Higham v Stena Sealink Ltd (Stena Cambria)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HIRST,Lord Justice Pill |
| Judgment Date | 16 February 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J0216-5 |
| Docket Number | Case No. 95/0134/G |
| Court | Court of Appeal (Civil Division) |
| Date | 16 February 1996 |
[1996] EWCA Civ J0216-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LIVERPOOL COUNTY COURT
Before Lord Justice Hirst and Lord Justice Pill
Case No. 95/0134/G
MR PT LETMAN instructed by (Gregory Abrams, Liverpool) appeared on behalf of the Appellant.
MISS E BLACKBURN instructed by (Eversheds Holt Phillips & Buck, Bristol) appeared on behalf of Respondent.
(As Approved)
Friday, 16th February 1996
Introduction
This case raises an important point in international maritime law in relation to the time limits for actions for damages arising out of the death of or personal injuries to a passenger, or for the loss of or damage to luggage.
On 16th August 1991 the plaintiff, while a passenger on the defendant's ferry the M.V. Stena Cambria sailing between Holyhead and Dunlaoghrie in the Republic of Ireland, suffered injury when she slipped on some broken glass on the deck and fell. She disembarked later the same day.
Over two years later, on 2nd September 1993, she issued proceedings in the Liverpool County Court claiming damages for negligence and/or breach of statutory duty on the part of the defendants.
The Convention Relating to the Carriage of Passengers and their Luggage By Sea (the Athens Convention 1974) has the force of law in the United Kingdom pursuant to section 14 and Schedule 3 of the Merchant Shipping Act 1979 (the MSA), which was the statute in force at the material time, now replaced by section 183 and Schedule 6 of the Merchant Shipping Act 1995.
Article 16 of the Convention lays down the following provisions as to time-bars:-
"(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 periods should be calculated as follows:-
(a) in the case of personal injury, from the date of disembarkation of the passenger;
(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 pasenger after disembarkation, from the date of death, provided that this period shall not exceed 3 years from the date of disembarkation;
(c) In the case of loss or damage to luggage, from the date of disembarkation or from the date when disembarkation should have taken place, whichever is the later.
(3) The law of the Court 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 3 years from the date of disembarkation of the passenger or from the date when disembarkation should have taken place whichever is the later.
(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. This declaration or agreement shall be in writing".
On 18th January 1994 the defendants applied to the court for an order striking out the plaintiff's claim on the basis that the proceedings were issued outside the time limit laid down in Article 16 above.
This application came before Deputy District Judge Wright on 14th April 1984, who dismissed it on the footing that, on the proper construction of Article 16, section 33 of the Limitation Act 1980 applied to this action for personal injury, and she then proceeded in the exercise of her discretion to disapply the time-bar.
The defendant appealed to Her Honour Judge Bernstein, who on 17th June 1994 allowed the appeal and struck out the action; it is against this decision that the plaintiff presently appeals.
The basis of the judge's decision, in a nutshell, was that the words suspension and interruption as contained in Article 16(3) were inapplicable to section 33, so that the 2 year time-bar was effective.
The Limitation Act 1980.(The 1980 Act).
Part I, headed "Ordinary Time Limits for Different Classes of Action" provides in Section 1, under the heading "Time limits under Part I subject to extension or exclusion under Part II" as follows:-
" (1) This Part of this Act gives the ordinary time limits for bringing actions of the various classes mentioned in the following provisions of this Part.
(2) The ordinary time limits given in this Part of this Act are subject to extension or exclusion in accordance with the provisions of Part II of this Act."
Sections 11, 11A, and 12 in Part I lay down time limits for actions in respect of personal injuries, product liability, and fatal accidents respectively.
Part II is headed "Extension or Exclusion of Ordinary Time Limits".
Sections 28 and 28A deal with extension in cases of disability.
Sections 29 to 31 inclusive deal with extension in cases of acknowledgement or part payment.
Section 32 deals with postponement in the case of fraud, concealment or mistake.
Section 33, which is headed "Discretionary exclusion of time limit for actions in respect of personal injuries or death" provides so far as relevant as follows:-
"(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which
(a) the provisons of Section 11 or 11A or 12 of this Act prejudice the plaintiff or any person whom he represents; and
(b) any decision of the court under this sub-section would prejudice the defendant or any person whom he represents; the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates."
Section 39, under the heading "Saving for other limitation enactments" provides:-
"This Act shall not apply to any action or arbitration for which a period of limitation is prescribed by or under any other enactment (whether passed before or after the passing of this Act) or to any action or arbitration to which the Crown is a party and for which, if it were between subjects, a period of limitation would be prescribed by or under any such other enactment".
The Athens Convention. ("The Convention")
The Convention governs actions by passengers against vessels on which they are being carried at the time of the incident giving rise to the claim.
The countries which are presently parties to the Convention, numbering about 30, have a wide variety of limitation laws.
Recently the Comite Maritime International commissioned Professor Francesco Berlingieri, the leading maritime lawyer who was formerly Professor of Maritime Law at the University of Genoa, and who is Honorary President of the CMI, to compile a book on comparative international maritime time-bars, including that in the Convention. He submitted a questionnaire to all relevant countries, and the result is contained in Time Bar Actions published in 1993 by Lloyds of London. This...
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Table of Cases
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