Written by Peter CarterJune 27, 2021
The tragic loss of life from the December 2019 volcanic eruption at White Island in New Zealand has made its way to the courts in a ruling that allows injured and deceased cruise ship passenger compensation claims to be adjudicated in the cruise line’s base of operations, Miami USA.
Marie Browitt had booked the Royal Caribbean cruise for herself, her husband Paul and daughters Stephanie and Krystal in February that year through a Flight Centre outlet.
She did not join the family for the island day-excursion but rather remained on the vessel Ovation of the Seas.
Paul, Stephanie and Krystal suffered horrific injuries from molten ash and rock that spewed from the erupting volcano. Krystal did not survive the day. Paul died in hospital a month later. Stephanie – who suffered 3rd degree burns to more than 70% of her body – remained in a coma for 2 weeks, in hospital for 6 months and has been left with horrific injuries.
Marie who “has suffered unbearable loss and psychological injury” is now Stephanie’s full-time carer.
She filed a lawsuit in December 2020 in a Miami court on her own behalf for her “unspeakable loss”, 24-yr-old Stephanie and the estates of her husband and second daughter whose death occurred not long after her 21st birthday. The defendant in the suit is Royal Caribbean Cruises Ltd (RCCL), a Liberian registered company headquartered in Miami.
That prompted RCL Cruises Ltd (RCL) – its UK registered arm that operates the cruise line’s vessels out of Australia and New Zealand and is registered here as a foreign corporation – to seek an injunction in the Federal Court in Sydney restraining the Browitts from pursuing the Florida proceedings on the strength of an exclusive NSW jurisdiction clause in its contract of carriage.
The 3-day hearing in early June revealed that the vessel itself – whose flag state is the Bahamas – was owned by a separate Liberian company from whom RCL chartered it.
RCL in turn engaged RCCL to provide crewing and marketing services and to sell shore excursions to cruise ship passengers.
Flight Centre was appointed RCL’s wholesale sales agent for its cruises as well as a retail sales agent for taking customer reservations and signing them up to RCL’s terms and conditions.
Clause 38 of the Ts & Cs specified: “We both agree that any dispute or claim will be dealt with by a court located in New South Wales to the exclusion of the courts of any other State, Territory or country”.
Marie had never read the Ts & Cs although they could be found on the Royal Caribbean website and were contained in the cruise line’s brochure shown to her by Flight Centre’s Julie Clarke at the Craigieburn Flight Centre agency at the time the booking was made.
Justice Angus Stewart held that Flight Centre was acting as agent for both RCL and Mrs Browitt when it took the booking and issued the invoice but that the scope of its agency for the customer was limited to “making the agreed travel bookings .. subject to the terms and conditions, including conditions of carriage and limitations of liability, imposed by RCL”.
The contract Marie signed at the Flight Centre office authorised the agent to bind her to RCL’s “terms and conditions, including conditions of carriage and limitations of liability,” Justice Stewart noted. “On that basis, Mrs Browitt’s booking was on the RCL terms and she and each member of her family for whom she made the booking became bound to them”.
His Honour also noted that, because RCL had given Mrs Browitt reasonable notice – by the travel agent pointing out the Ts & Cs at the back of the brochure – its terms and conditions would also have been incorporated into the booking contract by that means alone.
However he rejected the proposition that the inclusion of hyperlinks to the Ts & Cs on the RCL website or those in emails were sufficient to incorporate them into the contract because links were to those for both Australia and New Zealand without any explanation of which set of conditions were to apply.
The crunch for the cruise line came however in the finding that while RCL was entitled to the benefit of the exclusive NSW jurisdiction clause, RCCL in Miami – who wasn’t a party to the passenger contract – was not.
“RCCL was not a party to the agreement and… there is simply no basis on which it can rely on the clause”.
Neither could RCCL gain the benefit of contract provisions in its capacity as the shore excursion subcontractor because the contract made no reference to its provisions extending for the benefit of third parties.
His Honour dismissed RCL’s application noting the superior benefits available to the family by conducting the claim in Florida rather than in Australia including the “significantly higher” damages, the right to a jury trial and the right to depose witnesses before trial.
It should also be noted that unlike Australia, Florida and most US states allow substantial damages for “solatium” ie emotional or non-financial losses caused to surviving family members in cases of the catastrophic wrongful death of a loved one.