The South West Strategic Health Authority v Bay Island Voyages

This appeal raises two recondite but important issues concerning the potential liability of sea carriers to contribute to the liability incurred by third parties for the death of or personal injury to a passenger, or the loss of or damage to his luggage, occurring in the course of carriage performed by the sea carrier. Those issues in turn raise two questions as to the proper construction of certain provisions in an international convention to which the UK has both adhered and given the force of domestic law. The first question is whether the convention, which undoubtedly governs the liability owed by carriers to their passengers, extends also to claims against the carrier for contribution to the liability of others. The second issue relates to the effect of the time bar prescribed by the convention for the bringing of claims.

In 1974 there was concluded at Athens at a conference sponsored by the International Maritime Organisation the Convention Relating to the Carriage of Passengers and their Luggage by Sea, “the Athens Convention.” International ratification proved a slow process. Although enacted into law in the UK by section 14 of the Merchant Shipping Act 1979, which gave the force of law in the UK to the provisions of the Convention set out in Part 1 of Schedule 3 to the Act, that section was not itself brought into force until 1987, by which time the Convention had achieved a relatively modest degree of international acceptance. The Convention was however made applicable in the UK to contracts of carriage made on or after 1 January 1981 by means of an Order in Council, the Carriage of Passengers and their Luggage by Sea (Interim Provisions) Order 1980 (SI 1980 No. 1092).

Although by its terms concerned with international carriage (Article 2.1 and c.f. Article 1.9) the Convention was by the same Order in Council made applicable to domestic carriage, that is to say carriage pursuant to a contract under which the places of departure and destination are within the UK, Channel Islands and Isle of Man and where there is no intermediate port of call outside that area.

On 30th April 1987 section 14 of the Merchant Shipping Act 1979 was brought into force by the Merchant Shipping Act 1979 (Commencement No. 11) Order 1987 (1987 SI No. 635). At the same time, the Convention regime for domestic carriage was preserved by the Carriage of Passengers and their Luggage by Sea (Domestic Carriage) Order 1987 [SI 1987 No. 670], which subject to modifications gave to those provisions of the Convention set out in Schedule 3 to the 1979 Act the force of law in relation to domestic carriage.

Section 14 of the Merchant Shipping Act 1979 was in 1995 repealed and replaced by section 183 of the Merchant Shipping Act 1995. That section gave the force of law to the provisions of the Convention set out in Part 1 of Schedule 6. Domestic carriage is still governed by the 1987 Order.

The present appeal arises out of somewhat atypical circumstances. On 26 August 2008 Dr Kathleen Feest sustained a serious spinal injury whilst a passenger on board a nine metre RIB (Rigid Inflatable Boat) called the Celtic Pioneer. Dr Feest and ten work colleagues were participating in a one hour boat trip in the Bristol Channel as part of what she alleges was a corporate team building exercise. They had boarded the Celtic Pioneer at a quay in Cardiff Bay. The appeal therefore concerns domestic carriage. How the injury occurred is irrelevant for present purposes. It is to be assumed, although this is denied, that it occurred due to the fault or neglect of the carrier or of its servants or agents acting within the scope of their employment.

The Appellant is the South West Strategic Health Authority, “SWSHA”. At the time of the accident Dr Feest was employed by SWSHA, although seconded to the Second Defendant, the UK Foundation Programme Office, “UKFPO”. Dr Feest contends that the injury occurred in the course of her employment. She launched a personal injury claim in the Bristol County Court on 25 August 2011. A defence was filed by SWSHA in June 2012. UKFPO has played no part in the proceedings. At the same time as filing a defence, i.e. on 25 June 2012, SWSHA issued a Part 20 claim against Bay Island Voyages, who were the owners and operators of the Celtic Pioneer, seeking a contribution to any liability to Dr Feest. Contribution is sought pursuant to section 1 of the Civil Liability (Contribution) Act 1978. Bay Island Voyages is the Respondent to this appeal.

Section 1 of the Civil Liability (Contribution) Act 1978 provides:-

“1.

Entitlement to contribution.

(1)

Subject to the following provisions of this section, any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise).

(2)

A person shall be entitled to recover contribution by virtue of subsection (1) above notwithstanding that he has ceased to be liable in respect of the damage in question since the time when the damage occurred, provided that he was so liable immediately before he made or was ordered or agreed to make the payment in respect of which the contribution is sought.

(3)

A person shall be liable to make contribution by virtue of subsection (1) above notwithstanding that he has ceased to be liable in respect of the damage in question since the time when the damage occurred, unless he ceased to be liable by virtue of the expiry of a period of limitation or prescription which extinguished the right on which the claim against him in respect of the damage was based.”

The Part 20 defence filed by Bay Island Voyages in March 2013 asserted, as a preliminary point, that the boat trip was one to which the Athens Convention applied. It was averred that in consequence of Articles 14 and 16 of the Convention the claim for contribution was barred because it had not been brought within two years from the date on which Dr Feest disembarked. Articles 14 and 16 of the Athens Convention provide as follows:-

“ARTICLE 14

Basis of Claims

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 against a carrier or performing carrier otherwise than in accordance with this Convention.

ARTICLE 16

Time-bar for actions

1.

An action for damages arising out of the death of or personal injury to a passenger or for the loss of or damage to luggage shall be time-barred after a period of two years.

The precise manner in which the defence of Bay Island Voyages is relevantly pleaded is as follows. First, it is said that the claim brought by SWSHA for contribution is misconceived because Article 14 of the Convention provides that no action for damages for personal injury to a passenger shall be brought against a carrier otherwise than in accordance with the Convention, and the Part 20 claim for contribution does not rely upon the provisions of the Convention. Secondly, it is said that, as Dr Feest disembarked from the vessel on 26 August 2008 and the Part 20 proceedings were not issued until 25 June 2012, well over two or even three years after the date of disembarkation, the claim to contribution is time barred. Thirdly, it is denied that any injuries sustained by the Claimant Dr Feest were caused or contributed to by any neglect of the carrier, its employees or agents.

The carrier does not in this pleading allege that, by reason of section 1(3) of the Civil Liability (Contribution) Act 1978, it is under no liability to make contribution because, by 25 June 2012, it had ceased to be liable to Dr Feest by virtue of the expiry of a period of limitation or prescription which extinguished the right on which the claim against it in respect of the injury could have been based. This last point is however, to my mind, the critical issue. It gives rise to the second issue on this appeal, does the period of limitation in Article 16 of the Convention bar the remedy or extinguish the right?

The carrier Bay Island Voyages sought summary judgment dismissing the claim. The Witness Statement in support of that application came close to relying on the critical issue, asserting by way of an alternative case that, “as the Part 20 Defendant can only be liable by reference to the Convention and the Convention provides for a two year fixed limitation period, which is non-extendable, and which has expired, the Part 20 claim is statute-barred.”

The application came before District Judge Britton on 19 July 2013. The District Judge appreciated the nature of the critical issue, but he considered that the distinction between extinguishing the right and barring the remedy was one of semantics only. He concluded “that the right of the claimant [Dr Feest] to pursue Bay Island Voyages ceased to be available, was extinguished, at the date when the claim form was originally issued [25 August 2011]. If that is so then, on my analysis of section 1(3) of the 1978 Act, there is no basis upon which that claim can be relied upon by the Part 20 claimant because of that extinguishment.” Accordingly, he struck out the claim to contribution.

An appeal was heard by His Honour Judge Havelock-Allan QC in the Mercantile Court at Bristol. Judge Havelock-Allan considered that the effect of Articles 14 and 16 of the Convention is that a claim to contribution against the carrier such as the present is itself subject to the Article 16 time bar. He considered it a “solecism” to say that a claim for damages and a claim for contribution to a claim for damages are different creatures. The claim to contribution was therefore on any showing time barred, as not having been brought by SWSHA against Bay Island Voyages until nearly four years after disembarkation. The judge did not overtly discuss the separate issue which arises under section 1(3) of the Civil Liability (Contribution) Act 1978, and of course it was unnecessary for him to do so given that he had concluded that the claim for contribution had been brought out of time. He did however proceed to consider the nature of the Article 16 time bar. He concluded that in this context a bar on pursuing a remedy should be interpreted as equivalent to extinction of the right of action. It would follow, although the judge did not say so, that Bay Island Voyages could rely on section 1(3) of the 1978 Contribution Act as relieving it of liability to make contribution. Indeed, the judge said that he dismissed the appeal albeit for reasons different from those of the District Judge, but on this last point he had in effect agreed with him.

I do not agree with the judge that the claim by SWSHA against Bay Island Voyages for contribution is a claim to which the provisions of the Convention are directly applicable. The Convention is a convention “for the unification of certain rules relating to the carriage by sea of passengers and their luggage” – it does not purport to be a complete code governing all liability of sea carriers to whomsoever owed in respect of the carriage of passengers and their luggage. Moreover I respectfully disagree with the judge as to the proper characterisation of the claim to contribution. An action in which a claim to contribution from the carrier is sought in respect of the liability of SWSHA for the personal injury to Dr Feest is not in my view “an action for damages for… personal injury to a passenger… brought against a carrier.” The point is a short one and admits of little elaboration. However reading the Convention as a whole it is to my mind clear that it deals with claims by passengers against carriers, and with nothing else.

Support for this approach can in my view be derived from a number of sources. First, the language of the Convention itself, and in particular Article 4, which provides:-

“ARTICLE 4

Performing carrier

1.

If the performance of the carriage or part thereof has been entrusted to a performing carrier, the carrier shall nevertheless remain liable for the entire carriage according to the provisions of this Convention. In addition, the performing carrier shall be subject and entitled to the provisions of this Convention for the part of the carriage performed by him.

2.

The carrier shall, in relation to the carriage performed by the performing carrier, be liable for the acts and omissions of the performing carrier and of his servants and agents acting within the scope of their employment.

3.

Any special agreement under which the carrier assumes obligations not imposed by this Convention or any waiver of rights conferred by this Convention shall affect the performing carrier only if agreed by him expressly and in writing.

4.

Where and to the extent that both the carrier and the performing carrier are liable, their liability shall be joint and several.

5.

Nothing in this Article shall prejudice any right of recourse as between the carrier and the performing carrier.”

Nowhere else in the Convention are rights of recourse as between the carrier and the performing carrier dealt with. This is unsurprising, as such matters will be governed by the terms of the contractual arrangements concluded between carrier and performing carrier. Furthermore, rights of recourse as between carriers and other parties are simply not mentioned.

This approach to the scope of the Convention reflects that taken by Lord Hope of Craighead, with whom Lords Browne-Wilkinson, Jauncey of Tullichettle, Mustill and Steyn agreed, in Sidhu v British Airways PLC [1997] A.C 430. That case was concerned with the Warsaw Convention 1929, a Convention for the Unification of Certain Rules for International Carriage by Air. The question there was a different one, whether the claimants could bring claims against the carrier at common law, outwith the terms of the Convention. But Lord Hope’s approach is apposite. At page 444 he said this :-

“… The Convention is concerned with certain rules only, not with all rules relating to international carriage by air. It does not purport to provide a code which is comprehensive of all the issues that may arise. It is a partial harmonisation, directed to the particular issues with which it deals.”

A little later in his speech, at page 477, Lord Hope said:-

“In its context the purpose [of article 24 of the Warsaw Convention] seems to me to be to prescribe the circumstances – that is to say, the only circumstances – in which a carrier will be liable in damages to the passenger for claims arising out of his international carriage by air… the purpose is to ensure that, in all questions relating to the carrier’s liability, it is the provisions of the Convention which apply and that the passenger does not have access to any other remedies, whether under the common law or otherwise, which may be available within the particular country where he chooses to raise his action.” (Emphasis supplied.)

Mr Kverndal submitted that this passage does not indicate that Lord Hope regarded the Warsaw Convention as applicable alone to claims by passengers against carriers. He suggested that Lord Hope would have appreciated that it is implicit in section 5(2) of the Carriage by Air Act 1961 that Parliament at any rate regarded that Convention as prima facie applicable to claims for contribution between tortfeasors. Section 5(2) of the Carriage by Air Act 1961, as originally enacted, provides:-

“Article 29 in the First Schedule of this Act shall not be read as applying to any proceedings for contribution between tortfeasors, but no action shall be brought by a tortfeasor to obtain a contribution from a carrier in respect of a tort to which the said Article 29 applies after the expiration of two years from the time when judgment is obtained against the person seeking to obtain the contribution.”

Article 29 of the Warsaw Convention provides:-

“(1)

The right to damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.

(2)

The method of calculating the period of limitation shall be determined by the law of the court seised of the case.”

I respectfully doubt if section 5(2) can be said to reflect a settled Parliamentary view that the Warsaw Convention governs claims to contribution. More likely is it I think that section 5(2) was added out of an abundance of caution after the earlier provision, section 5(1), which provides a time limit for actions against a carrier’s servants or agents, which actions are not themselves within the scope of the Convention. The time limit provided by section 5(1), expressed in language which traditionally would be understood in England as barring the remedy rather than extinguishing the claim, is in contradistinction to that which applies pursuant to Article 29 in claims against carriers. Section 5(2) clarifies that the same remedy-barring time limit as is applicable to claims against a carrier’s servants or agents shall be applicable to claims for contribution between tortfeasors.

In fact there has been controversy whether the Warsaw Convention applies to contribution claims. In a line of cases the District Court and in one case a State Appellate Court in the United States held that Article 29 of the Warsaw Convention applied to recourse actions against carriers – see Magnus Electronics Inc v Royal Bank of Canada 611 F Supp 436 (NDIll, 1985), 19 Avi 17,944; Oriental Fire and General Insurance Co Ltd v Citizens National Bank of Decatur 581 NE 2d 49 (Ill App, 1991); Royal Insurance Co v Emery Freight Corpn 834 F Supp 633 (SD NY, 1993). However in Connaught Laboratories Ltd v Air Canada (1978) 23 OR (2d) 176 (Ont HC) the Ontario High Court concluded that Article 29 had no effect on the claims of carriers between themselves.

The Montreal Convention of 1999 contains, at Article 35, a provision corresponding to Article 29 but additionally, at Article 37, has this:-

“Right of recourse against Third Parties

Nothing in this Convention shall prejudice whether a person liable for damage in accordance with its provisions has a right of recourse against any other person.”

In Chubb Insurance Company of Europe SA v Menlo Worldwide Forwarding Inc, 32 Avi 15, 978 (CD Cal, 2008), followed in Allianz Global Corporate & Speciality v EMO Trans California Inc 34 Avi 15,274 (ND Cal, 2010) the US Court of Appeals for the Ninth Circuit held that the reference in Article 37 to the existence of a right of recourse excluded the applicability of the limitation provisions of Article 35. I take the following account from Shawcross and Beaumont, Air Law, Issue 142, September 2014, at paragraph 446.1:-

“In Chubb Insurance Co of Europe SA v Menloe Worldwide Forwarding Inc, an insurer had sued UPS Supply Chain Solutions Inc, as contracting carrier, in respect of damage to cargo; that claim was settled and sums paid. UPS brought an action for contribution against Qantas, the actual carrier. At first instance it was held that this action was caught by art 35 and time-barred. The Court of Appeals reversed. It held that art 35 extinguished the ‘right to damages’ and arts 17 to 19 of the Convention set out the circumstances in which a carrier is ‘liable for damage’. The Court held that while the original claim by the insurer against UPS asserted such a right, UPS’s third-party action against Qantas did not. It was not an action seeking compensation for damage sustained to the cargo; rather it sought indemnification (and contribution) from the actual carrier in respect of sums already paid to the insurer. The Montreal Convention referred to these local law causes for action for indemnification, contribution, apportionment, or set-off, not as a ‘right to damages’, but as a ‘right of recourse’. If art 35 were construed to extinguish a carrier’s ‘right of recourse’ at the expiration of the two-year period, then the Convention would do precisely what art 37 says it does not: ‘prejudice the question whether a person liable for damage… has a right of recourse against any other person’. To avoid an explicit conflict between arts 35 and 37, the ‘right to damages’ extinguished by art 35 must be understood not to include a carrier’s ‘right of recourse’ against another carrier. The court also referred to the use of ‘right of recourse’ in art 48 and (perhaps less convincingly) to art 45 which, in dealing with the joinder of one carrier by another, adds ‘the procedure and effects being governed by the law of the court seized the case’. The court declined to follow the contrary lower court decisions under the Warsaw Convention but cited the Canadian decision in Connaught Laboratories Ltd v Air Canada with approval.

The New South Wales Court of Appeal reached the same conclusion in United Airlines v Sercel [2012] NSWCA 24, after reviewing the cases referred to above and the comments made in this book.”

It can of course be said that in giving the force of domestic law to the Athens Convention Parliament has made no provision similar to section 5(2) of the Carriage by Air Act 1961, subsequently amended to take account of the Montreal Conventions. It could also be said that Parliament recognised the manifest inapplicability of the Athens Convention by its terms to claims for contribution. It could be said, anticipating the answer to the next issue, that no provision similar to section 5(2) of the 1961 Act was thought necessary as it was recognised that the time bar language of limitation used in the Athens Convention, not being extinctive of the underlying right, does not engage the proviso to section 1(3) of the Civil Liability (Contribution) Act 1978. Speculation as to Parliamentary action or inaction is probably unprofitable. The short point however is that the claim to contribution with which we are here concerned is autonomous and derives from the English domestic statutory entitlement to contribution. It is unsurprising that the claim in itself is unaffected by the provisions of the Athens Convention. On the other hand, the liability of the carrier to contribute is critically dependent upon its own liability to the passenger, which in turn is governed by the provisions of the Convention, including those as to limitation.

I turn then to the second question, the nature of the time bar, as to which I have already foreshadowed my view, in respectful disagreement with the judge, that the language of Article 16 is not such as to extinguish the right on which the claim is based. Looked at through the prism of the English authorities, the language is without doubt the classic language of limitation, by which I mean in this context remedy-barring as opposed to right extinguishing.

Aries Tanker Corporation v Total Transport Limited [1977] 1 WLR 185 was concerned with the question whether a claim by voyage charterers against shipowners for short delivery of cargo carried by sea could be set off against a claim by the shipowners for unpaid freight. The voyage charterparty, the relevant contract of carriage, included the Hague Rules which provide, by Article III rule 6: -

“In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered…”

The claim for unpaid freight was made more than one year after delivery of the goods and in the interim no suit (action or arbitration) had been brought by the charterers in respect of the short delivery. The availability of the set-off depended therefore upon the effect of the Hague Rules time bar. Did it simply bar the remedy, leaving the claim itself in existence, or did it extinguish the claim? At page 188 Lord Wilberforce, with whom the other members of the House of Lords agreed, said this:-

“The contract contemplates the possibility of a cross-claim by the charterers in respect of loss or damage to the cargo and it expressly provides by incorporation of article III, r. 6 of the Hague Rules that the carrier and the ship shall be discharged unless suit is brought within one year after the date of delivery or the date when delivery should have been made. This amounts to a time bar created by contract. But, and I do not think that sufficient recognition to this has been given in the courts below, it is a time bar of a special kind, viz., one which extinguishes the claim (cf. article 29 of the Warsaw Convention 1929) not one which, as most English statutes of limitation (e.g. the Limitation Act 1939, the Maritime Conventions Act 1911), and some international conventions (e.g. the Brussels Convention on Collisions 1910, article 7) do, bars the remedy while leaving the claim itself in existence. Therefore, arguments to which much attention and refined discussion has been given, as to whether the charterer's claim is a defence, or in the nature of a cross-action, or a set-off of one kind or another, however relevant to cases to which the Limitation Act 1939 or similar Acts apply, appear to me, with all respect, to be misplaced. The charterers' claim, after May 1974 and before the date of the writ, had not merely become unenforceable by action, it had simply ceased to exist, and I fail to understand how a claim which has ceased to exist can be introduced for any purpose into legal proceedings, whether by defence or (if this is different) as a means of reducing the respondents' claim, or as a set-off, or in any way whatsoever. It is a claim which, after May 1974, had no existence in law, and could have no relevance in proceedings commenced, as these were, in October 1974. I would add, though this is unnecessary since the provision is clear in its terms, that to provide for the discharge of these claims after 12 months meets an obvious commercial need, namely, to allow shipowners, after that period, to clear their books.”

I have already reproduced Article 29 of the Warsaw Convention above. The language of the Maritime Conventions Act 1911, at section 8 is

“No action shall be maintainable to enforce any claim or lien against a vessel or her owners in respect of any damage or loss to another vessel, her cargo or freight, or any property on board her, or damages for loss of life or personal injuries suffered by any person on board her, caused by the fault of the former vessel, whether such vessel be wholly or partly in fault, or in respect of any salvage services, unless proceedings therein are commenced within two years from the date when the damage or loss or injury was caused or the salvage services were rendered, and an action shall not be maintainable under this Act to enforce any contribution in respect of an overpaid proportion of any damages for loss of life or personal injuries unless proceedings therein are commenced within one year from the date of payment:…”

To similar effect is the language in the Limitation Act 1980, as it now is, prescribing a time limit for actions founded on tort or simple contract, which provides “an action founded on tort/simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.” The Brussels Convention on Collisions 1910 at Article 7 provides:-

“Actions for the recovery of damages are barred after an interval of two years from the date of the casualty.”

In Financial Services Compensation Scheme Limited v Larnell (Insurances) Limited (in liquidation) [2006] QB 808 the Court of Appeal had to consider the effect of section 14B of the Limitation Act 1980 which provides:-

“14B Overriding time limit for negligence actions not involving personal injuries.

(1)

An action for damages for negligence, other than one to which section 11 of this Act applies, shall not be brought after the expiration of fifteen years from the date (or, if more than one, from the last of the dates) on which there occurred any act or omission—

(a)

which is alleged to constitute negligence; and

(b)

to which the damage in respect of which damages are claimed is alleged to be attributable (in whole or in part).

(2)

This section bars the right of action in a case to which subsection (1) above applies notwithstanding that—

(a)

the cause of action has not yet accrued; or

(b)

where section 14A of this Act applies to the action, the date which is for the purposes of that section the starting date for reckoning the period mentioned in subsection (4)(b) of that section has not yet occurred;”

Lloyd LJ said this:-

“43 Mr Tolley submitted that when the period prescribed by this section expires, the person otherwise entitled to the benefit of the cause of action ceases to be entitled to it altogether, so that the section extinguishes the right, rather than merely barring the remedy of court proceedings. He then submits, if that be right, that when the period expired in this case, as it did before the issue of the proceedings, the Claimant lost its right to claim, even though the operation of other limitation periods had been interrupted under the General Rolling Stock principle.

44 In my judgment Mr Tolley’s premise is incorrect. As appears from the text of the section, subsection (1) uses the classic language of limitation: an action shall not be brought after the period has expired. That gives no reason to suppose that the operation of the section is any different in this respect from that of section 2 or section 14A. Subsection (2) uses the different phrase “this section bars the right of action”. Mr Tolley submits that this means that it extinguishes the creditor’s rights altogether. I disagree.

45 The Limitation Act 1980 does expressly provide for the extinction of title in the contexts of chattels and land: section 3(2) dealing with conversion - “the title of that person to the chattel shall be extinguished” – section 17 dealing with claims to recover land – “the title of that person to the land shall be extinguished” – and similar provisions in section 18(2) and (3). There is another such reference in section 11A(3) but that was introduced by the Consumer Protection Act 1987, after the introduction of section 14B, so it is not strictly relevant to the interpretation of section 14B and I therefore ignore it.

46 Mr Tolley submitted that section 14B should be read as extinguishing the right because of the need for finality so as to give proper effect to the ultimate long-stop provision introduced by the Latent Damage Act 1986 as the counterpart for extending the time within which a claim can be brought under section 14A. That could be a legitimate policy behind the pair of provisions, but it seems to me that all depends on the language of the section. Nothing in section 14B(1), which is the operative provision, suggests that the effect of the section is to be any different from that of other limitation provisions in the same field (i.e. not dealing with questions of title to assets) such as section 2 or section 14A. Mr Tolley therefore has to show that subsection (2), which, though certainly necessary, is explanatory, demonstrates that subsection (1) is intended to have a different effect from that which would normally follow from its own terms. He says this is the effect of the words “bars the right of action”. Although it was not necessary to his decision Mr Justice David Steel said that he would have accepted this submission: see paragraph 26 of his judgment.

47 I respectfully disagree. It seems to me that words far more specific than these would be necessary in order to show that a section which provides that “an action … shall not be brought” means that the cause of action is extinguished. It is true that in section 14B it is necessary to cover also the case where the cause of action has not yet accrued, so that to speak of it being extinguished would be odd (though I note that this is what section 11A(3) does). Additional words would be needed, such as to say that the right of action shall be extinguished or, as the case may be, shall not arise. The natural reading of the words used in subsection (2) is that they do no more than summarise the effect of subsection (1). In that, it seems to me, the words used are perfectly appropriate to refer to a provision which precludes an action being brought, but does no more. They mean the same as if subsection (2) had said “this section prevents an action being brought …”

48 Mr Tolley showed us passages from McGee on Limitation Periods, 4^th edition (2002) in which the view is expressed that the section should be read as extinguishing the cause of action, particularly by reference to its impact on contribution claims, by reference to section 1(3) of the Civil Liability (Contribution) Act 1978. With all respect to the learned author, I am not persuaded by his arguments. It seems to me that the words of the section show the way to the correct reading, starting from the proposition that the expiry of a period of limitation does not normally extinguish rights, that where it does (in cases of title) there is a particular reason for it, and the Act says so expressly, that it does not say so in the present case, and there is not the same reason for it to do so, that the language of subsection (1) does not point to any different operation of this limitation period from those under sections 2 or 14A, and that the language of subsection (2) is consistent with this and does not call for a different reading.”

Moore-Bick LJ delivered a judgment to similar effect, including:-

“66 Mr. Tolley submitted that, unlike section 14A, section 14B of the Limitation Act 1980 is substantive rather than procedural in nature. In other words, it does not merely bar the right to bring an action; it operates so as to discharge or extinguish the legal rights which the action would be brought to enforce.

67 In my view that is not the natural meaning of the words used in the section. In common with sections 2 (tort), 5 (simple contract), 7 (awards) and 8 (specialties), to mention but a few, as well as section 14A, the operative words of subsection (1) are "An action for damages for negligence . . . . . . shall not be brought after the expiration of . . . .". In a system in which the distinction between the right to bring proceedings and the substantive legal rights underlying those proceedings is well recognised the natural and ordinary meaning of such words is to prevent the bringing of an action, not to extinguish the rights on which any such action is based. It is accepted that all the other sections of the Act in which similar language is used are procedural in nature and one would therefore expect the same to be true of section 14B(1). Moreover, one can see from other sections, notably sections 3 (title to chattels), 11A (defective products), 17 (title to land) and 18 (equitable interests in land) that where Parliament wished to extinguish substantive rights it did so expressly.

…

69 It is said that the words "bars the right of action" indicate an intention to bar the legal rights in question rather than merely the right to bring proceedings, especially in the light of the fact that the section is to have effect even though the cause of action has not yet accrued. In my view however, this places more weight on the language of the subsection than it will bear. When one reads the section as a whole I think it is clear that subsection (2) is intended to complement subsection (1) which itself contains the principle which the section as a whole enacts. If that is correct, one would not expect subsection (2) to be significantly different in its effect from subsection (1). Once one moves from the language of prohibition ("an action shall not be brought") to the language of positive effect a different form of words becomes inevitable. In my view that accounts for the use of the expression "bars the right of action". In any event, it is one which in my view is entirely apposite to describe the effect of a procedural time bar since its effect is to remove or "bar" the right to bring an action. The fact that it is expressed to have that effect notwithstanding that the cause of action has not yet accrued is perhaps anomalous, but is explicable on the grounds that it is intended to make it clear that a right that would otherwise arise, if at all, only at a later date is intended to be affected. I can see nothing in the language of subsection (2), therefore, to indicate that it is intended to extinguish substantive legal rights.”

In the light of this learning, the argument that Article 16 should be regarded as extinctive of the claim, or of the right on which the claim is based, is forlorn unless the Article is to be given a meaning other than its natural meaning in English law and, I would add, in the English language. Article 16(1) spells out in terms that it is the action which is barred, not the claim. The language of Article 16(3) is materially indistinguishable from that regarded by the English court as classically remedy-barring rather than extinctive of rights. I therefore reject the argument that Article 16(3) should be regarded as extinctive in nature even if Article 16(1) is not. Like the second sub-section of section 14B of the Limitation Act 1980, it is complementary to Article 16(1).

However I entirely agree with the judge that it is appropriate to approach the effect of Article 16 having regard to the fact that this is the language of an international convention rather than a domestic statute. I also entirely agree with him that the convention must bear the same meaning whether its application is to international or to domestic carriage.

The Carriage of Goods by Sea Act 1924 gave effect to the Hague Rules in relation to and in connection with the carriage of goods by sea in ships carrying goods from any port in Great Britain or Northern Ireland to any port whether in or outside Great Britain or Northern Ireland. In Stag Line Ltd v Foscolo, Mango and Co. Ltd [1932] AC 328 the House of Lords was concerned with the meaning of the phrase “reasonable deviation” in Article IV Rule 4 of the Hague Rules as thus enacted. At page 350 Lord Macmillan said:-

“It is important to remember that the Act of 1924 was the outcome of an International Conference and that the rules in the Schedule [the Hague Rules] have an international currency. As these rules must come under the consideration of foreign courts it is desirable in the interests of uniformity that their interpretation should not be rigidly controlled by domestic precedents of antecedent date, but rather that the language of the rules should be construed on broad principles of general acceptation.”

To similar effect in more recent times Lord Wilberforce observed, in James Buchanan & Co Ltd v Babco Forwarding & Shipping (U.K) Ltd, [1978] A.C. 141, when considering the proper approach to the construction of the 1956 Convention on the Contract for the International Carriage of Goods by Road, as given the force of law by section 1 of the Carriage of Goods by Road Act 1965, at 152 E:-

“I think that the correct approach is to interpret the English text, which after all is likely to be used by many others than British businessmen, in a normal manner, appropriate for the interpretation of an international convention, unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation: Stag Line Ltd v Foscolo, Mango and Co. Ltd [1932] AC 328, per Lord Macmillan, at page 350. Moreover, it is perfectly legitimate in my opinion to look for assistance, if assistance is needed, to the French text.”

I will revert in a moment to the French text of the Athens Convention, which was executed in two texts, English and French, expressed to be of equal force.

There is finally some salutary guidance from Lord Hobhouse in Morris v KLM Royal Dutch Airlines [2002] 2 AC 628. There the House of Lords had to consider whether “bodily injury” in Article 29 of the Warsaw Convention includes the development of a psychiatric condition. At paragraph 147, page 677, Lord Hobhouse said this:-

“147.

It follows from this that considerations of national or local law should not be allowed to intrude upon, let alone govern, any question of construction that may arise on the provisions for division of risk. As Lord Hope of Craighead said in Sidhu v British Airways Plc [1997] AC 430 at 453, "The code is intended to be uniform and to be exclusive also of any resort to the rules of domestic law." It is not right to attempt to construe the words of the Convention by reference to the rules of any domestic law, English, American, German or even French. We know that those rules were and are not all identical. The purpose of uniformity means that it is the duty of the national court to put to one side its views about its own law and other countries' laws. Quite apart from defeating uniformity, such a course can only lead to the complication of simple issues, the inadequately informed investigation of other legal systems and, most importantly, to uncertainty. In few areas can this be more deleterious than in relation to the historical treatment by various legal systems, including our own, of the topic of so called 'nervous shock'. Nor can it be acceptable, as was urged upon your Lordships by the carriers, to seek to find the 'lowest common denominator' of the delegates' national laws in 1929 and adopt that. Whilst it is important to have regard to the international consensus upon the understanding of the provisions of international conventions and hence to what the courts in other jurisdictions have had to say about the provision in question, the relevant point for decision always remains: what do the actual words used mean? (Stag Line Ltd v Foscolo, Mango & Co Ltd [1932] AC 328, the Hague Rules; James Buchanan & Co Ltd v Babco Forwarding & Shipping (UK) Ltd [1978] AC 141, CMR, Fothergill v Monarch Airlines Ltd [1981] AC 251, Amended Warsaw; Sidhu v BA, sup, Warsaw.)”

The difficulty in the present case is that there is no international consensus upon the understanding of the relevant provision, and in particular no international consensus upon the meaning and effect of similar language when used in the various domestic legal systems. It is also worth noting that accession to the Athens Convention is patchy. Thus, as recorded by the judge, as at 1 January 2014 the following states had acceded to the 1974 Convention and/or one of the Protocols: Albania, Argentina, Bahamas, Barbados, Belgium, Belize, Bulgaria, China, Croatia, Denmark, Dominica, Egypt, Equatorial Guinea, Estonia, Georgia, Greece, Guyana, Ireland, Jordan, Latvia, Liberia, Libya, Luxembourg, Malawi, Malta, Marshall Islands, Netherlands, Nigeria, Norway, Palau, Poland, Russian Federation, St Kitts and Nevis, Serbia, Spain, Switzerland, Syria, Tonga, Ukraine, UK and dependencies, Vanuatu, Yemen, Hong Kong and Macao. In addition the following states have enacted the 1974 Convention by domestic legislation although they have not acceded to the Convention itself: Canada, Finland and Germany. The Canadian federal statute implementing the Convention is the Marine Liability Act 2001. Of the world’s major maritime nations, one may note the absence of the USA, France, Italy and Australia.

The judge regarded as significant an observation of the Law Commission in its Report on the Classification of Limitation in Private International Law, Law Com 114 Cmnd. 8570, published in June 1982. This was a Law Commission of exceptionally powerful and distinguished composition, including a noted private international lawyer, Dr Peter North, as he then was. At paragraph 3.3 the Commission observed:-

“Civil law jurisdictions generally treat statutes of limitation as matters of substance for the purpose of private international law. Accordingly, they determine questions of limitation in cases having a foreign element by reference to the same law as that which governs all the other substantive issues of the claim (the lex causae). It is instructive that one of the reasons for this contrast with the English rule is that civil law jurisdictions do not adopt a rigid distinction between right and remedy as the criterion for distinguishing between substance and procedure in private international law.”

It was this report which led to the enactment of the Foreign Limitation Periods Act 1984, which the judge also regarded as of great significance as marking an important step in the “retreat of English law from the assumption that limitation periods are procedural and not of substantive effect.”

With respect to the judge I do not think that these developments ultimately assist in the resolution of the question at issue. The Law Commission Report was, as its title suggests, concerned with the classification of the issue of limitation when it arose in a private international law context. The Commission concluded that the then current rule should be changed and replaced with a rule that statutes of limitation should be classified as substantive (Footnote: ¹) in this country for choice of law purposes – see paragraph 1.3 of the Report. None of this however casts much light on the resolution of the question whether a time bar provision should be construed as barring the remedy or extinguishing the right, an enquiry made relevant here by the wording of an exclusively domestic statute, the 1978 Contribution Act. This question in turn depends upon the meaning of the language used, not upon any assumption as to what it is likely to mean, or how it might be understood elsewhere. Four further paragraphs from the Commission’s Report illuminate the problem:-

“2.2

English law acknowledges two ways in which a plaintiff’s right

to bring an action may be limited by the running of time: prescription, by virtue of which the plaintiff’s title is extinguished when the relevant period expires, and limitation10 whereby lapse of time renders the plaintiff’s right unenforceable by action but leaves the right itself intact.’11 For the purposes of private international law, our courts have classified rules falling into the former category (i.e. prescription) as matters of substance and those falling into the latter category (i.e. limitation) as matters of procedure.

2.3

In a case involving a foreign element the courts in this country will be required to classify both our domestic statute of limitation and the corresponding provision of the lex causae in order to determine the applicable period of limitation. As far as English statutes of limitation are concerned, subject to the exceptions mentioned below, the courts have generally accorded them a procedural classification with the result that, in accordance with the principle outlined in paragraph 2.1 above, they are considered to be applicable even to a case governed by a foreign substantive law. At the same time their approach towards a foreign statute of limitation has usually been to ignore any classification made by the court of the relevant foreign country. Instead our courts have applied to a relevant foreign statute the English test of whether the plaintiffs right is extinguished or whether his remedy is merely barred. This has led generally to a foreign statute of limitation being regarded by our courts as procedural and thus inapplicable to a case otherwise governed by foreign law. However, there may well be some exceptions to this, although there is no direct authority on the point. The cases where it is thought that our law would regard a statute of limitation as substantive, with the result that the lex causae would supply the appropriate limitation period, are those where a statute prescribes that ownership should be acquired by adverse possession, expressly extinguishes the former owner’s title, or creates a new right and at the same time specifies that such right shall continue only for a limited period.

2.4

To summarise: the present approach of our courts in general to the classification of statutes of limitation, which we shall refer to as “the English rule”, is that statutes of limitation are regarded as procedural and are, accordingly, governed by English law as the lex fori, irrespective of any classification accorded by a foreign court to its own statute of limitation.

…

3.5

Dissatisfaction with the English rule is to be found in other common law jurisdictions, where more radical changes in the rule have been either adopted or advocated. It should, however, be pointed out that these new approaches have generally resulted from an overall review of the limitations law of the jurisdiction in question, which has in turn entailed the adoption of a general system of prescription. Because the adoption of a prescriptive regime has not been accompanied by any specific alteration in the traditional rules of classification (which distinguish between substance and procedure by reference to right and remedy) the change to prescription has, in private international law terms, led in effect to the reclassification in these countries of their domestic statutes of limitation as substantive on the basis that they now bar the plaintiff’s right and not merely his remedy. As matters of substance they will consequently only apply where the law of which they form a part is also the lex causae. This has not been the approach adopted to reform of the substantive law of limitation in this country. The Law Reform Committee rejected the idea that our law should be changed from one of limitation of actions to one of prescription and, as may be seen from the Limitation Act 1980, the traditional approach has been retained. We shall now consider the main areas of development in other common law jurisdictions.

10 For the purposes of the paragraphs that follow we have referred, to time bars generally in terms of limitation rather than of prescription. Where, however, the context calls for a particular distinction to be drawn between prescription and limitation (as defined above) we have said so.

11 The effect of most English time bars is merely to deny the plaintiff a right of action after a certain period has elapsed i.e. limitation. Exceptionally, however, in actions involving conversion of goods or title to land, the effect of the expiry of the relevant period of time is actually to extinguish the plaintiff’s title: Limitation Act 1980, ss. 3 and 17.”

With respect to the judge, the trend, if there is one, in other common law jurisdictions, is not to regard a bar on an action as equivalent to an extinction of the claim, see judgment paragraph 28 and paragraph 31, but rather towards the adoption of a general system of prescription, in the sense (Footnote: ²) used in the passages above. That provides no justification for attributing to remedy barring language claim extinctive effect – if anything it militates against it.

Whilst civil law jurisdictions generally treat statutes of limitation as matters of substance for the purpose of private international law, it by no means follows that they regard time bar clauses in language similar to Article 16 as “extinguishing the right on which the claim… is based.”

In fact it is clear that the distinction recognised in English law between remedy barring and right extinguishing is equally well known in many other jurisdictions, including civil law jurisdictions. As noted in Higham v Stena Sealink Ltd [1996] 1 WLR 1107, at page 1110, in the early 1990s The Comité Maritime International commissioned Professor Francesco Berlingieri, the leading maritime lawyer who was formerly Professor of Maritime Law at the University of Genoa, and who is Honorary President of the C.M.I., to compile a book on comparative international maritime time-bars, including that in the Athens Convention. He submitted a questionnaire to all relevant countries, and the result is contained in Time-Barred Actions, 2^nd ed. (1993), published by Lloyd’s of London. This illustrates in great detail the very wide variety of different codes of limitation throughout the world.

Higham itself decides that Article 16.3 has no application in English proceedings. The Limitation Act 1980 section 33 allows for disapplication of time limits, but it does not allow for their suspension and interruption.

However the first question of Professor Berlingieri’s questionnaire concerned “the legal nature of the time bar period” and invited respondees to “state whether the lapse of the period affects the substantive right or the action.”

Chapter one of the work is devoted to the “Legal Nature of the Time-Bar Period” and demonstrates that the English distinction is widely recognised in both common law and civilian jurisdictions. Thus remedy barring time bars which leave the underlying obligation unaffected and capable of vindication in certain circumstances (for example by way of set-off, or to justify the exercise of a possessory lien, or as an answer to a claim for unjust enrichment where a time-barred obligation has been performed) are recognised in Argentina, some states in Australia, Canada, Croatia, Germany, Greece, Ireland, Israel, Korea, Malta, The Netherlands, Portugal, Sweden, Switzerland, Turkey and the US.

Professor Berlingieri records at page 2 that in France “the legal nature of the prescription is still debated by legal writers. The prevailing opinion, however, is that the prescription extinguishes the action, not the right.” That debate is described in greater detail in the context of Article 29 of the Warsaw Convention and Article 35 of the Montreal Convention by Professors Giemulla and Schmid in their work on the Montreal Convention, 2011. In the discussion of Article 35 there appears the following:-

“28.

As with Article 29 WC it will be controversial in the various legal circles whether Article 35 MC contains an exclusion (forfeiture) period, or a limitation period. In the case of forfeiture (‘condition precedent’/’délais préfix’) the expiry of the period will cause the right to lapse, and the defendant does not need to enter a plea in order to assert the lapse of that right; the judge is officially bound to check the occurrence of the forfeiture. The claimant can avoid this loss of his rights by commencing the claim. The parties cannot waive the occurrence of the forfeiture; if the period counts as an exclusion or forfeiture period, then an interruption or cessation is not possible. In the case of a statute of limitations (‘délai de prescription’) the claim persists, even after the time limit has expired. After that point in time it is merely no longer possible to claim for it in law (however, the possibility of set-off still exists). Where the claimant asserts a claim that is time barred, it is necessary for the debtor to raise a plea of the claim being time barred in order to prevent the granting of such a time barred claim. The judge is not duty bound to check whether the claim is time barred. Consequently the parties can waive a plea on the basis of a claim being time barred, and they can extend the statute of limitations. The timing of the claim becoming statute barred can also be tolled by certain events or circumstance, or the statute of limitations can be suspended.

29.

The English wording of Article 35 MC is clear: ‘… The right to damages shall be extinguished.’ Similarly, the wording of the French text ‘sous pain de déchéance’ is unequivocal, as is the German translation (‘Ausschlussfrist’): the injured party loses their claim against the air carrier, if they do not comply with the limitation period of Article 35 MC. The legal situation under the Montreal Convention has thus remained the same as under the Warsaw Convention.

30.

In most countries the view is predominant that Article 29 WC refers to an exclusion period, or, as the case may be, to a condition precedent.

31.

In academia the view that Article 29 WC refers to an exclusion period is also predominant.

32.

Despite the clear wording of Article 29 WC there was a controversy in France for years whether the limitation period of Article 29 could be extended pursuant to national provisions (‘délai de prescription’) or not (‘délai préfixe’). The Cour de Cassation held in a row of judgments that the period for commencing a claim of Article 29 was a (‘délai de prescription’); consequently it is still possible to lodge claims after the expiry of the two-year period, thus, for example, in cases in which the injured party was still below the age of majority at the expiry of the limitation period. Despite this practice from the highest courts, the courts of lower instances in part tenaciously stuck to their interpretation, that Article 29 was an exclusion period (‘délai préfix’). However, since the eighties, the lower courts in France also follow the practice of the Cour de Cassation.”

It is also to be noted that in the French text of the Athens Convention, which has not of course been ratified by France, the heading to Article 16 corresponding with the English text “Time-bar for actions” is “délai de prescription pour les actions en responsabilité” which as Professors Giemulla and Schmid note is indicative of remedy-barring not right extinction. The French text of Article 16 reads, in part:-

“1.

Toute action en réparation du préjudice résultant de la mort ou de lésions corporelles d'un passager, ou de perte ou de dommages survenus aux bagages, est soumise à une prescription de deux ans.

Equally instructive is the manner in which the Athens Convention has been incorporated into German domestic law. As explained by Professor Berlingieri at page two of his work:-

“In German law there is a clear distinction between Verjährungsfrist (prescription period) and Ausschlussfrist (extinction period). Verjährungsfrist constitutes an Einrede (defence)-that is a right to refuse performance without affecting the substantive right. The substantive right remains as causa for any later performance of the debtor irrespective of Verjährung so that the creditor would not obtain an unjust enrichment. Ausschlussfrist constitutes an Einwendung (objection)-that is the right to refuse performance for the reason that the substantive right is extinguished. If the debtor performs after the extinction of the right he performs without causa and becomes entitled to claim restitution. In court proceedings an Einrede is only to be considered if the debtor makes an explicit plea while an Einwendung is considered ex officio. Whether the time bar is a Verjährungsfrist or an Ausschlussfrist depends on the relevant statutory provision. In particular, in maritime cases the special rules of the relevant conventions are applicable.”

At page 102, in that section of his work dealing specifically with the Athens Convention, Professor Berlingieri records that “in Germany the prescription period is two years, as provided by the 1974 Athens Convention.” This is achieved by section 606 of the Handelsgesetzbuch, the Commercial Code, which is to be found in Book 5, Maritime Trade, Chapter 2, which deals specifically with contracts for the carriage of passengers and their luggage. Section 606 is headed “Zweijährige verjährungsfrist” which in the official translation reads “Two-year statutory limitation period.” The section continues “Folgende Ansprüche Verjähren in Zwei Jahren” which in the official translation reads “the following claims shall become time-barred after two years,” proceeding thereafter at sub-paragraph 1 to identify those claims as “claims to compensation of damages for death or personal injury to a passenger, or for the loss of, physical damage to, or delayed re-delivery of luggage, insofar as such claims are subject to the regulations set out in this Book.” This is very clearly the language of remedy barring, not claims extinction, which in German law is achieved by “Ausschlussfrist.”

It follows I suggest that there is no corpus of international understanding pursuant to which the language of Article 16 should be regarded as extinguishing the right of action. That is not the natural meaning of the words whether in the English text or in the French text. The ultimate question is, as Lord Hobhouse observed, what do the actual words mean? That is a question which is prompted by an exclusively domestic enquiry, having nothing to do with problems thrown up by the conflict of laws, is the statutory right to contribution excluded by reason of section 1(3) of the 1978 Act? I can see no justification for departing from the natural meaning of the words in Article 16 as confirmed by decisions of high authority.

The Law Commission in its Working Paper No. 75 of 1980 on Classification of Limitation in Private International Law, which preceded the Report to which I have referred above, pointed out, at paragraph 80, that “where a foreign rule as to limitation is applied by the English courts it should be given the same effect as to barring the remedy or extinguishing the obligation as it has in that law. That being so there should be no problem in applying a foreign limitation provision in the context of section 1(3) of the Civil Liability (Contribution) Act 1978.” There is therefore nothing inherently surprising about a provision of domestic law being given in this domestic context the meaning which it would ordinarily bear when looked at through English eyes. The short point however is that whilst the words used in Article 16 have an international or Convention provenance, they are not demonstrated to have an autonomous and internationally understood meaning which is different in effect from that which they naturally bear in the English language and as understood in English law.

I would allow the appeal.

I agree.

I also agree.