G.K. Mitter, J.
1. This is an application for stay of a suit filed against (1) the shipper of a quantity of mild steel bars from Naples, (2) the shipping Company Lloyd Triestino, described as a company incorporated in Italy having its principal place of business at Trieste in Italy and carrying on business at Calcutta through its agent M/s. Turner Morrison and Co., (3) Turner Morrison and Co. (Private) Ltd. and (4) the Commissioners for the Port of Calcutta. The claim is made for damage suffered by reason of non-delivery of 110 bundles of bars valued at Rs. 74,647/- with interest and other charges totalling Rs. 83,954/-.
2. The facts of this case are practically on all fours with the facts in the suit which was filed by the very same plaintiff in this Court being L. T. Societa v. Lakshminarayan, Suit No. : AIR1959Cal669 . There the suit was not directed against the shipper, but against the same shipping company through its agents, and the Commissioners for the Port of Calcutta. The Bill of lading in that case was identical in terms with the bill of lading in this case and on all material points the facts seem to be closely similar, the only material difference being that in Suit No. : AIR1959Cal669 the goods were shipped at Trieste whereas in this case the goods were shipped at Naples. Trieste and Naples are both situate in Italy and under Clause 31 of the bill of lading a claimant under the bill of lading had to summon the shipping company before the Judicial Authority of Trieste or Genoa renouncing the competence of any other Judicial Authority.
3. It was contended before me that it cannot be said definitely that the Courts at Trieste or Genoa will have jurisdiction in respect of a claim based on a shipment of goods at Naples. But this does not seem to me to be of much substance. A reference to Dicey's Conflict of Laws, 7th Edn., Ch. 31 which deals with 'staying of actions' contains a sub-rule to Rule 203 at p. 1085 reading as follows:
Where a contract provides that all disputes between the parties are to be referred to the exclusive jurisdiction of a foreign tribunal, the Court will stay proceedings instituted in England in breach of such agreement, unless the plaintiff proves that it is just and proper to allow them to continue.'
Under the comments below the sub-rule the learned author quotes from the judgment in The Fehmarh, (1957) 1 WLR 815 the following extract:
'It is well established that, where there is a provision in a contract providing that disputes are to be referred to a foreign tribunal, then, prima facie, this Court will stay proceedings instituted in this country in breach of such agreement, and will only allow them to proceed when satisfied that it is just and proper to do so. '
The commentator adds:
'The Court's power to grant a stay under this sub-rule is discretionary but, once the contract has been proved the onus of inducing it not to do so rests on the plaintiffs. The ground on which the Court grants a stay is not that there is vexation and oppression but that the Court makes people abide by their contracts.'
4. No provision of any Italian law has beenreferred to in the affidavits to show either thatthe Courts at Trieste or Genoa will have jurisdiction or that the said Courts will not have jurisdiction in such a case. If the shipper entered intothe contract contained in the bill of lading expressly covenanting himself to be bound by Clauses 31and 32 thereof, I see no reason to hold that he orany person deriving title through him should notbe held compelled to institute legal proceedingsin the Courts at Genoa or Trieste unless goodcause is shown. At any rate, it seems to me thatgrounds must be put forward by the applicant,who relies on the bill of lading, to show that although such a clause is contained in the bill oflading, he is not bound by it and that the Courtsat Trieste and Genoa will have no jurisdiction, because the goods were shipped at Naples. I shalltherefore make the same order as I did in SuitNo. : AIR1959Cal669 and willstay further hearing of it. I shall reserve the question of costs. If no proceedings are taken in Italy,the defendants will be at liberty to mention thematter for that purpose.