Lord Chancellor (Cave).—The pursuers, a French company, supplying gas in Paris, sued the defenders, a French company owning some merchant vessels, in the Sheriff Court at Dumbarton for damages for the loss of a cargo of coal shipped at Dunston in Northumberland for delivery to the pursuers at Rouen. The cargo was shipped in a French vessel belonging to the defenders which foundered on the voyage. I suppose the first question which would occur to a person wholly unacquainted with Scots law would be: How comes it that a Scottish Court can be called upon, and is competent, to decide such a question? But the answer is plain: the pursuers have caused another vessel belonging to the defenders to be arrested within the jurisdiction of the Sheriff Court at Dumbarton, and this is sufficient, according to very old Scots law, to found the jurisdiction of the Court. As to the jurisdiction, therefore, and the competence of the Court there is no question: but the defenders have raised the plea of forum non conveniens, and this plea has been sustained by the Second Division. The question to be determined is whether that decision is right.
The meaning of the plea, forum non conveniens, has been expounded in a series of authorities which have been cited to your Lordships, but only two of them need be referred to. In Clements v. Macaulay Lord Justice-Clerk Inglis explained the meaning of the plea and used these words: “The contention involved in such a plea is rather that for the interests of all the parties, and for the ends of justice, the cause may more suitably be tried elsewhere”; and in the case of Sim v. Robinow, Lord Kinnear made use of very similar language. It is plain that those learned Judges, when referring to the interests of all the parties, had it in mind that in some cases the interests of the two opposing parties might differ; but I have no doubt that what they meant was that, if in any case it appeared to the Court, after giving consideration to the interests of both parties and to the requirements of justice, that the case could not be suitably tried in the Court in which it was instituted, and full justice could not be done there to the parties, but could be done in another Court, then the former Court might give effect to the plea by declining jurisdiction and permitting the issues to be fought out in the more appropriate Court.
Now what are the relevant facts in this case? The pursuers and defenders are French companies carrying on their business in France. Neither of them has any place of business in Scotland. The ship in question was a French vessel built in France, and carrying a cargo for delivery to the pursuers in France under a charter-party of which none of the obligations fell to be performed in Scotland. The surviving members of the crew, and the crew of another vessel which for a time sailed with the ship which was lost, are French. The instructions to the master, and the log books, are in the French language, and the plans of the vessel are on the metric system with French notes. The vessel was of a special type known in France as the “Marie Louise” class, upon which, as it appears from the pleadings on both sides, a Commission of the French Senate has reported, and has made certain recommendations with a view to safety. Lastly, it is said that the law of France permits the defenders under certain circumstances to limit their liability by abandoning the ship and freight, and that they would be deprived of the opportunity of claiming this right if the suit were tried in Scotland.
Against this series of facts, pointing to a French Court as the appropriate tribunal for the trial of the issues, there are two facts which are said to operate in the other direction. First, the charter-party is in the English language and in a form approved by the English Chamber of Shipping; and, secondly, some witnesses who saw the vessel loaded are resident in Northumberland. But the form of the charter-party appears to be in common use by foreign owners; and clause 30 of the charter-party, which provides for arbitration only as to disputes arising at a port in the United Kingdom, gives rise to the inference that the parties contemplated that other disputes should be determined in the French Court. As to the English witnesses, their evidence could no doubt be taken in France, and in any case the existence of English witnesses is not a strong argument in favour of a trial in Scotland. From the beginning to the end of the case there is not a breath of Scottish atmosphere.
I will only refer to one other circumstance. It appears to be the case that the real pursuers, that is to say, the persons who are behind the pursuers upon the record, are a firm of underwriters carrying on their business in England; but it does not appear to me that this is a circumstance which ought to affect the decision. The underwriters can only stand in the shoes of those to whose rights they are subrogated, and whose name they use; and your Lordships would, I think, treat the nominal pursuers as the actual pursuers for the purposes of this application. Further, the underwriters carry on their business in England and not in Scotland.
In view of these facts I find myself unable to differ from the decision of the Court of Session that the Sheriff Court in Dumbarton is not an appropriate Court for the hearing of this suit, and indeed I find it difficult to conceive of a stronger case for the application of the doctrine of forum non conveniens.
I think that the appeal fails and should be dismissed with costs, and I move your Lordships accordingly.
Lord Dunedin.—I do not agree with the Lord Justice-Clerk in the comment he has made upon the two Latin forms of the plea. In my view, “competent” is just as bad a translation for “competens” as “convenient” is for “conveniens.” The proper translation for these Latin words, so far as this plea is concerned, is “appropriate.” But, when I have said that, I think that the learned Lord Justice-Clerk has most accurately set forth the considerations which determine the decision to be arrived at. I do not think exact definition is possible, for the gist of the matter is that the decision must be taken in light of the whole surrounding circumstances; but, taking what the appellant considered as the best authority for him, the judgment of Lord Kinnear in Sim v. Robinow, I have no hesitation in concurring with what the Lord Justice-Clerk has held, namely, that there is here another Court of competent jurisdiction in which the case may be tried more suitably for the interests of all the parties and for the ends of justice. I think the fallacy of Mr Macmillan's argument consisted in this, that he construed the words, “for the ends of justice,” as if it must necessarily be shown that the defenders would be subjected to actual injustice unless the plea was upheld. I am not deciding, so far as I am concerned, that the case could not be tried at Dumbarton. I am only deciding that I think it could be better tried in France.
Lord Shaw of Dunfermline.—I agree in the result at which your Lordships have arrived.
There are two things in a case of this kind by which the mind of a Court of Justice ought not to be deflected from the real issue between the parties. In the first place when jurisdiction is once well founded, the method in which it is founded is nothing to the point on the plea of forum non conveniens. Under the Sheriff Courts (Scotland) Act, 1907, section 6, subsection (c), the jurisdiction could be constituted by arrestment to found it. That jurisdiction once so founded, the Court is then charged with the case, and the consideration applicable to whether the forum thus competently convened is a convenient forum or not stands apart from any consideration as to how jurisdiction arose. The second consideration which I think is really apt to deflect, but ought not to deflect, the mind from the true issue in such a case is by reason of the assignment of the interests of one of the suitors therein. I observe in the judgment of the Court below that the learned Lord Anderson, who dissented from that judgment, put the matter in this way: “It must be shown,” said that learned Lord (1925 S. C., at p. 363), “that it is in the interests of all the parties to the action to have the cause tried in that other forum. Now it is averred in this case that the real pursuer is a British insurance company. The nominal pursuers have no interest in the litigation, but the real pursuers, having no higher rights than the nominal pursuers, are compelled by our rules of law to sue in the name of those who were parties to the contract of affreightment which is said to have been broken. Now while it may be in the interests of the defenders to litigate in France, I am not satisfied that it is in the interests of the real pursuers to do so.” By “the real pursuers” the learned Judge there means the insurance company. Considerations of that kind are, in my opinion, wholly foreign to the question to be decided by this House.
I agree with the opinions of the learned Judges of the Second Division. The careful argument delivered to this House by Mr Macmillan was justly and properly founded, as the best support that could be derived for it, on two judgments, one delivered by the late Lord President Inglis and the other delivered by Lord Kinnear. In the case of Clements v. Macaulay Lord President Inglis, then Lord Justice-Clerk, said: “It must never be forgotten that, in cases in which jurisdiction is competently founded, a Court has no discretion whether it shall exercise its jurisdiction or not, but is bound to award the justice which a suitor comes to ask,” and, referring to the plea of forum non conveniens, “the plea under consideration must not be stretched so far as to interfere with this general principle of jurisprudence.” These well-known utterances I humbly think are unassailable. I entirely agree, too, with Lord Kinnear when, in the subsequent case, he said: “Now, I am not aware that the Court has ever refused to exercise its jurisdiction upon the ground of a mere balance of convenience and inconvenience.” No doubt, the mere balance of convenience is not enough. One is driven to the wider consideration of all the available facts. And I may be permitted respectfully to say that the true corollary to all the observations above cited is to be found in an earlier remark of Lord President Inglis, where, referring to this very plea now under consideration, he says: “The contention involved in such a plea is rather that for the interests of all the parties, and for the ends of justice, the cause may more suitably be tried elsewhere.” That is the foundation of the whole doctrine. With regard to the case in which Lord Kinnear delivered judgment, if both the parties whose situation Lord Kinnear was surveying had been resident in South Africa—that is an analogy with the present case where both of the parties to the suit are Parisian companies—then I incline to the view that a different decision upon the plea would have resulted. The case dealt with, however, was one in which one party was resident in England, apparently permanently, and the other was temporarily resident in Scotland. But if both these South African merchants had still remained, not only domiciled in and carrying on business in, but actually resident in South Africa, then I think the result arrived at would have been to sustain the plea that a Scottish Court was a forum non conveniens.
If in the whole circumstances of the case it be discovered that there is a real unfairness to one of the suitors in permitting the choice of a forum which is not the natural or proper forum, either on the ground of convenience of trial or the residence or domicile of parties, or of its being either the locus contractus, or the locus solutionis, then the doctrine of forum non conveniens is properly applied.
In the present case the matter was brought to a point when I asked Mr Macmillan: Was there one Scottish fact in the present case? and he answered that, except the bringing of this action, there was not one. Everything to be proved was outside of Scotland; the parties were outside of Scotland; the contract was outside of Scotland; the circumstances to be proved were, one set in France, and the other in England. In those circumstances it seems to me to be a violation of all propriety not to sustain the plea, as has been done.
Lord Sumner.—I concur. Were it not that the Court of Session has not previously had occasion to sustain the plea of forum non conveniens in a mercantile case, and that your Lordships now have the plea before you for the first time, I should not venture upon a subject, necessarily foreign to me, in which my opinion must be of small weight.
I am satisfied that, unless the law of Scotland forbids it, the facts of this case are such that a Court in France is the more suitable tribunal for their investigation. This is a kind of case with which I have had in my time a certain amount of familiarity. The facts which have to be proved by witnesses from England will be very easily proved. They may not be disputed, but, if not made the subject of admission, they can be proved quite readily by taking the evidence of two or three witnesses on commission. As to the law applicable to the matter, whether it be British law or whether it be the legal construction of a contract expressed in commercial English, I am quite satisfied that a French Court will find as little difficulty, or as much, as we do ourselves with the charter in question. The real pinch of the case consists in this, that an assault is made upon a numerous class of vessels of a certain type, and a res ipsa loquitur argument is founded upon the fact that during recent years several of them have, under various circumstances, come to grief. That is a case which, from the point of view of those who own such ships, must be defended by scientific and technical evidence from the builders and surveyors by whom and under whose supervision they were built, as to their structure and their plans, the tests that they passed, and the general experience that their owners have had of them both before and when, in some cases, they got into difficulties. I think that considerable practical injustice would be done to those who have to sustain that case, if they were called upon to do so in Scotland.
It appears to me, further, that the decision of the Court must be arrived at on all the facts of the case. I cannot agree that we may disregard the fact of the real pursuers being underwriters in England, who sue in the name of the assured by reason of their right of subrogation. Its exact weight is another matter. In this particular case I do not think it carries their case much further. They have been described, I think rather loosely, as mere assignees. If, as I expect was the case, that term was used for the purpose of stating that they stood in the shoes of their assured and had no better rights than theirs, there is nothing to be said against it; but the case is not one of assignment. Under an old equity, now a statutory right, they sue in the name of their assured, and the right to pursue the rights and remedies of the assured against third parties is one to which they are subrogated. Both in terms of the statute and in terms of long usage I think that the word “subrogation,” as used in section 79, subsection (1), of the Marine Insurance Act ought to be used in preference to the term “assignment,” which is provided for in section 50, subsection (2), and involves different incidents.
May I say a few halting words as to what I take, after hearing the cases expounded, to be the real doctrine of forum non conveniens? Whatever their right be founded upon, the pursuers, having succeeded in arresting moveables belonging to the defenders within the Scottish jurisdiction ad fundandam jurisdictionem, were competent pursuers in the Court in question. They had prima facie the right to have the case tried. Lord Hunter says that the jurisdiction ordinarily attaching ratione reisitus was extended to personal obligations, attaching to moveables unconnected therewith, to encourage the commerce of the country. Whether the extension was indeed an encouragement or not may be a matter of doubt. I hardly expect that the visits of the ships of the SociÃ©tÃ© Anonyme de Navigation “Les Armateurs franÃ§ais” to the Clyde are likely to be so frequent as they otherwise might have been since this procedure has become more familiar to their owners. Be that as it may, all that follows from a pursuer being a competent pursuer, to my mind, is that he is entitled to call upon the Court to exercise its jurisdiction. Judex tenetur impertiri judicium suum carries him so far. Obviously the Court cannot allege its own convenience, or the amount of its own business, or its distaste for trying actions which involve taking evidence in French, as a ground for refusal. I think one ought to reserve the case of such a matter as was dealt with in the well-known Mozambique case, where an English Court refused to entertain an action relating to title to real property situate abroad because it considered itself not to be a proper tribunal. With that exception, I take it that the Court has to proceed until the defender objects, but, as against the pursuer's right, the defender has an equal right to plead forum non conveniens. All that has been arrived at so far is that the burden of proof is upon the defender to maintain that plea. I cannot see that there is any presumption in favour of the pursuer. Each has his right, the one to take an exceptional course, contrary to the usual maxim actor sequitur forum rei; the other a right to object to that course, if he can make it out on satisfactory grounds. It appears to me that the Court's duty to entertain the suit can be no higher than its duty to listen to, and, if the circumstances warrant it, to sustain the plea.
We therefore, to my mind, get no further by the citation of Latin maxims.
Then comes the question, What is the test by which the Court must be guided? I draw attention to the fact that in several of the cases cited expressions to this effect are used: The Court must come to the conclusion that it is “for the interests of all the parties, and for the ends of justice”—that is in Clements's case—or Lord Kinnear's words, already cited: “More convenient for all the parties and more suitable for the ends of justice”; or as Lord Ormidale says in the present case: “For the interests of both the parties.” such expressions are apt to lead one into some confusion. I am perfectly certain that the London underwriters and those who advised them would never have thought of entering the forum of the Sheriff-substitute of Stirling, Clackmannan, and Dumbarton unless they had thought, and had been advised, that by so doing they gained for themselves some substantial advantage in the contest, either some direct inconvenience to their opponent, or, at any rate, something which would involve his disadvantage and increase their chance of winning. I do not doubt, also, that the result of your Lordships' deliberations will convince them, guided by the advice they formerly received, that they have sustained a defeat, and are somehow likely to be at a disadvantage themselves when they get to the French Court, if they think fit to proceed there. I do not see how one can guide oneself profitably by endeavouring to conciliate and promote the interests of both these antagonists, except in that ironical sense, in which one says that it is in the interests of both that the case should be tried in the best way and in the best tribunal, and that the best man should win. The real proposition is, I think, that the Court has to consider how best the ends of justice in the case in question and on the facts before it, so far as they can be measured in advance, can be respectively ascertained and served. I would therefore venture to suggest, what I think is in conformity with the conclusion already stated in different words by your Lordships, with only a slight amendment, that the canon is nearly laid down in Lord Cowan's words in Clements's case: Is the other forum—the existence of which is of course a condition precedent to the application of the plea at all—“more convenient and preferable for securing the ends of justice?” The true course is to leave out the words “more convenient and,” because one cannot think of convenience apart from the convenience of the pursuer or the defender or the Court, and the convenience of all these three, as the cases show, is of little, if any, importance. If you read it as “more convenient, that is to say, preferable, for securing the ends of justice,” I think the true meaning of the doctrine is arrived at. The object, under the words “forum non conveniens” is to find that forum which is the more suitable for the ends of justice, and is preferable because pursuit of the litigation in that forum is more likely to secure those ends.
Disclaiming, as I do, all attempt to find a formula, which the learned Judges of the Court of Session, I think, declared was not to be discovered, I believe that, upon this line, Courts will not go far wrong when they sustain or repel this plea after considering, upon all the facts known to them and all the expectations to be founded upon the allegations in the pleadings, whether the forum in question, or the other forum, is the one in which justice will be the better done.
Lord Buckmaster.—If, in my judgment, it became necessary for this House to consider the question of Scottish law, I, at least, should have required to hear the Dean of Faculty, but Mr Macmillan said, on two occasions, that he raised no objection to the law as it was laid down by the majority of the learned Judges of the Second Division of the Court of Session, and I consequently abstain from expressing any opinion whatever upon the cases that have been placed before our notice. Upon that clear and distinct admission it appears to me that only one question arises: Did the learned Judges in the Second Division rightly apply the principles of law which they rightly enunciated, or did they not?
Now, so far as their application was a pure question of discretion, to my mind this House would be ill-advised if it attempted to interfere. It is perfectly true that the judgment was not unanimous, and it is true also that it reversed the discretion of the Sheriff-substitute, but none the less the matter brought before this House is a case in which the competent tribunal in Scotland has, regarding a matter exclusively Scottish, decided as to the best method of conducting litigation, and with that expression of opinion I, at least, should be reluctant to interfere. There is indeed, so far as I can see, only one matter in which that discretion could possibly be called to account, and that is, whether the learned Judges were or were not right in determining this question upon the hypothesis that they had to consider the case as covered entirely by the two parties who represent upon the record the appellants and the respondents, and wholly disregarding the fact that the insurance company was the real litigant. With the exception of Lord Anderson, all the learned Judges decided that the position of the insurance company was to be disregarded, and that decision is the ground of complaint in one of the appellants' pleas before this House. It is for that reason, and for that reason only, that I refer to it. It is perfectly true that the insurance company are subrogated to the rights of the assured, but it appears to me that that can by no possibility in any course of procedure give them greater rights than the assured possessed, or, to put it in other words, I cannot see how the privilege which they obtain by statute can cast a greater burden upon the people against whom, in the assured's name, proceedings are taken. If the other view were right, it would follow that, in a case such as the present, where the defenders strongly urge that in their best interests the Courts of France are the proper tribunal to determine this dispute, their argument would be weakened, and, it might be, their rights defeated, by reason of the fact that the person as against whom, and as against whom alone, they are entitled to have the dispute determined, has, by proceedings to which they are no parties, brought, not indeed upon the scenes, but behind the scenes, a third party with whom they have no privity. It is for those reasons that I think the judgment of the majority of the learned Judges appealed from on that point is right, and, so regarded, there is no reason whatever why the judgment of the Inner House should be overthrown.