The first defendant, Robulk Agencies Inc (Robulk), carries on business as a shipping agency. In the course of its business, it receives shipments of goods from its overseas principals for onward delivery to the person in Barbados by whom the goods were purchased and for whom they were shipped. Robulk has such an agency relationship with Zim Integrated Shipping Services (Zim), a foreign shipping company with its head office in Haifa, Israel.

On or about 25 March 2008, Robulk was made aware that a shipment of goods was en route to Barbados for delivery to Furniture Ltd. By letter dated 25 March 2008, Robulk informed Furniture Ltd that the goods were scheduled to arrive in Barbados on 26 March 2008. It also referred to an attached bill of lading covering a container bearing number ZCSU8684810 and requested Furniture Ltd to make arrangements to facilitate the clearance of the cargo from the Bridgetown Port within 8 working days. The bill of lading was issued in Brazil on 26 February 2008 by 'SEVEN STARS as agent for' Zim. The bill of lading lists the particulars of the shipment under the caption 'DESCRIPTION OF GOODS', as '1.120 PIECES BEING: 400 BI-FOLD DOORS, 360 CLEAR PINE PANEL DOORS AND 360 CEDRORANA PANEL DOORS'. These goods were further described as having been 'SHIPPED ON BOARD' with freight prepaid at Norfolk in the United States of America. The shipper is named as IBI International AB, the company from which Furniture Ltd purchased the goods. That company is also named as the consignee of the goods.

A certain practice had developed with respect to the shipment of goods to Furniture Ltd by Zim. In accordance with that practice, once a shipment arrives in Barbados, the bill of lading is amended to include the name of Furniture Ltd as consignee. This is done to facilitate delivery of the goods to Furniture Ltd. That practice existed since the time of the first shipment by Zim to Furniture Ltd. In this instance, however, Robulk was instructed by Zim to withhold delivery until such time as outstanding demurrage charges incurred by Furniture Ltd were settled in full. Robulk claims to be exercising, on behalf of its principal Zim, a lien over the cargo expressed in cl 20 of the bill of lading.

Furniture Ltd brought a claim for breach of the contract of carriage against Robulk. Robulk applied for a stay of proceedings based on cl 24 of the bill of lading, which provides as follows:

LAW AND JURISDICTION:

All and any claims and/or disputes arising under this Bill of Lading or in connection therewith shall be brought before and determined by the courts and in accordance with the law at:
(a) the place where the Carrier has its Head Office, namely Haifa, Israel
OR
(b) if the cargo originates in or is destined for the U.S.A., by the United States District Court for the Southern District of New York, N Y., U.S.A.

Each of the above courts, respectively, shall have exclusive jurisdiction and, therefore, no proceedings shall be brought before any other court.

The face of the bill of lading discloses that the goods were loaded at Navegantes, Brazil for delivery to Bridgetown, Barbados. Therefore, according to this clause, the courts of Haifa, Israel would be the exclusive forum for the dispute between the parties.

Robulk further argued that it was not a proper party to the action, as the contract of carriage was between Furniture Ltd and Zim.

Held: Defendant's application for a stay of proceedings is dismissed.

The general principle set out in The Eleftheria is that an exclusive jurisdiction clause should be upheld unless the plaintiff shows strong grounds why it should not. Assuming the exclusive jurisdiction clause to be valid and binding on Furniture Ltd, there would be a prima facie desirability of holding Furniture Ltd to it. However, the parties to this action all reside and have their place of business in Barbados, the relevant evidence is in Barbados and the witnesses who can properly put that evidence before the Court are all in Barbados. It does not appear as though any great number of witnesses would be required to travel to Israel in the event of a trial in that forum. However, the above factors suggest that it would be more convenient and less expensive to have a trial in these courts as compared to a court in Israel. One factor holds the potential to reinforce the prima facie position in favour of a stay. Clause 24 of the bill of lading states the law of Israel to be the proper law applicable to disputes arising under or in connection with the bill of lading. The issue may well arise as to whether this clause is effective so that Israeli law governs the interpretation, scope or application of the terms of the bill of lading.There is no evidence as to the likely number of issues, or their degree of complexity, with respect to which foreign law might have to be applied or whether or not there would be any difficulty in having such issues resolved in this jurisdiction. Moreover, there is no evidence to suggest that the law of Israel differs in any material respects from that of the law of Barbados. Taking account of the prima facie desirability of giving effect to the exclusive jurisdiction agreement; the fact that the burden of proof lies on the plaintiff and the assessment of the relevant factors, the Court would have been inclined to exercise its discretion against the grant of a stay.

However, the real issue is whether the exclusive jurisdiction clause is effective. The effectiveness of the jurisdiction clause in this case must be assessed in light of the provisions of the Carriage of Goods by Sea Act Cap 307 of the Laws of Barbados. The Act came into force on 1 January 1981, its stated purpose being 'to provide for the implementation in Barbados of the United Nations Convention on the Carriage of Goods by Sea, 1978' (Hamburg Rules). The Hamburg Rules are contained in the Schedule to the Act, s 3 of which provides that, subject to the Shipping Act, they have the force of law in Barbados. Hence, its provisions must be treated as if they were directly enacted rules of statute law in this country.

The scope of the application of the Hamburg Rules is set out in art 2.1. Two basic conditions must be met to trigger the application of the Hamburg Rules: (1) there must be a contract of carriage by sea, and (2) the movement of the shipment must be between two different States. However, there is no requirement that all the States involved must be Contracting States. The involvement of one such State suffices. In Compagnie Sénégalaise d’assurances et de réassurances CSAR and 27 Other Companies v Rosoe Shipping Co, the Captain of the Ship ‘World Appolo’ and the Steaming Mutual Underwriting Association (1996) (Case no: 159), the Commercial Court of Marseilles applied the Hamburg Rules to cargo which had been transported from Thailand, a non-Contracting State to Senegal, a Contracting State. A decision of a French Court is not binding in this jurisdiction but it is comforting to note that this Court's interpretation of art 2 of the Hamburg Rules is consistent with that adopted in the above decision.

Article 2.1.b is of direct relevance to this case. The port of discharge as provided for in the contract of carriage by sea was Barbados. Barbados is a Contracting State. Hence, the legislation is applicable to the contract of carriage contained in or evidenced by the bill of lading. Article 21 of the Hamburg Rules deals with jurisdiction. Article 22 provides for arbitration in the same jurisdictions as those prescribed in the provisions of art 21.1. Article 23 of the Hamburg Rules precludes derogation from the terms of the Convention. It reads:

Any stipulation in a contract of carriage by sea, in a bill of lading, or in any other document evidencing the contract of carriage by sea is null and void to the extent that it derogates, directly or indirectly, from the provisions of this Convention. The nullity of such a stipulation does not affect the validity of the other provisions of the contract or document of which it forms part…

The effect of these provisions is to render null, void or ineffective any exclusive jurisdiction provision to the extent that it makes a claim to exclusivity but the contractual forum qualifies as one of the jurisdictional options available to a plaintiff under art 21.1. It is so with the exclusive jurisdiction provision contained in cl 24 of the bill of lading. Article 21.1 of the Hamburg Rules gives Furniture Ltd the option of initiating action in Barbados, in accordance with subparagraphs (a) and (c), Brazil, in accordance with sub-paragraph (c) or Israel, in accordance with sub-paragraph (d).

Consequently, to the extent that it has chosen the Courts of Barbados, Furniture Ltd has acted within its legal rights.

While the clear effect of art 21 of the Hamburg Rules is to render null and ineffective the exclusive jurisdiction provision, the question remains as to whether the provision interferes with the general discretion of this Court to stay proceedings on the grounds of forum non conveniens. Article 21 of the Hamburg Rules sets out an exclusive code regulating where proceedings ‘relating to the Carriage of Goods under the Convention' may be instituted. No proceedings may be instituted in a place other than those specified in art 21.1 and 21.2. The effect of art 21.4.a is that, except in the limited circumstance set out in that provision, proceedings, once instituted, cannot be started in another country. There can be no contractual derogation from these provisions: art 23.

Article 3 of the Hamburg Rules provides that regard should be had to the instrument’s international character and to the need to promote uniformity in interpreting and applying its provisions. Allowing the application of the forum non conveniens doctrine in this context could affect the uniform application of the rules of jurisdiction since the doctrine is not recognised by all the contracting parties to the Hamburg Rules. In addition, an application of the doctrine holds the potential to undermine the objectives of predictability and certainty which underlie the basis of the Hamburg Rules since a Court applying this doctrine has a wide discretion with respect to the determination of which forum is more appropriate for the trial of a matter.

There is no provision in the Carriage of Goods by Sea Act stating whether or not a court is precluded from declining jurisdiction on the basis of forum non conveniens. However, the exercise of any such discretion on that ground would be wholly impracticable. The effect of art 21.4.a would be that a plaintiff against whom the discretion was exercised would have no access to justice in any other forum unless he violated the laws of this land, something which a local Court could not condone. Consequently, he would be left to resume proceedings in these Courts. The nature of the Hamburg Rules is such that it precludes this Court from declining jurisdiction conferred on it by art 21.1 on the ground that any other state would be a more convenient forum. It matters not whether the alternative forum is a party to the Hamburg Rules or otherwise.

In any event, the effect of art 21.4.a is a strong factor which militates against the grant of a stay on grounds of forum non conveniens, when due consideration is given to the principles which inform the exercise of my discretion in circumstances such as these. Furthermore, even in the absence of this factor, when account is taken of the connecting factors and the fact that the burden of proof falls on the defendant with respect to the first stage of the Spiliada test, the Courts of Haifa, Israel do not constitute a more appropriate forum.

Finally, the argument made by Robulk that it was not the proper defendant as the contract of carriage was entered into between Furniture Ltd and Zim was also rejected. Although Robulk was acting as an agent of Zim, the plaintiff's claim was for the tort of detinue of its goods. The proper defendant in a claim of tort is the tortfeasor or anyone who is liable for his or her acts. Where, as in this case, the act is committed on the instructions of a principal, the principal is liable jointly and severally with the agent. It is open to a plaintiff to sue any one or more of the persons considered so liable. Hence, both Robulk and Zim must be proper and necessary parties to this action.