Lloyd's Maritime and Commercial Law Quarterly

Professor Francis D Rose

Document

AUSTRALIAN MARITIME LAW

Martin Davies*

CASES

1. CMA CGM SA v Ship Chou Shan 1

Admiralty procedure—collision in China’s EEZ—parallel proceedings in Australia and China—forum non conveniens stay

Two ships, CMA CGM Florida and Chou Shan, collided in China’s Exclusive Economic Zone (“EEZ”), causing damage to both. CMA CGM Florida was registered in the UK and was owned by a French company. Chou Shan was registered in Panama and was owned by a company domiciled in the Marshall Islands. The owner of CMA CGM Florida commenced proceedings against Chou Shan in the Federal Court of Australia, and eventually had the latter ship arrested in Port Hedland, in Western Australia. After the Australian writ was issued, the owner of Chou Shan commenced limitation proceedings in China. It then applied for a forum non conveniens stay of the Australian proceedings, which was granted. The owner of CMA CGM Florida appealed to a Full Court of the Federal Court of Australia.

Decision: Appeal dismissed.

Held: (1) A forum non conveniens stay of Australian proceedings should be granted only if the court can be persuaded that it is a “clearly inappropriate forum” in the circumstances.2 This is so even when there are parallel proceedings on the same subject matter in another country.3

(2) The judge at first instance had held that China was the “natural and obvious forum” for all disputes relating to the collision, which had occurred in China’s EEZ. Although the phrase “natural forum” is often used as shorthand for the “more appropriate forum” test adopted by the House of Lords in Spiliada Maritime Corp v Cansulex Ltd 4 but rejected by the High Court of Australia in Voth v Manildra Flour Mills Ltd,5 the judge’s use of the phrase “natural and obvious forum” did not mean that he had applied the wrong test (Spiliada rather than Voth). The question whether another country is the “natural forum” is relevant to the assessment of whether Australia is a clearly inappropriate forum.

* Admiralty Law Institute Professor of Maritime Law, Tulane University Law School; Director, Tulane Maritime Law Center; Professorial Fellow, Melbourne Law School.

1. (2014) 224 FCR 384; 311 ALR 234.

2. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; Puttick v Tenon Ltd (2008) 238 CLR 265.

3. Henry v Henry (1996) 185 CLR 571.

4. [1987] AC 460.

5. (1990) 171 CLR 538.

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