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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Feest v South West Strategic Health Authority & Ors [2014] EWHC 177 (QB) (07 February 2014) URL: http://www.bailii.org/ew/cases/EWHC/QB/2014/177.html Cite as: [2014] EWHC 177 (QB), [2014] 1 Lloyd's Rep 419

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BRISTOL DISTRICT REGISTRY
MERCANTILE COURT

		7 February 2014

HIS HONOUR JUDGE HAVELOCK-ALLAN QC:

1. This is an appeal from the judgment of a district judge which has been transferred into the Bristol Mercantile List because it turns on a point of construction of the Convention Relating to the Carriage of Passengers and their Luggage by Sea ("the Athens Convention") which has not hitherto been decided and which may be of some general interest. The point can be very shortly stated: does the period of limitation in Article 16 of the Convention bar the remedy or extinguish the right?
2. The context in which the point arises can be equally shortly summarised. On 26 August 2008, Dr Kathleen Feest sustained a serious spinal injury whilst a passenger on board a 9 metre RIB (rigid inflatable boat) called the Celtic Pioneer. Dr Feest and 10 work colleagues were participating in a 1 hour boat trip in the Bristol Channel as part of a corporate team building exercise. They had boarded the Celtic Pioneer at a quay in Cardiff Bay. How the injury occurred is irrelevant for present purposes. Anyone interested can read the report of the Marine Accident Investigation Branch (Report 11/2009) on the internet.
3. At the time of the accident Dr Feest was employed by the first defendant, the South West Strategic Health Authority ("SWSHA"), but seconded to the second defendant, the UK Foundation Programme Office ("UKFPO"). Since the defendants had organised the boat trip, Dr Feest contended that the injury had occurred in the course of her employment. She launched a personal injury claim in Bristol County Court on 25 August 2011. A defence was filed by SWSHA in June 2012 (UKFPO has played no further part in the proceedings). At the same time, 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.
4. 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.
5. 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

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."

6. The Athens Convention was drafted in 1974 at a conference sponsored by the International Maritime Organisation (IMO). It was enacted into UK law by section 14 of the Merchant Shipping Act 1979. Section 14, and the Convention in Part 1 of Schedule 3 to the 1979 Act, was not brought into force in the UK until 30 April 1987 because the Convention itself did not come into full force internationally until 28 April 1987. Section 14 was brought into force by the Merchant Shipping Act 1979 (Commencement No. 11) Order 1987 (1987 SI No. 635). However, the Convention was applied in the UK well before April 1987. The Carriage of Passengers and their Luggage by Sea (Interim Provisions) Order 1980 (SI 1980 No. 1092) enforced the Convention in the UK after 1 January 1981. It did so with a modification. The Order provided that the Convention should also cover domestic voyages i.e. ones where the places of departure and destination were within the UK, Channel Islands and Isle of Man and there was no intermediate port of call outside that area. This modification in respect of domestic voyages was continued in 1987 by the Carriage of Passengers and their Luggage by Sea (Domestic Carriage) Order 1987 (SI 1987 No. 160). The modification is significant because Dr Feest's boat trip in Cardiff Bay was a domestic voyage.
7. A legislative postscript is that section 14 was repealed and replaced by section 183 of the Merchant Shipping Act 1995 with effect from 1 January 1996. The Convention is now to be found in Schedule 6 to the 1995 Act.
8. The proposed appeal arises out of an application brought by Bay Island Voyages for summary judgment on the contribution claim. That application was heard by DJ Britton in Bristol County Court on 19 July 2013 and was successful. The Part 20 claim was dismissed and permission to appeal was refused. The matter was transferred to the Bristol Mercantile List for permission to appeal and hearing of the appeal if permission was granted. Having heard full argument from leading counsel, neither of whom was instructed at the hearing below, I grant permission to appeal. This will allow the losing party to apply to the Court of Appeal under CPR 52.13 for permission to bring a second appeal if so advised.
9. In the remainder of this judgment I shall refer to the SWSHA as "the appellant" and to Bay Island Voyages as "the respondent".
10. Before, summarising the parties' respective contentions, it will be helpful to refer to the provisions of the Civil Liability Contribution Act 1978 and the Limitation Act 1980 which are said to have a bearing on the appeal. I must also deal briefly with the judgment of the District Judge. I can do so briefly because neither party adopts the reasons given in that judgment.
11. Section 1 of the Civil Liability (Contribution) Act 1978 states:

"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.

12. The ordinary periods of limitation in English law are prescribed in Part I of the Limitation Act 1980 (sections 1-27B). The provisions in Part II of the 1980 Act (sections 28-33A) specify when these time limits may be extended or excluded. For example, the ordinary period of limitation for a claim for damages for personal injury is 3 years (section 11): but there is a discretion to exclude it (section 33). The ordinary period of limitation for claiming contribution is prescribed in section 10 as being 2 years from the date on which the right to recover contribution has accrued. That date is either the date of the judgment or award against the person claiming contribution (section 10(3)) or the date on which that person agreed in a settlement or compromise to make a payment to the claimant in respect of the damage.
13. Dr Feest's claim against the appellant was issued one day before the expiration of the 3 year limit in section 11, but nearly a year outside the 2 year limit in Article 16.1 of the Convention. It was for this reason that she could not sue the carrier but chose to sue her employer instead. The respondent, however, argued before DJ Britton that, as carrier, it was entitled to rely on the time limit of 2 years in Article 16.1 or of 3 years in Article 16.3 as a defence to the contribution claim because that claim had not been brought until nearly 3 years and 10 months after the boat trip in question.
14. The argument before the district judge focussed on whether the period of limitation in Article 16.1 and/or 16.3 was: "… a period of limitation or prescription which extinguished the right on which the claim against him in respect of the damage was based" (see section 1(3) of the 1978 Act). If it was, the contribution claim was liable to be struck out. If it was not, section 1(3) of the 1978 Act made it clear that there was no limitation defence to the contribution claim.
15. DJ Britton began his judgment by holding, quite correctly, that the 2 year limit in Article 16.1 was absolute, in the sense that it was not possible to disapply it under section 33 of the 1980 Act (see Higham v Stena Sealink Ltd [1996] 1 WLR 1107, where the Court of Appeal rejected an argument by Stena Sealink that section 39 of the Limitation Act 1980, which provides that the Act does not apply to any action for which a period of limitation is prescribed by or under any other enactment, had the effect of excluding from the claim in their entirety the provisions in Part II of the Act, but nevertheless held that the discretion to exclude the ordinary time limit in section 33 of the Act was not a provision "… under which periods of limitation can be suspended or interrupted" as envisaged by Article 16.3).
16. He went on to deal with an argument by the appellant that it would be unjust if the Part 20 claim was struck out, leaving SWSHA to bear all of the loss just because Dr Feest's legal advisers had failed to meet the time limit in the Athens Convention or had deliberately chosen not to sue the carrier. DJ Britton was not impressed by that submission. He noted that section 1(3) of the 1978 Act contemplated that a person could be liable to make a contribution, notwithstanding that the period of limitation applying to the claimant's claim had long since expired, and notwithstanding that the person from whom contribution was sought might have had no knowledge of the original claim or the incident giving rise to it during the primary limitation period. He observed that the law of limitation often gave rise to unfairness.
17. DJ Britton then addressed the critical wording in section 1(3). He held that the suggested difference between a limitation period which extinguished the right and one which operated as a time bar was one of semantics. The expiration of the period of limitation in Article 16 of the Convention meant that the carrier had "ceased to be liable". That was the same as saying that the carrier's liability had been extinguished. Accordingly he would strike out the Part 20 claim.
18. The parties agree that this reasoning is erroneous. They accept that there is a difference between a prescriptive bar, which extinguishes the cause of action, and a procedural bar, which precludes a suit being brought on the cause of action. The question is whether Article 16 should be construed as providing a bar of the first kind (as the respondent says) or a bar of the second kind (the appellant's case).

The appellant's arguments

19. Mr Ross QC made the following submissions:

(1) The starting point is section 1(3) of the 1978 Act. That provision was included in the Act in order to reverse the effect of the House of Lords' decision in George Wimpey & Co Ltd v BOAC [1955] AC 169 and so as to allow contribution claims to be brought in all cases, save where the person from whom contribution was sought had established a good defence on the merits to the claimant's claim (see Law Commission Report No. 79 of 1977 on Contribution at paragraph 60). Schedule 1, paragraph 6 of 1978 Act amended s. 4 of the Limitation Act 1963 to make this clear.

(2) The 1978 Act, the Merchant Shipping Act 1979 and the Limitation Act 1980 were all passed against the background that English common law has long drawn a distinction between right and remedy as the criterion for distinguishing between substance and procedure and has treated limitation as barring the remedy rather than extinguishing the right, save in limited special cases (e.g. acquisitive prescription under the Prescription Act 1832, the extinction of the title of the owner of converted goods under section 3 of the 1980 Act or the extinction of title to land after the expiration of the time limit for actions to recover land under section 17 of the 1980 Act).

(3) Parliament must therefore be presumed to have had this distinction well in mind when enacting section 1(3), and must also have had well in mind the "English rule" on the classification of statutes of limitation in private international law which is that English courts regard statutes of limitation as matters of procedure to be governed by English law as the lex fori (see paragraph 7 of Law Commission Working Paper No. 75 of 1980 on the Classification of Limitation in Private International Law).

(4) Articles 14 and 16 must be construed as though they were part of "directly enacted statute law" rather than simply being an international treaty obligation (see Lord Diplock in The Hollandia [1983] 1 AC 565 at 572G commenting on the Hague- Visby Rules which were incorporated into English Law by the Carriage of Goods by Sea Act 1971: followed by the Court of Appeal in Kenya Railways v Antares Co Pte Ltd [1987] 1 Lloyd's Rep 424 per Lloyd LJ at 429 LHC). The statutory foundation of Articles 14 and 16 is reinforced by the fact that the Carriage of Passengers and their Luggage by Sea (Interim Provisions) Order 1980 brought the Athens Convention into force in the U.K. before it had international effect, and modified it so as to extend to domestic voyages such as that undertaken by Dr Feest. This extension was a creature of statute, not of international treaty.

(5) It is well settled in English law that clear words are required if a time limit is to be construed as prescriptive of the right of action rather than a procedural bar to suit. The wording of Article 16.1 ("shall be time-barred after a period of two years") and Article 16.3 ("in no case shall an action … be brought after the expiration of a period of three years …") are not sufficiently clear as to have the effect of extinguishing the right of action. This is the view of McGee on Limitation, 6th ed. at para. 26-051.

(6) An example of statutory wording which clearly has the effect of extinguishing the right of action after lapse of time is s. 11A(3) of the Limitation Act 1980. Section 11A governs actions in respect of defective products. Sub-section (3) provides: "An action to which this section applies shall not be brought after the expiration of the period of ten years from the relevant time, within the meaning of section 4 of the said [Consumer Protection] Act of 1987; and this subsection shall operate to extinguish a right of action and shall do so whether or not that right of action had accrued, or time under the following provisions of this Act had begun to run, at the end of the said period of ten years." (my emphasis).

(7) An example of similar wording in an international convention was Article 29 of the 1929 Warsaw Convention for the Unification of Certain Rules relating to International Carriage by Air, enacted in the UK by the Carriage of Goods by Air Act 1932. Article 29 (1) stated: "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"^[1]

(8) The same result, viz. extinction of the claim, is achieved by Article III Rule 6 of the Hague Rules ("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 …"). Article III Rule 6 of the Hague-Visby Rules is in materially identical terms. In The Aries (Aries Tanker Corporation v Total Transport Ltd [1977] 1 WLR 185), Lord Wilberforce held (at 188D-E) that Article III Rule 6 of the Hague Rules created "… 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". Article 7 of the Brussels Convention on Collisions 1910 simply provides that: "Actions for the recovery of damages are barred after an interval of two years from the date of the casualty".

(9) Where an international convention extinguishes the claim, rather than simply bars the remedy, provision is usually made to exempt contribution proceedings from the prescriptive effect of the limitation provision. A prime example is Art III Rule 6bis of the Hague-Visby Rules which states: "An action for indemnity against a third person may be brought even after the expiration of the year provided for in the preceding paragraph if brought within the time allowed by the law of the Court seized of the case. …". Another is Art. 37 of the Montreal Convention which is entitled "Right of Recourse against Third Parties" and provides that: "Nothing in this Convention shall prejudice the question whether a person liable for damage in accordance with its provisions has a right of recourse against any other person". It has been held by the US 9th Circuit Court of Appeal in Chubb Insurance Co. v Menlo . Worldwide Forwarding 634F 3rd 1023 [2011] that the effect of Article 37 of the Montreal Convention is to prevent the extinction of the right of action in Article 35 from applying to contribution proceedings. The saving provision in Article 37 has been adopted in the UK by section 5(2) of the Carriage by Air Act 1961. Section 5 of the 1961 Act, which replaces the enactment of Article 29 of the Warsaw Convention in the 1932 Act and gives effect to the Warsaw Convention as amended by the Montreal Convention, now states that: "(1) No action against a carrier's servant or agent which arises out of damage to which any of the Carriage by Air Conventions applies shall, if he was acting within the scope of his employment, be brought after more than 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 provisions mentioned in subsection (4) shall not be read as applying to any proceedings for contribution between, persons liable for any damage to which any of the Carriage by Air Conventions relates 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. … (4) The provisions are – (a) Article 29 of the Convention; (b) Article 29 of the Convention as amended; and (c) Article 35 of the Montreal Convention". There is no equivalent saving provision in the Athens Convention because there is no need. Article 16 bars the remedy: not the right. For the same reason there is no saving provision in the Merchant Shipping Act 1979 or 1995. Parliament evidently did not think it was necessary.

(10) In any case, Articles 14 and 16 of the Athens Convention apply to actions for damages, not to claims for contribution to a liability in damages. The 3 year time limit in Article 16.3 is a bar on "an action under this Convention". The appellant's contribution claim is not "an action under this Convention". It is a claim for contribution under section 1(3) of the Civil Liability Contribution Act 1978.

(11) If the respondent is correct, contribution proceedings must be brought within 2 years of disembarkation. So there could be cases where, in order to be in time, the claim for contribution would have to be brought before the injured claimant had even issued a claim. This is ridiculous and unfair.

(12) The respondent's reliance on the Foreign Limitation Periods Act 1984 does not assist for 3 reasons. First, it applies to actions or proceedings where "the law of any other country" falls to be taken into account by English private international law rules (section 1(1)). The Athens Convention is not "the law of any other country". It is an international convention which has become part of the law of England and Wales by virtue of the Merchant Shipping Acts 1979 and 1995. Second, the rule in section 1(1), which is that English law relating to limitation does not apply where English conflicts rules require the law of any other country to be taken into account, does not extend to situations where, by English conflicts rules both English law and the law of another country fall to be taken into account (section 1(2)). In the present case, the Merchant Shipping Act 1995, the Civil Liability Contribution Act 1978 and the Carriage of Passengers and their Luggage by Sea (Domestic Carriage) Order 1987 (SI 1987 No. 160) have all to be taken into account, as well as the text of the Convention. Third, there is an exception to the rule in section 1(1). It does not apply to the extent it would conflict with English public policy and it would conflict with public policy to the extent that its application causes undue hardship (section 2(1 and (2)). The respondent's interpretation of Article 16 would operate unfairly and cause undue hardship in many cases, this being one.

The respondent's arguments

20. Mr Kverndal QC advanced the following propositions on behalf of the respondent:

(1) It is a well established principle that international conventions incorporated into English law by statute are to be construed "on broad principles of general acceptation" and "unconstrained by technical rules of English law, or by English legal precedent" (see Lord Wilberforce in James Buchanan & Co. Ltd v Babco Fowarding & Shipping (UK) Ltd [1978] AC 141 at 152E).

(2) A time bar provision in an international convention will necessarily be characterised as being substantive (dealing with rights not remedies) because, given that the convention is not set in the context of a single body of procedural rules, and that it has no procedural application, it cannot be characterised as being procedural.

(3) The distinction between periods of limitation which extinguish the right and those which merely bar the remedy is peculiar to English law, or at least to common law jurisdictions. Civil law jurisdictions do not recognise this difference because they regard limitation as being concerned with substantive rights. A time limit which bars suit is regarded as barring the cause of action once time has expired.

(4) Most of the countries which have acceded to the Athens Convention do not subscribe to the English rule^[2]. They would treat Article 16 as extinguishing the right rather than just barring the remedy.

(5) Furthermore the Law Commission's Working Paper No. 75 on the Classification of Limitation in Private International Law noted as long ago as 1980 (see para. 29) that in some common law jurisdictions, such as New South Wales, British Columbia and Ontario, Law Reform Commissions had recommended moving away from the English rule towards a reclassification of limitation as substantive for conflict of law purposes (see also the Commission's Report No. 114 of 1982 at paras. 3.4 to 3.10).

(6) An illustration of that approach being adopted is the decision of the Supreme Court of Canada in Tolofsen v Jensen, Lucas v Gagnon [1994] 3 SCR 1022. That case concerned two con-joined appeals in actions for personal injuries brought in the courts of Canadian provinces which were not the provinces where the accidents had occurred some years earlier. The Tolofsen claim was statute-barred under the law of the province of Saskatchewan where the accident had occurred (the lex loci delicti or lex causae), but was arguably not barred in the law of British Columbia which was the province where the action had been brought (lex fori). The specific issue in the Tolofsen appeal was whether the lex fori governed the limitation question. A seven judge bench of the Supreme Court held that it did not. La Forest J, delivering the leading judgment, declined to follow the English rule and gave the following reasons:-

"The common law traditionally considered statutes of limitation as procedural, as contrasted with the position in most common law countries where it has traditionally been regarded as substantive. ... By the early nineteenth century, the doctrine was firmly established in England and in the United States. From the cases and academic commentary of the time ... one can glean the two main reasons for the ready acceptance of this doctrine in Anglo/American jurisprudence. The first was the view that foreign litigants should not be granted advantages that were not available to forum litigants. This relates to the English preference for the lex fori in conflict situations. The second reason was the rather mystical view that a common law cause of action gave the plaintiff a right that endured forever. A statute of limitation merely removed the remedy in the courts of the jurisdiction that had enacted the statute.

Such reasoning mystified continental writers such as M. Jean Michel (La Prescription Libératoire en Droit Internationel Privé ...) who contended that "the distinction is a specious one, turning upon the language rather than upon the sense of limitation acts ...". In the continental view, all statutes of limitation destroy substantive rights.

I must confess to finding this continental approach persuasive. The reasons that formed the basis of the old common law rule seem to me to be out of place in the modern context. The notion that foreign litigants should be denied advantages not available to forum litigants does not sit well with the proposition, which I have earlier accepted, that the law that defines the character and consequences of the tort is the lex loci delicti. The court takes jurisdiction not to administer local law, but for the convenience of litigants, with a view to responding to modern mobility and the needs of a world or national economic order.

Canadian courts have also begun to shatter the mystique of the second reason which rests on the notion that statutes of limitation are directed at the remedy not the right. This Court has in another context taken cognizance of the right of the defendant to be free from stale claims in Martin v Perrie [1986] 1 SCR 41. There the plaintiff sued the defendant doctor for having left an indissoluble suture inside her during surgery ten years earlier. At the time of the surgery, in 1969, the Ontario period of limitation on malpractice suits was 1 year from the time of the medical intervention. The discovery principle of limitation was adopted by statute in 1975. The plaintiff launched her lawsuit within a year of having discovered her problem in 1979. Her argument was that the statue of limitation, being procedural, was necessarily retrospective. Although not explicitly stated, the plaintiff's reasoning seems to have been as follows: if the previous statute of limitation did not bar the right but merely the remedy, then the new statute of limitations created a new remedy (or revived an old one) enabling her to enforce a right that had never been extinguished.

The Court circumvented the distinction between the plaintiff's right and her remedy by holding that the termination of a limitation period vests rights in the defendant. Chuinard J, at p. 49, quoted with approval Lord Brightman in Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553 (PC) at p. 563:

"In their Lordships' view, an accrued right to plead a time bar, which is acquired after the lapse of the statutory period, is in every sense a right, even though it arises under an act which is procedural. It is a right which is not to be taken away by conferring on the statute a retrospective operation, unless such a construction is unavoidable." [Emphasis added]

While correctly considering that a statute of limitation vests a right in the defendant, the Privy Council in Yew Bon Tew continued to cling to the old English view that statutes of limitation are procedural. Nonetheless the case seems to me to demonstrate the lack of substance in the approach. The British Parliament obviously thought so. The following year the rule was swept away by legislation; the Foreign Limitation Periods Act 1984 (UK) 1984, c.16, declared that foreign limitation periods are substantive.

I do not think it is necessary to await legislation to do away with the rule in conflict of laws cases. The principle justification for the rule, preferring the lex fori over the lex loci delicti, we saw, has been displaced by this case. So far as the technical distinction between right and remedy, Canadian courts have been chipping away at it for some time on the basis of relevant policy considerations. I think this Court should continue the trend. It seems to be particularly appropriate to do so in the conflict of laws field where, as I stated earlier, the purpose of substantive/procedural classification is to determine which rules will make the machinery of the forum court run smoothly as distinguished from those determinative of the rights of both parties."

The Saskatchewan limitation statute provided that: "... no action shall be brought against a person for recovery of damages occasioned by a motor vehicle after the expiration of twelve months from the time when the damages were sustained". The Supreme Court held that this was an absolute defence to the claim in British Columbia.

(7) Another decision, which indicates that states in Australia have moved in the same direction, is John Pfeiffer v Rogerson (2000) CLR 503. In that case, a seven judge bench of the High Court of Australia reformulated the principles in federal jurisdiction that govern how a claim in tort brought in the courts of one Australian state should be determined when some or all of the acts comprising the tort took place in another state. The court abolished the double actionability rule in favour of a choice of law rule that looks solely to the lex loci delicti. In the course of the leading judgment of Gleeson CJ and four other justices, reference was made (at paras. 48, 55 and 97-100 ) to the fact that several Australian states had enacted legislation reversing the English rule and providing that time limitation laws are to be treated as substantive rather than procedural. The English Court of Appeal in Harding v Wealands [2005] 1 WLR 1539 followed the reasoning in the Pfeiffer case in holding that the quantification of damages claimed by an Englishman who had suffered serious personal injury in a road traffic accident in New South Wales should be governed by the law of New South Wales (see in particular the judgment of Sir William Aldous at paras. 89-94). It is true that the House of Lords reversed this decision ([2006] 2 AC 1): but it did so on the basis that section 14(3)(b) of the Private International Law (Miscellaneous Provisions) Act 1995 had preserved the English common law conflicts rule that matters of quantification of damage are procedural and to be determined by the lex fori. The decision of the House of Lords in Harding v Wealands would now be different because that rule has been superseded by EC Regulation 864/2007 on the Law Applicable to Non-Contractual Obligations ("Rome II") which applies the law of the country in which the damage occurs^[3].

(8) The Foreign Limitation Periods Act 1984 gave effect to the principal recommendation in the Law Commission's Report No. 114 of June 1982 that: "the English rule whereby statutes of limitation, as opposed to rules of prescription, are classed as procedural should be abandoned, and where under our rules of private international law a foreign law falls to be applied in proceedings in this country, the rule of that foreign law relating to limitation should also be applied, to the exclusion of the law of limitation in force in England & Wales". As a result of the Act, if a claim is extinguished in the foreign lex causae, it is to be treated as extinguished in England. The Act is a helpful pointer to how English courts should approach the interpretation of a limitation provision in an international convention.

(9) Another pointer is the following statement in Dicey, Morris and Collins "The Conflict of Laws", 15th ed. at paras. 7-003 to 7-004, commenting on Rule 19 ("All matters of procedure are governed by the domestic law of the country to which the court wherein any legal proceedings are taken belongs (lex fori)"):-

"7-003. While procedure is governed by the lex fori, matters of substance are governed by the law to which the court is directed by its choice of law rule (lex causae). Dicey wrote that English lawyers gave "the widest possible extension to the meaning of the term 'procedure'." As a matter of history, this is true; and a court may, even today, be tempted to extend the meaning of 'procedure' in order to evade an unsatisfactory choice of law rule. But in general the attitude expressed by Dicey has fallen into disfavour precisely because it tends to frustrate the purposes of choice of law rules. It has also been affected by the entry into force of harmonised European choice of law rules which require certain matters to be classified as substantive. Thus some questions which were at one time thought of wholly in terms of procedure are now considered to be procedural in some of their aspects only. The development of the law as to limitation periods and damages illustrates this process.

7-004. The difficulty in applying this Rule lies in discriminating between rules of procedure and rules of substance. The distinction is by no means clear-cut. In drawing it, regard should be had in each case to the purpose for which the distinction is being used and to the consequences of the decision in the instant context. The rule under examination must be considered as a whole, without giving undue weight to the verbal formula selected by previous judges or by the draftsman of a statute to introduce the rule. So, the words "where proceedings are taken in any court …" have been held to introduce a rule of substance. The mechanistic approach, sometimes found in English cases, of relying on the classification of the introductory verbal formula as used in a quite different statute, or of accepting a classification as procedural or substantive made for some purpose quite unrelated to the conflict of laws, is now discredited. The distinction may have to be drawn in one place for the purpose of this Rule but in another place for the purpose of the rule that statutes affecting procedure are, while statutes affecting substance are not, presumed to have retrospective effect. This is not to say that the distinction may not be drawn in the same place for many purposes: it is merely to deny that it must necessarily be drawn in the same place for all purposes. The primary object of this Rule is to obviate the inconvenience of conducting the trial of a case containing foreign elements in a manner with which the court is unfamiliar. In principle, therefore, if it is possible to apply a foreign rule, or to refrain from applying an English rule, without causing any such inconvenience, those rules should not necessarily, for the purpose of this Rule, be classified as procedural."

What Dicey is there saying is that, in the conflict of laws, the court should ignore any classification of a provision as procedural or substantive which has been made for purposes unrelated to the conflict of laws.

(10) Whilst the present case does not involve a conflict of laws: a similar approach should be adopted in construing the limitation provisions in Article 16 of the Athens Convention. The wording should be approached without preconception as to whether the time bar is procedural or substantive. The wording should be construed "on broad principles of general acceptation". A bar should be construed as a bar which extinguishes the claim. It is significant that the Court of Appeal of New Brunswick assumed that this was the effect of Article 16.1 of the Athens Convention in Russell v McKay 2007 NBCA 55 at para. 57.

(11) As for the wording of Article 16, even if Article 16.1 ("shall be time-barred ...") uses phraseology which in the past has been regarded by English courts as procedural in character (cf. Article 7 of the Collisions Convention 1910 and Lord Wilberforce in The Aries at 188D-E), Article 16.3 ("but in no case shall an action under this Convention be brought ...") is plainly capable of being construed either way (cf. the Saskatchewan limitation statute in Tolofsen v Jensen). McGee on Limitation, at para. 26-051 is simply wrong on this point.

(12) The contrast which the appellant seeks to draw between the wording of Article 16 of the Athens Convention and the wording of Article 29 of the Warsaw Convention for the Unification of Certain Rules relating to International Carriage by Air (now Article 35 of the Montreal Convention) does not assist because the appellant can point to nothing in the travaux préparatoires of the Athens Convention which suggests that the drafters of that Convention made a conscious decision not to adopt wording equivalent to Article 29/35 (The right to damages shall be extinguished ...).

Conclusions

21. I have greatly compressed the parties' contentions in the above summary, but their respective standpoints are clear. The issue raised by this appeal has its origins in the adherence in English conflict of law rules to the English rule, namely, that limitation periods bar the remedy but do not extinguish the right unless worded expressly so as to have that effect. The zenith of expression of the English rule is probably Lord Wilberforce's speech in The Aries: but the rule formed the basis of the decision of the Privy Council in Yew Bon Tew five years later. It provided the answer in most conflict of law situations to the prescriptive effect of any foreign time limit. By categorising limitation as procedural, it was possible to treat foreign limitation provisions as no impediment to a claim for contribution being brought outside the foreign limitation period, provided it was brought within the time specified in section 10 of the 1980 Limitation Act.
22. All that changed with the passing of the Foreign Limitation Periods Act 1984. The reference in section 1(3) of the 1978 Civil Liability (Contribution) Act 1978 to limitation periods which extinguish the right was, after the coming into force of the 1984 Act, no longer confined to limitation periods which English common law would interpret as having a prescriptive effect. It was now also a reference to any limitation period in a foreign lex causae which the local law would treat as being prescriptive. If the foreign lex causae belonged to a civil law jurisdiction, the limitation period would almost invariably be regarded as extinguishing the right.
23. Notwithstanding this sea change in the approach of English courts to foreign limitation provisions, counsels' researches have found no reported case since 1984 where a claim for contribution under the 1978 Act had failed because the proposed contributor had ceased to be liable by virtue of a foreign limitation period which extinguished the right. It is, however, a scenario which must have been encountered.
24. The present case is not concerned with a limitation period in a foreign law and does not raise conflict of law issues. But I accept Mr Kverndal's submission that the passing of the 1984 Act is of significance in the following sense. It marks an important step in English law's retreat from the English rule, and from the assumption underpinning that rule, which is that limitation provisions are procedural and not of substantive effect. As a result of the Act, an English court will treat a foreign limitation provision as substantive, if the foreign court would do so. The assumption underpinning the English rule may still colour the construction of limitation provisions in English law, but the respondent's argument is that it ought not to do so when the limitation provision is one contained in, or derived from, an international convention. I agree with that proposition.
25. However, in determining this appeal, the logical starting point is the appellant's argument that Article 16 of the Athens Convention does not deal with contribution claims at all, but only with "… actions for damages for the death of or personal injury to a passenger ... against a carrier or performing carrier" (see Article 14). I cannot accept this submission. Liability under a contribution claim exists only if the contributor can be shown to be liable to the original claimant for the same damage. So, at the heart of a contribution claim is a corresponding liability of the contributor for the death or personal injury of the passenger. It is a solecism to say that a claim for damages and a claim for contribution to a claim for damages are different creatures. Moreover, Articles 14 and 16 are unspecific as to how the claim against the carrier may arise. Article 14 does not say: "No action for damages … shall be brought by a passenger against a carrier …". On the face of it, the Convention applies to all actions for damages against a carrier, however arising. The reference in Article 16.3 to "an action under this Convention" must be read in the context of Article 14, which specifies that no action for damages for personal injury to a passenger shall be brought "… otherwise than in accordance with this Convention". The Convention is plainly intended to be the exclusive route to establishing liability of a carrier for personal injury to a passenger. The fact that the appellant's Part 20 claim is founded on a cause of action created by section 1 of the Civil Liability (Contribution) Act is immaterial. The action is one for contribution to damages for personal injury to a passenger. In my judgment, this is sufficient to engage Articles 14 and 16 of the Athens Convention.
26. Mr Kverndal is also right about the correct approach to construction of the Athens Convention. In Buchanan v Babco, Lord Wilberforce was doing no more than echo what was said by Lord Macmillan in Stag Line Ltd v Foscolo, Mango and Co. Ltd [1932] AC 328 at 350. The House of Lords was concerned in that case with the meaning of the phrase "reasonable deviation" in Article IV Rule 4 of the Hague Rules. Lord Macmillan said: "It is important to remember that the [Carriage of Goods by Sea] Act of 1924 was the outcome of an International Conference and that the rules in the Schedule 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".
27. This approach has two consequences. The first is that the construction of the wording should not be based upon any principles or assumptions which are peculiar to the common law. One such principle or assumption is that limitation provisions are procedural in character and not substantive. The second is that English rules of statutory construction apply only insofar as they are consistent with broad principles of general acceptation, where those can be ascertained. There is a caveat here, which was well expressed by Lord Hobhouse of Woodborough in Morris v KLM Royal Dutch Airlines [2002] 2 AC 628. That case concerned the question whether mental trauma fell within the definition of "bodily injury" in the 1929 Warsaw Convention. Lord Hobhouse warned against paying too close regard to the national laws of states which had acceded to the Convention in an endeavour to arrive at a uniform interpretation of the relevant provision in the Convention. At paragraph 147 he said this:

"… 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 [in the Convention] for division of risk. As Lord Hope of Craighead said in Sidhu v British Airways plc [1997] AC 430, 453D '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 provisions in question, the relevant point for decision always remains: what do the actual words used mean? (Stage Line Ltd v Foscolo, Mango & Co Ltd [1932] AC 328, the Hague Rules; James Buchanan & Co Ltd v Babco Forwarding and Shipping (UK) Ltd [1978] AC 141, CMR; Fothergill v Monarch Airlines Ltd [1981] AC 251, the amended Warsaw Convention; Sidhu v British Airways plc [1997] AC 430, Warsaw)."

28. In the present case this problem is not acute. The inquiry is more abstract than the meaning foreign courts have given to particular wording in the Athens Convention. The question is whether there is uniformity among the states which have acceded to the Convention that the limitation provisions in Article 16 are to be treated as of substantive effect. It is not seriously disputed that the English rule (that limitation provisions are procedural rather than substantive unless clearly stating otherwise) is alien to most if not all civil law jurisdictions. The researches of the Law Commission confirm that this is the position (see para. 3.3 of Report No. 114). As to common law jurisdictions, I was referred mainly to Tolofsen v Jensen, Russell v McKay and Pfeiffer v Rogerson. Mr Ross submits that they are clearly distinguishable. But I think I can take from them that the courts of Canada and the states' legislatures in Australia are moving away from treating the barring of a remedy as procedural rather than substantive. In other words, the trend in those jurisdictions is to regard a bar on an action as equivalent to an extinction of the claim.
29. Adopting Lord Hobhouse's approach, the words used in Article 16 must be given an objective interpretation: "it is to the unadorned language of the article to which attention must be directed" (at para. 148). This does not, in my view, involve any great departure from the conventional approach to construction of an English statute. The plain meaning rule (see Bennion on Statutory Interpretation, 5th ed. at 548-551) aims to produce an informed interpretation. An informed interpretation is one that leaves no doubt that the grammatical meaning is consistent with the inferred intention of the legislator. When considering wording in an international treaty, an informed interpretation necessitates due regard being paid to the 1971 Vienna Convention on the Law of Treaties and in particular to the general rule of interpretation laid down in Article 31 and to the supplementary means of interpretation in Article 32 (Bennion at pp. 682-691). In my judgment, Lord Diplock in The Hollandia and Lloyd LJ in Kenya Railways v Antares were not suggesting a different approach when they pointed out that an international convention passed into English law by being contained in a Schedule to an English statute was "directly enacted statute law".
30. I would reject any suggestion that, because the 1987 Order extended the Convention to cover domestic voyages, the wording which this court has to construe in Article 16 in the context of this domestic voyage is not the wording of an international convention. The approach to construction should be the same as would be adopted if the voyage had been international carriage within Article 1. There is no warrant for supposing that, by extending the application of the Convention in the 1987 Order, Parliament intended carriers performing domestic voyages to be subject to a different regime than carriers performing international carriage.
31. The objective interpretation I give to the words "Any action for damages … shall be time-barred after a period of two years" in Article 16.1 is that no action for damages arising out of personal injury to a passenger can be brought against the carrier after two years have elapsed from the date of disembarkation. This includes an action seeking contribution to such damages. If I was ignorant of the English rule and the assumption underpinning it (viz. that limitation provisions are procedural and not substantive, and that they bar the remedy not the right unless clearly otherwise stated), I would interpret a bar on pursuing the remedy as equivalent to extinguishing the right of action. I regard the long-stop time limit in Article 16.3 ("… but in no case shall an action … be brought after the expiration of a period of three years …) as having the same effect. Mr Ross argues that construing these provisions as extinguishing the right of action divorces the wording from its domestic context. In my judgment that is precisely what the court is enjoined to do if it is construing an international convention "on broad principles of general acceptation". It must approach the "unadorned language" without reference to domestic law and having regard to its international context.
32. I acknowledge that there are decisions of English courts of high authority which have construed similar wording as barring the remedy only. None are decisions on the Athens Convention and those that concern similarly worded limitation provisions in other international conventions are at least 30 years old and pre-date the passing of the Foreign Limitation Periods Act 1984 and the developments in private international law, such as Rome II, which accord primacy to the lex causae. They should for that reason be treated with caution, for the views which they express would probably be different today. Furthermore, there has not always been unanimity amongst English lawyers as to whether a particular limitation wording has a procedural or substantive effect. It may do in one context but not in another. For example, McGee (in paras. 15.010 to 15.012 of the 5th ed.) expressed the view that a purposive construction of the longstop limitation period in section 14B(1) of the Limitation Act 1980^[4] should lead to the conclusion that it extinguishes the right. However, the Court of Appeal in Financial Services Compensation Scheme Ltd v Larnell (Insurances) Ltd [2006] QB 808, disagreed with that view and held that it did not extinguish the right (see Lloyd LJ at paras. 43-48 and Moore-Bick LJ at paras. 66- 72). By contrast, very similar statutory wording to section 14B(1) was employed in section 5(1) of the Carriage by Air Act 1961^[5] in order to give effect to Article 35 of the Montreal Convention (identical to the former Article 29 of the Warsaw Convention). Article 35 plainly extinguishes the right of action. It follows that the wording in section 5(1) must be construed as having that effect.
33. I am not persuaded that the chronology point is of great weight either. No doubt Parliament had the distinction between prescriptive and procedural time limits in mind when passing the Civil Liability (Contribution) Act 1978. If so it must also have had the distinction in mind when signing the Athens Convention in 1974 and when passing the Merchant Shipping Acts 1979 and 1995. Mr Ross' point is that Parliament could have included a saving provision for contribution claims in the 1979 Act (like section 5(2) of the Carriage by Air Act 1961). He says that it must be assumed that Parliament did not do so because it thought it was unnecessary, since the wording of Article 16 was plainly to be construed as imposing a procedural bar only. I do not think it is safe to assume that Parliament had such insight. Even if it is, this court is being asked to construe Article 16 of the Athens Convention in 2013 not in 1979. The question is what construction should be placed on the time bar provisions in Article 16 today – or more precisely, 2 years after Dr Feest disembarked from the Celtic Pioneer i.e. in August 2010.
34. The argument that it would be unfair to treat the limitation provisions in Article 16 of the Athens Convention as substantive has some superficial attraction. But it is only in my view a point of substance if that interpretation would be bound to work injustice in most instances. That is not the case. The best the appellant can say is that it would do in this instance. The unfairness arises only where a party other than the carrier is first sued and the time limit for suing that party under the domestic law of a signatory state is longer than the time limit for suing the carrier under the Convention. This does not in my judgment offend any rule of English public policy.
35. Unfairness is not a strong argument in the field of limitation. Time limits can and sometimes do produce harsh results. They are justified by the corresponding benefits of certainty and the desirability of suit being brought within a short time frame (see Mocatta J in The Himmerland [1965] 2 Lloyd's Rep. 353 at 360 RHC on the potential impact of the 3 month time limit in the Centrocon arbitration clause). It can equally be said that allowing the contribution claim to be brought against the carrier in this case would circumvent not only the 2 year non-extendable time limit in Article 16.1 but also the long-stop time limit in Article 16.3, and defeat the stated aim of the Convention that claims against carriers in respect of death, injury or loss should be initiated within the periods specified in that Article. If there is unfairness in the interpretation of Article 16 which I have arrived at in this judgment, it lies in the omission from the Athens Convention and from the Merchant Shipping Acts 1979 and 1995 of any provision to cater separately for contribution proceedings. That can be remedied by legislation in the UK without doing violence to the interpretation of the limitation provisions in Article 16 which I consider most closely accords with "broad principles of general acceptation".
36. For these reasons, albeit different from those of the district judge, I dismiss the appeal.

Note 1   Article 29 now appears in identical terms as Article 35 of the Montreal Convention 1999 which superseded the Warsaw Convention and applies in the UK by the Carriage by Air Act 1961 as amended. For a summary of the legislative history see Lord Wilberforce in Fothergill v Monarch Airlines Ltd [1981] AC 251 at 271G-272C    [Back]

Note 2   The status of the original 1974 Convention, the 1975 Protocol, the 1990 Protocol and the 2002 Protocol can be found at: www.imo.org/About/Conventions/StatusOfConventions. 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.    [Back]

Note 3   See Dicey Rule 249 in the 15th ed. and s.15A of the Private International Law (Miscellaneous Provisions) Act 1995 inserted by Regulation 2 of the Law Applicable to Non-Contractual Obligations (England and Wales and Northern Ireland) Regulations 2008 (SI 2008/2986).    [Back]

Note 4   “An action for damages for negligence … shall not be brought after the expiration of fifteen years from the date … on which there occurred any act or omission— (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) ...”    [Back]

Note 5   “No action against a carrier’s servant or agent which arises out of damage to which any of the Carriage by Air Conventions applies shall, if he was acting within the scope of his employment, be brought after more than two years …”    [Back]