This is an appeal against an order made by a Judge of this Court, in the exercise of original jurisdiction in Admiralty proceedings, staying the proceedings in Admiralty Action No 22180, on an application by Adriatica di Navigazione SpA (the respondent) for a stay of the proceedings for lack of jurisdiction of the Court.

Cyprus Phassouri Plantations Co Ltd (the appellant), a Cypriot company of fruit growers and exporters, entered into a contract with the respondent for the carriage of 3,000 standard cartons of oranges from Limassol, Cyprus, to Venice, Italy, on the respondent's ship Corriere dell' Ovest under a bill of lading. The appellant brought a claim for misdelivery of the cargo. The respondent applied to have the proceedings set aside and/or stayed, on the ground that the Court was not seized with jurisdiction to hear the case.

On the question raised by the appellant's counsel at the hearing before the trial Court that if the proceedings were stayed, they would be faced with a time bar in Italy, counsel on behalf of the respondent expressly stated at the hearing that it waived any right to raise such defence and this statement was affirmed in the course of the hearing of this appeal. The trial Judge in granting the stay made his order conditional on the fact 'that the time bar issue is waived'.

Held: Appeal dismissed.

In dealing with the argument of counsel for the appellant that cl 26 of the bill of lading had no application because non-delivery or misdelivery of the goods after discharge is not loss or damage within the meaning of the clause, and in respect of which we have also heard lengthy argument by counsel as it was one of the main grounds of appeal, the trial Judge, after reviewing relevant case law on the matter, found as follows:

The words 'loss, or damage' which occur repeatedly throughout the Hague Rules which form part of the Schedule to the Carriage of Goods by Sea Law, Cap 263, or the English corresponding Act of 1924, were judicially interpreted in a number of cases. ... In my view the words 'loss of the loaded goods' include misdelivery or non-delivery. The words 'appearing in this Clause to the effect' that any claim for damage, shortage, etc, must be filed in writing to the agents at the port of destination within eight days 'after the discharge date', does not change the aforesaid meaning of the word 'loss' inasmuch as there is bound to be a discharge date, both in respect of goods lost prior to discharge or goods misdelivered after discharge, nor does the reference to the case of total loss in the second paragraph of Clause 26 make any difference, as that refers to a different eventuality and does not exclude by itself the aforesaid interpretation.

The trial Judge correctly came to the conclusion that the words 'loss or damage' in cl 26 of the bill of lading also covers loss caused by misdelivery of the goods.

The trial Judge carefully considered all the facts of the case as evidenced by the material contained in the affidavits filed on behalf of the parties and the various documents produced. Bearing In mind the arguments advanced by counsel on both sides, and after reviewing the principles emanating from English case law and the decisions of this Court, he concluded as follows - see Cyprus Phassouri Plantations Co Ltd v Adriatica di Navigazioni (1983) 1 CLR 949, 964-965:

The net result of the law as above stated is that I have a discretion whether or not to stay the proceedings and that the general rule is that a foreign jurisdiction clause should be enforced and that the Court would be very slow to refuse a stay if the claim was the sort of a claim which could be expected when the agreement was made and the plaintiffs had to show strong grounds for not giving effect to such foreign jurisdiction clause (see Kislovodsk [1980] 1 Lloyd's Rep 183).

On the facts of this case I have come to the conclusion that I should exercise my discretion in favour of a stay as this dispute was more closely concerned with Italy, in that the carrying vessel was Italian, witnesses as to facts were more readily available in Italy and it would be more convenient to be tried there where third parties reside and process can be issued against them and that according to clause 26 of the Bill of Lading what is not provided for in the carriage conditions shall be governed by the code of Maritime Law in force in the Italian Republic.

Finally the plaintiffs have not satisfied me that there is any good reason for me to refuse the application for the stay of these proceedings and I hereby grant a stay on condition that the time bar issue is waived as assurance has already been given by counsel.

It has been held time and again that this Court will not interfere with the exercise of discretion of the trial Court unless the trial Judge was plainly wrong in the way he exercised his discretion or that he applied the wrong principles of law. The trial Judge cannot be said to have reached incorrect conclusions of fact, on the evidence before him or any of the matters relevant to the exercise of his discretion or that he exercised his discretion in an improper way. This was an exercise of the discretion vested in him, founded on a careful appreciation of all the relevant circumstances and we do not think that this Court would be justified in interfering.

We shall finally deal with the contention of counsel for the appellant that cl 26 of the bill of lading is null and void in its totality as being repugnant to the Carriage of Goods by Sea Act, Cap 263. Counsel argued that the bill of lading, being an outward bill of lading, comes under the provisions of Cap 263 and cannot embody any provisions which are contrary to the law; the eight days restriction for submitting a claim embodied in the first para and the six months limitation for instituting proceedings embodied in the second para of cl 26 of the bill of lading contravene arts 3.6 and 3.8 of the Carriage of Goods by Sea Act, Cap 263. In support of his argument that cl 26 should not be given effect at all, he sought to rely on the dicta in The Morviken [1982] 1 Lloyd's Rep 325 and [1983] 1 Lloyd's Rep 1 (see CMI597).

The dispute in that case was in connection with the validity of a clause in the bill of lading providing that the applicable law was 'the law of the Netherlands in which the Hague Rules as adopted by the Brussels Convention of 25th August, 1924 are incorporated'. The goods were shipped from an English port and the action was brought in England where the Hague-Visby Rules were applicable, having been implemented by the Carriage of Goods by Sea Act 1971 (UK), and by virtue of which the limitation of liability for loss or damage was enlarged. The result of giving effect to the clause and applying the old Hague Rules which were in force in the Netherlands would be of lessening the liability of a carrier.

The Morviken is distinguishable from the present case, as that case was decided on the basis of the Hague Rules as amended by the Brussels Protocol of 1969, known as the Hague-Visby Rules, which were implemented in England by the Carriage of Goods by Sea Act 1971 (UK), and not on the basis of the Carriage of Goods by Sea Act 1924 (UK) which was repealed by the 1971 Act. The provisions in our Act, Cap 263, correspond to those of the English 1924 Act, and the Rules implemented in our law are the old Hague Rules and not the Hague-Visby Rules. Material changes have been brought about by the 1971 Act in England. Section 1(2) has introduced a new provision whereby it is provided that the Rules as set out in the Schedule 'shall have the force of law'.

Article 3.8 of the Rules, in Cap 263, provides as follows:

Any clause, covenant or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or damage to or in connection with goods arising from negligence, fault or failure in the duties and obligations provided in this article or lessening such liability Otherwise than as provided in these rules, shall be null and void and of no effect.

A benefit of insurance or similar clause shall he deemed to be a clause relieving the carrier from liability.

The only provision in cl 26 of the bill of lading which has been objected to by counsel for the appellant as offending the Rules is that in respect of the time bar set out for instituting proceedings, by which the time bar provided by the Rules in Cap 263 is lessened. As regards the time limitation provided in cl 26 of the bill of lading we have before us the express statement of counsel for the respondent at the hearing of the application, as appearing on the record, that the respondent waived any right to raise any defence as to the time bar, and also the condition in the order of the trial Court that 'the stay was granted on condition that the time bar issue is waived'. Therefore, what has to be considered is whether the jurisdiction part in cl 26 can be separated from the time bar part and be given effect to, or whether, in its totality, cl 26 should be declared null and void as contended by counsel for the appellant.

Once the time-bar part of cl 26 of the bill of lading, which is in conflict with art 3.8 in the Schedule of the Carriage of Goods by Sea Act (Cap 263), has been waived, the remaining part, which embodies a foreign jurisdiction clause, is valid and can be enforced on its own.