Athens Convention

Contents

• Athens Convention- international travel
• Domestic Rules
• Interaction between Athens and Package holiday regs
• Non- Athens -Employers Liability

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• 1974 Convention relating to the Carriage of Passengers and their luggage at SeEntry into force april 28 1987 Brought into force by s 183 of the Merchant Shipping Act 1995- its text forms part of 1 of schedule 6 Substantially revised by Protocol of 2002 to the Athens Convention relating to the Carriage of Passengers and their luggage by sea. This was ratified in 2002 but didn’t come into force until 10 states accepted it.
• Enacted in UK by the Merchant Shipping (Convention Relating to the Carriage of Passengers and Their luggage at Sea (Amendment) (Order) 2014

Main changes under 2002 Protocol

• Raised limits of compensation
• Compulsory insurance for carriers
• Direct right of action against insurers
• Revised basis of liability

ART 14

• Art 14- No action for damages for death or personal injury to a passenger may be brought against a carrier….,other than in accordance with the convention
• Mandatory- replaces common law

Passenger

• defined as "any person carried in a ship under a contract of carriage" Would exclude eg crew member- contract of employment not carriage Not necessary for passenger to be party to the contract
• No distinction between business and leisure passengers

SHIP?

• Defined as "only a sea-going vehicle, excluding an air cushion vehicle".

SCOPE?

• ART 2.1 This Convention shall apply to any international carriage if: (a)the ship is flying the flag of or is registered in a State Party to this Convention, or (b)the contract of carriage has been made in a State Party to this Convention, or (c)the place of departure or destination, according to the contract of carriage, is in a State Party to this Convention
• WIDE

INTERNATIONAL CARRIAGE

• ART 1(9) “international carriage” means any carriage in which, according to the contract of carriage, the place of departure and the place of destination are situated in two different States, or in a single State if, according to the contract of carriage or the scheduled itinerary, there is an intermediate port of call in another State

Jurisdiction?

• Special regime- not governed by Brussels Convention
• ART 17.1- claimant can bring the claim in any of the following courts provided it’s in a State Party to the convention 1. Permanent residence/ principal place of business of the defender 2. Court of the place of departure or destination (acc to the contract of carriage) 3. Court of the State of the domicile or permanent residence of the claimant if the defendant has a place of business and is subject the jurisdiction of the state 4. A court of the State where the contract of carriage was made if the defendant has a place of business and is subject to the jurisdiction of the state
• Also now have direct right of action against insurer (Art 4)

Art 3- Liability of the carrier

• new regime- brought in by 2002 protocol
• 2 tier system- a kind of strict liability for “shipping incidents” subject to defences Otherwise- fault must be proved. Old system- fault based Similar distinction between "ship related" accidents (presumed liability- reverse burden of proof) and non "ship-related" (burden on passenger to prove fault

Article 3

• For the loss suffered as a result of the death of or personal injury to a passenger caused by a shipping incident the carrier shall be liable to the extent that such loss in respect of that passenger on each distinct occasion does not exceed 250000 SDRs unless the carrier can prove that the incident resulted from an act of war, hostilities, civil war, insurrection, or a natural The carrier shall be liable for the damage suffered as a result of the death of or personal injury to a passenger and the loss of or damage to luggage if the incident which caused the damage so suffered occurred in the course of the carriage and was due to the fault or neglect of the carrier or of his servants or agents acting within the scope of their employment. 2The burden of proving that the incident which caused the loss or damage occurred in the course of the carriage, and the extent of the loss or damage, shall lie with the claimant. 3Fault or neglect of the carrier or of his servants or agents acting within the scope of their employment shall be presumed, unless the contrary is proved, if the death of or personal injury to the passenger or the loss of or damage to cabin luggage arose from or in connection with the shipwreck, collision, stranding, explosion or fire, or defect in the ship. In respect of loss of or damage to other luggage, such fault or neglect shall be presumed, unless the contrary is proved, irrespective of the nature of the incident which caused the loss or damage. In all other cases the burden of proving fault or neglect shall lie with the claimant

Art 3 (5)

• "shipping incident"means shipwreck, capsizing, collision, or stranding of the ship, explosion or fire in the ship, or defect in the ship
• defect in the ship means any malfunction, failure or non-compliance with applicable safety regulations in respect of any part of the ship or it's equipment....

shipping incident?

• "two tiered" system- carrier strictly liable up to 250,000 SDR unless he can prove accident caused by a natural phenomenon,act of war, hostilities or insurrection OR third party with intent to cause incident (terrorist act)
• above this liable up to 400,000 unless carrier can prove loss not his fault

If not a shipping incident?

• Burden of proof in claimaint
• "hotel function of ship"
• eg slips and trips
• Limit is 400,000 SDR
• allows for vicarious liability

Old Art 3?

• Still relevant 1) pre 2014 and 2) Domestic Rules
• Fault based, but reverse burden of proof in "ship-related" accidents

Art 9

• Special Drawing Rights
• Set by IMF (international Monetary Fund)
• Convention refers top Unit of account
• Currently 0.892
• Conversion rate set at date of judgment

Art 7

• Capped at 400,000 SDR
• Can lose the right to limit liability
• Art 13.1 Carrier not entitled to the benefit of the limits of liability prescribed by Art 7 if “the damage resulted from an act or omission of the carrier done with the intention to cause such damage, or recklessly and with knowledge that such damage would probably result Art 13.2- servant/ agent of the carrier will likewise not be able to limit his liability if the same matters were proved against him

very high test

• few successful cases where limit disapplied

Contributory Fault?

• Art 6
• If the carrier proves that the death of or personal injury to a passenger or the loss of or damage to his luggage was caused or contributed to by the fault or neglect of the passenger, the court seized of the case may exonerate the carrier wholly or partly from his liability in accordance with the provisions of the law of that court

LIMITATION

• ART 16.1 Any for damages arising out of the death or personal injury to a passenger (or for loss or damage to luggage) shall be time-barred after a period of two years Time limit starts to run at DISEMBARKATION (Personal injury) OR of death the date when the passenger should have disembarked Can be extended by agreement of the parties/ declaration of the parties (ie timebar waiver- rare)
• CANNOT invoke s 19 of the Prescription and Limitation (Scotland) Act

Domestic carriage?

• Modified version of the original Athens Convention (ie pre 2002 protocols)
• Incorporated by Carriage of Passengers and their Luggage by Sea (domestic Carriage) Order 1987

Application

• Art 2 applies to any carriage if under the contact of carriage the places of departure and destination are in the area consisting of the United Kingdom, the Channel Islands, the Isle of Man and there is no intermediate port of call outside that area".

differences?

• Based on OLD Athens convention
• Lower limit- cap of 300,000 SDRs
• Old fault-based regime
• Draft order to implement the 2002 Protocol- not yet in force

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