Saidden v Norwegian Cruise Line Holdings Pty Ltd

[2021] NSWCATCD 10

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Saidden v Norwegian Cruise Line Holdings Pty Ltd [2021] NSWCATCD 10

Hearing dates:

4 March 2021

Date of orders:

07 May 2021

Decision date:

07 May 2021

Jurisdiction:

Consumer and Commercial Division

Before:

J Searson, General Member

Decision:

The Tribunal declines to deal with the application as it has no jurisdiction to determine these proceedings.

Catchwords:

CONSUMER CLAIM – shipping contract; compensation JURISDICTION – federal matter, maritime claim.

Legislation Cited:

Admiralty Act 1988 (Cth)

Civil and Administrative Tribunal Act 2013 (NSW)

Cases Cited:

Globelink International Pty Ltd v Lemesh [2020] NSWCATAP 193

Wilson v Chan & Naylor Parramatta Pty Ltd [2020] NSWCA 213

Dalton v Qantas Airways Ltd; Dalton v Morrison [2020] NSWCATCD 2

Burns v Corbett; Burns v Gaynor; Attorney General for New South Wales v Burns; Attorney General for New South Wales v Burns; New South Wales v Burns [2018] HCA 15; Gatsby

Murphy v Trustees of Catholic Aged Care Sydney [2018] NSWCATAP 275

Category:

Principal judgment

Parties:

Moneir Saidden – Applicant
Norwegian Cruise Line Holdings Pty Ltd - Respondent

Representation:

Applicant in person

Ms Worthy and Ms Inwood for the Respondent

File Number(s):

GEN 20/41447

Publication restriction:

Unrestricted

REASONS FOR DECISION

1. In this matter the applicant is seeking an order that the respondent pay him an amount of $11636.39 compensation. This amount is made up of a refund of his cruise fee of $3086.93, return airline ticket of $1488.20, amount paid to change his airline ticket $8849.59 total $13424.72 less $200 and $1588 which had previously been refunded by the respondent to the applicant.

2. The application was opposed by the respondent.

Factual background

3. The Tribunal makes the following findings of fact:

1. The applicant booked a cruise with the respondent on the “Norwegian Sprit” on or about 6 January 2020. The applicant paid the amount of $3086.93 to the respondent on or about 9 January 2020 for the cruise. The sailing date was on 2 March 2020 from Dubai United Arab Emirates to disembark on 22 March 2020 in Cape Town South Africa (“the cruise”).

2. On 14 January 2020 the applicant booked a flight to fly from Sydney to Dubai and return to Sydney from Cape Town on 23 March 2020. The applicant paid a total of $1488.26 for these flights.

3. On or about 8 February 2020 the applicant received an email from the respondent outlining some changes to the acceptance criteria to the cruise because of the COVID 19 virus.

4. On 1 March 2020 the applicant flew from Sydney to Dubai and joined the cruise.

5. From 5 March 2020 the cruise was stranded due to COVID 19 and did not dock at any ports.

6. The cruise was heavily impacted by Government Port closures due to the ongoing and emerging COVID-19 pandemic.

7. On 18 March 2020 the applicant received a letter from the respondent stating that all passengers were to leave the cruise at Cape Town and must have a flight out on 22 March 2020.

8. As the cruise was sailing in South African waters the respondent was governed by South African rules and regulations.

9. On or about 19 March 2020 the applicant changed his flight back to Sydney from Cape Town to 22 March 2020 at a cost of $9339. This was a day earlier than his previously booked return flight.

10. The applicant has been provided with a 50% refund of his voyage fare totalling $1189.82 and also received an on board credit of US $200 and a future 75% cruise credit as a gesture of goodwill.

JURISDICTION

4. In this matter there is a preliminary question about whether the Tribunal has jurisdiction to hear and determine this matter.

5. This is because the application may be a “general maritime claim” as set out in section 4 of the Admiralty Act 1988 (Cth) (“Admiralty Act”). If that is the case then the Tribunal does not have jurisdiction to hear and determine this matter as it would require the exercise of federal jurisdiction. This is because the Tribunal is not a court of the state: see section 9 of the Admiralty Act and Burns v Corbett; Burns v Gaynor; A-G for New South Wales v Burns; New South Wales v Burns [2018] HCA 15.

6. The issue of jurisdiction was raised by the respondent. Both parties were invited to provide submissions on this issue at the hearing.

7. As noted in the matter of Globelink International Pty Ltd v Lemesh [2020] NSWCATAP 193 at 20:

“The Tribunal, including the Appeal Panel, has the duty to satisfy itself whether a claim made to it is within the limited jurisdictional authority conferred on the Tribunal by the Civil and Administrative Tribunal Act (2013) (CAT Act) or any other enabling legislation conferring jurisdiction on it. This duty carries with it the authority to determine whether or not the Tribunal has the jurisdiction to determine the claim before it. If the question is, as is the case here, whether the matter requires the Tribunal to exercise federal jurisdiction, the determination of the question of whether it has jurisdiction does not mean that the Tribunal is exercising federal jurisdiction, rather it is exercising power given to it, by necessary implication and anterior to the exercise of federal jurisdiction, to determine whether it has the necessary jurisdiction to determine the claim: Wilson v Chan & Naylor Parramatta Pty Ltd [2020] NSWCA 213 at [12]-[15] per Leeming JA with whom Macfarlane JA agreed and White JA at [73]. If we determine that the Tribunal did not have the jurisdiction to determine the claim, it will be unnecessary to otherwise deal with the issues raised on the appeal, including the reasonableness of any fees charged by Globelink”.

8. Section 4 of the Admiralty Act 1988 (Cth) relevantly sates:

Maritime claims

(1)   A reference in this Act to a maritime claim is a reference to a proprietary maritime claim or a general maritime claim…

(3)   A reference in this Act to a general maritime claim is a reference to:

(a)   a claim for damage done by a ship (whether by collision or otherwise); or

(b) a claim in respect of the liability of the owner of a ship arising under Part II or IV of the Protection of the Sea (Civil Liability) Act 1981 or under a law of a State or Territory that makes provision as mentioned in subsection 7(1) of that Act; or

(ba)   a claim under:

(i) the applied provisions (within the meaning of the Protection of the Sea (Civil Liability for Bunker Oil Pollution Damage) Act 2008); or

(ii)   a law of a State or Territory of a kind referred to in subsection 10(1) of that Act; or

(c)   a claim for loss of life, or for personal injury, sustained in consequence of a defect in a ship or in the apparel or equipment of a ship; or

(d)   a claim (including a claim for loss of life or personal injury) arising out of an act or omission of:

(i)   the owner or charterer of a ship;

(ii)   a person in possession or control of a ship; or

(iii)   a person for whose wrongful acts or omissions the owner, charterer or person in possession or control of a ship is liable; being an act or omission in the navigation or management of the ship, including an act or omission in connection with:

(iv)   the loading of goods on to, or the unloading of goods from, the ship;

(v)   the embarkation of persons on to, or the disembarkation of persons from, the ship; and

(vi)   the carriage of goods or persons on the ship; or

(e)   a claim for loss of, or damage to, goods carried by a ship; or

(f)   a claim arising out of an agreement that relates to the carriage of goods or persons by a ship or to the use or hire of a ship, whether by charterparty or otherwise; or

(g)   a claim relating to salvage (including life salvage and salvage of cargo or wreck found on land); or

(h)   a claim in respect of general average; or

(j)   a claim in respect of towage of a ship; or

(k)   a claim in respect of pilotage of a ship; or

(m)   a claim in respect of goods, materials or services (including stevedoring and lighterage services) supplied or to be supplied to a ship for its operation or maintenance; or

(n)   a claim in respect of the construction of a ship (including such a claim relating to a vessel before it was launched); or

(o)   a claim in respect of the alteration, repair or equipping of a ship; or

(p)   a claim in respect of a liability for port, harbour, canal or light tolls, charges or dues, or tolls, charges or dues of a similar kind, in relation to a ship; or

(q) a claim in respect of a levy in relation to a ship, including a shipping levy imposed by the Protection of the Sea (Shipping Levy) Act 1981, being a levy in relation to which a power to detain the ship is conferred by a law in force in Australia or in a part of Australia; or

(r)   a claim by a master, shipper, charterer or agent in respect of disbursements on account of a ship; or

(s)   a claim for an insurance premium, or for a mutual insurance call, in relation to a ship; or

(t)   a claim by a master, or a member of the crew, of a ship for:

(i)   wages; or

(ii)   an amount that a person, as employer, is under an obligation to pay to a person as employee, whether the obligation arose out of the contract of employment or by operation of law, including the operation of the law of a foreign country; or

(u) a claim for the enforcement of, or a claim arising out of, an arbitral award (including a foreign award within the meaning of the International Arbitration Act 1974) made in respect of a proprietary maritime claim or a claim referred to in one of the preceding paragraphs; or

(w)   a claim for interest in respect of a claim referred to in one of the preceding paragraphs.

(bold emphasis added)

9. Section 9(1) of the Admiralty Act says:

9(1)   Jurisdiction is conferred on the Federal Court, the Federal Circuit Court and on the Courts of the Territories, and the courts of States are invested with federal jurisdiction in respect of proceedings commenced as actions in personam:

(a)   On a maritime claim; or

(b)   On a claim for damage done to a ship.

10. As noted in the matter of Globelink International Pty Ltd v Lemesh [2020] NSWCATAP 193 at 31 “Section 9 of the Admiralty Act (set out above) confers jurisdiction for maritime claims on the Federal Court, the Federal Circuit Court and courts of the State which are invested by that section with federal jurisdiction to hear in personam maritime claims. However, as has been referred to above, the authorities are clear that the Tribunal is not a court of the State”.

11. This issue for determination is whether in fact the claim is one which falls under section 4 of the Admiralty Act and therefore is a federal matter.

12. As set out in Dalton v Qantas Airways Ltd; Dalton v Morrison [2020] NSWCATCD 2 at 47 “A summary of what constitutes a federal matter and the applicable principles to be applied in making such determination was set out by the Appeal Panel in Murphy v Trustees of Catholic Aged Care Sydney [2018] NSWCATAP 275 (Murphy) at [22] and the cases referred to therein. Relevant to a resolution of the issue in the present case are the following principles:

1. to identify the “matter” it is necessary to identify the justiciable controversy: Murphy at [22(2)];

2. a federal matter will arise whenever the right, duty or enforcement owes its existence to federal law: Murphy at [22(6)];

3. a federal matter will also arise where the source of defence is a federal law: Murphy at [22(8)];

4. it is not necessary for the form of relief sought to depend on federal law: Murphy at [22(7)];

5. unless a federal issue is colourable, the whole of the proceedings is a federal matter requiring the exercise of federal jurisdiction: Murphy at [22(9)].”

13. Having regard to facts and the principles set out above in Murphy it would appear that the claim in the present matter and the relationship between the parties arose as a result of a contract between the parties for the carriage of the applicant by ship which was operated by the respondent.

14. It appears that the applicant is seeking reimbursement from the respondent of the full cost of his cruise (50% having already been paid back to him) due to events that transpired whilst he was on the ship and were related to the COVID 19 pandemic. This claim could be considered to be a “general maritime claim” pursuant to section 4(3)(d)(vi) of the Admiralty Act.

15. The balance of the claim relates to the reimbursement of expenses related to the cruise, including payment of additional monies to change flight dates which could be considered to have arisen out of the agreement that relates to the carriage of persons by ship pursuant to section 4(3)(f) of the Admiralty Act.

16. As noted in the matter of Dalton v Qantas Airways Ltd; Dalton v Morrison [2020] NSWCATCD 2 (“Dalton”) at 45:

“Determining the existence of the contract, the existence of some relevant right of action and making orders to award damages in consequence of any breach constitutes the exercise of judicial power as it “settles for the future, as between defined persons, … [by] the existence of the right or obligation: Gatsby per Bathurst CJ (with whom Beazley P (at [197]) McColl JA (at [199]) and Leeming JA (at [279]) agreed) at [123] and following, particularly at [123] and [126]”.

17. Further in the same matter at 46 it was stated that:

“Consequently, the Tribunal is unable to do so if it would require the exercise of federal jurisdiction: Burns v Corbett; Burns v Gaynor; Attorney General for New South Wales v Burns; Attorney General for New South Wales v Burns; New South Wales v Burns [2018] HCA 15; Gatsby”.

18. Having regard to the issues raised in the current application, it is clear that there is a claim or defence that arises under Commonwealth law, the claim being a general maritime claim as defined in section 4 of the Admiralty Act. Therefore, the application requires the exercise of federal jurisdiction.

19. It follows from the above that the Tribunal does not have jurisdiction to determine the claim and declines to do so.

20. It is therefore unnecessary to otherwise deal with the issues raised in the current application.

21. It is for the applicant to decide if he wishes to seek the leave of a court as set out in Part 3A of the Civil and Administrative Tribunal Act 2013.

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I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 28 July 2021