A widow’s claim on behalf of her young son under the Athens Convention 1974 relating to carriage by sea, arising from the death of her husband and the child’s father, was saved from time bar by s 18 of the Prescription and Limitation (Scotland) Act 1973, though her own claim as an individual was time barred, the UK Supreme Court held today.

Five Justices unanimously dismissed an appeal by Scapa Flow Charters from a decision of the Inner House to allow the claim by Debbie Warner on behalf of her child to proceed, arising from the death of Lex Warner on 14 August 2012 while on a diving expedition on a vessel operated by the defenders, allegedly as a result of their negligence. The summons was signeted on 14 May 2015.

The defenders pled that the action was time barred under the Convention, which imposes a time bar of two years from the date on which the passenger would have disembarked, which was agreed to be no later than 18 August 2012. Under the Convention, Scots law as the applicable law governed “the grounds of suspension and interruption of limitation periods”, but an action must still be brought within three years from that date. They contended that s 18 of the 1973 Act postponed the start of the limitation period instead of interrupting or suspending it as the Athens Convention envisaged. The Lord Ordinary upheld the time bar defence; the Inner House reversed this decision in relation to the claim on behalf of the child. Mrs Warner accepted the dismissal of her claim as an individual but the defenders appealed to the Supreme Court.

Lord Hodge, with whom Lady Hale, Lord Reed, Lord Sumption and Lord Briggs agreed, said that in interpreting an international convention, national courts had to look at the objective meaning of the words used and the purpose of the convention as a whole; the interpretation should not be rigidly controlled by domestic precedents, but (in the absence of other aids to interpretation in the present case) on the broad, generally accepted principles of interpretation.

The court did not accept that the words “suspension and interruption” should have a technical meaning derived from certain civil law systems, for three reasons. First, it was not appropriate to look to such domestic laws in relation to an international convention which was designed to operate in many common law systems as well. Secondly, even within civil law systems and mixed systems, there was no uniformity in the use of the expression “suspension” at the time the Athens Convention was adopted. Thirdly, an interpretation of article 16(3) of the Convention as excluding domestic rules which had the effect of postponing the start of a limitation period would give rise to serious anomalies. The words “the grounds of suspension… of limitation periods” were therefore sufficiently wide to cover domestic rules which postponed the start of a limitation period as well as those which stopped the clock after the period had begun.

Neither did the court accept that the natural meaning of the words “grounds of suspension and interruption of limitation periods” was limited to the latter type of rule. For instance, the dictionary definition of “suspension” referred to by the defenders included “postponement” as one of its meanings, and “suspension” in the context of prescription or limitation had a broader meaning in several legal systems. Further, it was unnecessary for the grounds of limitation in a domestic limitation regime to be framed to extend beyond their domestic scope so as to cover limitation periods in conventions such as the Athens Convention. Therefore, the existence of a ground in a domestic statute which suspended the limitation periods in that statute was sufficient to bring article 16(3) into operation and extend the time bar by one year.

Considering the effect of s 18 of the 1973 Act, the Act did not postpone the start of the limitation period, as argued for the defenders, but postponed its expiry date, by instructing a court to disregard the time during which the pursuer was under legal disability. In any event, the court did not accept that postponement of the start of a limitation period fell outside an international understanding of a “suspension” of limitation periods. Secondly, the Convention recognised legal disabiities contained in the domestic law, and the the child's nonage therefore had the effect of suspending the running of time on the limitation period under the Convention. Thirdly, that suspension was subject to the long stop of three years, as set out in article 16(3), and the domestic provision could not extend the expiry of the limitation period beyond that point.

In conclusion, Mrs Warner’s claim as her son’s guardian was not time barred by the Convention and the appeal was dismissed.

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