compensated. Whether the forum state is a party to any international convention
related to passengers could be of paramount importance. For example, passengers
traveling on the same ship, depending on the forum state and applicable law, can
receive compensation for mere delay or disappointment, while others may be left
without any compensation for the death of the relative or for a strong psychological
trauma. What aggravates the situation is that not all states are parties to a particular
convention that establishes international minimum standards of the carrier’s obligations and liabilities. In those states national law will apply to a passenger’s claim and
can lead to unpredictable outcomes and sometimes no compensation at all.
Passengers transported between the ports in two different countries can bring their
claims for accidents at sea under the Athens Convention relating to Carriage of
Passengers and their Luggage by Sea either 1974 or 2002, the EU Regime
2 or
applicable national law which may or may not incorporate any of the international
conventions. Notably, both the Athens Convention 1974 and the Protocol 2002 are
now consolidated into the Athens Convention 2002 and is in force from 23 April
2014. It will be difficult to access in advance which regime will apply and therefore,
claimants or their lawyers must make a good assessment before choosing the forum.
The Athens Convention 2002 can also apply contractually in states which have not
joined it formally but through contractual incorporation, especially in cruise
contracts.
The purpose of the chapter is to examine and evaluate the legal regime in relation
to international sea passengers and whether it provides international uniformity and
adequate protection to the passengers carried by sea. International regime embodied
in the Athens Convention relating to Carriage of Passengers and their Luggage by
Sea 1974 and the Protocol 2002 establishes carrier’s liability for death and personal
injuries arising out of shipping incidents and in some cases non-shipping incidents.
As a general principle of contract law, an injured party has to be compensated for its
losses. However, international transport conventions entitle the carrier to limit its
liability for certain losses or even exclude its liability. The regime embodied in the
Athens Convention is not an exception and provides similar provisions regarding the
limitation of liability which will be discussed in more details in the following
sections.
In the context of the European Union (EU), the passengers may also bring their
claims based on the EU Regulation 392/2009 which implements the Athens
2 Regulation (EC) No 392/2009 of the European Parliament and of the Council of 23 April 2009 on
the liability of carriers of passengers by sea in the event of accidents. Other EU instruments include
Council Decision of 12 December 2011 concerning the accession of the European Union to the
Protocol of 2002 to the Athens Convention relating to the Carriage of Passengers and their Luggage
by Sea, 1974, as regards Articles 10 and 11 thereof (2012/23/EU);Council Decision of 12 December
2011 concerning the accession of the European Union to the Protocol of 2002 to the Athens
Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974, with the
exception of Articles 10 and 11 thereof (2012/22/EU); and Regulation (EU) No 1177/2010 of the
European Parliament and of the Council of 24 November 2010 concerning the rights of passengers
when travelling by sea and inland waterway and amending Regulation (EC) No 2006/2004.
60
O. Bokareva
related to passengers could be of paramount importance. For example, passengers
traveling on the same ship, depending on the forum state and applicable law, can
receive compensation for mere delay or disappointment, while others may be left
without any compensation for the death of the relative or for a strong psychological
trauma. What aggravates the situation is that not all states are parties to a particular
convention that establishes international minimum standards of the carrier’s obligations and liabilities. In those states national law will apply to a passenger’s claim and
can lead to unpredictable outcomes and sometimes no compensation at all.
Passengers transported between the ports in two different countries can bring their
claims for accidents at sea under the Athens Convention relating to Carriage of
Passengers and their Luggage by Sea either 1974 or 2002, the EU Regime
2 or
applicable national law which may or may not incorporate any of the international
conventions. Notably, both the Athens Convention 1974 and the Protocol 2002 are
now consolidated into the Athens Convention 2002 and is in force from 23 April
2014. It will be difficult to access in advance which regime will apply and therefore,
claimants or their lawyers must make a good assessment before choosing the forum.
The Athens Convention 2002 can also apply contractually in states which have not
joined it formally but through contractual incorporation, especially in cruise
contracts.
The purpose of the chapter is to examine and evaluate the legal regime in relation
to international sea passengers and whether it provides international uniformity and
adequate protection to the passengers carried by sea. International regime embodied
in the Athens Convention relating to Carriage of Passengers and their Luggage by
Sea 1974 and the Protocol 2002 establishes carrier’s liability for death and personal
injuries arising out of shipping incidents and in some cases non-shipping incidents.
As a general principle of contract law, an injured party has to be compensated for its
losses. However, international transport conventions entitle the carrier to limit its
liability for certain losses or even exclude its liability. The regime embodied in the
Athens Convention is not an exception and provides similar provisions regarding the
limitation of liability which will be discussed in more details in the following
sections.
In the context of the European Union (EU), the passengers may also bring their
claims based on the EU Regulation 392/2009 which implements the Athens
2 Regulation (EC) No 392/2009 of the European Parliament and of the Council of 23 April 2009 on
the liability of carriers of passengers by sea in the event of accidents. Other EU instruments include
Council Decision of 12 December 2011 concerning the accession of the European Union to the
Protocol of 2002 to the Athens Convention relating to the Carriage of Passengers and their Luggage
by Sea, 1974, as regards Articles 10 and 11 thereof (2012/23/EU);Council Decision of 12 December
2011 concerning the accession of the European Union to the Protocol of 2002 to the Athens
Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974, with the
exception of Articles 10 and 11 thereof (2012/22/EU); and Regulation (EU) No 1177/2010 of the
European Parliament and of the Council of 24 November 2010 concerning the rights of passengers
when travelling by sea and inland waterway and amending Regulation (EC) No 2006/2004.
60
O. Bokareva