Slips and Trips: The Athens Convention 1974 and Package Travel Regulations

In Jennings v TUI UK Limited (t/a Thomson Cruises) [2018] EWHC 82 (Admlty) on 13 November 2017 in the High Court of Justice, Admiralty Court, Alex Carington of 12 King’s Bench Walk, instructed by Mark Fanning of Miles Fanning Legal, appeared before the Admiralty Registrar Jervis Kay QC for the Defendant in a case considering the application of the Athens Convention for the Carriage of Passengers and their Luggage by Sea 1974 as amended by the 2002 Protocol (the “Athens Convention“) and the Package Travel, Package Holidays and Package Tours Regulations 1992 (the “Package Travel Regulations“).

In particular, the Court gave useful guidance on when “carriage” ended in the context of disembarking from a cruise ship into a modern port terminal: namely, as soon as the passenger stepped off the cruise ship onto a walkway operated by the Port Authority.

This blog post may be considered alongside our recent case study of the Court’s approach to a slipping injury claim brought under the Montreal Convention 1999.

Background

The Claimant and his wife had booked a cruise with the Defendant for 7 days on board the M.V THOMSON DREAM which started and finished at the Port of Malaga, Spain. The holiday contract with the Defendant included flights, the transfer between the airport and the Port of Malaga, as well as the cruise.

At the end of the cruise, the Claimant was leaving the cruise ship via a covered walkway. It was raining. He made his way along an “airfinger” which was a covered walkway supported at each end by steel legs and running on railway-type lines set in the top of the quay. He then crossed over a fixed concrete walkway to access another walkway supported on steel legs which sloped down into the terminal building. As the Claimant was walking down this last walkway he slipped on water and fell.

The claim was brought under art. 3(1) of the Athens Convention; alternatively, regulation 15 of the Package Travel Regulations. The Claimant argued that the water was present due to the Defendant’s crewmembers walking it into the area as they transferred cabin luggage from the ship to the terminal. He also argued that the Defendant’s crew members had a duty to warn him of the danger of slipping.

Findings of Fact

The Court heard evidence from the Claimant, his wife and the Defendant’s hotel manager. No evidence on local standards was adduced.

The Court accepted that the Claimant fell on the walkway and that there was water present where he fell. However, the Court did not accept the Claimant’s contention that the water was present due to the Defendant’s crew members. The Claimant’s evidence was based on an assumption and the Court preferred the evidence of the Defendant’s hotel manager, who confirmed that the only crewmembers using the passenger walkway would go into the terminal to assist with identifying luggage and would have no reason to go outside into the rain.

Athens Convention

The Court found that the Athens Convention did not apply as the fall did not occur during the course of carriage. Art. 1(8) of the Athens Convention, which defines “carriage”, expressly provides that carriage of a passenger does not include the period during which a passenger is in a marine terminal or station or on a quay or in or on any other port installation.

The Claimant contended that disembarkation was not complete until the passenger was safely established ashore and sought to rely upon the decision in Collins v Lawrence [2017] 1 Lloyds Rep 13, where a passenger fell from a platform at the top of freestanding steps from a grounded fishing vessel which had been provided by the vessel’s owners and which led onto the beach. The judge in that case held that disembarkation was not completed until the passenger was safely on the shingle beach.

The Defendant contended that the fixed walkways (which were attached to the port and were not on or part of the cruise ship) were port installations using the ordinary meaning of that phrase and the period of carriage had already ended when the fall occurred.

The Court accepted the Defendant’s argument and found that while the scope of the Athens Convention is generally intended to include disembarkation, this does not apply once a passenger has left the ship and has reached spaces or equipment which are clearly not under the control of the ship. Once the Claimant had passed through the port door in the ship’s side and stepped onto the walkway (operated by the Port Authority) leading to the terminal, the period of carriage was over and the Athens Convention no longer applied.

In the light of the factual findings, the Court noted that the Claimant had not proved the water was present due to any fault or neglect of the Defendant. It also rejected the Claimant’s submission that the Defendant was under a duty to warn the Claimant of the presence of water. As the period of carriage was over, any responsibility for the passenger under the Athens Convention had ended.

Package Travel Regulations

Although the Claimant had only pleaded that the cruise was the package holiday, the Court accepted that the holiday contract was actually for the cruise and flights such that the accident had occurred during the period of the package holiday.

The Claimant contended that the Defendant was under a duty to warn the Claimant of the risk of slipping as well as being responsible for any failures by the Port Authority as a supplier for whom the Defendant should be responsible and that no evidence of local standards was required to establish breaches of these duties. He also sought to rely on res ipsa loquitur to reverse any evidential burden on him.

In respect of a duty to warn, the Court doubted that the walkway fell within the scope of facilities provided under the holiday contract. Further, it was an area that the Defendant could not be expected to survey or patrol and it was absurd to consider that the Defendant, as a tour operator, should need to warn its customers to take care in conditions which were obvious to everyone. Whilst such a duty could arise in respect of an obvious and serious hazard, this was not such a case. The Court adopted a section of Saggerson on Travel Law and Litigation which stated:

“The need for such warnings as part of the proper performance of the holiday contract is likely to be limited to circumstances where the hazard is serious and the risk of significant injury is manifest to the hotelier or tour operator but may not be so obvious to the visitor. Based on the facts of Jones v Sunworld and Martens v Thomson, it is very doubtful that the courts would regard as realistic any contention that a hotelier should warn consumers about routine pavement trip hazards on the public road outside the hotel.”

In respect of the claim for any failure by the Port Authority as a supplier for whom the Defendant should be responsible, the Court found that the lack of evidence as to local standards was fatal to that claim. The Court followed the Court of Appeal decision in in Lougheed v On The Beach Limited [2014] EWCA Civ 1538 and rejected the Claimant’s contention that res ipsa loquitur applied to reverse the evidential burden. There was no evidence that the Defendant allowed the hazard to develop and so there could be no prima facie case against the Defendant to give rise to a reversal of the evidential burden.

Conclusion

This is a helpful decision as it confines liability under the Athens Convention to the period of carriage and once again reinforces the need for clear evidence of a breach of local standards in Package Travel Regulations claims. In respect of applying res ipsa loquitur, there would need to be at least evidence that the party responsible for ensuring safety knew of the hazard before a change in the evidential burden should be contemplated.

The decision does leave two important issues hanging in the air. First, while the Court doubted that the walkway fell within the scope of the holiday contract, this point was left largely undecided as the claim failed for other reasons. Secondly, before res ipsa loquitur can apply to reverse the evidential burden, is it necessary for the claimant to also demonstrate that a failure to respond to knowledge of a hazard was contrary to the local standards of care applicable? The Court only determined that this was arguably the case.
Whilst this decision may act as a litmus test on these issues, they will undoubtedly be questions for more conclusive determination in future litigation.

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