TROUBLE AT SEA: LIMITATION PERIODS AND WATER TRAVEL: AVOIDING NEGLIGENCE 4
We continue the examination of limitation periods that are not necessarily three years. Accidents that happen at sea, or on water generally, can be subject to different limitation periods and, normally, a two year limitation period applies.
TWO YEAR PERIODS WHEN AN ACCIDENT IS CAUSED BY A COLLISION IN THE COURSE OF NAVIGATION
Where a person travelling on a vessel used in navigation suffers personal injury as a result of another vessel, The Merchant Shipping Act 1995 prescribes that the limitation period is two years from the date that the damage occurs.
What is a “vessel”?
- The term vessel includes hovercrafts. However it does not apply to jet-skis as the rider sits outside it and not in it, see Stedman –v- Scofield [1992] 1 Lloyd’s Rep 163.
- However a small inflatable ribbed bot is a vessel, see Michael -v- Musgrove (t/a YNYS Ribs) Sea Eagle [2011] EWHC 1438 (Admlty); [2012] Lloyd’s Rep 37. If the vessel was capable of going to sea then it was a “vessel” and the two year limitation period applied.
WHAT IS MEANT BY “NAVIGATION”?
Navigation involves moving from point A to B. There is a detailed consideration of
the meaning in Curtis –v- Wild [1991] 4 All ER 172 where Henry J concluded that a
claimant injured in a boat on a reservoir was not injured in the course of navigation.
“There again the concept is made clear. I am quite satisfied in this case that the waters of Belmont reservoir are not waters which can be navigated within the sense used by the authorities. There was no evidence before me that there was any navigation in the sense of proceeding from an originating place A to a terminus B for the purpose of discharging people or cargo at the destination point. It was simply used for pleasure purposes by people who were messing about in boats. In these circumstances it seems to me that s 8 of the Maritime Conventions Act 1911 does not apply and accordingly there is the conventional limit in this case. That being so this application before me fails.”
INTERNATIONAL CARRIAGE BY SEA: ANOTHER TWO YEAR LIMITATION PERIOD
The two year limitation period is not confined to collissions involving vessels in the course of navigation. Litigators need to be aware that most accidents on water could be subject to a two year limitation period. The limitation period relating to an accident for damages arising out of the death or personal injury to a passenger caused by a carrier, their employees or agents on international carriage is also two years. These actions are covered by the Athens Convention and Article 16 provides for a two year limitation period, with a long-stop provision of three years from the date of disembarkation. The Athens Convention is incorporated into law by virtue of section 183 of the Merchant Shipping Act 1995.
The scope of liability
The Convention covers all injuries. Matters such as food poisoning, accidents on board and infections could be covered by the two year period, as could the clinical negligence of the medical crew on the ship.
Calculation of the limitation period.
The limitation period begins:
- In the case of personal injury, from the date of disembarkation of the passenger;
- In the case of death occurring during carriage, from the date on which the passenger should have disembarked.
- In the case of personal injury occurring during carriage and resulting in the death of the passenger after disembarkation: from the date of death, provided that the period does not exceed three years from the date of disembarkation;
- In the case of loss or damage to luggage, from the date of disembarkation or from the date when disembarkation should have taken place, which ever is later.
CASES WHERE THE TWO YEAR LIMITATION PERIOD HAS STRUCK AN UNLUCKY CLAIMANT (OR THEIR LAWYERS)
- Michael v Musgrove (t/a YNYS Ribs)Sea Eagle, [2011] EWHC 1438 (Admlty); [2012] 2 Lloyd’s Rep. 37. The claimant issued was injured whilst standing up on a rigid inflatable boat on a pleasure trip around Anglesey. It was held that the limitation period was two years and the claimant had issued out of time.
- Higham –v- Stena Sealink Ltd [1996] 2 Lloyd’s rep 26. [1996] 3 All ER 660 The claimant, while a passenger on the defendant’s ferry sailing between Holyhead and Dunlaoghaire, suffered injury when she slipped on some broken glass on the deck and fell. She disembarked later the same day but failed to issue proceedings within the two year limitation period. The Court of Appeal upheld the finding that the action was issued out of time.
- See also Norfolk –v- My Travel Group Ltd discussed below. The two year limitation period applied even when the action was brought under the Package Holiday Regulations.
THE COURT DOES NOT HAVE A DISCRETION UNDER SECTION 33
In Higham the Court of Appeal also found that provisions of Section 33 of the Limitation Act 1976 do not apply when the limitation period is under the Merchant Shipping Act 1985.
A CLAIM BROUGHT UNDER THE PACKAGE HOLIDAY REGULATIONS IS SUBJECT TO THE TWO YEAR LIMITATION PERIOD
In Norfolk –v- My Travel Group Plc (2003) CC (Plymouth) 21/08/2003 (Lawtel) Judge Overend held that a claim brought under section 16 of the Package Travel, Package Holidays and Package Tours Regulations 1992 SI 1992/3288 was subject to the Athens Convention. It was not issued within the two year period and was, therefore, statute barred.
A CHILD OR A PATIENT IS SUBJECT TO THE SAME PERIOD – WITH THE POSSIBILITY OF AN EXTENSION TO THREE YEARS POST-EMBARKATATION
Saggerson on Travel Law & Litigation suggests (at 10.269) that a claim by a child or patient can be extended up to the three year long-stop period allowed by the Athens Convention. (That is three years from the date of disembarkation).
(However it would be wise to bring an action within the two year period if at possible).
A CASE IN WHICH THE CLAIMANT WAS ALLOWED TO AMEND THE NAME OF THE DEFENDANT AFTER THE TWO YEAR PERIOD
One case in which a claimant was saved is Adams –v- Thomson Holidays Ltd [2008] EWCH 2559.The claimant had mistakenly brought an action against the wrong part of the Defendant’s business. It was held that the Court had power to allow substitution of a defendant in an action covered by the convention, even after the two year time limit had expired.
SUMMARY: THE CRUCIAL POINTS FOR HOW NOT TO GET SUED
Remember our central aim is to avoid negligence claims.
- In all cases involving ships, boats, shipping, hovercrafts and, indeed, anything on water, assume that a two year limitation period applies.
- Remember the wide scope of actions that could be covered by this two year period.
- Do not assume that the two year period is suspended because the claimant is a child or a patient.
- Further do not assume that a different limitation period applies because the action is brought under the Package Holiday Regulations.
ARTICLE 16 OF THE ATHENS CONVENTION
“Article 16
Time-bar for actions
1. Any action for damages arising out of the death of or personal injury to a passenger or for the loss of or damage to luggage shall be time-barred after a period of two years.
2 .The limitation period shall be calculated as follows:
(a) in the case of personal injury, from the date of disembarkation of the passenger;
(b) in the case of death occurring during carriage, from the date when the passenger should have disembarked, and in the case of personal injury occurring during carriage and resulting in the death of the passenger after disembarkation, from the date of death, provided that this period shall not exceed three years from the date of disembarkation;
(c) in the case of loss of or damage to luggage, from the date of disembarkation or from the date when disembarkation should have taken place, whichever is later.
3. The law of the court seized 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 the date of disembarkation of the passenger or from the date when disembarkation should have taken place, whichever is later.
4. Notwithstanding paragraphs 1, 2 and 3 of this Article, the period of limitation may be extended by a declaration of the carrier or by agreement of the parties after the cause of action has arisen. The declaration or agreement shall be in writing.”
USEFUL LINKS
- The Athens Convention can be found here http://www.gard.no/ikbViewer/Content/72411/Athens%20Convention%20and%20ratifications%20April%202013.pdf
- The Merchant Shipping Act 1995 is here http://www.legislation.gov.uk/ukpga/1995/21/contents
RELATED POSTS
This is part of a series of posts on avoiding negligence and difficult limitation periods.
- For the first in the series see http://civillitigationbrief.wordpress.com/2013/07/07/how-not-to-get-sued-2-not-every-limitation-period-is-three-years/
- For a discussion of the limitation periods and air travel and aviation see two posts at
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