The Athens Convention on the Carriage of Passengers and Luggage by Sea, negotiated within the framework of the International Maritime Organization (IMO), was adopted in Athens on 13 December 1974 and established a regime of liability for damage suffered by passengers carried on a sea-going vessels. It declares a carrier liable for damage or loss suffered by a passenger and respective luggage, if the incident causing the damage occurred in the course of the carriage and was due to the fault or neglect of the carrier.
However, this Convention was amended by the Protocol of 1976, adopted on 19 November, and by the 1990 Protocol, adopted on 29 March.
The 1976 Protocol, which entered into force at the international level on 30 April 1989, introduced as its main amendment to the Convention the possibility of using, as unit of account, the Special Drawing Rights (SDR) of the International Monetary Fund, replacing the "Poincare franc", based on the "official" value of gold, as the applicable unit of account, for the purposes of setting the limits of liability. The 1990 Protocol never entered into force and was later replaced on 1 November 2002 by the 2002 Protocol.
The 2002 Protocol to the Athens Convention on the Carriage of Passengers and Luggage by Sea amends substantially the text of the Convention, in particular in the fields of liability of the carrier and in the responsibility of the carrier to provide financial guarantee. This Protocol also establishes the increase of limits of civil liability for the loss or damage to luggage and vehicles, as well as compensation for death and personal injury, and also provides for situations where liability is objectively imposed on the carrier.
The Protocol introduces compulsory insurance to cover passengers on ships and raises the limits of liability. It also introduces other mechanisms to assist passengers in obtaining compensation, based on well-accepted principles applied in existing liability and compensation regimes dealing with environmental pollution. These include replacing the fault-based liability system with a strict liability system for shipping related incidents, backed by the requirement that the carrier take out compulsory insurance to cover these potential claims.
The limits contained in the Protocol set a maximum limit, empowering - but not obliging - national courts to compensate for death, injury or damage up to these limits.
At European Union level, on 23 April 2009, the European Parliament and the Council adopted Regulation (EC) No 392/2009 on the liability of carriers of passengers by sea in the event of accidents. This Regulation lays down the Community liability and insurance regime for the carriage of passengers by sea, as set out in the relevant provisions of: The Athens Convention of 1974 on the Carriage of Passengers and Luggage by Sea, as amended by the 2002 Protocol, which are set out in Annex I thereto; and the IMO Guidelines for the Implementation of the Athens Convention, adopted by the IMO Legal Committee on 19 October 2006, which set out in Annex II thereto.
Furthermore, this Regulation extends the application of those provisions to the carriage of passengers by sea within a single Member State on board ships of Classes A e B under Article 4 of Directive 98/18/EC, and lays down additional requirements. Portugal acceded, through Decree 13/2015 of 14 July, to the Protocol of 2002 to the Athens Convention on the Maritime Carriage of Passengers and Luggage by Sea.
The International Maritime Organization, through PAL.4/Circ.27, dated 6th October 2015, confirms the deposit of an instrument by Portugal on 1 September 2015, in accordance with Article 17 (3) of the Protocol of 2002 to the 1974 Athens Convention relating to the Carriage of Passengers and Luggage by Sea. The 2002 Protocol to the Athens Convention entered into force on 1 December 2015 in Portugal, in accordance with Article 20 (2) thereof.
The 2002 Athens Convention shall apply to all international carriage:
- All seagoing ships, with exclusion air-cushion vehicles
- Vessels flying the flag, or registered in a State Party to this Convention
- The contract has been concluded in a State Party to this Convention
- Place of departure or destination, in accordance with the contract of carriage, is located in a State Party to this Convention.
Notwithstanding the provisions above, this Convention shall not apply when the carriage is subject, under any other international convention concerning the carriage of passengers or luggage by another means of transport, to a civil liability regime in accordance with the provisions of such convention, in so far as those provisions have mandatory application to carriage by sea.
Compulsory Insurance or Financial Guarantee
After competent authority of a State Party is satisfied that the requirements of the Convention have been met, a certificate shall be issued to each ship certifying that it has insurance or other financial security, which is valid in accordance with the provisions of the Convention. With respect to the vessels registered in a State Party, such certificates shall be issued or recognized by the competent authority of the State in which the ship is registered. Relating to ships registered in a State which is not Party to the Convention, the certificate may be issued or recognized by the competent authority of any State Party.