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 not been enacted in Australia:

1. Without the Statute, from a conflict of laws perspective, if an Australian commences a lawsuit in an Australian Court against a cruise ship operator (domestic or foreign) where the terms of carriage include a choice of forum/choice of law pointing to a Convention country, such as Italy, what are thelikely conflict of laws procedures that may be called into play by the parties? [Just list]
2. From a conflict of laws perspective, how would an Australian court deal with the issues identified in Question1?

MY ANSWER:

1) Without the statute, from a conflict of laws perspective, if an Australian commences a lawsuit in an Australian Court against the cruise ship operator (domestic or foreign) where the terms of carriage include a choice of form/choice of law to a Convention country, such as Italy, there are a few likely conflicts of laws procedures that may be called into play by the parties.

A conflict of laws arises when an issue in a legal dispute has a significant connection to more than one country. In such a situation, the legal principles of each country may be applied to the dispute. The conflict of laws rules that may be called into play by the parties, in this case, are 1) the lex loci delicti rule, which provides that the law of the place where the tort was committed will be applied; 2) the rule of lex fori, which provides that the law of the forum will be applied; and 3) the rule of lex contractus, which provides that the law governing the contract will be applied.

The likely conflict of laws procedures that may be called into play by the parties are:

• Whether the court has jurisdiction over the matter. If the court does not have jurisdiction, the matter will be dismissed.
• If the court does have jurisdiction, it will then consider whether the choice of forum/choice of law clause is valid and enforceable.
• If the clause is found to be valid and enforceable, the court will apply the law specified in the clause.
• If the clause is found to be invalid or unenforceable, the court will apply the law of the country in which the injury occurred.
• The court will consider a number of factors when determining whether it has jurisdiction, including:
  • The plaintiff's domicile: If the plaintiff is domiciled in Australia, the court will likely have jurisdiction.
  • The defendant's domicile: If the defendant is domiciled in Australia, the court will likely have jurisdiction.
  • The place of the injury: If the injury occurred in Australia, the court will likely have jurisdiction.
  • The court will also consider the nature of the claim and the law that would apply if the clause is not enforced. If the claim is based on negligence and the law of the country in which the injury occurred would provide more protection to the plaintiff than the law specified in the clause, the court may find that the clause is invalid or unenforceable.

2) An Australian court would likely deal with the issues by looking at the terms of carriage and determining whether or not the choice of forum/choice of law clause is valid. If the clause is valid, then the court would apply the law of the chosen country. If the clause is invalid, then the court would apply Australian law.

The contract in this particular matter suggest of specifically constituting the claim in the jurisdiction of the state or country where it stated in the contract.

The contract in this particular matter entails a clause which nullifies its liability to be tried in any Australian court.This means that the Australian court does not have any jurisdiction from the valid contract between the cruise and the Australian citizen.

This means, that although there exists a contract between the cruise ship and Australian citizen, no court in Australia.

Has jurisdictional influence

And no jurisdictions errors exist.

The court would deal with the issues identified in question 1 as follows:

• The court would first consider whether it has jurisdiction over the matter. If the court does not have jurisdiction, the matter will be dismissed.
• If the court does have jurisdiction, it will then consider whether the choice of forum/choice of law clause is valid and enforceable.
• If the clause is found to be valid and enforceable, the court will apply the law specified in the clause.
• If the clause is found to be invalid or unenforceable, the court will apply the law of the country in which the injury occurred.
• When considering whether the choice of forum/choice of law clause is valid and enforceable, the court will look at a number of factors, including:
  • The nature of the claim: If the claim is based on negligence (which this could be), the court may find that the clause is invalid or unenforceable because it is unfair to the plaintiff.
  • The jurisdiction in which the injury occurred: If the injury occurred in Australia, the court may find that the clause is invalid or unenforceable because it is unfair to the plaintiff.
  • The law that would apply if the clause is not enforced: If the law of the country in which the injury occurred would provide more protection to the plaintiff than the law specified in the clause, the court may find that the clause is invalid or unenforceable.

I just need help adding legalisation and case law to support my answer.