G.K. Mitter, J.
1. This is an application for stay of a suit on the basis of a clause contained in a bill of lading that all actions thereunder were to be brought before the courts at Amsterdam or Rotterdam. The plaintiff, a firm carrying on business at Calcutta, was the endorsee of a bill of lading issued by the defendant No. 1 described in the plaint as the owners or charterers of a vessel 'Hereford Beacon'. The defendant No. 2 is described as the agent of the defendant No. 1 carrying on business in Calcutta. The defendant No. 3 are the Commissioners for the Port of Calcutta and the defendant No. 4 is an insurance company also carrying on business within the jurisdiction of this Court.
2. The bill of lading was issued at Antwerp by the defendant No. 1 on 16-3-1956, the shippers being Countinho Caro and Co. Ltd. of London and the consignee the Bank of China, Calcutta. The goods shipped were described in the bill of lading as 400 pieces 'used flat bottom steel rails'. According to the document, however, the Condition of the goods, their measurement, weight, brand, quality and value were unknown and any reference thereto in the document was for the purpose of calculation of freight only. Under the bill of lading the 'shipper' included an endorsee of the document and the contract of carriage was subject to the Hague rules as adopted by the International Convention at Brussels on 25-8-1924 unless there was any mention to the contrary. Clauses 25 and 26 of the bill of lading run as follows :
25. Law of application -- In so far as anything has not been dealt with by the provisions of this Bill of Lading the law of the Netherlands shall apply.
26. Jurisdiction -- All actions under this contract of carriage shall be brought before the Court at Amsterdam or Rotterdam and no other Court shall have jurisdiction with regard to any such action unless the carrier appeals to another jurisdiction or voluntarily submits himself thereto.
3. The substance of the plaintiff's complaint in the plaint filed on 18-11-1957 is as given below:
(a) The ship discharged only 355 pieces of steel rails under the said bill of lading after its arrival in Calcutta on 14-6-1956 and these were taken custody of by the defendant No. 3,
(b) Between July and August 1956 the defendant No. 3 gave the plaintiff delivery of only 838 pieces and issued a short certificate for 46 pieces on 5-11-1956 and failed and neglected to make over 17 pieces.
(c) On 13-11-1956 the defendant No. 3 offered delivery of 44 pieces of rails said to have been landed as unmanifested cargo but the plaintiff had to reject them as being different from the goods covered by the bill of lading.
(d) By the breach of contract and/or negligence on the part of the defendants Nos. 1 and 2 the plaintiff has suffered loss and damage assessed at Rs. 8951/66nP.
(e) The defendant No. 3 is liable to meet the plaintiff's claim if it be found that the defendants Nos. 1 and 2 had discharged the entire 400 pieces from the steamer at Calcutta.
(f) The goods being insured under a policy issued by the defendant No. 4 the latter also is liable to meet the said claim.
4. In January 1958 the defendant No. 1 filed his written statement whereby it admitted the shipment of 400 pieces of used flat bottom steel rails. Most of the other statements were either denied or not admitted. Defence was raised on the basis of Clause 26 of the bill of lading that this suit cannot be proceeded with in Calcutta.
5. The present application has been made on the following grounds.
(i) Under the bill of lading only the Courts at Amsterdam and Rotterdam have jurisdiction to try a dispute between the parties. Besides, the Courts at the above places are the courts of convenience for the purpose of adjudication of the dispute raised in the plaint.
(ii) The weight, quantity and value of the goods loaded at Antwerp and unloaded at Calcutta will be issues in the suit.
(iii) The officers of the vessel who can depose on the above issues reside in Great Britain and the relevant documents are in Holland.
6. The plaintiff alleges in his affidavit-in-opposition that :
(a) The plaintiff is only an endorsee of the bill of lading and there is no direct privity of contract between the plaintiff and the defendant No. 1.
(b) The Courts at Amsterdam and Rotterdam have no jurisdiction. The goods were shipped at Antwerp and the bill of lading issued there. The petition of the plaintiff does not indicate the law under which this suit could be filed in Holland and in spite of demands in that behalf the applicant has failed to give any reference of the said law.
(c) The vital issue in the case will be the quantity of the goods unloaded at Calcutta and their value here and all the evidence on this issue is available at Calcutta.
(d) The ship's officers will not be material witnesses and the documents mentioned in the petition will not throw any light on the real issues between the parties.
(e) All the plaintiff's witnesses are residents' of Calcutta and the documents necessary to prove the plaintiff's case, details whereof are set out in paragraph 10 of the affidavit-in-opposition, are at Calcutta.
7. The defendant No. 4 has used an affidavit to the effect that it will suffer great hardship if the suit is not tried here. In the affidavit-in-reply the applicant states that :
(i) The defendant is a company registered at Rotterdam and carries on business at Amsterdam and therefore Courts at both the above places will have jurisdiction to try the suit.
(ii) The defendant's documents will be LOG Books, Storage books, mate's receipts, manifest of cargo at intermediate ports etc., none of which are available here.
(iii) Evidence will have to be adduced about the loading of goods at Antwerp, the marks they bore and whether any steel rails of the type meant for the plaintiff were unloaded at intermediate ports.
8. Ordinarily no doubt the Courts will try to enforce a contract between the parties. Clause 26 of the bill of lading cannot oust the jurisdiction of this Court to try a suit if it is otherwise triable here. Such a clause can, however, be invoked for the purpose of the stay of a suit filed in contravention thereof and the Court has to find out) whether taking into consideration the entire facts placed before it the Courts mentioned in Clause 28 of the bill of lading are the Courts of convenience. The applicant raited to give particulars to support its case in the petition. Nothing is shown therein as to how the Courts in Holland will have jurisdiction to try this suit and no details are given as to who are the material witnesses whom the applicant will have to examine and what ace the books, papers and documents which will have to he adduced in evidence. No doubt some effort was made in this behalf in the affidavit-in-reply but the plaintiff has had no opportunity of meeting the allegations contained in the last mentioned document.
9. In another application by the plaintiff herein against Lloyd Triestino in Lakshminarayan v. Lloyds Triestino Societa Suit No. 1039 of 1957, : : AIR1959Cal669 I had occasion to consider the question raised on this application. There however, the bill of lading was differently worded and I held that the suit should be staved on the facts of that case. There a substantial part of the evidence seemed to be available in Italy, it was the Italian Courts which under the relevant clauses in the bill of lading would have jurisdiction to adjudicate upon the dispute between the parties and it was the Italian company which applied for stay of the suit.
10. Reference was made both in this matter and in the application arising out of Suit No. 1039 of 1957 : : AIR1959Cal669 to the case of The Fehmarn (1958) 1 W.L.R. 159. According to Lord Denning who delivered the first judgment in the Court of Appeal the proper test in a case like this was whether the dispute was a matter which properly related to the Courts in England. There the dispute related to the alleged contamination of a certain quantity of terpentine imported into England by an English company. The real dispute was between the German owners of the ship and the English importers. According to the hilt of lading, however, the disputes were to be adjudicated upon in Russia. Wilmer, J. refused to exercise the discretion to stay the suit so as to compel the parties to have the same adjudicated upon in Russia, the Russian element in the dispute being negligible.
11. It appears to me on the facts of this case that excepting probably a few documents no portion of the evidence will be available in Holland. The vessel is not a Dutch vessel and evidence of shipping of the goods will not be available in Holland although the same may be available either at Antwerp or in England. A gooddeal of evidence on the question of quantity ofgoods unloaded, their value etc. will be availablein Calcutta. Taking therefore, everything intoconsideration it seems to me that the dispute cannot be said to be a dispute which relates to Holland. It may be that if the dispute be adjudicated upon in Holland there would be less inconvenience in summoning witnesses from Englandand Belgium but that is not a consideration whichwill outweigh others in support of the dispute being litigated upon in this Court. In my view itwill be more convenient to have the suit tried inCalcutta than at Rotterdam or Amsterdam and I,therefore, refuse to exercise my discretion forstay of the suit. There will, therefore, be noorder on the application. Costs will be costs inthe cause.