D.S.V. Silo-Und Verwaltungsgesellschaft MBH v. Owners of Ship "Sennar", (1985) 61 N.R. 149 (HL)

• Case Date: March 21, 1985
• Jurisdiction: Canada (Federal)
• Citations: (1985), 61 N.R. 149 (HL)

DSV v. Ship Sennar (1985), 61 N.R. 149 (HL)

MLB headnote and full text

D.S.V. Silo-Und Verwaltungsgesellschaft MBH v. Owners of the Ship "Sennar" and 13 other ships

Indexed As: D.S.V. Silo-Und Verwaltungsgesellschaft MBH v. Owners of Ship "Sennar"

House of Lords

London, England

Lord Fraser of Tullybelton, Lord Diplock, Lord Roskill, Lord Bridge of Harwich and Lord Brandon of Oakbrook

March 21, 1985.

Summary:

A Sudanese company sold goods to a Swiss company under a bill of lading, which required Sudanese law and courts to govern the contract. The bill of lading was dated August 30, 1973, but the goods were not loaded until September 7. The Swiss company sold the bill of lading to a German company, which in turn sold it to an English company. The English company discovered the discrepancy between the date on the bill of lading and the shipping date, rejected the documents and demanded its money back. The German company made a similar claim against the Swiss company and the Swiss company claimed against the seller. All three claims succeeded on arbitration. The English company recovered from the German company, but by then the Swiss company was insolvent and could not pay the Germany company. The German company used the bill of lading to obtain the goods and sold them. It then brought an action against the carrier in the Netherlands by arresting a sister ship there and bringing an action in tort against the carrier. The Dutch court ruled that the only action available was in contract, which was enforceable only in the Sudan. The German company then grounded British jurisdiction by seizing another sister ship in England and brought an action against the carrier there for fraud, breach of duty and negligence. The carrier unsuccessfully applied for a stay of the action. See [1983] 2 Ll.R. 399. The English Court of Appeal allowed the carrier's appeal and ordered a stay on the ground that the German company was estopped by the Dutch judgment from re-litigating the issues. See [1984] 2 Ll.R. 142. The German company appealed. The House of Lords dismissed the appeal and held that the Court of Appeal properly stayed the action, because the Dutch action and judgment satisfied all the conditions for raising issue estoppel against the English action.

Estoppel - Topic 377

Estoppel by record - Res judicata as bar to subsequent proceedings - When applicable - A German company bought goods under a bill of lading from a Swiss company, which had purchased the goods from a Sudanese seller - The goods were not loaded on the carrier's ship until a week after the date on the bill of lading, which required Sudanese law and courts to govern - When a purchaser from the German company rejected the bill of lading because of the discrepancy between the date on the bill of lading and the date of shipment, the German company with no remedy against the impecunious Swiss company sued the carrier in tort in the Netherlands, grounding the Dutch jurisdiction by arresting a sister ship there - The Dutch court ruled that the only action available was in contract, which was enforceable only in the Sudan - The purchaser then grounded British jurisdiction by seizing another sister ship in England and brought an action against the carrier in England for fraud, breach of duty and negligence - The House of Lords held that the action should be stayed, because the Dutch action and judgment satisfied all the conditions for raising issue estoppel against the English action.

Estoppel - Topic 377

Estoppel by record - Res judicata as bar to subsequent proceedings - When applicable - Requirements - The House of Lords held that three requirements must be satisfied to create issue estoppel: (1) the judgment in the earlier action relied on as creating an estoppel must be (a) of a court of competent jurisdiction, (b) final and conclusive and (c) on the merits; (2) the parties in the earlier action must be the same as those in the later action in which estoppel is raised as a bar; (3) the issue in the later action must be the same issue as that decided by the judgment in the earlier one - See paragraph 33.

Estoppel - Topic 377

Estoppel by record - Res judicata as bar to subsequent proceedings - When applicable - Prior decision on the merits - Meaning of - A German company brought an action in tort in the Netherlands against a Sudanese carrier respecting a bill of lading requiring Sudanese law and courts to govern - The Dutch court ruled that the only action available was in contract, which was enforceable only in the Sudan - The House of Lords held that the Dutch decision was on the merits and raised an estoppel to prevent the German company's subsequent action on the same matter in England - The House of Lords stated that a decision on the merits is a decision which establishes certain facts as proved or not in dispute; states what are the relevant principles of law applicable to such facts; and expresses a conclusion with regard to the effect of applying those principles to the factual situation concerned - See paragraph 35.

Estoppel - Topic 377

Estoppel by record - Res judicata as bar to subsequent proceedings - When applicable - Foreign judgment - Effect of - The House of Lords held that issue estoppel arose from a judgment of a foreign court.

Practice - Topic 5277

Trials - General - Stay of proceedings - When available - A German company brought an action in the Netherlands against a Sudanese carrier on a Sudanese bill of lading, which stated that Sudanese law and courts governed - The Dutch jurisdiction was grounded by arresting one of the carrier's ships there - The Dutch court dismissed the action and held that any remedy lay in the Sudan - The German company then seized another ship of the carrier in England to ground English jurisdiction and brought an action there - The British House of Lords affirmed that the English courts properly stayed the action, particularly because the German company was forum shopping and the action had no connection with England anyway - See paragraphs 39 to 41.

Words and Phrases

On the merits - The House of Lords discussed the meaning of deciding a case on the merits - See paragraphs 6 to 11, 35.

Cases Noticed:

Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. 853, appld. [para. 33].

El Amria, The, [1981] 2 Ll.R. 119, appld. [para. 40].

Counsel:

[None disclosed.]

This case was heard at London, England, before Lord Fraser of Tullybelton, Lord Diplock, Lord Roskill, Lord Bridge of Harwich and Lord Brandon of Oakbrook of the House of Lords.

On March 21, 1985 the judgment of the House of Lords was delivered and the following opinions were given:

Lord Fraser of Tullybelton - see paragraph 1;

Lord Diplock - see paragraphs 2 to 12;

Lord Roskill - see paragraph 13;

Lord Bridge of Harwich - see paragraph 14;

Lord Brandon of Oakbrook - see paragraphs 15 to 41.