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Supreme Court rejects time bar in passenger death at sea case

ANALYSIS: The Supreme Court has issued an important judgment on the interaction between the 1974 Athens Convention on carriage of passengers by sea and time bar provisions in Scottish domestic law.05 Nov 2018

Very few Scottish maritime law cases get as far as the Supreme Court, and this rare case raises some important points on the interpretation of international conventions where these appear to conflict with domestic law.

It was agreed between the parties in this case that Lex Warner, as the charterer of the vessel, was a "passenger". There may be cases where someone aboard a vessel is contracted to work there, but is not a member of the crew. If that is the case, that person might be deemed to be a "passenger" and if so the two-year time bar in the 1974 Carriage of Passengers and their Luggage by Sea Convention (the Athens Convention) will apply.

The facts of the case are tragic. Lex Warner was an amateur diver who chartered a small vessel from Scapa Flow Charters (SFC) for a week in August 2012 to enable him to dive off Cape Wrath. Warner got into difficulties while diving. Despite assistance from other divers, he died. Mr Warner's widow claimed negligence against SFC and, in May 2015, raised an action against them at the Court of Session in Edinburgh on her own behalf and also on behalf of her infant son.

In Scotland, as in many other jurisdictions, a three-year 'time bar' generally applies in relation to personal injury or death claims. However, SFC's lawyers argued that a two-year time bar applied in this case, meaning that any court action needed to be raised no later than August 2014. They relied on the Athens Convention, which has direct force in UK law via section 183 of and schedule 6 to the 1995 Merchant Shipping Act.

Article 16(1) of the Athens Convention states that any action for damages arising out of the death of or personal injury to a passenger is time barred after two years. Under article 16(2), in the case of death, the two-year period begins running from the date that the passenger should have disembarked. Article 16(3) states that local law governs "suspension and interruption" of limitation periods, but adds that "in no case" can any claim be brought in a death claim after three years from when disembarkation should have taken place.

At first instance, the judge upheld SFC's argument and dismissed the claims of both Mrs Warner and her son. On appeal, the Inner House of the Court of Session upheld the judgment in relation to Mrs Warner's claim as an individual, but decided that her claim as guardian for her infant child was not time barred. SFC appealed to the Supreme Court which, in its judgment, agreed with the Inner House and dismissed SFC's appeal.

In Scotland, the general law is that where the claimant is younger than 16 the time bar clock in a personal injury or death claim does not expire until three years after that person's 16th birthday, meaning their 19th birthday. The Supreme Court found that this was a "suspension and interruption" provision, with the effect that a three-year time bar applied in relation to the son's claim. Since the court action had been raised within three years, the son's claim is not time barred.

In its judgment, the Supreme Court made it clear that because the Athens Convention states specifically that "in no case" can an action be brought after three years from when disembarkation should have taken place, the usual rule of the time bar clock not starting until the claimant turns 16 does not apply. Therefore, in this case, the child's claim would have been time barred even if the court action had been raised a mere three years and one day after the intended date of disembarkation, even though he would not even have been four years old.

The Supreme Court also makes it clear that although the courts in Scotland have a general discretionary power to allow a personal injury or death claim to proceed although late, that power is trumped by the"in no case" provision of article 16(3) of the Athens Convention.

Bruce Craig is a maritime risk and health & safety law expert at Pinsent Masons, the law firm behind Out-Law.com.