Volltext

Norfolk v. My Travel Group Plc

Plymouth County Court

Aug. 21, 2003
[2004] 1 Lloyd's Rep. 106


JUDGMENT

Judge OVEREND:
1. The preliminary issue in this case concerns the answer to the question as to whether or not the claimant's claim against the defendants is barred by art. 16 of the Athens Convention as applied by s. 183 of the Merchant Shipping Act, 1995. The preliminary issue proceeds upon the assumption that the facts set out in the particulars of claim as amended.
2. In brief it is said that there was a contract entered into on Sep. 6, 1999 between Mr. Norfolk, the claimant's husband, and the defendants, whereby the defendants agreed to organize and retail a package holiday to Mr. Norfolk and his wife. The package holiday comprised a sea cruise on the motor vessel Carousel starting at Palma. The package included flights to and from Bristol. The vessel sailed from Palma on Sep. 18, 1999 and after no doubt enjoying a happy holiday until then, on Sep. 30, 1999 unfortunately Mrs. Norfolk was injured in an accident on the vessel. She slipped on water on the floor of a lift and, as a result, suffered personal injuries. She claims in her claim form consequential losses including losses for pain, suffering and loss of amenity, and also including enjoyment of the rest of her holiday.
3. That claim form was issued on Sep. 25, 2002 against the defendants under the Package Travel, Package Holidays and Package Tours Regulations 1992. In particular the claim was made under reg. 15 which provides:
15(b) The other party to the contract [the organiser or retailer] is liable to the consumer for the proper performance of the obligations under the contract, irrespective of whether such obligations are to be performed by that other party or by other suppliers of services but this shall not affect any remedy or right of action which that other party may have against those other suppliers of services.
15(2) provides:
The other party to the contract is liable to the consumer for any damage caused to him by the failure to perform the contract or the improper performance of the contract unless the failure or the improper performance is due neither to any fault of that party nor to that of another supplier of services.
and then specific circumstances are set out in sub-reg. 2(a), (b) and (c).
4. In addition to the facts in the particulars of claim certain admissions have also been made by and on behalf of the claimant. They include the following:
1. That the contract was a contract of carriage within the meaning of art. 1.2 of the Athens Convention.
2. That in relation to the contract the defendant was a carrier within the meaning of art. 1.1 of the Athens Convention.
3. That the contract included carriage by sea within the meaning of the Athens Convention; and
4. That the Carousel was a sea-going vessel.
5. There are other admissions. The combination of all those admissions enables this Court to concentrate solely on the preliminary issue to which I have already referred. The original order of District Judge Meredith of May 17, 2003 had also ordered at a trial of two earlier preliminary issues:
(a) Whether the claimants alleged cause of action against the defendant arises out of a contract of carriage made by or on behalf of the defendant as a carrier, within the terms of art. 1 of the Convention . . .
2. Whether, if so, the carriage which was the subject of the aforesaid contract was "international carriage" within the meaning of that term as used in the Convention.
The answer to both those questions in the light of the admissions is yes.
6. The Athens Convention goes back to 1974 and has been part of English law from shortly after that date. Its current status is that it is applied under s. 183 of the Merchant Shipping Act, 1995 which provides, s. 183(1):
The provisions of the Convention relating to the Carriage of Passengers and their Luggage by Sea as set out in Part 1 of Schedule 6 (hereinafter in this section and in Part II of that Schedule referred to as "The Convention") shall have the force of law in the United Kingdom.
The 1995 Shipping Act was a consolidating Act.
7. The Convention itself contains a number of articles of relevance to this preliminary issue. It includes art. 7, which limits liability for personal injury to an amount not exceeding 46,666 units of account per carriage. Article 8 which limits liability for loss of or damage to luggage to figures which include 833 units of account per passenger per carriage, and art. 10, which enables carrier and passenger to agree in writing and expressly to higher limits of liability than those I have referred to in arts 7 and 8.
8. For this preliminary issue, the most significant provisions of the Convention are art. 14, Basis for Claims:
No action for damages for the death of or personal injury to a passenger, or for the loss of or damage to luggage shall be brought against a carrier or performing carrier otherwise than in accordance with this Convention.
and art. 16:
Time-bar for actions.
1. Any action for damages arising out of the death of or personal injury to a passenger or for the loss of or damage to luggage shall be time-barred after a period of two years (my emphasis).
2. The limitation period shall be calculated as follows:
(a) in the case of personal injury, from the date of disembarkation of the passenger;
9. It is common ground between the parties that if the Athens Convention applies, then Mrs. Norfolk's claim is caught by the two year time bar in art. 16, having regard to the date when the claim form was issued.
10. Miss Begley, on behalf of the defendant, says that the Athens Convention does apply. She says that this is a claim for damages for personal injury to a passenger, however it is dressed up or labelled. She relies by parity of reasoning upon the House of Lords decision of Sidhu v. British Airways, [1997] 2 W.L.R. 26 which was concerned with the interaction of the Warsaw Convention and common law claims made by passengers in an aircraft. A similar situation arose in that case regarding the time bar limitations of the Warsaw Convention. Lord Hope in his speech concluded at p. 46, par. E:
I believe that the answer to the question raised in the present case is to be found in the objects and structure of the Convention. The language used and the subject matter with which it deals demonstrate that what was sought to be achieved was a uniform international code which could be applied by the courts of all the high contracting parties without reference to the rules of their own domestic law. The Convention does not purport to deal with all matters relating to contracts of international carriage by air, but in those area with which it deals and the liability of the carrier is one of them. The code is intended to be uniform and to be exclusive also of any resort to the rules of domestic law.
An answer to the question which leaves the claimant without a remedy is not at first sight attractive. It is tempting to give way to the argument that where here is a wrong there must be remedy. That indeed is the foundation upon which much of our own common law has been built up.
And he continued on p. 47 at letter A:
It was not designed to provide remedies against the carrier to enable all losses to be compensated. It was designed instead to define those situations in which compensation was to be available. So it set out the limits of liability and the conditions under which claims to establish that liability, if disputed, were to be made. A balance was struck in the interests of certainty and uniformity.


He continued further at letter C:
The conclusion must be therefore that any remedy is excluded by the Convention as the set of uniform rules does not provide for it. The domestic courts are not free to provide a remedy according to their own law because to do this would be to undermine the convention. It would lead to the setting alongside the Convention of an entirely different set of rules which would distort the operation of the whole scheme.
Miss Begley argues that the rationale relied upon by Lord Hope applies just as much to statutory provisions, such as Regulations, as it did to the common law remedies sought to be enforced in the case of Sidhu.
11. Mr. Barnes, on behalf of the claimant, says that nothing could be clearer. One need only look at the regulations under which this claim is brought. He said that this is a separate scheme devised for the regulation of package holidays enabling actions to be brought against retailers and organizers of package tours. He says that times have moved on since sailing tickets were bought directly from the Cunard Line, to the world of the mass travel package for which the Regulations were designed. They are designed not only to be effective in this country, but also the whole of the European Union has to respond to the directive. He invites the Court to say that the intention of the European directive, and of the regulations made thereunder, is to require transparency. That is to say, to insist that the exclusion provisions contained in international convention such as the Athens Convention should continue to apply but only if they are brought expressly to the notice of the consumer, whose protection is envisaged by the regulations. He relies for that proposition upon reg. 15(3) of the regulations which provides:
In the case of damage arising from the non-performance or improper performance of the services involved in the package, the contract may provide for compensation to be limited in accordance with the international conventions which govern such services.
He submits that those words only make sense if they are construed to mean that the Athens Convention is only to apply if there has been an express reference to it in the contract. Again, it is common ground between the parties that there is no such reference in the relevant contract.
12. Miss Begley's response to Mr. Barnes' submission is a blunt one. She says that such a construction would, if adopted, drive a coach and horses through the Athens Convention, and she argues that if that interpretation is to be applied one would have expected clear words in the regulation.
13. I agree with Miss Begley. If the effect of s. 183 of the Merchant Shipping Act, 1995, and indeed the earlier statute which was codified therein, was to have been qualified, indeed effectively partially repealed so as to make the Convention applicable only in circumstances where there had been an express reference in the contract involving a carrier, rather than the Convention applying as a matter of law, then in my judgment the draughtsman would and should have said so in clear terms.
14. I go further and consider the words of reg. 15(3) and in particular the words: "may provide for compensation to be limited in accordance with the international conventions". It does seem to me that that limitation can be interpreted as being a reference to the damage-capping provisions of arts. 7 and 8 rather than to the time-bar provision in art. 16. Accordingly, I hold that there is no conflict between the Merchant Shipping Act and the regulations on the issue of the time-bar. The regulations do not contain any provisions relating to a specific time-bar and the Athens Convention applies without the need for any express reference.
15. There is a subsidiary point advanced by Mr. Barnes, and that is to this effect, that this is not a claim for damages for personal injury but a statutory claim for damages for improper performance of the contract. In my judgment to accept such a submission would be to undermine the international scheme of the Athens Convention in the manner envisaged by Lord Hope and eschewed by him. The fact that the regulations upon which Mr. Barnes relies flow from a directive, which emanated from the Council of Europe, in my judgment does not affect the standing of the international Convention. I gain support for that view from the further remarks of Lord Hope at p. 37 of the report of the judgment in Sidhu. He was dealing with a submission that it would be inconsistent with the obligations of the United Kingdom under the European of Convention on Human Rights to accept the time-bar of art. 17 of the Warsaw Convention. He said at letter F:
Your Lordships had no hesitation in rejecting that argument. The provisions of the European Convention have no bearing on the interpretation of international conventions such as the Warsaw Convention on carriage by air - and there are many other examples - which are concerned with commerce between countries and which seek, by a process of compromise, to achieve uniformity across international frontiers in the application of trade law.
It must also be observed that, while some parties to the Warsaw Convention are parties to the European Convention of Human Rights, some, notably the United States of America - are not.
I would observe that there is a similar disparity between the signatories to the Athens Convention and the members of the Member States of the European Union. True it is that the aim of the international Convention is harmonization as is the expressed aim of the council directive. But be that as it may the reality remains that one group's harmony may be another group's distortion. The Court of Appeal in the decision of Howe v. David Brown Tractors (Retail) Ltd., [1991] 4 All E.R. 30 (at p. 36) asked the question: "What is the firm's action all about?" The answer to a similar question in this case is that this is a claim for damages for personal injury which, in my judgment, is caught by arts. 14 and 16 of the Convention. Accordingly, for those reasons the answer to the remaining preliminary issue is, yes, this case is time barred.