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Natalie Haefner is currently a second seat trainee at CMS. Her first seat was in the Health and Safety / Litigation team in the Aberdeen office and she is now on secondment. In this post, Natalie comments on the decision handed down in the matter of Warner v Scapa Flow Charters [2018] UKSC 52:

Background

Scapa Flow Charters (Scotland) (“SFC”), a dive charter company, own and operate the vessel MV Jean Elaine. Mr Lex Warner chartered this vessel for a one week diving trip between 11 – 18 August 2012. During the trip there was an accident resulting in Mr Warner’s death. Mr Warner’s widow, Mrs Debbie Warner, raised an action against SFC in which she alleged that her husband’s death was the result of SFC’s negligence. Mrs Warner sought damages both as an individual and as a guardian of their young son, who was born in November 2011. However the issue presented to the Supreme Court and lower courts did not concern the specific facts of the accident or the alleged negligence, but the issue of limitation.

Mrs Warner’s summons was signetted on 14 May 2015. SFC lodged a defence that the action was time-barred under the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea 1974 (“the Athens Convention”), which, in the case of a death occurring during carriage, imposes a time bar of two years from the date on which the passenger would have disembarked. The parties agreed that Mr Warner would have disembarked no later than 18 August 2012. Therefore, under the provision in the Athens Convention, Mrs Warner’s claim would have been time-barred on 18 August 2014.

The Athens Convention

The Athens Convention has the force of law in the UK. Article 16 deals with time bar for actions.

Any action for damages arising out of the death 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.

  1. The limitation period shall be calculated as follows:
    1. In the case of personal injury, from the date of disembarkation of the passenger;
    2. 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 resulting from 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;
    3. In the case of loss or damage to luggage, from the date of disembarkation or from the date when disembarkation should have taken place, whichever is later.
  2. 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.

Mrs Warner’s claim would be subject to the two year time bar in article 16.1 unless article 16.3 applies to extend that period. Mrs Warner relied on section 18 of the Prescription and Limitation (Scotland) Act 1973 (“the 1973 Act”) which she argued provides grounds for suspension and interruption of a limitation period, as described in article 16.3 of the Athens Convention.

Section 18 of the Prescription and Limitation (Scotland) Act 1973

  • 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;
  • Subject to subsections (3) and (4) … no action to which this section applies shall be brought unless it is commenced within a period of 3 years after –
    1. The date of death of the deceased; or
    2. 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 –
      1. That the injuries of the deceased were attributable in whole or in part to an act or omission; and
      2. 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.
  • 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.

Earlier Decisions

In July 2016 the claim came before the Outer House. SFC contended that the natural meaning of the words “grounds for suspension and interruption of limitation periods” in article 16.3 is that they are grounds which give rise to a break in a period of events already in train and that a suspension or an interruption only operates if the limitation has begun to run before the pausing or halting event occurred. Article 16.3 only allows a domestic rule of limitation to extend the two year limitation by up to one year when the domestic rule operates to pause the running of time in a limitation period which has already commenced, therefore section 18 of the 1973 Act does not contain such “grounds of suspension and interruption” as to extend the limitation period as it postpones the start of the limitation period instead of interrupting or suspending it.

Lord Boyd held that the action was time-barred and dismissed the action on the grounds that:

  • 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;
  • 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;
  • Section 18(3) relates to the computation of the time period in section 18(2). It does not apply to other stand-alone provisions in other enactments; and
  • Nonage is not a suspension or interruption of a time period already in train. At best it is a deferment of the start of the time period.

The Outer House decision was appealed and heard in the Inner House in February 2017. The Inner House again considered the proper application of the two year time bar and the meaning of the language in article 16.2. The Court adhered to the decision of the Outer House to the extent that it dismissed the action by Mrs Warner as an individual in her own right. However, the Court held that Mrs Warner’s claim as guardian of her son was not time-barred.

The Inner House granted permission for SFC to appeal to the Supreme Court. The issue on appeal was whether, on a correct reading of article 16, section 18(3) of the 1973 Act operates as a “suspension or interruption” so as to protect the claim made by Mrs Warner on behalf of her son from being time-barred. SFC submitted that an autonomous meaning of the words “suspension” and “interruption” is required, which should encompass the natural definition of the words, being “the disruption of something already on foot”. They also argued that the child was of nonage on the date of disembarkation – he did not become nonage during the period of limitation, therefore there was no disruption of a time period “already on foot”.

The Supreme Court’s judgment

The case was heard before the Supreme Court on 28 June 2018 and the judgment was given on 17 October 2018. The Court concluded that Mrs Warner’s claim as her son’s guardian was not time-barred by the Athens Convention and dismissed the appeal.

The Court held that in interpreting an international convention, national courts must look at the objective meaning of the words used and the purpose of the convention as a whole.

For the following three reasons, Lord Hodge held that the Court should not give a technical meaning to the words “suspension and interruption” which, SFC asserted, could be derived from certain civil law systems.

  1. It is not appropriate to look to the domestic law of certain civil law systems for a technical meaning of the words in an international convention which was designed to be operated in many common law systems as well. The word “suspension” in its natural meaning can readily cover the postponement of the start of a limitation period and the courts have adopted an approach to interpretation which respects the international character of such a document.
  2. There was no uniformity in the use of the expression “suspension” in 1974 when the Athens Convention was adopted. In civil law jurisdictions, the word “suspension” has been used in more than one sense, encompassing both a temporary pause in a prescription period which has already started to run and also the postponement of the start of a prescription period.
  3. An interpretation of article 16.3 as excluding domestic rules which have the effect of postponing the start of a limitation period would give rise to serious anomalies. Many legal systems suspend the operation of prescription or limitation when a claimant is a minor or is subject to a recognised legal disability such as mental incapacity.

Lord Hodge held that, in his view, the words in article 16.3 “the grounds of suspension… of limitation periods” are sufficiently wide to cover domestic rules which postpone the start of a limitation period as well as those which stop the clock after the limitation period has begun.

SFC accepted that if the only time bar in play were that of section 18, Mrs Warner’s claim as guardian of her son would not be time-barred. However section 18(3) could not save her son’s claim from the time bar in article 16.1 because it does not suspend or interrupt any period of limitation, but postpones the date when the limitation period starts to run. The starting point of the limitation period under section 18 would be the date of the removal of the disability, not the date of disembarkation which article 16 imposes and a domestic provision cannot defer the running of the two-year limitation period until beyond the long stop of three years,

Lord Hodge was satisfied there was no substance to SFC’s submissions.

  • There is no question of postponing the start of the limitation period; that remains as identified in 16.2. Where the pursuer’s legal disability predates the start of the limitation period, the practical effect of the disregard on the calculation of the expiry of the three-year limitation period will be the same as a postponement from the start of the limitation period; but the statutory mechanism is not a postponement of the start. A postponement of the start of a limitation period does not fall outside an international understanding of “suspension” of limitation periods.
  • Article 16.3 does not require the rules for suspending the running of a limitation period in the domestic law of the country in which an action is brought to extend beyond the domestic statutory regime to encompass the limitation rules of the Convention. In section 18(3) the grounds for the disregard of time are that the pursuer is under a legal disability by reason of non-age or unsoundness of mind. Under article 16.3 the legal disability, which the domestic law of the country in which the action is brought recognises as a grounds of suspension, has the effect of suspending the running of time on the limitation period imposed by article 16.1 and 2, namely the two years from the date when Mr Warner should have been disembarked. The application of the grounds of suspension in section 18(3) involves no inconsistency with article 16.2.
  • A domestic “suspension” provision cannot defer the expiry of the Convention’s limitation period beyond that long stop.

 The unanimous ruling by the Supreme Court means that SFC will now have to defend the legal action against them in the Scottish courts.