Adoption: 13
December 1974
Entry into force: 28 April 1987
Introduction
The 1976 Protocol
The 1990 Protocol
The 2002 Protocol
Special Drawing Rights
Introduction
A Conference, convened in Athens in 1974, adopted the Athens
Convention relating to the Carriage of Passengers and their Luggage by Sea,
1974.
The Convention is designed to consolidate and harmonize two earlier Brussels conventions dealing with passengers and luggage and adopted in 1961 and 1967 respectively.
The Convention establishes a regime of liability for damage suffered by passengers carried on a seagoing vessel. It declares a carrier liable for damage or loss suffered by a passenger if the incident causing the damage occurred in the course of the carriage and was due to the fault or neglect of the carrier.
However, unless the carrier acted with intent to cause such damage, or recklessly and with knowledge that such damage would probably result, he can limit his liability. For the death of, or personal injury to, a passenger, this limit of liability is set at 46,666 Special Drawing Rights (SDR) (about US$61,000) per carriage. The 2002 Protocol, when it enters into force, will substantially raise those limits.
As far as loss of or damage to luggage is concerned, the carrier's limit of 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.
Adoption: 19 November 1976
Entry into force: 30 April 1989
The Athens Convention also used the "Poincaré franc", based on the "official" value of gold, as the applicable unit of account.
A Protocol to the Convention, with the same provisions as in the Protocols to the 1971 Fund Convention and the 1969 Liability Convention, was accordingly adopted in November 1976, making the unit of account the Special Drawing Right (SDR).
The 1990 Protocol
Adoption:
29 March 1990
Entry into
force: 90 days after being accepted by 10 States
Status: Superseded by 2002 Protocol
The main aim of the Protocol is to raise the amount of compensation available in the event of deaths or injury at 175,000 SDR (around US$224,000). Other limits are 1,800 SDR (about US$2,300) for loss of or damage to cabin luggage and 10,000 SDR (about US$12,800) for loss of or damage to vehicles.
The Protocol also makes provision for the "tacit acceptance" procedure to be used to amend the limitation amounts in the future.
The 2002 Protocol
Adoption: 1 November 2002
Entry into force: 12 months after being accepted by 10 States
See
Status of Conventions
The Protocol introduces compulsory insurance to cover passengers on ships and raises the limits of liability. It also introduces other mechanisms to assist passengers in obtaining compensation, based on well-accepted principles applied in existing liability and compensation regimes dealing 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.
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.
Compulsory insurance
A new Article 4bis of the Convention requires carriers to maintain insurance
or other financial security, such as the guarantee of a bank or similar financial
institution, to cover the limits for strict liability under the Convention in
respect of the death of and personal injury to passengers.
The limit of the compulsory insurance or other financial security shall not be less than 250,000 Special Drawing Rights (SDR) (about US$325,000) per passenger on each distinct occasion. 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.
Limits of liability
The limits of liability have been raised significantly under the Protocol, to
reflect present day conditions and the mechanism for raising limits in the future
has been made easier.
The liability of
the carrier for the death of or personal injury to a passenger is limited to
250,000 SDR (about US$325,000) per passenger on each distinct occasion.
The carrier is liable, 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
the limit, the carrier is further liable - up to a limit of 400,000 SDR (about
US$524,000) 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.
The liability of the carrier only includes loss arising from incidents that occurred in the course of the carriage. The burden of proving that the incident which caused the loss occurred in the course of the carriage, and the extent of the loss, lies with the claimant.
"Opt-out"
Clause
The Protocol allows a State Party to regulate by specific provisions of national
law the limit of liability for personal injury and death, provided that the
national limit of liability, if any, is not lower than that prescribed in the
Protocol. A State Party, which makes use of this option is obliged to inform
the IMO Secretary?General of the limit of liability adopted or of the fact that
there is none.
Loss of or damage to luggage and vehicles - The liability of the carrier for the loss of or damage to cabin luggage is limited to 2,250 SDR (about US$2,925) 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 (about US$16,250) per vehicle,
per carriage.
- liability of the carrier for the loss of or damage to other luggage is limited
to 3,375 SDR (about US$4,390) 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 (about US$220) 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 Protocol introduces a new procedure for amending the limits of liability under the Convention, so that any future raises in limits can be achieved more readily. Under the 1974 Convention, limits can only be raised by adopting amendments to the Convention which require a specified number of States' acceptances to bring the amendments into force. This has meant, for example, that the 1990 Protocol, which was intended to raise the limits, has not yet entered into force and indeed is being superseded by the 2002 Protocol.
The 2002 Protocol therefore introduces a tacit acceptance procedure for raising the limits of liability. A proposal to amend the limits, as requested by at least one-half of the Parties to the Protocol, would be circulated to all IMO Member States and al States Parties and would then be discussed in the IMO Legal Committee. Amendments would be adopted by a two-thirds majority of the States Parties to the Convention as amended by the Protocol present and voting in the Legal Committee, and amendments would enter into force 18 months after its deemed acceptance date. The deemed acceptance date would be 18 months after adoption, unless within that period not less than one fourth of the States that were States Parties at the time of the adoption of the amendment have communicated to the IMO Secretary-General that they do not accept the amendment.
Regional Economic
Integration Organizations
For the first time in an IMO Convention, a regional economic integration organization
may sign up to the Protocol. An article in the Protocol states that a Regional
Economic Integration Organization, which is constituted by sovereign States
that have transferred competence over certain matters governed by this Protocol
to that Organization, may sign, ratify, accept, approve or accede to the Protocol.
A Regional Economic Integration Organization which is a Party to this
Protocol shall have the rights and obligations of a State Party, to the extent that the Regional Economic Integration Organization has competence over matters governed by this Protocol.
Title of Convention
The Protocol states that Articles 1 to 22 of the Convention, as revised by the
Protocol, together with Articles 17 to 25 of the Protocol and the Annex thereto,
shall constitute and be called the Athens Convention relating to the Carriage
of Passengers and their Luggage by Sea, 2002.
States who ratify the 2002 Protocol are required to denounce the 1974 Convention and its 1976 and 1990 Protocols, if they are Party to the 1974 Convention and those Protocols.
Conference Resolutions
The Conference which adopted the 2002 Protocol also adopted the following resolutions:
Conference Resolution
1 - Regional Economic Integration Organizations
The resolution notes that the 2002 Protocol to the Athens Convention allows
Regional Economic Integration Organizations and their sovereign Member States
to become parties to the Protocol and recognizes that States may, in the future,
establish or become Members to various forms of regional economic integration
organizations to which they may opt to transfer competencies or functions governed
by treaties and exercise these in a shared manner. The resolution requests IMO
to carry out a study of the issue, and, if found necessary, to develop appropriate
provisions which may be considered in new treaties it may develop, or in amendments
to existing treaties, when there will be a need for such provisions to be included
so as to enable present and future regional economic integration organizations
and their Member States to become parties to such treaties.
The resolution addresses the fact that a number of States allow ships to fly their flag under the terms of bareboat charter, through which the bareboat charterer assumes all the duties and responsibilities of the owner for the operation of the ship whilst the ownership and encumbrances remain registered in another State which suspends the right of the ship to fly its flag. The resolution requests IMO to carry out a study of the issuing of certificates of insurance or financial security in these cases and, if found necessary, to develop appropriate guidelines.
Conference Resolution
3 - Framework of Good Practice with respect to carriers' Liabilities
The resolution requests IMO to develop appropriate guidelines on the provision
of insurance or financial security for compensation for claims for death of
or personal injury to passengers which will establish an appropriate framework
of good practice to ensure that all carriers take steps to maintain full insurance
or financial security to meet their full level of liability provided for in
the Protocol.
The daily conversion rates for Special Drawing Rights (SDRs) can be found on the International Monetary Fund website at www.imf.org
