Facts: In 2013, Chou Shan (CS, registered in Panama), a bulk carrier on voyage to AU, collided with CMA CGM Florida (CCF, registered in UK) in East China Sea. This resulted in oil/fuel spill and damage to cargo. After the collision, both boats went to ports in China. Chinese authority did the clean-up. Both ships were required to pay security to Chinese authority for claims for pollution clean-up costs and damage to fisheries. Various proceedings commenced in China. CS then travelled to WA and was “arrested” there. The claimants in these FCA (WA) proceedings were the owner and operator of CCF, and were domiciled in the Marshall Island, France and Ireland.
Held: ‘In a legal environment governed by Voth where a plaintiff had a legitimate advantage in an Australian limitation of liability regime in the enforcement of a maritime lien claim, in circumstances where the risk of inconsistent findings in parallel proceedings could be eliminated, or at least significantly ameliorated, it might be difficult to conclude that the Federal Court was a clearly inappropriate forum.’
Factors in favour of stay
No connection with AU, except that proceedings brought in AU and arrest in AU waters
Chinese law applied
Chinese proceedings timely commenced and on foot (risk of inconsistent findings)
Evidence already collected by Chinese authority
Factors against stay:
P had prima facie right to insist upon exercise of AU court’s jurisdiction
If stay granted, CCF would lose legitimate judicial advantage (greater financial security in AU)
If stay not granted, CCF pledged to withdraw their claim in China, so no lis pendens with respect to their claim