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Athens Convention: Passenger injury claims in International Waters

When a passenger is injured in international waters, who bears the burden of proof and when might a prima facie case of negligence arise and be…

Janet Dawkins v Carnival Plc (t/a P&O Cruises) [2011] EWCA CIV 1237

When a passenger is injured on a cruise liner in international waters, who bears the burden of proof and when might a prima facie case of negligence arise and be displaced? The Court of Appeal has now provided guidance.

The claimant was a passenger on a cruise ship. She was walking through the ship’s conservatory restaurant at about 2pm, when she slipped and fell, sustaining soft tissue injuries to both knees and her wrists. At the time of the incident the claimant was passing a drinks dispensing station and water spilt on the floor led to the slip.    

She claimed damages from the cruise operators. Although mistakenly alleging breach of duty under the Occupiers Liability Act, it was conceded that The Athens Convention on Carriage of Passengers and Luggage by Sea (1974) applied to the claim and that the tests to be applied under the convention, including as to burden of proof, were the same as they would have been had the accident happened on premises in England and Wales, namely under s.3(1):

“The carrier shall be liable for the damage suffered as a result of death or personal  injury to a passenger… if the incident which caused the damage so suffered 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.”

The carrier called evidence of its inspection system and training received by crew members. However, no evidence was given by any member of staff working in the conservatory on the day of the accident.

In the county court the recorder accepted that all of the staff were safety conscious and had been briefed to ensure the safety of themselves and the passengers. The recorder also found that there was a full contingent of staff in the conservatory at the time of the accident. It was also established that there had only been two accidents in six years.

However, applying the two stage test in Ward v Tesco Stores Limited [1976] 1 WLR 810 (a supermarket slip involving spilt yoghurt) the recorder found that an accident such as the present one would not normally happen in the ordinary course of things and that consequently there was a prima facie case of negligence. Applying the second stage of the test, the recorder held that on the weight of the evidence, the defendants had done all that was required of them in establishing a proper system for ensuring the safety of their passengers and that the presence of water did not show that they had failed in their duty that day. The inference was that since the system was operating effectively, the water could not have been on the floor for a significant time. The claimant appealed.

The Court of Appeal agreed with applying the test in Ward, but highlighted that (as cited in Ward) the decision of the High Court in Turner v Arding & Hobbs Ltd [1949] 2 ALL ER 911 should be followed. Evidence needs to be put forward as to the watch that was kept on the floor immediately before the accident.

The court summarised as follows:

a) Under the convention the burden of proof was on the claimant;

b) Where premises such as the floor of a conservatory, as in this case, are under the management of the defendant and a hazard is present on the floor, there may be a prima facie case of negligence against the defendant. The strength of the case will depend on all the circumstances;

c) In the present circumstances, there was a prima facie case as the recorder found;

d) The issue was whether on the evidence as a whole that case was displaced.

The Court of Appeal was unimpressed with the lack of evidence from members of staff present in the conservatory at the time of the incident. In his leading Judgment, Lord Justice Pill held that in the absence of evidence from members of staff claimed to be implementing the system, the recorder was not entitled to infer from the existence of a system, that the spillage which led to the injury occurred only a few seconds or a very short time before the accident. The appeal therefore succeeded.

This decision is a useful reminder to P&I and other liability insurers of commercial pleasure craft and cruise vessels that, in defending trip and slip claims, it is important not only for the insured  to have evidence of systems of safe management in place, but also to obtain witness evidence from the insured’s crew/employees present at the time to confirm how the system was being implemented at the time of the accident. Absent such evidence, the court will be unable to infer (e.g. from usual practice) that the system was working properly.