Stern treatment – When is it justified? Choice of law and false imprisonment on the high seas
The New South Wales Court of Appeal recently handed down its decision in Royal Caribbean Cruises Ltd v Rawlings  NSWCA 4, which overturned a first instance decision that Royal Caribbean had false imprisoned Mr Rawlings following allegations that he had sexually assaulted another passenger on a cruise.
Mr Rawlings was a passenger on Royal Caribbean’s Bahamian-flagged cruise ship “Explorer of the Seas” on during a 10-day voyage from Sydney in November of 2016. Mid-way through the cruise, an 18-year-old female passenger (Ms A) reported that she had been sexually assaulted by Mr Rawlings. Investigations were initiated and Mr Rawlings was detained in the ship’s conference room and, later, a guest room.
Royal Caribbean staff initially proposed to disembark Mr Rawlings at the Port of Noumea so that local authorities could repatriate him to Australia; however, the local police did not consider that they had authority or jurisdiction to do so as the alleged assault was said to have occurred on the high seas. Mr Rawlings and Ms A were both put in contact with Australian consular officials in Noumea.
On 17 November 2016, Royal Caribbean’s Miami-based Global Security team advised the ship’s Captain to release Mr Rawlings from confinement, subject to his agreement that he would not contact Ms A or her family or other persons involved in the incident. The ship’s Captain did not accept this advice and decided to detain Mr Rawlings until the ship returned to Sydney on 20 November 2016.
Mr Rawlings commenced proceedings against Royal Caribbean in the District Court of New South Wales, seeking damages for the intentional tort of false imprisonment.
First Instance Decision
Judge Hatzistergos DCJ decided that the Captain was justified in detaining the respondent up to midday on 17 November 2016, when the Global Security team recommended his release, but not thereafter.
His Honour applied the Australian common law and referred to the following comments of Slade J in the English decision of Hook v Cunard Steamship Co  1 WLR 682 at 684-685:
“The master of a merchant ship is justified at common law in arresting and confining in a reasonable manner and for a reasonable time any sailor or other person on board his ship, if he has reasonable cause to believe that such arrest or confinement is necessary for the preservation of order and discipline or for the safety of the vessel or the persons or property on board.”
His Honour determined, that after receiving the communication from Global Security, the Captain did not subjectively believe that Mr Rawlings’ continued detention was reasonably necessary for the preservation of order, and safety of persons, on board the vessel. His Honour concluded that the ship’s staff could have adequately observed Mr Rawlings using CCTV, instead of keeping him confined.
Royal Caribbean appealed.
Issues on Appeal
On appeal, Royal Caribbean argued that Judge Hatzistergos DCJ had erred in concluding that the Captain was not justified in keeping Mr Rawlings confined after 17 November 2016, that he did not believe that the continued detention of Mr Rawlings was reasonably necessary and, further, that such a belief was a necessary element of the defence in any event.
Royal Caribbean also argued that his Honour did not take into consideration other relevant factors that justified keeping Mr Rawlings in confinement.
Court of Appeal Decision
Law of the Place of the Tort
Meagher JA, with whom Bell P and Leeming JA agreed, first considered the applicability of Australian law to the proceedings, given that the incident occurred in international waters aboard a Bahamian-flagged vessel.
His Honour found that, when a tort occurs aboard a vessel on the high seas, the law of the ship’s flag will be the law applicable to the tort. His Honour also confirmed that, unless a party pleads and proves the application and content of international law, there is a presumption that the content of any foreign law would be the same as the substantive law of the forum in which the proceedings were brought.
Mr Rawlings had pleaded his case as if the tort had occurred in New South Wales. Royal Caribbean did not plead a defence pursuant to Bahamian law, and neither party sought to lead evidence about the law of the Bahamas. Accordingly, the Court noted that, even if the law of the place of the tort were to be applied, Judge Hatzistergos DCJ would have been correct to proceed on the basis of the assumption that the law of the Bahamas would be substantially the same as the law of New South Wales.
Was an Actual Belief of Necessity Required?
Meagher JA then considered whether, as contended by Royal Caribbean, the existence of a subjective belief that arrest or confinement is necessary is not an essential element founding the Captain’s authority to arrest or confine.
His Honour noted that in the absence of Australian authority on the power of a ship’s captain to arrest or confine, English common law may be applied to new situations in accordance with the principles expounded in Skelton v Collins  HCA 14. Accordingly, the Court was free to apply the English Court’s decision in Hook v Cunard, noting that the decision in that case had not been displaced or varied by statute and was not contrary to any rule or doctrine of Australian law.
Accordingly, his Honour found that Judge Hatzistergos DCJ was correct to apply Hook v Cunard and to adopt as a correct statement of Australian law the authority of a ship’s captain to detain, subject to the captain’s reasonable and actual belief that detention is necessary to preserve order and discipline, or for the safety of the vessel or persons or property on board.
Whether the Entire Confinement was Justified as Necessary
The standard of proper justification having been established, Meagher JA then considered whether the Captain actually believed, after 17 November 2016, that the continued confinement of Mr Rawlings was necessary.
The Captain gave evidence that he considered the email from Global Security recommending the release of Mr Rawlings amounted to guidance rather than a direction with which he was obliged to comply. The Captain and another staff member also gave evidence that they thought that Mr Rawlings’ release in accordance with the proposal by Global Security would not sufficiently assure no contact between Mr Rawlings and Ms A and her family.
The Captain’s stated further that he felt he had to ensure there was no interaction between those persons and that the only way to prevent that from occurring, and to maintain the safety and security of passengers on the ship,was for Mr Rawlings to be was held in confinement. He was also concerned to “preserve evidence” by preventing communications between Mr Rawlings and potential witnesses.
His Honour found that Judge Hatzistergos DCJ had erred in rejecting the Captain’s evidence and finding that he did not consider that the continued confinement of Mr Rawlings was necessary. The Court also disagreed that observing Mr Rawlings by CCTV would have been sufficient.
The Court held that the continued confinement of Mr Rawlings after 17 November 2016 was reasonable and did not constitute false imprisonment.
This decision provides a helpful guidance on the powers of ships’ captains to detain passengers when there is a reasonable belief that doing so is necessary to preserve order and discipline, or for the safety of the vessel or persons or property on board.
It also confirms the application of common law principles relating to the law of the requirement to adduce expert evidence to prove the principles of law of the flag country. In the absence of such proof, the Australian Court will apply the law of the jurisdiction in which the proceedings are brought.
Persons in such a position should ensure that any decisions to confine a person are adequately and contemporaneously documented, and that clear policies are in place for when situations such as these arise to protect the victims of alleged unlawful behaviour while avoiding illegal infringements on the liberty of suspects.