Debbie Warner Against Scapa Flow Charters
| Jurisdiction | Scotland |
| Judge | Lady Clark Of Calton,Lord Menzies,Lord Glennie |
| Judgment Date | 16 February 2017 |
| Neutral Citation | [2017] CSIH 13 |
| Court | Court of Session |
| Published date | 16 February 2017 |
| Docket Number | PD1159/15 |
| Date | 16 February 2017 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2017] CSIH 13
PD1159/15
Lord Menzies
Lady Clark of Calton
Lord Glennie
OPINION OF THE COURT
delivered by LORD GLENNIE
in the cause
by
DEBBIE WARNER
Pursuer and Reclaimer
against
SCAPA FLOW CHARTERS
Defenders and Respondent
Appellant: Milligan QC; Thompsons
Respondent: Howie QC, Charteris; BTO Solicitors LLP
16 February 2017
Introduction
[1] This Reclaiming Motion (appeal) raises a question as to the proper application of the two year time bar in Article 16 of the Convention relating to the Carriage of Passengers and their Luggage by Sea (“the Athens Convention”) set out in Schedule 6 to the Merchant Shipping Act 1995 (“the 1995 Act”). In particular it raises the question as to whether certain provisions of the Prescription and Limitation (Scotland) Act 1973 (“the 1973 Act”) are to be regarded as providing “grounds of suspension and interruption of limitation periods” for the purposes of Article 16.3 thereof.
Background Facts
[2] On 14 August 2012 Lex Warner was killed in a diving accident off Cape Wrath while on board the m/v JEAN ELAINE, a motor vessel owned and operated by the defenders. He had chartered her from the defenders for a diving trip for the week 11-18 August 2012.
[3] The pursuer is his widow, suing both as an individual and as guardian to their young son who was born in November 2011. It is alleged in the Summons that her husband’s death was due to the fault and negligence of the defenders.
[4] The Summons in this action was signetted on 14 May 2015. It was met with a defence that the action was time barred under the Athens Convention which prescribes a two year time bar, in the case of death occurring during carriage, from the date when the passenger should have disembarked.
[5] It is a matter of agreement that had the accident not occurred the deceased would have disembarked no later than 18 August 2012.
[6] The time bar question was discussed before the Lord Ordinary on the Procedure Roll. After hearing argument from both parties, he sustained the time bar defence and dismissed the action.
[7] This appeal is from that decision. We should make it clear that, as the matter was dealt with on the Procedure Roll, no evidence has been adduced.
The Athens Convention
[8] The Athens Convention has the force of law in the United Kingdom: see section 183(1) of the 1995 Act. The application of the Convention has been extended to domestic carriage of passengers by sea by the Carriage of Passengers and their Luggage by Sea (Domestic Carriage) Order 1987. It is not in dispute that the Convention applies in this case. The deceased was a passenger within the meaning of Article 1(4) of the Convention; the contract pursuant to which he was on board the vessel was a contract of carriage within the meaning of Article 1(2); the defenders, who concluded the contract with him, were the carrier within the meaning of Article 1(1)(a); and, in terms of Article 1(8), the carriage covered the period during which he was on board the ship or in the course of embarkation or disembarkation.
[9] The two year time bar is contained within Article 16 of the Convention. This provides as follows:
“ARTICLE 16
Time-bar for actions
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.”
[10] For the pursuer, it was contended that section 18 of the 1973 Act provided grounds for suspension and interruption of limitation periods and could be relied on here, Scots law being the law of the court seized of the case (the lex fori).
Section 18 of the Prescription and Limitation (Scotland) Act 1973
[11] Section 18 of the 1973 Act provides, so far as material, as follows:
“18 Actions where death has resulted from personal injuries.
(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. …”
We need not set out the remainder of the section.
Submissions
[12] For the pursuer, Mr Milligan QC argued that section 18 of the 1973 Act contained provisions of Scots law pertaining to the suspension and interruption of limitation periods in particular circumstances. Article 16.3 required the court to give effect to them. In the circumstances set out in section 18(2)(b) and (3) of the 1973 Act, the two year time bar was suspended or interrupted. In terms of section 18(2)(b), the pursuer had averred on record, that she “was not and could not have become aware that the death of the deceased was due to an act or omission attributable to the defender until the publication of the MAIB Accident Report number 25/2013 in December 2013”. On that basis, it was arguable that the running of the two year limitation period was “suspended” until that date; and that period did not expire until December 2015. So far as concerned section 18(3), in so far as the pursuer sued as guardian of her young son, he had at all times been under a legal disability by reason of nonage and, accordingly, the whole of the period after the incident fell to be disregarded in the computation of the limitation period. He accepted that, in terms of Article 16.3, the long stop of three years from the date of disembarkation would apply to claims by the pursuer, both as an individual and as guardian of her son, but the action was commenced in May 2015, well within this time. The Lord Ordinary was wrong to dismiss the action. He should have allowed a Proof Before Answer with all pleas standing.
[13] Mr Howie QC, for the defenders, submitted that section 18(2)(b) and (3) did not provide for “suspension” or “interruption” of the limitation period as those words were used in the Convention. On a proper construction of Article 16.3, the word “suspension” was virtually synonymous with “interruption”. It contemplated something happening after time had started to run. It could not refer to something which deferred the start of the limitation period ‑ that would be inconsistent with the fact that Article 16.2 specifically stipulated when time was to start running. In any event, the terms of section 18(2)(b) and (3) of the 1973 Act did not, on their proper construction, have the effect of suspending or interrupting limitation. Rather they provided a start date for the running of the three year time limit in Scots law. They had no application to claims under the Convention since the Convention had fixed its own date for when time was to start running. Even if he was wrong about that, the pursuer’s case on section 18(2)(b) was bound to fail. The pursuer’s agents wrote to the defenders on 17 April 2013 making a claim for damages and asserting that the claim arose out of the failures of the skipper of the vessel. That showed the requisite knowledge to start time running under section 18(2)(b). The action was not commenced until more than two years after that letter was sent. The Lord Ordinary was right to dismiss the action.
Discussion
[14] The Athens Convention provides a comprehensive code for the allocation of liability for death, injury, loss and damage occurring during the course of the carriage. In terms of Article 3(1) the carrier is liable for the damage suffered as a result of the death or personal injury to a passenger (and the loss of or damage to luggage) if the incident which caused the death, injury, loss or damage occurred in the course of the carriage and was due to the fault or neglect of the carrier or of his servants or agents acting within the scope of their employment. Article 3(2) and (3) make specific provision for...
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