QCR Winter 2018: Death of passenger on chartered vessel - When will the time bar be extended to three years under Athens Convention?

QCR Winter 2018: Death of passenger on chartered vessel - When will the time bar be extended to three years under Athens Convention?

WARNER V SCAPA FLOW CHARTERS (Scotland) [2018] UKSC 52

Facts

Mr Warner chartered a vessel operated by the defendant for the week 11 to 18 August 2012 for the purpose of diving. He died in a diving accident on 14 August 2012. The claimants were his widow and their under aged son, born in November 2011. The claim was lodged on 14 May 2015, more than two years but less than three years after the intended disembarkation, which was agreed to be 18 August 2012. The defendant argued that the claim was time barred.

The applicable liability regime in the United Kingdom for any personal injury to passengers during the course of carriage caused by fault or neglect of the carrier is the Convention relating to the Carriage of Passengers and their Luggage by Sea 1974 (‘the Athens Convention’).

Section 16 of the Athens Convention provides the following time limits:

  1. Any action for damages arising out of the death of or personal injury to a passenger… shall be time barred after a period of two years.
  2. The limitation period shall be calculated … in the case of death occurring during carriage, from the date when the passenger should have disembarked.
  3. The law of the court seized of the case shall govern the grounds of suspension and interruption of limitation periods, but in no case shall an action under this convention be brought after the expiration of a period of three years from… when disembarkation should have taken place [emphasis added]

In the captioned case, the law of the court seized was Scots Law and section 18 of the Prescription and Limitation (Scotland) Act 1973 provides, ‘where the pursuer is a relative of the deceased, there shall be disregarded in the computation of the period specified … any time during which the relative was under legal disability by reason of non-age…’.

Given the above, Mrs. Warner argued that the time limit for the action brought on behalf of her under aged son should be extended to the maximum amount allowed by the Athens Convention article 16(3), namely three years.

At first instance, the Lord Ordinary upheld the time bar defence and dismissed both actions. On appeal, the Inner House upheld the Lord Ordinary’s opinion that Mrs. Warner’s own claim was time barred but reversed the order in relation to Mrs. Warner’s claim as her son’s guardian, finding that the claim on behalf of her son was not time barred. 

The defendant argued that a suspension or an interruption operates only if the limitation period had already begun to run before the pausing or halting event occurred.  Section 18 of the Prescription and Limitation (Scotland) Act 1973 postpone the start of the limitation period instead of interrupting or suspending it as envisaged by the Athens Convention. Therefore, the claim by Mrs. Warner’s son was time barred by the two year time bar.

Judgement

The Supreme Court dismissed the appeal and held that Mrs. Warner’s claim as her son’s guardian was not time barred. The Court held that the words “the grounds of suspension… of limitation periods” were sufficiently wide to cover domestic rules which postpone the start of a limitation period, as well as those which stop the clock after the limitation period has begun.

Comments

At the time of writing the two year time period is mandatory for all claimants bringing claims under Athens Convention in England and Wales. It is however the UK Club’s understanding that English law has a postponement provision in the Limitation Act 1980 similar to that in its Scottish equivalent.  One can therefore expect to see claimants’ solicitors attempt to rely on this decision in similar claims brought before the English courts.

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