In 1970, the Dutch vessel Atlantic Star, owned by the Holland-America Line (the defendant), collided with the Dutch plaintiff's barge, Bona Spes, and a Belgian barge, Hugo van der Goes, in Belgian waters. Both moored barges lost their cargoes in dense fog. Various parties sued the defendant in the Antwerp Commercial Court (the Antwerp Court). The Antwerp Court appointed a surveyor to hold an inquiry following applications by the owners of the Hugo van der Goes and, subsequently, the plaintiff. Belgian lawyers represented the parties before the surveyor, whose report stated that the Atlantic Star was without fault. This led the plaintiff to commence an action in rem in the UK. Concerned about time limitation, the plaintiff subsequently instituted protective proceedings in the Antwerp Court.

The defendant applied to set aside or stay the English proceedings, claiming lis alibi pendens and/or that the English proceedings were oppressive, vexatious, and an abuse of process. Having already provided an undertaking for GBP 80,000 in England to forestall arrest, the defendant undertook to put up security in Belgium and accept service of any proceedings initiated there by the plaintiff if the action in rem was stayed. The plaintiff undertook to discontinue its Belgian action if allowed to proceed with its action in rem.

The defendant argued that the Antwerp Court was the appropriate forum by an overwhelming balance of convenience, which made the English proceedings oppressive or vexatious. The plaintiff argued that: (1) where proceedings are begun by service of a writ within the jurisdiction, the Court should only stay the proceedings to prevent the defendants from suffering injustice; considerable inconvenience is insufficient; (2) the Court should not prevent a party from proceeding in its chosen jurisdiction if to so do will prejudice it; (3) to allow the action to continue would cause no injustice to the defendants, whereas to stay it would cause prejudice to the plaintiff by depriving it of the opportunity of having its case tried by a court which hears the witnesses for itself, uninfluenced by the surveyor's opinion.

At first instance, Brandon J dismissed the defendant's application subject to the plaintiff's undertaking. Brandon J found that: (1) the defendant rightly conceded its earlier contention that the plaintiff had, by applying to the Antwerp Court for a surveyor, invoked the jurisdiction of that court; (2) there was no lis alibi pendens and that the Antwerp Court was expected to accept the surveyor's views as persuasive; (3) the plaintiff's action in the Antwerp Court was not intended to harass the defendant; (4) the Antwerp Court was the most appropriate forum; (5) in either jurisdiction, the plaintiff was protected by security and could obtain the same remedy without being affected by limitation of liability. Brandon J would have stayed the proceedings if not for the following case law. The Court has the discretion to stay an action properly commenced (McHenry v Lewis (1882) 22 ChD 397 (CA) 406 (McHenry)) if such action was oppressive or vexatious or an abuse of process: Peruvian Guano Co v Bockwoldt (1883) 23 ChD 225 (CA) (Peruvian Guano). Superior convenience of another forum does not, by itself, justify a stay: St Pierre v South American Stores (Gath & Chaves) Ltd [1936] 1 KB 382 (CA) (St Pierre) 398. Neither does multiplicity of proceedings justify a stay when the plaintiff is defending the other action on the same subject-matter as a defendant: The Janera [1928] P 55; The Lucile Bloomfield [1964] 1 Lloyd's Rep 324. But where the plaintiff is also the plaintiff in the other action, the Court may be justified in compelling it to elect, either by staying the action here or by restraining it from prosecuting the action abroad: The Hartlepool (1950) 84 Ll L Rep 145; The Soya Margareta [1961] 1 WLR 709 (The Soya Margareta). Nevertheless, the Court will not interfere if there is a good reason for prosecuting both actions: McHenry; Peruvian Guano; Ionian Bank Ltd v Couvreur [1969] 1 WLR 781 (CA) (Ionian Bank). Next, whether an action is vexatious or oppressive depends on (a) whether the plaintiff's motive was proper and (b) what difficulties may be caused to the defendant. As regards (a), if the motive was to harass the defendant rather than to obtain justice, the action could be vexatious: In re Norton's Settlement [1908] 1 Ch 471 (CA). As regards (b), the cost and difficulty to a defendant of defending the action might be so great that to compel it to do so would be unjust: Logan v Bank of Scotland (No 2) [1906] 1 KB 141 (CA) (Logan).

Brandon J found that the plaintiff had good reason for suing in England due to its reasonable belief that it had a better chance in England. The defendant would not face great difficulty in defending proceedings in both England and Belgium. Brandon J rejected the defendants' argument that case law did not show that the balance of convenience could never afford ground for a stay: The Monte Urbasa [1953] 1 Lloyd's Rep 587 (The Monte Urbasa) 590; St Pierre 398. Balance of convenience alone was insufficient ground to stay proceedings because Scots law in Société du Gaz de Paris v Société Anonyme de Navigation Les Armateurs Français 1926 SC (HL) 13 (Société du Gaz) was inapplicable in England.

On appeal, the defendant argued that: (1) English and Scottish law were the same; (2) forcing the defendant to defend multiple proceedings was oppressive and unjust; (3) a stay would not prejudice the plaintiff; (4) even if prejudicial, not staying proceedings would prejudice the defendant for the same reasons; (5) allowing the plaintiff to continue its English proceedings was to authorise forum shopping disapproved in Boys v Chaplin [1971] AC 356 (HL) and contrary to international comity.

The plaintiff argued that in an action in rem a plaintiff is permitted to forum shop to get the greatest advantage, which includes procedural advantages: Baroda (Maharani of) v Wildenstein [1972] 2 QB 283 (CA) (Baroda). The plaintiff also argued that: (1) the Court had jurisdiction under the Administration of Justice Act 1956 (the AJA); (2) the AJA gave effect to, among other things, the International Convention on Certain Rules Concerning Civil Jurisdiction in Matters of Collision 1952 and should be construed in accordance with that Convention. Article 1.2 of that Convention gave the plaintiff free choice of jurisdiction to commence proceedings. The Court should not fetter such choice by staying proceedings; (3) it would be unjust to compel the plaintiff to prosecute its claim before the Antwerp Court, which would likely adopt the findings of the surveyor, because: (a) the plaintiff took no part in the initial stages of the surveyor's inquiry; (b) the plaintiff, in subsequently participating in the inquiry, did so on the basis that it would not be bound by the finding of the surveyor and would not prejudice its right to proceed in another jurisdiction by so doing.

The defendant's counterargument was that the Convention should not be looked at except where a statute purporting to give effect to it is ambiguous. The Convention is only concerned with jurisdiction. A court is not bound to exercise jurisdiction if it considers that an action ought to be stayed. The doctrine of forum non convenience developed in Scots law (Société du Gaz) and in the United States of America (Gulf Oil Corp v Gilbert (1946) 330 US 501; Canada Malting Co Ltd v Paterson Steamships Ltd (1932) 285 US 413 (Canada Malting)) accounted for the interests of international comity.

Held: Appeal dismissed.

The Antwerp Court was the appropriate forum. The Court has discretion to stay its proceedings: Supreme Court of Judicature (Consolidation) Act 1925 s 41. Such discretion is to be exercised following St Pierre 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 he 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.

According to Lord Denning MR, these well-applied principles should not be departed from: Baroda; Devine v Cementation Co Ltd [1963] NI 65 (NICA) (Devine); Sealey (orse Callan) v Callan [1953] P 135; The Soya Margareta.

When a plaintiff comes as of right to the Court in good faith and seeks redress from a defendant who is here, or whose ship is here, it is the duty of the Court to award it the redress to which it is entitled: McHenry; Peruvian Guano; Ionian Bank; Logan; In re Norton's Settlement. That plaintiff must not act oppressively or unjustly. The plaintiff cannot proceed if the action would cause injustice without doing the plaintiff any advantage. Inconvenience falling short of injustice is insufficient: St Pierre. English law is similar to Northern Irish law (Devine) but differs from the laws of Scotland and the United States of America: Société du Gaz; Canada Malting.

If a plaintiff considers that English law or procedure as advantageous and superior to other jurisdictions, it is entitled to bring its action here if it can serve the defendant, or arrest its ship, within the jurisdiction of the Court and provided also that its action is not vexatious or oppressive: JHC Morris, Dicey and Morris on the Conflict of Laws (8th edn, Stevens & Sons 1967) 1081.

The plaintiff with a collision claim is free to arrest just one ship (The Banco [1971] P 137 (CA)) in any country where it may be, which it considers gives the greatest advantage. The shipowner will obtain the release of the vessel by giving security just once: The Putbus [1969] P 136 (CA). The action goes for trial in the country thus selected by the plaintiff. It is committed to that country and so long as it pursues it there, after accepting security, it will not be allowed to pursue its claim in another country: The Christiansborg (1885) 10 PD 141 (CA); The Soya Margareta; The Lucile Bloomfield [1964] 1 Lloyd's Rep 324.

The plaintiff can only elect to sue in one country only. That election is made when the plaintiff arrests a ship or accepts security in lieu. It cannot arrest any other ship in any other port, nor obtain security elsewhere. If it brings an action in personam in one country, that does not by itself amount to an election. It may be permitted in proper cases to discontinue that action and pursue its claim in another country: The Janera [1928] P 55; The Hartlepool (1950) 84 Ll L Rep 145; The Soya Margareta 711.

This special advantage to a plaintiff in the English Admiralty Court is not a breach of international comity because it is internationally recognised and given effect to by the Convention. It has been ratified by the United Kingdom, Belgium, and others. Applying art 1.1, an action could be brought by the plaintiff (a) in the Netherlands where the Holland-America Line have their habitual residence; or (b) in England, where arrest could have been effected and security has been furnished; or (c) in Belgium where the collision took place. Thus, under art 1.2 the plaintiff can decide whether to sue in the Netherlands, England, or Belgium. If it decides to sue in England, it is not for the English Court to deny it that right. Under art 1.3 the plaintiff, having sued in England, cannot sue in Belgium without discontinuing the English action. It has never discontinued the English action. So it should not be allowed to bring an action in the Antwerp Court. Seeing that the UK and Belgium have each ratified this convention, it may be that the Antwerp Court might not allow the plaintiff to obtain judgment unless it first discontinued the English action.

Both English law and the Convention give the plaintiff the right to decide in which court to bring its action and to arrest one of the defendant's ships at whatever port it happens to call.

In this case, the plaintiff honestly believed that taking English proceedings was advantageous and so was entitled to bring proceedings here: Peruvian Guano 234. When the plaintiff brought its action in rem and the defendants put up security, the plaintiff had the right to proceed in England, even though proceeding in Belgium might be more convenient. The plaintiff did not lose the right to proceed in England because the defendant offered to provide reasonable security in Belgium. That offer cannot make the action vexatious or oppressive when it was not so beforehand: Chaney v Murphy (1948) 64 TLR 489 (CA) 492.

Lord Denning MR rejected the defendant's argument that the plaintiff's application to the Antwerp Court for a surveyor can lead to an unfair advantage because the plaintiff can accept a favourable report by litigating in the Antwerp Court or reject an unfavourable report by litigating in the English Court. Inquiries cannot take away the right of a plaintiff to pursue its remedy in the court of its choice: The Janera [1928] P 55. Also rejected was the defendant's argument on multiplicity of proceedings because the other actions before the Antwerp Court can be discontinued and restarted in England. The action should proceed in England with the plaintiff discontinuing proceedings in Belgium. This gives effect to the Convention between the two countries: art 1.2 of the Convention.

Dismissing the appeal, Cairns LJ found that Société du Gaz did not cast doubt on the principles in St Pierre 398. The inconvenience in this case was not so great as to amount to oppression, vexation, or injustice. The multiplicity of actions did not greatly inconvenience the defendants. There is no vexation if the plaintiff has reasonable grounds for suing in England, such as a more English satisfactory court procedure. International comity would not be promoted by staying English proceedings, which was brought in accordance with arts 1.1 and 1.2 of the Convention. It is immaterial that for special reasons the plaintiff has, since the action was started, done something which was not in accordance with art 1.3.

Due to established English case law (St Pierre 398), Phillimore LJ agreed with Lord Denning MR and Cairns LJ. Without such case law, Phillimore LJ would have allowed the appeal, preferring to apply the doctrine of forum non conveniens. It was wrong to risk inconsistent decisions: the Antwerp Court can be trusted to arrive at a right decision.