Venter v Ilona MY Ltd; Ilona MY Ltd v MD Engineering Gesellschaft mit bescharänkter Haftung

defendant) File Number(s): SC 2009/287072

Judgment 1These proceedings concern the death at sea of Christiaan Johannes Venter ("Mr Venter") who was employed as chief engineer of the MY Ilona ("the Ilona"). The late Mr Venter was the husband of the plaintiff, Mrs Rachel Morrison Venter ("Mrs Venter"), who was employed on the Ilona as chief stewardess. Mr Venter was South African and Mrs Venter is a citizen of the United States. 2The Ilona was, and is, owned by Ilona MY Ltd ("IMYL") (first defendant), Shann Holdings Pty Ltd, formerly known as Louwex (Hilarium) Pty Ltd ("Hilarium") (second defendant), and Bilon Pty Ltd, formerly known as Louwex (Ilona) Pty Ltd ("Louwex") (third defendant) (these parties are hereafter collectively referred to as "the Owners"). IMYL is a company registered in St Helier, Jersey. Hilarium is a company registered in New South Wales. Louwex is a company registered in New South Wales. The Ilona is registered in the Australian Register of Ships. 3The Ilona is a 74 metre cruising motor yacht. It carries on board its own helicopter which is normally stowed below deck in a hangar area but which, by means of a hydraulic hoist fitted to the ship, can be elevated from the hangar area to the aft deck level for take-off. 4The tragic accident with which these proceedings are concerned occurred, it was alleged by Mrs Venter, as a result of a malfunction of the hatch covers over the hangar area or its control or safety mechanism, which led to Mr Venter being crushed by the descending portside hatch cover. 5Mrs Venter claimed that the loss of life of her husband arose as a consequence of: (1)a defect in the ship or in the apparel or equipment of the ship; (2)an act or omission in the management of the ship; (3)a failure to prepare the ship to ensure the seaworthiness of the ship for the voyage and to keep the ship in a seaworthy condition; (4)a failure to ensure that the ship was not substandard; (5)a fault of the ship; and (6)the negligence of the Owners. 6Mrs Venter claimed that Mr Venter suffered loss of life whilst carrying out his duties on the Ilona and that as a result of the death of her husband she has suffered depression and pathological grief reaction for which she is entitled to compensation. She also brought a claim pursuant to the Compensation to Relatives Act 1897 on her own behalf as spouse of Mr Venter. 7The defendants have joined as cross defendant the manufacturer of the hoist known as the "Heli-lift system", MD Engineering Gesellschaft mit bescharänkter Haftung ("MDE"), a German company. MDE resisted joinder to the suit and claimed the benefit of an exclusive jurisdiction clause requiring, it submitted, any claim against it to be made in Bochum, Germany. The notice of motion, by which MDE sought to have set aside service of the cross claim by which they have been joined, was set down for hearing in April 2011. The hearing of that notice of motion commenced but, given the reliance by MDE on terms and conditions, translation of which had only been proffered very late and which translation was different in material respects to that which had previously been supplied by MDE's lawyers and accepted by the Owners' lawyers, there was agreement that the motion could not proceed. The motion was stood over generally in the proceedings at the request of the Owners and MDE. 8In March this year I heard the agreed preliminary issues in the case between Mrs Venter and the Owners. I reserved my decision and Mrs Venter and the Owners were advised on 13 April 2012 that judgment would be handed down on 19 April 2012 at 10.00am. Late in the afternoon of 18 April 2012, my Associate was advised that the case had been settled and that terms would be handed up the following day. On the following day, the Court was informed that the matter had been settled only as between Mrs Venter and the Owners. 9The Owners now wish to pursue their cross claim against MDE and leave was granted to the Owners to amend their cross claim to take into account the fact of settlement with Mrs Venter. Accordingly MDE wished to now have heard its notice of motion filed on 16 December 2010. 10MDE seeks in its notice of motion orders: "1. declaring that the Court has no jurisdiction over the cross defendant in respect of the subject matter of the proceedings, including the first cross claim; 2. further and in the alternative to order 1 above, declining to exercise jurisdiction in the first cross claim; 3. setting aside the first cross claim; 4. in the alternative, staying permanently the first cross claim; 5. costs; 6. any other order as the Honourable Court deems appropriate." 11In support of its case, MDE relies on the affidavits of: (1)Mr Ricky Jose Lee, sworn 16 and 20 December 2010; and (2)Mr Michael Kobras, affirmed 29 March, 30 March and 5 July 2011. 12In defence of the application, the Owners rely on the affidavit of Professor Dr Hein D Kötz sworn 15 June 2012. 13The amended cross claim articulates a case against MDE based first in contract and secondly on the basis of subs 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 ("LRA"). Subsection 5(1)(c) of the LRA is in relevantly the following terms: "(1) Where damage is suffered by any person as a result of a tort (whether a crime or not): (c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by that person in respect of the liability in respect of which the contribution is sought." 14The claim in contract as pleaded is on behalf of one of the Owners only, that is, IMYL. The claim based on the LRA is by all three owners. 15The claims under the LRA assert that: (1)the Owners are liable as tortfeasors to Mrs Venter; (2)MDE is liable as a tortfeasor to Mr Venter and, although not expressly, by inference, to Mrs Venter; and (3)MDE is a person who if sued by Mrs Venter would have been liable to her. 16The particulars provided in respect of the allegations that the Owners are liable to Mrs Venter include failure to provide a safe system of work, proper information and instructions, failure to warn Mr Venter that he was in a position of danger and failure to ensure that the Heli-lift system would deactivate the Heli-lift operation. 17The particulars provided in respect of the allegations that MDE is liable to Mrs Venter include a repetition of the particulars asserted by Mrs Venter in relation to the hoist. 18MDE asserts first that: (1)by the contract entered into with it, the Owners agreed to grant exclusive jurisdiction to the Courts in Bochum, Germany, in respect of all claims arising under or out of the contract, or alternatively at least all contractual disputes; and (2)the Owners should be held to their contractual obligation and not permitted to bring suit in Australia (or indeed anywhere else other than Bochum, Germany). 19MDE's second and alternative argument is that this court is a clearly inappropriate forum to hear the dispute. That is based on the following factors: (1)the contract was made by exchange of correspondence in Europe between a German company (MDE) and, on the cross claimants' pleaded case, the first-named cross claimant, a company registered in Jersey; (2)the contract called for design, manufacture and installation, all of which was done in Germany and France (the hoist was installed in Marseille); (3)there were some modifications made to the hoist and they were carried out in Malaysia; (4)the accident causing death either took place in Thai waters (as the Owners contended in the proceedings brought by Mrs Venter) or in international waters; (5)Mrs Venter is a citizen of the United States; (6)Mr Venter was South African; (7)all of the employees of MDE who might have to give evidence are German; (8)the Owners have not retained any expert to date so they are free to choose a European expert to advance their case; (9)the law of the contract is expressed to be German law; and (10)whatever was the position before the settlement by the Owners with Mrs Venter, the fact that there were on foot proceedings in this court validly brought by Mrs Venter (in whichever waters the accident occurred) has ceased to be of any relevance. This court will now not have to hear the claims brought by Mrs Venter and the existence of such proceedings would have no impact on whether this court is a clearly inappropriate forum since that dispute need no longer be addressed. 20The Owners' response to these arguments is that: (1)the German jurisdiction clause was not incorporated into the contract; (2)the contract is pleaded as one made solely with IMYL; (3)the contract claim is not the only claim brought - there is a claim brought under the LRA and that is not subject to the German jurisdiction clause either as against IMYL or the other owners; (4)this court is not a clearly inappropriate forum because: (a)the proceedings have been validly commenced here by Mrs Venter; (b)the crew who have already given evidence - Captain Peter Oddie, Mr Derek Barker, Mr David Dixon and Mr Michael Farrugia - are all English-speaking; (c)Ms A Parker, solicitor in the employ of the Owners' solicitors, prepared a document which detailed what is depicted in a video taken from closed circuit television cameras located at various points on the Ilona which captured the movement of staff to and from the engine room, the movement of the hatch overs and, indeed, the crushing of Mr Venter. Contracting Parties 21The first question is: between whom was the contract made? There is no dispute that MDE was one of the contracting parties (as pleaded), but is IMYL the only purchaser of the hoist, as pleaded by the Owners (see pars 6 to 9 of the amended cross claim) or were all three of the Owners the purchasers? MDE has put in evidence the contract documents consisting of: (1)a quotation of 3 July 2006 (see Exhibit RJL01 to Mr Lee's affidavit sworn 16 December 2010); (2)a document in German (see Exhibit RJL04 to Mr Lee's affidavit sworn 16 December 2010); and (3)a translation of the document referred to in (2), which is agreed is accurate, and which describes (2) as the "MDE Terms and Conditions of Trading" (see Exhibit RJL05 to Mr Lee's affidavit sworn 16 December 2010). 22The quotation has been signed (see Exhibit RJL01) by Captain Oddie, with the seal containing the words "Ilona O/N 857910 Sydney" and a depiction of the ship. It also contains another signature on behalf of the purchaser, which signature has not been identified. Both Captain Oddie and this other person have initialled the first page of the quotation (which on its last page was signed by Dr.-ing. Thorsten Quent, the Chief Executive Officer of MDE). The quotation is addressed to: "MY Ilona c/o Confiance Limited P.O. Box 191 St Peter Port Guernsey GY1 1HU United Kingdom" Whether Confiance Ltd is a corporation connected with the Owners or any of them has not been the subject of evidence. 23Given that all three cross claimants are the owners of the Ilona, that the quotation is addressed to the Ilona and not any one of the Owners, that Captain Oddie has applied the seal of the ship and not purported to sign on behalf of any one of the particular Owners, and the absence of any evidence to support the contention that the contract was made with only IMYL, the pleading that the contract was with only IMYL appears to have no foundation in fact. Mr J Sheller of counsel, who appears for the Owners, contended that all that mattered was the pleading but I do not accept this contention - in deciding whether the forum is a clearly inappropriate forum, a relevant consideration is with whom was the contract made and I do not think that an assertion which has been pleaded where no arguable basis for the contention has been proffered is determinative of the answer to the question posed. I proceed on the basis that the contract in question was made between MDE and the Owners. Incorporation of the exclusive jurisdiction clause 24It is not disputed by the Owners that the terms found in English as Exhibit RJL05 to Mr Lee's affidavit of 16 December 2010, are the "Terms and Conditions of Trading" referred to on the first page of the quotation. The Owners submit, however, that there is no evidence that the terms and conditions of trading were actually attached to the quotation or that the English translation of those terms were attached. They then argue that, under German law, for the terms to be incorporated they must be attached and they rely on the evidence of Professor Kötz, an expert in German law, to that effect. 25Dr A S Bell SC (who appears for the cross defendant) submits that the question of incorporation of terms is to be determined by Australian law as the law of the forum and not German law. He relies on the judgment of Brennan and Gaudron JJ in Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 260 - 261 and at 225. Secondly, he asserts that, when applied to the facts of this case, Professor Kötz's evidence does not support the contention that under German law the terms to be incorporated had to be annexed to the quotation or contract as signed. This was because for the principle to apply, the contract in question had to be governed by the United Nations Convention on Contracts for the International Sale of Goods (1980), known as the Vienna Convention, and the contract expressly excluded the applicability of the Vienna Convention. 26Mr Sheller did not offer any authority contradictory to the views expressed by Brennan and Gaudron JJ in Ocean Sun Line Special Shipping Co Inc v Fay and he did not seek to argue that what they said was incorrect. Nor did he challenge Dr Bell's contention that under Australian law, at least in a commercial context, the terms and conditions if properly identified do not have to be physically attached to the contract: see N C Seddon and M P Ellinghaus, Cheshire & Fifoot's Law of Contract, 9th Aust ed (2008), LexisNexis Butterworths and see also Smith v South Wales Switchgear Ltd [1978] 1 All ER 18; [1978] 1 WLR 165 and Ange v First East Auction Holdings Pty Ltd (2011) 284 ALR 638; [2011] VSCA 335. In relation to the contention that the Vienna Convention does not apply, there may be an argument available that the exclusion only operates if the terms containing the exclusion are incorporated (the very question to be decided), although that argument was not advanced. 27I conclude that the question of whether MDE's "Terms and Conditions of Trading" were incorporated is to be determined by Australian law and that those terms were incorporated. Applicability of the exclusive jurisdiction clause 28The clause in question provides: "VIII. Place of Jurisdiction - Place of performance Insofar as the Customer is a merchant who has been entered as such in the commercial register, then Bochum shall be the place of jurisdiction. However, MD engineering shall be entitled to also take legal action against the Customer in the court which is competent for their commercial residence. Insofar as nothing to the contrary is listed on the order confirmation, then Bochum shall also be the place of performance. If, after the conclusion of the agreement, the Customer relocates their residence or customary abode outside of the purview of the statutes of the Federal Republic of Germany, then Bochum shall be the place of jurisdiction. This shall also be valid if the Customer's residence or customary abode is not known at the time that legal action was taken. The law of the Federal Republic of Germany shall apply. The applicability of the United Nations Convention on Contracts for the International Sale of Goods of 11/04/1980 (CISG, Vienna Convention on International Sale of Goods) shall be excluded." 29No argument was advanced by Mr Sheller in his written or oral submissions that, as a matter of construction of the clause, it did not apply to IMYL, and at T8.24 - 49 he indicated that there was no issue as to the construction of the clause as contended for by MDE. Further, the contention (found in Mr Sheller's written submissions) that the clause should not be read as an exclusive jurisdiction clause as against IMYL was expressly abandoned: T21.25 - 36, Dr Bell having relied on FAI General Insurance Co Ltd v Ocean Marine Mutual Protection and Indemnity Assn Ltd (1997) 41 NSWLR 117; (1997) 41 NSWLR 559 at 126 - 127 and Sohio Supply Co v Gatoil (USA) Inc [1989] 1 Lloyd's Rep 588 at 591 to 592. I therefore do not need to consider either aspect and I proceed on the basis that the clause is an exclusive jurisdiction clause contractually binding upon the Owners and requiring at least contractual claims brought by the Owners to be heard in Bochum. Scope of the exclusive jurisdiction clause 30Dr Bell, whilst acknowledging that the clause was terse, contended that as a matter of construction and having regard to its terms and the commercial context, the clause should be taken as requiring all disputes arising out of the manufacture, design and installation of the hoist to be determined in Bochum, Germany, so that not only the contract claim, but also the claim based on the LRA, should be brought in Germany, not simply as a matter of convenience but as a matter of contractual obligation. Dr Bell referred to Comandate Marine Corp v Pan Australia Shipping Pty Ltd [2006] FCAFC 192 at [162] - [187] per Allsop J (as his Honour then was), with whom Finn and Finkelstein JJ agreed at [6] - [7] and at [9], in support of his contention that the exclusive jurisdiction clause should be given a wide and expansive interpretation, since it did not make commercial sense to insist that contract claims be heard in Germany but permit other claims to be heard outside of Germany. Mr Sheller did not respond to these contentions in his oral submissions. I think it would be surprising if the parties agreed that contractual disputes should be heard in Germany but not disputes arising out of or connected with the work done, or to be done, pursuant to the contract. 31I proceed on the basis that the claim contractually requires all disputes arising under or out of the contract, or connected with the work to be done pursuant to the contract, to be brought in Bochum. A claim that MDE failed to install an adequate system, or a properly functioning system, or failed to warn the Owners or crew about defects or difficulties in the system, arises out of, and has a close connection with the design, manufacture and installation of the Heli-lift system, that is, the work which MDE was required to perform pursuant to the contract. Claims based on the LRA fall within that description: see Incitec Ltd v Alkimos Shipping Corporation [2004] FCA 698, discussed at par [45] below. Effect of the exclusive jurisdiction clause 32In Global Partners Fund Ltd v Babcock & Brown Ltd (in liq) [2010] NSWSC 270; (2010) 267 ALR 144 at [118] Hammerschlag J said: "Both in the United Kingdom and in this country, where parties to a contract have agreed by an exclusive foreign jurisdiction clause to submit to the exclusive jurisdiction of a foreign court, such a clause does not operate to exclude the forum court's jurisdiction. However, the court will hold the parties to their bargain, and grant a stay of proceedings, unless the party seeking that the proceedings be heard can show that there are strong reasons against doing so. There is a strong bias in favour of granting a stay of proceedings in the event that there has been a submission to the exclusive jurisdiction of a foreign forum. In considering such an application the court should take into consideration all the circumstances of the particular case, but the application is not to be assimilated to cases where a stay is sought on the principle of forum non conveniens, nor is it a matter of mere convenience: see Aggeliki Charis Compania Maritima SA v Pagnan SpA (The Angelic Grace) [1995] 1 Lloyd's Rep 87 at 97; Huddart Parker Ltd v The Ship "Mill Hill" (1950) 81 CLR 502 at 508-509; Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; FAI General Insurance Co Ltd v Ocean Marine Mutual Protection and Indemnity Assn Ltd (1997) 41 NSWLR 117; (1997) 41 NSWLR 559; Akai Pty Ltd v People's Insurance Co Ltd (1996) 188 CLR 413; Incitec Ltd v Alkimos Shipping Corporation [2005] FCA 191; Owners of cargo on vessel Eleftheria v Owners of Ship Eleftheria [1969] 2 All ER 641 at 645; Compagnie des Messageries Maritimes v Wilson (1954) 94 CLR 577 at 582, 585 and 589-91." That statement was adopted as a correct statement of the law by the New South Wales Court of Appeal in Global Partners Fund Ltd v Babcock & Brown Ltd (in liq) (2010) 79 ACSR 383; [2010] NSWCA 196 at [40] and [82] and at [85] - [87] Spigelman CJ said: "[85] The importance of holding parties to their bargain in this respect has often been emphasised in the context of enforcing exclusive jurisdiction clauses and in the cognate area of enforcing agreements to submit to arbitration. (See, eg, Metropolitan Tunnel and Public Works Ltd v London Electric Railway Co [1926] Ch 371 at 389, cited with approval by Dixon J in; Huddart Parker Ltd v Ship "Mill Hill" (1950) 81 CLR 502 at 509. See also the frequently cited judgment in Eleftheria [1970] P 94; [1969] 2 WLR 1073 and FAI General Insurance Co Ltd v Ocean Marine Mutual Protection and Indemnity Assn (1997) 41 NSWLR 559 at 569 and the cases cited at [62] and [70] above.) [86] As Toohey, Gaudron and Gummow JJ observed in Akai Pty Ltd v People's Insurance Co Ltd (1996) 188 CLR 418 at 445: In Huddart Parker Ltd v The Ship "Mill Hill" Dixon J referred with approval to English authority which indicated that, where there was a special contract of this nature between the parties, a foreign jurisdiction clause, the courts begin with a firm disposition in favour of maintaining that bargain unless strong reasons be adduced against a stay, it being the policy of the law that the parties who have made a contract should be kept to it. [87] To similar effect are the further observations of Allsop J (as his Honour then was), in Incitec v Alkimos Shipping Corp above: [43] The question is one of the exercise of a discretion in all the circumstances, but recognising that the starting point is the fact that the parties have agreed to litigate elsewhere, and should, absent some strong countervailing circumstances be held to their bargain." 33The Owners have agreed to litigate disputes in Bochum, and I therefore begin consideration of whether or not they should be compelled to bring suit in Bochum with a firm disposition that they should be required to do so. 34The question then is: have strong reasons been adduced against a stay and, if so, are they sufficiently weighty as to preclude the Owners being held to their bargain? The factors which have been advanced are that: (1)Mrs Venter commenced proceedings regularly here in New South Wales; (2)two of the Owners are registered New South Wales companies; (3)Mrs Venter relied on New South Wales legislation (the Compensation to Relatives Act claim) as one of the grounds of her claim (the other claim being for injury in the nature of nervous shock said to have been suffered by her); (4)by virtue of liability which the Owners now assert they had to Mrs Venter, they rely on the LRA claim for contribution. Mr Sheller submitted that the Act is one which has caused difficulties in the past; (5)"at least part of the relevant substratum of facts has been considered by a New South Wales court"; (6)the Ilona was an Australian registered ship and the law governing the accident may be Australian or New South Wales law; and (7)the matters referred to in par above. 35So far as pars and (a) above are concerned, I think that had the proceedings between Mrs Venter and the Owners remained on foot the first factor would have presented a very significant reason for not holding the Owners to their bargain. The fact is, however, that those proceedings have been settled and resolved. Had those parties awaited judgment with a decision on a point potentially relevant to the cross claim, that might have had some significance too, particularly in the light of what I said at a directions hearing (at which all parties were represented: see transcript of 30 March 2011 at T30) before the separate questions were agreed upon and set down for hearing. The issues which I was to determine were: (1)Was the the Ilona at the time of the accident causing death in Thai waters or international waters? (Including a subsidiary question of who bore the onus of proof of that matter). (2)Whether, if the answer to (1) was "Thai waters", Thai law governed the accident, as contended by the Owners, or New South Wales law, as contended by Mrs Venter? Mr Sheller indicated in the course of submissions that if the Ilona was in Thai waters at the time of the accident, New South Wales law had no application and hence the Owners' claim under the LRA must fail. 36So far as par above is concerned, it is of no, or very little, weight. 37So far as pars and (b) above are concerned, I think the fact that there is a claim under New South Wales legislation, namely the Compensation to Relatives Act, needs to be taken into account, as does the fact that some of the witnesses who may be called are Australian (Mr Barker and Mr Farrugia) and speak English, but the significance of these matters is limited where: (1)there are contractual claims as well and the contract is to be construed in accordance with German law; (2)the LRA claim may be defeated by a conclusion that the Ilona was in Thai waters; and (3)the LRA claim is also caught by the exclusive jurisdiction clause and, even if it were not, it would be highly undesirable for the contract claim to be heard in one place and the other aspects of the case in Australia. It was suggested that it will be difficult for the court in Bochum to deal with evidence given in English, but I am not persuaded that it will be any harder for a German court to receive evidence in English, with the assistance of interpreters, than it will be for this court to receive evidence in German (with the assistance of interpreters). 38So far as par above is concerned, Mr Sheller did not articulate any particular problem area of interpretation with respect to the LRA relevant to this case. 39In relation to par above, although, as I have mentioned, the Court was on 19 April 2012 ready to hand down its judgment on the issues for separate determination, it was not necessary for me to do so. Consideration was given by MDE and the Owners during this application as to whether I should be asked to provide those reasons to the parties but I was informed by counsel that the view had been reached that I should not be asked to do so: T43 - T44. Whilst it is undoubtedly true literally that I have considered the facts relevant to a determination of the separate questions, I have given no judgment on that aspect of the case (for the reasons explained) and my consideration has no juridical effect. 40With respect to par above, Mr Sheller relied on the decision of the High Court in Puttick v Tenon Ltd (formerly Fletcher Challenge Forests Ltd) [2008] HCA 54; (2008) 238 CLR 265 where it was deemed as relevant in deciding whether a Court was a clearly inappropriate forum that it was arguable that the applicable law of the dispute was not New Zealand. I think it was implicit in this part of the argument that I should not be influenced by whatever conclusions I reached on the preliminary issues because those reasons have not become the formal decision of the Court and I accept that I ought not treat the conclusions that I reached as in any way determinative. I accept also that, in considering the position, I should not have regard to the fact that the Owners, in their defence of the claim by Mrs Venter, asserted that Thai law applied but now, to succeed on their LRA claim, must assert that Thai law does not apply. It follows that for the purposes of this application I should proceed on the basis that there is a real question about whether the Ilona was in Thai waters at the time of the accident. It follows that a factual conclusion about location adverse to the Owners may rule out any LRA claim, but it also follows that a factual conclusion favourable (now) to the Owners may make Australian and New South Wales law relevant. I do not regard the fact that two of the Owners were registered in New South Wales or the fact that the Ilona was registered as an Australian vessel and flew the Australian flag as factors telling against the application of the German jurisdiction clause. 41With respect to par (c) above, the evidence that Ms Parker would give concerning the CCTV footage is unlikely to be contentious as it was simply a matter of viewing the footage and recording time. I do not think any weight can be placed on that "evidence" as a reason against the matter being heard in Germany. 42Both Dr Bell and Mr Sheller relied on Incitec Ltd v Alkimos Shipping Corporation, a decision of Allsop J (as his Honour then was). In Incitec Ltd v Alkimos Shipping Corporation, proceedings were commenced against the owner of the vessel and the time charterer of the vessel by a cargo owner as a result of the Alkimos being prevented by the Australian Quarantine and Inspection Service from discharging a cargo of fertiliser at Newcastle. The owner of the vessel sought to cross claim against the time charterer for contribution pursuant to s 5 of the LRA and for equitable contribution and the time charterer resisted joinder by relying on an exclusive jurisdiction clause which required proceedings to be brought in London. The owner contended that the cross claim did not arise out of or in connection with the time charterer and that even if it did, and the exclusive jurisdiction clause was enlivened, the proceedings should not be stayed. The Court held that the owner's claims were caught by the exclusive jurisdiction clause but that the proceedings should not be stayed. His Honour summarised the position in respect of the width of the jurisdiction clause at [36]: The clear tide of judicial opinion as to arbitration clauses, where the fair reading of them is not confined, is to give width, flexibility and amplitude to them: see also Ashville Investments Ltd v Elmer Contractors Ltd [1989] QB 488; Dowell Australia Ltd v Triden Contractors Pty Ltd [1982] 1 NSWLR 508 , 515; Roose Industries Ltd v Ready Mixed Concrete Ltd [1974] 2 NZLR 246; Wealands v CLC Contractors [1999] 2 Lloyd's Rep 739; Societe Commerciale De Reassurance v Eras International Ltd [1992] 1 Lloyd's Rep 570; and Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 , 165-6. In relation to the stay, Allsop J noted that the discretion not to grant a stay requires substantial grounds. His Honour regarded it as significant that the proceedings were brought by plaintiffs not bound by the relevant clauses and he treated "the existence of the possibility, if not probability, of duplicated litigation" as a cogent consideration in assessing the effect of an exclusive jurisdiction clause, as was the prospect that third parties would become witnesses or parties to both proceedings in Australia and in London. 43Had the proceedings between Mrs Venter and the Owners not been resolved, I think the Incitec Ltd v Alkimos Shipping Corporation decision would be very helpful to the Owners in resisting the conclusion that they should be held to their bargain but, as Dr Bell points out, Mrs Venter's claims have been resolved. 44Now the moving parties in the litigation are the Owners and the LRA claim is an alternate claim, which although not a contractual claim, arises out of or is connected with the contract. 45I accept Dr Bell's submission that to permit the Owners to avoid the obligation to litigate their dispute in Germany because of the LRA claim would be to place too much emphasis on the LRA claim. If it be correct that the contractual claim should be heard in Germany, then the LRA claim should be heard in Germany to avoid the need for duplication. Here the risk of duplication is even more acute since the master and a number of crew were called to give evidence, but the Court was not called on to deliver judgment on the matters to which their evidence went. 46Having regard to the matters referred to above, I do not think strong countervailing reasons have been established to make it inappropriate to hold the Owners to their bargain. I am therefore of the view that the grounds have been made out for a stay of these proceedings. Clearly inappropriate forum 47By reason of the conclusion to which I have come on the exclusive jurisdiction clause, it is not strictly necessary to determine whether this court is a "clearly inappropriate forum". I shall, however, express my views briefly on this topic. 48It is accepted that the question is not whether there is a more appropriate forum elsewhere, but rather whether this court is a clearly inappropriate forum: see Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55, Puttick v Tenon Ltd (formerly Fletcher Challenge Forests Ltd), Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; [2002] HCA 10 and McGregor v Potts (2005) 68 NSWLR 109; [2005] NSWSC 1098. The considerations detailed by Lord Goff in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 at 477 - 478 and 482 - 484, referring to Rockware Glass Ltd v MacShannon; Redpath Dorman Long Ltd v Fyfe [1978] AC 795 at 812, were described as "helpful" by the plurality's judgment in Voth v Manildra Flour Mills Pty Ltd at 564 - 565 per Mason CJ and Deane, Dawson and Gaudron JJ. 49The following matters point to this court as an inappropriate forum: (1)the contract was made in Europe; (2)the contract is to be governed by German law; (3)no part of the contract with MDE was to be performed in Australia; and (4)no part of the contract was to be, or was actually, performed in Australia. 50The following matters advanced by Mr Sheller reduce the significance of the matters identified in par [49] above: (1)the accident occurred either in Thai waters or international waters; (2)none of the crew had any connection with Germany and two of them live in Australia or New Zealand and speak English; (3)some of the work of installation was performed in Marseilles and repair work (before the accident) was done in Malaysia; (4)the proceedings were brought in Australia and regularly so; (5)the proceedings between Mrs Venter and the Owners were settled in Australia and the reasonableness of the settlement may be an issue in the proceedings; and (6)the LRA claim made against MDE would, or at least may, need to be determined on whether the Owners and MDE owed a duty of care to Mr and Mrs Venter under Australian law. 51It follows from par that, as the Ilona had Australian registration, it is at least possible that a court hearing this matter will conclude that: (1)the accident occurred in international waters and therefore, the Ilona being an Australian registered vessel, the relevant law is Australian law (see Canadian National Steamships Co Ltd v Watson [1939] DLR 273 (Supreme Court of Canada) and Saldanha v Fulton Navigation Inc (the Omega King) [2011] EWHC 1118 at [13]); or (2)even if the accident occurred in Thai waters, the accident was governed by Australian law (see Lauritzen v Larsen 345 US 571 (1953) and Hellenic Lines Ltd v Rhoditis 398 US 306 (1970) and Romero v International Terminal Operating Co 358 US 354 (1958)). 52In my view, having regard to the matters identified in pars [49] to [51] above, and even accepting some of the difficulties that would be involved in hearing the matter in Australia for MDE, this forum is not a clearly inappropriate forum. Conclusion 53For the reasons earlier given, the Owners have not advanced compelling grounds for requiring the case to be heard here rather than in Bochum, Germany in accordance with the contract. The cross claim should be stayed permanently and the Owners should pay MDE's costs of the proceedings against it.