2002 passengership liability and
compensation treaty to enter into
force in 2014
The Athens Convention relating to the
Carriage of Passengers and their Luggage
by Sea, 2002, which substantially raises the
limits of liability for the death of, or personal
injury to, a passenger on a ship, is set to
enter into force on 23 April 2014, after the
required 10 ratifications were reached on 23
Athens Protocol by Belgium.
The 2002 Protocol to the Athens
Convention relating to the Carriage of
Passengers and their Luggage by Sea,
1974, (PAL), revises and updates the 1974
Convention, which established a regime of
liability for damage suffered by passengers
carried on a seagoing vessel. As a
precondition for joining, Parties to the 2002
Protocol are required to denounce the 1974
treaty and its earlier Protocols.
The Athens Convention declares a
carrier liable for damage suffered by a
passenger resulting from death, personal
injury or damage to luggage if the incident
causing the damage 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 recklessly and with knowledge that such
damage would probably result. For the
death of, or personal injury to, a passenger,
this limit of liability was set at 46,666 Special
Drawing Rights (SDR) per carriage in the
1974 convention.
The 2002 Protocol substantially raises
those limits to 250,000 SDR per passenger
on each distinct occasion unless the carrier
proves 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 was
wholly caused by an act or omission done
with the intent to cause the incident by a
third party.
If the loss exceeds this limit, the carrier is
further liable – up to a limit of 400,000 SDR
per passenger on each distinct occasion –
unless the carrier proves that the incident
which caused the loss occurred without the
fault or neglect of the carrier.
As far as loss of, or damage to, luggage
is concerned, the limit of the carrier’s liability
varies, depending on whether the loss
or damage occurred in respect of cabin
luggage, of a vehicle and/or luggage carried
in or on it, or in respect of other luggage.
•
The liability of the carrier for the loss of
or damage to cabin luggage is limited to
2,250 SDR per passenger, per carriage.
•
Liability of the carrier for the loss of or
damage to vehicles including all luggage
carried in or on the vehicle is limited
to12,700 SDR per vehicle, per carriage.
•
Liability of the carrier for the loss of or
damage to other luggage is limited to
3,375 SDR per passenger, per carriage.
The carrier and the passenger may agree
that the liability of the carrier shall be subject
to a deductible not exceeding 330 SDR in
the case of damage to a vehicle and not
exceeding 149 SDR per passenger in the
case of loss of or damage to other luggage,
such sum to be deducted from the loss or
damage.
The 2002 Athens Convention also
introduces compulsory insurance, as well
as mechanisms to assist passengers in
obtaining compensation, based on well-
accepted principles applied in existing
liability and compensation regimes dealin
with environmental pollution. 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 are to be issued with a certificate
attesting that insurance or other financial
security is in force and a model certificate is
attached to the Protocol in an Annex.
The limits contained in the Protocol set
a maximum limit, empowering – but not
obliging – national courts to compensate for
death, injury or damage up to these limits.
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 2002 Protocol introduces a tacit
acceptance procedure for raising the
limits of liability, whereby a proposal to
amend the limits would be circulated on
the request of at least one-half of the
Parties to the Protocol, and adopted by a
two-thirds majority of the States Parties.
Amendments would then enter into force
within 36 months unless not less than one
fourth of the States Parties at the time of the
adoption informed that they did not accept
the amendment.
The 2002 PAL Protocol has now been
ratified by 10 States: Albania, Belgium,
Belize, Denmark, Latvia, Netherlands, Palau,
Saint Kitts and Nevis, Serbia and Syrian
Arab Republic. It has been also ratified by
the European Union.
The 1974 convention has been ratified
by 35 States