The New South Wales Court of Appeal has affirmed in the recent judgment of Royal Caribbean Cruises Ltd v Rawlings  NSWCA 4, the District Court’s common law justification Defence, as summarised in Hook v Cunard Steamship Co  1 WLR 682, that a ship’s captain is justified in detaining or confining a passenger if the captain holds a reasonable belief that detainment or confinement is necessary for the safety of those persons and property on board, as well as for the preservation of order and discipline on the ship.
The respondent, Rawlings, was a passenger on the applicant’s Bahamian-flagged cruise ship during a voyage around the Pacific Island in November 2016. Whilst the ship was in international waters, Rawlings was accused of having sexually assaulted a passenger, an 18-year-old female, “A”. On the morning of 15 November, A was found naked and disoriented in a guest’s room. The circumstances surrounding the incident indicate that A had been a victim of sexual assault on board. The same afternoon, the incident was categorised as “sexual assault rape”.
In the following days, Rawlings was confined on the ship. Two days later, the ship’s captain, Sullivan, received an email from the onshore Global Security department. This department recommended that the respondent be released from confinement, provided that he has no contact with A or her family. Captain Sullivan discussed this recommendation in a meeting with the senior ship’s officers, A, and her mother. During this meeting, A’s mother became highly emotional and threatened to throw the respondent overboard if he were released from confinement. As a result, the respondent was required to remain in confinement.
The respondent brought proceedings in the District Court of New South Wales for the tort of wrongful detention and false imprisonment. The applicant pleaded that the confinement was justified at common law as it was necessary for the preservation of order and the safety of persons on board.
In New South Wales, it is lawful for a ship’s captain to confine a passenger if there is a reasonable cause to believe, and they do, in fact, believe that doing so is necessary for the preservation of the safety of the vessel or persons or property on board, or to maintain order and discipline.
Application to the present circumstances
Evidence was led that in situations such as the present, the captain on board is inclined to take all measures necessary to keep the suspect away from the victim until the matter has been handed over to law enforcement. It became apparent to Captain Sullivan that the New Caledonian law enforcement did not consider themselves to possess jurisdiction in relation to the proposed sexual assault incident as the incident occurred on a Bahamian-flagged vessel located in international waters. As a consequence, the captain considered it appropriate that Rawlings was to remain in custody up until the cruise arrived in Sydney.
There are two main reasons why the primary judge did not consider the continued detention of the respondent to be necessary. Firstly, that confinement was not necessary in order to observe the movements of the respondent on board as there is CCTV monitoring available. Secondly, the detention was “akin to solitary confinement” which was not reasonable.
Hatzistergos DCJ determined that the confinement of the respondent was justified until the point at which the Global Security department recommended his release. Confinement beyond this point was not found to be justified. Therefore, the primary judge awarded $70,000 in general damages, and $20,000 in aggravated damaged and ordered that the applicant pay the respondent’s legal costs.
Royal Caribbean Cruises Ltd sought leave to appeal the above orders on the basis of 9 grounds. These can be summarised as 4 questions, specifically:
- Whether the primary judge erred in applying Hook v Cunard Steamship Co as law in New South Wales. Or as can be otherwise stated, whether it was necessary that the captain subjectively believed detention and confinement to be necessary to justify the detention.
- Whether the primary judge erred in finding that the justification defence set out in Hook v Cunard Steamship Co, was not made out beyond the point at which Global Security department recommended the respondent’s release.
- Whether the award of damages was excessive and/or unreasonable.
- Whether the primary judge incorrectly exercised their discretion when making an order for costs in favour of Rawlings.
The respondent’s case was pleaded upon the assumption that the rules relevant to the tort of false imprisonment and unlawful detention were governed by New South Wales law. Neither party sought to lead evidence relating to the law of The Bahamas. With this in mind, the court held that the primary judge did not err in applying the rules in Hook v Cunard Steamship Co. The applicant argued that the subjective belief is that confinement is necessary if not essential. The Court conceded that the cases referenced by Slade J in Hook v Cunard Steamship Co do not expressly state that one must in fact believe the confinement to be necessary for safe preservation.
The Court highlighted the lack of express authority relating to the power of a master of an Australian ship to confine persons on their vessel. In light of this, the Court referenced the defense to false imprisonment in a medical context, whereby medical practitioners are able to lawfully detain persons if doing so is necessary for the person’s protection, or the protection of others.
With these perspectives in mind, the Court held that the New South Wales law as governed by Hook v Cunard was the appropriate law to be applied in the present circumstances. As such, the existence of the subjective belief of necessity is critical to lawfully detain or confine an individual.
The appeal judges held that the primary judge did err in finding that the respondent did not in fact believe that the continued detention (beyond the point at which the Global Security department recommended the applicant’s release) was necessary. In reaching this conclusion, the court considered that the Global Security Department’s opinion was merely a recommendation for the captain to consider and make a determination. The court also considered that the primary judge erred in rejecting evidence that the ship’s staff were not able to ensure no contact between the respondent and A unless they were to be kept in confinement for the remaining duration of the cruise. Furthermore, the primary judge erred in refusing to consider “the risk of [the respondent] interacting with A or her mother and the possibility that [the respondent] would interfere with investigations” as circumstances that justified the detention of the respondent. In the same vein, the primary judge erred in finding that the continued confinement of the respondent was unreasonable. Specifically given the conditions of confinement were subject to oversight by the captain and consular officer, including welfare checkups by medical staff on board, he was provided regular smoking breaks and daily access to fresh air. Furthermore, the respondent failed to make any complaint about his confinement during this period. Considering these factors, the court overruled the primary judge’s finding that the confinement was “akin to solitary confinement” and therefore unreasonable.
Meagher JA, Bell P, and Leeming JA granted leave to appeal on the questions relating to the defence in Hook v Cunard Steamship Co (questions 1 and 2). As a consequence of the grant of leave to appeal on the basis of questions 1 and 2, the respondent’s confinement was justified for the entire period, thereby rendering consideration of questions 3 and 4 unnecessary. Ultimately, the judgment and orders made by the primary judge in the District Court were set aside, with judgment being entered for the applicant with costs.
Rostron Carlyle Lawyers have a team of experienced litigators. If you have been the subject of proceedings against you, or believe you have an action that you wish to pursue through the Courts, reach out to us today at:
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 Hook v Cunard Steamship Co  1 WLR 682.
 Aldworth v Stewart (1866) 4 F&F 957; “Lima” (1837) Hagg 346, 349.
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