Lawrence v NCL (Bahamas) Ltd (t/a Norwegian Cruise Line)

On 17^th February 2015, the Claimant issued a claim form seeking damages from the Defendant. The Defendant filed a defence on 5^th May 2015. This case involved issues arising under the Athens Convention which is incorporated into English Law by the Merchant Shipping Act 1995. These issues related to the operation of tender boats carrying passengers to and from cruise ships, the responsibilities of the carrying cruise ship when the tenders used were not part of

Injuries occurring onboard ships are Admiralty claims which must be commenced in the Admiralty Court by reason of the provisions contained in sections 20(1) and 20(2)(f) and CPR Parts 61.1(2)(a) and 61.2(1)(a)(v). However cases which do not involve matters of maritime interest or expertise, such as cases involving injuries which might otherwise have occurred ashore including injuries arising from slipping, falling or food poisoning, may and usually are transferred to the

In the present case, although the overall level of damages was moderate (and became more modest as the opinion of experts was obtained and assessed) the Defendant has continued to deny liability for what is essentially a maritime incident and therefore the claim was retained in the Admiralty Court and was allocated for trial before myself as Admiralty Registrar.

The Claimant was a passenger on board the cruise liner “NORWEGIAN JADE” (the “Ship”). He was accompanied by his wife on the relevant cruise. From the literature contained in the agreed bundle it appears that the Ship was 93,558 tons gross, with a length of 294 metres and a beam of 32 metres. Her guest carrying capacity appears to have been 2,388 and she was manned by a crew of 1,067. She is described as flagged in the Bahamas. She is one of the fleet of 12 ships apparently operated by an organisation trading as NCL or Norwegian Cruise Line (“NCL”). From the NCL brochure contained in the agreed bundle it appears that all but one of the fleet are registered in the Bahamas (the exception being the

“PRIDE OF AMERICA” which sails under the flag of the United States of America).

The precise ownership of the Ship was not considered or in issue at the trial. However the brochure provided gives the impression that the fleet is intended to provide the type of shipboard experience which might be associated with a well known and respected maritime nation. The Defendant is named as a Bahamian company and, although it was clear that part of the operation was run from offices in Southampton and Hammersmith, is, for present purposes, to be treated as the owner or the managing operator of the ship. As such it was either the actual owner or, if it was acting as operating manager then it was the agent of the shipowner for the purposes of contracting to carry persons onboard the ship. I should make it clear that no issues as to the identity or operating capacity of the Defendant itself arose at the trial other than those related to the Athens Convention described below.

The Claimant booked his holiday through Flights and Packages Limited (“Flights and Packages”) which included return flights to Venice, hotel accommodation for 3 nights in Venice and a Greek Isles cruise on the Ship, starting and finishing in Venice and taking in three Greek Islands and one port on the Peloponnesian peninsular (Katakolon which is the nearest port in the vicinity of the ancient archaeological site at Olympia). The booking was confirmed by an email sent on the on 15^th April 2013,

In the Claim Form and its attached Particulars of Claim it is alleged that:

In its Defence NCL contends that:

The areas of factual dispute are narrow and most of the factual issues were common ground so that they can be set down in a single narrative. I will however seek to make clear where there is an aspect which is in dispute between the parties.

Each party relied on medical evidence in the field of orthopaedics. The Claimant relied upon Mr. Vikas Vedi and the Defendant upon Mr. Michael Hook. In his report Mr. Vedi took the view that the Claimant has sustained a tear to the rotator cuff of the left shoulder and, as a result the Claimant was suffering from ongoing pain, discomfort and a limited function of the shoulder. His initial view was that this stemmed solely from the incident. However following discussion with Mr. Hook he accepted that there was a pre-existing degenerative condition the symptoms of which were accelerated by a period of about 1 year. Their evidence was provided on the first day of the trial. Mr. Vedi had modified his original view after sight of the evidence following a scan of the Claimant’s shoulder which demonstrated pre-existing degenerative changes in the area of the Claimant’s spine. He was an impressive witness who was readily prepared to modify his views in the light of further available evidence. He was not dogmatic and was clearly aware of his duty to assist the court.

Mr. Hook was likewise an impressive witness who was also prepared to modify his views in the light of further available evidence, was not dogmatic and was aware of his duty to assist the court. He had put forward three possible explanations for the Claimant’s symptoms. The first was that the accident accelerated the onset of the symptoms from a pre-existing degenerative changes by a period of about one year. The second was that the Claimant’s symptons in the shoulder had been caused by a pre-existing pathology to the cervical spine. The third was that the Claimant’s symptoms to the shoulder had been wholly caused by degenerative changes to the left shoulder. In evidence Mr. Hook stated that the second and third options could not be considered to be related to the incident. He also considered that the third option was less likely than the second and that he felt that the symptoms more probably indicated a problem with the neck and shoulder. His view as to the probability of the first approach being an appropriate consideration depended upon the extent to which the Claimant had complained of symptoms at a time which was proximate to the incident. The apparent lack of complaint about pain in his shoulder by the Claimant immediately after the incident had influenced his initial view that the first option was probably not an appropriate consideration. However he accepted that there had been no complaint of pain prior to the accident and that if there was credible evidence of the Claimant having complained of symptoms in his shoulder within a period of about 48 hours of the incident then the fall was a factor to be considered. In those circumstances he opined that an injury to the shoulder at the time of the fall could and probably had exacerbated a pre-existing condition. He considered that this acceleration of the symptoms becoming apparent would have been by about 12-18 months but said that there could be no certainty of the exact period by which it was accelerated.

It appeared that the medical experts were in broad agreement that the Claimant was suffering from a degenerative condition in the cervical spine and/or the area of his shoulder and that would have given rise to symptoms within a period of about 12-18 months of the date of the incident regardless of whether the Claimant had suffered the fall or not. There was an initial difference between them as to whether the fall had been a causative feature accelerating the condition but I think that there was broad agreement that a conclusion on this aspect depended upon whether there was credible evidence that the Claimant had complained of relevant symptoms, such as pain in the shoulder area, at or within a reasonable time of the incident occurring. From the foregoing it is apparent that there is an outstanding issue as to whether there is cogent evidence of complaint by the Claimant at the time of the incident or within a relatively short period thereafter.

The disputed issues between the parties were in essence as follows:

The following provisions of the Athens Convention are relevant:

The Defendant submitted that the documents available did not establish a contractual relationship between the Claimant and the Defendant but that it was open to the Court to conclude that the carrier was actually Flights and

The question is whether the period when the Claimant was onboard the tender is “carriage” included under Art.1.8 of the Convention. It is clear that carriage includes periods whilst the passenger is in the course of disembarkation and the period whilst the passenger is being transported from the ship to the land or vice versa. The Defendant submitted that where this is being done by means of water transport then it is only included as a period of carriage if the passenger and his cabin luggage are the subject of such transportation. In my view such a literal construction of the Article would be contrary to a purposive construction of the Convention as it would mean that only disembarkation at the beginning and end of the voyage would be included. Further, and in any event, 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 in the process of being transported with all his cabin luggage and if a literal approach is to be applied it would be enough that when the passenger was in the course of transportation he had some or any of his possessions with him. It is difficult to envisage any situation in which a passenger might wish to go ashore during the course of a cruise without taking any of his possessions with him.

It was also submitted that the article did not apply because NCL did not provide the services of the tender for the purposes of allowing passengers to disembark at Santorini. I cannot accept that contention. Both the Claimant and his wife denied that a specific fare was required or paid for their use of the tender and Ms. Mulligan confirmed that the Claimant did not, himself, pay for passage on the tender but that it was included in the overall price of the cruise. This begs the question as to how the Union was being paid. There was no evidence that the Union were providing their services voluntarily and it seems inherently unlikely that this would be the case. In my view there is a very strong inference that either NCL paid the Union directly for its tender services or the Union was paid by a third party such as the port authority. If NCL did not pay the Union directly then it is probable that the tender’s services were provided as part of the port services which would have been covered by the port dues payable by the Ship’s owners. It follows, on a balance of probabilities, that either the services of the tender at Santorini were organised and paid for directly by the NCL or it was supplied as part of the port facilities provided to the Ship. In either event I conclude that the tender was a vessel which was put at the disposal of the disembarking passengers by the carrier, namely NCL.

It follows that the tender passage was provided by the NCL as part of its overall contractual obligation and took place during a period of carriage included in Art.1.8(a) of the Convention, therefore NCL was responsible for the period whilst the Claimant was in the course of disembarking from the Ship and was being transported from the Ship to land on a tender the costs of which was included in the fare or was put at the disposal of the Claimant by the carrier.

In any event even if the injury did not occur during a period defined in Art.1.8 it did occur during a period when the carriage was entrusted to a performing carrier, namely the owners of the tender and during that time the carrier remains liable for the for any acts of omissions of the performing carrier by virtue of Art. 4.1. It is to be noted that if both the carrier and the performing carrier are liable for any loss that liability is joint and several (see Art.4.4).

To establish liability the Claimant needed to show that his injury was caused by either the carrier or by performing carrier for whose acts the carrier is liable. I do not think that the Defendant seriously challenged the assertion that the Claimant tripped over the sill referred to and thereby was injured to some extent. On the balance of the evidence I consider that it corroborates the Claimant’s case that he did complain about an injury to his shoulder at the material time and I conclude that the acceleration of his pre-existing degenerative condition was caused by the fall which he suffered. However the

On the issue of the Claimant’s truthfulness Mr. McGrath, counsel for the Defendant, questioned the Claimant as to his entitlement to call himself a knight as the claim was brought by the Claimant in the name of “Sir” Arthur Lawrence. Mr. Mcgrath asked the Claimant whether he was a knight. The Claimant responded that he was not a knight but a baronet. He subsequently informed the court that he did not know the date of the creation of his baronetcy but that it was associated with a piece of land in the channel islands which had been gifted to him by a person or persons whose identity he refused to disclose. As his demeanour on this subject was defensive and the explanation did not appear to be satisfactory, at the end of the hearing, the court invited the Claimant to produce any list or other documents which would support his claim to be a baronet. An order was made to allow him to do so.

Whether or not a person is entitled to refer to himself as a baronet can be ascertained from the Official Roll of the Baronetage (“the Official Roll”) maintained by the Lord Chancellor in accordance with the Royal Warrant of the 8th February 1910 and a Transfer of Functions Order of 2001. This is a public document which is now kept in the Ministry of Justice and is maintained by the Standing Council of the Baronetage with the authority of the Lord Chancellor. A Royal Warrant of King Edward VII, dated 8th February 1910, directed that no person whose name is not entered on the Official Roll of Baronets (“the Official Roll”) shall be received as a Baronet, or shall be addressed or mentioned by that title in any civil or military Commission, Letters Patent or other official document. The up to date Official Roll may be inspected on the relevant web site which includes the fact of and reason behind the Royal Warrant. In my view the Official Roll may be relied upon for the purposes of the 1910 Royal Warrant, to determine if an individual should be officially accorded the title and precedence of a baronet. I have considered the Official Roll so provided and it does not include an Arthur Lawrence.

The Claimant’s solicitors provided what they described as “a bundle of documents provided by the Claimant in evidence of his baronetcy”. These included a statement by the Claimant. Among the documents provide was one headed “Manor titles” which stated that it was a “Certificate of Title” and purported to bestow the title of “Sir Arthur George Lawrence”. However the document does not purport to transfer land to which a manorial title is attached, nor does it bear a signature or name the conferring body or purport to confer a baronetcy or any other rank actually known in heraldry or which carries with it an honorific title. Further in his additional statement the Claimant has stated “The only Honours which carried the title Sir are Knight and Baronet. Since I am aware that I have not been knighted I have always believed that I am a Baronet. This has never been questioned in nearly thirty years, thus I have never bothered to investigate in depth.” However the mere fact that the Claimant has been using the title for a number of years without being questioned is not a sound basis for using such a title.

I have considered these documents carefully and have concluded that they do not provide any evidence which supports the Claimant’s contention that he is entitled to hold himself out as being a baronet and therefore Mr. McGrath was right to question the propriety of the Claimant’s use of the title. In these circumstances I have come to the conclusion that the Claimant has, for many years, been using a title to which he is not entitled. Bearing in mind the contents of the Royal Warrant he should not have used the title “sir” in bringing this claim and I direct that the Claim Form is to be amended with service dispensed with.

The question is to what extent that should affect my view as to his credibility. If a person adopts such a title for the purposes of gain then its use may be dishonest but it may be that such an affectation merely indicates snobbery or a

“follie de grandeur” which, of itself, is essentially harmless. However in cases where even a little investigation should have indicated that the assumption was incorrect it may be taken to indicate a distinct capacity for self delusion. The present case is one where the Claimant has assumed and used the title of baronet when even the most modest research would have indicated that this was not appropriate. In my view that indicates a capacity on the part of the Claimant for wishful thinking and self delusion which should be borne in mind when considering his evidence as to what occurred and how much weight I can place upon his evidence.

The Claimant’s evidence and the allegations of fault by the Defendant

Bearing the matters above in mind I will now turn to consider the strength of the Claimant’s evidence:

In the light of the evidence the allegations of negligence contained in paragraph 10 of the Particulars of Claim should be considered. These can be most conveniently be dealt with in the order which coincides with the

For the reasons above although I find that the majority of allegations of fault by the Defendant were not made out nonetheless there was a feature of the operation of the tender which fell below the necessary degree of care for its passengers. It is common ground that the Claimant did fall and was injured thereby. In my judgment the Defendant did fail to take sufficient care of the Claimant as he approached the doorway and that failure was a significant cause of the Claimant’s injuries.

Although, as I have found, the Defendant was at fault in safeguarding the Claimant which was causative of his injuries it is necessary to consider whether he failed to take reasonable and proper case of himself amounting to contributory negligence and, if so, to what extent. Although the Defendant was at fault I nonetheless take the view that persons of whatever age must, to some extent at least, take steps to ensure their own safety. This is particularly the case where they are engaged in operations or in places with which they may not be familiar. In such cases it behoves them to be more cautious than usual.

As I have found the conditions facing the Claimant were not so difficult that he could not have avoided tripping if he had been paying proper attention. He has given evidence that there were others ahead of him and, as there is no suggestion that others were injured, it follows that they managed to avoid tripping over the sill. Not only does this confirm that the conditions near the sill were not as bad as the Claimant has tried to convey it demonstrates that with an element of care being taken it was possible to avoid the danger posed by the sill. In my view a contributory reason for the fall was because the Claimant was probably proceeding too closely behind those ahead of him. In my view that is a matter emanating from his own failure of care rather than that of the Defendant.

In these circumstances I find that a proper degree of contributory negligence is 25% making the division of fault 75/25 in favour of the Claimant.

For tactical reasons, which arose from the “qualified one-way costs” regime recently introduced and applicable to personal injury claims, the Defendant’s counsel applied to the Court to make an order striking out the claim pursuant to CPR 3.4 once all the evidence had been heard. It is very unusual for such an application to be made, as in this case, immediately before or even during the trial itself although the rules do not preclude such an application. The object of this application was to seek to obtain the more advantageous costs result for the Defendant which may be allowed where such an order is made. As I have found that the Claimant’s injuries did arise, at least in part, from the Defendant’s fault it is obvious that an order for summary judgment could not be made. However it seems to me that if this type of argument is to become common it will, as it did in this case, add significantly to the time spent on submissions. If the rules were clarified or altered so as to allow the court a wider discretion to make costs orders against a Claimant in favour of a Defendant in cases where it is obvious, having heard all the evidence, that the case should never have been commenced or continued a recurrence of this situation might be avoided. This is a matter which might be considered by the rules committee.

The Claimant’s case is for general damages for pain and suffering caused by the injury together with special damages as set out in the updated schedule provided. The Defendant has provided a counter schedule. I shall approach this on the basis of full liability and re-adjust the damages to allow for the contributory negligence in due course.

General damages. Claimant’s counsel referred me to the Judicial College Guidelines.

The itemised special damages. Having heard both counsel and considered the schedules provided and bearing in mind that many of the items were unvouched but based on estimates I award the following:

Therefore the total of the damages payable to the Claimant amounts to £6,930 which is to be reduced by 25% to reflect the contributory negligence and therefore amounts to £5,197. To that sum must be added interest. It would assist if counsel would consider and try to agree the appropriate figure.