This is an application for permission to appeal from a decision of His Honour Judge Simpkiss given on 21 September 2016 sitting in Canterbury County Court. The grounds of appeal raise an issue of interpretation of the Convention Relating to Carriage of Passengers and their Luggage by Sea 1974 (‘the Athens Convention’).

On 14 November 2010 the applicant claimant went on a fishing trip off the coast of Deal, Kent on the fishing boat “Gary Ann” owned by the respondent defendant.

In order to disembark the practice was to winch the boat up onto the shingle beach and then use free-standing steps to descend onto the beach. The steps were not part of the boat, they were a semi-permanent structure on the beach. The claimant’s case at trial was that whilst descending the steps he stood on a wet wooden board at the bottom of the steps and lost his balance. He fell and over-flexed his left knee joint rupturing the quadriceps tendon.

Court proceedings were issued on 25 September 2013. If the Athens Convention applied to the claim then it was time barred as the limitation period for personal injury actions is two years. Whether or not the Athens Convention applied depended upon whether the claimant had disembarked from the fishing boat at the time of the accident. If he had, then the Athens Convention would no longer apply and therefore there would be no time bar.

The judge found that the claimant slipped on a wet wooden board at the bottom of the stairs, that disembarkation had not been completed, that the Athens Convention accordingly applied and that the claimant’s claim was time barred.

On the question of whether there was in fact any negligence the judge decided in the claimant’s favour, subject to a finding of contributory negligence of one third. The total quantum of damages that would have been awarded was £5500 had the claim not been barred.

The sole ground of appeal is that the judge was wrong to have found that the claimant had not disembarked from the boat when the accident occurred.

The arguments advanced in support of this contention are essentially the same as at trial. The claimant says that the concept of disembarkation encompasses all the steps necessary to leave a vessel. The claimant had left the boat once he had stepped onto the platform at the top of the steps, but at the latest when he stepped off the steps onto the wooden board at the bottom.

The claimant accepted that the trip was one to which the Athens Convention applied but disputed whether it applied at the precise point at which the accident occurred.

Article 3 of the Athens Convention provides:

“Carriage” is defined in Article 1.8 of the Athens Convention as covering the following periods:

The key question under the Athens Convention was whether the claimant was in the course of “disembarkation” when the injury occurred. If he was then the claim would be time barred.

Counsel were not be able to find any English authority on the interpretation of this wording. Arguments were made by analogy with the Warsaw/Montreal Conventions which govern carriage of passengers and luggage by air. At paragraph 37 of his judgment the judge justifiably noted that care must be taken in drawing analogies from other instruments which were negotiated at different times for different purposes.

The judge held that disembarkation was not completed until the claimant was established safely on the shingle beach. He rejected the claimant’s submission that it was completed once he was on the platform at the top of the stairs or when he stepped on the board at the bottom of the stairs.

His reasoning was as follows:

In renewing the application for permission to appeal Ms Prager, who appeared for the claimant at trial, relies on the main submission she made at trial, namely that disembarkation was complete when the claimant stepped onto the platform at the top of the steps. In particular, she submits that there is no guidance either in the Convention itself or in the travaux préparatoires to it, nor from the higher courts, as regards the precise time at which disembarkation ceases. The applicant contends for a test of ‘place of safety’ - once the passenger has reached a place of safety, independent of the vessel, it is submitted he or she has completed the process of disembarkation. The applicant had done so in this case. The staircase was fixed to the beach as a permanent structure. Accordingly, it was analogous to a “marine terminal or station” or “quay” or other “post installation” within the meaning of the Convention and these are expressly excluded from its operation.

In my judgment the judge was correct that disembarkation was not completed until the claimant was ashore which in the present case meant being on the shingle beach. As the judge found, the steps, including the board, were part of the disembarkation equipment. As such, disembarkation was not complete until the claimant stepped off that equipment. That did not occur until he reached the shingle beach.

In a case such as the present, the process of disembarkation covers the whole period of moving from the vessel to a safe position on the shore and whilst a person is still using equipment which facilitates disembarkation, such as the steps and board in this case, he is still in the process of disembarking.

The case may be said to be analogous to one where disembarkation is by a gangway provided from the shore side. There too the gangway would be independent of the vessel and it could be said that the disembarking passenger was in a “place of safety” when he stepped onto a platform at the top of the gangway. In my judgment, the gangway would however be regarded as being a part of the disembarking equipment, being the means by which the passenger disembarks from the ship to a shore. In those circumstances, disembarkation would not be completed until he had stepped off the gangway so that the disembarking equipment was no longer being used.

Ms Prager submitted that the gangway was a different case because the steps in this case were semi-permanently fixed to the beach and the boat could move away from them independently. In my judgment this is not a principled distinction.

I agree with the judgment that this interpretation reflects the natural meaning of the word disembarkation. It also makes sense for the carrier to be responsible for overseeing the way in which people leave a vessel. It was the carrier’s decision to use these steps and if they were not safe then some alternative method of disembarkation should have been found.

Whilst I accept the issue raised is potentially of some importance, I am not satisfied that an appeal has a real prospect of success or that there is any other compelling reason for an appeal. Permission to appeal must accordingly be refused.

Given that the application concerns a novel point of law, I consider that the decision should have a neutral citation so that it can be reported in accordance with Practice Direction (Citation of Authorities) [2001] 1 WLR 1001.