The Athens Convention is an international convention concerning international carriage and transport and aims to create an international code replacing different domestic rules of different Countries and States. Accidents at sea are governed by the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea 1974. In England and Wales a three year limitation period applies to personal injury claims and there is a similar three year limitation period that also applies in Scotland. Under the Athens Convention the limitation period is only two years, which means that claims for personal injury for accidents at sea must be brought within two years of the date of disembarkation of the passenger.

The Supreme Court recently on 17th October 2018 gave judgment in a Scottish case in an appeal brought following an accident involving a diver Mr Lex Warner, who died during a dive on 14th August 2012. His widow issued proceedings against the motor vessel operators, Scapa Flow Charters (SFC), on 14th May 2015 in Scotland. SFC lodged a defence that the claim was time barred under the Athens Convention because the claim was issued after the two year time period had passed. At first instance the time bar defence was upheld and the claim was dismissed. Mrs Warner appealed to the Scottish Inner House and the Inner House upheld the original decision in relation to her claim as an individual but reversed the order in relation to her claim on behalf of her son finding that her claim as guardian of her son was not time barred and could continue. SFC appealed to the Supreme Court.

The Supreme Court considered the application of suspension and interruption under the Scottish limitation Act and its applicability in relation to the Athens Convention and the two year limitation period. Under the Scottish regime for limitation of actions arising out of the death of a person from personal injuries the three year time bar is disregarded for any time when the pursuer is under a legal disability because he is under the age of 16 years (this is the age of legal capacity in Scotland – in England it is 18 years of age) or because of mental incapacity. The Supreme Court agreed with the decision of the Inner House concluding that Mrs Warner claim as her sons guardian is not time bared by the Athens Convention. The suspension of the running of the limitation period in the child’s claim was not inconsistent with the limitation period under the domestic law of Scotland and the long stop imposed by the Athens Convention that no action under the convention can be brought after the expiration of a period of three years. Mrs Warner’s sons claim was allowed to continue and was not time barred. (Mrs Warner did not appeal against the dismissal of her own claim).