Oceanic SUN LINE Special Shipping CO INC v FAY, (1988 PDF

Preview

Summary

Download Oceanic SUN LINE Special Shipping CO INC v FAY, (1988 PDF

Description

Oceanic Sun Line Special Shipping Co Inc v Fay CaseBase | (1988) 165 CLR 197 | (1988) 79 ALR 9 | (1988) 62 ALJR 389 | [1988] HCA 32 | BC8802600

OCEANIC SUN LINE SPECIAL SHIPPING CO INC v FAY (1988) 79 ALR 9 Australian Law Reports · 52 pages HIGH COURT OF AUSTRALIA Wilson , Brennan , Deane , Toohey and Gaudron JJ 10 December 1987 — Canberra; , 30 June 1988 — Brisbane

Headnotes Practice and procedure — Stay or dismissal of proceedings — Inappropriate forum — Principles to be applied — Whether Siliada Maritime Corp v Cansulex Ltd [1987] 1 AC 460 to be followed in Australia — Whether selection of forum must be oppressive or vexatious — Whether plaintiff submitted to a foreign forum. . Contract — Formation and terms — Contract for carriage — Passenger on Greek cruise making booking and payment in Sydney — Ticket issued in Greece immediately prior to carriage — Whether conditions on ticket incorporated in the contract — Passenger injured — Whether agreement to sue only in Greece — Whether Supreme Court of New South Wales an inappropriate forum. . International law — Contract — Proper law of — Contract for carriage on cruise of Greek Islands — Whether made in New South Wales — Whether terms included submission to Greek court — Whether proceedings in New South Wales should be stayed or dismissed — Proper law for determination of — Inappropriate forum — Principles to be applied — Whether Siliada Maritime Corp v Cansulex Ltd [1987] 1 AC 460 to be followed in Australia . The respondent lived in Queensland, and engaged a Sydney travel agent to arrange an overseas trip. He was sent a brochure concerning a cruise of the Aegean Sea on the Stella Oceanis, which was a Greek vessel operated by the appellant, a company incorporated in Greece. The brochure included a declaration that the transportation of passengers was “governed by the terms and conditions printed on the passenger ticket contract which may be inspected at any Sun Line office”, but the respondent did not read this. His agent made a booking and paid the fare to the appellant's Australian agent and was given an “exchange order”, which was exchanged for a Sun Line ticket in Athens shortly before the cruise. The ticket contained conditions of which the respondent was unaware. Clause 13 required that any action against the carrier be brought only before the courts of Athens. During the cruise, the respondent was severely injured when a shot gun exploded during a shipboard entertainment of trapshooting. He commenced proceedings for damages in the Supreme Court of New South Wales. The appellant moved to set aside or stay the proceedings, but failed at first instance and before the Court of Appeal. On appeal to the High Court of Australia. Held, dismissing the appeal: (i) Per curiam: Clause 13 was not a term of the contract, since the contract was made when the exchange order was issued in Sydney, and the contract did not incorporate that clause. MacRobertson Miller Airline Services v Commissioner of State Taxation (WA) (1975) 133 CLR 125 ; 8 ALR 131 , distinguished Olley v Marlborough Court [1949] 1 KB 532 ; Daly v General Steam Navigation Co Ltd (The “The Dragon”) [1979] 1 Lloyd's Rep 257 ; Hood v Anchor Line (Henderson Bros) Ltd [1918] AC 837 ; McCutcheon v David MacBrayne Ltd [1964] 1 WLR 125 ; Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163 ; Hollingworth v Southern Ferries Ltd [1977] 2

Page 2 of 34 OCEANIC SUN LINE SPECIAL SHIPPING CO INC v FAY Lloyd's Rep 70 ; Huddart Parker Ltd v The Ship Mill Hill (1950) 81 CLR 502 , referred to

(1988) 79 ALR 9 at 10 Observations by Wilson, Brennan, Toohey and Gaudron JJ on whether Greek law was the proper law of the contract. Bonython v Commonwealth [1951] AC 201 ; Compagnie d'Armement Maritime SA v Compagnie Tunisienne de Navigation SA [1971] AC 572 ; Amin Rasheed Shipping Corp v Kuwait Insurance Co [1984] AC 50 , referred to (ii) Per Brennan, Deane and Gaudron JJ (Wilson and Toohey JJ dissenting): The proceedings should not be dismissed or stayed on inappropriate forum grounds, since the invocation of jurisdiction was not oppressive or vexatious or otherwise in abuse of process. Per Brennan J: The formulation of Scott LJ in St Pierre v South American Stores (Gath & Chaves) Ltd [1936] 1 KB 382 at 398 should remain the law of this country, and “oppressive” and “vexatious” should be understood according to their ordinary meaning. Per Deane J (Gaudron J agreeing): Those words should be read as describing and characterising the objective effect, on balance, of a continuation of the particular forum as the venue of the proceedings rather than as describing the conduct of the plaintiff in selecting or persisting with that forum. “Oppressive” should be understood as meaning seriously and unfairly burdensome, prejudicial or damaging, while “vexatious” should be understood as meaning productive of serious and unjustified trouble and harassment. Maritime Insurance Co Ltd v Geelong Harbor Trust Commissioners (1908) 6 CLR 194 ; St Pierre v South American Stores (Gath & Chaves) Ltd [1936] 1 KB 382 , followed Spiliada Maritime Corp v Cansulex Ltd [1987] 1 AC 460

, not followed

Cope Allman (Australia) Ltd v Celermajer (1968) 11 FLR 488 ; The Atlantic Star [1974] AC 436 ; MacShannon v Rockware Glass Ltd [1978] AC 795 ; The Abidin Daver [1984] AC 398 ; de Dampierre v de Dampierre [1988] 1 AC 92 ; Logan v Bank of Scotland (No 2) [1906] 1 KB 141 ; Peruvian Guano Co v Bockwoldt (1883) 23 Ch D 225 ; Piper Aircraft Co v Reyno (1981) 454 US 235 , referred to Appeal This was an appeal to the High Court of Australia from a decision of the Court of Appeal of the Supreme Court of New South Wales.

MATTHEW SMITH BARRISTER K Handley QC and A R Ashburner for the appellant. A M Gleeson QC, R Stitt QC and R S McColl for the respondent. Cur Adv Vult

Wilsonand Toohey JJ.

Page 3 of 34 OCEANIC SUN LINE SPECIAL SHIPPING CO INC v FAY

This is an appeal against a decision that the respondent's action against the appellant in the Supreme Court of New South Wales not be stayed. The decision is interlocutory in character. It is an unfortunate example of a case where, as Lord Templeman said in Spiliada Maritime Corp v Cansulex Ltd [1987] 1 AC 460 at 464 , the parties “have chosen to litigate in order to determine where they shall litigate”. It involves findings that are necessarily provisional because all the evidence has not yet been heard. It does not answer the questions of substance between the parties. On the other hand, the issues raised by the appeal are important for this is the first occasion on which this court has been asked

(1988) 79 ALR 9 at 11 to decide whether it will follow recent decisions of the House of Lords in relation to the doctrine of forum non conveniens In June 1983 the respondent was a passenger on a Greek ship, the MS Stella Oceanis, during a cruise of the Aegean Sea. He received serious injuries while taking part in trapshooting on board the ship. At that time the ship was sailing in Greek waters. The respondent is and was, at all material times, a resident of Queensland. The appellant is a company incorporated in Greece. Together with another company, it conducts Mediterranean cruises on its ships under the name “Sun Line Cruises”. On 10 September 1985 the respondent began proceedings against the appellant in the Supreme Court of New South Wales, claiming damages for negligence. He obtained leave to serve his statement of claim upon the appellant at its principal place of business in Athens. Leave was granted pursuant to Pt 10, r 2(2) of the Supreme Court Rules (NSW), the basis being Pt 10, r 1(e) as it then stood — “where the proceedings are founded on, or are for the recovery of, damage suffered wholly or partly in the State caused by a tortious act or omission wherever occurring”. Service was effected on the appellant which entered a conditional appearance. By notice of motion the appellant sought to have the statement of claim set aside or struck out for lack of jurisdiction in the Supreme Court of New South Wales, alternatively that service of the statement of claim be set aside and, as a further option, that the proceedings be stayed. The appellant made a submission that Pt 10, r 1(e) was invalid as being outside the legislative competence of the Parliament of the State of New South Wales. Having regard to the decision of the Court of Appeal in Flaherty v Girgis (1985) 4 NSWLR 248 (appealed from to this court, but on another ground: see (1987) 162-CLR 574; 71 ALR 1), the submission was formal only and it was rejected. Effectively the only question before Yeldham J, the primary judge, was whether the action brought by the appellant against the respondent should be stayed. His Honour declined to order a stay and, on appeal, his decision was upheld. The appeal to this court does not raise any question of the validity of the rule. Underlying the submissions of counsel was a question as to when and where a contract of carriage was made between the parties and the terms thereof. Yeldham J and the majority in the Court of Appeal (Glass and McHugh JJA; contra Kirby P) held that such a contract was made in Sydney. Yeldham J concluded that it was made when the appellant's agent received the balance of money due to it and issued an exchange order entitling the respondent to obtain a ticket from the appellant in Greece, before boarding the ship. The majority in the Court of Appeal thought that a contract may have come into existence at an earlier time but in any event no later than the issue of the exchange order. We agree with Yeldham J's conclusion in this regard which in any event was a view shared by the Court of Appeal; our reasons require consideration of the circumstances surrounding the respondent's participation in the tour and analysis of the documentation issued by the appellant. In 1983 the respondent and his wife made arrangements to travel to Europe. The arrangements were made by the respondent's mother-in-law, Mary Rossi, who was the proprietor of a Sydney travel agency known as Mary Rossi Travel. Mary Rossi Travel was organising a luxury tour of Europe and the respondent and his wife decided to join the tour, but only

(1988) 79 ALR 9 at 12 for that section involving a cruise of the Greek islands on the Stella Oceanis. The respondent's wife went to Sydney from time to time to make the travel arrangements. She brought back a brochure containing information about “Sun Line 1983 Summer Cruises” to the Greek islands and she showed the respondent the cabin which had been booked for them. The respondent read the brochure only casually and in particular did not read any of the material printed inside the back cover under the heading “Things To Know Before You Go”. On 30 March 1983 a deposit was paid to Mary Rossi Travel and in turn to JMA Tours which was the general sales agent for Sun Line Cruises. On 7 April JMA Tours raised an invoice against Mary Rossi Travel for the cost of the respondent and his wife's cruise on the Stella Oceanis. The invoice identified their cabin as A24. On or about 27 April 1983 the respondent and his wife went to Sydney where they paid Mary Rossi Travel the balance due for their overseas trip, including the Greek islands section of the tour. On the day following they flew to London and on 28 May they met up with Mrs Rossi and members of the tour group in Athens. Before the respondent left Australia, he received an exchange order for the Stella Oceanis cruise portion of the tour. He received this document in exchange for payment to JMA Tours of the cost of the tour. On 28 May Mrs Rossi went to the Sun Line office in Athens where she presented the exchange vouchers on

Page 4 of 34 OCEANIC SUN LINE SPECIAL SHIPPING CO INC v FAY behalf of her tour members and received passage tickets, boarding passes and luggage labels. In accordance with her usual practice as tour leader, she held on to the tickets and presented them when the members of her party boarded the Stella Oceanis on 30 May. It is necessary to say something more about the documents received by the respondent, both for the purpose of determining when a contract was made and also to identify relevant terms of that contract. First, however, it should be mentioned that the exchange order received by the respondent was not issued directly by Mary Rossi Travel. Rather, it along with other exchange orders was issued in Sydney to Mary Rossi Travel by JMA Tours. There was evidence from the general manager of JMA Tours that until 1980 or thereabouts that organisation held stocks of Sun Line Cruise tickets and issued those tickets in Sydney. Thereafter tickets were not made available to JMA Tours by Sun Line Cruises and exchange vouchers were issued to Mary Rossi Travel and, no doubt, to other travel agents. According to the general manager, “There was no other documentation required by Sun Line Cruises other than the exchange vouchers.” The brochure which was given to the respondent's wife in Sydney before the booking was made is a glossy magazine of more than 30 pages, with many photographs and details of places involved in the appellant's cruises. It has details of cabins and their cost together with other information of a general nature relating to ships, crews and activities. On the inside of the back cover of the brochure, under the heading “Things To Know Before You Go”, is information about cancellations and refunds, alterations to the itinerary, port taxes, baggage liability and the like. The information commences with the words, “The attention of passengers is drawn to the general conditions of transportation set out in the passage contract.” Under the heading “Responsibility” is a statement that “the transportation of passengers and baggage … is governed by the terms and conditions printed on the passenger ticket contract which may be inspected at any Sun

(1988) 79 ALR 9 at 13 Line office. Passenger's acceptance of that ticket constitutes agreement of those terms and conditions.” As already mentioned, no tickets were available in Sydney and none was received by the respondent until after arrival in Greece. It is unclear whether there was a “Sun Line office” in Australia. In the course of argument, counsel for the respondent contended that the appellant carried on business at the office of JMA Tours in Sydney. This was the first time that such a contention had been advanced in the course of the proceedings. In disputing its correctness, counsel for the appellant replied that no attempt was made to serve process on the appellant in Sydney and that leave was sought and obtained to effect service in Greece. The relationship between the appellant and JMA Tours does not appear to have been explored before Yeldham J. His Honour proceeded on the basis that the appellant did not carry on business in Australia. We consider we must do the same. It is not in issue that Mrs Rossi received the ticket on behalf of the respondent. The relevant exchange order set out the name of the ship, sailing date, time of sailing and of embarkation, ports of departure and arrival, names and cabin number, fare charged, nationality of the respondent and his wife, their sex and the fact that they were adults, total passage fare, port taxes and the full amount paid. It contained the following statement: CANCELLATION OF CRUISES OR ALTERATION OF ITINERARY

Article 2 of the Sun Line passage specifies that in the event of the passenger cancelling his passage or not using it for the sailing for which it was issued, passage money will NOT be refunded. ONLY IF space released is resold will the passage money be refunded. Sun Line reserves the right to cancel any cruise, in which case the passage money will be refunded. Sun Line also reserves the right to alter the itinerary of any cruise if this should become necessary or desireable [sic] for any reason. Times of arrival and departure at the various ports of call are given as a general guide, but no guarantee can be given that they will be adhered to. This order will be exchanged for a Sun Line ticket when boarding vessel.

The passage ticket and contract is a document of several pages. It has on its face the words “Passage Ticket and Contract” together with the injunction “Each passenger should carefully examine this ticket, particularly the conditions printed on pages 1, 2, 3 and 4 of its inside covers especially as regards limitation of liability, adjustment of fare rates etc.” The ticket itself is a simple document, roughly comparable in form and content to the exchange order. There are very detailed “General Conditions” asserting that the terms and conditions referred to in “this ticket” and set forth on pp 1–4, “to which passenger expressly agrees”, apply to and govern the relations between the passenger on the one hand and the carrier, master, vessel, owner, officers and crew and agents on the other. There is a notice: “The passenger's attention is particularly directed to the terms and limitations of this contract.” The general conditions contain many references to “this passage contract”. Clause 12(a) provides various exemptions from liability in respect of bodily injury and cl 12(f) limits any amount recoverable to US$5000. Clause 13 reads in part:

Page 5 of 34 OCEANIC SUN LINE SPECIAL SHIPPING CO INC v FAY Notwithstanding anything to the contrary contained herein, any action against the carrier must be brought only before the courts of Athens Greece to the jurisdiction of which the passenger submits himself formally excluding the jurisdiction of all and other court or courts of any other

(1988) 79 ALR 9 at 14 country or countries which court or courts otherwise would have been competent to deal with such action.

Clause 16 contains this “acknowledgment”: “The passenger admits having read this passage contract and agrees that its provisions constitute the complete agreement between the carrier and said passenger.” When Mary Rossi Travel paid to JMA Tours a deposit on behalf of the respondent, there was an offer by the latter to secure a passage on a particular Sun Line cruise. Whether a contract of carriage thereupon came into existence is doubtful, although the invoice of 7 April 1983 is headed “Final Invoice and Confirmation”. But the parties did enter into such a contract once payment of the balance was made and an exchange order was issued. In the ordinary course a ticket would, at that stage, have issued to the respondent. For reasons connected no doubt with the appellant's administration, no tickets were available in Sydney. Nevertheless the exchange order constituted a contract made between the parties whereby in consideration of money paid by the respondent the appellant allocated to him an identified cabin on an identified cruise. It is true that by the exchange order the appellant reserved “the right to cancel any cruise, in which case the passage money will be refunded”. On the other hand, “in the event of the passenger cancelling his passage … passage money will NOT be refunded. ONLY IF space released is resold will the passage money be refunded.” These may have been terms of the contract made between passenger and shipper; they did not prevent a contract from coming into existence. Whether the right to “cancel” a cruise was one that could be exercised arbitrarily or whether it was subject to some implication of reasonableness it is unnecessary to dwell upon. But a right in one party to determine a contract, even though there has been no breach by the other party, is by no means uncommon: see Anson's Law of Contract, 26th ed (1984), p 438. If a contract of carriage was not concluded before the respondent left Australia then it must follow that, notwithstanding that the entire passage money had been paid and that a particular cabin on a particular vessel had been allocated to him for a specified cruise and that although nothing remained for him to do except to present himself in Athens with the exchange order, the appellant came under no obligation to carry him until he did so. Such a construction of the circumstances flies in the face of common sense and cannot be accepted. When he left Australia the respondent had a contractual right to receive from the...