LeX-Ray

This Regulation lays down the Community regime relating to liability and insurance for the carriage of passengers by sea as set out in the relevant provisions of:

the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974, as amended by the Protocol of 2002 (the Athens Convention) as set out in Annex I; and

the IMO Reservation and Guidelines for Implementation of the Athens Convention adopted by the Legal Committee of the IMO on 19 October 2006 (the IMO Guidelines) as set out in Annex II.

Furthermore, this Regulation extends the application of those provisions to carriage of passengers by sea within a single Member State on board ships of Classes A and B under Article 4 of SRSPSD, and lays down certain supplementary requirements.

No later than 30 June 2013, the Commission shall, if appropriate, present a legislative proposal in order, inter alia, to extend the scope of this Regulation to ships of Classes C and D under Article 4 of SRSPSD.

This Regulation shall apply to any international carriage within the meaning of point 9 of Article 1 of the Athens Convention and to carriage by sea within a single Member State on board ships of Classes A and B under Article 4 of SRSPSD, where:

the ship is flying the flag of or is registered in a Member State;

the contract of carriage has been made in a Member State; or

the place of departure or destination, according to the contract of carriage, is in a Member State.

Member States may apply this Regulation to all domestic sea-going voyages.

The liability regime in respect of passengers, their luggage and their vehicles and the rules on insurance or other financial security shall be governed by this Regulation, by Articles 1 and 1 bis , Article 2(2), Articles 3 to16e='articles' class='internal-link article' href='#art_18' data-bs-toggle='popover' data-bs-trigger='hover focus' data-bs-content='No text available' data-bs-placement='top' >18to2021cles' class='internal-link article' href='#art_3' data-bs-toggle='popover' data-bs-trigger='hover focus' data-bs-content='Liability and insurance' data-bs-placement='top' >3 to16 and Articles 38, 16e='articles' class='internal-link article' href='#art_18' data-bs-toggle='popover' data-bs-trigger='hover focus' data-bs-content='No text available' data-bs-placement='top' >18, 20 and 21 of the Athens Convention set out in Annex I and by the provisions of the IMO Guidelines set out in Annex II. bis

The IMO Guidelines as set out in Annex II shall be binding.

In the event of loss of, or damage to, mobility equipment or other specific equipment used by a passenger with reduced mobility, the liability of the carrier shall be governed by Article 3(3) of the Athens Convention. The compensation shall correspond to the replacement value of the equipment concerned or, where applicable, to the costs relating to repairs.

This Regulation shall not modify the rights or duties of the carrier or performing carrier under national legislation implementing the International Convention on Limitation of Liability for Maritime Claims, 1976, as amended by the Protocol of 1996, including any future amendment thereto.
In the absence of any such applicable national legislation, the liability of the carrier or performing carrier shall be governed only by Article 3 of this Regulation.

In respect of claims for loss of life or personal injury to a passenger caused by any of the risks referred to in paragraph 2.2 of the IMO Guidelines the carrier and the performing carrier may limit their liability pursuant to the provisions referred to in paragraph 1 of this Article.

Where the death of, or personal injury to, a passenger is caused by a shipping incident, the carrier who actually performed the whole or a part of the carriage when the shipping incident occurred shall make an advance payment sufficient to cover immediate economic needs on a basis proportionate to the damage suffered within 15 days of the identification of the person entitled to damages. In the event of the death, the payment shall not be less than EUR 21 000.
This provision shall also apply where the carrier is established within the Community.

An advance payment shall not constitute recognition of liability and may be offset against any subsequent sums paid on the basis of this Regulation. It shall not be refundable, except in the cases set out in Article 3(1) or Article 6 of the Athens Convention or Appendix A to the IMO Guidelines, or where the person who received it is not the person entitled to damages.

Without prejudice to the obligations of tour operators set out in Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours ( 8 ) , the carrier and/or performing carrier shall ensure that passengers are provided with appropriate and comprehensible information regarding their rights under this Regulation.

No later than three years after the date of application of this Regulation, the Commission shall draw up a report on the application of this Regulation, which shall, inter alia, take into account economic developments and developments in international fora.

Measures designed to amend non-essential elements of this Regulation and relating to the incorporation of amendments to the limits set out in Article 3(1), Article 4 bis (1), Article 7(1) and Article 8 of the Athens Convention to take account of decisions taken pursuant to Article 23 of that Convention, as well as corresponding updates to Annex I to this Regulation, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 10(2) of this Regulation. bis
Taking into consideration the consequences for fares and the ability of the market to obtain affordable insurance coverage at the level required against the policy background of strengthening passengers' rights, as well as the seasonal nature of some of the traffic, by 31 December 2016, the Commission shall, on the basis of a suitable impact assessment, adopt a measure relating to the limits set out in Annex I for ships of Class B under Article 4 of SRSPSD. That measure, designed to amend non-essential elements of this Regulation, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 10(2) of this Regulation.

Measures designed to amend non-essential elements of this Regulation and relating to the incorporation of amendments to the provisions of the IMO Guidelines set out in Annex II shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 10(2).

The Commission shall be assisted by the Committee on Safe Seas and the Prevention of Pollution from Ships (COSS) established by COSS of the European Parliament and of the Council ( 9 ) .

Where reference is made to this paragraph, Article 5a(1) to (4) and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

In respect of carriage by sea within a single Member State on board ships of Class A under Article 4 of SRSPSD, Member States may choose to defer application of this Regulation until four years after the date of its application.

In respect of carriage by sea within a single Member State on board ships of Class B under Article 4 of SRSPSD, Member States may choose to defer application of this Regulation until 31 December 2018.

This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union . Official Journal of the European Union

CERTIFICATE OF INSURANCE OR OTHER FINANCIAL SECURITY IN RESPECT OF LIABILITY FOR THE DEATH OF AND PERSONAL INJURY TO PASSENGERS CERTIFICATE OF INSURANCE OR OTHER FINANCIAL SECURITY IN RESPECT OF LIABILITY FOR THE DEATH OF AND PERSONAL INJURY TO PASSENGERS
Issued in accordance with the provisions of Article 4 bis of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 2002 bis
Type of security …
Duration of security …
Name and address of the insurer(s) and/or guarantor(s)
Name …
Address …
This certificate is valid until …
Issued or certified by the Government of …
(Full designation of the State)
OR
The following text should be used when a State Party avails itself of Article 4 bis , paragraph 3: bis
The present certificate is issued under the authority of the Government of … (full designation of the State) by … (name of institution or organisation)
At …On …
(Place) (Date)
…
(Signature and title of issuing or certifying official)
Explanatory notes:

( *1 ) Not reproduced.

The Athens Convention should be ratified with the following reservation or a declaration to the same effect: Limitation of liability of carriers, etc. Compulsory insurance and limitation of liability of insurers Certification Relationship between this Reservation and the IMO Guidelines for Implementation of the Athens Convention

Reservation in connection with the ratification by the Government of … of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 2002 (the Convention)

The Government of … reserves the right to and undertakes to limit liability under paragraph 1 or 2 of Article 3 of the Convention, if any, in respect of death of or personal injury to a passenger caused by any of the risks referred to in paragraph 2.2 of the IMO Guidelines for Implementation of the Athens Convention to the lower of the following amounts:

250 000 units of account in respect of each passenger on each distinct occasion, or

340 million units of account overall per ship on each distinct occasion.

Furthermore, the Government of … reserves the right to and undertakes to apply the IMO Guidelines for Implementation of the Athens Convention paragraphs 2.1.1 and 2.2.2 mutatis mutandis , to such liabilities.

The liability of the performing carrier pursuant to Article 4 of the Convention, the liability of the servants and agents of the carrier or the performing carrier pursuant to Article 11 of the Convention and the limit of the aggregate of the amounts recoverable pursuant to Article 12 of the Convention shall be limited in the same way.

The reservation and undertaking in paragraph 1.2 will apply regardless of the basis of liability under paragraph 1 or 2 of Article 3 and notwithstanding anything to the contrary in Article 4 or 7 of the Convention; but this reservation and undertaking do not affect the operation of Articles 10 and 13.

The Government of … reserves the right to and undertakes to limit the requirement under paragraph 1 of Article 4 bis to maintain insurance or other financial security for death or personal injury to a passenger caused by any of the risks referred to in paragraph 2.2 of the IMO Guidelines for Implementation of the Athens Convention to the lower of the following amounts:

250 000 units of account in respect of each passenger on each distinct occasion, or

340 million units of account overall per ship on each distinct occasion.

The Government of … reserves the right to and undertakes to limit the liability of the insurer or other person providing financial security under paragraph 10 of Article 4 bis , for death or personal injury to a passenger caused by any of the risks referred to in paragraph 2.2 of the IMO Guidelines for Implementation of the Athens Convention, to a maximum limit of the amount of insurance or other financial security which the carrier is required to maintain under paragraph 1.6 of this reservation.

The Government of … also reserves the right to and undertakes to apply the IMO Guidelines for Implementation of the Athens Convention including the application of the clauses referred to in paragraphs 2.1 and 2.2 in the Guidelines in all compulsory insurance under the Convention.

The Government of … reserves the right to and undertakes to exempt the provider of insurance or other financial security under paragraph 1 of Article 4bis from any liability for which he has not undertaken to be liable.

The Government of … reserves the right to and undertakes to issue insurance certificates under paragraph 2 of Article 4 bis of the Convention so as:

to reflect the limitations of liability and the requirements for insurance cover referred to in paragraphs 1.2, 1.6, 1.7 and 1.9, and

to include such other limitations, requirements and exemptions as it finds that the insurance market conditions at the time of the issue of the certificate necessitate.

The Government of … reserves the right to and undertakes to accept insurance certificates issued by other States Parties issued pursuant to a similar reservation.

All such limitations, requirements and exemptions will be clearly reflected in the Certificate issued or certified under paragraph 2 of Article 4bis of the Convention.

The rights retained by this reservation will be exercised with due regard to the IMO Guidelines for Implementation of the Athens Convention, or to any amendments thereto, with an aim to ensure uniformity. If a proposal to amend the IMO Guidelines for Implementation of the Athens Convention, including the limits, has been approved by the Legal Committee of the International Maritime Organisation, those amendments will apply as from the time determined by the Committee. This is without prejudice to the rules of international law regarding the right of a State to withdraw or amend its reservation.’

Guidelines Guidelines

In the current state of the insurance market, State Parties should issue insurance certificates on the basis of one undertaking from an insurer covering war risks, and another insurer covering non war risks. Each insurer should only be liable for its part. The following rules should apply (the clauses referred to are set out in Appendix A):

Both war and non war insurance may be subject to the following clauses:

Institute Radioactive Contamination, Chemical, Biological, Bio-chemical and Electromagnetic Weapons Exclusion Clause (Institute clause No 370);

Institute Cyber Attack Exclusion Clause (Institute clause No 380);

the defences and limitations of a provider of compulsory financial security under the Convention as modified by these guidelines, in particular the limit of 250 000 units of account per passenger on each distinct occasion;

the proviso that the insurance shall only cover liabilities subject to the Convention as modified by these guidelines; and

the proviso that any amounts settled under the Convention shall serve to reduce the outstanding liability of the carrier and/or its insurer under Article 4bis of the Convention even if they are not paid by or claimed from the respective war or non war insurers.

War insurance shall cover liability, if any; for the loss suffered as a result of death or personal injury to passenger caused by: and may be subject to the following exemptions, limitations and requirements:

war, civil war, revolution, rebellion, insurrection, or civil strife arising there from, or any hostile act by or against a belligerent power,

capture, seizure, arrest, restraint or detainment, and the consequences thereof or any attempt thereat,

derelict mines, torpedoes, bombs or other derelict weapons of war,

act of any terrorist or any person acting maliciously or from a political motive and any action taken to prevent or counter any such risk,

confiscation and expropriation,

War Automatic Termination and Exclusion Clause

In the event the claims of individual passengers exceed in the aggregate the sum of 340 million units of account overall per ship on any distinct occasion, the carrier shall be entitled to invoke limitation of his liability in the amount of 340 million units of account, always provided that:

this amount should be distributed amongst claimants in proportion to their established claims,

the distribution of this amount may be made in one or more portions to claimants known at the time of the distribution, and

the distribution of this amount may be made by the insurer, or by the Court or other competent authority seized by the insurer in any State Party in which legal proceedings are instituted in respect of claims allegedly covered by the insurance.

30 days notice clause in cases not covered by 2.2.1.

Non-war insurance should cover all perils subject to compulsory insurance other than those risks listed in 2.2, whether or not they are subject to exemptions, limitations or requirements in 2.1 and 2.2.

An example of a set of insurance undertakings (Blue Cards) and an insurance certificate, all reflecting these guidelines, are included in Appendix B.