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Jacqueline Rédarès, a senior associate at CMS, specialising in health and safety law, provides a preview of the decision awaited from the UK Supreme Court in the matter of Warner (Respondent) v Scapa Flow Charters (Appellant), which is on appeal from the Inner House of the Court of Session in Scotland.

On 28 June 2018, the UK Supreme Court heard the Scottish appeal of Scapa Flow Charters (the appellant / defender) against the Inner House decision which had reversed an earlier decision of the Outer House, to allow Debbie Warner’s (the respondent / pursuer) claim to proceed, in part. The Inner House had held that Mrs Warner’s claim, in her capacity as a guardian, was not considered to be time-barred under Article 16 of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea 1974 (“the Athens Convention”) due to the application of section 18 of the Prescription and Limitation (Scotland) Act 1973.

Background

Scapa Flow Charter, a dive charter company, own and operate the vessel MV Jean Elaine. Lex Warner, the husband of Debbie Warner, chartered this vessel for a one-week diving trip between 11 – 18 August 2012. During the trip there was an accident resulting in his death on 14 August 2012. Mrs Warner alleges that his death was due to the fault and negligence of Scapa Flow Charter and seeks to claim damages for those failures. However, the issue presented to the Supreme Court and the lower courts does not concern the specific facts of the accident or alleged negligence, but instead focus on the issue of limitation.

On 17 April 2013, Mrs Warner’s agent sent a letter of claim to Scapa Flow Charter intimating claims for damages on her behalf as an individual, and as guardian of her and the deceased’s child. The Summons was signetted on 14 May 2015. The claim was then met with the defence that the action was in fact time barred under the Athens Convention. It prescribes a 2-year time bar commencing on the date on which the passenger should have disembarked, for actions concerning death during carriage. Under this provision, following the agreed date of disembarkation on 18 August 2012, her claim for damages would have time barred on 18 August 2014. Mrs Warner denied that either her claim or the one brought on behalf of her son was time-barred, relying on section 18 of the Prescription and Limitation (Scotland) Act 1973 (“the 1973 Act”) which provides grounds for suspension and interruption of a limitation period, as described in Article 16.3 of the Athens Convention.

At first instance, the Outer House had dismissed Mrs Warner’s action. However, on appeal to the Inner House, in relation to the action on behalf of Mrs Warner’s son, the reclaiming motion was allowed in part. Permission to appeal to the UK Supreme Court was then granted by the Inner House. The judgment of the UK Supreme Court is expected shortly.

Earlier Decisions

Outer House decision

In July 2016, the case came before the Outer House on the procedure roll. It was Mrs Warner’s case at this stage that although Article 16.2 prescribes a two year time bar, Article 16.3 allows for the suspension or interruption of this limitation period in particular circumstance governed by “the law of the court seized”. It was therefore her argument that the court must give effect to the Scots law provision relating to suspension and interruption of limitation periods set out in section 18(2) and (3) of the 1973 Act. It was argued that under section 18(2), the limitation period did not commence until the date in which the pursuer acquired the knowledge that the injuries of the deceased were attributable to an act or omission of Scapa Flow Charter. The date of knowledge in this instance was argued to be the publication of the MAIB report in December 2013, meaning the claim brought in 2015 was still within the 2-year period. And additionally under section 18(3)(b), in reference to her son, the period of limitation is yet to commence due to his non-age.

Scapa Flow Charter submitted that section 18(2) and (3) does not qualify as “suspension” or “interruption” as provided for in the Athens Convention. The words “suspension” and “interruption” were synonyms for each other and it only contemplated the stoppage of time after it had already began to run. The application of section 18(2)(b) and (3), would not “suspend” or “interrupt” a running period of time but “defer” the limitation period, subsequently creating a new start date. Section 18 therefore had no application to claims under the Athens Convention because Article 16.2 fixes its own date for when time was to start running. Additionally Scapa Flow Charter also argued that section 18(3), which prescribes the stoppage of time due to non-age, only applies to periods commencing under section 18(2). They argued that non-age could not interrupt a period which had already started running.

Lord Boyd at first instance dismissed the action on the grounds that:

  • Based on the Athens Convention, the case time-barred on 18 August 2014, 2 years after the intended date of disembarkment.
  • The commencement of the time period is governed by Article 16 of the Athens Convention and not by section 18 of the 1973 Act. Section 18 sets a start date from which the three year period runs, it does not suspend or interrupt a time period already in train. Further, section 18(3) applies to section 18(2) and not to stand-alone provisions in other enactments.
  • Non-age is not a suspension or interruption of a time period already in train, at best it is a deferment of a start date.

He additionally held, on an obiter basis, that the letter of claim dated 17 April 2013 did demonstrate requisite knowledge for the purposes of section 18 of the 1973 Act.

Inner House Decision

The Outer House decision was appealed to the Inner House of the Court of Session. The appeal again considered the proper application of the two year time bar set out in Article 16 of the Convention, and in particular whether section 18(3) of the 1973 Act could be regarded as providing grounds of “suspension and interruption periods” for the purposes of Article 16.3.

The court again considered the meaning of the language in Article 16.3, “the law of the court seized of the case shall govern the grounds of suspension and interruption of limitation periods”. The court decided the natural meaning of “interruption” and “suspension” should be applied, being regarded as the equivalent to “deferment”. What the word describes is a rule of domestic law (the Act) which has the effect of suspending or deferring what would otherwise be the date upon which the limitation period started to run.

The Inner House then went on to address the question of whether “the law of the court seized” provides appropriate provision for the instant case for section 18(3) of the 1973 Act apply.

  • In relation to section 18(2)(b), the court agreed with the Lord Ordinary’s decision, that section 18(2) specifies start dates, which includes date of death or date of knowledge. These are alternative commencement dates, not grounds for suspension or interruption of an already fixed start date such as the one set out in Article 16.2. Therefore, to allow the date of knowledge as held in section 18(2)(b) to be the commencement date would allow domestic law to supersede the provisions laid down in the Convention and therefore invert the rule of statutory construction.
  • In relation to section 18(3), the court diverged from the Lord Ordinary’s opinion. It considered that if it was to uphold the opinion that section 18(3) only applies to periods commencing under section 18(2) and is therefore incapable of suspending or interrupting the running of time under the two year limit in Article 16, the law would be unduly restrictive. Therefore the court concluded section 18(3) applied to this case and accordingly, while the claim made as an individual under section 18(2)(b) was time barred, the claim as guardian had not.

Issues to be decided by the Supreme Court 

The Inner House granted permission to appeal to the Supreme Court. The case was heard by a bench of five Justices on 28 June 2018.

The issue on appeal is whether, on a correct reading of Article 16 of the Athens Convention, section 18(3) of the 1973 Act operates as a “suspension or interruption” so as to protect the claim made on behalf of the Mrs Warner’s son from being time barred. Scapa Flow Charter’s counsel 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” and not the Inner House’s proposed definition. In terms of that natural definition, Scapa Flow Charter argued that section 18(3) does not constitute a “suspension” or “interruption” under Article 16. The child was of non-age on the date of disembarkation; he did not become non-age during the period of limitation, therefore there was no disruption of a time period “already on foot”. Scapa Flow Charter therefore argued that the claim time barred in August 2014, 2 years after disembarkation.

The court did not require to hear submissions from Mrs Warner’s counsel. The Supreme Court judgment is expected later this year.

For further details on the Supreme Court hearing, see here.