Lloyd's Maritime and Commercial Law Quarterly
STAYING AN ACTION BECAUSE THE FOREIGN LAW IS AMBIGUOUS
The Planeta
Regarding stays of English actions, the doctrine of forum non conveniens applies in cases of tort as well as contract. Indeed, The Abidin Daver,1 in which Lord Diplock finally acknowledged that this doctrine forms part of English law, is a case concerning a collision at sea. Also, notwithstanding contrary views, often forcefully presented, of numerous academics and some judges, it is generally accepted that, in order for a plaintiff to succeed in a claim brought in England in respect of a tort committed abroad, he must establish that the cause of action upon which he relies is both: (a) actionable as a tort according to English law; and (b) actionable according to the law of the foreign country where it was done.2 The recent Hong Kong decision in The Planeta
3 reveals the inter-relationship between the so-called “double actionability” rule and the forum non conveniens doctrine. In this case the High Court stayed an in rem action on forum non conveniens grounds almost solely because it was not clear whether the act complained of was actionable in the place it occurred.
The plaintiffs were shippers, sellers, buyers and consignees of cargo loaded at Tokyo and discharged damaged in Indonesia and Malaysia. The defendants were Cypriot owners of the Planeta. The vessel was registered in Limassol and time chartered to the Japanese line Nippon Yusen Kaisha, who sub-chartered her on similar terms to another Japanese company. The cargo was allegedly damaged by sea water flooding into the holds through a manhole on the starboard side tank wall during ballasting at Kobe, Japan, prior to commencement of the ocean voyage to destination. In order to prevent the arrest of the Planeta in Hong Kong, the owners’ P. & I. Club, in a standard kind of letter, undertook to provide security for the amount of the claim and to instruct solicitors to accept on behalf of the owners service of in rem proceedings. In the event, the writ was issued, solicitors for the owners accepted service and subsequently the owners applied for a stay of the action on the ground that Hong Kong was not the most appropriate forum for the trial. In determining whether to exercise his discretion to stay the action, Barnett, J., applied the well-known test of Lord Goff in The Spiliada
4 as explained by Hunter, J.A., in The Adhiguna Meranti.5 Under this test the place of the tort was arguably relevant for two reasons.
First, it was argued by the shipowners that since the tort, by the plaintiffs’ own allegations, occurred in Kobe, a Japanese court was the natural or appropriate
1. [1984] A.C. 398, 411; [1984] 1 Lloyd’s Rep. 339, 344.
2. The Forum Craftsman
[1985] 1 Lloyd’s Rep. 291, 296, per Ackner, L.J.; The Planeta, unrep., 18 January 1993 (H.K.H.C., Admir. Juris.), Transcript, p. 12.
3. Supra, fn. 2.
4. [1987] A.C. 460; [1987] 1 Lloyd’s Rep. 1.
5. [1988] 1 Lloyd’s Rep. 384 (H.K.C.A.). In this case Hunter, J.A., proposed the following three-stage test: (1) Is it shown that Hong Kong is not only not the natural or appropriate forum for the trial, but that there is another available forum which is clearly or distinctly more appropriate than Hong Kong; (2) If the answer to (1) is yes, will a trial at this other forum deprive the plaintiff of any “legitimate personal or juridical advantage”; (3) If the answer to (2) is yes, a court has to balance the advantage of (1) against the disadvantages of (2).
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