PI Brief Update

Sea Change - Angela Williams, Browne Jacobson

16/07/15. The Court of Appeal has handed down its judgment in the case of South West Strategic Health Authority v Bay Island Voyages. The appeal related to a Part 20 claim issued by SW SHA’s lawyers against Bay Island Voyages, a boat company who had taken Dr Feest on a boat trip. The trip took place on 26 August 2008 and was part of a corporate team building exercise. Dr Feest undertook the trip whilst on secondment.

The trip involved the boat travelling across the Bristol Channel. The weather was rough which led to high waves. The boat “slammed” which threw Dr Feest from her seat. She landed heavily sustaining a serious crush fracture to her vertebrae. The boat took the passengers back to shore where an ambulance took Dr Feest to hospital.

Dr Feest instructed solicitors who sought to bring a claim against Bay Island Voyages. Unfortunately, those solicitors failed to appreciate the need to claim within two years for an accident at sea and the claim was time-barred. New solicitors for Dr Feest brought a claim against her employers. This claim was issued just within the three year time limit and the employers (SW SHA) instructed Browne Jacobson to defend the claim.

Browne Jacobson considered that Bay Island Voyages were responsible for the injury. Consequently, they filed a Part 20 claim at the same time as filing its defence. Bay Island Voyages filed a defence claiming SW SHA’s lawyers were outside the two year limitation period so they could not be responsible for any indemnity or contribution. It was this point that led to the Court of Appeal giving judgment.

The appeal raised two important issues concerning the potential liability of sea carriers to contribute to the liability incurred by third parties for the death or personal injury to a passenger or the loss or damage to his luggage occurring in the course of carriage. First, there was the question of whether the Athens Convention extends to claims against the carrier for contribution to the liability of others. Secondly, the effect of the time bar prescribed by the Convention.

The Athens Convention was concluded in 1974 although international ratification proved a slow process. It is enacted into UK law by S14 of the Merchant Shipping Act 1979. The Convention was clearly concerned with international carriage but was also applicable to domestic carriage thus it applied to Dr Feest’s boat trip. The Part 20 claim was made under S1 of the Civil Liability (Contributions) Act 1978.

Bay Island Voyages averred that in consequence of Articles 14 and 16 of the Convention the claim for contribution was barred because it had not been brought within two years of Dr Feest disembarking. It was alleged that the Part 20 claim did not rely upon the provisions of the Convention when it should because any action for damages for personal injury to a passenger must be brought in accordance with the Convention. The crucial issue as to limitation was whether Article 16 barred the remedy or extinguished the right.

Bay Island Voyages sought summary judgment dismissing the claim and were successful at first instance. SW SHA appealed to the Mercantile Court where the case was heard by HHJ Havelock-Allan QC. The Mercantile Court judgment stated that the effect of Articles 14 and 16 was to bar a claim to contribution against the carrier. The argument put forward on behalf of SW SHA that a claim for damages and a claim for contribution to damages are different was not accepted. HHJ Havelock-Allen QC found that Article 16 extinguished the right of action.

Arguments of fairness did not get either party far. The fact was that SW SHA had been sued after the two year limitation period for accidents at sea so could never have brought a contribution claim within time if the Mercantile Court’s decision stood. There was no UK authority on the applicability of the Convention to claims for contribution. Although the accident circumstances were certainly not common, they must have occurred before so it seemed that no party had raised the argument which Bay Island Voyages raised.

The application to the Court of Appeal for leave to appeal was granted on paper as the court considered that it raised an important point of law. The hearing took place on 9 June 2015 before Lord Justices Tomlinson, Laws and Kitchin.

In a judgment from LJ Tomlinson, he said he dis-agreed with the Mercantile Court. He found that the claim for contribution was not one to which the provisions of the Convention were directly applicable. The Convention intended to unify certain rules relating to the carriage by sea of passengers and their luggage. The Convention was never intended to be a complete code governing all liability of sea carriers in respect of their passengers and luggage. The Court of Appeal also dis-agreed with the Mercantile Court as to the proper characterisation of the claim to contribution. They said this contribution claim was not one to which the Convention applied, it being to their minds clear that the Convention deals with claims by passengers against carriers and nothing else. Support for this was found in the language of the Convention which was an argument Browne Jacobson had put forward from the start. Rights of recourse between carrier and performing carrier are mentioned only in Article 4. Such matters will be governed by terms of contractual arrangements concluded between carrier and performing carrier. The case of Sidhu v BA plc (1997) which concerned the Warsaw Convention and carriage by air was referred to with the boat company stating that the Warsaw Convention was not applicable alone to claims by passengers against carriers. LJ Tomlinson said that the Carriage by Air Act 1961 has a time limit which is expressed in language which traditionally would be understood in England as barring the remedy rather than extinguishing it and pointed out there has been controversy whether the Warsaw Convention applies to contribution claims.

It was held that the claim to contribution was autonomous and derived from the English statutory entitlement to contribution. The liability of the carrier to contribute was dependent upon its own liability to the passenger which was governed by the provisions of the Convention.

LJ Tomlinson said the nature of the time bar was not such as to extinguish the right. The language of the time bar was held to be the classic language of limitation which was remedy-barring rather than right extinguishing. The case of Aries Tanker Corp v Total Transport Ltd (1977) was referred to. This case concerned the question of whether a claim by voyage charterers against ship-owners for short delivery of cargo carried by sea could be set off against a claim by the ship-owners for unpaid freight. The availability of the set off depended upon the effects of the Hague Rules time bar. Lord Wilberforce said in giving the House of Lords’ judgment that most English statutes of limitation bar the remedy while leaving the claim in existence.

The boat company’s argument that Article 16 should be regarded as extinctive of the claim was said to be forlorn unless the Article was given a meaning other than its natural meaning in English law and in the English language. It was however correct to approach the effect of Article 16 having regard to the fact it was the language of an international convention rather than a domestic statute. The lack of any international consensus upon the relevant Article’s meaning and effect in various domestic legal systems was highlighted in the judgment. It was noted however that if there is a trend then it is to regard a bar as not extinguishing the right.

The ultimate question in this case was what do the actual words mean? The answer is exclusively a domestic law answer and there was no reason to exclude the statutory right to contribution allowed under S1 (3) of the Civil Liability (Contributions) Act 1978. There was no difficulty in applying a foreign limitation provision in the context of S1(3) as, where a foreign rule as to limitation is applied by English courts, it should be given the same effect as to barring or extinguishment as it has in that law.

This can be summed up by saying that whilst the words used in Article 16 have an international provenance, they do not have an autonomous and internationally understood meaning which is different in effect from the meaning they naturally bear in the English language and English law.

Angela Williams in as Associate lawyer in Browne Jacobson’s Exeter office
and represented South West Strategic Health Authority

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