Seereederei Baco Liner GmbH v “Al Aliyu”

[2000] FCA 656

FEDERAL COURT OF AUSTRALIA

Seereederei Baco Liner GmbH v “Al Aliyu” [2000] FCA 656

ADMIRALTY – motion to stay proceedings in favour of proceedings not yet commenced in a different jurisdiction – collision in Conakry, Guinea – sinking of barge – vessel arrested in Australia - whether Federal Court of Australia is a clearly inappropriate forum to determine the dispute – relevance of criticisms of another jurisdiction’s ability to fairly and impartially determine the dispute – weight to be given to such criticisms made by an advocate in that jurisdiction – witnesses to collision between vessel and barge all reside outside Australia – where ship arrested in Australia – possible cross-claim and action against Port Authority and others in Guinea arising out of collision

Voth v Manildra Flour Mills PtyLtd (1990) 171 CLR 538 followed
Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 referred to
CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 followed
Henry v Henry (1996) 185 CLR 571 followed

SEEREEDEREI BACO LINER GmbH v THE OWNERS OF THE SHIP “AL ALIYU”
N 840 of 1999

TAMBERLIN J
18 MAY 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 840 OF 1999
IN ADMIRALTY

BETWEEN:	SEEREEDEREI BACO LINER GmbH PLAINTIFF
AND:	THE OWNERS OF THE SHIP "AL ALIYU" DEFENDANT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	18 MAY 2000
WHERE MADE:	SYDNEY

Conditionally upon the defendant agreeing in suitable terms to extend the existing security to any judgment of the relevant Courts of Guinea in relation to this matter, and to submitting the dispute to the Courts of Guinea and appointing an agent in Guinea to accept service on its behalf, the Court orders that:

1.        This proceeding be stayed.

2.        The plaintiff is to pay the defendant’s costs of this application.

Note:    Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 840 OF 1999
IN ADMIRALTY

BETWEEN:	SEEREEDEREI BACO LINER GmbH PLAINTIFF
AND:	THE OWNERS OF THE SHIP "AL ALIYU" DEFENDANT

JUDGE:	TAMBERLIN J
DATE:	18 MAY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. These proceedings arise out of a collision between the ship “Al Aliyu” (“the vessel”) and a barge (“the barge”) owned by the plaintiff (“SBL”), in Conakry, Guinea, in North Africa.  SBL filed a writ in the Federal Court of Australia seeking arrest of the vessel, and damages in the sum of US$1,115,440 resulting from the collision.  The vessel was arrested in South Australia, but its release was ordered on 2 September 1999 after the defendant (“the owners”) provided adequate security.  By notice of motion dated 21 October 1999 the owners sought an order from the Court staying these proceedings in favour of the Courts of Guinea.

   The Collision

2. In an affidavit filed on 29 October 1999 Mr Russell Rawlings of Clyde & Co, the owners’ London solicitors, deposed as to the circumstances of the collision.  SBL’s London solicitor, Philip Pascoe of Constant & Constant, agreed, in broad terms, with the circumstances outlined by Mr Rawlings.

3. On 22 October 1998 the vessel was berthed at No 1 berth at Conakry, discharging bags of cement.  The assistant Harbour Master ordered the vessel to vacate the berth to allow another vessel to berth.  The vessel vacated the berth.  On re-entering the harbour the next day the vessel was under the pilotage of a pilot supplied by the Port Autonome de Conakry (the “Port Authority”) and was assisted by two tugs, also supplied by the Port Authority.

4. At this time access to No 1 berth was inhibited by the barge, which lay, unmanned, alongside the berth.  The pilot of the vessel ordered one of the tugs to tow the barge away.  As the tug was doing so, however, the tow-line parted and the barge drifted towards the vessel.  The barge came into contact with the vessel’s moving propeller and sank.

   Further Facts

5. Following the collision an investigation of the accident was carried out by Le Service Juridique de la Société de Port Autonome de Conakry (“the PAC”).  Mr Rawlings deposed to this, but no details of the scope of the PAC inquiry or the status of any report before the courts of Guinea were given.  As at 21 October 1999 Mr Rawlings was unaware of the PAS having issued its report at all.

6. The owners also conducted some investigations of their own.  Mr Rawlings interviewed the Master and Second Officer of the vessel on 12 August 1999.  He then travelled to Conakry for three days from 16 August and interviewed port officials and workers.  The owners, or their insurers, also instructed surveyors in Conakry to examine the sunken barge and give an estimate of the damage to it.

7. Following the collision the vessel travelled to eight ports in Europe and Africa before arriving in Fremantle, Western Australia.  The vessel then travelled to Wallaroo in South Australia where it was arrested.  After release it subsequently sailed to Adelaide before it left Australia.  A summary of the vessel’s movements, tendered during the hearing, indicates that during 1998 and 1999 the vessel visited Australian ports on only five occasions, and that it sailed throughout Asia, Africa and Europe.

8. It is also relevant to note at this point that the vessel is registered in Monrovia, Liberia and is owned by a Liberian company.  The vessel’s managers are located in London and the Master and crew are Indian nationals.  SBL is a German company.

   Relevant principles

9. It is common ground that the question to be answered in the present case is whether the Federal Court of Australia is “a clearly inappropriate forum”. The general principles applicable were formulated by Mason CJ, Deane, Dawson and Gaudron JJ in Voth v Manildra Flour Mills PtyLtd (1990) 171 CLR 538 at 554 where their Honours summarised the appropriate approach in the following terms:

   “First, a plaintiff who has regularly invoked the jurisdiction of a court has a prima facie right to insist upon its exercise.  Secondly, the traditional power to stay proceedings which have been regularly commenced, on inappropriate forum grounds, is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse of process and the rationale for the exercise of the power to stay is the avoidance of injustice between parties in the particular case.  Thirdly, the mere fact that the balance of convenience favours another jurisdiction or that some other jurisdiction would provide a more appropriate forum does not justify the dismissal of the action or the grant of a stay.  Finally, the jurisdiction to grant a stay or dismiss the action is to be exercised ‘with great care’ or ‘extreme caution’ .”

10. Their Honours proceeded to consider and reject the “traditional approach” to an application for a stay of proceedings whereby the question asked is whether there is another forum in which justice can be done at less inconvenience and expense in circumstances where the plaintiff is not deprived of a legitimate or juridical advantage which would be available if the Court in which the stay is sought were to exercise its jurisdiction.

11. At 556-557 their Honours, after pointing out that the “clearly inappropriate forum” test was more expansive than the “traditional” test decided to adopt the “clearly inappropriate forum” test which focuses on the position of the Court in which the order for a stay is sought, as opposed to the approach required by the “clearly more appropriate forum” test which focuses attention on the other court or forum in favour of which the action is sought to be stayed.

12. Their Honours also, at 558-559 pointed out that while the availability of relief in a foreign forum will be a relevant factor in deciding whether a local forum is “clearly inappropriate”, there are powerful policy considerations which militate against Australian courts sitting in judgment on the ability or willingness of courts of another country to accord justice to the plaintiff in any particular case. 

13. In adopting the “clearly inappropriate forum” test the Court expressly departed from the test adopted the House of Lords in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460.

14. More recently the ‘clearly inappropriate forum” test adopted in Voth was confirmed as the correct approach in the joint judgment of six members of the High Court in CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 390-391.

15. It is evident from the above authorities that the “clearly inappropriate forum” test involves to some extent a weighting in favour of retention of the proceeding in the forum in which the action is commenced.  It is not sufficient merely for the other forum to be more appropriate.

    The present case

16. SBL submits that there is no “natural” forum for the determination of the proceedings in the present case relating to the collision because, so it is said, there is no strong connection with any one jurisdiction.  Rather there are a range of links with a number of jurisdictions but none which is overriding or determinative.  It is said that in these circumstances it is not correct to characterise the Federal Court as being a “clearly inappropriate forum”.  By way of illustration SBL points out that the vessels owners, managers and crew are of differing nationalities and the vessel itself does not appear to have regularly plied in trade or from any particular country as is evident from the list of its ports of call since January 1998 in evidence.  The indications are that witnesses in relation to the damage suffered by SBL would come from Germany.  SBL submits that few if any witnesses would need to be called from Guinea because the facts surrounding the collision are not “greatly in dispute”. 

17. SBL also points out that the proceedings have been regularly commenced in Australia and that no challenge has been made to this Court’s jurisdiction and that the plaintiff is prepared to litigate the dispute in Australia where it has confidence in the expertise and experience of the courts in relation to maritime claims. It is pointed out that the subject vessel’s only visit to Guinea was that during which the collision in question occurred.  SBL further says that the vessel has visited Australian ports five times over the last two years and that this provides some nexus.  It is also submitted that even if the Court in Guinea is considered to be the natural and more appropriate forum for resolution, it does not necessarily follow that Australia is a “clearly inappropriate forum” and it contends that the present case exemplifies the different ways in which the traditional test and the Voth test operate in practice to require different conclusions.

18. However, in my view, to be weighed against the considerations raised by SBL are the circumstances that the collision occurred in Guinean waters and that the law of Guinea will most likely govern the rights and liabilities of SBL and the owners.  I am not convinced by any means that only a few witnesses will need to be called from Guinea.  Nor am I satisfied that the movements of the vessel and the barge immediately before and after the collision are not greatly in dispute.  The collision must be examined having regard to the evidence of the surrounding circumstances in Conakry, and the precise orders given by, and the actions of the pilot of the vessel and the Port Authority and any relevant documents and records which may be located in Conakry. 

19. Account must also be taken of the matters considered in giving these orders and these questions may well be contested.  Evidence may also need to be given by the surveyors in Guinea engaged by the owners of the vessel to assess the damage to the barge.  In addition Mr Rawling’s evidence was that he has instructions to seek an indemnity from the Port Authority if the owners are found liable for damage to the barge.  He is also instructed to claim for the damage to the vessel from both SBL and the Port Authority.

20. Mr Rawlings points out that the only connection with Australia in the present case is that the vessel was arrested in Australia and these proceedings were commenced in Australia.

21. Of course, wherever the matter is heard, witnesses will need to be called from overseas.  That fact alone would not make Australia a “clearly inappropriate forum” in my view even given its distance from Europe and Guinea.  In this regard it is obvious that modern communications technology make the giving of evidence by overseas witnesses far less burdensome and distance does not have the importance that it had in earlier times. 

22. A cogent consideration in favour of a stay in the present case, in my view, is that the law of the forum namely Guinean law will most likely apply and this factor, while not determinative, is a significant factor in the exercise of the Court’s discretion as indicated by the Courts in both Voth at 566 and Henry v Henry (1996) 185 CLR 571 at 589.

23. A further submission of SBL is that on the evidence there was considerable doubt as to whether any court hearing the matter in Guinea would be likely to adequately or properly deal with the issue raised.  The submission was made that it is likely that no adequate or proper relief would be available in the Guinean Court because of either its importance, inefficiency or untimeliness.  However, as the High Court remarked in Voth at 558-559, such a submission must be approached with considerable caution and in the absence of cogent evidence Australian courts will not sit in judgment on the capacity or willingness of the courts of another country to provide justice to the plaintiff in a particular case as noted earlier in these reasons. The evidence of inability or inadequacy in the present case is far from cogent. It comprises a letter from an advocate in the Conakry Court, which describes the way in which the Conakry Court system performs its functions and it makes adverse assertions as to its operation to the effect that the Court has rarely had cases relating to collisions and towing and the Court has never heard a case, to the knowledge of the advocate, which comprised such a substantial claim as the present. There is also reference to the scarcity of maritime experts in Conakry.

24. The other material relied on in an attempt to make good this submission is a letter from a claims and insurance manager of OT Africa Line which testifies as to the dissatisfaction of that body with the enormous amounts of paper work, unwarranted administration, and numerous problems experienced by it within the Guinean jurisdiction with respect to maritime matters.  In one case the company was unsuccessful.  In another it was successful on appeal.  Criticisms were directed at the way in which the hearings proceeded.  However, in my view, this material is not cogent and falls short of establishing any substantial likelihood of injustice or incompetence to the detriment of SBL in the Guinea Court System if the case were to be heard in that forum.

25. An additional consideration relevant to the question whether a stay of proceedings should be granted is the prospect of fragmented or duplicated proceedings arising in different jurisdictions in relation to the collision if the stay is not granted and the matter is heard in Australia. I accept the evidence of Mr Rawlings to the effect that he has instructions to institute proceedings arising out of the collision against the Port Authority in respect of any liability that the owners might be found to have to SBL.  Such a claim would involve the same or substantially common facts to the plaintiff’s claim against the defendant in the present proceedings and perhaps require the calling of the same witnesses again together with substantially common issues being presented for determination as to the cause and quantum of losses arising from the collision.  This constitutes a further but not controlling factor to take into account in deciding whether the Australian court is a “clearly inappropriate forum”.

26. Having regard to the above considerations, in my view, notwithstanding the stringency of the applicable test, it has been established by the owners that the Australian Court is a “clearly inappropriate forum” for determination of this proceeding.

27. Accordingly the proceedings in this Court should be stayed.  There is force in the submission of SBL that the stay should only be granted upon condition that the existing security in favour of the plaintiff is agreed on suitable terms to be extended to any judgment of the Courts of Guinea and that the plaintiff should submit to the jurisdiction of the relevant Guinean Court and also appoint an agent in Guinea to accept proceedings on its behalf and I propose to make orders on that basis.

28. The defendant has succeeded on this application and the plaintiff should pay its costs.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             18 May 2000

Counsel for the Applicant:	Dr A Bell
Solicitor for the Applicant:	Phillips Fox
Counsel for the Respondent:	Mr G Nell
Solicitor for the Respondent:	Ebsworth & Ebsworth
Date of Hearing:	17 February 2000
Date of Judgment:	18 May 2000