Sea Passenger Rights and the Implementation of the Athens Convention in the EU

• Author: Simone Lamont-Black
• Position: Assessorin iur., Dr. (iur), Senior Lecturer in International Trade Law at the University of Edinburgh, UK and Visiting Fellow at Murdoch University, School of Law, Perth, Western Australia. A big thank you goes to Murdoch University, School of Law for generously hosting me for a large part of the writing of the paper and to Prof. Dr. Kate ...
• Pages: 36-58

(2018) 32 A&NZ Mar LJ 36

SEA PASSENGER RIGHTS AND THE IMPLEMENTATION OF THE ATHENS

CONVENTION IN THE EU*

Dr Simone Lamont-Black**

Abstract

This paper demonstrates that the Athens Convention relating to the Carriage of Passengers and

their Luggage b y Sea, 1974, as amended by the Protocol of 2002, 1 can be successfully embedded

into a broader passenger and/or co nsumer law framework. Key features of such implementation

including relevant boundary issues are illustrated. The focus is placed firstly on the

implementation of Athens 2002 by the European Union, and secondly on the manifestation of suc h

EU implementation within a Member State, in this case the United Kingdom. The latter was, at

least at the time of writing, a Member State of the EU.

Lessons learned and understanding gained from the case study of the EU’s and its Member States’

implementation may guide countries in their assessment of and approaches to a possible

implementation of Athens 2002 in the interest of harmonising sea passenger rights.

1 Introduction

1.1 The International and EU matrix

The European legal system is entwined with international carriage conventions for all modes of transport. Road,

rail, sea, inland waterways and air carriage conventions are in force and applied for carriage of goods2 and as for

rail, sea and air3 there is also a widespread convention system for the carriage of passengers; whereas for road4 it

is less popular and the convention on passenger carriage by inland waterways 5 never came into force.

* The paper forms part of the author’s work on the research project: “Ring-fencing Passenger Rights after Brexit?”, funded by the Royal

Society of Edinburgh, Scotland. The paper is based on an invited presentation to showcase the implementation of the Athens Convention in

the EU as part of a workshop on “Carriage Of Passengers By Sea: Legal Issues” under the auspices of the Global Sipping Law Forum

organized by the Maritime and Shipping Law Unit at TC Beirne Law School, University of Queensland, Brisbane, QLD.

**Assessorin iur., Dr (iur), Senior Lecturer in International Trade Law at the University of Edinburgh, UK and Visiting Fellow at Murdoch

University, School of Law, Perth, Western Australia. A big thank you goes to Murdoch University, School of Law for generously hosting

me for a large part of the writing of the paper and to Prof. Dr. Kate Lewins, Murdoch University for sharing her enthusiasm on the topic and

all matters maritime as well as her comments on an earlier draft. My gratitude also goes to the Maritime and Shipping Law Unit at TC

Beirne Law School, University of Queensland, Brisbane, QLD and in particular to Prof. Craig Forrest and Prof. Nick Gaskell for the kind

invitation to participate in their workshop on “Carriage Of Passengers By Sea: Legal Issues” under the auspices of the Global Sipping Law

Forum and to Dr. Miriam Goldby, Queen Mary University for her comments as discussant of the paper. Any errors that may have found

their way into the paper are my own. My gratitude also goes to the Maritime and Shipping Law Unit and TC Beirne Law School for hosting

me during my research visit and the kind inclusion in the School.

1 Hereafter Athens 2002.

2 See the Convention on the Contract for the International Car riage of Goods by Road, May 19, 1956, amended by Protocol to the

Convention for the International Car riage of Goods by Road, 1978, (the CMR); the Convention Concerning International Car riage by Rail,

May 9, 1980, amended by Protocol of 3 June 1999 [hereinafter COTIF] and its Appendix B, Uniform Rules Concerning the Contract for

International Carriage of Goods by Rail [hereinafter CIM]; and to a lesser extent (mostly Asian and Eastern European countries, including

China and Russia) the Agreement for International Goods Transit by Rail, Nov. 1 1951 [hereinafter SMGS]. For air carriage see Convention

for the Unification of Certain Rules for International Car riage by Air (Montreal, 1999) and the earlier Warsaw Convention, the Convention

for the Unification of Certain Rules Relating to Internationa l Carriage by Air (Warsaw, 1929) and its various protocols. With respect to sea

carriage see the International Convention for the Unification of Certain Rules Relating to Bills of Lading 1924 (the Hague Rules), as

amended by Protocol To Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading 1968

(Hague-Visby Rules) apply to large extent with a small minority of states (e.g. Austria and Romania) having ratified the United Nations

Convention on the Carriage of Goods by Sea, Mar. 31, 1978 (Hamburg Rules).

3 See the Uniform Rules Concerning the Contract for International Carriage of Passengers by Rail, Appendix A of COTIF; the Athens

Convention relating to the Carr iage of Passengers and their Luggage by Sea, 1974, and the 1974 Convention as amended by the Protocol of

2002; and the Montreal and Warsaw Conventions (see above) which also apply to the carriage of passengers.

4 See the Convention on the contract for the international ca rriage of passengers and lugga ge by road (CVR) Geneva, 1973, while in force

has only 9 state parties and its 1978 Protocol is not in force (see UN Treaty status information at

<https://treaties.un.org/pages/participationstatus.aspx> Chapter XI, B Road Traffic, no 26 and 26a, accessed 20.06.18).

5 See the Convention on the contract for the international ca rriage of passengers a nd luggage by inland waterway (CVN) Geneva, 1976, not

in force with only one party (see UN Treaty status information <https://treaties.un.org/pages/participationstatus.aspx> Chapter XI, D Water

Transport, accessed 20.06.18).

Carriage of Passengers by Sea: Legal Issues

(2018) 32 A&NZ Mar LJ 37

Implementation of the 2002 Athens Convention is only one element of the EU’s passenger rights initiative,

celebrated as one of the resounding achievements of the EU transport policy,6 providing passengers with

guaranteed rights across all forms of transport.7 It is part of the broad er implementation of and alignment to

international carriage regimes, which therefore harmonises c arrier liabilities and compensation to passengers not

only across the E uropean Union but internationally per mode of transport. A further element is provided by EU

Regulation across all EU Member States giving passengers rights of information, non-discrimination in case of

disability or mobility impairment, assistance and compensation in case of cancellation or delay. And last, but not

least, the resulting specialised system is given priority within the general consumer law matrix.

The advantages of a regi me based on international carriage conventions are plentiful: firstly the fora in which

the parties can claim are allocated usually by giving the claimant a choice between jurisdictions 8 and, if at all,

allowing jurisdiction clauses to only supplement this choice but not to exclude it. Secondly, by harmonising the

rules of substantive law of carriage, the regime limits to large extent the ad vantages of forum shopping and

increases legal certainty and foreseeability of the content of the rights and obligations of the p arties.

While there are some teething problems regarding the interaction of t he transport conventions with other EU and

national law instruments in support of the traveller and/or consumer, overall, the carriage conventions as

embedded in the laws of European Member States provide protection to both sides:

• To the passenger, who benefits from mandatory liability of the carrier, which, in some regimes, may

even go further and also enshrine strict liability9 and compulsory insurance 10 of the carrier; and

• To the carrier, who can call on a shortened time bar, compared to those available under ge neral contract

and tort law, and can calculate his maximum exposure as limited by the conventions and thus obtain

appropriate insurance to the relevant levels.

1.2 Relevance of regulating carriage of passengers by sea

The area of carriage of passengers b y sea ha s seen quite recent changes and developments. Cruise holidays are

becoming ever more popular, and for 2018 27.2 million passengers were expected to embark on a cruise in

2018.11 Some of the largest cruise ships now have capacity to carry well above 6,000 passengers and 2,000

crew.12 Thus, the nature of cruise and other passenger ships means that compared to other vessels, the likelihood

6 See <https://ec.europa.eu/transport/facts-fundings/infographics/zero-to-ten_en> towards the end, at tab: “10 passenger rights however you

travel”, and see also <https://ec.europa.eu/transport/themes/passengers_en>, both accessed 23.07.2018.

7 See <https://europa.eu/youreurope/citizens/travel/passenger-rights/index_en.htm> accessed 23.07.2018. Entitlements cover information

about a journey, reservation and ticket fare; and rights in the event of accidents, damage to baggage, delays and cancellations, denied

boarding, or in case of difficulties with package holidays. Remedies include compensation, re-routing or ticket reimbursement, and

assistance – including meals, and accommodation if necessary. Rights and remedies are adapted according to the mode of transport but in

essence are comparable and are based on the three key principles of non-discrimination; accurate, timely and accessible information; and

immediate and proportionate assistance.

8 Yet, typically also, by connecting it to the cornerstones of the contract and the place of business of the defendant. However, depending on

how and where the passenger contract was made this may not necessarily coincide with the place of domicile of a passenger. Article 17.1 of

Athens 2002, for example, offers the claimant a choice between “(a) the Court of the State of permanent residence or principal place of

business of the defendant, or (b) the Court of the State of departure or that of the destination according to the contract of carriage, or (c) the

Court of the State of the domicile or permanent residence of the claimant, if the defendant has a place of business and is subject to

jurisdiction in that State, or (d) the Court of the State where the contract of carriage was made, if the defendant has a place of business and is

subject to jurisdiction in that State.” As can be seen, the place of domicile or permanent residence of the passenger is not enough on its own

terms according to Athens 2002, may however be sufficient to found a claim based on a countries’ consumer law. While a consumer

according to EU Law on international jurisdiction is entitled to sue the other party at the place of his/her domicile, this is only for qualified

consumer contracts (i.e. sale of goods on instalment credits; loan contracts repayable in instalments or other credit agreements to finance

sales; and contract activities which were directed to the consumer’s Member State (Br I bis Reg art 17.1) and transport contracts, other than

package travel contracts, are excluded (Br I bis Reg art 17.2) in order to allow for the provisions of relevant international convention

regimes. In this light, it needs to be appreciated that the substantive law is harmonised via Athens and protection of the passenger should

thus also be available in all other contracting states to the convention.

9 See the Montreal Convention arts 17.1 and 21.1 for air carriage and for sea carriage see Athens Convention 2002 art 3.1.

10 See the Montreal Convention art 50 for air carriage and for sea carriage see Athens Convention 2002 art 4 bis; the latter also providing the

claimant with the benefit of direct action against the insurer (art 4 bis (10)).

11 See Press Release of the Cruise Lines International Association (CLIA) Europe (CLIA being the world's largest cruise industry trade

association with representation in North and South America, Europe, Asia and Australasia)

<https://www.cliaeurope.eu/images/SOTCI_Release_Final_EU_121517.pdf> (accessed 14.09.18): “Current data shows cruise travel is

steadily on the rise with a projected 27.2 million passengers expected to set sail in 2018. In 2017, an estimated 25.8 million passengers

cruised compared to a confirmed 24.7 million passengers in 2016, an increase of 20.5 percent over five years from 2011-2016. To meet

ongoing demand, more ships are scheduled to set sail in 2018. CLIA Cruise Lines are scheduled to debut 27 new ocean, river and specialty

ships this coming year.”

12 See e.g. the new ‘Symphony of the Seas’ <https://www.royalcaribbeanpresscenter.com/fact-sheet/31/symphony-of-the-seas/> or the

‘Allure of the Seas’ https://www.royalcaribbeanpresscenter.com/fact-sheet/20/allure-of-the-seas/> (both accessed 14.09.18).