This was a renewed application for permission to appeal against a decision of the Admiralty Registrar (16 May 2016) where he found the applicant defendant, NCL (Bahamas) Ltd (NCL), liable for damages to the respondent claimant (Lawrence). Permission to appeal was refused by the single judge on the papers on 20 February 2017.

In 2013, Mr Lawrence booked a holiday. This included flights from the UK to Venice, hotel accommodation in Venice, a cruise in the Mediterranean on the Norwegian Jade (operated by NCL) and return flights to the UK from Venice. Mr Lawrence booked the holiday through a travel agent, Flights and Packages Ltd (Flights and Packages).

On 2 July 2013, Mr Lawrence was injured when he tripped over a hazardous step onboard a tender boat (the Ipapanti) in the Greek port of Santorini. The Ipapanti was owned and operated by the Union Boatmen of Santorini. Mr Lawrence had boarded the Ipapanti in order to be transported from the Norwegian Jade to the shore.

Mr Lawrence made a claim against NCL contending that the incident occurred during the course of international carriage and that the Athens Convention 1974 (Athens Convention) applied. He claimed that NCL was at fault or in neglect under art 3 of the Athens Convention and sought compensation.

The Athens Convention applies to ‘international carriage’ (art 1.9). If an incident occurs during the course of that carriage, the Athens Convention governs the liability of the carrier. The carrier is the person by whom the contract is concluded (art 1.1.a) and the performing carrier is the person other than the carrier who performs the whole or a part of the carriage (art 1.1.b). Carriage is defined in art 1.8 as covering ‘the period during which the passenger and/or his cabin luggage are on board the ship in the course of embarkation or disembarkation, and the period which the passenger and his cabin luggage are transported by water from the land to the ship or vice versa, if the coast of such transport is included in the fare or if the vessel used for this purpose of auxiliary transport has been put at the disposal of the passenger by the carrier …’. The carrier remains liable for the entire contract of carriage even if the performance or part of the performance of the carriage has been entrusted to a performing carrier (art 4.1), and is liable for the acts or omissions of the performing carrier (art 4.2).

The single judge found that:

1. The defendant was the contractual carrier.
2. The incident occurred within the course of carriage.
3. The step on the tender was potentially hazardous and required more than being marked with hazard tape. The Union Boatmen of Santorini were negligent in that they should have placed an additional sign at eye level, warning passengers of the step. The defendant was also negligent by failing to insist that the Union Boatmen of Santorini place a sign or, if impractical, failing to deploy their own crew members to assist passengers.

NCL appealed on three grounds:

1. The judge was wrong to find the defendant was the contractual carrier under the Athens Convention.
2. The judge was wrong to find the claimant’s fall occurred in the course of carriage; and
3. The judge was wrong to find the defendant responsible for failing to adequately mark or give warning of the step.

Held: Permission to appeal refused.

On Ground 1, the contractual documents made it clear that Flights and Packages were acting as agent for FCL at least for the period of the voyage. That did not preclude a contract between Mr Lawrence and Flights and Packages but that company could not be said to be the contractual carrier for the sea voyage, especially as they did not make sub-contracts with the Boatmen Union of Santorini. Ground 1 has no real prospects of success.

On Ground 2, NCL submitted that the wording of the Athens Convention is different in relation to the disembarkation at port (where the carrier will be responsible for the passenger ‘and/or’ his cabin luggage) and where the passenger is being transported from the ship by water transportation. NCL submitted that in the latter instance, the carrier only remains liable if the passenger ‘and’ his cabin luggage are being transported to shore at the time consistent with the start and finish of the cruise but inconsistent with ‘hop on hop off’ transportation provided by local services, as happened here.

This submission was rejected by the single judge. Art 1.6 defines ‘cabin luggage’ as not only including luggage which the passenger has in his cabin but also luggage which otherwise in his ‘possession, custody or control’. The article does not provide that the passenger must be transported with all his cabin luggage and if a literal approach is applied, it will be enough that when the passenger was in the course of transportation he had some of his possessions with him. Hamblen LJ found that he was correct in this conclusion. The purpose of the reference to both passenger and cabin luggage in art 1.8 is to ensure there is responsibility for both during the identified periods of carriage. There is no language in art 1.8 to support a distinction between the carrier’s responsibility at the beginning and end of the cruise and the carrier’s responsibility at intermediate stops. The same insensibility arises at the beginning and end stages since it is possible for a passenger and their cabin luggage to be transported separately. It would be absurd to hold that if a passenger took some part of his cabin luggage to the point of disembarkation in Santorini the Athens Convention would apply but if not, the Athens Convention would not apply. Ground 2 has no real prospect of success.

Ground 3 involves a challenge to the trial judge’s findings of primary fact. There is no real prospect of such an appeal succeeding. The question of actual negligence was a matter of fact and degree for the Admiralty Registrar and this court would not interfere with the findings.