KARPIK V CARNIVAL PLC (THE “RUBY PRINCESS”)

[2021] FCA 1082, Federal Court of Australia, Stewart J, 10 September 2021

Contracts (carriage of passengers) – Outbreak of Covid-19 onboard cruise ship – Passengers’ claim in tort and under consumer legislation – Application for stay – Incorporation of terms – Carrier’s terms and conditions – Exclusive jurisdiction clause – Class action waiver clause – Consumer law – Unfair terms –Representative proceedings under Part IVA of the Federal Court of Australia Act 1976 – Australian Consumer Law, sections 18, 29, 60 and 61

An outbreak of Covid-19 on board Ruby Princess in March 2020 had caused illness and death among passengers on board. The applicant, Mrs K, and her husband had become ill and now claimed against the first respondent time charterer and the second respondent owner and operator of the vessel. These were representative proceedings on behalf of group members including a passenger group, an executor group (representing the estates of deceased persons) and a group of close family members of those affected. Claims were brought in tort and under the Australian Consumer Law. This was the respondents’ application for a stay of claims, on the ground that some of the passengers’ bookings were subject to US terms and conditions or UK terms and conditions, which contained various dispute resolution clauses. The US terms contained an exclusive jurisdiction clause and a class action waiver clause. The UK terms were made subject to non-exclusive English jurisdiction, English law and the EU and UK Athens Convention framework, that is, the 2002 Protocol and Regulation (EC) No 392/2009. Mr H and Ms W respectively were designated as representative cases for these sub-groups of claimants. The respondents alleged notably that the claims were an abuse of process and that the court was a clearly inappropriate forum in which to hear them.