Davis v Stena Line Ltd

Under the Athens Convention, liability for a passenger’s death during carriage depends on proof of an incident caused by the carrier’s fault or neglect. The practical standard is equivalent to common-law negligence. The carrier must prove any contributory negligence.

Professional negligence is assessed by the standard of the ordinarily competent practitioner with the relevant skill. A common practice does not conclusively establish reasonable care, and an error of judgment is not a defence unless it was one that a reasonably competent practitioner might have made. An emergency affects the standard only where a genuine split-second decision is required.

Ferry operators must plan, assess and train for man-overboard rescues, including circumstances in which their own rescue boats cannot be launched. They must use an available safer rescue option where a proposed retrieval method is futile and dangerous.

The claimant, the widow and administratrix of Michael Davis, brought proceedings under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934 against the owner and operator of the ferry Koningin Beatrix.

Mr Davis went overboard during a crossing from Rosslare to Fishguard and later drowned. The parties agreed that his death occurred during carriage within the Athens Convention and that the claim was governed by article 3. The trial concerned liability only.

The central issues were whether Stena and its master had negligently managed the search and rescue, whether the attempted retrieval to the ferry caused the drowning, and whether any fault or neglect by Mr Davis contributed to his death. The court also determined an application to exclude the claimant’s expert evidence because of proposed contingency-fee arrangements.

1. Liability and contributory negligence. The claim fell within article 3 of the Athens Convention. The applicable liability regime was, for practical purposes, the same as common-law negligence. The claimant had to prove the incident and the carrier’s fault or neglect. Under article 6, Stena bore the burden of proving any negligent act or omission by Mr Davis. The evidence did not establish contributory negligence.

2. Standard of care. The court applied the ordinary competent professional standard described in Bolam v Friern Hospital Management Committee (1957) 1 WLR 582, as elaborated in Deeny v Gooda Walker Ltd (1996) L.R.L.R. 183, Saif Ali v Sidney Mitchell (1980) A.C. 198 and Whitehouse v Jordan (1981) 1 WLR 246. An error of judgment was not automatically negligent, but the defendant had to show that judgment had actually been exercised and that the decision was one a reasonably competent professional might have made.

3. Emergency and planning. The principles in The Bywell Castle (1879) 4 P.D. 219, The “Ariguani” (1940) 66 Lloyd’s List L Rep 244 and John v Rees (1970) 1 Ch 345 required a genuine agony-of-the-moment decision and did not protect a defendant that had created the dilemma or had adequate time to plan.

4. Expert evidence. Applying R (Factortame Ltd and others) v Secretary of State for Transport, Local Government and the Regions (No 8) (2002) 3 WLR 1104, the court treated contingency remuneration as highly undesirable but not an automatic bar to admissibility. The experts’ arrangements had been converted to deferred payment agreements, their objectivity could be tested in cross-examination, and exclusion would have been disproportionate and inconsistent with the overriding objective.

5. Negligence and causation. Stena had failed to risk-assess, plan, train and provide guidance for a man-overboard rescue when its own rescue boats could not be launched. Industry practice did not excuse those failures, consistently with Barkway v South Wales Transport Co (1950) 1 All ER 392 (HL). Once Mr Davis was located alive, the Celtic King’s fast rescue boat was available and was the clearly safer and more effective option. The attempted retrieval through the ferry’s bunker or pilot door was ill-prepared, effectively impossible and dangerous. The master’s failure to request the rescue boat, and his failure to approach and manoeuvre the ferry by the standard method, caused the confused sea conditions and panic that led to Mr Davis’s drowning.

6. The court applied the approach in The “Delphine” (2001) 2 Lloyd’s Rep 542 to the allegation of deliberate suicide, requiring cogent proof proportionate to its seriousness. That proof was absent. Judgment was therefore entered for the claimant.