2022 s1

.docx
School
Monash University **We aren't endorsed by this school
Course
UNKNOWN LAW
Subject
Law
Date
Sep 6, 2023
Pages
8
Uploaded by ColonelStraw11655 on coursehero.com
THE EXAM Common Background Facts The cruise In early 2022, the cruise ship "Sea Queen" departed from Melbourne on an 11-day return cruise along the coast to Western Australia. Half-way through the voyage, the Sea Queen sank after hitting underwater rocks near an island off the coast of South Australia. There were 1,417 passengers on board. 78 passengers died, and the surviving passengers lost possessions and suffered physical injuries and emotional trauma (as well as disappointment and distress as a result of what had been planned and purchased as a relaxing and pleasurable holiday ended prematurely in disaster). Evidence indicates that the accident occurred due to crew members failing to follow the Sea Queen's operation procedures, in particular by the captain failing to monitor and act upon critical navigation alerts during the voyage, and failing to check the functioning of navigation equipment prior to departure. Evidence also indicates that the number of life jackets and life-boats was insufficient for the number of passengers on board, and less than the industry standard. The class action You are a graduate lawyer with Do Good Lawyers, which is acting for the plaintiffs in a class action against the cruise operator, Sea Queen Cruise Line Ltd ("SQCL"). The senior lawyer leading the litigation has explained to you that a class action is a legal proceeding where one person (a representative plaintiff) makes a claim on behalf of other similarly affected people. These people are unlikely to have been able to afford, or take the risk of, individual legal action which involves very substantial legal fees. By joining a class action they do not have to pay the legal costs which are paid for by a commercial litigation funder. The litigation funder takes the risk and does not receive fees unless the legal action is successful and money is received from the judgment or settlement. The senior lawyer informed you that the class action is being taken on behalf of hundreds of passengers of the Sea Queen affected by the incident. The senior lawyer explained that one basis on which SQCL will be sued is negligence. She has asked another graduate lawyer to provide her with detailed advice on the negligence claim. The senior lawyer has asked you to prepare legal advice on various contractual and related issues in relation to the class action. She provides you with documentation in relation to the cruise. A review of the documentation shows that the passengers booked their cruise in one of three ways, as outlined below. First booking method - SQCL website - online booking (clicking "Book Now" then receiving booking confirmation email) Some passengers booked the cruise by visiting SQCL's website and undertaking the following procedure: 1. The passenger inserting the essential details in relation to the cruise, including the passenger's name and details (including email address), the ship, the fare, the date of departure, the departure port, the itinerary, the passenger's cabin and selected cruise inclusions. 2. The passenger clicking on a "Book Now" button after ticking a box stating "I agree to the terms and conditions of the Cruise Contract" (with a link to the Cruise Contract, which sets out detailed terms and conditions). 3. The passenger paying the full fare by credit card. 4. SQCL's computer system automatically generating an email to the passenger with the subject matter "Sea Queen Cruise Booking Confirmation", which was sent to the passenger's nominated email address. Second booking method - SQCL website online booking (clicking "Save and Book Later", receiving booking pending email, and then booking over the telephone)
Some passengers booked the cruise by visiting SQCL's website and undertaking the following procedure: 1. The passenger inserting the essential details in relation to the cruise, including the passenger's name and details (including email address), the ship, the fare, the date of departure, the departure port, the itinerary, the passenger's cabin and selected cruise inclusions. 2. The passenger clicking on a "Save and Book Later Button". 3. SQCL's computer system automatically generating an email to the passenger with the subject matter "Sea Queen Cruise Booking Pending", which was sent to the passenger's nominated email address. This email contained an invitation to complete the booking by telephoning SQCL's booking centre on a specified number. The email replicated the essential booking details inserted during the first step of the booking process, and had a heading "Notices" under which the following appeared (with a link to the Cruise Contract): Please note: Upon booking the Cruise, you agree to the terms of the Cruise Contract (available on SQCL's website via this link). Please read carefully as they affect your legal rights. 4. The passenger telephoning the SQCL booking centre and following the prompts to make a booking. 5. The passenger paying the full fare by credit card over the telephone. 6. SQCL's computer system automatically generating an email to the passenger with the subject matter "Sea Queen Cruise Booking Confirmation", which was sent to the passenger's nominated email address. The email replicated the essential booking details inserted during the booking process, and had a heading "Notices" under which the following appeared (with a link to the Cruise Contract): Visit the Sea Queen's website (via a link) for full details of the Cruise Contract, and to print your boarding pass and luggage tags. Please note: The terms of the Cruise Contract apply to the cruise (available on SQCL's website via this link). Please read carefully as they affect your legal rights. Third booking method - telephone booking Some passengers booked the cruise by telephoning SQCL's booking centre and undertaking the following procedure: 1. The SQCL booking representative inserting the essential details in relation to the cruise, including the passenger's name and details (including email address), the ship, the fare, the date of departure, the departure port, the itinerary, the passenger's cabin and selected cruise inclusions. 2. The passenger paying the full fare by credit card over the telephone. 3. SQCL's computer system automatically generating an email to the passenger with the subject matter "Sea Queen Cruise Booking Confirmation", which was sent to the passenger's nominated email address. The email replicated the essential booking details inserted during the booking process, and had a heading "Notices" under which the following appeared (with a link to the Cruise Contract): Visit the Sea Queen's website (via a link) for full details of the Cruise Contract, and to print your boarding pass and luggage tags. Please note: The terms of the Cruise Contract apply to the cruise (available on SQCL's website via this link). Please read carefully as they affect your legal rights. The No Class Action clause in the Cruise Contract The terms and conditions of the Cruise Contract on SQCL's website stated that "This contract is between Sea Queen Cruise Line Pty Ltd ("SQCL") and the Passenger, who hereby agree to the following terms and conditions." One of the terms in the Cruise Contract was a clause titled "No Class Action", as follows: No Class Action
The Passenger agrees that any dispute or legal action against SQCL undertaken in relation to the cruise or this contract will only and exclusively be litigated individually and not as member of any class or representative action. The passenger agrees not to participate in any class action in relation to any dispute in relation to this cruise or contract. Exam Questions: The senior lawyer has asked you to prepare legal advice on the following matters (Questions 1, 2 & 3 respectively) in relation to the class action. Restrict your legal advice to the topics studied during Contract A this semester.
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