QLU Spring 2018: Responsibility of a carrier for providing “hop on, hop off” tendering service during the cruise

Lawrence v NCL (Bahamas) Ltd (The “Norwegian Jade”) [2017] EWCA Civ 2222

Facts

The claimant was a passenger onboard the cruise liner Norwegian Jade owned and operated by the defendant. The claimant booked his holiday through Flights and Packages Ltd. The holiday included return flights, accommodation for three nights in Venice, and a cruise itself, starting and finishing in Venice. The claimant booked a shore excursion when the vessel visited Santorini. The island did not provide docking facilities so the ship anchored off the island and passengers were disembarked and re-embarked by tender boats operated by a local company. The claimant tripped and fell while onboard the tender and suffered injury.

The claimant brought proceedings against NCL claiming damages for personal injuries under the Athens Convention for the Carriage of Passengers and their Luggage by Sea 1974 as amended by the 2002 Protocol (the “Athens Convention”). NCL contended: (1) that the documents did not establish a contractual relationship between the claimant and NCL; (2) that article 1.8 of the Convention did not apply because NCL did not provide the services of the tender for the purposes of allowing passengers to disembark at Santorini; and (3) that the incident was not caused by the fault or neglect of NCL or its servants or agents acting within the scope of their employment.  At first instance the Admiralty Registrar, held that: (1) the defendant was the contractual carrier under the Athens Convention; (2) the incident occurred within the course of carriage and the defendant was responsible for the actions or omissions of the independent company engaged to provide tendering service as the “performing carrier”; and (3) the step on the tender, whilst necessary and integral to the vessel, was potentially hazardous and required more than being marked with hazard tape.

The defendant appealed to the Court of Appeal but the appeal was dismissed.

Judgement

The court found that the defendant was the contractual carrier under the Athens Convention. The fact that it was Flights and Packages Ltd who had advertised the holiday and arranged and booked the holiday for the claimant could not affect the legal effect of the contractual documentation. The judge was also correct to find that the trip occurred in the “course of carriage” as defined by Article 1(8) of the Athens Convention.

The defendant submitted that the wording of the Athens Convention was different in relation to disembarkation at port (where the carrier would be responsible for the passenger “and/or” his cabin luggage throughout) and where the passenger was being transported from the ship to port by water transportation. In the latter instance the carrier only remained responsible if the passenger “and” his cabin luggage were being transported to shore at the time (consistent with the start and finish of a cruise, but inconsistent with “hop on, hop off” transportation provided by local providers as happened in the present case). The defendant’s submission was rejected. Responsibility did not depend on whether the passenger was being transported with his cabin luggage or whether they were being transported separately.

The judge was also correct to find that the defendant was responsible for fault or neglect by failing to adequately mark or give warning of the step on the tender boat.

Comments

This is the third decision in a relatively short period that provides useful clarification on the definition of carriage under the Athens Convention. It makes the carrier responsible for negligent service provided by a company engaged by the carrier to provide tendering services to and from the ship/shore, not only at the beginning and at the end of the cruise but also at any intermediate stage of the cruise if the passenger wishes to go ashore.  It should be read in conjunction with Jennings v TUI UK Limited and Collins v Lawrence [2017] EWCA Civ 2268.

Please click on the link below for the Club’s article on these cases, “Legal Update: key ruling on the definition of “carriage” under the Athens Convention”:

https://www.ukpandi.com/knowledge-publications/article/legal-update-key-ruling-on-the-definition-of-carriage-under-the-athens-convention-142326/

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