A court will not stay a suit on the basis of a jurisdiction clause in a contract if it is otherwise triable in the court where the suit is filed and it is more convenient to have the suit tried in that court.

G.K. Mitter, J.

1. THIS is an application for stay of a suit on the basis of a clause contained in a bill of lading that all actions thereunder were to be brought before the courts at Amsterdam or Rotterdam. The plaintiff, a firm carrying on business at Calcutta, was the endorsee of a bill of lading issued by the defendant No. 1 described in the plaint as the owners or charterers of a vessel "Hereford Beacon". The defendant No. 2 is described as the agent of the defendant No. 1 carrying on business in Calcutta. The defendant No. 3 are the Commissioners for the Port of Calcutta and the defendant No. 4 is an insurance company also carrying on business within the jurisdiction of this Court.

2. THE bill of lading was issued at Antwerp by the defendant No. 1 on 16-3-1956, the shippers being Countinho Caro and Co. Ltd. of London and the consignee the Bank of China, Calcutta. The goods shipped were described in the bill of lading as 400 pieces "used flat bottom steel rails". According to the document, however, the Condition of the goods, their measurement, weight, brand, quality and value were unknown and any reference thereto in the document was for the purpose of calculation of freight only. Under the bill of lading the "shipper" included an endorsee of the document and the contract of carriage was subject to the Hague rules as adopted by the International Convention at Brussels on 25-8-1924 unless there was any mention to the contrary. Clauses 25 and 26 of the bill of lading run as follows : 25. Law of application -- In so far as anything has not been dealt with by the provisions of this Bill of Lading the law of the Netherlands shall apply. 26. Jurisdiction -- All actions under this contract of carriage shall be brought before the Court at Amsterdam or Rotterdam and no other Court shall have jurisdiction with regard to any such action unless the carrier appeals to another jurisdiction or voluntarily submits himself thereto.

The substance of the plaintiff's complaint in the plaint filed on 18-11-1957 is as given below:

(a) The ship discharged only 355 pieces of steel rails under the said bill of lading after its arrival in Calcutta on 14-6-1956 and these were taken custody of by the defendant No. 3, (b) Between July and August 1956 the defendant No. 3 gave the plaintiff delivery of only 838 pieces and issued a short certificate for 46 pieces on 5-11-1956 and failed and neglected to make over 17 pieces. (c) On 13-11-1956 the defendant No. 3 offered delivery of 44 pieces of rails said to have been landed as unmanifested cargo but the plaintiff had to reject them as being different from the goods covered by the bill of lading. (d) By the breach of contract and/or negligence on the part of the defendants Nos. 1 and 2 the plaintiff has suffered loss and damage assessed at Rs. 8951/66nP. (e) The defendant No. 3 is liable to meet the plaintiff's claim if it be found that the defendants Nos. 1 and 2 had discharged the entire 400 pieces from the steamer at Calcutta. (f) The goods being insured under a policy issued by the defendant No. 4 the latter also is liable to meet the said claim.

3. IN January 1958 the defendant No. 1 filed his written statement whereby it admitted the shipment of 400 pieces of used flat bottom steel rails. Most of the other statements were either denied or not admitted. Defence was raised on the basis of Clause 26 of the bill of lading that this suit cannot be proceeded with in Calcutta.

4. THE present application has been made on the following grounds.

(i) Under the bill of lading only the Courts at Amsterdam and Rotterdam have jurisdiction to try a dispute between the parties. Besides, the Courts at the above places are the courts of convenience for the purpose of adjudication of the dispute raised in the plaint. (ii) THE weight, quantity and value of the goods loaded at Antwerp and unloaded at Calcutta will be issues in the suit. (iii) The officers of the vessel who can depose on the above issues reside in