The Nygh text makes clear, the Australian choice of law rules for personal injuries on ships is far from settled. However, the focus of this Inquiry is the choice of forum/choice of law clause cited above – the Clause.
As the Nygh text makes clear, the Australian choice of law rules for personal injuries on ships is far from settled. However, the focus of this Inquiry is the choice of forum/choice of law clause cited above – the Clause.
The conflict of laws perspective includes all the topics addressed in LAWS5057 including jurisdiction, enforcement of judgments, cross-vesting, forum non conveniens and choice of law.
The following questions are to be answered on the basis that the Statute has been enacted in Australia:
What would be the effect on your response to Question2 if the Statute was enacted here?
If legislation like the Statute was enacted in Australia, discuss enforcement of judgment issues that may arise.
Would you suggest any substantive changes to the Statute and explain the benefit of the changes? You may consider the Carnival decision and the American experience with the Statute in your response
MY ANSWER:
1) If the statue is enacted in Australia then it would fall under the Australian court. But if the
Australia will still not be a part of the Athens Convention and the cruise ship has identified
specifically a country in the contract, then the Jurisdiction will fall under the country in the
contract, The Australian statute will only be applicable to australian cruise ship.
Moreover The Statute would provide a cause of action for persons who are injured by a
vessel, and would allow for the recovery of damages from the vessel owner. The Statute would also create presumption that the vessel owner is liable for damages caused by the vessel, and would allow for the recovery of punitive damages in certain cases.
2) If the Statute was enacted in Australia, there would be some enforcement issues that may arise. For example, if a judgment was obtained against a vessel owner in Australia, the owner may attempt to avoid liability by transferring the vessel to another person. However, the Statute would allow for the recovery of damages from the transferee in such cases.
If legislation similar to the Statute were to be implemented in Australia, there would be a number of concerns about the execution of judgments that may possibly come up. To begin, it is essential to ascertain whether or not the court in Australia has the authority to hear and decide the case. If both parties to the contract are Australian nationals or have their primary residence in Australia, then it is quite probable that the court in Australia will have jurisdiction over the dispute. If, on the other hand, the parties to the contract are not citizens of Australia and do not have a permanent residence in the country, then it is far less probable that an Australian court would have jurisdiction over the dispute. Second, even if the Australian court does have jurisdiction over the case, it is possible that the court will choose not to exercise such jurisdiction in favor of an alternative court in a different nation that is more convenient for the parties involved. Thirdly, even if the Australian court does exercise jurisdiction and render a judgment, it may be difficult to enforce that judgment in another country if that other country does not have a treaty with Australia that provides for the reciprocal enforcement of judgments. This is because Australia is party to a number of treaties that provide for the reciprocal enforcement of judgments.
3) I would suggest that the Statute be amended to provide that it does not invalidate choice of forum or choice of law clauses in cruise ship contracts that purport to limit the liability of the shipowner, master, or agent for personal injury or death caused by negligence or fault of the owner or the owner’s employees or agents, or that purport to limit the right of a claimant for personal injury or death to a trial by a court of competent jurisdiction, unless the court finds that the choice of law or forum clause violate. The inclusion of such an amendment would have the advantage of enabling cruise ship operators to continue including choice of forum and choice of law clauses in their contracts, while at the same time ensuring that such clauses are not used to unfairly limit the legal protections afforded to passengers.
i just need help adding in case law and legislation to support my answers. And Could you please expand on that but in regards to Italian law Athens convention, and international convention injury compensation
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