The Norwegian Jade – Athens Convention, “Carriage”

In this blog, David Green of 12 King’s Bench Walk considers the recently-reported application for permission to hearing of Lawrence v NCL (Bahamas) Ltd, the Norwegian Jade [2017] EWCA Civ 2222. The case deals with a novel point of construction of the Athens Convention 1974, concerning the liability of a sea carrier for injuries sustained when their passenger is in a tender vessel being taken from ship to shore.

Mr Lawrence booked a holiday which included a 7-day eastern Mediterranean cruise, starting and ending in Venice, aboard the Defendant’s cruise ship The Norwegian Jade. The cruise made a scheduled stop at the idyllic Greek island of Santorini, and Mr Lawrence decided to go ashore. The Norwegian Jade did not dock at Santorini: passengers were to be transferred ashore via a tender vessel, The Ipapanti, owned and operated by the United Boatmen of Santorini. As he boarded and walked towards the seating at the bow of the tender, he tripped over a step between the weather deck and the interior deck, suffering injury.

At first instance, Admiralty Registrar Jervis Kay QC found that the Athens Convention applied and that the Defendant was liable:

• The Claimant had a contract of carriage with the Defendant per article 1.1(a);
• The incident occurred during “carriage” per article 1.8(a);
• The tender, whilst not operated by the Defendant, was operated by a “performing carrier” as defined by article 1.1(b), for whom the Defendant is liable under articles 4.1 and 4.2;
• The United Boatmen of Santorini and the Defendant were each at fault or neglect as required by article 3.1.

The Defendant appealed on three grounds:

1. The Defendant was not a contractual carrier;
2. The accident did not occur in the course of “carriage”;
3. There was no “fault or neglect”.

The hearing was for permission to appeal, which the Court of Appeal refused on all grounds.

The first and third grounds of appeal were essentially fact-sensitive arguments of little or no wider significance: the second ground, however, raised what Hamblen LJ called a “novel point of law”.

The Athens Convention defines “carriage” at article 1.8(a) in the following way:

‘With regard to the passenger and/or his cabin luggage, the period during which the passenger and/or his cabin luggage are on board the ship or in the course of embarkation or disembarkation and the period in which a passenger and his cabin luggage are transported by water from land to the ship or vice versa…’ (emphasis added)

The Defendant argued that this created two distinct scenarios for “carriage”:

• First, when the passenger and/or his luggage are either aboard the ship, or are in the process of direct embarkation or disembarkation (such as at a port);
• Second, when the passenger is being transported between ship and shore by water, such as by a tender vessel. To qualify as “carriage” the passenger and his luggage would have to be being transported.

The Defendant submitted that this was the natural and ordinary meaning of the Convention: the term and/or had been used in one part of the provision, but the word “and” was used later.

The Registrar at first instance had rejected this argument. He concluded that such a literal construction was contrary to the purposive construction required, and would mean that only the embarkation and disembarkation at the very beginning and end of a voyage were included in the “carriage”.

He also noted that “cabin luggage” is defined at article 1.6 as “luggage which the passenger has in his cabin or is otherwise in his possession, custody or control”. This means that, even on the Defendant’s literalist construction, it would be enough that the passenger had some of his possessions with him – say, for example, his wallet, or his mobile phone, or a handful of coins.

Hamblen LJ found that the Registrar was clearly correct in this view. The purpose of the reference to both the passenger and his cabin luggage in article 1.8 is to ensure that there is responsibility for both during the period identified. He considered that it would not make sense to make responsibility for the passenger dependent on whether he was being transported with his cabin luggage, or separately.

Although the Defendant attempted to argue for this being a sensible division of responsibility, dividing as it does initial and final embarkation and disembarkation from transport at intermediate stops, there was no language to support this distinction; moreover, as Hamblen LJ observed, “the same insensibility arises since it is perfectly possible for a passenger and his cabin luggage to be transported separately at the beginning and end stages also”.

Hamblen LJ agreed with the Registrar that passengers would seldom be without at least some of their cabin luggage; and also, that the word “and” in the relevant part of Article 1.8 was clearly a shorthand for the previous expression “and/or”. To make the application of the Convention dependent on the passenger taking at least some of his luggage with him was “little short of absurd”, in the Registrar’s view.

For all of these reasons the court determined that there was no real prospect of the appeal succeeding and permission was refused.

Although Mr Lawrence’s accident took place before the entry into force of the 2002 Protocol to the Athens Convention, that Protocol leaves article 1.8 of the Convention intact as originally drafted: the court’s determination is therefore equally applicable to cases arising after 31 December 2014, to which the 2002 Protocol will apply.