Carriage of Passengers

Comparative Analysis

International Overview

The International Convention for the Unification of Certain Rules Relating to Carriage of Passengers by Sea (the “Passenger Convention 1961”) was adopted in Brussels on 29 April 1961 and came into force on 4 June 1965. It was in force in 11 States as of 1 May 2005 (see the IMO website), but never achieved general acceptance among major shipping nations, with the exception of France. France, however, denounced the Convention in 1975, alhtough national legislation based on it is still in force there. See infra.

The International Convention for the Unification of Certain Rules Relating to the Carriage of Passengers’ Luggage by Sea (the “Luggage Convention 1967”) was adopted in Brussels on 27 May 1967 but never came into force. States required for coming into force: 5. States party as at 1 May 2005: 2 (Algeria and Cuba). The Luggage Convention 1967 nevertheless served as the basis for national legislation in France (see infra).

The Athens Convention relating to the Carriage of Passengers and their Luggage by Sea (the “Athens Passenger Convention 1974”) was adopted in Athens on 13 December 1974 and came into force on 28 April 1987. The Convention was in force in 31 States as at 31 March 2005. See the IMO website. A Protocol to the Athens Passenger Convention 1974, replacing the poincaré gold franc (p.g.f.) limitations of liability of the carrier by limitations expressed in Special Drawing Rights (S.D.R.’s), was adopted in London on 19 November 1976 and came into force on 10 April 1989. The 1976 Protocol was in force in 25 States as at 31 March 2005. See the IMO website. A further Protocol was adopted in London on 29 March 1990. It never came into force, because it required the adherence of 10 States and had only 5 State parties (Albania, Croatia, Egypt, Spain and Tonga). See the IMO website. Nevertheless, the 1990 Protocol was enacted into national law by various countries, including Canada (infra), China (infra) and the Nordic countries. The 1990 Protocol was superseded by another Protcol, adopted in London on 1 November 2002, which, however, is not yet in force. The 2002 Protocol again increases the carrier’s limitations of liability, authorizes their subsequent adjustment using the tacit acceptance procedure, provides for a measure of strict liability, introduces compulsory insurance for carriers, reverses the burden of proof in some cases, and permits an increase of some limitations by national legislation. States required for coming into force of the 2002 Protocol: 10. States party as at 31 March 2005: 3 (Albania, Latvia and Syrian Arab Republic). See the IMO website.

In brief, the Athens Passenger Convention 1974 applies to the international carriage of passengers (but not guests or stowaways) and their luggage aboard a ship flying the flag of a Contracting State, or under a contract of carriage made in such a State or where embarkation or disembarkation occurs there. Carriers and performing carriers are made jointly and severally liable, from embarkation to disembarkation (including periods of water carriage to and from the ship), for the bodily injury or death of passengers, and for loss of or damage to their luggage, occurring in the course of the carriage, due to the carrier’s fault or neglect or that of its servants or agents acting within the scope of their employement. The Convention enacts specific rules on burden of proof and provides a rebuttable presumption of fault on the part of the carrier in cases of shipwreck, collison, stranding, explosion, fire or defect of the ship. The time for suit is two years from the date disembarkation occurred or should have occurred (or from the date of post-disembarktion death caused by an injury during the carriage, but no later than three years from the date of disembarkation). The passenger also has an option as to places in which to sue or arbitrate.

The carrier’s limitations of liability under the Athens Passenger Convention 1974, as amended by its 1976, 1990 and 2002 Protocols, are as follows:
a) for personal injury or death (per passenger/per carriage):
700,000 p.g.f. (1974 Convention); 46,666 S.D.R.’s (1976 Protocol); 175,000 S.D.R’s (1990 Protocol); 250,000 S.D.R.’s (2002 Protocol);
b) for loss of or damage to cabin luggage (per passenger/per carriage): 12,500 p.g.f. (1974 Convention); 833 S.D.R.’s (1976 Protocol); 1,800 S.D.R.’s (1990 Protocol); 2,250 S.D.R.’s (2002 Protocol);
c) for loss of or damage to other luggage (per passenger/per carriage): 18,000 p.g.f. (1974 Convention); 1,200 S.D.R.’s (1976 Protocol); 2,700 S.D.R.’s (1990 Protocol); 3,375 S.D.R.’s (2002 Protocol);
d) for loss of or damage to a vehicle or its contents (per vehicle/per carriage): 50,000 p.g.f. (1974 Convention); 3,300 S.D.R.’s (1976 Protocol); 10,000 S.D.R.’s (1990 Protocol); 12,700 S.D.R.’s (2002 Protocol).
These limitations may be broken only on proof that the damage resulted from an act or omission of the carrier or of his servants or agents, done with the intent to cause the damage or recklessly and with knowledge that the damage would probably result. The applicable limits of liability may not be reduced by contract, although the parties may agree to higher limitations. The carrier may be exonerated or its liability may be reduced, however, on proof of contributory negligence on the part of the passenger.

The carrier and the passengers may also contract for deductibles as follows:
a) for loss of or damage to a vehicle (per vehicle/per carriage): 1,750 p.g.f. (1974 Convention); 117 S.D.R.’s (1976 Protocol); 300 S.D.R.’s (1990 Protocol); 330 S.D.R.’s (2002 Protocol); and
b) for loss of or damage to other luggage (per passenger/per carriage): 200 p.g.f. (1974 Convention); 13 S.D.R.’s (1976 Protocol); 135 S.D.R.’s (1990 Protocol); 149 S.D.R.’s (2002 Protocol).

Canada

Prior to 2001, the carriage of passengers by water in Canada was subject to Canadian maritime law, with its mixed common law and civilian heritage. Accordingly, carriers enjoyed considerable freedom to contract out of liability for harm sustained by pssengers, even if it resulted from their own neligence or that of their servants or agents. The non-responsibility clause had to be clear, however, and reasonable notice had to be given to the passenger, nor could the clause excuse gross negligence.

Although Canada never ratified or acceded to any international convention on the responsibility of the carrier of passengers, Canada gave the force of law to the Athens Passenger Convention 1974, as amended by its 1990 Protocol, by the Marine Liability Act, S.C. 2001, c. 6, Part 4 and Schedules 1 and 2 (in force 8 August 2001). For the purposes of applying the Convention, Canada is declared a State party (Marine Liability Act, sect. 38). In giving effect to the Convention, Canada extended its application, so as to include a very wide definition of “ship”, the carriage of passengers on inland waterways as well as by sea, and the carriage of passengers otherwise than under a contract of carriage (e.g. where one person purchases tickets for a number of other individuals or where a bus operator includes ferry transport in the cost of the bus trip).

United States

The United States is a not party to any international convention on the carriage of passengers or their luggage by sea. Contracts for the carriage of passengers by water are regarded in the U.S. as maritime contracts falling within U.S. admiralty jurisdiction and subject to U.S. federal maritime law (i.e. the general maritime law), augmented by few statutory porivisions. Carriers are liable for negligence in failing to exercise “reasonable care” of passengers and guests on the vessel, but are not liable for harm to trespassers or stowaways (see Kermarec v. Compagnie Generale Transatlantique 358 U.S. 625, 1959 AMC 597 (1959)). Carriers are strictly liable, in most U.S. Circuits, for intentional torts committed by their crewmembers against passengers(e.g. assasults, harassment or fraud).

The Circuits are divided, however, as to whether the carrier’s strict liability in such cases arises wherever its servants deliberately commit such torts, or only where the wrongdoing occurs in the scope of employment of the employees concerned. Exemption and limitation clauses in passenger tickets are not valid to relieve the carrier from liabiilty for loss of life or personal injury caused to pssengers by the carrier’s negligence or that of its servants or agents (46 U.S. Code 30509, formerly 46 U.S.C. Appx. 183c). Such provisions may be effective, however, in respect of claims for loss of or damage to luggage and effects of passengers, provided the provisions concerned are “reasonable under the circumstances” and are reasonably communicated to the passengers. The normal time for suit is three years for bodily injuries under 46 U.S. Code 30106 (formerly 46 U.S. Code Appx. 763a), but it may be restricted by reasonable contractual provisions adequately communicated to the passenger. Carriers may not, however, provide by contract for a period shorter than six months for notification by claimants of death or bodily injury claims (46 U.S. Code 30508(b)(1), formerly 46 U.S.C. Appx. 183b(a)), nor for a limitation period of less than one year for the taking of suit on such claims. Forum selection clauses in passenger tickets are generally given effect by U.S. courts, except where they are found fundamentally unfair. See Carnival Cruise Lines Inc. v. Shute 499 U.S. 585, 1991 AMC 1697 (1991).

United Kingdom

Traditionally, the carriage of passengers in England was subject to the common law, which imposed on carriers an obligation of reasonable care, but which also afforded them considerable latitude to contract out of liability by exemption and limitation clauses in their passenger tickets, even in respect of harm caused to passengers by their own negligence or that of of their servants or agents. Over time, English courts gradually restricted this wide freedom of contract, requiring clarity in the non-responsibility clauses and reasonable notification of the passengers.

The U.K. first gave the force of law to the Athens Passenger Convention 1974 by the Merchant Shipping Act 1979, U.K. 1979, c. 39, sects. 14 and 16 and Schedule 3, effective 1 January 1981. The Convention now has the force of law in the U.K. by virtue of the Merchant Shipping Act 1995, U.K. 1995, c. 21, sect. 183 and Schedule 6, Part I.

France

Under the traditional civil law in France, carriers were rebuttably presumed responsible for bodily injury or death sustained by passengers under contracts of carriage by water, and could only escape that liabiity by proving that the harm was attributable to irresistible force (force majeure), the fault of the victim or the fault of a third party. Carriers could also benefit from exemption and limitation clauses, although such provisions could not excuse acts or omissions tantamount to fraud (dol) or gross negligence (faute lourde). Claimants sometimes circumvented these contractual bars by taking suit in delict or quasi-delict against the carrier or his individual employees.

France ratified the Passenger Convention 1961 on 4 March 1965. The Convention came into force for that country on 4 June 1965 and was published by Decree No. 65-533 of 1 July 1965. France incorporated the Convention’s provisions into its internal law by Law No. 66-420 of 18 June 1966 (arts. 33-42) and Decree No. 66-1078 of 31 December 1966 (arts. 60-74). The carrier’s limitation of liability for claims for bodily injury or death of passengers was first set at 82,000 p.g.f. per passenger by Decree No. 67-268 of 23 March 1967. This limitation was increased to 46,666 S.D.R.’s per passenger, not to exceed 25 million S.D.R.’s for any occurrence, by art. 4 of Law No. 86-1292 of 23 December 1986 amending art. 40 of Law No. 66-420, thus reflecting the carrier’s limitation under art. 7(1) of the Limitation Convention 1976.

Law No. 66-420, art. 40 as amended, unlike the 1961 and 1974 passenger conventions, also provides for a limit for delay in the carriage of passengers and their luggage, being 167,000 S.D.R.’s for a ship with a tonnage not exceeding 500 tons, plus 167 S.D.R.’s for each ton from 501 to 30,000; plus 125 S.D.R.’s for each ton from 30,001 to 70,000, plus 83 S.D.R.’s for each ton exceeding 70,000 (these limitations reflecting art. 6(1)(b) of the Limitation Convention 1976.

All limitations are breakable only on proof that the loss or damage resulted from the personal act or omission of the carrier or its servants or agents, committed with intent to cause the damage or recklessly and with knowledge that the damage would probably result. Although France denounced the Passenger Convention 1961 on 3 December 1975, Law No. 66-420 as amended, in respect of passenger claims, continues to be in force as part of France’s national law.

France, although it denounced the Passenger Convention 1961 in 1975, has not become party to the Athens Passenger Convention 1974, although that Convention may apply in France where designated by the country’s private international rules on contract, notably the Rome Convention 1980.

France never became party to the Luggage Convention 1967 but its provisions inspired national legislation in Law No. 66-420 of 18 June 1966 (arts. 43-46) and Decree No. 66-1078 of 31 December 1966 (arts. 75-77). The limitations for baggage were established in poincaré gold francs (p.g.f.) by arts. 3 and 4 of Decree No. 67-268 of 23 March 1967, were increased by Decree No. 86-1065 of 24 September 1986 and were then converted to euros by Decree No. 2001-861 of 18 September 2001 (in force 1 January 2002). These limits are now as follows: 1,140 euros per passenger for cabin luggage (bagages de cabine); 4,600 euros per vehicle (véhicule de tourisme), including luggage contained in it; 1520 euros per passenger for luggage other than that mentioned above (carried in the hold), and 460 euros per passenger for personal effects and unregistered cabin luggage (effets personnels et bagages de cabine non enregistrés). These limitations can be broken on proof of the carrier’s fraud (dol) or inexcusable fault (faute inexcusable). Valuable deposited by the passenger with the master or purser are not subject to any limitations of carrier liability, however.

China

China acceded to the Athens Passenger Convention 1974 on 1 June 1994 and it came into force in that country on 31 August 1994. The provisions of the Convention are reflected in the Chinese Maritime Code 1993 at arts. 107-126. The Code also makes provision for national limitations of liability of the carrier in the case of carriage of passengers between ports of the People’s Republic of China.

Appendix “B”.doc

1. S.D.R. (“D.T.S.- Droits de tirage spéciaux”) [Span.: “Derechos especiales de giro”] [Ital.: “D.S.P., diritti speciali di prelievo”] – Special Drawing Rights are an international value used to provide a regular comparative evaluation by the International Monetary Fund of the currency of member nations. Value of a national currency will rise in S.D.R.s as the value of the national currency rises on the world market. S.D.R.s therefore are a fair evaluation of the comparison of national currencies one with another and as such useful as a valuation for limitation in an international convention. If S.D.R.s adjust to the rise and fall of the currency of a single nation as compared with other nations, they do not adjust to world inflation and as a result, the limitation of liability in S.D.R.s in various conventions has fallen as all currencies have inflated. In this respect, S.D.R.s are unsatisfactory. Gold does adjust to world inflation over very long periods of time, but in the short run suffers violent fluctuations in value. Gold has also been controlled in price by many countries at various times. Both S.D.R.s and gold suffer from the reluctance of many nations to comply with a market evaluation of their currency.

For the period 2001-2005, as determined by the International Monetary Fund, the value of the S.D.R. is equal to the market value of fixed amounts of four currencies, the U.S. dollar 45%, the euro 29%, the British pound sterling 11% and the Japanese yen 15%. (Up to December 31, 1980, there were 16 currencies in the basket). If any of the component currencies weaken, the assumption is that other component currencies will strengthen, thus moderating fluctuations in the S.D.R.’s value.

As of 1 May 2005, the S.D.R. is worth approx. $1.51 U.S., $1.89 CDN, £1.29 pounds sterling and €0.85 Euros.

2. Poincaré gold franc (p.g.f.)- One p.g.f. is 65.6 milligrams of gold of millesimal fineness 900. It was first defined by the French Law of June 25, 1928 and named after Raymond Poincaré, the French Prime Minister who stabilized the currency of France.

The p.g.f. is worth approximately 13 cents CDN or approximately 10 cents US.

By William Tetley, Q.C.