Not Locked in the Brig, But Locked Up

In a recent decision of the Court of Appeal in the Supreme Court of New South Wales, the Court was called upon to consider the ability of the captain of a ship to detain a passenger against the passenger’s will.

Briefly the facts were that on a cruise ship Passenger A was suspected of committing assault against Passenger B.

The captain of the ship had Passenger A detained in a cabin for a period of five days during the cruise.

Passenger A, upon return to Australia, commenced legal proceedings against the owner of the cruise ship claiming damages for wrongful detention and false imprisonment.

The alleged assault occurred whilst the ship was in international waters.

The proceedings in New South Wales were commenced as if the assault had occurred in New South Wales and accordingly was governed by the law of New South Wales.

The ship in question was a Bahamian Flag Cruise Ship but neither Passenger A nor the owner of the cruise ship pleaded Bahamian law as part of the proceedings. 

The New South Wales Court of Appeal confirmed that a master of a ship is justified in arresting and confining in a reasonable manner and for a reasonable period of time, any person on board his ship if he has reasonable cause to believe that the confinement is necessary for that purpose but also that the master must in fact believe that the confinement is necessary for that purpose.  For the preservation of order and discipline or for the safety of a vessel or a person or property on board.

Unlike the sailors being “locked in the brig” in this case, security officers and the ship’s medical staff regularly checked on Passenger A’s welfare.  Passenger A was also provided with an opportunity to make twice daily visits to the crew deck where Passenger A had access to the open air and opportunity to smoke.  Passenger A also had twenty-four (24) hour access to food and non-alcoholic beverages as well as the opportunity to acquire clothing from the gift shop on the ship.

Those circumstances appear to be a long distance from the conditions shown in the Pirates of the Caribbean. 

The Court also indicated that generally speaking unless the applicability of foreign law (in this case, Bahamian law) and its content is permitted and approved in the proceedings, there is a presumption that the content of the foreign law applicable under the relevant choice of law rule is the same as the substantive law of the forum (in this case, New South Wales) where the proceedings were commenced.

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