Kathleen Feest v (1) South West Strategic Health Authority (First Defendant/Appellant) (2) UK Foundation Programme Office (Second Defendant) Bay Island Voyages (Third Party/Respondent)

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeHis Honour Judge Havelock-Allan
Judgment Date07 February 2014
Neutral Citation[2014] EWHC 177 (QB)
Date07 February 2014
Docket NumberClaim No. 1BS05742

[2014] EWHC 177 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

BRISTOL DISTRICT REGISTRY

MERCANTILE COURT

Before:

His Honour Judge Havelock-Allan QC

Claim No. 1BS05742

Between:
Kathleen Feest
Claimant
and
(1) South West Strategic Health Authority
First Defendant/Appellant
(2) UK Foundation Programme Office
Second Defendant

and

Bay Island Voyages
Third Party/Respondent

John Ross Q.C. and Ian Miller (instructed by Browne Jacobson LLP) for the First Defendant/Appellant

Simon Kverndal Q.C. (instructed by DWF LLP) for the Third Party/Respondent

His Honour Judge Havelock-Allan QC:

1

This is an appeal from the judgment of a district judge which has been transferred into the Bristol Mercantile List because it turns on a point of construction of the Convention Relating to the Carriage of Passengers and their Luggage by Sea ("the Athens Convention") which has not hitherto been decided and which may be of some general interest. The point can be very shortly stated: does the period of limitation in Article 16 of the Convention bar the remedy or extinguish the right?

2

The context in which the point arises can be equally shortly summarised. On 26 August 2008, Dr Kathleen Feest sustained a serious spinal injury whilst a passenger on board a 9 metre RIB (rigid inflatable boat) called the Celtic Pioneer. Dr Feest and 10 work colleagues were participating in a 1 hour boat trip in the Bristol Channel as part of a corporate team building exercise. They had boarded the Celtic Pioneer at a quay in Cardiff Bay. How the injury occurred is irrelevant for present purposes. Anyone interested can read the report of the Marine Accident Investigation Branch (Report 11/2009) on the internet.

3

At the time of the accident Dr Feest was employed by the first defendant, the South West Strategic Health Authority ("SWSHA"), but seconded to the second defendant, the UK Foundation Programme Office ("UKFPO"). Since the defendants had organised the boat trip, Dr Feest contended that the injury had occurred in the course of her employment. She launched a personal injury claim in Bristol County Court on 25 August 2011. A defence was filed by SWSHA in June 2012 (UKFPO has played no further part in the proceedings). At the same time, SWSHA issued a Part 20 claim against Bay Island Voyages, who were the owners and operators of the Celtic Pioneer, seeking a contribution to any liability to Dr Feest.

4

The Part 20 defence filed by Bay Island Voyages in March 2013 asserted, as a preliminary point, that the boat trip was one to which the Athens Convention applied. It was 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 from the date on which Dr Feest disembarked.

5

Articles 14 and 16 of the Athens Convention provide as follows:

"ARTICLE 14

Basis of Claims

No action for damages for the death of or personal injury to a passenger, or for the loss of or damage to luggage, shall be brought against a carrier or performing carrier otherwise than in accordance with this Convention.

ARTICLE 16

Time-bar for actions

1. An 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) in the case of personal injury, from the date of disembarkation of the passenger; …

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 three years from the date of disembarkation of the passenger or from the date of when disembarkation should have taken place, whichever is 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. The declaration or agreement shall be in writing."

6

The Athens Convention was drafted in 1974 at a conference sponsored by the International Maritime Organisation (IMO). It was enacted into UK law by section 14 of the Merchant Shipping Act 1979. Section 14, and the Convention in Part 1 of Schedule 3 to the 1979 Act, was not brought into force in the UK until 30 April 1987 because the Convention itself did not come into full force internationally until 28 April 1987. Section 14 was brought into force by the Merchant Shipping Act 1979 (Commencement No. 11) Order 1987 (1987 SI No. 635). However, the Convention was applied in the UK well before April 1987. The Carriage of Passengers and their Luggage by Sea (Interim Provisions) Order 1980 ( SI 1980 No. 1092) enforced the Convention in the UK after 1 January 1981. It did so with a modification. The Order provided that the Convention should also cover domestic voyages i.e. ones where the places of departure and destination were within the UK, Channel Islands and Isle of Man and there was no intermediate port of call outside that area. This modification in respect of domestic voyages was continued in 1987 by the Carriage of Passengers and their Luggage by Sea (Domestic Carriage) Order 1987 (SI 1987 No. 160). The modification is significant because Dr Feest's boat trip in Cardiff Bay was a domestic voyage.

7

A legislative postscript is that section 14 was repealed and replaced by section 183 of the Merchant Shipping Act 1995 with effect from 1 January 1996. The Convention is now to be found in Schedule 6 to the 1995 Act.

8

The proposed appeal arises out of an application brought by Bay Island Voyages for summary judgment on the contribution claim. That application was heard by DJ Britton in Bristol County Court on 19 July 2013 and was successful. The Part 20 claim was dismissed and permission to appeal was refused. The matter was transferred to the Bristol Mercantile List for permission to appeal and hearing of the appeal if permission was granted. Having heard full argument from leading counsel, neither of whom was instructed at the hearing below, I grant permission to appeal. This will allow the losing party to apply to the Court of Appeal under CPR 52.13 for permission to bring a second appeal if so advised.

9

In the remainder of this judgment I shall refer to the SWSHA as "the appellant" and to Bay Island Voyages as "the respondent".

10

Before, summarising the parties' respective contentions, it will be helpful to refer to the provisions of the Civil Liability Contribution Act 1978 and the Limitation Act 1980 which are said to have a bearing on the appeal. I must also deal briefly with the judgment of the District Judge. I can do so briefly because neither party adopts the reasons given in that judgment.

11

Section 1 of the Civil Liability (Contribution) Act 1978 states:

"1. Entitlement to contribution.

(1) Subject to the following provisions of this section, any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise).

(2) A person shall be entitled to recover contribution by virtue of subsection (1) above notwithstanding that he has ceased to be liable in respect of the damage in question since the time when the damage occurred, provided that he was so liable immediately before he made or was ordered or agreed to make the payment in respect of which the contribution is sought.

(3) A person shall be liable to make contribution by virtue of subsection (1) above notwithstanding that he has ceased to be liable in respect of the damage in question since the time when the damage occurred, unless he ceased to be liable by virtue of the expiry of a period of limitation or prescription which extinguished the right on which the claim against him in respect of the damage was based.

12

The ordinary periods of limitation in English law are prescribed in Part I of the Limitation Act 1980 (sections 1–27B). The provisions in Part II of the 1980 Act (sections 28–33A) specify when these time limits may be extended or excluded. For example, the ordinary period of limitation for a claim for damages for personal injury is 3 years (section 11): but there is a discretion to exclude it (section 33). The ordinary period of limitation for claiming contribution is prescribed in section 10 as being 2 years from the date on which the right to recover contribution has accrued. That date is either the date of the judgment or award against the person claiming contribution (section 10(3)) or the date on which that person agreed in a settlement or compromise to make a payment to the claimant in respect of the damage.

13

Dr Feest's claim against the appellant was issued one day before the expiration of the 3 year limit in section 11, but nearly a year outside the 2 year limit in Article 16.1 of the Convention. It was for this reason that she could not sue the carrier but chose to sue her employer instead. The respondent, however, argued before DJ Britton that, as carrier, it was entitled to rely on the time limit of 2 years in Article 16.1 or of 3 years in Article 16.3 as a defence to the contribution claim because that claim had not been brought until nearly 3 years and 10 months after the boat trip in question.

14

The argument before the district judge focussed on whether the period of limitation in Article 16.1 and/or 16.3 was: "… a period of limitation or prescription which extinguished the right on which the claim against him in respect of the damage was based" (see section 1(3) of the 1978 Act). If it was, the contribution claim was liable to be struck out. If it was not, section 1(3) of the 1978 Act made it clear that there was no limitation defence to the contribution claim.

15

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