A cargo of electrically calcined anthracite was loaded into the defendants' vessel Netty at Barton-on-Humber for carriage to Rotterdam. The defendant issued a bill of lading indicating that the cargo was in apparent good order and condition on shipment. The cargo was transhipped at Rotterdam into the barge Henny D and delivered at Frankfurt.

A survey carried out a day after the delivery indicated that the cargo was contaminated. The owners of the cargo suffered loss amounting to GBP 1,000 and brought an action in rem against the defendants. The issue was whether the plaintiffs could establish that their cargo was contaminated while it was on the Netty.

By a notice of motion, the defendants applied for a stay of proceedings on the ground that the Court was not the natural forum for the action; that there was another forum in which justice could be done between the parties with substantially less inconvenience; and that there was no sufficient personal or juridical advantage to the plaintiffs in continuing the present action which outweighed the inconvenience and expense to the defendants of continuing the action.

There were three plaintiffs. The first plaintiff was the shipper of the cargo, a company incorporated in Scotland. The second and third plaintiffs were companies incorporated in West Germany. The defendants were a Dutch company. The contract upon which the plaintiffs had brought their action was to be construed by English law.

Held: Application for a stay of proceedings dismissed.

The defendants argued that the effect of the Convention on Jurisdiction and Enforcement of Judgements in Civil and Commercial Matters 1968 (the Brussels Convention) was to make the courts of the Netherlands the natural forum for the trial of this action. Article 2 of the Brussels Convention provides that persons domiciled in a Contracting State shall, whatever their nationality, be sued in the Courts of that State.

The defendants contended that it could rely on the Brussels Convention because the first plaintiff had no claim for damages, and thus this action was a claim by West German companies against a Dutch company.

Sheen J held that the Brussels Convention could have no bearing because the UK had signed the Brussels Convention but had not yet ratified it. Nevertheless, even if the Convention had any bearing upon this matter, it would not assist the defendant. The Brussels Convention, according to art 57, does not affect any Convention to which the Contracting States are or will be parties and which, in relation to particular matters, govern jurisdiction. The Arrest Convention 1952 was such a Convention which contains the following provisions:

Article 2: A ship flying the flag of one of the Contracting States may be arrested in the jurisdiction of any of the Contracting States in respect of any of the maritime claim, but in respect of no other claim.

Article 7: The Courts of the country in which the arrest was made shall have jurisdiction to determine the case upon its merits if the domestic law of the country in which the arrest is made gives jurisdiction to such Courts…

Parts I and V of the Administration of Justice Act 1956 (UK) were enacted as a result of the Arrest Convention 1952. That Act gives this Court jurisdiction to determine this case upon its merits.

This Court is undeniably an appropriate forum for the case. Its jurisdiction has been invoked in rem in accordance with a procedure recognised by international Convention. The facts did not point either to England or the Netherlands as the natural forum. While English law was applicable to the carriage contract and the cargo was loaded in England, the defendants were a Dutch company, and the relevant part of the voyage ended in Rotterdam; all these considerations were evenly balanced.

Since the amount of damages claimed was very small, a stay of proceedings at this stage, when the statement of claim had been served, would involve a waste of those costs already incurred, and this was a factor which the Court could legitimately bear in mind when exercising its discretion.

The defendants contended that they would be put in the inconvenience of bringing witnesses to England to give evidence. However, the defendants had already acknowledged that the cargo was in apparent good order and condition on loading, and there was some evidence that when the hatches were opened in Rotterdam, the cargo was seen to be contaminated. Therefore, there was no evidence that if this action was continued the costs would be greater than the costs which would be incurred if the action was stayed and a fresh action commenced in Rotterdam.