(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.
In cases when the loss is higher the above limit, the carrier is further liable unless
he proves that the incident which caused the loss occurred without the fault or
neglect of the carrier. If the loss is due to non-shipping incident, the carrier is liable if
the incident was due to the fault or neglect of the carrier. In that case, the claimant
bears the burden of proof. Another provision related to limitation of liability is
contained in Article 7 on limits of liability for death and personal injury. According
to Article 7(1) the liability of the carrier for the death of or personal injury to a
passenger under Article 3 shall in no case exceed 400,000 units of account per
passenger on each distinct occasion. However, under Article 13 the carrier might
lose its right to limit liability in case 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.
To clarify the terminology, “shipping incident” means shipwreck, capsizing,
collision or stranding of the ship, explosion or fire in the ship, or defect in the
ship.
16 Another clarification provided in this article states that the liability of the
carrier under Article 3 concerns loss arising from incidents that occurred in the
course of the carriage. The burden of proof lies with the claimant. Non-shipping
incidents are not specified in Article 3, however, it can be gleaned from various case
law, that they may include food poisoning, falling from the stairs, accidents in the
swimming pool, falling overboard, and medical maltreatment. As noted before,
accidents occurred during the shore excursions are usually explicitly excluded
from carrier’s liability in the cruise contracts. An example is death or injuries during
shore excursions for which the carriers would like to exclude their liability.
17 There
is no clear answer whether the courts would grant compensation for such injuries and
how far the judges will apply maritime law on land.
Another important provision inserted in the Convention is Article 23 regarding
amendments of limits. As usually known, in maritime law and other areas of
international law, it is extremely difficult to amend the existing conventions. The
procedure is lengthy and normally it requires to convene another diplomatic conference and open the discussion as to any amendments. This feature makes the
international conventions as inflexible instruments. By the time necessary amendments are introduced, usually in the form of a protocol, there is a big time lapse, and
sometimes these amendments become outdated even before they entered into force.
To cope with this problem, the drafters of the Athens Convention developed a
special procedure in Article 23 of the Protocol 2002 exclusively regarding the limits
16 Article 3(5)(a).
17 See e.g. the clause in Carnival Terms and Conditions, “Carnival is not responsible for any losses,
damage, death, injuries, or claims . . . while off Carnival’s ships or tenders in any port of call. . .
Guests engage in all such activities off the ship at their own risk”.
66
O. Bokareva
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.
In cases when the loss is higher the above limit, the carrier is further liable unless
he proves that the incident which caused the loss occurred without the fault or
neglect of the carrier. If the loss is due to non-shipping incident, the carrier is liable if
the incident was due to the fault or neglect of the carrier. In that case, the claimant
bears the burden of proof. Another provision related to limitation of liability is
contained in Article 7 on limits of liability for death and personal injury. According
to Article 7(1) the liability of the carrier for the death of or personal injury to a
passenger under Article 3 shall in no case exceed 400,000 units of account per
passenger on each distinct occasion. However, under Article 13 the carrier might
lose its right to limit liability in case 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.
To clarify the terminology, “shipping incident” means shipwreck, capsizing,
collision or stranding of the ship, explosion or fire in the ship, or defect in the
ship.
16 Another clarification provided in this article states that the liability of the
carrier under Article 3 concerns loss arising from incidents that occurred in the
course of the carriage. The burden of proof lies with the claimant. Non-shipping
incidents are not specified in Article 3, however, it can be gleaned from various case
law, that they may include food poisoning, falling from the stairs, accidents in the
swimming pool, falling overboard, and medical maltreatment. As noted before,
accidents occurred during the shore excursions are usually explicitly excluded
from carrier’s liability in the cruise contracts. An example is death or injuries during
shore excursions for which the carriers would like to exclude their liability.
17 There
is no clear answer whether the courts would grant compensation for such injuries and
how far the judges will apply maritime law on land.
Another important provision inserted in the Convention is Article 23 regarding
amendments of limits. As usually known, in maritime law and other areas of
international law, it is extremely difficult to amend the existing conventions. The
procedure is lengthy and normally it requires to convene another diplomatic conference and open the discussion as to any amendments. This feature makes the
international conventions as inflexible instruments. By the time necessary amendments are introduced, usually in the form of a protocol, there is a big time lapse, and
sometimes these amendments become outdated even before they entered into force.
To cope with this problem, the drafters of the Athens Convention developed a
special procedure in Article 23 of the Protocol 2002 exclusively regarding the limits
16 Article 3(5)(a).
17 See e.g. the clause in Carnival Terms and Conditions, “Carnival is not responsible for any losses,
damage, death, injuries, or claims . . . while off Carnival’s ships or tenders in any port of call. . .
Guests engage in all such activities off the ship at their own risk”.
66
O. Bokareva