Royal Caribbean Cruises Ltd v Browitt

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FEDERAL COURT OF AUSTRALIA

Royal Caribbean Cruises Ltd v Browitt [2021] FCA 653

File number: NSD 1360 of 2020
Judgment of: STEWART J
Date of judgment: 18 June 2021
Catchwords:

PRIVATE INTERNATIONAL LAW – anti-suit injunction – whether proceeding against the first applicant in Florida is in breach of an exclusive jurisdiction clause – whether the first applicant is a party to or has rights under the exclusive jurisdiction clause – whether the second applicant can enforce the exclusive jurisdiction clause with respect to a proceeding against the first applicant – whether Florida proceeding is vexatious and oppressive

CONTRACTS – whether carrier’s standard terms and conditions were incorporated into the contract of carriage – whether signature by customer of the travel agent’s terms and conditions which provided for bookings on the carrier’s terms and conditions was sufficient to incorporate the latter – whether reasonable notice of the carrier’s standard terms and conditions was given to the customer

AGENCY – whether travel agent was agent for the customer in making the booking – whether notice of the carrier’s standard terms and conditions to the travel agent constituted notice to the customer – whether dual agency
Legislation: Corporations Act 2001 (Cth) Pt 5B.2 Div 2
Cases cited:

Aneco Reinsurance Underwriting Ltd (in liq) v Johnson & Higgins Ltd [2001] UKHL 51; [2002] 1 Lloyd’s Rep 157

Australian Competition and Consumer Commission v Flight Centre Travel Group Ltd [2016] HCA 49; 261 CLR 203

Baltic Shipping Co v Dillon [1993] HCA 4; 176 CLR 344

Baltic Shipping Co v Dillon(The Mikhail Lermontov) (1991) 22 NSWLR 1

City Finance Co Ltd v Matthew Harvey & Co Ltd [1915] HCA 75; 21 CLR 55

Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd [1931] HCA 53; 46 CLR 41

Comandate Marine Corp v Pan Australia Shipping Pty Ltd [2006] FCAFC 192; 157 FCR 45

CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33; 189 CLR 345

Currie v Glen [1936] HCA 1; 54 CLR 445

Donohue v Armco Inc [2002] 1 Lloyd’s Rep 425; [2001] UKHL 64

Federation Insurance Ltd v Wasson [1987] HCA 34; 163 CLR 303

Global Partners Fund Ltd v Babcock & Brown Ltd (in liq) [2010] NSWCA 196; 79 ACSR 383

Homburg Houtimport BV and others v Agrosin Private Ltd (The Starsin) [2004] 1 AC 715

Hood v Anchor Line (Henderson Bros) Ltd [1918] AC 837

Hospital Products Ltd v United States Surgical Corp [1984] HCA 64; 156 CLR 41

International Harvester Co of Australia Pty Ltd v Carrigan’s Hazeldene Pastoral Co [1958] HCA 16; 100 CLR 644

Jones v Canavan [1972] 2 NSWLR 236

Kelly v Cooper [1993] AC 205

Lepcanfin Pty Ltd v Lepfin Pty Ltd [2020] NSWCA 155; 102 NSWLR 627

MacRobertson Miller Airline Services v Commissioner of State Taxation (WA) [1975] HCA 55; 133 CLR 125

National Australia Bank Ltd v Dionys [2016] NSWCA…

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Details
Case
[2021] FCA 653
Decision Date

CaseChat Overview and Summary

The case of Royal Caribbean Cruises Ltd v Browitt involved a dispute between Royal Caribbean Cruises Ltd (RCCL) and Mrs Browitt. RCCL sought an anti-suit injunction against proceedings Mrs Browitt had commenced in Florida. The central legal issues were whether the Florida proceeding breached an exclusive jurisdiction clause, if RCCL was a party to or had rights under the clause, if the second applicant could enforce the clause, and if the Florida proceeding was vexatious and oppressive. The court held that the proceeding should be dismissed, finding that the exclusive jurisdiction clause was not incorporated into the contract and that the Florida proceeding was not vexatious or oppressive. The court further held that the second applicant could not enforce the clause as it was not a party to the contract. Consequently, the court dismissed the proceeding and ordered the applicants to pay the respondents' costs, subject to potential variation upon further submissions from the parties.

Orders

Orders of the court

1. The proceeding be dismissed.

2. Subject to order 3, the applicants pay the respondents’ costs of the proceeding.

3. The parties have leave to apply for a different costs order to that in order 2 by filing submissions (of no more than 3 pages) in support of the costs order they seek within 7 days of these orders, in which event any party opposing such different costs order is to file submissions (of no more than 3 pages) in support of such opposition within 7 days thereafter.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Mrs Browitt explained in her affidavit that as a result of what has happened to her and her family since the volcano eruption, she does not have a strong recollection of the events of booking the cruise. That is not only understandable, but also to be expected. She has suffered unspeakable loss and consequent trauma which explains not only her weak memory of the events of the booking but also the frustration that she evidently experienced with the fine detail of some of the questioning. That may have led her on occasion to express matters more emphatically than the facts would otherwise support. I approach her evidence bearing that in mind.The material factsThe applicants As indicated, RCCL is a Liberian incorporated corporation that is registered in the State of Florida as a foreign profit corporation. RCCL is the owner of the international brand, Royal Caribbean International, as well as other international cruising brands. Its business is primarily managed from Miami, Florida. It operates internationally through various subsidiary companies, one of which is RCL. At all material times, RCCL’s head office was located in Miami, Florida. Also, RCCL’s Global Tour Operations department was located at its head office. That department was responsible for developing, operating and setting policy for Royal Caribbean International’s shore excursion program, and had approved the onboard promotion and sale of the excursion to Whakaari undertaken by members of the Browitt family on 9 December 2019. RCL is a company incorporated in the United Kingdom with branch offices in Australia and New Zealand, as well as in a number of other countries. The Australian branch operates as a local booking office from premises in North Sydney. It is a foreign company registered in Australia under Pt 5B.2 Div 2 of the Corporations Act 2001 (Cth). RCL is involved in the sales and marketing of cruises operating under the Royal Caribbean International brand in Australia and New Zealand. The cruise ship, MV Ovation of the Seas, is owned by Ovation of the Seas Inc, a Liberian registered company. The vessel is flagged in the Bahamas. The vessel has a gross tonnage of 168,666 gt, length overall of 347 m, width of 41 m, a passenger capacity of 4,180, and was launched in February 2016. In short, the vessel is a modern, large and luxurious cruise liner. In 2019, RCL was the operator and bareboat charterer of the vessel. During that time, the vessel operated primarily between Australia and New Zealand. RCCL was engaged by RCL under a series of contracts to discharge functions on board the vessel. These included contracts in respect of crewing services and marketing and selling shore excursions to guests on board the vessel. Gavin Smith, RCL’s Vice President and Managing Director for Australian and New Zealand markets, gave evidence that under an Onboard Services Agreement RCCL was engaged by RCL to perform various onboard services for RCL in connection with RCL’s operation of the vessel. He referred to a copy of an agreement which does not list the Ovation of the Seas in the list of vessels covered by the agreement and is incomplete in respect of the services that it is said to cover, some pages of Exhibit B to the agreement apparently having been omitted. However, since there is no other evidence on this question and it was not challenged, I infer from Mr Smith’s evidence that at some time subsequent to the execution of the agreement it was made to apply to the Ovation of the Seas as well as the various other vessels listed in Exhibit A to the agreement. From the part of Exhibit B in evidence, I infer that the onboard services covered by the agreement were hospitality-related services.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In the circumstances, the applicants’ alternative basis for relief on the ground that the Florida proceeding is vexatious and oppressive must fail.Conclusion For the above reasons, the applicants’ proceeding falls to be dismissed. I will give the parties the opportunity to make submissions on why the ordinary rule that costs should follow the event should not apply. Finally, I acknowledge the constructive way in which the parties cooperated to limit the issues and the evidence and bring the matter to hearing efficiently and, I hope, cost effectively.

Ratio Decidendi

Legal Principle Established

On that basis, Mrs Browitt’s booking was on the RCL AU terms and she and each member of her family for whom she made the booking became bound to them.Issues 2(b)-(e): other modes of incorporation In view of my conclusion with regard to the incorporation of the RCL AU terms through the agency or representation of Mrs Browitt by Flight Centre, it is not necessary to deal in any detail with the other modes of incorporation relied on by the applicants. Had it been necessary, I would have concluded that RCL had given Mrs Browitt reasonable notice of its terms and conditions as forming part of the cruise booking through the agency of Flight Centre such as to cause them to be incorporated. There are a number of factors which in combination lead to that conclusion:(1)It is reasonably to be expected that an ocean cruise booking will be subject to the cruise line’s terms and conditions, the contrary proposition lacking any plausibility and being contrary to experience as shown by the cases.(2)RCL had included reference to its terms and conditions adjacent to the prices of each cruise, including the cruise in question, in the glossy brochures that it published and distributed to travel agents, which references directed the reader to the back of the brochures where the terms and conditions were set out.(3)Ms Clarke showed Mrs Browitt one of the brochures and pointed out the itinerary for the particular cruise in question, which would have taken Mrs Browitt to the terms and conditions at the back of the brochure in the event that she had been interested in them.(4)Flight Centre included reference to the service provider’s “terms and conditions, including conditions of carriage and limitations of liability” and a statement that copies of the relevant service provider terms and conditions could be provided on request in the invoice that Ms Clarke had Mrs Browitt sign.(5)The reference to “conditions of carriage and limitations of liability” is sufficient to draw attention to a condition of carriage such as the exclusive jurisdiction clause.(6)Ms Clarke had easy access to such terms and conditions in the event that Mrs Browitt asked to see them, that being in the brochure, and she knew that they were there.(7)Mrs Browitt had a reasonable opportunity to read the terms and conditions prior to committing to the booking in the event that she was interested in doing so. I would not have found that the inclusion of links on RCL’s website to the RCL AU terms resulted in their incorporation. The problem is that RCL’s website included links to “AUS T&Cs”, “NZ T&Cs” and “Cruise Contract” and it is not made clear to passengers or potential passengers which of those would apply. It might have been thought that the latter was the most obvious source of the applicable contract terms, but in fact it was not intended by RCL that it would be. Indeed, it is not clear what that document is intended to cover, but it could plausibly cover Mrs Browitt’s booking. It provides for different terms to the RCL AU terms, including Florida jurisdiction and, in certain instances, arbitration.