QCR Spring 2018: Definition of carriage under the Athens Convention revisited
JENNINGS v TUI UK LIMITED (T/A THOMSON CRUISES)  EWHC 82 (Admlty)
The Claimant and his wife booked a cruise with the Defendant on the THOMSON DREAM, which started and finished at the port of Malaga, Spain.
At the end of the cruise, the Claimant was leaving the ship via a covered walkway. It was raining heavily. He made his way along a movable walkway and crossed over to a fixed concrete walkway, which sloped down into the terminal building. Both walkways were provided by the Port Authority. As the Claimant was walking along the fixed walkway, he slipped on water and fell, suffering injuries.
Afterwards he brought claims pursuant to Article 3(1) of the Athens Convention for the Carriage of Passengers and their Luggage by Sea 1974 as amended by the 2002 Protocol (the "Athens Convention") and/or Regulation 15 of the Package Travel, Package Holidays and Package Tours Regulations 1992 (the "Package Travel Regulations").
The Claimant contended that the accident occurred within the course of carriage. He further claimed that the water was present due to the Defendant's crew members walking it into the area as they transferred cabin luggage from the ship to the terminal building. He also argued that the Defendant's crew members had a duty to warn him of the danger of slipping.
The Court accepted that the Claimant fell on the walkway and that there was water present where he fell. However, it did not accept the Claimant's contention that the water was present due to the Defendant's crew members. The court preferred the evidence of the Defendant's hotel manager that showed that luggage was unloaded from the vessel via a different entrance while only a limited number of crew members used the same walkway as the passengers. These crew members' sole purpose was to assist passengers in identifying their luggage. They had no other business for being out in the pouring rain. The Defendant argued that the Athens Convention did not apply as the fall did not occur during the course of carriage. Article 1(8) of the Athens Convention, which defines "carriage", provides that: "the period during which the passenger and/or his cabin luggage are on board the ship or in the course of embarkation or disembarkation... However, with regard to the passenger, carriage does not include the period during which he is in a marine terminal or station or on a quay or in or on any other port installation."
The Defendant contended that the fixed walkways (which were attached to the port and were not on or part of the cruise ship) were port installations using the ordinary meaning of that phrase and that the period of carriage had therefore already ended when the fall occurred. The Court accepted the Defendant's argument and found that whilst the scope of the Athens Convention is generally intended to include disembarkation, this does not apply once a passenger has left the ship and has reached areas which are clearly not under the control of the ship.
The Claimant had not in any event proved that the water was present due to any fault or neglect on the part of the Defendant. It also rejected the Claimant's submission that the Defendant was under a duty to warn the Claimant of the presence of water. As the period of carriage was over, any responsibility for the passenger under the Athens Convention had ended.
The Claimant further argued that if the Athens Convention was found not to apply, the claim should instead succeed under the Package Travel Regulations.
The Court accepted that the cruise constituted a package, consisting of the cruise itself, along with transfers and flights, and that the accident occurred during the period of the package.
The Claimant contended that the Defendant was under a duty to warn the Claimant of the risk of slipping, as well as being responsible for any failures by the Port Authority as a supplier for whom the Defendant should be responsible, and that no evidence of local standards was required to establish breaches of these duties.
In respect of a duty to warn, the Court doubted that the walkway fell within the scope of facilities provided within the package. It was an area that the Defendant could not be expected to control. The court further found that the Defendant, as a tour operator, should not need to warn its customers to take care in weather conditions which were obvious to everyone.
In respect of the claim for any failure by the Port Authority as a supplier for whom the Defendant should be responsible, the Court found that the lack of evidence as to local standards was fatal to that claim.
This is a helpful decision as it clarifies the parameters of the period of carriage under the Athens Convention, and once again reinforces the need for clear evidence of a breach of local standards in Package Travel Regulations claims insofar as they relate to failures on the part of suppliers.
The clarification of the definition of the phrase "port installation" is extremely helpful in the context of the increasing use of modern port terminal facilities with walkways, such as those seen at the Port at Malaga, as opposed to the more traditional use of a gangway from the ship to the quayside. This decision should be read in conjunction with Collins v Lawrence  EWCA Civ 2268 and The "Norwegian Jade"  EWCA Civ 2222.
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":
The successful defendant was represented in the Admiralty Court by Counsel Alex Carrington of 12 King's Bench Walk, instructed by Mark Fanning of Miles Fanning Legal, who were instructed by the UK P&I Club.
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