Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 101

 

PD1159/15

OPINION OF LORD BOYD OF DUNCANSBY

In the cause

DEBBIE WARNER

Pursuer;

against

SCAPA FLOW CHARTERS

Defenders:

Pursuer:  Allardice;  Thompsons

Defenders:  Howie QC, Charteris;  BTO Solicitors (Glasgow) LLP

14 July 2016

[1]        On 14 August 2012 Lex Warner was killed in a diving accident off Cape Wrath.  The pursuer is his widow as an individual and as guardian to their son.  The defenders own and operate the MV Jean Elaine.  The deceased had chartered the vessel for a one weeks diving trip in the course of which the accident occurred.  The pursuer alleges that her husband’s death was due to the fault and negligence of the defenders.

 

Preliminary matters
[2]        On 27 April 2016 Lord Bannatyne pronounced an interlocutor which inter alia appointed the cause to the procedure roll on the defenders preliminary plea in law.  He appointed both parties to lodge notes of argument within 28 days.  This being a chapter 43 case the preliminary plea is contained within Answer 4.  It is to the effect that the action is time barred under article 16 of the Athens Convention relating to the Carriage of Passengers and their luggage by Sea 1974 (the Athens Convention).

[3]        The action came before me on the procedure roll.  The defenders had lodged a note of argument.  The pursuers had not done so.  At the commencement of the debate Mr Allardice took objection to the competency of the procedure roll on the basis that it had already taken place before Lord Jones who had decided the point in the pursuer’s favour.  He had given an ex tempore judgement but had not given a written opinion.  That was disputed by the defenders who said a debate had occurred on whether a minute of amendment should be allowed to be received.  While it was true that some of the ground had been traversed in the course of the debate, and a concession made by junior counsel, which was now withdrawn, the only matter that had been decided was that the minute of amendment for the pursuers should be received and answers allowed within 28 days.

[4]        The interlocutor by Lord Jones is dated 27 January 2016.  It allows the minute of amendment to be received and answers within 28 days.  It finds the defenders liable for the expenses of the hearing.  I was informed that was because the minute of amendment was intimated before the procedure roll hearing with an offer to discharge.  That was refused by the defenders who wished to oppose the receipt of the minute of amendment.  As that opposition failed the defenders had to pay expenses.

[5]        The interlocutor is silent on the preliminary plea.  That in itself may be conclusive unless of course all parties agreed that it did not represent what happened.  In any event the pursuers consented to the motion which led to the interlocutor of Lord Bannatyne dated 27 April 2016.  That appoints the cause to the procedure roll.  I took the view that I could not review that interlocutor.  Mr Allardice said that the pursuers had to consent to the motion in order to get the case before the court.  I do not accept that.  They could have opposed the motion.  I repelled the objection to the competency and refused the motion to appoint the case to appoint the cause to either a proof before answer or preliminary proof.

[6]        The pursuers were twice ordained to lodge a note of argument.  On neither occasion did they do so.  I gather on the first occasion they took the view that they were dealing with the point by lodging a minute of amendment.  However on the second occasion no note was lodged.  Mr Allardice informed me that one had been prepared and intimated to senior counsel for the defenders.  That was confirmed by Mr Howie.  However all it dealt with was the competency of the procedure roll.  It did not address the substantive argument. Mr Allardice said that the pursuer’s argument was contained within the pleadings.

[7]        In general when the court ordains a party to do something it is not acceptable for parties to choose to ignore it.  Such provisions in interlocutors are mandatory not advisory.  In this case I took the view that despite the pursuer’s failure to ob temper the order of the court the procedure roll should proceed.  On another occasion I may well have discharged the debate, ordained the party in default to lodge the note of argument and found that party liable for the expenses of the discharge.

 

Applicable law
[8]        The Athens Convention is part of domestic law;  Merchant Shipping Act 1995, section 183 and Schedule 6.  Both parties agreed that it applied to the circumstances of this case.  Article 16 deals with time bar for actions and was at the time, so far as relevant, in the following terms.

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) …

(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) …

3          The law of the Court seized of the case shall govern the grounds for suspension and interruption of limitation periods, but in no case shall an action under this Convention be brought after the expiration of any one of the following periods of time:

(a) A period of five years beginning with the date of disembarkation of the passenger or from the date when disembarkation should have taken place, whichever is later; or, if earlier

(b) a period of three years beginning with the date when the claimant knew or ought reasonably to have known of the injury, loss or damage caused by the incident.

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.

Mr Allardice contends that section 18 of the Prescription and Limitation (Scotland) Act 1973 (“the 1973 Act”) is also applicable.  The following provisions may be relevant.

(1)        This section applies to any action in which, following the death of any person from personal injuries, damages are claimed in respect of the injuries or the death.

(2)        Subject to subsections (3) and (4) below and section 19A of this Act, no action to which this section applies shall be brought unless it is commenced within a period of 3 years after—

(a) the date of death of the deceased; or

(b) the date (if later than the date of death) on which the pursuer in the action became, or on which, in the opinion of the court, it would have been reasonably practicable for him in all the circumstances to become, aware of both of the following facts—

(i) that the injuries of the deceased were attributable in whole or in part to an act or omission; and

(ii) that the defender was a person to whose act or omission the injuries were attributable in whole or in part or the employer or principal of such a person.

(3)        Where the pursuer is a relative of the deceased, there shall be disregarded in the computation of the period specified in subsection (2) above any time during which the relative was under legal disability by reason of nonage or unsoundness of mind.

 

Salient facts
[9]        The following facts are agreed.  The deceased chartered the vessel for one week commencing 11 August 2012.  He died on 14 August 2012.  While it may be that the vessel returned to harbour every night it was agreed that he would have disembarked no later than 18 August 2012.  The action in the present case was signetted on 14 May 2015.

[10]      By notice to admit procedure the pursuer admitted that 7/1 of process was a true and accurate copy of a letter which the pursuer’s agents wrote to the defenders dated 17 April 2013.  They admitted that the letter intimated a claim for damages on behalf of the pursuer and child.  They did not admit that the letter attributed the deceased’s death to actionable omissions on the part of the defender’s skipper, Andrew Cuthbertson and held the defenders liable in damages.

[11]      The following is an extract from the letter.  “Damages are claimed for the failures of your skipper, Andrew Cuthbertson.”

[12]      There has been no declaration by the defenders or agreement between the parties extending the period of limitation pursuant to article 16.4.

 

The case for the defenders
[13]      An action for damages under the Athens Convention must be brought within two years; article 16.1.  That date is calculated from the date of disembarkation; article 16.2.  Accordingly the action became time barred on 18 August 2014.  The action should be dismissed.

 

Submissions for pursuer
[14]      Mr Allardice argued that article 16.3 provides that the law of the court seized of the case shall govern the grounds for suspension and interruption of limitation periods.  Accordingly the court should look to section 18(2) and 18(3) of the 1973 Act.  He presented two arguments.  First he pointed to section 18(2)(b) which provides that the commencement date shall be the date on which in the opinion of the court it would have been reasonably practicable to be aware of the fact that the injuries were attributable to an act or omission and that the defender was a person to whose act or omission the injuries were attributable.

[15]      The pursuer pleaded that she was not and could not have become aware that the death of the deceased was due to an act or omission attributable to the defender until the publication of the MAIB report in December 2013.  She then details the matters in respect of which she says knowledge came to her in December 2013.  The letter referred to above only related to acts or omissions by the skipper and not to the specific matters now pleaded.

[16]      Mr Allardice submitted that the ordinary rule was that the time starts to run when the cause of action accrues.  The ordinary rule may be ousted by statute but it requires clear language;  Sheldon and others v R.H.M. Outhwaite (Underwriting Agencies) Ltd and others 1996 AC 102 per Lord Lloyd of Berwick at page 149.  He submitted that the cause of action accrued when the MAIB report was published.  He did not accept that clear language had ousted that rule.

[17]      Mr Allardice submitted that this was a suspension and interruption to the time limit in terms of article 16.3 of the Athens Convention.

[18]      His second argument was to the effect that the claim by the pursuer on behalf of her son was suspended and interrupted by nonage in terms of section 18(3).  Mr Allardice pointed to the use of the word “disregarded” in the section which was redolent of suspension or interruption.  Professor Johnston’s book on Prescription and Limitation at paragraphs 10.88 and 10.94 also supported this interpretation.  He pointed out that the passage where the author deals with nonage is headed “Suspension of limitation period”.  

He submitted that it was clear that the Athens Convention contemplated periods in excess of two years.  That was particularly the case when one contemplated someone undertaking a long voyage when disembarkation might be even years in the future.  If death occurred on say the first day of the voyage then the limitation of action may be considerably postponed.  The Convention required to be interpreted in a consistent manner but subject to article 16.3.  

[19]      Mr Allardice clarified that the words “Further and in any event the claim is based on the fault and negligence of the defender ….” where they occur in statement 6 were not an attempt to establish a common law case but merely a recognition that while there was a presumption of fault where a defect was proved there was no such presumption in relation to a claim of not having provided an adequate risk assessment.  The fault would have to be proved.

 

Submissions for defenders
[20]      Article 16 is a limitation period not a prescription and does not extinguish the right.  The Athens Convention regulated the start dates for the running of the time period.  Section 18 did not apply to these times and had no application in this case.  The Athens Convention was a lex specialis and as a matter of ordinary statutory construction ousted the lex generalis contained in the 1973 Act.  Special rules derogated from the general;  see Professor Johnston, Prescription and Limitation, 2^nd edition, Appendix II; Martin v Most 2010 SC (UKSC) 40 per Lord Rodger of Earlsferry at paragraph 135.  Section 18(2) and (3) of the 1973 Act do not deal with suspension and interruption as contemplated in article 16.3 of the Athens Convention.  Section 18(2) only apples to cases in which section 18 is engaged and not to other cases.  It sets the start date for the running of the three year period.  You could not have a suspension or interruption if the time had not commenced.

[21]      The words “suspension and interruption” in article 16.3 were synonyms for each other.  In Higham v Stena Sealink Ltd [1996] 1WLR 1107 at 1102, Hirst LJ dealing with an argument that section 33 of the Limitation Act 1980 interrupted the period under article 16.3 said the examples that were given contemplate a break in a period or course of events which are presently in train.  Section 33, which is the English equivalent to section 19A, of the 1973 Act, empowered the court to exclude altogether a period which has already run its course and so could not in his judgement be treated as a ground of suspension and interruption under article 16(3).  In Stolt Kestrel BV v Sener Petrol Denizcilik Ticaret AS [2015] EWCA Civ 1035, Tomlinosn LJ said that English law had no provisions pursuant to which time limits may be suspended or interrupted; paragraph 56.  Mr Howie submitted that the structure of the English Act was very similar to the 1973 Act and the comments were equally persuasive in Scotland.

[22]      So far as section 18(3) is concerned it only applied to the start date for the time period specified in section 18(2).  In any event nonage was not and never could be an interruption of a period which had already started. We only get older not younger.

[23]      Even if he was wrong in all of these submissions the letter written by the agents in April 2013 demonstrated knowledge that the injuries of the deceased were due to an act or omission and that the defenders were a person to whose act or omission the injuries were attributable.  Accordingly in that event the two years would start to run on 17 April 2013.  The action would still be time barred.

 

Decision
[24]      This case is brought under the Athens Convention.  Article 16.1 provides that an action for damages shall be time barred after a period of two years.  Article 16.2 provides the starting point in the calculation for the time period.  Applying these periods this action was time barred on 18 August 2014.

[25]      Article 16.3 provides that the lex fori shall govern the grounds of suspension and interruption.  Mr Allardice argues that the provisions of section 18(2) and (3) of the 1973 Act govern the suspension and interruption of the time period under article 16.  I do not accept that argument.  In the first place the commencement of the time period is governed by article 16.2 and not by section 18(2) of the 1973 Act.  To hold otherwise would be to invert the rule of statutory construction;  Martin v Most per Lord Rodger of Earlsferry at paragraph 135. 

[26]      Secondly section 18(2) sets out commencement dates from which the three year time period runs.  It does not set out to suspend or interrupt a time period which is already in train;  see Hirst LJ in Higham v Stena Sealink Ltd at 1102.

[27]      Turning to section 18(3) this subsection relates to the computation of the time period in section 18(2).  It does and cannot apply to other stand-alone provisions in other enactments.  In any event I cannot accept that nonage is a suspension or interruption of a time period already in train.  At best it is a deferment of the start of the time period.

[28]      Had it been necessary to do so I would have taken the view that the letter by the pursuer’s agents dated 17 April 2013 demonstrated the requisite knowledge for the purposes of section 18(2) before the publication of the MAIB report in December 2013.

[29]      For these reasons I hold that the action is time barred.  I shall dismiss the action.  I shall find the pursuer liable to the defenders in expenses.