Stern treatment When is it justified? Choice of law and false imprisonment on the high seas – Litigation, Mediation & Arbitration – Australia -…

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The New South Wales Court of Appeal recently handed down itsdecision in Royal Caribbean Cruises Ltd v Rawlings [2022] NSWCA 4,which overturned a first instance decision that Royal Caribbean hadfalse imprisoned Mr Rawlings following allegations that he hadsexually assaulted another passenger on a cruise.

Background

Mr Rawlings was a passenger on Royal Caribbean'sBahamian-flagged cruise ship "Explorer of the Seas" onduring a 10-day voyage from Sydney in November of 2016. Mid-waythrough the cruise, an 18-year-old female passenger (Ms A) reportedthat she had been sexually assaulted by Mr Rawlings. Investigationswere initiated and Mr Rawlings was detained in the ship'sconference room and, later, a guest room.

Royal Caribbean staff initially proposed to disembark MrRawlings at the Port of Noumea so that local authorities couldrepatriate him to Australia; however, the local police did notconsider that they had authority or jurisdiction to do so as thealleged assault was said to have occurred on the high seas. MrRawlings and Ms A were both put in contact with Australian consularofficials in Noumea.

On 17 November 2016, Royal Caribbean's Miami-based GlobalSecurity team advised the ship's Captain to release Mr Rawlingsfrom confinement, subject to his agreement that he would notcontact Ms A or her family or other persons involved in theincident. The ship's Captain did not accept this advice anddecided to detain Mr Rawlings until the ship returned to Sydney on20 November 2016.

Mr Rawlings commenced proceedings against Royal Caribbean in theDistrict Court of New South Wales, seeking damages for theintentional tort of false imprisonment.

First Instance Decision

Judge Hatzistergos DCJ decided that the Captain was justified indetaining the respondent up to midday on 17 November 2016, when theGlobal Security team recommended his release, but notthereafter.

His Honour applied the Australian common law and referred to thefollowing comments of Slade J in the English decision of Hook vCunard Steamship Co [1953] 1 WLR 682 at 684-685:

"The master of a merchant ship is justified at commonlaw in arresting and confining in a reasonable manner and for areasonable time any sailor or other person on board his ship, if hehas reasonable cause to believe that such arrest or confinement isnecessary for the preservation of order and discipline or for thesafety of the vessel or the persons or property onboard."

His Honour determined, that after receiving the communicationfrom Global Security, the Captain did not subjectively believe thatMr Rawlings' continued detention was reasonably necessary forthe preservation of order, and safety of persons, on board thevessel. His Honour concluded that the ship's staff could haveadequately observed Mr Rawlings using CCTV, instead of keeping himconfined.

Royal Caribbean appealed.

Issues on Appeal

On appeal, Royal Caribbean argued that Judge Hatzistergos DCJhad erred in concluding that the Captain was not justified inkeeping Mr Rawlings confined after 17 November 2016, that he didnot believe that the continued detention of Mr Rawlings wasreasonably necessary and, further, that such a belief was anecessary element of the defence in any event.

Royal Caribbean also argued that his Honour did not take intoconsideration other relevant factors that justified keeping MrRawlings in confinement.

Court of Appeal Decision

Law of the Place of the Tort

Meagher JA, with whom Bell P and Leeming JA agreed, firstconsidered the applicability of Australian law to the proceedings,given that the incident occurred in international waters aboard aBahamian-flagged vessel.

His Honour found that, when a tort occurs aboard a vessel on thehigh seas, the law of the ship's flag will be the lawapplicable to the tort. His Honour also confirmed that, unless aparty pleads and proves the application and content ofinternational law, there is a presumption that the content of anyforeign law would be the same as the substantive law of the forumin which the proceedings were brought.

Mr Rawlings had pleaded his case as if the tort had occurred inNew South Wales. Royal Caribbean did not plead a defence pursuantto Bahamian law, and neither party sought to lead evidence aboutthe law of the Bahamas. Accordingly, the Court noted that, even ifthe law of the place of the tort were to be applied, JudgeHatzistergos DCJ would have been correct to proceed on the basis ofthe assumption that the law of the Bahamas would be substantiallythe same as the law of New South Wales.

Was an Actual Belief of Necessity Required?

Meagher JA then considered whether, as contended by RoyalCaribbean, the existence of a subjective belief that arrest orconfinement is necessary is not an essential element founding theCaptain's authority to arrest or confine.

His Honour noted that in the absence of Australian authority onthe power of a ship's captain to arrest or confine, Englishcommon law may be applied to new situations in accordance with theprinciples expounded in Skelton v Collins [1966] HCA 14.Accordingly, the Court was free to apply the English Court'sdecision in Hook v Cunard, noting that the decision inthat case had not been displaced or varied by statute and was notcontrary to any rule or doctrine of Australian law.

Accordingly, his Honour found that Judge Hatzistergos DCJ wascorrect to apply Hook v Cunard and to adopt as a correctstatement of Australian law the authority of a ship's captainto detain, subject to the captain's reasonable and actualbelief that detention is necessary to preserve order anddiscipline, or for the safety of the vessel or persons or propertyon board.

Whether the Entire Confinement was Justified asNecessary

The standard of proper justification having been established,Meagher JA then considered whether the Captain actually believed,after 17 November 2016, that the continued confinement of MrRawlings was necessary.

The Captain gave evidence that he considered the email fromGlobal Security recommending the release of Mr Rawlings amounted toguidance rather than a direction with which he was obliged tocomply. The Captain and another staff member also gave evidencethat they thought that Mr Rawlings' release in accordance withthe proposal by Global Security would not sufficiently assure nocontact between Mr Rawlings and Ms A and her family.

The Captain's stated further that he felt he had to ensurethere was no interaction between those persons and that the onlyway to prevent that from occurring, and to maintain the safety andsecurity of passengers on the ship,was for Mr Rawlings to be washeld in confinement. He was also concerned to "preserveevidence" by preventing communications between MrRawlings and potential witnesses.

His Honour found that Judge Hatzistergos DCJ had erred inrejecting the Captain's evidence and finding that he did notconsider that the continued confinement of Mr Rawlings wasnecessary. The Court also disagreed that observing Mr Rawlings byCCTV would have been sufficient.

The Court held that the continued confinement of Mr Rawlingsafter 17 November 2016 was reasonable and did not constitute falseimprisonment.

Impact

This decision provides a helpful guidance on the powers ofships' captains to detain passengers when there is a reasonablebelief that doing so is necessary to preserve order and discipline,or for the safety of the vessel or persons or property onboard.

It also confirms the application of common law principlesrelating to the law of the requirement to adduce expert evidence toprove the principles of law of the flag country. In the absence ofsuch proof, the Australian Court will apply the law of thejurisdiction in which the proceedings are brought.

Persons in such a position should ensure that any decisions toconfine a person are adequately and contemporaneously documented,and that clear policies are in place for when situations such asthese arise to protect the victims of alleged unlawful behaviourwhile avoiding illegal infringements on the liberty ofsuspects.

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

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Stern treatment When is it justified? Choice of law and false imprisonment on the high seas - Litigation, Mediation & Arbitration - Australia -...