight to be given to the point was for her.

35. The second matter which weighed heavily with the judge was whether the defendant genuinely desired trial in the Antilles. Giving weight to the history of the proceedings she held that it did not. Mr Kerr seeks to challenge this finding on the basis that the defendant consistently relied on the exclusive jurisdiction clause, but with respect, even when seeking to rely correctly upon the clause in the fax, they sought agreements to trial elsewhere. There was ample material for the judge to find as she did.

Conclusion

36. In conclusion, the judge applied the right principles. She took into account those matters she ought to have taken into account. She did not take into account irrelevant matters. The weight she gave to the various factors was for her and she did not reach a plainly wrong decision.

37. For these reasons, I would dismiss the appeal on both main grounds which had been advanced. Further, I would make an order nisi that the costs of the appeal should follow the event.

Liu, J.A.:

38. The material facts are given in the judgment of my Lord, Mortimer, V.P. I need simply set out the sequence of events for identifying the different phases of litigation. On 6 June 1996, this Admiralty Action was commenced in Hong Kong. The bill of lading giving rise to the claims and cross-claims contained the following clause:

"3. Jurisdiction.

Any dispute arising under this bill of lading shall be decided in the country where the carrier has its principal place of business, and the law of such country shall apply ........". (PPOB Clause).

39. By a facsimile dated 18 June 1996, the defendant's solicitors liaised with the solicitors for the plaintiff in these terms:

"As you are no doubt aware, according to the bill of lading disputes arising thereunder are to be governed by the law and to be decided in the jurisdiction of the principal place of business of the carrier. The carrier is, of course, Mammoet Transport (Antilles) NV which is based in the Netherlands Antilles. Disputes are, therefore, to be resolved according to the law of and in the Netherlands Antilles.

As a compromise, we are instructed to attempt to agree with you that law and jurisdiction should be that of the Netherlands. Failing such an agreement, we are instructed to apply for a stay of the current proceedings in favour of the Dutch Antilles.

In order to achieve the speedy release of the vessel, and failing agreement to law and jurisdiction of the Netherlands, we are instructed to offer security in the terms that it is to respond to the law and jurisdiction of a 'competent court'.

We would be grateful if you could kindly take urgent instructions with regard to the proposals above. We are concerned to have the vessel released from arrest as soon as possible and so would be particularly grateful if you would kindly inform us as to our proposal to agree 'competent court' to enable this even if an agreement as to a specific law and jurisdiction cannot be reached in the short term." (Emphasis supplied).

This fax was, according to the judge, Madam Justice Yuen, "to suggest that the law and jurisdiction be that of the Netherlands". (Emphasis added) The defendant thereafter instituted proceedings in Amsterdam and Rotterdam. On 18 July 1996, the defendant applied by summons to stay the Admiralty Action in Hong Kong for a Dutch action in Amsterdam. A statement of claim had been filed in the Admiralty Action on 7 July 1996. In March 1998, the plaintiffs caused to be commenced a protective action in Antilles, which was a mere precautionary measure taken by the plaintiffs against possible prescription or extinction of rights. On 22 October 1996, Waung, J. adjourned the Hong Kong Admiralty Action as it was "preferable and more sensible for the question of the validity and application of the exclusive jurisdiction clause under Dutch law to be determined by the Dutch Court rather than by the Hong Kong Court." Waung, J. adjourned the defendant's application for staying the Hong Kong Admiralty Action so as to enable the Dutch Court in Amsterdam to determine "the validity and application of the exclusive jurisdiction clause under Dutch law". That, Waung, J. described as an "important question". He made no determination on the defendant's application for a stay of the Admiralty Action. Nearly 14 months later, on 17 December 1997, the Amsterdam Court declared that it lacked jurisdiction over the issues in dispute between the parties to the Admiralty Action and dismissed the Amsterdam proceedings. On 30 March 1998, the defendant had therefore to apply to amend its summons to stay in favour of the Dutch Court in Antilles instead of a stay to "the Amsterdam Court of Netherlands".

40. I should mention that at the inception of the hearing of this appeal, the defendant seeks to introduce additional evidence for the limited purpose that the Antilles action instituted by the plaintiff is in the protective docket and that the Amsterdam proceedings have still to be put an end to. The subsistence and fine details of these proceedings would have no or minimal impact on this appeal. This Court refuses the application.

41. In the defendant's pleading for the Amsterdam Court, the Dutch Court's jurisdiction was sought to be invoked "on the basis of a jurisdiction clause in the subject bill of lading provisions [so that] the District Court of Amsterdam [was] competent to hear the subject dispute, as the 'principal place of business' referred to in this clause of Mammoet Antilles [was] Amsterdam". The Amsterdam Court held that the evidence did not "lead to the conclusion that the PPOB of Mammoet Transport [was] at the office of Mammoet Shipping in Amsterdam". It is reasonably clear that the defendant sought to enforce the PPOB Clause in the Amsterdam proceedings and that therefore, the defendant could not be said to have waived the PPOB Clause on which it relied. That should be enough to dispose of the waiver contention. A party, seeking to rely on waiver, "must show a clear and unequivocal representation, by word or conduct, by the other party that he will not exercise his strict legal right ......." Chitty on Contracts, 27th Edn., p.1153, paragraph 24-006. If the defendant did not waive the PPOB Clause, as I think it did not, then clear and unequivocal evidence is hardly to be found in the context of a rarefied submission that what had been waived by the defendant was in fact its strict legal right under that PPOB Clause. In his more subtle approach to the question of waiver, the contention of counsel for the plaintiffs has to rest on the language of the facsimile dated 18 June 1996. It is argued that by that facsimile, the defendant's solicitors irreversibly laid claim to a right to litigate exclusively in Antilles and that therefore, by instituting proceedings in Amsterdam, the defendant had abandoned that right. Drawing a distinction between the PPOB Clause and the right it gave is more artificial than real. Moreover, the language of that facsimile is far from being clear. It would seem that in the fax, solicitors for the defendant asserted the principal place of business of Mammoet Transport to be, as a matter of fact, Antilles and that on the basis of that factual assertion, the PPOB Clause "suggested", so the judge understood, a link-up with Antilles and its law. It was put no higher than a "suggestion" that the defendant's right to litigate was exclusively exercisable at Antilles under its law. It was on the basis of Mammoet Transport's claimed PPOB that solicitors for the defendant made their assertion that the PPOB Clause would give Antilles exclusive jurisdiction. The corresponding legal consequence of the PPOB Clause was merely sought to be interpreted by reference to a statement of fact made on PPOB. The then asserted legal state of affairs was predicated on the factual premise that the defendant's PPOB was Antilles. The defendant changed its stance in the Amsterdam proceedings. Unless the defendant could be irrevocably held to or was estopped by its earlier factual representation, there would be nothing to prevent the defendant from "suggesting" some other legal state of affairs later on a differently assumed factual premise. The plaintiffs remained unpersuaded by the defendant's earlier factual assertion that Mammoet Transport's PPOB was Antilles. They were not misled and, in fact, they contended and won in the Amsterdam proceedings that Mammoet Transport's PPOB was in Antilles, not in Amsterdam. How is it then possible to say that the defendant clearly waived its right to litigate in Antilles under the PPOB Clause? In my view, there was no waiver; at least there was no clear and ambiguous evidence of waiver.

42. Turning to the principles in The Eleftheria [1970] P 94 as affirmed in the English Court of Appeal in The El Amria [1981] 2 LLR 119, some of the features relied upon by the judge can be faulted with others overwhelmingly in favour of a stay.

(1) Evidently, the factual issues are predominantly undisputed. If that was not fully appreciated by the judge, Mr Kerr, counsel for the defendant has reassured us that that is the case. Mr Kerr would seem to be right because the exercise of the right of lien and the subsequent communications between solicitors of the parties are largely matters of records.

(2) The case was one to be decided primarily on law, Dutch law which is different from Hong Kong law. The judge recognised that "one must start with the law of the Antilles". Unless there is good cause that the plaintiff should not be held to the Bill of Lading PPOB Clause, a stay should be granted. See The Eleftheria, supra. at p. 99H. The Antilles court is a more convenient forum in which no experts on Dutch law would need to be called. It is not claimed that the Antilles court would not provide substantial justice.

(3) Next to Amsterdam, the defendant had a closer connection with Antilles than Hong Kong, at least for its Antilles principal place of business. Bearing in mind the sequence of events, it is wrong to say that the defendant had taken no steps with a view to litigating in Antilles. The defendant had little option but to face the proceedings then in place, one at a time, after Waung, J's adjournment.

(4) The potential claim for delay by the Main Contractor hinges upon whether the plaintiffs themselves completed in time. The exercise of lien caused a delay of seven day. It has not been alleged that the plaintiff's own completion date was accordingly deferred, and the plaintiffs have yet to lead evidence on the making of a claim by the Main Contractors.

(5) For the circumstances I have referred to, it cannot be said that the defendant had no genuine desire to have a trial in Antilles. But for their subsequent view as to PPOB, they would have resorted to Antilles. The PPOB Clause provided for exclusive jurisdiction in Antilles and Dutch law. Both parties are still being bound in contract by the PPOB Clause in the bill of lading.

(6) Not only that Dutch law is best to be decided in a Dutch Court, but according to the defendant, Dutch law would give a good answer to the plaintiffs' claim founded on an exercise of a maritime lien. Any determination on Dutch law to be attempted here would be, so Waung, J. also commented and by whose comment I am impressed, undesirable and to that extent, the defendant would suffer prejudice. On the other hand, the plaintiffs have been offered an appropriate guarantee and are not expected to encounter difficulty in execution.

43. These features are all one way, in favour of a stay. The judge is plainly wrong. I would allow the appeal.

Chan, CJHC:

The background leading to the present proceedings and the defendant's summonses had been comprehensively set out in the judgment of my Lord, Mortimer VP. The issues in this appeal are whether Yuen J was wrong in holding that the defendant had waived its contractual right to litigate in the Netherlands Antilles, its principal place of business and if she was, whether she had properly exercised her discretion in refusing to grant a stay of the proceedings under the El Amria principles. It is only when her conclusions were wrong on both issues that this court has to consider whether we should exercise our discretion in her place.

Waiver

44. Counsel for the defendant submits that the learned judge was wrong on the question of waiver for two reasons. First, the judge erred in holding that there was waiver by way of election, since there could be election only when there were two mutually inconsistent options open under the contract. It is argued that the defendant did not have such options and that the only option open to the defendant was to abandon the right to rely on the exclusive law and jurisdiction clause contained in the bill of lading in question. There was, counsel says, no waiver by election. Secondly, the judge was wrong to hold that the defendant had abandoned its right under that clause. It is said that all the time, the defendant had asserted its contractual right and relied on the exclusive law and jurisdiction clause, but had mistakenly believed that its principal place of business was in Amsterdam. This erroneous perception, it is submitted, did not and should not alter the fact that it had not abandoned its right to enforce the clause.

45. The principle of waiver was explained by Lord Goff in the case of The Kanchenjunga [1990] 1 LLR 391. He said at 397:

"It is a commonplace that the expression 'waiver' is one which may, in law, bear different meanings. In particular, it may refer to a forbearance from exercising a right or to an abandonment of a right. Here we are concerned with waiver in the sense of abandonment of a right which arises by virtue of a party making an election. Election itself is a concept which may be relevant in more than one context. In the present case, we are concerned with an election which may arise in the context of a binding contract, when a state of affairs comes into existence in which one party becomes entitled, either under the terms of the contract or by the general law, to exercise a right, and he has to decide whether or not to do so. His decision, being a matter of choice for him, is called in law an election.

In all cases, he has in the end to make his election, not as a matter of obligation, but in the sense that, if he does not do so, the time may come when the law takes the decision out of his hands, either by holding him to have elected not to exercise the right which has become available to him, or sometimes by holding him to have elected to exercise it.

In particular, where with knowledge of the relevant facts a party has acted in a manner which is consistent only with his having chosen one of the two alternative and inconsistent courses of action then open to him ... he is held to have made his election accordingly.

Once an election is made, however, it is final and binding (see Scarf v. Jardine, per Lord Blackburn, at p.360). Moreover, it does not require consideration to support it.

In the context of a contract, the principle of election applies when a state of affairs comes into existence in which one party becomes entitled to exercise a right, and has to choose whether to exercise the right or not. His election has generally to be an informed choice, made with knowledge of the facts giving rise to the right. His election once made is final; it is not dependent upon reliance on it by the other party."

46. It is clear from what Lord Goff said that for the principle of waiver to operate, at least in the context of the present case, it must be shown that (1) a party has a right under a contract or by operation of law, (2) he knows of the existence of the right or the facts giving rise to such right, and (3) he has, by conduct, clearly and unequivocally abandoned his right or indicated that he is not exercising such right. Where he has a number of alternative and inconsistent courses of action open to him, his right can be waived or abandoned by making an election. If he chooses one particular course of action, he can be taken to have waived his right or rights under the other courses of action. Where, instead of having several alternative inconsistent options, he has a right under a contract or by operation of law, such right can be waived by his choosing not to exercise it. In one sense, it can be said that he has also made an election by choosing one of two options : the option to exercise the right and the option not to do so.

47. In my view, waiver does not operate only where a party has two or more alternative inconsistent options available to him, but can also operate in other situations. Whether there is a waiver depends on what a party has done or what he has failed to do in circumstances where he is expected or obliged to do something to assert or exercise his right. If what he has done or failed to do amounts to a clear and unequivocal indication that he has chosen not to pursue or exercise his right, then in law, he is taken to have waived his right. The choice of one option rather than the others merely illustrates his intention to waive his rights under the other options.

48. The bill of lading in question contains an exclusive law and jurisdiction clause which provides that any dispute shall be decided in a country where the defendant has its principal place of business and the law of that country shall apply. The defendant, counsel submits, has all along relied on the exclusive law and jurisdiction clause and insisted on litigating in its principal place of business. With respect, such assertion is incomplete without the defendant also asserting what its principal place of business is. The parties to the contract as evidenced by the bill of lading had chosen to make an express provision for the proper law and forum by reference to the defendant's principal place of business. That place should be clearly stated in or easily ascertainable from the contract. If it is not so clearly stated or easily ascertainable, the defendant has to clearly assert what its principal place of business is when it purports to rely on the clause.

49. In my view, the right under the exclusive law and jurisdiction clause is a right to litigate exclusively in a particular place, the defendant's principal place of business. It is not helpful merely to say that the defendant relies on its right under that clause because without more, it is not readily clear what this entails. If the clause had specified a particular place but the defendant had gone to another place, that would not be reliance on the clause at all. That would indeed be acting contrary to the clause. On the other hand, if the clause, as in the present case, has not specified which place is its principal place of business, it does not mean that the defendant can simply state any place as its principal place of business and litigate in that place and still allege that it is relying on the exclusive law and jurisdiction clause. The principal place of business is the place which, although not clearly stated in the clause, had already been fixed at the time of contract. The parties to the contract and their privies are entitled to know what the proper law is which governs their respective rights and obligations and where the forum is when they come to litigate their disputes. If the defendant, with full knowledge of the relevant facts, has by its conduct clearly chosen to litigate in a place other than its actual principal place of business at the time of the contract, then the defendant can be taken to have abandoned its right to litigate exclusively in the correct principal place of business. The defendant should be in a position to know and to assert clearly where its own principal place of business is. It does not lie in its mouth to say that it has always relied on the exclusive law and jurisdiction clause, and yet asserted a different place and went to that place to litigate the disputes between the parties. This is not relying on the clause.

50. In the present case, it is a fact that the defendant's principal place of business is the Netherlands Antilles. This is also the ruling of the Amsterdam Court. Soon after the plaintiffs commenced the present proceedings, the defendant's solicitors sent a fax to the plaintiffs on 18 June 1996. The fax in question is in the following terms :

" As you are no doubt aware, according to the bill of lading, disputes arising thereunder are to be governed by the law and to be decided in the jurisdiction of the principal place of business of the carrier. The carrier is of course, Mammoet Transport (Antilles) NV which is based in the Netherlands Antilles. Disputes are, therefore, to be resolved according to the law of and in the Netherlands Antilles.

As a compromise, we are instructed to attempt to agree with you that law and jurisdiction should be that of the Netherlands. Failing such an agreement, we are instructed to apply for a stay of the current proceedings in favour of the Dutch Antilles.

In order to achieve the speedy release of the vessel, and failing agreement to law and jurisdiction of the Netherlands, we are instructed to offer security in the terms that it is to respond to the law and jurisdiction of a 'competent court'.

We should be grateful if you could kindly take urgent instructions with regard to the proposal above. We are concerned to have the vessel released from arrest as soon as possible and so would be particularly grateful if you would kindly inform us as to our proposal to agree 'competent court' to enable this even if an agreement as to a specific law and jurisdiction cannot be reached in the short term."

51. In this fax, the defendant made two assertions. First, it was entitled to insist on its right under the exclusive law and jurisdiction clause and litigate in its principal place of business. Secondly, its principal place of business was the Netherlands Antilles. The effect of these assertions is that the defendant was clearly saying that it has a right to litigate exclusively in the Netherlands Antilles. These assertions were made at the time when the parties were entering into litigation. It is reasonable to assume and the plaintiffs were entitled to assume that these assertions were made by the defendant's legal representatives in the knowledge of the full facts and were accurate.

52. In the same fax, the defendant also made two propositions. First, notwithstanding the exclusive law and jurisdiction clause, it was prepared to agree to litigate in Amsterdam. Secondly, to enable an early release of the vessel, it was prepared to agree to litigate in a competent court. These propositions clearly showed that the defendant was willing to litigate in a place other than its principal place of business, the Netherlands Antilles.

53. In the event, the parties failed to reach agreement with regard to the governing law and the proper forum. Two days after this fax, the defendant issued proceedings in Amsterdam, alleging, amongst other things, that its principal place of business was the Netherlands. Within a month, the defendant also started limitation proceedings in Rotterdam. Another two days later, the defendant issued the summons to stay the present proceedings in Hong Kong in favour of Dutch law and the Amsterdam Court, purportedly pursuant to the exclusive law and jurisdiction clause. Meanwhile, the plaintiffs commenced a protective action in the Netherlands Antilles in case the Hong Kong proceedings were stayed and its cause of action might by then be statute barred. This protective action was, according to the law of that place, placed in a court docket, but could be revived either by the plaintiffs or the defendant at any time. The defendant did not take any steps to revive it. Even after the Amsterdam Court had held that the exclusive law and jurisdiction clause was not valid under Dutch Law and ruled that the defendant's principal place of business was the Netherlands Antilles, the defendant did not see fit to revive the protective action in the Netherlands Antilles until 3 months later.

54. In my view, the fax dated 18 June 1996 showed clearly that the defendant's lawyers were well aware of the defendant's right to litigate exclusively in the Netherlands Antilles under the exclusive law and jurisdiction clause and that they would be agreeable to litigate the dispute elsewhere. However, following from that fax, they did not start or pursue any proceedings in the Netherlands Antilles but instead commenced litigation elsewhere - Amsterdam and Rotterdam - and applied to stay the plaintiffs' proceedings in Hong Kong in favour of Amsterdam. It is true that in these other proceedings, they asserted that the defendant was relying on the exclusive law and jurisdiction clause and that its principal place of business was the Netherlands. But such conduct and assertion are inconsistent with the assertions in their fax dated 18 June 1996 and the defendant's right to litigate exclusively in the Netherlands Antilles. It is not enough for the defendant to assert that it has always relied on the exclusive law and jurisdiction clause and yet commenced proceedings in a place which is actually not its principal place of business and which is different from what it had earlier asserted to be. The right the defendant had under the contract as evidenced by the bill of lading in question is not a right to rely on the clause but a right to litigate exclusively in the Netherlands Antilles. What the defendant had done was totally inconsistent with this right. It had elected to litigate in a place other than the Netherlands Antilles which it had asserted to be its principal place of business at the time when it started to engage itself in litigation with the plaintiffs. Having failed in some other places, the defendant should not be allowed to change. For if it were allowed to do so, what is there to stop the defendant from changing yet again after it had failed in a second place? The defendant had rightly or wrongly made an election and that is final. It does not depend on any reliance by the plaintiffs.

55. It is alleged that there was a mistaken belief on the part of the defendant's lawyers as to the correct principal place of business of the defendant. There is however no evidence explaining the sudden change of stance, how the different belief came about, whether it was indeed a mistaken belief and how such mistake had arisen. If the question of the proper law and forum had been ventilated before Waung J instead of having it deferred until after the decision of the Amsterdam Court, there would not have been an application to amend the summons to stay the present proceedings in favour of the Amsterdam Court and if the Hong Kong court had decided on this question then, it would not be open to the defendant now to apply again to stay the proceedings in favour of the Netherlands Antilles on the ground that they had made a mistake and chosen the wrong place.

56. For these reasons, I take the view that the learned judge had come to the correct conclusion in holding that the defendant had waived its right to litigate exclusively in the Netherlands Antilles. She was right to refuse an amendment to the stay summons and to dismiss the summons. This is sufficient to dispose of the present appeal.

Application of the El Amria principles

57. Having dealt with the issue of waiver, the learned judge went on to apply the El Amria principles and exercised her discretion not to grant a stay of the proceedings. In doing so, she had considered carefully a number of factors and balanced them against each other before coming to her conclusion. The factors which the judge had considered can be summarised as follows:

(1) factual matters - the judge found that the bulk of factual matters arose in or near Hong Kong. Having regard to the evidence which would have to be adduced and the witnesses who have to be called, she held that this factor was clearly in favour of having the trial in Hong Kong;

(2) legal issues - the judge held that having regard to the legal issues which might be involved in the trial, the Antilles court would have an advantage over the Hong Kong court;

(3) connection with Hong Kong - the judge found that the plaintiffs are connected to Hong Kong having their business here and having taken part in a substantial project here. On the other hand, the defendant does not have much connection with the Netherlands Antilles;

(4) no intention to litigate in the Antilles - the judge held that the defendant never had any genuine intention to litigate in the Antilles; and

(5) no prejudice - the judge found that there was no prejudice to either party whether the trial was to be conducted in Hong Kong or the Antilles.

58. It is not contended by the defendant in this appeal that any of the above are irrelevant or that the learned judge had failed to consider any other relevant factors. Counsel raised a number of complaints. In respect of (1), counsel submits that the judge had erred on two matters. First, the facts surrounding the exercise of the lien on the cargo was not in dispute and were conceded by the defendant. There was, counsel argues, no need for the plaintiffs to prove those facts. Secondly, the judge relied too heavily on the possibility of a claim for damages by the plaintiffs' main contractor for the delay arisen from the defendant's exercise of lien on the cargo. Such claim was non-existent and the judge should not have taken that into account. In my view, the judge was right to point out that while there might be a concession by the defendant on the facts surrounding the lien, the need to call evidence to prove those facts could not be completely ruled out. With regard to the plaintiffs' alleged claim that they would be held liable to their main contractors because of the delay in the delivery of the cargo, it may be that at the present stage, since nothing had happened for almost two years after the completion of the Exhibition Centre Extension, the possibility of such a claim is rather remote. At least, the plaintiffs have not adduced any evidence of such a claim. But at the time of the hearing before the judge and based on the material before her, I cannot say that the judge's ruling that this potential claim could not be disregarded must be wrong.

59. In respect of (2), counsel argues that the judge had failed to place sufficient weight on the advantage of the Antilles Court to deal with Dutch Law which would govern the contract in question. It is noted that there was conflicting evidence from the experts as to the certainty of the defendant taking advantage of certain parts of the Dutch Law as a defence to the plaintiffs' claim. In respect of (4), it is alleged that the judge had failed to appreciate that the defendant had all along genuinely wished to litigate in its principal place of business but had mistakenly thought that it was in the Netherlands. The learned judge had dealt with this point in her judgment and came to the view that the defendant never had any genuine intention to litigate in the Antilles.

60. In applying the principles of El Amria, the judge clearly had a discretion in deciding whether to grant a stay of the proceedings in Hong Kong in favour of Amsterdam or the Antilles. It is quite clear that she had considered all the relevant factors including those set out above. How much weight she attached to each of these factors is a matter for her. Unless she was clearly wrong, an appellate court would be slow to interfere with her assessment an discretion. In the light of the lack of evidence even at this stage from the plaintiffs that there is any claim by their main contractor, it may be that another judge might have attached greater weight to this factor and exercised his discretion in a different way. But it cannot be said that the learned judge had misapplied the El Amria principles or had not properly exercised her discretion. That being the case, I do not think we should interfere with her conclusion.

Conclusion

61. For the reasons given above, I would dismiss the appeal. I would also make an order nisi that the defendant do pay the plaintiffs' costs of this appeal.

Chan, CJHC:

62. The result is, therefore, that by a majority the appeal is dismissed with an order nisi that the defendant shall pay the plaintiffs' costs of the appeal.