Debbie Warner sued the operator of a motor vessel after her husband died during a diving charter in August 2012. The operator argued that the Athens Convention barred the action because it had not been brought within two years of the date on which he should have left the vessel. The Supreme Court held that her claim as guardian of their young son was not time-barred, because a Scots rule protecting a child pursuer suspended that two-year period, subject to the Convention’s three-year long-stop.
The claim and the time limit
The deceased died during a diving charter in Scottish waters. The claim alleged negligence by the charter operator. The appeal concerned only the time limit for bringing proceedings.
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His widow, Debbie Warner, sued the operator for damages, alleging negligence. She claimed both for herself and as guardian of their son, Vincent, born in November 2011. The summons was signetted, and the action therefore begun, on 14 May 2015. The parties agreed that the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea 1974 applied. It has the force of law under section 183 of the Merchant Shipping Act 1995, and a 1987 Order extends it to domestic carriage of passengers by sea.
Article 16(1) time-bars an action for damages arising from a passenger’s death after two years. Where death occurs during carriage, article 16(2) starts time on the date the passenger should have disembarked. That date was agreed to be no later than 18 August 2012. The son’s claim was therefore subject to the two-year bar unless article 16(3) extended it.
Article 16(3) provides that the law of the court governs the grounds of suspension and interruption of limitation periods. It also sets a final limit: no action under the Convention may be brought more than three years after disembarkation, or the date when disembarkation should have taken place, whichever is later. The operator accepted that Scots law was the relevant law.
The time-bar defence was argued without evidence because the necessary facts were undisputed. The Lord Ordinary dismissed the action. On 16 February 2017 the Inner House, in a judgment delivered by Lord Glennie, agreed that Mrs Warner’s own claim was time-barred, but held that her claim as Vincent’s guardian was not. She did not appeal. The operator appealed only on the son’s claim.
What “suspension” means
The operator said that “suspension” and “interruption” mean a break in a period already running. It relied on their ordinary meaning, as treated in Higham v Stena Sealink Ltd, and alternatively on a technical civil-law distinction. On that distinction, suspension pauses time which has started and leaves only the unused balance to run; interruption makes the full period begin again. Either way, it said, the period must already have started. Section 18 of the Prescription and Limitation (Scotland) Act 1973 was said not to meet that test. It allows three years for a claim following death from personal injuries, and section 18(3) disregards time while a relative who is suing lacks capacity through non-age or unsoundness of mind. Non-age lasts until 16. The operator accepted that section 18 alone would not bar Vincent’s claim, but said that it postpones the start of time, whereas the Convention fixes the start at disembarkation.
Lord Hodge gave the judgment of the Court. Lady Hale, Lord Reed, Lord Sumption and Lord Briggs agreed. The Convention was read as a uniform international code. Its words took their objective meaning in light of its purpose, on broad principles of general acceptation, rather than a technical meaning drawn from particular countries. The court was told that the preparatory materials gave no assistance. The foreign decisions cited did not interpret these words, although it was not disputed that article 16(3) does not allow a domestic discretion to extend time.
The Court rejected the narrow meaning. “Suspension” readily covers postponement of the start, including where a claimant is under a disability when the claim arises. Civil-law systems did not use the word uniformly in 1974: French, Quebec, South African and Turkish provisions treated circumstances such as minority as suspending prescription even though time had not begun. Interruption was more consistently understood as making a period start again, commonly after proceedings are begun or a debt is acknowledged, but the appeal concerned suspension. There was no consensus that suspension can occur only after commencement.
The narrower reading would also be anomalous. Incapacity arising after time had started could suspend the period, but the same incapacity existing beforehand could not. A child born after the start could benefit from the added year in article 16(3), while a child born earlier could not. The date of a mental illness would create a similar divide. Lord Hodge did not accept this as a necessary price of certainty: article 16(3) already limits any extension by its three-year long-stop. The Convention words therefore cover domestic rules which postpone the start as well as rules which later stop the clock. He agreed with Lord Glennie that suspension can include the deferment of something which has not yet started.
Lord Hodge agreed with the result in Higham that the Limitation Act 1980 did not displace the Convention time bar, and that a discretion to allow a late personal-injury claim is not suspension or interruption. He disagreed with Hirst LJ’s view that suspension must be a break in events already in train, postponement being one of its meanings. He also rejected the suggestion that a domestic ground fails merely because the statute applies it only to periods prescribed by that Act. Article 16(3) adopts grounds such as non-age or mental incapacity which the court’s own law applies to domestic claims. Such a ground can extend the article 16 period by one year.
The Scots rule applied to Vincent
Section 18 did not postpone its own start. Time begins on the date identified in section 18(2), and section 18(3) disregards later time while the person suing lacks capacity. Where the disability already exists, the calculation may look like postponement, but the mechanism suspends the running of time until capacity is acquired. In any event, a true postponement would still be suspension under the Convention.
The Scots provision did not have to mention the Convention. Article 16(3) directed the court to the domestic ground, here legal disability by non-age, and applied it to the two years running from the date Mr Warner should have disembarked. That did not conflict with the Convention’s starting date. The suspension could not carry the claim beyond three years. Within that long-stop, and in agreement with the Inner House, the claim brought by Mrs Warner as Vincent’s guardian was not time-barred.
Verdict: The Court unanimously dismissed the operator’s appeal. The claim brought on the child’s behalf was in time. Dismissal of the widow’s own claim had not been appealed, and negligence and damages were outside this decision.
