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Oceanic Sun Line Special Shipping Company V. Fay Notes

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FACTS In June 1983 the respondent was a passenger on a Greek ship, the M.S. Stella Oceanis,
during a cruise of the Aegean Sea. He received serious injuries while taking part in
trap shooting on board the ship. At that time the ship was sailing in Greek waters. The
respondent is and was, at all material times, a resident of Queensland. The appellant is
a company incorporated in Greece. Together with another company, it conducts
Mediterranean cruises on its ships under the name "Sun Line Cruises". On 10 September 1985 the respondent began proceedings against the appellant in the
Supreme Court of New South Wales, claiming damages for negligence. He obtained
leave to serve his statement of claim upon the appellant at its principal place of
business in Athens. Leave was granted. By notice of motion the appellant sought to have the statement of claim set aside or
struck out for lack of jurisdiction in the Supreme Court of New South Wales,
alternatively that service of the statement of claim be set aside and, as a further
option, that the proceedings be stayed. The information commences with the words, "The attention of passengers is drawn to
the General Conditions of transportation set out in the Passage Contract." Under the
heading "Responsibility" is a statement that "(t)he transportation of passengers and
baggage ... is governed by the terms and conditions printed on the Passenger Ticket
Contract which may be inspected at any Sun Line office. Passenger's acceptance of
that ticket constitutes agreement of those terms and conditions." As already
mentioned, no tickets were available in Sydney and none was received by the
respondent until after arrival in Greece. Clause 13 reads in part: "Notwithstanding anything to the contrary contained herein,
any action against the Carrier must be brought only before the courts of Athens
Greece to the jurisdiction of which the Passenger submits himself formally excluding
the jurisdiction of all and other court or courts of any other country or countries
which court or courts otherwise would have been competent to deal with such action." HOLDING WILSON AND TOOHEY JJ (MINORITY) Contract came into existence in Sydney: For reasons connected no doubt with the
appellant's administration, no tickets were available in Sydney. Nevertheless the
exchange order constituted a contract made between the parties whereby in
consideration of money paid by the respondent the appellant allocated to him an
identified cabin on an identified cruise. It is true that by the exchange order the
appellant reserved "the right to cancel any cruise, in which case the passage money
will be refunded". On the other hand, "in the event of the passenger cancelling his
passage ... passage money will NOT be refunded. ONLY IF space released is resold
will the passage money be refunded." These may have been terms of the contract

made between passenger and shipper; they did not prevent a contract from coming
into existence. Jurisdiction clause on the ticket is not effective: Once it is accepted that there was a
contract of carriage concluded between the parties in Sydney, there are formidable
obstacles in the path of the appellant's argument that the conditions on the ticket and
in particular the submission to Greek jurisdiction formed part of that contract.
Yeldham J. was surely right in his view "that the brochure was not contractual in
nature and did not enter into or form any part of the relevant contract of carriage".
Essentially it was a document designed to interest would­be travellers in the
appellant's cruises to various parts of the Mediterranean. It contained much that was
of historical and geographical interest as well as displaying the facilities that were
available to those participating in the cruises. It was advertising material, available to
any one. Its reference under "Things To Know Before You Go" to the transportation of
passengers being governed by the terms and conditions printed on the passenger ticket
contract was informative but not contractual (cf. Hollingworth v. Southern Ferries
Ltd. (The "Eagle") (1977) 2 Lloyd's Rep 70, at pp 75­77). And it was expressed in the
context that the ticket contract "may be inspected at any Sun Line office". Such a
statement was not particularly helpful if, as may have been the case, there was no Sun
Line office in Australia. Spiliada applies in Australia We agree with Lord Goff's approach in Spiliada. In our view the evolution of English
law since The Atlantic Star cannot be ascribed to local considerations such as the
incorporation of the United Kingdom into the European Economic Community.
Rather, this century has witnessed such a transformation in communications and
travel, coupled with a greater importance attaching to considerations of international
comity as the nations of the world become more closely related to each other, as to
render the St. Pierre principle, fashioned as it was in the nineteenth century,
inappropriate to modern conditions. In this regard we agree with the views expressed
by Kirby P. in the Court of Appeal. The St. Pierre principle places such a tight rein on
the discretion of a court as to render it unable to deal justly with the problem of forum
shopping, even in blatant cases. Furthermore, in an area of the law involving the courts of other countries it is
expedient to preserve as much consistency as possible between the common law
countries. The doctrine of forum non conveniens has long formed part of the law of
Scotland and of the United States of America. It is now the law of England. It would
seem to be the law of Canada: see, for example Antares Shipping Corp. v. The Ship
"Capricorn" (1976) 65 DLR (3d) 105; Bonaventure Systems Inc. v. Royal Bank of
Canada (1986) 32 DLR (4th) 721; cf. Rogers v. Bank of Montreal (1984) 4 DLR (4th)

507. We are unaware of any recent consideration of the question in the courts of New
Zealand. In our view, the Spiliada approach should henceforth chart the course for the
common law of Australia in relation to the inherent jurisdiction of a court to stay
proceedings when there is a more appropriate forum in a foreign country. Likewise, we think that the reasoning of Lord Goff (at pp 480­482 in Spiliada) in
drawing attention to a marked resemblance between the principles applicable in forum

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