The facts of this case were summarised in CMI2775. At first instance, Brandon J dismissed the defendant's application to stay proceedings: The Atlantic Star [1972] 1 Lloyd's Rep 534 (The Atlantic Star (HC)). Although the Antwerp Court was the more appropriate forum, Brandon J felt bound by case law to refuse the stay. Brandon J found that the plaintiff 'would be prejudiced by a stay' because it 'would be deprived of an advantage which [it] genuinely and reasonably believes trial of his claim in England would give [it]': The Atlantic Star (HC) 539. Brandon J also found that the 'degree of inconvenience and expense' was insufficient to 'make it unjust to the defendants to oblige them' to defend the action in rem.

Brandon J was affirmed on appeal: Owners of the Motor Vessel 'Atlantic Star' v Owner of the Motor Vessel 'Bona Spes' (The Atlantic Star) [1973] QB 364 (CA) (The Atlantic Star (CA)). Phillimore LJ agreed in dismissing the appeal but, unlike Lord Denning MR or Cairns LJ, also stated that he would have allowed the appeal had it not been for the case law.

The defendant appealed again. After The Atlantic Star (CA) was decided, the other actions before the Antwerp Court could not be abandoned as they would be time-barred in England. The defendant argued that the doctrine of forum non conveniens should be adopted to promote international comity and reduce forum shopping and the risk of conflicting decisions. As to the International Convention on Certain Rules concerning Civil Jurisdiction in Matters of Collision 1952 (the Convention), a distinction must be drawn between jurisdiction and grant of a stay. The Convention is concerned with jurisdiction. The Administration of Justice Act 1956 (UK) (the AJA) gave effect to the provisions of the Convention. The AJA did not limit the power of the English court to grant a stay but preserved it: AJA s 7(2). The Convention merely stated the principle that the plaintiff has a right to choose the jurisdiction because the plaintiff is the dominus litis. The AJA echoes this. Part 5 of the AJA would not be silent on the power to grant to stay if the Convention was meant to limit that power: AJA ss 45, 47.

In response, the plaintiff argued that the doctrine of forum non conveniens was inconsistent with the AJA and the Convention, and contrary to comity. Comity demands that English courts recognise the Convention, which allows the plaintiff to choose its jurisdiction. It would be a mockery to allow the plaintiff to choose the English Court and then stay its action. The Convention dealt with more than just jurisdiction: art 1.2.

Held: Appeal allowed.

The majority (Lord Reid, Lord Wilberforce, Lord Kilbrandon) found the Convention to be irrelevant to the issue of whether the action should be stayed.

Lord Reid noted that in 1952, the State Parties to the Convention agreed certain rules regarding civil jurisdiction in matters of collision. The Convention only purports to deal with jurisdiction. Lord Reid highlighted that 'Courts' under art 1.2 of the Convention includes the Court of the place where an arrest had been effected. Lord Reid rejected the plaintiff's argument on art 1.2 because it would restrict the Court from staying the action on any ground except perhaps bad faith. Lord Reid refused to read into art 1.2 some qualification such as 'provided that his decision is reasonable'. There are some very limited grounds on which an English Court can stay an action arising out of a collision, eg where the ship has already been arrested in another jurisdiction and security obtained there. If that was the meaning of the Convention, then English law will need to be changed, and under Scottish law, the doctrine of forum non conveniens would be inapplicable to collision cases. Lord Reid held that Parliament must have rightly thought that the Convention dealt solely with jurisdiction and had nothing to do with power to stay an action. As a treaty, the Convention does not become part of the law except insofar as it is embodied in an Act of Parliament. The AJA was intended to bring the laws of the United Kingdom into line with the Convention. But nothing in the AJA altered the law of either England or Scotland to restrict the power of the Court to stay an action.

Lord Wilberforce stated that the AJA was passed in order to implement this Convention. The AJA was clear. It was unnecessary to refer to the Convention to interpret the AJA. The Convention does not represent, or constitute, customary international law: it is a limited agreement between its parties. It has no legal effect in a private suit in England except so far as incorporated in law. The Convention could not avail the respondent who is a citizen of the Netherlands, which is not a party to the Convention: and, though Belgium is a party, no Belgian subject is concerned in the action.

Lord Kilbrandon said that the Convention is concerned solely with jurisdiction, as its name implies, and as its terms indicate; the existence of two or more competent fora, each with jurisdiction to hear a particular dispute is a condition precedent to an application to stay being entertained. The Convention itself (to which the Netherlands is not a party) is of no standing in a municipal matter such as the present. While the AJA goes some way towards giving statutory effect to the provisions of the Convention, it made no reference to motions to stay.

The majority also declined to apply the doctrine of forum non conveniens, which the laws of Scotland and the US apply: La Société du Gaz de Paris v Armateurs Francais (1925) 23 Ll L Rep 209; Gulf Oil Corp v Gilbert (1946) 330 US 501; Canada Malting Co Ltd v Paterson Steamships Ltd (1932) 285 US 413 (Canada Malting); Baltimore and Ohio Railroad v Kepner (1941) 314 US 44, 55-56; The Chaparral [1972] 2 Lloyd's Rep 315, 320. In contrast, there is the English legal principle that, if a Court has jurisdiction which is invoked by a plaintiff, it will not deny it justice. A foreign plaintiff, who can establish jurisdiction against a foreign defendant by any method recognised by English law, is entitled to pursue its action in the English Courts if it genuinely thinks that that will be to its advantage and is not acting merely vexatiously. Conflicting decisions due to proceedings on the same matter in a foreign Court may arise. It may be a far more appropriate forum. The defendant may have to suffer great expense and inconvenience. Nevertheless, the plaintiff is entitled to obtain the decision of an English Court but must not act vexatiously or oppressively or in abuse of process: St Pierre v South American Stores (Gath & Chaves) Ltd [1936] 1 KB 382 (CA) (St Pierre) 398; The Soya Margareta [1961] 1 WLR 709 (The Soya Margareta) 716; The Quo Vadis [1951] 1 Lloyd's Rep 425 (The Quo Vadis); Ionian Bank Ltd v Couvreur [1969] 1 WLR 781 (CA); McHenry v Lewis (1883) 22 ChD 397 (CA); The Christiansborg (1885) 10 PD 141 (CA). The rule was in St Pierre 398 as follows. First, a plaintiff will not be deprived of its action on a mere balance of convenience, and second, that:

(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 ...

Thus, the Court will also look at whether the English Court was chosen 'for any legitimate reason': In re Norton's Settlement [1908] 1 Ch 471 (CA) 482 (Norton's Settlement). A litigant would not be deprived of its right to sue in England unless there was oppression or waste or vexation if that suit proceeded and if the Court by staying it could do no harm: Thornton v Thornton (1886) 11 PD 176 (CA) (Thornton). In Peruvian Guano Co v Bockwoldt (1883) 23 ChD 225 (CA) (Peruvian Guano), the Court decided that suing a defendant in two different forums was not vexatious 'where the plaintiff seeks to get a real substantial advantage': Peruvian Guano 230. There was a reluctance to 'deprive' the plaintiff of 'the opportunity of asserting their rights' in good faith: Peruvian Guano 232, 234. English law thus rejected the alternative test of a 'mere balance of convenience': St Pierre 398; Thornton; Norton's Settlement.

The majority thought that the English legal rule (as stated in St Pierre 398) requiring the plaintiff to not act vexatiously, oppressively or in abuse of the process of the Court should be interpreted more liberally. The question would be whether the defendants have shown that to allow the case to proceed in England would in a reasonable sense be oppressive looking to all the circumstances including the personal position of the defendant.

Lord Reid found that there is generally no injustice in telling a plaintiff to go back to its own Courts. Forum shopping was undesirable. Where the plaintiff merely comes here to serve its own ends, the plaintiff should offer some reasonable justification for its choice of forum if the defendant seeks a stay. But here the Belgian Court offered no difficulty and security was offered in Belgium. Although the well-resourced defendant will not suffer great hardship in litigating in this Court, that is only one consideration. The defendant has shown that they ought not to be required to litigate here as well as in Belgium.

Lord Wilberforce found that the AJA did not oblige the Court to proceed with any case. The Court has inherent and residual power to stay proceedings: s 41 of the Supreme Court of Judicature (Consolidation) Act 1925; Arnold Whitman Knauth, The Law of American Admiralty, vol 1 (6th edn, Matthew Bender 1940) 260; Canada Malting. In considering whether a stay should be granted the Court must consider the advantage(s) to the plaintiff and the disadvantage(s) to the defendant. The disadvantage to the defendant must be more serious than the mere disadvantage of multiple suits and more substantial to prevail against the plaintiff's advantage. The words 'oppressive' or 'vexatious' indicate the required degree of prejudice. Both advantage and disadvantage will be assessed relatively and according to the individual circumstances of the plaintiff and defendant: Devine v Cementation Co Ltd [1963] NI 65. When considering whether there was any special factor relevant to the Admiralty jurisdiction which would modify the general rule, Lord Wilberforce pointed out the following. First, a very clear case is needed to justify a stay, where a plaintiff is (properly as to jurisdiction) suing here; the mere fact that there are proceedings abroad is not enough: The Quo Vadis; The Monte Urbasa [1953] 1 Lloyd's Rep 587; The Lucile Bloomfield [1964] 1 Lloyd's Rep 324; The Soya Margareta. Second, although the maritime lien that exists on the Atlantic Star is frequently a strong reason for retaining the action in the English Court, it is not always decisive. Here, the English action brought no real advantage to the plaintiff but brought real disadvantages to the defendant.

Lord Kilbrandon found the English proceedings oppressive or vexatious. This was not a court declining jurisdiction, but rather a court finding that another forum was more appropriate to hear the dispute. Besides, the plaintiff requested for a surveyor so the surveyor's report was not a disadvantage.

The minority (Lord Morris and Lord Simon) thought that if well-established English law had to be changed, it should be made by some process other than that of judicial pronouncement.

Lord Morris thought that change, if any, should be possibly only after processes of consultation which might lead to a common acceptance of policy by the maritime countries principally concerned. The Admiralty Court is special because of maritime liens: The Bold Buccleugh (1851) 7 Moo PC 267 (PC); Currie v M'Knight [1897] AC 97 (HL); The Ripon City [1897] P 226. If a plaintiff sues in England and was entitled to sue, proceedings will only be stayed if they are oppressive or harassing or are brought in bad faith and for no legitimate reason. As for forum shopping, so long as maritime nations have not decided to have some new and common or uniform provisions of law, a plaintiff with a maritime lien will exercise its rights in such manner as it deems best calculated legitimately to advance its interests. The AJA was enacted after the Convention. Nothing in the AJA requires the Court to exercise its power to stay on principles differing from the past. The plaintiff's action in rem was not vexatious or oppressive, nor in bad faith. The plaintiff reasonably believed that its claim might fail in Belgium and that in England it will have a better chance of success. This Court should not decide whether such belief is right or wrong.

Agreeing with Lord Morris, Lord Simon stated that English Courts are normally confined to examining the statutes giving effect to a convention and precluded from scrutinizing the treaty itself. But where public policy and international comity are invoked, it is incumbent to examine the UK's formal international obligations: The Arantzazu Mendi [1939] AC 256 (HL) 264; Adams v Adams [1971] P 188, 198C. Having ratified the Convention, the UK enacted the AJA to give effect to it. All that the AJA had to do and did in this respect was to confine the English Admiralty jurisdiction in personam so as to conform with arts 1.1.a and 1.1.c of the Convention (AJA s 4) and to extend the English Admiralty jurisdiction in rem to a sister ship in accordance with art 1.1.b of the Convention (AJA s 3(4)(b)). To covenant in art 1.2 that it shall be for the 'plaintiff' to decide in which of the various Courts open to it the action shall be instituted, and then to proceed to stay its action if it chooses the one most convenient to itself but not to everyone else, is contrary to the obligations imposed by international treaty. The unaltered English rule was suitable and intricately involved with the UK's international obligations.