On 14 February 1979 the Francois Vieljeux, bound for the ports of Rotterdam, Hamburg and Bremen from Mombasa, encountered severe weather conditions and sank off the coast of Portugal, some 30 miles from the port of Vigo. Twenty-three people were drowned in the disaster and the cargo was a total loss. Only the master of the ship, the chief officer, and three others, survived. They were French, as were all the crew, and the ship was registered in France and sailed under the French flag. An inquiry was set up by the French Ministry of Merchant Marine to investigate the conduct of the master. This was in the nature of a criminal proceeding and, in due course, the master was found not guilty of that which may be said to be criminal negligence. The result would not, however, be conclusive in subsequent civil proceedings in the French courts and the master could still be found to have committed 'imprudence' amounting to a 'faute de nautique', which may be compendiously described as bad seamanship.

Some of the allegations made against the master as amounting to bad seamanship relate to his handling of the vessel during and as a result of the weather conditions encountered on the night of February 13 and 14, in the course of which a list of 7 degrees to starboard developed. It is said on behalf of the appellant, Ronning, that this occurred because the consignment of 500 tons of copper loaded before the ship docked in Mombasa had become loose due to a consignment of zinc in the same hold, which had been unloaded, not being replaced, as expected, by a consignment of coffee. Thus the consignment of copper was allowed to shift in the hold.

The appellant (in common with 14 other cargo owners) brought a claim in Mombasa against the respondents, as carriers, for failing to deliver 1,400 bags of Kenya coffee, grade AB, consigned on the Francois Vieljeux to Bremen under bill of lading number 21, and in the other actions which have been filed in France. This bill of lading was issued by the Svedel Line who are named as the second respondents. Svedel is the name by which the second respondents are compendiously known and under which they trade. SNCDV is a French company and both it and Svedel have their place of business, and indeed carry on business, in Paris.

The respondents applied for a stay of the proceedings on the ground that the claim should be decided in the French courts, because of the terms of cl 3 of the bill of lading which states: 'Any dispute arising under this Bill of Lading shall be decided in the country where the carrier has his principal place of business and the law of such country shall apply except as provided elsewhere herein.'

The appellant argued that the Hague Rules applied to the bill of lading by virtue of a paramount clause in cl 2 of the bill of lading, and that the forum selection clause in cl 3 contravened art 3.8 of the Hague Rules. This was because the action, if tried before the French courts, would almost assuredly fail, because of the view the French courts would take that improper stowage is only a faute nautique, in respect of which the carrier can have its liability excluded under art 4.2.a of the Hague Rules. Consequently that would produce a diminution of the liability of the carrier and cl 3 of this Bill of Lading would thus be caught by art 3.8 of the Hague Rules. 

The trial Judge granted a stay of proceedings on the basis that the appellant had failed to show that there was a strong cause for departing from the terms of the forum selection clause. The Judge was also not convinced that the forum selection clause contravened art 3.8 of the Hague Rules because the manner in which the Hague Rules were domestically enacted in Kenya meant that they did not have an overriding or mandatory effect. The appellant appealed against this decision. 

Held: Appeal dismissed.

Improper stowage of the vessel at Mombasa may have been a contributing or co-operating cause of the disaster, but the evidence at this stage does no more than suggest it was a possible cause which led to the dismantling and therefore the shifting of the cargo of copper. This case differs from The Morviken where it was manifest that the carriers’ liability would be reduced if Dutch law obtained, because it was self-evident from the Hague Rules. The court only had to compare them with the Hague-Visby Rules to see the difference. In this case there is little more than conjecture that the stowage was bad and that this was a cause of the disaster. There was therefore no error by the judge in failing to hold that bad stowage was the front-runner as the cause of the casualty. Since the forum selection clause is not struck down by art 3.8 of the Schedule to the Carriage of Goods by Sea Act (cap 392, Laws of Kenya), which was enacted in 1926, and which is modelled on the Carriage of Goods by Sea Act 1924 (UK), it became a matter of discretion for the Judge as to whether he should grant a stay of proceedings on the basis of the forum selection clause. He considered the case on the basis of the criteria laid down by Brandon J in The Eleftheria. In applying the test stated in The Makefjell and referred to with approval in The Adolf Warski, and in more detail by Brandon LJ in The El Amria, the trial Judge did not misdirect himself in law.