News & events
02/08/2012 - Athens Convention Time Bar - Is a RIB a "ship" and "sea-going"?
The Athens Convention (the "Convention”) applies to passengers on-board sea-going ships and the carrier's liability for death, personal injury and loss or damage to luggage. Wider implications apply following the enactment of the Carriage of Passengers by Sea (Domestic Carriage) Order SI 1987/670 which extended its application to journeys within UK coastal waters.
Michael v Musgrave (The "SEA EAGLE”) (2012) 844 LMLN3, considers whether a personal injury claim on-board a RIB was time-barred under the Convention and whether a RIB (1) is a ship; and (2) was sea-going?
The Claimant was a passenger on-board the Defendant's RIB "SEA EAGLE” on a wildlife tour on the coast of Anglesey when, in August 2007, the RIB hit a wave in the Menai Strait causing the Claimant to suffer an injury.
Proceedings were issued on 20 May 2010 i.e. within the 3 year time bar that ordinarily applies for personal injury claims. The Claimant alleged negligence in the provision of a safety briefing before and after the voyage; failing to instruct the Claimant not to stand up; failing to take into account that the waters during the passage would be rough; failing to operate the vessel in a manner in which injury to passengers could be avoided; and failing to have sufficient hand rails in place. The Defendant denied liability and pleaded limitation.
The Defendant applied for Summary Judgment under CPR Part 24 seeking disposal of the claim (before it reached trial) on the basis that there were no reasonable prospects of success and that the claim was time-barred after 2 years pursuant to Article 16 of the Convention, as enacted by section 183 and Schedule 6 of the Merchant Shipping Act 1995.
Whilst the Claimant accepted that the Convention would ordinarily apply to the passage in question it argued that the Convention did not, however, apply to a RIB as it was not "sea-going” and was not a "ship” as defined under the Convention. The Claimant also considered that in the absence of a cabin the RIB could not be considered seaworthy.
The Court considered the definition of both ‘ship' and sea-going' and the purpose in which the RIB was ordinarily used, together with other passages undertaken.
The RIB was certified by MECAL as a small commercial vessel and had undertaken passages to the Isle of Man in conditions up to Beaufort force 6. Her design and construction was such that she was considered permanent and suitable for navigating offshore. The RIB was also suitable for open waters and in the absence of a cabin her safety was not compromised. The RIB was therefore considered a ship under the Merchant Shipping Act.
As to whether she was "sea-going”, the Court considered The Salt Union v Wood  1 QB 370 and affirmed Lord Coleridge's test:
"…in the context of deciding whether a ship is "sea-going” ship the important issue is not whether a ship can go to sea but whether she does go to sea”.
The Court also took guidance from the Merchant Shipping Notice, MSN 1776 which lists 4 bodies of water not regarded as "sea”, including rivers, canals, tidal rivers, lakes and estuaries of certain depths. The Court concluded that the RIB operated in waters outside of the 4 categories, as demonstrated by her passage during those trips. Accordingly she was found to be operating as a "sea-going” vessel.
The Court held the Athens Convention applied and that the claim was time barred and gave Judgment for the Defendant.
The case demonstrates that the Court will consider the actual use of the vessel in determining whether or not the Convention applies, notwithstanding the design. Had the RIB only undertaken journeys within Category A to D waters, not regarded as "sea”, then the Claimant may have been able to continue pursuing his personal injury claim regardless of the fact that the RIB may have been capable of operating in "sea-going” conditions.
Entities operating passenger vessels (and their insurers) should take account of the possibility that claims of this nature maybe subject to shorter time-bars and allow for a technical defence.