Warner (Respondent) v Scapa Flow Charters (Appellant) - (17 Oct 2018)

A domestic “suspension” provision cannot defer the expiry of the Convention’s limitation period beyond that long stop

Civil

Present appeal raises a question about the interpretation of Article 16 of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974 (“the Athens Convention”) and its application to the Scots law of limitation of actions.

Mr. Lex Warner chartered a motor vessel operated by Scapa Flow Charters (“SFC”). On 14thAugust, 2012, when dressed in diving gear while preparing to dive on a wreck North West of Cape Wrath, Mr Warner fell onto the deck of the vessel. He got into trouble during the dive and, despite the assistance of other divers who brought him back to the surface of the water and on to the motor vessel, could not be revived and was pronounced dead. Mr Warner’s widow, Debbie Warner, raised an action against SFC in which she alleged that, her husband’s death was the result of SFC’s negligence.

Both parties agreed that the Athens Convention applied to the circumstances of the accident. The Lord Ordinary upheld the time bar defence and dismissed the action. Mrs Warner appealed by reclaiming motion to the Inner House. The Inner House upheld the Lord Ordinary’s opinion in relation to her claim as an individual but reversed his order in relation to her claim on behalf of her son, finding that, her claim as guardian of her son was not time barred. SFC appeals to Supreme Court against impugned decision.

An interpretation of Article 16(3) of the Athens Convention as excluding domestic rules which have the effect of postponing the start of a limitation period would give rise to serious anomalies. The words “the grounds of suspension … of limitation periods” are sufficiently wide to cover domestic rules which postpone the start of a limitation period as well as those which stop the clock after the limitation period has begun.

Article 16(3) instructs the Court to look to the lex fori for its domestic grounds for suspension of limitation periods. In Section 18(3) of the Prescription and Limitation (Scotland) Act 1973, the grounds for the disregard of time are that, the pursuer is under a legal disability by reason of non-age or unsoundness of mind. Under Article 16(3) of the Convention, that legal disability, which the domestic law of the lex fori recognises as a ground of suspension, has the effect of suspending the running of time on the limitation period imposed by Article 16(1) and 16(2), namely the two years from the date, when Mr Warner should have disembarked. Contrary to SFC’s contention, the application of the grounds of suspension in Section 18(3) of the 1973 Act involves no inconsistency with Article 16(2) of the Athens Convention.

Suspension of the running of the limitation period imposed by the Athens Convention is subject to the long stop in Article 16(3). A domestic “suspension” provision cannot defer the expiry of the Convention’s limitation period beyond that long stop. In agreement with the Inner House, Supreme Court concluded that, Mrs Warner’s claim as Vincent’s guardian is not time barred by the Athens Convention. Appeal dismissed.

Tags : NEGLIGENCE DAMAGES GRANT