In The Hollandia 1 the House of Lords, in the context of an application for the stay of an English action, held that a clause in a bill of lading giving exclusive jurisdiction to the courts of a country (the Netherlands) which would apply a lower package or unit limitation than that contained in the Hague-Visby Rules was, where an English court was required to apply the Rules as having “the force of law”,2 caught by Art. III.8 of the Rules as a “clause … relieving … from liability”. As such it was “null and void and of no effect”. The exclusive jurisdiction clause being thus removed, the House then considered whether the English action should be stayed on the general grounds laid down in McShannon v. Rockware Glass Ltd.3 and came to the conclusion that there was no case for doing so.

In The Benarty,4 an English action was brought against charterers on bills of lading issued by them and containing a clause giving exclusive jurisdiction to the courts of Indonesia. The Hague-Visby Rules were again application to litigation in England, the shipment being (as in The Hollandia) from the United Kingdom. It appeared at one time that the Indonesian courts would apply a lower package or unit limitation; but concessions were made before the court that such a point, even if correct (which was not clear) would not be taken, and that substantive liability would not be disputed. What was clear, however, was that the Indonesian courts would apply an overall tonnage limitation to the claim which would produce a maximum monetary liability lower than that of the package or unit limitation of the Hague-Visby Rules. The difficulty with trying to apply the reasoning in The Hollandia to such a situation is that Art. VIII of the Rules expressly preserves “the rights and obligations of the carrier under any statute for the time being in force relating to the limitation of the liability of the owners of sea-going vessels”. Counsel was driven to suggest that this Article, though it appears in the international rules and not in the enacting statute, applied only to English statutes, and thus only to the English tonnage limitation laid down in the Merchant Shipping Acts. This surprising argument seems to have succeeded at first instance, but was rejected by the Court of Appeal, who supported their rejection of it by considering the relationship of the original Hague Rules to domestic and international tonnage limitation.

The exclusive jurisdiction clause thus remained part of the contract; and the question of a stay was therefore considered not under the general rules laid down in McShannon v. Rockware Glass Ltd., but rather under the more specialized propositions relating to the staying of actions brought contrary to a clause giving exclusive