However, it can be observed that the notion of “personal injury” envisaged in the
Athens Convention 2002 is somewhat broader than the “bodily injury” under the
Montreal Convention 1999 on air carriage
13 which excludes any compensation for
non-material damage.
14 This can be said as one of the major differences between the
two conventions with respect to injuries suffered. However, this can be interpreted in
various ways by the national courts in the states that ratify the Convention, and thus
might undermine a desired uniformity.
Another similarity with the Montreal Convention is the exclusivity of the cause of
action. Article 14 of the Athens Convention states explicitly that:
No action for damages for the death of or personal injury to a passenger, or for the loss of or
damage to luggage, shall be brought against a carrier or performing carrier otherwise than in
accordance with this Convention.
Compared to Article 29 of the Montreal Convention the pre-emptive effect is not
absolute; the claimant may bring a claim against the same carrier for a quality
complaint, or for loss of enjoyment, outside the ambit of the Athens Convention.
15
Comparing the nature of both types of carriage, one may observe that carriage by air
is essentially transportation from one place to another for a short period of time
where the passengers are required to fasten their seatbelts and cannot move in the
aircraft during the takeoff and landing unless they do not follow the safety instructions. The sea passengers, on the other hand, are significantly free on board a ship,
and as a result, are more exposed to risks and injuries that not related to transportation and sometimes suffer injuries that are more related to hotel land-based risks.
It is a point of observation that the Convention is mandatory in its application
unlike various soft-law alternatives or contractual provision and will prevail over
any contractual terms which are clearly in conflict with the Convention’s provisions
in the same manner as the Hague-Visby Rules on carriage of goods. This is
specifically provided in Article 18 which addresses invalidity of contractual provisions. It provides, inter alia, that the provisions which aim to relieve any person
liable under the Convention of liability or setting the lower limits of liability shall be
null and void. It can be submitted that this provision reiterates the goals underlying
the Convention to provide the minimum limits of liability of the carrier and to protect
a passenger as a weaker party to a contract.
The major article enshrining the carrier’s liability in Athens Convention 2002 is
Article 3 which provides:
1 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:
13 Convention for the Unification of Certain Rules for International. Carriage by Air, 28 May 1999.
(ICAO Doc No 4698).
14 It was explicitly explained by the draftsmen and the leading cases from several jurisdictions.
15 Saggerson (2008), p. 562.
A Critical Analysis of Carriage of Passengers by Sea: Uniformity. . .
65
Athens Convention 2002 is somewhat broader than the “bodily injury” under the
Montreal Convention 1999 on air carriage
13 which excludes any compensation for
non-material damage.
14 This can be said as one of the major differences between the
two conventions with respect to injuries suffered. However, this can be interpreted in
various ways by the national courts in the states that ratify the Convention, and thus
might undermine a desired uniformity.
Another similarity with the Montreal Convention is the exclusivity of the cause of
action. Article 14 of the Athens Convention states explicitly that:
No action for damages for the death of or personal injury to a passenger, or for the loss of or
damage to luggage, shall be brought against a carrier or performing carrier otherwise than in
accordance with this Convention.
Compared to Article 29 of the Montreal Convention the pre-emptive effect is not
absolute; the claimant may bring a claim against the same carrier for a quality
complaint, or for loss of enjoyment, outside the ambit of the Athens Convention.
15
Comparing the nature of both types of carriage, one may observe that carriage by air
is essentially transportation from one place to another for a short period of time
where the passengers are required to fasten their seatbelts and cannot move in the
aircraft during the takeoff and landing unless they do not follow the safety instructions. The sea passengers, on the other hand, are significantly free on board a ship,
and as a result, are more exposed to risks and injuries that not related to transportation and sometimes suffer injuries that are more related to hotel land-based risks.
It is a point of observation that the Convention is mandatory in its application
unlike various soft-law alternatives or contractual provision and will prevail over
any contractual terms which are clearly in conflict with the Convention’s provisions
in the same manner as the Hague-Visby Rules on carriage of goods. This is
specifically provided in Article 18 which addresses invalidity of contractual provisions. It provides, inter alia, that the provisions which aim to relieve any person
liable under the Convention of liability or setting the lower limits of liability shall be
null and void. It can be submitted that this provision reiterates the goals underlying
the Convention to provide the minimum limits of liability of the carrier and to protect
a passenger as a weaker party to a contract.
The major article enshrining the carrier’s liability in Athens Convention 2002 is
Article 3 which provides:
1 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:
13 Convention for the Unification of Certain Rules for International. Carriage by Air, 28 May 1999.
(ICAO Doc No 4698).
14 It was explicitly explained by the draftsmen and the leading cases from several jurisdictions.
15 Saggerson (2008), p. 562.
A Critical Analysis of Carriage of Passengers by Sea: Uniformity. . .
65