Web Alert: Athens Convention Time Bar Extended by Supreme Court of Scotland

In a recent case [1] the Supreme Court (Scotland) extended the two year time bar for claims to be brought under the Athens Convention 1974 to three years where the claim was brought on behalf of a child.

The Court found that the time bar was validly suspended by the Prescription and Limitation (Scotland) Act 1973 where the claimant was a relative of the deceased and a minor.

The facts

The claim arose from the death of Mr Warner resulting from a diving accident in August 2012. At the time of the accident Mr Warner was on a vessel he had chartered from the owner and operators Scapa Flow Charters.

The claims

In May 2015 the widow of Mr Warner brought a claim in her own name and as guardian to her son with Mr Warner. Scapa Flow defended the claim on the basis the action was time barred under the Athens Convention.
Section 16 of the Convention relating to the Carriage of Passengers and their Luggage by Sea 1974 (the Athens Convention) provides the following time limits:

'Any action for damages arising out of the death of or personal injury to a passenger… shall be time-barred after a period of two years.

The limitation period shall be calculated … in the case of death occurring during carriage, from the date when the passenger should have disembarked.

The law of the court seised of the case shall govern the grounds of suspension and interruption of limitation periods, but in no case shall an action under this convention be brought after the expiration of a period of three years from… when disembarkation should have taken place.'

Mrs Warner argued:

In relation to her claim, she was not aware her husband’s death was caused by the defendant until December 2013.

In relation to her son’s claim, the law of the court seised of the case was Scots Law and the Prescription and Limitation (Scotland) Act 1973 suspended the Athens Convention time bar.
Section 18(3) of the Prescription and Limitation (Scotland) Act 1973 provides:

‘where the pursuer is a relative of the deceased, there shall be disregarded in the computation of the period specified … any time during which the relative was under legal disability by reason of non-age…’

The first instance decision upheld the time bar defence for both claims. On appeal, the Inner House upheld the first instance decision that Mrs Warner’s claim was time barred but reversed the decision that the son’s claim was time barred. Scapa Flow Charters appealed to the Supreme Court (Scotland).

Supreme Court (Scotland) decision

The case was heard by a bench of five Justices on 28 June 2018.

The issue on appeal was whether, on a correct reading of Article 16 of the Athens Convention, section 18(3) of the Prescription and Limitation (Scotland) Act 1973 operates as a “suspension or interruption” to protect the claim made on behalf of Mrs Warner’s son from being time barred.

Scapa Flow Charter’s counsel submitted that the meaning of the words 'suspension' and 'interruption' was 'the disruption of something already on foot'. The counsel submitted that there was no suspension or interruption as the child was a child both at the time of the intended disembarkation and the time of bringing the claim. To allow the claim would be to postpone rather than suspend or interrupt the claim.

The Court rejected this argument and held that ‘suspension’ had a broader meaning in several legal systems and could not be restricted to time limits already running. It held that in any event a postponement was a suspension. 

Implications for carriers

The Court did not determine whether time can be extended under English Law for claims by minors or those without capacity. The Athens Convention is incorporated into English law by the Merchant Shipping Act 1995. Under English law the position remains that the two year time period is mandatory for all claimants, despite English law having a similar postponement provision in the Limitation Act 1980.

The Court of Appeal has previously held that where a claim is commenced outside of the two year period set down by the Athens Convention, a Court cannot circumvent the two year limitation period (Higham v Stena Sea Link [1996] 1 WLR 1107). However, the Supreme Court (Scotland) addressed the Higham case by highlighting that the judgment in that case included postponement as one of its definitions of 'suspension'.

In the case of a claimant who lacks capacity the Supreme Court decision has highlighted a conflict between English and Scottish law that claimants are likely to seek to exploit. This will be a disappointing decision for carriers and insurers as it raises uncertainty concerning the rules, particularly in England and Wales, and could result in complex and costly arguments regarding limitation.

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[1] Warner -v- Scapa Flow Charters [2018] UKSC 52