Articles
Articles provide useful information on legal issues, cases and legislation
On this page you will be able to find various articles and tips on various sections of law which we hope will assist you.
1. Accident on a cruise liner
Who is Responsible for an Accident Onboard a Cruise Liner? (Part 1)
If, whilst on a cruise, you are unfortunate enough to be involved in an accident resulting in personal injuries, then, you may have to bring a claim under the Athens convention.
The Athens Convention applies to 'International carriage by sea' (as a passenger you would be considered to be international carriage). The provisions of the Athens Convention apply to voyages from ports in the UK that sail directly to their destination and do not have any other midway ports of call. The cruise line is responsible for the safety of their ship's passengers from the point of embarkation, and, ends after the point of disembarkation.
If you suffer an accident at sea or suffer from an illness onboard a cruise ship it is important to clarify whether or not the Athens Convention applies. If it does apply you must remember that you will only have 2 years from the date of the incident which caused your injury in which to commence proceedings in the Admiralty Division of the High Court.
If court proceedings are not issued within this period then you will not be able to make a claim after the two year period has expired. The Athens Convention imposes a belief of fault on the carrier (your cruise-liner) this means that the cruise line must prove the accident wasn't their fault, if, a passenger was injured or became ill during the cruise.
The disadvantage of making a claim under the Athens convention is that there are limits on the amount of compensation that can be claimed for personal injury or death occurring during a cruise at sea as compared to bringing a claim for negligence in common law.
This area of law is complex and there are other rules that may apply
2. The Athens Convention
Discussing the effect of the Athens Convention (Part 2)
The Convention establishes a regime of liability for damage suffered by passengers carried on a seagoing vessel.
As previously stated the Athens Convention is concerned with a carrier's liability to passengers for death, personal injury and loss of or damage to luggage in the course of international carriage by sea and Article 14 of the Convention states that: “No action for damages for the death of or personal injury to a passenger, or for the loss of or damage to luggage, shall be brought against a carrier or performing carrier otherwise than in accordance with this convention”.
What needs to be considered is your legal position when your package holiday includes carriage by sea which is otherwise covered by the Athens Convention?
The question is can you bring a claim further to Regulation 15 of the Package Travel Regulations 1992 without being held back by the articles within the Athen's Convention i.e. if you (the Claimant) are injured on board a vessel, and such injury is caused by the negligence of the carrier or its employees?
Williams & Debling v Fred Olsen Cruise Lines Ltd [2011] Unreported, QB (Admiralty Court)
A Claim was brought by 4 Claimants against Fred Olsen Cruise Lines Ltd. While re-joining the cruise liner in Bilbao, two of the Claimants fell from the gangplank into the sea when the mooring lines on the vessel failed and they swung out from their berth. The claim was defended on the basis that the failure of the mooring lines was the result of an entirely unexpected and unforeseeable extreme weather in the form of a severe gust of wind. Both the Claimants relied on expert opinion evidence from Master Mariners. The Claimants were successful in establishing liability and the Judge found that the Claimants could rely on article 3(3) of the Athens Convention and on res ipsa loquitur (the principle that the mere occurrence of some types of accident is sufficient to imply negligence).
However, it was also found that they had succeeded in proving that negligence or fault was the cause of their injuries quite apart from the assistance of article 3(3) of the Athens Convention.
Based on the outcome of this recent case it would seem that the best way to ensure a successful outcome in the event that you have to make a claim due to an injury sustained whilst on a cruiseliner/boat is to ensure that your claim is made not only alleging negligence but also under the Athens Convention.
3. Injured whilst on holiday
Tips in the event that you are injured whilst on holiday
We sincerely hope you have a happy and safe holiday and that nothing untoward happens while you are away but Affordable Law For You is here to help just in case something goes array
The sun is out and many of us are thinking of going on holiday. Everyone at Affordable Law For You wants you to have a really great time but, in the event that you are a little unlucky and have an accident whilst on holiday, do you know what to do to bring a successful claim when you return home? Well here are some basic tips:
Make sure that you inform your holiday representative, your tour operator and your travel agent of the circumstances of the accident
Write down as full a description of what happened and where it happened
Take photographs (remember you can use the camera on your mobile phone)
If it is car accident, you must the inform the police, remember to take a note of the name and number of the Police Officer you speak to and if possible get a copy of the report
Keep all your receipts and records in respect of treatment, prescriptions, travel expenses, cost of damaged clothing etc
Remember you normally have three years in which to bring a claim, but you do need check the time limits as they many differ in other countries
We hope you have a happy and safe holiday.
4. A contentious camel
Hendry and another v Kuoni Travel Ltd
(Guildford County Court, HHJ Reid QC, 10 - 11 November and 16 December 2011)
A contentious camel was the unlikely subject of the latest in a string of cases examining the duty of care owed by holiday companies for accidents that happen during a holiday excursion.
This case is about the provision of a “Camel Safari” excursion during a holiday by a tour operator to Rajasthan, India. The object of the excursion was very straightforward: the Claimants were to ride on the back of a camel. They were to set off from their hotel. However the camel had it's own ideas just before the Claimants reached the hotel gates. The camel began “making sidesteps in a very jaunty manner” this in turn caused the Claimants to lose their balance and fall off, each sustaining serious injury. The Claimants were accompanied on the safari by the Defendant tour operator's local representative who provided instructions in English. It is also important to point out that the camel handlers or raikas spoke no English. And even more important it was confirmed that the representative used on this occasion by the holiday company had no knowledge of riding a camel and this assignment was his first and only time assisting with the excursion.
The holiday company described the excursion in their brochure as an “optional experience” and “available locally at extra cost”. The Defendant's Booking Conditions provided that “the experience will be supervised and all reasonable precautions will be taken to ensure that you and your party are safe. We will only accept responsibility for personal injury where it is caused by our negligence or the negligence of our suppliers”. The Claimants remained firm in evidence that they had not made a separate booking for this excursion and had not been asked at any stage for payment and so therefore the excursion must have formed part of the package of services provide pursuant to the holiday contract, to which the Package Travel, Package Holidays and Package Tours Regulations 1992 applied. The court held that the excursion had been booked separately and so was outside the scope of the 1992 Regulations. The Claimant's alternative case was that they had made a separate contract for the excursion which was governed by the terms of the Defendant's Booking Conditions; this argument was also rejected by the Judge.
However, this was not the end of the line for the Claimants. Following Parker v TUI [2009] EWCA Civ 1261, they argued - in the further alternative - that the Defendant, in providing a local representative to accompany the excursion and to give instructions beforehand, had assumed responsibility to the Claimants for the reasonable safety of the excursion and, accordingly, owed them a tortious duty of care. It was held that the content of this common law, tortious duty was defined by local standards in accordance with the Court of Appeal's guidance in Gouldbourn v Balkan Holidays Ltd [2010] EWCA Civ 372 (and other case law subsequent to Wilson v Best Travel Ltd [1993] 1 All ER 353 (QBD).
Unsurprisingly, there were no specific statutes, rules or regulations to govern the provision of camel rides and safaris in India. Instead, there was local customary practice and both parties relied on expert evidence of what such practice required. The saddle on the camel's back was simplya seat with a hook-shaped “pommel” at the front which was attached by a rope running around the camel's belly with a carpet and quilt placed loosely over the top. There were no stirrups or rope loops along the side of the camel that either rider could hold for stability. The reins were held at the front by the camel handler. It was held that the failure to provide stirrups constituted a breach of local customary practices. The court went on “so far as the second alleged breach of duty is concerned, in my judgment it is made out. There is simply no evidence that the defendant took any steps whatsoever to establish that the excursion provider was competent”. Judgement was made in favour of the Claimants.