Package Holidays and Athens Convention

• Can you sue under (Package Travel, Package Holiday and Package Tour Regulations 1992 if accident occurred on a Ship?
• YES
• BUT - tour operator can use Athens Convention to limit your liability
• Package Holiday regs 15.3 (3) In the case of damage arising from the non-performance or improper performance of the services involved in the package, the contract may provide for compensation to be limited in accordance with the international conventions which govern such services

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• This allows tour operator to limiting his liability in terms of the convention. Otherwise tour organiser would be liable to pay higher compensation than the carrier
• MUST be incorporated into the contract
• But liability will be governed by Package holiday regs NOT Athens Convention

Lee v Airtours holidays Ltd (2004) Lloyd's Re

• Property damage
• Passengers on a cruise lost goods in a fire- claimed against tour operator under the Package Travel Regs. Could tour operator limit its liability in accordance with the Athens convention? .
• Held- no. Tour company were carriers within the meaning of the Athens convention BUT the package holiday regs “represent an alternative regime which insofar as it conflicts with UK domestic law, must prevail”
• Had liability been in dispute claimants would have had to prove fault- this would be presumed under the Athens Convention.

Norfolk v y Travel Group Plc (unreported Plymouth County Court 21 August 2003

• Defendant was a tour operator – supplied package holdiay including a cruise. Clamaint slipped and fell. Raised proceedings against tour operator relying on Package holiday regs Did 2 year time limit apply? Held- yes.
• Claimant tried to argue that the Package Travel regs provided a seperate scheme which implicitly excluded the Convention limitiation period?
• Judge disagreed. If this was the case regulations would have done so explicitly

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Non Athens shipping cases?

• Athens convention applies ONLY to passengers under a contract of carriage
• Employees- not under a contract of carriage
• Athens convention doesn't apply
• No cap on damages
• Time limit - as per applicable law

Jurisdiction?

• No special rules – General rules under Brussels 1 will apply
• Locus OR
• Domicile of defender

Contract

• May also found jurisdiction based on contract of employment- under Brussels 1 a claimant can found jurisdiction in a claim based on a contract of employment in the courts of the defender’s domicile or in the place where the employee habitually carries out his work

LOCUS?

• Either where breach of duty takes place or where damage sustained . eg negligent maintenance work while docked in a Scottish port but causing injury on the high seas?
• Accident on High Seas? Generally accepted that law of country of registration applies

Applicable Law?

• if the claim is in contract regular rules apply 1) parties can choose the law by which the law of the contract is to be governed 2) in the absence of an express choice 1) law of the country in which employee habitually carries out his work 2) country in which the place of business through which he is engaged is situated or 3) law of another country with which it appears from the circumstances as a whole the contract is more closely connected

Delict

• Locus delicti
• territorial waters- that country's law
• High Seas? generally accepted view is that the law of the flag applies

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• What if UK registered ship but accident occurs in foreign territorial waters?
• Traditional view is that that country's law applies BUT
• Rome ii permits law of the place of the injury to displaced if there is a closer connection with another country’s laws

Liability?

• Pre-Enterprise Act- Six pack regulations specifically excluded ships
• Instead?

Result?

• Can still use regulations applicable to ships IF they impose civil liability
• Not all Regulations under the Merchant Shipping Act impose civil liability

s85 Merchant Shipping Act 1995

• Empowers secretary state to make safety regulations for “securing the safety of United Kingdom Ships and persons on them “ and “for securing the safety of other ships and persons on them while in UK waters”
• Post Enterprise Act?
• S 69 amends Health and Safety Act 1974 NOT Merchant Shipping Act

MERCHANT SHIPPING AND SHIPPING VESSELS (HEALTH AND SAFETY AT WORK) REGULATIONS 1997

• 5.—(1) The employer shall ensure the health and safety of workers and other persons so far as is reasonably practicable, which duty shall be met by the application of the following principles— (a)the avoidance of risks, which among other things include the combating of risks at source and the replacement of dangerous practices, substances or equipment by non-dangerous or less dangerous practices, substances or equipment; (b)the evaluation of unavoidable risks and the taking of action to reduce them; (c)adoption of work patterns and procedures which take account of the capacity of the individual, especially in respect of the design of the workplace and the choice of work equipment, with a view in particular to alleviating monotonous work and to reducing any consequent adverse effect on workers' health and safety; (d)adaptation of procedures to take account of new technology and other changes in working practices, equipment, the working environment and any other factors which may affect health and safety; (e)adoption of a coherent approach to management of the vessel or undertaking, taking account of health and safety at every level of the organisation; (f)giving collective protective measures priority over individual protective measures; and (g)the provision of appropriate and relevant information and instruction for workers. (2) Without prejudice to the generality of the duties under paragraph (1), the matters to which those duties extend shall include in particular— (a)provision and maintenance of plant, machinery and equipment and systems of work that are, so far as is reasonably practicable, safe and without risk to health; (b)arrangements for ensuring, so far as is reasonably practicable, safety and absence of risk to health in connection with the use, handling, stowage and transport of articles and substances; (c)such arrangements as are appropriate, having regard to the nature of, and the substances used in, the activities and and size of the operation, for the effective planning, organisation, control, monitoring and review of preventive and protective measures; (d)provision of such information, instruction, training and supervision as is necessary to ensure the health and safety of workers and that of other persons aboard ship who may be affected by their acts or omissions; (e)maintenance of all places of work in the ship in a condition that is, so far as is reasonably practicable, safe and without risk to health; (f)arrangements to ensure, so far as is reasonably practicable, that no person has access to any area of the ship to which it is necessary to restrict access on grounds of health and safety unless the individual concerned has received adequate and appropriate health and safety instruction; (g)provision and maintenance of an environment for persons aboard ship that is, so far as is reasonably practicable, safe and without risk to health; (h)collaboration with any other persons covered by regulation 4 to protect, so far as is reasonably practicable, the health and safety of all authorised persons aboard the ship or engaged in loading or unloading activities in relation to that ship

others provisions-

• reg 7 - duty to make risk assessmentsr
• reg 12- duty to train

Cairns v Northern Lighthouse Board and anor

• Pursuer employed by the first defender (Lighthouse Board )–sennt to the Isle of May by boat to look at a lighthouse . Boat owned by the second defenders. Sustained injury when she fell off a bench in choppy sea .
• Sued her employer and boat owner in terms of reg 5 of the Merchant Shipping and fishing vessels (Health and Safety) regulations and at common law
• Second defs (boat owners) argued- no civil liability under the regs
• First defs argued- pursuer was a passenger on a domestic voyage
• Common law/ case under regulations irrelevant

Held (Lord Drummond Young)

• Clear from the authorities and the EC directive on which the regulations were based that they imposed civil liability
• Athens Convention DID apply
• Second defenders hadn't pled it!
• Fist and second defenders jointly and severally liable under the regulations.

Thanks you and goodbye

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