In an Australian first, the New South Wales Court of Appeal in Royal Caribbean Cruises Ltd v Rawlings recently provided guidance regarding the power of a ship’s master to arrest or confine a person on a ship at common law. The decision also confirms the justification defence as it applies at common law, and comments on the application of Australia’s choice of law rules for incidents on the high seas.
Mr Rawlings was a passenger on the Royal Caribbean’s ship, “The Explorer of the Seas”, a Bahamian-flagged cruise ship, during a ten-day voyage which departed from Sydney on 10 November 2016 to various islands in the Pacific.
In the early morning of 15 November 2016, an incident occurred which resulted in Mr Rawlings being suspected of sexually assaulting an 18 year old female passenger (A). The alleged assault occurred while the ship was in international waters, and was heading towards Mystery Island.
Investigations into the incident were conducted that day and the captain decided to detain Mr Rawlings on the basis that it was necessary to protect those involved in the incident and the other passengers. Although Royal Caribbean’s onshore Global Security Department subsequently recommended on 17 November that Mr Rawlings be released on the condition that he have no contact with A or her family, the captain believed it was necessary to keep Mr Rawlings in confinement until the ship returned to Sydney on 20 November 2016, to protect the other passengers.
Following a criminal investigation, there was ultimately insufficient evidence to proceed with criminal charges against Mr Rawlings.
Mr Rawlings subsequently brought proceedings against Royal Caribbean in the District Court of NSW claiming damages for wrongful detention and false imprisonment. The question was whether Royal Caribbean was justified in detaining him.
At first instance
The primary judge, Hatzistergos DCJ, in applying the justification defence as set out in the English decision of Hook v Cunard Steamship Co  1 WLR 682 (Hook), noted Royal Caribbean was required to demonstrate that the captain had reasonable cause to believe, and did in fact believe, that the confinement was necessary for the preservation of order and discipline, or for the safety of the ship or persons or property on board.
The primary judge held that the captain was justified in detaining Mr Rawlings to midday on 17 November 2016 while investigations were being undertaken. Thereafter, however, the primary judge was not satisfied that Mr Rawlings’ continued detention was lawful and did not accept that he was a continuing threat to A, her family or other passengers.
Accordingly, the primary judge awarded damages of $97,344 (including interest) plus costs, including $70,000 for general damages for the period of unlawful detention and $20,000 for aggravated damages.
The appeal decision
Royal Caribbean appealed on the basis that the primary judge erred in concluding the justification defence was not made out for the period of detention beyond midday on 17 November 2016.
Choice of law rules
The Court of Appeal (per Meagher JA with whom Bell P and Leeming JA agreed) first confirmed that under Australian choice of law rules, the law applicable to a tort committed on a ship while on the high seas, is the law of the flag. However, unless the foreign law and its content is pleaded and proved, it is presumed that the content of the foreign law applicable under the relevant choice of law rule of the forum is the same as the substantive law of the forum. In this case, Mr Rawlings’ claim was pleaded as if the tort occurred in NSW, and Royal Caribbean did not plead a defence or lead evidence in relation to the law of the Bahamas. Accordingly, NSW common law applied.
Is detention only justified if it is believed detention is necessary?
Royal Caribbean argued that the primary judge erred in applying the law as stated in Hook as part of NSW law, in relation to Royal Caribbean’s justification defence. The Court concluded that Halsbury’s Laws of England, and other contemporaneous sources cite Hook in support of the justification defence. Australia inherited Hook when it adopted English common law, and the rule has not been displaced or varied by statute since. Relevantly, no Australian authorities have addressed the power of the master of an Australian ship to arrest or confine any person on board. Accordingly, Hook is a correct statement of Australian common law with respect to a master’s power or authority to detain: it must be established that the master has reasonable cause to believe, and does in fact believe, that the relevant detention or confinement is necessary for the preservation of order and discipline, or for the safety of the ship or persons or property on board.
Was Mr Rawlings’ whole period of confinement justified as necessary?
The Court found that the captain’s intention before and after the meeting was to keep Mr Rawlings confined until the ship returned to Sydney. The correspondence from Global Security acted as guidance rather than instruction, and the captain believed the respondent’s continued confinement was necessary for the safety and security of passengers on the ship, specifically of A and her family, the other persons involved in the incident, and the respondent. Accordingly, Mr Rawlings’ confinement was justified for the whole period and his claim was dismissed.
This decision provides clarity to masters and confirms their power to arrest or confine a person on a ship where they have reasonable cause to believe, and do in fact believe, that it is necessary for the preservation of order and discipline, or for the safety of the ship or persons or property on board.
The decision is also important as it accepts Hook as the correct statement of Australian common law with respect to a master’s power to detain and affirms the law applicable to a tort committed on a ship while on the high seas is the law of the flag. However, any reliance on foreign law and its content must be pleaded and proved, in the absence of which, an Australian Court will apply the law of the jurisdiction in which the proceedings are brought.
  NSWCA 4.