The Athens Convention has long been a trap for the unwary claimant who either doesn’t appreciate that accidents at sea are governed by the Convention or that there is currently a 2 year limitation period. Most of the reported cases on the Convention deal with the consequences of one or both of these mistakes. However the judgment in the case of Feest v South West Strategic Health Authority  EWHC 177 (QB) (handed down today) now poses a trap for defendants wanting to bring contribution proceedings.
Dr Feest was injured as a passenger on a 9 metre RIB (rigid inflatable boat) in the Bristol Channel. She was on secondment from the Health Authority and on a corporate team building exercise being run by Bay Island Voyages when she fractured her spine. Dr Feest’s claim against the Health Authority (as her employer) was issued just before expiry of the 3 year time limit. The Health Authority brought a Part 20 claim against Bay Island Voyages. This was struck out by a district judge on the grounds that the time limit under the Convention is 2 years.
The Health Authority appealed. The appeal hinged on the distinction between a cause of action being time barred and a cause of action being extinguished. In common law jurisdictions for the most part when time expires, it acts as a bar to the remedy. In civil jurisdictions it said to extinguish the cause of action altogether. The significance of this is that a right of contribution under the Contribution Act is only available where the cause of action has not been extinguished. Hence the appeal was concerned with whether the limitation period under Article 16 of the Convention barred the remedy or whether it extinguished the right to sue.
HHJ Havelock-Allan QC found on appeal that, although Article 16 uses the language of an action being ‘time-barred’ after a period of 2 years, it extinguished the cause of action. Albeit that the Convention has been incorporated into domestic law and modified for domestic voyages, it must be ‘construed on broad principles of general acceptation’. The judge found that if he was ignorant of the English rules he would interpret Article 16 as extinguishing the right to sue.
Interestingly the Montreal Convention actually uses the words ‘the right to damages shall be extinguished’ but the Carriage by Air Act 1961 actually includes a saving provision for contribution proceedings. The Merchant Shipping Act 1996 has no equivalent – arguably because the legislators interpreted the Athens Convention as a time-bar. Either way, in the unlikely event that a Claimant’s claim is issued within 2 years of an accident, Defendants will need to act swiftly to bring contribution claims within the same 2 year time period.
(The author, Ian Miller, was counsel for the Health Authority and was led by John Ross QC)