Does the Athens Convention time bar apply to contribution claims?
This case concerned a serious injury which occurred whilst the victim was on board an inflatable boat whilst participating in a work team building…
The South West Strategic Health Authority V Bay Island Voyages:  EWCA Civ 708
The case concerned a serious injury to Dr Kathleen Feest, which occurred whilst she was a passenger on a rigid inflatable boat, the “Celtic Pioneer” in the Bristol Channel whilst participating in a work ”team building” exercise. Her employers were The South West Strategic Health Authority(“SWSHA”).
In bringing proceedings against the vessel owners, Dr Feest’s original solicitors overlooked the fact that the carriage was governed by The Athens Convention, (“the Convention”)as incorporated into English law under the Carriage of Passengers and their Luggage by Sea (Domestic Carriage) Order 1987 [SI 1987 No.670] and issued a claim beyond the two year limitation period prescribed in Article 16 of the Convention. Unsurprisingly the claim was held to be time-barred. The claimant then appointed new solicitors who issued a claim on her behalf against SWSHA on the basis that she was injured during the course of her employment. In turn, SWSHA issued a Part 20 claim against the carrier, Bay Island Voyages (“BIV”) seeking a contribution for damages, pursuant to the Civil Liability (Contribution) Act 1978 (“the 1978 Act”).
In the Bristol Mercantile Court the judge considered Articles 14 & 16 of the Convention, the former of which sets out the basis for claims. He held that SWSHA’s contribution claim was subject to both these Articles and accordingly the contribution claim failed as it had been brought beyond the two year limitation period prescribed by Article 16(1) of the Convention.
The matter was appealed by SWSHA to the Court of Appeal.
Tomlinson LJ in the appeal considered two questions. First, whether the Athens Convention, in particular Article 14, governed contribution claims against the carrier. The second question related to the nature of the Article 16 time bar, in particular whether it was a time bar that extinguished a cause of action, meaning a claimant’s right to bring a claim is extinguished, or alternatively, one that barred a remedy i.e. left the underlying right intact. This subtle distinction was important because under section 1(3) of the 1978 Act a contribution claim cannot be brought if the cause of action, against the person from whom a contribution is sought, is extinguished i.e. in this case, if Dr Feest’s claim against BIV was extinguished, SWSHA could not in turn bring a contribution claim against BIV.
In answering the first question, Tomlinson LJ held that the Convention is a convention “for the unification of certain rules relating to the carriage by sea of passengers and their luggage”. He further noted that the Convention did not “purport to be a complete code…” and dealt only with claims as between passengers and the carrier “and with nothing else”. As such he concluded that the claim for contribution was “unaffected by the provisions of the Athens convention”.
As to the second question in respect of whether the nature of the time bar in Article 16 extinguished the claim or not, Tomlinson LJ held that it only barred the remedy but did not extinguish the claim.
In particular he found that the language of Article 16(1) “Any action for damages…” was classical language used in English law to describe a bar to a remedy rather than extinguishing a right.
In considering the issue he also considered it correct to approach it from an international convention perspective rather than purely as a domestic law issue. In doing so he did not consider that there was particular evidence or a trend that other common law jurisdictions adopted a different approach to the meaning of the words as understood in England and Wales. Further, when looking at the French and German texts of the Convention, the language used supported the view that the Article 16 time bar did not extinguish the right in those respective countries.
As a consequence of his finding that the Convention did not govern contribution claims and the fact that the claim was not extinguished, Tomlinson LJ allowed the appellant’s appeal, meaning a contribution could be sought by SWSHA against BIV pursuant to the 1978 Act.
The impact of this decision is that a defendant who might otherwise have availed themselves of a limitation defence under the Conventions in circumstances where the two year limitation period has expired now potentially faces a second route of claim against them through contribution claims, in respect of which the Convention time bar will not bite. It could be imagined, for example, that a contribution claim from a local authority which organises a school trip to France where a pupil is injured on the cross channel ferry would not be subject to the Convention limitation.
Finally (and although not addressed in either judgment) it should be noted that where a contribution claim is brought against a carrier under the 1978 Act the carrier should still be able to avail themselves of the limits of liability found in the Convention. In particular, section 2(3)(a) of the 1978 Act provides that the person from whom contribution is sought shall not be required to pay a greater amount than any limits imposed by any enactment that a claim brought directly against him by the claimant would have been subject to.