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
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
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- Case
- [2021] FCA 653
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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.