THE HIGH COURT  
[2021] IEHC 304  
RECORD NO. 2018/10961 P  
BETWEEN  
TEVA (CANADA) LIMITED  
PLAINTIFF/RESPONDENT  
AND 
PANALPINA WORLD TRANSPORT (IRELAND) LIMITED  
DEFENDANT/APPLICANT  
JUDGMENT of Ms. Justice Niamh Hyland delivered on 30 April 2021  
Summary  
1. This is a motion brought by the defendant seeking an order pursuant to the inherent 
jurisdiction of the court declining jurisdiction to hear and determine this action in favour 
of the courts of the Hong Kong Special Administrative Region. Alter natively, an order is 
sought striking out the proceedings for want of jurisdiction. It was explained at the 
hearing that the second relief was based on the argument that the proceedings fail to 
disclose a cause of action.  
2. In short, I conclude that the sea waybill at issue in this case, which contains an exclusive 
jurisdiction clause in favour of the courts of the Hong Kong Special Administrative Region, 
is very strong evidence of the contractual terms agreed between the parties. In 
circumstances where t he waybill itself identifies that the shipper accepts and agrees to all 
the terms of the waybill, where no issue was raised by the plaintiff on receipt of the 
waybill and where no other contract has been put forward by the plaintiff, I find that the 
terms identified in the waybill constitute the contract between the parties.  
3. The rules on specific notification of an exclusive jurisdiction clause identified at Article 25 
of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 
December 2012 on jurisdiction and the recognition and enforcement of judgments in civil 
and commercial matters (recast)(“Recast Brussels Regulation”) do not apply here, as the 
clause confers jurisdiction on a non -EU state and therefore does not come within Article 
25. The exclusive jurisdiction clause displaces the normal obligation under the Regulation 
to sue the defendant in its place of domicile.  
4. Finally, I refuse the plaintiff’s application that the Irish courts should hear and determine 
these procee dings despite the exclusive jurisdiction clause, on the ground that Ireland is 
the forums conveniens . For the reasons I explain below, I am not satisfied there is a close 
connection between the proceedings and Ireland or that the plaintiff has shown cause as 
to why the proceedings should be heard in Ireland.  
Facts of the case  
5. The relevant actors in t his case span three continents. The claim relates to the carriage 
and or storage of a consignment of 19 pallets of Novo Salbutamol, a pharmaceutical 
product. The product was shipped from the port of Cork to the port of Montréal in 
November/December 2017 wi th the place of delivery to be Toronto. The plaintiff alleges 
that during the journey the product was exposed to temperatures outside the acceptable 
range due to failings on the part of the defendant.  
6. The plaintiff is a large pharmaceutical company tha t is incorporated in Toronto. It is 
described as the consignee on the waybill. The shipper identified on the waybill is a 
related company, Ivax Pharmaceuticals Ireland. The carrier is identified as Pantainer (HK) 
Ltd incorporated in Hong Kong. On the face of the waybill the defendant is identified as an 
agent for Pantainer (HK) Ltd. The ship owner is Mediterranean Shipping Co. Ltd, a 
company incorporated in Switzerland.  
7. It has not been explained in these proceedings how a contractual nexus exists as bet ween 
the plaintiff, Teva Canada Ltd., and the defendant since Ivax Pharmaceuticals Ireland is 
the shipper, and Teva is the consignee. Generally, it is the shipper and not the consignee 
who contracts with the carrier for the transportation service although there are exceptions 
to this. However, a term on the face of the waybill identifies that it is the shipper that is 
the contracting party, albeit for itself and on behalf of the consignee. Equally it is unclear 
to me why the disclosed agent – Panalpina Worl d Transport Ltd. - for the carrier, 
Pantainer (H.K.) Ltd (a company incorporated in Hong Kong) has been identified as the 
defendant rather than the carrier itself.  
8. In short, a contract of carriage is normally between the shipper and the carrier, yet 
neither of those parties are named in the proceedings.  
9. Turning to the nature of the claim made by the plaintiff, the endorsement of claim in the 
plenary summons pleads that the plaintiff’s claim is for damages for breach of contract 
and/or negligence and /or breach of duty (including breach of duty as bailee) of the 
defendant in or about the carriage/storage of the pharmaceutical goods which were 
shipped by sea under bill of lading MSCUCK304354 from Cork to Toronto. No statement of 
claim has been filed by the plaintiff.  It was explained by counsel that it was not proposed 
to file a statement of claim until this motion was decided, as if the motion was decided 
against the plaintiff the statement of claim would be “moot”. That seems to be an 
undesirable econ omy: in a jurisdiction motion, the court must arrive at a decision based 
on the material before it. The absence of a statement of claim or any exhibits to the 
affidavit of Ms. Noble evidencing the contract meant that I had to proceed largely on the 
materia l put forward by the defendant.   
Outline arguments of the parties  
10. In short, the defendant asserts that the contract between the parties, as evidenced by 
waybill number SNN318158, contains an exclusive jurisdiction clause granting jurisdiction 
to the courts of Hong Kong Special Administrative Region. On that basis, it requests this 
court to decline jurisdiction.  
11. The plaintiff asserts that the terms identified in waybill SNN318158 cannot be part of the 
contract between the parties, given that the waybill was uploaded only on 4 December 
2017, a day after the ship sailed and that it was not provided to the plaintiff when it 
concluded the contract with the defendant on or before 23 November 2017.   
12. Importantly, although the plaintiff argues that the waybill does not contain the 
contractual terms, it does not identify any contractual terms or any contract between th e 
parties, despite referring to a bill of lading in the endorsement of claim. However, neither 
in the pre -motion correspondence between solicitors, nor in the replying affidavits sworn 
by Helen Noble, solicitor and SC, of 10 September 2019 and 10 September  2020, nor in 
written or oral submissions was there ever any further reference to that bill of lading and 
it was never produced. On enquiry from me as to what contractual terms the plaintiff 
argued for, it was explained by counsel that there was no obligat ion on the plaintiff to 
specify the contract between the parties and that the defendant bore the burden of proof 
in relation to its application to invite the court to decline jurisdiction. A similar approach 
was taken in the affidavits and correspondence b y Ms. Noble. It is certainly correct that 
the defendant bears the burden of proof in this motion, at least up to the point it 
establishes the existence of an exclusive jurisdiction clause, at which point the burden 
shifts if the plaintiff wishes to persuad e me to allow the proceedings to be heard in 
Ireland.  
13. However, to determine the motion, I must take a view as to the applicable contractual 
terms governing the relationship between the parties. In the affidavit of Ms Noble, 
solicitor for the plaintiff , Senior Counsel, she refers to the plaintiff’s “pleaded” case by 
which I take to mean the bill of lading identified in the endorsement of claim. At 
paragraph 58 of the legal submissions filed on behalf of the plaintiff, it is stated that there 
are multipl e competing terms in the various documents applicable to the journey the 
subject of these proceedings. But the plaintiff has comprehensively failed to identify any 
competing term or competing contract.  
14. The plaintiff makes an alternative argument to th e effect that, if the exclusive jurisdiction 
clause is part of the contract, I should nonetheless exercise my discretion and refuse to 
stay the proceedings in Ireland on the basis that Ireland is the forum conveniens for these 
proceedings, laying particula r emphasis on the fact that the defendant is domiciled here.  
The waybill and its notification to the plaintiff  
15. In this case, the waybill, after identifying certain conditions referable to the face of the 
waybill, contains the following words:  
 “… sub ject to the terms and conditions hereof INCLUDING THE TERMS AND 
CONDITIONS CONTAINED IN THE REVERSE SIDE HEREOF AND THE TERMS AND 
CONDITIONS OF THE CARRIER’S APPLICABLE TARIFFS. The Shipper (for itself and 
on behalf of the Consignee and the other Merchants  and warrants that it has 
authority to do so) hereby expressly accepts and agrees to all of the terms and 
conditions of this waybill, whether printed, written or otherwise incorporated 
notwithstanding the non -signing of the Waybill by the Shipper. Merchant ’s attention 
is drawn to the fact that the terms and conditions of this Waybill CONTAIN 
PROVISIONS EXEMPTING OR LIMITING CARRIER FROM LIABILITIES OR REQUIRING 
MERCHANT TO PROVIDE INDEMNITIES IN CERTAIN CIRCUMSTANCES”.  
16. The exclusive jurisdiction clause,  which is on the reverse side of the waybill, is in the 
following terms:  
“28.2  All claims, suits, proceedings or disputes howsoever arising in connection with or 
arising out of this Waybill and/or the contract contained in and/or evidenced by this 
Waybill  against Carrier shall be determined exclusively by the Court of the Hong 
Kong Special Administrative Region to which jurisdiction Merchant irrevocably 
submits”.   
17. In the affidavit grounding the motion of 27 June 2019, Mr Doherty, business unit manager  
of the defendant, avers that the waybill including the terms and conditions on the back of 
same, was uploaded by the defendant to an information and document sharing system in 
operation between the parties known as the TIS (Teva information system) on 4 
December 2017 at 11.31 by Maria Hannon of the defendant. She is described as being the 
“customer rep Panalpina ”. In the computer printout exhibited, the document is described 
as a “ House bill of lading ” belonging to a document group entitled “ waybill, bills  of lading 
and consignmer” . It appears from the computer records exhibited that the ship left Cork 
on 3 December 2017, arriving Antwerp on 7 December 2017 and the estimated arrival 
time to Toronto was 26 December 2017. It is not disputed by the defendant t hat the bill 
of lading was therefore uploaded by it after the ship left Cork.  
18. Prior to that, on 23 November 2017, a message is uploaded to the same TIS system as 
follows “ Hello Panalpina IE, can you please arrange and advise schedule ASAP Setpoint 
+22c vents closed. Solas provided to CT by shipper. Express B L”.  The plaintiff contends 
the contract was made on that date.  
19. The position advanced by the plaintiff as to when it became aware of waybill SNN318158 
and the exclusive jurisdiction clause conta ined therein may be described, at best, as 
confused. On 10 May 2019 solicitors for the defendant wrote to the solicitors for the 
plaintiff, enclosing a copy of waybill SNN318158 and asserting that Ireland was not the 
appropriate jurisdiction given that, by  agreeing to the terms and conditions of waybill 
SNN318158 and 318149, the plaintiff had submitted to the exclusive jurisdiction of the 
Hong Kong courts. (Only waybill SNN318158 was exhibited and waybill 318149 was not 
the subject of argument at the hearin g).  
20. By letter of 13 May 2019, the solicitors for the plaintiff, Noble Shipping Law replied stating 
“we are instructed that this is the first time our client has been provided with the reverse 
side of the waybills SNN318158 and 318149 and it is the fir st time they have been made 
aware of any exclusive jurisdiction clause.”  
21. In the grounding affidavit of Mr. Doherty, waybill SNN318158 was exhibited along with 
the computer records showing the date it was uploaded to the TIS. On 10 September 
2019, Ms. Noble, solicitor, swore an affidavit replying in substance to the affidavit of Mr 
Doherty. It is a notable feature of this case that no affidavit has been sworn by any 
representative of the plaintiff. Where there is a conflict about factual issues related to 
substantive issues in the proceedings, as opposed to procedural issues arising in the 
litigation, it is important that the person closest to the facts swears the affidavit. That will 
not usually be the solicitor representing a party. Otherwise, issues o f hearsay are likely to 
arise. Moreover, if a factual conflict arises on the affidavits, and cross examination 
ensues, the proximity of the person to the relevant facts will be highly relevant when 
deciding whose evidence to prefer. No explanation is given  here as to why a person from 
the plaintiff company with direct knowledge could not swear an affidavit. As will be seen, 
the indirect nature of the evidence provided in this case gave rise to problems.  
22. At paragraph 5 of the affidavit of 10 September 20 19, Ms. Noble refers to her letter of 13 
May where she stated that the first time the plaintiff had been provided with the reverse 
side of the waybills and been made aware of the exclusive jurisdiction clause was on 10 
May 2019. However, at paragraph 7, sh e avers as follows: “ I say that the reverse terms 
of the waybills, in particular the jurisdiction clause, were not communicated to the plaintiff 
prior to the shipment of the goods and were not communicated at the time the contract 
for the shipment was conc luded ”. She goes on to say that as a matter of Irish law the 
exclusive jurisdiction clause cannot be said to have been incorporated into the contract of 
carriage and therefore the plaintiff cannot be said to have submitted to the exclusive 
jurisdiction of the courts of Hong Kong.  
23. At paragraph 8 she says that the exclusive jurisdiction clause is onerous, that it was not a 
clause that could have been anticipated or expected by the plaintiff and that the 
defendant should have taken steps to draw this onero us clause to the plaintiff’s attention.  
24. The averment at paragraph 7 is of significant concern to me. When read closely it is clear 
that the plaintiff’s position is now not that it first obtained the reverse side of the waybills 
when they were sent by t he defendant’s solicitors on 10 May 2019, which was the clear 
position adopted in the reply from Noble Shipping Law on 13 May 2019. Rather, it 
appears from paragraph 7 and was confirmed by counsel at the hearing in response to 
questions from me that the en tirety of the waybill was uploaded and received by the 
plaintiff on the date identified in the affidavit of Mr Doherty i.e. 4 December 2017. What is 
most surprising is that reference is made at paragraph 5 of the affidavit to the letter 
where it is stated that the plaintiff had only seen the reverse side of the waybills on 10 
May 2019. Only a careful reading of the affidavit disclosed that in fact, that was not the 
correct position and that the plaintiff was now accepting it had obtained the waybill on 4 
December 2017. As will be seen below, the date upon which the plaintiff received the 
entirety of the waybill is an important date in deciding the applicable contractual terms. 
Therefore, it was incumbent upon Ms. Noble to ensure that her affidavit was clear in this 
regard and to explain that the plaintiff was now resiling from its original position that it 
only received the reverse side of the waybill for the first time in May 2019 and identifying 
why the error occurred. Unfortunately, that was not the positi on adopted.  
25. This error was repeated in the legal submissions filed. At paragraph 35 it is stated that 
the first time “ the relevant page was produced ” was after the proceedings had issued. 
Reference is made to the affidavit of Helen Noble, solicitor. A t paragraph 39 the 
inaccuracy is repeated again where it is stated that “ the relevant page was only produced 
after these proceedings had issued and on Defendant evidence was uploaded after ship 
sailed”.  As a senior counsel, Ms. Noble has a particular oblig ation to the court to ensure 
that the material placed before the court is clear and accurate and that counsel are 
properly briefed.  
Applicable legal principles  
26. The defendant argues as a matter of law that, although the term relied upon was only 
notifie d to the plaintiff after the ship had sailed, nonetheless following Halsbury’s Laws of 
England - Carriage and Carriers  (Volume 7 (2020)), where there is a bill of lading relating 
to the goods, the terms of the contract on which the goods are carried are prima facie  to 
be ascertained from the bill of lading (paragraph 437).  
27. In fact, although the case law opened to me discusses bills of lading, and the defendant 
treated the waybill as akin to a bill of lading, there are subtle differences between the two 
types of documents. Sea waybills have their own chapter in the 2020 volume of Halsbury  
and are defined as “a document which contains or evidences an undertaking by the 
carrier to the shipper to deliver the goods to the person who is for the time being 
identified as being entitled to delivery after production of proof of identity at the port of 
discharge ”. Waybills are stated to “provide evidence of the terms of the contract of 
carriage agreed between the shipper and the carrier and act as receipts for goods ” 
(paragraph 487, Halsbury 2020).  
28. The defendant relied upon the case of Leduc and Company v. Ward and Others  [1886 -90] 
All E.R. Rep 266 in support of the assertion that where there is a bill of lading, the terms 
of the contract on which the goods are carried are prima facie  to be ascertained from the 
bill of lading. Lord Esher MR refers to the case of Glyn Mills Currie & Co v. The East and 
West India Dock Company  (1882) 7 App. Cas. 591, where Lord Selbourne observed that 
the primary office and purpose of a bill of lading, although by mercantile law and usage it 
is a symbol of the right of property in the goods, is “ to express the terms of the contract 
between the shipper and the shipowner”.  
29. Lord Esher observes that, except in the case of a charterp arty, the bill of lading is, as 
between the shipowner and the shipper, the contract for the carriage of goods reduced 
into writing and that “ it is impossible to say that a bill of lading does not contain the 
terms of the contract of carriage ”. 
30. In Sewel l v. Burdick , (1884) 10 App. Cas. 74, referred to in the passage from Halsbury  
cited above, Lord Bramwell, commenting on a statutory provision which referred to the 
contract “contained” in the bill of lading, states that “ to my mind there is no contract in  it. 
It is a receipt for the goods, stating the terms of which they were delivered to and 
received by the ship, and therefore excellent evidence of those terms, but it is not a 
contract. That has been made before the bill of lading was given.”   
31. In Armo ur and Company Limited v. Leopold Walford (London) Limited  [1921] 3 K 473, a 
booking slip had been provided to the defendants before shipping which stated that all 
engagements were made subject to the conditions of the bills of lading. The bill of lading 
was given to the plaintiff the day after the goods shipped. McCardie J. noted that a bill of 
lading was not, as between shipper and shipowner, conclusive of the true contract. For 
example, it may be inconsistent with a prior express written bargain as to th e terms on 
which goods shall be carried.  
32. Importantly, he quoted a passage from Lord Justice Kennedy in Halsbury’s Law of 
England , vol. 26, p.148 which says that the bill of lading was to be regarded as evidence 
only of a pre -existing contract and a pe rson might be entitled to repudiate the terms on 
the grounds that he did not know and could not reasonably be expected to know of their 
existence, his assent to those terms was not to be inferred from his acceptance of the bill 
without objection.  
33. McCa rdie J. went on to say that he doubted whether that passage adequately 
distinguished between the mere physical receipt of the bill of lading and the mental 
acceptance of this, whether it had or had not been fully read by the shipper. He recalled 
that the S tatute of Frauds did not ordinarily apply to a contract for carriage by sea and 
that the bargain could be collected from various documents or other sources. He went on 
to say:  
 “Whatever the prior express bargain has been, a shipper is free to accept any bills 
of lading he chooses. If therefore he has chosen to receive without protest a bill of 
lading in a certain form he should ordinarily be bound by it, for as Mr Carver well 
observes in [s. 56 of Carriage by Sea 6th edition], “Where that has been done it  is 
difficult to suppose that the document can be treated as not being what it seems to 
be … The practice of looking to it as the contract may be said to be uniform… the 
scarcity of authority is in truth a strong confirmation of the view that it is the 
contract: for it shows that in practice the point has not been considered open to 
question”.  
34. Those authorities, although of some antiquity, seem to me to express a decided view that 
the bill of lading is very strong evidence of the contractual terms, unless overridden in 
advance by explicit contractual terms or unless objected to by the shipper. G iven the 
similarity between bills of lading and waybills, I treat that case law as equally applicable 
to waybills. No attempt has been made by the plaintiff to distinguish the case law on that 
ground.  
35. The plaintiff relied upon case law in relation to the necessity of bringing an exclusive 
jurisdiction clause explicitly to the notice of the party bound by same. However, that case 
law arises in the context of the Recast Brussels Regulation. It is therefore necessary to 
consider the impact of the Regulati on in the circumstances of this case.  
Relevance of Recast Brussels Regulation  
36. The plaintiff makes the argument that, under the Recast Brussels Regulation, the Irish 
courts have jurisdiction under Article 4 (1), i.e. a defendant within the EU is to be s ued in 
the Member State in which it is domiciled. I readily accept that one starts with the 
proposition that the proceedings ought to be heard in the place where the defendant is 
domiciled. However, an applicable exclusive jurisdiction clause will displace  that 
jurisdiction. It is of course the case that the Recast Brussels Regulation provides for 
prorogation of jurisdiction under Article 25 where the parties have agreed to an exclusive 
jurisdiction clause. However, it is equally well accepted that Article 25 only expressly 
applies to EU jurisdiction agreements i.e. those where the parties have agreed that the 
courts of a Member State have jurisdiction to settle disputes. That is not the case here. 
The courts selected by the parties are those of the Hong Kon g Special Administrative 
Region.  
37. The mandatory rules of jurisdiction imposed by the Recast Brussels Regulation, including 
those in respect of domiciled persons, do not apply to exclusive jurisdiction clauses that 
confer jurisdiction on third countries  i.e. non -EU states. That is made clear by Case 
387/90 Coreck Maritime GmbH v. Handelsveem BV and Others  [2000] ECR I – 9337. At 
paragraph 19 the CJEU held as follows:  
 “Article 17 of the convention [the precursor to Article 25] does not apply to clauses 
designating a court in a third country. A court situated in a Contracting State must, 
if it is seised notwithstanding such a jurisdiction clause, assess the validity of the 
clause according to the applicable law, including conflict of laws rules, where it sits 
(Report by Professor Schlosser on the Convention of 9 October 1978 on the 
Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great 
Britain and Northern Ireland to the Convention on Jurisdiction and the enforcement 
of judgments in C ivil and Commercial matters and to the Protocol on its 
interpretation by the Court of Justice, OJ 1979 C 59, p. 71, paragraph 176).).”  
38. The relevant paragraph of the Schlosser Report observes as follows:  
“[176] (a) In cases where parties agree to bring  their disputes before the courts of a 
State which is not a party to the 1968 Convention [i.e. the Brussels Convention, 
predecessor to the Brussels I Regulation] there is obviously nothing in the 1968 
Convention to prevent such courts from declaring themse lves competent, if their 
law recognizes the validity of such an agreement. The only question is whether, and 
if, in what form such agreements are capable of depriving Community courts of 
jurisdiction which is stated by the 1968 Convention to be exclusive o r concurrent. 
There is nothing in the 1968 Convention to support the conclusion that such 
agreements must be inadmissible, in principle. However, the 1968 Convention does 
not contain any rules as to their validity either. If a court within the Community is  
applied to despite such an agreement, its decision on the validity of the agreement 
depriving it of jurisdiction must be taken in accordance with its own lex fori. In so 
far as the local rules of conflicts of laws support the authority of provisions of 
foreign law, the latter will apply. If when these tests are applied the agreement is 
found to be invalid, then the jurisdictional provisions of the 1968 Convention 
became applicable”.   
39. The plaintiff also relies upon decisions of the CJEU and of the Iris h courts in relation to 
incorporation of exclusive jurisdiction clauses, arguing that the requirements under EU 
law have not been met in the instant case. It is undoubtedly the case that Article 25 and 
its predecessors establish a regime designed to ensure  that there has been specific 
consent to the exclusive jurisdiction clause and set out the means by which such consent 
may be proved (see in this respect the decision of Carroll J. in Hanley v. Someport -Walon  
[1995] 2 I.R. 132 and the decisions of the CJEU  referred to therein.) In that decision she 
held that the plaintiff had not established that there was a consensus between the parties 
for the inclusion in the contract of the jurisdiction clause. It is worth noting however that, 
on the facts of that case,  Carroll J. found that the defendant had not had sight of the 
booking note that contained the relevant clause until after the plenary summons had 
issued. Accordingly, she concluded that the defendants were not aware of the jurisdiction 
clause nor could it be said that they ought to have been aware of the existence of the 
clause.  
40. That is quite different to the facts of this case as identified above, where it is now clear 
that the plaintiff received the waybill, including the terms and conditions on the back, on 
the morning of 4 December 2017, just after the ship sailed, and raised no query or 
objected to any term contained therein.  
41. In any case, because of my conclusion that this is not a case to which Article 25 applies, I 
do not consider that the r equirements of Article 25 in relation to proof of notification are 
applicable. Rather, in the words of the CJEU in Coreck , I should determine whether the 
exclusive jurisdiction clause is part of the contract between the parties by reference to the 
“applica ble law ”, in this case being Irish common law principles, as informed by the line of 
UK judgments discussed above. Those principles indicate that a sea waybill, including the 
exclusive jurisdiction clause contained therein, is excellent evidence of the con tract unless 
the plaintiff can show that other contractual terms displaced it. No obligation was 
identified to me under common law that required, in the circumstances of this case, that 
the exclusive jurisdiction clause be brought explicitly to the attenti on of the plaintiff.  
Application of principles  
42. Applying the above principles, I find that the exclusive jurisdiction agreement is part of 
the contract between the parties, along with the other terms identified on the reverse of 
waybill SNN318158, for the following reasons.  
43. First, by way of general observation, as observed by McGuinness J. in Clare Taverns 
trading as Durty Nelly’s v. Charles A. Gill trading as Universal Business Systems & Ors  
[2000] I.R. 286 (albeit in the context of considering the  Recast Brussels Regulation), the 
practice of printing general conditions of sale on the reverse side of invoices and similar 
documents with a reference on the face of the document to the said conditions is a 
common commercial practice in international tra de.  
44. Second, as identified in the case law, a waybill is excellent evidence of contractual terms.  
45. Third, in this case, as identified above, the waybill explicitly identified on its face (not on 
its reverse side), that the shipper itself and on beh alf of the consignee and others 
expressly accepts and agrees to all of the terms and conditions of the waybill, 
notwithstanding the non -signing of the waybill by the shipper. It is now accepted that the 
plaintiff received the waybill when uploaded on 4 Dec ember 2017. The goods were not 
delivered until 26 December 2017. That wording put a particular onus on the plaintiff to 
object to the terms if it contended that a contract had already been agreed between the 
parties that contained terms different to that i n the waybill. No objection was made to 
those terms until Ms. Noble swore her affidavit in September 2019, almost two years 
later.  
46. Fourth, as a company experienced in shipping goods around the world, the plaintiff would 
have been well aware of the nec essity of conditions relating to applicable law and 
jurisdiction. Contrary to what is said by Ms. Noble in her 2019 affidavit at paragraph 8, I 
do not accept that the exclusive jurisdiction clause could not have been anticipated or 
expected by the plaintif f. As observed by Fennelly J. in Leo Laboratories Limited v. 
Crompton B.V. (formerly Witco B.V.0029  [2005] 2 I.R. 225 “ It is a very general practice 
of suppliers in international trade to impose conditions relating to applicable law and 
jurisdiction ” (para . 34).  
47. Finally, the plaintiff has not put forward any other contract as between the parties. As 
identified above, although reference was made to a bill of lading in the endorsement of 
claim, there was no identification of any provision of same and it was not exhibited. Ms. 
Noble says in her affidavit that it clear from the computer print -out exhibited by Mr. 
Doherty that the defendant was engaged on or before 23 November 2017. That is the 
date upon which a message was uploaded to the TIS by a Laura Rod riguez (in respect of 
whom no information is provided), quoted above, whereby the plaintiff was asked to 
“arrange and advise schedule ASAP setpoint + 22c vents closed ”. It is not at all clear from 
that entry what is being arranged: I am asked to surmise th at it applies to the carriage of 
the goods the subject of these proceedings without any evidence in respect of same. No 
further detail about the nature of the contract or the terms is provided. Therefore, even if 
this entry is treated as evidencing some de alings between the parties, it could not 
advance a contention that there was a completed contract with identified terms that 
overrides the waybill.  
48. In any case, the plaintiff does not go that far, preferring to rest on the assertion that it is 
not obl iged to identify a contract. That is true: but in the absence of such identification, I 
am satisfied that the sea waybill is excellent evidence of the contractual terms between 
the parties and that the plaintiff has not rebutted same.  
49. For all those re asons, accordingly, I find that the exclusive jurisdiction clause contained in 
the waybill applies as between the parties.  
Previous dealings between the parties  
50. I should note that initially the case was made by the defendant that the plaintiff had 
received waybills with the same conditions and therefore there was a course of dealing 
between the parties. However, the plaintiff correctly pointed out that those waybills were 
sent under cover of letter which identified that the shipment was being undertaken  
pursuant to the standard trading conditions of the Irish International Freight Association. 
Those conditions contain a jurisdiction clause conferring jurisdiction on the Irish courts. In 
the replying affidavit of Ms. N of 10 September 2020, she averred th at “in all previous 
dealings the Defendant had made it clear it provided services subject to Irish trading 
conditions namely the terms and conditions of the Irish International Freight Association 
which contain an exclusive jurisdiction clause in favour of  the Irish courts ”. However, in 
the written submissions it was stated that for “the avoidance of doubt, it is not pleaded 
that the contract governing this particular shipment necessarily relied upon IFFA terms ” 
and at the hearing, there was no suggestion t hat IFFA terms governed this shipment. The 
defendant suggests that this is because under those terms, these proceedings would be 
out of time having regard to the short limitation period contained in those terms. I have 
no evidence before me as to the IFFA terms and therefore can make no finding in that 
regard. In any case, in the circumstances, the defendant cannot rely upon a course of 
previous dealing.  
Delay  
51. The plaintiff has complained of delay on the part of the defendant in bringing the motion 
and says that the defendant is disentitled to relief in all the circumstances. It does not 
seem to me that there was any significant delay on the part of the defendant. The plenary 
summons was served in December 2018. A conditional appearance was filed by the  
defendant in March 2019. The defendant issued the instant motion on 29 June 2019. The 
delay in getting the motion heard was not the responsibility of the defendant.  
Acquiescence on the part of the defendant  
52. It is also submitted in the legal submission s filed on behalf of the plaintiff that there has 
been an acquiescence to the jurisdiction of the Irish courts because the defendant has 
brought a motion seeking to strike out the proceedings for want of prosecution for failure 
to deliver a statement of cl aim. In any jurisdictional challenge, a defendant can be treated 
as having waived its objection by taking a step in the proceedings and submitting to the 
jurisdiction of the Irish courts. However, the motion for want of prosecution was not 
before me and th e papers were not provided to me for that motion, apparently by 
agreement of the parties who decided that the jurisdictional motion would be heard first 
and the strike out motion afterwards. I do not know, for example, whether that motion 
was brought expli citly on the basis of contested jurisdiction. I was told nothing about the 
strike out motion except that the parties had come to an agreement on the deferral of the 
hearing of same. Nor is there any reference to this issue in the affidavit of Ms Noble or 
the grounding affidavit of Mr Doherty. Without having the motion before me, I cannot 
adjudicate upon the acquiescence argument. In those circumstances it does not seem to 
me that I ought to deny the defendant relief on this ground.  
Irish conflict of law pri nciples on declining jurisdiction  
53. Proceeding on the basis that the parties have an exclusive jurisdiction clause in their 
contract that confers jurisdiction on the courts of Hong Kong Special Administrative 
Region, I must now consider whether I should  nonetheless decline a stay of the 
proceedings in favour of the Hong Kong courts, as urged upon me by the plaintiff.  
54. The relevant principles are identified by Binchy in his textbook Irish Conflicts of Law,  
second edition, as relied upon by the defendant in this respect. Binchy observes that it is 
quite common for international contracts, particularly of a commercial nature, to contain 
such a choice of forum clause (page 163). He goes on to observe that: “ Even in non -
Order 11 cases where the defendant has been served within the jurisdiction and the 
Court’s jurisdiction is clear cut, the Court still has a discretion to stay Irish proceedings if 
the parties have agreed to the exclusive jurisdiction of a foreign  forum. Indeed, once the 
fact of the agreement has been established, the principle pacta sunt servanda places a 
heavy burden on the plaintiff … to show that the choice of forum clause was to be 
disregarded and that the Irish proceedings ought to be allowed  to continue ” (page 163).  
55. The factors identified by Binchy governing the exercise of the court’s discretion identify 
that the discretion should be exercised by granting a stay on the Irish proceedings unless 
strong cause for not doing so is shown. The  burden of proving such a strong cause is on 
the plaintiff. In exercising its discretion the court should take into account all relevant 
circumstances including the country in which the evidence on the issues of fact is 
situated, whether the law of the for eign court applies, the relative convenience and 
expense of trial in the competing courts, the connections of the parties with a particular 
country, whether the defendants genuinely seek trial in the foreign country and whether 
the plaintiff would be preju diced by having to sue in the foreign court.  
Application of conflicts of law principles  
56. The plaintiff argues that, even if the court finds an exclusive jurisdiction clause contrary 
to its submissions, the forum conveniens  is Ireland, identifying that:  
a.  The goods originated in Ireland;  
b.  The port of loading and taking on board the goods was in Cork;  
c.  The Defendant is domiciled in Ireland with its registered office in Dublin;  
d.  The deponent of the Defendant’s primary grounding Affidavit, Mr. Tom  Doherty, is 
in Ireland, describing himself as “Business Unit Manager of Smithstown Industrial 
Estate, Shannon, Co. Clare”;  
e.  Emails sent by the Defendant, which are exhibited to the Affidavits of Tom Doherty, 
contain signatures bearing the addresses res pectively of:  
i.  Smithstown Industrial Estate, Shannon, Co. Clare  
ii. Northwood House, Northwood Crescent, Northwood, Santry, Dublin 9.  
57. Taking each of those arguments in turn, I have no evidence where the goods originated 
from. They may have been in transit. They were certainly shipped from Ireland but that is 
all I am told. I agree that the goods were shipped from Cork, that the defendant  is 
domiciled in Ireland and that Mr. Doherty gives an Irish address. Those facts give the 
plaintiff a reason to argue for jurisdiction in Ireland but are far from conclusive.  
58. I do not agree that the forum conveniens  is Ireland. This is a truly intern ational situation. 
As described above, the plaintiff consignee is incorporated in Toronto, the shipper (not a 
party) is an Irish company, the carrier (not sued) is Pantainer (HK) Ltd, incorporated in 
Hong Kong, the disclosed agent of Pantainer (HK) Ltd, th e defendant, is Irish and the ship 
owner is a Swiss company. The alleged cause of deterioration of the goods was the failure 
to store them at the requisite temperature, identified on the waybill as being +22°C. The 
location of the alleged mis -storage of th e goods is not disclosed by the plaintiff but it 
presumably took place either during the sea voyage or the land voyage between Montreal 
and Toronto. The plaintiff does not identify what relevant evidence the defendant can give 
in respect of the allegedly n egligent act.  
59. In those circumstances, contrary to what is asserted by counsel for the plaintiff, it does 
not appear to me that the key facts centre around Ireland at all. There is no evidence as 
to what issues of fact will require to be determined, wh o the witnesses are likely to be, 
how Ireland is a convenient forum having regard to the issues and witnesses required, or 
what is the applicable law. Specifically, given that the crucial evidence is likely to be in 
respect of the storage of the goods and the temperature at which they were stored, it is 
difficult to see the link with Ireland. Nothing that has been adduced persuades me that 
Ireland has a close connection to the dispute.  
60. On the other hand, given that Pantainer (H.K.) Ltd., (identified by  the waybill as the 
contracting party) is a Hong Kong company, there is a logic to the jurisdiction clause that 
nominates the courts of Hong Kong as having jurisdiction to settle disputes. No prejudice 
accruing to the plaintiff in having the dispute adjudi cated upon in Hong Kong has been 
identified.  
Conclusion  
61. According to applicable principles, I ought to exercise my discretion to grant a stay unless 
a strong cause for not doing so is shown. The burden of proving same is on the plaintiff. 
No factors ha ve been identified to me that would suggest that Ireland is a convenient 
jurisdiction or that there is a strong cause to refuse to stay the proceedings in Ireland. 
Equally, no factors have been identified suggesting that the defendants are seeking 
procedur al advantage by relying on the applicable jurisdiction clause or that the plaintiff 
would be prejudiced by having to sue in Hong Kong. In all the circumstances it seems to 
me an appropriate case in which to decline jurisdiction to hear this action in favou r of the 
courts of Hong Kong Special Administrative Region as per the exclusive jurisdiction 
clause.  
Costs  
62. I propose that the costs of the motion and of the proceedings should be borne by the 
plaintiff given that it has been unsuccessful, to include re served costs to be adjudicated 
upon in default of agreement.  
63. If either of the parties wish to argue for a different decision on costs, submissions of no 
more than 1,500 words should be filed within two weeks of the date of delivery of this 
judgment id entifying the reasons for same. If no submissions are received I will make an 
order in the terms proposed.