Oceanic Sun Line Special Shipping Company V. Fay Notes

Oceanic Sun Line Special Shipping Company v. Fay

Facts

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

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

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

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

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

Holding

Wilson and Toohey JJ (Minority)

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

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

Spiliada applies in Australia

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

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

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