Mahapatra v TUI UK Ltd

For the purposes of art 1(8) of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea 1974, a passenger injured on a fixed walkway forming part of a port installation is outside the period of carriage. A claim based on the Convention therefore has no real prospect of success where the evidence establishes that location.

On an application to amend after the limitation period, the court must consider whether the proposed claim arises from the same or substantially the same facts, whether it has a real prospect of success, the strength of the claim, and the explanation for any delay.

The claimant alleged that she slipped while disembarking from the defendant’s cruise ship in Havana. She pleaded liability under the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea 1974, as enacted by section 183 of the Merchant Shipping Act 1995.

The defendant applied for summary judgment under CPR r 24.2, contending that the accident occurred on a fixed port installation within the proviso to art 1(8). The claimant cross-applied to amend her Particulars of Claim to add a claim under the Package Travel etc Regulations 1992.

1. Summary judgment. The photographic evidence showed that the claimant fell on a permanent walkway operated by the port authority. The suggestion that the accident occurred elsewhere lacked reality and could be disregarded for the application.
2. Under art 1(8) of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea 1974, carriage does not include the period when a passenger is in or on a quay or other port installation. The fixed walkway fell within that proviso. The court followed its earlier decision in Jennings v TUI UK Ltd (t/a Thomson Cruises) [2018] EWHC 82 (Admlty).
3. The decision in Collins v Lawrence [2017] 1 Lloyd’s Rep 13 was distinguishable. The proviso to art 1(8) had not been argued there, and the question whether a fixed walkway was a port installation was not necessary to that decision. Any view of Hamblen LJ on that issue would have been obiter.
4. The pleaded Convention claim consequently had no reasonable prospect of success. Summary judgment was granted under CPR r 24.2.
5. Amendment. The proposed amendment adding a claim under the Package Travel etc Regulations 1992 was made after the relevant limitation period and introduced facts not substantially pleaded in the original claim. It therefore failed CPR r 17.4(2).
6. In any event, the proposed claim had no real prospect of success because it did not plead or evidence the applicable local safety standards or any breach of them. The delay of more than 14 months after service of the Defence, and until after the summary judgment application, was unexplained and unjustified. Permission to amend was refused and the claimant’s application was dismissed.