Mushen Jahwar (the plaintiff) was the master of the MV Betta Livestock 17 until 14 October 1999 when his contract was terminated. The ship was owned by Betta Investment SA (the defendant), a Honduran company with a registered address in Greece, and was managed by Union Commercial Co, which was registered in and operated from Syria. The flag State of the ship was Cambodia. Both Ireland and Cambodia are parties to the Arrest Convention 1952.

The plaintiff's contract of service as master of the ship was made orally in Syria. The plaintiff was a Syrian national and appeared to be domiciled in Syria. When the plaintiff's contract was terminated the ship was in the port of Waterford in Ireland and the plaintiff applied for the arrest of the ship. The plaintiff claimed for master's disbursements and wages arising out of his function as master of the ship under art 1 of the Arrest Convention 1952. The defendant provided security in the amount of USD 80,000 and the ship was released from arrest.

On 14 October 1999 the plaintiff was repatriated to Syria at the expense of the defendant. The statement of claim was delivered on 14 January 2000. No further steps were taken by the defendant until 1 December 2000 when a notice of motion was issued and served on behalf of the defendant seeking an order staying the proceedings on the basis of forum non conveniens, or in the alternative, an order directing the plaintiff to furnish security in respect of the defendant’s costs in the action.

The defendant argued that the maritime Court of Syria was the most appropriate forum for trying the plaintiff’s action because:

1. Neither party had any connection with Ireland other than the fortuitous circumstance that the ship was lying in the port of Waterford when the dispute between the parties came to a head - thus providing the plaintiff with an opportunity to have the ship arrested in this jurisdiction which in turn opened the way for the bank guarantee of USD 80,000 in favour of the plaintiff;
2. The plaintiff was domiciled in Syria and had his home there;
3. Union Commercial Co, the ship's manager, was a Syrian company and operated from that State;
4. The oral contract of service between the plaintiff and the defendant company was made in Syria and was governed by Syrian law. Accordingly, the expense of proving Syrian law in this Court would be avoided;
5. In the main the plaintiff was paid wages and disbursements in Syria;
6. The defendant would need to rely on several Syrian witnesses to make its defence;
7. All or most witnesses, being unable to speak English, would have to give their evidence in Arabic for which the services of an interpreter would be required. This would add substantially to the length and expense of the trial and also would affect the assessment of the quality of the evidence;
8. All or most of the relevant records and other documents were in Arabic and would need to be translated for the benefit of this Court; and
9. The bank guarantee in favour of the plaintiff would remain in place and would be available to him if he were ultimately successful in the Syrian Court.

Held: Defendant’s application dismissed.

There has been an unexplained substantial delay of 11 months by the defendant before seeking to have the proceedings transferred to the Syrian Court which has prejudiced the plaintiff in obtaining the relief that he seeks. It is a requirement of Syrian law that the plaintiff would be obliged to provide security to cover the expenses of the trial Court. Although the plaintiff is now employed elsewhere as a ship's master, his earnings may not be sufficient to arrange the security required and as a consequence may be unable to pursue his claim in that jurisdiction. There is a major issue as to whether the law of the plaintiff’s contract of service is Syrian, bearing in mind that the flag of the ship is Cambodian and the defendant is a Honduran company. If the contract is not governed by Syrian law, it would appear that the Syrian Court would have no jurisdiction to try the plaintiff’s claim against the defendant. Most wages and disbursements appear to have been made to the plaintiff outside Syria. The books and records kept on board the ship and by the ship’s agents would appear to constitute the primary items of proof in that regard. This suggest that a trial in Ireland (as in Syria) should be comparatively straightforward and may not require much evidence in Arabic other than translations of the relevant records. The only positive advantages which a Syrian trial would provide are the desirability of conducting proceedings in Arabic, the avoidance of the need for an interpreter, and the requirement that Syrian witnesses shall come to Ireland.

Taking these matters into account, the defendant has failed to show that the Syrian maritime Court is a more appropriate forum to try the plaintiff’s action. Even if, prima facie, the Syrian maritime Court were the most convenient forum to try the plaintiff’s claim, it would be unjust to deprive him of his opportunity to avoid these difficulties and have the benefit of a trial in this jurisdiction.

As to the defendant’s application for security for costs, there is no precedent for ordering a master or seafarer to give security for costs in a claim for disbursements or wages. The plaintiff’s pay when employed by the defendant was USD 2,000 per month. Wages in that amount would not enable him to fund the amount of security which would be likely to be fixed by a Court in this case. In that event he would be prevented from pursuing a claim for a basic right. It would be manifestly unjust to inhibit or prevent the plaintiff from pursuing his claims on that ground. The defendant is not entitled to security for costs.