Athens Convention Update – Warner v Scapa Flow Charters [2018] UKSC 52

By James Severn & Ebi Oni

The Supreme Court confirms that, under normal circumstances, s33 of the Limitation Act cannot be used to circumvent the two year limitation period under the Athens Convention.

Limitation Periods under the Athens Convention

The Athens Convention (which has force of law in the United Kingdom – s 183 of the Merchant Shipping Act 1995) governs the carriage of passengers and their luggage at sea. It is well-known that it provides a time limit of 2 years from the date of disembarkation for claims for personal injury, death or for loss or damage to luggage.

It has previously been held by the Court of Appeal that where a claim is commenced outside of the 2 year period set down by the Athens Convention, a Court cannot circumvent the 2 year limitation period (Higham v Stena Sea Link [1996] 1 WLR 1107). The Supreme Court in the Scottish case of Warner v Scapa Flow Charterers confirmed that the Court of Appeal was right and, save in unusual circumstances (ie where the Claimant lacks capacity), the 2 year time limit under the Athens Convention cannot be extended.

Facts

In August 2012, Mr Lex Warner chartered a motor vessel, the Jean Elaine from Scapa Flow Charters (SFC) to go on a diving trip in the North West of Cape Wrath. Shortly before a dive on 14 August 2012, Mr Warner fell onto the deck of the vessel while dressed in full diving gear. He was helped back to his feet and went ahead with the dive. Mr Warner dived to 88 metres when he ran into trouble. Despite assistance from other divers who helped him back to the surface, he could not be revived and was pronounced dead at the scene.

Debbie Warner, Mr Warner’s widow, alleged that her husband’s death was the result of SFC’s negligence. She brought an action on 14 May 2015 seeking damages on her own behalf and as a guardian their young son born in November 2011. In response, the SFC argued that the action was time barred under the Athens Convention as it had been commenced more than 2 years from the date Mr Warner would have disembarked.

In the case of death occurring during carriage, Article 16 of the Athens Convention imposes a time bar of two years commencing on the date at which the passenger would have disembarked. It is agreed by both parties that Mr Warner would have disembarked no later than 18 August 2012.

The First Instance Judge found that both Mrs Warner’s claim and the claim of the minor were time-barred. On appeal to the Inner House it was held that Mrs Warner’s claim was time-barred but her son’s claim was not. The Defendant appealed that decision to the Supreme Court.

The Exception to the Rule?

The limitation period of two years imposed by the Athens Convention is caveated by Article 16(3) which states that the Court seized of the case shall govern the grounds of suspension and interruption of limitation periods.

In Scotland, s18 of the Prescription and Limitation (Scotland) Act 1973 (the “Act”) governed the grounds of suspension. S18(3) of the Act states that “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 or unsoundness of mind.”

The Supreme Court held that Article 16(3) of the Athens Convention contemplates the law governing the “grounds of suspension or interruption of limitation periods” as including grounds such as minority or mental incapacity. Therefore, the existence of a ground in domestic limitation statute which suspends limitation periods on the basis of minority or mental incapacity as s18 of the 1973 Scottish Act, is sufficient to bring 16(3) into operation and extend the limitation period.

The Supreme Court did not address whether the equivalent English Law provision (s28 Limitation Act 1980) would amount to a suspension or interruption of a limitation period.

It should be noted that the Athens Convention provides a long stop of 3 years in any event. Article 16(3) provides that “in no case shall an action under this Convention be brought after the expiration of a period of three years from the date…when disembarkation should have taken place”.

Comment

This case provides important confirmation by the Supreme Court that section 33 of the Limitation Act cannot be used to extend time for claims under the Athens Convention. The Court did not determine whether time can be extended under English Law for claims by minors or those without capacity. In any event, the Supreme Court confirmed that there is a longstop of 3 years beyond which no claims can be brought under the Athens Convention even if s28 of the Limitation Act does suspend or interrupt time for the purposes of limitation.

If you have any queries about this article, please get in touch with James Severn, whose details appear below.

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About the contributor

  • James Severn Partner

    James is a sport and litigation solicitor and a partner in our Marine Commercial Litigation group. James has a broad commercial litigation and dispute resolution practice with a particular focus on shipping and insurance disputes...

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