Jahwar v Betta Livestock 17

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 29 May 2001
• Neutral Citation: [2001] IEHC 137
• Docket Number: No. 9655 P/1999,[1999 No. 9655P]
• Court: High Court
• Date: 29 May 2001

[2001] IEHC 137

THE HIGH COURT

No. 9655 P/1999

JAHWAR v. OWNERS & ALL PARTIES INTERESTED IN MV "BETTA LIVESTOCK 17"

(ADMIRALTY)

BETWEEN

MUSHEN JAHWAR

PLAINTIFF

AND

THE OWNERS AND ALL PARTIES INTERESTED IN THE MV "BETTA LIVESTOCK 17"

DEFENDANT

Citations:

INTERNATIONAL CONVENTION RELATING TO ARREST OF SEA-GOING SHIPS 1952 ART 1

JURISDICTION OF THE COURTS (MARITIME CONVENTIONS) ACT 1989 S5

JURISDICTION OF THE COURTS (MARITIME CONVENTIONS) ACT 1989 S7(1)(b)

HARRODS (BUENOS AIRES) LTD 1992 CH 72

SPILIADA MARITIME CORP V CANSULEX LTD 1986 3 AER 843

DOE V ARMOUR PHARMACEUTICAL CO INC 1994 3 IR 78

MACSHANNON V ROCKWARE GLASS LTD 1978 AC 795

HARRODS (BUENOS AIRES) LTD, RE 1992 CH 72

COLLINS V DOYLE 1982 ILRM 495

Synopsis:

MARITIME LAW

Jurisdiction

Security for costs - Admiralty - Shipping law - Flag ship - Forum non conveniens - Domicile - Employment law - Litigation - Application to stay proceedings - Whether Ireland forum conveniens to hear dispute - Jurisdiction of Courts (Maritime Conventions) Act, 1989 section 5 (1999/9655P - Barr J - 29/5/01)

Jahwar v Owners of MV Betta - [2001] 4 IR 42

Facts: The plaintiff had been employed as a master of a ship and had instituted proceedings in Ireland for the payment of expenditure allegedly made on behalf of the ship. Other disagreements had arisen between the plaintiff and the managing agents of the ship and the plaintiff's contact was terminated. A new master was appointed to take over the ship which was at the time in at Irish port. The plaintiff had originally applied to have the ship arrested and the defendant had to provide $80,000 in order to have the ship released. The plaintiff's contract was an oral one and had been made in Syria, which was also the plaintiff's domicile. The plaintiff had since returned to Syria. The managing agents were registered in and operated from Syria. The defendant had issued a motion seeking to stay the present proceedings on the grounds of forum non conveniens and in the alternative had sought an order directing the plaintiff to furnish security for the defendant's costs. The defendant submitted that Syria was the most appropriate forum to hear the case. It was contended that the relevant parties were domiciled in Syria, evidence would be given in Arabic and that the plaintiff's contract was governed by Syrian law as it was made there.

Held by Barr J in refusing the orders sought. Neither party in these proceedings had a connection with Ireland. Although there was much merit in the defendant's arguments there had been an unexplained delay in issuing the present motion. In addition if the action were tried in Syria the plaintiff would be required to furnish security to cover the expenses of the trial. Many of the records involving payments to the plaintiff were available and might not require much translation of Arabic. As the flag ship of the vessel was Cambodian and the owner was Honduran it appeared that a Syrian court would not have jurisdiction to try the claim. An order staying the proceedings was refused. In addition it would be manifestly unjust to inhibit the plaintiff from pursuing his claim and an order for the plaintiff to provide security for costs would be refused.

1 JUDGMENT of Mr. Justice Barr delivered on the 29th day of May, 2001 .

2 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.

3 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.

4 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

5 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 -.........hellip;......

(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".

6 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 facieright 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.

7 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 I.R. 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.

8 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...