The Federal Court
clears the way for victims of the White Island Volcano to
sue in Florida
After breaking free from a poorly drafted exclusive
jurisdiction clause, the Browitt family is free to sue Royal
Caribbean Cruises in the Circuit Court, Miami Florida for
damages resulting from death and injury sustained from the
White Island Volcano eruption.
This is the result of a decision by the Honourable
Justice Stewart, reported as Royal Caribbean Cruises Ltd
v Browitt  FCA 653 (18 June 2021) in the Federal
Court of Australia.
ill-fated shore excursion to Whakaari (White Island)
The Browitts had sailed on the Ovation of the Seas on
a cruise that departed from Sydney on 4 December 2019 and
was due to return to Sydney about 12 days later after
sailing around New Zealand in a clockwise direction calling
at various ports there.
On 9 December 2019, three members
of the Browitt family from Melbourne, namely Paul Browitt
and his two daughters, Stephanie and Krystal took a shore
excursion to Whakaari (also known as White Island) when it
suffered a volcanic eruption that killed and injured a large
number of people who were visiting the island that day as
Whakaari is the peak of a submarine volcano in the Bay of
Plenty about 48 km from the east coast of the North Island
of New Zealand.
Stephanie and Krystal’s mother, Paul’s
wife, Maria (Marie) Browitt, was not part of the tour party
to the island. She had stayed on board the cruise liner,
Ovation of the Seas, at Tauranga when her family
undertook the shore excursion to Whakaari.
and Krystal suffered horrific injuries from the molten ash
and rock that spewed from the erupting volcano. Krystal died
that day from her injuries. Paul died from his injuries in
hospital a month later. Stephanie suffered third-degree
burns to more than 70% of her body and remained in a coma
for over two weeks. She was in hospital for six months.
Since then, she has had more than 20 surgeries, including
the amputation of all her fingers and is still receiving
intensive hospital outpatient treatment for her injuries.
Marie has suffered unbearable loss and psychological injury.
She is now Stephanie’s full-time carer.
chooses New South Wales, the Browitt family chooses Florida
The exclusive jurisdiction clause in the contract of
carriage for the cruise provided for the courts of New South
Wales to determine any dispute arising from the cruise on
the Ovation of the Seas. It read as follows:
We both agree that any dispute or claim will be dealt
with by a court located in New South Wales, Australia to
the exclusion of the courts of any other state,
territory or country.
The Browitt family chose the courts of Florida to hear
their claim. On 4 December 2020, Marie Browitt, for herself
and as representative of the deceased estates of Paul and
Krystal, and Stephanie commenced a proceeding in the Circuit
Court of the Eleventh Judicial Circuit, Miami-Dade County,
Florida, USA, for loss and damages suffered by them as a
consequence of the volcano eruption. The defendant in the
proceeding is Royal Caribbean Cruises Ltd, a Liberian
registered company headquartered and operating in Miami,
On 18 December 2020, Royal Caribbean Cruises /
RCL Cruises commenced a proceeding in the Federal Court of
Australia to enforce the exclusive jurisdiction clause, and
for an anti-suit injunction against the Florida proceeding.
The decision of the Federal Court of Australia turned
upon these issues:
- Were the booking terms and conditions legally
binding on the Browitts?
- Who were the contracting parties?
- Was the Florida proceeding vexatious or oppressive?
But first, we need to examine the roles of Royal
Caribbean Cruises and RCL Cruises, and the booking
of Royal Caribbean Cruises and RCL Cruises
Royal Caribbean Cruises Ltd is the owner of the Royal
Caribbean International Brand. It has a head office in
Miami, Florida. It produces brochures for all cruises
both in glossy form and on websites, including for the
Ovation of the Seas cruise to New Zealand which
departed on 4 December 2019.
Royal Caribbean Cruises
was responsible for developing, operating and setting
policy for Royal Caribbean International’s shore
excursion program. It had approved the onboard promotion
and sale of the excursion to Whakaari undertaken by
members of the Browitt family on 9 December 2019.
proceeding in the United States District Court, District
of Florida, was brought by the Browitts against Royal
RCL Cruises is a subsidiary of Royal Caribbean
Cruises. It has a head office in London and a branch
office in Australia. RCL Cruises was the operator of MV
Ovation of the Seas for cruises in Australia and
New Zealand. It provisioned the ship and supplied the
RCL Cruises developed and published standard
terms and conditions for carriage of passengers for the
Australian market, which it displayed on its website /
URL for Australia (RCL AU terms).
The proceeding in
the Federal Court of Australia was brought by Royal
Caribbean Cruises and RCL Cruises jointly against the
RCL Cruises appointed
Flight Centre as its retail sales agent to promote and
sell cruise packages and enter into reservations for
cabin accommodation with customers.
attended Flight Centre’s office in Craigieburn,
Victoria, and was shown the itinerary and small map for
the cruise to New Zealand on the Ovation of the Seas
in a Royal Caribbean International glossy brochure. The
travel consultant did not show her the terms and
conditions at the back of the brochure (the RCL AU
The travel consultant took details of the family,
accessed the booking system, and printed a quote for the
cruise. Mrs Browitt confirmed her acceptance of the
quote, and the travel consultant issued an invoice for
the cruise fare, payable to Flight Centre.
The invoice included the Flight Centre terms and
conditions, which the travel consultant took Mrs Browitt
through. She signed the invoice. Underneath where she
signed were the words:
You acknowledge that you are 18 years of age or
older and that you understand and agree with the
above Booking Terms and Conditions and our Privacy
Mrs Browitt paid the deposit. The payment constituted
acceptance of the offer of the cruise evidenced by the
invoice. Mrs Browitt received booking confirmation by
email which stated: Thank you for your booking. In the
footer was a hyperlink to the RCL AU terms.
found that Mrs Browitt’s attention was not drawn
specifically to RCL’s terms and conditions, but had Mrs
Browitt asked to see them they were readily available –
both in the brochure and on the website – and she would
have had the opportunity to read them before signing the
Flight Centre invoice.
Were the booking terms
and conditions legally binding on the Browitts?
For the RCL AU terms to be legally binding on the
Browitts, the Court had to find that the booking was
made with those terms.
Two questions need to be answered in the affirmative.
1. Was Flight Centre the agent of Mrs Browitt, RCL or
The Court said:
“There is no question that Flight
Centre was appointed as agent of RCL for the purpose of
selling cruise packages on RCL’s customer terms and
As a consequence, Flight Centre had full
knowledge of the RCL AU terms.
The Court found that in the booking process, Flight
Centre had offered the RCL AU terms to Mrs Browitt, and
that she had authorised Flight Centre to make the
booking as her agent, subject to the RCL AU terms.
Therefore Flight Centre was also the Browitt’s agent,
and Flight Centre’s knowledge of the RCL AU terms can be
attributed to Mrs Browitt.
2. Did the RCL AU terms form part of the cruise
The Court found that Mrs Browitt’s signature
on the invoice was sufficient to make the RCL AU terms
form part of her cruise contract – see Toll (FGCT)
Pty Ltd v Alphapharm Pty Ltd  HCA 52; 219 CLR
165. Because of the signature, it was not necessary to
prove that Mrs Browitt’s attention had been drawn to the
Who were the
The key question in this case was whether as drafted,
Royal Caribbean Cruises was also a party to the cruise
contract or had the benefit of the RCL AU terms, in
addition to RCL Cruises.
For a variety of reasons,
after interpreting the terms, the Court decided that
Royal Caribbean Cruises was not a party, nor a third
The reasons included that the phrase ‘Either
Royal Caribbean Cruises or RCL Cruises’ did not mean
both of them. RCL Cruises was the ship operator and it
is logical that the booking contract be with it as the
Also, the clause was drafted narrowly –
it was ‘any dispute or claim’ not ‘any dispute arising
out of or in connection with’ the cruise booking.
Nor were the roles of Royal Caribbean Cruises and RCL
Therefore, under the doctrine of privity of contract,
Royal Caribbean Cruises could not rely upon the
exclusive jurisdiction clause to prevent the Browitts
from pursing a proceeding against it in Florida.
Is the Florida proceeding
vexatious or oppressive?
There are two
bases on which an Australian court might by anti-suit
injunction prevent a party subject to its jurisdiction
commencing or continuing a suit in a foreign forum.
One basis is when it is necessary for the protection
of the court’s own proceedings or processes (if the
foreign proceeding interferes with a proceeding pending
in the Australian court).
The other basis is that a court may in the exercise
of its equitable jurisdiction make orders in restraint
of unconscionable conduct or the unconscientious
exercise of legal rights. That is, if the foreign court
proceedings are vexatious or oppressive.
The Court concluded that the there was no
interference with its own proceedings or processes and
the Florida proceeding was not vexatious or oppressive:
“Given that there are no parallel proceedings on foot
or contemplated in Australia, the Florida proceeding is
where Royal Caribbean Cruises’s head office is located
and where various acts and omissions by Royal Caribbean
Cruises which are relied on in the Florida proceeding as
giving rise to the liability of Royal Caribbean Cruises
are alleged to have occurred, and Mrs Browitt and Ms
Browitt enjoy certain legitimate juridical advantages in
Florida (i.e., higher damages, assessment of damages by
a jury, and certain procedural advantages), the pursuit
of the Florida proceeding is entirely legitimate and in
no sense unconscionable.”