The South West Strategic Health Authority (First Defendant/Appellant) v Bay Island Voyages (Third Party/Respondent)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Tomlinson,Lord Justice Kitchin,Law Justice Laws |
| Judgment Date | 14 July 2015 |
| Neutral Citation | [2015] EWCA Civ 708 |
| Docket Number | Case No: B3/2014/0753 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 July 2015 |
[2015] EWCA Civ 708
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, BRISTOL DISTRICT
REGISTRY MERCANTILE COURT
HIS HONOUR JUDGE HAVELOCK-ALLAN QC
1BS05742
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Lord Justice Tomlinson
and
Lord Justice Kitchin
Case No: B3/2014/0753
John Ross QC and Ian Miller (instructed by Browne Jacobson LLP) for the First Defendant/Appellant
Simon Kverndal QC and Ben Gardner (instructed by DWF) for the Third Party/Respondent
Hearing dates: 9 June 2015
This appeal raises two recondite but important issues concerning the potential liability of sea carriers to contribute to the liability incurred by third parties for the death of or personal injury to a passenger, or the loss of or damage to his luggage, occurring in the course of carriage performed by the sea carrier. Those issues in turn raise two questions as to the proper construction of certain provisions in an international convention to which the UK has both adhered and given the force of domestic law. The first question is whether the convention, which undoubtedly governs the liability owed by carriers to their passengers, extends also to claims against the carrier for contribution to the liability of others. The second issue relates to the effect of the time bar prescribed by the convention for the bringing of claims.
In 1974 there was concluded at Athens at a conference sponsored by the International Maritime Organisation the Convention Relating to the Carriage of Passengers and their Luggage by Sea, "the Athens Convention." International ratification proved a slow process. Although enacted into law in the UK by section 14 of the Merchant Shipping Act 1979, which gave the force of law in the UK to the provisions of the Convention set out in Part 1 of Schedule 3 to the Act, that section was not itself brought into force until 1987, by which time the Convention had achieved a relatively modest degree of international acceptance. The Convention was however made applicable in the UK to contracts of carriage made on or after 1 January 1981 by means of an Order in Council, the Carriage of Passengers and their Luggage by Sea (Interim Provisions) Order 1980 ( SI 1980 No. 1092).
Although by its terms concerned with international carriage (Article 2.1 and c.f. Article 1.9) the Convention was by the same Order in Council made applicable to domestic carriage, that is to say carriage pursuant to a contract under which the places of departure and destination are within the UK, Channel Islands and Isle of Man and where there is no intermediate port of call outside that area.
On 30th April 1987 section 14 of the Merchant Shipping Act 1979 was brought into force by the Merchant Shipping Act 1979 (Commencement No. 11) Order 1987 ( 1987 SI No. 635). At the same time, the Convention regime for domestic carriage was preserved by the Carriage of Passengers and their Luggage by Sea (Domestic Carriage) Order 1987 [SI 1987 No. 670], which subject to modifications gave to those provisions of the Convention set out in Schedule 3 to the 1979 Act the force of law in relation to domestic carriage.
Section 14 of the Merchant Shipping Act 1979 was in 1995 repealed and replaced by section 183 of the Merchant Shipping Act 1995. That section gave the force of law to the provisions of the Convention set out in Part 1 of Schedule 6. Domestic carriage is still governed by the 1987 Order.
The present appeal arises out of somewhat atypical circumstances. On 26 August 2008 Dr Kathleen Feest sustained a serious spinal injury whilst a passenger on board a nine metre RIB (Rigid Inflatable Boat) called the Celtic Pioneer. Dr Feest and ten work colleagues were participating in a one hour boat trip in the Bristol Channel as part of what she alleges was a corporate team building exercise. They had boarded the Celtic Pioneer at a quay in Cardiff Bay. The appeal therefore concerns domestic carriage. How the injury occurred is irrelevant for present purposes. It is to be assumed, although this is denied, that it occurred due to the fault or neglect of the carrier or of its servants or agents acting within the scope of their employment.
The Appellant is the South West Strategic Health Authority, "SWSHA". At the time of the accident Dr Feest was employed by SWSHA, although seconded to the Second Defendant, the UK Foundation Programme Office, "UKFPO". Dr Feest contends that the injury occurred in the course of her employment. She launched a personal injury claim in the Bristol County Court on 25 August 2011. A defence was filed by SWSHA in June 2012. UKFPO has played no part in the proceedings. At the same time as filing a defence, i.e. on 25 June 2012, 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. Contribution is sought pursuant to section 1 of the Civil Liability (Contribution) Act 1978. Bay Island Voyages is the Respondent to this appeal.
Section 1 of the Civil Liability (Contribution) Act 1978 provides:-
"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."
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. 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."
The precise manner in which the defence of Bay Island Voyages is relevantly pleaded is as follows. First, it is said that the claim brought by SWSHA for contribution is misconceived because Article 14 of the Convention provides that no action for damages for personal injury to a passenger shall be brought against a carrier otherwise than in accordance with the Convention, and the Part 20 claim for contribution does not rely upon the provisions of the Convention. Secondly, it is said that, as Dr Feest disembarked from the vessel on 26 August 2008 and the Part 20 proceedings were not issued until 25 June 2012, well over two or even three years after the date of disembarkation, the claim to contribution is time barred. Thirdly, it is denied that any injuries sustained by the Claimant Dr Feest were caused or contributed to by any neglect of the carrier, its employees or agents.
The carrier does not in this pleading allege that, by reason of section 1(3) of the Civil Liability (Contribution) Act 1978, it is under no liability to make contribution because, by 25 June 2012, it had ceased to be liable to Dr Feest by virtue of the expiry of a period of limitation or prescription which extinguished the right on which the claim against it in respect of the injury could have been based. This last point is however, to my mind, the critical issue. It gives rise to the second issue on this appeal, does the period of limitation in Article 16 of the Convention bar the remedy or extinguish the right?
The carrier Bay Island Voyages sought summary judgment dismissing the claim. The Witness Statement in support of that application came close to...
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