Union Shipping New Zealand Limited v Morgan

No judgment structure available for this case.

Reported Decision:
(2002) 54 NSWLR 690

New South Wales

Court of Appeal

CITATION: Union Shipping New Zealand Ltd v Morgan [2002] NSWCA 124

FILE NUMBER(S): CA 40379/01

HEARING DATE(S): 28 February 2002

JUDGMENT DATE:
14 June 2002

PARTIES :

Union Shipping New Zealand Ltd (Appellant)
Sean Morgan (Respondent)

JUDGMENT OF: Heydon JA at 1; Hodgson JA at 120; Santow JA at 121

LOWER COURT JURISDICTION : Supreme Court

LOWER COURT
FILE NUMBER(S) : SC 20273/00

LOWER COURT
JUDICIAL OFFICER : Sperling J

COUNSEL: Mr A S Bell/Mr R D Glasson (Appellant)
Mr J D Hislop QC/Mr J A Kernick (Respondent)

SOLICITORS: Norton White (Appellant)
Carroll & O'Dea (Respondent)

CATCHWORDS: Conflict of laws - choice of law in tort - defendant company incorporated in New Zealand - plaintiff natural person resident in New Zealand - plaintiff employee of defendant - plaintiff suffering tortious injury during course of employment on defendant's barge - barge sailing under New Zealand flag - vessel wholly within Australian territorial waters - anchored in harbour unloading coal - whether law governing dispute Australian or New Zealand law - Conflict of laws - forum non conveniens - factors persuading court whether to dismiss Notice of Motion or to grant permanent stay of proceedings - Courts - precedent - doctrine of stare decisis - relevance of non-binding foreign authority where no binding authority obtains - D

LEGISLATION CITED: Interpretation Act 1987
Private International Law (Miscellaneous Provisions) Act 1995

CASES CITED:
Boys v Chapman [1971] AC 356
Carr v Fracis Times & Co [1902] AC 176
Chow Hung Ching v R (1948) 77 CLR 449
Chung Chi Cheung v R [1939] AC 160
Commonwealth v Mewett (1997) 191 CLR 471
Cook v Cook (1986) 162 CLR 376
Cunard Steamship Co Ltd v Mellon 262 US 100 (1923)
Far Eastern Shipping Co Ltd v Abrankin [1999] VSCA 107
Fisher v Agios Nicolaus V 628 F 2d 308 (1980)
Hellenic Lines Ltd v Rhoditis 398 US 306 (1970)
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503
Lauritzen v Larsen 345 US 571 (1953)
M'Elroy v M'Allister 1949 SC 110
MacKinnon v The Iberia Shipping Co Ltd 1955 SC 20
McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1
Machado v Fontes [1897] 2 QB 231
Owners of SS Reresby v Owners of SS Cobetas [1923] Sc LT 719
Phillips v Eyre (1870) LR 6 QB 1
Regie National des Usines Renault SA v Zhang (2002) 187 ALR 1
Romero v International Terminal Operating Co 358 US 354 (1959)
Sayers v International Drilling Co NV [1971] 1 WLR 1176
The Arum [1921] P 12
The "Halley" (1868) LR 2 PC 193
The Lotus PCIJ, Series A, No 10 (1927)
The Mary Moxham (1876) 1 PD 107
United States v Flores 289 US 137 (1933)
Voth v Manildra Flour Mills [Pty Ltd] (1991) 171 CLR 538
Wildenhus' Case 120 US 1 (1887)
Yorke v British & Continental Steamship Co Ltd (1945) 78 Ll L Rep 181

DECISION: Appeal dismissed with costs

CA 40379/01
SC 20273/00

HEYDON JA
HODGSON JA
SANTOW JA

14 June 2002

UNION SHIPPING NEW ZEALAND LTD v SEAN MORGAN

The defendant company was duly incorporated in New Zealand and capable of suing and being sued. It owned and operated a barge in the business of coal carriage. The plaintiff was a New Zealand resident employed by the defendant on the barge.

The plaintiff allegedly suffered tortious injury while operating machinery to unload coal from the barge onto land. The injury occurred during the course of employment while the barge was anchored in a coastal harbour wholly within Australian territorial waters and flying the New Zealand flag. The plaintiff brought proceedings in the Common Law Division of the Supreme Court of New South Wales seeking common law damages in negligence for personal injury. He did so on the basis that New South Wales was an appropriate forum for adjudication of the dispute and that the applicable law was that of New South Wales. By Notice of Motion, the defendant sought dismissal of the proceedings or a permanent stay. It argued that the applicable law was New Zealand law, being the law of the flag, under which the plaintiff was confined to statutory compensation under the New Zealand accident compensation scheme. It also argued that New South Wales was an inappropriate forum.

The primary judge dismissed the Notice of Motion. The defendant appealed, submitting that the primary judge erred in describing the application of the law of the littoral State as a “well settled common law principle”. It said that the law of the flag should apply.

(Heydon JA, Hodgson and Santow JJA agreeing):

1. Where a New Zealand vessel on which a plaintiff resident in New Zealand and employed by a New Zealand corporation has moored in a New South Wales harbour and commenced to unload coal onto New South Wales soil in a continuous process by means of a series of conveyor belts, and the plaintiff is allegedly injured while on board the vessel in consequence of torts for which the defendant is responsible, the applicable law is the law of New South Wales as the law of the littoral State, not the law of New Zealand as the law of the vessel’s flag: [106]-[112].

MacKinnon v The Iberia Shipping Co Ltd

The “Halley” (1868) LR 2 PC 193; The Mary Moxham (1876) 1 PD 107; Carr v Fracis Times & Co [1902] AC 176; The Arum [1921] P 12; Cunard Steamship Co v Mellon 262 US 100 (1923); The Lotus PCIJ, Series A, No 10 (1927); Chung Chi Cheung v R [1939] AC 160; Yorke v British & Continental Steamship Co Ltd (1945) 78 Ll L Rep 181; Chow Hung Ching v R (1948) 77 CLR 449; Hellenic Lines Ltd v Rhoditis 398 US 306 (1970); Sayers v International Drilling Co NV [1971] 1 WLR 1176; Boys v Chapman [1971] AC 356; Fisher v AgiosNicolaus V 628 F 2d 308 (1980); Commonwealth v Mewett (1997) 191 CLR 471; Far Eastern Shipping Co Ltd v Abrankin [1999] VSCA 107; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; Regie National de Usines Renault SA v Zhang (2002) 187 ALR 1, discussed.

Lauritzen v Larsen 345 US 571 (1953); Romero v International Terminal Operating Co 358 US 354 (1959), distinguished.

2. The trial judge’s suggestion that the reference in Pt 10 r 6A(2)(b) of the Supreme Court rules to “inappropriate forum” meant “clearly inappropriate forum” was not an appellable error. The same concepts and considerations informed both tests. Further, the trial judge reached his conclusion by considering both formulations. Thus the defendant’s submission that there was relevant difference was entirely academic: [117].

Regie National des Usines Renault SA v Zhang (2002) 187 ALR 1 applied.

of the extent to which Australian courts should pay regard to observations in non-Australian cases, and of Cook v Cook (1986) 162 CLR 376 at 390.

O R D E R S

1. The appeal is dismissed.

2. The appellant is to pay the respondent’s costs of the appeal.

CA 40379/01
SC 20273/00
HEYDON JA
HODGSON JA
SANTOW JA

14 June 2002

UNION SHIPPING NEW ZEALAND LTD v SEAN MORGAN

Judgment

1 HEYDON JA: This is an appeal by the defendant, brought by leave granted on 10 August 2001, from orders of Sperling J made on 4 May 2001 after a hearing on 22, 23, 26 and 28 March 2001 – why the hearing took such an extraordinarily long time is quite unexplained. The principal order was that a Notice of Motion filed by the defendant on 11 December 2000 be dismissed. That Notice of Motion sought the following orders:

“1. Service of the proceedings be set aside on the ground that New South Wales is an inappropriate forum.

2. In the alternative that the proceedings between the parties be permanently stayed or that the Court declines to exercise its jurisdiction in the proceedings on the basis that the Plaintiff’s claim is governed by New Zealand law and that under New [Zealand] law, the Plaintiff is not [entitled] to damages at common law.”

2 The appeal was argued orally on 28 February 2002. By that date the High Court had heard argument in, but not decided, Regie National des Usines Renault SA v Zhang. It was agreed that the delivery of judgment in this appeal should be deferred until the High Court published its reasons for judgment in that case. This it did on 14 March 2002 (187 ALR 1). Several sets of written submissions were received after 14 March 2002, the last of them being dated 12 April 2002.

Background

3 On 8 June 2000 the plaintiff filed a Statement of Claim in the Common Law Division. Paragraphs 1-10 are as follows:

“1. The Defendant is a New Zealand company duly incorporated and able to sue and be sued in its corporate name and style.

2. At all material times the Defendant employed the Plaintiff as a seaman on ships operated by the Defendant between West Port in New Zealand and Port Kembla in New South Wales.

3. On 5 October 1998 whilst in the course of his employment with the Defendant the Plaintiff was working on a coal barge at the Port Kembla Coal Terminal removing coal from the barge by means of a mechanical conveyor belt when the conveyor belt malfunctioned and as he was attempting to fix the roller of the conveyor belt his arm became caught in the conveyor belt rollers causing severe injury.

4. PARTICULARS OF INJURIES

(a) Closed fracture of the lateral condyle of the humerus of the right arm.

(b) Closed fracture of the mid shaft of the ulna of the right arm.

(c) Multiple conveyor belt abrasions to the right arm and back.

(d) Shock and sequelae.

5. At all material times the Defendant was the occupier and had the care, control and management of the barge on which the Plaintiff was working.

Factories Shops and Industries Act

7. The plaintiff’s injuries were caused by negligence and breaches of statutory duty on the part of the Defendant.

8. PARTICULARS OF NEGLIGENCE

(a) Breaches of statutory [duty] as set out below.

(b) Failure to devise and maintain a safe system of work so that the Plaintiff was not exposed to unnecessary risk of injury.

(c) Failure to supply and ensure the use of safe and suitable plant and equipment so that the Plaintiff might carry out his work without being exposed to unnecessary risk of injury.

(d) Failure to provide a reasonably safe place of work so that the Plaintiff was not exposed to unnecessary risk of injury.

(e) Failure to supervise or properly supervise the work being carried out by the Plaintiff so as to ensure that it was performed in a manner that did not create an unnecessary risk of injury.

(f) Failure to warn the Plaintiff of the risks of injury and attempting to fix the conveyor belt.

(g) Failure to provide adequate training or supervision to prevent foreseeable risk of injury.

(h) Failure to take any or any adequate precautions for the safety of the Plaintiff.

(i) Exposure of the Plaintiff to a risk of injury which could have been avoided by reasonable care.

(j) Removing the guard from the mechanical conveyor belt which was designed for the purpose of preventing injury.

(k) Failure to adequately maintain the mechanical conveyor belt on which the Plaintiff was working.

(l) Failure to test the mechanical conveyor belt to ensure that it was in good and safe working order.

9. BREACHES OF STATUTORY DUTY

Factories Shops and Industries Act

10. As a consequence of the Defendant’s negligence and breaches of statutory duty the Plaintiff has suffered loss and damage.

11. PARTICULARS OF LOSS AND DAMAGE

Full particulars are provided in a Statement Pursuant to Part 33 Rule 8A filed in these proceedings.

12. The Plaintiff claims against the Defendant:

(a) Damages.

(b) Interest.

(c) Costs.”

4 In August 2000 the defendant filed a Notice of Motion seeking an order that service be set aside on the ground that New South Wales is an inappropriate forum, and that in the alternative there be a permanent stay. In due course that was replaced by the Notice of Motion filed on 11 December 2000. The defendant relied on Pt 10 r 6A of the Rules of the Supreme Court of New South Wales which provides:

“(1) The Court may make an order of a kind referred to in Part 11 rule 8 (which relates to setting aside etc originating process) on application by a person on whom an originating process is served outside Australia.

(2) Without limiting subrule (1), the Court may make an order under this rule on the ground -

(a) that the service of the originating process is not authorised by these rules; or

(b) that this Court is an inappropriate forum for the trial of the proceedings.”

“(1) The court may, on application made by a defendant to any originating process on notice of motion filed within the time fixed by subrule (2), by order -

(a) set aside the originating process;

(h) decline in its discretion to exercise its jurisdiction in the proceedings.”

5 The primary judge had before him a Statement of Agreed Facts, three affidavits, and some documentary evidence. He noted that Pt 33 r 8A Statement asserted that all the plaintiff’s out-of-pocket expenses had been paid to 8 June 2000 by the New Zealand Accident Compensation Corporation.

The primary judge’s reasoning

6 The primary judge made the following remarks about the evidence.

‘Whilst discharging coal at Port Kembla, Mr Morgan was gearman. The conveyor belt slowed down and nearly stopped. Whilst he was checking the main drive roller for slipping, the belt sped up and Mr Morgan’s glove and overalls became caught dragging his arm into contact with the drive roller and conveyor belt.’

The report answered ‘Yes’ to whether human factors and / or technical conditions were relevant. Working on moving or dangerous equipment was specified as a human factor and inadequate guarding or absence of guard was specified as a ‘technical condition’. Later in the document, the report specified that the roller was not guarded at all. Further as to ‘technical conditions, the report specified that the roller was not guarded. As the explanation for the plaintiff working on moving or dangerous equipment, the report stated that the plaintiff was investigating why the conveyor belt had slowed down. In response to a question as to what was being done to prevent similar accidents, the report answered, Fitting proper guard over and around the drive roller.

This evidence establishes that the events relating to the plaintiff’s injury and to any liability on the part of the defendant occurred wholly within the vessel.

The documentary evidence shows that the vessel was owned by the defendant, a New Zealand corporation, and registered in New Zealand.

Contemporaneous documents are to the effect that the plaintiff was resident in New Zealand at the time of the accident. The plaintiff’s engagement document for service on the vessel, dated 30 June 1998, so states. Claim documents signed by the plaintiff on 11 April 2000 specify the same New Zealand residential address. The uncontested evidence is that, following his engagement, the plaintiff was paid his wages in New Zealand, after deduction of New Zealand income tax. … Conformably, the agreed statement of facts, tendered in evidence, states that, between April and October 1998 - a period of some six months immediately prior to the accident - the plaintiff lived for 7 to 8 weeks at a time with his family in Brisbane; took 2 or 3 days at a time to make his way from Brisbane to New Zealand to start voyages in the course of his employment, staying overnight with his parents or with friends in New Zealand; worked at sea for 7 to 8 weeks; and then took a day or two to travel back from New Zealand to Brisbane, sometimes staying overnight with his parents in New Zealand. The agreed statement of facts goes on to record that, immediately following the accident and until December 1998, the plaintiff remained in Australia, receiving medical treatment in Wollongong and Brisbane. Between December 1998 and March 1999, the plaintiff was continuously in New Zealand for the purposes of medical treatment, except for a couple of short periods in Brisbane. Between March 1999 and March 2000, the plaintiff lived in Australia with his family on the Gold Coast (having sold his house in Brisbane in January 1999), with the exception of three or four trips to New Zealand for medical treatment, each of a few weeks’ duration. Between March 2000 and July 2000, the plaintiff lived in New Zealand with his parents because of the need for surgery to remove a plate from his arm and because of marital difficulties (his partner remaining in the house on the Gold Coast with the children). Since July 2000, the plaintiff has resided exclusively on the Gold Coast with his family.

The uncontested evidence is that, as at the date of the plaintiff’s injury, the relevant legislation in force in New Zealand was the Accident Rehabilitation and Compensation Insurance Act 1992. The ‘no fault’ scheme under this legislation provides for weekly compensation and cover for medical and hospital treatment. In a letter dated 21 December 1998, the Accident Rehabilitation and Compensation Insurance Corporation formally accepted that the accident was a work injury under the scheme. Compensation payments have since been made and medical expenses have been covered.

…

No expert evidence was led as to the plaintiff's legal entitlement to benefits under the scheme or to the equivalent of such benefits under New Zealand law in the circumstances of the present case. In the absence of expert evidence, I am not satisfied one way or the other as to whether the plaintiff was and / or is now a person entitled to benefits under the New Zealand legislation or to the equivalent of such benefits. If the plaintiff has been paid benefits on a false basis, he might be liable to refund whatever has been paid and he might not be entitled to receive further benefits. That is a matter of New Zealand law.

7 Under the heading “Facts found or assumed”, the primary judge said:

“(1) On 5 October 1998, the plaintiff received injury on a vessel in Australian territorial waters.

(2) The vessel was owned by the defendant, a New Zealand corporation, and was registered in New Zealand.

(4) At the time of his engagement, in June 1998, the plaintiff gave a New Zealand address as his place of residence. His wages were paid in New Zealand and New Zealand income tax was deducted. However, the plaintiff had, in the ordinary sense, been permanently resident in Queensland since 28 April 1998.

(5) From the date of the accident, in October 1998, until December 1998, the plaintiff remained in Australia, receiving medical treatment in Wollongong and in Brisbane. Between December 1998 and March 1999, he was in New Zealand receiving medical treatment except, for a couple of short periods in Brisbane. Between March 1999 and March 2000, the plaintiff resided in Queensland, with the exception of three or four trips to New Zealand for medical treatment, each of a few weeks duration. Between March 2000 and July 2000, he lived in New Zealand for the purpose of further medical treatment and because of marital difficulties. Since July 2000, the plaintiff has resided in Queensland with his family.

(6) The plaintiff has received weekly compensation and cover for medical treatment under the New Zealand ‘no fault’ accident compensation scheme. Whether he has been entitled to receive such benefits, whether he is liable to refund what has been paid, and whether he is entitled to further benefits under the scheme is unknown.

8 From this account the reason for the defendant’s tactical position can be inferred. If New Zealand law applies, the plaintiff is likely to recover less compensation than if New South Wales law applies, and, even more importantly from the defendant’s point of view, it will not be the source of the compensation.

9 The primary judge dealt first with paragraph 2 of the Notice of Motion of 11 December 2000. He concluded that the order should not be made, because the relevant law was the law of New South Wales, not the law of New Zealand, so that there was no statutory bar to the recovery of damages. His reasoning was as follows:

The International Law of the Sea Vol 2

Foreign Ships in British Territorial Waters.

lex loci delicti

The Mary Moxham

McKinnon v Iberian Shipping Co Ltd

The principle that the law of the littoral state applies to alleged wrongs committed in the territorial waters of the state applies no less to casualties occurring within the territorial waters of a common law state where the jurisdiction of that state is invoked.

Lauritzen v Larsen

Romero v International Terminal Operating Co

Hellenic Lines Ltd v Rhoditis

In the result, I hold that the law to be applied by this Court, in determining the question of liability in the present case, is the law of New South Wales and not the law of New Zealand. It follows that there is no statutory bar to the recovery of damages in this case.”

10 The primary judge then declined to make the order sought in paragraph 1 of the Notice of Motion. After discussing the leading authorities, he said:

(a) the strong presumption in favour of allowing a plaintiff to choose his or her jurisdiction;

(b) the injury was received in New South Wales;

(c) the plaintiff’s initial and final medical treatment was received in New South Wales and in a neighbouring state of the Commonwealth;

(d) the question of liability would be determined under New South Wales law at a trial in this Court;

(e) the plaintiff resides in a neighbouring state of the Commonwealth; and

(f) there is a legitimate forensic advantage to the plaintiff associated with trial in New South Wales because of the bar against the recovery of compensatory damages in New Zealand, although this is a consideration of little weight.

Considerations operating in favour of the defendant include the following:

(a) the defendant is a New Zealand corporation, albeit with trade connections in New South Wales;

(b) the defendant engaged the plaintiff as a seaman on the basis that he was resident in New Zealand; and

(c) the plaintiff was paid his wages in New Zealand and New Zealand income tax was deducted.

It is significant, however, that there is no direct evidence of practical prejudice to the defendant arising from a trial in this court and little from which any inference of practical prejudice could be inferred. If the defendant has a defence to the plaintiff's claim under New South Wales law, there is nothing before the Court at this stage to suggest in a positive way that this is so. There is no reason to find, therefore, that it would be necessary for the defendant to bring witnesses as to liability to New South Wales for a trial in this Court. Similarly, in relation to the course of treatment provided to the plaintiff in New Zealand, there is nothing to suggest that there is anything contentious about that, or that there would be any need for either side to call New Zealand witnesses in that regard. As to the assessment of the plaintiff's alleged on-going disabilities, evidence in that regard can be obtained as readily, by examination and report, in Australia as in New Zealand, with the ready availability of the examining medical practitioners to give evidence in New South Wales.

I do not find that the defendant would suffer any practical prejudice arising from trial in this Court, let alone that trial in New South Wales would have the serious repercussions for the defendant referred to by Deane J in Oceanic and picked up in Voth .

The expanded factual background

11 At the start of the oral hearing of the appeal on 28 February 2002, the Court raised with the parties factual questions to which the materials before the primary judge gave no clear answers. Eventually it was agreed that the parties would endeavour to arrive at a Supplementary Agreed Statement of Facts. In this endeavour, commendably, they succeeded, and the document was provided on 25 March 2002. It stated:

“The barge, Union Bulk 1, has three conveyor belts all internal to and fixed to the vessel. The centreline belt conveyor runs from after to forward. The conveyor drops into a vertical bucket, elevator conveyor which lifts the cargo to the warehouse top and drops it onto a cross belt conveyor which runs from the centreline to the port side. This cross conveyor is normally stowed within the breadth of the barge and is extended out over the port side for cargo discharge, usually dropping freely down into a shore hopper of some sort. The 2 conveyors were interconnected in the operation to discharge coal from the barge.

The centreline belt conveyor runs down the middle of the vessel, as indicated in the drawing forming Annexure ‘A’ to this Statement. It was whilst working on this conveyor belt that the Plaintiff was injured. Annexure ‘B’ is a photograph of that conveyor belt.

The third conveyor belt is capable of extending out over the wharf as described in paragraph 1. At Port Kembla at the relevant time, coal was being discharged from the barge into a hopper on the wharf as depicted in the photograph comprising Annexure ‘C’ to this statement. The third conveyor belt was not attached to the hopper.

Annexure ‘D’ is a photograph of the barge, Union Bulk 1.

At the time Mr Morgan was injured, the vessel was located at the coal terminal at Port Kembla inner harbour as indicated in Annexure ‘E’.

The barge was towed from New Zealand to Port Kembla by the tug ‘Frederick Brown’ (later named ‘Karamea’).

The vessels were subject to pilotage into Port Kembla arranged and provided by the Port Kembla Port Authority.

The Respondent travelled from New Zealand to the entry to Port Kembla on the tug and transferred from the tug to the barge via the pilot’s vessel.

The barge was berthed at the coal terminal wharf in Port Kembla and was secured to the wharf by means of wire ropes.

The operation to discharge coal from the barge was scheduled to take approximately 5 days. The Respondent was injured on the first day the vessel was in Port Kembla Harbour.

The vessels were subject to the requirements of the Port Kembla Harbour Master in relation to entry and movement of the vessel in accordance with the Ports Corporatisation and Waterways Management Act 1995 (NSW).

The vessels were subject to the Port Kembla Port Authority in relation to the provision of port services and facilities in accordance with the Ports Corporatisation and Waterways Management Act 1995 (NSW).

Port Kembla access charges were payable for occupation and wharfage in accordance with the Ports Corporatisation and Waterways Management Act 1995 (NSW).”

12 The detail of the drawing and photographs does not matter.

The defendant’s arguments on choice of law

13 The defendant in argument to this Court stressed the numerous points of contact between the plaintiff and New Zealand and the very limited points of contact which the Plaintiff had with Australia in general and New South Wales in particular. The defendant pointed out that the plaintiff was a New Zealand resident engaged to serve on a New Zealand registered vessel pursuant to a contract with a New Zealand resident employer under a contract governed by a Collective Employment Contract between the New Zealand Seafarers’ Union and the defendant, which was a contract the proper law of which was New Zealand. The defendant also said that the injury occurred while the Union Bulk 1 was temporarily at Port Kembla, New South Wales, for five days. The defendant stressed that the events relating to the injury occurred wholly within that vessel. However, in oral argument the defendant indicated that its arguments on choice of law did not depend on the plaintiff’s residence and said that those arguments would have equal force even if he had resided in New South Wales.

14 The defendant submitted that the primary judge erred in saying that it is “well settled common law principle” that the law relating to a tort allegedly committed in the circumstances of the present case is the law of the littoral state, not the law of the vessel. The error was said to flow from reliance on the passage quoted in the reasons for judgment from O’Connell’s International Law of the Sea, which did not cite any authority. The only decision said by the defendant to support it was MacKinnon v The Iberia Shipping Co Ltd 1955 SC 20, which O’Connell criticised three pages later (at 903) by stating that “the American rule is more sensible than the Scottish, but it is not without its flaws”. The primary judge was said to have erred in that “in the absence of any binding authority” he “followed British authority (a 19th century decision arising in a wholly different factual context and a much criticised 1955 decision of the Scottish Inner House) rather than three decisions of the United States Supreme Court, without descending to a consideration of the persuasiveness of the reasoning contained in those decisions or the criticism of the Scottish decision”. The defendant said that the primary judge “simply engaged in a mechanical application” of the two decisions. It said that the 19th century decision, The Mary Moxham (1876) 1 PD 107, involved the quite different factual context of a collision between a vessel and a pier in Spanish waters. The defendant submitted that the primary judge “simply failed to consider” either “the criticism of MacKinnon” or “the persuasiveness of the reasoning” of certain “highly persuasive decisions of the United States Supreme Court”, despite extensive argument inviting that approach. It was submitted that the primary judge’s failure to consider these matters was contrary to authority cited to him, namely Cook v Cook (1986) 162 CLR 376 at 390.

15 In that case Matheson J, in the Full Court of the Supreme Court of South Australia, had declined to follow, as being “only dicta”, some comments of Latham CJ and Dixon J, because he regarded himself as constrained to accept the reasoning in a decision of the English Court of Appeal. Mason, Wilson, Deane and Dawson JJ said:

“In support of that approach, his Honour referred to a number of statements in cases in this and other courts in which it has been said that in the absence of controlling authority a State Supreme Court, including a ‘Supreme Court on appeal’, should, as a general rule, follow decisions of the English Court of Appeal … Whatever may have been the justification for such statements in times when the Judicial Committee of the Privy Council was the ultimate court of appeal or one of the ultimate courts of appeal for this country, those statements should no longer be seen as binding upon Australian courts. The history of this country and of the common law makes it inevitable and desirable that the courts of this country will continue to obtain assistance and guidance from the learning and reasoning of United Kingdom courts just as Australian courts benefit from the learning and reasoning of other great common law courts. Subject, perhaps, to the special position of decisions of the House of Lords given in the period in which appeals lay from this country to the Privy Council, the precedents of other legal systems are not binding and are useful only to the degree of the persuasiveness of their reasoning.”

16 The defendant submitted that if that process of analysing the comparative persuasiveness of the competing authorities were engaged in, the following reasoning would apply.

17 It was well established that torts occurring within a vessel on the high seas were governed by the law of the flag.

[t]he test of location of the wrongful act or omission, however sufficient for torts ashore, is of limited application to shipboard torts, because of the variety of legal authority over waters she may navigate

Lauritzen v Larsen

[t]o impose on ships the duty of shifting from one standard of compensation to another as the vessel passes the boundaries of territorial waters would not only be an onerous but also an unduly speculative burden, disruptive of international commerce …

Romeo v International Team Co

Cheshire & North’s Private International Law

The Conflict of Laws

Conflict of Laws in Australia

MacKinnon

18 It was accepted that though the persuasive reasoning of which Cook v Cook spoke must be reasoning about the common law, not reasoning about statutory construction, and though the United States Supreme Court cases are on an American statute known as the Jones Act, it was submitted that “the reasoning is … common law reasoning”. Where the United States courts concluded that, after being read down, the Jones Act did not apply, “the question remains what law to apply, and that’s where the common law technique of identifying how applicable governing law emerges”. It was also said that MacKinnon’s case “has been the subject of academic criticism and, in point of fact, will probably no longer be applied in the United Kingdom: see Private International Law [(Miscellaneous Provisions)] Act 1995.”

19 The defendant submitted that the New South Wales choice of law rules made no distinction between what happened on a ship that lay within a harbour (so long as the tort was wholly internal to the ship), and what happened on a ship that happened to stray inside the territorial waters of a particular jurisdiction on a journey between two other jurisdictions.

20 The defendant submitted:

“At its broadest level, this appeal raises some fundamental issues … of [private] international law. It raises the question of how do you choose a choice of law rule. That in turn raises the question of what choice of law rules should do, what purposes they should serve and there will be a number of candidates on display, and the criteria your Honours apply to select the appropriate choice of law rule will be the criteria provided by the answer to those questions, what is a choice of law rule meant to do, what are the purposes, so we need to go to that.”

21 The defendant said that light was cast on that task by John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503, since “in their Honours’ analysis … of the various candidates for a choice of law rule, one gleans some of the notions, some of the desiderata, as it were, of what a choice of law rule should do … .”

22 The defendant attempted to support the arguments of principle which it advanced by reference to passages in the following authorities.

23 In The Mary Moxham (1876) 1 PD 107 an English company possessed a pier in Spain which was damaged by a negligently handled English steamship. The Court of Appeal held, reversing Sir Robert Phillimore, that Spanish law applied. The defendant drew attention to the following remarks of Mellish LJ at 112-113, made after discussing The “Halley” (1868) LR 2 PC 193 and Phillips v Eyre (1870) LR 6 QB 1:

“But then it is said that though that is the general rule, yet here the act was not done in the foreign country, because the wrongful act was committed on board an English ship on the high seas. I agree that as to acts done on board a ship itself, no doubt the English ship carries the English law with it, but I am not convinced that it carries the English law with it with reference to wrongful acts done by guiding an English ship against a pier which is part of the foreign country. It is unnecessary to consider what would be the rule in a case where the ship was outside the three-mile limit and had fired a gun which caused damage within the foreign territory, though I do not think that the case would present any more difficulty. Here the ship was really within the Spanish dominions at the time when it committed the wrong. As Mr Clarkson put it, she was coming into a Spanish port, where she had no right to go except by licence given to her by the law of Spain, and where she was bound to obey the law of that country while she was there. In that position she comes into contact with that which is stated in the plea to be part of the soil of Spain, and this brings the case within the general rule that no action can be brought in this country in respect of an alleged wrongful act committed in a foreign country which act is not wrongful by the law of that country.”

24 The defendant submitted that that was a strong dictum to the effect that the law of the flag applied to “internal torts”.

25 The defendant also referred to Sayers v International Drilling Co NV [1971] 1 WLR 1176. An accident took place on an oil drilling rig owned and controlled by a Dutch company and manned by its employees; the rig was in Nigerian territorial waters. Lord Denning MR said at 1181: “If I were asked to decide the proper law of the tort (apart from contract), I should have said it was Dutch law”. The reasoning underlying this, which was said to have persuasive force, was, it was submitted by the defendant, as follows:

“The reasoning is where you’ve had an internal tort where the plaintiff is an employee of the defendant, they are working on board a ship or an oil rig, the plaintiff is injured in the course of this employment [in a manner] wholly internal to the ship, what claim does the law of the place as it were have to apply to the consequences of that tort compared to, for example, the law of the environment in which they’re working, let’s say the ship.”

26 The defendant also referred to the following remarks of Salmon LJ at 1183:

“One thing about which everyone was agreed was that whatever system of law ought to be applied to this contract, it should not be the Nigerian system of law. The work under the contract was being carried out in the territorial waters of Nigeria. The contract itself, however, stated that although the work was expected to be done in Nigeria, the company had the right to change the venue of the work; in other words, under this contract the plaintiff could have been ordered to work in any part of the world other than the United Kingdom.”

27 The defendant next analysed MacKinnon v The Iberia Shipping Co Ltd 1955 SC 20. The pursuer was an engineer who was injured, allegedly by the direct and vicarious negligence of the defenders, who owned the vessel on which he worked, while it lay at anchor in an open roadstead in the territorial waters of the Dominican Republic. It was not clear why it was there. The vessel was registered in Scotland. Both Dominican Republic law and Scots law allowed a claim for patrimonial loss, but, according to the defenders, only Scots law allowed a claim for solatium (ie recovery for wounded feelings).

28 The legal background in Scotland was that M’Elroy v M’Allister 1949 SC 110 had decided that an act done in a foreign country was actionable in Scotland only if it was, if done in Scotland, a tort, and was also actionable according to the law of the place in which it was done. This corresponded to the then English rule in Phillips v Eyre (1870) LR 6 QB 1. The parties assumed M’Elroy v M’Allister to be correct, but were in dispute as to its application. They also assumed that a claim for solatium was a distinct right of action, not merely something affecting the measure of damages.

29 The Lord Ordinary, Lord Migdale, held that the pursuer could only succeed if he averred that the claim for solatium was actionable both by Scots law and the law of the Dominican Republic. That is, the rule in M’Elroy v M’Allister applied not only to delicts committed on the territory of a foreign state, but to those committed on ships in foreign territorial waters.

30 The pursuer appealed on the ground that though M’Elroy v M’Allister was correct, it did not apply: the place of the delict was not the Dominican Republic, so that the lex loci delicti was not that of the Dominican Republic but that of Scotland, and no conflict of laws attracting M’Elroy v M’Allister existed.

31 The First Division of the Court of Session agreed with the Lord Ordinary. The defendant relied on the following remarks of Lord Carmont at 28-29:

locus

quasi

forum

locus

ex post facto

brings

This brings me to the pursuer’s supporting argument, that, even conceding the relevance of the law of the littoral State where there is some act done by those in charge of the vessel which affects the Government of the littoral State or its subjects, or indeed any person external to the vessel, yet, when everything takes place within the ship itself, there is no ground for invoking the law of the littoral State so as to displace the law of the flag. I find this argument attractive.”

32 However, Lord Carmont then said (at 29-30) that to give effect to the pursuer’s argument:

“would be breaking new ground and running counter to everything to be found in the treatises on international law, with one exception which I shall discuss in a moment, and, as regards the decisions which bear on the principle of international law with which we are concerned, we were referred to only a single case (and that the decision of a Judge of first instance) which seems to impinge on what is otherwise treated as settled.

Chung Chi Cheung

Chung Chi Cheung’s

The Halley

Carr v Fracis Times & Co

The Arum

Yorke v British and Continental Steamship Co

locus delicti

quasi

The Reresby v The Cobetas

The Halley

The Reresby

forum

33 The defendant stressed that Lord Carmont appeared to be attracted in principle by the greater certainty for shipowners afforded by selecting the law of the flag as the lex loci delicti, and that the movement of ships and the particular territorial waters into which they might move might be unpredictable: this was important in relation to the insurance arrangements which shipowners might make. The defendant referred to John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at [79] and [84].

34 Lord Russell agreed with Lord Carmont.

35 Lord Sorn reasoned in similar fashion to Lord Carmont, and the defendant treated the reasoning in similar fashion: it highlighted the parts critical of the plaintiff’s position, and sought to discount the other parts. Lord Sorn said at 35-37:

M’Elroy v M’Allister

The Halley

Carr v Fracis Times & Co

The Arum

lex loci delicti

The Reresby v The Cobetas

lex fori

external

locus

lex fori

lex loci delicti

locus delicti

lex loci

quasi

re integra

lex loci delicti

Yorke v British and Continental Steamship Co

inter alia

36 The defendant submitted that the cases on which the First Division of the Court of Session relied did not support its conclusion either because they were distinguishable or because they assumed the answer to the present question. Chung Chi Cheung v R [1939] AC 160 concerned criminal jurisdiction, not choice of law in civil cases. The “Halley” (1868) LR 2 PC 193 and The Arum [1921] P 12 were cases of collisions; they did not involve acts internal to the ship. Yorke v British & Continental Steamship Co Ltd (1945) 78 Ll L Rep 181 was a case of an act internal to the ship, but there was no difference between the law of the flag and the law of the littoral State, and the statement of du Parcq LJ at 184 which supported the First Division of the Court of Session was neither necessary for the decision nor the result of argument. The defendant advanced various reasons for distinguishing Carr v Fracis Times & Co [1902] AC 176 of which the simplest was that the tort was not an internal one. It might be added that the answer to the question whether the relevant law was the law of the flag or the law of the littoral State was assumed, not argued. These points are all sound.

37 The defendant then turned to two of the United States authorities.

38 In Lauritzen v Larsen 345 US 571 (1953) the facts were that a Danish seaman, while temporarily in New York, joined the crew of a ship of Danish flag and registry, owned by a Danish citizen, and signed ship’s articles, written in Danish, providing that the rights of crew members would be governed by Danish law and by the employer’s contract with a Danish union, of which the seaman was a member. He was negligently injured aboard the ship in the course of employment, while in Havana harbour. He sued on a United States statute called the Jones Act, the operative provision of which was:

“Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply … .”

39 The lower courts held that the Act applied – prima facie an astonishing conclusion, since the only link with the United States was that the plaintiff joined the ship in New York, returned to the United States after his injury, and sued in the United States. The Supreme Court, speaking through Jackson J, reversed the lower courts (Black J dissenting without reasons). At 575-576 Jackson J said:

“Denmark has enacted a comprehensive code to govern the relations of her shipowners to her seagoing labor which by its terms and intentions controls this claim. Though it is not for us to decide, it is plausibly contended that all obligations of the owner growing out of Danish law have been performed or tendered to this seaman. The shipowner, supported here by the Danish Government, asserts that the Danish law supplies the full measure of his obligation and that maritime usage and international law as accepted by the United States exclude the application of our incompatible statute.

That allowance of an additional remedy under our Jones Act would sharply conflict with the policy and letter of Danish law is plain from a general comparison of the two systems of dealing with shipboard accidents. Both assure the ill or injured seafaring worker the conventional maintenance and cure at the shipowner’s cost, regardless of fault or negligence on the part of anyone. But, while we limit this to the period within which maximum possible cure can be effected … the Danish law limits it to a fixed period of twelve weeks, and the monetary measurement is different. The two systems are in sharpest conflict as to treatment of claims for disability, partial or complete, which are permanent, or which outlast the liability for maintenance and cure, to which class this claim belongs. Such injuries Danish law relieves under a state-operated plan similar to our workmen’s compensation systems. Claims for such disability are not made against the owner but against the state’s Directorate of Insurance Against the Consequences of Accidents. They may be presented directly or through any Danish Consulate. They are allowed by administrative action, not by litigation, and depend not upon fault or negligence but only on the fact of injury and the extent of disability. Our own law, apart from indemnity for injury caused by the ship’s unseaworthiness, makes no such compensation for such disability in the absence of fault or negligence. But, when such fault or negligence is established by litigation, it allows recovery for elements such as pain and suffering not compensated under Danish law and lets the damages be fixed by jury. In this case, since negligence was found, United States law permits a larger recovery than Danish law. If the same injury were sustained but negligence was absent or not provable, the Danish law would appear to provide compensation where ours would not.”

40 Jackson J then pointed out the superficial breadth of the statutory language, or what he called, in a typical phrase, “the literal catholicity of its terminology” (at 576-577):

“If read literally, Congress has conferred an American right of action which requires nothing more than that plaintiff be ‘any seaman who shall suffer personal injury in the course of his employment.’ It makes no explicit requirement that either the seaman, the employment or the injury have the slightest connection with the United States. Unless some relationship of one or more of these to our national interest is implied, Congress has extended our law and opened our courts to all alien seafaring men injured anywhere in the world in service of watercraft of every foreign nation – a hand on a Chinese junk, never outside Chinese waters, would not be beyond its literal wording.

But Congress in 1920 wrote these all-comprehending words, not on a clean slate, but as a postscript to a long series of enactments governing shipping. All were enacted with regard to a seasoned body of maritime law developed by the experience of American courts long accustomed to dealing with admiralty problems in reconciling our own with foreign interests and in accommodating the reach of our own laws to those of other maritime nations.”

41 Jackson J then said (at 577) that the shipping laws of the United States “have been construed to apply only to areas and transactions in which American law would be considered operative under prevalent doctrines of international law.” He relied on American authority to the effect that statutes ought not to be construed to violate the law of nations if any other possible construction existed, and English authority to the effect that statutes should not, if any other construction was possible, be construed to apply to acts by foreigners outside the dominions of the enacting State.

42 Jackson J then said (at 581-582):

“Respondent places great stress upon the assertion that petitioner’s commerce and contacts with the ports of the United States are frequent and regular, as the basis for applying our statutes to incidents aboard his ships. But the virtue and utility of sea-borne commerce lies in its frequent and important contacts with more than one country. If, to serve some immediate interest, the courts of each were to exploit every such contact to the limit of its power, it is not difficult to see that a multiplicity of conflicting and overlapping burdens would blight international carriage by sea. Hence, courts of this and other commercial nations have generally deferred to a non-national or international maritime law of impressive maturity and universality. It has the force of law, not from extraterritorial reach of national laws, nor from abdication of its sovereign powers by any nation, but from acceptance by common consent of civilized communities of rules designed to foster amicable and workable commercial relations.

International or maritime law in such matters as this does not seek uniformity and does not purport to restrict any nation from making or altering its laws to govern its own shipping and territory. However, it aims at stability and order through usages which considerations of comity, reciprocity and long-range interest have developed to define the domain which each nation will claim as its own. Maritime law, like our municipal law, has attempted to avoid or resolve conflicts between competing laws by ascertaining and valuing points of contact between the transaction and the states or governments whose competing laws are involved. The criteria, in general, appear to be arrived at from weighing of the significance of one or more connecting factors between the shipping transaction regulated and the national interest served by the assertion of authority. It would not be candid to claim that our courts have arrived at satisfactory standards or apply those that they profess with perfect consistency. But in dealing with international commerce we cannot be unmindful of the necessity for mutual forbearance if retaliations are to be avoided; nor should we forget that any contact which we hold sufficient to warrant application of our law to a foreign transaction will logically be as strong a warrant for a foreign country to apply its law to an American transaction.”

43 At 583 he said:

“We therefore review the several factors which, alone or in combination, are generally conceded to influence choice of law to govern a tort claim, particularly a maritime tort claim, and the weight and significance accorded them.”

44 The first factor he referred to was the place of the tort. He said, however, at 583-584:

“The test of location of the wrongful act or omission, however, sufficient for torts ashore, is of limited application to shipboard torts, because of the varieties of legal authority over waters she may navigate. These range from ports, harbours, roadsteads, straits, rivers and canals which form part of the domain of various states, through bays and gulfs, and that band of the littoral sea known as territorial waters, over which control in a large, but not unlimited, degree is conceded to the adjacent state. …

We have sometimes uncompromisingly asserted territorial rights, as when we held that foreign ships voluntarily entering our waters become subject to our prohibition laws and other laws as well, except as we may in pursuance of our own policy forego or limit exertion of our power. Cunard SS Co v Mellon, 262 US 100. … This doctrine would seem to indicate Cuban law for this case. But the territorial standard is so unfitted to an enterprise conducted under many territorial rules and under none that it usually is modified by the more constant law of the flag.”

45 The second factor identified by Jackson J was the law of the flag. He said at 584:

“Perhaps the most venerable and universal rule of maritime law relevant to our problem is that which gives cardinal importance to the law of the flag. Each state under international law may determine for itself the conditions on which it will grant its nationality to a merchant ship, thereby accepting responsibility for it and acquiring authority over it. Nationality is evidenced to the world by the ship’s papers and its flag. The United States has firmly and successfully maintained that the regularity and validity of a registration can be questioned only by the registering state.”

“These considerations are of such weight in favor of Danish and against American law in this case that it must prevail unless some heavy counterweight appears.”

46 The third factor was the allegiance or domicile of the plaintiff and the fourth was the allegiance or domicile of the defendant. The fifth was the place of any relevant contract. The sixth was the inaccessibility of the non-American forum. The seventh was the law of the forum.

47 At 592-593 he said:

“This review of the connecting factors which either maritime law or our municipal law of conflicts regards as significant in determining the law applicable to a claim of actionable wrong shows an overwhelming preponderance in favor of Danish law. … But we can find no justification for interpreting the Jones Act to intervene between foreigners and their own law because of acts on a foreign ship not in our waters.”

48 The defendant did not rely on Lauritzen v Larsen as an authority directly applicable to the present problem or as an authority directly against the selection of New South Wales law. Indeed, it would have been impossible to do this if only for the reason that “neither party [urged] Cuban law as controlling”: at 584. Rather the defendant employed the case as a source of materials for arguments. Thus it said that it and other United States decisions:

“do reflect a proper law approach because they isolate a series of connecting factors and they say in a particular case you give different weight to the different factors, that’s not an approach I’m advocating. But what I am doing is trying to pick up from the analysis in the decision all the reasons against the application for the law of the territory and to the extent that the law of the flag is presented as, in the United States jurisprudence, one factor I’m adopting that reason and saying that’s the reason why this Court should adopt it as the rule, the law of the flag.”

49 Further, it said:

“Here is the germ of an argument which is developed later which is an argument based on comity in a sense, that the law of the [littoral] state has no real interest in an injury sustained on board a foreign flagged vessel at least in circumstances where the country whose flag supplies the law has its own comprehensive system of compensation, it’s an argument based on comity, it’s a type perhaps of governmental interest style analysis. We should respect in other words, it is said, the fact that this really is an internal matter. It’s an employer and employee in a particular employment context on a vessel with a particular flag and that flag’s country has its own system of compensation. That argument which has its writ in comity then can be reinforced, taken a step further, by an argument based on … what the parties’ reasonable expectations would be.”

“What would, on the circumstances postulated as a wholly internal incident involving an injury sustained by a New Zealand employee in the course of performing his New Zealand work contract for his New Zealand employer and injured by a machine on board the New Zealand [vessel], what law would those parties reasonably expect would apply to govern that man’s right to compensation. I submit that, and one can multiply the examples, it would be New Zealand law.”

50 The defendant then analysed Romero v International Terminal Operating Co 358 US 354 (1959). The plaintiff was a Spanish seaman injured when struck by a cable on a Spanish vessel temporarily in New York. Frankfurter J and four other justices held that he could not rely on the Jones Act. The majority followed the Court’s analysis in Lauritzen v Larsen. One specific passage relevant to the defendant’s argument was (at 389):

“To impose on ships the duty of shifting from one standard of compensation to another as a vessel passes the boundaries of territorial waters would be not only an onerous but also an unduly speculative burden, disruptive of international commerce and without basis in the express policies of this country. The amount and type of recovery which a foreign seaman may receive from his foreign employer while sailing on a foreign ship should not depend on the wholly fortuitous circumstance of the place of injury.”

51 The defendant then referred to statements by Kahn-Freund, Dicey & Morris, Cheshire & North, Nygh, O’Connell and Working Paper No 87 of the English Law Commission. These were critical of MacKinnon v The Iberia Shipping Co Ltd 1955 SC 20, terming the result variously “absurd”, “unattractive”, and “less sensible than the United States position”. It will be convenient to examine the detail of these criticisms later.

52 The defendant concluded by submitting that the goal of choice of law rules in the conflicts of laws was to avoid arbitrary results “because arbitrary results are at the end of the day inconsistent with the notion of a rule of law”. It also submitted that the goal of choice of law rules was to produce certainty of outcome so as to permit potential plaintiffs, potential defendants and their insurers to order their affairs in an economically efficient way: John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at [44], [79] and [84]. Choice of law rules ought also to accord with their reasonable expectations: John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at [87]. They ought to reflect the legitimate interests of States.

53 The defendant submitted that a choice of law rule based on the law of the flag permitted certainty and continuity of legal regime from that prevailing on the high seas through the territorial sea up to the point where the vessel engaged in some physical contact with land, property or persons on the littoral State or its territorial waters in circumstances giving rise to tortious liability. The defendant submitted that it was only at that point in time that the littoral State had any “interest” in the regulation of events involving the vessel or its operators on the one hand and another party on the other hand. The defendant said that that would avoid arbitrariness, uncertainty, conflict with reasonable expectations and false assertions of littoral State interests which did not exist. The defendant gave the following example of the comparative deficiencies of the law of the littoral State test.

“Assume an Australian registered cruise vessel sailing to New Zealand, through the Pacific Islands and culminating in Hawaii. The same incident on board the vessel, occurring whilst in Australian, New Zealand, Nauruan and United States territorial waters, would, on the [plaintiff’s] case and by reason of the primary judge’s decision, be likely to expose the shipowner/operator to four radically different levels of exposure. This is hardly satisfactory for the shipowner and wholly arbitrary for the plaintiff.”

54 The defendant said that it was unsatisfactory for a vessel to be subject to ever-changing conflicts rules in the course of journeys through particular territorial waters with which it had nothing to do, being journeys which its owners or operators might not be able to predict because of the possible obligation, legal or moral, to go to the rescue of other vessels in distress, or because of the possible effect of storms and other weather conditions, or because of the fact that voyage and time charters and sub charters might have the result that the owner might not have knowledge of, let alone control of, the ship’s destination.

The defendant’s arguments on choice of law considered: preliminary matters

55 First, it must be remembered that the defendant pointed to no case in the British Commonwealth which has held or said that MacKinnon v The Iberia Shipping Co Ltd was wrongly decided or that the law of the flag should be applied to a tort occurring on a ship in territorial waters. In Far Eastern Shipping Co Ltd v Abrankin [1999] VSCA 107 at [6] Callaway JA (Batt JA concurring) said that its incorrectness was sufficiently arguable, by reason of the statement in Dicey & Morris on the Conflict of Laws (12th ed, 1993) that it was to be hoped it would not be followed in England, to justify an extension of time within which to appeal, but the court declined to extend time because the point had not been taken in the County Court. A statement in such circumstances that the correctness of the case was arguable does not by itself shake confidence in its correctness.

96 What, then, do the “criticisms” offered by Cheshire & North and Dicey & Morris amount to? The document prepared by the Law Commission Working Party, together with the legislation that resulted and the discussion of it by the treatises, when taken with the terms of the observations appearing over several editions in each case, suggest that in truth the “criticisms” did little more than highlight aspects about MacKinnon’s case which might be open to debate. The “criticisms” are put in the most general and largely unreasoned way. There are limits to what treatises of the size of Cheshire & North and Dicey & Morris can do. What the relevant editions of those treatises do not contain is a detailed demonstration of error in the reasoning propounded in MacKinnon’s case, at least to the extent that that reasoning applies to the present circumstances. Nor has this ever been done in places in which analysis of that kind more realistically might be expected, namely articles in learned journals.

97 There is one other aspect of the “criticisms” made in Cheshire & North and Dicey & Morris to be discussed. The four Scots judges of the Court of Session were entitled to assume that the opinions on English law stated in Dicey, which had been inserted for the first time by its new editor, Morris (even then a leading master of the conflict of laws), and the equivalent opinions stated in two editions by Cheshire (probably at that time even more highly regarded than Morris), were the sincerely held opinions as to the content of English law of highly experienced, able and learned lawyers who had devoted their professional lifetimes to pondering the relevant problems. In the absence of clear authority, the Scots judges were entitled to give very great weight to the opinions of Morris and Cheshire, and they evidently did. It was perhaps galling for the Scots judges to reflect, if the criticisms of Morris ever came to their attention, that having arrived at their decision on the basis of what Morris said in Dicey, Morris took the earliest opportunity to tell them that the case in which they had acted on his opinions as to English law should never be followed in England. When Lord Carmont, for example, declined to give effect to arguments of the pursuer which, as he saw it, were attractive and avoided absurdity, because to do so would “be breaking new ground and running counter to everything to be found in the treatises of international law”, which “treated as settled” the contrary proposition, he was not praised by the authors whose words he applied, but told at once by one of them that it was to be hoped that the case would not be followed in England and told in the third succeeding edition of the other’s treatise that the contrary position was attractive on the ground of commonsense.

98 However, academic legal literature is, like Anglo-Saxon literature, largely a literature of lamentation and complaint. The laments and complaints can be heard even when academic wishes are acceded to. The fact remains that the reasons why Morris initially criticised MacKinnon’s case were almost entirely drawn from the language of the Scots judges themselves. The same was true of the reasons given by Cheshire for his more belated criticisms. One inference from the reverse-Schliemann archaeological process just carried out in relation to Cheshire & North and Dicey & Morris is that in the forty-seven years since MacKinnon’s case was decided very little in the way of criticism of the outcome has been assembled beyond what the Scots judges themselves said. In circumstances where the Scots judges preferred to apply what they had been authoritatively told by the two greatest living masters of the subject was English law, despite the criticisms they themselves had formulated, the later academic criticisms have rather less weight than they might otherwise have possessed.

Kahn-Freund

99 Among the academic criticisms relied on by the Law Commission Working Party, and by the defendant in these proceedings, was that of O Kahn-Freund in his lectures on “Delictual Liability and the Conflict of Laws” [1968] II Recueil des Cours 1 at 80-82:

lex loci delicti

(a) The ship in foreign territorial waters

MacKinnon v Iberia Shipping Co

solatium

dommage moral

solatium

lex loci delicti

raison d’être

lex loci delicti

obligatio

Romero v International Terminal Operating Co

locus delicti

forum

fraude à la loi

MacKinnon

Romero

100 The defendant referred to Boys v Chapman [1971] AC 356, in which the House of Lords declined to apply Maltese law to the assessment of damages for injury to a British serviceman in Malta, as an instance of judicial recognition of the relevance of an “insulated environment”, and as an example of a British tort occurring in Malta, in a manner analogous to the defendant’s characterisation of the tort allegedly suffered by the plaintiff as a New Zealand tort in New South Wales waters. The difficulty with the appeal to that case is that it exemplifies the application of a “proper law of the tort theory”, rejected as inapplicable in trans national torts in Australia in Regie National des Usines Renault SA v Zhang (2002)187 ALR 1. So far as the reasoning of Kahn-Freund is concerned, the defendant did not suggest that the present problem could be solved by classifying the issue as contractual in the manner appearing at the end of the passage quoted. While the passage quoted does not abstain from such terms of abuse as “absurd”, and while it advocates a recourse to the law of the flag, it is more notable for assertion than for reasoning. And even if the passage is thought to have persuasive force in some circumstances, no persuasive force is shown in relation to the present circumstances. There is a difference between MacKinnon’s case, where the ship was lying at anchor at a roadstead for some unexplained purpose, and the present case, where a ship was adjacent to Australian soil and in the course of fulfilling the purpose of its voyage, unloading coal.

Nygh

101 Another academic criticism on which the defendant relies is put thus by Nygh, Conflict of Laws in Australia (6th ed, 1995) p 355:

Private International Law

McKinnon v Iberian Shipping Co Ltd

Sayers v International Drilling Co NV

So far as these and other criticisms rely on Sayers’ case, its support is not only meagre but non-existent. It may be noted that while the passage quoted is repeated in the 7th edition (published in 2002), the editors twice cite the primary judge’s judgment in this case without criticism: [22.14] notes 104 and 110. Further, whatever the “more obvious absurdities inherent in a rigid application of the law of the place of wrong” may be, the passage does not direct itself to the precise issue that arises in the present case where the ship in question was adjacent to the land and was in the course of being unloaded.

O’Connell

102 The defendant relies on O’Connell, The International Law of the Sea, volume 2 (1980) pages 903-904. After discussing Lauritzen v Larsen 345 US 571 (1953), O’Connell said:

a fortiori

This is a criticism of MacKinnon’s case, but it offers no support for the defendant’s proposal. Further, the criticism offered is not necessarily applicable to the application of the law of the littoral State in the circumstances of the present case.

New South Wales law applies

103 The defendant did say, with some realism, that issues of “degree” arise in relation to the problems of what law applies to torts on ships in the territorial sea, that solution of them depends on drawing lines that minimise arbitrariness, and that the defendant’s test might not apply to vessels which had entered Australian rivers, for example. While “degree” may not be the best expression to describe the character of the problem, and line drawing may not be the best expression to describe its solution, it is not easy to suggest better ones.

104 It will be remembered that the criticisms of MacKinnon v The Iberia Shipping Co Ltd ran along the following lines. It is said to be absurd that the applicable law should suddenly change if a vessel moves into the territorial sea of a State with which it has no connection, particularly since it can be difficult to tell whether it has or has not crossed into the territorial sea; and even more absurd if it moves through the territorial sea of different States in succession. That outcome is said not to contribute to the comity of nations. It is said that a better accord with commonsense is achieved if torts having purely internal consequences are governed by the law of the flag, while torts having external consequences are governed by the law of the littoral State. It is said that to apply the law of the littoral State is to generate anomalies and arbitrary results destructive of the rule of law, to take away certainty, to disappoint reasonable expectations, to damage the legitimate interests of States and to create onerous and disruptive burdens. There are some circumstances in which some of these criticisms may perhaps have force. But the arguments advanced on behalf of the defendant do not face up to the fact that the present circumstances are very different from those to which the criticisms may have forceful application.

105 Cases that may arise when a vessel passes intentionally, or even unexpectedly, through territorial waters with which it has no other connection can be dealt with when they arise. It might or might not be the law, to be declared by this Court or the High Court, that the law of the flag applies where a ship is in territorial waters exercising, voluntarily or involuntarily, a right of innocent passage: but that need not be decided now. It is not necessary to decide whether the law of the flag would have applied if the plaintiff had not been injured while the unloading of coal was taking place, but just before that operation began, or just before the vessel was moored, or just before it reached the shore, or just before it entered the inner or the outer harbour at Port Kembla, or just after it entered the territorial sea. Issues of that kind can be dealt with when the factual context of a particular case makes it necessary to do so.

106 What must be decided in this case is what the outcome is in the particular circumstances of this case. The vessel on which the plaintiff was working had reached its destination. It was fulfilling the core purpose for which the voyage had been undertaken. It was unloading the imported coal onto New South Wales soil in a continuous process which could not be severed in any way, let alone at the moment when the coal passed the railing of the vessel. There was nothing accidental or adventitious or fortuitous about the presence of the vessel. It cannot be said that New South Wales, whose citizens were receiving the coal, had no concern with the presence of the vessel. It is difficult to see how anything in the nature of an onerous or disruptive burden would be created by applying New South Wales law. Assuming, though not deciding, that there is a valid distinction between “external torts” and “internal torts”, the conduct in the course of which the alleged tort was committed had an external characteristic, and was not limited to the internal workings of the vessel.

107 If an inquiry into the reasonableness of expectations is relevant, the expectation that New South Wales law would apply to the alleged tort would not be unreasonable, whether the relevant expectations be those of the citizens who make up the polity of New South Wales, or of the plaintiff, or of the defendant; and the contrary expectation is not conspicuously reasonable. That is so for several reasons. One is the continuous nature of the unloading operation. Another is its function in delivering coal onto New South Wales soil. Another turns on the possibility that shore-based labour (and indeed other persons from the shore) might come on board ship to assist the crew or for other purposes: the defendant conceded in oral argument that a tort of which such a person was a victim was a shore-based tort and the law of the littoral State would apply. The consequence is that a tortious act of a shipowner which injured a ship-based worker on the ship and a shore-based worker beside him might be governed by one law in relation to the former and another in relation to the latter. The defendant argued that the anomaly was cured by the certainty produced by its tests, for trade unions could negotiate with shipowners and charterers for better protection if they wished. There is a considerable lack of realism in this sub-Posnerian analysis. Another reason is the possibility that vessel-based labour like the plaintiff might from time to time leave the vessel to further the operation. In relation to that possibility, the defendant in oral argument conceded that an outcome under which the law applying to a worker injured by the conveyor system on board was the law of the flag, while the law applying to a worker injured by the convey system on land was the law of the littoral State was “a little arbitrary”, but said that those facts were not the facts of this case. They do, however, highlight a significant drawback to the defendant’s contention, and they nullify a primary criticism made by the defendant of the plaintiff’s solution, namely that it produces absurd, arbitrary and anomalous results contrary to commonsense: those charges fit the defendant’s position better. For it would be absurd, arbitrary, anomalous and contrary to commonsense if the law governing an injury suffered by a worker while trying to rectify a fault in the cross conveyor which dropped coal into the shore hopper was the law of the flag if his endeavours took place on board the vessel, but was the law of the littoral State if his endeavours took place after he had disembarked to get a better view of the problem from the shore hopper.

108 Similar anomalies exist with the example selected by the defendant in oral argument of a defective bottle of ginger beer consumed in Australia, New Zealand, Nauru or Hawaii. The defendant conceded that if the ginger beer was brought on board at each port the tort would be “external”. That radical differences should flow depending on whether the ginger beer had been loaded at the start of the voyage (which the defendant said created four internal torts governed by the law of the flag) or loaded afresh at each port of call (which the defendant said created four external torts governed by four different littoral laws) is not a result which encourages acceptance of the defendant’s test as one which will be anomaly-free.

109 A further anomaly could arise in relation to the tort of breach of statutory duty. It is common for statutes to lay down standards to be complied with by employers on pain of criminal sanctions; and for rights of civil recovery of damages to exist on proof of breach. The defendant rightly concedes that the owner of a vessel in the territorial sea could be prosecuted for a breach of an applicable criminal statute of New South Wales, but its argument denies that precisely the same conduct could be cognisable by a civil action in tort based on the same breach.

110 The defendant relied on Lord Carmont’s contention in MacKinnon v The Iberia Shipping Co Ltd 1955 SC 20 at 29 that a ship moored to a quay in a foreign harbour has little real connection with the law of the local State until something brought the ship or its master, crew or passengers into some relation with that State. That reliance fails on the facts of this case. Here something had brought the ship and its master and crew into some relationship with New South Wales. The master and crew were unloading coal from the ship onto the soil of New South Wales. The defendant submitted that the master and crew, in discharging employment relationships with the defendant, were “acting in a manner where the location of the act is in a sense quite arbitrary”, and the action of the plaintiff was “an action which one might consider whether the law of New South Wales or the parliament of New South Wales if it adverted to it, had any real concern with”. Whatever outcome that latter process might bring the inquirer to, it is wholly wrong to say that actions which are part of the process of unloading coal are actions the location of which is quite arbitrary. Coal is not routinely unloaded into the ocean – either the high seas or the territorial sea; it is routinely unloaded from ship to shore. That is a natural and real, not an arbitrary, relationship between the conduct during which the alleged tort was committed and the territory of New South Wales.

111 The defendant contended that its approach was supported by the argument of the pursuer in MacKinnon v The Iberia Shipping Co Ltd 1955 SC 20 at 29 that “even conceding the relevance of the law of the littoral State where there is some act done by those in charge of the vessel which affects the Government of the littoral State or its subjects, or indeed any person external to the vessel, yet, when everything takes place within the ship itself, there is no ground for invoking the law of the littoral State so as to displace the law of the flag”. Lord Carmont said he found that attractive. However, that contention too fails on the facts. Again, there was some act done by those in charge of the defendant’s vessel which affected the government and subjects of New South Wales – coal was being offloaded onto the soil of New South Wales in a continuous process which could not be severed naturally at the moment when the coal crossed the vessel’s railing.

112 In my opinion the primary judge was correct in concluding that the applicable law under the New South Wales choice of law rules was the law of New South Wales.

Other arguments

113 The plaintiff argued that it was not necessary to consider the problem in this case as a problem in the conflict of laws. He argued that the Interpretation Act 1987, s 59 provided that the written and unwritten law of New South Wales is to apply to coastal waters of the State, and that the law of tort was part of that law. The plaintiff also argued that New South Wales law applied on the basis that the law of the littoral State applies to internal or inland waters (including bays and harbours). The defendant, in response, contended that each submission begged the question of whether the law of New South Wales included its conflicts rules. In view of the conclusion that the primary judge was correct for another reason, it is not necessary to consider these arguments.

Cook v Cook

114 It is not necessary to examine whether the construction which the defendant gave to the passage in Cook v Cook (1986) 162 CLR 376 at 390 quoted earlier was correct. The defendant wavered in this regard. It said that all that mattered was the merit or weakness of any particular argument, quite independently of which court had employed it. Yet it was noticeable that the defendant, in its enthusiasm for particular arguments favourable to its position, constantly reminded the Court of the glamorous courts associated with them, like the United States Supreme Court, or the glamorous judicial names associated with them, like those of Jackson J and Frankfurter J, or even the glamorous academic names associated with them, like Kahn-Freund, Morris, Cheshire and North. The defendant also tended not to distinguish between, first, slogans, phrases and unsupported propositions of a character seemingly helpful to the defendant’s position; secondly, detailed arguments for a particular conclusion favourable to the defendant’s position (of which there were very few); and, thirdly, detailed arguments for a particular conclusion which were necessary to the decision in a particular case which were favourable to the defendant’s position (of which there were none). When dealing with cases apparently adverse to it, the defendant tended to read the scope of possible rationes decidendi in cases down remorselessly and distinguish the cases ruthlessly. When dealing with cases containing favourable statements, the defendant tended to gloss over the fact that those statements reflected common ground or a want of contrary argument. Arguably Cook v Cook must be understood as not glossing over the differences between passing dicta, considered dicta, and rationes decidendi; nor the difference between statements proceeding from highly experienced lawyers of good reputation in ultimate appellate courts and statements proceeding from other persons.

115 The defendant directed criticisms at the primary judge for not rejecting MacKinnon’s case by adopting a Cook v Cook approach, and propounded a ground of appeal specifically directed to the point. The criticisms were misplaced. In view of the quality of the court which decided MacKinnon’s case, the absence of contrary authority in the British Commonwealth, the fact that the United States cases are based on a process of statutory construction and a “proper law of the tort” theory which was not part of the intra-Australian conflict of laws, the general acceptance of MacKinnon’s case, though subject to criticism, as stating the law, and his own position as a primary judge, the primary judge did not err in not proceeding in the fashion in which the defendant contended Cook v Cook required. In fact his behaviour was entirely correct and legitimate: it was a model of what a primary judge should have done in the circumstances.

Forum non conveniens

116 The only two grounds of appeal apparently directed to this part of the primary judge’s reasoning and the consequential orders were:

“3. The Trial Judge erred in holding that the reference to ‘inappropriate forum’ in Part 10 rule 6A(2)(b) of the Supreme Court Rules meant ‘clearly inappropriate forum’. …

5. The Trial Judge erred in refusing to stay the proceedings.”

117 In paragraph [50] the primary judge suggested that the reference in Pt 10 r 6A(2)(b) to “inappropriate forum” meant “clearly inappropriate forum”. In written submissions prepared before the hearing of the appeal, the defendant said that suggestion was wrong. It maintained that position in oral argument. However, in Regie National des Usines Renault SA v Zhang (2002) 187 ALR 1 at [25] the majority said:

Voth

Voth v Manildra Flour Mills [Pty Ltd]

118 The primary attack by the defendant on the primary judge’s exercise of his discretion was that he allegedly erred in not selecting New Zealand law as the applicable law. For reasons given above, he did not in fact err in that respect. Though the defendant said in oral argument that it did not “surrender” on a contention that even apart from the choice of law question the forum was not convenient, it did not demur to a judicial suggestion that its position if the choice of law matter went against it was “pretty feeble”. The defendant did not distinctly identify any other relevant error, and in my opinion there was none.

Orders

119 The following orders are proposed.

1. The appeal is dismissed.

120 HODGSON JA: I agree with Heydon JA.

121 SANTOW JA: I agree in the conclusions reached by Heydon JA and in the reasons for them. I wish to add only these observations.

122 The majority judgment in the High Court in Regie National des Usines Renault SA v Zhang (2002) 76 ALJR 551 states (at [76]) by way of caveat that

lex loci delicti

123 This proposition in the present case directs attention first to whether indeed this is a “foreign tort” at all when, though it takes place wholly on board a vessel flying a New Zealand flag, that vessel is moored in the littoral waters of a New South Wales port and whilst unloading coal in a continuous ship to shore operation. In Zhang (supra) there was no real question but that the tort was indeed foreign; in New Caledonia where the car accident occurred. This was so, though there was incidental connection with France (where the car was manufactured) and Australia (where the Respondent lived); Kirby J at [100].

124 In the limited circumstances of the present case, Heydon JA has identified some of the anomalies that would result from applying the law of the flag instead of the law of the littoral territory. That in the present state of conflicting authority, would however be a slender basis for any safe prediction that the sum of such hard cases is likely to be greater by applying the former as a universal rule rather than the latter. Indeed for maritime torts, no universal rule may yet be safely essayed. Nor does Hodgson JA essay one. This is especially given the paucity of authority and the degrees of transience in a ship’s contact with the shore or its territorial waters, and the wide variety of purposes for such contact. These factors may tend against a simple universal rule, though that may be at the cost of commercial certainty. Given that complexity, it is certainly by no means self-evident, as the Appellant would have it, that the greater hardship must follow from failure to adopt its version of a universal rule of automatic deference to the law of the flag for torts on board ship, even when in territorial waters. In any event, as the High Court observed in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 539 [82],

“[B]ut for every hard case that can be postulated if one universal rule is adopted, another equally hard case can be postulated if the opposite universal rule is adopted”.

125 There is thus virtue in avoiding premature postulation of any universal rule in the present maritime context. This is so, despite the attractions of certainty. This is more especially when the reasonable expectations of the parties or the State do not point clearly in one direction for the variety of situations that would be encompassed. Then there is the natural inhibition upon an intermediate appellate court in circumstances not calling for such a declaration. Moreover, there is no need, because the present circumstances do clearly point to a paramount territorial connection. When the tort occurred, the ship was voluntarily in Australian territorial waters littoral to Port Kembla in New South Wales, and actually moored. The ship and indeed the Respondent were actually unloading coal for transport to shore, in course of which the tort occurred. The operation was a continuous one linking the ship to shore via the conveyor belt effecting the unloading. All this led the trial judge to hold that the injury was received in New South Wales as the locus delicti, being also the forum.

126 Thus without resorting to any now rejected notions of the proper law of the tort or of flexible exception (Pfeiffer [78] to [80], Zhang [73]), it is in accordance with those facts, and the more persuasive authority, to reach these conclusions:

(a) here New South Wales is not a clearly inappropriate forum, nor indeed an inappropriate forum, for the exercise of the jurisdiction over the dispute which this Court undoubtedly has;

(b) the question is the proper law to be applied, itself a matter of Australian choice of law rules ( Zhang [67]);

(c) the tort may be taken not to be a “foreign” tort, that is, foreign in being located on a New Zealand flag ship;

(d) even if it were so located and treated as foreign, contrary to the trial judge’s determination, Zhang itself places a caveat against its universal application to maritime torts;

(e) there is no compelling or persuasive basis, whether in public policy or authority, judicial or academic, to apply the law of the flag in present circumstances of substantial connection with the littoral territory, involving a maritime tort on a ship moored in port, engaged in a continuous unloading operation connecting it to that territory;

(f) for the reasons comprehensively analysed by Heydon JA, engaging in the process of analysing the comparative persuasiveness of the reasoning of competing authorities outside those of binding force for this Court ( Cook v Cook (1986) 162 CLR 376 at 390), leads to the application of the territorial law of New South Wales to a maritime tort so substantially connected to New South Wales rather than the law of the flag;

MacKinnon v The Iberia Shipping Co Ltd

“point conclusively to the locus delicti being the country having the territorial waters within which the ship was at the relevant time, and that it matters not … whether the vessel was navigating or at anchor … whether the events founded on as the basis of the delict or quasi delict are wholly internal to the vessel or partly external to it …”

127 It will be a matter for future cases and quite possibly the High Court to resolve the ultimate scope of application of the lex loci delicti to maritime torts. The present case points clearly enough to the law of the littoral territory, which here coincides with the law of the forum. This leaves for the future, torts occurring in contexts of more transient connection between ship and shore, and the territorial waters between, or between plane and territory overflown.

**********

Key Legal Topics

Areas of Law

Civil Procedure
Commercial Law
Negligence & Tort

Legal Concepts

Jurisdiction
Stay of Proceedings
Costs
Appeal

Actions

Download as PDF Download as Word Document

Citations

Union Shipping New Zealand Limited v Morgan [2002] NSWCA 124

Most Recent Citation

CMA CGM SA v Ship ‘Chou Shan' [2014] FCA 74

Cases Citing This Decision

26

Blunden v Commonwealth [2003] HCA 73

Blunden v Commonwealth of Australia [2003] HCATrans 262

Royal Caribbean Cruises Ltd v Rawlings [2022] NSWCA 4

Cases Cited

7

Statutory Material Cited

2

Chow Hung Ching v The King [1948] HCA 37

Commonwealth v Mewett [1997] HCA 29

CITATION:	Union Shipping New Zealand Ltd v Morgan [2002] NSWCA 124
FILE NUMBER(S):	CA 40379/01
HEARING DATE(S):	28 February 2002
JUDGMENT DATE:	14 June 2002
PARTIES :	Union Shipping New Zealand Ltd (Appellant) Sean Morgan (Respondent)
JUDGMENT OF:	Heydon JA at 1; Hodgson JA at 120; Santow JA at 121

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	SC 20273/00
LOWER COURT JUDICIAL OFFICER :	Sperling J

COUNSEL:	Mr A S Bell/Mr R D Glasson (Appellant) Mr J D Hislop QC/Mr J A Kernick (Respondent)
SOLICITORS:	Norton White (Appellant) Carroll & O'Dea (Respondent)
CATCHWORDS:	Conflict of laws - choice of law in tort - defendant company incorporated in New Zealand - plaintiff natural person resident in New Zealand - plaintiff employee of defendant - plaintiff suffering tortious injury during course of employment on defendant's barge - barge sailing under New Zealand flag - vessel wholly within Australian territorial waters - anchored in harbour unloading coal - whether law governing dispute Australian or New Zealand law - Conflict of laws - forum non conveniens - factors persuading court whether to dismiss Notice of Motion or to grant permanent stay of proceedings - Courts - precedent - doctrine of stare decisis - relevance of non-binding foreign authority where no binding authority obtains - D
LEGISLATION CITED:	Interpretation Act 1987 Private International Law (Miscellaneous Provisions) Act 1995
CASES CITED:	Boys v Chapman [1971] AC 356 Carr v Fracis Times & Co [1902] AC 176 Chow Hung Ching v R (1948) 77 CLR 449 Chung Chi Cheung v R [1939] AC 160 Commonwealth v Mewett (1997) 191 CLR 471 Cook v Cook (1986) 162 CLR 376 Cunard Steamship Co Ltd v Mellon 262 US 100 (1923) Far Eastern Shipping Co Ltd v Abrankin [1999] VSCA 107 Fisher v Agios Nicolaus V 628 F 2d 308 (1980) Hellenic Lines Ltd v Rhoditis 398 US 306 (1970) John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 Lauritzen v Larsen 345 US 571 (1953) M'Elroy v M'Allister 1949 SC 110 MacKinnon v The Iberia Shipping Co Ltd 1955 SC 20 McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 Machado v Fontes [1897] 2 QB 231 Owners of SS Reresby v Owners of SS Cobetas [1923] Sc LT 719 Phillips v Eyre (1870) LR 6 QB 1 Regie National des Usines Renault SA v Zhang (2002) 187 ALR 1 Romero v International Terminal Operating Co 358 US 354 (1959) Sayers v International Drilling Co NV [1971] 1 WLR 1176 The Arum [1921] P 12 The "Halley" (1868) LR 2 PC 193 The Lotus PCIJ, Series A, No 10 (1927) The Mary Moxham (1876) 1 PD 107 United States v Flores 289 US 137 (1933) Voth v Manildra Flour Mills [Pty Ltd] (1991) 171 CLR 538 Wildenhus' Case 120 US 1 (1887) Yorke v British & Continental Steamship Co Ltd (1945) 78 Ll L Rep 181
DECISION:	Appeal dismissed with costs

[2002] NSWCA 124

14 June 2002

Key Legal Topics

Areas of Law

Civil Procedure

Commercial Law

Negligence & Tort

Legal Concepts

Jurisdiction

Stay of Proceedings

Costs

Appeal