Executive Summary

This Paper shall be focused upon deciding and determining the Inquiry into an issue affecting personal injury liability issues concerning cruise ships and passengers in light of the terms of reference attached as a document in the requirement of the assignment therefore. This paper shall present a detailed justification in regards to the personal injury liability issues concerning the cruise ships and passengers in the light and view of the terms of reference so attached herein and subject to the terms of references some material questions shall also be assessed and answered which forms the part of the terms of references so attached in the case proposition so attached in the requirement files therefore. The paper primarily deals with a detailed inquiry which has been initiated to explore the conflict of laws implications for the personal injury claims against the cruise ships operators.

Introduction

The major questions and issues which shall be determined and decided in this paper basically deals with the commencement of a law suit and initiation of lawsuit against the cruise ship operator by an Australian wherein the terms of the carriage specifically include provisions relating to the choice of forum of law pointing to a convention state and the issues of conflict of law which may rise between the commonwealth and the other states therefore. The major objective and purpose of this paper is to determine the question of conflict of the laws and how would an Australian deal with the issues of conflict of laws between the states wherein provision of similar statutes contend against each other as their terms and provisions differ. The major question in essence which is dealt with under this very paper is the question of Judicial jurisdiction in the case of an Australian alleging an offence to be committed by the Cruise ship which may or may not be operating in Australia at the time of commission of the act which is in breach of the established general laws and legislations therefore1.

In the modern times, as far as the carting capacity of the cruise ships and operators is concerned, it has become obvious and also evident that the cases of negligence and criminal rates over the ship has increased significantly and has also led to an exponential increase in the frequency of filing of cases and lawsuits against the cruise ship operators. The industry statistics have also shown and reflected that the crime rates in comparison to previous times has increased over the cruise. The major ship as far as the law of seas is considered that which country and state shall deal and initiate the judicial proceedings, inquiries and investigations against the cruise ship operator or any aggressor of any state boarding on the ship and this marks the commencement of dispute as it directly challenges and questions the Judicial independence and privilege of any state which is deprived of initiating and commencing any action, the national of whom commits the crime or if the cruise ship is registered in that nation or if the crime has been committed the ship was in the territorial jurisdictions of that very nation2. As a general rule and law it shall be material to note and figure it that a country can only claim initiation of judicial proceedings in the events and situations as has been referred to above only when the state is a party to the international customary law of the seas or its domestic law expressly asserts the similar jurisdiction.

In this paper the issue of conflict of laws shall be deal with in consonance with the Athens Convention which is an active convention drafted and designed exclusively by Italy and which expressly mentions and states the liabilities, obligations and privileges of the accused and victim over the cruise ship and deals with them in accordance to the same. As far as Australia is considered and concerned, it could be validly drawn out and observed that the commonwealth does not expressly provides for any kind of domestic law and legislation in regards to the Seas and the legislature is drawing out the procedures and provisions for dealing with the issue wherein an a Australian wills to commence and initiate a law suit against the Cruise ship operator which in the case of Italian Convention only holds jurisdiction in Italy and no where else which Australian Commonwealth deems to be unfit and insufficient and there shall be a separate forum in Australia itself as far as the Personal injury and loss to the Australian National is considered and concerned3.

Considering the Athens Convention and United States Law on dealing the matter of the seas and negligent actions of the cruise ship operators the Australian Commonwealth legislation also wishes and assumes to draft a similar legislation expressly dealing with the personal injuries and issues of Australian National and citizen boarding on a Cruise ship.

The likely conflict of laws which may or could arise in response to the question which have been stated and detailed above it could be reasonably drawn and observe that the Conflict is bound to arise where the provisions relating to the contractual arrangements and liabilities of the cruise ship operators are differ according to different states and there are exemplified and diversified version of the law relating to seas therefore. In this case also, the most common conflict which may arise in the case of Australia not having any defined statue may relate to Jurisdiction of the judicial entities and authorities in dealing with the lawsuits commenced and filed by the nationals of other states, enforcement of the judgements awarded and determined by the alien states, choice of law and cross vesting4.

These are some of the primary issues which are bound to arise as a part of the conflict and measures needs to be chalked out in accordance to the Common Law of Seas which is the United Nation Convention on the Law of Seas. The UNCLOS shall be considered to be the remedy in such a case in regards to the issues that may arise in the course of the subjects on which the state might not have legislated and provided with the express terms and provisions therefore. As far as the law relating to the Sea is considered and concerned, it shall be sound and valid to interpret and assume that the International Law shall hold good over all the states and the cruise ship operators too therefore.

This law shall only come into force on the subjects of the conflicts between any two states which is the probable consequence in this present context where the Athens Convention deals with the cruise ship operators in a different manner and Australian Commonwealth legislation attempts to deal with the same in a different manner so to preserve and protect the interests of its own nationals and citizen as far as commencement of law suit against the negligent activities of the Cruise operator or any alien offence upon the ship is considered with special and particular reference to the Personal injuries and losses suffered over the shop, not relating to any assets or property of the ship therefore.

It could be reasonably drawn that United Nation Convention on Law of Seas seeks to protect and preserve the maritime and commercial activities over the ship in International Waters, there are certain other provisions having general applicability which suggests and supports the inference and observation that the Domestic Law and state also has the power to seek extraterritorial application relevant to prosecution of crimes committed on ship. International Law comes into play in these cases wherein the conflict of interests arise between the states, as in this case between Australia commonwealth and Italy. As far as Australia is concerned and considered, there are two major legislation which shall be considered for the purpose of determining the rights of Australia to claim prosecution of Cruise Ship operators if they resort to any kind of criminal activities therefore in the event of ship on voyage.

The legislations are Crimes At Sea Code, 2000 and 2002 Amendments to the Criminal Code Act, 1995. The major issues which could be derived from an in depth study of the legislation herein is the ineffective territorial jurisdiction of the application of the laws therefore. The limiting provisions of UNCLOS on some events also restricts the territorial privilege and freedom of the states in the event of no domestic law for dealing with the specific matters as regarding the personal injury suffered by the passengers due to the negligence of the cruise ships operators.

As far as the liability and duties of the Cruise Ship operator is concerned and considered, it could be validly inferred and drawn out in this case that the registration of the cruise ship shall be material and on priority basis shall be assessed and evaluated for determining the liabilities therefore as in this case also. Although the nature of relationship between the passengers and cruise ship operators is considered to be Contractual there are certain terms and provisions which shall be taken care off as far as the dealings and operations between the two parties is considered and negligent activities shall also be dealt with in accordance to the same. The flag state shall be considered to be nationality of the ship and the laws of the flag state shall apply as far as the contractual arrangement and agreement between the parties is observed and considered.

As far as the issue of personal injury due to the criminal activity on the ship is considered, it could be validly drawn and chalked out that the country where you are docked apply to in the claims of negligence. It has been expressly provided for as an essence of International Law of Seas and any conflict of law arising in such a Case shall be dealt with accordingly to the docked position of the cruise ships and negligence shall be punished and sanctioned accordingly.

As the relationship between the parties are considered to related to be under Contractual thread and arrangement it must be valid to note in the above case that, in the absence of any statute the case shall be dealt with by only the judicial organ and authority whom the parties will to refer to in the event and case of any of the dispute and concerns. The contract with the cruise ship operator shall be treated as standard contract dealings and hence the terms and conditions are pre-defined and pre-assessed and hence the priority in any of the case shall be dealt in accordance to the rules of the contract and the will of the parties so agreed to therefore.