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Liability related to carriage of passengers

Liability and compensation related to the carriage of passengers and their luggage by sea is currently covered by the Athens Convention of 1974. Some EU Member States are Parties to this Convention, many however have already denounced it due to the fact that it has lost its actuality and the limits of liability it contains are considered very low.

In 2002 the IMO adopted a new Protocol amending the Athens Convention 1974 which is now open for signature (known as Athens Convention 2002). The ratification of 10 states is necessary for the new instrument to enter into force.

The 2002 Athens Convention, as created by this Protocol, provides for strict liability (without fault or negligence) of the carrier for the first 250 000 SDR per passenger for claims for death and personal injury if the incident relates to a 'shipping incident'. The carrier has to take compulsory insurance for 250 000 SDR per passenger with respect to death and personal injury claims and carry an insurance certificate on board. The passenger may bring a direct action against the insurer. If the loss or damage exceeds 250 000 SDR the carrier shall be further liable unless he proves absence of fault or neglect (fault based liability with the reversed burden of proof). However, the liability of the carrier shall be capped at 400 000 SDR per passenger unless a State Party adopts and notifies to the IMO a higher or unlimited liability rules. The liability limits for cabin luggage are raised (in comparison with the Convention of 1974) to 2250 SDR, for vehicles to 12700 SDR and for non-cabin luggage to 3375 SDR.

Until recently there was no consensus as to the issue if the carrier should be entirely responsible for the damage caused by a terrorist act if the carrier contributed to it, even to a minor extent. In November 2006 the Legal Committee of the IMO adopted Implementation Guidelines, according to which the liability for terrorism related claims should be limited to SDR 250,000 per passenger and SDR 500 million per ship, whichever is lower. The issue of liability related to carriage of passengers was taken on board in the Third Maritime Safety Package which contains the Regulation No 392/2009 on the liability of carriers of passengers by sea in the event of accidents. The Regulation adopts rules based on Athens Convention 2002 and makes them a part of EU law. Moreover, it adds additional elements relating to – among others - the sea transport within one Member State, information to be given to passengers prior to departure, immediate compensation given after the accident.

In December 2011, the EU ratified the Athens Convention 2002. Some elements of the Convention, i.a. relating to the jurisdiction, recognition and enforcement of judgements, belong to the exclusive competence of the EU and this is why the EU also needed to become a Party to the Convention.

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