The plaintiffs’ ship, the USNS Bowditch, collided with the defendants’ ship, the Po. The plaintiffs filed a writ in rem against the Po to enforce their damage maritime lien. The writ was served on the Po while the ship was docked in the port of Southampton. The Court was then seised of the action which had been properly brought.

The Po was not arrested in Southampton, thanks to the issuance of a letter of undertaking by the Steamship Mutual Underwriting Association Ltd, which was addressed to the plaintiffs. The defendants communicated with the plaintiffs’ solicitors, attaching a draft of the proposed letter of guarantee. Additionally, they reserved their right to challenge the jurisdiction of the English Court on the grounds of forum non conveniens.

At that time, it was common practice for solicitors to accept letters of guarantee as security for any claims mentioned in s 20(2) of the Supreme Court Act 1981 (UK) (the Act), often without appreciating the potential pitfalls, especially if the offending ship was owned by a company domiciled in one of the countries of the European Economic Community (EEC). If shipowners were domiciled in the EEC, an action could not be maintained against them in this country unless one of their ships had been arrested or they had expressly agreed to submit to the jurisdiction of the English Court.

The defendants served two notices of motion on the plaintiffs. The first sought an order from the Court to stay the action on the basis of forum non conveniens, arguing that the case could be more suitably tried in Brazil for the interests of all the parties and the ends of justice. The second motion requested the Court to declare that it lacked jurisdiction to determine this dispute, asserting that proceedings against the defendants should have been initiated in Italy, the country in which the defendants were domiciled.

Held: Motions dismissed.

The Court considered The Deichland [1989] 2 Lloyd's Rep 113 (CM2233), in which the Court of Appeal held that the Civil Jurisdiction and Judgments Act 1982 (UK) (the 1982 Act) and the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 (the 1968 Convention) constituted a comprehensive code. According to this code, if defendants are domiciled in a Contracting State, they must be sued in that State, unless the case falls within the exceptions contained in arts 2.6 and 57 of the 1968 Convention which, in this instance, would mean that the matter is governed by the Arrest Convention 1952.

Both the United Kingdom and Italy are signatories to, and have ratified the Collision (Civil Jurisdiction) Convention 1952. Based on this, the plaintiffs submitted that the courts of the country where the arrest was made must have jurisdiction to determine the case on its merits if the domestic law of that country grants jurisdiction to such courts, or in cases arising from a collision or in circumstances covered by art 13 of the Collision Convention 1910.

The defendants submitted that the plaintiffs could not rely on the Collision (Civil Jurisdiction) Convention 1952 because it had not been fully incorporated into the law of England by legislation. However, the Court noted that incorporating the entire Convention into new legislation was unnecessary, since many of its provisions were already part of the law of the country.

The Court recognised that the Administration of Justice Act 1956 (the 1956 Act) gave effect to the Collision (Civil Jurisdiction) Convention 1952. It accomplished this by confining the English admiralty jurisdiction in personam to align with arts 1.1.a and c of that Convention, and by extending the English admiralty jurisdiction in rem to sister ships in accordance with art 1.1.b of that Convention. Additionally, s 4 of the 1956 Act aimed to give effect to arts 1, 3, and 4 of the Collision (Civil Jurisdiction) Convention 1952, with s 4 mirroring the terms of art 13 of the Collision Convention 1910. Section 4(7) of the 1956 Act substantially reproduced the terms of art 4, indicating the legislature's intent to ensure precise correspondence between the changes in English law and the provisions of the international Convention it sought to adopt.

The Court further observed that the 1968 Convention provided general provisions on matters, and therefore Conventions relating to specific matters prevailed over the 1968 Convention. Such specific Conventions included the Collision (Civil Jurisdiction) Convention 1952. The plaintiffs relied on art 1.1.b of the Collision (Civil Jurisdiction) Convention 1952, and that part of para b related to the arrest of a sister ship, which was incorporated into the law of England by s 21(4) of the Act. The remaining parts of para b did not need to be incorporated into new legislation because they were already part of the law of this country.

The Court drew a distinction between the Arrest and the Collision (Civil Jurisdiction) Conventions, because art 1.1.b of the latter Convention makes a reference to 'the Court of the place where arrest has been effected of the defendant ship or of any other ship belonging to the defendant which can be lawfully arrested or where arrest could have been effected and bail or other security has been furnished'. Without these last words, there would have been no doubt but to grant a stay. However, it was clear that in an action arising out of a collision between ships, the Court has jurisdiction in the circumstances of this case. There are no comparable words in art 7 of the Arrest Convention 1952. Therefore, the Court has jurisdiction to hear the matter. The motion for a stay on the basis of forum non conveniens is dismissed.