The claim concerned an incident which occurred on 16 January 2015 when the defendant’s cruise ship, the Thomson Dream, was lying alongside in the Port of Havana, Cuba. On 9 January 2017, the claimant issued a claim form against the defendant alleging that she slipped on standing water on what has been described as the 'gangway'. The claimant alleged that she disembarked from an exit in the side of the ship, passed over the gangway between the ship and the permanent walkway which is a fixed structure leading to the passenger terminus situated in the port. It was on the permanent walkway where the claimant slipped.

In the particulars of claim it was contended that the defendant was a carrier owing duties pursuant to the Athens Convention 1974 as enacted by s 183 of the Merchant Shipping Act 1995 (UK). Article 1.8 of the Athens Convention defines carriage as 'with regard to the passenger and his cabin luggage, the period during which the passenger and/or his cabin baggage are onboard the ship or in the course of embarkation or disembarkation'. The claimant pleaded that as the injury occurred in the course of disembarkation, the defendant was liable to her regardless of whether the defendant owned or operated the gangway in question.

The claimant further made an application to amend her particulars of claim to include a claim under the Package Travel, Package Holidays and Package Tours Regulations 1992.

In its defence, the defendant drew attention to the proviso in art 1.8 of the Athens Convention which states '[h]owever with regard to the passenger, carriage does not include the period during which he is in a marine terminal or station or on a quay or in or on any other port installation'. The defendant contended that the injury occurred on part of the port structure owned by the Cuban Ministry of Transportation. Thus, the claim was outside the scope of the Athens Convention.

Therefore, the defendant applied for summary judgment on the basis that the claimant had no real prospect of succeeding. Specifically, the defendant submitted that because the claimant’s fall did not occur during the course of carriage within the meaning of the Athens Convention, the Convention does not apply. In support of this submission, the defendant provided photographic evidence showing the claimant being treated where she fell on the walkway which is apparently a substantial permanent structure forming part of the port installation.

The defendant submitted that the subject matter of the case was substantially similar to that in Jennings v TUI UK Ltd [2018] EWHC 82 (Admlty) (CMI486). The court should not be persuaded by any submissions based upon the decision in Collins v Lawrence [2017] EWCA 22 (CMI116).

In relation to the claimant’s application to amend her particulars of claim, the defendant submitted that it is made after the expiry of the relevant limitation period for personal injury claims (three years, assuming the two-year limitation period of the Athens Convention does not apply).

Held: Judgment for the defendant.

The facts indicate that the injury took place on a structure which, as decided in Jennings v TUI UK Ltd (CMI486), is to be considered as part of the port installation for the purpose of the proviso in art 1.8 of the Athens Convention 1974. In Collins v Lawrence [2017] 1 Lloyd’s Rep 13 (CMI67) HHJ Simpkiss held that the Athens Convention applied where a passenger was injured when he fell in the course of disembarking, by way of free-standing steps, leading from a grounded fishing boat to a shingle beach, so that the claim became time-barred under the more restricted provisions as to time limitation which arise under the Athens Convention. Hamblen LJ heard the application to appeal from that decision (Collins v Lawrence [2017] EWCA 22 (CMI116)) and refused permission to appeal. The proviso in art 1.8 of the Athens Convention was not argued. Hamblen LJ considered the matter of the 'gangway' provided by the shore facility but it is not clear if he was referring to a moveable gangway and any fixed port structure.

There is a distinction between a moveable gangway and a walkway, which is a fixed structure as part of the port installation. Whether an injury which occurs on a moveable gangway is to be considered as taking place in the course of carriage has not been considered or decided. Jennings v TUI UK Ltd (CMI486) deals with the specific issue of whether the fixed walkway in a port is part of the port installation for the purposes of the proviso in art 1.8 of the Athens Convention and stands as the law as presently decided until it is either appealed or held to be wrongly decided. A contrary decision in this case would be inconsistent with Jennings v TUI UK Ltd (CMI486). The claim is caught by the proviso in art 1.8 of the Athens Convention and has no reasonable prospect of success. The defendant’s application should succeed.

The claimant’s application to amend her particulars of claim is refused. The proposed amendments fail to plead a case which has any real prospect of success. In addition there has been a significant delay in seeking to amend the claim which cannot be justified.