' MUNIB AKHTAR, J.-The two applications, filed by the defendants, that fall for determination relate to a foreign choice of forum or jurisdiction clause set out, in identical terms, in certain bills of lading.
Both applications, in effect, ask for the same relief; that these proceedings should come to an end, either (as prayed in C.M.A. 151/2012) by a stay of the suit or (as prayed in C.M.A. 152/2012) by a return of the plaint. The bills of lading were issued by the defendant No,5 as carrier in respect of goods consigned to the plaintiff by a shipper from the Bahamas. All the contesting defendants are part of the well-known MSC shipping line, and the three defendant vessels are said to belong to the ground. The jurisdiction clause, as presently relevant, is as follows; "10.3 Jurisdiction:. It is hereby expressly agreed that they suit by the Merchant, and save as additionally provided below, the Carrier shall be filed exclusively in the High Court of London and English law shall exclusively apply The Merchant agrees that it shall not institute suit in any other court and agrees to be responsible for the reasonable legal expenses and costs of the Carrier in removing a suit filed in another forum. The Merchant waives any objection to the personal jurisdiction over the Merchant of the above-agreed [forum].
' Merchant is defined in the terms of carriage as including the consignee. It appears that the carrier in fact initiated proceedings in the High Court of England and Wales, either just before, but at any rate contemporaneously with, the present suit. It appears that the relief sought in that action is by way of an anti-suit injunction and I am informed that an order of this nature has been made by the English High Court.
2. The leading authority in Pakistan with regard to a foreign jurisdiction clause is of course M.A.
Chowdhury v. Mitsui L.S.K. Lines Ltd. PLD 1970 SC 373 (herein after "Mitsui"). In that case also a choice of forum clause in a bill of landing was involved. Learned counsel for the respective parties therefore, quite properly, focused attention on the relevant passages of Mitsui in support of their submissions, respectively, that the applications (or either of them) be allowed or that both be dismissed.
3. Learned counsel for the defendants drew attention to the jurisdiction clause involved in Mitsui (reproduced at pg.380) and submitted that the clause in the present case was even stricter and more tightly drafted than the former. After referring to various passages (at pp.383, 384 and 389) learned counsel relied in particular on the observations at pg. 394, where it was held that foreign jurisdiction clauses; "... Are really in the nature of arbitration clauses which come within the exceptions to section 28 of the Contract Act and, therefore, should be dealt with in the same manner as other arbitration clauses. In the case of an arbitration it has to be remembered that the jurisdiction of the Courts is not altogether ousted, for, the Courts merely stay their hands to allow the parties to resort to the form of adjudication to which they have previously agreed. Ely only staying the actions before them the Courts still retain to themselves the jurisdiction to resume the case if the arbitration, for any reasons, fails or the parties find it impossible to comply with the form of adjudication to which they had agreed."
' Learned counsel also referred to a passage at pg. 396, where it was observed that the onus of establishing that a suit should be stayed by reason of a foreign jurisdiction clause lay on the party invoking such clause. Thus, learned counsel accepted that the onus lay on the defendants in this regard. He submitted that on a straightforward application of the principles enunciated by the Supreme Court, the defendants were entitled to appropriate relief. Learned counsel also relied on CGM (Compagnie General Maritime) v. Hussain Akbar 2002 CLD 1528 (SHC; DB) where relying, inter alia, on Mitsui and learned Division Bench directed that the suit be stayed and the parties have recourse to forum selected in the clause. Reliance was also placed on Light Industries (Pvt) Ltd. v.
Zsk Stickmaschinen GmbH and another 2007 CLD 1324, where a learned Single Judge of this Court stayed proceedings brought in breach of a foreign jurisdiction clause. This decision was upheld in appeal by a learned Division Bench; Light Industries (Pvt) Ltd. Zsk Stickmaschinen GnibH and another 2009 CLD 1340. Learned counsel submitted that a clear case for relief had been made out, and prayed accordingly.
4. Learned counsel for plaintiff submitted that Mitsui only applied between a shipper and the carrier and it did not apply to a dispute, which was the situation at hand, between the consignee and the carrier. Learned counsel referred to the principles (then) applicable under English law in relation to a stay of proceedings on account of a foreign jurisdiction clause, as stated in The Eleftheria [1969] 2 All ER 641, and reproduced in Mitsui at pp.388-89. Learned counsel submitted that a bill of lading evidenced the contract of carriage between the shipper and the carrier and it was not one between the carrier and the consignee. When his attention was drawn to the Bills of Lading Act, 1856, learned counsel submitted that that statute did not apply to any arbitration clause as may be contained in the contract of carriage, and since in Mitsui and Supreme Court had equated (or at least likened) foreign jurisdiction clause with arbitration clause, the said Act did not apply in the present case either. Learned counsel submitted that even if the principles stated in The Eleftheria and adopted by the Supreme Court in. Mitsui were applied, the plaintiff had a strong case for the suit not to be stayed. It was submitted that the entire dispute related to goods shipped, or allegedly shipped, by the Bahamas supplier to the plaintiff. A fraud had been perpetrated on the plaintiff by the former, which came to light only when the containers were discharged at Karachi and opened.
The entire evidence was at Karachi and to the extent that some of the evidence was outside Pakistan, it was outside England as well (being in the Bahamas). Thus, the English High Court would be no better placed than this court with regard thereto, and may well be worse placed as regards the evidence in Pakistan. Learned counsel further submitted that the Plaintiff's claim may be barred by limitation if it was forced to go to English proceedings, and that the only connection that the parties or the contract had with England was by reason of the jurisdiction clause. Learned counsel contended on the foregoing basis that even an application of the principles in Mitsui indicated that the suit ought not to be stayed. He prayed that the applications be dismissed. Learned counsel for the defendants exercised his right of reply. Relying on paras 3 and 5 of the plaint, learned counsel submitted that the plaintiff had fully confirmed and adopted the bills of lading and therefore could not resile from the jurisdiction clause contained therein.
5. I have heard learned counsel as above, examined the record and considered the case law, which as noted above, principally requires a consideration of Mitsui. The relevant passage from that judgment has been set out herein above. It remains only to set out the passage from The Eleftheria reproduced in Mitsui at pp. 388-89 and said to have been adopted by the Supreme Court. The relevant extract from Mitsui is as follows; "Finally, in the Eleftheria's case [1969] 2 All ER 641, which was also a case of an application for stay of action brought against the shipowners by the cargo-owners, Brandon J., after reviewing all earlier decisions, summarized the principles followed by English Courts as follows:
(1) Where plaintiffs sue in England in breach of an agreement to refer disputes to a foreign. Court, and the defendants apply for a stay, the English Court, assuming the claim to be otherwise within its jurisdiction, is not bound to grant a stay but has a discretion whether to do so or, not
(2) The discretion should be exercised by granting a stay unless strong cause for not doing so is shown;
(3) The burden of proving such strong cause is on the plaintiffs;
(4) In exercising its discretion, the Court should take into account all the circumstances of the particular case;
(5) In particular, but without prejudice to (4), the following matters, where they arise, may properly be taken into account:
(a) In what country the evidence on the issues of facts is situated, or more readily available, and the effect of that on the relative convenience and expense of trial as between the English and foreign Courts;
(b) Whether the law of the foreign Court applies and, if so, whether it differs from English law in any material respects;
(c) With what country either party is connected, and how closely;
(d) Whether the defendants genuinely desire trial in the foreign country, or are only seeking procedural advantages;
(e) Whether the plaintiffs would be prejudiced by having to sue in the foreign Court because they would---
(i) be deprived of security for that claim;
(ii) be unable to enforce any judgment obtained;
(iii) be faced with a time-bar not applicable in England; or
(iv) for political, racial, religious or other reasons be unlike to get a fair trial"
' I accept that, especially in view of what has been said at pg. 394, the above stated principles have, in the main, been accepted by the Supreme Court as correctly stating the law. However, the Supreme Court has taken a different view to a certain extent, e.g., in relation to points (2) and (3); as noted above, the Supreme Court has held that the onus lies on the party invoking the clause, which would usually be the defendant. The Supreme Court has preferred the American view (see at pg. 396). Some care should therefore, be taken in applying the foregoing principles when considering an application for stay of proceedings.
6. After having considered the facts and circumstances of the present case la light of the foregoing, I conclude that the defendant shave been able to make out a case for stay of the suit. I have not, with respect, found the submissions to the contrary made by learned counsel for the plaintiff convincing. Thus, I cannot, with respect, accept that the plaintiff as consignee is not bound by the contract of carriage as evidenced by the bills of lading. In my view, such conclusion would be clearly contrary to what is provided in the Bills of Lading Act, 1856 and would be "most disadvantageous for consignees in this country. Since the consignee is bound by the totality of the contract, and the jurisdiction clause is part thereof, it cannot be said that the latter is not binding as well. This would be so even if the jurisdiction clause is to be treated as being equivalent to, or in the nature of, an arbitration clause. As regards the specific points taken by learned counsel in terms of what might be called the Eleftheria principle, I am, with respect, unable to agree that a case has been made for not staying the suit. Thus, while it is true that the evidence in the Bahamas is outside both Pakistan and England, tendering if in English proceedings would have the advantage of respecting the sanctity of the contract. As is clear from Mitsui, this was a matter to which considerable importance was attached by the Supreme Court. Insofar as the evidence in Pakistan is concerned, it cannot be said that its nature is such that it cannot also be tendered in England. The fact that the carrier has already initiated proceedings in the English High Court and apparently obtained an injunction against the plaintiff indicates that it is serious about litigating in that jurisdiction and is not merely seeking some procedural advantage (point 5(d)). The submission that the plaintiff's claim may become time barred if it has to proceed in England (point 5(e)(iii)) would appear to be misconceived; if anything, periods of limitation under English law are more generous than equivalent provisions under our law. Since the contract of carriage is governed by English law, it is obvious that the High Court there would be better placed to deal with e.g., questions of law, and this is so notwithstanding the similarity and connection between English law and Pakistani law especially in shipping matters and the relative familiarity of Pakistani lawyers with English law. Having considered the totality of the circumstances, I am therefore of the view that the dispute between the parties ought to proceed England and not in this country.
7. In Mitsui the Supreme Court made clear that in cases involving a foreign jurisdiction clause, the plaint could not be returned. The proper course would be to stay the proceedings if the Court concluded that the matter ought to proceed in the foreign jurisdiction. Since I have so concluded, C.M.A. 151/2012 is hereby allowed and the present suit is stayed. The other application, C.M.A.
152/2012, becomes infructuous and is disposed of as such.