LAW 590 PYQ JUNE 2014

PART C QUESTION 1
Khairun Nisa Azwani Binti Azahar 2016239304
Nur Nadia Binti Yusof
2016239404
Imran Shah Bin Misman 2016239762
Nurul Izzati Izham
2016239256
Introduction - application of
the Athens Convention
● Clause 2 of Star Cruise Passage Terms and Conditions

Incorporation an application of the Athens Convention Relating

to the Carriage of Passengers and their Luggage by Sea (1974) together with
the Protocol of 1976 to the Athens Convention Relating to the Carriage of
Passengers and their Luggage by Sea (collectively the "Athens Convention").
1st issue

Whether the cruise is liable for the injury caused to

Arshilla
 ARTICLE 3 OF THE ATHENS
CONVENTION - LIABILITY OF THE
CARRIER
The carrier shall be liable for the damage suffered as a result of the death of or personal injury to a
passenger and the loss of or damage to luggage if the incident which caused the damage so suffered
occurred in the course of the carriage and was due to the fault or neglect of the carrier or of his servants
or agents acting within the scope of their employment.
The burden of proving that the incident which caused the loss or damage occurred in the course of the
carriage, and the extent of the loss or damage, shall lie with the claimant.

Fault or neglect of the carrier or of his servants or agents acting within the scope of their employment shall
be presumed, unless the contrary is proved, if the death of or personal injury to the passenger or the loss of
or damage to cabin luggage arose from or in connection with shipwreck, collision, stranding, explosion or
fire, or defect in the ship. In respect of loss of or damage to other luggage, such fault or neglect shall be
presumed, unless the contrary is proved, irrespective of the nature of the incident which caused the loss or
damage. In all other cases the burden of proving fault or neglect shall lie with the claimant.
DUTY OF CARE
Donoghue v Stevenson [1932] AC 562

Duty of care refers to the circumstances and relationships which the law recognises as giving rise to a
legal duty to take care. A failure to take such care can result in the defendant being liable to pay
damages to a party who is injured or suffers loss as a result of their breach of duty of care. Therefore
it is necessary for the claimant to establish that the defendant owed them a duty of care.
DUTY OF CARE
In Day v.
Toronto Transportation Commission, [1940] S.C.R. 433

it was held
that a public carrier owed a very high duty of care to its
passengers and that the standard of care was so high that the fact
that an injury occurred to a passenger while in the care of the
public carrier shifted the onus to the public carrier to establish
on a balance of probabilities that it was not negligent. In Day v.
Toronto Transportation Commission did not consider the standard of
care to be applied to commercial enterprises where the primary
purpose is not the safe carriage of passengers for hire especially
where, as here, there is a recognized element of risk involved.
 EFFORD V BUNDY, VICTORIA REGISTRY NO. 1158/92

The fundamental basis of liability for negligence continues to be the creation of a foreseeable risk of
harm. That basic principle applies as much to failure to warn as to any other kind of negligence; and
is of particular importance in relation to such cases because the danger of applying hindsight rather
than foreseeability is particularly serious.
ARTICLE 7 OF THE ATHENS
CONVENTION - LIMITATION OF
LIABILITY OF THE CARRIER
The liability of the carrier for the death of or personal injury to a passenger shall in no case exceed
700,000 francs per carriage. Where in accordance with the law of the court seized of the case
damages are awarded in the form of periodical income payments, the equivalent capital value of
those payments shall not exceed the said limit.
 STAR CRUISE PASSAGE T&C -
LIMITATION
If for any reason whatsoever the Carrier or the Vessel does not rely, is unable to rely, or is precluded
from relying, on any of the above provisions of this clause, then the liability of the Carrier shall not
exceed:

• in the case of death of or personal injury to a Passenger, the sum of US$70,000/- per Passenger, and

• in the case of loss of or damage to Property, the sum of US$300/= per Passenger or US$5/- per kilo
of the item lost or damaged or US$75/- per bag or piece of luggage, whichever is the lowest
CLAUSE 5 (h) STAR CRUISE PASSAGE
T&C - carrier's obligation and
limitation
It is agreed that Carrier shall have no liability for loss, damage or injury to the Guest as a
consequence of Guest's use of Vessel's athletic or recreational equipment or as a
consequence of Guest's decision to participate in any athletic or recreational activity or
event.
T&C STAR CRUISE - ACT OF GOD
Clause 10 Star Cruise Terms and Conditions

The Carrier and the Vessel shall not be liable for any loss and damages:

(a) Acts of God, including but not limited to adverse weather conditions,
perils of the sea, rivers, canals, lakes or other waters, perils of navigation
of any kind, lack of passageway in canals, tides, earthquakes, storm,
typhoon lightning, tempest or flood, ice.

(l) Guest's acts, neglect or default, or breach of or failure to comply

with any provision of these terms and conditions.
 APPLICATION
- The parties concerned in this issue was Arshilla as a passenger and Supermoon
Sagittarius as the carrier. The breached occurred when Arshilla was not warned by the
authority of the SS which later has caused her a severe injury due to the collision on
the high wave.
- Ashila wanted to claim SDR185,000 for injuries she sustained while on board. There is
a clear notice put up by the Carrier which states “Swim at Passenger’s Own Risk” and
bad weather resulted to high wave hence Ashilla slip and hurt herself due to the
impact.
- According to Article 3(1) of Athens Convention, Carrier will be liable not exceeding to
SDR250,000 per passenger UNLESS the incident resulted from natural phenomenon.
- Clause 10(a) of the Terms and Conditions stated that the Carrier will not be liable
from the acts of God, including adverse weather conditions. Ashilla’s injuries was
caused by the bad weather which resulted to high wave and consequently, she slip on
the staircase leading to the pool.
Cont..
In addition, Clause 5(h) stated that the Carrier is not liable to the Guest as a
consequences of Guest’s decision to participate in any recreational activity.

Clause 10(l) stated that Carrier will not be liable for any loss or damages which
was caused by the guest’s acts, neglect or default, to comply with any
provisions for these terms and conditions.

There is a clear notice put up by Calypso Oceanic Ltd whereby the passengers
were to swim at their own risk. Coupled with the facts that the clouds became
darker, it can be reasonably inferred by Ashilla that it is not safe for her to
swim as there was a high wave.
Sub issue to the first issue

Whether the fact that Supermoon Sagittarius was cruising recklessly would
disentitle the carrier, Calypso Oceanic Ltd, from the protection prescribed in
Article 7 of Athens Convention and Clause 5 of Star Cruise Passage T & C, and
thus entitle Ashilla with the right to claim for damages beyond 700,000 francs
per carriage?
 LAW - Limitation to carrier’s liability (ie
the protection)
STAR CRUISE T&C - Clause 5 : Carrier's obligation and limitation
a. Carrier’s responsibility shall never exceed the limitation of liability to which Carrier is entitled under applicable
law and this Passage Contract. No undertaking, guarantee or warranty is given or shall be implied as to the
seaworthiness, fitness, or condition of the Vessel or of any food, drink, medicine, or provisions supplied onboard the
Vessel. In no event shall Carrier be liable for any incident arising outside the Guest areas of the Vessel or the Vessel
itself including, but not limited to, those occurring ashore, on tenders not owned by the Vessel, on or resulting from
equipment not a part of the Vessel, or upon docks or piers.

ATHENS CONVENTION - ARTICLE 7 : Limit of liability for personal injury

1. The liability of the carrier for the death of or personal injury to a passenger shall in no case exceed 700,000
francs per carriage. Where in accordance with the law of the court seized of the case damages are awarded in the
form of periodical income payments, the equivalent capital value of those payments shall not exceed the said limit.
2. Notwithstanding paragraph 1 of this Article, the national law of any State Party to this Convention may fix, as far
as carriers who are nationals of such State are concerned, a higher per capita limit of liability.
LAW - Loss of right to limitation of liability
(breaking the limit)

Article 13 of the Athens Convention : Loss of right to limit liability

1. The carrier shall not be entitled to the benefit of the limits of liability prescribed in Articles 7 and 8
and paragraph 1 of Article 10, if it is proved that the damage resulted from an act or omission of the
carrier done with the intent to cause such damage, or recklessly and with knowledge that such
damage would probably result.

2. The servant or agent of the carrier or of the performing carrier shall not be entitled to the benefit of
those limits if it is proved that the damage resulted from an act or omission of that servant or agent
done with the intent to cause such damage, or recklessly and with knowledge that such damage would
probably result.
LAW - Loss of right to limitation of liability
(breaking the limit)
Gundersen v. Finn Marine Ltd
FACTS : the M.V. Coastal Launch ran into Nose Point on Salt Spring Island at speed, causing severe physical
damage to the vessel as well as serious personal injuries to the plaintiff Emma Gundersen. It was discovered
that the defendant Alex Godfrey fell asleep while in control of the ship.
ISSUE : Does Article 13 of the Athens Convention preclude the defendants from relying upon the limitation
provisions of the Marine Liability Act?
The Judge considered whether the Defendants had lost the right to limit by reason that “the damage
resulted from an act or omission of the carrier done with the intent to cause such damage, or recklessly and
with knowledge that such damage would probably result”.
The Judge noted that the onus of proof was on the Plaintiff, that it was a “heavy” onus, and that the
reckless component required gross negligence and actual knowledge that the loss would probably result.
The Judge ultimately held that the accident was not intentional, that the conduct of the operator was not
gross negligence. Instead, the operator who fell asleep on wheel was guilty of mere negligence. In result,
the Defendants were entitled to limit their liability.
The remaining question is whether Ms. Gundersen (Plaintiff) has adduced sufficient evidence to
prove, on a balance of probabilities, that when Mr. Godfrey fell asleep he acted “recklessly and
with knowledge [that the injuries suffered by Ms. Gundersen] would probably result.”

The test to be applied to the evidence requires consideration of two specific questions.

(a) Did Mr. Godfrey act recklessly? and

(b) Did Mr. Godfrey know that the injuries suffered by Ms. Gundersen would probably result?

Reference was made to the case of R v Lawrence (Stephen) as to the concept of

recklessness.
R v Lawrence (Stephen) [1982] AC 510 House of Lords

Lord Diplock formulated a standard direction to a jury based on reckless manslaughter:

2 elements : R E C K L E S S N E S S

1. acting in such an manner as to create an obvious and serious risk, and

2. doing so without giving any thought to the possibility of there being any such risk,
or if the defendant recognized that there was risk involved, nevertheless decided to take the risk.

It is for the jury to decide whether the risk created by the manner in which the vehicle was being driven was both
obvious and serious and, in deciding this, they may apply the standard of the ordinary prudent motorist as
represented by themselves.
Application

Supermoon Sagittarius was cruising at about 30 knots which is above the maximum cruising speed in
bad weather. As a result, the vessel banged against the high wave and the impact of it caused Ashilla to
slip and injured.

Applying Article 13 of the Athens Convention, Calypso Oceanic Ltd as the carrier shall be disentitled of
the protection prescribed in Article 7. In other word, Calypso Oceanic Ltd cannot limit it’s liability for
Ashilla’s personal injury. This is because it is proved that the injury caused to Ashilla resulted from
their reckless act which is exceeding maximum cruising speed in a very bad weather. It is safe to
conclude that the operator of Supermoon Sagittarius, in doing that, must have the knowledge that
such damage (the impact) would probably result.
2nd issue

Whether Calypso Oceanic Ltd is liable for the loss of

Zarith’s diamond bracelet and earrings and designer
watch that amount to SDR 22,000.
LAW
Article 1 of Athens Convention
Definition of luggage

Any article or vehicle carried by the carrier under a contract of carriage, excluding:

(a) articles and vehicles carried under a charter party, bill of lading or other contract primarily concerned
with the carriage of goods, and

(b) live animals;

Definition of cabin luggage

Luggage which the passenger has in his cabin or is otherwise in his possession, custody or control. Except for
the application of paragraph 8 of this Article and Article 8, cabin luggage includes luggage which the
passenger has in or on his vehicle;
Clause 13 of Star Cruises
Term and Conditions
Baggage, Valuables and Other Properties

Paragraph A
Whenever the term "baggage" is used herein, it shall mean only suitcases,
valises, satchels, bags, hangers or bundles and their contents consisting of
such clothing, clothing accessories, toilet articles and similar personal effects,
including all other personal property of the Guest not in a container.
No tools of trade, household goods, liquors, fragile or valuable items, bullion,
jewelry, precious stones, negotiable instruments, documents, or other
valuables of any description or such articles as are specified in the applicable
law shall be brought upon the Vessel by Guest or contained in Guest’s
baggage, except under and subject to the terms of a special written contract
entered into with the Carrier before embarkation upon application of the
Guest. The Guest hereby warrants that no such articles have been carried on
the Vessel or are contained in any receptacle or container presented by him to
the Carrier as baggage.
Carrier shall not be liable for any loss of or damage to any of the above listed
items, or perishable items, dentures, optical devices (including contact lenses),
medications, cameras, recreational and/or sporting equipment, cash,
securities or other negotiable instruments under any circumstances
whatsoever, whether carried within the Guest’s baggage or otherwise.
Paragraph K.
All valuables must be kept in the safe designated by the Carrier from time to
time.
Paragraph L.
All disclaimers and limitations of liability contained herein shall apply to all
valuables stored or accepted for storage by Carrier, including valuables stored
with the Carrier in safety deposit boxes or security envelopes.
Carrier shall not accept responsibility for and in no event shall be liable for loss
or damage of valuables or other articles left in cabins, and in no event shall
Carrier be liable for loss or damage to property of any kind not shown by the
Guest to have occurred while in the Carrier’s actual custody, or for ordinary
wear and tear or normal usage.
Clause 5 of Star Cruises
Terms and Conditions
The Carrier shall not be liable for loss of or damage to monies, negotiable
securities, gold, silver, silverware, jewelry, ornaments, works of art or other
valuables, except where such valuables have been deposited with the Carrier
for the agreed purpose of safekeeping in which case the liability of the Carrier
shall be liable up to the limit provided for in Article 8 of the Athens
Convention unless a higher limit is agreed upon in accordance with paragraph
1 of Article 10;
Clause 2 of Star Cruise
Term and Conditions
Limit of Liability and loss of or damage to luggage
and vehicles
The liability of the Carrier for the loss of or damage to cabin luggage shall in no
case exceed 833 SDR per passenger per carriage, and in the case of loss of or
damage to vehicles including all luggage carried in or on the vehicle, 3,333
SDR per vehicle per carriage, and in the case of loss of or damage to luggage
other than those mentioned in this paragraph, 1,200 SDR per passenger per
carriage, subject to the full amount deductible as set out in Article 8(4).
APPLICATION
Zarith had left her cabin unlocked after receiving the news about Ashilla. Half an hour later, Zarith went back
to her cabin and found out that her diamond bracelet and earrings and also her designer watch had been
missing. She brought the proceedings against Calypso Oceanic Ltd for the lost amounting to SDR 22,000.

According to the Articles 1 of Athens Convention, the jewelry can be classified into the definition of cabin
luggage which Zarith had in the vehicle.

However, according to Clause 13 of Star Cruise Terms and Conditions, the word baggage is used and jewelry
is one of the items that cannot be brought upon the vessel by the guest. Thus, carrier shall not be liable for
any damage or loss of the items.
In addition, paragraph K of Clause 13 also state that, all valuables must be keep in safe designated by the
Carrier from time to time, the act of Zarith carelessly left the cabin unlocked show that the valuables was
not be keep in safe.

Other than that, paragraph L of Clause 13 state that, carrier shall not be responsible and not liable for any
loss or damage of valuables left in cabin. Thus, the diamond bracelet and earrings and also the designer
watch that had been left in cabin are not under the responsibility of SS and Calypso Oceanic Ltd.

Furthermore, Clause 5 had laid down the items which the carrier shall not be held liable and one of it is
jewelry unless for the certain condition.

Clause 2 of Star Cruise Terms and Conditions state that for the loss of cabin luggage it shall not exceed 833
SDR per passenger per carriage. Zarith want to claim for the loss of her jewelry that amount to SDR 22,000.
Thus, it had exceed the amount that had been stated in this Terms and Conditions.
CONCLUSION

To sum up, Calypso Oceanic Ltd is not liable for the loss of Zarith’s diamond bracelet and earrings and
designer watch that amount to SDR 22,000.
3rd issue

Whether Calypso Oceanic Ltd can be held liable for

changing the schedule of intermediate port without prior
notice to the guest?
General rule : no liability for change
of port
General rule : Carrier shall owe no liability or obligation for changing the scheduled port, intermediate
port, scheduled time etc without prior notice to the Guest.
Clause 11 Star Cruise Passage Terms and Conditions
“The Carrier may, for any reason whatsoever, change the scheduled port of embarkation, omit or
change any scheduled call at any intermediate port or omit or change the scheduled port of
disembarkation or change the scheduled times of departure or arrival or scheduled duration of the
passage, whether before or after the sailing of the Vessel, without previous notice to the Guest and
the Guest shall have no right to any refund or any right of action against the Carrier and the Carrier
shall have no obligation or liability whatsoever and whether for delay or otherwise in respect thereof
to the Guest”
Exception to general rule : paragraph 3
to clause 11
General rule : Carrier shall owe no liability or obligation for changing the scheduled port, intermediate
port, scheduled time etc without prior notice to the Guest.
Clause 11 para 3 Star Cruise Passage Terms and Conditions
iii)If the scheduled port of disembarkation is changed then the Carrier may, at its sole
discretion, arrange, at no extra expense to the Guest, substitute means of transportation (by
sea, air or land to be determined by the Carrier) to the point of disembarkation from the
nearest port at which the Vessel calls or if such substitute transportation is not available,
the Carrier will refund to the Guest an amount equivalent to the cost of substitute
transportation provided always such amount shall not exceed the Fare paid by the Guest.
APPLICATION

Applying the exception under Paragraph 3 of Clause 11 of the Star Cruise Passage Terms and
Conditions, when Calypso Oceanic omitted to stop at the scheduled call at the intermediate
port and continued sail to Tianjin without prior notice, Calypso Oceanic Ltd owes liability
towards Zarith & Ashilla to substitute means of that Ashilla and Zarith can disembark at the
port nearest to Kaohsiung Taiwan (the scheduled port of disembarkation). This is beacuse the
sisters were expecting to disembark there as scheduled since Ashilla is in desperate need of
proper treatment for her injured leg.

In conclusion, Zarith and Ashilla have right to get refund from Calypso Oceanic Lt.
4th issue

Whether the act of Ashilla and Zarith, who faked their

identity card to entitle them to travel at a cheaper package,
was in breach of the clause 4 (a) & (g) of the Star Cruise
Passenger Terms & Conditions.
Law
Clause 4 (a) of Star Cruise Passage Terms & Conditions : Guest’s Obligation.

- Upon embarkation and throughout the Cruise, Guest shall have received all medical inoculations
necessary for the Cruise and shall have available for production all proper and necessary travel
documents such as passports, visas, proof of citizenship, re-entry permits, medical certificates showing
all necessary vaccinations, and all other documents necessary for the scheduled ports of call and
disembarkation.

- Notwithstanding any advice or information provided by or on behalf of Carrier from time to time, it is
Guest's sole responsibility to establish and comply with all entry requirements and ensure his legal
eligibility to travel.

- The Guest is advised to check with his travel agent or the appropriate government authority to
determine the necessary documents and travel eligibility requirements. Guest shall be responsible for
and keep Carrier and all third parties indemnified in respect of any liability loss damage or expense
arising out of any failure to comply with such requirement.
- Guest will be subject to any fine or other costs incurred by Carrier, which result from improper
documentation or non-compliance with applicable regulations, which amount may be charged to
Guest’s stateroom account and/or credit card.

- Carrier may cancel the booking of any Guest who is or becomes ineligible to travel for any reason, or
who is travelling without proper documentation.

- At any port or place Carrier or Master may refuse to embark or may disembark any Guest who, in the
opinion of the Master or other authorized ship's officer, might be excluded from landing at destination
by Immigration or other Governmental Authorities or who may be suffering from contagious or
infectious disease.

- In such cases, Guest shall not be entitled to any refund of Fare or compensation of any kind. Under no
circumstances shall Carrier be liable for any cost, damage or expense whatsoever incurred by any Guest
as a result of such cancellation or denial of boarding
Law
Clause 4 (g) of Star Cruise Passage Terms & Conditions : Guest’s Obligation.

- A Guest under 18 years of age (“Minor”) must be accompanied by a Guest 18 years or older
(“Accompanying Adult”).

- The Accompanying Adult expressly agrees to be responsible for the safety, conduct and behavior of the
Minor throughout the Cruise; for night Cruise, the Accompanying Adult must occupy either the same
stateroom as the Minor or a stateroom connecting with the Minor’s stateroom.

- The Accompanying Adult’s responsibility includes, but is not limited to, preventing the purchase or
consumption of alcohol by the Minor, preventing the engagement in any form of gambling on board the
Vessel by the Minor, ensuring compliance with and preventing the violation of any ship rules by the
Minor and indemnifying Carrier in respect of all liabilities and amounts payable in respect of the Minor
in accordance with this Passage Contract.
- If the Accompanying Adult is not the parent or legal guardian of the Minor then either a certified copy
of the marriage certificate of the Accompanying Adult and Minor or a notarized parental/guardian
consent letter that authorizes the Minor’s travel and medical treatment of the Minor in case of an
emergency must be delivered either to the representative at the pier or the Front Desk Officer of the
Carrier.

- Failure to produce such documentation at embarkation may result in boarding being denied with no
refund or compensation provided.

- Guests must be 18 years or older to purchase or consume alcohol or to engage in any form of gambling
on the Vessel.
Application :
- Ashilla is actually 18 years old instead of being 15 years old where she is deemed to be a minor and is
eligible to purchase the package at a cheaper price. With that, she had faked her identity card to do so.
Other than that, Zarith is 20 years old instead of being 22 years old. She faked her identity card as well
in order for her to be able to accompany Ashilla on board.
- In light of the law according to Clause 4 (a) of Star Cruise Passage Terms & Conditions : Guest’s
Obligation, it mentions that Upon embarkation and throughout the Cruise, Guest shall have received
all medical inoculations necessary for the Cruise and shall have available for production all proper and
necessary travel documents such as all other documents necessary for the scheduled ports of call and
disembarkation.
- The meaning of all necessary documents is in regards to the validity of the package purchased by
Ashilla which she purchased the package for a cheaper price as she was regarded to be a minor.
- According to the definition provided, the action of Ashilla purchasing the package at the price of a
minor, does not fall in the ambit of the definition of “all necessary documents” the purchase of her
ticket is invalid
- Furthermore, the act of Ashilla purchasing the package was to get it at a cheaper price and does not
have good faith as an intention.
- It was also mentioned that Guest will be subject to any fine or other costs incurred by Carrier, which
result from improper documentation or non-compliance with applicable regulations, which amount may
be charged to Guest’s stateroom account and/or credit card. Thus, Calypso Oceanic Ltd can deny
Ashilla to board the ship as she a failed to produce such documentation at embarkation may result in
boarding being denied with no refund or compensation provided.
- As for the case of Zarith, she is actually 20 years old and not 22 years old. She did so in order for her to
be able to accompany her sister and may be deemed to be the sister’s guardian. As the age of 21 years
old and above are regarded as guardians.
- Again, It was also mentioned that Guest will be subject to any fine or other costs incurred by Carrier,
which result from improper documentation or non-compliance with applicable regulations, which
amount may be charged to Guest’s stateroom account and/or credit card. Thus, Calypso Oceanic Ltd
can deny Zarith to board the ship as she failed to produce such documentation at embarkation may
result in boarding being denied with no refund or compensation provided.
- Thus, as seen in Clause 4 (g) of Star Cruise Passage Terms & Conditions : Guest’s Obligation. It
was stated that, a Guest under 18 years of age (“Minor”) must be accompanied by a Guest 18 years or
older (“Accompanying Adult”).
- It is also stated that if the Accompanying Adult is not the parent or legal guardian of the Minor then
either a certified copy of the marriage certificate of the Accompanying Adult and Minor or a notarized
parental/guardian consent letter that authorizes the Minor’s travel and medical treatment of the Minor
in case of an emergency must be delivered either to the representative at the pier or the Front Desk
Officer of the Carrier. Failure to produce such documentation at embarkation may result in boarding
being denied with no refund or compensation provided.
Conclusion :

- In conclusion, Ashilla and Zarith can both be subject to any fine or other costs incurred by
Carrier, which result from improper documentation or non-compliance with applicable
regulations, which amount may be charged to Guest’s stateroom account and/or credit card.
Thus, Calypso Oceanic Ltd can deny Ashilla and Zarith to board the ship as she failed to
produce such documentation at embarkation may result in boarding being denied with no refund
or compensation provided.
 Application & conclusion
Referring to the rule in the case of Gundersen v. Finn Marine Ltd (reckless component required gross
negligence and actual knowledge that the loss would probably result) it is obvious that Calypso Oceanic Ltd had
lost the right to limit. Cruising at an extremely high speed in a bad weather on high seas is indeed a gross
negligence and whoever controls the wheel must have had the knowledge that the damage/injury would result
(that the vessel would bang hard against the high wave and thus endanger the passengers on board)

Furthermore, the two elements of ‘reckless’ as in the case of R v Lawrence (Stephen) were satisfied.

Supermoon Sagittarius was cruised in such a manner as to create an obvious and serious risk of causing
physical injury and the defendant did so without having given any thought to the possibility of there being
any such risk or, despite knowing there was some risk involved, he nevertheless gone on to take it.

In conclusion, the fact that Supermoon Sagittarius was cruising recklessly in a bad weather is sufficient to
disentitle the carrier, Calypso Oceanic Ltd from the protection prescribed in Article 7 of Athens Convention and
Clause 5 of Star Cruise Passage T & C. As a result, they cannot enjoy the right to limit their liability, Ashilla
therefore has the right to claim damages beyond what is prescribed in Article 7 for her injury.