Herceg Novi, Owners Of The Ship v Ming Galaxy, Owners Of The Ship

In a forum non conveniens application, a claimant’s domestic juridical advantage does not ordinarily justify keeping proceedings in England when a foreign forum is clearly more appropriate and substantial justice will be done there. The assessment must be objective and take account of all parties.

A higher limitation figure under the 1976 Convention was not, against Singapore’s 1957 regime, a legitimate advantage warranting refusal of a stay. Limited international adoption, the non-legislative status of the International Maritime Organisation, and the absence of an objectively superior regime meant that neither Convention, nor its incorporation into UK law, established a public-policy preference.

The owners of two vessels involved in a collision commenced related proceedings in Singapore and England. The Singapore proceedings concerned liability, damages and limitation. The English proceedings concerned the collision claim against one vessel.

Clarke J found Singapore clearly and distinctly the more appropriate forum. He stayed the English proceedings on responsibility and damages but refused to stay the English action in full because the higher limitation available under the United Kingdom’s 1976 Convention regime was a potential juridical advantage. The vessel owners appealed on that issue.

1. Disposition. The appeal was allowed with costs. An unconditional stay of the English action was granted. Leave to appeal to the House of Lords was refused.
2. Applicable principles. The court adopted the objective forum non conveniens approach in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 and De Dampierre v De Dampierre [1988] AC 92. The question is where the case can be tried suitably for the interests of all parties and the ends of justice. A claimant’s juridical advantage will ordinarily correspond to a disadvantage for the defendant. It should not by itself prevent a stay if substantial justice will be done in the appropriate foreign forum.
3. Limitation regimes. The court rejected the reasoning in Caltex Singapore Pte Ltd v BP Shipping Ltd [1996] 1 Lloyd’s Rep 286 and preferred the approach of Waung J in The Kapitan Shvetsov [1998] 1 Lloyd’s Rep 199. The 1976 Convention had not achieved anything approaching universal acceptance. The International Maritime Organisation was not a legislature, and its commendation could not create an international consensus or deprive sovereign states of the practical use of another regime.
4. Substantial justice. Singapore’s 1957 Convention regime was supported by a significant body of states. Neither regime was objectively more just merely because the 1976 Convention provided higher limits or greater certainty. The court’s task was to decide whether substantial justice would be done in Singapore, not whether English law was preferable in the abstract. Singapore was clearly the more appropriate forum and substantial justice was available there.

• Court of Appeal (Civil Division). Allowed the appeal, granted an unconditional stay of the English action, awarded costs and refused leave to appeal to the House of Lords.
• High Court of Justice, Queen’s Bench Division. Clarke J found Singapore clearly and distinctly the more appropriate forum. He stayed the English proceedings concerning responsibility and damages but refused a stay of the action as a whole, leaving the limitation issue for appeal.