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Court of AppealDismissedCivil Appeal (Mombasa) - interlocutory appeal from Kneller J· [1984] KECA 20 (KLR)

Carl Ronning v Societe Navale Chargeurs Delmas Vieljeux (The Francois Vieljeux) [1984] KECA 20 (KLR)

Court of Appeal of Kenya
9 February 1984
36,183 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~145 min to read original · ~4 min brief

The bottom line

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Kenyan courts will enforce a bill of lading's foreign jurisdiction clause unless the cargo owner proves the foreign forum would genuinely reduce the carrier's liability.

What this practically means

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Executive summary

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This interlocutory appeal arose from the loss of the French vessel Francois Vieljeux off Portugal in February 1979 with total loss of cargo, including the appellant's 1,400 bags of Kenya coffee shipped from Mombasa under Bill of Lading No 21. The bill contained a paramount clause incorporating the Hague Rules and a jurisdiction clause (clause 3) directing disputes to the carrier's principal place of business in France. Kneller J, sitting at Mombasa, granted the respondents a stay of the Mombasa proceedings in favour of the French courts. The appellant appealed on eight grounds, principally that clause 3 was null and void under article III rule 8 of the Hague Rules as scheduled to the Carriage of Goods by Sea Act (cap 392), because trial in France would treat improper stowage as 'faute nautique' and absolve the carriers, whereas Kenyan law would treat it as unseaworthiness. Hancox JA, delivering the leading judgment with which Nyarangi Ag JA agreed, held that the Kenya Act's words 'shall have effect' - unlike the overriding language of the US COGSA and the English 1971 Act - do not give the Hague Rules mandatory force striking down an agreed forum selection clause; that the evidence of improper stowage was at best conjectural and did not establish even a genuine and arguable case of a lessening of liability; and that the judge's discretion was correctly exercised on The Eleftheria principles. Chesoni Ag JA dissented, holding that the Kenyan court was commanded to treat the forum clause as null and void, and would have allowed the appeal. The appeal was accordingly dismissed by the majority with costs certified for two counsel, affirming the stay. The judgment binds subordinate courts on the construction of section 2 of cap 392 and on the standard for appellate interference with discretionary stays.

Key legal issues

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01

Whether the Kenya Carriage of Goods by Sea Act (cap 392) has an overriding effect such that a foreign forum selection clause is null and void under article III rule 8

Holding

It does not. The Act's language ('shall have effect') is materially weaker than the US COGSA ('shall apply') and the English 1971 Act ('shall have the force of law'), and the preamble to the 1924 Act cannot extend the enacting words.

Reasoning

The court compared the Kenyan wording with the American statute applied in Indussa and the English 1971 Act construed by Lord Denning and Lord Diplock in The Morviken. It distinguished the possibility that the preamble 'expedient that the Rules be given the force of law' could enlarge the clear enacting words, citing Attorney-General v Prince Ernest of Hanover. The Hague Rules are incorporated into the bill of lading as agreed terms unless the parties agree otherwise. This is the ratio on grounds 2-5.

02

Whether the appellant established a diminution of its rights if the suit were tried in France

Holding

The majority held the evidence of improper stowage at Mombasa was conjectural; at most it was a possible cause, not established even to the 'genuine and arguable' standard.

Reasoning

The only direct evidence of stowage would come from the chief officer M Lanoe in France; the appellant elected not to call Mombasa evidence. The respondents' internal report showed only that stowage would be an issue, not that it was the sole cause. Even adopting the appellant's preferred 'genuine and arguable case' standard, the material did not satisfy it, unlike the manifest difference in The Morviken between the Hague and Hague-Visby limits.

p. 35
03

Whether the stay granted by the judge should be disturbed

Holding

No. Applying the Makefjell/El Amria criteria for appeals against discretion, the judge's decision stood and the appeal on grounds 1, 7 and 8 failed.

Reasoning

Since the jurisdiction clause was not struck down, the grant of the stay was an exercise of discretion based on The Eleftheria factors. The court reviewed the foreign authorities (The Bremen, Indussa, Union Insurance Society of Canton v SS Elikon, The Regal Scout No 2) and found no error of principle in the judge's balancing of convenience, applicable law and connection with France.

p. 35
04

Whether the second Byron affidavit cured the deficiencies of the first (ground 6)

Holding

Although the first affidavit did not strictly distinguish fact from information and belief, the judge was correct that the deficiencies were made good sufficiently for the application.

Reasoning

The proviso to Order XVIII rule 3 permits statements of information and belief showing sources and grounds, but the affidavit must identify which portions are fact and which belief with reasonable precision. The second affidavit did not fully do so, yet the facts stated were assumed only as contentious causative factors for the limited purpose of the stay application.

p. 36
05

Whether improper stowage amounts to unseaworthiness under Kenyan law but only faute nautique under French law

Holding

This difference between the two systems was common ground between the French law experts and central to the appellant's case, but on the majority's view of the evidence it did not avail the appellant at the interlocutory stage. Chesoni Ag JA dissenting treated it as a potential total obliteration of liability caught by article III rule 8.

Reasoning

Both French law experts agreed that improper stowage affecting stability is treated in France as faute nautique, excludable under article IV rule 2, whereas under Kenyan law it would constitute unseaworthiness engaging the carrier's article III rule 1 due diligence obligation. The divergence between the judges on whether this material difference established a 'lessening' of liability produced the split outcome.

p. 44

Legal principles established

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  • The words 'shall have effect' in section 2 of the Kenya Carriage of Goods by Sea Act (cap 392) do not give the Hague Rules the overriding, coercive force of law; a foreign forum selection clause agreed in a bill of lading is not struck down by article III rule 8 unless there is established a genuine and arguable case that the chosen forum would lessen the carrier's liability
  • A court of appeal will not interfere with a judge's exercise of discretion on a stay application unless he misdirected himself in law, misapprehended the facts, took into account matters he should not have, failed to take into account matters he should have, or was plainly wrong
  • The Eleftheria principles govern applications to stay proceedings on the ground of a foreign jurisdiction clause; the burden is on the party resisting the stay to show strong cause
  • On an interlocutory stay application, the question of jurisdiction must be decided on affidavit evidence and cannot be deferred to issues to be tried in the action

Court orders

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  1. 1.Appeal dismissed
  2. 2.The order of Kneller J granting a stay of the proceedings in favour of the French courts affirmed
  3. 3.Costs of the appeal to the respondents, certified for two counsel
On appeal from
High Court of Kenya at Mombasa
Jurisdiction invoked
First appellate jurisdiction over an interlocutory decision of the High Court at Mombasa (statutory appeal); the substantive framework was the Carriage of Goods by Sea Act (cap 392) and the Hague Rules in its Schedule

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Carl Ronning v Societe Navale Chargeurs Delmas Vieljeux (The Francois Vieljeux) [1984] KECA 20 (KLR)", Case Analysis (1984). Civil Appeal (Mombasa) - interlocutory appeal from Kneller J. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/20/eng@1984-02-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.