CACV000195A/1989
IN THE COURT OF APPEAL
1989, No. 195
(Civil)
BETWEEN
THE OWNERS OF CARGO LATELY LADEN ON BOARD THE SHIP OF VESSEL "FRINTON"
Plaintiffs
AND
THE OWNERS AND/OR DEMISE CHARTERERS OF THE SHIP OR VESSEL "FRINTON"
Defendants
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Coram: Fuad, V.-P., Penlington, J.A. & Barnes, J.
Date of Hearing: 1 November 1990
Date of Judgment: 1 November 1990
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JUDGMENT
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Fuad, V.-P.:
1. On 6th July this year, this Court as presently constituted handed down a judgment allowing an appeal from the decision of Barnett, J. dated 4th December 1989 whereby he dismissed a summons by the defendants for an order that the proceedings instituted against them by a number of cargo owners be stayed in favour of the Courts of Greece under RSC O.12, r.8. We allowed the appeal and ordered that all further proceedings in the action in Hong Kong 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.
2. Under Rule 2 (b) of the Order in Council which regulates appeals from this Court to Her Majesty in Council the plaintiff cargo owners seek leave to appeal to the Privy Council. It was, of course, conceded that the appeal is not as of right since the judgment given by this Court on 6th July was interlocutory.
3. I will not attempt to review the facts which governed our decision, or to summarise the reasons we gave for allowing the appeal from Barnett, J.'s decision. It is, perhaps, only necessary to recall that there were 87 cargo owners in all who joined together in this action as co-plaintiffs - each, it is accepted, has a separate cause of action. 85 of the plaintiffs (the owners of bales of cotton) were bound by an exclusive jurisdiction clause contained in 65 "CONLINEBILL" form bills of lading. Two of the plaintiffs (their cargos were of steel bars) shipped them under 4 "CONGENBILL" form bills of lading which contained no jurisdiction clause. The cotton cargo owned by the 85 plaintiffs amounted to 87% of the total value of the claim; the steel bars cargo owned by the remaining two plaintiffs accounted for 13% of the total value claimed.
4. The applicants have been good enough to set out the questions intended to be raised before their Lordships in the Privy Council if we are minded to grant leave. The questions are put in this way:
"(i)
whether the Court should treat all Plaintiffs in the same way when deciding whether or not to grant a stay of one set of in rem proceedings, even though the contractual terms between the Defendants and some Plaintiffs are different from those between the Defendants and other Plaintiffs; and
(ii)
if all Plaintiffs are to be treated the same then, in a case where some Plaintiffs are bound by foreign jurisdiction clauses and some are not, does the Court adopt Eleftheria principals or Spiliada principles or some other principles in deciding on whether to grant a stay?"
5. This echoes what I said at page 20 of my judgment:
"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 Eleftheria , 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."
6. After carefully considering Mr. Clifford Smith's submissions I have to say that I am not persuaded that the question involved in the intended appeal is one which by reason of its great general or public importance (or, indeed, otherwise) ought to be submitted to Her Majesty in Council for decision to satisfy Rule 2 (b) of the order in Council. I have no doubt that the question involved is of importance to the parties and it may be that it is an entirely novel point, but I think Mr. Ribeiro is right when he says that the The Eleftheria principles and the The Spiliada principles essentially differ upon matters such as the proper approach and upon whom the burden lies when the Court is considering whether or not an application for a stay should be granted. In the end, it seems to me, it is for the Court to take into account all the relevant factors urged before it and, in the light of the particular circumstances of the case, to reach a conclusion in the exercise of its discretion which is fair to all the parties. I would, therefor, refuse leave to appeal.
Penlington, J.A.
7. I also agree that this is not a matter where we should give leave to appeal to the Privy Council. I think it is essentially a matter that, if the plaintiffs so wish, they should apply to the Privy Council itself for leave.
Barnes, J.
8. I agree that leave should be refused.
Representation:
Mr. R. Ribeiro, Q.C. (M/s Richards Butler) for Appellants/Defendants
Mr. Clifford Smith (M/s Clyde & Co.) for. Respondents/Plaintiffs