All passenger carriers and operators must have regard to the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea 1974 (the Convention), which establishes a regime of liability for passengers carried on seagoing vessels, but allows carriers to limit their liability.
The 2002 Protocol (the Protocol) to the Convention came into force on 23 April 2014. The Convention, as significantly amended and added to by the Protocol, constitutes and is called the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea 2002.
Background to the Protocol
The Protocol significantly revises and updates the passenger liability regime under the Convention. The Convention applies to the international carriage of passengers and luggage where the ship is flying the flag of or is registered in a state party to the Convention, the contract of carriage has been made in a state party to the Convention or the place of departure or destination (according to the contract of carriage) is in a state party to the Convention.
The Convention renders a carrier liable for damage or loss suffered by a passenger where the incident giving rise to the damage occurred during the carriage and was caused by the fault and/or neglect of the carrier, but allows carriers to limit their liability except where the carrier acted with the intention of causing the damage, or recklessly and knowing that the damage that was caused was the likely result of its actions. In respect of liability for the death of, or personal injury to, a passenger, this limit was capped at 46,666 Special Drawing Rights (SDRs) per carriage (approx US$71,800 at current rates).
Key provisions of the Protocol
From 23 April 2014, the following new limits apply to the carrier’s liability for passenger injury and death, per passenger, per occasion:
- Strict liability for injury or death claims of up to 250,000 SDRs (approx US$385,000), unless the incident was intentionally caused by a third party, or resulted from an act of war, hostilities, civil war, insurrection or force majeure.
- For claims above this limit, there is a further limit of 400,000 SDRs (approx US$616,000), unless the incident occurred without the fault or neglect of the carrier.
The Protocol also increases the limits for loss of or damage to luggage or vehicles per carriage as follows:
- Cabin luggage claims limited to 2,250 SDRs per passenger (approx US$3,500).
- Vehicle claims (including all luggage carried in/on the vehicle) limited to 12,700 SDRs per vehicle (approx US$19,500).
- Other luggage claims limited to 3,375 SDRs per passenger (approx US$5,200).
Finally, the Protocol introduces compulsory insurance of 250,000 SDRs per passenger. The ship’s registry must issue a certificate to evidence this, which is largely happening through the “Blue Card” system.
Effect of entry into force
The Protocol was ratified by the EU and has been in force in the EU since 31 December 2012 via the EU Passenger Liability Regulation 392/2009. Outside the EU, the Protocol has been ratified by Albania, Belize, Norway, Palau, Panama, Saint Kitts and Nevis, Serbia and Syria.
The most significant change introduced under the Protocol is undoubtedly the increase in passenger liability limits. Although some countries had already increased the limits for their own national carriers (including the UK), many countries had not and either relied on the limits set out in the Convention or on other national limits. The increases may therefore have a significant impact in increasing limits worldwide.
The Protocol will also affect insurers, given the compulsory cover requirement. It remains to be seen whether the Protocol is adopted more widely outside the EU, but in any event a wide number of carriers will be affected, particularly those involved in the ever-popular European cruise market, wherever the vessel is actually registered.
Effect of Athens Convention on shore excursions
Cruise operators, in particular, should be aware that shore excursions are often not included within the scope of the Convention, and therefore there is a risk of exposure to higher liability. The period of carriage, as defined under the Convention, includes the period the passenger and their luggage are on board ship, including when they are embarking and disembarking, and including any water transport from the shore to the ship. The Convention explicitly excludes any period while the passenger is in the port or terminal, and therefore it is highly likely that shore excursions will not be covered by the Convention limits.
Within the EU, however, such shore excursions, when sold as part of a package, will be covered by the Package Travel, Package Holidays and Package Tours Regulations 1992 (which gave effect to the Package Travel Directive 90/314/EEC), which means that the tour operator will be responsible to the passenger for any claims, even when such excursions are operated by a third party.