By
Rebecca Gibson |
The Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 2002, entered into force on 23 April 2014. This regulation significantly raises the original liability limits for passenger ship operators.
Under the Athens Convention, carriers are liable for any damage suffered by a passenger resulting from death or personal injury. They are also responsible for luggage damage if it occurred in the course of the carriage and was due to the fault or neglect of the carrier. Such fault or neglect is presumed, unless the contrary is proved.
Carriers can limit their liability unless they acted with intent to cause such damage, or behaved recklessly knowing it would be likely to cause damage.
This new legislation significantly raises the limits of liability for the death of, or personal injury to, a passenger on a ship compared to the 1974 Convention – which was set at 46,666 special drawing rights (SDR) per carriage for the death of, or personal injury to, a passenger.
The 2002 protocol increases the 1974 limits to 250,000 SDR per passenger on each distinct occasion in the case of shipping incidents. These limits may not apply if the carrier can prove that the incident resulted from an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character; or if it was wholly caused by an intentional act or omission of a third party.
If the loss exceeds this limit, or damage occurred during a non-shipping incident, the carrier is further liable – up to a combined limit of 400,000 SDR per passenger on each distinct occasion – unless they can prove that they were not at fault or not neglectful.
Liability for the loss of luggage varies according to the situation. If luggage is lost or damaged in the cabin, the carrier is liable for up to 2,250 SDR per passenger, per carriage, while liability for the loss of, or damage to, other luggage is limited to 3,375 SDR per passenger, per carriage. Carriers are also liable for the loss of, or damage to, vehicles including all luggage carried in or on the vehicle, up to 12,700 SDR per vehicle, per carriage.
Carriers and passengers may agree that the carrier’s liability should be subject to a deductible not exceeding 330 SDR in the case of damage to a vehicle, or not exceeding 149 SDR per passenger in the case of loss of or damage to other luggage.
In addition, the 2002 Athens Convention introduces compulsory insurance and systems to help passengers obtain compensation. These include replacing the fault-based liability system with a strict liability system for shipping-related incidents, backed by the requirement that the carrier take out compulsory insurance to cover these potential claims. Ships will be certified to indicate that they operate the necessary insurance or financial security systems.
National courts can use the protocol to compensate for death, injury or damage up to these limits, but are not obliged to do so. The protocol also includes an ‘opt-out’ clause enabling state parties to retain or introduce higher limits of liability – or unlimited liability – in the case of carriers who are subject to the jurisdiction of their courts.
The Convention is immediately applicable to all ships registered to the states that ratified the 2002 treaty. They include Albania, Belgium, Belize, Bulgaria, Croatia, Denmark, Greece, Latvia, Malta, the Netherlands, Norway, Palau, Panama, Saint Kitts and Nevis, Serbia, Syrian Arab Republic and the UK. As a precondition for joining, parties to the 2002 protocol were required to denounce the 1974 treaty and its earlier protocols.
It is also mandatory for European Union member states, including those that have not individually ratified the Athens Protocol regime. This will create a regional economic integration organisation – comprised of sovereign states that have transferred competence over certain matters governed by the protocol to that organisation – to sign, ratify, accept, approve or accede to the protocol.
Future amendments can be made through the 2002 protocol’s tacit acceptance procedure for raising the limits of liability. In this instance, if at least half of the parties to the protocol requested a raise, a proposal would be circulated. It would be adopted if two thirds of the state parties accepted the amendments. These amendments would enter into force within 36 months, unless fewer than a fourth of the states parties refused to accept the changes at the time of the adoption.