#4989 - Oceanic Sun Line Special Shipping Company V. Fay - Conflict of Laws BCL

Oceanic Sun Line Special Shipping Company v. Fay

Facts

In June 1983 the respondent was a passenger on a Greek ship, the M.S. Stella Oceanis, during a cruise of the Aegean Sea. He received serious injuries while taking part in trap shooting on board the ship. At that time the ship was sailing in Greek waters. The respondent is and was, at all material times, a resident of Queensland. The appellant is a company incorporated in Greece. Together with another company, it conducts Mediterranean cruises on its ships under the name "Sun Line Cruises".

On 10 September 1985 the respondent began proceedings against the appellant in the Supreme Court of New South Wales, claiming damages for negligence. He obtained leave to serve his statement of claim upon the appellant at its principal place of business in Athens. Leave was granted.

By notice of motion the appellant sought to have the statement of claim set aside or struck out for lack of jurisdiction in the Supreme Court of New South Wales, alternatively that service of the statement of claim be set aside and, as a further option, that the proceedings be stayed.

The information commences with the words, "The attention of passengers is drawn to the General Conditions of transportation set out in the Passage Contract." Under the heading "Responsibility" is a statement that "(t)he transportation of passengers and baggage ... is governed by the terms and conditions printed on the Passenger Ticket Contract which may be inspected at any Sun Line office. Passenger's acceptance of that ticket constitutes agreement of those terms and conditions." As already mentioned, no tickets were available in Sydney and none was received by the respondent until after arrival in Greece.

Clause 13 reads in part: “Notwithstanding anything to the contrary contained herein, any action against the Carrier must be brought only before the courts of Athens Greece to the jurisdiction of which the Passenger submits himself formally excluding the jurisdiction of all and other court or courts of any other country or countries which court or courts otherwise would have been competent to deal with such action.”

Holding

Wilson and Toohey JJ (Minority)

Contract came into existence in Sydney: For reasons connected no doubt with the appellant's administration, no tickets were available in Sydney. Nevertheless the exchange order constituted a contract made between the parties whereby in consideration of money paid by the respondent the appellant allocated to him an identified cabin on an identified cruise. It is true that by the exchange order the appellant reserved "the right to cancel any cruise, in which case the passage money will be refunded". On the other hand, "in the event of the passenger cancelling his passage ... passage money will NOT be refunded. ONLY IF space released is resold will the passage money be refunded." These may have been terms of the contract made between passenger and shipper; they did not prevent a contract from coming into existence.

Jurisdiction clause on the ticket is not effective: Once it is accepted that there was a contract of carriage concluded between the parties in Sydney, there are formidable obstacles in the path of the appellant's argument that the conditions on the ticket and in particular the submission to Greek jurisdiction formed part of that contract. Yeldham J. was surely right in his view "that the brochure was not contractual in nature and did not enter into or form any part of the relevant contract of carriage". Essentially it was a document designed to interest would-be travellers in the appellant's cruises to various parts of the Mediterranean. It contained much that was of historical and geographical interest as well as displaying the facilities that were available to those participating in the cruises. It was advertising material, available to any one. Its reference under "Things To Know Before You Go" to the transportation of passengers being governed by the terms and conditions printed on the passenger ticket contract was informative but not contractual (cf. Hollingworth v. Southern Ferries Ltd. (The "Eagle") (1977) 2 Lloyd's Rep 70, at pp 75-77). And it was expressed in the context that the ticket contract "may be inspected at any Sun Line office". Such a statement was not particularly helpful if, as may have been the case, there was no Sun Line office in Australia.

Spiliada applies in Australia

We agree with Lord Goff's approach in Spiliada. In our view the evolution of English law since The Atlantic Star cannot be ascribed to local considerations such as the incorporation of the United Kingdom into the European Economic Community. Rather, this century has witnessed such a transformation in communications and travel, coupled with a greater importance attaching to considerations of international comity as the nations of the world become more closely related to each other, as to render the St. Pierre principle, fashioned as it was in the nineteenth century, inappropriate to modern conditions. In this regard we agree with the views expressed by Kirby P. in the Court of Appeal. The St. Pierre principle places such a tight rein on the discretion of a court as to render it unable to deal justly with the problem of forum shopping, even in blatant cases.

Furthermore, in an area of the law involving the courts of other countries it is expedient to preserve as much consistency as possible between the common law countries. The doctrine of forum non conveniens has long formed part of the law of Scotland and of the United States of America. It is now the law of England. It would seem to be the law of Canada: see, for example Antares Shipping Corp. v. The Ship "Capricorn" (1976) 65 DLR (3d) 105; Bonaventure Systems Inc. v. Royal Bank of Canada (1986) 32 DLR (4th) 721; cf. Rogers v. Bank of Montreal (1984) 4 DLR (4th) 507. We are unaware of any recent consideration of the question in the courts of New Zealand. In our view, the Spiliada approach should henceforth chart the course for the common law of Australia in relation to the inherent jurisdiction of a court to stay proceedings when there is a more appropriate forum in a foreign country.

Likewise, we think that the reasoning of Lord Goff (at pp 480-482 in Spiliada) in drawing attention to a marked resemblance between the principles applicable in forum non conveniens cases and those which govern the discretionary power of a court to permit service of proceedings on a defendant outside the jurisdiction, is relevant and applicable in Australia.

Difference in statutory scheme

We should add that although the New South Wales Rules, unlike their English counterpart, do not expressly provide that leave shall not be granted "unless it shall be made sufficiently to appear to the court that the case is a proper one for service out of the jurisdiction" (R.S.C., O.11, r.4(2)), such an injunction is necessarily implicit in the discretionary power to grant leave. The special character of the leave in this case serves to diminish the weight that in other circumstances might attach to a plaintiff's choice of forum.

Application to facts

The decisive consideration, in our view, is that the contract was to be wholly performed in Greece or in localities close to Greece. An additional factor in support of Greek law as the proper law of the contract is that passengers for the cruise provided by the appellant were drawn from the United States of America as well as Australia and no doubt from other countries. It would be extraordinary, as Kirby P. observed, if the obligations of the appellant towards its passengers were to be governed by a variety of different laws, depending on where the fare was paid and the contract concluded.

In our opinion, the factors that we have mentioned identify Greece as an available forum which is clearly more appropriate for the trial of the action.

There is the additional personal expense that the respondent will have to incur in litigating in Greece, but this is not a factor which carries much weight. Then there is the disadvantage arising from his lack of knowledge of the Greek language. He may have to rely on interpreters in order to communicate adequately with his lawyers and would need interpreters to understand the course of the proceedings. This is undoubtedly a handicap that the respondent would feel keenly and it deserves serious consideration. Furthermore, there is probably no countervailing disadvantage to the appellant if the action were to be heard in New South Wales. The appellant is a corporation of substance with wide international experience and for which a trial in New South Wales would be unlikely to pose a significant problem.

Notwithstanding these considerations, however, we are not persuaded that they are of sufficient weight to enable us to disregard the factors that so clearly point to Greece as the appropriate forum. Greece was the place of the alleged tort; it occurred on a Greek vessel in the course of the performance of a contract of carriage of which prima facie the proper law was the law of Greece. The appellant has no connection with New South Wales, its place of business being in Greece. The Contracts Review Act of New South Wales has ceased to be of any relevance. The necessity for the respondent to depend upon an interpreter, although distressing to him personally, cannot affect the quality of justice that he might expect to receive in a Greek court

Brennan J (Majority)

It was too late after the original contract was made to add conditions which were not incorporated in it. The...