Two Australian survivors of the White Island volcanic eruption in New Zealand will be allowed to sue Royal Caribbean in the US after the cruise line failed in its bid to stop the lawsuit.
Marie and Stephanie Browitt lost family members in the December 2019 eruption, which also severely injured Stephanie. They were on a day trip to the island organised by Royal Caribbean.
The eruption killed 22 people and injured another 25. The Browitts are suing the company in Florida, where it is headquartered.
In December, the company took them, and an American couple who had also launched legal action in the US, to Australias federal court, claiming terms in their ticket agreement meant any disputes could only be litigated in New South Wales.
Royal Caribbean dropped its case against the American couple, Ivy and Paul Reed, earlier this month, but continued its action against the Browitts.
On Friday, the federal court justice Angus Stewart said a term in the ticket contract requiring the Browitts to sue in NSW did not stop them suing Royal Caribbean in Miami.
This was because it was not clear which of several conflicting sets of terms of conditions applied to the ticket and because the company the Browitts are suing, Royal Caribbean Cruises Limited, which is registered in Liberia, was not a party to the ticket agreement, Stewart said.
The Browitts solicitor, Peter Gordon of Gordon Legal, said he was very pleased with the result, which followed a three-day trial that took place during Melbournes recent Covid lockdown.
It was a really hard-fought piece of litigation, made harder because of the fact we had to run it from Melbourne and Marie was cross-examined by Royal Caribbeans lawyer from the study of my home, which was distressing for her, he said.
It was the most complex of cases. It really was one of the bigger fights of my 40-year legal career.
Marie Browitt, her husband, Paul, and their daughters, Stephanie and Krystal, took the cruise to celebrate Krystals 21st birthday.
Paul, Stephanie and Krystal were on the island when it erupted but Marie did not go on the day trip.
Paul and Krystal were killed by molten ash and rock from the volcano and Stephanie suffered third-degree burns to more than 70% of her body. Doctors have amputated all her fingers. Marie is now her full-time carer.
Stewart said she had suffered unbearable loss and psychological injury.
This explained not only her weak memory of the events of the booking but also the frustration that she evidently experienced with the fine detail of some of the questioning, he said.
He said there were advantages to the Browitts if they were able to sue in Florida, including that the damages likely to be recovered in the Florida proceeding are significantly higher than could be expected to be awarded by an Australian court.
He said that the UK company through which Royal Caribbean acts in Australia, Royal Caribbean Limited, was bound by the ticket agreement.
However, it was not clear from the Royal Caribbean website which of several sets of terms and conditions applied to the Browitts booking.
One set, entitled Cruise Contract, even specified that legal action should be brought in Florida.
Even an experienced contract lawyer would have difficulty identifying which terms and conditions that were accessible by link on the website were applicable, Stewart said.
Royal Caribbean in a statement said it launched the Australian action because we believed matters would be more appropriately determined in New South Wales as we believed the contracts between the parties were under NSW law.
We will examine the judgment, the company said. This does not change the heartfelt empathy we feel for all those impacted by this tragedy.
Originally posted here:
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