Capt.S.S.Chaudhari

Q. What is the Athens Convention?
Athens Convention (PAL) relates to the Carriage of Passengers and their Luggage by Sea. The Convention was adopted at a Conference, convened in Athens in 1974 and was designed to consolidate and harmonize two earlier Brussels conventions dealing with passengers and luggage and adopted in 1961 and 1967 respectively.
It 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.

Q. What is the significance of protocols before 2002?
The 1976 Protocol made the unit of account the Special Drawing Right (SDR), replacing the “Poincaré franc”, based on the “official” value of gold, as the applicable unit of account.
The 1990 Protocol was intended to raise the limits set out in the convention but it did not enter into force and was superseded by the 2002 Protocol.

Q. What are the important changes brought by 2002 Protocol?
1. The limits of liability have been raised significantly. The liability of the carrier for the death of or personal injury to a passenger is limited to 250,000 SDR per passenger on each distinct occasion.
2. Protocol 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.
3. The fault-based liability system is replaced with a strict liability system for shipping related incidents.
4. A new Article 4 bis 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.
5. The limit of the compulsory insurance or other financial security shall not be less than 250,000 Special Drawing Rights (SDR) per passenger on each distinct occasion. Ships are to be issued with a certificate attesting that insurance or other financial security is in force.A model certificate is attached to the Protocol in an Annex.
6. A maximum limit is set and the national courts are empowered but not obliged to compensate for death, injury or damage up to these limits.
7. 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.

Q. As amended by Protocol of 2002 what is carrier, performing carrier and passenger?
(a) “Carrier” means a person by or on behalf of whom a contract of carriage has been concluded, whether the carriage is actually performed by that person or by a performing carrier;
(b) “Performing carrier” means a person other than the carrier, being the owner, charterer or operator of a ship, who actually performs the whole or a part of the carriage; and (c) “carrier who actually performs the whole or a part of the carriage” means the performing carrier, or, in so far as the carrier actually performs the carriage, the carrier.”

“Passenger” means any person carried in a ship
(a) under a contract of carriage, or
(b) who, with the consent of the carrier, is accompanying a vehicle or live animals which are covered by a contract for the carriage of goods not governed by this Convention

Q. Explain luggage as referred to the Athens Convention.
“Luggage” means any article or vehicle carried by the carrier under a contract of carriage, excluding
(a) articles and vehicles carried under a charter party, bill of lading or other contract primarily concerned with the carriage of goods, and
(b) live animals

“Cabin luggage” means luggage which the passenger has in his cabin or is otherwise in his possession, custody or control. Except for the application of paragraph 8 of this Article and Article 8, cabin luggage includes luggage which the passenger has in or on his vehicle.

Q. What are the periods covered by carriage?
“Carriage” covers the following periods:
(a) with regard to the passenger and his cabin luggage, the period during which the passenger and/or his cabin luggage are on board the ship or in the course of embarkation or disembarkation, and the period during which the passenger and his cabin luggage are transported by water from land to the ship or vice-versa, if the cost of such transport is included in the fare. carriage does not include the period during which he is in a marine terminal or station or on a quay or in or on any other port installation;
(b) with regard to cabin luggage, also includes the period during which the passenger is in a marine terminal or station or on a quay or in or on any other port installation if that luggage has been taken over by the carrier;
(c) with regard to other luggage which is not cabin luggage, the period from the time of its taking over by the carrier or his servant or agent. 

Q. As per the 2002, Protocol, what is the liability limit per passenger?
Unless the carrier acted with intent to cause a damage, or recklessly and with knowledge that such damage would probably result, he can limit his liability to 250,000 SDR per passenger on each distinct occasion.  The 2002 Protocol, introduces compulsory insurance to cover passengers on ships.

Q. Is the liability amount different for different type of luggage?
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.

Q. When does the Convention apply?
When passengers are carried on board a ship registered in a State Party that is licensed to carry more than twelve passengers, and this Convention applies. The Convention shall apply to any international carriage if

• the ship is flying the flag of or is registered in a State Party to this Convention, or
• the contract of carriage has been made in a State Party to this Convention, or
• the place of departure or destination, according to the contract of carriage, is in a State Party to this Convention.

Convention however, shall not apply when the carriage is subject, under any other international convention concerning the carriage of passengers or luggage by another mode of transport, to a civil liability regime under the provisions of such convention, in so far as those provisions have mandatory application to carriage by sea.

Q. What is the provision in respect of liability for various losses and the burden of proof?
1. The carrier shall be liable 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 250,000 units of account, unless the carrier proves that the incident:
(a) resulted from an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character; or
(b) was wholly caused by an act or omission done with the intent to cause the incident by a third party. If and to the extent that the loss exceeds the above limit, the carrier shall be further liable unless the carrier proves that the incident which caused the loss occurred without the fault or neglect of the carrier.
2. For the loss suffered as a result of the death of or personal injury to a passenger not caused by a shipping incident, the carrier shall be liable if the incident which caused the loss was due to the fault or neglect of the carrier. The burden of proving fault or neglect shall lie with the claimant.
3. For the loss suffered as a result of the loss of or damage to cabin luggage, the carrier shall be liable if the incident which caused the loss was due to the fault or neglect of the carrier. The fault or neglect of the carrier shall be presumed for loss caused by a shipping incident.
4. For the loss suffered as a result of the loss of or damage to luggage other than cabin luggage, the carrier shall be liable unless the carrier proves that the incident which caused the loss occurred without the fault or neglect of the carrier.
5. For the purposes of this Article:
(a) “shipping incident” means shipwreck, capsizing, collision or stranding of the ship, explosion or fire in the ship, or defect in the ship;
(b) “fault or neglect of the carrier” includes the fault or neglect of the servants of the carrier, acting within the scope of their employment;
(c) “defect in the ship” means any malfunction, failure or non-compliance with applicable safety regulations in respect of any part of the ship or its equipment.
6. The liability of the carrier under this Article only relates to 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, shall lie with the claimant.
7. Nothing in this Convention shall prejudice any right of recourse of the carrier against any third party, or the defence of contributory negligence. Nothing in this Article shall prejudice any right of limitation under Articles 7 or 8 of this Convention.
8. Presumptions of fault or neglect of a party or the allocation of the burden of proof to a party shall not prevent evidence in favour of that party from being considered.

Q. What is the defence and limits for carriers’ servants?
If an action is brought against a servant or agent of the carrier or of the performing carrier arising out of damage covered by this Convention, such servant or agent, if he proves that he acted within the scope of his employment, shall be entitled to avail himself of the defences and limits of liability which the carrier or the performing carrier is entitled to invoke under this Convention.

Q. When is the carrier not entitled to the right to limit liability?
The carrier shall not be entitled to the benefit of the limits of liability, if it is proved that the damage resulted from an act or omission of the carrier done with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.
The servant or agent of the carrier or of the performing carrier shall not be entitled to the benefit of those limits if it is proved that the damage resulted from an act or omission of that servant or agent done with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result

Q. What is the time bar for an action?
Any action for damages arising out of the death of or personal injury to a passenger or for the loss of or damage to luggage shall be time-barred after a period of two years.

Q. What are the grounds on which carrier may not be liable?
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.

Q. Is the carrier liable to pay beyond above stated limit if at fault?
If the loss exceeds the 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.

Q. What is the provision about the death or personal injury to a passenger not caused by a shipping incident?
For the loss suffered as a result of the death of or personal injury to a passenger not caused by a shipping incident, the carrier is liable if the incident which caused the loss was due to the fault or neglect of the carrier. The burden of proving fault or neglect lies with the claimant.

Q. Who has the responsibility of proving that the loss occurred in the course of the carriage, and the extent of the loss?
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.

Q. What is the provision in respect of loss of or damage to luggage and vehicles?
(a) The liability of the carrier for the loss of or damage to cabin luggage is limited to 2,250 SDR per passenger, per carriage;
(b) liability of the carrier for the loss of or damage to vehicles including all luggage carried in or on the vehicle is limited to 12,700 SDR per vehicle, per carriage; 
(c) 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.

Q. What is the provision in respect of procedure for amending the limits of liability?
The 2002 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. The 2002 Protocol therefore introduces a tacit acceptance procedure for raising the limits of liability. 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.

Q. How are the Regional Economic Integration Organizations recognized under 2002 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. Such a Regional Economic Integration Organization if 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. This kind of provision relating an IMO instrument is introduced for the first time.

Q. What articles constitute the 2002 Protocol?
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.

Q. Can a State follow both, the Convention as well as 2002 Protocol?
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.

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