It’s the captain’s call to confine a person to a cabin on a cruise ship

Half-way through a 10 day cruise around islands in the Pacific, an 18 year old female was the victim of a sexual assault. Shortly afterwards, a male passenger was detained on orders by the ship’s captain. The suspect was confined to a cabin for the remainder of the voyage.

The master of a ship’s power or authority to detain or confine any person on board the vessel under the Australian common law has been assumed but not tested in a superior court until now.

Royal Caribbean Cruises Ltd v Rawlings [2022] NSWCA 4 (4 February 2022) a decision by the Court of Appeal of the Supreme Court of New South Wales (Meagher JA, Bell P and Leeming JA agreeing), is now authority for the Australian common law rule that the master of a ship has the power or authority to detain and confine any sailor or person on board his ship if these requirements are satisfied:

“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 vessel or persons or property on board.”
[judgment, paragraph 35]

Note: there is an objective requirement “reasonable cause to believe” as well as a subjective belief “does in fact believe” that confinement is necessary.

The incident, the detention and confinement

In the early hours of 15 November 2016, the “Explorer of the Seas”, a cruise ship operated by Caribbean Cruises, was in international waters heading towards Mystery Island, an uninhabited island in the Republic of Vanuatu.

At 5:39 am (ship’s time), the victim was found naked and disoriented in an unrelated guest’s room, the circumstances suggesting that she was a victim of a sexual assault. According to the CCTV footage, the victim and another female guest had entered into the suspect’s room earlier at 2:10am and left naked some two and half hours later.

The suspect’s room was sealed, the victim was interviewed, and a medical examination was undertaken. This included a urine test for drugs (none found), DNA swabs and a blood sample.

The incident was reported to Global Security, based in Miami Florida, in accordance with the internal procedures of Caribbean Cruises. It was categorised as “Sexual Assault Rape – based on victim’s inability to consent due to being extremely intoxicated.”

The suspect was detained first in the ship’s conference room and was then confined in a guest cabin.

On 16 November, the ship arrived at Nouméa. The police refused to accept custody of the suspect or investigate the incident because it happened in international waters and outside their “land/sea jurisdiction”. Australian consular officers boarded the ship and met with the victim and the accused. The victim and her mother went ashore and gave a statement to the police. The consular official maintained daily contact with the suspect thereafter.

At 6:26am on 17 November, Global Security sent an email to the captain which recommended the release of the suspect from isolation, on condition that he have no contact with the victim or anyone travelling with or related to her, and having his alcohol consumption cut off.
The captain considered the advice from Global Security, but was not bound to take it because ultimately, he “had the authority and responsibility to maintain the safety and security of everyone on board the vessel”.

Later that morning, the captain met with the victim and her mother to explain the Global Security recommendation. The mother’s response was emotional and forthright: “I will throw the suspect overboard if he is being released from custody”.

The captain decided to keep the suspect in confinement in a guest cabin. A security guard was stationed outside until the ship retuned to Sydney. He was allowed to leave the ship at 1:00pm on 20 November 2016, several hours after the ship docked in Sydney.

During his confinement the suspect was checked on regularly every half hour; was visited by the ship’s doctor or nurse on more than six occasions; spoke on the telephone to the consul daily; was offered the opportunity and did to go outside on accompanied walks for fresh air and to smoke on the crew deck; and was provided with ready access to food and non-alcoholic beverages, as well as to necessary clothing from the ship’s gift shop.

The award for wrongful detention

The primary judge found that the detention was justified only until midday on 17 November.

The primary judge found that the captain’s state of mind on the morning of 17 November was “that he did not consider continued confinement was reasonably necessary” and “changed his mind because of the reaction of the victim’s mother” – that is, the subjective belief requirement was not satisfied.

As a result, in his view, Caribbean Cruises could not rely upon the justification defence that the confinement was necessary after that time.

The primary judge awarded general damages of $70,000 and aggravated damages of $20,000, for wrongful detention for the period from 17 to 20 November 2016.

See Rawlings v Royal Caribbean Cruises Ltd [2020] NSWDC 39 District Court of New South Wales (Hatzistergos DCJ).

The Court of Appeal

The Court of Appeal found that the primary judge’s findings concerning the captain’s state of mind did not accord with the evidence.

The Court of Appeal found that the continued confinement of the suspect for the remainder of the voyage was “reasonably necessary for the preservation of order and discipline or for the safety of the vessel or the persons or property on board”.

“the safety and security of passengers included the victim’s emotional well-being; and a significant risk to safety and security of those passengers was that of contact and any resulting conflict involving the suspect and the victim’s family. That was particularly so because of the victim’s mother’s reaction at the meeting, which was “highly charged and emotional”. The captain was also concerned to “preserve evidence” by preventing communications between the respondent and potential witnesses.” [judgment, paragraph 94]

As to Global Security’s recommendation that the suspect be released on condition of avoiding contact, the captain’s evidence was that he understood it to be guidance, not an instruction.

The captain’s assessment was that, given the limited staff and resources at the ship’s disposal, he could not ensure there would be no such contact unless the suspect remained in confinement. In evidence he said that there were “maybe 16” security guards to monitor and safeguard the 3,000 passengers on the ship, and “we can’t follow every single individual around the ship all the time [using CCTV]” and so the “safest thing was to confine the accused”.

It was also relevant to the captain’s assessment that the conditions of confinement were not unreasonable and were not “akin to solitary confinement”. There was no complaint recorded in the ship’s confinement log.

Therefore, the Court of Appeal set aside the judgment of the primary judge and ordered that the suspect pay Caribbean Cruise’s legal costs both in the District Court and in the Court of Appeal.

In reaching its decision, the Court of Appeal said:

  • The Australian common law rule has not been displaced or varied by statute and is not contrary to some other doctrine or rule now forming part of the Australian common law;
  • The Australian common law rule includes the principles as stated in Hook v Cunard Steamship Co. [1953] 1 W.L.R. 682;
  • Although the terms of Caribbean’s Contract of Carriage included the captain’s power and authority to detain and confine, the primary judge was correct to consider these did not provide a separate defence to the claim because they were not more favourable to Caribbean than its position at common law;
  • “Under Australian choice of law rules, the law applicable to a tort committed on a vessel while on the high seas – is the law of the state in which the vessel is registered (the law of the flag)” – in this case it was The Bahamas; “unless the applicability of foreign law and its content is pleaded and proved, there is a presumption that the content of the foreign law applicable … is the same as the substantive law of the forum …” in this case it was correct to apply the substantive law of New South Wales;

© Copyright 2022 Cordato Partners