Entry Into Force Of The 2002 Protocol To The Athens Convention

A major change coming into force this Spring is the increase in limits of liability for passenger accidents. This has been triggered following Belgium becoming the tenth country to opt in to the Athens 2002 protocol in April 2013. Here are the main changes…

Headline changes:

• Liability limit for death of or personal injury to a passenger will be raised from SDR 46,666 to SDR 250,000 which is approximately £234,000 at current rates.
• Where losses exceed the new limit and are caused as a result of fault or neglect on the part of the carrier, there is an increased limit of SDR 400,000 per passenger which at current rates is approximately £374,000.
• Insurance will be compulsory and there will be strict liability (no need to prove fault or negligence) for claims up to SDR 250,000 as long as they result from a “shipping-related incident”.
• Direct rights of action for each passenger against a vessel’s insurer.

Strict liability

Where death or injury results from a “shipping-related incident”, liability will be strict and injured passengers will be able to recover damages without needing to prove fault or negligence on the part of the carrier. Fault-based liability will therefore be replaced with strict liability.

This means that the carrier will be liable unless he can show 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 by a third party done with the intent to cause the incident.

“Shipping-related incident” is defined as 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 its equipment when used for the escape, evacuation, embarkation, and disembarkation of passengers; or when used for the propulsion, steering, safe navigation, mooring, anchoring, arriving at or leaving berth or anchorage, or damage control after flooding; or when used for the launching of life-saving appliances.

What journeys will it apply to?

• All international carriage where a ship is registered in the UK, the contract of carriage has been made in the UK, or the place of departure or destination is in the UK.

From 30 December 2016 it will also apply to domestic voyages within the UK on board Class A ships (engaged on domestic voyages but operating more than 20 miles from the coast).

From 30 December 2018 it will apply to Class B ships (engaged on domestic voyages at no more than 20 miles from the coast).

Exceptions:

• Does not apply to vessels registered to carry up to a maximum of 12 passengers.
• Carriers cannot limit liability where they acted with intent to cause such damage or recklessly and in the knowledge that their actions would probably case damage.

Luggage:

• The liability of the carrier for the loss of or damage to cabin luggage is limited to SDR 2,250 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 to SDR 12,700 per vehicle, per carriage.
• Liability of the carrier for the loss of or damage to other luggage is limited to SDR 3,375 per passenger, per carriage.

NB. Carriers can agree with passengers that deductibles will apply of up to SDR 330 in relation to vehicle damage and up to SDR 149 in relation to loss of or damage to luggage.

Advice for operators?

Operators should read MCA Notice MIN 448(M) particularly in relation to the certification that will be required by the MCA confirming that appropriate levels of insurance are in place. The certificate will need to be carried on board and produced on demand. Failure to comply constitutes an offence punishable by way of a fine, and the vessel could also be detained.