THE COPYRIGHT IN THIS MATERIAL IS OWNED BY CAROLINE FANNING SOLICITOR

29/3/2024

High Court of Ireland Admiralty Justice Denis McDonald delivered his judgment on 26/03/2024 in the above cases involving a collision between a 37-metre long Kirrixhi fishing trawler and  a large merchant ship chartered by Hua Sheng Hai Ltd. carrying 44,000 tonne cargo of bauxite to Aughinish Alumina in Limerick on 11/10/2019 off the Kerry coast at hearing in Feb/Mar 2023

The vessel owners sued each other for damages alleging negligence against each other.

The learned Trial Judge found the 2007 English common law case of  The Forest Pioneer (Steel J.) of very persuasive authority having a similar factual matrix and the High Court was able to interpret and apply this case without the assistance of “foreign law” experts and ruled Hua Sheng Hai 15% liable and the fishing trawler Kirrixhi captained by Antelo Malabe 85% liable  (noting same % as in The Forest Pioneer) with the issue of quantum and costs to be adjudicated on at a later date.

One interesting aspect of this case is Order 64, r.36(1) RSC ~ the parties to collision actions of this type are required to deliver “preliminary acts” – contain certain prescribed factual particulars relevant to the collision – within 7 days after the commencement of the action (in the case of a plaintiff) or 7 days from entry of appearance (in the case of a defendant).

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151. There is one further aspect of the evidence which I should identify for completeness. In his closing submissions, counsel for the Hua Sheng Hai sought to rely on the content of the preliminary act of the Kirrixki to suggest that the Hua Sheng Hai had been seen by the Kirrixki five minutes before the collision. That was not something that had been put by him to Captain Antelo Malabe in the course of cross-examination but counsel submitted that he was not obliged to do so.
152. Before considering that submission, it is necessary to explain the purpose and effect of a preliminary act. Under O. 64, r.36(1), the parties to collision actions of this type are required to deliver preliminary acts within 7 days after the commencement of the action (in the case of a plaintiff) or 7 days from entry of appearance (in the case of a defendant). The preliminary acts must contain certain prescribed factual particulars relevant to the collision. These must be delivered in advance of any pleadings and are required to be sealed up and to remain so until ordered to be opened by the trial judge. The parties are accordingly required to provide details of certain key circumstances relating to the collision before they know the detail of the case made by the other shipowner.
153. In practice, the preliminary acts are kept in sealed envelopes in a locked safe in the office of the Admiralty Marshal until they are given to the trial judge. Under the Civil Procedure Rules, they are no longer required to be filed in England & Wales and, for that reason, they are not considered in any detail in the current edition of Marsden & Gault. However, older editions of Marsden provide helpful guidance as to their function and purpose. Thus, in Marsden on Collisions at Sea (12^th Ed, 1998, at para. 18-85), the authors explain that the answers given in the preliminary act have the status of formal admissions by the party filing the preliminary act. On that basis, counsel for the Hua Sheng Hai is legally correct that he was not under an obligation, as a cross-examiner, to put an admitted fact to the skipper of the Kirrixki. In the same paragraph, the authors suggest, citing The Semiramis [1952] 2 Lloyd’s Rep. 86, that the court may hold a party to the admissions made. But the authors also make clear that, as was held in The Geo. McKnight (1947) 80 Lloyd’s Rep. 419, the court is entitled to proceed on the evidence which it deems to be the most accurate and trustworthy. The court is therefore not bound by the admissions made by a party in its preliminary act.
154. In this case, counsel for the Hua Sheng Hai sought to rely on two paragraphs of the Kirrixxki’s preliminary act namely paras. (g) and (j). In para. (g), the Kirrixki was required to state its course and speed when the Hua Sheng Hai was first seen. The answer given was 326° and 7/8 knots. In para. (j), the Kirrixki was required to state when the lights (if any) of the Hua Sheng Hai were first seen. In response, the following answer was given at para. (j) : “The aft spotlights (not the navigation lights) were the first lights the Master saw once passed by the ‘HUA SHENG HAI'” (emphasis added). Counsel for the Hua Sheng Hai argued that, when these answers are read with the AIS records of the Kirrixki’s speed over the ground, it is clear that the Hua Sheng Hai was seen 5 minutes before the collision (which would have been sufficient time for the Kirrixki to take evasive action. For this purpose, he identified that, at 23:45:09, the speed over the ground was recorded at 7.7 knots and the heading was recorded as 327° and that, between then and 23:49:08, the speed over the ground frequently varied between 8 and 9 knots and the heading was frequently 326° or very close to it. While he could not pinpoint an exact time when the trawler’s heading was precisely 326° and the speed was between 7 and 8 knots, he submitted that the coincidence of heading and speed recorded in the preliminary act was likely to have occurred at some point within that timeframe. I have to say that I am not at all sure that this follows from the material before the court. More importantly, I do not believe that the preliminary act can properly be interpreted as suggesting that the Hua Sheng Hai was seen during this period. In my view, the answers must be read as a whole. In the first place, para. (j) identifies that it was the aft lights of the Hua Sheng Hai which were first seen and then only when “once passed by the Hua Sheng Hai”. That plainly suggests that the Hua Sheng Hai was not seen until after the collision. This conclusion is reinforced by the clear terms of para. (k) in answer to the requirement in O. 64, r. 36(1)(l) [9] to state whether any lights of the other vessel, other than those first seen, came into view before the collision. The answer given is that no lights of the Hua Sheng Hai were seen. Taking paras. (j) and (k) together, it is clear that the case made in the preliminary act is that no lights were seen until after the collision. For that reason, it seems to me that the answer at para. (g) must be read as suggesting that the speed and heading stated were those at the time of the collision. In so far as the speed of the Kirrrixki is concerned, that is consistent with the evidence of Captain Antelo Malabe in para. 58 above that the trawler increased speed to “7 to 8, 6 to knots” after the trawl doors have been lowered into the water. As noted, in para. 62 above, that is the activity which the skipper says was underway at the moment of the collision. While the AIS data shows that the speed of the trawler was higher at the time of the collision, the answer given in para. (g) of the preliminary act, when read against the other answers given, is not inconsistent with the case made at trial. Thus, although counsel for the Hua Sheng Hai was legally correct in his submission that he was not required to cross-examine the skipper about the admissions made in the preliminary act, I am of the view that, if he wished to rely on the Hua Sheng Hai’s interpretation of para. (g), he should have put that interpretation to Captain Antelo Malabe so that the latter would have an opportunity to respond to the suggestion that the Hua Sheng Hai had been seen in the five minute period before the collision. In any event, it seems to me that the terms of the preliminary act (considered as a whole) do not support the submission made by counsel for the Hua Sheng Hai. However, the preliminary act may be of some relevance in assessing the credibility of Captain Antelo Malabe’s evidence given that he now says that he saw the Hua Sheng Hai at about seven miles.”

Kimberly Wiegand testified in her video deposition obtained exclusively by DailyMail.com (https://www.dailymail.co.uk/news/article-9270467/Mother-Chloe-Wiegand-describes-breaking-video-deposition.html) that her

“sense of time was really messed up” in the immediate aftermath. The evidence of former Chief Security Office Elton Koopman formed part of the Wiegand case on appeal who “testified that Royal Caribbean knew about the risk of children falling through open windows and adults holding children in front of open windows.” ref https://www.cruiselawnews.com/2023/07/articles/passenger-rights/court-of-appeal-sends-wrongful-death-case-of-toddler-who-was-dropped-from-a-window-on-royal-caribbeans-freedom-of-the-seas-back-to-trial-court/

England and Wales Court of Appeal Lord Justice Ward has stated that

“Perhaps the most acute form of distress is that which is suffered by a parent who has lost a child.”

Caroline Fanning Solicitors sends the Wiegands every fortitude and support and will be following the progress of this case and will post updates that we become aware of.

Holden v. First Choice Holidays (at para. 9 et seq.):

“… Standards of maintenance and cleanliness vary as between countries and continents and indeed what is reasonably to be expected in a five star hotel in a Western European capital differs from what is reasonably to be expected in a safari lodge, however well-appointed.  There may perhaps be certain irreducible standards in relation to life-threatening risks……  An Englishman does not travel abroad in a cocoon”

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Jurisdiction of Irish Courts in Consumer Contracts

Casey v Redspokes LTD trading as Redspokes Adventure Tours (Approved) [2023] IEHC 297 (12 June 2023)

The proceedings take the form of a personal injuries action arising out of an accident in Sri Lanka which is alleged to have occurred while the plaintiff was participating in a cycling holiday organised by the defendant (a company domiciled in the United Kingdom).  The only circumstance which might, potentially, confer jurisdiction upon the Irish Courts is the fact that the plaintiff herself is domiciled in the Irish State.

Court held “It is a question of degree as to whether a trader is directing their commercial activities to a particular Member State.  It is not necessary for a trader to refuse ever to enter into contractual relations with a person in a particular State before it can be said that they are not directing their commercial activities to that State.  However, where a trader, as in the present case, is not only on express notice of the fact that the consumer is resident in and acting from the Irish State, but also took steps to facilitate the consumer travelling from Ireland to join the group cycling holiday, i.e. by arranging land transport from the airport in Sri Lanka, this constitutes evidence of intention.  Finally, the contact telephone number and top-level internet domain name are largely neutral factors in the present case.  Whereas the contact telephone number on the website does include the international dialling code, the domain name is a national one: “.co.uk”.  These two indicia tend to cancel each other out.  It seems from the material exhibited that communications between prospective consumers and the defendant take place mainly by email correspondence, rather than telephone.  The use of a national domain name is probably of less practical significance nowadays than it was when Pammer was decided in 2010 given that most consumers are likely to land on a website by way of an internet search rather than by typing in the domain name. The Irish Courts have jurisdiction, pursuant to Section 4 of Regulation (EU) No 1215/2012, to entertain the plaintiff’s claim for breach of a consumer contract.  In particular, the contract meets the criteria specified at Article 17(1)(c).  It follows, therefore, that the defendant’s motion to dismiss the proceedings must be refused. ”

Crime wave: Gang rape among hidden cruise horrors – NZ Herald

The company should have been well aware, as it had previously reported multiple sex assaults on its ships, as explained by Chief Judge ED CARNES: “Publicly available data reinforces the allegations in the complaint that Royal Caribbean knew or should have known about the danger of sexual assault aboard its cruise ships …

“(It) would be absurd to suggest that a multibillion-dollar business like Royal Caribbean was not aware of congressional reports about the problem of sexual assaults aboard its cruise ships.”

https://www.nzherald.co.nz/travel/crime-wave-gang-rape-among-hidden-cruise-horrors/BFJCU65GGC454LAXN7CNL6O6HU/

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McDonald v. AZ Sint Elisabeth Hospital [2014] IEHC 88, [2014] 1 I.R. 311.  The contractual claim, again, arose out of a medical procedure carried out in Belgium.  The High Court (Hogan J.) held that the Irish Courts had jurisdiction to entertain proceedings against the hospital and that the web-based promotional material (written in English and not in Flemish/French) had been clearly directed at both the UK and Ireland.  The promotional material had indicated consultation address in Dublin at a named medical centre and prospective customers had also been supplied with an Irish telephone number.  The promotional material also contained a testimonial from an Irish-based patient and reference was made to the possibility of pre-travel consultations in Dublin and Cork.  The prices for the initial consultation had been offered in both £ and $.

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Cristiano Committeri v Club Méditerranée SA (T/A Club Med Business) [2018] EWCA Civ 1889 held REGULATION (EC) No 593/2008 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 17 June 2008 on the law applicable to contractual obligations (“Rome I” -stated to have universal application in Art 2) applied as a matter of autonomous EU law to consumer package holidays. ROME I applies the law of the country where consumer lives when he books package holiday with a company that “pursues his commercial or professional activities in the country where the consumer has his habitual residence“.

Leading Irish case: Supreme Court in SCAIFE v. Falcon Leisure Group (Overseas) Limited [2008] 2 IR 359 (3 Judges) where female plaintiff slipped on liquid food substance on the hard marble floor measuring about 30 inches in diameter which, from its description, could properly be found by him to be a soup or a sauce which had fallen on the floor. She won in the High Court and the appeal by the defendant to the Supreme Court was unsuccessful with the Supreme Court stating
“The learned trial judge had before him evidence that the accident was a wholly foreseeable event on the part of the service supplier, the hotel in Spain, that they had in place a system which could have warned of the hazard and/or prevented the accident, but had not operated that system on the evening in question. In the circumstances, the learned High Court judge was entitled to find that the service in question was not supplied with reasonable skill and care. He was therefore correct to find for the Plaintiff. I would dismiss the appeal and affirm the order of the High Court.”
“The duty of care in tort arises from the proximity created by the contractual relationship. The duty extends to all matters concerning the safety, well being and comfort of the tourists which by the nature of the relationship between the tourists and those providing the service would or should be known to the latter but not to the former. … The defendants in this case were not insurers that nothing would happen to injure the plaintiff. Their obligation stops at taking all reasonable steps to ensure the safety and well being of their customers. … The test is what a reasonably prudent tour operator exercising reasonable care would consider necessary to inform those travelling with it.”

2. Winterthur Swiss Insurance Co v ICI 1990 ILRM P159

3. McMullen v. Ireland [ECHR 422 97/98. 29 July, 2004] – delays

4. Sheridan -v- Kelly & anor Supreme Court decision dated 06/04/2006 [2006] IESC 26
5. Kelly v. Cruise Catering Limited and Kloster Cruise Limited [1994] IESC 3; [1994] 2 ILRM 394 (5th July, 1994) Supreme Court “While it had been contended (by cruiseline) in the High Court that the action was based on tort rather than on contract, Geoghegan J’ s finding against the defendants on this issue was not appealed (by cruiseline).”
6. 2001 English Court of Appeal”cruise ship~large floating commercial enterprise where senior official onboard representing commercial interests of cruise operator=“purser”(hotel manager)who had authority to offer refund to passenger when his cabin refilled after guest left
7. “Regardless of contractual status ascribed to the doctor, for purposes of fulfilling the cruiseline’s duty to exercise reasonable care under #maritimelaw the ship’s doctor is an agent of the cruiseline whose negligence should be imputed to the cruise line.”Ref Carlisle v Carnival (Florida Supreme Court overturned this decision ///U.S. Supreme Court no ruling)
8. Lum v Carnival “Mr. Lum died of retching to death,”Peterson~family’s lawyer. Curtis Mase lawyer~Carnival said in court papers that company was not responsible, contending the death was act of God &Russell Lum’s own negligence contributed to his death and injuries.”
9. Nietes v. American President Lines, Ltd., 188 F.Supp. 219 (http://N.D.Cal .1959) ~the cruise line was held vicariously liable for the negligence of the ship’s doctor who was a member of the crew.
10. In this case the parents of Elizabeth Carlisle, a 14-year-old from Michigan, said she sustained lifelong health problems (including infertility) because a ship’s doctor failed for three days to recognize that her appendix had ruptured.
Cruiseline carrier under no duty to practice medicine but when it undertakes treatment of illness through medical services provided by it aboard ship it assumes duty to treat carefully &vicariously liable for medical malpractice of its doctor ref Carlisle v Carnival
11. Maritime Law embraces the principles of agency (including apparent agency) ref:Cactus Pipe & Supply Co. Inc v V. M/V Montmartre
12. 2016 English Court of Appeal(3 Judges)held failure of cruiseliners to properly implement Hygiene Plan led to passengers winning their claim for contracting Norovirus~Athens Conventions (established fault on part of cruiseline)ref:Swift&OrsvFOCL
http://www.bailii.org/ew/cases/EWCA/Civ/2016/785.html
13. Ship’s Master ignore a weather forecast of such cataclysmic magnitude and sail into that kind of storm
https://www.businesswire.com/news/home/20160212005822/en/Royal-Caribbean-Cruise-Ship-Allegedly-Ignores-Weather
14. UK Claim won based on s.4 Supply of Goods&Services Act~contract for package holiday contains implied condition~food of satisfactory quality=>irrelevant no breach of local standards(as food contaminated¬ of satisfactory quality) ref: Antcliffe v Thomas Cook Tour Operator
15. Athens 2002 applies by operation of law if Art 2 criteria met&provision in contract seeking to impose lower limits of Athens 1974 will be invalid&passenger entitled to higher limits of Athens 2002 (Art 18).Legal costs&interest on damages additional to limits(Art 10)
16. Unfair terms in Cruise Contracts ref: Ferme & Ors v Kimberley Discovery Cruises Pty Ltd. ~clause permitting cruise company to cancel scheduled cruise&forfeit all fare paid was an ‘unfair term’ under the Australian Consumer Law&consequently void&unenforceable.

17. 2019 Kellett v RCL Cruises Ltd. & ors – Cruiseline took over defence on behalf of travel agent/operator and defeated the plaintiffs’ claim for damages for personal injuries using legalistic pleadings failing to give any expert or factual evidence on the liability aspects (only witness was medical expert in relation to the plaintiff’s injuries). High Court Judge Barr held that where a consumer participated in an “adrenaline” White Knuckle Jet Boat Thrill Ride on St. Maartens(involving 360 degree turns at speed) on the open seas they could not blame anyone where they fractured their elbow on this excursion which was deemed to be part and parcel of the “adrenaline” nature of the excursion. The Judge held the boat to be “in good seaworthy condition and was safe for the activities which were proposed for the excursion” from looking at a photo of boats on the website.

JULIA LINDSEY WHITCOMB went public in or about May 2020 as a crewmember who wanted to get off a Celebrity cruiseship (owned by Royal Caribbean) and return home after some two months stuck at sea. In her livestream she stated she felt scared and stigmatised when her employer Royal Caribbean Cruises tried to persuade her she needed psychiatric assessment in order to to get her off the ship and ìn her opinion avoid compliance with the CDC guidelines. I say this crewmember was soon thereafter allowed off the ship and travelled home to Illinois by bus.

“You are anxious, are you ok? I said, eh I’m not really doing ok, em I’m anxious. Well why are you anxious? I said well I’m anxious for most reasons and I’m not that comfortable talking about it, but I’m kind of fearful of this process so far, em I don’t know who to believe at this point and it makes me fearful and I want to leave. Em, ok, and she asked me from the hall, she goes well do you want to kill yourself? And I said, not right now! And she goes, well do you want to harm anybody else? And I said no. She goes ok, well I just want to give you the opportunity for something that we are planning, that we want to give you the option to do.

Em, if you feel that you want to be psychiatrically tested, we are willing to take you to a hospital, a hospital in Fort Lauderdale and leave me there for two weeks. They said, they said you can go to this hospital and get psychiatric tests, testing. Em, and then from that point on, they can eh, they’ll do whatever they want with you, I guess. I think that maybe they’ll find a place to quarantine you or something. Em we just want to give you the company, we want to give that you as an option.

And I was like, you already planning on leaving, you already told me I was leaving. So I said, no I think, I think I want to…I think there may be something in Harmony and I rather go home. Em, well are you sure, because are you sure that you can heal at home? Are you sure you have the resources to heal at home? And I said yeah. And she offered me this deal two more times, to get psychiatrically tested, to send me to a hospital, to leave me in a hospital for two weeks, to get away from…this was a way to accommodate me in a sort of way and getting me off the ship and for them to not have to sign this thing that the CBC is a requirement that they signed.

So they tried to wave all of that, at least that’s my impression of what happened. Maybe I’m crazy. But perception if reality and it was minute and it was two hours after we were stated to leave. So it was very sceptical, it was very sketchy, it was very scary, I felt stigmatised as a black woman, I felt very stigmatised, that they just wanted to get rid of me and dispose of me by putting me in a hospital. So that they didn’t have to sign a document, so that they could leave me and I was out of their hair. And it’s very disturbing. I have had a really tough time with this company now. And especially given that incident. I just feel really eager to get off this ship. And I don’t feel comfortable talking to anybody onboard anymore.

So I just really wanted to share that very specific incident, because I found it very disturbing, I found it hurtful, I found it scary. My boyfriend was present too and he echoes all of that. And I think that they are going to whatever they want at this point with me. So therefore that’s why I have been so loud and so vocal online.

So anyway thanks again for helping me through this whole process, I’m pushing, I’m trying, I’ll communicate with you guys the best that I can, it’s been…I have gotten so many messages and it’s so hard to answer all of them. I’m going to try though. But in the meantime, I’ll just keep you updated, about every single thing that happens, especially when it feels icky. Ok, alright, that’s all thank you.

End. “

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AVIATION LAW
Art 5(1) of EC Regulation 261/2004 provides for compensation for passengers whose flight is cancelled