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High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Jahwar v. Owners and all parties interested in the MV "Betta Livestock 17" [2001] IEHC 137 (29th May, 2001)
URL: http://www.bailii.org/ie/cases/IEHC/2001/137.html
Cite as: [2001] IEHC 137

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Jahwar v. Owners and all parties interested in the MV "Betta Livestock 17" [2001] IEHC 137 (29th May, 2001)

THE HIGH COURT
(ADMIRALTY)

1999 No. 9655P
BETWEEN
MUSHEN JAHWAR
PLAINTIFF
AND
THE OWNERS AND ALL PARTIES INTERESTED IN THE MV “BETTA LIVESTOCK 17”
DEFENDANT
JUDGMENT of Mr. Justice Barr delivered on the 29th day of May, 2001.

1. The plaintiff was until 14th October, 1999 the master of MV “Betta Livestock 17” (the ship). She is owned by Betta Investment SA, a Honduran company with a registered address in Greece, and managed by a firm called Union Commercial Company which is registered in and operates from Syria. There is a related London based company called Marunion Company Limited which is also authorised by the owners to act on their behalf regarding the affairs of the ship. Cambodia is the flag state of the ship which is registered in Pnom Phen. Ireland and Cambodia have each subscribed to and ratified the International Convention relating to Arrest of Sea-Going Ships, 1952 and it has been incorporated into Irish Law by the Jurisdiction of the Courts (Maritime Conventions) Act, 1989. (the Act) The plaintiff’s claim is for master’s disbursements and wages arising out of his function as master of the ship under Article 1 of the Convention. It is not in controversy that this court has jurisdiction to hear and determine such claims under Section 5 of the Act.

2. Briefly stated, the factual background to the dispute between the plaintiff and the owner’s managing agents is the contention of the former that the owners have not reimbursed him certain expenditure made on behalf of the ship in course of its operations to which he claims to be entitled on foot of his contract of service as master of the ship. There appears to have been a deterioration in the relationship between the plaintiff and the defendant’s managing agents from in or about the latter part of year 1998. Disagreement was not confined to the plaintiff’s claim for disbursements and wages. There was also a dispute about the employment of a ship’s chef. He had been selected by the agents but the plaintiff, as ship’s captain, was unwilling to have him under his command. It appears that this particular dispute brought matters to a head and on or about 14th October, 1999 the plaintiff’s contract terminated. There is controversy as to which side was responsible in that regard. In all events, a new master was employed by the managing agents and he took command of the ship then at the port of Waterford. It is not in dispute that the plaintiff’s contract of service as master of the ship was made orally in Syria. The plaintiff is a Syrian national and appears to be domiciled in that State.

3. At or about the time when the plaintiff’s contract terminated he applied to this court for the arrest of the ship while in Waterford. There is no doubt having regard to the nature of his claim that he was entitled to take that course. Negotiations then took place between the plaintiff and his representative from SIPTU, Mr. Tony Ayton and Mr. Mohamed Arfan Zeido who resides in London and is a director of Marunion Co. Limited and an authorised representative of Union Commercial Company, the other agent for the ship employed by the defendant. Negotiations continued for some days but in the end were unfruitful. On 20th September, 1999 the defendant’s solicitors filed a caveat against arrest of the ship. On 27th September, 1999 the plenary summons was issued in these proceedings. On 5th October, 1999 the ship was released from arrest, security having been provided on behalf of the defendant by way of a bank guarantee in the amount of US $80,000. On 14th October, 1999 the plaintiff was repatriated to Syria at the expense of the defendant. The statement of claim was delivered on 14th January, 2000. No further steps were taken in the action by the defendant until in or about 1st December, 2000 when a Notice of Motion was issued and served on behalf of the defendant seeking an order staying these proceedings on the basis of the doctrine of forum non conveniens , or in the alternative, an order directing the plaintiff to furnish security in respect of the defendant’s costs in the action. These are the issues which are before the court.


THE LAW

4. As already stated, there is no doubt that Ireland and Cambodia, the flag state, having subscribed to the Arrest Convention of 1952 and as the plaintiff’s claim is one against the owners for disbursements, wages and other related matters arising out of his contract of service as master of the ship, he was entitled to obtain an order for her arrest as she was then lying in an Irish port, and to pursue his claim against the defendant owner by way of an action in this court. One obvious advantage in taking that course was that he had the prospect of obtaining substantial security from the defendant in respect of his claim. They were concerned to obtain the release of the ship from arrest and this entailed providing the bank guarantee for the prospective benefit of the plaintiff to which I have referred. However, though entitled to bring proceedings in this jurisdiction, the plaintiff does not have an absolute right to trial in this court. Section 7 (1) of the Act provides

“Nothing in this Part -..................
(b) shall be construed as limiting the jurisdiction of the court to refuse to entertain an action for the possession of a ship or for wages by the master or an officer or member of the crew of a ship that is not an Irish ship”.

5. I am satisfied that this provision applies to a ship the flag of which is that of a state which has subscribed to the Arrest Convention of 1952. The defendant may defeat the plaintiff’s prima facie right to trial in Ireland by proving to the satisfaction of the court that in all the circumstances proceedings in this jurisdiction should be stayed on foot of the doctrine of forum non conveniens . This entails establishing that there is a more convenient forum (in this case the maritime court of Syria ) for trying the issues between the parties and that in the interest of justice it is proper that these proceedings should be stayed.

6. The doctrine of forum non conveniens was considered by the High Court and Supreme Court in Intermetal Group Limited and Trans-World (Steel) Limited -v- Worslade Trading Limited [1998] 2 IR 1 in which it was laid down that there should be a broad approach to the assessment of whether or not the proceedings in Ireland should be stayed in favour of a court in another jurisdiction.

7. Murphy J in the course of his judgment in the Supreme Court (which was adopted by the other members of the court, Lynch and Barron J J) at pp. 33-37 referred to the judgment of the English Court of Appeal in Re: Harrods (Buenos Aires) Limited [1992] Ch. 72. He commented that -

“Bingham L J ........ delivering a judgment in which Stocker L J concurred, explained that his starting point in applying the doctrine of forum non conveniens was the principal formulated by Goff L J in Spiliada Maritime Corp. -v- Cansulex Limited in the following terms:-
“ That a stay would only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e., in which the case may be tried more suitably for the interests of all the parties and the ends of justice” [emphasis added by Bingham L J] .

8. Bingham L J then went on himself to comment (at p. 124) as follows:-

“The words I have emphasised make clear, as does the reference to justice, that a broad overall view must be taken: the primary task is not to decide which forum is advantageous or disadvantageous to any particular party. The court should look first to see what factors there are, for taking this broad overall view, which point in the direction of another forum (See p. 477 G): at that stage it is connecting factors (including convenience, expense, availability of witnesses, governing law, place of residence and place of business) which must be considered: See p. 478 A-B. If it is shown that there is some other available forum which prima facie is clearly more appropriate for the trial of the action a stay will ordinarily be granted unless on a consideration of all the circumstances justice requires that a stay should not be granted: See p. 478 D”

9. Bingham L J pointed out (at p.123) that:-

“One cannot decide where a matter should be most appropriately and justly tried without being clear what is to be tried”.

10. Later in his judgment at pp. 35-36 Murphy J summarised his conclusions as follows:-

“I am satisfied that the principle quoted from the judgment of Goff L J by Bingham L J is fully consistent with the judgment of Blayney J in Doe -v- Armour Pharmaceutical Co. Inc., [1994] 3 IR 78 and represents a correct statement of law in this jurisdiction.
In these circumstances I have reached the conclusion that the test proposed by Diplock L J in MacShannon -v- Rockware Glass Limited [1978] AC 795, is not an appropriate one. To refuse a stay because it would “deprive the plaintiff of a legitimate personal or juridical advantage which would be available to him if he invoked the jurisdiction of the English court” is, in my view, too narrow a test. The proper test is as Bingham L J said in In Re Harrods (Buenos Aires) Limited [1992] Ch. 72 and Blayney J had anticipated in Doe -v- Armour Pharmaceutical Co. Inc., [1994] 3 IR 78, the broader principle of justice for both parties. To apply a narrower test might involve refusing a stay on the grounds of relatively minor procedural differences or the perception as to quantum of damages awarded in different jurisdictions”

In Intermetal Group Limited the defendant led evidence to establish that the Russian courts provided the most appropriate forum for trying the plaintiff’s action. Murphy J concluded that “the question as to which jurisdiction the proceedings are most closely connected must be answered in favour of the Russian courts” (p. 37). However, he recognised that a further issue remained as to whether justice required that the action should nevertheless be heard in Ireland and he held that the onus lay on the plaintiff to establish that point. In the light of the particular circumstances he held that while notwithstanding the apparent convenience of a trial in Russia, the plaintiff company should be allowed to proceed with its action in Ireland. An important point which led to that conclusion was the incorporation of the defendant company in Ireland i.e., it had a permanent identity in this jurisdiction.

11. In the instant case it must be recognised that neither party to the action has any connection with Ireland. It was possible for the plaintiff to sue the defendant in this jurisdiction because of the fortuitous fact that the ship required to visit an Irish port for a short time in course of its commercial activity. However, it does not seem to me that a defendant (and plaintiff) having a mere transient connection with this state is thereby absolved from the jurisdiction of the Irish courts in favour of an alternative forum elsewhere - although, of course, a transient connection with Ireland is a factor to which the court will attach significance in assessing the plaintiff’s claim that in the interest of justice the action should be allowed to proceed in this jurisdiction.



FORUM CONVENIENS

12. The defendant’s argument that the maritime court of Syria is the most appropriate forum for trying the plaintiff’s action against the defendant may be summarised as follows:-

  1. That neither party has any connection with Ireland other than the fortuitous circumstance that the ship was lying in the port of Waterford when the dispute between the parties came to a head - thus providing the plaintiff with an opportunity to have the ship arrested in this jurisdiction which in turn opened the way for the bank guarantee of US $80,000 in favour of the plaintiff to which I have referred;
  2. that the plaintiff is domiciled in Syria and has his home there;
  3. that the Union Commercial Company, the ship’s manager, is a Syrian company and operates from that state;
  4. that the oral contract of service between the plaintiff and the defendant company was made in Syria and is governed by Syrian law. Accordingly, the expense of proving Syrian law in this court would be avoided;
  5. that in the main the plaintiff was paid wages and disbursements in Syria;
  6. that the defendant would require to rely on several Syrian witnesses to make its defence;
  7. that all or most witnesses, being unable to speak English, would have to give their evidence in Arabic for which the services of an interpreter would be required. This would add substantially to the length and expense of the trial and also would affect assessment of the quality of the evidence.
  8. All or most of the relevant records and other documents are in Arabic and would require to be translated for the benefit of this court.
  9. It was submitted that the foregoing bank guarantee in favour of the Plaintiff would remain in place and would be available to him if he were ultimately successful in the Syrian courts. There is no doubt that some appropriate arrangement could be arrived at to preserve that potential advantage for the plaintiff.

13. The defendant’s argument was based in the main on the affidavit sworn by Mr. Mohamed Arfan Zeido who had conducted negotiations with the plaintiff and Mr. Tony Ayton of SIPTU in September, 1999 which he contends had resulted in an oral agreement with the plaintiff which resolved his dispute with the ship’s agents but on which the former is alleged to have reneged subsequently.

14. At first sight the defendant’s argument in favour of a Syrian forum conveniens for trying the dispute between the parties would appear to have much merit. However, there are factors which cast doubt on its validity. These are as follows:-


  1. There has been an unexplained substantial delay of 11 months by the defendant before they sought to have the proceedings transferred to a Syrian court. This has prejudiced the plaintiff in obtaining the relief which he seeks. If the defendant’s motion is successful the plaintiff, at best, will have to launch a new action ab initio .
  2. According to a report on Syrian law furnished by Mr. Mustafa Al Mahmoud, a lawyer practising in that jurisdiction, the basis on which a Syrian court would accept jurisdiction in a dispute such as that between the plaintiff and the defendant company is that it arose out of a contract made in Syria. It is stated that it is also a requirement of Syrian law that the plaintiff would be obliged to furnish security to cover the expenses of the trial court. No information has been given about the amount of security which might be fixed by the court in that regard. Although it is contended that the plaintiff is now employed elsewhere as a ship’s master, his earnings may not be sufficient to enable him to arrange the security required by the Syrian court and in consequence he may be unable to pursue his claim in that jurisdiction.
  3. There appears to be a major issue as to whether the law of the plaintiff’s contract of service with the defendant company is Syrian as alleged, bearing in mind that the flag of the ship is Cambodian and the defendant is a Honduran company. If the contract is not governed by Syrian law then it would appear that the Syrian court would have no jurisdiction to try the plaintiff’s claim against the defendant.
  4. Most wages and disbursements appear to have been made to the plaintiff outside Syria. The books and records kept on board ship and by the ship’s agents would appear to constitute the primary items of proof in that regard. In the light of Mr. Zeido’s affidavit and the agreement which he alleges was arrived at by him with the plaintiff in Waterford, it appears that, if his evidence is correct, the parties had no great difficulty in resolving their dispute. This suggests that a trial in Ireland, as in Syria, should be comparatively straight forward and may not require much evidence in Arabic other than translations of the relevant records. In that regard there should not be any great difficulty in arranging agreed translations in advance of trial.

15. Taking the foregoing matters into account, I have arrived at the following conclusions:-

  1. I am not satisfied that the Syrian maritime court is a more appropriate forum to try the plaintiff’s action. The law of the contract may be Cambodian and not Syrian with the result that the Syrian court may find itself without jurisdiction to try the action. The requirement, which seems to be mandatory, that the plaintiff shall give security to the Syrian court may in practical terms defeat his claim depending on the amount of security required. The only positive advantages which trial in Syria would provide are the desirability of conducting the proceedings in Arabic; the avoidance of the need for an interpreter and the requirement that Syrian witnesses shall come to Ireland.
  2. Even if I were satisfied that, prima facie , the Syrian maritime court is the most convenient forum to try the plaintiff’s claims against the defendant, it seem to me that having regard to the defendant’s delay in bringing this motion; the imponderable situation as to the requirement that the plaintiff shall give security measured by the Syrian court, and more importantly, the real doubt which appears to exist regarding the law of the contract in consequence of which the Syrian court may have no jurisdiction to try the plaintiff’s action against the defendant, it would be unjust to deprive him of his opportunity to avoid the foregoing difficulties and have the benefit of trial in this jurisdiction.

16. Accordingly, I refuse the defendant’s application for an order staying this action.


SECURITY FOR COSTS

17. The remaining matter is the defendant’s application that the plaintiff shall give security for the defendant’s prospective costs of defending the action in this jurisdiction.

In Collins -v- Doyle [1982] ILRM 495 Finlay P, as he then was, laid down the following framework within which a court should consider whether security for costs should be granted in favour of a defendant. In that case the plaintiff who resided outside the jurisdiction claimed damages for personal injuries which he alleged were caused by the defendant’s breach of duty to him as an invitee in the defendant’s premises. The defendant applied for security for costs but the plaintiff alleged in reply that his injuries had resulted in an inability to earn and that he was unable to provide any security for costs. It was held by the trial judge -

18. In response to the defendant’s claim, Mr. Crosbie, counsel for the plaintiff, submitted that there is no precedent for ordering a master or a seaman to give security for costs in a claim for master’s disbursements or wages. Over the years I have tried many Admiralty actions involving claims by foreign masters and crew for wages relating to service on foreign owned ships arrested in Ireland. I do not recall any defendant seeking security for costs from plaintiff seamen making such claims. Although in this case the plaintiff appears to have resumed employment as a ship’s master, the likelihood is that his earnings are modest. His pay when employed by the defendant company amounted to US $2,000 per month. Wages in or about that amount would not enable him to fund the amount of security which would be likely to be fixed by the court in this case. In that event he would be prevented from pursuing a claim for a basic right i.e., payment of wages and master’s disbursements in connection with his employment as captain of the ship. In my opinion it would be manifestly unjust to inhibit or prevent the plaintiff from pursuing his claims in this action on that ground. The defendant is not entitled to security for costs.



© 2001 Irish High Court

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URL: http://www.bailii.org/ie/cases/IEHC/2001/137.html