Two recent English Court of Appeal decisions consider the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea 1974. Hamblen LJ in November 2017 decided the two cases Lawrence v NCL (Bahamas) Ltd (The “Norwegian Jade”) [2017] EWCA Civ 2222 and Collins v Lawrence [2017] EWCA Civ 2268. What does disembarkation mean? And what are the roles of the contractual carrier and the performing carrier under the Convention?
Collins v Lawrence
Mr Collins had been for a fishing trip. Disembarkation was by a set of semi-permanent steps down onto a shingle beach. Was Mr Collins still in the process of disembarkation, or had he completed that process when he slipped on a wooden plank at the foot of the steps? If he injured himself in the process of disembarkation, the short Athens Convention time bar applied, but if he injured himself afterwards, the general civil liability time bar, which was longer, applied and the claim would be within time.
The key provision in the Athens Convention 1974 was the following, article 1.8:
“‘Carriage’ covers the following periods:
(a) With regard to the passenger and his cabin luggage, the period during which the passenger and/or his cabin luggage are on board the ship or in the course of embarkation or disembarkation and the period during which the passenger and his cabin luggage are transported by water from land to the ship or vice versa, if the cost of such transport is included in the fare or if the vessel used for the purpose or auxiliary transport has been put at the disposal of the passenger by the carrier. However, with regard to the passenger, carriage does not include the period during which he is in a marine terminal or station or on a quay or in or on any other port installation.”
In the view of the judge, the process of disembarkation covered the whole period of moving from the vessel to a safe position on the shore while a person was still using equipment which facilitated disembarkation, such as the steps and wooden board in this case. Therefore Mr Collins was still in the process of disembarking. Disembarkation had not been completed until the claimant was ashore, which meant safely on the shingle beach. The claim was time-barred.
The Norwegian Jade
In The Norwegian Jade, the cruise passenger had made a contract through a travel agent to travel from London to Venice, join a cruise around the Mediterranean with disembarkation in Venice and then a return flight to London. At Santorini, he fell and injured himself, not on board, but on a smaller boat which was to take him from the cruise ship to the island.
The cruise ship operator first of all argued that it was not the contractual carrier, and that it was the travel agent who had contracted with the passenger as contractual carrier. This argument was unsuccessful: it was the cruise ship operator who provided booking confirmations, in copy to the travel agent and the guest. The booking conditions stated that for a booking made through a travel agent, a binding contract came into existence with the defendant when the travel agent received confirmation of the booking and a reservation number.
Secondly, the cruise ship operator argued that article 1.8 of the Athens Convention did not apply when Mr Lawrence left the ship only for a day trip. ‘Embarkation’ and ‘disembarkation,’ the cruise ship operator argued, meant the passenger and their luggage being moved simultaneously at the beginning and end of the cruise. This argument too was unsuccessful. It appear to be the first time it has been considered by a court.
Thirdly, the judge held that the operator of the smaller boat at Santorini, which was acting as ‘performing carriers,’ was at fault or in neglect in that they should have placed an additional sign at eye level warning passengers of the potentially hazardous step that caused Mr Lawrence to trip and fall. Since the performing carrier was at fault or in neglect, so was the contractual carrier, namely the cruise ship operator, either because it had taken no action itself or because it was answerable for the fault or neglect of the performing carrier.
Comment
Personal injuries and small passenger claims are most frequently brought in the county courts. Such decisions are often not reported, meaning that it is difficult to find decisions on how the Athens Convention is applied in practice. These decisions should help achieve some uniformity in passenger carriage claims.
Dr Johanna Hjalmarsson
Southampton Law School
The full article was published in Lloyd’s Shipping & Trade Law on 9 February and is available on www.i-law.com and on www.shippingandtradelaw.com