Topic – Foreign Jurisdiction Clause , Law of the Forum, CISG case
Facts –
Husband and wife on ship.
Mrs. V (American) was chief stewardess and her husband was chief engineer (South African).
Husband died in front of wife due to accident. Ship was registered in Australia and owned by 2 NSW parties and a party in Jersey.
Mrs Venter and Ilona settled after argument about where the accident occurred
This was important: would determine applicable law
If on high seas, then use law of flag state (ie Australian law), but if in Thailand, apply Thai law (under which limitation period had expired).
Under Australian law, 3 year limitation period
Ds then sought to join D manufacturer and installer of helipad hatch (German Co (MDE))
MDE sought permanent stay on proceedings, pointing to K with owners requiring any claim against it to be made in Bochum, Germany. But this was contained in terms and conditions that were referred to, but not attached to, the quotation (which Illona argued was ‘the’ contract).
Issue –
Whether forum non conveniens i.e. was NSWSC clearly inappropriate forum per Oceanic?
Which law was appropriate (NSW, German or Thai?).
Judgement
Established fact: yacht was in Thai waters at time of accident.
Here, German jurisdiction clause contractually bound parties to resolve disputes arising out of the contract in Germany.
The contract was made in Europe and to be governed by German Law.
No part of the contract was purported or actually performed in Australia.
Respondent failed to establish compelling reasons for requiring proceedings to be heard before NSWSC rather than Germany.
Therefore, stay of proceedings ought to be granted having regard to all relevant factors
Court followed Fay, which held that whether terms of condition of trading were part of the contract were to be determined by the forum.
Under NSW Law, terms did not need to be physically attached to the contract to bind parties; but German Professor explained that, under German Law, “Terms and Conditions of Trading” probably did need to be attached to the manufacturer’s quotation in order to bind.
If parties include in contract a foreign jurisdiction clause, courts have ‘firm disposition’ to hold parties to bargain, unless party arguing proceedings should be heard can provide strong reasons against doing so.
Owners’ cross claim was stayed. But might have been different if Mrs Venter had not settled (i.e her involvement might have been a ‘strong reason’.
