Maritime Transport (Contracts of Carriage of Persons)
1. Practical importance
Today, carriage of persons by sea is only rarely to be found over long-distance routes. Since aviation emerged in the 1930s, it constantly gave way to this faster type of carriage. Today, it is most relevant in relation to ferry services over short and sometimes middle distances. According to Eurostat statistics the number of passengers who passed through EU-27 ports in 2009 is estimated at 403 million. Specifically, in the Baltic Sea to and from Scandinavia and in the Mediterranean Sea between Italy and Greece, 40 billion p/km (passenger-kilometres) were covered in the EU in 2009. This figure embodies any kind of carriage of persons on the sea, including regional ferry services. The United States, Japan, China and Russia contributed another 12 trillion p/km. Successfully reaching the final destination is the characteristic feature of such contracts. The carriage to that destination, not the bare effort to do so, is what is legally due.
Additionally, carriage of persons by sea encompasses cruises or other leisure tours, eg guest tours on cargo ships. Therefore, it is less the success of transport (the haulage from one location to another) that comes to the fore, but the whole trip per se. As concerns short cruises and leisure tours, the particular environment itself (the location) plays a significant role, eg on a cruise in the Caribbean or in the Norwegian Sea. In contrast, the carriage is an important factor on long-distance luxury journeys, eg (once) on the Queen Elizabeth II travelling from Southampton to New York or vice versa.
2. Uniform law: Athens Convention of 1974 and the Protocol of 2002
Unlike the maritime transport of goods, uniform law for maritime transport of persons evolved relatively late and did not meet with wide success. Since 1974 the so-called Athens Convention has existed as developed by the International Maritime Organization. Two Protocols to the Convention were adopted: a Protocol from 1976 which aims to convert francs Poincaré to the International Monetary Fund’s Special Drawing Rights (SDR) as the relevant currency for liability, and another Protocol from 2002. Predecessors of the Athens Convention were two draft conventions by the Comité Maritime International of 1961 and 1967 which never entered into force. However, only a minority of the EU Member States have ratified the Athens Convention. Still, the EU intends to accede to the Protocol of 2002 as, in the wake of progress in Union law, the external competence for the conclusion of international treaties has passed onto the European Union. This also implies the accession to the Athens Convention as such since the Protocol of 2002 cannot operate as a stand-alone without the Convention as its basis. A proposal for a respective Council decision is pending at present (July 2011).
a) Structure of the Athens Convention of 1974
The Athens Convention of 1974 is substantively limited to claims resulting from the death of, or personal injury to, passengers or the loss of, or damage to, luggage or damage caused by delay for deferred delivery of baggage. The Convention prescribes a minimum level of liability in favour of the passenger which, in general, cannot contractually be waived. But then characterization issues are intensified and exacerbated since the claims covered can be lodged only in the framework of the Convention. Liability under the Convention generally follows the principle of fault according to Art 3(1) but with a partial shift of the burden of proof in favour of the claimant through sometimes quite extensive presumptions of fault under Art 3(3). The carrier is responsible for his servants or agents. Unlike in the field of carriage of goods by sea (maritime transport (contracts of carriage of goods)), there are no exceptions for nautical fault. The contractual carrier is also liable for the misconduct of a commissioned actual carrier (Art 4(2)). The actual carrier and the contractual carrier are jointly and severally liable to the passenger insofar as the actual carrier has acted. For valuables, liability only exists if a special obligation for safe custody has been agreed upon. The cap for liability stemming from bodily injury was originally set at 700,000 francs Poincaré but since the Protocol of 1976 is now set at SDR 46,666 (Art 7); the liability cap with regard to the loss of, or damage to, luggage is at SDR 833 for cabin luggage, at SDR 3,333 for motor vehicles including the luggage in or on it, and at SDR 1,200 for other luggage (Art 8). Limitations on liability in the carrier’s favour can also be invoked by the carrier’s servants and agents (Art 11). Pursuant to Art 13, limitations of liability are, however, not available for those who intended to cause such damage or acted recklessly and with knowledge that such damage would probably result. In the event of apparent damage to luggage, the passenger has the obligation to give written notice at the time of disembarkation rather than at the time of re-delivery of luggage, and, likewise, within a short period after detection in the event of hidden damage (Art 15). Rules on prescription and on jurisdiction complete the regime (Arts 16, 17).
b) Structure of the Protocol of 2002
The Protocol of 2002 primarily purports to effect a realistic adjustment of the amount of liability in light of the overall development since the 1970s. One has to distinguish between strict liability on the one hand and liability based on fault on the other hand. Strict liability applies to so-called shipping incidents, ie damage caused by the handling of the ship where the passenger does not have any true opportunity to interfere. For other personal injuries on board, liability is fault-based. For shipping incidents the liability cap is €287,500 (SDR 250,000) for strict liability and a further €460,000 (SDR 400,000) are added in the event of liability for (presumed) fault. The carrier is deprived of any right of limitation and is liable without limit if it is proven that 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 (Art 13). The introduction of compulsory liability insurance is a major innovation in the Protocol of 2002; it is executed in minute detail including even the particularities of judicial proceedings in this regard.
3. ‘Athens Regulation’
The maritime transport of passengers is, however, not a mass tourism business as regards long-distance travel. Additionally, delay and default losses tend to be limited, in the event they ever become relevant. Consequently, notwithstanding the absence of any uniform law coverage, the EU decided only relatively recently to create its own regulations on consumer or passenger rights in maritime law. The project of a regulation implementing the 2002 Protocol of the Athens Convention into Union law—following in the footsteps of Reg 2027/97 (OJ EC 1997 L 285/1) whereby the major elements of liability with regard to air carriers were copied from the Warsaw-Montreal regime into Union law—did not proceed quickly but instead bounced along for a considerable time, not advancing from the status of a mere proposal (COM (2005) 592 final). The effort forms part of an overarching policy which addresses risks ordinary citizens might suffer in everyday life. Finalization has been reached with Reg 392/2009 (OJ EU 2009 L 131/24). Furthermore, the entry into force of the so-called Athens Regulation has now become only a matter of time. The European Union is (July 2011) in a process of internal preparation for its accession.
The principles of the current policy have already been outlined in the European Commission’s Communication on enhancing the safety of passenger ships (COM(2002) 158 final): the carrier is to be strictly liable up to a maximum total. Liability insurance becomes compulsory. The injured party should have a direct claim against the insurer. This regime should also cover national transport within individual Member States. The first two aspects are exactly in line with the changes within the Athens Convention implemented by the Protocol of 2002. The Commission has striven for full harmonization of the liability amounts. The levels set are exactly the same as the amounts in the Protocol of 2002. Article 4(1) Athens Regulation, accordingly, eliminates any opportunity for the Member States to introduce higher amounts of liability (compared to the Protocol where it is allowed). On the other hand, Art 5 of the Athens Regulation goes beyond the Protocol since it allows partial advance payments analogous to the Union regulations on passenger rights on air and railway transport. The duty to inform provided for in Art 6 Athens Regulation is also a progressive element. Therefore, the EU displays a clear tendency towards establishing a coherent and, to the greatest extent possible, uniform system of passenger rights for all modes of transport.
4. Other Union law
Apart from the Athens Regulation, Union law does not directly capture the carriage of persons by sea. This does not mean, however, that it would not bear any relevance whatsoever. Exceptionally, cruises in particular can be part of a travel package and thus be covered by the regime of the Council Directive regarding package travel (Dir 90/314 of 13 June 1990 on package travel, package holidays and package tours). In that regard, non sector-specific Union rules operate as cross-section regulations. The regime for package travel provides a very adequate solution since, with regard to cruises, transportation is not the dominant factor, but rather the total package including accommodation, sightseeing, entertainment, etc.
5. European private law
Carriage of passengers by sea is too specialized an issue for European private law in the strict sense and therefore the latter has not specifically seized upon it. Hence, there is no separate regime for carriage of passengers by sea either in the Principles of European Contract Law (PECL) or in the ACQP or in the Draft Common Frame of Reference (DCFR). Moreover, a certain respect for the uniform law which dominates in this context would and should prevail.
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