The New South Wales Court of Appeal has affirmed the District Court’s adoption of the common law justification defence summarised in Hook v Cunard Steamship Co  1WLR 682;  1 Lloyd’s Rep 413, that a ship’s captain has the power to detain or confine a passenger if he or she has reasonable cause to believe, and does in fact believe, that confinement is necessary for the preservation of order and discipline, or for the safety of the vessel or of the people or property on board.
The Respondent was a passenger on the Appellant’s Bahamian-flagged cruise ship during a ten day round trip, departing Sydney on 10 November 2016.
In the early hours of 15 November 2016, the Respondent met an 18 year old female passenger, referred to as ‘A’, in one of the ship’s night clubs. They left that venue with a third passenger and returned to the Respondent’s cabin. An incident occurred which resulted in the Respondent being suspected of having sexually assaulted A. The alleged assault occurred whilst the ship was in international waters and as investigations into the incident proceeded, the Respondent was detained in the ship’s conference room, and subsequently in a guest cabin. His confinement in isolation lasted from shortly before 9am on 15 November 2016 until about 1pm on 20 November 2016.
By late 15 November 2016, the ship’s captain decided to offload the Respondent into the custody of law enforcement as soon as possible. However, on arrival in New Caledonia the local police authorities refused to allow the Respondent to disembark because the incident happened in international waters and apparently outside their jurisdiction.
In the morning of 17 November 2016, the Appellant’s onshore Global Security department recommended to the Captain that the Respondent be released from his confinement on condition that he have no contact with A or her family, who were also on board. At about midday, a meeting was held with A and her mother where the latter threatened to throw the Respondent overboard if he were released. The Captain resolved to keep the Respondent in confinement until they returned to Sydney.
Ultimately, the NSW Police determined it did not have jurisdiction for the suspected sexual assault and it handed the matter to the Australian Federal Police. The AFP rejected the state referral without further action due to insufficient and conflicting evidence.
The Respondent subsequently brought proceedings against the Appellant as ‘operator’ of the ship in the District Court, claiming damages for wrongful detention and false imprisonment.
The primary judge held that the Captain was justified in detaining the Respondent up to midday on 17 November 2016, but not thereafter. In so doing, Hatzistergos DCJ applied the substantive law of New South Wales to the alleged tort. His Honour also accepted as part of the Australian common law the justification defence, summarised by Slade J in Hook v Cunard Steamship Co, that a ship’s captain has the power to detain or confine a passenger if he or she has reasonable cause to believe, and does in fact believe, that confinement is necessary for the preservation of order and discipline, or for the safety of the vessel or of persons or property on board.
His Honour awarded the Respondent general damages of $70,000, aggravated damages of $20,000 for the period of detention, and the whole of his costs of the proceeding.
Royal Caribbean appealed those judgments and orders.
- Whether the primary judge erred in applying in relation to the Appellant’s justification defence the law as stated in Hook v Cunard Steamship Co as part of the law of New South Wales;
- Whether the primary judge erred in finding that that justification defence was not made out for the period of detention beyond midday on 17 November 2016;
- Whether the damages awarded were unreasonable and excessive; and
- Whether the primary judge’s exercise of the costs discretion miscarried.
At the outset, the Court of Appeal affirmed the primary judge’s acceptance of the justification defence summarised in Hook v Cunard Steamship Co as part of the Australian common law. In doing so, the Court of Appeal confirmed that the existence of a subjective belief, that arrest or confinement is necessary, is an essential element founding the captain’s authority to arrest or confine.
On the facts of the present case, the primary judge held that the Captain was justified in detaining the Respondent up to midday on 17 November 2016, but not thereafter. In reaching that conclusion, Hatzistergos DCJ balanced what was said to be competing evidence regarding whether at the time of the meeting with A and A’s mother, there was reasonable cause for the Captain to believe that the Respondent’s confinement was necessary for the preservation of order and discipline or for the safety of the persons on board.
The Captain’s evidence was that while there was no question in his mind of continuing the Respondent’s confinement, he wished to explore the option of releasing the Respondent by testing the reactions of A and A’s mother to that possibility. He gave evidence that speaking to them confirmed his decision to not release the Respondent.
However, the primary judge rejected the Captain’s evidence in favour of what was described as a contradicting contemporaneous statement by another senior officer. As a result, His Honour found that the Captain had intended to release the Respondent in accordance with the recommendations by the Appellant’s Global Security department but then changed his mind following the reaction of A’s mother. It followed, His Honour held, that the Captain did not consider continued confinement was reasonably necessary for the preservation of order and discipline or for the safety of the persons on board; instead, he sought to prevent an altercation between A’s mother and the Respondent.
The primary judge further found that the Respondent’s continuing detention in conditions “akin to solitary confinement for the remainder of the journey back to Sydney” was not reasonable in the circumstances.
On appeal, the Court of Appeal revisited the evidence and found that none of it supported the specific findings made by the primary judge. Instead, Meagher JA (with whom Bell P and Leeming JA agreed) found that the other senior officer’s statement said nothing about whether the Captain intended to release the Respondent or regarded himself as bound to do so and, for that reason, it did not contradict the Captain’s evidence. It followed that the primary judge’s finding as to the Captain’s state of mind immediately before the meeting with A’s mother (that he did not consider continued confinement was reasonably necessary) was also unsupported by the evidence.
As for the primary judge’s view that the Respondent’s detention was “akin to solitary confinement“, the Court of Appeal disagreed and found those conditions were the subject of consideration and oversight by the Captain and an Australian consular officer, his welfare was suitably monitored by security officers and the ship’s medical staff, he was given the opportunity to make twice daily visits to the crew deck where he had access to the open air, and he had access to food, non-alcoholic beverages, and clothing from the ship’s gift shop.
For these reasons, the Court of Appeal overturned the primary judge’s finding that the continuance of the Respondent’s confinement beyond midday on 17 November was unjustified. As the Appellant’s defence was wholly successful, it was unnecessary for the Court of Appeal to consider damages and the exercise of the primary judge’s costs discretion.
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This article was written by Simon Liddy, Partner and Benjamin Pool, Associate.