Debbie Warner Against Scapa Flow Charters
| Jurisdiction | Scotland |
| Judge | Lord Boyd of Duncansby |
| Neutral Citation | [2016] CSOH 101 |
| Date | 14 July 2016 |
| Published date | 14 July 2016 |
| Docket Number | PD1159/15 |
| Court | Court of Session |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 101
PD1159/15
OPINION OF LORD BOYD OF DUNCANSBY
In the cause
DEBBIE WARNER
Pursuer;
against
SCAPA FLOW CHARTERS
Defenders:
Pursuer: Allardice; Thompsons
Defenders: Howie QC, Charteris; BTO Solicitors (Glasgow) LLP
14 July 2016
[1] On 14 August 2012 Lex Warner was killed in a diving accident off Cape Wrath. The pursuer is his widow as an individual and as guardian to their son. The defenders own and operate the MV Jean Elaine. The deceased had chartered the vessel for a one weeks diving trip in the course of which the accident occurred. The pursuer alleges that her husband’s death was due to the fault and negligence of the defenders.
Preliminary matters
[2] On 27 April 2016 Lord Bannatyne pronounced an interlocutor which inter alia appointed the cause to the procedure roll on the defenders preliminary plea in law. He appointed both parties to lodge notes of argument within 28 days. This being a chapter 43 case the preliminary plea is contained within Answer 4. It is to the effect that the action is time barred under article 16 of the Athens Convention relating to the Carriage of Passengers and their luggage by Sea 1974 (the Athens Convention).
[3] The action came before me on the procedure roll. The defenders had lodged a note of argument. The pursuers had not done so. At the commencement of the debate Mr Allardice took objection to the competency of the procedure roll on the basis that it had already taken place before Lord Jones who had decided the point in the pursuer’s favour. He had given an ex tempore judgement but had not given a written opinion. That was disputed by the defenders who said a debate had occurred on whether a minute of amendment should be allowed to be received. While it was true that some of the ground had been traversed in the course of the debate, and a concession made by junior counsel, which was now withdrawn, the only matter that had been decided was that the minute of amendment for the pursuers should be received and answers allowed within 28 days.
[4] The interlocutor by Lord Jones is dated 27 January 2016. It allows the minute of amendment to be received and answers within 28 days. It finds the defenders liable for the expenses of the hearing. I was informed that was because the minute of amendment was intimated before the procedure roll hearing with an offer to discharge. That was refused by the defenders who wished to oppose the receipt of the minute of amendment. As that opposition failed the defenders had to pay expenses.
[5] The interlocutor is silent on the preliminary plea. That in itself may be conclusive unless of course all parties agreed that it did not represent what happened. In any event the pursuers consented to the motion which led to the interlocutor of Lord Bannatyne dated 27 April 2016. That appoints the cause to the procedure roll. I took the view that I could not review that interlocutor. Mr Allardice said that the pursuers had to consent to the motion in order to get the case before the court. I do not accept that. They could have opposed the motion. I repelled the objection to the competency and refused the motion to appoint the case to appoint the cause to either a proof before answer or preliminary proof.
[6] The pursuers were twice ordained to lodge a note of argument. On neither occasion did they do so. I gather on the first occasion they took the view that they were dealing with the point by lodging a minute of amendment. However on the second occasion no note was lodged. Mr Allardice informed me that one had been prepared and intimated to senior counsel for the defenders. That was confirmed by Mr Howie. However all it dealt with was the competency of the procedure roll. It did not address the substantive argument. Mr Allardice said that the pursuer’s argument was contained within the pleadings.
[7] In general when the court ordains a party to do something it is not acceptable for parties to choose to ignore it. Such provisions in interlocutors are mandatory not advisory. In this case I took the view that despite the pursuer’s failure to ob temper the order of the court the procedure roll should proceed. On another occasion I may well have discharged the debate, ordained the party in default to lodge the note of argument and found that party liable for the expenses of the discharge.
Applicable law
[8] The Athens Convention is part of domestic law; Merchant Shipping Act 1995, section 183 and Schedule 6. Both parties agreed that it applied to the circumstances of this case. Article 16 deals with time bar for actions and was at the time, so far as relevant, in the following terms.
1 Any action for damages arising out of the death of or personal injury to a passenger or for the loss of or damage to luggage shall be time-barred after a period of two years.
2 The limitation period shall be calculated as follows:
(a) …
(b) in the case of death occurring during carriage, from the date when the passenger should have disembarked, and in the case of personal injury occurring during carriage and resulting in the death of the passenger after disembarkation, from the date of death, provided that this period shall not exceed three years from the date of disembarkation;
(c) …
3 The law of the Court seized of the case shall govern the grounds for suspension and interruption of limitation periods, but in no case shall an action under this Convention be brought after the expiration of any one of the following periods of time:
(a) A period of five years beginning with the date of disembarkation of the passenger or from the date when disembarkation should have taken place, whichever is later; or, if earlier
(b) a period of three years beginning with the date when the claimant knew or ought reasonably to have known of the injury, loss or damage caused by the incident.
4 Notwithstanding paragraphs 1, 2 and 3 of this article, the period of limitation may be extended by a declaration of the carrier or by agreement of the parties after the cause of action has arisen. The declaration or agreement shall be in writing.
Mr Allardice contends that section 18 of the Prescription and Limitation (Scotland) Act 1973 (“the 1973 Act”) is also applicable. The following provisions may be relevant.
(1) This section applies to any action in which, following the death of any person from personal injuries, damages are claimed in respect of the injuries or the death.
(2) Subject to subsections (3) and (4) below and section 19A of this Act, no action to which this section applies shall be brought unless it is commenced within a period of 3 years after—
(a) the date of death of the deceased; or
(b) the date (if later than the date of death) on which the pursuer in the action became, or on which, in the opinion of the court, it would have been reasonably practicable for him in all the circumstances to become, aware of both of the following facts—
(i) that the injuries of the deceased were attributable in whole or in part to an act or omission; and
(ii) that the defender was a person to whose act or omission the injuries were attributable in whole or in part or the employer or principal of such a person.
(3) Where the pursuer is a relative of the deceased, there shall be disregarded in the computation of the period specified in subsection (2) above any time during which the relative was under legal disability by reason of nonage or unsoundness of mind.
Salient facts
[9] The following facts are agreed. The deceased chartered the vessel for one week commencing 11 August 2012. He died on 14 August 2012. While it may be that the vessel returned to harbour every night it was agreed that he would have disembarked no later than 18 August 2012. The action in the present case was signetted on 14 May 2015.
[10] By notice to admit procedure the pursuer admitted that 7/1 of process was a true and accurate copy of a letter which the pursuer’s agents wrote to the defenders dated 17 April 2013. They admitted that the letter intimated a claim for damages on behalf of the pursuer and child. They did not admit that the letter attributed the deceased’s death to actionable omissions on the part of the defender’s skipper, Andrew Cuthbertson and held the defenders liable in damages.
[11] The following is an extract from the letter. “Damages are claimed for the failures of your skipper, Andrew Cuthbertson.”
[12] There has been no declaration by the defenders or agreement between the parties extending the period of limitation pursuant to article...
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