This was an appeal from the decision of Songoro J in the High Court, Commercial Division, striking out the appellant's suit on the ground that the Court had no jurisdiction. The basis for the High Court judgment was that the suit was based on a bill of lading containing an exclusive jurisdiction clause in favour of the Tribunal de Commerce Marseille.

Held: Appeal dismissed. The High Court order striking out the suit is vacated and substituted with an order staying proceedings pending filing of the suit in the forum chosen by the parties.

The appellant drew the Court's attention to the Hamburg Rules, and pointed out that they were ratified by Tanzania on 26 August 2002, and came into force on 24 February 2004. The appellant argued that by virtue of art 2.1.a of the Hamburg Rules, the Convention applied to all contracts of carriage by sea between parties of different States if the port of loading was in one of the contracting States. The appellant also drew the Court's attention to the Carriage of Goods by Sea Act, Cap 164 RE 2002 (the Act), which allegedly domesticated the Hamburg Rules into Tanzanian law. The appellant argued that the High Court of Tanzania had jurisdiction under arts 21.1.a, 21.1.b, and 21.1.c of the Hamburg Rules because the provision provided for actions in either of three places, namely: (1) where the defendant has its principal place of business or habitual residence; or (2) where the contract was made, provided the defendant maintains a place of business or branch or agency: or (3) the port of loading or port of discharge. The appellant maintained that two of the three conditions were met in this case, because Tanzania was the port of loading, and also the agent of the carrier, the second respondent, had its place of business in Tanzania.

The respondent argued that art 21.1.d of the Hamburg Rules covered the parties' choice of forum by allowing for suit in 'any additional place designated for that purpose in the contract of carriage by sea'. The respondent further submitted that, despite Tanzania's ratification of the Hamburg Rules, the Rules were not applicable in Tanzania until such time as they were domesticated. The Act was in fact a result of domestication of a different Convention altogether (the Hague Rules), so it had nothing to do with the Hamburg Rules.

Notwithstanding being a signatory of the Hamburg Rules, Tanzania has yet to introduce its obligations by enactment into its domestic legal framework. The Act still reflects the Hague Rules. The colonial Government enacted the Carriage of Goods by Sea Ordinance 1927, in line with the Hague Rules. This Ordinance was later adopted by the independent Government in 1961 before it was subsequently re-enacted as the Act.

This means that the appellant's argument that the b/l offends the Act as well as the Hamburg Rules is not supported by the available academic literature or the Act itself. The Court must dismiss this argument and hold that the Hamburg Rules, although ratified, are not directly applicable in Tanzania, because they have not been domesticated.

The respondent further submitted that, assuming that the Hamburg Rules were applicable as argued by the appellant, art 21.1.d of the Hamburg Rules, which the appellant chose not to refer to in its submissions, clearly allowed the parties to choose a forum for litigation of their disputes.

The general rule is in favour of holding the parties to their agreement regarding choice of forum. For an exception to that rule to succeed, the Court has to be convinced by strong reasons that there are circumstances that justify such a course. There is no basis for the Court holding the choice of forum clause here is inconvenient, discriminatory, or biased, because it is within the law, and is a manifestation of the choice of the parties. Nor has the appellant made a strong case for the Court concluding, for instance, that it will not receive a fair trial in France.

Therefore, the Court agrees with the Judge, but only to the extent that, when there is a choice of forum clause in a b/l, the court has to enforce that choice made by the parties. That, however, does not mean that the Court's jurisdiction has been ousted by the parties. Since the High Court had the requisite jurisdiction, it could not strike out the suit because, save for the choice of forum clause, it had been filed before a competent court. Rather, it should have stayed the proceedings.