The judgments in three cases reported in the 1983 edition of the Hong Kong Law Reports were in fact given in December 1982. These three judgments are all concerned with applications by the defendants for a stay of proceedings brought in Hong Kong on the ground that the parties had, by virtue of the jurisdiction clauses in the relevant bills of lading, agreed that disputes should be determined by the courts of a foreign forum. It is noteworthy that in all three of the reported cases a stay was granted. These cases involved the vessels On Tat, Happy Pioneer and Nedlloyd Schie.

In The On Tat 1 one of the points taken by the plaintiffs was that the defendants had waived their right to rely upon the jurisdiction clause in the bill of lading by virtue of the terms of a letter of undertaking. In that case the defendants were the owners of the On Tat and On Wo, which both flew the Panamanian flag and were managed from Hong Kong. The On Tat was time-chartered to the China Ocean Shipping Company. The plaintiffs were the Chinese shippers and the German cargo owners and notify parties under the bill of lading in respect of a cargo of bauxite shipped on board On Tat from Zhanjiang in the People’s Republic of China to Rotterdam. The cargo was contaminated and the plaintiffs issued proceedings in rem. The On Wo, a sister ship of On Tat, came to Hong Kong in February 1982 and was served and arrested.

After the defendants’ solicitors had reserved all their clients’ rights and defences, including the right to argue that the Hong Kong court should not exercise jurisdiction over the defendant, a letter of undertaking was provided by the defendants to secure the release of the On Wo whereby guarantors undertook, inter alia, that in consideration of the cargo owners refraining from commencing and/or prosecuting legal or arbitration proceedings otherwise than before the Hong Kong court against the defendants, they would pay to the cargo owners such sums as were adjudged by the Hong Kong court or were agreed to be recoverable from the defendants in respect of the plaintiffs’ claims against the defendants. The On Wo was released from arrest and shortly thereafter the defendants applied to stay the Hong Kong proceedings on the basis that the bill of lading in question provided, inter alia, that all disputes arising under and in connection with the bill of lading should be determined in the People’s Republic of China.

It was submitted by counsel for the plaintiffs that the letter of undertaking was a complete bar to the defendants’ contention that the action should be determined in the courts of the People’s Republic of China, for by that letter the defendants had submitted themselves to the jurisdiction of the courts of Hong Kong. Counsel for the defendants, however, argued successfully that the telexes exchanged between the parties’ solicitors prior to the provision of the letter of undertaking clearly indicated that the defendants reserved their right to argue that the Hong Kong court should not exercise jurisdiction over them. It is most important, therefore, that the carrier should