The South West Strategic Health Authority v Bay Island Voyages

An autonomous claim for contribution under the Civil Liability (Contribution) Act 1978 is not itself an action for passenger damages governed directly by Articles 14 and 16 of the Athens Convention. The carrier’s underlying liability to the passenger remains governed by the Convention.

The words in Article 16 that an action is time-barred after two years are classic remedy-barring language. They do not extinguish the underlying right. Expiry of the Convention period therefore does not engage the statutory exception for liability extinguished by limitation. International conventions must be construed by their actual words, with regard to international consensus, but no autonomous meaning displacing the natural meaning of the relevant texts was established.

Dr Kathleen Feest suffered a serious spinal injury while travelling as a passenger on a rigid inflatable boat operated by Bay Island Voyages. Her employer, the South West Strategic Health Authority, faced a personal injury claim and issued a Part 20 claim seeking contribution under section 1 of the Civil Liability (Contribution) Act 1978.

Bay Island Voyages contended that the Athens Convention applied and that Articles 14 and 16 barred the contribution claim. The District Judge struck out the claim. His Honour Judge Havelock-Allan QC dismissed the appeal, holding that the contribution claim was subject to the Convention time bar and that the bar was equivalent to extinction of the underlying right. The central issues before the Court of Appeal were whether the Convention directly governed the contribution claim and whether Article 16 extinguished the right for the purposes of section 1(3).

1. Appeal allowed. The contribution claim was not directly governed by Articles 14 and 16 of the Athens Convention.
2. Scope of the Convention. The Convention is directed to claims by passengers against carriers for death, personal injury or luggage loss. Article 4 recognises recourse between a carrier and a performing carrier, but does not regulate rights of recourse against other parties. The claim for contribution was autonomous and derived from section 1 of the Civil Liability (Contribution) Act 1978. It was not an action for damages for personal injury brought against a carrier. The carrier’s own liability to the passenger nevertheless remained governed by the Convention.
3. Nature of Article 16. Article 16 uses remedy-barring language. It provides that an action is time-barred after two years and deals with suspension, interruption and the ultimate three-year limit. Article 16(3) complements Article 16(1); it does not extinguish the underlying right. The Court relied on the distinction drawn in Aries Tanker Corporation v Total Transport Limited [1977] 1 WLR 185 and Financial Services Compensation Scheme Limited v Larnell (Insurances) Limited (in liquidation) [2006] QB 808, where more specific words were required before a limitation provision would be treated as extinguishing substantive rights.
4. International interpretation. The Convention had to be construed as an international instrument, on broad principles of general acceptation and without allowing domestic legal classifications to control. Stag Line Ltd v Foscolo, Mango and Co. Ltd [1932] AC 328, James Buchanan & Co Ltd v Babco Forwarding & Shipping (U.K) Ltd [1978] A.C. 141 and Morris v KLM Royal Dutch Airlines [2002] 2 AC 628 supported that approach. There was no settled international consensus giving Article 16 an extinctive meaning. Its natural meaning was remedy-barring.
5. Because expiry of Article 16 did not extinguish the carrier’s underlying liability, the proviso in section 1(3) of the Civil Liability (Contribution) Act 1978 was not engaged. The appeal was accordingly allowed.

• Court of Appeal (Civil Division) — Allowed the appeal. The contribution claim was not directly governed by the Athens Convention and Article 16 did not extinguish the underlying right: [2015] EWCA Civ 708.
• High Court of Justice, Queen’s Bench Division, Bristol District Registry Mercantile Court — His Honour Judge Havelock-Allan QC dismissed the appeal from the District Judge, holding that the contribution claim was subject to the Article 16 time bar and treating the bar as equivalent to extinction.
• Bristol County Court — District Judge Britton struck out the contribution claim, treating expiry of the Convention period as extinguishing the injured passenger’s right against the carrier.