When does carriage end for the purposes of the Athens Convention in a modern cruise terminal?
January 22, 2018
In JENNINGS V TUI UK LIMITED (T/A THOMSON CRUISES)  EWHC 82 (Admlty), on 22nd January 2018, the Admiralty Registrar Jervis Kay QC handed down judgment in favour of the Defendant in a very useful decision considering the point at which “carriage” concludes for the purposes of the Athens Convention for the Carriage of Passengers and their Luggage by Sea 1974 as amended by the 2002 Protocol (the “Athens Convention”) in the context of passengers disembarking from a cruise ship at a modern cruise terminal facility.
The decision also considers the liability of a tour operator under the Package Travel, Package Holidays and Package Tours Regulations 1992 (the “Package Travel Regulations”) for those passengers who have completed disembarkation and are within the confines of the cruise terminal facilities.
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 ship via a covered walkway. It was raining heavily. He made his way along an “airfinger”, which was a covered walkway supported at each end by steel legs and running on rails set in the quay. He then crossed over a fixed concrete walkway to access a further section of walkway supported on steel legs which sloped down into the terminal building. As the Claimant was walking through this last walkway he slipped on water and fell, suffering an injury.
The claim was bought 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 building. He also argued the Defendant’s crew members had a duty to warn him of the danger of slipping.
The Court heard evidence from the Claimant, his wife and the Defendant’s hotel manager. No evidence on local standards was adduced.
The claim was dismissed.
The Court accepted that the Claimant fell on the walkway and 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 only a few crewmembers used the passenger walkway into the terminal to assist with identifying luggage and would have no reason to go outside into the rain.
FINDING IN LAW
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  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 vessels 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 whilst 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 leading to the terminal the period of carriage was over and the Athens Convention no longer applied.
In 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 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, transfers and flights such that accident 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 weather 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  EWCA Civ 1538 and rejected the Claimant’s contention that res ipsa loquitur applied to reverse the evidence 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.
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 Regulation 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 reversal of the evidential burden of proof should be contemplated.
The decision does leave two important issues outstanding. Firstly, whilst 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.
The clarification around the definition of the phrase “port installation” is extremely helpful in the context of increasing use of modern port terminal facilities with air fingers and walkways, such as those seen at the Port at Malaga, as opposed to the more traditional use of a gangway from the ship to the quayside.
Miles Fanning Legal is a law firm specialising in the defence of marine claims and those involving injuries sustained whilst on holiday.