CANTERBURY COUNTY COURT

Transcription

1 [2017] Vol 1 LLOYD S LAW REPORTS 13 Canterbury CC] PART 1 CANTERBURY COUNTY COURT August; 21 September 2016 COLLINS v LAWRENCE Before His Honour Judge SIMPKISS Practice Limitation of time Personal injury Claimant passenger disembarking from boat after fishing trip Claimant slipping on plywood board placed on shingle at foot of freestanding steps Whether accident occurred while in course of disembarkation Whether claim time-barred Athens Convention On 14 November 2010 the claimant went on a sea fishing trip on a boat owned by the defendant. On the boat s return to Deal, Kent, it was winched up the shingle beach, and the claimant disembarked by stepping from the boat onto a platform at the top of a set of freestanding steps which led down on to the shingle. When the claimant stepped on to the shingle he slipped and fell, sustaining personal injury. The accident was caused (as the judge found) by the claimant s stepping onto a large plywood board that had been placed on the shingle at the foot of the steps. The board was wet because of the conditions. In the claimant s action against the defendant for damages for personal injury for negligence and breach of the common law duty of care under the Occupiers Liability Act 1957, the defendant contended that the accident occurred while the claimant was in the course of disembarkation from the boat within the meaning of the Convention Relating to the Carriage of Passengers and their Luggage by Sea 1974 (the Athens Convention), which provides for a twoyear limitation period. It was common ground that if the Convention applied the limitation period expired before the claim was brought, and that there was no provision extending time. Article 1(8) of the Athens Convention provided: carriage covers the following periods: (a)... 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 during which the passenger and his cabin luggage are transported by water from land to the ship or vice-versa, if the cost of such transport is included in the fare or if the vessel used for this purpose of auxiliary transport has been put at the disposal of the passenger by the carrier. However, with regard to the passenger, carriage does not include the period during which he is in a marine terminal or station or on a quay or in or on any other port installation;... The claimant submitted that the Athens Convention did not apply because the accident occurred after the claimant had completed his disembarkation from the boat. He had disembarked once he had stepped out onto the platform at the top of the steps. Alternatively, disembarkation was complete once the claimant reached ground level from the steps, which was when he stepped onto the plywood board. Held by Canterbury CC (HHJ SIMPKISS) that disembarkation was not completed until the claimant was established safely on the shingle beach. The plywood board at the foot of the steps had been placed there as part of the disembarkation equipment. Its function was to aid the passenger s disembarkation down the steps onto the shingle. Accordingly, the accident occurred while the claimant was still disembarking from the boat, so that the Athens Convention applied and the claim was timebarred ( see paras 38 to 42). The following cases were referred to in the judgment: Adatia v Air Canada (CA) [1992] PIQR 238; Feest v South West Strategic Health Authority (CA) [2015] EWCA Civ 708 ; [2015] 2 Lloyd s Rep 652 ; Phillips v Air New Zealand Ltd [2002] EWHC 800 (Comm); [2002] 2 Lloyd s Rep 408 ; [2002] 1 All ER (Comm) 801 ; Sidhu v British Airways plc (HL) [1997] 2 Lloyd s Rep 76 ; [1997] AC 430 ; South West Strategic Health Authority v Bay Island Voyages (CA) [2015] EWCA Civ 708 ; [2015] 2 Lloyd s Rep 652. This was the trial of the action brought by the claimant Dr Paul Collins against the defendant Mr David Lawrence for damages for personal injury sustained after completing a fishing trip on the defendant s vessel Gary Ann. Sarah Prager, instructed by Your Lawyers Ltd, for the claimant; Jonathan Chambers, instructed by DBG Solicitors, for the defendant.

2 14 LLOYD S LAW REPORTS [2017] Vol 1 HHJ SIMPKISS] [Canterbury CC The further facts are stated in the judgment of HHJ Simpkiss. Judgment was reserved. Wednesday, 21 September 2016 JUDGMENT His Honour Judge SIMPKISS: Introduction 1. The claimant is a GP working in Deal, Kent. On 14 November 2010 he went on a sea fishing trip with some other fisherman in a boat called Gary Ann which was owned by the defendant. The day was a wet one and they returned early for reasons which are not entirely agreed. In order to disembark from the boat, the practice was to winch it up onto the shingle of Deal beach. The occupants then disembark by stepping from the boat onto freestanding steps which lead down onto the shingle. When the claimant stepped onto the shingle he slipped and fell. This caused him to over-flex his left knee joint, rupturing his quadriceps tendon. This needed to be repaired by surgery. 2. The claimant says that the accident was caused by his stepping onto a large plywood board placed at the foot of the steps. This was wet because of the conditions. He claims damages for personal injury for negligence and breach of the common law duty of care under the Occupiers Liability Act The defendant denies that there was any board placed at the foot of the steps and says that the claimant stepped onto the shingle and slipped at that stage. He therefore denies liability. If there was a board, then breach of duty is still denied and there is an additional defence that the claim is governed by the Convention Relating to the Carriage of Passengers and their Luggage by Sea 1974 ( the Athens Convention ) which provides for a twoyear limitation period. It is common ground that if it does apply, then the limitation period had expired before the claim was brought and that there is no provision extending time. 4. In practice there were two central issues in this case: (a) Was there a board at the foot of the steps? (b) If so, did the accident occur while the claimant was in the course of disembarkation within the meaning of the relevant provisions of the Athens Convention? The witnesses 5. I heard evidence from the claimant and from the defendant. The defendant called evidence from two of the other fishermen (Fred Marsh and Robert Marsh) and from Keith Holland who was a beach hand who assisted the defendant when launching his boats and in recovering them by winching up onto the shingle. Robert Marsh had been a friend of the claimant until this claim was brought. 6. Both parties had obtained witness statements from Colin Wood, a retired ship s captain, who was also on the fishing trip. His statements were not entirely consistent. In practice he was called by Ms Prager who asked him to confirm his witness statements. At this stage he said that he still believed that there was a board underneath the steps protruding slightly. He explained that this was part of the support for the steps. He was then crossexamined by Mr Chambers. 7. The claimant s evidence has to be treated with a degree of caution for reasons which I will explain later. He has given differing accounts of how he fell over. Whilst some of them are explicable as being recorded in incomplete records (eg the triage notes) or as being consistent but short of particulars, he was unable to give a satisfactory explanation about how he came to say in an MIAB [insurance] form completed by him 10 days after the accident that he had slipped on rubber matting. No one has suggested that there was any rubber matting present and the claimant accepted candidly that he could come up with no explanation for the discrepancy. 8. The witnesses called by the defendant were all trying to give their truthful recollections of what happened. Apart from Mr Wood, they were all adamant that there were no wooden boards at the foot of the steps or on the beach. They said that there never were. Again, I will deal with their evidence in more detail shortly, but it should be noted that formal witness statements were signed more than four-and-a-half years afterwards and I had doubts that they could have recollected the matters which they now say they recall so clearly. 9. The defendant gave evidence and was crossexamined in detail about it. In particular, he was asked to explain some photographs taken from Google Street View which appear to show wooden boards placed on the shingle at the foot of the steps and between his two boats: Gary Ann and Polar Bear. These were taken in His explanation was impressive and convincing about this. He had been working on the two boats. He had removed the old wooden decking from Polar Bear and the board against the concrete promenade was this, showing the damage to the screw holes as a result of his wrenching the decking off. It was waiting to be taken by him to a skip. This is the board which the claimant says that his wife photographed a few days after the accident and

3 [2017] Vol 1 LLOYD S LAW REPORTS 15 Canterbury CC] [HHJ SIMPKISS which he says that he slipped on when it was placed at the foot of the steps. It measures about 8 ft by 4 ft. The other shapes which appear in the Google photographs are, the defendant says, plastic sheets which he places over the windows of the boats when not in use to prevent vandalism. These cannot be described as boards wooden or otherwise. I believed this explanation and the defendant was not seriously shaken in crossexamination. The one area where there is doubt about his evidence is his position at the time of the accident. His account differs slightly from that of his witnesses but that is not in my view surprising. This, however, does not mean that his statement that there were never any boards at the foot of the steps is therefore true. The evidence and fi ndings of fact 10. The claimant is a full-time GP who enjoyed sea fishing. Fred Marsh had been taking fishing parties of his friends out with the defendant for many years at least 10. All of them had fished together before and the claimant had also fished on Gary Ann with Mr Marsh a number of times. The fishing party, with the defendant as skipper of Gary Ann, left first thing in the morning with the intention of fishing all day. There was evidence from the defendant that at about the claimant s wife had phoned him and told him that his mother had been admitted to hospital. The defendant said that the claimant said that there was nothing he could do and that he wanted to continue fishing. The relevance of this evidence is difficult to follow, although it was suggested in crossexamination (inconsistently with the evidence that he wanted to continue fishing) that he was in a hurry to get home and rushed down the steps. The claimant explained that his mother s admissions to hospital were a regular occurrence as she suffered from dementia and sometimes required hospitalised medical help. There is nothing in this point and the reason that the fishing expedition was ended prematurely at was the weather. I find that the claimant was not in any hurry to return and that the accident was not caused by a hurried disembarkation. 11. All the witnesses agreed that they had not embarked at the start of the day using the steps. Gary Ann had been lowered closer to the water s edge and they had climbed aboard using portable steps. None of them had any specific recollection about whether there had been a board at the foot of the steps at the time of embarkation and there is no reason that they should have noticed. 12. On return the boat was winched up the shingle beach and they started to disembark by climbing from the boat onto the platform at the top of the steps. The defendant explained that there had been wooden steps previously similar to those shown in pictures of his other boat, Polar Bear, which lies in the next berth a few feet along the beach. The replacement was part of an old fire escape with a platform and metal steps leading to the beach. The bottom two steps were buried in the shingle. 13. There was some discrepancy between the witnesses accounts of the order in which they disembarked. This is hardly surprising. The defendant says that after he had climbed down to check that the boat was secure, Mr Wood, Fred Marsh and Robert Marsh disembarked first, handing down their fishing tackle and bags to the men on the beach, Keith Holland and Jim Mcintyre Parrson, who helped on shore. The claimant was therefore the last to climb down. He came down (it is common ground that he was facing forwards) the steps with his fishing box on his shoulder and carrying two rods and holding the rail with his right hand. In evidence the defendant explained that he was standing at the back of the steps and was talking to Keith Holland. The defendant may be wrong in his recollection but nothing turns on it. He says that he called to the claimant to take care of the gap between the bottom step and the shingle and then turned away and did not see the slip. 14. Fred and Robert Marsh agree that he and his brother were first off and Robert Marsh says that Colin Wood was next with the claimant last. Colin Wood says that the claimant was last. The claimant also says that he was the last down, recalling handing over fishing tackle to Fred and Robert Marsh. Any discrepancy relates to whether Colin Wood directly preceded him. The claimant says that Fred was before him and he saw Fred slip slightly on the board. The claimant agreed that he was moderately heavily laden with a box on his shoulder and two rods in his hand. 15. The order in which they disembarked, and the precise position of the witnesses on the beach at the time is not going to resolve the factual dispute. This turns on the evidence directly and indirectly relevant to the issue of whether there was a board at the foot of the steps. This comprises the witness evidence, the claimant s previous statements or records of them, the photographs and whether they contradict evidence from the defendant s witnesses that there were never any boards on the beach ever, and the mechanism of the accident and injury insofar as it informs as to the probable position of the claimant s feet when he slipped and therefore of the board he says he slipped on. 16. The claimant s case was criticised because of inconsistencies with previous accounts. The particulars of claim plead that the defendant had

4 16 LLOYD S LAW REPORTS [2017] Vol 1 HHJ SIMPKISS] [Canterbury CC placed a wooden board at the foot of the steps. In his witness statement he says that when he stepped off the steps he walked across a wooden board which had been placed there. He attached a photograph to his witness statement which had been taken by his wife, he says, a few days after the accident. This shows a large board which we now know to have been the old decking of Polar Bear. The claimant drew the position of the board on the photograph annexed to his statement showing that it extended longitudinally from the foot of the steps for its length of about 8 ft. The boat was drawn up on top of some railway sleepers laid crosswise. The claimant s superimposed drawing of the board shows that its left-hand side is level with the lefthand edge of the steps and that the right side is about 1 ft from the nearest sleeper. At the same time that his superimposed drawing was made he also made a sketch plan which shows the board extending to the left of the steps and close to the sleepers. It is latitudinal to the steps and this sketch, although made and served on the defendant s lawyers at the same time, is inconsistent. This suggests that it was an incompetent drawing and not that it was prepared for sinister reasons. Nevertheless, it demonstrates the difficulty which the claimant has in recalling the board. 17. Following the accident, the claimant was taken to Queen Elizabeth Hospital Margate. The triage notes make no reference to slipping on a board, recording his account as slipped from steps catching his left toe (that is a reference to catching it under a sleeper). Later on lost balance and caught left foot under(?) board. There is another entry in the medical notes following surgery which describes the claimant walking, slipping, lost balance, got (l) foot stuck under board. This is not significantly inconsistent with the claimant s case although it lacks particularity. 18. For the purpose of these proceedings the claimant was examined by an orthopaedic surgeon on 1 December The medical report records an account of the accident which must have come from the claimant. He told the expert that he had slipped on a wooden board placed at the bottom of the steps and that in trying to regain his balance he had caught his foot under the sleepers, falling backwards. 19. Mr Chambers criticised the claimant s evidence as being inconsistent and untrue. Looked at individually, the different accounts and drawings of the board which he says was at the foot of the steps is more consistent with an inadequate recollection. The most significant discrepancy is the description of the accident contained in an MIAB document prepared by the claimant on 25 November This was a form to claim the costs of employing a locum while the claimant recovered and was made under an insurance policy for that purpose with MIAB. I accept the claimant s evidence that he would have been entitled to claim this expense whatever the reason for his incapacity and that the cause of his injury was not therefore of any significance. He completed the section describing how the accident occurred as follows: I slipped on wet rubber matting, caught left foot under a wooden plank and fell backwards. The claimant could not think why he had written this. 20. Finally, the claimant suggested at the start of his oral evidence that there were a number of boards. Mr Chambers made much of this but I am satisfied that it was said in confusion and that this is not as significant as Mr Chambers submits. 21. Next Mr Chambers says that the mechanics of the accident do not fit. The claimant is consistent in saying that he fell backwards, having swung round 90 degrees whilst trying to retain his balance. If there had been a large board as he says, then he would have fallen onto the board. In the heat of the moment this might be a detail that he could easily have forgotten, but Colin Wood, the only witness who gives any support to the claimant s case, says that the claimant was lying on shingle. Apart from this aspect, the general mechanics described by the claimant do stack up namely that walking off the steps he slipped on something and lost his balance. This would lead to his trying to regain balance and twisting round. It is certainly plausible that in the course of this motion he caught his left foot under a sleeper and that this caused it to become flexed under his body. 22. I turn to the other witnesses and Colin Wood. Keith Holland was very supportive of the defendant (although his work for the defendant is unpaid). He was fairly dogmatic and reluctant to agree that there was ever any board on the beach. The photographs suggest that in April 2010 there was a board at the foot of the steps which looks very similar to the board identified by the claimant and which the defendant says was the replaced decking from Polar Bear. This looks different from the plastic sheets used to protect the windows of the boats. An earlier photograph (June 2009) shows Polar Bear next to some wooden steps ( Gary Ann is not pictured) and a similar board latitudinal at the foot of the steps although not directly beneath them. Both photographs were taken when the defendant was working on the boats and the area closed off. In those circumstances it is possible that Keith Holland was not present, although he liked being on the beach and chatting so it is unlikely that he never saw the board. There are other boards and pieces of wood shown lying about, although not in line with the steps. 23. While the defendant was adamant that the board was never placed at the foot of the steps

5 [2017] Vol 1 LLOYD S LAW REPORTS 17 Canterbury CC] [HHJ SIMPKISS for the purpose of aiding disembarkation, the photographs showing a similar board in June 2009 and April 2010 suggest that he may not have disposed of it quite so quickly as he now says. Fred Marsh was also adamant that there were never boards but his evidence is also thrown into doubt by the photographs. It may be that he is right and that he never noticed a board until there was an accident why should he? Nevertheless, it is not right to say that there were never boards on this part of the beach and that they were never placed at the foot of the steps. 24. Colin Wood is consistent in saying that there was a board at the foot of the steps. In court he explained why it was there to support the steps but this is probably his attempt to rationalise its presence. He says that it was not a large board. This would be consistent with it being in a latitudinal position. The size of the board is not stated in his statement prepared for the claimant. He says: As I walked across the board I realised it was very slippery. His second statement says: there may have been a board under the steps themselves, suggesting that he is unclear about this. We now know that this would not have been possible. 25. My conclusion is that there probably was a board placed at the foot of the steps as described by the claimant and by Colin Wood. Captain Wood s evidence is of particular significance as he has no axe to grind and no reason to invent this evidence. It was far more convincing than the evidence that there was no board from the defendant s side. While the defendant was generally a convincing witness, and produced a credible explanation for the presence of shapes which looked like boards on the Google photographs, that does not mean that there was not a board at the foot of the steps at the time of disembarkation. When the accident occurred the claimant was in great pain and was concerned much more with getting medical assistance than in recalling how the accident occurred. If, as seems to have been the case, the board had been removed following the accident, then the claimant was always playing catch up in order to establish precisely how he had slipped. As for the claimant s evidence, he says that he slipped on a board. If this is incorrect then he must know this (or at least be untruthfully stating that there was a board when he simply has no idea whether he slipped on a board or on the shingle). Notwithstanding the claimant s inconsistent accounts at various stages, I do not believe that he is inventing this account or that he is bringing an untruthful claim. 26. I therefore find that there was a wet wooden board at the foot of the steps. 27. While Mr Chambers argued that this was not negligent, a wet piece of plywood is a dangerous surface to walk on and constituted a danger which the defendant should have and could have avoided easily by removing it before disembarkation. Whether it had been placed there for the trip or had been left there following works carried out shortly before is not possible to say. It might be said that it was unlikely an experienced person like the defendant would leave such a danger where it was but that is not an answer; even the most experienced sometimes make mistakes, or forget to remove dangers even if they are aware of them. 28. I therefore find that the defendant was in breach of his duty of care to the claimant and that this caused the accident and injury. This leads to the limitation defence which is therefore a live issue. The Athens Convention 29. There was a good deal of common ground between counsel as to the effect of the Athens Convention if it applies to this claim, and I will summarise the undisputed principles: (a) It applies to domestic UK vessel trips such as the present under the Carriage of Passengers and their Luggage by Sea (Domestic Carriage) Order, SI 1987 No 670 (as amended by the Carriage of Passengers and their Luggage by Sea (United Kingdom Carriers) (Amendment) Order 1989). (b) Where the Athens Convention applies it provides the claimant s exclusive cause of action and sole remedy for alleged personal injury suffered ( Feest v South West Strategic Health Authority [2015] 2 Lloyd s Rep 652 (also referred to as South West Strategic Health Authority v Bay Island Voyages ). (c) The claimant accepts that this trip was one to which the Athens Convention applies but says that it did not apply when the accident occurred. The issue is whether the accident occurred during carriage in which case it does apply and the claim is statute-barred. 30. Article 3 of the Athens Convention provides as follows: 1. The carrier shall be liable for the damage suffered as a result of the death of or personal injury to a passenger and the loss of or damage to luggage if the incident which caused the damage so suffered occurred in the course of the carriage and was due to the fault or neglect of the carrier or of his servants or agents acting within the scope of their employment. 31. Article 1(8) provides for the definition of Carriage :

6 18 LLOYD S LAW REPORTS [2017] Vol 1 HHJ SIMPKISS] [Canterbury CC carriage covers the following periods: (a) with regard to the passenger and 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 during which the passenger and his cabin luggage are transported by water from land to the ship or vice-versa, if the cost of such transport is included in the fare or if the vessel used for this purpose of auxiliary transport has been put at the disposal of the passenger by the carrier. However, with regard to the passenger, carriage does not include the period during which he is in a marine terminal or station or on a quay or in or on any other port installation; The first issue between counsel concerned the approach of the court to construing these provisions. There is no authority (English or international) on the meaning of disembarkation under the Athens Convention and Mr Chambers submitted that the travaux préparatoires to the diplomatic conferences which produced the Athens Convention do not assist. Mr Chambers argued that the approach of the English courts to construction of the Warsaw/Montreal Conventions should be applied by analogy. This was because these Conventions governed carriage of passengers and their luggage by air. The English cases of Adatia v Air Canada [1992] PIQR 238 and Phillips v Air New Zealand Ltd [2002] 2 Lloyd s Rep 408 ; [2002] 1 All ER (Comm) 801 (Morison J) set out an expansive interpretation and the latter case deals with embarkation. 33. In Adatia the Court of Appeal considered the test to be applied to article 29 of the Warsaw Convention, which was a limitation provision similar to that in the present case. In Adatia the plaintiff had been injured when trying to free the wheel of his wife s wheelchair, which had become trapped in the travellator upon which they were travelling in the airport building after leaving the aircraft. 34. The Court of Appeal referred to a number of international decisions as to the meaning of disembarkation from which two different tests could be derived. By the first test the passenger had completed disembarkation once he had descended from the aircraft using whatever mechanical means had been provided and had reached a safe point inside the airport building. The second test was tripartite, which required the court to consider: (1) the location of the accident; (2) the nature of his activity; and (3) whether he was under the control of the carrier at the time of the injury. On the facts of the case Sir Christopher Slade (with whom the others agreed) did not feel it necessary to express a view about which test applied but said that he did not think that they were necessarily inconsistent. 35. Ms Prager pointed out the differences between the Athens Convention and the Warsaw/ Montreal Conventions and submitted that the same principles should not apply to both because they were different treaties, involving different methods of transport and negotiations at different times and in different circumstances. There is something to be said for this approach, and the construction of each treaty must take this into account. The House of Lords in Sidhu v British Airways plc [1997] 2 Lloyd s Rep 76 ; [1997] AC 430 applied a purposive approach to... the interpretation of international conventions which have the force of law in this country. It went on to state that the aim of the Warsaw Convention was to unify the rules to which it applies. 36. Finally, in Bay Island, Tomlinson LJ reviewed the authorities and concluded that there was no corpus of international understanding to which the language of article 16 (liability to contribute) should be regarded as extinguishing the right of action. He said as follows (at para 44): The ultimate question is, as Lord Hobhouse observed, what do the actual words mean? That is a question which is prompted by an exclusively domestic enquiry, having nothing to do with problems thrown up by the conflict of laws, is the statutory right to contribution excluded by reason of section 1(3) of the 1978 Act? I can see no justification for departing from the natural meaning of the words in article 16 as confirmed by decisions of high authority. 37. In the first place the court must approach the construction of article 3 in the same way: what is the natural meaning of the words used? Ms Prager submitted that the principles derived from the Warsaw/Montreal Convention cases should not be applied to the Athens Convention. She points out the differences between the articles giving rise to the issue in this case. In the Athens Convention embarkation and disembarkation are used to determine when the carriage has ceased and liability under the Convention ended. The Warsaw/Montreal Conventions differ because they are more concerned with operations in addition to carriage. For example, if the expansive test in Adatia is applied, there may be situations where disembarkation ceases and then resumes according to who has control of the passenger at the relevant time. This is because the wording of article 17 of that Convention could be read as contemplating all operations of embarkation or disembarkation and therefore acts beyond those simply involving coming down the steps

7 [2017] Vol 1 LLOYD S LAW REPORTS 19 Canterbury CC] [HHJ SIMPKISS from an aircraft. Article 17 differs from the Athens Convention in referring to operations of embarking or disembarking. These are different Conventions, negotiated at different times and for different purposes. I agree that care must be taken in drawing any analogies from cases relating to the Warsaw/Montreal Conventions for the purpose of construing this article of the Athens Convention. 38. In practice, I have come to the conclusion that this case does not turn on whether a purposive or expansive approach should be adopted. Whichever it is, I am satisfied that disembarkation was not completed until the claimant was established safely on the shingle beach. 39. Ms Prager submitted that the claimant had disembarked once he had stepped out of the boat onto the platform at the top of the steps. He had left the boat and was in the same position as he would have been if he had stepped onto the quay. The Athens Convention is not concerned with control over the operation of disembarkation but on whether the passenger is being carried or not. This ceases on completion of disembarkation. Here it is useful to look at a number of stages and situations: (a) If the passenger has both feet on the deck of the boat he has not disembarked and is clearly being carried. Article 1(8) clearly envisages that carriage should not be limited to the time when the passenger of luggage was actually on the boat. (b) Once he is firmly and safely established ashore (or on another boat) then he is no longer on board the original boat and, in my judgment, has completed his disembarkation. It is to be noted that, for the purpose of the article, where disembarkation is by boat, then the issue of whether this is part of the carriage depends upon whether the carrier is providing the boat used in the disembarkation. (c) Various methods of disembarkation are used: descent to a quay by a stairway lowered down the side of the ship or a gangway attached to the ship and run ashore by the ship s crew. It is difficult as a matter of natural meaning to conclude otherwise than that the passenger remains on board until he has left the gangway. (d) The boat may be moored alongside a quay so that the passengers step directly from the boat onto the quay with no gangway. In this situation the passenger must have completed disembarkation once he is safely established on the quay. This is the expression used in a number of cases. If, for example, the passenger climbed off the boat and has not yet got his balance on the quay, I cannot see that he had completed disembarkation even if the cause of losing his balance was something on the quay. 40. This case is not completely straightforward and this, no doubt, is reflected in the fact that the parties remain in dispute and have devoted considerable resources to resolving it. The draftsmen of the Athens Convention were no doubt unaware of the methods of disembarkation used on Deal Beach (although there are several significant paintings of boats similarly drawn up on the shingle by, for example, Turner and LS Lowry) and probably didn t contemplate that this issue would get before a court. I find it very difficult to agree with Ms Prager s submission that disembarkation has been completed at the point when the passenger arrives at the top of the steps leading to the beach. Most people would say that it was complete when the passenger had arrived safely onshore and that, in this case, this means on the shingle. The method of embarkation or disembarkation is by steps leading to the shingle. If disembarkation is by boat transfer, then you have disembarked from the original carrier when you are safely aboard the transfer boat. Under the Athens Convention, the definition of carriage is extended to cover the case where the transfer boat is put at the disposal of the passenger by the carrier, which suggests that if that had not been the case then disembarkation would have been completed. 41. Alternatively, Ms Prager argues that disembarkation is complete once the passenger reaches ground level from the steps (in this case stepping onto the board if a board was placed on the shingle) and uses the analogy of a passenger stepping onto the quay. I agree that once safely established on the shingle the passenger is no longer in carriage. If, for example, the claimant had tripped while walking up the beach he could no longer be said to be in carriage, any more than if he had been walking on a quay. On the other hand, if a skipper had placed a rubber mat at the edge of the key, onto which disembarking passengers stepped directly from the boat, I cannot see that it could be said (using the natural meaning) that disembarkation had been completed until the passengers stepped off the mat. 42. In my judgment, if a board had been placed on the shingle at the foot of the steps, as I have found it was, then it must have been placed there as part of the disembarkation equipment (ie to aid the passenger s disembarkation down the steps onto the shingle). This means that I find that the accident occurred while the claimant was still disembarking from Gary Ann and that the Athens Convention applied. The claim is therefore barred by the limitation provision.

8 20 LLOYD S LAW REPORTS [2017] Vol 1 HHJ SIMPKISS] [Canterbury CC Quantum 43. Quantum was agreed at 8,250 subject to liability and contributory negligence. Contributory negligence 44. The claimant s case is that the person who crossed the board before him slipped. I also accept the defendant s evidence that the claimant need not have carried down any equipment since this was normally handed down before descent down the steps. Therefore the claimant did not have both hands free and was aware that the board was a hazard. He should therefore have taken extra care or handed the rods and box to someone. He took on the risk and must therefore share some of the responsibility. I assess this at one-third. Had he succeeded on liability, his damages would have been reduced by one-third. Conclusion 45. For the reasons given above my conclusions are: (a) The accident was caused by the breach off duty by the defendant in placing a board, or allowing a board to remain, at the foot of the steps in extremely wet conditions. (b) The claim is governed by the Athens Convention and is therefore barred by limitation. 46. I will list a further hearing by telephone to deal with any outstanding issues such as costs if the parties are unable to agree them (or at least the appropriate order if a detailed assessment is required as might well be the case).