Fanning v Trailfinders Ireland Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Bernard J. Barton
• Judgment Date: 08 March 2021
• Neutral Citation: [2021] IEHC 247
• Docket Number: [Record No. 2016/6403P]
• Court: High Court
• Date: 08 March 2021

BETWEEN

CAROLINE FANNING

PLAINTIFF

AND

TRAILFINDERS IRELAND LIMITED

DEFENDANT

AND

RCL CRUISES LIMITED

THIRD PARTY

[2021] IEHC 247

Bernard J. Barton

[Record No. 2016/6403P]

THE HIGH COURT

Trial of preliminary issues – Choice of law – Defamation – Defendant seeking the trial of preliminary issues of law – Whether Irish law was the proper law governing the alleged causes of action in defamation, false imprisonment and assault and battery

Facts: The plaintiff, Ms Fanning, brought proceedings in contract and tort for loss and damage sustained by the plaintiff during a voyage in the Caribbean on the ‘Oasis of the Seas’, a luxury cruise liner owned and operated by the third party, Royal Caribbean Cruises Ltd (RCL). The ship embarked from Port Lauderdale, Florida, on the 8th August 2015 and was scheduled to disembark at the same port a week later having visited the islands of St Thomas, St Maarten and Nassau in the Bahamas, where the ship was registered. The cruise was booked with and arranged by the defendant, Trailfinders Ireland Ltd, under contract with RCL. The plaintiff paid the defendant for the holiday on the 7th July 2015. Consequent upon the closure of the pleadings the defendant brought a motion pursuant to Order 25, Rule 1 and Order 34, Rule 2 of the Rules of the Superior Courts 1986, as amended, (the choice of law motion) for the trial of the following preliminary issues of law: (i) whether Irish law is the proper law governing the alleged causes of action in defamation, false imprisonment and assault and battery; (ii) if Irish law is not the proper law, whether the law of the Commonwealth of the Bahamas is the proper law governing said causes of action, and; (iii) if the law of the Commonwealth of the Bahamas is the proper law, whether the plaintiff is entitled to trial by judge and jury in respect of the said causes of action. The plaintiff’s case was that all of the causes of action pleaded against the defendant in the proceedings were governed by Irish law whereas the defendant contended that the causes of action which were the subject of the motion (the subject causes of action) were governed by the law of the Bahamas. In the course of the hearing of the motion the defendant and RCL conceded that matters of procedure, including the mode of trial, were governed by Irish law: Kelly v Groupama [2012] IEHC 177.

Held by the High Court (Barton J) that the proper law governing the subject torts in defamation, false imprisonment and assault and battery was the law of the flag which, in this instance, was the law of Commonwealth of the Bahamas. Barton J added that on the basis of the evidence adduced on the affidavits, the damage alleged to have been suffered as a result of the subject torts most likely occurred in the territorial waters of a littoral state which in this instance was in the same state where the ship was registered, the Bahamas, thereby also attracting the application of Article 4(1) of Regulation (EC) No. 864/2007 of The European Parliament And The Council of 11th July 2007 on the law applicable to non-contractual obligations (Rome II). Barton J saw no major difference between the exercise of charging a jury on the law of another state or on Irish law; either way the task the jury is required to undertake is the same, namely, to find the facts and thereafter to apply the law as directed to the findings made. The trial judge would need to be familiarised with the appropriate standards and duties under Bahamian law as proved but having done so Barton J would not consider the task of charging the jury on the law significantly more burdensome than giving them directions on Irish law.

Barton J held that the proper law to be applied to the determination of the plaintiff’s claims in defamation, false imprisonment and assault and battery was the Law of the Commonwealth of the Bahamas.

Trial of preliminary issues of law.

JUDGMENT of Mr. Justice Bernard J. Barton delivered on the 8th day of March, 2021

Introduction

1 These proceedings are brought in contract and tort for loss and damage sustained by the Plaintiff during a voyage in the Caribbean on the ‘Oasis of the Seas’, a luxury cruise liner owned and operated by the third party, Royal Caribbean Cruises Limited (RCL), a Liberian corporation headquartered in Miami, Florida, USA. The ship embarked from Port Lauderdale, Florida, on the 8th August 2015 and was scheduled to disembark at the same port a week later having visited the islands of St Thomas, St Maarten and Nassau in the Bahamas, where the ship is registered. The cruise was booked with and arranged by the Defendant under contract with RCL. The Plaintiff paid the Defendant for the holiday on the 7th July 2015 and was accompanied by her daughter, Miss Caitlin Fanning.

2 It is agreed between the parties that the contract between the Plaintiff and the Defendant is governed by the Package Holiday and Travel Trade Act 1995 and that the Irish courts have jurisdiction to hear and determine her claims both in contract and in tort. The claims in tort are brought in negligence, trespass to the person and defamation and rise from the alleged conduct of the employees and /or agents of RCL during the cruise. On the 9th August 2015 the Plaintiff and her daughter were disembarked on the at Nassau in the Bahamas on the order of the ship's captain. Having regard to the facts pleaded in the General Endorsement of Claim on the Plenary Summons to ground the Plaintiff's claims, the Defendant sought and, on the 20th March 2017, obtained an order joining RCL as a third party to the proceedings. Following the making of that order RCL indemnified the Defendant and took over the conduct of the defence.

3 For reasons which are not material to the matters with which this judgment is concerned the proceedings took a protracted course. A Statement of Claim was eventually delivered on the 21st February 2019. A Defence was delivered on the 22nd May 2019 and was followed by an amended Defence delivered on the 4th November 2019. In addition to traversing the Plaintiff's claims, it was pleaded in this defence that as the causes of action in defamation, false imprisonment and assault and battery arose out of acts or omissions alleged to have occurred on a ship then on the high seas, and thus not subject to the jurisdiction of the Irish courts, the proper law applicable to the determination of the issues raised therein was not Irish law.

4 The Plaintiff had initially sought to have all causes of action tried by judge and jury and had set the action down and had served notice of trial on the 26th April 2017. Thereafter the Defendant sought and, on the 24th April 2018, obtained an order to have the notice of trial set aside. The order directed that the Plaintiff was entitled to have her claims in defamation and trespass to the person tried by judge and jury with the claims in negligence and breach of contract to be tried thereafter by a judge sitting alone. On the 2nd of December 2019 Plaintiff delivered a Reply by which she joined issue with the Defendant on its amended Defence and by special reply pleaded that Irish law was the proper law for the determination of her claims in defamation, false imprisonment and assault and battery.

The Issues

5 Consequent upon the closure of the pleadings the Defendant brought a motion pursuant to Order 25, Rule 1 and Order 34, Rule 2 of the Rules of the Superior Courts 1986, as amended, (the choice of law motion) for the trial of the following preliminary issues of law:

(i) Whether Irish law is the proper law governing the alleged causes of action in defamation, false imprisonment and assault and battery;

(ii) If Irish law is not the proper law, whether the law of the Commonwealth of the Bahamas is the proper law governing said causes of action, and;

(iii) If the law of the Commonwealth of the Bahamas is the proper law, whether the Plaintiff is entitled to trial by judge and jury in respect of the said causes of action.

The issues which fall for determination on this application raise questions of private international law and ancillary matters and are the primary focus of this judgment. In brief, the Plaintiff's case is that all of the causes of action pleaded against the Defendant in these proceedings are governed by Irish law whereas the Defendant contends that the causes of action which are the subject of the motion (the subject causes of action) are governed by the law of the Bahamas. In the course of the hearing of the motion the Defendant and RCL quite correctly conceded that matters of procedure, including the mode of trial, were governed by Irish law, see Kelly v. Groupama [2012] IEHC 177. The issues arising are best understood and contextualised against the background from which they emerged.

Background.

6 The Plaintiff is a practising solicitor. She was unrepresented on the hearing of the choice of law motion but subsequent thereto she retained solicitors and counsel. The Defendant and RCL were represented by the same solicitors and counsel and presented a united front on the choice of law motion. Although this is addressed to the Plaintiff, for reasons which will become apparent RCL will also be referred to in conjunction with the Defendant throughout the judgment. The approach taken by these parties has a significance to the outcome of the choice of law motion.

7 The proposition advanced on behalf of these parties that the law of the Bahamas is the proper law applicable to the determination of the Plaintiff's claims in defamation, assault and battery and false imprisonment, is founded on circumstances, including the location and time of the commission of the acts about which the Plaintiff complains. In short, the ‘Oasis of the Seas’ is registered in the Bahamas, flies the Bahamian flag and was on the high seas or was in the territorial waters of the Bahamas when the subject torts are alleged to have taken place....