Facts: The plaintiff (Pl) (Morgan), was a member of the crew of a ship registered in NZ. NZ law governed the contract of employment. Pl suffered personal injury while unloading coal at the port at NSW. At the time of the accident, he was on the ship. Pl brought a negligence claim against the defendant (D), a NZ corporation, in the NSWSC. D applied for a stay of proceedings. The court assumed that, if NZ law applied in the present case, the Pl would not be entitled, by reason of a statutory bar under the NZ accident compensation scheme, to maintain a claim for damages at common law in NSW.
Issue: Where was the tort committed? Should AU or NZ law apply?
Held: The tort had been committed in NSW, and therefore D’s application was dismissed. From the perspective of AU private international law, it does not matter that there are very distinct connections with NZ. The law of foreign states applies to wrongs allegedly committed in their territorial waters.
Principle: Where a tort is committed on, and confined wholly within, a foreign ship moored and in the course of unloading operations at its port of destination, the place of commission of the tort is destination (so that destination is the governing law in respect of tort liability). However, there is a question over the applicable substantive law where a tort is committed on a foreign ship passing through a country’s territorial waters with which the ship has no other connection.