Fionna Gavin Joint Head of Insurance, Partner
Supreme Court considers limitation under the Athens Convention
Warner v. Scapa Flow Charters  UKSC 52
The Supreme Court has clarified the scope, as a matter of UK law, of the time-bar provided for by Article 16 of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea 1974 (the “Athens Convention”). The effect of section 18 of the Prescription and Limitation (Scotland) Act 1973 (the “1973 Act”), if the claim is brought on behalf of an individual who is a minor at the time of the incident giving rise to the claim, is to suspend the running of time for commencing an action until the claimant becomes an adult. Although a different limitation statute applies in England and Wales, the decision gives a strong indication of how similar cases might be decided here. There is considerable potential for this decision to prolong the period during which claims may emerge and be brought against the operators of ferries, cruise ships and other passenger vessels following fatal accidents.
The background facts
In August 2012, the Claimant’s husband, Lex Warner, chartered a vessel from Scapa Flow Charters (“SFC”), as part of a diving expedition off the coast of Scotland. On 14 August 2012, Mr Warner had a fall on the deck of the vessel while dressed in diving gear and preparing to dive. He was helped to his feet and then began the planned dive, but encountered difficulties while under water and was pronounced dead after being brought back to the surface.
The Claimant, Debbie Warner, alleged that Mr Warner’s death was the result of SFC’s negligence and she sought damages from SFC on her own behalf and that of their son. Her claim was made on 14 May 2015. SFC lodged a defence stating that the claim was time-barred as a result of the Athens Convention, which applies a time-bar of two years from the date on which the passenger would have disembarked. It was agreed between the parties that Mr Warner would have disembarked on 18 August 2012 at the latest and that the Athens Convention applied to the claim.
The Court of first instance in Scotland upheld SFC’s time-bar defence. On appeal, the time-bar was held to apply to Mrs Warner’s claim, but not to the claim brought on her son’s behalf. SFC appealed to the UK Supreme Court.
The Supreme Court decision
Article 16(3) of the Athens Convention provides that:
“The law of the court first seized of the case shall govern the grounds of suspension and interruption of limitation periods, but in no case shall an action under this Convention be brought after the expiration of a period of three years from the date of disembarkation of the passenger or from the date when disembarkation should have taken place, whichever is later.”
The Claimant’s argument was that section 18(3) of the 1973 Act acted to preserve her son’s claim. The relevant parts read:
“Where the pursuer is a relative of the deceased, there shall be disregarded in the computation of the … [three year period for cases of death of a person from personal injuries specified by the 1973 Act] … any time during which the relative was under legal disability by reason of non-age or unsoundness of mind…” (emphasis added).
SFC’s key argument made a subtle distinction between: (a) the words “suspension” and “interruption” and: (b) the effect of the 1973 Act, which was to postpone the running of the time period. They argued that the 1973 Act did not apply in this case, because it did not give the Claimant a ground of suspension or interruption as referred to in the Athens Convention. In making this argument, they pointed to the fact that suspension and interruption of time have technical meanings in many civil law jurisdictions.
The Supreme Court criticised SFC’s arguments, finding first that it would not be appropriate, when interpreting the meaning of an international convention, to apply a technical meaning used in some civil law systems. Second, they found that in any case there was “no international consensus” as to the meaning of suspension – the term on which the discussion focused. Third, they found that excluding legal incapacity as a ground of suspension when it was present at the start of a time period would “give rise to serious anomalies”. The example was given that, following SFC’s interpretation of the Athens Convention, time would not be suspended for a person suffering from a legal incapacity at the start of the period for bringing a claim, but it would be suspended for a person who became subject to exactly the same legal incapacity part way through the period.
The Supreme Court’s conclusion was, therefore, that the wording of article 16(3) of the Athens Convention was “sufficiently wide to cover domestic rules which postpone the start of a limitation period” and that the legal disability acting on the late Mr Warner’s son under Scottish law was effective to suspend the running of time in relation to the two-year time limit.
The Supreme Court has usefully considered the interaction between domestic time limits and those under international conventions. Based on this decision, a provision in a domestic limitation statute that suspends the limitation periods in that statute – whether due, for example, to minority or legal incapacity or indeed for fraud, concealment or mistake or any other reason – may be sufficient to bring article 16(3) into operation and extend the article 16 time bar by one year.
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