Al Khattiya, The Owners of the Ship v Owners and/or Demise Charterers of the Ship "Jag Laadki"

Where jurisdiction in a collision claim has been founded in England as of right, a defendant seeking a stay must establish that another available forum is clearly or distinctly more appropriate. The place of the collision is a useful prima facie starting point, but it is not determinative. The court must assess all connecting factors against the issues that remain for trial. Where liability is admitted and only quantum or limitation remains, the evidential connections usually associated with liability may carry little weight. Differences in governing law must be shown to be material and to make the foreign court clearly better placed to apply it. A speculative possibility of related foreign limitation proceedings is insufficient.

The claim arose from a collision in Fujairan territorial waters between the claimants’ LNG carrier and the defendants’ VLCC. The defendants admitted 100 per cent liability. The remaining issues concerned quantum, including repair costs and loss of use, and limitation.

The claimants had founded English jurisdiction as of right by serving an in rem claim form on a sister ship. The defendants applied to set aside an anti-suit injunction obtained in respect of foreign proceedings and to stay the English claim in favour of Fujairah on forum non conveniens grounds. The central issue was whether Fujairah was an available forum clearly or distinctly more appropriate for the issues remaining in dispute.

1. The application for a stay was dismissed. The defendants bore the legal burden of showing that Fujairah was an available forum with competent jurisdiction and clearly or distinctly more appropriate than England. This followed the two-stage approach in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 476. Because stage one was not satisfied, stage two did not arise, although the court considered it briefly.

2. The place of the collision was a relevant starting point, but not a presumption or decisive rule. The court applied the approach in VTB Capital plc v Nutritek International Corp [2013] 2 AC 337: all connecting factors had to be considered, and the significance of the place of commission could be outweighed by countervailing factors.

3. Admission of liability materially reduced the significance of Fujairah. The ships, crews, repair yard, relevant witnesses and documents had little connection with Fujairah. The collision investigation was no longer important because liability was admitted. The remaining quantum issues were principally supported by English-language documents and evidence connected with Qatar, England and other jurisdictions.

4. The defendants failed to show that UAE law was materially different from English law in a way likely to matter to the quantum issues, or that a Fujairan judge would be clearly and distinctly better placed to apply it. The possible future revival of dismissed limitation proceedings was speculative and carried no material weight.

5. Judgment was entered for the claimants on liability, with damages to be assessed by the Admiralty Registrar. The anti-suit injunction had been properly granted because the foreign liability proceedings were vexatious and oppressive, hopeless on the admitted facts and served no legitimate purpose. The application to set aside the injunction was dismissed.