English Sewing Ltd and Others v. Eastern Shipping Lines, Inc

HCA000996/1981

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

No. 996 of 1981

(Transferred to the Commercial List)

BETWEEN

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Coram: Hooper, J.

Date: 28 OCT 1983

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JUDGMENT

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1. In this case there are two summons before me for determination.

2. The first summons was taken out by the Defendant on the 27th of November 1981 for an Order:-

3. There is an alternative application under the inherent jurisdiction of the Court that

"The writ in this action be struck out and all further proceedings in this action be stayed on the grounds that the same is oppressive and vexatious and an abuse of the process of the Court, and that the plaintiffs pay to the defendants their costs of this action and of this application to be taxed if not agreed."

4. The second summons was filed on behalf of the Plaintiffs on the 15th of February 1982 in which the plaintiff seek an Order that:-

5. Counsel for both parties are agreed that the first issue which I have to determine is whether the service within the jurisdiction was good, the burden being on the plaintiff to satisfy the Court that it was. Should the plaintiffs discharge this burden and establish that the service was good, I should then consider whether I should make an Order under the inherent jurisdiction of the court to strike out the writ end order that all further proceedings in this action be stayed on the grounds that the same are oppressive and vexatious and an abuse of the process etc. If on the other hand the Defendant should succeed on its summons and I declare that the writ was not properly served, then I should consider whether I should exercise my discretion to give the Plaintiffs Leave to serve their writ outside the Jurisdiction.

6. This case arises out of the unfortunate loss at sea of the vessel "Eastern Minicon". The evidence is that this event occurred on the 16th of February 1980 while the vessel was on its way from Hongkong to Manila with cargo from Hongkong. On the 16th February 1981, exactly one year after this tragic event occurred, the plaintiffs initiated proceedings both in the Philippines and in Hongkong. The proceedings in the Philippines were commenced by the filing of a "Complaint" in a very detailed form. The writ in Hongkong was a generally endorsed writ. The next thing that happened is that the Defendant filed an answer and Counterclaim on the 11th of March 1981 in the Philippine Court which was followed on the 13th of March 1981 by the Plaintiffs' answer to the counterclaim. Nothing further seems to have happened until the 2nd of November 1981 when the Plaintiffs issued a concurrent writ and purported to serve it in Hong Kong on the Defendant's agent in Hong Kong, Eastern Worldwide Company Limited of Western Centre, 21st Floor, 40-50 Des Voeux Road, Hong Kong. It was stated on the concurrent writ that the Defendant had a place of business in Hong Kong through its agents Eastern Worldwide Company Limited. On the 27th of November 1981 the Defendant entered an Acknowledgment of Service under the new rules and immediately applied by the first summons I have to determine to set aside Service of the Writ under Order 12 Rule 8 R.S.C. On the 10th of December 1981 this case was transferred to the Commercial List. The next thing that happened was that on the 8th of February 1982 the Plaintiffs presented a petition to the Philippine Court for reconstitution of the proceedings there. This was because the Court record had been destroyed by a fire in the Court Registry in Manila. Finally on the 15th of February 1982 the Plaintiffs issued the second of the summons which I have to determine seeking leave to serve outside the jurisdiction under Order 11 Rule 1 in the event that I hold the service within the jurisdiction to be bad.

7. There is not a great deal of evidence on this matter of service. Mr. Gregory Quinton Gray a solicitor employed as a solicitor's clerk by Messrs. Holman, Fenwick & Willan, who have the conduct of this proceeding on behalf of the Defendant, testified in the first of his affidavits as follows:-

"The defendants are a Philippine registered corporation of Eastern Shipping Liues Building, Anda Circle, Port Area Post Boy 4253, Manila, Philippines. The defendants have agents in various countries to assist in the operation arid management of their business, and one such agent is Eastern Worldwide Co. Ltd. of Western Centre, 21st Floor, 40-50 Des Voeux Road West, Hong Kong. The plaintiffs purported to serve the writ in this action on the defendants by delivering the same by hand to the office of their agents on or about 4th November, 1981. The said writ on its face acknowledges that the said Eastern Worldwide Co. Ltd. are agents of the defendants in Hong Kong, but alleges further that as a result thereof that the defendants have a place of business within the jurisdiction of this Honourable Court. In my respectful submission this is a total non-sequitur, and the plaintiffs must satisfy this Honourable Court that the defendants actually carry on business within the jurisdiction before they may serve proceedings on the defendants in Hong Kong rather than in Manila at the discretion of the Court. Alternatively, at the discretion of the Court the plaintiffs may serve proceedings on their agent, if the contract was made by that agent in Hong Kong, under Order 10 Rule 2."

8. In fact no application has ever been made for leave to serve under Order 10 Rule 2.

9. In reply to the affidavit of Mr. Gray there is an affirmation by Mr. Ng Kwok Ying, assistant solicitor employed by Messrs. Ince & Co., the solicitors having conduct of the proceedings on behalf of the plaintiffs. He says:-

"The claim relates to the loss and non delivery of goods shipped in Hong Kong on board the Defendant's vessel "EASTERN MINICON" to Manila. The goods were shipped under various bills of lading issued and signed in Hong Kong by the Defendants' agents in Hong Kong, Eastern Worldwide Company Ltd. There is now produced and shown to me a copy of such signed Bill of Lading (relating to the 1st Plaintiff) Marked "NKY-1". It was Eastern World Wide Company Ltd. (hereinafter referred to as Agent) which received the cargo bookings from the various Plaintiffs in Hong Kong and which received the freight in Hong Kong and which issued and si-ned the Bills of Lading. The said Agent was at all material times carrying on the business of the Defendants in Hong Kong at the address of western Centre, 21st Floor, 40-50 Des Voeux Road, West, Hong Kong."

10. Later at paragraph 6 he went on to say:-

"After the loss of the vessel, the said Agent handled all the matters in relation to claims made by the Plaintiffs. There are now produced and shown to me a bundle of correspondence relating to the 1st Plaintiff marked "INKY-2(a)" to "NKY-2(d)" which showed that in Hong Kong through the Agency of the said Agent, the Defendants were dealing with the claims of the 1st Plaintiff for the loss of the 1st Plaintiff's cargo. Similar correspondence as "INKY-2(a)" to "NKY-2(d)" also exist in relation to the other cargo claimants. So it is in my respectful submission clear that at all material times, through the agency of the said Agent, the Defendants were carrying on the business of a shipowner in Hong Kong at the place of business in Hong Kong as aforesaid."

11. Although both Mr. Gray and Mr. Ng submitted numerous further affidavits to the Court, the above evidence is the sum total of the evidence on the question as to whether the service was good or bad,

12. It is clear that a foreign corporation, if it establishes a place of business in Hong Kong within the meaning of the Companies Ordinance Cap.32, must register with the Registrar of Companies a name and address of some person authorised to accept service on its behalf. (See Companies Ordinance Cap.32, Section 333(c)). In the event that it fails to do so, then process should be served by leaving it at or sending it by post to any place of business established by the corporation in the Colony. (See Section 338).

13. This was recognised by Fuad J. (as he then was) in "China Steel Corporation & Anor and Virginia Panama S.A. (No. CL-63 1980) and both Counsel in the present case accept it to be the position. How then should the Courts construe the words "place of business"? These words have not been defined in the Companies Ordinance, but it appears from Section 341 that they include "a share transfer or share registration office". The Ordinance is taken from the Companies Act of 1948 in force in England and the relevant provisions are substantially the same. It has been suggested by the authors of Dicey & Morris on "The Conflict of Laws" 10th edition at page 188 that these words have a wide meaning. It is their contention that the cases on carrying on business at common law are obsolete, except to the extent that they throw light on the meaning of the expression "place of business". In "THE THEODOHOS" [1977] 2 Lloyd's Report 428 Mr. Justice Brandon relied on them to support his finding that a foreign corporation must be carrying on business at a place within the jurisdiction before it could be served under the corresponding section to Section 338 Companies Ordinance. He quoted from a number of them and in particular from the judgment of A.L. Smith L.J. in LA Bourgogne [1899] P1 (a Court of Appeal decision) at p.12 on the burden of proof, and from the judgments of Buckley and Phillimore L.J.J. in Okura & Company Ltd. v. Forsbacka Jermwerks Aktiebolag [1914] 1 K.B. 715 in the Court of Appeal in England on the relevant principles.

14. The Okura case was expressly followed Kby Barker J.A. in the Hong Kong Court of Appeal this year in "The Artemis" (Civil Appeal 14 of 1983) in which he quotes from the judgment of Buckley L.J. as sesting out the relevant principles in this connection. The passage appears at page 5 of the judgment as follows:-

"The question in this case is whether the defendants, who are a foreign corporation, can be served with a writ in this country. The answer to that question depends on whether the defendants can be found 'here' for the purpose of being served. In one sense, of course, the corporation cannot be 'here'. The question really is whether this corporation can be said to be 'here' by a person who represents it in a sense relevant to the question which we have to decide. The point is, do the facts show that this corporation is carrying on its business in this country? In determining that question, three matters have to be considered. First, the acts relied on as showing that the corporation is carrying on business in this country must have continued for a sufficiently substantial period of time ... Next, it is essential that these acts should have been done at some fixed place of business .... The third essential, and one which it is always more difficult to satisfy, is that the corporation must be 'here' by a person who carries on business for the corporation in this country. It is not enough to show that the corporation has an agent here; he must be an agent who does the corporation's business for the corporation in this country. This involves the still more difficult question, what is meant exactly by the expression 'doing business'?"

15. Barker J.A. also expressed the view that in each case the question as to whether a foreign corporation is carrying on business "here" is a question of fact and referred to the judgment of Hewson J. in "The World Harmony" [1965] 1 Lloyd's Report 244 at p.251.

16. Huggins V.P., the other judge in "The Artemis", recognised that "one company may undertake so much of the functions of another company that the latter is in reality carrying on the business of the former" and expressed that to be the position in "The World Harmony". He also asserted on the strength of "The Theodohos" [1977] 2 Lloyd's Report 428 that the burden of proof is on the plaintiff to establish that. He said ?

"The mere fact that a person employs an agent (as distinct from a servant) within the jurisdiction does not ipso facto mean that the principal is carrying on business within the jurisdiction. Prima facie each is carrying on his own business. Thus it was conceded that, if a foreign ship owner employed a solicitor in Hong Kong for the purposes of litigation here, the solicitor would not be carrying on the business of ship owner. See Okura & Co. Ltd. v. Forsbacka Jervererks Aktiebolag (supra) at p.718.

17. Later he added

"I think Mr. Pollock is right when he says that the carrying on of business predicates in this context some possibility of profit making".

18. Clearly both judges were relying on the common law authorities to support their contentions except perhaps in respect of the last mentioned quotation. In any event counsel before me both accept that the burden of proof is on the plaintiff and that the question is one of fact. They both rely extensively upon the common law authorities as illustrations as to how the facts have been determined in the past.

19. It is common ground that the Defendant's agent in Hong Kong

20. That is all the plaintiffs can prove on the affidavits. With the greatest respect to Mr. Waung I cannot see how I can hold on that evidence alone that the defendant has established a place of business in Hong Kong. There is nothing in the evidence to show the scope of the agents authority to enter into contracts on behalf of the defendant.

21. It is not possible to give an answer to the question which was posed by Buckley L.J. in Thames & Mersey Marine Insurance Company v. Societa di Navigazione a Vapore del Lloyd Austriaco (1914) 12 Asp. Maritime Law Cases (NS) 491 when he said:-

"The test in each case is to find the answer to the following question: Does the agent in carrying on the foreign corporation's business make a contract for the foreign corporation, or does the agent, in carrying on his business, sell a contract for the corporation? In the former case the foreign corporation is and in the latter case it is not carrying on business at that place."

22. It is true that the Bill of Lading exhibited bears the defendant's name but I have not been referred to any evidence which shows that the agent had unlimited authority or even a wide discretion to enter into contracts on the defendant's behalf or that the agent in executing that Bill of Lading was not running its own business by selling the defendant's contract at fixed rates for freight on a commission basis.

23. The similarity in part of the names of the two corporations "Eastern Shipping Line Inc." (Defendant) and "Eastern Worldwide Company Limited" (agent) does not have any bearing on the scope of the agent's authority. "What is in a name?" one might well ask. The fact that they have similar telegraphic codes is neither here nor there. There is nothing in any of the correspondence to show that the agent had a wide discretion to enter into contracts for the defendant or that it was not selling contracts on behalf of the defendant. Indeed the correspondence suggests that the agent had to refer to its principal.

24. Mr. Waung placed great emphasis on the way the agent described itself in the exhibit NKY-2(c) as being "general agent" for the defendant, but that does not in my opinion help him.

25. In "The Princess Cle'mentine" [1897] p.18, the defendant not only described its agents as "general agents" but claimed to have an office in England at the address of its agents in name plates at the address in question, in business cards, receipt notes, and in advertisements, but it was held by Gorell Barnes J. in a decision which has been frequently quoted that although in a popular sense the business of the defendant corporation was carried on by the corporation in England, nevertheless in the eye of the law it was not.

26. Having examined the authorities relied upon by the parties and having considered other authorities referred to in the textbooks to which I have been referred, I agree with Mr. Haddon-Cave that the plaintiffs have not discharged the burden which it is agreed is on them to prove that the defendant had established a place of business within the colony within the meaning of Section 338 o?the Companies Ordinance. I therefore make an order in terms of paragraph 1 of the defendant's summons of the 27th of November 1981.

27. I now turn to the issue which arises as a result of my finding on the first issue. Should the plaintiffs be given leave under Order 11 of the Rules of Supreme Court to serve out of the jurisdiction by serving on the defendant in the Philippines?

28. Both Mr. Waung for the plaintiffs and Mr. Haddon Cave for the defendant have quoted at length from The 1982 White Book. Both have referred me to the commentary on Order 11 which appears at notes 11/1/4 and 11/1/5. I won't set them out. Suffice it to say that I accept that the principles upon which leave should be granted are correctly set out in those paragraphs.

29. The application before me is rather unusual in that it has been fully argued as an agreed issue. Normally such an application is made ex parte in the absence of the foreign defendant who has yet to be served. In this case the foreign defendant is already before the court as a result of its summons of the 27th November seeking not only an order declaring that service within the jurisdiction was bad, but also seeking an order that this would not be a proper case for the exercise of the Court's discretion to allow service in accordance with Rules of Supreme Court Orders 10 and 11. Once again both parties are in agreement that the onus is on the plaintiffs to satisfy me that this is a proper case for the exercise of my discretion under Order 11.

30. It is clear from the authorities that the plaintiffs must be able to show that their case falls within one or other of the sub-paragraphs of Rule l or Rule 2. The defendant has conceded through Mr. Haddon Cave that the plaintiffs can bring their case within Rule l(1)(f)(ii).  Mr. Haddon Cave prefers to direct my attention to the principles upon which my discretion should be exercised. Mr. Waung on the other hand has urged me to hold that the plaintiffs can bring their case within all three sub-paragraphs of Rule 1(1)(f) and not just sub-paragraph (ii). He also argues that the plaintiffs can bring their case within sub-paragraphs (g) and (h).

31. In my view I cannot avoid considering this submission because if an action falls within one or more of the sub-paragraphs it is not permissible to litigate any other claim which does not fall within one of the subparagraphs. (See Dicey & Morris on Conflict of Laws 10th edition at p.199 and the cases referred to in Note 19.)

32. In order that the plaintiffs can bring their case within subparagraph 1(1)(f)(ii) they must be able to show that the action is in respect of the breach of a contract, being a contract which was made by or through an agent trading within the jurisdiction on behalf of a principal trading out of the jurisdiction. That is what Mr. Haddon Cave has conceded.

33. To fall within subparagraph (i) of Rule 1(1)(f) the plaintiffs must be able to show that their action is in respect of a breach of contract, being a contract made within the jurisdiction. To fall within Sub-paragraph (iii) of Rule 1 (1)(f) the plaintiffs must be able to show that their action is in respect of the breach of la contract which is by its terms or by implication governed by Hong Kong Law. To fall within subparagraph (g) the plaintiffs must be able to show that their action is in respect of a breach committed within the jurisdiction of a contract whether made within or out of the jurisdiction. Finally so far as subparagraph (h) is concerned the plaintiffs must be able to show that their action is founded on a tort committed within the jurisdiction.

34. The degree of proof of compliance with the requirements of the subparagraphs is that of "a good arguable case". Mr. Haddon-Cave's concession implies that the plaintiffs have a good arguable case that their action is in respect of a breach of a contract, being a contract which was made by or through an agent trading within the jurisdiction on behalf of a principal trading out of the jurisdiction.

35. It is interesting to note that these subparagraphs are to be read disjunctively (See Mathews v. Kuwait Bechtel Corporation [1957] 2 Q.B. 57). It must therefore be the inference from subparagraph (iii) of Rule 1 (1)(f) that it is not a prerequisite for leave under the other subparagraphs that the contract should be governed by Hong Kong Law. That is but one of the requirements which will bring their claim within the ambit of Order 11. It is not an essential requirement and leave may be granted where the plaintiffs action falls within one of the other subparagraphs even if the parties had agreed that the terms of the contract should be governed by some foreign law. It may nevertheless be an important consideration in the exercise of the discretion. I shall come to this later.

36. Have the plaintiffs shown that they have "a good arguable case" that their action complies with the requirements of these other subparagraphs? In my view they have. Indeed even Mr. Haddon-Cave in his submission appeared to accept that they had with the possible exception of ` subparagraph (iii) of Rule 1 (l)(f). It was his contention that the contract evidenced by The Bill of Lading was governed by Philippine Law.

37. There was undisputed evidence in the affidavits that the Bills of Lading evidencing the contracts in each case were signed in Hong Kong. There was undisputed evidence that this vessel was lost at sea on the 16th February 1980 together with her cargo and crew and that as a result thereof the defendant could not complete the performance of its obligations under these contracts of carriage. There was uncontradicted evidience in paragraph 5 of the affirmation of Mr. Ng Kwok Ying dated the 7th of April 1982 that the vessel was unseaworthy when it left Hong Kong.

38. At this time the Carriage of Goods by Sea Act of 1971 had not yet been extended to Hong Kong by the Carriage of Goods by Sea (Hong Kong) Order 1980 which only came into operation on 1st February 1981. The relevant legislation at this time which governed Bills of Lading used in connection with the carriage of goods by sea in ships carrying goods from any port in the colony to any other port was The Carriage of Goods by Sea Ordinance Cap.46.

39. Under its enabling powers subsidiary legislation intitled "Carriage by Sea under Bills of Lading Rules" had been enacted. (hereinafter referred to as the Bills of Lading Rules). These rules governed the liability of the parties under the contracts of carriage evidenced by the Bills of Lading. However quite apart from the statutory application of these Bills of Lading Rules there was evidence that the parties to these contracts of carriage had agreed in clause 18 of the Bills of Lading that the Bills of Lading should be deemed to have been issued subject to the provisions of the Hong Kong ordinance.

40. Rule 1 of Article III of these Bills of Lading Rules provides that the carrier shall be bound, before and at the beginning of the voyage to exercise due diligence to make the ship seaworthy. Furthermore Rule 8 of the same article renders any clause, covenant or agreement in a contract of carriage absolving the carrier or the ship from liability for loss or damage to or in connection with goods arising from negligent fault or failure in the duties and obligations provided in this article to be null and void.

41. Where therefore the failure of the defendant to perform its obligations under the contract of carriage was as a result of the unseaworthness of the vessel, the defendant would be in breach of contract despite the exemption clause in the Bill of Lading.

42. As there is uncontradicted evidence that the defendant'a vessel was unseaworthy when it left Hong Kong I hold that the plaintiffs have a good and arguable case that the defendant was in breach of contract within the jurisdiction and have satisfied the requirements of 011 rule 1 (1)(g). Similarly and for the same reason I hold that the plaintiffs have a good and arguable case that they have complied with the requirements of 0.11 rule 1(1)(h).

43. I don't think it is disputed that the contracts were made in Hong Kong so that they must also have a good arguable case under 0.11 rule 1 (1)(f)(i). Furthermore it seems clear from the above that the contracts will be governed by Hong Kong Law to bring the action within 0.11 rule 1 (1)(f)(fii).

44. I shall now consider the principles relating to the exercise of the discretion. The main considerations are -

Considerations as to costs and convenience are also usually relevant. Furthermore. inordinate delay in seeking leave to serve the writ may be a ground for refusing leave.

45. Mr. Haddon-Cave bases his contention that leave should not be given on five main grounds -

46. I can deal with these shortly. In the affidavits before me it is certainly not conceded by the plaintiffs that the proceedings in the Philippines are at an advanced stage. Indeed it is the plaintiffs' contention that they are not. It is not for me to attempt to determine issues in an application of this sort. Suffice it to say that it appears to be common ground that the plaintiffs have never attended any pre-trial proceedings in the Philippines, and no trial date has ever been set in the Philippines. (Indeed it is difficult to believe that the plaintiffs would have done anything in the Philippines to prejudice their action in Hong Kong).

47. That being so the Philippine proceedings can have got no further in effect than the stage which is reached when the pleadings are closed. The plaintiffs wish to withdraw that action and now undertake to do so and to pay the defendants cost there on an indemnity basis. I don't accept that the proceedings in the Philippines are at an advanced stage. In any event the plaintiffs are prepared to withdraw them altogether.

48. So far as the forum conveniens is concerned Mr. Haddon Cave argues that this is the Philippine Court. It is his contention that the true plaintiffs are the consignees all of whom are in the Philippines. The defendant is a Philippine company. The vessel is a Philippine vessel and the goods were to be delivered in the Philippines. I agree with Mr. Waung that the forum conveniens is the Hong Kong Court. The evidence is that these contracts were evidenced by Bills of Lading signed in Hong Kong. It is common ground that the Bills of Lading Rules ("Hong Kong's version of the Hague Rules" to use Mr. Haddon-Cave's phrase) apply to these contracts by operation of law. That being so the nationality of the parties are irrelevant. The shippers are in Hong Kong. The action is in respect of a total loss with the result that most of the witnesses will be in Hong Kong. It was in Hong Kong that the defendants were obliged to exercise due diligence. A good deal of evidence has been produced before me, concerning the mode of procedure in the Philippines. I don't propose to go through it all. Suffice it to say that I consider that on balance it will be in the interests of both parties that the action should proceed here. Furthermore there is no exclusive jurisdiction clause.

49. So far as the proper law is concerned Mr. Haddon-Cave argues that it is Philippine Law. It is his submission that the Philippines is the country with which the contract has the closest and most real connection. Mr. Waung argues that it is Hong Kong Law. It is a difficult question. One thing is clear and that is that the parties intended that their liability should be governed by the Hong Kong Bills of Lading Rules. That being so I consider that Hong Kong is the appropriate forum.

50. Mr. Haddon-Cave's fourth point is that the plaintiffs case is fundamentally week. His only ground for saying this is the exemption clause in the Bill of Lading, but as I have already pointed out one cannot contract out of these rules. Rule 8 of the Bill of Lading Rules renders the exemption clause null and void.

51. Finally Mr. Haddon Cave relies upon considerable delay between the issue of the writ and the purported service. He also refers to the time gap between the issue of the writ and the application under Order 11. I do not regard this as of any great significance. It is true that there VMS some delay before an attempt was made to serve the writ within the jurisdiction. In view of the number of plaintiffs involved and the issues involved I do not consider the delay to be excessive. Once the defendant filed its present application attacking the service of the writ under 0.12 rule 8, it was unnecessary for the plaintiffs to make an application under Order 1 until the service within the jurisdiction was held to be bad. Indeed the plaintiffs unusual conditional application appears to be an attempt to minimise delay.

52. Taking all things into consideration I cannot see that the defendants will suffer any disadvantage if the case is heard in Hong Kong. Indeed it seems to me to be more convenient for all parties that it should be heard in Hong Kong.

53. I thus exercise my discretion and grant leave to the plaintiffs to issue a concurrent writ and to servo it on the defendant in the Philippines.

54. I will hear the parties as to the further directions and costs.

Representation:

Mr. William Waung (Ince & Co.) for the plaintiffs.

Mr. Charles Haddon-Cave (Holman, Fenwick & Willan.) for Defendants.

Commercial List - Foreign corporation served at agents address within the jurisdiction - application by defendant for Order declaring writ not properly served - burden of proof - Section 338 Companies Ordinance - meaning of "place of business established by the corporation in the colony" - relevance of common law authorities - question of fact - held defendant corporation not properly served.

Application for leave to serve outside jurisdiction under Order 11 rule 1(1)(f)(i)(ii)(iii), (g) & (h) - burden of proof - degree of proof of compliance with the requirements of above sub-paragraphs is "a good arguable case" - held plaintiffs case complied with all above subparagraphs - discretion to grant leave - principles for exercise of discretion - application of The Carriage of Goods by Sea Ordinance Cap.46 - Carriage by Sea under Bills of Lading Rules - application of these rules by law - application by agreement - nationality of parties irrelevant to exercise of discretion in such case - lis alibi pendens in Philippines - forum conveniens - proper law - delay - held leave given to plaintiffs to serve concurrent writ outside the jurisdiction in the Philippines.

Representation:

Mr. William Waung (Ince & Co.) for the plaintiffs.

Mr. Charles Haddon-Cave (Holman, Fenwick & Willan.) for Defendants.