We want to bring to the Member's attention an important clarification of an operators duty, following on from the decision in the case of Jennings - v TUI Cruises, in respect of which we posted a legal update on 7th February 2018. That decision was cemented by a recent successful application for summary judgment, in the case of Dr Sucheta Mahapatra - v - TUI UK Ltd.

Dr Mahapatra, a passenger, suffered an injury in almost identical circumstances to the Claimant's injury in Jennings - a slip and fall on a walkway belonging to the port of disembarkation -  Havana, Cuba. (Mr Jennings had suffered a slip and fall on a walkway belonging to the port of Malaga, Spain). TUI successfully argued that this did not form part of the Claimant's carriage, as the walkway constituted part of the "port installation" for the purpose of Article 1(8) of the Athens Convention and that therefore their responsibility for the Claimant under the Convention had ended before the accident happened.

After the publication of the judgment in Jennings, Dr Mahapatra was invited to discontinue her claim, but she refused. She sought to pursue it, and also added an additional cause of action pursuant to The Package Travel Regulations. This was argued on the basis that the port was a supplier of services on behalf of TUI, and TUI therefore liable for their acts or omissions.

It is notable that the firm of solicitors representing the Claimants in both cases was the same - Irwin Mitchell.

TUI applied for summary judgment on the basis that neither cause of action had a real prospect of succeeding, and that the claim under the Package Travel Regulations was, in any event, time-barred.

Summary Judgment is a procedure which can be used by a party to court proceedings, who feels that they have an overwhelmingly strong case, to try and obtain a judgment in their favour without the need for a full trial. As implied by the word "summary", the aim of the procedure is for the issues to be disposed of quickly and after a short hearing.

In order to grant summary judgment, the court must determine that the Claimant's claim or part of it, or the Defendant's Defence or part of it (depending on the party making the application) has no real prospect of succeeding and that there is no other compelling reason why the case or issue should go to trial.

If there is some prospect that the claim or defence or part of it will succeed then summary judgment will not be given. However, even if the "no real prospects" test can be demonstrated, the court cannot grant summary judgment if there is another "compelling" reason why the matter should go to trial.

It is therefore clear that for a Summary Judgment application to succeed, the position must be very clear cut.

Facts of the Case

Dr Mahapatra was disembarking the THOMSON DREAM on 16th January 2015 when she allegedly slipped on water on the permanent walkway between the ship to the passenger terminus in the port of Havana. Despite the decision in Jennings, her solicitors sought to argue that she was still in the process of disembarkation, and, therefore, that the accident occurred within the course of carriage, and liability should attach to TUI pursuant to the Athens Convention.

Decision on the Athens Convention cause of action

The Judge held that, as in Jennings, since the injury took place on a structure which was to be considered to be part of the port installation, it occurred outside the course of carriage and therefore had no reasonable prospect of success. He therefore allowed the Defendant's application for Summary Judgment.

Decision on the Package Travel Regulations

The Judge held that since the incident in question took place on 16th January 2015 and the application to add the cause of action was only made on 12th September 2018, it was being made well after the expiry of the limitation period of 3 years.

He declined to exercise his discretion to allow the amendment to be made out of time, by pointing out that, as in Jennings, there was a failure on the part of the Claimant to adduce any evidence of local standards, and the way in which the supposed supplier (in this case the port) allegedly fell short of those standards.

TUI were awarded their costs of the claim and of the application.

The Defendant was represented in the Admiralty Court by Alex Carington of 12, Kings Bench Walk, who was instructed by Mark Fanning of Miles Fanning Legal.

Staff Author