On 14 August 2012 Lex Warner was killed in a diving accident off Cape Wrath. The pursuer is his widow as an individual and as guardian to their son. The defenders own and operate the MV Jean Elaine. The deceased had chartered the vessel for a diving trip in the course of which the accident occurred. The pursuer alleges that her husband’s death was due to the negligence of the defenders.

This Reclaiming Motion (appeal) from the decision in Warner v Scapa Flow Charters (see CMI124) raises a question as to the proper application of the two-year time bar in art 16 of the Convention relating to the Carriage of Passengers and their Luggage by Sea 1974 (Athens Convention 1974) set out in Sch 6 to the Merchant Shipping Act 1995. In particular it raises the question whether certain provisions of the Prescription and Limitation (Scotland) Act 1973 (1973 Act) are to be regarded as providing 'grounds of suspension and interruption of limitation periods' for the purposes of art 16.3 of the Athens Convention 1974.

Held: The court shall (a) adhere to the interlocutor of the Lord Ordinary insofar as it dismissed the action by the pursuer as an individual in her own right but (b) recall that interlocutor to the extent that it dismissed the pursuer’s action as guardian of her son, Vincent Warner, and replace it by a finding that the claim by the pursuer as guardian of Vincent Warner is not time-barred.

The Athens Convention has the force of law in the United Kingdom: see s 183(1) of the Merchant Shipping Act 1995. It is not in dispute that the Convention applies in this case. The deceased was a passenger within the meaning of art 1.4 of the Convention; the contract pursuant to which he was on board the vessel was a contract of carriage within the meaning of art 1.2; the defenders, who concluded the contract with him, were the carrier within the meaning of art 1.1.a;  and, in terms of art 1.8, the carriage covered the period during which he was on board the ship or in the course of embarkation or disembarkation.

The Athens Convention provides a comprehensive code for the allocation of liability for death, injury, loss and damage occurring during the course of the carriage. In terms of art 3.1, the carrier is liable for the damage suffered as a result of the death or personal injury to a passenger (and the loss of or damage to luggage) if the incident which caused the death, injury, loss or damage occurred in the course of the carriage and was due to the fault or neglect of the carrier or of his servants or agents acting within the scope of their employment. Articles 3.2 and 3.3 make specific provision for the burden of proof in certain circumstances. Article 6 deals with the question of 'contributory fault'; and arts 7 and 8 set out limits of liability respectively for death or personal injury and for loss or damage to goods. Those limits of liability are subject to the terms of art 13 which provides that the carrier shall not be entitled to limit its liability if it is proved that the damage resulted from an act or omission done with intent to cause such damage or recklessly and with knowledge that such damage would probably result. Article 14 provides that 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 otherwise than in accordance with the Convention ‑ any claim has to be made under the Convention.

It is against this background that the Convention, in art 16, provides its own time limit for bringing an action for damages arising out of death or personal injury to a passenger or loss or damage to luggage. Four points in particular should be noted:

• First, any action for damages, including one arising out of the death of a passenger, is time-barred after a period of two years: art 16.1. In other words, any such action is subject to a two-year limitation period.
• Second, art 16.2 stipulates the commencement date for that two-year limitation period. In the case of death occurring during carriage, that two-year period is calculated as from the date when the passenger should have disembarked. In the present case that date is 18 August 2012 at latest.
• Third, art 16.3 allows the lex fori, the law of the court seized of the case, to govern the grounds of suspension and interruption of that limitation period, ie to prescribe the circumstances (if any) in which that limitation period may be suspended or interrupted.
• Fourth, art 16.3 provides a long stop date of three years after disembarkation for the commencement of proceedings. Even in a case where the lex fori permits the two-year limitation period to be suspended or interrupted, the action must nevertheless be commenced no later than three years after disembarkation (unless there has been a declaration or agreement in terms of art 16.4), otherwise it will be time-barred.

The question should be approached in two stages. The first question relates to the meaning of the Convention and, in particular, art 16.3. What does the Convention mean when it permits the lex fori to govern the grounds of suspension and interruption of limitation periods? By analogy with the judgment of Hirst LJ in Higham v Stena Sealink Ltd [1996] 1 WLR 1107 at 1111C-D, art 16.3 can be read as though it said 'The Prescription and Limitation (Scotland) Act 1973 shall govern the grounds of suspension and interruption of limitation periods …'; but in order to ascertain the extent to which provisions of the 1973 Act are relevant it is still necessary to understand what the Convention is referring to when it uses in art 16.3 the expression 'suspension and interruption of limitation periods'. Having identified what aspect of the lex fori is being referred to in art 16.3, the second question is whether Scots law, being the lex fori in this case, has any relevant provisions for 'suspension and interruption' of limitation periods. If it does, then, so far as may be relevant, those provisions govern.

Article 16.2 of the Convention fixes the starting date for the commencement of the two-year limitation period. The framers of the Convention cannot have intended that the lex fori should be able to replace this with some other starting date. But it does not follow from this that the word 'suspension' in art 16.3 has to be read in a restrictive manner. What the word 'suspension' describes is some rule of domestic law which has the effect of suspending or deferring what would otherwise be the date upon which the limitation period started to run. In other words, the word 'suspension' presupposes that there is already a date from which time would begin to run but for the particular circumstances in which the running of time is suspended or deferred. It is in this sense that it can be regarded as equivalent to 'deferment'. That is its natural meaning.

So far as s 18(2) of the 1973 Act is concerned, reliance is placed on the terms of s 18(2)(b) which defines the commencement date for limitation purposes as the date (if later than the date of death) on which the pursuer became aware or could reasonably have become aware of certain material facts. Section 18(2), read as a whole, specifies both the length of the limitation period in an action of damages arising out of death from personal injuries and the date when that time starts to run. The period is a period of three years. Time starts to run either (a) on the date of death of the deceased or (b), if later, the date on which the pursuer became aware or could reasonably have become aware of certain material facts. These are alternate commencement dates for limitation purposes, the date of death or (if later) the date of knowledge. The running of time is not 'suspended' or 'interrupted' in a case where the pursuer did not have the requisite knowledge at the date of death. Rather, the date of knowledge is the stipulated commencement date for limitation purposes. To hold that these provisions 'govern' (to use the language of art 16.3) would be to allow domestic law as to the commencement of the limitation period to supersede that laid down in art 16.2 of the Convention. That is not permissible. On this point, therefore, the court agrees with the Lord Ordinary.

Section 18(3) is also relied on by the pursuer, though, unlike in the case of s 18(2)(b), this provision would only assist the pursuer in her capacity as guardian of her son. It provides that any time during which the relative (ie, in this case, the child) is under a legal disability by reason of nonage (ie legal minority) or unsoundness of mind 'shall be disregarded in the computation of the period specified in subsection (2) above'. The meaning to be attached to s 18(3) is that, while the relative of the deceased is under a legal disability, time which would otherwise run in terms of s 18(2) does not run. It is legitimate in such circumstances to regard the limitation period as 'suspended' or 'interrupted' during that period of legal disability. That is consistent with the interpretation which should be given to the words 'suspension and interruption of limitation periods' as they appear in art 16.3 of the Convention itself. Section 18(3) of the 1973 Act therefore applies to this case. The age of the child is not in dispute. Accordingly, while the claim by the pursuer as an individual in her own right is time-barred, her claim as guardian of her child is not.