In what we believe to be the first case of its kind, the splendidly named Local Boy’z Limited sued Malu NV, a Belgian company, for failing to deliver the right kind of face masks. The former had purchased the latter from photographs, but when they arrived it became apparent that they bore no resemblance to the masks depicted in the pictures – nor did they conform to European standard. The Belgian importer’s defence that the distributor had accepted the face masks was rejected, and summary judgment granted in relation to part of the claim (Local Boy’z Ltd v Malu NV [2021] 9 WLUK 53). In other Covid-related news, it is reported that thousands of would-be passengers may be able to bring claims for denied boarding against airlines implementing UK government guidance, which, it seems, may have been inaccurate. Oops. Perhaps they ought to have sought expert advice? On Tuesday 28th September in the latest of our How To series of webinars Sarah Prager and José María Pimentel Pardo will be discussing How To Get The Most Out Of Your Expert; register here to join us for what promises to be an illuminating session.

Casenote: Warner v Scapa Flow [2021] 9 WLUK 52

On 14th August 2012, Mr Lex Warner (“Mr Warner”) was on board the vessel Jean Velaine, which was owned and operated as a dive support boat by Scapa Flow Charters (the “defender”). The skipper of the boat was Mr Andy Cuthbertson, who operates the defender as a sole trader. Tragically, Mr Warner died during the dive after having suffered a fall on the boat. Mr Warner’s widow (the “pursuer”) brought an action for damages against the defender on behalf of Mr Warner’s son pursuant to the Convention Relating to the Carriage of Passengers and their Luggage by Sea 1974 (the “Athens Convention”), given force in domestic law by section 183 of the Merchant Shipping Act 1995 and applied to domestic carriage by the Carriage of Passengers and their Luggage by Sea (Domestic Carriage) Order 1987.

Relevant background

On 14th August 2012, the Jean Elaine had travelled with nine recreational drivers (including Mr Warner) to an unnamed wreck approximately 15 miles north-west of Cape Wrath. After arriving at the location, Mr Warner put on his equipment which included diving fins. Mr Warner put his fins on and walked across the boat, but in doing so tripped and fell over. Lord Sandison found that, on the balance of probabilities, Mr Warner tripped on his own fins while working towards the dive gate [110]. As a result of the fall, Mr Warner suffered internal injuries, but this was not known by anyone at the time. Mr Warner stated that he was fit to dive and thus elected to continue with the dive. In terms of the cause of death, Lord Sandison considered “that the pain from the injury sustained in the fall caused the decision to make an emergency ascent [from 80 metres depth], and that the anxiety and pain which was probably being experienced by Mr Warner during that rapid ascent, together with the effect which the circumstances of the ascent was having on his ability to control his breathing and movements, caused him to become unable to retain his mouthpiece and thus to drown.” [114].

Liability

Article 3(3): Defects in the ship

Under Article 3(3), if Mr Warner’s injury was shown to have arisen from or in connection with a defect in the Jean Elaine, a presumption of fault and neglect on the part of the defender would arise. The criticized features of the Jean Elaine were the slope of the deck and the arrangement of handrails at the time of the fall. However, there was no evidence that the slope of the deck was such as to be in breach of any applicable standard or that it was inherently dangerous. Lord Sandison accordingly found that the slope in the deck on Jean Elaine was not a defect. As regards the handrail, the difficulty for the pursuer was Lord Sandison’s finding that there was a handrail in the vicinity of the fall that Mr Warner could have used, but did not. For that reason, Lord Sandison considered there was no proper basis for finding that the fall would have been prevented had further handrails been in place. In any event, Lord Sandison did not consider the absence of further handrails to constitute a “defect in the ship” [119]. Accordingly, the pursuer was not able to rely on the presumption of neglect and fault which arises out of Article 3(3).

Article 3: Fault and neglect

Alternatively, the pursuer sought to establish that Mr Warner’s injury was caused by fault and neglect on the part of the defendants in that there was no suitable and sufficient assessment of the risks attending the dive support operations carried out by them and that had they undertaken such a risk assessment, they would have become aware of the risks of divers falling on the deck. It was alleged that had such risks been appropriately heeded and minimised so far as reasonably practicable, Mr Warner’s fall would probably have been avoided. The pursuers alleged that the duty to carry out a risk assessment arose out of Regulation 7 of the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997/2962. Lord Sandison considered that, even if there was no domestic instrument requiring a risk assessment, the defenders would in any event have been under such a duty in the exercise of reasonable care for the health and safety of those invited by them on board [125].

It was found that the dive operator had not carried out a risk assessment that recognised sufficiently the risks associated with walking on deck in fins. That was a well-recognised fact in maritime and diving circles. The dive operator was guilty of fault and neglect in terms of Article 3 of the Athens Convention, in that he failed to recognize that the system he had developed permitted or even encouraged divers to walk on deck in fins, which was an inherently risky activity and there were no sufficient mechanisms for eliminating or controlling that risk. The defender should have expressed concerns to divers about walking in fins at the outset of each hire and made it clear that their policy was to eliminate or minimise that practice. Had such a system been in place, the likelihood was that it would have performed its intended function of eradicating or minimising the risk of falling and Mr Warner would not have fallen [133].

Conclusion

For the above reasons, the Judge found that the defender was liable to compensate the pursuer pursuant to Article 3(1) of the Athens Convention, in the sum of £290,000 inclusive of interest to 20th April 2020.

About the Author

Henk Soede was called to the Bar in 2019. Since April 2020, he has been instructed by solicitors for both Claimants and Defendants in cross border disputes, package travel and other related claims. He is eager to build on his experience in these areas​, but accepts briefs in all chambers’ areas of work.

Denied Boarding Claims arising out of UK Government Guidance

Many people (this writer included) have, in the past, renewed their passport before the old one expired, and had the unexpired period from the old passport added on to the expiry date of the new passport. This meant you could have a UK passport which was valid for more than 10 years.

Since the EU Withdrawal Period came to an end at the beginning of this year, UK travellers to the EU (Ireland excepted) have been required to comply the Schengen Border Code rules for ‘third country nationals’ entering the EU (Regulation (EU) 2016/399). These include the following criteria for passports in Article 6(1)(a):-

  1. its validity shall extend at least three months after the intended date of departure from the territory of the Member States…
  2. it shall have been issued within the previous 10 years.

There has been confusion about how these two rules interact. Do the 3 months in (ii) have to be within the 10 years in (i) – meaning that, in effect, your passport has to have been issued within the last 9 years and 9 months? Or can you travel if your passport is (almost) 10 years old, but still has at least 3 months of validity?

At the time of writing, the FCO travel advice for individual EU countries says that “the three months you need when leaving a country must be within ten years of the passport issue date. If you renewed your current passport before the previous one expired, extra months may have been added to its expiry date. Any extra months on your passport over ten years may not count towards the minimum three months needed.”

There have been press reports this week that ‘thousands’ of UK travellers have been denied boarding on flights to the EU on the basis that their passports were (close to) ten years old and the remaining three months extended beyond those ten years.

However, the Independent reported this week that the EU Commission confirmed to it that the rules applied independently – meaning that many of those passengers who were denied boarding would actually have been entitled to travel. And apparently a number of airlines and tour operators have now changed their policies in response.

If correct, could this mean a flurry of ‘denied boarding’ claims from travellers who were prevented from travelling by airlines? Under the Denied Boarding Regulations (Regulation (EC)No 261/2004) no compensation is payable where there are “reasonable grounds to deny (the passenger) boarding, such as… inadequate travel documentation”. Perhaps such claims will be defended on the basis that the rules are ambiguous, and by reference to the government advice. We may well be set for some interesting cases on this in the not-to-distant future!

About the Author

Andrew Spencer was called to the Bar in 2004, and is listed in the Legal 500 as a Band 1 practitioner in travel law. He acted for the Claimant in the seminal case of Japp v Virgin Holidays Limited [2013] 11 WLUK 131, in which the Court of Appeal considered the time at which applicable local standards should be determined for the purposes of liability under Regulation 15(2) of the Package Travel Regulations; but he is equally comfortable acting for Claimants and Defendants in all travel related claims.

…And Finally…

We were intrigued to read that the world’s first airport for flying cars is scheduled to open in Coventry in 2022. It is intended that the airport will initially accommodate electric passenger aircraft and delivery drones, but will then expand capacity to embrace flying cars. The project is being overseen by Urban-Air Port, a London-based company, as part of a deal with South Korea’s Hyundai Motor Group, which is planning to launch its own flying cars by 2028, and eventually it is planned that up to 65 such airports will be constructed close to city centres around the world in order to tackle road congestion and pollution. This hardly seems credible to those of us senior enough to remember going to see Back To The Future at the cinema, but the team has been busily brushing up on our knowledge of the Highway Code and Montreal Convention so as to be ready to deal with the foreseeable potential consequences to airlines and individuals alike.