Flurry of activity as 2002 Athens Protocol signature period ends

There has been a flurry of activity in the week leading up to the closure of the period for signature of the 2002 Protocol to the Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea, 1974. Four countries - Finland, Germany, Sweden and the United Kingdom - signed the Protocol (subject to ratification) during the final week of the signature period, which ended today (April 30th 2004), bringing the total number of signatory States to six. Norway and Spain had already signed.

The activity was welcomed by IMO Secretary-General Efthimios E. Mitropoulos, who said, "this demonstrates the increased level of interest in, and support for, this important Protocol, which substantially increases the amount of compensation available for damage or loss suffered by passengers. I look forward to seeing the Protocol enter into force in the not-too-distant future."

The low level of acceptance of the 1974 Athens Convention (which has 30 States Parties) has been largely attributed to the inadequate level of the limits of liability set in that Convention and in its 1990 Protocol (which raised the limits but has not entered into force).

Under the 2002 Protocol the limits of liability have been raised significantly to reflect present day conditions and the "tacit amendment" procedure has been introduced to enable limits to be more easily raised in the future. For incidents involving the death of or personal injury to a passenger, the carrier will be liable to pay compensation of up to 250, 000 SDR (about US$362,000*) per passenger on each distinct occasion.

If the loss exceeds the limit, the carrier is further liable - up to a limit of 400,000 SDR (about US$579,000*) 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.

As well as substantially raising the limits of liability for passenger claims, the 2002 Protocol also introduces other helpful 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 of the 1974 regime with a strict liability system for shipping-related incidents, backed by the requirement for the carrier to take out compulsory insurance to cover these potential claims.

The Protocol sets a maximum limit, empowering - but not obliging - national courts to compensate for death, injury or damage up to the limit. The Protocol also includes an "opt-out" clause, enabling State Parties to introduce higher limits of liability (or unlimited liability) in accordance with their national law, which will apply to carriers who are subject to the jurisdiction of their courts.

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.

The 2002 Protocol was adopted at a diplomatic conference held in November 2002 at IMO Headquarters in London. It was opened for signature on 1 May 2003. It will enter into force 12 months after being accepted by 10 States.

Background
The Athens Convention of 1974 was designed to consolidate and harmonize two earlier Conventions adopted in 1961 and 1967 respectively, known as the Brussels Conventions, which dealt with passengers and their luggage.

The Convention established a regime of liability and compensation for damage suffered by passengers carried on a seagoing vessel. Under its provisions a carrier is 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.

The regime allows the carrier to limit his liability unless it can be proven that he 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 is set at 46,666 Special Drawing Rights (SDR) (about US$66,553*) per carriage.

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, a vehicle and/or luggage carried in or on it, or in respect of other luggage.

The Convention has been in force since 1987. At present, 30 States are party to it.

* Exchange rate at 29 April 2004: 1 SDR = US$0.69080

30 April 2003

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