07:03, October 17 71 0 theguardian.com

2018-10-17 07:03:07
Court rules boy, six, can sue Scottish ship firm over father's death

A boy who was less than a year old when his father died while diving off the northern coast of Scotland has won the right to sue a ship-chartering company for negligence.

In a unanimous judgment at the supreme court, five justices ruled Scapa Flow Charters will have to defend the legal action following the death of Lex Warner, 50, near Cape Wrath in 2012.

The ruling reversed a previous decision in the Scottish courts that the claim was too late because the 1974 Athens convention, governing the “carriage of passengers and their luggage by sea”, imposed a legal liability limit of two years after the date any passenger disembarked.

Warner had chartered MV Jean Elaine, a vessel operated by Scapa Flow Charters, for the week of 11-18 August 2012. On 14 August, when dressed in diving gear while preparing to dive to a wreck north-west of Cape Wrath, he fell on to the deck of the vessel.

The man was helped to his feet and went ahead with the dive, descending to a depth of 88 metres (289ft). However, Warner got into trouble under water and, despite the assistance of other divers who brought him back to the surface and on to the motor vessel, could not be revived. He was pronounced dead onboard the ship.

The legal argument was over whether his son, Vincent, now six, should be allowed to sue. His mother, Debbie Warner, had not appealed against a lower court’s decision to bar her claim.

Scottish law provides for “the grounds of suspension and interruption of limitation periods” that would allow time limits for action to be extended.

Delivering judgment, Lord Hodge said: “In my view, the words in article 16(3) of the Athens convention … are sufficiently wide to cover domestic rules which postpone the start of a limitation period, as well as those which stop the clock after the limitation period has begun.

“In agreement with [Scotland’s] inner house, I conclude that Mrs Warner’s claim as Vincent’s guardian is not time-barred by the Athens convention.”

The legal action for damages against Scapa Flow Charters will now go ahead in the Scottish courts.

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