Chapter 1 

BACKROUND TO THE STUDY

The Athens Convention The Athens Convention1 sets out the international regime of carrier liability for damage suffered by passengers on board a seagoing ship.2 The 1974 convention is in force in 35 countries.3 A 1976 protocol replaced the gold franc standard with the SDR4; this was followed by the unsuccessful protocol of 1990 which attempted to raise the liability limits and has now been superseded by the 2002 protocol which has introduced a number of important amendments and will enter into force twelve months after it is accepted by 10 States.5 The convention applies to any international carriage6 where the contract of carriage is made, or the place of departure or destination, or the ship’s flag or registration is, in a State that is party to the convention.7
Establishing liability Carrier liability under Article 3 is one area that has been substantially revised by the 2002 protocol.

Under the 1974 Convention the carrier is liable if the damage suffered occurred as a result of the fault or neglect of the carrier in the course of carriage; in other words this creates a fault based test of liability. Under Article 3(2) the claimant has to prove the extent of the damage and that the incident which caused it occurred in the course of the carriage.8 Article 3(3) puts the burden of proof on the carrier, presuming fault or neglect, if the death, personal injury, or the loss of or damage to cabin baggage “arose from or in connexion with the shipwreck, collision, stranding, explosion or fire, or defect in the ship.” In regards to other luggage the same is presumed irrespective of the nature of the incident. In all other cases the burden of proving fault or neglect is on the claimant. The 2002 Protocol to a large extent rewrote Article 3 to make it more clear and established two levels of carrier liability. Preserving the fault based system from the old Article 3 and adding a second layer of strict liability for death and personal injury.

Under Article 3(1) the carrier is liable for death or personal injury to a passenger caused by a shipping incident9 up to an amount of 250,000 SDR unless it can prove that the incident resulted from war, insurrection, natural phenomenon, or was wholly caused by and with intent by a third party.10 If the loss exceeds this limit the carrier is further liable, unless it can prove that the incident was not caused by its fault or neglect. Further for death or personal injury which is not caused by a shipping incident the burden of proving fault or neglect of the carrier lies on the claimant.11 For cabin baggage the carrier is liable if the loss or damage was the result of its fault or neglect, which is presumed for loss caused by a shipping incident.12 In regards to other luggage the carrier is liable if it can’t prove that the loss or damage occurred without its fault or neglect.13 In regards to strict liability the salient point here is that it covers only incidents of shipping nature, meaning if a passenger gets hurt in the hotel part of the cruise ship then strict liability would not apply and ordinary principles of negligence would, as can be seen in the case of Dawkins v Carnival14 where the passenger slipped in the ships restaurant.15 The court treated the incident as it would a land based slip and fall accident considering the judgements of Ward16 and Turner17 New addition in Article 3 is the definitions paragraph (5) which makes the text of the article more concise and also defines in sub-paragraph (c) what a ‘defect in the ship’ covers, and helps to avoid any ambiguity that might have existed in regards to this term from PAL 1974.18 Under Article 519 the carrier is not liable for loss or damage to any valuable items, such as art or jewellery, unless the items have been given to the carrier for safe-keeping. The limits from Article 8(3) still apply unless otherwise agreed pursuant to Article 10(1).20 Finally it should be noted that if the carrier proves that the death, injury, or damage to luggage was caused or contributed to by the passengers own fault or neglect then the court may wholly or partly exonerate the carrier from any liability.21
Compulsory insurance As a result of imposing strict carrier liability the 2002 Protocol had to ensure that carriers would be able to cover any passenger claims and as a result it has under Article 4bis introduced a system of compulsory insurance, which together with strict liability resembles the system created in the 1969 and continued in the 1992 Civil Liability Convention22 in regards to oil pollution liability. Just like Article VII(8) in CLC 1992, Article 4bis(10) gives the claimant a right to recover directly from the insurers or others providing the financial security. The carrier is responsible for maintaining insurance or other financial security to cover death or personal injury for a minimum amount of 250.000 SDR per passenger.23