CMA CGM SA v Ship 'Chou Shan' [2014] FCAFC 90

CMA CGM SA v Ship 'Chou Shan' [2014] FCAFC 90

The appeal was dismissed because the primary judge did not err in principle or in discretion: Australia was, in the circumstances, a clearly inappropriate forum to litigate the dispute, largely due to the predominant connection with China, the risk of inconsistent findings in parallel proceedings, and the fact that all relevant interests and proceedings were already comprehensively before the Chinese court. While juridical advantage in Australia (greater security) was acknowledged, it was not sufficient to displace the conclusion that Australia was a clearly inappropriate forum. The correct legal test was applied and key relevant factors were weighed appropriately.

Parties
First Appellant: CMA CGM SA; Second Appellant: PROVENCE SHIPOWNER 2008-1 LTD; First Respondent: THE SHIP 'CHOU SHAN'; Second Respondent: ROCKWELL SHIPPING LIMITED
Jurisdiction
Australia
Judgment Date
01 August 2014
Procedural Posture
Appeal / Judgment on Appeal With Reasons
Outcome
Appeal dismissed; orders made for costs against the appellants.
Legal Topics
Forum Non Conveniens, Admiralty in Rem Proceedings, Maritime Liens, Stay of Proceedings, Juridical Advantage, Lex Causae in Maritime Torts
Admiralty Practice and Procedure Conflict of Laws Forum Non Conveniens Admiralty in Rem Proceedings Maritime Liens Stay of Proceedings Juridical Advantage +1 more

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Parties

CMA CGM SA

First Appellant

PROVENCE SHIPOWNER 2008-1 LTD

Second Appellant

THE SHIP 'CHOU SHAN'

First Respondent

ROCKWELL SHIPPING LIMITED

Second Respondent

Procedural Posture

Appeal / Judgment on Appeal With Reasons

Legal Issues

  1. 1 Whether the Federal Court of Australia is a 'clearly inappropriate forum' for the proceedings regarding the collision between ships in China's EEZ
  2. 2 Whether the primary judge applied the correct legal test when granting a stay of the Australian proceedings in favour of proceedings in China
  3. 3 Role and weight of juridical advantage (especially security for claims) in the context of forum non conveniens in Australian law

Ratio Decidendi

The appeal was dismissed because the primary judge did not err in principle or in discretion: Australia was, in the circumstances, a clearly inappropriate forum to litigate the dispute, largely due to the predominant connection with China, the risk of inconsistent findings in parallel proceedings, and the fact that all relevant interests and proceedings were already comprehensively before the Chinese court. While juridical advantage in Australia (greater security) was acknowledged, it was not sufficient to displace the conclusion that Australia was a clearly inappropriate forum. The correct legal test was applied and key relevant factors were weighed appropriately.

Court Disposition

Appeal dismissed; orders made for costs against the appellants.

Orders

  • Leave to appeal granted in terms of the Draft Notice of Appeal dated 17 March 2014.
  • Appeal dismissed.