Warner v Scapa Flow Charters
| Jurisdiction | Scotland |
| Judge | Lord Hodge,Lady Hale,Lord Reed,Lord Sumption,Lord Briggs |
| Judgment Date | 17 October 2018 |
| Neutral Citation | [2018] UKSC 52 |
| Docket Number | No 1 |
| Court | Supreme Court (Scotland) |
| Date | 17 October 2018 |
[2018] UKSC 52
Lady Hale, President
Lord Reed, Deputy President
Lord Sumption
Lord Hodge
Lord Briggs
Appellant
Robert BM Howie QC
Ruth Charteris
(Instructed by BTO Solicitors LLP)
Respondent
Robert Milligan QC
Richard Pugh
(Instructed by Digby Brown LLP (Aberdeen))
Heard on 28 June 2018
( with whom Lady Hale, Lord Reed, Lord Sumption and Lord Briggs agree)
This appeal raises a question about the interpretation of article 16 of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea 1974 (“the Athens Convention”) and its application to the Scots law of limitation of actions.
Mr Lex Warner chartered the m/v Jean Elaine, a motor vessel operated by Scapa Flow Charters (“SFC”) for the week 11–18 August 2012. On 14 August 2012 when dressed in diving gear while preparing to dive on a wreck north west of Cape Wrath, Mr Warner fell onto the deck of the vessel. He was helped to his feet and went ahead with the dive to the depth of 88 metres. He got into trouble during the dive and, despite the assistance of other divers who brought him back to the surface of the water and on to the motor vessel, could not be revived and was pronounced dead.
Mr Warner's widow, Debbie Warner, raised an action against SFC in which she alleged that her husband's death was the result of SFC's negligence. She sought damages both as an individual and as guardian of their young son, Vincent, who had been born in November 2011. Her summons was signetted on 14 May 2015. SFC lodged a defence that the action was time-barred under the Athens Convention, which, in the case of a death occurring during carriage, imposes a time bar of two years from the date on which the passenger would have disembarked. It is a matter of agreement between the parties that Mr Warner would have disembarked no later than 18 August 2012.
Both parties agreed that the Athens Convention applied to the circumstances of the accident. SFC's time bar challenge under the Athens Convention was discussed on the Procedure Roll without hearing evidence as the facts upon which the court could determine the validity of the defence were not in dispute. The Lord Ordinary, having heard argument from both parties, upheld the time bar defence and dismissed the action. Mrs Warner appealed by reclaiming motion to the Inner House (Lord Menzies, Lady Clark of Calton and Lord Glennie). In a judgment delivered by Lord Glennie on 16 February 2017 ( [2017] CSIH 13), the Inner House upheld the Lord Ordinary's opinion in relation to her claim as an individual but reversed his order in relation to her claim on behalf of her son, finding that her claim as guardian of her son was not time barred.
SFC appeals to this court with the permission of the Inner House. Mrs Warner has not appealed the dismissal of her claim as an individual.
The Athens Convention has the force of law in the United Kingdom: Merchant Shipping Act 1995, section 183. The Carriage of Passengers and their Luggage by Sea (Domestic Carriage) Order 1987 (SI 1987/670) has extended the application of the Athens Convention to contracts for the domestic carriage of passengers by sea. Article 16 of the Athens Convention, which is set out in Schedule 6 to the 1995 Act, provides:
“(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) 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 passenger after disembarkation, from the date of death, provided that this period shall not exceed three years from the date of disembarkation;
(c) in the case of loss of or damage to luggage, from the date of disembarkation or from the date when disembarkation should have taken place, whichever is 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 three years from the date of disembarkation of the passenger or from the date 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.”
Mrs Warner's claim on behalf of her son is subject to the two-year time bar in article 16(1) unless, as the Inner House held, article 16(3) applies to extend that period. In this appeal SFC accepts that Scots law as the law of the forum is the relevant law under article 16(3). SFC advances two principal contentions.
SFC contends, first, that the natural meaning of the words “grounds of suspension and interruption of limitation periods” in article 16(3) is that they are grounds which give rise to a break in a period or course of events which is already in train. Mr Howie QC for SFC refers to the judgment of the Court of Appeal of England and Wales in Higham v Stena Sealink Ltd [1996] 1 WLR 1107.
The second and alternative contention is that the words have a technical meaning derived from certain civil law systems, including the law of Spain, the Swiss Code of Obligations and the Civil Code of Quebec. Mr Howie refers the court to Berlingieri, Time-Barred Actions (2nd ed) (1993) pp xiv, 157 and 164 and Baudouin et al, La Responsabilité Civile (8th ed) (2014) vol 1 (Principes généraux), paras I-1326 and I-1333. He submits that those and other civil law systems draw a distinction between a “suspension” and an “interruption”. The former refers to the situation in which a limitation period, which has started to run but has been paused by an event, such as the onset of mental incapacity, resumes its running when the incapacity ceases with the rest of the period remaining. Thus, if an event, which had caused the limitation period to stop running after it had run for six months, ceased to exist, the limitation period would resume running with six months already spent. The latter term, “interruption”, refers to a circumstance in which the limitation period, having been halted by an event, commences afresh when the halting event ceases and the time which has expired before the halting event does not count towards the running the limitation period. Thus, if a two-year limitation period were interrupted by an event, the limitation period would begin again with two years to run when the halting event ceased.
Whichever contention is correct, SFC submits that a suspension or an interruption operates only if the limitation period has begun to run before the pausing or halting event occurred.
The Athens Convention in article 16(2)(b) has a mandatory date from which the two-year limitation period begins to run, namely the date when the deceased passenger, who died during carriage, should have disembarked. Article 16(3), SFC submits, allows a domestic rule of limitation of the lex fori to extend the two-year limitation by up to one year when the domestic rule operates to pause the running of time in a limitation period which had already commenced but not otherwise.
On either approach, SFC contends that the Scots law of limitation enacted in section 18 of the Prescription and Limitation (Scotland) Act 1973 (“the 1973 Act”), which I discuss below, does not contain such “grounds of suspension and interruption” as to extend the limitation period. This is because, it is submitted, section 18 of the 1973 Act postpones the start of the limitation period instead of interrupting or suspending it as the Athens Convention envisages. SFC contends therefore that Mrs Warner's claim as Vincent's guardian is barred by the two-year time bar of article 16(1) of the Athens Convention.
The Athens Convention, like many international conventions concerning international carriage and transport, aims within its scope to create an international code which replaces the differing domestic rules of the states which have acceded to it by uniform international rules.
In interpreting an international convention, national courts must look at the objective meaning of the words used and the purpose of the convention as a whole: Fothergill v Monarch Airlines Ltd [1981] AC 251, 272 per Lord Wilberforce, 279 per Lord Diplock, 290–291 per Lord Scarman. This approach is consistent with the approach to interpretation in articles 31(1) and 32 of the Vienna Convention on the Law of Treaties (1969) ((1971) Cmnd 7964) which entered into force in 1980 after the Athens Convention was adopted and which does not formally apply to it, but which Lord Diplock saw as a codification of pre-existing public international law: Fothergill, at p 282.
Because the rules of an international convention will be applied in the courts of many countries with differing domestic legal systems, our courts have adopted an approach to interpretation which respects the international character of such a document. In Stag Line Ltd v Foscolo, Mango and Co Ltd [1932] AC 328, Lord Macmillan stated (350):
“As these rules must come under the consideration of foreign Courts it is desirable in the interests of uniformity that their interpretation should not be rigidly controlled by domestic precedents of antecedent date, but rather that the language of the rules should...
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