The Weekly Roundup: The Simon and Garfunkel Edition



This week you join the team at 1CL fit to burst with pride. Katie Ayres has conquered Aconcagua, the highest mountain in both the Southern and Western hemispheres, and no pushover. It just goes to confirm something we had long suspected; those people with determination, resilience and sheer bloody-minded refusal to give up often display the same characteristics in everything that they do. Speaking of which, spare a thought for those now representing the Kingdom of Bahrain in Shehabi v Kingdom of Bahrain [2022] 2 WLUK 170, in which following a change in legal representation the new lawyers applied for an adjournment of a two day trial due to begin in eleven days’ time. The adjournment was refused by Nicklin J on the basis that the issue, state immunity, was one of law and not of fact and that there was bags of time to prepare a skeleton argument. Interestingly, the firm originally instructed had come off the record due to the client’s failure to provide instructions and non-payment of fees, which might have weighed on the court’s mind in considering the Kingdom’s submissions. The decision is a further reminder that although the courts are not unwilling to consider vacating hearings even at the last minute, they will need to be persuaded that there is good reason for doing so, and that any injustice in proceeding has not come about due to any default on the part of the party seeking the adjournment. Only this week Soole J, as kindly a judge as ever graced the Bench, gently reminded a member of the 1CL team that when seeking to vacate a trial it is always best to assume that the court will need to be persuaded that it is in the interests of justice to do so, and a hearing before the trial judge will almost always be necessary.


Brig over troubled water

At common law, the master of a ship on the high seas had the power to arrest passengers or crew members and to confine them, if s/he had reasonable cause to believe, and did so believe, that this was necessary to preserve order or discipline, or for the safety of the ship, of other people, or of property on board. The common law power of the master of UK ships has since been codified by Section 105 of the Merchant Shipping Act 1995, which permits the master to restrain any person on board “if and for so long as it appears to him necessary or expedient in the interest of safety or for the preservation of good order or discipline on board the ship”.

The limits of this rule were recently tested in an Australian case. Australia continues to apply the common law rule, which (like the English rule) has a subjective and an objective element: there must be (objectively) reasonable cause for the belief that detention was necessary, and the captain must (subjectively) so believe. In fact, the applicable law was that of the Bahamas, but the court proceeded on the assumption this was same as Australian law.

A cruise passenger was confined to his cabin after another passenger complained of a sexual assault. The passenger was provided with food and (non-alcoholic) drink, and clothes and other items from the ship’s shop. The passenger was checked on regularly (including by the medical team), was able to make ‘phone calls, and was regularly allowed out under supervision for walks, fresh air, and to smoke. The captain reported the incident to the cruise company’s security consultants. After a few days, the security consultants recommended that the passenger be released from isolation, but on condition that he have no contact with the victim or her travelling party, and that he be prevented from drinking alcohol. The captain informed the victim and her family of this, and they (perhaps understandably) reacted very badly to the prospect of the release. The captain elected not to release the passenger. The confined passenger sued the cruise operator for false imprisonment.

The wrongful imprisonment claim succeeded at first instance, the judge finding that the captain did not believe that detention was required after receiving the recommendation to release the passenger, but decided to continue the detention nonetheless, based on the reaction of the victim’s family. The judge found that the subjective element was not met.

This was reversed on appeal. The Court of Appeal for New South Wales held that continued confinement was objectively justified to preserve order and discipline on board ship and for the safety of persons on board: there was a real risk of conflict resulting from contact between the victim (or her travelling party) and the other passenger, and the captain was (reasonably) concerned that if the passenger was not released it was not practical to prevent such contact; the captain was not required to follow the recommendation from security consultants; and the captain (reasonably) assessed that the conditions of the confinement were not, in themselves, unreasonable.

Royal Caribbean Cruises Ltd v Rawlings [2022] NSWCA 4

There have been reports this week that another case of alleged false imprisonment whilst on a cruise is making its way through the courts in Ireland. According to the reports, the claimant was unsatisfied with her cabin, which she complained made her seasick, and contacted the cruise company to complain and seek a transfer to a different cabin. The claimant contends that she was “punished” for complaining by being detained in her room and then required to attend a psychiatric assessment. The defendant denies the claim, and contends that the crew reacted to what was reported to be a medical emergency. This claim will be decided under Bahamian law. The issues are likely to be whether the objective and subjective tests are made out: on the claimant’s case, neither would be.

These cases are reminders that cruise ships, whilst resembling hotels in many ways, are vessels on the high seas; that passenger (or crew) actions do have the potential to cause real harm; and that captains require – and have – strong powers to maintain discipline so as to be able to carry out the voyage safely. But whilst powers are based on necessity, they are limited to what is reasonably necessary; and they have to be exercised for the right reasons.

About the Author

Andrew Spencer was called to the Bar in 2004, and is listed in the Legal 500 as a Band 1 practitioner in travel law. He acted for the Claimant in the seminal case of Japp v Virgin Holidays Limited [2013] 11 WLUK 131, in which the Court of Appeal considered the time at which applicable local standards should be determined for the purposes of liability under Regulation 15(2) of the Package Travel Regulations; but he is equally comfortable acting for Claimants and Defendants in all travel related claims.


Old Friends: EU Commission Review of the Package Travel Directive

The European Commission has opened a consultation on Directive (EU) 2015/2302 which will run from 15th February to 10th May 2022. It will seek input from consumer organisations, tour operators, carriers and hotels, as well as regulators and academics. The review will examine participant experiences, perceptions, and opinions of, the current rules, and possible reforms. The review itself will not address the protection of passengers in relation to stand-alone transport tickets, which will be the subject of a further consultation in the near future.

It is not clear what proposals will come out of the consultation, but it follows a report by the Commission from February 2021 which found that changes introduced by Directive 2015/2302 had created confusion and complexity around implementation, without necessarily improving protection for consumers. There was found to be particular uncertainty around the concept of ‘linked travel arrangements’. The report further acknowledged that the Covid-19 pandemic had raised tensions between the Directive’s protection of consumers, and the solvency of travel providers. The consultation is therefore one to watch closely.

About the Author

Called in 2011, prior to pupillage Conor Kennedy spent two years working with a leading insurance law firm, gaining experience across regulatory, employment, leisure, travel and public sector teams. He has a varied civil practice and is accredited for Direct Access instruction, but has a particular interest and expertise in claims involving fundamental dishonesty.


…And Finally…

The team was interested to read of the school fined £30,000 for taking a group of pupils on a hike up Helvellyn in March 2020. While the rest of the world battened down the hatches in response to the Covid-19 pandemic, Gateshead Cheder sent 13 boys shod in school shoes and trainers up the mountain in ice and snow, led only by a teacher and teaching assistant and in the face of an adverse weather forecast. Given that the adults had no mountaineering or guiding qualifications and were reliant on a phone app for directions, it might be thought that the fact they reached the summit at all was little short of miraculous, but inevitably on the descent they lost their way, and had to be rescued by the Keswick Mountain Rescue Team. Following the school’s conviction for health and safety breaches arising from the excursion the HSE commented, with what you may feel is admirable restraint:

“Excursions into mountains, particularly in winter, need to be led by people with the appropriate skills, knowledge and experience.”

Well, quite. Just as well for the school that it will not fall within the Package Travel and Linked Travel Arrangements Regulations 2018; but any tortious claim would seem to have excellent prospects of success, from what we know. Go Tell It On The Mountain.

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