Translink Shipping Ltd v Compagnie Wallisienne de Navigation SARL [1991] FJLawRp 6; [1991] 37 FLR 46 (4 June 1991)

[1991] 37 FLR 46

HIGH COURT OF FIJI

TRANSLINK SHIPPING LIMITED

v

COMPAGNIE WALLISIENNE de NAVIGATION SARL & ANR

[HIGH COURT, 1991 (Byrne J), 4 June]

Civil Jurisdiction

Conflict of laws - admiralty action - whether Fiji or the Wallis Islands the forum conveniens.

Proceedings were commenced in Fiji to recover damages allegedly sustained following an incident in the Wallis Islands between two vessels neither of which was registered in Fiji. On application to discharge an interim injunction the High Court reviewed the law relating to "natural forum" and ordered the release of the applicant's vessel.

Cases cited:

Abidin Daver [1984] A.C. 398
Allen v Jambo Holdings Ltd [1980] 1W.L.R. 1252
American Cyanamid Co. v Ethichon Co. Ltd. [1975] UKHL 1; [1975] A.C. 396
The Atlantic Star [1974] A.C. 436
Atlantic Star [1978] Q.B. 364
Baroda v Wildenstein [1972] 2 Q.B. 282
Club Mediterranée NZ v. Wendell [1989] 1 NZLR 216
Oceanic Sun Line Special Shipping Co Link v Fay [1988] HCA 32; (1988) 62 ALJR 389
Sim v Robinow (1892) 19 R. 665
Spiliada Maritime Corp. Cansulex Ltd [1986] UKHL 10; [1987] 1 A.C, 460
St. Pierre v South American Stores [1936] 1 K.B. 382

Interlocutory application in the High Court.

J.G. Singh for the Plaintiff
S. Parshotam & S. Lateef for the Defendants

Byrne J.:

On the 31st of May 1991 on an urgent ex parte application made by it I granted the Plaintiff a Mareva Injunction against the First Defendant restraining it by its agents or servants or otherwise from removing from the jurisdiction of this Court or otherwise disposing of or dealing with any of its assets within the jurisdiction including and in particular the ship Moana III save in so far as such assets did not exceed in value the sum of $253,460.00 claimed by a Writ of Summons which had been issued in this Court on the 30th of May 1991.

The Statement of Claim on the basis of which, together with two supporting affidavits the injunction was issued, alleges the following relevant matters:

(1) The Plaintiff is a Shipping Company registered in Vila, Vanuatu and was at all relevant times the charterer of the Danish registered vessel Coral Link.

(2) The First Defendant is a Shipping Company registered in Wallis Island and was at all relevant times the owner of the French registered vessel Moana III.

(3) The Second Defendant Michel Dewas was at all relevant times the Master of Moana III.

(4) On Sunday 26th of May 1991, Coral Link, in the possession of the Plaintiff, was lawfully berthed at the wharf at Mata Utu, Wallis Island.

(5) At about 0730 hours on the 26th of May 1991 the Second Defendant:

(a) Threatened damage to Coral Link;

(b) Threatened physical harm to the complement of Coral Link;

(c) Threatened to board and seize Coral Link by force;

(d) With threats and by force cast off the mooring lines securing Coral Link to the said wharf,

(e) Cut mooring lines to and cast the gangway to Coral Link from the said wharf onto the wharf,

(f) Forcibly ejected Coral Link from her berth.

(6) The Second Defendant then berthed the ship Moana III in the

berth from which Coral Link had just been ejected.

(7) Subsequent to so ejecting Coral Link and berthing Moana III, the Second Defendant

(a) Refused to make room at the said wharf for Coral Link to berth;

(b) Threatened damage to Coral Link and physical injury to her complement in the event of their attempting to berth her at the said wharf.

(8) As a result of the foregoing acts Coral Link had to lie in the roads at Mata Utu until the evening of Tuesday 28 May 1991 and could not complete the discharge of the cargo she carried for Wallis Island nor load the cargo she was to carry from Wallis Island.

Paragraph 9 of the Statement of Claim alleges that the Second Defendant was at all relevant times the servant or agent of the First Defendant and in performing the acts alleged in paragraphs 5, 6 and 7 above was acting on behalf of the First Defendant and with the knowledge of the First Defendant.

It is alleged in paragraph 10 that in carrying out these acts the Defendants were pursuing a course of conduct calculated to create such an advantage for them or either of them of a value which might exceed any disadvantage they might suffer by way of compensation payable to the Plaintiff, thereby allegedly entitling the Plaintiff to an award of exemplary damages.

Paragraph 11 of the Statement of Claim then alleges that as a result of the acts aforesaid by the Defendants the Plaintiff has suffered economic loss and damages and that in all the circumstances is entitled to compensation in the nature of aggravated general damages for the injury to its feelings and dignity.

Various particulars of special damages amounting to $53,460.00 are then given and the Plaintiff then claims the special damages together with the sum of $100,000.00 for general damages and a similar sum for exemplary damages.

It appears from the affidavit material now filed that Moana III is a trading ship which trades on a general route between Wallis Island - Noumea - Fiji and New Zealand and visits Fiji about every two months. The ship is owned by the First Defendant and is registered in the Wallis Island Shipping Registry. The First Defendant is a Company also registered in Wallis Island.

The Plaintiff alleges that the ship has a value of about $1,500,000.00; the Second Defendant believes that its value is far in excess of this sum.

It is common ground between the parties that Moana III arrived in Suva during the afternoon of the 30th May and the effect of the Injunction which I granted on the 31st of May has been to prevent the ship from departing here for Funafuti last Saturday morning, the 1st of June, until such time as I either dissolve the Mareva Injunction or the First Defendant lodges security in this Court in the sum of $253,460.00.

I granted the Injunction at about 10.30 a.m. on the 31st of May but it was not served together with other relevant papers on the Defendants until approximately 4.30 p.m. on the 31st of May.

As might be expected the Defendants were most concerned about the Injunction and at about 1.00 p.m. on the 1st of June the Chief Registrar of this Court telephoned me at my home to ask whether I could hear an immediate application to discharge the Injunction. Because of other personal commitments that day I was not able to but I directed that the matter be listed before me at 8.45 a.m. on the 3rd of June. The Defendants were represented by their present counsel but Mr. Singh who has appeared throughout for the Plaintiff was not able to be present until the afternoon. I then began the hearing of the present application by the Defendants for a stay of these proceedings and the discharge of the Injunction.

Although none of the parties to the action resides in Fiji the claim was properly brought in this Court at least in the first instance because it was against persons duly served within the jurisdiction under Order 11(1)(1)(c) of the Rules of this Court. The question which I have to decide is whether the proceedings, although properly commenced in this Court, can lawfully continue in the Court. This raises some interesting questions of law which I shall discuss in a moment. First however it is necessary to refer to further evidence in the form of affidavits filed on behalf of the three parties. On behalf of the Plaintiff an affidavit has been filed by one Villy Raid of Auckland, New Zealand the Operations Manager for Plaintiff who states his version of the events of the 26th of May last. He says that he was on the ship Coral Link at Mata Utu, Wallis Island having travelled there in order to instruct shipping agents and stevedores in respect of the services recently established to Wallis Island by the Plaintiff.

At about 7.30 a.m. on that day he alleges that the chief mate of Moana III came on board Coral Link which was then lawfully berthed at the wharf and demanded that she be removed to enable Moana III to berth. He suggested that Moana III could share the wharf but this suggestion was declined and a threat was made of retaliatory action by the Master of Moana III, in the form of boarding Coral Link by members of Moana III's crew.

Mr. Rata alleges that the authorities at Wallis Island did not know that Moana III was due to arrive on the 26th of May but that its expected time of arrival was 27th of May. It then appears from the documents exhibited to Mr. Raki's affidavit that some crew of Moana III cast off two mooring lines of Coral Link and removed her gangway and threw it on the wharf. It is then alleged that to avoid any unfortunate incident Mr. Raki and the Master of Coral Link decided to leave the wharf as quickly as possible, which they did and the ship then anchored outside the wharf area.

Among other damages and losses sustained by Coral Link are said to be two mooring ropes valued at $6,000.00 each and four days loss of charter to the charterers.

Finally Mr. Raki alleges that the following apart from himself were witnesses to the incident he describes:

(1) Journalist for La Nouvelle Caledonienne.

(2) Reporters from the local television station "RFA".

(3) Chief of Affaires Maritime.

(4) Chief Customs Officer.

(5) Numerous local citizens who were on the wharf.

In an affidavit sworn on the 3rd of June 1991 in support of the Defendants' application to dissolve the Injunction the Second Defendant denies most of the allegations by the Plaintiff as to the incident of the 26th of May. He further alleges that the First Defendant has contracted with the Government of Wallis Island to provide it with shipping services and that Moana III is wholly devoted to this contract. He states, and there could be little argument about this that the practical effect of the Injunction, apart from pecuniary loss, is to put his vessel under arrest. He also alleges that because the acts complained of by the Plaintiff took place in Wallis Island, a French territory, that Moana III and the First Defendant are both registered in Wallis Island and so have no connection whatsoever with Fiji and that the Plaintiff also has no such connection as its address is given as c/- Investors Trust, Vila, Vanuatu, this Court has no jurisdiction in the matter.

Those then are broadly the allegations of fact made so far in the action.

I now consider the submissions made to me by counsel for the parties. For the Defendants Mr. Parshotam claimed that the only reason why the action was begun in this Court was because of certain bad blood existing between the parties. This was not denied by Mr. Singh but in any event I consider it irrelevant. Mr. Parshotam first argues that because the incident giving rise to the action occurred in a foreign country outside Fiji and because both Defendants are not residents of Fiji, the Second Defendant being a citizen of New Caledonia, and the fact that Moana III is registered in Wallis Island and is owned by a Company whose registered office is in Wallis Island this Court should decline to continue to exercise jurisdiction in the claim. He also submits that on the question of the Injunction the Plaintiff should lodge some security in the Court as evidence of its bona fides. He then goes on to make submissions based on the American Cyanamid case [1975] UKHL 1; [1975] A.C. 396. As to this Mr. Singh refers me to the case of Allen v. Jambo Holdings Ltd [1980] 1W.L.R. 1252 which held that in considering whether to grant a Mareva Injunction the question of financial stability of a Plaintiff should be disregarded, the important question being what is the essential justice of the case as between the parties.

I accept that as good law in Fiji.

I now turn to the real issue in this case, namely whether this Court should continue to exercise jurisdiction in the matter. Until the case of The Atlantic Star [1974] AC 436 in matters of this kind the English Courts had generally refused to grant a stay of proceedings instituted in England and for which it was claimed the proper forum was in another country. This rule was defined by Scott LJ. in St. Pierre v. South American Stores (Gath & Chaves Ltd) (1936) 1 K.B. 382 at 398:

"(1) A mere balance of convenience is not a sufficient ground for depriving a plaintiff of the advantages of prosecuting his action in an English Court if it is otherwise properly brought. The right of access to the King's Court must not be lightly refused. (2.) In order to justify a stay two conditions must be satisfied, one positive and the other negative: (a) the defendant must satisfy the Court that the continuance of the action would work an injustice because it would be oppressive or vexatious to him or would be an abuse of the process of the Court in some other way; and (b) the stay must not cause an injustice to the plaintiff. On both the burden of proof is on the defendant."

In very few cases until more recent times has the Defendant been able to discharge this onus. Any legitimate advantage, however tenuous, the Plaintiff hopes to gain in the forum has been held sufficient to prevent the discharge of the onus: Baroda v. Wildenstein [1972] 2 Q.B. 282. In that case the Court of Appeal held that where the Defendant had been properly served within the jurisdiction when on a fleeting visit to England for the purpose of attending the Ascot races, he could only justify a stay of the action of which, arguably the proper forum was a French Court, if he could satisfy the Court positively that to continue it would be oppressive of him or an abuse of the process of the Court and negatively that the stay would not cause injustice to the Plaintiff. Earlier Bridge J., as he then was, had held that the action be stayed on the ground that where a Defendant was served with a Writ while he was adventitiously within the jurisdiction there was a presumption that the proceedings were oppressive of him and that the Plaintiff had not shown that she would be handicapped if she could not sue in England. The Court of Appeal unanimously rejected this approach.

The law in England however began slowly to change when the case of the Atlantic Star came before the House of Lords in 1973. It is reported in [1974] A.C. 436 when the House by majority (Lords Reid, Wilberforce and Kilbrandon and Lords Morris and Simon dissenting) changed the meaning of the words "oppressive and vexatious" as they had until then been understood. Lord Wilberforce said at 468 and 469, that the words should in future be interpreted not in their strict and technical sense but "descriptive words which illustrate but do not confine the Court's general jurisdiction."

When the Atlantic Star had been in the Court of Appeal Lord Denning MR. stated the position in English law up till that time as this [1978] Q.B. 364, 381G, 382C:

"No one who comes to these courts asking for justice should come in vain .... This right to come here is not confined to Englishmen. It extends to any friendly foreigner. He can seek the aid of our courts if he desires to do so. You may call this 'forum shopping' if you please, but if the forum is England, it is a good place to shop in, both for the quality of the goods and the speed of service."

Lord Reid quoted this passage at page 453 and said that it seemed to recall the good old days, when inhabitants of England felt an innate superiority over those unfortunate enough to belong to other races. He went on that it was the function of the House of Lords to try, so far as possible, to keep the development of the common law in line with the policy of Parliament and the movement of public opinion. He therefore thought that the time was ripe for a re-examination of the rather insular doctrine which had previously been applied.

In that case Mr. Robert Goff QC. appeared for the appellants. Later as Lord Goff he gave the leading speech in the landmark decision of the House of Lords in Spiliada Maritime Corp v Cansulex Ltd [1986] UKHL 10; [1987] 1 A.C, 460 where the House held that the basic principle henceforth to be followed in England in cases where the question of the proper forum arose was this, at 476:

"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 interest of all the parties and the ends of justice."

In a wide-ranging speech His Lordship referred to the differences which had hitherto existed between English law and Scots law. The Courts in Scotland had consistently stayed proceedings on the ground which is usually called forum non conveniens. It was stated by Lord Kinnear in Sim v. Robinow [1892] 19 R. 665 at page 668 as follows:

"the plea can never be sustained unless the court is satisfied that there is some other tribunal, having competent jurisdiction, in which the case may be tried more suitably for the interests of all the parties and for the ends of justice."

In The Abidin Daver [1984] A.C. 398, 411 Lord Diplock stated that on this point, English law and Scots law might now be regarded as indistinguishable.

In Spiliada, Lord Goff noted that the burden is on the applicant to establish the conditions for a stay, and that the standard of proof is a high one; the foreign forum must be shown to be clearly more appropriate. The factors which may be considered in the search for the "natural forum" (i.e. that with which the action has the most real and substantial connection) were then given by His Lordship at pp. 481-483 and include the general. undesirability of subjecting to the jurisdiction of English Court any foreigner who owes no allegiance to England, more particularly if the dispute has little to do with England, the availability of witnesses, the law governing the relevant transactions, and the places where the parties reside or carry on business. If the Court concludes that there is a clearly more appropriate foreign forum, it will ordinarily grant a stay unless the Plaintiff proves that it will not obtain justice in the foreign jurisdiction.

The Spiliada case was applied unanimously by the New Zealand Court of Appeal in Club Mediterranee NZ v. Wendell [1989] 1 NZLR 216 but was not followed by the High Court of Australia in Oceanic Sun Line Special Shipping Co Link v. Fay [1988] HCA 32; (1988) 62 ALJR 389. There by a 3 to 2 majority the Court held that a Plaintiff who had claimed damages for negligence arising out of his participation in trap shooting on board a Greek vessel sailing in Greek waters on a cruise and for which the contract of carriage had been made in New South Wales was entitled to sue in the Supreme Court of New South Wales.

The High Court's decision has been criticised by Professor Pryles in "Judicial Darkness on the Oceanic Sun" (1988) 62 A.L.J.R. 774. He prefers the approach of the two dissenting Justices, Wilson and Toohey JJ, who agreed with the decision in Spiliada which overturned the doctrine of the St. Pierre case. As they pointed out, this shift in the English law could not be ascribed to local considerations affecting the United Kingdom, such as the incorporation of that country into the European community. They added at page 395:

"Rather, this century has witnessed such a transformation in communications and travel, coupled with a greater importance attaching to considerations of international comity as the nations of the world become more closely related to each other, as to render the St. Pierre principle, fashioned as it was in the nineteenth century, inappropriate to modern conditions. In this regard, we agree with the views expressed by Kirby P in the Court of Appeal. The St. Pierre principle places such a tight rein on the discretion of a court as to render it unable to deal justly with the problem of forum shopping, even in blatant cases."

The editor of the Australian Law Journal Mr. J.G. Starke QC. commenting on the decision of the High Court said that it is possible that another bench of the Court may well treat the decision as one limited to the particular facts and that the result, namely, a refusal of the stay sought by the appellants was certainly of a controversial character.

Reviewing the submissions made to me by counsel in the instant case, it seems to me with respect that that of Mr. Singh on behalf of the Plaintiff fails to pay sufficient heed to the decision in Spiliada. In my judgment the fact that a majority of the witnesses to the incident on Wallis Island are local inhabitants, the fact that the First Defendant and the ship Moana III are registered in Wallis Island, the fact that clearly the law to be applied is French law and last, but by no means least, the expense and inconvenience to be incurred if this action were to be tried in Fiji point conclusively to my holding that the proper forum in this litigation is Wallis Island and not Fiji.

Mr. Singh pointed out correctly that no evidence had been offered by the Defendants as to whether indeed there were any Courts at all on Wallis Island and this was a basic flaw in the Defendants' application to dissolve the Injunction. I was briefly attracted to this submission but on reflection consider it is irrelevant. As I see it my function in this matter is not to decide whether there are any Courts in Wallis Island capable of hearing an action between the Plaintiff and Defendants but rather whether this Court is the proper forum for such action.

For the reasons which I have given above I consider it is not and I propose therefore to dissolve the Injunction granted on the 31st of May 1991.

Because of this it is unnecessary for me to consider the submissions made to me by Mr. Parshotam and Mr. Singh on the law as to Interlocutory Injunctions as stated by Lord Diplock in American Cyanamid Co. v Ethicon Co. Ltd. [1975] UKHL 1; [1975] A.C. 396; suffice it for me to say that generally I accept Mr. Parshotam's submissions on this question and would hold that the balance of convenience in my judgment lies in dissolving the Injunction.

The orders of the Court are that the Mareva Injunction granted in favour of the Plaintiff against the First Defendant on the 31st of May 1991 is dissolved, and the Plaintiff is to pay the Defendants' costs.

(Application allowed, injunction discharged)