Union Shipping New Zealand Ltd v Morgan [2002] NSWCA 124

Procedural Posture

Appeal Concerning Choice of Law in Tort and Forum Non Conveniens in Personal Injury Proceedings / Appeal by Leave From Orders Dismissing the Defendant's Notice of Motion Seeking to Set Aside Service, Dismiss the Proceedings, or Permanently Stay the Proceedings

Legal Issues

1. 1 ["Whether the applicable law for the plaintiff's alleged tortious injury on a New Zealand-registered barge moored in Port Kembla and unloading coal was New South Wales law or New Zealand law as the law of the flag." 'Whether the Supreme Court of New South Wales was an inappropriate or clearly inappropriate forum for the proceedings.' 'Whether the primary judge erred in following MacKinnon v The Iberia Shipping Co Ltd 1955 SC 20 and in declining to prefer United States authority and academic criticism concerning the law of the flag.']

Ratio Decidendi

Because the barge had reached its destination, was moored in Port Kembla, and was unloading coal onto New South Wales soil in a continuous ship-to-shore process when the respondent was allegedly injured, the applicable choice of law rule selected New South Wales law as the law of the littoral State rather than New Zealand law as the law of the flag. Once New South Wales law applied, and in the absence of demonstrated practical prejudice or other appellable error, New South Wales was not an inappropriate or clearly inappropriate forum. The appeal was therefore dismissed.

Court Disposition

Appeal dismissed with costs.

Orders

• ['The appeal is dismissed.' "The appellant is to pay the respondent's costs of the appeal."]