ALL AT SEA | Mayo Wynne Baxter

ALL AT SEA

Woman looking out at sea (rear view)

During the holiday time, many people may be sailing on cross channel ferries across to Europe or perhaps even going on cruises. Although we hope that that it’s all “plain sailing”, what International Laws would come into play if there was an accident whilst at sea?

The starting point is the 1974 Athens Convention and its successor the 2002 Protocol, which apply to passenger ships, their passengers and luggage and may offer protection. Together, they govern liability and the extent of any compensation claims brought by passengers against the carrier and also the time period in which to bring such claims.

Under the Convention a carrier, such as a ferry company, is liable for damages resulting from a passenger’s death or injury:

  • If the incident happened whilst travelling on board, between embarking and disembarking the ship; and
  • if it was due to the carrier’s fault (eg: a shipwreck, collision, fire or other defect in the ship unless proven otherwise).

The carrier is strictly liable unless it can prove that the incident which caused the death or injury was due to circumstances such as a war or an exceptional natural phenomenon, or as a result of someone causing the incident intentionally.

The carrier can generally limit the extent of its liability to pay damages.

However, one of the major catches which can be overlooked when making a claim under the Convention, is that it imposes a two-year limitation period. This means that a claim must be brought within two years, usually calculated from the time the passenger disembarked from the vessel, failing which the claim is time barred. Time limits can vary depending on a number of circumstances and State parties may seek to vary the limitation period although it cannot be any less.

A good illustration of what happens when a claim is brought late comes from the recent Scottish case of Warner –v- Scapa Flow Charters [2016] but the consequences would apply equally to an English case.

A scuba diver on board a charter vessel, the MV Jean Elaine, died whilst on a diving trip off Scotland’s Cape Wrath in August 2012. Three days before, he had fallen on board the vessel and suffered a severe injury to his liver. On the day of the accident, he was allowed to dive by the crew but as he entered the water to start his descent, he experienced serious difficulties which led to his death. His widow brought an action for negligence against the owners of the charter vessel.

The claim was brought in May 2015, over two years after the date of “disembarkation” and the Court upheld the Defendant’s argument that the action was time-barred under the Athens Convention, as it should have been brought by August 2014. As a result, his widow was unable to pursue her claim for damages.

If you have a claim following an accident at sea, it is important to initially consider when it happened. From a risk perspective, assume that a two year limitation period applies and ensure that any claim is brought well within that time frame.

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