Carriers Be Aware!!!! (Contribution Claims Fall outside the Athens Regime)

All personal injury, loss of life or loss of / damage to luggage claims must be brought against the carrier (contracting or performing) under Art 14 of the Convention Relating to the Carriage of Passengers and their Luggage by Sea (Athens Convention), however, the Convention does not purport to be a complete Code governing all liabilities of sea carriers – for example, it is silent both with regard to claims of passengers against the carrier in cases of cancellation of the scheduled voyage and with rights of recourse as between carriers and other parties.

What about a contribution claim brought by a third party against the carrier? Would such claims be subject to the time bar provisions of the Athens Convention? This was the primary discussion point in Feest v. South Strategic Health Authority and Another [2015] EWCA Civ 708. In August 2008, the claimant sustained a spinal injury while on a boat tour with her work colleagues (as part of a team building exercise) in the Bristol Channel. She sued her employer and sought damages for her injury. Her employer then issued a Part 20 claim against the owner of the boat for contribution under s. 1(1) of the Civil Liability (Contribution) Act 1978. Granting the application of the owner for a summary judgment on the Part 20 claim, the district judge dismissed the claim on the ground that it was time bared (as it was brought later than 2 years, stipulated by Art 16 of the Athens Convention).  The defendant employer’s appeal was dismissed by Judge Havelock-Allan QC, sitting as a judge of the Queen’s Bench of the Bristol Mercantile Court. The defendant then appealed to the Court of Appeal which reversed the said judgment.  It was held that a claim for contribution is autonomous from the Athens Convention and it derives from the English domestic statute entitlement to contribution. On that basis, the time bar provisions of the Athens Convention would not apply to a contribution claim. An alternative argument, developed by the counsel for the carrier to the effect that Art 16 of the Athens Convention extinguishes the right for an action rather than bars the remedy of court proceedings, was also rejected by the Court of Appeal. This might come as a surprise to continental lawyers as, in continental jurisdictions, time bar provisions usually have the effect of extinguishing the right to any claim (including contribution rights). However, unlike Article 29 of the Warsaw Convention, Article 16 of the Athens Convention does not address this issue with any real definitive language and leaves it to national law to determine the effect of the time bar provision. In English law, the effect of time bar provisions is normally to deny the plaintiff a right of action after a certain period has elapsed but the right is not extinguished.

From the perspective of international maritime law, the outcome of the Court of Appeal is disappointing but the fact remains that the UK legal system is dualist in nature and in the absence of clear language used in an international convention, disputes as to interpretation of provisions of a convention will be resolved by the application of the national law, which is, of course, what happened here!

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