Jennings v TUI UK Ltd (t/a Thomson Cruises)

Under the Athens Convention, carriage generally includes disembarkation, but ends when the passenger reaches a quay, marine terminal or other port installation outside the ship’s control. A walkway fixed to the quay was therefore outside the period of carriage.

Under the Package Travel Regulations 1992, liability for services supplied abroad depends on the applicable local standards of care. The claimant bears the evidential burden of pleading and proving those standards and their breach. A bare allegation that water or a hazard existed does not reverse that burden, particularly where the operator did not control the installation or know of the hazard.

The claimant slipped on water while leaving a cruise ship at Malaga and sued the tour operator under the Athens Convention and, alternatively, the Package Travel, Package Holidays and Package Tours Regulations 1992.

The fall occurred on a fixed walkway leading from the quay to the terminal, after the claimant had left the ship. The issues were whether the incident occurred during carriage, whether the operator was at fault, whether the Regulations applied, whether the operator or a supplier was liable, and whether the claimant’s negligence contributed to the accident.

1. Athens Convention. The Convention, incorporated into English law by Merchant Shipping Act 1995, did not apply. Article 1(8) includes embarkation and disembarkation, but excludes the period when the passenger is in a marine terminal, on a quay, or in or on another port installation. The relevant walkway was a structure on the quay and outside the ship’s control. Carriage ended when the claimant stepped onto it.
2. Collins v Lawrence was distinguishable because the injury there occurred on disembarkation equipment provided by the vessel. The court rejected the broader suggestion that carriage continues until the passenger reaches a place of safety. Lawrence v NCL was likewise distinguishable because it concerned tenders placed at passengers’ disposal by the carrier.
3. The claimant had not proved that the defendant or its crew caused the water. The defendant therefore had no liability under the Convention in any event.
4. Package Travel Regulations 1992. The booking documents showed that the package holiday ran from Cardiff and back to Cardiff, so the Regulations applied notwithstanding the narrower pleaded formulation. No additional contractual term requiring the ship to be reasonably safe or compliant with local standards was implied.
5. A tour operator may owe a duty to warn of an obvious and serious hazard within the scope of the package contract. This was not such a case. The walkway was a port installation outside the defendant’s control; damp conditions were apparent; the alleged hazard was neither shown to be serious nor known to the defendant; and the operator could not reasonably be expected to survey or patrol the port facilities.
6. Under regulation 15, liability for a supplier’s improper performance required proof of the applicable Spanish standard of care and its breach. The claimant had pleaded and proved neither. Wilson v Best Travel Ltd, Codd v Thomson Tour Operations Ltd, Holden v First Choice Holidays & Flights Ltd and Lougheed v On The Beach Ltd supported that conclusion. Res ipsa loquitur did not reverse the evidential burden because there was no evidence that the responsible party knew of the hazard.
7. The claim failed under both regimes. The provisions of the Athens Convention did not apply, and liability under the Package Travel Regulations 1992 was not established.

First-instance decision. No prior appellate decision is stated in the judgment.