Supreme Court of Ireland Decisions

1. This is an appeal by the defendants against an order of Geoghegan J refusing to discharge an ex parte order made under O.11 of the Rules of the Superior Courts giving liberty to the plaintiff to serve on the defendants out of the jurisdiction a plenary summons claiming damages for breach of contract.

2. The plaintiff was injured in an accident which occurred on 23 October 1991 when he was working as a waiter/butler on board a ship, the Royal Viking Sun, of which the second named defendant is the owner. The plaintiff was employed on the ship on foot of a written contract of employment made between the first named defendant, as agent for the ship, and the plaintiff. It is alleged by the plaintiff that as a result of the breach of the defendants’ contractual duty to him he was caused to fall when carrying a tray down a stairway in the ship. The accident occurred on the high seas when the ship was between Cozumel, Mexico, and Galveston, Texas. Immediately after the accident the plaintiff was treated by the ship’s doctor and then by a doctor in Louisiana before he returned to Ireland.

3. The first named defendant is a Bahamas corporation, and the second named defendant is a company incorporated under the laws of Norway and has its central management there. The ship is registered in Nassau, in the Bahamas.

4. Geoghegan J held that the plaintiff’s contract of employment with the first named defendant had been made within the jurisdiction and, accordingly, the defendants had been properly served under O.11, r.1 (e)(i) which permits service out of the jurisdiction of an originating summons in an action brought, inter alia, to recover damages in respect of a contract ‘made within the jurisdiction’. He also held that Ireland was the most convenient forum for the trial of the action. The defendants had contended that it should be either Norway or the Bahamas, but in this Court they contended only for Norway.

5. The argument on the appeal was confined to these two issues. While it had been contended in the High Court that the action was based on tort rather than on contract, Geoghegan J’ s finding against the defendants on this issue was not appealed.

6. The facts concerning the execution of the contract were not in dispute. It was signed in triplicate for and on behalf of the first named defendant in Oslo on 15 October 1991 and was sent to the plaintiff on the same date with a covering letter. It was signed by the plaintiff in Dublin on 23 October 1991 and returned by him by post to Oslo. The covering letter had detailed instructions on the reverse side but these, unfortunately, were not in evidence. However, I think it is reasonable to assume that the plaintiff would have kept one of the three copies of the contract and returned the other two to Oslo. It is certainly common case that a copy of the contract duly signed was returned to Oslo.

7. It is clear on these facts that the contract was made by post so that the well-settled rule as enunciated by Denning LJ in Entores Ltd v. Miles Far East Corporation [1955] 2 QB 327 at p. 332, applies:-

8. When a contract is made by post it is clear law throughout the common law countries that the acceptance is complete as soon as the letter is put into the post box, and that is the place where the contract is made.

9. Accordingly, the plaintiffs’ acceptance was complete when, in Dublin, he posted the signed contract to the first defendant and where the signed contract was posted, which was Dublin, was the place where the contract was made.

10. It was contended by counsel for the first named defendant that this rule could on occasion cause injustice. It was possible, for example, that the acceptance might be lost in the post and in such cases it might be unjust to hold a party to a contract when he had never received the acceptance. That is no doubt correct but it is not a relevant consideration in the present case where the signed contract was received by the first named defendant. There are no circumstances here calling for any divergence from the well-established rule.

11. It was also contended that the implication from the form of the ‘employee attestation’ at the end of the contract was that there was to be no binding contract until the contract was returned to Oslo. The ‘employee attestation’ is as follows:-

12. I, the undersigned employee, declare that I have read and understood the terms of this agreement and that no oral promises or other agreements have been made to me and that I cannot claim and am not entitled to any additional benefits of any kind whatsoever except those provided in this agreement. I declare that the application for employment, previously filled out and signed, is true and correct in every respect and that, as part of my employment agreement, I agree to abide by the conditions set forth in the ship’s articles and by such company rules and regulations as are in effect from time to time.

13. I also certify that I have received the ‘welcome aboard’ booklet from the employer, and agree that I will abide by these terms and conditions.

14. I have carefully considered the terms of this attestation and I am unable to find in them any indication that they were intended to postpone the conclusion of the contract to a date later than that specified in the well-settled rule. I am satisfied that they did not prevent the contract from becoming immediately effective once the signed contract was put in the post addressed to the first named defendant in Oslo.

15. I would accordingly endorse the decision of the learned High Court judge that the contract was made in Dublin.

16. Both sides wished to approach this issue on the basis of the principles applicable to forum non conveniens. They were anxious that this issue should be decided now rather than having to be dealt with perhaps at a later date as a separate issue. It seems to me, however, that it would be premature to adopt this approach when the issue is still whether the High Court has jurisdiction to hear the plaintiffs’ action. The issue of forum non conveniens is relevant only where a court’s jurisdiction to hear a case is not being contested but it is being contended that it should not exercise its jurisdiction because it is a forum non conveniens. That is not the situation here.

17. It does not follow, however, that the question of whether Ireland is a convenient venue is irrelevant. It has to be considered under O.11, r.2 which provides as follows:-

18. In the affidavit filed on behalf of the defendants, the following reasons were put forward as to why a hearing in Ireland would involve the defendants ‘in considerable expense and great inconvenience’:-

19. As to the first of these reasons, I cannot see any greater cost or inconvenience being involved in bringing an expert in Bahamas law to Dublin rather than to Oslo. On the contrary, since it is almost certain that such an expert could be found in London, Dublin would clearly be more convenient.

20. As to the doctor from New Orleans, if he should be needed, Dublin would be slightly nearer than Oslo, though for the ship’s doctor it would be further. However, the principal medical evidence will be as to the plaintiff’s condition resulting from the accident and to deal with that all the defendants will have to do is to have the plaintiff examined in Dublin by an Irish doctor.

21. Some evidence obviously may be required from the master of the ship, and perhaps from one or more members of the crew, and as against the cost and inconvenience of bringing them here one has to set the cost and inconvenience of the plaintiff, his doctor (or doctors) and his engineer (who inspected the ship on 14 July 1992) having to go to Oslo, and the case having to be conducted in Norwegian.

22. Counsel for the defendants contended that Norway would be the more convenient forum but at the same time said that he had been instructed to inform the court that his clients would be agreeable to pay up to £2,000 towards the cost of bringing the plaintiff’s doctor and engineer to Norway. It seems to me that in making this offer the defendants are necessarily recognising that the cost to the plaintiff of having to pursue his claim in Norway would be very considerably increased compared with what it would be if the case is heard in Ireland.

23. Taking into account all the matters relevant to the comparative cost and convenience of proceedings in Ireland and in Norway, I am satisfied that there are no grounds for refusing to permit service out of the jurisdiction on the defendants and accordingly I would dismiss this appeal.