Section 5 Passenger liabilities
3.5.1 General
The section sets out the extent of cover for personal injury, illness or death of passengers. Furthermore, it deals with the cover for liability in respect of cabin luggage, other luggage and vehicles. Finally, it defines the cover for obligations to forward the passenger and his luggage and to arrange for the passenger’s maintenance in case of a casualty to the entered ship. Delay of passengers and their luggage is covered under Rule 5. For the sake of continuity and completeness, the cover for passenger delay is commented upon under this section.
3.5.2 “Passenger”
What constitutes a passenger? The definition is not entirely clear. In the Athens Convention of 2002 relating to the Carriage of Passengers and their Luggage by Sea (the Athens Convention), “passenger” means any person carried in a ship,
(a) under a contract of carriage, or
(b) who, with the consent of the carrier, is accompanying a vehicle or live animals which are covered by a contract for the carriage of goods not governed by this Convention.
Countries which have not ratified the Athens Convention may have other definitions based on domestic law or legal practice. The difference is not expected to be significant. A fee may not necessarily be charged for the carriage of a person to make him a passenger. Customers of the line who are allowed to travel with a ship free of charge for business reasons may be regarded as passengers. Exclusions or limitations of liability in any contract of passage may be set aside to the extent they conflict with mandatory legislation in favour of the passenger. To the extent possible, such exclusions or limitations of liability conflicting with mandatory legislation should be avoided.
As regards crew relatives, see comments under 3.1.8.1.
If a person does not legally qualify as a passenger, the Member’s liabilities in respect of illness, injury or death are covered under Rule 3 Section 7.
3.5.3 Contracts in passenger service
3.5.3.1 Tickets
The contract of carriage is a standard contract which, according to Rule 10 Section 2 (d), must be submitted to and approved by the Club. A Member who fails to comply with that condition will not be compensated for liabilities which would not have arisen, had the condition been adhered to. Current passenger ticket terms should be updated and revised at regular intervals, or whenever required by new legal developments. As part of its loss prevention initiative, the Club can assist Members by recommending lawyers in various relevant jurisdictions to assist with the drafting of passenger ticket terms for any new passenger service.
The obligation to operate any passenger service under suitable and approved standard terms is not limited to regular cruise or passenger ships. The condition applies to any ship that carries passengers in domestic or international service.
3.5.3.2 Other contracts
There are other types of contracts in relation to the carriage of passengers which could have an effect on the extent of a Member’s liabilities. Such contracts should also be submitted to and approved by the Club. Examples of such contracts are those for catering services, doctors, hairdressers, manicurists, shops, excursions, tenders and buses.
It may even be advisable to consult the Club and its recommended lawyers when drafting public relation material such as advertisements, brochures, ticket folders or films as any undertakings, recommendations or exclusions made may influence a court’s view on liability in case of an accident. See for instance comments under 3.5.11.4 and 3.5.17.3.
3.5.4 Passenger injury, illness or death
3.5.4.1 General comments on passenger liabilities
Whether the domestic legislation applicable to a passenger injury claim is based on the Athens Convention or not, the liability, if any, will probably be decided on the following principles. The basic principle is that the carrier is liable if the accident occurred during the carriage or at a time for which the carrier has assumed liability and if it was caused by negligence of the carrier or of servants for whom he is responsible.
3.5.4.2 Burden of proof
It is for the claimant to prove that the loss suffered is a result of an illness, injury or death occurred during the carriage. The claimant must furthermore prove that the incident which caused the loss was due to the fault or neglect of the carrier except, under the Athens Convention, if the illness, injury or death was caused by a shipping incident defined as shipwreck, capsizing, collision, stranding, explosion, fire or a defect in the ship. In these situations, the carrier is presumed to have been negligent and must disprove that presumption to avoid liability.
Where the burden of proof is on the claimant, experience shows that it does not require much for a court to shift the burden to the carrier. There are several reasons for this: an injured local person making a claim against a foreign company attracts the sympathy of judges and jurors; and the court will probably consider that the carrier is in a better position to investigate and explain why things went wrong on board his ship.
3.5.4.3 How to discharge the burden of proof
For a successful defence it is important that everybody on board should have standing instructions to report immediately any passenger incident or accident, however slight, to the ship’s officers. They should make a thorough investigation and secure all evidence and testimony available. All crew members who may have been involved or who are in possession of information should be interviewed. Their story, together with their full name and other particulars needed to identify and trace them at a later date, should be put on record. That includes all relevant categories of crew such as deck and engine staff, cabin attendants, medical staff and staff operating excursions, shops, elevators or staff who are responsible for the preparation and serving of food.
Signed statements should also be taken from the passenger and any fellow passenger witnesses. This should be done as soon as possible after the incident while recollections are still fresh. Upon disembarkation passengers may be difficult to trace. Even a negative statement can be of great value. A passenger who gave a signed statement to the effect that he saw or heard nothing of the accident will find it hard to come forward later to testify against the ship.
The records should include observations made regarding any possible contributory negligence on the part of the passenger such as violation of safety regulations or precautions, unsuitable footwear or clothing, intoxication etc.
Somebody from the ship should examine the area where the accident occurred to confirm or refute allegations made or likely to be made on hazardous conditions. All observations should be put on record.
Cameras and mobile phones are invariably available on board. They present a valuable tool to secure evidence such as the general outlay of the scene of the accident, the condition of flooring, handrails, warning signs, lighting and other elements of interest to determine the cause of and the liability for the accident. In the unlikely absence of such equipment or, as a complement, sketches should be drawn and locations measured.
To mount a successful defence against a passenger injury claim the full co-operation of the ship’s medical staff is essential. Sometimes there may be a conflict between their willingness to co-operate and their legal obligation to observe professional discretion and confidentiality. Before obtaining their medical statements and records it may be necessary to secure a formal approval from the claimant. Such formalities are arranged by the Club correspondent or lawyer.
The nearest Club correspondent should be called in to protect the Member’s and the Club’s interests. If the correspondent is not a lawyer, he will engage a specialist lawyer to attend. Needless to say, the lawyer should be given full co-operation and access to the ship, its crew and documents.
Deposition of crew members may have to be taken. Deposition is an examination of a witness by the parties’ lawyers outside a trial. If the matter goes to trial, the crew member may have to appear in person as a witness. The Member will be compensated for the costs of bringing the witnesses required to the trial, including any costs of sending replacement staff to the ship during the absence of the witness. Compensation will include travel and hotel costs but wages are not compensated.
3.5.5 Time bar
A carrier would be unable to collect the evidence necessary for his defence if the claimant was allowed to defer the filing of the claim unreasonably. In most jurisdictions passenger claims are, therefore, subject to a time limit. Under the Athens Convention, claims for personal injury become, where applicable, time barred two years from the date of disembarkation. The time limit may be different in other jurisdictions. It is, needless to say, important to take note of the applicable time bar under the relevant jurisdiction.
The carrier may also impose a time limit in the passenger ticket conditions. Such clauses stating that any suit for personal injury must be commenced within one year from the day the injury occurred have been held valid by U.S. Courts of Appeal. The courts found that the tickets, examined as a whole, reasonably communicated to an injured passenger that the suit must be commenced within the contractual time bar period. Members may consult the Club for advice on passenger ticket conditions and layout. The Club will assist by recommending a specialist lawyer in the relevant jurisdiction to assist.
For further comments on time bar see under 4.1.10.
3.5.6 Personal care and attention
The liability consequences of a passenger accident can be considerably reduced if the person involved is properly looked after throughout the rest of the voyage and after disembarkation. There is nothing to make a passenger more prone to wanting to make a claim than the feeling of having been neglected physically, mentally or medically.
In addition to the carrier’s legal obligation to provide qualified medical care to an injured passenger, the carrier should see to it that the passenger is well looked after following an incident. Special provisions may be required to repatriate the passenger. Repatriation should be made as convenient as possible to the passenger, perhaps accompanied by a suitable escort. It is advisable to maintain contact with the passenger after his or her return home and during any extended medical treatment. The nature and extent of such contact should be discussed with and decided by the Club correspondent. A well-maintained contact with the passenger in a positive spirit may pave the way for a settlement without the interference of outside lawyers. That is in the long-term interest of all parties.
3.5.7 Medical malpractice
3.5.7.1 Ship’s doctor should be an independent contractor
Ships carrying passengers to or from the U.S. and probably elsewhere are obliged to have certified doctors and medical personnel on board with suitable and prescribed equipment. The medical staff can be either employed by the carrier and, therefore, members of the crew or independent contractors. For a Member there is a significant difference from a liability point of view if a doctor is a crew member or an independent contractor.
If the doctor is a crew member, the carrier remains liable to a passenger for the doctor’s negligence in the performance of his professional medical duties. The Member may have to answer for an incorrect examination or wrong diagnosis, wrong or unsuitable treatment or failure to administer proper medication. The liability consequences can be considerable. The Club recommends Members not to sign on the medical staff as crew members for the above stated reasons.
Instead, medical staff should be hired as independent contractors. The contract for their services should be submitted to the Club for approval and advice through the application of Rule 10 Section 2.
Even as an independent contractor a ship’s doctor or medical staff may impose liabilities on the carrier. A Member may be considered negligent in the choice of a doctor who proves to be unqualified, incompetent or otherwise unsuitable to act as a doctor on the entered ship. A Member remains responsible towards the passenger for substandard or inadequate medical facilities, equipment or supplies on board. A Member may be responsible for the consequences of the negligent medical treatment of an ill or injured person on board.
3.5.7.2 Ship’s doctor should have own malpractice liability insurance
The contract should stipulate that the doctor has and maintains a malpractice liability insurance assigned in favour of the carrier and providing indemnity for any loss or liability incurred by the carrier.
In the U.S.A., such malpractice liability coverage may not be effective outside the state where the doctor is qualified to practice. In such a case the shipowner may request the doctor to issue a letter of indemnity beyond the terms of the malpractice insurance cover. A claim for compensation under the P&I policy for a loss under such an indemnity is not poolable.
Cover under these Rules, if any, is therefore limited to the applicable Club Pool retention for the relevant policy period. Upon request, the Club may assist Members in having a suitable indemnity drafted by recommending a suitable lawyer.
3.5.8 Nature of claims
In addition to claims for serious personal injuries clearly related to a specific accident on board, there are claims filed for vague symptoms such as sore backs, insomnia or impotence either tied to a minor injury or completely unrelated to any known accident. The symptoms are backed by medical evidence or testimony from doctors or experts, some of whom are notorious for supporting false claims. The validity of any such allegation is investigated by the Club and its lawyers to the extent it is practically and legally possible. A good result requires the full co-operation of the Member and his employees.
Claims may be filed for post-traumatic stress disorder (PTSD) or “nervous shock”. Such claims may be filed by the person involved in a disaster but also by rescuers, relatives or friends. The Member is covered under this section should he become liable and the claim is directly caused by a risk covered under these Rules.
Relatives of passengers who have been killed or injured may file claims for loss of consortium and loss of companionship, service, society and support. This includes emotional elements such as loss of companionship and sexual relations but also practical elements like mending the family car or mowing the lawn. Such claims are handled by the Club and its lawyers. Should the claim merit compensation on the Member’s behalf, cover is provided under this section.
3.5.9 Class actions
3.5.10 Settlements
Lawyers representing U.S. passengers usually work on a contingency fee basis. See comments under 3.7.2.5.1. This allows the passenger to pursue his case on a no cost and no risk basis. Should he eventually lose, he generally has no obligation to compensate the Member’s and the Club’s defence costs, which may have run high. Therefore, a settlement at an early stage may damage the Member’s records less than protracted litigation even if a defence is eventually successful.
Experience shows that the best result is achieved without the intervention of lawyers on either side. This requires swift and fully transparent lines of communication between the ship, the Member, the Club and its correspondent to decide when, how and by whom a recently injured passenger should be approached. A quick offer of reasonable financial compensation might avoid the escalation of a claim.
Settlements should be affected against releases which make the compensation full and final.
For structured settlements see comments under 3.7.2.6.5.
3.5.11 The geographical extent of cover
3.5.11.1 General comments on the geographical extent of cover
There is an important distinction between the geographical extent of cover under this clause and that under Rule 3 Section 7 which deals with persons other than crew and passengers. Cover for the latter is for accidents “on board or in relation to the entered ship”, whereas the cover for passenger liabilities is restricted to accidents on board unless the Club has agreed to extend cover beyond the ship’s rail. There are some situations in which the cover provided is so extended.
3.5.11.2 Gangways and terminals
According to the Athens Convention, “carriage” for which the carrier has a mandatory liability for negligence, includes embarkation and disembarkation. Accidents on gangways may be considered to be sufficiently vessel-related to impose a mandatory liability on the carrier for which he is covered under this section. Exactly where the mandatory liability ceases is difficult to say. Embarkation and disembarkation premises and routines may have an influence. Carriage as defined under the Athens Convention does not however include the period during which a passenger is in a marine terminal or station or on a quay or in or on any port installation. For such accidents the carrier should exclude liability in the ticket conditions. That is one of the reasons why ticket conditions should be carefully drafted and, if so requested, in co-operation with a lawyer recommended and approved by the Club. There is no cover under these Rules for a liability arising ashore which could have been avoided if the ticket had contained relevant exclusions. Liability for accidents in terminals should be shouldered by the owner of the terminal and covered under his liability insurance.
3.5.11.3 Tendering
According to the Athens Convention, the carrier has a mandatory liability for accidents caused by negligence during transport by water from land to ship and vice versa if the cost for the transport was included in the fare or if the tender was provided by the carrier. The sixth paragraph of this section confirms that the Member is covered for liabilities arising during carriage to or from the entered ship “in its own boats”. This means boats belonging to and carried by the entered ship. Cover is also provided for liabilities arising during similar transport performed by a tender. This means a local transport vessel which does not belong to the entered ship but has been put at the disposal of the passenger by the carrier. The Member may consult the Club for assistance regarding the terms of contracts for tender services, to ensure that the Member is exposed to a minimum of liability and that any liability remaining is preferably covered by the liability insurance for the tender.
3.5.11.4 Transits to the port and other forms of access to the ship
In connection with the carriage of passengers on board the entered ship, the carrier may arrange travel for the passengers to and from a port by air or by other means of transportation. The carrier may also arrange any ship/shore sea transport for the passenger by tender, launch or other such craft.
According to the seventh paragraph of this section there is no cover for any liabilities arising out of carriage by air. A Member who agrees to arrange the air transportation of passengers occasionally or on a regular basis to or from a cruise ship, must take proper precautions not to be left with considerable uninsured liabilities in case of an air crash. Suitable protective clauses must be included in the passenger tickets. The marketing of any such services has to be made in such a way that passengers can take their own precautions in time with regard to travel insurance. Members are advised to seek the Club’s advice and recommendations.
The cover under this clause is restricted to carriage performed on board the entered ship. If, under a contract of carriage, some part of the journey is performed by another carrier, cover is excluded for any liabilities which arise out of such affiliated travel. It is important that ticket conditions and other documents are drafted in such a way that the Member’s liability exposure is minimised. The Club can recommend a suitable lawyer to assist the Member upon request.
3.5.11.5 Excursions
In connection with the carriage of passengers on board the entered ship, the carrier may arrange travel for the passengers to and from a port by air or by other means of transportation. The carrier may also arrange any ship/shore sea transport for the passenger by tender, launch or other such craft.
According to the seventh paragraph of this section there is no cover for any liabilities arising out of carriage by air. A Member who agrees to arrange the air transportation of passengers occasionally or on a regular basis to or from a cruise ship, must take proper precautions not to be left with considerable uninsured liabilities in case of an air crash. Suitable protective clauses must be included in the passenger tickets. The marketing of any such services has to be made in such a way that passengers can take their own precautions in time with regard to travel insurance. Members are advised to seek the Club’s advice and recommendations.
The cover under this clause is restricted to carriage performed on board the entered ship. If, under a contract of carriage, some part of the journey is performed by another carrier, cover is excluded for any liabilities which arise out of such affiliated travel. It is important that ticket conditions and other documents are drafted in such a way that the Member’s liability exposure is minimised. The Club can recommend a suitable lawyer to assist the Member upon request.
3.5.12 Liability to forward passengers
3.5.12.1 General comments on the liability to forward passengers
In certain jurisdictions the carrier has a mandatory obligation to forward the passenger to his destination or to return him to the port of embarkation if the ship is unable to complete the contracted carriage by an accident such as, for example, grounding, fire, collision or an engine breakdown. The obligation may include the maintenance of the passenger in preparation of such transportation. The obligations are mostly restricted to a carriage which has in fact started, meaning that the passenger should have already boarded the ship. Corresponding obligations where a ship has a machinery breakdown before reaching the port of embarkation are mostly not of a mandatory nature. They can and should be contracted out of in the ticket conditions.
3.5.12.2 Extent of cover
The cover for such mandatory legal obligations is described in the third paragraph of this section and is for the net costs required to fulfil those obligations. The cover is further restricted to liability for consequences which the carrier is unable to exclude in the ticket conditions. There is no cover for the consequences of a contractual voyage having been discontinued or terminated for commercial reasons.
If a ship has a casualty of such a nature that the passengers have to be taken off the ship, it is appreciated that the Member has to arrange for their maintenance without awaiting Club approval of each expenditure. Still, the Member has the obligation under Rule 10 Section 4 to inform the Club promptly. That will make it possible for the Member to benefit from the Club’s assistance and experience gained in the handling of previous similar cases.
Examples of expenses to be expected and which may be compensated under this clause are as follows:
The carrier may have to lodge passengers in local hotels pending repatriation and to pay for their meals. Passengers may have to be equipped with a reasonable amount of clothing and other necessities and provided with spending money. Hotel bills, receipts for articles purchased and for cash advances should be obtained and presented as a basis for compensation. Expenses incurred should primarily reflect the carrier’s mandatory basic obligations. They may also take into account the desirability of retaining the passenger’s positive co-operation to pave the way for future settlement of claims which may be filed for any physical, psychological and economic consequences of the accident. The Club will directly or through its correspondent in the relevant jurisdiction provide all necessary assistance and advice, including assistance in the drafting of suitable receipts and releases to be signed by passengers in exchange for services rendered as above.
Refund of passenger fares is generally not covered by the application of Rule 11 Section 2 (j). If such a refund forms part of a settlement to replace partly or fully a cash payment for liabilities otherwise covered under these Rules, compensation may be allowed under Rule 8 Section 2.
As regards costs for repatriation, the cover under this clause is for forwarding the passengers and their luggage to the destination or to the port of embarkation stated in the contract of carriage. There are no requirements as regards the means of transportation. In consultation with the Club, the Member can choose whichever is the most suitable alternative available, taking into account costs and reasonable requests from the passengers. For some passengers a rented car may present the best solution, whereas others may be carried by bus, air or ship.
If a passenger prefers to be repatriated to his home, the Member will be compensated to the extent that such expenses correspond to the costs for transporting the passenger to the port of destination or embarkation.
3.5.13 Passage performance guarantees
Members operating passenger services to U.S. ports may be called upon by the Federal Maritime Commission (FMC) to issue a guarantee or provide security for the non-performance of the transportation. Although the risk of non-performance is excluded from cover under Rule 11 Section 2 (a), the Clubs have provided evidence of financial responsibility since the inception of this legislation as a service to Members. If that service, granted to a certain category of Members beyond the framework of the insurance cover, becomes too expensive and cumbersome to the Clubs, it will be discontinued as inconsistent with the concept of mutuality and the Club’s adopted policy not to issue anticipatory guarantees (see comments under 12.3.6).
Whether and to what extent the Club may put up a guarantee for financial responsibility in respect of non-performance of passenger carriage will be decided from case to case. Upon request, the Club will advise Members in their dealings with the FMC or any similar body requesting security.
According to Rule 12, the provision of security for insured risks is at the Club’s discretion. This is even more so, where, as here, the risks are not insured.
3.5.14 Luggage
3.5.14.1 Cabin luggage
3.5.14.1.1 Carrier’s liability for cabin luggage
Cabin luggage means luggage which the passenger carries with him or keeps in his cabin or which is in his custody. It also means luggage which the passenger carries in or on his vehicle.
The carrier is liable if the incident which caused the loss of or damage to cabin luggage on board the ship or in the course of embarkation or disembarkation was due to the fault or neglect of the carrier. The period of liability does not include the period during which the passenger is in a marine terminal or station or on a quay or on any other port installation. Where the Athens Convention does not apply, the carrier may have wider opportunities to contract out of his liabilities. A prerequisite for cover is that the contract of carriage contains all exceptions and limitations of liability which are legally enforceable. Passenger ticket conditions should be approved by the Club according to Rule 10 Section 2 (d).
3.5.14.1.2 Burden of proof
According to the Athens Convention it is for the claimant to prove that the carrier caused the loss or damage by negligence. However, where the loss or damage was caused by shipwreck, collision, stranding, explosion, fire or a defect of the ship (a shipping incident), the carrier is presumed to have been at fault or negligent and must disprove that presumption to avoid liability.
Whether the burden of proof in a given case is upon the claimant or the carrier, the possibilities for the Club to defend the Member successfully depends upon the presentation of complete facts as to the time for and cause of the loss or damage. The full co-operation of the Member’s staff on board and ashore is essential.
3.5.14.1.3 Steps to be taken at a major casualty
If the passengers have to evacuate the ship following a grounding or fire, it is important to take precautionary action to protect passengers´ belongings (for instance, sealing or otherwise protecting the cabins to avoid pilferage of cabin luggage left behind). The Club’s correspondent or lawyer will assist Members in arranging a suitable procedure locally.
Where the Member has a mandatory obligation to forward cabin luggage to its destination or to the port of embarkation following a casualty of the entered ship, such liability is covered under the third part of this section, provided that the contract of carriage has been approved and found to contain the required exclusions of liability.
3.5.14.1.4 Valuables
It follows from Rule 11 Section 2 (d) that there is no cover for valuables such as cash and jewellery. That should pose no problem to a Member since under the Athens Convention and probably under most other applicable legislation the carrier is allowed to exclude such liability in the ticket conditions. Still, the carrier may be held liable for valuables deposited with the carrier for safekeeping. A Member will be covered for loss of deposited valuables provided that the carriage has been approved by the Club as prescribed in Rule 11 Section 2 (d). For approval, the ticket conditions should contain all limitations and exclusions of liability available. The practical performance of the safekeeping should be adequate. The existence of the service on board should be brought to the attention of the passengers.
3.5.14.2 Other luggage
3.5.14.2.1 Carrier’s liability for other luggage
Luggage, other than cabin luggage, is often referred to as “registered luggage”. This means that it has been handed over to the carrier against a receipt or a separate contract of carriage. It includes passenger cars which are dealt with under 3.5.14.3 below.
Separate contracts of carriage for other luggage should be approved by the Club according to Rule 10 Section 2 (d). They should contain necessary exclusions and limitations of liability.
The period of responsibility for other luggage under the Athens Convention, when applicable, is the period from the time when it is taken over by the carrier, or his servant or agent on shore or on board until the time of its re-delivery by the carrier or his servant or agent.
3.5.14.2.2 Burden of proof
According to the Athens Convention, the carrier’s negligence is presumed for damage arising during the period of responsibility. However, the burden of proving that the incident which caused the loss occurred in the course of the carriage, and the extent of the loss, lies with the claimant.
3.5.14.2.3 Passengers’ deductible for other luggage
The carrier may include a deductible in the ticket conditions for damage to other luggage in order to avoid claims for minor losses. It follows from Rule 10 Section 2 that there is no cover for liabilities which could have been avoided had such exceptions been made.
3.5.14.3 Passenger cars
3.5.14.3.1 Carrier’s liability for passenger cars
Under the Athens Convention the carrier has the same liability for passenger cars as for other luggage. The period of liability lasts while the cars are on board the ship or in the course of embarkation and disembarkation.
The liability for some categories of vehicles is subject to the Hague or Hague-Visby Rules even if carried on a ticket which includes the driver. That also applies for trucks, lorries or similar articles of transportation where the main purpose of the transport is not to carry the driver but the goods. The Hague and Hague-Visby Rules apply to the carriage of all cars of whatever nature where the carriage is performed under a bill of lading. Liabilities under the Hague or Hague-Visby Rules are covered under Rule 4 Section 1.
3.5.14.3.2 Burden of proof
Damage arising while the cars are on board the ship or in the course of embarkation and disembarkation is considered to have been caused by the carrier’s negligence unless proved otherwise.
As is usual when it comes to liabilities with a reversed burden of proof, the carrier and his employees have to be active to secure full details as to the time and cause of any accident. Most carriers use special forms for the reporting of damage to passenger cars. Upon request, the Club can assist Members in reviewing suitable forms. The form should be countersigned by the passenger. Pre-existing damage should be noted.
In case of serious damage or when there is an element of personal injury involved, the Club should be notified and the local Club correspondent called in to assist.
3.5.14.3.3 Liability when passenger drives his own car on board
Passenger cars are frequently embarked or disembarked by being driven by the passenger himself. Even if a high degree of care is required from a passenger while driving on board, the unfamiliar environment of a ship means the carrier will be required to take adequate safety precautions to avoid being held liable. The height of cargo doors and ramp openings should be properly marked in order to prevent damage e.g. to caravans or luggage on roof racks. The passenger should be given adequate assistance while driving or parking in the narrow space available on a cargo deck or on ramps. If the passenger car is damaged because of the passenger’s own negligence the carrier should, in general, not be liable. However, where damage has occurred as a result of intervention by the crew directing the passenger in driving his car on board liability is likely to be imposed on the carrier.
3.5.14.3.4 Passenger’s deductible for cars
In order to avoid claims for minor damage, the carrier may prescribe a deductible for damage to a vehicle in the ticket conditions. It follows from Rule 10 Section 2 that there is no cover for liabilities which could have been avoided, had such an exception been made.
3.5.15 Delay of passengers and their luggage and cars
To the extent the carrier has a mandatory liability for delay to passengers, their luggage and cars, such liability is covered under Rule 5. See comments to that Rule. In many jurisdictions the carrier is allowed to exclude liability for delay in the ticket conditions. According to Rule 10 Section 2 any such exclusions should be made.
Where there is a mandatory liability for passenger delay, it is generally limited to a carriage which has started. Liabilities arising out of the late arrival of the ship at the port of embarkation should, therefore, be excluded in the ticket conditions.
As appears from the comments to Rule 5, liability for delay is restricted to losses caused directly by the delay. A passenger may for instance be unable to use a rented car awaiting his arrival at the port of destination. However, if he missed a meeting because of the delay he has no valid claim for business or time so lost.
3.5.16 Limitation of liability – the Athens Convention
The carrier’s right to limit his liability for loss of life and personal injury under the 1957 Brussels Limitation Convention and the 1976 London Convention (revised by protocol 1996) is described in comments under 2.11. The 1957 and 1976 (revised by protocol 1996) limitation conventions provide a right to global limitation.
Under the Athens Convention, where applicable, the carrier can limit his liability per passenger. In the IMO Protocol of 1990, the limitation amounts of the Athens Convention 1974 were increased. The Protocols required 10 ratifications or accessions before they could come into force. The limitation amounts of the Athens Convention 1974, the Protocol of 1990 and the Athens Convention 2002 are set out below under 3.5.16.1.3.
3.5.16.1 The Athens Convention 2002
The Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 2002 is the consolidated text of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974, and the Protocol of 2002 to the Convention. The Athens Convention 2002 came into force in April 2014 and introduced increased responsibilities and substantially higher limits of liability on behalf of shipowners and carriers.
3.5.16.1.1 Amendments of limits
The limits of liability have been increased significantly under the Athens Convention 2002, as can be seen in the chart below. As a result of the raised limits of liability, the Group Clubs have introduced a rule regarding limitation of the insurance relating to passengers in Appendix ll Rule 1 which states that the Association´s aggregate liability arising under any one Member´s entry shall not exceed USD 3 billion regarding any one event in respect of liability to passengers and seafarers, see comments under Rule 3 Section 4 and Rule 3 Section 6.
3.5.16.1.2 Strict liability
The Athens Convention 2002 introduced strict liability on behalf of the carrier for the loss suffered as a result of the death of or personal injury to a passenger caused by a shipping incident. It follows from this that the carrier must take out insurance to cover its exposure to potential claims from passengers arising from the imposition of strict liability under the Convention.
For the loss suffered as a result of the death of or personal injury to a passenger not caused by a shipping incident, the carrier is liable only if the incident which caused the loss was due to the fault or neglect of the carrier. The burden of proving fault or neglect then lies with the claimant.
3.5.16.1.3 Compulsory insurance
As noted above the Athens Convention 2002 introduced compulsory insurance to cover passengers on ships. The Convention requires carriers to maintain insurance or other financial security, such as a bank guarantee, in order to cover the limits for strict liability under the Convention regarding death or personal injury to passengers. The limit of the compulsory insurance or other financial security shall not fall below SDR 250,000 per passenger and incident. Vessels are to be issued with a certificate proving that insurance or other financial security is in force.
*If the loss exceeds this limit, the carrier is further liable up to a limit of SDR 400,000 per passenger on each distinct occasion unless the carrier proves that the incident which caused the loss occurred without the fault or neglect of the carrier.
3.5.17 General advice on passenger liabilities and how they should be avoided
3.5.17.1 General comments on passenger liability avoidance
In most situations the burden of proof initially rests upon the claimant but it can easily be shifted to the carrier by findings of fact made by a judge or jury. Courts expect passengers to be generally unaware of the hazards on board a ship. They require the carrier to eliminate or reduce such hazards and to warn the passengers in an adequate way.
3.5.17.2 Communication with passengers
It may assist a carrier’s defence to allegations of negligence if there is evidence that appropriate measures were taken to alert passengers on embarkation to the means of communication used on board and of the importance of the passengers ensuring that they are aware of the latest information available, including muster points in an emergency and of the importance of immediately contacting a member of the crew in case of an accident or illness.
3.5.17.3 Avoidance of known passenger safety risks
Another aspect of reducing the risk of findings of negligence concerns proof that marine and weather forecasts and the safety precautions they necessitate were communicated to the passengers. Also if decks or other areas open to passengers are slippery or constitute a potential hazard, the issue of negligence will involve determining whether such matters were adequately and appropriately drawn to the attention of passengers in a timely manner by (for example) warning signs clearly displayed and measures taken to prevent entry to car decks during the course of the voyage.
Accident prone parts of the ship, including elevators, staircases, raised sills, carpets and doorstoppers, may give rise to allegations of negligence and it will assist the defence of such claims if the Member is able to produce evidence that such areas were checked regularly for passenger safety.
Certain types of entertainment and activities provided on passenger and cruise ships may present safety risks. The Member is covered for liabilities arising from such activities provided he has not voluntarily assumed responsibility and adequate precautionary measures have been taken.
A written waiver of liability to be signed by a passenger who wishes to engage in an activity such as scuba diving, may not be in violation of the shipowner’s duty of safe carriage. Upon request the Club can assist in reviewing the wording of such a waiver agreement. Considerable care should be exercised to train the crew members in charge of such activities, to supervise the equipment and to select and instruct the passengers who wish to participate.