LIMITATION PERIODS AT SEA: A CAUTIONARY TALE FROM THE SUPREME COURT: A WAKE UP CALL FOR PERSONAL INJURY LITIGATORS -YOU MUST KNOW ABOUT DIFFERING LIMITATION PERIODS
This blog has, on many occasions, warned about the dangers posed by “different” limitation periods. This danger can be seen in the decision of the Supreme Court today in Warner v Scapa Flow Charters (Scotland)  UKSC 52. I must emphasise that this is a decision based on Scottish law, the decision would not necessarily be the same in England and Wales. The key point to take away is that accidents at sea are often subject to a two year limitation period. This applies in both jurisdictions. In this case the widow’s claim was found to be statute barred, only the minor child’s claim survived. That child could not bring a claim if the proceedings had been issued after three years had elapsed.
The claimant’s husband was killed when he fell off the side of vessel whilst preparing to dive on a wreck. The claimant issued proceedings more than two years but less than three years after the date on which her husband would have disembarked the vessel. The defendant argued that the action was statute barred as a result of the Athens Convention – this provides for a two year limitation period running from the date that that a claimant would have disembarked.
THE COURT DECISIONS BELOW
It was held that the widow’s claim was statute barred (and there was no appeal from this decision). However the claim on behalf of their minor son was not subject to the two year period but extended to the three year long-stop. The son’s claim was not statute barred.
THE DECISION IN THE SUPREME COURT
The Supreme Court upheld the decision made below. Whilst the widow’s claim was statute barred the son’s claim was not. The claim was “suspended” for a period for the minor’s claim.
POINTS TO NOTE
There is a “long stop” provision in the rules which prevents a claim being brought after three years. If the claim had been issued after three years then the minor’s claim would also have been barred.
Thirdly, that suspension of the running of the limitation period imposed by the Athens Convention is subject to the long stop in article 16(3): “in no case shall an action under this Convention be brought after the expiration of a period of three years from the date … when disembarkation should have taken place …”. A domestic “suspension” provision cannot defer the expiry of the Convention’s limitation period beyond that long stop.
- Collins v Lawrence  EWCA 2268 the two year limitation period applied when a passenger was disembarking, had left the boat and was on steps leading down to the beach.
- Michael v Musgrove (t/a YNYS Ribs)Sea Eagle,  EWHC 1438 (Admlty);  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  2 Lloyd’s rep 26.  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.
- 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.
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
The issue considered today was discussed in Saggerson on Travel Law & Litigation this suggested (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 – or the date that disembarkation should have taken place).
A REMINDER: WEBINAR
This is the type of issue I will be discussing in a webinar on the 7th November 2018. “Avoiding problems with limitation and the effective use of Section 33”. Details of that webinar are available here.