The areas of work in which we have particular expertise, experience and excellence.
The areas of work in which we have particular expertise, experience and excellence.
Articles, News | Mon 18th Sep, 2023
This week’s Dekagram features carriage by air, sea and torpedo, and some interesting developments brought to our attention by our network of friends. We’re very grateful to our readers for keeping us so well-informed; we aim to reciprocate and to pay it forward in this week’s edition.
Assisted Air Travel Bill Launched
This week members of the team were honoured to be invited to attend the launch of the Assisted Air Travel Bill at the House of Commons. The Bill, which has cross-party support, is intended to bestow the same dignity on all air travellers regardless of whether they require assistance or not. It is unusual in that it is supported both by advocates for disabled people and by industry players, and is, crucially, proposed by a group, Rights on Flights, which is led by people with reduced mobility.
The five tenets of the proposed bill are harmonisation, inclusion, transparency, accessibility, and fairness. The intention is that the Bill will simplify the presently confusing patchwork of legislation regarding accessibility rights in this context, not least as a result of the exclusive operation of the Montreal Convention. The Bill regards mobility aids as an extension of the passenger’s body, reasoning that (for example) for a person who is wheelchair dependent his or her wheelchair is as necessary to mobility as another passenger’s legs might be. How this principle might mesh with other areas of law, and in particular the criminal law, is perhaps debatable; but there seems no good reason why particular rules should not apply in the context of air travel, much as the word ‘accident’ has an autonomous meaning under the Montreal Convention.
The Bill proposes a number of important adjustments to be made by airports, carriers and tour operators, including the following:
Violations of obligations under the Act would carry fixed penalty charges varying between £50 and £100,000, depending on the nature of the obligation and the number of previous violations.
Comment
There can be no doubt that accessible air travel is on legislators’ minds at the moment, with the USA in particular leading the way in requiring carriers to provide accessible lavatories over the next ten years. With advances in technology such as anchoring systems rendering greater accessibility within grasp, we can expect to see more legislation forthcoming on both sides of the Atlantic in the medium term. And this is surely something the industry will embrace; there are over 11 million people in the UK with a disability, and well over one million wheelchair users. Airlines, tour operators and travel agents prepared to work with accessibility rights groups to find solutions to accessibility issues seem more likely to benefit from changes in the law than those that bury their heads in the sand and hope that people with reduced mobility will quietly go away. From what we saw at the House of Commons on Thursday, that possibility seems a remote one.
Many thanks to Chris Wood for inviting us to attend the launch event at the House of Commons and for almost introducing us to Penny Mordaunt.
Warning on the Use of Rigid Inflatable Boats Launched
The Marine Accident Investigation Branch issued Safety Bulletin 3/2023 on 15th September 2023 in response to a serious spinal injury sustained by a passenger during the course of a RIB ride. The Bulletin urges operators to review their procedures and ensure that they accord with existing guidance, particularly around risk assessments and safety briefings in relation to those passengers seated in the front third of the RIB’s length.
The Bulletin Summary reads as follows:
On 7 June 2023, a passenger on a sea safari rigid inflatable boat (RIB) suffered a spinal injury that left them paralysed from the waist downwards. Twelve passengers had boarded the RIB and, once it was clear of the jetty, the two crew gave them a safety briefing and instruction on the wearing of lifejackets. The RIB then proceeded out to sea and was increasing speed in choppy sea conditions when it encountered a steep-sided wave. The boat fell off the wave and slammed violently into the trough, dislodging the passenger from a seat at the forward end of the boat.
Safety issues
Safety lessons
Owners and operators of small commercial passenger vessels are strongly advised to:
Comment
The Bulletin will be of assistance to those practitioners dealing with RIB accident cases, in particular those representing claimants. It references the RYA Code of Practice on passenger safety on small commercial high speed craft and experience rides, which, although voluntary, is a good starting point for those considering the nature and extent of the duty owed by RIB operators. An investigation report into the incident itself will be published in due course, and it is anticipated that that will provide further food for thought in respect of this class of accidents, which although not prevalent can and frequently do cause life altering injuries.
Many thanks to Dariusz Gozdzik for bringing this Bulletin to our attention.
Torpedo Launched
On 7th September 2023 the Court of Justice of the European Union handed down judgment in Charles Taylor Adjusting Limited v Starlight Shipping Co, Overseas Marine Enterprises Inc, Case C-590/21 relating to the recognition and enforcement of judgments under the Brussels Convention (Regulation (EC) No.44/2001), the precursor to the recast Brussels Convention (Regulation (EC) No.1215/2012). After the end of the transition period provided for by the Withdrawal Agreement following Brexit, this judgment is perhaps of more historical than current interest, but given the number of ongoing cases first brought under either the Brussels or the recast Convention, it may be useful for cross border practitioners to be aware of the outcome.
On 3rd May 2006 the Aexandros T sank with the loss of its cargo. Its owner and operator requested that their insurer meet what were said to be its obligation to indemnify them under the insurance contract. The insurer refused the indemnity, and accordingly Starlight, the owner, issued proceedings in England and filed a request for arbitration. Whilst this was pending, however, Starlight, OME and the insurer entered into a settlement agreement settling all claims between them. The settlement agreement was ratified by the English court, which ordered a stay of all proceedings in the usual way.
Shortly thereafter Starlight and OME issued proceedings in Greece against Charles Taylor, the insurer’s loss adjustor, which had defended the claim on their behalf in the English courts, and against the insurer. The claimants alleged that while the first set of proceedings were unresolved the defendants had spread the false rumour that the loss of the Aelxandros T was caused by serious defects in the vessel of which the owners were aware. These rumours had reached the ears of the insurance market, and in particular the owners’ mortgage creditor, causing the claimants loss and damage.
In response, Charles Taylor and the insurers issued proceedings in the English courts seeking a declaration that the Greek proceedings had been issued in breach of the settlement agreement.
On 26th September 2014 the English High Court gave judgment in favour of the insurer and loss adjustor. On 7th January 2015 the Greek courts granted their application for recognition and partial enforcement of that judgment in accordance with the provisions of the Brussels Convention.
Starlight and OME appealed this order, and on 1st July 2019 the appeal was allowed by the Greek appeal court on the ground that the judgments in respect of which recognition and enforcement were sought contained ‘quasi anti-suit injunctions’ which precluded the persons concerned from bringing an action before the Greek courts, in breach of Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950, and Article 8(1) and Article 20 of the Syntagma (Greek Constitution), articles which (it was said) ‘go to the very heart’ of the concept of ‘public policy’ in Greece.
Charles Taylor and the insurer brought an appeal on a point of law against that judgment before the Areios Pagos (Court of Cassation, Greece), which was the referring court. They submitted that the judgment and orders of the English High Court were not manifestly contrary to the public policy of either Greece or the European Union.
Article 34(1) of the Brussels Convention provides that a judgment shall not be recognised if such recognition is manifestly contrary to public policy in the Member State in which recognition is sought.
The CJEU considered the tortured procedural history of the various claims. It made the preliminary point that the Brussels and recast Brussels Conventions will apply to the recognition and enforcement of English judgments in all cases instituted before the end of the transition period, namely 31st December 2020. It follows that judgments in the avalanche of claims brought in November and December 2020 will be affected by this decision.
The Court put the point snappily:
the referring court is asking, in essence, whether Article 34(1) of Regulation No 44/2001, read in conjunction with Article 45(1) thereof, must be interpreted as meaning that a court or tribunal of a Member State may refuse to recognise and enforce a judgment of a court or tribunal of another Member State on the ground that it is contrary to public policy, where that judgment impedes the continuation of proceedings pending before another court or tribunal of the former Member State, in that it grants one of the parties provisional damages in respect of the costs borne by that party on account of its bringing those proceedings on the grounds that, first, the subject matter of those proceedings is covered by a settlement agreement, lawfully concluded and ratified by the court or tribunal of the Member State which gave that judgment and, second, the court of the former Member State, before which the proceedings at issue were brought, does not have jurisdiction on account of a clause conferring exclusive jurisdiction.
It answered that question in the affirmative. The English order had the effect of discouraging Starlight and OME from bringing proceedings before the Greek courts and was therefore a ‘quasi anti suit injunction’, which was prohibited by Article 45(1). It was therefore open to the Greek court to refuse to recognise it if it was manifestly contrary to Greek public policy, as alleged.
The Court concluded:
In the present case, the judgment and orders of the High Court – which, in accordance with paragraph 27 of the present judgment, could be classified as ‘“quasi” anti-suit injunctions’, in that they indirectly influence the continuation of proceedings brought before the courts of another Member State – are contrary to the general principle which emerges from the case-law of the Court that every court seised itself determines, under the applicable rules, whether it has jurisdiction to resolve the dispute before it (see, by analogy, judgments of 10 February 2009, Allianz and Generali Assicurazioni Generali, C‑185/07, EU:C:2009:69, paragraph 29, and of 13 May 2015, Gazprom, C‑536/13, EU:C:2015:316, paragraph 33).
Such ‘“quasi” anti-suit injunctions’ run counter to the trust which the Member States accord to one another’s legal systems and judicial institutions and on which the system of jurisdiction under Regulation No 44/2001 is based (see, by analogy, judgment of 10 February 2009, Allianz and Generali Assicurazioni Generali, C‑185/07, EU:C:2009:69, paragraph 30).
Under those circumstances, as the Advocate General observes in point 53 of his Opinion, subject to the examination to be conducted by the referring court, the recognition and enforcement of the judgment and orders of the High Court are liable to be incompatible with public policy in the legal order of the Member State in which recognition and enforcement are sought, inasmuch as that judgment and those orders are such as to infringe the fundamental principle, in the European judicial area based on mutual trust, that every court is to rule on its own jurisdiction.
Furthermore, that type of ‘“quasi” anti-suit injunction’ is also such as to undermine access to justice for persons on whom such injunctions are imposed. As the European Commission has pointed out, by granting, in the form of provisional damages, the costs borne by the defendant as a result of having brought proceedings which are pending before a court of the Member State in which recognition and enforcement are sought, such compensation makes it more difficult for the applicant to continue those proceedings, or even prevents that applicant from doing so.
It appears, then, that the litigation is likely to continue – at least for the time being. It will now be for the Greek courts to determine whether recognition of the English order contravenes Greek public policy; and, if it would, to determine whether under Greek law the claim can be pursued notwithstanding the terms of the English settlement agreement. We can confidently expect years of happy litigating to come.
Comment
This determination underlines the point made by cross border specialists throughout 2020 and thereafter that cases brought before the end of the transition period will be governed by the recast Brussels Convention (or, if historic, by the original Convention). Judgments in these cases are likely to be far easier and cheaper to enforce outside the jurisdiction than claims issued thereafter, with questions likely to be raised about the wisdom or otherwise of failing to issue claims governed by the Conventions until after the end of the transition period. Again, we can confidently expect years of happy litigating to come, unfortunately in the professional negligence sphere in relation to claims which could have been brought during transition but were not, and in respect of which judgments cannot now be enforced.
Many thanks to Georgios Natsinas for bringing this decision to our attention.
About the Author
Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at Deka Chambers, Matthew Chapman KC, Jack Harding, Dominique Smith, Tom Yarrow and Henk Soede, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases. She was appointed a KC in March 2023.
Call: 1997 Silk: 2023
