Disembarkation and liability – a UK Law perspective

“A Tale of Two Passengers”

• Introduction – Growth in the Cruise Market

• UK Law Position

• Case Law – Collins & Jennings

− Background

− Part of the structure?

− Decision – on solid ground?

• Summary

• Lessons - Devil in the detail

• Other types of apparatus? Discussion.

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Contents

Global Cruise Market growing substantially

Cruise Lines International Association (‘CLIA’)

‘state of the industry report’ highlights expected

passengers numbers to be:

• “over 27 million cruise passengers by end of 2018”

• “In excess of 28 million by 2020”

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Introduction

UK cruise market growing as a result …

• The UK cruise market has seen another year of record growth with an 11.2% rise in river cruise and 6.7% increase in ocean cruise sectors.

• 2018 expects there to be over 2 million UK cruise passengers – representing 1 in 9 of every package holiday booked in 2018.

• The average trip is still only around 10 days

• Port of Tyne expect 50 cruise visits from 12 cruise lines in 2018.

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Introduction

What does this mean for ports and terminals?

• More Passengers..

• More responsibility?

• More claims?

Ports and terminals will need to be geared up to deal with new arrivals:-

• Additional facilities for passengers and crew

• Know when ship owner's responsibility ends and terminal operator’s begin.

• Understand the law relating to embarkation / disembarkation

We are going to look at the implications for terminal operators

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Introduction

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UK Law Position

UK Law Position

• The Merchant Shipping Act 1995

Incorporates the…

• Carriage of Passengers and their Luggage by Sea 1974 ("Athens Convention") into UK Law

“A regime that defines the damage suffered by passengers carried on a seagoing vessel”

• And is interpreted by case law in the UK courts.

There have been two recent decisions in relation to carriage of passengers and at what point their respective disembarkations are complete…

• the first in November 2017 - Collins v Lawrence [2017] EWCA Civ 2268,

and

• the second in January 2018 – Jennings v Tui Ltd (T/A THOMSON CRUISES) [2018] EWHC 82 (Admlty)

Let’s look at the cases…

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Case Law – Collins & Jennings

In Collins:

The Claimant went on a sea fishing trip on a boat owned by the defendant. In order to disembark the practice was to winch the boat up onto the shingle beach and then use free-standing steps to descend onto the beach.

• The steps were not part of the boat, they were a semi-permanent structure on the beach.

The Claimant's case at trial was that whilst descending the steps he stood on a wet wooden board at the bottom of the steps and lost his balance. The large plywood board had been provided to passengers to use in order to disembark from the steps down to the shingle.

• The Claimant sustained personal injuries as he slipped on the plywood board.

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Background

In Collins:

• The Claimant wanted to argue that the normal 3 year time limit for the claim applied.

• The Claimant argued that disembarkation was complete when the Claimant stepped over the vessel’s rail and that the Athens Convention time limit of 2 years did not cover the moment of the incident.

• The Defendant argued that because the plywood board was part of the vessel's structure for disembarkation, provided by the vessel, disembarkation was not complete.

• The defendant argued that this meant carriage was therefore ongoing, the time bar would therefore be found in Athens (2 years) and therefore the claim was issued out of time.

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Part of the Structure?

In Collins:

• The court held that until the passenger had disembarked entirely – i.e. on to the shingle beach -he was in the process of disembarking and the fact that he had slipped and fallen on part of the equipment used to disembark meant that he was still a passenger at the time of the injury.

• Hamblen LJ found that disembarkation is only completed when a passenger has reached solid ground and a passenger would therefore still be in the course of disembarkation when on a platform, gangway or ladder leading to or from a vessel to solid ground.

• This meant that the vessel operator was liable for the injuries suffered by the Claimant.

• However, it also meant that the Claimant’s claim was out of time.

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Decision – on solid ground?

In Jennings:

The Claimant was leaving a ship via a covered walkway known as an “airfinger” which was supported at each end by steel legs and running on rails set in the quay.

• This structure could move up and down the quayside as required for different ships' entry and exit points.

The Claimant then crossed over a fixed concrete walkway to access a further section of the concrete walkway (also fixed) which sloped downwards into the terminal building.

• The Claimant slipped and fell on this second sloping walkway suffering injuries.

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Background

In Jennings:

• The Claimant sought to make the vessel operator liable for his injuries.

• The Claimant sought to rely upon the decision in Collins - stating that Athens (and its time bar) applied because the Claimant was still in the process of disembarkation whilst on the walkway and was therefore still within the definition of ‘carriage’.

• The Claimant argued he had not reached ‘solid ground’.

• The Defendant argued that the area in which the claimant fell was a permanent structure which did not form part of the apparatus for disembarkation – and was therefore not the vessel’s responsibility.

• The Defendant therefore argued that they could not be liable for the injuries suffered by the Claimant.

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Part of the Structure?

In Jennings:

• The court accepted the Defendant’s argument and found that whilst the scope of the AthensConvention is generally intended to include disembarkation, this does not apply

“once a passenger has left the ship and has reached spaces or equipment which are clearlynot under the control of the ship.”

• It was held that the walkway leading to the terminal or port constituted a "quay" or "installation"for the purposes of Article 1(8).

• Once the Claimant had stepped onto the walkway leading to the terminal the period of carriagewas over and the Athens Convention no longer applied.

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Decision – on solid ground?

Highlight:

• Embarkation / disembarkation is a very distinct and technical area of changing responsibilities depending upon what process is offered by the vessel or terminal and consequently used by the passenger.

• It is a question of control – who has control at the time? It may not be the ship owners’ liability if the passenger is considered to have disembarked and is then using a fixed structure provided by the terminal.

• After the Collins decision it is likely that the decision would probably apply to passengers boarding or disembarking a ferry, cruise ship or other vessel via a gangplank or via a "sea-bridge“.

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Summary

• Terminal operators using permanent structures to disembark passengers may be liable for injuries within these structures, even if not directing disembarkation at the time.

• This may change depending upon whether the terminal is using a permanent structure or a moving structure.

• Larger vessels may create more issues by requiring flexibility in terms of gangway and/or provision of different types of equipment.

• The the usual imperatives of risk assessments, maintenance, inspections etc continue to apply to any operator / occupier.

• Consider your standard terms and where possible define where disembarkation begins and ends and what structures you will use.

• Consider where does control rest - with whom - at what time?

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Lessons - Devil in the detail

Different types of apparatus may mean different types of liability …

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Other types of apparatus?

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Ferry passengers can also have problems

The Health & Safety Definitive Guidelines 2016

Trend Update 2018

On the 1 February 2016, the Sentencing Council’s Definitive Guideline for Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences came into effect.

• These guidelines are a paradigm shift in the approach taken by the courts regarding sentencing for these types of offences.

• Companies now face the prospect of receiving much higher fines than before for similar types of health and safety breaches.

• “There were 19 fines of £1 million or more in 2016 - the largest being £5 million. This compares with three fines of £1 million or more in 2015 and none in 2014” (source:IOSH).

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Background

The guidelines provide ‘proportionate sentencing’ based upon

1. Determining the offence category (Culpability range from Low to Very High)

2. Determine the level of Harm (Categorized from Low likelihood to High Likelihood)

3. Financial Information (Company size from Micro – to Very Large)

4. Proportionality considered / Adjustment of fine

5. Other relevant factors considered.

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Categorisation

There have been a number of high profile fines since 2016 including:-

• ConocoPhillips fined £3.1m when, due to errors on their part, a natural gas leak filled a room full of people. No one was injured but under the new regulations this fell within the bounds of the new 'Harm Category 1' due to the high likelihood of harm to persons if the gas had caught alight.

• G4S Cash Solutions fined £1.8m in 2016 for bacterial legionnaires located during testing following an employee becoming ill.

• Merlin Entertainment (owners of Alton towers) were fine £5m in September 2016 for catastrophic roller-coaster crash that seriously injured 5 passengers.

• Foodles Productions UK Ltd (owned by Disney) fined £1.6m in October 2016 when Harrison Ford suffered a broken leg and dislocated ankle and was “at risk of death” whilst filming Star Wars: the Force Awakens.

• 'Wilkinsons’ was fined £2.2m in January 2017 when an employee was left paralysed from a faulty system in one of their stores.

• Bupa Care Homes (BNH) Ltd was fined £3m in June 2018 when a resident died having contracted Legionnaire's disease - the care home had filed to implement safety protocols in respect of Legionella bacteria.

• Tuffnells Parcels Express Limited recently fined £1.5m in Sept 2018 when employee fatally crushed when trying to hitch a trailer to a vehicle which rolled into him.

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Case Studies

• In 2015 – only one fine was imposed that exceeded £1.5m.

• In 2016 – there were 12 fines imposed that exceeded £1.5m.

• In 2017 - there were in excess of 17 fines imposed that exceeded £1.5m.

• In 2015 – the total fines imposed was £19m.

• In 2017 the total fines imposed was £69.9m

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Discussion

1600% increase

267% increase

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The New Reality

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Agency Attitudes

The HSE attitude is now one of aggressive intervention:-

• Their funding from DEFRA has been cut each year since 2009/2010• HSE funding by 2019 will be £123m from central government compared to £231m in 2009. • HSE now has to recoup over £80-100m itself.

• In October 2012 HSE were granted statutory powers to recover their costs from those in material breach of H&S law in the UK.

• HSE can now recover costs under Fees For Intervention (“FFI”) based upon an hourly rate of £129.00 until the breach is rectified.

• In order to justify recovery HSE will issue Notices of Contravention or Improvement Notices and issue invoices every 2 months until the material breach has been complied with or the investigation is complete.

• Over £1m in fee invoices by HSE (approximately 1500 invoices) in 2017.

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