Introduction

Disembarkation refers to the process whereby a person moves from a vessel to a safe position on the shore.  Potential legal issues may arise where a passenger gets injured during his or her disembarkation due to the malfunction of the equipment used to facilitate the disembarkation but that particular equipment in fact belongs to a third party.  More importantly, the occurrence of a disembarkation could affect the limitation period available for pursuing a personal injury claim against the carriers.  This is the situation in Colins v Lawrence [2017] EWCA Civ 2268, to which the Athens Convention 1974 (the “Convention”) applied and in which the Court rejected the claimant’s claim due to the lapse of the limitation period.

Facts

The incident of the case happened in November 2010 when the claimant was about to finish his fishing trip on a fishing boat owned by the defendant.  While the claimant was disembarking from the boat, he fell and suffered injuries at his left knee joint and his quadriceps tendon. 

The claimant commenced legal proceedings against the defendant in respect of his injury in September 2013.  The court below found that the claim was time-barred given the two-year limitation period under the Convention.  Whether or not the Convention applies to a particular scenario would depend upon whether the claimant had “disembarked” from the relevant ship at the time of the incident.  If he did, then the Convention would not apply and thus there would be no issue of limitation period.

In that case, it was found that for a passenger on the fishing boat to disembark, the necessary procedures that the passenger had to take was to winch the fishing boat up onto a shingle beach and then use the freestanding steps, which were merely a semi-permanent structure on the beach, to descend thereon.  The claimant alleged that the reason why he was injured was because while he was using the freestanding steps to descend from the fishing boat onto the beach, there was a wet wooden board at the bottom of the freestanding steps where he slipped and thus caused him loss of balance.  As such, the court below ruled that disembarkation had not completed as the claimant only slipped on the wooden board and thus the claimant's claim was effectively time barred under the Convention.

The Legal Issues

The claimant filed an application for permission to appeal the decision.  The key question that the English Court of Appeal had to consider was whether the application has a real prospect of success, which means that whether the claimant had completed his “disembarkation” from the fishing boat at the time when the incident occurred.  After considering the submissions of the parties, the Court of Appeal ruled that though the freestanding steps which were used to assist the claimant to disembark did not form part of the fishing boat, they, including the board, did constitute to part of the “disembarkation equipment” which was essential to the process of disembarkation.  Accordingly, the Court ruled that a passenger’s disembarkation from the defendant’s fishing boat was not completed until the claimant stepped off that disembarkation equipment. 

The Court also drew an analogy to a situation where disembarkation is to be facilitated by a gangway offered by the shore side.  Though such a gangway would normally be independent of the ship and does not belong to the shipowner, the gangway would nevertheless be regarded as a disembarking equipment, by which a passenger of the ship will use to disembark from the ship to a shore.  Disembarkation would only be considered to be completed until the passenger had already stepped off the gangway. 

The fact that the freestanding steps in Colins v Lawrence were semi-permanently fixed to the beach and the fishing boat could move away from the steps independently would not affect the legal position that the claimant’s disembarkation was not regarded to be completed until he had arrived safely on the beach.  The Court of Appeal agreed with the lower court’s decision that the process of disembarkation should be regarded as covering the entire period that the passenger moves from a ship to a safe position on the shore, and hence while the claimant in that case was still using the steps and board to assist him in disembarking from the fishing boat of the defendant to the beach, the claimant was still in the process of disembarking.  As such, there was no real prospect of success in respect of the appeal and the claimant’s application for permission to appeal was therefore rejected.

Conclusion

For the passengers, it should be noted that unless the injury was caused at the time when the disembarkation has already been completed, any such claim for personal injury against the carrier must be made within the two-year limitation period under the Convention (if applicable) instead of the normal three-year limitation period for usual personal injury claims.

For the carriers, the Court expressly acknowledged the reality that it was usually the carriers which choose to adopt what kinds of equipment for the purposes of disembarkation, whether gangway or freestanding steps.  Therefore, if the equipment that a carrier chooses is not safe for the purposes of disembarkation from its ship, what the carrier should have done is to identify and offer an alternative method of disembarkation in order to enhance the safety for the passengers.

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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.