AVOIDING NEGLIGENCE CLAIMS IN LITIGATION 5: BE WARY OF EVERYTHING THAT HAPPENS ON WATER: BOATS AND SHIPS (& GANGWAYS)
In the fifth in this updated series we are looking at the different time periods that apply when an accident occurs on, or even near, water. The aim, as ever, is to flag these issues up so that (as a claimant or a defendant) you look up the law when an accident occurs anywhere near a “vessel”. The key difference being the defendant will be looking at the limitation period after issue. Any sensible claimant will be aware of the possibility of a shorter limitation period before issue.
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  1 Lloyd’s Rep 163.
- However a small inflatable ribbed boat is a vessel, see Michael -v- Musgrove (t/a YNYS Ribs) Sea Eagle  EWHC 1438 (Admlty);  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  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.
Embarkation and disembarkation
This two year period applies to embarkation and disembarkation. In Collins v Lawrence  EWCA 2268. The claimant was on a fishing trip off the coast of Kent. To disembark the boat was winched up onto a shingle beach. The claimant then stood on free-standing steps to descend onto the beach. The steps were free-standing and not part of the boat, they were a semi-permanent structure on the beach. The claimant’s case was that he stood on a wet wooden board at the bottom of his steps and lost his balance.
The accident occurred on the 14th November 2010. Proceedings were issued on 25 September 2013. If the Athens Convention applied then it was time barred. A two year limitation applied. The issue was whether the claimant had disembarked from the boat at the time.
The judge found that disembarkation had not been completed. The Athens Convention therefore applied and the claim was statute barred. (The judge also found that the defendant was negligent, subject to a deduction for contributory negligence. However the expiry of the limitation period barred the claim).
The judge’s decision that the claimant was disembarking was upheld on appeal. Hamblen LJ stated:-
n my judgment the judge was correct that disembarkation was not completed until the claimant was ashore which in the present case meant being on the shingle beach. As the judge found, the steps, including the board, were part of the disembarkation equipment. As such, disembarkation was not complete until the claimant stepped off that equipment. That did not occur until he reached the shingle beach.
In a case such as the present, the process of disembarkation covers the whole period of moving from the vessel to a safe position on the shore and whilst a person is still using equipment which facilitates disembarkation, such as the steps and board in this case, he is still in the process of disembarking.
The case may be said to be analogous to one where disembarkation is by a gangway provided from the shore side. There too the gangway would be independent of the vessel and it could be said that the disembarking passenger was in a “place of safety” when he stepped onto a platform at the top of the gangway. In my judgment, the gangway would however be regarded as being a part of the disembarking equipment, being the means by which the passenger disembarks from the ship to a shore. In those circumstances, disembarkation would not be completed until he had stepped off the gangway so that the disembarking equipment was no longer being used.
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,  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.
- 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 CLAIMANT MAY HAVE AN EXTRA YEAR IN A CASE WHERE THE TWO YEAR “MARITIME” LIMITATION PERIOD APPLIES
In Warner v Scapa Flow Charters (Scotland)  UKSC 52 the Supreme Court held that a child claimant had a three year limitation period in an action brought under the Athens Convention as opposed to the usual three year limitation period. See the discussion here. (This was a decision in relation to Scottish law, however, the situation is likely to be, but may not be the same in England and Wales.)