Hanley v Someport-Walon
| Jurisdiction | Ireland |
| Judge | Miss Justice Carroll |
| Judgment Date | 01 January 1995 |
| Neutral Citation | 1995 WJSC-HC 827 |
| Court | High Court |
| Docket Number | [1991 No. 9232P],No. 9232P/1991 |
| Date | 01 January 1995 |
1995 WJSC-HC 827
THE HIGH COURT
BETWEEN
AND
Citations:
BRUSSELS CONVENTION 1968 ART 17
JURISDICTION OF COURTS & ENFORCEMENT OF JUDGMENTS (EUROPEAN COMMUNITIES) ACT 1988 S4(2)
BRUSSELS CONVENTION 1968 ART 6A
ESTASIS SALOTTI V RUWA 1976 ECR 1831
TILLY RUS V NOVA 1984 ECR 2417
SCHLOSSER REPORT ON THE 1978 ACCESSION CONVENTION PARA 179
HANBRIDGE SERVICES LTD V AEROSPACE COMMUNICATIONS LTD 1994 ILRM 39
BRUSSELS CONVENTION 1968 ART 5(1)
Synopsis:
CONFLICT OF LAWS
High Court
Jurisdiction - Defendant - Challenge - Contract - Terms - Conditions - Bill of lading - Condition required defendant to accept jurisdiction of country where plaintiff had principal place of business - Provisions of Brussels Convention - Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988, s. 3 and 1st schedule, article 17 - (1991/9232 P - Carroll J. - 20/12/94) - [1995] 2 I.R. 132
|Hanley v. Someport-Walon|
CONTRACT
Terms
High Court - Jurisdiction - Acceptance - Agreement - Proof - Absence - Whether foreign company accepted disputed condition of contract - (1991/9232 P - Carroll J. - 20/12/94) - [1995] 2 I.R. 132
|Hanley v. Someport-Walon|
Judgment of Miss Justice Carroll delivered the 20th day of December, 1994.
This is an application to set aside service of the Notice of Plenary Summons on the Defendants. Both Defendants are companies domiciled in France and they contest the jurisdiction of the Irish Courts to hear this matter. The Plaintiffs claim that the Irish Courts have jurisdiction by virtue of Article 17 of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (including the Protocol annexed to that Convention) signed at Brussels on the 27th September, 1968 ("the Brussels Convention") which acquired the force of law in the State by virtue of the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988("the 1988 Act"). A claim under Article 6A of the same Convention was dropped.
The Plaintiffs" claim arises out of an agreement described as a Conline Booking Note dated the 22nd April, 1991. They rely on Clause 3 of the Carriers Bill of Lading Form being general conditions printed on the reverse of the initial page of the Conline Booking Note. Clause 3 provides
" Jurisdiction. 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 Plenary Summons was issued on the 24th June, 1991. The Statement of Claim, delivered on the 3rd June, 1992 claims that the first named plaintiff, named as Seapoint Navigation Limited, is the carrier and the second named Plaintiff is the owner of the vessel MV Sea Lift. The title was later amended to substitute Noel Hanley (trading as Seapoint Navigation) as the first named Plaintiff. The Statement of Claim states that by the Conline Booking Note dated the 22nd April, 1991 the plaintiffs agreed to carry certain cargo to India from Antwerp on the M/V Sea Lift for U.S.$340,000. The time for shipment was to be from the 3rd June to the 7th June, 1991. It is claimed in paragraph 3(a) that the Defendants were aware that the Plaintiffs" address for business was 20 Brighton Hall, Brighton Road, Dublin 8 in the Republic of Ireland. The problems encountered in connection with loading the vessel after it moored in Antwerp on the 5th June, 1991, are set out in the Statement of Claim but are not relevant to the issues in this application which deals solely with jurisdiction. The second named Defendant was the supplier of the goods to be shipped to India. The first Defendant was employed to arrange carriage of the goods.
The Plaintiffs brought a motion for judgment in default of defence grounded on an Affidavit dated the 11th April, 1993 and sworn by the Plaintiffs" Solicitor, Mr. Daniel J. Hanly. He claims the booking note dated 22nd April, 1991 was exchanged via fax and he exhibits the fax document which was sent on the 25th June, 1991 from Maritime International Transportation (MIT) to Simon Robinson. It consists of two printed pages and three typed pages of special conditions numbers 20 to 37. He states that Simon Robinson, Ship Brokers in the U.K., acted as agents on behalf of the Plaintiffs and that the document was prepared by and returned by MIT which he claims at all material times acted and held themselves out as acting on behalf of the Defendants. He claims that the principal place of business of the Plaintiffs is 20 Brighton Hall, Foxrock, County Dublin (a different address to the address mentioned in paragraph 3 of the Statement of Claim) and he claims the Defendants were aware when engrossing other proceedings in Belgium (i.e. a Petition dated the 13th June, 1991) that the ship owner was in Ireland.
The Defendants brought a motion dated the 28th June, 1993 to set aside service of the Notice of the Plenary Summons and in support thereof Mr. Yannick Lenormant, Director of the first Defendant, swore an Affidavit dated the 25th June, 1993. In that Affidavit he claimed that the first Defendant did not agree in writing (nor was there anything evidenced in writing) that jurisdiction was conferred on the Courts of Ireland. He denied that MIT were agents of the first Defendant and he set out the circumstances under which the terms of the Conline Booking Note were agreed.
On the 15th February, 1991 MIT telexed the first Defendant with a list of vessels described as vessels which they represented ("que nous representons"). On the 10th April, 1991 MIT faxed the first Defendant with information concerning M/V Sea Lift stating they "have been authorised by the owners to offer you firm as follows". There follows a number of specific clauses, the last one being "B/ note subject further terms and details." On the 18th April, 1991 there was another telex from MIT to the first Defendant headed "Recap of Fixture" with a number of details including "booking note subject further terms/details". It concluded by asking for a telex in confirmation so that it could be sent to the owners for their own confirmation. On the 19th April, 1991 the first Defendant telexed MIT to confirm the fixture of MV Sea Lift as per telex recap of the 18th April, 1991 with the proviso that the third paragraph was to read as follows .... (the content is not relevant). On the 22nd April, 1991 MIT sent a telex to the first Defendant setting out details of the proposed booking note which they intended to send to the owners for their own comments. This telex sets out what would appear in the thirteen boxes of the printed form of Conline Booking...
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Teva (Canada) Ltd v Panalpina World Transport (Ireland) Ltd
...and set out the means by which such consent may be proved (see in this respect the decision of Carroll J. in Hanley v. Someport-Walon [1995] 2 I.R. 132 and the decisions of the CJEU referred to therein.) In that decision she held that the plaintiff had not established that there was a conse......