Neutral Citation Number: [2015] EWCA Civ 708
Case No: B3/2014/0753
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, BRISTOL DISTRICT
REGISTRY MERCANTILE COURT
HIS HONOUR JUDGE HAVELOCK-ALLAN QC
1BS05742
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 14/07/2015
Before:
LORD JUSTICE LAWS
LORD JUSTICE TOMLINSON
and
LORD JUSTICE KITCHIN
--------------------Between:
The South West Strategic Health Authority
First
Defendant/
Appellant
- and Bay Island Voyages
Third
Party/
Respondent
----------------------------------------John Ross QC and Ian Miller (instructed by Browne Jacobson LLP) for the First
Defendant/Appellant
Simon Kverndal QC and Ben Gardner (instructed by DWF) for the Third
Party/Respondent
Hearing dates: 9 June 2015
---------------------
Approved Judgment
Judgment Approved by the court for handing down.
SWSHA v BIV
Lord Justice Tomlinson:
1.
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.
2.
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).
3.
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.
4.
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.
5.
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.
6.
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
Judgment Approved by the court for handing down.
SWSHA v BIV
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.
7.
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.
8.
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.”
9.
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
Judgment Approved by the court for handing down.
SWSHA v BIV
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.
2. The limitation period shall be calculated as follows:
a) in the case of personal injury, from the date of disembarkation of the
passenger;…
3. The law of the court seized of the case shall govern the grounds of
suspension and interruption of limitation periods, but in no case shall an action
under this Convention be brought after the expiration of a period of three years
from the date of disembarkation of the passenger or from the date of when
disembarkation should have taken place, whichever is later.
4. Notwithstanding paragraphs 1, 2 and 3 of this Article, the period of
limitation may be extended by a declaration of the carrier or by agreement
of the parties after the cause of action has arisen. The declaration or
agreement shall be in writing.”
10.
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.
11.
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?
12.
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.”
13.
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
Judgment Approved by the court for handing down.
SWSHA v BIV
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.
14.
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.
Discussion
15.
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.
16.
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.
Judgment Approved by the court for handing down.
SWSHA v BIV
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.
17.
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.”
Judgment Approved by the court for handing down.
SWSHA v BIV
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.
Judgment Approved by the court for handing down.
SWSHA v BIV
18.
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.
19.
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.”
20.
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 setoff, 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
Judgment Approved by the court for handing down.
SWSHA v BIV
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.”
21.
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.
22.
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 remedybarring as opposed to right extinguishing.
23.
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…”
Judgment Approved by the court for handing down.
24.
SWSHA v BIV
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.”
25.
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
Judgment Approved by the court for handing down.
SWSHA v BIV
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.”
26.
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—
(2)
(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).
This section bars the right of action in a case to which
subsection (1) above applies notwithstanding that—
Lloyd LJ said this:-
(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;”
Judgment Approved by the court for handing down.
“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.
SWSHA v BIV
Judgment Approved by the court for handing down.
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, 4th 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
SWSHA v BIV
Judgment Approved by the court for handing down.
SWSHA v BIV
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.”
27.
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 remedybarring 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).
Judgment Approved by the court for handing down.
SWSHA v BIV
28.
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.
29.
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.”
30.
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.
31.
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:-
Judgment Approved by the court for handing down.
SWSHA v BIV
“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.)”
32.
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.
Judgment Approved by the court for handing down.
33.
SWSHA v BIV
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.”
34.
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 substantive1 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.
It is important to note in this discussion the two different senses in which the word “substantive” is commonly
used. It is used in the context of the Foreign Limitation Periods Act 1984 to determine, for the purposes of
classification, that for private international law purposes limitation is to be governed by the lex causae. In other
contexts, it is used to mean that a time bar provision extinguishes the cause of action.
1
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SWSHA v BIV
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
Judgment Approved by the court for handing down.
SWSHA v BIV
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.”
35.
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 sense2 used in the passages above. That provides no
justification for attributing to remedy barring language claim extinctive effect – if
anything it militates against it.
36.
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.”
37.
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, 2nd 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.
38.
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.
39.
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.”
40.
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,
Note that, as appears hereafter, the word “prescription” is also in this context not always used in a consistent
fashion.
2
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SWSHA v BIV
Germany, Greece, Ireland, Israel, Korea, Malta, The Netherlands, Portugal, Sweden,
Switzerland, Turkey and the US.
41.
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.
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SWSHA v BIV
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.”
42.
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.
2. Le délai de prescription court:
…
3. La loi du tribunal saisi régit les causes de suspension et d'interruption
des délais de prescription…”
Professor Berlingieri notes, at page 97, that “for the first time in a
multilingual convention, the French word “prescription” corresponds in
the English text to “time-bar”. The equivalence between these two terms
is confirmed by the Hamburg Rules in Article 20, [in] paragraph 1 of
which the words “Any action… is time-barred” are used in the English
text and the words “Toute action… est prescrité” are used in the French
text.” This is clearly to be contrasted with the English and French
versions of Article 29 of the Warsaw Convention, as noted above, where
the relevant language is “The right to damages shall be extinguished”
and “L’action en responsabilité doit être intentée, sous peine de
decheance.”
43.
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:-
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“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.”
44.
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.
45.
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)
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SWSHA v BIV
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.
46.
I would allow the appeal.
Lord Justice Kitchin:
47.
I agree.
Law Justice Laws:
48.
I also agree.