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(1989)I989Febmaiy22 (BOYADJIS,J.) MTTSUIANDCO.LTDANDOTHERS, Plaintiffs, v. ROCKWELLMARINELTD.ANDANOTHER, Defendants. (AdmiraltyAction No. 61/84). Admiralty—Carriage of goods by sea—Contract of affreightment — Proper law of contract—Presumption that it is the law of the country of the ship's flag—Displaced by aprovision in the Billqf Lading thatthe contractisgoverned by thelawofanother country. Admiralty—ForeignjurisdictionclauseinaBillofLading —Proceeding 5 institutedin breach of theclause— Though theirstayisamatterof discretion,the burden isontheplaintiffstoshow astrongcause why they should not be stayed —Matters that should be taken into consideration — The weightof thefactorthatthelawgoverning the contractisthelawoftheforeigncountry, whereproceedings should 10 have been instituted in virtue of the clause— The weight of the factor thatifproceedings arestayed, the plaintiffsclaims would be time barred in virtue of the law of the country referred to in the clause—What conditionsshould be satisfiedinordertoregardthe timebarplea asdecisive intiltingthescalesinfavouro/siay. 15 Evidence —Arguments ofcounselreferringtofacts,whichhave not been proved by the evidence —Theyshould beignored. The plaintiffs, who were the consignors and consignees of the cargo, loaded aboard theship«ATLANTICVICTORY-for carriage from Bangkok toLagos,claim Saudi Ryals 164,348 thevalueofthe 20 cargo «lost and/or destroyed and/or short-delivered and/or damaged». Service on defendant 2 ship was not effected and eventually the action against her was dismissed. 112 1C.L.R. Mitsui & Co.v.RockwellMarine Defendants 1 area a company limited by shares registered in Cyprus under the Companies Law, Cap. 113, but their principal place ofbusiness isin Greece. 5 10 15 The relevant Bill of Lading provided that «Any dispute arising under this Bill of Lading shall be decided in the country where the carrierhashisprincipalplaceofbusiness,andthelawofsuchcountry shallapplyexcept asprovided elsewhere herein». Relying on the above clause defendants 1applied thatthe writof summons and/or itsservice be set aside and/or that the action and the proceedings be stayed. The defendants, later, abandoned the claimforsettingasidethewritanditsserviceandsotheonlyquestion left for determination was whether this was a proper case for orderingstayof proceedings. ' The plaintiffs admitted in their affidavit in opposition that their principal place ofbusinessisinGreece. Held,grantingtheapplicationforstayof proceedings: 20
(1)Thepresumption thatthecontract ofaffreightment isgoverned bythe Lawof thevessel'sflag isrebutted bytheprovision oftheBill of Lading, whereby the partiesthemselveschosethe law applicable to govern their contract.
(2)The Court has a discretion to grant a stay or not. However, a prima facie case infavour ofstayarisesfrom the foreign jurisdiction clause.Theburden ofprovingcausewhystayshould notbe ordered ison the plaintiff. 25
(3)The point ofthedefendant that Cyprusisforeign tothe causes of action does not reinforce their case, because itis,also, true that Greece is, also, at least equally foreign to them. Indeed, as the defendants areaCyprusCompanyandtheshipfliestheCyprusflag, the nexuswith Cyprusismore substantial than thatwith Greece. 30
(4)Defendants' argument that all the evidence, including the witnesses on the facts in issue, are not within the jurisdiction of the Cyprus Court and/or are more'readily available in Greece, is,also, notvalid.TherelevantprimaryfactsoccurredinBangkokandLagos. Neither the Greek Court nor the Cyprus Court may properly be described asamoreconvenient Court than the other. 35
(5)What is the weight to be attached to the fact that the law applicable isthe Greek Law? 40
(6)In virtue of the Convention on Legal Co-operation Between the Republic of Cyprus and the Republic of Greece in Matters of Civil, Family, Commercial and Criminal Law (Ratification) Law, 113 Mitsui &Co.v. RockwellMarine
(1989)1984(Law No. 55 of 1984) on 22.6.84 the plaintiffs can execute in Cyprus any judgment given in their favour by the Greek Courts. Therefore, plaintiffs*argument thattheywillnotbeabletoenforce a judgmentoftheGreekCourtsagainstdefendantspropertyinCyprus cannot stand.
(7)What should be in this case the effect of the fact that if the 5 application is granted plaintiffs willbe faced with a time bar under Greek Law?The proper approach of the Courts tothe plea of time bar isthe one followed by Mr.Justice Sheen in TheBlue Wave(infra), explained and illustrated byLordGoff of Chieveley in TheSpiliada(infra). The authorities show that, if certain conditions are satisfied, the pleaoftimebarmaycarryenough weighttotiltthescalesagainstthe stay Withouttheseconditions,timebarinitselfmaybetreatedeither asnota weightyconsideration orevenasa neutral factor. The first condition is whether the plaintiffs acted reasonably in 15 commencing proceedings in this country. The question must be answered in the affirmative. Regarding the second condition, the question is whether the plaintiffs acted unreasonably in failing to commerce proceedings inthechosen forum before theexpiryofthe limitation period there. This question must be answered in the 20 negative. Itmust be shown that they acted reasonably in filing their action here in breach of their agreement and also that they did not act unreasonably in failing toinstitute intimealternativeproceedingsin Greece. If they acted negligently, they also acted unreasonably. If 2 5 they do not come forward with an explanation consistent with absence of negligence on theirpart, itcannot be saidthatthey have actedreasonably.The onuswasalwaysonthe plaintiffs toshowthat decisiveimportance should,inthecircumstancesofthepresentcase, be given to their plea of time bar. Inthe absence of circumstances, 30 none weresuggested inthiscase,justifying theattribute of decisive weighttotheexistenceoftimebarinGreece,the factthat,ifastayof the proceedings instituted inCyprusisgranted,theplaintiffs shall be leftwithoutaremedyatall,isnotitselfsufficient totakeawaytheright of the defendants to insist that the plaintiffs must be held to their 3 5 agreement. Applicationgranted. Casesreferredto: TheEleftheria[1969]2AllE.R.641; CyprusPhassouri Plantations Co. Ltd. v. AdriaticaDiNavigazione 40 Sp.A. of Venice,throughtheirAgents A. L.Mantvvania Sons Ltd. andAnother
(1985)1C.L.R.290; 114 10 1 C.L.R. Mitsui&Co.v. RockwellMarine Uoydv. CuibertandOthers[1965-66]L.R.Q.B.Vol.1 p.115; TheElAmria [1981]2Lloyd'sRep.115; TheSennar(No. 2)
(1984)Lloyd'sRep.142; TheFrankPais[1985]1 Lloyd'sRep.529; 5 TheAthenee[1922]11LloydL.R.6; TheFehmam[1958]1 AllE.R. 333; TheAdolfWarski[1976]1 Lloyd'sRep.107andonappeal[1976]2 Lloyd'sRep.241C.A.; TheBlue Wave [1982]1 Lloyd'sRep. 151; 10 The VishyaPrabha [1979]2Lloyd'sRep. 286; Spiliada Maritime Corp. v.ConsulexLtd. TheSpiliada [1986]3All E.R. 843. Application. Application by defendants No. 1 to stay the.action brought 15 againstthem ontheground thatthecontractofcarriagecontainsa Greekjurisdiction clause. S.Karides,forthe applicant. E. Liatsou (Mrs.) with M. Koukkidou (Mrs.), for G. Cacoyannis, for the respondents. on Cur. adv. vult. BOYADJISJ. readthefollowingruling.Thisiaanapplicationby the ship-owners, Rockwell Marine Limited, defendants No. 1 in theadmiraltyaction,tostaytheactionbroughtagainstthembythe respondents-plaintiffs cargo owners, on the ground that the 25 contract of carriage sued on contains a Greekjurisdiction clause. The action concerned was instituted on February 17th, 1984, against the applicants and against their ship «ATLANTIC VICTORY»,defendant No.2 inthe action. Plaintiffs No. 1,Mitsui and Co. Ltd., of Bangkok, are described as the consignors of a 30 cargo of 1,936 bags of rice shipped by them on board the ship «ATLANTIC VICTORY·, under Bill of Lading No. Bangkok-I-F, dated 30.12.1982 for carriage from Bangkok to Lagos. The defendants aredescribed asthecarriersofthecargo.Jhe Bankof Credit and Commerce INTL.S.A., of Bahrain, and Ahmed Abdul 35 Qawi Bamaohan, of Saudi Arabia, plaintiffs No. 2 and 3 115 BoyadjisJ. Mitsui & Co. v. RockwellMarine
(1989)respectively,aredescribedastheconsigneestowhomortowhose orderthecargooughttohavebeendelivered.Theplaintiffs'claim isfor Saudi Ryals 164,348 or itsequivalent in Cyprus pounds, being the value of cargo «lost and/or destroyed and/or shortdelivered and/or damaged by the fault and/or neglect of the defendants, theirservantsoragentsorotherwise». 5 Service of the process could not be effected on the ship, defendant 2, and after several adjournments, the action against herwaswithdrawnanddismissedon28thFebruary,
  1. On 4th May, 1984, counsel for defendants No. 1, on whose behalf hehadenteredaconditionalappearance,filedthepresent 10 application prayingfor«anordertosetasidethewritofsummons anditsserviceonthedefendant 1and/ortostaytheactionorthe proceedings taken against the defendant 1». He based this application on the Cyprus Admiralty Jurisdiction Order 1893, Rules 203-212, 237, on the general practice and the inherent 15 powers of the Supreme Court of Cyprus in its Admiralty Jurisdiction, on theGeneral PracticeoftheAdmiraltyDivisionof theHighCourtofJusticeinEngland, andontheCivilProcedure Rules,0.48,r.
  2. The facts relied upon by the applicants are set out in the 20 following eight paragraphs of an affidavit dated 4th May, 1984, swornbytheircounselStavrosKarides: «I, Stavros A. Karides, of Nicosia, make oath and say as follows:
  3. I am an Advocate and acting for the Defendant 1 - 25 ApplicantandImakethisAffidavit ontheinstructionsandon behalf ofthesaidApplicant. 2.ThematterstowhichIdeposeinthisAffidavit aretrueto the best of my knowledge, information and belief, being based on documents and instructions received from my 30 clientsand/orontheirbehalf.
  4. The Applicant-Defendant 1 is a Cyprus non-resident shippingCompany,hasitsprincipalplaceofbusinessat4-6, Filellinon Street, Piraeus, Greece, and its Directors and ShareholdersareGreekNationalsresidinginGreece. 35
  5. Asitappears from the Writof Summons issued inthis action the alleged claims of the Plaintiffs against the 116 1C.L.R. Mitsui& Co.v. RockwellMarine BoyadjisJ.- Defendant 1{whichclaimsaredeniedbytheDefendant 1)are in connection with cargo shipped on board theship «Atlantic VictoryVDefendant 2,atBangkokforcarriagetoLagosunder a Billof Lading. 5 10 15 20 25 Defendant 1 (which claims are denied by the Defendant 1) «Atlantic Victory»/Defendant 2, at Bangkok for carriage to Lagosunder aBillof Lading.
  6. At all material times the Defendant 2 Vessel was under charter dated 23.12.1982 to Messrs.PanThaiShipping Ltd., ofBangkok andMessrs.Trianon Shipping&Chartering Ltd., DfNigeriawere charterers agents.
  7. Clause 3 of the said Bill of Lading provides that 'Any disputearisingunderthisBillofLadingshallbedecidedinthe country where the carrier has hisprincipal place of business, and the law of such country shall apply except as provided elsewhere herein'. 7.Anycontractualorotherrelation (ifany)ofthe Defendant 1 with the Plaintiffs took place outside Cyprus and Cyprusis altogether foreign to the cause of action upon which this action was brought and all the evidence including the witnessesonthefactsinissuearenotwithinthejurisdictionof this Honourable Court and/or are more readily available in Greece where any dispute, as per the stipulation of the said Billof Lading,shouldbe decided under theapplicable Greek Law. 8.1, therefore, apply foranOrderofthisHonourable Court as pertheterms oftheApplication orinsuch termsasitshall thinkfit». The respondents opposed the application. The facts upon 30 whichtheyrelyaresetoutintheaffidavit whichaccompanied their notice of opposition and which wasswom on8th June, 1984,by SoteriosAniftos,aclerkinthelawoffice oftheiradvocates.Irecite itsfull text hereinbelow: 35 «I, the undersigned, Soterios Aniftos, of Limassol, make oath andsayasfollows:
  8. I am one of the registered clerks of. Messrs. P.L. Cacoyannis&Co.,AdvocatesofthePlaintiffs-Respondents in the above action, and Iam authorised to swear the present 117 Boyadjis j . Mitsui & Co. v.Rockwell Marine
(1989)affidavit ontheplaintiffs'behalfwhichIdomakeaccordingto the best of mybelief, instructions, knowledge and information. 2.1verilybelieveandasIamadvisedbythesaidadvocates of the Plaintiffs, this isa case falling within the Rulesof the 5 Cyprus Admiralty Jurisdiction Order 1893 and that the Plaintiffs haveagoodcauseofactionanditisapropercaseto betriedinCyprus. Furthermore, as Iam advised by the said Advocates the present dispute ismore closely connected with Cyprus and 10 theGreek elementinthedisputeiscomparativelysmall.The present action relates to a Cypriot Company having its registeredofficeinCyprus,forcargocarriedbytheDefendant No.2,ashipundertheCyprusflagownedbyDefendantsNo. 1 and Cyprus is a forum of convenience regarding the 15 witnesses.Ifthelitigantswereforced toinstituteproceedings in Greece, the Plaintiffs will be prejudiced by having their disputesdetermined outsideCyprusandtheywillbeunable toenforce anyjudgmenttobeobtainedinGreeceagainstthe Defendants No.1 inCyprusoragainstitspropertysituatedor 20 connected with CyprusincludingtheShip,Defendant No.2 (ifsame does notcallata Cyprus Portandtheactionwould notbeabletoproceedagainsther).Furthermore,thePlaintiffs willbefaced withatime-bar,asnoextentionofthetimelimit isavailableinGreece. "* 3. In view of the foregoing, Iverily believe and Iam so advisedbythePlaintiffs' saidadvocatesthattheCourtshould exerciseitsdiscretioninfavourofthePlaintiffsanddismissthe Defendants' No.1 Application». No oral evidence having been adduced by either party, the 30 matterhastobedecidedwithreferenceexclusivelytothecontents of the aforesaid affidavits and to the arguments and statements madebycounselwhilstaddressingtheCourt. Itispertinent to refer atthisstage tothestatement of learned counsel for the applicants made atthebeginning of hisaddress 35 wherebyheabandonedhisprayertosetasidethewritofsummons and itsservice on the Defendants 1and confined himself tothe alternativeprayerconcerningthestayoftheaction.Hewasrightin doingsofortheauthoritiesshowthatstayoftheproceedingsisthe correct form of the relief to which the defendants would be 40 entitled,assuming,ofcourse,thattheybeentitledtoreliefatallon 118 1C.L.R. c Mitsui&Co. v. Rockwell Marine Boyadjis J. thegroundsputforward, namely,thatthecontractofcarriage sued upon containsa foreign jurisdiction clause. Itmay be addedthat, this being so, it was not necessary for the defendants to have appeared conditionallybefore filingtheirpresentapplication. See in this respect: The Eleftheria[1969] 2 All E.R. 641; and Cyprus PhassouriPlantations Co. Ltd. v.Adriatica DiNavigazione Sp. A, of Venice,throughtheirAgents,A. L.Mantovani& Sons Ltd.,and Another
(1985)1C.L.R. 290. Thereisanotherstatementmadeby counsel inCourttowhich I 10 should presently refer. This concerns(
  1. i)theadmission by learned counsel for the respondents-plaintiffs concerning the text of Clause 3 of the Bill of Lading as set out in para. 6 (supra) of the affidavit ofStavros Kaiides,and(
  2. ii)theadmission bysamecounsel of the contents of para. 3 (supra) of the same affidavit. Despite 15 theseadmissions,MissKoukkidoufor therespondentsargued that Clause3of theBillofLading(supra),properlyconstrued,doesnot confer clearly exclusivejurisdictiontotheGreekCourtsnordoesit providethatGreeklaw isthelawapplicabletotheexclusion ofany other law and,inparticular,the law of the flag of the defendants' 20 hip, i.e. Cyprus law. In support of her last aforementioned submission concerning the law applicable, counsel referred the CourttotheBritishShippingLaws, 13thEd.,para.944,where itis stated that in the case of contracts of affreightment the presumption is,weak thoughithasproved tobe,intheabsenceof 25 other indications,thatthe contractis governed by the law of the vessel's flag. She also relied on the following extract from the judgment of Willes, J., inLloydy. Guibertand Oihers [1865-66] L.R.Q.B.,Vol. 1,p.115, atp.129. «... and the general rule, that where the contract of 30 affreightment does not provide otherwise, there,as between the parties tosuch contract,in respect of sea damage and its incidents, thelaw of theship should govern, seems tobe not only inaccordancewith theprobable intention of theparties, but also most consistent and intelligible, and therefore most ^ convenienttothose engaged incommerce». We are here concerned with a contract of affreightment and damage to cargo. The law of the country in w*ich the ship is registered, i.e. the Cyprus law in the present c>κ, would have been applicable by virtue of the principle set ou...\ereinabove, if 40 thecontracthadnotprovided otherwise. Once,however, theBill of Lading upon which the plaintiffs rely in the present case, providesthatthelawapplicable isthelaw ofthecountrywherethe carrierhashisprincipalplace of business, andplaintiffs admitthat 119 BoyadjisJ. Mitsui &Co.v.Rockwell Marine
(1989)country is Greece, the presumption is rebutted and the law applicable is that stipulated by the parties in their contract, i.e. Greeklaw. Ihavenodifficulty inrejectingthesubmissionofcounselforthe respondents and inholdingthatbytheircontract inthiscasethe 5 partiesagreedtoreferanydisputearisingundertheBillofLading inquestion toa Greek CourtandtoresolveitbyapplyinqGreek law. I am reinforced in my aforesaid view by the fact that a verbatim reproduction of Clause 3 of the parties' Billof Lading appeared intheBillofLadingin77ieEleftheriacase(supra)andit 10 wasthereconstruedinexactlythesameway Inow turn to consider the principles governing cases likethe present one.Theprinciplesestablished bytheauthoritieswere, I think,bestsummarizedbyBrandon,J.inTheEleftheria(supra)as follows,atp.645: «(I) where plaintiffs sue in England in breach of an agreement to refer to disputes to a foreign court, and the defendants apply fora stay, the English court, assumingthe claim to be otherwise within itsjurisdiction, isnot bound to grantastaybuthasadiscretionwhethertodosoornot.(II)the 20 discretionshouldbeexercisedbygrantingastayunlessstrong cause for not doingsoisshown. (Ill)The burden ofproving such strong cause is on the plaintiffs. (IV) In exercising its discretion, the court should take into account all the circumstances of the particular case. (V) In particular, but 25 without prejudice to (IV),the following matters, where they arise, may properly be regarded: (
  1. a)In what country the evidence on the issues of fact is situated, or more readily available, and the effect ofthat onthe relative convenience and expense of trial as between the English and foreign 30 courts;(b)Whetherthelawoftheforeign courtappliesand,if so,whetheritdiffersfromEnglishlawinanymaterialrespects; (
  2. c)With what country either party is connected, and how closely; (d)Whether the defendants genuinely desiretrialin the foreign country, or are only seeking procedural 35 advantages;(e)Whethertheplaintiffswouldbeprejudicedby havingtosueintheforeign courtbecausetheywould-(i)be deprivedofsecurityforthatclaim,(ii)beunabletoenforceany judgment obtained, (Hi) befaced withatimebarnotapplicableinEngland,or(iv)forpoli^cal,racial,religiousorotherrea- 40 sonsbeunlikelytogetafairtrial». 120 15 1C.L.R. Mitsui&Co.v.RockwellMarine BoyadjisJ. Theabove principles have repeatedly been citedwith approval and applied in subsequent decisions in England and in Cyprus. See, for instance: The ElAmria [1981] 2 Lloyd's Rep. 119, The Sennar (No. 2)
(1984)Lloyd's Rep. 142, and Cyprus Phassouri 5 PlantationsCo. Ltd. v.Adriaticaetc. (supra), and The FrankPais [1986]1 Lloyd'sRep.529. Thedesirabilityofholdingtheplaintiffs totheiragreementliesat therootoftheprinciplethataprimafaciecaseforastayarisesfrom the foreign jurisdiction clause. In The Eleftheria (supra) it was 10 emphasized that the Court must be careful not just to pay lip• service to the principle involved, and then fail to give effect toit because ofa merebalance of convenience. The question to be resolved iswhether the plaintiffs, on whom theburden lies,have,onthewholeofthematter,established good 15 causewhytheyshould notbeheldtotheiragreement. Whatarein the present case the factors which tend to rebut the prima facie casefor astayarisingfrom theGreekjurisdictionclause,and what arethe factors tending toreinforce it? First,asto the factors tending toreinforce the prima facie case 20 for a stay, the following three main points are taken by the defendants:(a) Cyprus is altogether foreign to the causes of action upon whichthe action wasbrought. To what extentisthispointavalid one?Themattermustbeexamined inconjunction with the nexus 25 orconnection ifany, between thefactsthatgaverisetothe cause of action and Greece whose Court the parties have chosen totry theirdispute.TheBillof Ladingwasissued inBangkok inrespect of cargo to be carried from Bangkok to Lagos. None of the plaintiffs isa national either of Cyprusor of Greece or isresident 30 eitherinCyprusorinGreece.Theonlyconnection ofGreecewith the present dispute, other than the fact that itisgoverned by the Greek law,towhich Ishall refer later, isthefact thatthe company -defendant 1-has itsprincipal place of business inGreece and its directorsandshareholdersareGreeknationalsresidinginGreece. 35 Itisequallytrue,however,thatthiscompanyisaCypruscompany and the ship «ATLANTIC VICTORY» on board which the cargo wasshipped forcarriage,isashipundertheCyprusflag.Takingall the above into consideration it is more correct to say that the connection of the dispute with Cyprusismore substantial than its 40 connection with Greece. 121 BoyadjisJ, Mitsui& Co.v. RockwellMarine
(1989)(b)Alltheevidence,includingthewitnessesonthefactsinissue arenotwithinthejurisdiction oftheCyprusCourtand/oraremore readily available in Greece. I fail to understand why, in the circumstances of the present claim where most, if not all, the relevant primary facts occurred in Bangkok and Lagos, the witnesses who are expected to testify therein are more readily available in Greece *haninCyprus. Inmyviewneitherthe Greek Courtnotthe Cyprus Court mayproperly be described asa more convenient Courtthantheother, inviewofthefactthatthebulkof theevidenceontheissuesoffactisnotsituatedineitherofthesaid 10 countries nor is such evidence more readily available in one country rather than inthe other country. 5 (c)ThelawapplicableistheGreeklaw.Theoretically,thisfactor is material in two respects. First, foreign law being a question of fact, incase thestay isrefused, thedefendants willmost probably 15 have to call expert witnesses from Greece to Cyprusto prove it; and, secondly, one might argue that a Greek Court, being fully conversant with it,isbetterfitted toascertain andapplyGreeklaw than any foreign Court, including the Cyprus Court. It must be examined, however, to what extent these general considerations 20 apply inthe circumstancsofthepresentcaseinthelightofthe fact that there isno allegation in thepresent case that Greek law isin any relevant matter differrent than the Cyprus law and the presumption, therefore, may be drawn that Greek Law and Cyprus Law are the same.The case inhand differs inthisrespect 25 from the case of The Eleftheria (supra) where the circumstance that Greek law governed the dispute, inthe lightof the evidence there adduced that Greek law was different in material respects from English law, was regarded of substantial importance. The present case resembles inthis respect the cases of The Athenee 30 [1922] 11 Lloyd L.R. 6, and the The Fehmam [1958] 1 All E.R. 333, where the staywasrefused, thecircumstance thatlawof the foreign country governed having not been given much weight. I should also perhaps add that no disadvantage may result to the defendants from the.fact that foreign law isa question of fact, in 35 casetheyhavetofileanappealagainstthejudgmentofthe Cyprus Court, in view of the fact that appeals in Cyprus are by way of rehearing and, unlike inEngland, appeals are madeasofright on allissueswhether factual orlegal. Concluding my remarks on the points advanced by the 40 defendants as reinforcing the prima facie case for a stay, it ismy viewthat they deserve tobe givenlittleweight indeed. 122 1C.L.R. MJtsul&Co.v.RockwellMarine BoyadjisJ. Concerningthe factorstending torebuttheprima facie case for stay, the plaintiffs in the present case rely on the following circumstances: (a)Cyprus ismore closely connected with the dispute and the 5 partiestotheactionthatGreece.Ihavedealtwiththismatterwhilst dealing with the reverseallegationsadvanced bythe defendants. A comparison of the two jurisdictions on matters relevant to convenienceandlitigationexpensedoesnot,inthecircumstances of the present case,justify thesubmission thatanyone ofthe two 10 countriesisa more convenient oralessexpensive forum than the other country. The plaintiffs have no connection with either jurisdiction. The defendants are more closely connected with Cyprusthan with Greece. (b)Ifproceedings arestayed, plaintiffs willbe prejudiced intwo 15 respects in that (i)they will be unable to enforce any judgment givenintheirfavour inGreeceagainstthedefendants' propertyin Cyprus, and (ii)theywillbefaced withatime-bar,asno extension of the time limit is available in Greece. In answer to plaintiffs' submission (i)above,defendants arguedthat,sincethe enactment 20 ofTheConvention onLegalCo-Operation Betweenthe Republic of Cyprusand theRepublicof Greece inMattersof Civil,Family, Commercial and CriminalLaw(Ratification) Law, 1984(LawNo. 55 of 1984), on 22.6.1984, the plaintiffs can execute in Cyprus anyjudgmentgiven intheir favour bythe Greek Courts. Learned 25 counsel for the defendants isrightin hislast aforesaid argument, especially in view of the fact that in Art. 1.1 of the Convention ratified by the said Law, amongst the decisions of the Greek Courtswhicharerecognized and enforced inCyprusare included decisionsinadmiraltycases.Inanswertoplaintiffs' submission(ii) 30 above, counsel for defendants argued that plaintiffs may not rely on this circumstance because it is not properly raised in their affidavit which accompanied their opposition. Myviewisthat the circumstance of time-bar is sufficiently raised in the plaintiffs' affidavit, who have every right to argue it. The existence of the 35 time-bar isnot denied bythe defendants. Time-bar isincluded in thelistof relevant factors authoritatively stated inthejudgmentof Brandon,J., in TheEleftheria(supra)and The EJAmria(supra). Inmostofthecasescitedtomewhereastaywasgranted despite the circumstance of time-bar, the defendants had given an 40 assurancewaivingtherighttorelyonthedefence oftimebarwhen 123 BoyadjisJ, Mitsui& Co. v. RockwellMarine
(1989)thenew actionwould bebroughtagainst themintheCourtchosen inthejurisdiction clauseof thecontract.See,forexample,thecase of Cyprus PhassouriPlantationsCo. Ltd. v.Adriatica etc. (supra). Any impact of the circumstance of time-bar uponthe matter now inissuewould have been extinguished inthepresentcase,hadthe 5 defendants given a similar assurance which they omitted, however, togive. Amongst the relevant circumstances pertaining to the present case reference may also be made the following: Whether the action is heard inGreeceorinCyprus, theproceedings shall be in 10 the Greek language which is the language of the directors and shareholders of the defendant company. There is no allegation that the plaintiffs will be deprived of security of their claim if they sue intheGreek Court,orthateitherparty maynothave afairtrial ifthecase istried eitherinGreeceorinCyprus.Thereisnoallega- 15 tion either that the defendants do not genuinely desire trial in Greece orthatthey are only seeking proceduraladvantages byin­ sisting on the chosen forum. Having referred extensively totherelevant circumstancesofthis case, to the points raised and the arguments advanced by both 20 sides and to the principles involved, I must now state my conclusions on thematter.Thequestion whethertograntastayor not in one for the discretion of the Court. There are no considerations of substantial weight reinforcing the prima facie case for stay in the present case, norare theit ~ny considerations 25 of substantial weight militating against the stay, other than the aforesaid existence of the time-bar. The issue of what amountof weight should be attributed to this consideration was not, unfortunately, argued sufficiently by learned counsel. Counsel for the defendants simply argued thattheplaintiffs should onlyblame 30 themselves for not filing in time their action before the proper Court. Miss Koukkidou for the plaintiffs, on the other hand, advanced a two-fold argument. She alleged that Clause 3 of the Bill of Lading does not specifically mention the country whose Court was chosen by theparties tohave exclusivejurisdiction but 35 itonly states that disputes shall be decided in the country where thecarrier, hashisprincipalplaceofbusiness. Shestatedalso that, the defendants, being a Cyprus company, the plaintiffs were ηasonable in thinking thatthe said company's principal place of business was in Cyprus. She concluded the first leg of her 4Q argument by alleging that the first time when the plaintiffs were informed that the defendants' principal place of business was in 124 1C.L.R. Mitsui&Co.v.RockwellMarine BoyadjisJ. Piraeus,Greece,waswhentheyreadthisallegationintheaffidavit ofMr.S.Karidesdated4thMay,1984,whichhasfiledinsupport of the defendants' present application. These allegationswould havebeenrelevantconsiderationstobetakenintoaccountinthe 5 exerciseofmydiscretioniftheywereproperlybefore the Court, i.e. if they were included inthe affidavit filed in support of the opposition;they shouldalsobesupplemented byevidence asto whentheperiodoflimitationhadexpiredaccordingtotheGreek lawand whether itexpiredbefore orafter theplaintiffs acquired 10 the knowledge that the principal place of business of the defendants carriers was in Greece and, therefore, that the jurisdictionclauseintheBillofLadingreferredtotheGreekCourt and tonootherCourt. Bethatasitmay, mereallegationsofthe existenceofrelevantfactsmadeduringcounsel'saddresscannot 15 be taken into consideration. Defendants had never the opportunity either to disprove or to cross-examine upon each allegations. Thesecond legoftheargument ofcounsel fortheplaintiffs on the.circumstance oftime-bartooktheform ofameresubmission 20 thattime-bar isarelevantconsideration, insupport ofwhichshe cited the following extract from Diceyand Morris, Conflict of Laws, 11thEd.,Vol.1,p.414. «Where a plaintiff sues in England in breach of a foreign jurisdiction clauseitfrequently happensthat,bythetimethe 25 defendant'sapplicationforastaycomesbeforethecourt,any actioninthechosenforumistime-barred.Iftheexistenceofa time-bar is taken into account in favour of the plaintiff in refusing a stayitwoulddeprivethedefendant ofanaccrued defence in the chosen forum; if it is taken into account in 30 favour of the defendant, the plaintiff would be left with no remedyatall.Thetrendofthedecisionsisthatatime-barin the foreign court will only militate against a stay of English proceedings if there is no substantial prejudice to the defendant, i.e.wheretheclaimhasbeen broughtintimebut 35 inthewrongforum». Thedecisionswhosetrendthelearned authorshadinmindin formulatingtheprinciplesetoutintheabovepassage,arecitedin anoteatthebottomofpage414.AmongstthosedecisionsIread carefully the reportsin TheAdolf Warski [1976] 1Lloyd'sRep. 40 241,and on appeal [1976]2 Uoyd's Rep. 241 C.A.; TheBlue Wave[1982] 1 Lloyd's Rep. 151;77ie Vishya Prabha [1979] 2 Uoyd'sRep.286;and TheSennar(No. 2)[1984]2Uoyd'sRep. 142. 125 BoyadjisJ. Mitsui& Co.v. RockwellMarine
(1989)TheAdolf Warskicase(supra)wasdecided inthefirstinstancein theAdmiraltyCourtbyMr.JusticeBrandon.Thematterhadcome before the Court inthe form ofan application tostayanactionin rem and in personam brought in England by the cargo owners againstPolishshipownersfordamagetotheircargowhilstcarried, 5 pursuanttoa billof ladingcontaining aforeignjurisdictionclause. Plaintiffs had relied, interalia, on matters of conveniene, costsof litigation and the existence of a time-bar in Poland. Though, in exercising his discretion to refuse the stay, Mr. Justice Brandon had based his conclusion that there was a strong balance of 10 argument in favour of a trial in Englano .„*her than inPoland on questionsoffeasibility,convenienceandthecostofplacingbefore a Court the main evidence necessary to enable the claims to be decided justly, without reference to the factor of time-bar, he proceeded to express some provisional views on the matter and 15 saidthe following atpp. 112-114ofthe report: «Iturn nowtothequestion of thetimebarinPoland. There are,asitseemstome,threepossibleviewsaboutthis.Thefirst view, at one end of the scale, is that, since refusal of a stay would deprive the defendants of an accrued defence in 20 Poland, the existence ofthe timebarthere should be treated as a factor in favour of a stay. The second view, at the other end of the scale, is that, since the grant of a stay would, in effect, defeat the plaintiffs' claimsaltogether, the existenceof the time bar inPoland should be treated as a factor against a 25 stay. The third view, which is intermediate between the first and second, is that, since the advantage to the plaintiffs of escapingthetimebarifastayisrefused, andtheadvantage to the defendants of beingabletorelyonthetimebarifastayis granted, are of equal weight, the existence of the time bar 30 should be treated asa neutral factor and disregarded. There are, as it seems to me, two conflicting policy considerations inrelation tothismatter.Ontheone hand, itis underisable to allow a party, who hasagreed to have claims 35 decided in a particular forum abroad, to evade his obligation by thesimple expedient ofbeginningan action inEngland in time, while allowing time to run out in the foreign forum concerned. Ontheotherhand, itisalsoundesirabletoallowa clause, the purpose of which is to ensure that claims are 40 decided inaparticularforum abroad,tobeusedasameans,in 126 1C.L.R. Mitsui &Co,v.RockwellMarine BoyadjisJ.. effect, ofpreventingsuchclaimsbeingdecided ontheirmerits inanyforum atall. 5 10 15 20 25 30 35 The English authorities appear, in general, totreat the first ofthesetwopolicyconsiderationsashavingmoreweightthan the second. MaharaniWoolMills Co. v.Anchor Line, [1927] 29 LI. L. Rep. 169 (a decision of the Court of Appeal); 77ie Media,
(1931)41 LI.L.Rep.,80 (adecision ofLordMerrivale, P.). A similar approach has also been adopted in the analogous situation of a claim on a contract containing an arbitrationclause:seeBruce (W.)v.Strong (J.)(aFirm), [1951] 2 K.B.447; [1951] 2 Lloyd's Rep. 5, another decision of the Court ofAppeal,inwhichitwasheldthatthefactthatthetime for demanding arbitration had expired was not a reason for declining to stay an action brought in disregard of an arbitration. In the United States of America, however, it appears that more weight is given to the second of the two policy considerations towhich I have referred, with the result that a Court there may only be prepared to decline jurisdiction on account of a foreign jurisdiction clause on condition that the claim concerned willnot be defeated by the application of a timebarintheagreed forum abroad: 77ieGottingen, [1964]2 Lloyd's Rep.35. Iam bound tosay that, ifand tothe extentthat I am free to do so, Iprefer the approach of the American Courts to this matter. Provided that an action has been brought in time in England, Ido not see that a defendant will, ingeneral at any rate, be much prejudiced bythe fact that a concurrent action to protect the time limit has not also been so brought in the chosen forumabroad. Onthatbasis,assumingthatitwouldbe right,apart from thequestion oftimebar,toenforce a foreign jurisdiction clause by staying an action here, I think that it would often be reasonable, unless real prejudice to the defendant is clearly proved, to make such enforcement subjecttoaconditionthatthedefendant shouldwavereliance onthetimebarifhecanlawfully doso;oralternatively,ifsuch waiverisnot permissible, torefuse astay». On appeal the judgment of Mr.Justice Brandon was affirmed. Their Lordships, however, expressed reservations regarding the 40 correctness of the provisional views expressed by the learned 127 BoyadjisJ. Mitsui &Co.v. RockwellMarine
(1989)judge on the issue of time bar. Lord Justice Cairns refused to express even a tentative view on the matter. Lord Justice Stephenson, withoutexpressingaconcludedopinion,saidthathe preferred the view that the time bar is a neutral consideration. Finally, Sir Gordon Willmersaidthatthe plaintiffs, ifthey were to 5 be left without remedy inPoland, would have onlythemselves to blame once it was abundantly clear that the plaintiffs, having instituted their proceedings in England within the time limit, deliberatelyand advisedlyallowedthetimelimittoexpirewithout attempting to institute alternative proceedings in Poland. They 10 should not, in the circumstances, be allowed to invoke their own voluntary act as a reason for refusing to staytheir proceedingsin England if it would otherwise be right to grant a stay. He concluded bysayingthathe preferred thesubmission put forward onbehalf ofthedefendants, namely,thatthefactofthetime-barin 15 Poland isa neutral fact, which should not influence the decision one wayor the other. The Vishya Prabha (supra), is another case decided in the Admiralty Court in England, where thequestion waswhether the action in England should be stayed on account of a foreign 20 jurisdiction clauseintheagreement oftheparties.The application for stay was refused. Enumerating the factors which he had taken into consideration in the exercise of hisdiscretion on the matter, Mr. Justice Sheen, made reference, inter alia, to the possibility which existed that if he were to grant a stay, the proceedings in 25 India would be time-barred and added that,though he had taken thatcircumstance intoaccount, he didnotconsiderittobe«avery weighty matter». 77ie Blue Wave (supra) is the next case cited in Decey and Morris, Conflict of Laws, (supra) in support of the principle 30 appearing in the extract recited hereinbefore. It is another case decided by Mr.Justice Sheen in the admiralty Court. Referring to thecircumstanceof time-bar, thelearnedJudgesaidthe following atp. 155: «I turn now to what I regard as the crucial point on this 35 application. It revolves around the question whether, when this Court isconsidering how to exercise itsdiscretion on an .'application for a stay of proceedings, itshould have in mind the prejudice to the plaintiffs of having to sue in a foreign Courtinwhich theirclaimwillbe, ormay be, time-barred». 40 128 1C.L.R. Milsul&Co. v.RockwellMarine BoyadjisJ. Hethen referred tothefactsofthecaseandpointed outthatthe time.for filinganaction eitherinEngland orinGreece had expired on January"17th, 1979, and that the action in the English Court wasfiledonJune29th, 1979,withinthesixmonths'period agreed 5 to be extended by the charterers or their agents, though the defendants contended that they didnot authorize an extentionof timeand theaction was,'therefore, time-barred inEngland aswell as in Greece. He then referred to The Adolf Warskicase (supra) and tothetentativeviewsexpressedbyMr.JusticeBrandon inthe 10 AdmiraltyCourtandbytheirLordshipsintheCourtofAppeal.He described the observations made byMr.Justice Brandon as most helpful and added that the views expressed by their Lordships in the Appeal Court must be considered bearing in mind the particularfactsofthatcasewheretheplaintiff had deliberately and 15 advisedlyallowedthetimetoexpirewithoutattemptingtoinstitute alternativeproceedings inPoland and then soughttoinvoke their ownvoluntaryactasareason forrefusing tostaytheir proceedings in England. He then pointed out that the plaintiffs in the case before him, unlike the plaintiffs in TheAdolf Warski(supra), were 20 not guilty of misconduct deliberately designed to allow the time limitinGreecetoexpiresothattheycould prayinaidthe time-bar as*a reason for contending that proceedings instituted in England should not be stayed. The learned Judge then proceeded to say the following at p. 25 156: 30 35 «Itseemstomethatitisopentometoexpressmyownview asto whether the existence ofatimebar inGreece should be taken intoaccount,and, ifso,whether forthatreason Ishould •refuse to grant a stay which Iwould otherwise be minded to grant. Theapproach oftheCourtsofthiscountrytoatimebarhas significantly altered in recent years. Ifitisopen to a Court to extend the time limit, the Court will look to see if the defendant has been prejudiced by the delay in commencing proceedings. Such prejudice cannot arise where a claim is brought intime, but not in the correct tribunal.There would be an injustice to a plaintiff, who has suffered a legal wrong andhasstartedproceedings,ifheisprecludedaltogether from pursuing his remedy. The fact that the plaintiff will have no 129 Boyadjis J. Mitsui& Ο v. RockwellMarine
(1989)remedy in the foreign Court seems to me to be a powerful factor against a stay To this approach I would make an exception ifon the facts itwas clearthattheplaintiff hadacted unreasonably and thathis conductshowed thatwithout good reason he deliberately and advisedly allowed thetimelimitto 5 expire without instituting alternative proceedings. By introducing this exception Ido notthink that my view differs from the tentative views expressed by Sir GordonWillmer in TheAdolf Warski 10 So far asaction Fo 509 isconcenred,itis, as Ihave said,the defendants' contention thatthe proceedings are time barred in England as well as in Greece Ifthisaction istimebarredin England thedefendants willnotbe prejudiced by my refusing a stay of proceedings. If, onthe otherhand,when all thefacts 15 have been investigated, it is found that the defendants have granted an extension of time,thenitseems tomethatitwould begrosslyunjust tograntastaywhichwould resultinanaction in Greecebeing defeated by atimebar» The othercase towhich I would like torefer is The Sennar (No 20 2) (supra) decided in the Court of Appeal, where the pnnciples governing the exercise of the Court's discretion in granting or refusing stay on account of a foreign junsdiction clause first formulated in 777βEleftheria(supra) which became known as The El Amna guidelines were reiterated and approved The cases of 25 The Adolf Warski (supra) and The Blue Wave (supra) were also discussed and distinguished on their facts from the case then before their Lordships Theappeal was allowed and theaction tn England was stayed Farfrom disapproving orcnticising what was said in the aforesaid decisions on theissue of time bar, Kerr,L.J , 30 said the following atρ 155: «In relation to 77je EIAmna guidelines GfG's submissions centred mainly on par
(5)(
  1. d)and (
  2. e)(
  3. m)As to these considerations, it goes without saying that the shipowners desire tnal in the Sudan just as much as GfG want it in 35 England.Theonlyreason advanced by GfGforsayingthatthe shipowners do not 'genuinely desire tnal' in the Sudan concerned the question of time-bar. But the position in this connection is unusual and different from cases such as 77je Adolf Warsh, [1976] 1 Lloyd's Rep 107 and 2 Loyd's Rep 40 130 1 C.L.R. 5 10 Mitsui &Co. v. Rockwell Marine Boyattiis J. 241 and 77ieBlue Wave, [1982] 1Uoyd's Rep. 151.In the present casetheshipownersrelyonapleaoftime-barbothin England and intheSudan,and inboth casessolelyduetothe lapse of time which has resulted from the institution of the proceedingsbyGFGinHollandandtheirrefusal toacceptthe decision of the District Court by pursuing the matter to the Court of Appeal. The shipowners' reliance on limitation of time is based on different grounds in the two competing jurisdictions, and there are arguments on both sides in both jurisdictions. Ido notthinkthat the considerations inpara.
(5)(d)*and(e) (iii)*of the guidelines in The ElAmria carry and weight, and certainlynodecisiveweight,inthecircumstancesofthiscase». 15 Lastly, I would like to refer to a recent English case decided in theHouseofLordsandwhichisneithermentionedinthe footnote tothepassage inDiceyandMorris, ConflictofLaws(supra),relied upon by the plaintiffs, nor was it cited in argument by either counsel.ItisthecaseofSpiliadaMaritimeCorp.v.Consulex Ltd., 20 77ie Spiliada [1986] 3 All E.R. 843, which concerned an applicationtosetasideanordergivingleavetoeffect serviceoutof the jurisdiction on a foreign defendant under the English RSC Order 11, r.l(l). Though the application was founded on the 25 ground usually called «forum non conveniens» and not on the ground of the existence of a foreign jurisdiction clause in the contract of the parties, it is my opinion that whatever was said therein regarding the plea of time bar applies with even greater force tothe case nowunder consideration. Deliveringhisopinion 30 withwhich Lord Keith of Kinkel,Lord Templeman, Lord Griffiths and LordMackayofClashfem concurred,LordGoff of Chieveley said the following atpp. 860-861: * «5 Inparticular, but withoutprejudiceto
(4)thefollowingmatters,whete theyarise, may propertyberegarded: (d)Whetherthedefendantsgenuinelydesiretrialintheforeigncountry,orareonlyseeking proceduraladvantages. (e)WhethertheplaintiffswouldbeprejudicedbyhavingtosueintheforeignCourtbecause theywould: (hi)be facedwithatime-barnotapplicableinEngland* 131 BoyadjisJ. Mitsui & Co.v. Rockwell Marine
(1989)«Again, take the example of cases concerned with timebars. Here a special problem arises from the fact that, in Englishlaw,limitationisclassified asaproceduralratherthan asasubstantive matter.Letmeconsiderhowtheprinciple of forum non conveniens shouldbeapplied ina case inwhich -5 the plaintiff has started proceedings in England where his claimwasnottime-barred,butthereissomeotherjurisdiction which,intheopinionofthecourt,isclearlymoreappropriate for the trial of the action, but where the plaintiff has not commenced proceedings and where his claim is now time- 10 barred. Now, to take some extreme examples, suppose that the plaintiff allowed the limitation period to elapse in the appropriate jurisdiction, and came here simply because he wanted to take advantage of a more generous time-bar 15 applicableinthiscountry;orsupposethatitwasobviousthat the plaintiff should have commenced proceedings in the appropriatejurisdiction,andyethedidnottroubletoissuea protectivewritthere;incasessuchasthese,Icannotseethat the court should hesitate to stay the proceedings in this 20 country, even though the effect would be that the plaintiff's claimwouldinevitablybedefeated byapleaofthetime-barin the appropriate jurisdiction. Indeed, a strong theoretical argument canbeadvanced forthepropositon that,ifthereis anotherclearlymoreappropriateforumforthetrialofaction, 25 astayshouldgenerallybegrantedeventhoughthe plaintiff's actionwouldbetime-barredthere.But,inmyopinion,thisis a case where practicaljusticeshould be done.Andpractical justice demands that, ifthe court considers thatthe plaintiff actedreasonablyincommencingproceedingsinthiscountry, 30 and that, although it appears that (putting on one side the time-barpoint)theappropriateforumforthetrialoftheaction is elsewhere than England, the plaintiff did not act unreasonably in failing to commence proceedings (for examplebyissuingaprotectivewrit)inthatjurisdictionwithin 35 thelimitationperiodapplicablethere,itwouldnot,Ithink,be just to deprive the plaintiff of the benefit of having started proceedings within the limitation period applicable in this country.Thisapproach isconsistentwiththatofSheenJ.in TheBlue Wave [1982] 1 Lloyd's Rep. 151.It is not to be 40 forgotten that, by making its jurisdiction available to the plaintiff, even the discretionary jurisdiction under RSCOrd. 132 1C.L.R. 5 10 15 Mitsui &Co.v.RockwellMarine BoyadjisJ. 11, the courts of thiscountry have provided the plaintiff with an opportunity to start proceedings here; accordingly, if justice demands, the court should not deprive the plaintiff of the benefit of having complied with the time-bar in thiscountry. Furthermore, astheapplicable principlesbecome moreclearlyestablishedandbetterknown,itwill,Isuspect,becomeincreasinglydifficult forplaintiffs toprovelackofnegligence inthisrespect.The fact thatthe court hasbeen askedto *ixercise itsdiscretion under RSCOrd. 11,rather than that the plaintiff has served proceedings on the defendant in thiscountry as ofright,is,Iconsider, only relevant to consideration of the plaintiff's conduct infailing tosave the time-bar in the foreign jurisdiction isdependent on itsinvocation by the defendant, may well be to make ita'condition of the grant of a stay orthe exercise ofdiscretion againstgivingleave to serve out of thejurisdiction, that the defendant shouldwaive thetime-bar intheforeignjurisdiction;thisisapparentlythepractice inthe UnitedStatesofAmerica». Having carefully considered the above authorities, Iam of the 20 viewthattheproper approach oftheCourtstotheplea oftimebar istheonefollowed byMr.JusticeSheen in TheBlue Wave(supra), explained and illustrated by Lord Goff of Chieveley in The Spiliada(supra). Ifthe circumstance ofthe existence of timebarinGreece isnot 25 to be takan into account, or if taken into account is not to be treated as decisive, proceedings in Cyprus must be stayed, since no other circumstances carrying sufficient weight to rebut the presumption in favour of stay have been suggested in this case. The authorities show that, if certain conditions are satisfied, the 30 plea of timebarmay carryenough weight totiltthescalesagainst thestay.Withouttheseconditions,timebarinitselfmaybetreated either as not a weighty consideration or even as a neutral factor. Regarding the firstcondition, thequestion iswhetherthe plaintiffs ineach case acted reasonably incommencing proceedings inthis 35 country. The question must be answered in the affirmative. Regarding the second condition, the question is whether the plaintiffs acted unreasonablyinfailingtocommence proceedings inthechosen forum before theexpiryofthelimitation periodthere.Thisquestion mustbe answered inthe negative. 133 BoyadjisJ. Mitsui&Co,v.RockwellMarine
(1989)What are the circumstances disclosed by the plaintiffs in this case which the Court should take into account in answering the above questions? There is nothing on record to suggest that the present plaintiffs acted in bad faith in the sense that, like the plaintiffs in The Adolf Warski (supra), they deliberately and - 5 advisedly allowed the time limit in Greece to expire without attempting to institute alternative proceedings inGreece, soasto reinforce their caseagainstastay oftheiraction inCyprus,relying on theirownaforesaid fault.This,however,isnotenough.Itmust be shown that they acted reasonably in filing their action here in 10 breach of their agreement and also that they did not act unreasonably infailing toinstitute intimealternative proceedings inGreece. Iftheyacted negligendy, theyalsoacted unreasonably. If they do not come forward with an explanation consistent with absence of negligence on their part, it cannot be said that they 15 have acted reasonably. The onus was always on the plaintiffs to showthatdecisiveimportance should, inthecircumstances ofthe present case,be given to their plea of timebar. Intheabsence of circumstances, none were suggested in this case, justifying the attribute ofdecisiveweighttothe existence oftimebarinGreece. 20 the fact that, if a stay of the proceedings instituted in Cyprus is granted, the plaintiffs shall be left without a remedy at all, is not itselfsufficient totakeawaytherightofthedefendants toinsistthat the plaintiffs mustbe held totheir agreement. Taking everything into consideration, Irule that the plaintiffs 25 here failed to show the strong cause against the stay required of them bytheauthorities hereinabove referred to.Havingarrivedat thisconclusion, Ishall exercise mydiscretion infavour of stay. An order is consequently made staying further proceedings in the present admiralty action. 30 Theapplicantsareentitledtotheircostsagainstallthe plaintiffs. Such costs to be assessed by the Registrar unless agreed upon between counsel. Application granted with costsagainstplaintiffs 35 134

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AI explanation based on the official legal text. Indicative, not a substitute for legal advice.