A recent decision of the NSW Supreme Court1 has clarified a ship master's authority at common law to detain or confine a passenger while on board a vessel on the high seas. The court unanimously held that the trial judge erred in holding there was insufficient evidence of the captain's common law 'justification' defence. The detention of the suspect passenger (Rawlings) was found to be reasonably necessary for the order and safety of other passengers.
Key take-away? This is the first Australian decision to address the captain's power to arrest or confine a person on an Australian ship. The defence has adopted principles from English common law. An Australian ship captain can now argue they have the power to detain or confine a passenger if they reasonably believe it is necessary for the safety and wellbeing of others on board.
Rawlings was a passenger on a 10-day cruise from Sydney to various Pacific Islands between 10 and 20 November 2016. He was involved in an assault incident on 15 November while the vessel was in international waters heading to Vanuatu. The ship was registered in the Bahamas.
Rawlings was confined to a guest cabin from 9am on 15 November until 1pm on 20 November 2016, while investigations were made. On 17 November, the captain received an email from security recommending that, on conditions, Rawlings be temporarily released. However, Rawlings remained confined in the cabin from midday after the captain spoke with the mother of the victim of the assault.
Rawlings brought proceedings in the District Court for damages for wrongful detention and false imprisonment. The operator relied on a defence of 'justification'. He was successfully awarded $70,000 general and $20,000 aggravated damages. Royal Caribbean Cruises appealed.
The issues on appeal were:
- whether the trial judge erred in applying the defence as per Hook v Cunard Steamship Co  1 WLR 682 (Hook v Cunard) as part of NSW law
- whether the trial judge erred in finding the defence was not made out on 17 November and after
- whether the damages awarded were excessive
- whether the trial judges' discretion for costs miscarried.
The court granted leave for the first two issues but considered it unnecessary for the final two.
Choice of proper law?
The first issue on the appeal was the basis for the exercise of the Australian court's jurisdiction because the alleged tort happened in international waters. A tort is a civil wrong where the usual remedy is damages.
Australia's choice of law rules govern what laws Australian courts apply when more than one jurisdiction is involved.
At common law, a tort that happens on board a vessel travelling on the high seas is governed by the law of the flag-state (the place the vessel is registered). That would have been the law of the Bahamas in this case, but neither party pleaded it. The claim was pleaded as if the tort occurred in NSW.
At first instance, the judge presumed the substantive law the same as the law of the forum, namely NSW.
The Supreme Court agreed, holding this is a principle of Australian private international law that local law applies if foreign law has not been pleaded or proved. This consideration was canvassed by the High Court in Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331 where Gummow and Hayne JJ had said:
"absent proof of, or agreement about, foreign law, the law of the forum is to be applied."
Overlap with a statutory provision?
Meagher JA addressed the potential overlap of a federal or NSW statutory provision.
One example was section 123 of the Navigation Act 2012 (Cth), which gives the captain limited power to detain if they have a reasonable belief the person has interfered with the vessel in contravention of section 121 of the Act.
Given that the vessel was not in, entering or leaving an Australian port, or was in internal or Australian territorial seas when the incident occurred, the Supreme Court determined the statute did not apply. Nor did the statute exclude the operation of the common law.
Justified powers of arrest - the new authority
Perhaps the most significant observation by the Supreme Court was the court's affirmation of the legal position in Australia on the master's power to detain.
The judge, at first instance, adopted the justification defence applied by Slade J in Hook v Cunard as a correct statement of Australian common law. The Supreme Court approved, holding the elements that must be established are:
- the master has reasonable cause to believe that the relevant detention or confinement is necessary for the preservation of order and discipline or safety on board (objective requirement)
- the master does in fact believe that (subjective requirement).
On appeal, Royal Caribbean Cruises argued the captain's state of mind was not essential to the defence. The Supreme Court disagreed, holding the subjective belief is an express condition of the purpose of the master's exercise of power.
Whole confinement lawful
The final issue of concern was the trial judges' refusal to consider relevant evidence that justified the captain's belief the detention was necessary after midday 17 November.
At trial, the captain gave evidence he met with the victim and her mother to tell them he had received a security directive and wanted to discuss the possibility of releasing Rawlings.
The judge, at first instance, found this contradicted evidence in the records of a fellow security officer that the captain "had" to release Rawlings and had changed his mind to prevent the victim's mother from interacting with him.
The Supreme Court disagreed, holding the captain was only "exploring the option" of releasing Rawlings, which he did by testing the mother's reaction. Evidence not accepted at trial indicated he believed the continued confinement until Sydney was necessary before and after the meeting.
The Supreme Court noted there was no evidence to conclude the captain considered himself bound by the directive. It was understood as guidance, not instruction.
The court also concluded from evidence rejected at trial that his intention was to avoid the possibility of contact between Rawlings, the victim and her mother and he was dissatisfied the directive would prevent that. That was his decision to make.
The Supreme Court held that the captain reasonably assessed that if Rawlings was not confined, his ship crew could not take all steps to control any conflict because they could not follow him around at all times. The captain's general position was not whether the decision to confine was correct, but that Rawlings was a suspect in a serious assault allegation, meaning it was a priority (to him) to preserve the evidence.
The trial judge had also found the conditions in the cabin were "akin to solitary confinement". The Supreme Court disagreed, holding Rawlings' welfare was checked regularly and he had access to open air on the crew deck, necessary clothing and medical supplies.
Ultimately, the captain's defence was considered lawful for the whole period of confinement.
The decision in Rawlings is a timely reminder for ship masters, cruise ship operators, consular and security officers of what to do when a tort occurs on board. Where it does, and the suspect needs to be confined, the legal position should be understood and well documented.
The decision means that practitioners need to be aware of the position, particularly when a vessel is in foreign waters and Australia or England may have jurisdiction.
The court's approval of English common law precedent is an interesting reflection of the body of principles inherited by Australia. As the court discussed, these principles can apply to new situations and degrees of change to cases like this.
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