The plaintiff, Rosemary Cairns, who was an employee of Northern Light House Board (the first defendant), travelled to the Isle of May in a vessel belonging to Calypso Marine Ltd (the second defendant). During the travel, the plaintiff suffered an injury to her lower back because of the rough weather. The plaintiff alleged that she never received proper training for her work. She also stated that there was no urgency to visit the lighthouse on that day. The managing director of the second defendant alleged that he had conducted safety measures properly. He stated that he had also sailed the ship in a safe manner despite the rough weather. He also submitted that the case should be governed by the Convention Relating to the Carriage of Passengers and Their Luggage by Sea 1974 (Athens Convention 1974) as the plaintiff was a passenger on a domestic voyage. Accordingly, the plaintiff's claim should be time-barred, since the Convention imposed a two-year limitation period.

Held: Judgment for the plaintiff.

Under English law, the second defendant was under a strict duty to ensure the health and safety of workers on board its vessel, subject to the defence of reasonable practicability. The plaintiff was a worker on the second defendant's vessel in the course of her employment, and thus enjoyed the above-mentioned protection.

The Athens Convention 1974 was incorporated into Scottish law by s 183 of the Merchant Shipping Act 1995 (UK). By the Carriage of Passengers and Their Luggage by Sea (Domestic Carriage) Order 1987 (SI 1987/690) the application of the Convention was extended to domestic carriage of passengers by sea. According to art 3 of the Convention, the carrier was liable for damage suffered as a result of personal injury to a passenger if the incident which caused the injury occurred in the course of the carriage and was due to the fault or neglect of the carrier or its servants or agents acting within the scope of their employment. In that event, the liability of the carrier was limited under art 7 of the Convention to 46,666 units of account (SDRs) per passenger. Article 14 of the Convention provided that no action for damages for personal injury to a passenger should be brought against a carrier otherwise than in accordance with the Convention. A time bar on actions was imposed by art 16 of the Convention. Therefore, any action for damages arising out of personal injury to a passenger was time-barred after two years. Under art 1.4 of the Convention, 'passenger' was defined as meaning 'any person carried in a ship ... under a contract of carriage'. The plaintiff fell within the definition of 'passenger' in art 1.4, in that she was carried in a vessel under a contract of carriage. Therefore, the time-bar provision of the Convention would apply to the present case.

Nevertheless, two problems arose in relation to the second defendant's position. First, the Athens Convention 1974 was not mentioned in the pleadings, and no plea of time bar based on the Convention was taken. It was essential for any party relying on the Convention to refer to it in the pleading. For this reason alone, the second defendant could not rely on the Convention. Second, even if the second defendant could rely on the Convention, it could not escape liability. The Convention had no application to the first defendant, who was not a carrier but was liable to the plaintiff as her employer. Therefore, the plaintiff's claim against the first defendant was not time-barred, and the limitation of liability in the Convention did not apply. Thus, the plaintiff was entitled to recover from the first defendant and the first defendant was entitled to recover the full amount that it had paid to the plaintiff from the second defendant. Consequently, the second defendant would still be liable to the plaintiff.