Lloyd's Maritime and Commercial Law Quarterly
JURISDICTION CLAUSES IN BILLS OF LADING—THE CARGO CLAIMANT’S PERSPECTIVE
The Pioneer Container
An action commenced in breach of a foreign exclusive jurisdiction clause is usually stayed unless the plaintiff demonstrates strong cause (more convincing than the criterion of forum conveniens), along guidelines suggested by Brandon, L.J., in The El Amria,1 to move the court’s discretion in favour of continuance. The nature of the agreement containing the clause matters little, since sanctity of contract, which underlies this refusal of jurisdiction, is all pervasive. This oblivion to the underlying commercial matrix means that courts regularly turn away plaintiffs who breach jurisdiction agreements in bills of lading. If anything, the chances of resisting a stay have been further diminished by another recently articulated justification for respecting such clauses.
In The Pioneer Container,2 the Privy Council strongly approved the use of jurisdiction clauses in bills of lading (in this case issued by subcontracting carriers of containerized goods) as such clauses have the salutary effect of channelling all cargo claims arising out of a particular voyage to the carrier’s preferred jurisdiction. Cargo claims arising from a single voyage dispersed over several jurisdictions, as happened in that case, are unpalatable to courts seeking to prevent inconsistent results in actions arising from the same factual matrix and to any carrier anxious about wasteful litigation and the ubiquitous threat of arrests of his vessels. All deserving of understanding and sympathy, reasoned the
1. [1981] 2 Lloyd’s Rep. 119. These guidelines or factors were first enunciated by Brandon, J., in The Eleftheria [1969] 1 Lloyd’s Rep. 237.
2. [1994] 2 A.C. 324; (sub nom. The K. H. Enterprise [1994] 1 Lloyd’s Rep. 593). The bailment aspects of the case are dealt with in detail by A. Bell, supra, 177, where the facts are given.
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