LEG/CONF Documents Summary Information Records 1 - 24 of 24rosaeg.no/erikro/WWW/corrgr/dipcon/all.pdf · 1 leg/conf 13/1 provisional agenda secretariat 08/05/2002 2 leg/conf 13/2

LEG/CONF DocumentsSummary Information

Records 1 - 24 of 24

AgendaItem/Sub

ItemDoc No Title Submitted by Date

1 LEG/CONF 13/1 PROVISIONAL AGENDA Secretariat 08/05/2002 2 LEG/CONF 13/2 ADOPTION OF THE

RULES OF PROCEDURE

Secretariat 08/05/2002

6 LEG/CONF 13/3 CONSIDERATION OF ADRAFT PROTOCOL OF2002 TO AMEND THEATHENS CONVENTIONRELATING TO THECARRIAGE OFPASSENGERS ANDTHEIR LUGGAGE BYSEA, 1974

LegalCommittee oftheOrganization

08/05/2002

6 LEG/CONF 13/4 CONSIDERATION OF ADRAFT PROTOCOL OF2002 TO AMEND THEATHENS CONVENTIONRELATING TO THECARRIAGE OFPASSENGERS ANDTHEIR LUGGAGE BYSEA, 1974


IMO

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16 LEG/CONF.13/16 CONSIDERATION OF ADRAFT PROTOCOL OF2002 TO AMEND THEATHENS CONVENTIONRELATING TO THECARRIAGE OFPASSENGERS ANDTHEIR LUGGAGE BYSEA, 1974

United States 01/10/2002

LEG/CONF 13/5 CONSIDERATION OF ADRAFT PROTOCOL OF2002 TO AMEND THEATHENS CONVENTIONRELATING TO THECARRIAGE OFPASSENGERS ANDTHEIR LUGGAGE BYSEA, 1974

Norway 10/07/2002


EuropeanCommission onbehalf of theEuropeanCommissionand its MemberStates

16/08/2002

LEG/CONF 13/6 CONSIDERATION OF ADRAFT PROTOCOL TOAMEND THE ATHENSCONVENTION RELATINGTO THE CARRIAGE OFPASSENGERS ANDTHEIR LUGGAGE BYSEA, 1974

Japan 06/09/2002


InternationalGroup of P&IClubs

09/09/2002


IUMI 09/09/2002

IMO



Norway 09/09/2002

LEG/CONF 13/9 CONSIDERATION OF ADRAFT PROTOCOL OF2002 TO AMEND THEATHENS CONVENTIONRELATING TO THECARRIAGE OFPASENGERS AND THEIRLUGGAGE BY SEA, 1974

Australia andNorway

09/09/2002


ICS 24/09/2002

LEG/CONF 13/14 CONSIDERATION OF ADRAFT PROTOCOL OF2002 TO AMEND THEATHENS CONVENTIONRELATING TO THECARRIAGE OFPASSENGERSANDTHEIR LUGGAGE BYSEA, 1974

ICCL 24/09/2002

LEG/CONF 13/12 ORGANIZATION OF THEWORK OF THECONFERENCE,INCLUDING THEESTABLISHMENT OFOTHER COMMITTEES,AS NECESSARY



ICCL 25/09/2002

IMO



CMI 14/10/2002

LEG/CONF 13/1/1 AGENDA Secretariat 24/10/2002 LEG/CONF 13/2/1 ADOPTION OF THE

RULES OF PROCEDURE


LEG/CONF 13/21 ADOPTION OF THEFINAL ACT AND ANYINSTRUMENTS,RECOMMENDATIONSAND RESOLUTIONSRESULTING FROM THEWORK OF THECONFERENCE

Text approvedby theConference

14/11/2002



15/11/2002



22/11/2002

LEG/CONF13/20/Corr.1

ADOPTION OF THEFINAL ACT AND ANYINSTRUMENTS,RECOMMENDATIONSAND RESOLUTIONSRESULTING FROM THEWORK OF THECONFERENCEPROTOCOL OF 2002 TOTHE ATHENSCONVENTION RELATINGTO THE CARRIAGE OFPASSENGERS ANDTHEIR LUGGAGE BYSEA, 1974

Conference 07/01/2003

IMO


LEG/CONF 13/INF.2 LIST OF DOCUMENTSISSUED IN CONNECTIONWITH THEINTERNATIONALCONFERENCE ON THEREVISION OF THEATHENS CONVENTIONRELATING TO THECARRIAGE OFPASSENGERS ANDTHEIR LUGGAGE BYSEA, 1974


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Programme

Date of Meeting Title of Meeting

04 February 2002 SUB-COMMITTEE ON FIRE PROTECTION (FP)- 46th session(FP)

11 February 2002 MSC Intersessional Working Group onMaritime Security(MSC)

18 February 2002 SUB-COMMITTEE ONRADIOCOMMUNICATIONS AND SEARCH ANDRESCUE (COMSAR) - 6th session(COMSAR)

04 March 2002 MARINE ENVIRONMENT PROTECTIONCOMMITTEE 47th session(MEPC)

18 March 2002 SUB-COMMITTEE ON SHIP DESIGN ANDEQUIPMENT (DE) 45th session(DE)

08 April 2002 SUB-COMMITTEE ON FLAG STATEIMPLEMENTATION (FSI) 10th session(FSI)

22 April 2002 LEGAL COMMITTEE - 84th session(LEG)

15 May 2002 MARITIME SAFETY COMMITTEE - 75thsession(MSC)

27 May 2002 London Convention 1972 Scientific Group -to be held in Jamaica Meeting held withoutinterpretation and with documentation inoriginal language only(LC)

10 June 2002 COUNCIL - 88th session(COU)

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12 June 2002 TECHNICAL CO-OPERATION COMMITTEE -51st session(TC)

24 June 2002 SUB-COMMITTEE ON BULK LIQUIDS ANDGASES (BLG) 7th session(BLG)

08 July 2002 SUB-COMMITTEE ON SAFETY OFNAVIGATION (NAV) - 48th session(NAV)

22 July 2002 SUB-COMMITTEE ON STABILITY AND LOADLINES AND ON FISHING VESSELS SAFETY(SLF) - 45th session(SLF)

23 September 2002 SUB-COMMITTEE ON DANGEROUS GOODS,SOLID CARGOES AND CONTAINERS (DSC) -7th session(DSC DOC)

07 October 2002 MARINE ENVIRONMENT PROTECTIONCOMMITTEE -48th session(MEPC)

21 October 2002 LEGAL COMMITTEE - 85th session(LEG)

28 October 2002 DIPLOMATIC CONFERENCE TO ADOPT APROTOCOLTO THE ATHENS CONVENTION -LEG/CONF.13(CON)

11 November 2002 24th CONSULTATIVE MEETING OFCONTRACTING PARTIES TO THE LONDONCONVENTION 1972(LC)

25 November 2002 COUNCIL - 89th session(COU)

27 November 2002 TECHNICAL CO-OPERATION COMMITTEE -52nd session(TC)

04 December 2002 MARITIME SAFETY COMMITTEE - 76thsession(MSC)

13 January 2003 SUB-COMMITTEE ONRADIOCOMMUNICATIONS AND SEARCH ANDRESCUE (COMSAR) - 7th session(STW)

27 January 2003 FACILITATION COMMITTEE - 30thsession(FAL)

10 February 2003 SUB-COMMITTEE ON FIRE PROTECTION (FP)- 47th session(FP)

24 February 2003 SUB-COMMITTEE ON STANDARDS OFTRAINING AND WATCHKEEPING (STW) .34th session(STW)

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10 March 2003 SUB-COMMITTEE ON SHIP DESIGN ANDEQUIPMENT (DE) - 46th session(DE)

24 March 2003 SUB-COMMITTEE ON BULK LIQUIDS ANDGASES (BLG) - 8th session(BLG)

07 April 2003 SUB-COMMITTEE ON FLAG STATEIMPLEMENTATION (FSI) - 11th session(FSI)

22 April 2003 London Convention 1972 ScientificGroup(LC)

28 April 2003 LEGAL COMMITTEE - 86th session(LEG)

12 May 2003 DIPLOMATIC CONFERENCE TO ADOPT APROTOCOL TO THE 1992 FUNDCONVENTION (LEG/CONF 14)(CON)

28 May 2003 MARITIME SAFETY COMMITTEE - 77thsession(MSC)

11 June 2003 TECHNICAL CO-OPERATION COMMITTEE .53rd session(TC)

16 June 2003 COUNCIL - 90th session(COU)

30 June 2003 SUB-COMMITTEE ON SAFETY OFNAVIGATION (NAV) - 49th session(NAV)

14 July 2003 MARINE ENVIRONMENT PROTECTIONCOMMITTEE - 49th session(MEPC)

08 September 2003 SUB-COMMITTEE ON STABILITY AND LOADLINES AND ON FISHING VESSELS SAFETY(SLF) - 46th session(SLF)

22 September 2003 SUB-COMMITTEE ON DANGEROUS GOODS,SOLID CARGOES AND CONTAINERS (DSC) -8th session

06 October 2003 25th CONSULTATIVE MEETING OFCONTRACTING PARTIES TO THE LONDONCONVENTION 1972(LC)

13 October 2003 LEGAL COMMITTEE - 87th session(LEG)

21 November 2003 COUNCIL . 22nd extraordinary session(COU)

24 November 2003 ASSEMBLY . 23rd session(ASS)

05 December 2003 COUNCIL . 91st session(COU)

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For reasons of economy, this document is printed in a limited number. Delegates are kindly asked to bring their copies to meetings and not to request additional copies.

INTERNATIONAL MARITIME ORGANIZATION

IMO

E

INTERNATIONAL CONFERENCE ON THE REVISION OF THE ATHENS CONVENTION RELATING TO THE CARRIAGE OF PASSENGERS AND THEIR LUGGAGE BY SEA, 1974 Agenda item 1

LEG/CONF.13/1

5 April 2002 Original: ENGLISH

PROVISIONAL AGENDA

of the Conference to be convened at 11 a.m.

on Monday, 21 October 2002 at the Headquarters of the International Maritime Organization

4 Albert Embankment London, United Kingdom

Opening of the Conference

Election of the President

1 Adoption of the agenda 2 Adoption of the Rules of Procedure 3 Election of the Vice-Presidents and other officers of the Conference 4 Appointment of the Credentials Committee 5 Organization of the work of the Conference, including the establishment of other

committees, as necessary 6 Consideration of:

- a draft protocol of 2002 to amend the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974

- any draft Conference resolutions 7 Consideration of the reports of the committees:

(a) Credentials Committee

(b) Other committees 8 Adoption of the Final Act and any instruments, recommendations and resolutions

resulting from the work of the Conference 9 Signature of the Final Act

__________



I:\CONF\LEG\13\2.doc LED/LO/GL/ga



IMO

E

INTERNATIONAL CONFERENCE ON THE REVISION OF THE ATHENS CONVENTION RELATING TO THE CARRIAGE OF PASSENGERS AND THEIR LUGGAGE BY SEA,1974 Agenda item 2

LEG/CONF.13/2

5 April 2002 Original: ENGLISH

ADOPTION OF THE RULES OF PROCEDURE

Provisional Rules of Procedure

Table of Contents Rule

CHAPTER I - REPRESENTATION AND CREDENTIALS 1 Composition of delegations 2 Alternates or advisers 3 Submission of credentials 4 Credentials Committee 5 Provisional participation in the Conference

CHAPTER II - OFFICERS 6 Election 7} } President 8 } 9} } Acting President 10} 11 Replacement of the President 12 The President shall not vote Rule

CHAPTER III - SECRETARIAT 13 Duties of the Secretary-General and the Secretariat 14 Statements by the Secretariat

LEG/CONF.13/2 - 2 -


CHAPTER IV - CONDUCT OF BUSINESS 15 Quorum 16 Speeches 17 Precedence 18 Points of order 19 Time-Limit on speeches 20 Closing of list of speakers 21 Adjournment of debate 22 Closure of the debate 23 Suspension or adjournment of the meeting 24 Order of procedural motions 25 Basic proposals 26 Other proposals and amendments 27 Decisions on competence 28 Withdrawal of motions 29 Reconsideration of proposals 30 Invitation to experts

CHAPTER V - VOTING 31 Voting rights 32 Required majority 33 Meaning of the expression "Representatives present and voting" 34 Method of voting 35 Conduct during voting 36 Division of proposals and amendments 37 Voting on amendments 38 Voting on proposals Rule 39} 40} Elections 41} 42} 43 Equally divided votes CHAPTER VI - COMMITTEES 44 Committee of the Whole 45 Drafting Committee 46 Establishment of other committees and subsidiary bodies 47 Representation on committees and other subsidiary bodies 48 Officers 49 Quorum 50 Conduct of business and voting in committees and other subsidiary

bodies

- 3 - LEG/CONF.13/2


CHAPTER VII - LANGUAGES AND RECORDS 51 Official and working languages 52 Interpretation from official languages 53 Interpretation from other languages 54 Records of Decisions 55 Languages of documents

CHAPTER VIII - PUBLIC AND PRIVATE MEETINGS 56 Plenary meetings and meetings of committees and subsidiary bodies 57 Communiqués to the Press 58 CHAPTER IX - OBSERVERS 59 CHAPTER X - AMENDMENTS TO THE RULES OF PROCEDURE 60 CHAPTER XI - SIGNATURE OF THE FINAL ACT

LEG/CONF.13/2 - 4 -


CHAPTER I - REPRESENTATION AND CREDENTIALS

Composition of delegations Rule 1

The delegation of each State participating in the Conference shall consist of accredited representatives and such alternate representatives and advisers as may be required.

Alternates or advisers

Rule 2

An alternate representative or an adviser may act as a representative upon designation by the head of the delegation.

Submission of credentials

Rule 3 (a) The credentials of representatives and the names of any alternate representatives and advisers

shall be transmitted to the Secretary-General of the International Maritime Organization before the opening of the Conference or not later than twenty-four hours after the opening of the Conference. The credentials shall be issued by the Head of State, the Head of Government, or the Minister for Foreign Affairs, or any other person or authority specifically authorized for that purpose by any of them.

(b) Any later change in the composition of the delegation shall as soon as possible be submitted to

the Secretary-General of the Conference.

Credentials Committee Rule 4

A Credentials Committee shall be appointed at the beginning of the Conference. It shall consist of [five] members who shall be appointed by the Conference on the proposal of the President. The Credentials Committee shall examine the credentials of representatives and report to the Conference without delay.

Provisional participation in the Conference Rule 5 (a) Pending a decision of the Conference upon their credentials, representatives shall be entitled

provisionally to participate in the Conference. (b) Any representative to whose admission a State participating in the Conference has made

objection shall be seated provisionally with the same rights as other representatives until the Credentials Committee has reported and the Conference has given its decision.

- 5 - LEG/CONF.13/2


CHAPTER II - OFFICERS

Election Rule 6

The Conference shall elect a President, [five] Vice-Presidents, the Chairman of the Committee of the Whole provided for in rule 44 and the Chairman of the Drafting Committee established under rule 45. The Conference may also elect such other officers as it deems necessary for the performance of its functions.

President

Rule 7

In addition to exercising the powers conferred upon him elsewhere by these rules, the President shall preside at the plenary meetings of the Conference, declare the opening and closing of each plenary meeting, direct the discussions at such meetings, accord the right to speak, put questions to the vote and announce decisions. The President shall rule on points of order and, subject to these rules of procedure, have complete control of the proceedings and over the maintenance of order thereat. The President may propose to the Conference the limitation of time to be allowed to speakers, the limitation of the number of times each representative may speak on any question, the closure of the list of speakers, the adjournment or closure of the debate, and the suspension or the adjournment of the meeting.

Rule 8

The President, in the exercise of the functions of President, remains under the authority of the Conference.

Acting President

Rule 9

If the President is absent from a meeting or any part thereof, one of the Vice-Presidents shall act as President.

Rule 10

A Vice-President acting as President shall have the same powers and duties as the President.

Replacement of the President Rule 11

If at any time the President is unable to perform the functions of President for the remaining period of the Conference a new President shall be elected.

The President shall not vote

Rule 12

The President or a Vice-President acting as President shall not vote. Where necessary another member of the President's delegation may be appointed to vote for the delegation.

LEG/CONF.13/2 - 6 -


CHAPTER III - SECRETARIAT

Duties of the Secretary-General and the Secretariat Rule 13 (a) The Secretary-General of the International Maritime Organization shall be the

Secretary-General of the Conference. (b) The Secretary-General shall appoint an Executive Secretary and a Deputy Executive Secretary

of the Conference and shall provide and direct the staff required by the Conference and its Committees.

(c) The Secretariat shall receive, translate, reproduce, issue and distribute the documents, records,

reports and resolutions of the Conference; interpret speeches made at the meetings; arrange for the publication, custody and preservation of the documents in accordance with the decisions of the Conference; distribute documents of the Conference to the participating Governments and organizations as appropriate and, generally, perform all other tasks which the Conference may require.

Statements by the Secretariat Rule 14

The Secretary-General, the Executive Secretary, the Deputy Executive Secretary and any member of the Conference staff designated for that purpose may, at any time, make oral or written statements concerning any question under consideration.

CHAPTER IV - CONDUCT OF BUSINESS Quorum Rule 15

A quorum of the Conference shall be constituted by the representatives of a majority of the States participating in the Conference.

Speeches Rule 16

No person may address the Conference without having previously obtained the permission of the President. Subject to rules 17, 18, 22 and 24, the President shall call upon speakers in the order in which they signify their desire to speak. The President may call a speaker to order if the remarks of such speaker are not relevant to the subject under discussion.

Precedence Rule 17

The Chairman or Rapporteur of a committee, or the representative of a subsidiary body may be accorded precedence for the purpose of explaining the conclusion arrived at by that committee or subsidiary body.

- 7 - LEG/CONF.13/2


Points of order Rule 18

During the discussion of any matter a representative may rise to a point of order, and the point of order shall immediately be decided by the President in accordance with the Rules of Procedure. A representative may appeal against the ruling of the President. The appeal shall immediately be put to the vote and the President's ruling shall stand unless overruled by the majority of the representatives present and voting. A representative rising to a point of order may not speak on the substance of the matter under discussion.

Time-limit on speeches

Rule 19

The Conference may, on the proposal of the President, limit the time to be allowed to each speaker on any particular subject under discussion. When the debate is limited and a representative has spoken for the allotted time, the President shall call such representative to order without delay.

Closing of list of speakers

Rule 20

During the course of a debate, the President may announce the list of speakers and, with the consent of the Conference, declare the list closed. The President may, however, accord the right of reply to any representative if a speech delivered after the closure of the list makes this desirable.

Adjournment of debate

Rule 21

During the discussion of any matter, a representative may move the adjournment of the debate on the question under discussion. In addition to the proposer of the motion, two representatives may speak in favour of, and two against, the motion, after which the motion shall immediately be put to the vote. The President may limit the time to be allowed to speakers under this rule.

Closure of the debate

Rule 22

A representative may at any time move the closure of the debate on the question under discussion, whether or not any other representative has signified his wish to speak. Permission to speak on the closure of the debate shall be accorded only to two speakers opposing the closure, after which the motion shall be immediately put to the vote. If the Conference is in favour of the closure, the President shall declare the closure of the debate. The President may limit the time to be allowed to speakers under this rule.

Suspension or adjournment of the meeting

Rule 23

During the discussion of any matter, a representative may move the suspension or the adjournment of the meeting. Such motions shall not be debated, but shall be immediately put to the vote. The President may limit the time to be allowed to the speaker moving the suspension or adjournment.

LEG/CONF.13/2 - 8 -


Order of procedural motions Rule 24

Subject to rule 18, the following motions shall have precedence in the following order over all the other proposals or motions before the meeting:

(i) to suspend the meeting; (ii) to adjourn the meeting; (iii) to adjourn the debate on the question under discussion; (iv) for the closure of the debate on the question under discussion.

Basic proposals

Rule 25

The basic proposal for discussion by the Conference shall consist of a draft protocol of 2002 to amend the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974, as contained in document LEG/CONF.13/3.

Other proposals and amendments

Rule 26

Other proposals, including proposed amendments to the basic proposals shall normally be introduced in writing and handed to the Executive Secretary of the Conference who shall circulate copies to the delegations. As a general rule, no proposal shall be discussed or put to the vote at any meeting of the Conference unless copies thereof have been circulated to all delegations not later than the day preceding the meeting. The President or Chairman of a Committee may, however, permit the discussion and consideration of amendments, even though such amendments have not been circulated or have only been circulated the same day.

Decisions on competence

Rule 27

Subject to rule 18, any motion calling for a decision on the competence of the Conference to discuss any matter or to adopt a proposal or an amendment submitted to it shall be put to the vote before the matter is discussed or a vote is taken on the proposal or amendment in question.

Withdrawal of motions

Rule 28

A motion may be withdrawn by its proposer at any time before voting on it has commenced, provided that the motion has not been amended or that an amendment to it is not under discussion. A motion which has thus been withdrawn may be reintroduced by any representative.

Reconsideration of proposals

Rule 29

When a proposal has been adopted or rejected it may not be reconsidered unless the Conference, by a two-thirds majority of the representatives present and voting, so decides. Permission to speak on a motion to reconsider shall be accorded only to the mover and one other supporter and to two speakers opposing the motion, after which it shall be put immediately to the vote.

- 9 - LEG/CONF.13/2


Invitation to experts Rule 30

The Conference may invite or admit to one or more of its meetings any person whose expertise it may consider useful for its work. A person invited under this rule shall not have the right to vote.

CHAPTER V - VOTING

Voting rights Rule 31

Each State represented at the Conference shall have one vote.

Required majority Rule 32 (a) Decisions of the Conference on all matters of substance shall be taken by a two-thirds majority

of representatives present and voting, and decisions on matters of procedure shall be taken by a simple majority of representatives present and voting.

(b) If the question arises whether a matter is one of procedure or of substance, the President of the

Conference shall rule on the question. An appeal against this ruling shall immediately be put to the vote and the President's ruling shall stand unless overruled by a two-thirds majority of the representatives present and voting.

Meaning of the expression "Representatives present and voting"

Rule 33

For the purpose of these rules the phrase "representatives present and voting" means representatives casting an affirmative or negative vote. Representatives abstaining from voting or casting an invalid vote shall be considered as not voting.

Method of voting

Rule 34

The Conference shall normally vote by show of hands. However, any representative may request a roll-call vote which shall be taken in the English alphabetical order of the names of the States participating in the Conference, beginning with the delegation whose name is drawn by lot by the President. The vote of each representative participating in any roll-call vote shall be inserted in the report or record of the meeting concerned.

LEG/CONF.13/2 - 10 -


Conduct during voting Rule 35

After the President has announced the beginning of voting, no representative shall interrupt the voting except on a point of order in connection with the actual conduct of the voting. Except in the case of elections held by secret ballot, the President may permit representatives to explain their votes after the voting. The President may limit the time to be allowed for such explanations.

Division of proposals and amendments

Rule 36 (a) Parts of a proposal or amendment thereto shall be voted on separately if the President, with the

consent of the proposer, so decides or if a representative requests that the proposal or amendment thereto be divided and the proposer raises no objection. If the proposer objects to a request for division, permission to speak on the request shall be given first to the representative making the request to divide the proposal or amendment, and then to the mover of the original proposal or amendment under discussion, after which the request to divide the proposal or amendment shall be put immediately to the vote.

(b) Where parts of a proposal or amendment thereto have been voted on separately, those parts of

a proposal which have been approved shall then be put to the vote as a whole. (c) If all the operative parts of the proposal or amendment have been rejected, the proposal or

amendment shall be considered to have been rejected as a whole.

Voting on amendments Rule 37 (a) A motion is considered to be an amendment to a proposal if it merely adds to, dele tes from or

revises part of that proposal. An amendment shall be voted on before the proposal to which it relates is put to the vote.

(b) If two or more amendments are moved to a proposal, the Conference shall first vote on the

amendment furthest removed in substance from the original proposal and then on the amendment next furthest removed therefrom and so on until all amendments have been put to the vote. Where, however, the adoption of one amendment necessarily implies the rejection of another amendment, the latter amendment shall not be put to the vote.

(c) The President shall, in all cases, determine which amendment is furthest removed in substance

from a proposal or whether the adoption of an amendment necessarily implies the rejection of another amendment. An appeal against the President's ruling shall immediately be put to the vote and the President's ruling shall stand unless the appeal is approved by a majority of the representatives present and voting.

(d) If one or more amendments are adopted, the amended proposal shall then be voted upon.

Voting on proposals Rule 38

If two or more proposals relate to the same question, the Conference shall, unless it decides otherwise, vote on the proposals in the order in which they have been submitted.

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Elections Rule 39

All elections shall be held by secret ballot unless the Conference decides otherwise. Rule 40

Before the commencement of a secret ballot two scrutineers shall be appointed by the Conference, on the proposal of the President, from the delegations present. The scrutineers shall scrutinize the votes cast and report the results to the President indicating the number of votes cast including invalid votes, if any.

Rule 41 (a) If, when one person or one delegation is to be elected, no candidate obtains on the first ballot a

majority of the representatives present and voting, a second ballot restricted to the two candidates obtaining the largest numbers of votes shall be taken. If on the second ballot the votes are equally divided the President shall decide between the candidates by drawing lots.

(b) In the case of a tie on the first ballot among three or more candidates obtaining the largest

numbers of votes, a second ballot shall be held. If on such a second ballot a tie results among more than two candidates, the number shall be reduced to two by lot and the balloting, restricted to those two, shall continue in accordance with the preceding paragraph of this rule.

Rule 42

When two or more elective places are to be filled at one time under the same conditions, the candidates obtaining on the first ballot a majority of the representatives present and voting shall be elected. If the number of candidates obtaining the requisite majority is greater than the number of persons or delegations to be elected, the candidates obtaining the greatest number of votes shall be declared elected. If the number of candidates obtaining such majority is less than the number of persons or delegations to be elected, there shall be additional ballots to fill the remaining places, the voting being restricted to the candidates obtaining the greatest numbers of votes in the previous ballot, to a number not more than twice the places remaining to be filled; provided that, after a third inconclusive ballot, votes may be cast for any eligible person or delegation. If three such unrestricted ballots are inconclusive, the next three ballots shall be restricted to the candidates who obtained the greatest numbers of votes on the third of the unrestricted ballots, to a number not more than twice the places remaining to be filled, and the following three ballots thereafter shall be unrestricted, and so on until the places have been filled.

Equally divided votes

Rule 43

If a vote is equally divided on matters other than elections, the proposal shall be regarded as rejected.

LEG/CONF.13/2 - 12 -


CHAPTER VI - COMMITTEES

Committee of the Whole Rule 44

The Conference shall establish a Committee of the Whole. The Committee of the Whole may set up such subsidiary bodies as it considers necessary.

Drafting Committee

Rule 45

A Drafting Committee, composed of not more than [nine] members, shall be appointed by the Conference on the proposal of the President. The Drafting Committee shall prepare drafts and give advice on drafting as may be requested by the Conference or by any committee or subsidiary body. It shall also prepare the Final Act of the Conference. The Drafting Committee shall not alter the substance of texts submitted to it, but shall have the power to review and co-ordinate the drafting of all such texts. The Committee shall report as appropriate to the Conference or to any committee or subsidiary body.

Establishment of other committees and

subsidiary bodies Rule 46

In addition to the Committee of the Whole, the Credentials Committee and the Drafting Committee, the Conference may establish such other committees and subsidiary bodies as it deems necessary for the performance of its functions.

Representation on committees and other


Each delegation participating in the Conference shall be represented by one person on any committee or other subsidiary body to which that delegation may be appointed. The delegation may assign to these committees or other subsidiary bodies such alternate representatives and advisers as may be required.

Officers

Rule 48

Except in the cases of the Chairman of the Committee of the Whole and the Chairman of the Drafting Committee, each committee or other subsidiary body shall elect its own officers. The Committee of the Whole shall elect [two] Vice-Chairmen [who shall be designated as First and Second Vice-Chairman, respectively, and take precedence in that order].

Quorum of committees and other subsidiary bodies

Rule 49 (a) The quorum of the Committee of the Whole shall be constituted by the representatives of a

majority of the States participating in the Conference. (b) The quorum of the Drafting Committee or the Credentials Committee shall be constituted by

the representatives of a majority of the States appointed to the Committee.

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(c) The quorum of any Committee or other subsidiary body established under rule 46 shall be constituted by the number determined by the Conference. Failing such determination the quorum shall be constituted by one half of the States participating in the Conference.

Conduct of business and voting in committees

and other subsidiary bodies Rule 50

The rules relating to officers and conduct of business contained in chapters II, III, IV, V, VII and IX shall be applicable mutatis mutandis to the proceedings of committees and other subsidiary bodies, except that all decisions of committees or other subsidiary bodies shall be taken by a majority of the representatives present and voting. However, in the case of reconsideration of proposals or amendments in a committee or subsidiary body, the majority required shall be that established by rule 29.

CHAPTER VII - LANGUAGES AND RECORDS

Official and working languages Rule 51 (a) The official languages of the Conference shall be Arabic, Chinese, English, French, Russian

and Spanish. (b) The working languages shall be English, French and Spanish.

Interpretation from official languages Rule 52

Speeches made at the Conference, in the Committee of the Whole or in the Drafting Committee or in other committees or other subsidiary bodies established under rule 46 in any of the official languages shall be interpreted into the other official languages.

Interpretation from other languages

Rule 53

Any representative may make a speech in a language other than an official language. In this case, that representative shall provide for interpretation into one of the official languages. Interpretation into the other official languages by the interpreters provided by the Organization may be based on any such interpretation given in the first official language.

Records of Decisions

Rule 54

The Secretariat shall prepare Records of Decisions of the Plenary and the Committee of the Whole.

Languages of documents

Rule 55

Conference documents shall be made available in the working languages.

LEG/CONF.13/2 - 14 -


CHAPTER VIII - PUBLIC AND PRIVATE MEETINGS

Plenary meetings and meetings of committees and subsidiary bodies Rule 56

The plenary meetings of the Conference and meetings of the Committee of the Whole shall be held in public unless the Conference decides otherwise. Meetings of other committees and other subsidiary bodies of the Conference shall be held in private unless the Conference decides otherwise.

Communiqués to the Press

Rule 57

At the close of any meeting a communiqué may be issued to the Press through the Executive Secretary.

CHAPTER IX - OBSERVERS Rule 58 (a) States may choose to participate in the Conference as observers. Delegations of States

participating as observers shall not have the right to vote. (b) Representatives of the Associate Members of the International Maritime Organization may

participate, without the right of vote, in the deliberations of the Conference, its committees and other subsidiary bodies.

(c) Liberation movements recognized by the Organization of African Unity or the League of Arab

States may participate, without the right to vote, in the deliberations of the Conference, its committees and other subsidiary bodies, upon the invitation of the President or Chairman as the case may be.

(d) Representatives from the United Nations, its specialized agencies and the IAEA may

participate, without the right to vote, in the deliberations of the Conference, its committees and other subsidiary bodies, upon the invitation of the President or Chairman as the case may be.

(e) Observers of other intergovernmental organizations and non-governmental bodies invited to

the Conference may, upon the invitation of the President or Chairman, as the case may be, take part without vote in the deliberations of the Conference, its committees or other subsidiary bodies on questions within the scope of their activities.

(f) Written statements submitted by observers or experts may be distributed by the Secretariat to

the delegations at the Conference.

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CHAPTER X - AMENDMENTS TO THE RULES OF PROCEDURE Rule 59

These Rules of Procedure may be amended by a decision of the Conference taken by a majority of the representatives present and voting.

CHAPTER XI - SIGNATURE OF THE FINAL ACT Rule 60 The Final Act resulting from the deliberation of the Conference shall be submitted for

signature by the delegations.

__________






IMO

E


LEG/CONF.13/3 5 March 2002 Original: ENGLISH

CONSIDERATION OF A DRAFT PROTOCOL OF 2002 TO AMEND THE

ATHENS CONVENTION RELATING TO THE CARRIAGE OF PASSENGERS AND THEIR LUGGAGE BY SEA, 1974

Prepared by the Legal Committee of the Organization

The States Parties to this Protocol, CONSIDERING that it is desirable to amend the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, done at Athens on 13 December 1974, to provide for enhanced compensation, to introduce strict liability, to establish a simplified procedure for updating the limitation amounts, and to make insurance for the benefit of passengers compulsory,1 RECALLING that the 1976 Protocol to the Convention introduces the Special Drawing Right as the Unit of Account in place of the gold franc, HAVING NOTED that the 1990 Protocol to the Convention, which provides for enhanced compensation and a simplified procedure for updating the limitation amounts, has not entered into force, HAVE AGREED as follows:

ARTICLE 1 For the purposes of this Protocol: 1 "Convention" means the Athens Convention relating to the Carriage of Passengers and

their Luggage by Sea, 1974. 2 "Organization" means the International Maritime Organization. 3 "Secretary-General" means the Secretary-General of the Organization.

1 See LEG 83/14, paragraph 84.

LEG/CONF.13/3 - 2 -


ARTICLE 2

Article 1, paragraph 1 of the Convention is replaced by the following text: 1

(a) "carrier" means a person by or on behalf of whom a contract of carriage has been concluded, whether the carriage is actually performed by that person2 or by a performing carrier;

(b) "performing carrier" means a person other than the carrier, being the owner,

charterer or operator of a ship, who actually performs the whole or a part of the carriage;

(c) "carrier who actually performs the whole or a part of the carriage" means the

performing carrier, or, in so far as the carrier actually performs the carriage, the carrier;

ARTICLE 3 1 Article 1, paragraph 10 of the Convention is replaced by the following: 10 �Organization� means the International Maritime Organization.3 2 The following text is added as article 1, paragraph 11, of the Convention:

11 "Secretary-General" means the Secretary-General of the Organization.4

ARTICLE 4 Article 3 of the Convention is replaced by the following text: 1 For the loss suffered as a result of the death of or personal injury5 to a passenger caused

by a shipping incident6, the carrier shall be liable to the extent that such loss in respect of that passenger on a distinct occasion does not exceed [�] units of account, unless the carrier proves that the incident:

(a) resulted from an act of war, hostilities, civil war, insurrection or a natural

phenomenon of an exceptional, inevitable and irresistible character; or (b) was wholly caused by an act or omission done with the intent to cause the

incident by a third party.

2 Changed by the Secretariat (from �him� to �that person�, to be neutral). 3 This definition has been added by the Secretariat. 4 See LEG 83/14, paragraph 85. 5 See LEG 83/14, paragraph 35: Spanish text amended as suggested. 6 See LEG/83/14, paragraph 38 with regard to the Committee�s agreement on the issue of �per incident�

limitation.

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If and to the extent that the loss exceeds the above limit, the carrier shall be further liable unless the carrier proves that the incident which caused the loss occurred without the fault or neglect of the carrier.

2 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 shall be liable if the incident which caused the loss was due to the fault or neglect of the carrier. The burden of proving fault or neglect shall lie with the claimant.7

3 For the loss suffered as a result of the loss of or damage to cabin luggage, the carrier shall

be liable if the incident which caused the loss was due to the fault or neglect of the carrier. The fault or neglect of the carrier shall be presumed for loss caused by a shipping incident.

4 For the loss suffered as a result of the loss of or damage to luggage other than cabin

luggage, the carrier shall be liable unless the carrier proves that the incident which caused the loss occurred without the fault or neglect of the carrier.

5 For the purposes of this article:

(a) "shipping incident" means shipwreck, collision or stranding of the ship, explosion or fire in the ship, or defect in the ship;

(b) �fault or neglect of the carrier� includes the fault or neglect of his or her servants8,

acting within the scope of their employment; (c) �defect in the ship�9 means any malfunction or failure in any part of the ship or its

equipment when used for passenger escape, embarkation and disembarkation, or used for propulsion, steering, safe navigation, mooring, anchoring, leaving a berth or anchorage, flooding safety, stability, and the operation of emergency boat winches; and

(d) �loss� shall not include punitive or exemplary damages.10

6 The liability of the carrier under this article only includes loss arising from incidents that occurred in the course of the carriage. The burden of proving that the incident which caused the loss occurred in the course of the carriage, and the extent of the loss, shall lie with the claimant.

7 Nothing in this Convention shall prejudice any existing right of recourse of the carrier

against any third party, or the defence of contributory negligence under article 6 of this Convention. Nothing in this article shall prejudice any right of limitation under articles 7 or 8 of this Convention.

7 See LEG 83/14, paragraph 23. 8 The Secretariat suggest that the phrase �his or her� and the lack of agreement with �their� can be avoided by

replacing the words �his or her servants� with the words �servants of the carrier�. 9 See LEG 83/14, paragraph 28: �The Committee agreed to this definition in principle but noted that further work

was required on the draft text to ensure that the definition clearly distinguished between the hotel type elements and the navigational elements of the ship. The definition might also need some expansion to include items such as sprinklers and anti-fire equipment.�

10 See LEG 83/14, paragraph 36.

LEG/CONF.13/3 - 4 -


8 Presumptions of fault or neglect of a party or the allocation of the burden of proof to a party shall not prevent evidence in favour of that party from being considered.

ARTICLE 5 The following text is added as article 4bis of the Convention:

Article 4bis

Compulsory insurance

1 When passengers are carried on board a ship registered in a State Party that is licensed to carry more than twelve passengers, and this Convention applies, any carrier who actually performs the whole or a part of the carriage shall maintain insurance or other financial security, such as the guarantee of a bank or similar financial institution, to cover his or her11 liability under this Convention in respect of the death of and personal injury to passengers. The limit of the compulsory insurance or other financial security shall not be less than [�] units of account per capita12 on each distinct occasion.13

2 A certificate attesting that insurance or other financial security is in force in accordance with the provisions of this Convention shall be issued to each ship after the appropriate authority of a State Party has determined that the requirements of paragraph 1 have been complied with. With respect to a ship registered in a State Party, such certificate shall be issued or certified by the appropriate authority of the State of the ship's registry; with respect to a ship not registered in a State Party it may be issued or certified by the appropriate authority of any State Party. This certificate shall be in the form of the model set out in the annex to this Convention and shall contain the following particulars: (a) name of ship, distinctive number or letters and port of registry; (b) name and principal place of business of the carrier who actually performs the

whole or a part of the carriage; (c) IMO ship identification number; (d) type and duration of security; (e) name and principal place of business of insurer or other person giving security

and, where appropriate, place of business where the insurance or security is established; and

(f) period of validity of the certificate, which shall not be longer than the period of

validity of the insurance or other security.

11 The Secretariat suggests that the phrase �his or her� can be avoided by deleting these words. See HNS

Convention, article 12, paragraph 1, last line. 12 See LEG 83/14, paragraph 48. 13 See LEG 83/14, paragraph 39.

- 5 - LEG/CONF.13/3


3 (a) A State Party may authorize either an institution or an organisation recognised by it to issue the certificate referred to in paragraph 2.14. Such institution or organization shall inform that State of the issue of each certificate. In all cases, the State Party shall fully guarantee the completeness and accuracy of the certificate so issued, and shall undertake to ensure the necessary arrangements to satisfy this obligation.

(b) A State Party shall notify the Secretary-General of:

(i) the specific responsibilities and conditions of the authority delegated to an institution or organization recognised by it;

(ii) the withdrawal of such authority; and (iii) the date from which such authority or withdrawal of such authority takes

effect.

An authority delegated shall not take effect prior to three months from the date from which notification to that effect was given to the Secretary-General.

(c) The institution or organization authorized to issue certificates in accordance with

this paragraph shall, as a minimum, be authorized to withdraw these certificates if the conditions under which they have been issued are not maintained. In all cases the institution or organization shall report such withdrawal to the State on whose behalf the certificate was issued.

4 The certificate shall be in the official language or languages of the issuing State. If the

language used is not English, French or Spanish, the text shall include a translation into one of these languages, and, where the State so decides, the official language of the State may be omitted.

5 The certificate shall be carried on board the ship, and a copy shall be deposited with the authorities who keep the record of the ship's registry or, if the ship is not registered in a State Party, with the authority of the State issuing or certifying the certificate.

6 An insurance or other financial security shall not satisfy the requirements of this article if

it can cease, for reasons other than the expiry of the period of validity of the insurance or security specified in the certificate under paragraph 2, before three months have elapsed from the date on which notice of its termination is given to the authorities referred to in paragraph 5, unless the certificate has been surrendered to these authorities or a new certificate has been issued within the said period. The foregoing provisions shall similarly apply to any modification which results in the insurance or security no longer satisfying the requirements of this article.

7 The State of the ship's registry shall, subject to the provisions of this article, determine the conditions of issue and validity of the certificate.

14 The words �of this article� have been deleted as being unnecessary here, and at other places, where there is a

cross reference to a paragraph within the same article.

LEG/CONF.13/3 - 6 -


8 Nothing in this Convention shall be construed as preventing a State Party from relying on information obtained from other States or the Organization or other international organizations relating to the financial standing of providers of insurance or financial security for the purposes of this Convention. In such cases, the State Party relying on such information is not relieved of its responsibility as a State issuing the certificate required by paragraph 2.

9 Certificates issued or certified under the authority of a State Party shall be accepted by

other States Parties for the purposes of this Convention and shall be regarded by other States Parties as having the same force as certificates issued or certified by them, even if issued or certified in respect of a ship not registered in a State Party. A State Party may at any time request consultation with the issuing or certifying State should it believe that the insurer or guarantor named in the insurance certificate is not financially capable of meeting the obligations imposed by this Convention.

10 Any claim for compensation covered by insurance or other financial security pursuant to

this article may be brought directly against the insurer or other person providing financial security. In such case, the amount set out in paragraph 1 applies as the limit of liability of the insurer or other person providing financial security, even if the carrier or the performing carrier is not entitled to limitation of liability. The defendant may further invoke the defences (other than the bankruptcy or winding up) which the carrier referred to in paragraph 1 would have been entitled to invoke in accordance with this Convention. Furthermore, the defendant may invoke the defence that the damage resulted from the wilful misconduct of the assured, but the defendant shall not invoke any other defence which the defendant might have been entitled to invoke in proceedings brought by the assured against the defendant.15 The defendant shall in any event have the right to require the carrier and the performing carrier to be joined in the proceedings.

11 Any sums provided by insurance or by other financial security maintained in accordance with paragraph 1 shall be available exclusively for the satisfaction of claims under this Convention, and any payments made of such sums shall discharge any liability arising under this Convention to the extent of the amounts paid.

12 A State Party shall not permit a ship under its flag to which this article applies to operate

at any time unless a certificate has been issued under paragraphs 2 or 15. 13 Subject to the provisions of this article, each State Party shall ensure, under its national

law, that insurance or other security, to the extent specified in paragraph 1, is in force in respect of any ship that is licensed to carry more than twelve passengers, wherever registered, entering or leaving a port in its territory in so far as this Convention applies.

14 Notwithstanding the provisions of paragraph 5, a State Party may notify the

Secretary-General that, for the purposes of paragraph 13, ships are not required to carry on board or to produce the certificate required by paragraph 2 when entering or leaving ports in its territory, provided that the State Party which issues the certificate required by paragraph 2 has notified the Secretary-General that it maintains records in an electronic format, accessible to all States Parties, attesting the existence of the certificate and enabling States Parties to discharge their obligations under paragraph 13.16

15 See LEG 83/14, paragraph 53. 16 See Leg 83/14, paragraph 86.

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15 If insurance or other financial security is not maintained in respect of a ship owned by a

State Party, the provisions of this article relating thereto shall not be applicable to such ship, but the ship shall carry a certificate issued by the appropriate authorities of the State of the ship's registry, stating that the ship is owned by that State and that the liability is covered within the amount prescribed in accordance with paragraph 1. Such a certificate shall follow as closely as possible the model prescribed by paragraph 2.

ARTICLE 6

Article 7 of the Convention is replaced by the following text:

Article 7

Limit of liability for death and17 personal injury 1 The liability of the carrier for the death of or personal injury to a passenger under article 3

shall in no case exceed [�] units of account per capita18 on each distinct occasion.19 Where, in accordance with the law of the court seized of the case, damages are awarded in the form of periodical income payments, the equivalent capital value of those payments shall not exceed the said limit.

2 A State Party may regulate by specific provisions of national law the limit of liability prescribed in paragraph 1, provided that the national limit of liability, if any, is not lower than that prescribed in paragraph 1. A State Party, which makes use of the option provided for in this paragraph, shall inform the Secretary-General of the limit of liability adopted or of the fact that there is none.20

ARTICLE 7 Article 8 of the Convention is replaced by the following text:

Article 8 Limit of liability for loss of or damage to luggage and vehicles21

1 The liability of the carrier for the loss of or damage to cabin luggage shall in no case

exceed [�] units of account per passenger, per carriage.22

17 The words �death and� have been added to the heading by the Secretariat to reflect the scope of the article. 18 See LEG 83/14, paragraph 48. 19 See LEG 83/14, paragraph 39. 20 See LEG 83/14, paragraph 82. 21 The words �and vehicles� have been added by the Secretariat to reflect the scope of the article. 22 See LEG 83/14, paragraph 38.

LEG/CONF.13/3 - 8 -


2 The liability of the carrier for the loss of or damage to vehicles including all luggage carried in or on the vehicle shall in no case exceed [�] units of account per vehicle, per carriage.

3 The liability of the carrier for the loss of or damage to luggage other than that mentioned in paragraphs 1 and 2 shall in no case exceed [�] units of account per passenger, per carriage.

4 The carrier and the passenger may agree that the liability of the carrier shall be subject to

a deductible not exceeding [�] units of account in the case of damage to a vehicle and not exceeding [�] units of account per passenger in the case of loss of or damage to other luggage, such sum to be deducted from the loss or damage.


Article 9

Unit of Account and conversion

1 The Unit of Account mentioned in this Convention is the Special Drawing Right as defined by the International Monetary Fund. The amounts mentioned in article 3, paragraph 1, article 4bis, paragraph 1, article 7, paragraph l, and article 8 shall be converted into the national currency of the State of the court seized of the case on the basis of the value of that currency by reference to the Special Drawing Right on the date of the judgment or the date agreed upon by the parties. The value of the national currency, in terms of the Special Drawing Right, of a State Party which is a member of the International Monetary Fund, shall be calculated in accordance with the method of valuation applied by the International Monetary Fund in effect on the date in question for its operations and transactions. The value of the national currency, in terms of the Special Drawing Right, of a State Party which is not a member of the International Monetary Fund, shall be calculated in a manner determined by that State Party.

2 Nevertheless, a State which is not a member of the International Monetary Fund and

whose law does not permit the application of the provisions of paragraph 1 may, at the time of ratification, acceptance, approval of or accession to this Convention or at any time thereafter, declare that the unit of account referred to in paragraph 1 shall be equal to 15 gold francs. The gold franc referred to in this paragraph corresponds to sixty-five and a half milligrams of gold of millesimal fineness nine hundred. The conversion of the gold franc into the national currency shall be made according to the law of the State concerned.

3 The calculation mentioned in the last sentence of paragraph 1, and the conversion mentioned in paragraph 2 shall be made in such a manner as to express in the national currency of the States Parties, as far as possible, the same real value for the amounts in article 3, paragraph 1, article 4bis, paragraph 1, article 7, paragraph 1, and article 8 as would result from the application of the first three sentences of paragraph 1. States shall communicate to the Secretary-General the manner of calculation pursuant to paragraph 1, or the result of the conversion in paragraph 2, as the case may be, when depositing an instrument of ratification, acceptance, approval of or accession to this Convention and whenever there is a change in either.

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ARTICLE 9

Article 16, paragraph 3, of the Convention is replaced by the following text: 3 The law of the Court seized of the case shall govern the grounds for suspension and

interruption of limitation periods, but in no case shall an action under this Convention be brought after the expiration of any one of the following periods of time: (a) A period of five23 years from the date of disembarkation of the passenger or from

the date when disembarkation should have taken place, whichever is later, or, if earlier

(b) a period of three years from the date when the claimant knew or ought reasonably

to have known of the injury, loss or damage caused by the incident.

ARTICLE 10

Article 17 of the Convention is replaced by the following text:

Article 17

Competent jurisdiction

1 An action arising under articles 3 and 4 of this Convention shall, at the option of the claimant, be brought before one of the courts listed below, provided that the court is located in a State Party to this Convention, and subject to the domestic law of each State Party governing proper venue within those States with multiple possible forums:24

(a) the court of the State25 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) a 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) a 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.

2 Actions under article 4bis of this Convention shall, at the option of the claimant, be brought before one of the courts where action could be brought against the carrier or performing carrier according to paragraph 1.

23 See LEG 83/14, paragraph 61. 24 See LEG 83/14, paragraph 70. 25 See LEG 83/14, paragraph 71.

LEG/CONF.13/3 - 10 -


3 After the occurrence of the incident which has caused the damage, the parties may agree that the claim for damages shall be submitted to any jurisdiction or to arbitration.

ARTICLE 11

The following text is added as Article 17bis of the Convention:

Article 17bis

Recognition and enforcement

1 Any judgment given by a court with jurisdiction in accordance with article 17 which is enforceable in the State of origin where it is no longer subject to ordinary forms of review, shall be recognised in any State Party, except

(a) where the judgment was obtained by fraud; or (b) where the defendant was not given reasonable notice and a fair opportunity to

present his or her case.

2 A judgment recognised under paragraph 1 shall be enforceable in each State Party as soon as the formalities required in that State have been complied with. The formalities shall not permit the merits of the case to be re-opened.


Article 18

Invalidity of contractual provisions

Any contractual provision concluded before the occurrence of the incident which has caused the death of or personal injury to a passenger or the loss of or damage to his or her luggage, purporting to relieve any person liable under this Convention of liability towards the passenger or to prescribe a lower limit of liability than that fixed in this Convention except as provided in article 8, paragraph 4, and any such provision purporting to shift the burden of proof which rests on the carrier or performing carrier, or having the effect of restricting the options specified in article 17, paragraphs 1 or 2, shall be null and void, but the nullity of that provision shall not render void the contract of carriage which shall remain subject to the provisions of this Convention.

- 11 - LEG/CONF.13/3



Article 20

Nuclear damage

No liability shall arise under this Convention for damage caused by a nuclear incident: (a) if the operator of a nuclear installation is liable for such damage under either the

Paris Convention of 29 July 1960 on Third Party Liability in the Field of Nuclear Energy as amended by its Additional Protocol of 28 January 1964, or the Vienna Convention of 21 May 1963 on Civil Liability for Nuclear Damage, or any amendment or Protocol thereto which is in force; or

(b) if the operator of a nuclear installation is liable for such damage by virtue of a

national law governing the liability for such damage, provided that such law is in all respects as favourable to persons who may suffer damage as either the Paris or the Vienna Conventions or any amendment or Protocol thereto which is in force.

ARTICLE 14

Amendment of limits26 127 Upon the request of at least one half, but in no case less than six, of the States Parties to

this Protocol, any proposal to amend the limits, including the deductibles, specified in article 4bis, paragraph 1, article 7, paragraph 1, and article 8 of the Convention as amended by this Protocol28 shall be circulated by the Secretary-General to all Members of the Organization and to all States Parties.

2 Any amendment proposed and circulated as above shall be submitted to the Legal

Committee of the Organization (hereinafter referred to as "the Legal Committee") for consideration at a date at least six months after the date of its circulation.

3 All States Parties to the Convention as amended by this Protocol, whether or not

Members of the Organization, shall be entitled to participate in the proceedings of the Legal Committee for the consideration and adoption of amendments.

26 Heading added by the Secretariat. 27 Because this procedure is intended for amending the limits but not for amending other parts of the Protocol,

consideration should be given to incorporating a text to precede paragraph 1, to read along the lines followed in article 48, paragraph 1 of the HNS Convention: �Without prejudice to the provisions of Article 22, the special procedure in this article shall apply solely for the purposes of amending the limits set out in article 4bis, paragraph 1, article 7, paragraph 1, and article 8 of the Convention as amended by this Protocol.�

28 The Secretariat suggests that consideration might be given to including a reference to article 3, paragraph 1 as among the limits which could be subject to the amendment process of this article. (If accepted, this reference would also be made in the text offered in footnote 27 above.)

LEG/CONF.13/3 - 12 -


4 Amendments shall be adopted by a two-thirds majority of the States Parties to the Convention as amended by this Protocol present and voting in the Legal Committee expanded as provided for in paragraph 3, on condition that at least one half of the States Parties to the Convention as amended by this Protocol shall be present at the time of voting.

5 When acting on a proposal to amend the limits, the Legal Committee shall take into

account the experience of incidents and, in particular, the amount of damage resulting there from, changes in the monetary values and the effect of the proposed amendment on the cost of insurance.

6 (a) No amendment of the limits under this article may be considered less than five

years from the date on which this Protocol was opened for signature nor less than five years from the date of entry into force of a previous amendment under this Article.

(b) No limit may be increased so as to exceed an amount which corresponds to the

limit laid down in the Convention as amended by this Protocol increased by six per cent per year calculated on a compound basis from the date on which this Protocol was opened for signature.

(c) No limit may be increased so as to exceed an amount which corresponds to the

limit laid down in the Convention as amended by this Protocol multiplied by three.

7 Any amendment adopted in accordance with paragraph 4 shall be notified by the

Organization to all States Parties. The amendment shall be deemed to have been accepted at the end of a period of eighteen months after the date of notification, unless within that period not less than one fourth of the States that were States Parties at the time of the adoption of the amendment have communicated to the Secretary-General that they do not accept the amendment, in which case the amendment is rejected and shall have no effect.

8 An amendment deemed to have been accepted in accordance with paragraph 7 shall enter

into force eighteen months after its acceptance. 9 All States Parties shall be bound by the amendment, unless they denounce this Protocol in

accordance with article 21, paragraphs 1 and 2 at least six months before the amendment enters into force. Such denunciation shall take effect when the amendment enters into force.

10 When an amendment has been adopted but the eighteen-month period for its acceptance

has not yet expired, a State which becomes a State Party during that period shall be bound by the amendment if it enters into force. A State which becomes a State Party after that period shall be bound by an amendment which has been accepted in accordance with paragraph 7. In the cases referred to in this paragraph, a State becomes bound by an amendment when that amendment enters into force, or when this Protocol enters into force for that State, if later.

- 13 - LEG/CONF.13/3


ARTICLE 15

Model certificate29 The model certificate set out in the annex to this Protocol shall be annexed to the Convention.30

ARTICLE 16

Interpretation and application31

1 The Convention and this Protocol shall, as between the Parties to this Protocol, be read and interpreted together as one single instrument.

2 The Convention as amended by this Protocol shall apply only to claims arising out of

occurrences which take place after the entry into force for each State of this Protocol.

FINAL CLAUSES

ARTICLE 17

Signature, ratification, acceptance, approval and accession 1 This Protocol shall be open for signature at the Headquarters of the Organization from

[date] until [date] and shall thereafter remain open for accession. 2 States may express their consent to be bound by this Protocol by:

(a) signature without reservation as to ratification, acceptance or approval; or (b) signature subject to ratification, acceptance or approval followed by ratification,

acceptance or approval; or (c) accession.

3 Ratification, acceptance, approval or accession shall be effected by the deposit of an instrument to that effect with the Secretary-General.

29 Heading added by the Secretariat. 30 Considering the apparent intent of the Legal Committee to have the model certificate regarded as an integral part

of the convention, and taking into account article 2 of the HNS Convention, the Secretariat suggests that consideration might be given to expanding this article to include two paragraphs to read as follows: �1 The model certificate set out in the annex to this Protocol shall be incorporated as an annex to the Convention. �2 The following text is added as article 1bis of the Convention:

�Article 1bis Annex The annex to this Convention shall constitute an integral part of the Convention.�� 31 Heading added by the Secretariat.

LEG/CONF.13/3 - 14 -


4 Any instrument of ratification, acceptance, approval or accession deposited after the entry into force of an amendment to this Protocol with respect to all existing States Parties, or after the completion of all measures required for the entry into force of the amendment with respect to those States Parties shall be deemed to apply to this Protocol as modified by the amendment.

5 A State shall not express its consent to be bound by this Protocol unless it has, if Party thereto, denounced:

(a) the Athens Convention relating to the Carriage of Passengers and their Luggage

by Sea, done at Athens on 13 1974; (b) the Protocol to the Athens Convention relating to the Carriage of Passengers and

their Luggage by Sea, done at London on 19 November 1976; and (c) the Protocol of 1990 to amend the Athens Convention relating to the Carriage of

Passengers and their Luggage by Sea, done at London on 29 March 1990. with effect from the time that this Protocol will enter into force for that State

in accordance with article 20.

ARTICLE 18

States with more than one system of law 1 If a State has two or more territorial units in which different systems of law are applicable

in relation to matters dealt with in this Protocol, it may at the time of signature, ratification, acceptance, approval or accession declare that this Protocol shall extend to all its territorial units or only to one or more of them, and may modify this declaration by submitting another declaration at any time.

2 Any such declaration shall be notified to the Secretary-General and shall state expressly

the territorial units to which this Protocol applies.

3 In relation to a State Party which has made such a declaration:

(a) references to the State of a ship's registry and, in relation to a compulsory insurance certificate, to the issuing or certifying State, shall be construed as referring to the territorial unit respectively in which the ship is registered and which issues or certifies the certificate;

(b) references to the requirements of national law and to "national currency" shall be

construed respectively as references to the requirements of the law and to the currency of the relevant territorial unit; and

(c) references to courts, and to judgments which must be recognised in States Parties,

shall be construed as references respectively to courts of, and to judgments which must be recognised in, the relevant territorial unit.

- 15 - LEG/CONF.13/3


ARTICLE 19

Economic Integration Organizations [An Economic Integration Organization, which is constituted by sovereign States and has competence over certain matters governed by this Protocol may sign, ratify, accept, approve or accede to this Protocol. The Economic Integration Organization shall in that case have the rights and obligations of a State Party. Where the number of States Parties is relevant in this Protocol, the Economic Integration Organization shall not count as a State Party in addition to its Member States which are States Parties.]32

ARTICLE 20

Entry into force 1 This Protocol shall enter into force twelve months following the date on which [�] States

have either signed it without reservation as to ratification, acceptance or approval or have deposited instruments of ratification, acceptance, approval or accession with the Secretary-General.

2 For any State which ratifies, accepts, approves or accedes to this Protocol after the

conditions in paragraph 1 for entry into force have been met, this Protocol shall enter into force three months after the date of deposit by such State of the appropriate instrument, but not before this Protocol has entered into force in agreement with paragraph 1.

ARTICLE 21

Denunciation 1 This Protocol may be denounced by any State Party at any time after the date on which

this Protocol comes into force for that State. 2 Denunciation shall be effected by the deposit of an instrument to that effect33 with the

Secretary-General.

3 A denunciation shall take effect twelve months, or such longer period as may be specified in the instrument of denunciation, after its deposit with the Secretary-General.

4 As between the States Parties to this Protocol, denunciation by any of them of the

Convention in accordance with article 25 thereof shall not be construed in any way as a denunciation of the Convention as amended by this Protocol.

32 See LEG 83/14, paragraph 77. 33 The words �to that effect� have been added by the Secretariat for clarification and consistency with the wording

used in article 17, paragraph 3.

LEG/CONF.13/3 - 16 -


ARTICLE 22

Revision and Amendment 1 A conference for the purpose of revising or amending this Protocol may be convened by

the Organization. 2 The Organization shall convene a conference of States Parties to this Protocol for revising

or amending this Protocol at the request of not less than one-third of the States Parties.

ARTICLE 23

Depositary

1 This Protocol and any amendments adopted34 under article 14 shall be deposited with the

Secretary-General. 235 The Secretary-General shall: (a) inform all States which have signed or acceded to this Protocol of:

(i) each new signature or deposit of an instrument of ratification, acceptance, approval or accession together with the date thereof;

(ii) each declaration and communication under article 9, paragraphs 2 and 3 of

the Convention as amended by this Protocol; (iii) the date of entry into force of this Protocol; (iv) any proposal to amend the limits which has been made in accordance with

article 14, paragraph 1 of this Protocol; (v) any amendment which has been adopted in accordance with article 14,

paragraph 4 of this Protocol; (vi) any amendment deemed to have been accepted under article 14,

paragraph 7 of this Protocol, together with the date on which that amendment shall enter into force in accordance with paragraphs 8 and 9 of that article;

(vii) the deposit of any instrument of denunciation of this Protocol together

with the date of the deposit and the date on which it takes effect; (viii) any communication called for by any article of this Protocol;

(b) transmit certified true copies of this protocol to all Signatory States and all States

which accede to this Protocol.

34 The word �accepted� has been changed by the Secretariat for consistency with article 14, paragraph 7. 35 This paragraph has been expanded on the basis of article 53 of the HNS Convention.

- 17 - LEG/CONF.13/3


336 As soon as this Protocol comes into force, the text shall be transmitted by the Secretary-General to the Secretariat of the United Nations for registration and publication in accordance with Article 102 of the Charter of the United Nations.

ARTICLE 24

Languages This Protocol is established in a single original in the Arabic, Chinese, English, French, Russian and Spanish languages, each text being equally authentic. DONE AT LONDON this [number] day of [month] [year]. IN WITNESS WHEREOF the undersigned, being duly authorised by their respective Governments for that purpose, have signed this Protocol.

***

36 This paragraph originally stood alone as article 24; but has been renumbered as paragraph 3 in article 23 to be

consistent with the text of article 53 of the HNS Convention.

LEG/CONF.13/3


ANNEX

CERTIFICATE OF INSURANCE OR OTHER FINANCIAL SECURITY IN RESPECT OF LIABILITY FOR THE DEATH AND PERSONAL INJURY TO PASSENGERS

Issued in accordance with the provisions of article 4bis of the Athens Convention relating to the Carriage

of Passengers and their Luggage by Sea, 1974, as amended by the Protocol of [Year] to Amend the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974

Name of Ship

Distinctive

number or letters

IMO Ship

Identification Number

Port of

Registry

Name and full address of the principal

place of business of the carrier who actually performs the carriage.

This is to certify that there is in force in respect of the above-named ship a policy of insurance or other financial security satisfying the requirements of article 4bis of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974, as amended by the Protocol of [Year] to Amend the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974. 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 4bis, paragraph 3:

LEG/CONF.13/3 ANNEX Page 2


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. If desired, the designation of the State may include a reference to the competent public

authority of the country where the Certificate is issued. 2. If the total amount of security has been furnished by more than one source, the amount of

each of them should be indicated. 3. If security is furnished in several forms, these should be enumerated. 4. The entry "Duration of Security" must stipulate the date on which such security takes effect. 5. The entry "Address" of the insurer(s) and/or guarantor(s) must indicate the principal place of

business of the insurer(s) and/or guarantor(s). If appropriate, the place of business where the insurance or other security is established shall be indicated.

__________






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LEG/CONF.13/4 5 June 2002 Original: ENGLISH

CONSIDERATION OF A DRAFT PROTOCOL OF 2002 TO AMEND THE ATHENS CONVENTION RELATING TO THE CARRIAGE OF PASSENGERS AND THEIR

LUGGAGE BY SEA, 1974

Definition of �defect in the ship�

Note by the Secretariat

SUMMARY

Executive summary:

This document contains alternative proposals made by the Secretariat regarding the definition of �defect in the ship� (article 4 of the Protocol, to be incorporated as article 3.5(c) of the Convention)

Action to be taken:

Paragraph 4

Related documents:

LEG 83/14, paragraph 28, LEG/CONF.13/3

1 At its eighty-third session the Legal Committee of the Organization agreed that the definition of defect of ship contained in article 4 of the draft protocol (to be incorporated in the Convention as article 3.5(c)) required further work in order to ensure a clear distinction between the �hotel type� and the �navigational� elements of the ship. The Committee noted that the definition might also need some expansion to include items such as sprinklers and anti-fire equipment. 2 In response to these observations, the Legal Office, in consultation with the Maritime Safety Division of the Organization suggest that, rather than mentioning a non-exhaustive list of items, a general definition could be used, as follows:

��Defect in the ship� means any malfunction, failure or inadequacy of the ship�s structure, machinery, electrical installations, arrangements, equipment and fittings and services when used in the normal operation of a ship which has been designed, constructed and certificated in accordance with the applicable international conventions.�

or ��Defect in the ship� means any failure, malfunction or inadequacy of the ship�s structure, machinery, equipment, fittings and services.�

LEG/CONF.13/4 - 2 - 3 If the Conference were unable to accept any of the general definitions contained in paragraph 2, the following alternative could also be considered:

��Defect in the ship� means any malfunction or failure of the ship�s structure, machinery, electrical installations, equipment and fittings when used:

.1 for embarkation, disembarkation and evacuation of passengers; and

.2 in the normal operation of the ship, including, but not limited to, propulsion, steering, safety of navigation, mooring, anchoring, leaving a berth or anchorage, fire protection, flooding control, stability and the operation and deployment of life-saving appliances and arrangements.�

Action requested of the Conference 4 The Conference is invited to consider the alternative definitions of �defect in the ship� contained in this document and to comment and decide, as appropriate.

________


http://www.imodocs.imo.org/log_page.html?lang=en...cation=%2FENGLISH-pdf%2FCONF%2FLEG%2F13%2F16.pdf [03.02.2003 06:38:34]




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LEG/CONF.13/16 23 September 2002 Original: ENGLISH



Submitted by the United States

SUMMARY

Executive summary:

This document indicates the view of the United States regarding documents LEG/CONF.13/4 and LEG/CONF.13/9

Action to be taken:

Paragraph 4

Related documents:

LEG/CONF.13/4; LEG/CONF.13/9; LEG 83/4/8 and LEG 83/4/9

Introduction 1 The United States has reviewed session documents LEG/CONF.13/4 (Definition of �defect in the ship�, submitted by the IMO Secretariat), and LEG/CONF.13/9 (Wilful misconduct, submitted by Australia and Norway). Defect in the ship 2 Document LEG/CONF.13/4 proposes three different variations of the definition of �defect in the ship�. The United States recalls its prior submission, contained in document LEG 83/4/8, paragraphs 4 through 7 (for ease of reference attached at annex 1), which explains the importance of a definition that ensures a clear distinction between �hotel type� and the �navigational� elements of a ship. Upon careful consideration of the alternatives contained in document LEG/CONF.13/4, the United States has concluded that the definition proposed in document LEG 83/WP.2 (currently inserted in LEG/CONF.13/3, Art. 4, paragraph (c)) better reflects the intention of the Legal Committee in making clear such a distinction and is sufficient as drafted. Wilful misconduct 3 Document LEG/CONF.13/9 proposes to remove the insurer�s wilful misconduct defence from the compulsory insurance provision. The United States notes that paragraphs 49-53 of the report of the eighty-third session of the Legal Committee, contained on page 11 of document

LEG/CONF.13/16 - 2 -


LEG 84/14, reflected the healthy, informed discussion as to the reasons for removing or retaining the wilful misconduct defence, as well as the Committee�s decision to retain the wilful misconduct defence. The United States believes that the wilful misconduct defence should be retained for the reasons set out in its prior submission, contained in document LEG 83/4/9, paragraphs 7 through 19 (for ease of reference attached at annex 2). Action requested of the Conference 4 The Conference is invited to take note of this document, as well as the documents referenced (LEG 83/4/8 and document LEG 83/4/9 (annexes 1 and 2 respectively)), when considering the issues.

***

I:\LEG\83\4-8.doc For reasons of economy, this document is printed in a limited number. Delegates are kindly asked to bring their copies to meetings and not to request additional copies.


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LEGAL COMMITTEE 83rd session Agenda item 4(a)

LEG 83/4/8

11 September 2001 Original: ENGLISH

PROVISION OF FINANCIAL SECURITY

Liability of the carrier and time-bar for actions


SUMMARY

Executive summary:

This document presents suggested modifications to the Liability of the Carrier and Time-bar for Actions provisions in the prospective Protocol to the Athens Convention.

Action to be taken:

The Committee is requested to consider the text proposed in Paragraphs 8, 12 and 16.

Related documents:

LEG 83/4/2, LEG 83/4/3, LEG 83/4/9 (Compulsory Insurance)

Introduction 1 The United States applauds and appreciates the work of Norway in writing, rewriting and explaining the text of the draft protocol to the Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea, 1974 (draft Athens protocol) as the Legal Committee continues its deliberations on this important issue of passenger protection. The United States recognizes that the draft Athens protocol under discussion, LEG 83/4/3, is the result of the hard work and ability of all interested States to listen, understand and compromise. It is in that spirit that we offer this and one other submission document to the eighty-third session of the Legal Committee. Additionally, the United States notes the resolve of the Legal Committee, as indicated in document LEG 82/12, paragraph 62, to ensure that the draft protocol is ready for consideration by a Diplomatic Conference in the 2002-2003 biennium, and will make every effort to ensure that this goal is realized. 2 The United States has actively studied the draft Athens protocol and solicited comments from potentially interested United States sectors. Utilizing a transparent process in formulating equitable positions on the draft Athens protocol, the United States has taken into account a broad range of interests including those of the passengers, the carriers and the insurers. After analysing these interests with great care, the United States has developed positions that increase substantially passenger protection while promoting fairness to the carriers and insurers who have a history of safe operation in the United States. The overriding goal of the United States. in the development of its positions is to promote a draft Athens protocol that increases passenger protection, and that has a reasonable possibility of ratification in the United States, as well as entry into force in the near future.

HBELL

ANNEX 1

LEG 83/4/8 - 2 -

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Liability of the Carrier: “Two-tier” liability scheme 3 The United States generally supports the innovative two-tier liability scheme and its application found in Article 3, of the Consolidated Text of the Athens Convention and prospective Protocol (Consolidated Text), document LEG 83/4/2. This two-tier liability scheme is based on the Montreal Convention for the Unification of Certain Rules for International Carriage by Air, 1999 (Montreal Convention) but with appropriate adjustments to account for the differences in the modes of travel. Nonetheless, the United States proposes the following amendments in the hopes that the changes will encourage more State Parties to ratify the draft Athens protocol. Liability of the Carrier: Shipping Incident, Definition of “Defect in the ship” 4 In recognition of the differences between the air and sea context, article 3 of the consolidated text, document LEG 83/4/2, indicates when the two-tier liability scheme applies. Specifically, article 3, paragraph 1 introduces a new term, “shipping incident,” and establishes that a loss caused by a “shipping incident” triggers a defined two-tier liability scheme. Article 3, paragraph 2 establishes that a loss not caused by a “shipping incident” does not trigger a two-tier liability scheme. 5 Article 3, paragraph 5 (a), of the consolidated text, defines the new term, “shipping incident.” It is the understanding of the United States that the rationale for the definition of “shipping incident” is to distinguish between those occasions/events that are outside the control of the passenger and are related to a ship’s movement through the water and those occasions/events that are not. The definition includes the incidents of a shipwreck, collision, or stranding of the ship as well as explosion or fire in the ship, which are events outside the control of the passenger and are related to a ship’s movement through the water. 6 The definition of “shipping incident,” in article 3, paragraph 5 (a), however, also includes the phrase, “defect in the ship.” There currently is no definition for “defect in the ship” despite the potential that the term could be interpreted to include defects unrelated to the ship’s movement through the water. Without a definition that relates such a “defect in the ship” to a ship’s movement through the water, there is a substantial risk that State Parties will create different interpretations of what the phrase “defect in the ship” means. This in turn would result in State Parties applying the term “shipping incident” differently, leading away from international uniformity of what events comprise a “shipping incident” and its relation to a ship’s movement through the water. The lack of a definition of “defect in the ship” enables State Parties to create their own broad interpretations and consequently to blur the line between a non-shipping incident and a “shipping incident.” Since the term “shipping incident” is a pivotal term in determining when the two-tier liability scheme is triggered, the ambiguity in the phrase “defect in the ship,” which creates the potential for inconsistent application of the phrase, and consequently, of the concept of a “shipping incident” will undermine the goal of international uniformity of triggering the two-tier liability scheme. 7 To ensure that “shipping incidents” are clearly defined to include only those incidents related to a ship’s movement through the water, “defect in the ship” should be defined as those defects having to do with navigation, the safe movement of the ship through the water, and the safe egress of passengers from the ship in an emergency.

- 3 - LEG 83/4/8

I:\LEG\83\4-8.doc

8 Accordingly, the United States recommends an addition of a new paragraph 5(c) to article 3 of the consolidated text which defines “defect in the ship.” The United States. proposes the following definition of “defect in the ship” based on the above and the International Convention for the Safety of Life at Sea, 1974, Chapter II-1, Regulation 3, paragraph 5, “Normal operational and habitable condition:”

“Defect in the ship” means any malfunction or failure in equipment, hull, structure, machinery or systems used for propulsion, steering, safe navigation, mooring, anchoring, leaving a berth or anchorage, flooding safety, stability, means of passenger escape, and the operation of emergency boat winches.”

Liability of the Carrier: Burden of Proof for Non-Shipping Incidents 9 Article 3, paragraph 2, of the consolidated text, document LEG 83/4/2, addresses the burden of proof for non-shipping incidents. The majority position set forth in the proposed article provides that in such cases the carrier shall be subject to a reverse burden of proof; that is, the carrier will be liable unless the carrier can prove that the incident which caused the loss occurred without its fault or neglect. 10 Non-shipping incidents are those unrelated to a ship’s movement through the water. A prime example is cruise ships, for which non-shipping incidents relate to the tourist aspect of cruises, i.e. the use by passengers of the “hotel” rooms, stairways, lifts, swimming pools, dining facilities, dancing floors and a host of other sport, leisure and entertainment facilities. This environment involves a large measure of self-responsibility and self-decision making by the passengers. In addition, the standard of care required does not require specialized technical knowledge; rather, such incidents often involve factors that a passenger can readily discern. 11 These non-shipping incidents should be handled on the basis of straight liability for fault, i.e. with the burden of proof on the claimant, rather than on the basis of a reversed burden of proof. Maintaining a straight duty of care in such instances will encourage responsible conduct on the part of both passenger and carrier. Further, many passenger accidents at sea are not witnessed. To reverse the burden of proof in such case would place the vessel owner in the untenable and unfair position of disproving an accident about which it has no knowledge. 12 Accordingly, the United States. submits that the text found in footnote 1 of article 3, paragraph 2, of the consolidated text, and which is substantially the same as the present Convention, be adopted. Time-bar for actions 13 Article 9 of the proposed draft Athens protocol (document LEG 83/4/3) would amend article 16, paragraph 3, of the 1974 Athens Convention which gives courts with jurisdiction of cases under the Athens Convention the power to suspend the two-year limitation provided by the Athens Convention. Under the current Athens Convention such courts have the power to suspend and interrupt the limitation period for no more than three years after the passenger’s disembarkation or when the disembarkation should have taken place, whichever is later. The proposed amendment in the draft Athens protocol would allow courts to suspend or interrupt the limitation period up to a period of three years from the date when the claimant knew or ought reasonably to have known of the injury, but no later than a period of ten years from the date of the passenger’s disembarkation or when the disembarkation should have taken place, whichever is later. Not only does this amendment sharply contrast with the 1974 Athens Convention, it also sharply contrasts with the Montreal Convention’s two-year limit for bringing an action (Article 35, Montreal Convention).

LEG 83/4/8 - 4 -

I:\LEG\83\4-8.doc

14 The reason for a time-bar for actions is to provide notice to a defendant of a claim within a reasonable time frame such that the defendant can investigate the allegations and mount a defense. Permitting a court to extend or interrupt the limitation period until three years after a claimant knew or should have known of his injury, with a ten-year overall limitation, is neither reasonable nor fair. The types of claims covered by the Athens Convention are not hidden claims. These are claims based on events which passengers knew existed at the time they occurred. While in some instances the extent of damage suffered may not be readily determined, the fact of the basis for a claim is known. Carriers and their insurers need to know within a reasonable time frame what their exposures are to damages arising from claims. This is particularly important in the maritime industry where seafarers are transient, thus, witnesses pertinent to an accident may be much harder to locate after such a passage of time compared to land-based accidents. 15 The draft Athens protocol introduces the concept of strict liability and expands the application of the reverse burden of proof, both of which shift the risk to the carrier. Adding to these changes by extending the time-bar for action multiplies the burden of these shifts in risk on the carrier. This exponential increase in burden appears unjustified. 16 In the balance between protecting the passenger and providing the carrier and its insurer with certainty, the ability to gather evidence, and the ability to defend against an action, it would be inequitable and contrary to the concept of uniformity within international law to authorize suits against a carrier or its insurer after three years. The current time-bar provisions of the Athens Convention have not been shown to be unfair or unreasonable. Accordingly, the United States submits that article 9 of the draft Athens protocol be deleted, and that there be no change to article 16 of the current Athens Convention.

***

I:\LEG\83\4-9.DOC



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LEGAL COMMITTEE 83rd session Agenda item 4(a)

LEG 83/4/9

6 September 2001 Original: ENGLISH

PROVISION OF FINANCIAL SECURITY

Compulsory Insurance


SUMMARY Executive summary:

This document presents suggested modifications to the Compulsory Insurance provisions, found in article 4bis of the prospective protocol to the Athens Convention.

Action to be taken:

The Legal Committee is requested to consider the text proposed in paragraphs 4, 5 and 10

Related documents:

LEG 83/4/2, LEG 83/4/3, LEG 83/4/8 (Liability of Carrier and Time-bar)

Compulsory Insurance: Direct Action 1 Article 4bis, paragraph 10, of the consolidated text of the Athens Convention and prospective protocol (consolidated text), document LEG 83/4/2, provides passenger claimants the ability to pursue a direct action against the insurer or other person providing financial security. The United States observes that direct action provisions are becoming more and more commonplace. For example, such provisions can be found in all of the pollution liability and compensation conventions completed under Legal Committee leadership. The United States notes, however, that under these conventions, the insurer is subject to suit in primarily only one jurisdiction - the State in whose territorial sea the spill occurred. The direct action provisions in the draft protocol to the Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea, 1974 (draft Athens protocol) broaden the use of direct action. First, the draft Athens protocol will contain the first application of such provisions in an IMO convention unrelated to pollution. Second, in the event of an incident causing numerous passenger injuries, the guarantor will be subject to suit in many jurisdictions. 2 The United States generally supports the direct action provision. However, noting concern raised both domestically and internationally, the United States has re-evaluated the purpose for direct action in an effort to weigh the burdens with the benefits. It is the understanding of the United States that the provisions for direct action are necessary to combat two potential problems:

HBELL

ANNEX 2

LEG 83/4/9 - 2 -

I:\LEG\83\4-9.DOC

(a) a passenger claimant is unable to locate the carrier to obtain redress; and (b) a passenger claimant is unable to recover damages from a judgement because the

carrier is insolvent. 3 In reviewing the concept, the United States notes several drawbacks to a broad application of a direct action provision:

(a) a broad direct action provision blurs the well established distinction between indemnity and liability insurance;

(b) the insurer may be subject to suit as a tort feasor not as an insurer; and

(c) direct action, in effect, abolishes the defenses or contractual rights as between the

insured and the insurer.

4 The United States proposes that a more limited right of direct action would both address the need to protect passenger claimants from insolvent or missing carriers while limiting the impact of the drawbacks of direct action. Specifically, the United States proposes amending article 4bis, paragraph 10, of the consolidated text, so that it indicates that a direct action claim may be brought against the insurer in only two circumstances:

(a) when the passenger claimant has obtained a judgment against the carrier and/or performing carrier that cannot be executed in whole or in part because of insolvency or an insolvency proceeding in which the carrier and/or the performing-carrier is involved; and

(b) when the passenger claimant, after a diligent search, is unable to locate for suit

any carrier and/or performing carrier who actually performed the whole or part of the carriage.

For these two circumstances, the failure to fulfill an indemnity clause would not absolve the insurer under the policy. 5 To minimize the necessity of a passenger claimant having to file a direct action lawsuit against the insurer of an insolvent carrier against which the claimant has obtained a judgment, the United States proposes adding a paragraph to article 4bis which indicates the insurer is responsible for paying any unsatisfied final judgment amount to the passenger claimant. Specifically, the United States proposes the following language:

“The insolvency or bankruptcy of the carrier or performing carrier shall not constitute a defense to the insurer or other person providing financial security for claims filed pursuant to this Convention against such carrier for the death of or personal injury to a passenger. In the event of insolvency or bankruptcy of the carrier who actually performs the whole or a part of the carriage, the insurer or other person providing financial security agrees to pay any unsatisfied final judgments obtained on such claims.”

- 3 - LEG 83/4/9

I:\LEG\83\4-9.DOC

6 The modifications of the draft Athens protocol found in paragraphs 4 and 5 of this document, together with the broad jurisdictional provisions of the draft Athens Protocol and the compulsory insurance provision would ensure prompt payment of all claims without a disruption of the contractual relationship between insurer and insured. These modifications may preclude the increase of insurance premiums (and passenger tickets) and may give an independent incentive for the insurers to ensure the financial responsibility of carriers and performing carriers. Compulsory Insurance: Willful Misconduct Defense 7 Article 4bis, paragraph 10, of the consolidated text, document LEG 83/4/2, offers two completely opposite options for the willful misconduct defense in a direct action. Option A precludes an insurer from raising the willful misconduct of the insured as a defense while Option B allows the insurer to raise the willful misconduct of the insured as a defense. Both options preclude the insurer from raising any other defenses it might have been entitled to invoke in proceedings between insurer and insured. 8 In Norway’s submission of the draft Athens protocol, document LEG 83/4/3, it is noted in paragraph 14 that, “under the CLC, and virtually all other maritime law conventions on compulsory insurance, the insurer can put up the defence of wilful misconduct of the insured.” 9 As noted above, the draft Athens protocol contains the first application of direct action provisions in an IMO convention unrelated to pollution. In addition, if the passenger claimant pursues a direct action against the insurer, the insurer is exposed to more jurisdictions compared to other conventions permitting direct action, and precludes the insurer from raising any other defenses it might have been entitled to invoke in proceedings between insurer and insured. All these provisions create a significant increase in protection on the passenger claimant’s behalf. The purpose of the Athens protocol, in the view of the United States, is to provide adequate passenger protection, but, in a manner that takes into account others interests. The purpose of the Athens protocol is not to shift all risk to the insurer. 10 For the above stated reasons, the United States recommends that article 4bis, paragraph 10, Option B be followed.

________






IMO

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LEG/CONF.13/5 28 June 2002 Original: ENGLISH

CONSIDERATION OF A DRAFT PROTOCOL OF 2002 TO AMEND THE ATHENS CONVENTION RELATING TO THE CARRIAGE OF

PASSENGERS AND THEIR LUGGAGE BY SEA, 1974

Consolidated text of the Athens Convention and prospective protocol

Submitted by Norway

The annex to this document contains a consolidation of the substantive provisions of the Athens Convention Relating to the Carriage of Passengers and Their Luggage by Sea, 1974, and the basic text (LEG/CONF.13/3).

***

LEG/CONF.13/5


ANNEX

ATHENS CONVENTION RELATING TO THE CARRIAGE OF

PASSENGERS AND THEIR LUGGAGE BY SEA, 1974 AS AMENDED BY THE PROTOCOL OF 2002

DRAFT CONSOLIDATION OF SUBSTANTIVE PROVISIONS

ARTICLE 1

Definitions In this Convention the following expressions have the meaning hereby assigned to them: 1

(a) "carrier" means a person by or on behalf of whom a contract of carriage has been concluded, whether the carriage is actually performed by that person or by a performing carrier;


charterer or operator of a ship, who actually performs the whole or a part of the carriage;


performing carrier, or, in so far as the carrier actually performs the carriage, the carrier;

2 "contract of carriage" means a contract made by or on behalf of a carrier for the carriage

by sea of a passenger or of a passenger and his luggage, as the case may be; 3 "ship" means only a seagoing vessel, excluding an air-cushion vehicle; 4 "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;

5 "luggage" means any article or vehicle carried by the carrier under a contract of carriage, excluding:

(a) articles and vehicles carried under a charter party, bill of lading or other contract

primarily concerned with the carriage of goods, and

(b) live animals;



6 "cabin luggage" means luggage which the passenger has in his cabin or is otherwise in his possession, custody or control. Except for the application of paragraph 8 of this Article and Article 8, cabin luggage includes luggage which the passenger has in or on his vehicle;

7 "loss of or damage to luggage" includes pecuniary loss resulting from the luggage not

having been re-delivered to the passenger within a reasonable time after the arrival of the ship on which the luggage has been or should have been carried, but does not include delays resulting from labour disputes;

8 "carriage" covers the following periods:

(a) with regard to the passenger and his cabin luggage, the period during which the passenger and/or his cabin luggage are on board the ship or in the course of embarkation or disembarkation, and the period during which the passenger and his cabin luggage are transported by water from land to the ship or vice-versa, if the cost of such transport is included in the fare or if the vessel used for this purpose of auxiliary transport has been put at the disposal of the passenger by the carrier. However, with regard to the passenger, carriage does not include the period during which he is in a marine terminal or station or on a quay or in or on any other port installation;

(b) with regard to cabin luggage, also the period during which the passenger is in a marine terminal or station or on a quay or in or on any other port installation if that luggage has been taken over by the carrier or his servant or agent and has not been re-delivered to the passenger;

(c) with regard to other luggage which is not cabin luggage, the period from the time of its taking 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;

9 "international carriage" means any carriage in which, according to the contract of carriage, the place of departure and the place of destination are situated in two different States, or in a single State if, according to the contract of carriage or the scheduled itinerary, there is an intermediate port of call in another State;

10 �Organization� means the International Maritime Organization. 11 "Secretary-General" means the Secretary-General of the Organization.

ARTICLE 2

Application 1 This Convention shall apply to any international carriage if:

(a) the ship is flying the flag of or is registered in a State Party to this Convention, or (b) the contract of carriage has been made in a State Party to this Convention, or

LEG/CONF.13/5 ANNEX

Page 3


(c) the place of departure or destination, according to the contract of carriage, is in a State Party to this Convention.

2 Notwithstanding paragraph 1 of this Article, this Convention shall not apply when the carriage is subject, under any other international convention concerning the carriage of passengers or luggage by another mode of transport, to a civil liability regime under the provisions of such convention, in so far as those provisions have mandatory application to carriage by sea.

ARTICLE 3

Liability of the carrier 1 For the loss suffered as a result of the death of or personal injury to a passenger caused by

a shipping incident, the carrier shall be liable to the extent that such loss in respect of that passenger on a distinct occasion does not exceed [�] units of account, unless the carrier proves that the incident:


phenomenon of an exceptional, inevitable and irresistible character; or (b) was wholly caused by an act or omission done with the intent to cause the

incident by a third party. If and to the extent that the loss exceeds the above limit, the carrier shall be further liable unless the carrier proves that the incident which caused the loss occurred without the fault or neglect of the carrier.


caused by a shipping incident, the carrier shall be liable if the incident which caused the loss was due to the fault or neglect of the carrier. The burden of proving fault or neglect shall lie with the claimant.





5 For the purposes of this article:

(a) "shipping incident" means shipwreck, collision or stranding of the ship, explosion or fire in the ship, or defect in the ship;

(b) �fault or neglect of the carrier� includes the fault or neglect of his or her servants,

acting within the scope of their employment;



(c) �defect in the ship� means any malfunction or failure in any part of the ship or its equipment when used for passenger escape, embarkation and disembarkation, or used for propulsion, steering, safe navigation, mooring, anchoring, leaving a berth or anchorage, flooding safety, stability, and the operation of emergency boat winches; and

(d) �loss� shall not include punitive or exemplary damages.

6 The liability of the carrier under this article only includes loss arising from incidents that occurred in the course of the carriage. The burden of proving that the incident which caused the loss occurred in the course of the carriage, and the extent of the loss, shall lie with the claimant.

7 Nothing in this Convention shall prejudice any existing right of recourse of the carrier

against any third party, or the defence of contributory negligence under article 6 of this Convention. Nothing in this article shall prejudice any right of limitation under articles 7 or 8 of this Convention.

8 Presumptions of fault or neglect of a party or the allocation of the burden of proof to a

party shall not prevent evidence in favour of that party from being considered.

ARTICLE 4

Performing carrier 1 If the performance of the carriage or part thereof has been entrusted to a performing

carrier, the carrier shall nevertheless remain liable for the entire carriage according to the provisions of this Convention. In addition, the performing carrier shall be subject and entitled to the provisions of this Convention for the part of the carriage performed by him.

2 The carrier shall, in relation to the carriage performed by the performing carrier, be liable

for the acts and omissions of the performing carrier and of his servants and agents acting within the scope of their employment.

3 Any special agreement under which the carrier assumes obligations not imposed by this

Convention or any waiver of rights conferred by this Convention shall affect the performing carrier only if agreed by him expressly and in writing.

4 Where and to the extent that both the carrier and the performing carrier are liable, their

liability shall be joint and several. 5 Nothing in this Article shall prejudice any right of recourse as between the carrier and the

performing carrier.

LEG/CONF.13/5 ANNEX

Page 5


ARTICLE 4bis


1 When passengers are carried on board a ship registered in a State Party that is licensed to carry more than twelve passengers, and this Convention applies, any carrier who actually performs the whole or a part of the carriage shall maintain insurance or other financial security, such as the guarantee of a bank or similar financial institution, to cover his or her liability under this Convention in respect of the death of and personal injury to passengers. The limit of the compulsory insurance or other financial security shall not be less than [�] units of account per capita on each distinct occasion.


whole or a part of the carriage; (c) IMO ship identification number; (d) type and duration of security; (e) name and principal place of business of insurer or other person giving security

and, where appropriate, place of business where the insurance or security is established; and


validity of the insurance or other security.

3 (a) A State Party may authorize either an institution or an organisation recognised by it to issue the certificate referred to in paragraph 2. Such institution or organization shall inform that State of the issue of each certificate. In all cases, the State Party shall fully guarantee the completeness and accuracy of the certificate so issued, and shall undertake to ensure the necessary arrangements to satisfy this obligation.



(ii) the withdrawal of such authority; and



(iii) the date from which such authority or withdrawal of such authority takes effect.

An authority delegated shall not take effect prior to three months from the date

from which notification to that effect was given to the Secretary-General. (c) The institution or organization authorized to issue certificates in accordance with

this paragraph shall, as a minimum, be authorized to withdraw these certificates if the conditions under which they have been issued are not maintained. In all cases the institution or organization shall report such withdrawal to the State on whose behalf the certificate was issued.




6 An insurance or other financial security shall not satisfy the requirements of this article if

it can cease, for reasons other than the expiry of the period of validity of the insurance or security specified in the certificate under paragraph 2, before three months have elapsed from the date on which notice of its termination is given to the authorities referred to in paragraph 5, unless the certificate has been surrendered to these authorities or a new certificate has been issued within the said period. The foregoing provisions shall similarly apply to any modification which results in the insurance or security no longer satisfying the requirements of this article.

7 The State of the ship's registry shall, subject to the provisions of this article, determine the conditions of issue and validity of the certificate.

8 Nothing in this Convention shall be construed as preventing a State Party from relying on

information obtained from other States or the Organization or other international organizations relating to the financial standing of providers of insurance or financial security for the purposes of this Convention. In such cases, the State Party relying on such information is not relieved of its responsibility as a State issuing the certificate required by paragraph 2.



10 Any claim for compensation covered by insurance or other financial security pursuant to

this article may be brought directly against the insurer or other person providing financial security. In such case, the amount set out in paragraph 1 applies as the limit of liability of

LEG/CONF.13/5 ANNEX

Page 7


the insurer or other person providing financial security, even if the carrier or the performing carrier is not entitled to limitation of liability. The defendant may further invoke the defences (other than the bankruptcy or winding up) which the carrier referred to in paragraph 1 would have been entitled to invoke in accordance with this Convention. Furthermore, the defendant may invoke the defence that the damage resulted from the wilful misconduct of the assured, but the defendant shall not invoke any other defence which the defendant might have been entitled to invoke in proceedings brought by the assured against the defendant. The defendant shall in any event have the right to require the carrier and the performing carrier to be joined in the proceedings.


12 A State Party shall not permit a ship under its flag to which this article applies to operate

at any time unless a certificate has been issued under paragraphs 2 or 15. 13 Subject to the provisions of this article, each State Party shall ensure, under its national

law, that insurance or other security, to the extent specified in paragraph 1, is in force in respect of any ship that is licensed to carry more than twelve passengers, wherever registered, entering or leaving a port in its territory in so far as this Convention applies.


Secretary-General that, for the purposes of paragraph 13, ships are not required to carry on board or to produce the certificate required by paragraph 2 when entering or leaving ports in its territory, provided that the State Party which issues the certificate required by paragraph 2 has notified the Secretary-General that it maintains records in an electronic format, accessible to all States Parties, attesting the existence of the certificate and enabling States Parties to discharge their obligations under paragraph 13.


State Party, the provisions of this article relating thereto shall not be applicable to such ship, but the ship shall carry a certificate issued by the appropriate authorities of the State of the ship's registry, stating that the ship is owned by that State and that the liability is covered within the amount prescribed in accordance with paragraph 1. Such a certificate shall follow as closely as possible the model prescribed by paragraph 2.

ARTICLE 5

Valuables The carrier shall not be liable for the loss of or damage to monies, negotiable securities, gold, silverware, jewellery, ornaments, works of art, or other valuables, except where such valuables have been deposited with the carrier for the agreed purpose of safe-keeping in which case the carrier shall be liable up to the limit provided for in paragraph 3 of Article 8 unless a higher limit is agreed upon in accordance with paragraph 1 of Article 10.



ARTICLE 6

Contributory fault If the carrier proves that the death of or personal injury to a passenger or the loss of or damage to his luggage was caused or contributed to by the fault or neglect of the passenger, the court seized of the case may exonerate the carrier wholly or partly from his liability in accordance with the provisions of the law of that court.

ARTICLE 7

Limit of liability for death and personal injury

1 The liability of the carrier for the death of or personal injury to a passenger under article 3

shall in no case exceed [�] units of account per capita on each distinct occasion. Where, in accordance with the law of the court seized of the case, damages are awarded in the form of periodical income payments, the equivalent capital value of those payments shall not exceed the said limit.

2 A State Party may regulate by specific provisions of national law the limit of liability prescribed in paragraph 1, provided that the national limit of liability, if any, is not lower than that prescribed in paragraph 1. A State Party, which makes use of the option provided for in this paragraph, shall inform the Secretary-General of the limit of liability adopted or of the fact that there is none.

ARTICLE 8

Limit of liability for loss of or damage to luggage and vehicles 1 The liability of the carrier for the loss of or damage to cabin luggage shall in no case

exceed [�] units of account per passenger, per carriage. 2 The liability of the carrier for the loss of or damage to vehicles including all luggage

carried in or on the vehicle shall in no case exceed [�] units of account per vehicle, per carriage.

3 The liability of the carrier for the loss of or damage to luggage other than that mentioned in paragraphs 1 and 2 shall in no case exceed [�] units of account per passenger, per carriage.


a deductible not exceeding [�] units of account in the case of damage to a vehicle and not exceeding [�] units of account per passenger in the case of loss of or damage to other luggage, such sum to be deducted from the loss or damage.

LEG/CONF.13/5 ANNEX

Page 9


ARTICLE 9

Unit of Account and conversion 1 The Unit of Account mentioned in this Convention is the Special Drawing Right as

defined by the International Monetary Fund. The amounts mentioned in article 3, paragraph 1, article 4bis, paragraph 1, article 7, paragraph l, and article 8 shall be converted into the national currency of the State of the court seized of the case on the basis of the value of that currency by reference to the Special Drawing Right on the date of the judgment or the date agreed upon by the parties. The value of the national currency, in terms of the Special Drawing Right, of a State Party which is a member of the International Monetary Fund, shall be calculated in accordance with the method of valuation applied by the International Monetary Fund in effect on the date in question for its operations and transactions. The value of the national currency, in terms of the Special Drawing Right, of a State Party which is not a member of the International Monetary Fund, shall be calculated in a manner determined by that State Party.


whose law does not permit the application of the provisions of paragraph 1 may, at the time of ratification, acceptance, approval of or accession to this Convention or at any time thereafter, declare that the unit of account referred to in paragraph 1 shall be equal to 15 gold francs. The gold franc referred to in this paragraph corresponds to sixty-five and a half milligrams of gold of millesimal fineness nine hundred. The conversion of the gold franc into the national currency shall be made according to the law of the State concerned.

3 The calculation mentioned in the last sentence of paragraph 1, and the conversion mentioned in paragraph 2 shall be made in such a manner as to express in the national currency of the States Parties, as far as possible, the same real value for the amounts in article 3, paragraph 1, article 4bis, paragraph 1, article 7, paragraph 1, and article 8 as would result from the application of the first three sentences of paragraph 1. States shall communicate to the Secretary-General the manner of calculation pursuant to paragraph 1, or the result of the conversion in paragraph 2, as the case may be, when depositing an instrument of ratification, acceptance, approval of or accession to this Convention and whenever there is a change in either.

ARTICLE 10

Supplementary provisions on limits of liability 1 The carrier and the passenger may agree, expressly and in writing, to higher limits of

liability than those prescribed in Articles 7 and 8. 2 Interest on damages and legal costs shall not be included in the limits of liability

prescribed in Articles 7 and 8.



ARTICLE 11

Defences and limits for carriers' servants If an action is brought against a servant or agent of the carrier or of the performing carrier arising out of damage covered by this Convention, such servant or agent, if he proves that he acted within the scope of his employment, shall be entitled to avail himself of the defences and limits of liability which the carrier or the performing carrier is entitled to invoke under this Convention.

ARTICLE 12

Aggregation of claims 1 Where the limits of liability prescribed in Articles 7 and 8 take effect, they shall apply to

the aggregate of the amounts recoverable in all claims arising out of the death of or personal injury to any one passenger or the loss of or damage to his luggage.

2 In relation to the carriage performed by a performing carrier, the aggregate of the

amounts recoverable from the carrier and the performing carrier and from their servants and agents acting within the scope of their employment shall not exceed the highest amount which could be awarded against either the carrier or the performing carrier under this Convention, but none of the persons mentioned shall be liable for a sum in excess of the limit applicable to him.

3 In any case where a servant or agent of the carrier or of the performing carrier is entitled

under Article 11 of this Convention to avail himself of the limits of liability prescribed in Articles 7 and 8, the aggregate of the amounts recoverable from the carrier, or the performing carrier as the case may be, and from that servant or agent, shall not exceed those limits.

ARTICLE 13

Loss of right to limit liability

1 The carrier shall not be entitled to the benefit of the limits of liability prescribed in Articles 7 and 8 and paragraph 1 of Article 10, if it is proved that the damage resulted from an act or omission of the carrier done with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.

2 The servant or agent of the carrier or of the performing carrier shall not be entitled to the

benefit of those limits if it is proved that the damage resulted from an act or omission of that servant or agent done with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.



ARTICLE 14

Basis for claims No action for damages for the death of or personal injury to a passenger, or for the loss of or damage to luggage, shall be brought against a carrier or performing carrier otherwise than in accordance with this Convention.

ARTICLE 15

Notice of loss or damage to luggage

1 The passenger shall give written notice to the carrier or his agent:

(a) in the case of apparent damage to luggage:

(i) for cabin luggage, before or at the time of disembarkation of the passenger;

(ii) for all other luggage, before or at the time of its re-delivery;

(b) in the case of damage to luggage which is not apparent, or loss of luggage, within fifteen days from the date of disembarkation or redelivery or from the time when such re-delivery should have taken place.

2 If the passenger fails to comply with this Article, he shall be presumed, unless the contrary is proved, to have received the luggage undamaged.

3 The notice in writing need not be given if the condition of the luggage has at the time of

its receipt been the subject of joint survey or inspection.

ARTICLE 16

Time-bar for actions 1 Any action for damages arising out of the death of or personal injury to a passenger or for

the loss of or damage to luggage shall be time-barred after a period of two years. 2 The limitation period shall be calculated as follows:

(a) in the case of personal injury, from the date of disembarkation of the passenger;

(b) in the case of death occurring during carriage, from the date when the passenger should have disembarked, and in the case of personal injury occurring during carriage and resulting in the death of the passenger after disembarkation, from the date of death, provided that this period shall not exceed three years from the date of disembarkation;

(c) in the case of loss of or damage to luggage, from the date of disembarkation or from the date when disembarkation should have taken place, whichever is later.



3 The law of the Court seized of the case shall govern the grounds for suspension and

interruption of limitation periods, but in no case shall an action under this Convention be brought after the expiration of any one of the following periods of time: (a) A period of five years from the date of disembarkation of the passenger or from

the date when disembarkation should have taken place, whichever is later, or, if earlier

(b) a period of three years from the date when the claimant knew or ought reasonably

to have known of the injury, loss or damage caused by the incident. 4 Notwithstanding paragraphs 1, 2 and 3 of this Article, the period of limitation may be

extended by a declaration of the carrier or by agreement of the parties after the cause of action has arisen. The declaration or agreement shall be in writing.

ARTICLE 17

Competent jurisdiction 1 An action arising under articles 3 and 4 of this Convention shall, at the option of the

claimant, be brought before one of the courts listed below, provided that the court is located in a State Party to this Convention, and subject to the domestic law of each State Party governing proper venue within those States with multiple possible forums:

(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) a 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) a 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.

2 Actions under article 4bis of this Convention shall, at the option of the claimant, be brought before one of the courts where action could be brought against the carrier or performing carrier according to paragraph 1.

3 After the occurrence of the incident which has caused the damage, the parties may agree

that the claim for damages shall be submitted to any jurisdiction or to arbitration.



ARTICLE 17bis

Recognition and enforcement 1 Any judgment given by a court with jurisdiction in accordance with article 17 which is

enforceable in the State of origin where it is no longer subject to ordinary forms of review, shall be recognised in any State Party, except


present his or her case.


ARTICLE 18

Invalidity of contractual provisions Any contractual provision concluded before the occurrence of the incident which has caused the death of or personal injury to a passenger or the loss of or damage to his or her luggage, purporting to relieve any person liable under this Convention of liability towards the passenger or to prescribe a lower limit of liability than that fixed in this Convention except as provided in article 8, paragraph 4, and any such provision purporting to shift the burden of proof which rests on the carrier or performing carrier, or having the effect of restricting the options specified in article 17, paragraphs 1 or 2, shall be null and void, but the nullity of that provision shall not render void the contract of carriage which shall remain subject to the provisions of this Convention.

ARTICLE 19

Other conventions on limitation of liability This Convention shall not modify the rights or duties of the carrier, the performing carrier, and their servants or agents provided for in international conventions relating to the limitation of liability of owners of seagoing ships.

ARTICLE 20

Nuclear damage No liability shall arise under this Convention for damage caused by a nuclear incident: (a) if the operator of a nuclear installation is liable for such damage under either the Paris

Convention of 29 July 1960 on Third Party Liability in the Field of Nuclear Energy as amended by its Additional Protocol of 28 January 1964, or the Vienna Convention of



21 May 1963 on Civil Liability for Nuclear Damage, or any amendment or Protocol thereto which is in force; or

(b) if the operator of a nuclear installation is liable for such damage by virtue of a national

law governing the liability for such damage, provided that such law is in all respects as favourable to persons who may suffer damage as either the Paris or the Vienna Conventions or any amendment or Protocol thereto which is in force.

ARTICLE 21

Commercial carriage by public authorities This Convention shall apply to commercial carriage undertaken by States or Public Authorities under contract of carriage within the meaning of Article 1.

ARTICLE 22

Declaration of non-application 1 Any Party may at the time of signing, ratifying, accepting, approving or acceding to this

Convention, declare in writing that it will not give effect to this Convention when the passenger and the carrier are subjects or nationals of that Party.

2 Any declaration made under paragraph 1 of this Article may be withdrawn at any time by

a notification in writing to the Secretary-General of the Organization.

***

[Final clauses, etc., do not form part of this consolidation of substantive provisions.]



Appendix

CERTIFICATE OF INSURANCE OR OTHER FINANCIAL SECURITY IN RESPECT OF LIABILITY FOR THE DEATH AND PERSONAL INJURY TO PASSENGERS

Issued in accordance with the provisions of Article 4bis of the Athens Convention Relating to the Carriage of Passengers and Their Luggage by Sea, 1974, as amended by the Protocol of 2002 to Amend the Athens

Convention Relating to the Carriage of Passengers and Their Luggage by Sea, 1974

Name of Ship Distinctive Number or letters

IMO Ship Identification

Number

Port of Registry

Name and full address of the principal place of business of the carrier who actually performs the

carriage.

This is to certify that there is in force in respect of the above-named ship a policy of insurance or other financial security satisfying the requirements of Article 4bis of the Athens Convention Relating to the Carriage of Passengers and Their Luggage by Sea, 1974, as amended by the Protocol of 2002 to Amend the Athens Convention Relating to the Carriage of Passengers and Their Luggage by Sea, 1974. Type of Security................................................................................................................................. Duration of Security .......................................................................................................................... Name and address of the insurer(s) and or guarantor(s) Name .............................................................................................................................................. Address .............................................................................................................................................



..............................................................................................................................................

(Full designation of the State)

OR The following text should be used when a State Party avails itself of paragraph 3 of Article 4bis: 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. If desired, the designation of the State may include a reference to the competent public authority of

the country where the Certificate is issued. 2. If the total amount of security has been furnished by more than one source, the amount of each of

them should be indicated. 3. If security is furnished in several forms, these should be enumerated. 4. The entry "Duration of Security" must stipulate the date on which such security takes effect. 5. The entry "Address" of the insurer(s) and/or guarantor(s) must indicate the principal place of business

of the insurer(s) and/or guarantor(s). If appropriate, the place of business where the insurance or other security is established shall be indicated.

__________






IMO

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LEG/CONF.13/7 18 July 2002 Original: ENGLISH

CONSIDERATION OF A DRAFT PROTOCOL OF 2002 TO AMEND THE ATHENS

CONVENTION RELATING TO THE CARRIAGE OF PASSENGERS AND THEIR LUGGAGE BY SEA, 1974

Submitted by the European Commission on behalf of the European Commission

and its Member States

SUMMARY

Executive summary:

This document presents two proposals for amendments to the draft protocol, a new article on the possibility for Regional Economic Integration Organizations to become Parties to the Protocol and a new paragraph relating to the recognition and enforcement of judgements. In addition, the document contains information on the background for and implications of the proposed amendments.

Action to be taken:

Paragraph 16

Related documents:

LEG 83/WP.1; LEG 83/14; LEG/CONF.13/3

BACKGROUND

1 For the Member States of the EU, the Athens Protocol raises some issues which are of fundamental importance to their possibility to become Parties to the Protocol. The issues stem from the fact that Articles 10 and 11 of the draft protocol include provisions on jurisdiction and recognition and enforcement of judgments and that these matters recently have been regulated at EU-level in Regulation 44/2001.

2 Regulation 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters was adopted by the Council of the European Union on 22 December 2000 and came into force on 1 March 2002.1 The Regulation is binding upon all EU Member States, with the exception of Denmark.2 Through the adoption of this Regulation, 1 Official Journal of the European Communities, L 12, 16.1.2001, p. 1. The text of this Regulation is available on

the following websites: http://europa.eu.int/eur-lex/en/lif/reg/en_register_1920.html (available in the eleven official EU languages) or http://folk.uio.no/erikro/WWW/EU/Brussel.pdf

2 In accordance with the Protocol on the position of Denmark annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark did not take part in the adoption of Council Regulation 44/2001 and is not bound by it nor subject to its application. The 1968 Brussels Convention remains in force in the relations between Denmark and the other EU Member States.

LEG/CONF.13/7 - 2 -

I:\CONF\LEG\13\7.DOC

EU Member States have transferred the competence to assume obligations on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to the European Community as such. According to European law, where Community rules have been adopted, EU Member States cannot, outside the framework of the Community institutions, assume obligations with third countries which may affect those rules or alter their scope.

3 Following a brief discussion on the proposed amendments at the eighty-third meeting of the Legal Committee in October 2001, the European Commission and the EU Member States were asked by the Legal Committee to take measures to adequately inform delegations about this issue with a view to avoiding a lengthy discussion on these questions at the Diplomatic Conference. For this purpose, two specific information meetings on this topic have been held on 25 April 2002 and 3 July 2002. The present submission takes into account comments made at those meetings and includes an Annex which provides answers to many of the specific questions raised at the two information meetings. In addition, following requests by many IMO Member States, a second Annex providing some more detailed information on Regulation 44/2001 is attached for information purposes.

ACCESSION CLAUSE

4 A clause providing for the possibility for the Community to become a party to the Protocol is of key importance for enabling the 14 EU Member States which are bound by Regulation 44/2001 to become parties to the Athens Protocol. The principal purpose of the clause is to avoid a situation of conflict between two systems of law for EU Member States (EU law and international law). Through the ratification of the Athens Protocol by the European Community, the relevant provisions of the Athens Protocol (those for which there is Community competence) would be incorporated into the body of EU law. In this way a link between the two legal systems would be established and the legal obstacles for EU Member States to ratify the Protocol would be removed.

5 Such clauses are commonplace in international agreements regulating areas in which there is Community competence. Among agreements relating to liability for the carriage of passengers, Article 53 of the 1999 Montreal Convention for the Unification of Certain Rules for International Carriage by Air (developed under the aegis of ICAO) is a recent example (see Annex 1).

6 The ratification/accession of the EC to this Protocol does not extend the Community competence to other matters regulated therein. If the EC were to become a party to the Protocol, the division of competence between the Community and its Member States would continue to be regulated by the existence of common EC rules in the field. In decisions whereby a vote is required under the Protocol, the Community would not have a vote in its own right in addition to those of its Member States which are parties to the Protocol and it would only exercise its right to vote in matters over which it has competence.

7 States outside the EU will not be affected in any way by the proposed clause. Nor will the Community count as an extra State Party in relation to the entry into force provisions. The insertion of the clause may be seen as a technical amendment to allow for the special needs of the EC and its Member States.

8 Article 19 of the draft protocol, as submitted to the Diplomatic Conference, already contains an accession clause within square brackets. A more elaborate wording, specifying the nature of the Community�s accession in more detail, is proposed below. All proposed changes are based upon existing international conventions to which the Community is a party. The purpose of the proposed changes is either to align the text to similar clauses in existing conventions or to

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clarify what the accession by the EC means and to make it completely clear that it does not affect any other parties to the Protocol:

�ARTICLE 19

Regional Economic Integration Organizations

1 A Regional Economic Integration Organization, which is constituted by sovereign States that have transferred competence over certain matters governed by this Protocol to that Organization, may sign, ratify, accept, approve or accede to this Protocol. A Regional Economic Integration Organization which is a Party to this Protocol shall have the rights and obligations of a State Party, to the extent that the Regional Economic Integration Organization has competence over matters governed by this Protocol.

2 Where a Regional Economic Integration Organization exercises its right of vote in matters over which it has competence, it shall have a number of votes equal to the number of its Member States which are Parties to this Protocol and which have transferred competence to it over the matter in question. A Regional Economic Integration Organization shall not exercise its right to vote if its Member States exercise theirs, and vice versa.

3 Where the number of States Parties is relevant in this Protocol, the Regional Economic Integration Organization shall not count as a State Party in addition to its Member States which are States Parties.

4 At the time of signature, ratification, acceptance, approval or accession the Regional Economic Integration Organization shall make a declaration to the Secretary-General specifying the matters governed by this Protocol in respect of which competence has been transferred to that organization by its Member States which are signatories or Parties to this Protocol and any other relevant restrictions as to the scope of that competence. The Regional Economic Integration Organization shall promptly notify the Secretary-General of any changes to the distribution of competence, including new transfers of competence, specified in the declaration under this paragraph.

5 States Parties which are Member States of a Regional Economic Integration Organization which is a Party to this Protocol shall be presumed to have competence over all matters governed by this Protocol in respect of which transfers of competence to the organization have not been specifically declared or notified under paragraph 4.�

RECOGNITION AND ENFORCEMENT OF JUDGEMENTS

9 Rules on the recognition and enforcement of foreign judgments are sometimes governed by a multitude of laws. Apart from international instruments on a specific subject matter (such as the Athens Protocol) which include provisions on this matter, national laws and �horizontal� instruments relating to the recognition and enforcement of judgments between two or more States regulate this matter more generally.

10 As for the EU, Regulation 44/2001 constitutes a first step in a wider effort to establish a common judicial area within the Community, which involves the aspect of free �circulation� of

LEG/CONF.13/7 - 4 -


court rulings. The rules on the recognition and enforcement of judgments in civil and commercial matters, as laid down in the Regulation, form an important part of this effort and the possibility to continue the application of Regulation 44/2001 as between EU Member States is therefore of considerable importance for EU Member States. The significance of Regulation 44/2001 in the context of the Athens Protocol is described in more detail in Annex 1 and further explanations, including the full text of the relevant Chapter of Regulation 44/2001, is reproduced in Annex 2.

11 In order to avoid the application of different standards of recognition and enforcement depending on the subject matter in question, international instruments, including transport liability conventions,3 have sometimes included an �opt-out� clause in order to explicitly authorize two or more States to continue the application of mutual rules on recognition and enforcement of judgments which have been agreed in other international instruments.

12 On the other hand, it is accepted that the purpose of instruments such as the Athens Protocol are aimed at harmonizing the recognition and enforcement of judgments as between the Parties to the Protocol.

13 In order to find a compromise between the wish of prospective Parties to ensure a continued application of existing rules that may not be identical to the Athens Protocol and the need for clarity among all Parties to the Athens Protocol on the common rules for recognition and enforcement of judgments relating to passenger claims, a new paragraph 3 is proposed to Article 17bis. The proposed wording spells out that paragraphs 17bis, paragraphs 1 and 2 constitute a minimum standard and that other rules may be applied, provided that they ensure at least equivalent recognition and enforcement of foreign judgments. Should the other rules be less permissive in granting recognition and enforcement than paragraphs 1 and 2, such other rules could not be applied under the proposed wording.

14 As far as is known, the insertion of such a new paragraph would not represent any departure from how the present paragraphs 1 and 2 have been applied and interpreted in other instruments to date. It would, however, serve the purpose of clarifying the possibility to apply other, less restrictive rules for recognition and enforcement of judgments.

15 It is therefore proposed that the following text is inserted as a new paragraph 3 to Article 11 of the Protocol (new Article 17bis of the Athens Convention):

�3 A State Party to this Protocol may apply other rules for the recognition and enforcement of judgments, provided that their effect is to ensure that judgments are recognised and enforced at least to the same extent as under paragraph 1 and 2.�

ACTION TO BE TAKEN

3 Article 21 of the 1989 Convention on Civil Liability for Damage caused during Carriage of Dangerous Goods

by Road, Rail and Inland Navigation Vessels (CRTD) provides: �Whenever two or more States are bound by an international Convention establishing rules of jurisdiction or providing for recognition and execution of judgments given by a court of another State, the provisions of those instruments replace the corresponding provisions of � this Convention.�

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16 The co-sponsors recommend that the Diplomatic Conference adopt the proposed amendments.

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LEG/CONF.13/7


ANNEX 1

QUESTIONS AND ANSWERS RELATING TO THE NEW PROVISIONS

Accession clause (Article 19)

1 Why is this clause needed?

Its main purpose is to remove a very serious legal obstacle for EU Member States to ratify the Athens Protocol, presented by a conflict between two legal systems (EU law and international law) governing the same subject. Through ratification of the Athens Protocol by the European Community, a link between the EU legal system and the Athens Protocol can be achieved and the relevant provisions of the Athens Protocol (those for which there is Community competence, in this case Articles 10 and 11) would be incorporated into into the body of EU law. In this way the legal obstacles for EU Member States to ratify the Protocol would be removed without the rights of any other States Party to the Protocol being affected.

2 Is this clause new?

No. Clauses allowing for regional economic integration organizations to become parties are increasingly common in multilateral agreements. There are numerous such clauses in conventions adopted under the aegis of the United Nations and its specialized agencies, many of which are already ratified or acceded to by the European Community. This is notably the case in the field of environmental protection, trade, agriculture and fisheries, where the Community competence is well-established. The European Community is also a contracting party to the 1982 UN Convention on the Law of the Sea. In the field of liability for passengers, Article 53 of the Montreal Convention contains a clause to the same effect4 and the process of ratifying this

4 The relevant provisions of Article 53 read:

1. This Convention shall be open for signature in Montreal on 28 May 1999 by States participating in the International Conference on Air Law held at Montreal from 10 to 28 May 1999. After 28 May 1999, the Convention shall be open to all States for signature at the Headquarters of the International Civil Aviation Organisation in Montreal until it enters into force in accordance with paragraph 6 of this Article.

2. This Convention shall similarly be open for signature by Regional Economic Integration Organisations. For the purpose of this Convention, a �Regional Economic Integration Organisation� means any organisation which is constituted by sovereign States of a given region which has competence in respect of certain matters governed by this Convention and has been duly authorized to sign and to ratify, accept, approve or accede to this Convention. A reference to a �State Party� or �States Parties� in this Convention, otherwise than in paragraph 2 of Article 1, paragraph 1(b) of Article 3, paragraph (b) of Article 5, Articles 23, 33, 46 and paragraph (b) of Article 57, applies equally to a Regional Economic Integration Organisation. For the purpose of Article 24, the references to �a majority of the States Parties� and �one-third of the States Parties� shall not apply to a Regional Economic Integration Organisation.

3. This Convention shall be subject to ratification by States and by Regional Economic Integration Organisations which have signed it.

4. Any State or Regional Economic Integration Organisation which does not sign this Convention may accept, approve or accede to it at any time.

6. This Convention shall enter into force on the sixtieth day following the date of deposit of the thirtieth instrument of ratification, acceptance, approval or accession with the Depositary between the States which have deposited such instrument. An instrument deposited by a Regional Economic Integration Organisation shall not be counted for the purpose of this paragraph.

7. For other States and for other Regional Economic Integration Organisations, this Convention shall take effect sixty days following the date of deposit of the instrument of ratification, acceptance, approval or accession.

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agreement is well underway in the Community. It is true, however, that the Athens Protocol is the first instrument adopted under the aegis of the IMO which raises this issue.

3 Which are the precedents for the wording of the proposed article?

Since the existing accession clauses show some degree of variation, there may not exist a completely similar article in any of the existing conventions. In the present case, the Community has wished to facilitate the discussions by building upon the text which already exists within square brackets in Article 19 of the draft protocol.

All proposed amendments to Article 19 are based upon existing agreements.

Paragraph 2, setting out the principles relating to voting in more detail, is based upon existing precedents in numerous existing international conventions, which provide for voting.5

The competence declaration (paragraph 4), which serves the purpose of clarifying for non-EU States the extent of the Community competence at any particular point in time, is equally a standard clause which exists in a similar format in a number of international conventions.6

The new paragraph 5 is based on the corresponding provision in Article 5.3 of Annex IX to the 1982 United Nations Convention on the Law of the Sea. It serves to clarify that matters which are not explicitly listed in the declaration/notification of competence shall be presumed to remain the competence of the Member States of the Regional Economic Integration Organization.

4 The paragraph on voting seems unnecessary, in light of the limited voting provisions in the Protocol and the absence of EC competence in those matters.

It is true that the only provisions in the draft Athens Protocol which contain rules on voting relate to matters which are outside Community competence (revision of limits). Yet, the voting provisions serve a purpose in clarifying the full implication of the accession of a regional economic integration organization. The wording of this article is drafted in order to �last� and to stand potential future changes of the extent of the Community competence. In light of the fact that the Athens Protocol is the first IMO instrument to address this issue, it is considered important to achieve a wording which is as complete as possible, while still being based on texts that already exist in international conventions.

5 Examples include the 1992 UN Framework Convention on Climate Change (Article 18.2); the 2000 UN

Convention against Transnational Organized Crime (Article 39.2); the 2001 Stockholm Convention on Persistent Organic Pollutants (Article 23.2)

A slight modification of the standard wording of the cited conventions has been made in order to take into account the special position of Denmark (being an EU Member State, but still not bound by Regulation 44/2001) in the present case.

6 Examples include: the 1992 UN Framework Convention on Climate Change (Article 22.3); the 2000 UN Convention against Transnational Organized Crime (Article 37.3); the 2001 UNIDROIT/ICAO Convention on International Interests in Mobile Equipment (Article 48.2); the 2001 Stockholm Convention on Persistent Organic Pollutants (Article 25.3).

As explained in the previous footnote, a slight modification of the most commonly used text has been made to take into account the special situation arising from the position of Denmark in the present case.

LEG/CONF.13/7 ANNEX 1

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5 Does the clause affect any rights or duties for non-EU States?

No. The accession clause will not affect the rights or duties of States outside the EU.

6 Does the clause bring any additional advantage for the EU or its Member States?

No. The proposed article tries to make it very clear that there will be no additional benefit for the EU or its Member States, in terms of number of votes or otherwise. Nor will it bring about any new competence to the European Community. The main advantage of the article is that it would remove a very serious obstacle for EU Member States to ratify the Athens Protocol, should the accession clause not be there.

7 Does the clause have any implications on the requirements or procedures for EU Member States to ratify the Athens Protocol?

No. The clause as such is completely neutral as to how, and if, the Protocol should be ratified by the European Community and its Member States. It does not specify at what time such ratification should take place nor does it imply any specific order or co-ordination of ratification procedure.

8 What rights and obligations would the European Community undertake through the ratification or accession of the Athens Protocol?

It follows from other parts of this document that the EC ratification/accession is complementary to that of its Member States. The purpose is to ensure that all rights and obligations of the Protocol are exercised, either by the Community or by its Member States, but never by both. The determining issue as to which entity undertakes to perform them is the division of competence. As far as the Community is concerned, its ratification is only significant for the parts over which it has competence. Consequently ratification would entail neither rights nor obligations for the European Community for the (the great majority of) parts of the Protocol over which it has no competence.

As for the parts which are under Community competence (to be further specified in the declaration/notification to the Secretary-General) the Community would substitute its Member States and assume their rights and obligations. Put in a different way, the Community would only ratify/accede to a part of the Protocol. This part of the Protocol would apply in the whole European Community (except Denmark, in this case) whether a particular Member State is a party to the Protocol or not. For the European Community, ratification of the Protocol (which can take place only once there is specific approval for it by the EU Member States) would mean that the parts of the Athens Protocol which belong to Community competence are incorporated into the body of EC Law.

9 Given that the wording �States Parties�, Contracting States� etc. are used throughout the Protocol and in the underlying Athens Convention, does not the proposed Article 19 necessitate a whole range of consequential amendments elsewhere in the instruments in order to cater for the new situation?

It is believed that this issue is resolved by the wording in the first paragraph of Article 19, which makes it clear that a regional economic integration organization, should it become a party to the Protocol, would have the same rights and obligations as those of States Parties. Through this wording, references to States Parties in the Protocol would encompass such organizations as well, unless explicitly stated otherwise.



Recognition and enforcement of judgments

10 Would the proposed new paragraph imply a continued application of EU Regulation 44/2001 between EU Member States?

Since the provisions on recognition and enforcement of judgments of Regulation 44/2001 generally are less restrictive than the rules provided for in paragraphs 1 and 2 of Article 17bis, EU Member States could continue to apply the main thrust of the Regulation. EU Member States could in other words continue to recognise and enforce judgments given in other EU Member States to a wider extent than the mere application of the provisions of paragraphs 1 and 2 of Article 17bis would imply. On the other hand, the Regulation should be applied only to the extent that it would ensure at least the same level of recognition as those two paragraphs. In this way a certain minimum threshold for the standards for recognition and enforcement of judgment under the Athens Protocol is achieved among its all Parties. In any case, however, Regulation 44/2001 only deals with the way a judgment given in one EU Member State is recognised and enforced in another EU Member State.

11 Would the continued application of EU Regulation 44/2001 have any implications on how judgments of an EU Member State are to be recognised and enforced in another State or vice versa?

No, the Regulation only deals with how a judgment in one EU Member State is recognised and enforced in another EU Member State. Recognition and enforcement of judgments between EU States and other Parties to the Athens Protocol will continue to be governed by the Protocol and national laws.

12 What is the main content of Regulation 44/2001?

Because of the complexity of the matter, this question is addressed separately in Annex 2. It should be noted, however, that the proposed new paragraph 3 to Article 17bis does not, as previous proposals on this issue have done, imply a complete disconnection between the application of Regulation 44/2001 and the Athens Protocol�s rules on recognition and enforcement of judgments. This, in combination with the fact that the Regulation only regulates the recognition and enforcement of judgments between EU Member States, means that there is no immediate need for States outside the EU to have detailed knowledge of the EU Regulation for the purpose of the Athens Protocol. Nevertheless, following requests from several IMO Member States, a summary and excerpt of the relevant parts of Regulation 44/2001 is provided for information purposes in Annex 2.

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LEG/CONF.13/7


ANNEX 2

MORE DETAILED INFORMATION ON EU REGULATION 44/2001 AND ITS PROVISIONS ON RECOGNITION AND ENFORCEMENT

1. Main content

Council Regulation 44/2001 sets up a virtually automatic system for recognition and enforcement of judgments within the EU. It is based on the principle of mutual trust in the administration of justice in the EU and that judgments given in a Member State are to be recognised automatically in another Member State without the need for any procedure, except in cases of dispute.

Similarly, the procedure for enforcement of judgments is made more expeditious. The declaration that a judgment is enforceable is issued automatically after purely formal checks of the documents supplied, without there being any possibility of automatically raising any of the grounds for non-enforcement provided for by the Regulation (Articles 39 to 42).

However, respect for the rights of the defence means that the defendant is able to seek redress, in an adversarial procedure, against the judgment given if he believes one of the grounds for non-recognition applies. Redress procedures are available to the claimant where the application for a declaration of enforceability has been rejected.

The main rules are the following :

A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required. Even if the judgment is not final or is still subject to an appeal, it is subject to enforcement. However, a court of a Member State in which recognition of a judgment covered by the Regulation is sought may stay the proceedings if an ordinary appeal against the judgment has been lodged.

A judgment shall not be recognised (or enforced) :

(1) if such recognition is manifestly contrary to public policy in the Member State in which recognition is sought;

(2) where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so (in the court of origin);

(3) if it is irreconcilable with a judgment given in a dispute between the same parties in the Member State in which recognition is sought;

(4) if it is irreconcilable with an earlier judgment given in another Member State or in a third State involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State addressed.

Subject to point (1), the jurisdiction of the court of the Member State of origin may not be reviewed. Under no circumstances may a foreign judgment be reviewed as to its substance.



A judgment given in a Member State and enforceable in that State shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there.

2. Main differences between Regulation 44/2001 and the draft Athens Protocol

a) Procedure and conditions for enforcement

Article 17bis .2 of the draft Athens Protocol refers to the procedure for enforcement of foreign judgments, if any, of each Contracting State: �A judgment recognised under paragraph 1 of this article shall be enforceable in each State Party as soon as the formalities required in that State have been complied with.� As explained under question 9, the procedure under Regulation 44/2001 is already very �light� within the EU. In addition, future simplifications are expected and it is foreseen that there will be no more requirements for enforcement of judgments given in EU Member States (abolition of the "exequatur" procedure).

According to the Athens Protocol, the judgment is recognised only if "it is no longer subject of ordinary forms of review". This is not the case for judgments falling within the scope of the Regulation 44/2001, which can be enforced even if they are only enforceable on a provisional basis.

b) Grounds for refusal

The grounds for refusal are different. The Regulation does not, like Article 17bis.1 a) of the Athens regime, allow the possibility to refuse the recognition of an EU judgment for reasons of "fraud".

The grounds for refusal of Article 17bis.1 b) of the draft protocol are less precise than those of Regulation 44/2001. For the service of documents which instituted the proceedings and for the rights of defence, the requested court can, according to the Regulation, refuse to enforce the judgment only where it was given in default of appearance and unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so in the court of origin. In practice, this ground is the one which is most used by litigants.

In addition, the Regulation contains two other grounds for refusal which are not explicitly mentioned in the draft protocol (points (3) and (4) under question 9 above).

The full text of Chapter III of Regulation 44/2001 is reproduced in the Appendix.


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Appendix

RECOGNITION AND ENFORCEMENT

Article 32

For the purposes of this Regulation, �judgment� means any judgment given by a court or tribunal of a Member State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as the determination of costs or expenses by an officer of the court.

Section 1

Recognition

Article 33

1. A judgment given in a Member State shall be recognized in the other Member States without any special procedure being required.

2. Any interested party who raises the recognition of a judgment as the principal issue in a dispute may, in accordance with the procedures provided for in Sections 2 and 3 of this Chapter, apply for a decision that the judgment be recognized.

3. If the outcome of proceedings in a court of a Member State depends on the determination of an incidental question of recognition that court shall have jurisdiction over that question.

Article 34

A judgment shall not be recognized:

1. if such recognition is manifestly contrary to public policy in the Member State in which recognition is sought;

2. where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;

3. if it is irreconcilable with a judgment given in a dispute between the same parties in the Member State in which recognition is sought;

4. if it is irreconcilable with an earlier judgment given in another Member State or in a third State involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State addressed.

Article 35

1. Moreover, a judgment shall not be recognized if it conflicts with Sections 3, 4 or 6 of Chapter II, or in a case provided for in Article 72.

2. In its examination of the grounds of jurisdiction referred to in the foregoing paragraph, the court or authority applied to shall be bound by the findings of fact on which the court of the Member State of origin based its jurisdiction.



3. Subject to the paragraph 1, the jurisdiction of the court of the Member State of origin may not be reviewed. The test of public policy referred to in point 1 of Article 34 may not be applied to the rules relating to jurisdiction.

Article 36

Under no circumstances may a foreign judgment be reviewed as to its substance.

Article 37

1. A court of a Member State in which recognition is sought of a judgment given in another Member State may stay the proceedings if an ordinary appeal against the judgment has been lodged.

2. A court of a Member State in which recognition is sought of a judgment given in Ireland or the United Kingdom may stay the proceedings if enforcement is suspended in the State of origin, by reason of an appeal.

Section 2

Enforcement

Article 38

1. A judgment given in a Member State and enforceable in that State shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there.

2. However, in the United Kingdom, such a judgment shall be enforced in England and Wales, in Scotland, or in Northern Ireland when, on the application of any interested party, it has been registered for enforcement in that part of the United Kingdom.

Article 39

1. The application shall be submitted to the court or competent authority indicated in the list in Annex II.

2. The local jurisdiction shall be determined by reference to the place of domicile of the party against whom enforcement is sought, or to the place of enforcement.

Article 40

1. The procedure for making the application shall be governed by the law of the Member State in which enforcement is sought.

2. The applicant must give an address for service of process within the area of jurisdiction of the court applied to. However, if the law of the Member State in which enforcement is sought does not provide for the furnishing of such an address, the applicant shall appoint a representative ad litem.

3. The documents referred to in Article 53 shall be attached to the application.


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Article 41

The judgment shall be declared enforceable immediately on completion of the formalities in Article 53 without any review under Articles 34 and 35. The party against whom enforcement is sought shall not at this stage of the proceedings be entitled to make any submissions on the application.

Article 42

1. The decision on the application for a declaration of enforceability shall forthwith be brought to the notice of the applicant in accordance with the procedure laid down by the law of the Member State in which enforcement is sought.

2. The declaration of enforceability shall be served on the party against whom enforcement is sought, accompanied by the judgment, if not already served on that party.

Article 43

1. The decision on the application for a declaration of enforceability may be appealed against by either party.

2. The appeal is to be lodged with the court indicated in the list in Annex III.

3. The appeal shall be dealt with in accordance with the rules governing procedure in contradictory matters.

4. If the party against whom enforcement is sought fails to appear before the appellate court in proceedings concerning an appeal brought by the applicant, Article 26(2) to (4) shall apply even where the party against whom enforcement is sought is not domiciled in any of the Member States.

5. An appeal against the declaration of enforceability is to be lodged within one month of service thereof. If the party against whom enforcement is sought is domiciled in a Member State other than that in which the declaration of enforceability was given, the time for appealing shall be two months and shall run from the date of service, either on him in person or at his residence. No extension of time may be granted on account of distance.

Article 44

The judgment given on the appeal may be contested only by the appeal referred to in Annex IV.

Article 45

1. The court with which an appeal is lodged under Article 43 or Article 44 shall refuse or revoke a declaration of enforceability only on one of the grounds specified in Articles 34 and 35. It shall give its decision without delay.

2. Under no circumstances may the foreign judgment be reviewed as to its substance.



Article 46

1. The court with which an appeal is lodged under Article 43 or Article 44 may, on the application of the party against whom enforcement is sought, stay the proceedings if an ordinary appeal has been lodged against the judgment in the Member State of origin or if the time for such an appeal has not yet expired; in the latter case, the court may specify the time within which such an appeal is to be lodged.

2. Where the judgment was given in Ireland or the United Kingdom, any form of appeal available in the Member State of origin shall be treated as an ordinary appeal for the purposes of paragraph 1.

3. The court may also make enforcement conditional on the provision of such security as it shall determine.

Article 47

1. When a judgment must be recognized in accordance with this Regulation, nothing shall prevent the applicant from availing himself of provisional, including protective, measures in accordance with the law of the Member State requested without a declaration of enforceability under Article 41 being required.

2. The declaration of enforceability shall carry with it the power to proceed to any protective measures.

3. During the time specified for an appeal pursuant to Article 43(5) against the declaration of enforceability and until any such appeal has been determined, no measures of enforcement may be taken other than protective measures against the property of the party against whom enforcement is sought.

Article 48

1. Where a foreign judgment has been given in respect of several matters and the declaration of enforceability cannot be given for all of them, the court or competent authority shall give it for one or more of them.

2. An applicant may request a declaration of enforceability limited to parts of a judgment.

Article 49

A foreign judgment which orders a periodic payment by way of a penalty shall be enforceable in the Member State in which enforcement is sought only if the amount of the payment has been finally determined by the courts of the Member State of origin.

Article 50

An applicant who, in the Member State of origin has benefited from complete or partial legal aid or exemption from costs or expenses, shall be entitled, in the procedure provided for in this Section, to benefit from the most favourable legal aid or the most extensive exemption from costs or expenses provided for by the law of the Member State addressed.


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Article 51

No security, bond or deposit, however described, shall be required of a party who in one Member State applies for enforcement of a judgment given in another Member State on the ground that he is a foreign national or that he is not domiciled or resident in the State in which enforcement is sought.

Article 52

In proceedings for the issue of a declaration of enforceability, no charge, duty or fee calculated by reference to the value of the matter at issue may be levied in the Member State in which enforcement is sought.

Section 3

Common provisions

Article 53

1. A party seeking recognition or applying for a declaration of enforceability shall produce a copy of the judgment which satisfies the conditions necessary to establish its authenticity.

2. A party applying for a declaration of enforceability shall also produce the certificate referred to in Article 54, without prejudice to Article 55.

Article 54

The court or competent authority of a Member State where a judgment was given shall issue, at the request of any interested party, a certificate using the standard form in Annex V to this Regulation.

Article 55

1. If the certificate referred to in Article 54 is not produced, the court or competent authority may specify a time for its production or accept an equivalent document or, if it considers that it has sufficient information before it, dispense with its production.

2. If the court or competent authority so requires, a translation of the documents shall be produced. The translation shall be certified by a person qualified to do so in one of the Member States.

Article 56

No legalization or other similar formality shall be required in respect of the documents referred to in Article 53 or Article 55(2), or in respect of a document appointing a representative ad litem.

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IMO

E


LEG/CONF.13/62 July 2002

Original: ENGLISH

CONSIDERATION OF A DRAFT PROTOCOL TO AMEND THE ATHENS

CONVENTION RELATING TO THE CARRIAGE OF PASSENGERS AND THEIR LUGGAGE BY SEA, 1974

Submitted by Japan


This document proposes a revision to article 4 paragraph 2 of the draft protocol concerning the liability of the carrier for the loss suffered as a result of the death of or personal injury to a passenger not caused by a shipping incident.

Action to be taken:

Paragraph 4

Related documents:

LEG/CONF.13/3

1 Japan has reviewed article 4 paragraph 2 of the draft protocol concerning the liability of the carrier for the loss suffered as a result of the death of or personal injury to a passenger not caused by a shipping incident, bearing in mind the outcome of the discussion at the eighty-third session of the Legal Committee. 2 Our view is that the burden of proof even in the case of non-shipping incidents should be placed on the carrier in order to facilitate the expeditious compensation for passengers who might find it difficult to discharge that burden. Japan believes that it would be easier and fairer for the carrier to be required to disprove claims made against it by the claimants. In fact, Japan has already adopted for a long time this legislation that the carrier of passengers shall be liable, unless the carrier proves that the incident which caused the loss occurred without the fault or neglect of the carrier. It is quite difficult for us to change the above existing principle policy into the opposition so as to place the burden of proof on the claimant. 3 Therefore, Japan proposes to replace the text of article 4(2) of the draft protocol by the following:

�2 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 shall be liable unless the carrier proves that the incident which caused the loss occurred without the fault or neglect of the carrier.�

4 The Diplomatic Conference is requested to consider and support the proposal in this paper.

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LEG/CONF.13/11 30 August 2002 Original: ENGLISH



Submitted on behalf of the International Group of P&I Clubs

SUMMARY

Executive summary:

In this paper, proposals are made which are intended to facilitate the operation of the draft protocol.

Action to be taken:

Delegates are invited to consider and, if thought fit, to adopt the proposals made in paragraphs 5, 7, 11, 15, 17, 19 and 20.

Related documents:

LEG/CONF.13/3; LEG/CONF.13/9 and LEG/CONF.13/10

1 The International Group of P&I Clubs acknowledges the principal objectives of the proposed reform of the Athens Convention. However, the Clubs believe that the Diplomatic Conference should address seven points in the draft protocol, in the manner set out below: Direct Action Limit 2 The International Group has conducted a review of representative claims incurred over the last ten years by one of the Clubs most heavily committed to cruise and ferry vessels, a review which encompasses all passenger claims incurred on a worldwide basis, including the United States of America, and covering all passenger carrying vessels from large cruise ships to small ferries. These statistics indicate that during the last ten year period (1992-2002) the average annual payment world-wide in respect of claims for death or injury of a passenger was US$21,737. The vast majority of such claims relate to minor incidents hence the relatively low average cost per claim which is substantially below the per capita limit applicable under the existing Convention. 3 The Club covering the largest ferry operator in the UK has provided the following statistics in relation to UK claims: of the total number of claims paid during the same 10 year period, 83% resulted in payments of less than US$10,000 (with an average claim payment of US$2,608); 14% in payments of between US$10,001 and US$100,000 (average US$23,117).

LEG/CONF.13/11 - 2 -


4 Since 97% of claims within this sample are settled for less than US$100,000, it is clear that the desire to provide a central core of guaranteed cover, which the International Group supports, will be satisfied by setting the limit for direct action at a more realistic level than some have suggested. A figure of SDR100,000 will accommodate the vast majority of passenger claims. 5 The International Group submits that the direct action limit in protocol article 5 (Art. 4 bis. 1.) should be set no higher than SDR 100,000 per passenger. Strict liability 6 The same analysis applies to the setting of an appropriate limit of strict liability for �shipping incidents�. Again, a figure of SDR100,000 will clearly satisfy nearly all claimants. Furthermore, there seems to be no convincing reason for distinguishing between air and sea passengers when finalising levels of strict liability. 7 The International Group therefore submits that the strict liability limit for casualties arising from �shipping incidents� at protocol article 4 (Art.3.1.) should be set at SDR 100,000 per passenger, the same level as the Montreal Convention�s strict liability limit. Overall limit 8 There are further compelling reasons for setting the levels of direct action liability, strict liability and compulsory insurance at levels which are actually attainable. In relation to the overall limit of shipowner's liability at Protocol Article 6 (Article 7(1), the International Group has consistently made clear throughout the Athens debate at IMO that, if liability levels are incorporated nto the Protocol which result in an unrealistically high concentration of risk, the International Group Clubs will be obliged either to cap their exposure or to exclude passenger risk altogether. 9 In this context the International Group endorses the conclusions reached by two leading international broking houses, Willis and Marsh, in papers circulated by IUMI. The International Group believes that it is in the best interests of passengers to ensure that the Protocol�s liability limits are set at levels that enable the Clubs to continue to provide the cover for these risks within the overall framework of Group cover, while at the same time meeting the key objectives of this reform. While the capacity problem to which both Willis and Marsh refer would be to some extent alleviated by setting a direct action figure at a lower level than the overall limit of shipowner�s liability at Article 7(1), the level of overall limit chosen by the Diplomatic Conference is critical to the International Group�s ability to continue to provide sustainable levels of insurance for these risks. The International Group recognises that the reinsurance markets on the one hand and the circumstances in which cruise and ferry operators trade on the other may be significantly different in future years. The International Group is able to say that, viewed from their current perspective, it is most unlikely that Clubs will be willing to pool cover in respect of the overall liability regime espoused by this Protocol if it includes a direct action limit of more than SDR 100,000 per passenger and an overall limit of more than SDR 350,000 per passenger. Moreover, some Clubs have already expressed their unwillingness to go that far and others have serious reservations about the prospect. It is impossible therefore to predict what market capacity and conditions may exist in the future or whether Clubs in the International Group will be willing to cover passenger vessels at all.

- 3 - LEG/CONF.13/11


Opt-out 10 It is common ground for all Clubs that an opt-out for individual States, as envisaged in protocol article 6 (Article 7(2)), is not sustainable since it deprives the insurer of certainty of exposure and raises the aggregation of risk to potentially infinite levels. Different liability limits in different jurisdictions do not promote consistency of approach, invite forum shopping, and will inevitably complicate and delay the claims-handling procedure to the detriment of passenger claimants. Retention of the opt-out in Article 7(2) would merely encourage insurers to introduce their own limits. 11 The International Group recommends that article 7(2) be deleted. Act of Terrorism 12 The International Group submits that the prospective protocol is defective in that it includes no defence for the carrier (or insurance provider) in the event of the casualty being caused by an act of terrorism. Protocol Article 4 Art. 3.1) provides a defence where the carrier can prove that the incident:

(a) results from an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character; or

(b) was wholly caused by an act or omission done with the intent to cause the

incident by a third party.

13 Moreover, where the loss exceeds the limit of liability incorporated in article 3(1) �the carrier shall be further liable unless the carrier proves that the incident which caused the loss occurred without fault or neglect of the carrier.� 14 The Chairman of the Correspondence Group is on record as stating that he believes that article 3 as drafted is wide enough to provide the carrier with a defence in the event of an incident caused by an act of terrorism because an act of terrorism is always �done with the intent to cause the incident by a third party�. Although we welcome this construction and the policy behind it, we do not agree that the protocol as drafted has the desired effect in all cases because it is a pre-condition for the defence to operate that the incident is wholly caused by an act or omission done with intent to cause the incident by a third party. We are conscious because of cases like the Achille Lauro that lawyers will seek to argue that an incident was not wholly caused by the act of a third party and that the carrier must bear some responsibility for not preventing the terrorist act. 15 The International Group therefore suggests the following amendment to article 3(1)(a) which clarifies the issue: Insert the words �act of terrorism� before the word �insurrection� in article 3(1)(a). Wilful Misconduct 16 The submission made by Australia and Norway in document LEG/CONF.13/9 suggests that the insurer or other provider of financial security should be liable even where the carrier has been guilty of wilful misconduct. The defence of �wilful misconduct� was retained in the prospective protocol (article 4 bis 10) after exhaustive debate in the Legal Committee and we believe that was the correct conclusion for the following reasons:

LEG/CONF.13/11 - 4 -


(a) English maritime law provides that �the insurer is not liable for any loss attributable to the wilful misconduct of the assured�(Marine Insurance Act 1906, section 55.2(a)). This defence is incorporated into English law as a matter of public policy, it being regarded as unacceptable for the assured to obtain insurance for liabilities arising out of his own deliberate wrongdoing. Similar provisions have been adopted, as a matter of public policy, in the insurance laws of many other countries.

(b) P&I Clubs are mutual insurance organisations which cover the third party

liabilities of their shipowner members. They are governed by Boards drawn from their shipowning membership, a structure which ensures that the mutual principle is observed in the settlement of claims. In this context, it would be a rare shipowner indeed who volunteered to cover the claims of another shipowner caused by the latter�s wilful misconduct. The International Group of P&I Clubs has made it clear during the debate on this issue that the Clubs are not prepared to cover the liabilities of any of their members caused by their wilful misconduct.

(c) The International Group further submits that over the last ten years the focus in

the maritime community, at national, European and international level, not least within IMO itself, has been on ship safety and shipping standards. It would be a curious departure from those goals if the international community were now to insist that shipowners obtain insurance against liabilities caused by their own wilful misconduct.

(d) The submission made by Australia and Norway in document �.. asserts that

�insurance for wilful misconduct could, for example, be fitted into the Clubs� reinsurance programme.� For the reasons given in this submission, it could not.

(e) In practice, given the availability, as a matter of public policy, of the wilful

misconduct defence in the maritime context, passengers are able to take out personal accident cover (PAI) precisely to cater for this rarest of all contingencies.

(f) The defence of wilful misconduct has been preserved in recent international

conventions, for example the CLC, HNS and Bunker Conventions.

17 The International Group submits that the wilful misconduct defence should be retained in the Athens Convention. Time-Bar 18 Although Clubs believe that justifiable claims should be properly compensated, it has to be acknowledged that a substantial proportion of the claims made are not settled � for good reason. The longer the period of time allowed under the Convention for the bringing of claims, the more difficult it will become to gather the necessary evidence to reject fraudulent claims. The two years provided under the existing Athens Convention has not given rise to any problems in practice and this should be retained. 19 The International Group therefore suggests inserting the word �two� within the brackets of paragraph (i) of article 16.3 (protocol article 9).

20 In relation to protocol article 7, (Art.8), the International Group recommends retention of existing Convention limits for what are in any event insured risks.

- 5 - LEG/CONF.13/11


21 The International Group submits that the interests of passengers will be best served by a compensation regime which is insurable on a sustainable basis. The essential objectives of the protocol can be achieved within the current insurance framework which has a proven track record. If liability levels are agreed in the protocol so as to produce a greater concentration of risk overall than is contemplated in this submission, there is no guarantee that any insurance provider will be able to respond.

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Submitted by the International Union of Marine Insurance (IUMI)

SUMMARY

Executive summary:

This document attaches two papers produced by insurance brokers regarding insurance-related issues of relevance to the discussion of the draft protocol to the Athens Convention.

Action to be taken:

The Conference is invited to consider the information and take action as appropriate.

Related documents:

-

1 The International Union of Marine Insurance (IUMI) has expressed views at numerous sessions of the Legal Committee in recent years concerning: (a) the importance of security behind insurance cover; (b) whether the cover should include wilful misconduct and scope of cover generally;

(c) the importance of International Group of P&I Clubs cover, with regard to the confidence shipowners have in it and the specialized service it provides; and

(e) the capacity of insurance cover available.

2 IUMI feels that many of the above issues are considered in papers produced by two leading insurance brokers and we suggest that it may assist deliberations at the Diplomatic Conference for delegates to see these papers, which are reproduced with the permission of the authors. 3 IUMI will be holding its Annual Meeting in September 2002, when the Athens protocol may again be discussed. Any matters forthcoming from that discussion will be reported verbally to the Diplomatic Conference in October.

***

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ANNEX 1

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LEG/CONF.13/10

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LEG/CONF.13/10 ANNEX 1 Page 8 Athens Convention - Proposed New Protocol 18/07/02 Comparison with other Passenger Carrying Regimes The two closest comparisons are transport by rail and by air. These two forms of transport are not directly comparable with sea transit, and particularly cruise operations (who are probably more analogous to moving hotels/resorts rather than methods of transport) but comparing different carriers obligations in respect of passengers is still interesting. Air Transit International air transit has historically been governed by the Warsaw Convention (1929) though it is probably more pertinent to review the more recent proposed amendment, the Montreal Convention. This was proposed in 1999 and though not yet ratified it is expected to be a matter of time before it is widely accepted. The Montreal Convention imposes strict liability and mandatory insurance limits up to SDR 100,000 per capita. In excess of this threshold, liability is theoretically unlimited, however, the airline operator can escape liability where they are able to disprove negligence, wrongful act or omission on their part. The insurer can retain limited policy defences and there is no requirement for provision of guarantee by the insurers. Aircraft have passenger capacity in the hundreds, rather than the thousands, hence the mandatory passenger liability limits are comparatively manageable and well within the norm for the insurance market. The minimum limit required by the CAA for UK airlines is £150 million, although the minimum purchased by airlines is at least £750,000,000. As an aside the airline industry provided a good example of how limited capacity affects availability of cover. Following September 11, aviation war third party (excluding passenger) liability coverage was impossible to place and governmental intervention was required to enable air travel to continue. Train Transit The most recent convention on international carriage by rail (COTIF) entered into force in the UK in 1996. The uniform rules apply an upper limit per passenger of 70,000 SDR in the event of death or personal injury. The period of limitation is three years in respect of passengers. The Train companies retain defences under certain circumstances including actions of third parties or the plaintiffs themselves. It is intended that these limits will be revised by the Vilnius Protocol, which is expected to come into force after 2004. Under this Protocol, the upper limit per passenger will be increased to 175,000 SDR although similar defences will remain. Interestingly these limits apply to the Eurostar, which directly competes with cross-Channel ferry services. Limits of this size are again manageable within the insurance market.

Willis

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The proposed new protocol to the Athens Convention is

likely to call for new insurance requirements. There are a

number of issues raised by the debate surrounding the

various proposals. There are obvious problems in attempting

to predict accurately insurance market conditions and capacity

some years hence. Some non-passenger ship operating

International Group P&I club members are also unwilling to

share in the higher risk presented by a more onerous liability

regime for the passenger shipping industry. In addition, the

insurance market might well find the suggested solutions

unacceptable in view of the high limits required. And

creating a global alternative to the current system for

handling complex and often sensitive claims could well

prove another stumbling block.

The time frame makes sensible debate now very difficult.

Any new protocol including the insurance requirements is

unlikely to have legal force in any jurisdiction for several

years after the diplomatic conference in October 2002.

Therefore, much of what is being said at present is speculation

on a problem that may require a solution several

years hence. It is obviously extremely difficult to predict with

any degree of reliable accuracy what conditions will prevail in

the insurance markets in the future, particularly the

insurance capacity likely to be available if capacity

alternative to the International Group P&I clubs is required in

any significant way in the terms some delegations propose.

The existing cover afforded through membership of an

International Group P&I club is capable of responding to any

legal liability imposed by a new protocol to the Athens

Convention, unless the clubs determine otherwise. This

includes a regime that requires waiver of defences, other

than the wilful negligence of the insured. It is clear that

among the overwhelming majority of non-passenger ship

operating International Group P&I club members there is

growing support for restrictions on club cover for

passenger liabilities, should the passenger shipping industry

face increasingly onerous liability regimes, especially of the

sort described in Professor Rosaeg’s paper (1). Such restrictions

could take the form of a financial limit on cover, perhaps

equivalent to the current US$1 billion limit of cover for oil

pollution liability. There is also a very real risk that

International Group P&I club cover might only be available in

respect of liabilities a club member would have incurred had

some or all ordinary common law defences been available.

Thus the imposition of the most generous regime to

passengers may actually cause the limitation of International

Group club cover, that the new regime would be primarily

reliant upon for the most effective solution.

Current International Group P&I club cover has the highest

available limits and a long-established performance record. It

is the accepted insurance of passenger liabilities governed by

US law, under which there are no limitations on the ship

operator’s liability.

BankServe’s paper (2) makes the point that the theoretical

limit of club cover of around US$4.25 billion would be

inadequate to meet a ‘possible maximum loss’ resulting from

total loss of life following a collision between two of the very

largest cruise vessels afloat. BankServe has calculated this to

be something approaching US$5 billion. Even allowing for

the ‘pay to be paid’ rule that the P&I clubs operate and the

necessity of collecting overspill call that would fall on the

small minority of clubs that do not have either reinsurance

protection or more than adequate free reserves, this is by far

the highest limit of cover available for any similar line of

exposure. It has been available to this extent or more for

decades (in fact P&I club cover was theoretically financially

unlimited until quite recently).

July 2002Proposed New Protocol to the Athens Convention

Adviser

Key messages

� Accurately predicting insurance market conditionsand capacity is difficult

� P&I clubs might restrict cover for passenger liabilities

� Alternative insurers might find the proposed aggregation of exposure unacceptable

� Club cover restrictions might also necessitate an alternative global claims-handling facility

� Commercial insurance solutions would be vulnerableto market cycles

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ANNEX 2

HBELL

LEG/CONF.13/10

Furthermore, the International Group P&I clubs have a long

track record of handling passenger ship claims, and have

often used the mutuality of the International Group system

to pay compensation amounts in excess of the Athens

Convention limitation (eg ‘Herald of Free Enterprise’, ‘Estonia’

etc). It is a system of insurance that has certainly been fully

acceptable to ship operators, claimants and financiers, as

well as legislators concerned with the high proportion of

cruise vessels trading within or subject to US law and

jurisdiction, where there are no limits on liability towards

passengers and where any new protocol is unlikely to have

force.

Present availability of insurance capacityThe ‘expensive solution’ described in BankServe’s paper - the

separate insurance of passenger ship liabilities arising from

the new protocol - would in our view be subject to all the

problems that BankServe has identified and at least one

more.This is the availability of insurance capacity in absolute

terms and specifically to respond to the relatively very

onerous terms (compared to the Montreal Convention, for

example) that Professor Rosaeg has described.

Similarly, the ‘cheaper solution’ - an insurance of the

difference between the new protocol and potentially restricted

International Group P&I cover - though more attractive in

purely theoretical terms, would face the same very serious

difficulty, especially in the event of such restrictions on

International Group P&I club cover. The current ‘CoFR’

system required under OPA ‘90 (which is very much not a

‘fronting’ facility for the International Group system),

succeeds to a large extent because of the fact that there is

very little difference between the insurance available from

the P&I insurers and the ‘CoFR’ guarantees provided. It also

relies on the fact that the highest guarantee requirement,

which BankServe points out is less than US$400 million, is

well within the limits of capacity conventionally available

from the international marine liability insurance market.

US$5 billion of reinsurance coverage - for each and every loss

- would be unprecedented in the transportation liability

insurance markets. Even if available in favourable market

conditions, it would be very highly susceptible to adverse

market conditions. Indeed, even if a lower limit of compulsory

insurance were required - say US$2 billion for the larger

cruise and ferry vessels - an insurance policy including

unlimited reinstatements of such a limit would be difficult to

put in place. In the aftermath of the events of 11 September

2001, conditions in the insurance markets are very hard,

especially for risks demanding high limits of cover, and it is

somewhat doubtful that sufficient capacity could be raised

for a single limit of cover of US$5 billion.

However, either BankServe ‘solution’ would presumably be

acceptable under Professor Rosaeg’s proposals only on the

basis of cover for each and every loss during the period for

which the insurance is in force. This would result in a

potential aggregation of exposure theoretically only limited

by the number of passenger vessels in operation. It is likely

that the insurance markets would now regard this aggregation

of exposure as somewhat realistic, especially given that

cruise vessels, in particular, often trade in close proximity, for

example in Alaska and in the Caribbean. It is therefore

extremely unlikely that either ‘solution’ could offer cover in

that way.

Logistics of handling passenger claimsBankServe’s description of the ‘cheaper solution’ does not

make any reference to the infrastructure requirements such

an entity would necessarily create. As BankServe points out,

oil pollution claims in the US are relatively infrequent, and

the P&I insurers have almost always taken the leading role in

claims handling, up to final settlement. A new protocol to the

Athens Convention that led to restrictions on club cover

would mean that the International Group P&I clubs would be

much less likely to undertake a claims handling role in all

cases. In all likelihood, the ‘cheapest solution’ would require

a global capability for handling what are often complex and

highly sensitive claims. From a purely practical perspective, it

is difficult to see how personnel with the requisite skills

and experience could be attracted to such an entity in the

face of serious doubts about its long-term sustainability.

SummaryA product to meet the more onerous insurance position

promoted by some delegates to the IMO Legal Committee

would not be required for several years. Therefore, we cannot

rule out its availability from the insurance markets at any

time and in any circumstances. However, a compulsory

insurance regime of that kind requires very high limits of

cover (well in excess of what is called for under OPA ‘90 or,

perhaps more appropriately, the Montreal Convention), strict

liability and the waiver of all defences on the part of the

insurer. In view of this, we believe a potential commercial

insurance solution, were it available in favourable market

conditions, would be so only on very limited terms. And it

would be highly vulnerable to changes in market conditions

in accordance with the usual cycle in the commercial

insurance markets, to say nothing of any actual

claim upon it. Meanwhile, there is a tangible risk that

International Group P&I club cover for passenger claims

could be restricted in terms of scope and limit were these

more onerous proposals adopted at October’s diplomatic

conference.

HBELL


Adviser is intended to highlight issues on a general basis relating to insurance

and risk management and does not contain legal advice. In view of its purpose,

the publication cannot have regard to any individual circumstances nor can

Marsh accept responsibility for the completeness and accuracy of its content for

particular application. If you have legal queries regarding issues raised in the

Adviser, you should contact your usual legal advisers.

No. 1, The Marsh Centre, London E1 8DX. Tel: 020 7357 1000

Please contact your local Marsh office for more information.

Marsh Ltd is a member of the General Insurance Standard Council (GISC)

www.marsh.co.uk

© Marsh Ltd 2002

(1) ‘Report of the Intercessional Liaison with Insurers on the Athens

Convention’ submitted to the participants of the Informal Meeting

on the Revision of the Athens Convention on 24 April 2002 in the

IMO Building (dated 8 April 2002), prepared by Professor Erik

Rosaeg of the Scandinavian Institute of Maritime Law

(2) BankServe Insurance Services Limited’s paper dated 9 May

2002, entitled ‘An Opinion on the Feasibility of the Prospective

Protocol to the Athens Convention Being Met’. This Adviser also

takes into account subsequent papers prepared by Professor Rosaeg

and others.

HBELL

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Insurance and statistics

Submitted by Norway


This paper provides information and analysis relevant to the limits of draft convention articles 4bis and 7.

Action to be taken:

For information

Related documents:

LEG/CONF.13/3

Purpose of paper 1 The purpose of this paper is to provide information and analysis that may be relevant when the limits of the prospective Protocol are to be determined. Inflation etc. 2 From 1974 to 2002 the purchasing power of the SDR1 has been diminished. To compensate for this, the limitation amounts for death and personal injuries (Convention article 7) must at least be adjusted accordingly. However, this is not a calculation that yields a clear picture, as the following table shows:

1 About SDR, see <http://www.imf.org/external/np/tre/sdr/basket.htm> and

<http://pacific.commerce.ubc.ca/xr/SDR.html>.

LEG/CONF.13/8 - 2 -


Nominal value2 (A)

Real value equivalent3 (B) B in % of A

1974 Convention

46,666 SDR

World 1,322,534 SDR Developed Countr. 171,369 SDR Developing Countr. 38,896,111 SDR

2,834 % 367 % 83,350 %

1990 Protocol 175,000 SDR

World 539,583 SDR Developed Countr. 222,912 SDR Developing Countr. 1,736,458 SDR

308 % 127 % 992 %

Table 1

3 The inflation rates vary a great deal from country to country. 4 To get the full picture, exchange rates must also be taken into consideration. To the passenger, the SDR only has value insofar as it gives value in local currency. And to the carrier, a fixed limitation amount is of no use if it is increased all the time because of exchange rate fluctuations. This effect also varies greatly from country to country. 5 In many States, the awards for compensation for personal injuries have increased more than the average inflation, and for these States there is a need for an additional increase. For example, while personal injuries awards in Norway ten years ago rarely exceeded NOK 1 mill, the awards are now rapidly approaching NOK 10 mill without any significant change in legislation. 6 Some States may also have changed their healthcare system in such a way that medical expenses are no longer covered by that State without recourse (but by private companies that are likely to claim recourse). This may also call for an additional increase of the amounts for which a carrier is liable, independent of the general inflation rates. 7 Altogether, inflation indices do not provide much guidance in the revision of the limitation amounts. The disparate effects of the limitation system over time do however underline the need for the opt-out clause in the draft Convention article 7, paragraph 2; there must be a possibility to adjust the amounts nationally. 8 A more elaborated version of this discussion with calculations is found on <http://folk.uio.no/erikro/WWW/corrgr/insurance/inflation.doc > or <http://folk.uio.no/erikro/WWW/corrgr/insurance/inflation.pdf>. Insurance capacity 9 We have consulted all the leading brokers, and have found no broker that will maintain that there will not be insurance capacity for USD 2 billion in the commercial market (the market P&I Clubs use for reinsurance). For a compulsory insurance amount of SDR 350,000, only about 75% of this amount is necessary.4 10 Brokers indicate that insurance for wilful misconduct and with direct action in principle is available in the market. This is well known from aviation insurance. However, the larger the amounts and the more onerous the conditions, the more difficult to arrange insurance. If the

2 The nominal values of the 1976 Protocol, where SDRs were introduced, are used. 3 We have used consumer price indices from International Monetary Fund: International Financial Statistic

Yearbook 2001 pp 128-129. 4 Calculated on the basis SDR 1 = USD 1.32961 and 3000 passenger ships (few ships are larger than that).

- 3 - LEG/CONF.13/8


market is utilized to its maximum, there will be no competition among underwriters, and the premiums will increase. Insurance basis 11 The premium for the total reinsurance package of the P&I Clubs in the International Group, where passenger risks form but a very small part, is about USD 150 million. This reinsurance package covers about USD 2 billion. Considered the large numbers of passengers worldwide � ca. 800 million annually � there will be no problem to finance the insurance premium for the new compulsory insurance. 12 Not all passengers will necessarily fall within the scope of the prospective Convention, and the premiums will be affected by the new rules. However, one can safely say that additional cost for each passenger would not be prohibitive. If only half of all passengers contribute to a premium equal to the full P&I reinsurance premium for all types of ships today, it would still only be 38 cents per passenger. 13 Cruise passengers are a small fraction of the total number of passengers, ca. 12 million annually. In the different regions, the number of ferry passengers is distributed in this way:

Australia 20,019,161Baltic 161,527,590Black Sea 23,257Far East 223,073,381Japan 4,389,065Mediterranean 114.658,191North America 125,120,890North Sea incl UK 108,086,533Red Sea 1,079,535Russia Domestic 23,700,000South America 29,124,509Total 810,802,112

Table 2 14 The figures above are based on figures from ShipPax Information 2001. Further details and documentation can be found at <http://folk.uio.no/erikro/WWW/corrgr/index.html - ins>. P&I Clubs 15 The P&I Clubs have communicated to the Legal Committee that they would not necessarily offer to issue the insurance certificates required under the prospective Protocol, in particular if the limits on the compulsory insurance or the carriers� liability are high, if there is no wilful misconduct defence or if there is direct action to a too large extent. 16 Governments could respond to this by designing the system to particularly favor the clubs, or to set as a condition for licensing of the clubs that they issue compulsory insurance certificates under the prospective Convention. We believe that one should avoid interfering in the market in any of these ways. 17 It would certainly be desirable if the Clubs would participate in the insurance arrangements under the prospective Convention, at least for a part. Clubs are often rapid and liberal in claims handling, and are efficiently organized. But there are reasons to believe that they

LEG/CONF.13/8 - 4 -


will participate even without special favors. First of all, cross- subsidizing of passenger carriers could be prevented by new pooling rules. And secondly, the majority of shipowners that do not carry passengers will most likely wish to play together with passenger carriers in the reinsurance market rather than against them. 18 For us, it is important to emphasize that it is for the industry, and not for Governments, to decide what are the best way to arrange for the fulfillment of the new insurance rules for passengers. For Governments it suffices to see that it is possible to meet the requirements of the new rules. On the basis of consultations with brokers, we are confident that it is possible.

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CONSIDERATION OF A DRAFT PROTOCOL OF 2002 TO AMEND THE ATHENS

CONVENTION RELATING TO THE CARRIAGE OF PASENGERS AND THEIR LUGGAGE BY SEA, 1974

Wilful misconduct

Submitted by Australia and Norway


This paper argues that the insurer's wilful misconduct defence be removed from the compulsory insurance provisions.

Action to be taken:

Paragraph 16

Related documents:

LEG/CONF.13/3

Purpose of paper 1 The basic text of the draft protocol to amend the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974 (�the Convention�) includes provisions for compulsory insurance. However, Convention article 4bis, paragraph 10 contains an exception that the insurance shall be null and void if the incident has been caused by wilful misconduct of the carrier. The sponsors of this paper are of the opinion that the passenger should also have the benefit of insurance when the damage is caused by wilful misconduct of the carrier. Indeed, it is in these situations that the passenger is most likely to suffer loss. If the compulsory insurance regime established for the protection of passengers does not address loss resulting from the wilful misconduct of the carrier it would be incomplete. 2 In several great maritime disasters, such as the Herald of Free Enterprise and the Scandinavian Star, there was at one stage uncertainty whether the wilful misconduct defence would be invoked, and the passengers consequently be left without compensation. The sponsors of this paper find such uncertainty unfortunate. We do not think the involved Parliaments could have accepted that victims be left without compensation because of the wilful misconduct of the owner. 3 The need for an insurance cover � a �financial lifeboat� � that extends also to the wilful misconduct situations, is emphasized by the fact that there is no licensing system (except safety

LEG/CONF.13/9 - 2 -


controls) for international passenger trade. When anyone can run a ferry operation, the general public should at least be properly insured, even as regards dubious operators. Legal Committee 4 The issue has been raised in the Legal Committee.1 Since then, material facts have changed. In the following, these and other points raised in the Legal Committee will be addressed. 5 At the eighty-third session of the Legal Committee, the P&I Clubs indicated that the Club Boards would not be prepared to provide direct action certificates covering the wilful misconduct of the shipowner because:

(a) many Clubs were based in jurisdictions which provided by statute that this risk should not be covered;

(b) such legislation was incorporated into the Club Rules which formed the basis of

the contract with the member; and (c) as a matter of policy Club Boards would not wish to cover this risk since it would

be seen as providing protection to the sub-standard operator. 6 The willingness of most delegations to accept the inclusion of the defence of wilful misconduct was based on a number of considerations including;

(a) statements made by the representatives of the insurance industry to the effect that the industry would not cover wilful misconduct;

(b) the exclusion of the wilful misconduct defence might conflict with public policy

and the law in some jurisdictions which prohibited insurance from covering wilful misconduct;

(c) such a situation was unlikely to occur in the passenger ship industry and that

having the defence in the Convention would not undermine the overall objectives of the Convention; and

(d) the wilful misconduct exclusion would act as an incentive for carriers to maintain

a high level of safety in their operations to avoid risking the loss of insurance cover.

Availability of insurance 7 Since the discussions at the eighty-third session of the Legal Committee, the material facts have changed. A number of brokers have now confirmed that market insurance is in principle available also for wilful misconduct. In aviation insurance, this exception is unheard of, even for insurance amounts of USD 2 billion.2 This was not clear when the matter was considered last time at the eighty-third session of the Legal Committee, shortly after the incidents of 11 September 2001. That calls for a revision of the basic text. 1 LEG 83/4/3, paragraphs 14-16; LEG 83/4/5, paragraphs 14 et seq.; LEG 83/4/6, paragraph 17; LEG 84/4/7;

LEG 83/4/9, paragraphs 7-10; LEG 83/14, paragraphs 49-53. 2 See to this e.g. London Aircraft Insurance Policy

<http://folk.uio.no/erikro/WWW/corrgr/insurance/airpolicy.pdf> (large file).

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8 The P&I Clubs are not likely to offer insurance cover for wilful misconduct. In our view, this should not be decisive as long as insurance for this particular risk can be purchased elsewhere, and the alternative is that the passenger is left without cover in cases of wilful misconduct. Insurance for wilful misconduct could, for example, be fitted into the Clubs� reinsurance programme. Precedents 9 In the CLC, HNSC and the Bunkers Convention the wilful misconduct defence is available to insurers. However, even if that would be reasonable in case of pollution damage, where Governments are often the major claimant, that would not be reasonable in respect of passenger claims, where all claimants are individuals who have suffered bodily injury. 10 The wilful misconduct exception stems from the English Marine Insurance Act, 1906, s. 55.3 Although some States have adopted similar rules, it is far from universal.4 It is submitted that the Diplomatic Conference should not feel bound to follow English law in this matter. 11 The Montreal Convention for the Unification of Certain Rules for International Carriage by Air, 1999, article 50, does not address details of the insurance cover, and does not take a stand on the wilful misconduct defence. However, national implementations of this insurance requirement expressly prohibit the wilful misconduct defence.5 In motorcar insurance, it is believed to be considered unacceptable in most of the world to leave passengers without protection in cases of wilful misconduct by the driver.6 Certainty 12 It is very unclear indeed which conduct amounts to wilful misconduct. Already for reasons of certainty of law and foreseeability, the wilful misconduct defence should not be included in the Protocol. Public Policy 13 Admittedly, it would be undesirable from a public policy point of view if a shipowner could insure against the consequences of his own wilful misconduct.7 The rationale for the defence of wilful misconduct is to ensure that the assured does not benefit by wilfully causing its own loss. However, the issue here is whether the passenger should have the benefit of insurance even when the carrier has committed an act of wilful misconduct. The public policy consideration that the assured does not benefit by wilfully causing its own loss can not apply to passengers, who clearly have no influence or control over the conduct of the carrier.

3 See <http://www.jus.uio.no/lm/england.marine.insurance.act.1906/doc.html>. 4 See LEG 84/4/7, paragraphs 19-22. 5 See e.g. in respect of United States law Part 205 of Title 14 of the Code of Federal Regulations, see

<http://www.access.gpo.gov/nara/cfr/cfrhtml_00/Title_14/14cfr205_00.html>. 6 See e.g. in respect if the law of the European Community, Council directives 72/166/EEC art 3 and

84/5/EEC art 2 (<http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=31972L0166&model=guichett> and <http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=31984L0005&model=guichett>, respectively).

7 Notably, the above-mentioned English Marine Insurance Act, 1906, s. 55, is not mandatory on this point, and can therefore hardly be based on such policy considerations; see <http://www.jus.uio.no/lm/england.marine.insurance.act.1906/doc.html>.

LEG/CONF.13/9 - 4 -


14 Even if the wilful misconduct defence were not included in the Convention, this would not prevent a provider of compulsory insurance instigating recourse action against the carrier in cases of wilful misconduct. In that case, the carrier would not benefit from his wilful misconduct even if the passenger had his claim covered. Thus it is possible to protect the passenger and meet public policy considerations that the carrier should not benefit from his own wilful misconduct. 15 The objective of the Convention is to provide enhanced compensation and to make insurance for the benefit of passengers compulsory. The inclusion of the wilful misconduct defence undermines the objective of the Convention by restricting compensation to passengers in the event of wilful misconduct of the carrier. Passengers can only recover by suing the carrier, which may be bankrupt or disappear. Indeed, it is often for these reasons that a carrier may be motivated to engage in wilful misconduct in the first place. In these circumstances, public policy considerations clearly favours that the passenger should be protected despite the wilful misconduct of the carrier. Insurance practices 16 The clubs have been reluctant to invoke the wilful misconduct defence, and have not invoked it even in major incidents in which there could have been reasons to do so. This calls from the following observations from a government point of view:

• These insurance practices do not take care of the public policy argument that the carrier should not benefit from his own wilful misconduct. A point of public policy that regularly fails is not a good reason to maintain the wilful misconduct defence.

• The fact that clubs have been reluctant to invoke the wilful misconduct defence is no

guarantee that they will continue to be reluctant in the future. On the contrary, the fact that they insist on maintaining the defence and the reluctance of some clubs to cover passenger claims are clear indications that practices may be more restrictive.

• The fact that clubs do not invoke the wilful misconduct defence is not an indication that

other insurers will not do it. As the clubs seem more reluctant to cover passenger risks, it is likely that such other insurers will be more active in the market.

Conclusion 17 The sponsors of this paper propose that the wilful misconduct defence be removed from draft Convention Article 4bis, paragraph 10. A draft amended text is provided in the Annex.

***

LEG/CONF.13/9


ANNEX

CONVENTION ARTICLE 4BIS, PARAGRAPH 10 (IN PROTOCOL ARTICLE 5) SHALL READ:

�10 Any claim for compensation covered by insurance or other financial security pursuant to this article may be brought directly against the insurer or other person providing financial security. In such case, the amount set out in paragraph 1 applies as the limit of liability of the insurer or other person providing financial security, even if the carrier or the performing carrier is not entitled to limitation of liability. The defendant may further invoke the defences (other than the bankruptcy or winding up) which the carrier referred to in paragraph 1 would have been entitled to invoke in accordance with this Convention, but .Furthermore, the defendant may invoke the defence that the damage resulted from the wilful misconduct of the assured, but the defendant shall not invoke any other defence which the defendant might have been entitled to invoke in proceedings brought by the assured against the defendant. The defendant shall in any event have the right to require the carrier and the performing carrier to be joined in the proceedings.�

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Submitted by the International Chamber of Shipping (ICS)

SUMMARY

Executive summary:

This document states the views of the International Chamber of Shipping on the draft protocol to amend the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974

Action to be taken:

The Committee is invited to consider the comments and suggestions made in this submission

Related documents:

LEG/CONF.13/3; LEG/CONF.13/11; LEG/CONF.13/14

Introduction 1 The impetus to revise the 1974 Athens Convention stems mainly from a concern about the liability limits which have fallen behind contemporary consumer protection objectives, the 1990 Protocol not having entered into force internationally. There is also a desire to introduce a requirement for carriers to provide evidence of insurance coverage and to permit direct action against insurers on the grounds that this would ensure guaranteed recovery for passenger claimants in all but the rarest of circumstances. 2 The shipping industry supports the concept of consumer protection and therefore supports the adoption of a protocol to the Athens Convention which will strengthen the legal position of passengers. To this end, we fully support reasonable increases in the 1974 limits. 3 Regarding the proposals for compulsory liability insurance and direct action, the shipping industry has always believed that it is highly unlikely that any international operator is trading without cover and is unaware of any passenger claims that have not been compensated due to lack of insurance. Nevertheless, the industry agreed to support the proposals on the understanding that they would be attached to the well-known and understood liability system of the Athens Convention.

LEG/CONF.13/13 - 2 -


4 As the discussions progressed, however, additional proposals were advanced which sought to alter the Athens Convention liability regime radically and threatened the use of traditional insurance arrangements as a means of compliance with the proposed insurance requirements. 5 The shipping industry believes that the objectives of the Protocol can best be fulfilled by utilisation of the P&I Club system. P&I Clubs are funded and operated by their (often longstanding) shipowner members, are cost effective and, as mutuals, do not have to provide shareholder returns. The Club system also provides effective claims handling arrangements where expertise has been developed over many years in responding to the specialist demands of settling liability claims to the satisfaction of claimants. We firmly believe that the interests of both passengers and carriers will best be served by the introduction of insurance requirements which can be met through use of the P&I Club system, the long-term sustainability of which has been demonstrated. 6 A number of difficult compromises have been agreed in the Legal Committee with the assistance of the shipping industry, (we refer to some of these below) and we would caution against reopening the discussions on those issues at the Diplomatic Conference. 7 We offer the following comments and suggestions in the belief that they will assist in achieving a balanced revised Convention which will be workable in practice and acceptable to all affected interests. Early and widespread ratification would accordingly be encouraged. Basis of liability and burden of proof 8 We would urge against reopening the debate on the liability system proposed in the draft protocol. The shipping industry has consistently argued against the introduction of liability provisions modelled on the Montreal Convention (including strict liability) because of the factual differences between the two modes of transport. It is not possible to compare air transport with ferry travel or cruise holidays. The separate passenger liability systems have been developed in recognition of the differences between the modes which prevent standardisation. 9 Nevertheless, the industry has reluctantly agreed to support the compromises reached during the Legal Committee discussions and reflected in the liability provisions of the draft Protocol (Article 4 (to be incorporated in the Convention as Article 3)). �Act of terrorism� defence 10 We propose that the present war risk defence in Article 4 of the draft Protocol (to be incorporated in the Convention as Article 3(1)(a)) be extended to include terrorist acts. The revised text would read as follows: �Article 4 Article 3 of the Convention is replaced by the following text: 1 For the loss suffered �.. (a) resulted from an act of war, hostilities, civil war, act of terrorism, insurrection, or a natural phenomenon of an exceptional, inevitable and irresistible character; or ��

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11 It could be argued that acts of terrorism fall within the existing defences in Article 3(1) (a) and (b) of the Convention. However, for the sake of clarity, the Convention should contain an express reference to terrorism in view of the difficulties in obtaining insurance for this risk following the events of 11 September. 12 Shipowners� P&I Club cover excludes claims arising from acts of terrorism because the Clubs are unable to obtain reinsurance for such risks from the commercial market. Accordingly, unless this amendment is made it will not be possible for carriers to comply with the compulsory insurance provisions of the draft protocol (Article 5 (to be incorporated in the Convention as Article 4bis, paragraph 1)) in relation to claims arising from acts of terrorism. (War risk insurance may be available but only to relatively low limits.) Definition of �defect in the ship� 13 We support the definition of �defect in the ship� contained in Article 4 of the draft Protocol (to be incorporated in the Convention as Article 3(5)(c)). We can also support the refinement suggested by the International Council of Cruise Lines (ICCL) in document LEG/CONF.13/14. Limitation and compulsory insurance 14 As is customary, the liability figures have been left to the Diplomatic Conference to decide. However, industry�s ability to comply with the new requirements very much depends on the amounts. 15 We firmly believe that the interests of both passengers and carriers will best be served by the introduction of requirements which can be met through use of the P&I Club system. 16 While co-extensive shipowner liability and direct action against insurers would be preferable, there was great disparity in the figures suggested during the Legal Committee�s discussions and the Clubs have indicated that the mutual system would be unable to accommodate very high figures by way of direct action. 17 In addition, the proposal that States Parties may set higher limits or provide for unlimited liability in their national laws gives rise to considerable problems. The �opt-out� provision militates against the objective of a harmonised regime for international application. It would lead to claims being determined by location, the possibility of identical claimants receiving different treatment, a growth in forum shopping and delays in settlement. Insurers have a need for certainty of risk exposure and the prospect of varying levels of liability in different jurisdictions would deprive them of that certainty. 18 In the interests of achieving a system which protects the interests of passengers and will be workable in practice and sustainable in the long-term, the International Chamber of Shipping recommends that the following structure be considered: • The carrier�s maximum liability for passenger death and personal injury claims should be set

at a reasonable amount and the carrier should be required to provide evidence of financial security (such as a P&I Club certificate of entry) for that amount.

• The carrier�s maximum liability should be certain to enable compliance with the requirement

to provide evidence of financial security and in the interests of international uniformity.

LEG/CONF.13/13 - 4 -


Accordingly, the proposal that States Parties may set higher limits or provide for unlimited liability in their national laws should be rejected.

• Claimants should have rights of direct action against the insurer for a tranche of the carrier�s

maximum liability. Direct action will place an additional and heavy burden on the Club system because it will require Clubs to act as guarantors rather than indemnity providers. Accordingly, the direct action component will need to be less than the carrier�s maximum liability which would be covered by the well known indemnity arrangements.

19 The P&I Club system has responded to passenger liabilities over many years. The Clubs have vast experience and an excellent reputation for their handling of passenger claims. It is well known that policy defences are sometimes waived and ex gratia payments made in the interests of prompt and appropriate settlement of these highly sensitive claims. 20 The degree of flexibility afforded by the current arrangements has been central to their success and there is a real risk that well-intentioned efforts to formalise certain aspects and introduce new requirements could result in restrictions which would be to the detriment of claimants. 21 Some $4.25 billion of cover per incident is currently available thanks to the mutuality and reinsurance arrangements of the International Group. In the event of a catastrophic incident requiring access to the full extent of available cover, about $2 billion would be provided by the Group�s reinsurers and the balance would be provided by all shipowner members of International Group Clubs. 22 The Clubs have previously indicated that they wish, if at all possible, to maintain this stretch of cover while at the same time accommodating an increase in the 1974 limits and an element of secured cover (direct action). 23 However, the proposals in the draft Protocol to permit direct action against the Clubs (and other insurers) to the full extent of the carrier�s liability under the Convention paradoxically could result in the amount of available cover being significantly restricted if the figures are too high. This follows from the fact that direct action would represent a shift away from the current indemnity arrangements. The Club system is based on the indemnification of members who are paid from mutually shared funds. Direct action, on the other hand, amounts to an anticipatory guarantee. 24 The very high figures proposed by some administrations have served to focus the minds of non-passenger ship operators on the risks of continuing to participate with passenger carriers in the International Group of P&I Clubs� pooling arrangements. Passenger carriers account for less than 5% of the tonnage entered in the Clubs but would present a massive concentration of exposure to the membership as a whole if the limitation and insurance proposals advanced by some administrations were adopted. To address this potential imbalance, non-passenger ship operators have proposed that Club cover for passenger liabilities be restricted. 25 Accordingly, the expectations of some administrations could result in less cover being available for passenger claimants than exists under the current insurance arrangements and the loss of the current claims-handling system. This would be a most unfortunate outcome and it is unlikely that commercial underwriters would be enthusiastic about filling any void. 26 If the P&I Clubs decided to restrict their cover for passenger liabilities, it is unclear to what extent commercial underwriters would be prepared to cover any excess liabilities and

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whether they would do so on a direct action basis. The commercial market is driven by profit and is extremely volatile. Capacity expands and shrinks in response to rates and claims. The interests of passengers would not be protected by reliance on a product which may only exist until the first major claim. In addition, it is not known where the infrastructure for handling claims in excess of the Clubs� liabilities would come from. Even if additional insurance were to be available from the commercial market, the structure would be entirely different from the conditions and cost basis of the underlying P&I cover so that the two would not fit together in a satisfactory or workable format. 27 We firmly believe that the interests of passengers would be best served by reliance on the tried and tested Club system, the long-term sustainability of which has been demonstrated. Wilful misconduct 28 Following extensive debate, the Legal Committee agreed that the insurer�s defence of wilful misconduct of the assured should be retained and we would urge against reopening this issue at the Diplomatic Conference. 29 Passengers are unlikely to suffer as a result of the defence being retained because it is unlikely that it would ever be invoked. In reality, it is difficult to contemplate a wilful misconduct scenario involving a passenger ship. 30 Wilful misconduct is tantamount to a deliberate criminal act. The most obvious example in the marine insurance context is the deliberate scuttling of a ship to claim the proceeds of the hull insurance policy. The insurer�s defence gives effect to the general rule of public policy that no-one should be permitted to profit from the consequences of criminal conduct and also to the general rule of insurance law that an assured cannot recover when he has deliberately caused a loss. 31 The defence is only applicable to wilful misconduct of the assured. In other words, the conduct must be committed by the assured personally or, in the case of a corporate assured, by an alter ego. Wilful misconduct of the master or crew, without the complicity of the assured, would be covered by the P&I Clubs and they would be subject to direct action under the proposed Protocol. 32 Within the mutual system it is extremely difficult to introduce a system whereby responsible ship operators would pay for the wilful misconduct of their competitors. 33 In jurisdictions where the Marine Insurance Act 1906 or its equivalent apply, commercial underwriters are unable to contract out of the exemption from liability for losses attributable to the wilful misconduct of the assured. 34 Finally we note that the defence is allowed in the Civil Liability, Bunker Oil and HNS Conventions and that the latter Convention includes liability for loss of life and personal injury. Conclusion 35 The International Chamber of Shipping requests the Diplomatic Conference to take these comments into account during its deliberations.

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CONSIDERATION OF A DRAFT PROTOCOL OF 2002 TO AMEND THE ATHENS CONVENTION RELATING TO THE CARRIAGE OF PASSENGERS ANDTHEIR


Insurance limits, definition of "defect in the ship" and wilful misconduct

Submitted by the International Council of Cruise Lines (ICCL)


This submission outlines the concerns of the ICCL, whose members represent approximately 95% of the worldwide deep-water overnight passenger cruise industry, regarding the insurance aspects of the draft protocol and the definition of "defect in the ship" for the purposes of strict liability.

Action to be taken:

Delegates are encouraged to adopt achievable insurance requirements, thereby protecting consumers without penalizing vessel operators or bringing about the unintended restriction of current insurance capacity. Delegates are also encouraged to ensure that strict liability is limited to marine casualties and not applied to mishaps arising in hotel-related operations of passenger ships.

Related documents:

LEG/CONF.13/3; LEG/CONF.13/4; LEG/CONF.13/9; LEG/CONF.13/11; LEG/CONF13/13

Introduction 1 The International Council of Cruise Lines (ICCL) fully supports the original goals in adopting a new protocol: higher levels of compensation and the introduction of compulsory insurance. The Legal Committee has forged many additional and well-intentioned passenger protections in the process. These include strict liability for shipping incidents and vessel �defects�, a longer statute of limitations, expanded venues for suits, direct actions against insurers, and mandatory waiver of coverage defences. 2 The draft protocol now sets a standard for passenger vessels far beyond any comparable industry, including railways and airlines. The cumulative effect has caused considerable concern in the marine insurance industry, especially among the International Group of P&I Clubs. The

LEG/CONF.13/14 - 2 -


majority of the Clubs� members are non-passenger operators who will be expected to insure mutually the protocol�s regime. They believe the direct action component, in particular, creates a disproportionate concentration of risk in the passenger ship sector. Club Boards and the International Group as a whole have therefore been forced to consider restricting the level of insurance their members will make available to passenger vessels. The backlash raises a serious question of adequate capacity in the insurance market to fulfil the protocol�s requirements. 3 For these reasons, administrations are asked to consider limiting direct action (a new precedent in the international carriage of passengers) in amount and application. A compromise is deemed essential to create an acceptable balance that allays the concerns of the world�s non-passenger ship owners. Their agreement to underwrite the liabilities of the protocol will guarantee the highest and most reliable insurance protection available. 4 When evaluating this submission, delegates are asked to be cognizant of the substantial number of trivial claims against passenger vessels that arise in the same manner as in any shore side hotel, restaurant, theme park or resort (sprained ankles, injured fingers, trips and falls etc). Delegates should also be mindful of the significantly less onerous insurance requirements applied to all other common carriers. Comparison to claims and insurance in other industries 5 Coverage provided by the P&I Clubs for passenger ships is already significantly higher than that required for airlines or trains. As stated by Willis, one of the leading insurance brokers, in its paper analysing the draft protocol: �The International Group of P&I Clubs offers the highest limits currently readily available to any transport industry...which equates to between US $4.25 and 4.5 billion... The additional capacity is provided essentially by the world shipping industry, by a mechanism of retroactive additional premiums...The International Group reinsurance program is the largest single marine contract currently in the market.� On the largest ships carrying approximately 3,500 passengers and 1,000 crew, existing club cover therefore already equates to at least US $1 million per person on board in the worst possible case ($4.5 billion ) ÷ 4,500). Statistics demonstrate that the average cost of shipboard claims is magnitudes lower than this amount, and much less than the average cost of airline claims where most accidents are fatal. Airline Comparison 6 Despite the higher average cost of airline claims, the Montreal Convention does not contain any requirement for direct action nor waiver of any policy coverage defences. Article 50 merely allows States to require proof of adequate coverage. 7 The standards for aviation insurance enacted in the EU and US are minimal by comparison to what has been proposed in the Athens protocol, both in amount and form. EC Resolution ECAC/25-1, adopted on 13 December 2000, sets a minimum of SDR 250,000 insurance per passenger. There is no restriction on coverage defences. United States law requires airlines to maintain $300,000 total coverage per passenger, for only 75% of the number of seats on each aircraft. (14 C.F.R. §205(b)(2)). This requirement can be satisfied by an airline�s own self-insurance plan without any outside coverage whatsoever. (14 C.F.R. §205.3(a)). A limited prohibition on coverage defences applies merely to the minimum insurance tier, so aviation

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insurers are free to invoke all policy defences for amounts in excess of $300,000. (14 C.F.R. §205.6 (a)). 8 By contrast, the draft protocol would require insurance as high as SDR 500,000 per capita with right of direct action in every case and waiver of all coverage defences except wilful misconduct of the assured. A shipowner also faces unlimited liability under the proposed opt-out clause, which would be indemnified via existing P&I coverage to an enormously higher limit. These discrepancies place vessel operators at a substantial competitive disadvantage without any apparent justification. Rail Comparison 9 The current limit for injury or death in international carriage of rail passengers under the Convention relative aux transports internationaux ferroviaires (�COTIF�) is only SDR 70,000. The Vilnius Protocol of 1999 adopted a revised limit of SDR 175,000. No insurance requirements are specified, let alone any comparable to the draft Athens protocol. A passenger on a cross-Channel ferry would thus be entitled to seek almost three times the damages of a passenger on the Eurostar (assuming a per capita limit of SDR 500,000 without applying the opt-out clause). The ferry passenger would also be able to sue the insurer directly, even for a mere trip and fall, and be immunized from any coverage defense. Other Maritime Comparisons 10 None of the conventions governing the operations of tankers or chemical carriers combine the stringent liability standards and high limits with the insurance requirements found in the draft protocol, even though a disaster involving such ships in any major port likely creates far greater catastrophic exposure. 11 According to the Global P&I Mid-Year Review published this past month by Aon, another of the world�s largest brokers, �[T]he International Group has expressed concern that, unless the revised limits are manageable, the P&I coverage for passenger vessels may have to be capped or even excluded. This concern has prompted Marsh and Willis publicly to enter the debate and, inter alia, highlight potential capacity shortfalls in the event of a passenger catastrophe claim... [I]t is increasingly likely that a cap on passenger claims (possibly at US $1 billion) could happen sooner rather than later, and even by the 2003 renewal.� This backlash effect is underscored in paragraph 4 of the submission of the International Group of P&I Clubs, LEG/CONF.13/11. 12 The unprecedented insurance proposals are having the unintended consequence of restricting the coverage now available for passenger vessel claims. Other than making insurance compulsory, no explanation has been advanced for enlarged insurance requirements for passenger ships, such as direct action with commercially impractical limits. ICCL urges delegates to solve this serious problem by adopting a reasonable compromise with regard to the direct action component. Insufficient Insurance Capacity Outside the Clubs Warrants A Limit on Direct Actions 13 Thoughout history the P&I Clubs have provided the necessary insurance protection for marine passengers within a workable and practical mutual system. The Club approach efficiently

LEG/CONF.13/14 - 4 -


spreads the loss exposure over a worldwide fleet of commercial blue water vessels in a highly cost-effective manner. This system has never exhibited signs of failure nor uncertainty. 14 For these reasons, among many others, ICCL supports the proposal advanced by the International Group of P&I Clubs to limit direct actions to an amount not to exceed SDR 100,000. Adopting a reasonable limit on the amount of direct action will help ensure passenger vessels can continue to be insured through the time-tested mutual system offered by the P&I Clubs, whose broad-based membership can provide the highest and most reliable coverage available in the world. Wilful misconduct of the Assured should be retained as a defence to direct actions 15 ICCL respectfully joins in the comments offered by the International Chamber of Shipping and the International Group in their submissions on this issue. No other international convention deprives an insurer of this defence (and those governing international carriage of passengers do not prohibit any coverage defences). ICCL�s members� own experiences verify that the P&I Clubs already cover wilful misconduct committed by the master or crew without the assured complicity. Wilful misconduct of the ship owner himself is the only instance in which the Clubs� rules prohibit coverage. The existing definition of �defect in the ship� should be retained 16 ICCL submits that the present definition in the draft protocol is clear and creates an appropriate distinction between those cases that warrant application of strict liability and those that do not. Respectfully, any change at this juncture should be undertaken with great caution. Distinctions based on the ship�s �structure� or �normal operation� are open to inconsistent interpretation aboard vessels offering countless amenities. Without careful wording, even including fire protection equipment within the reach of strict liability could result in a passenger claiming that tripping over a fire door threshold while intoxicated resulted from �defective� design. Accordingly, ICCL proposes the following amendment, if any (new language shown in bold): �Defect in the ship� means any malfunction or failure in any part of the ship or its equipment when used for passenger escape, embarkation, disembarkation or fighting fire, or used for propulsion, steering, safe navigation, mooring, anchoring, leaving a berth or anchorage, flooding safety, stability, and the operation of emergency boat winches.� The phrase �or fighting fire� clearly encompasses alleged defects in sprinklers or any other anti-fire equipment when being relied upon for that purpose. Action Requested of the Conference 17 ICCL submits these views for consideration at the Diplomatic Conference so that a workable protocol with increased compensation and compulsory insurance can be agreed and ratified.

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ORGANIZATION OF THE WORK OF THE CONFERENCE, INCLUDING THE

ESTABLISHMENT OF OTHER COMMITTEES, AS NECESSARY

Note by the Secretariat

SUMMARY

Executive summary:

This document outlines a proposal on the work programme and the schedule of meetings for the Conference on the revision of the Athens Convention and the 85th session of the Legal Committee, aimed at making best use of the time allocated for both the Conference and the Committee.

Action to be taken:

Paragraph 18

Related documents:

LEG 84/13/2.

I Introduction 1 In accordance with the recommendation to the Council by the Legal Committee at its eighty-third and eighty-forth sessions, the International Conference on the Revision of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974 and the eighty-fifth session of the Committee have been convened back-to-back, during the period 21 October to 1 November 2002.

2 This document outlines a proposal on the work programme and the schedule of meetings for the Conference and the eighty-fifth session of the Committee. The proposal aims at making best use of the time and resources available for both the Conference and the Committee and is based on past practice by the Maritime Safety Committee (MSC) and the Marine Environment Protection Committee (MEPC) in scheduling committee meetings and diplomatic conferences in conjunction with each other. 3 Based on that experience, as recommended by the Legal Committee at its last session, the Conference has been convened for the weeks beginning 21 October 2002. The Conference would be held in conjunction with the Legal Committee during the two weeks ending on 1 November 2002. In order to bring the Conference to a successful conclusion, some of the time allocated for the Legal Committee will be given over to the Conference, which will result in a shortened session of the Committee. To facilitate a more flexible use of time some sessions of the Conference will be interspersed with the proceedings of the Committee.

LEG/CONF.13/12 - 2 -


4 The main arrangements for the Conference are summarized in the following paragraphs. II Structure 5 In addition to the Plenary, the Conference will have a Committee of the Whole to consider a draft Protocol of 2002 to amend the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974 (document LEG/ CONF.13/3). 6 There will also be a Drafting Committee to take care of the drafting of all the texts to be adopted by the Conference. 7 A Credentials Committee will consider the Credentials of the representatives of Governments participating at the Conference. 8 These suggestions have been embodied in the relevant rules of the Provisional Rules of Procedure which are before the Conference in document LEG/CONF.13/2 (rules 4, 44 and 45). 9 The Plenary and the Committee of the Whole may establish other bodies as they consider necessary. 10 Having regard to these suggestions, the Conference may wish to consider and adopt a structure along the following lines:

(a) a Plenary presided over by the President, or in his absence by one of the Vice-Presidents;

(b) a Committee of the Whole, with a Chairman elected by the Plenary and two

Vice-Chairmen, elected by the Committee itself. The Committee of the Whole will be open to all delegations;

(c) a Drafting Committee composed of not more than nine members appointed by the

Plenary on the proposal of the President, with a Chairman appointed by the Plenary. The Drafting Committee will elect its own Vice-Chairmen; and

(d) a Credentials Committee composed of five members appointed by the Plenary on

the proposal of the President. The Credentials Committee will elect its own Chairman.

III Interpretation and records of decisions 11 The official languages of the Conference (for interpretation during meetings of the Plenary, the Committee of the Whole and the Drafting Committee) will be Arabic, Chinese, English, French, Russian and Spanish; and the working languages (for the production of documentation) will be English, French and Spanish. 12 The Conference will operate with only one team of interpreters at any particular time during the meetings of the Plenary, the Committee of the Whole and the Drafting Committee. This means that only one meeting requiring interpretation can be held at any one time. The Credentials Committee will operate without interpretation.

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13 Due to budgetary constraints summary records will not be produced for any meetings of the Conference. However, records of decisions of meetings of the Plenary and the Committee of the Whole will be produced and issued during the Conference. IV Organization of work and schedule of meetings 14 On the basis of the structure proposed above and the facilities available it is suggested that the work of the Conference be organized as follows:

(a) the morning of the opening day of the Conference (21 October) will be devoted to the consideration of organizational arrangements. This will take place informally at the meeting of Heads of Delegations and subsequently at the inaugural session of the Plenary to elect the officers and to establish the various committees;

(b) the Committee of the Whole will commence its work in the afternoon on the

opening day. It will continue its work on Friday, 25 October, and thereafter in the morning of Monday, 28 October, after coffee break in the afternoon of the same day, in the afternoon of Tuesday, 29 October and on Wednesday, 30 October;

(c) the Drafting Committee will meet in the mornings of Tuesday, 29 and Thursday,

31 October;

(d) the Plenary will be reconvened in the morning of Friday, 1 November to consider the reports of the Committee of the Whole, the Credentials Committee and the Drafting Committee and to adopt the treaty instrument resulting from the work of the Committees. The Plenary will also adopt the Final Act of the Conference for signature by the representatives of States participating at the Conference. Due to time constraints, any treaty instrument adopted by the Conference will be open for signature on a date subsequent to the end of the Conference.

(e) the Credentials Committee will meet in the afternoon of Wednesday, 23 October.

15 The work programme and the schedule of meetings proposed above is presented in the annex to this document. V Meetings of Heads of Delegations 16 It is proposed that, in accordance with usual practice, a meeting of Heads of Delegations be convened prior to the formal opening of the Conference in order to discuss certain organizational and procedural questions. The conclusions reached by the Heads of Delegations will be reported by the Secretary-General to the Plenary for consideration and adoption. Accordingly a meeting of Heads of Delegations has been scheduled to be held at 10.00 a.m. on Monday, 21 October 2002. VI Eighty-fifth session of the Legal Committee 17 Based on the proposals in paragraph 14 above, it is suggested that the Legal Committee meet on Tuesday, 22 October, Wednesday, 23 October and on Thursday, 24 October. The Committee would then reconvene for the consideration and adoption of its report in the afternoon of Monday, 28 October.

LEG/CONF.13/12 - 4 -


VII Action requested of the Conference 18 The Conference is invited to consider the information and suggestions in this document and to take such other decisions as it may deem appropriate.

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LEG/CONF.13/12

ANNEX WORK PROGRAMME AND SCHEDULE OF MEETINGS

21 October � 1 November 2002

FIRST WEEK

SECOND WEEK

CONFERENCE BODIES

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WED 30 OCT

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1 NOV

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PLENARY

COMMITTEE OF THE WHOLE

CREDENTIALS COMMITTEE

DRAFTING COMMITTEE

LEGAL COMMITTEE 85TH SESSION

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Limits on direct action

Submitted by the International Council of Cruise Lines (ICCL)


This submission outlines two proposed restrictions on the availability of direct actions under the draft protocol. Specifically, these proposed restrictions are intended to avoid serious litigation abuses caused by the naming of insurers in cases arising from every trivial mishap aboard passenger vessels and also in cases when the carrier is solvent and has properly responded to the claim.

Action to be taken:

Delegates are urged to adopt reasonable limits on the ability of claimants to name insurers in every single case, regardless of circumstances, so that passengers aboard vessels enjoy an adequate level of protection without unfairly penalising vessel operators or their insurers. These limits are particularly important given the unprecedented nature of direct actions in the international carriage of passengers, the high volume of trivial claims and the resulting adverse effect on insurance capacity.

Related documents:

LEG/CONF.13/3; LEG/CONF.13/11; LEG/CONF.13/13

Introduction 1 The proposal for direct action in the draft protocol is of a magnitude significantly beyond any insurance scheme previously devised. Insurance guarantees required in the context of pollution or hazardous substances involve a very limited number of casualties and claims asserted annually in the few jurisdictions where they arise. By stark contrast, the draft protocol would spawn a potentially unlimited volume of claims in virtually all jurisdictions, tied to the estimated 1 billion passengers carried on international itineraries each year. Without some rational limit on the availability of direct action, insurers and the courts would be literally inundated with such claims. Mishaps in shipboard restaurants, casinos, lounges, showrooms, and

LEG/CONF.13/15 - 2 -


recreation areas would all give rise to direct action, even though shore side claims arising in these contexts do not. Limits on availability of direct action should be adopted to prevent litigation abuse and ensure sufficient insurance capacity 2 Many expert in the insurance industry predict that if the draft protocol, is adopted in its present form, traditional insurance coverage may be capped or restricted by the P&I Clubs. This would leave operators to develop some additional type of insurance not in existence today. The very strength of the mutual system is its diversity and the ability of a wide array of ship owners to pool their collective risks. Bulkers, container and chemical ships, oil tankers, and even LNG carriers spread their substantial risks amongst large passenger vessels and vice-versa, creating high capacity and stability. Forcing passenger operators to conjure an unprecedented form of new insurance (with waiver of defences and dollar-for-dollar direct action for every claim) assumes that which is neither feasible, practical, nor in the long-term interest of the travelling public. 3 An important criterion for any insurance is sustainability of cover. Mutual insurance available through the Clubs is uniquely reliable because member ship owners have a stake in the future of shipping. The Clubs are not operated for profit. Commercial market underwriters, whose investors have no such interest and are motivated solely by profit, are not likely to be as responsive to claims in the long term. Industry experts uniformly doubt market insurers can or will provide enduring coverage with unrestricted right of direct action in an uncertain risk environment. Many national laws prohibit individual insurance companies from exposing more than 10% of their net assets to any one risk. No insurer has indicated a willingness to provide the form of coverage contemplated by the draft protocol at any cost. Even if the necessary insurance could be pieced together through many different insurers, each would have to provide a guarantee and be named in direct actions by passengers, creating a logistical quagmire. 4 All parties studying the insurance issues recognize the problem of finding any viable alternative to the P&I Clubs, particularly for the form of proposed coverage. In a paper entitled �An Opinion on the Feasibility of the Prospective Protocol to the Athens Convention Being Met�, circulated to the Correspondence Group by BankServe Insurance Services Limited, the author concedes:

�Establishing a new insurance to take just one of the liability risks, otherwise covered by the P&I Clubs, will be very expensive. The reason centers on the handling and processing the many attrition claims from the ground up involving serious administrative and claims handling costs, as well as legal costs. This and the exceedingly high levels of specific reinsurance required to meet a catastrophic loss may require the setting up of a new dedicated insurance company that could run foul of US antitrust laws and EU commissioners at DG COMP, formerly DGIV.�

5 The Norwegian delegation circulated a �Report of the Intersessional Liaison with Insurers, Brokers, Etc., on the Athens Convention� on April 12, 2002, acknowledging under the heading �Insurance Capacity�:

�Brokers indicate... insurance is not offered today at the levels that are likely to be required under the prospective Convention...Some brokers have been concerned with the durability of [non-Club] insurance: Underwriters may withdraw after the first really major incident.�

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6 Marsh and Willis, two of the world�s largest and most respected marine brokers, have issued detailed papers outlining many problems with the protocol�s requirements. Willis� paper states:

�There are three principal ...difficulties which would present potential problems, whether or not the current market was a mutual or commercial one. (1) Right of direct action against the insurer. (2) Waiving of cover defenses under the insurance policy. (3) Very high compulsory limits. Each of these significantly increases the difficulties of an effective insurance solution and each limits the availability of insurers able to participate...

The amount of capacity ...would require the participation of the vast majority, if not all of the world insurance market able to write such risks. Notwithstanding this, it is very questionable whether it would be possible at all, regardless of cost, to offer such limits...The guaranteed levels of limit proposed would exceed any known insurance market capacity to fulfill the insurance requirements over a sustained period.�

Marsh adds:

��[T]he separate insurance of passenger ship liabilities arising from the new protocol would in our view be subject to all the problems BankServe has identified and at least one more. This is the availability of insurance capacity in absolute terms and specifically to respond to the relatively very onerous terms (compared to the Montreal Convention, for example)....�

7 Naming insurers as parties in every single lawsuit, large or small, will create a superfluous administrative burden, subjecting underwriters to all the typical litigation pitfalls (answering pleadings, depositions and subpoenas; attending court hearings in countless jurisdictions, etc.). Legal proceedings would become unnecessarily complex and costly, and would drain judicial resources without a rational basis. A claimant�s ability to sue multiple parties for every alleged mishap will undoubtedly encourage abuse. 8 To ICCL�s knowledge, no insurance requirements similar in cumulative effect to those of the draft protocol have ever previously been implemented in any industry, especially coupled with strict liability and potentially unlimited recovery. Hypothesizing the mere existence of insurance capacity at some future time does not mean the form of required insurance can ever be found. 9 For these reasons, ICCL suggests two important limits on the availability of direct action, so the existing and tested system of insurance provided by the Clubs, with US $4.25 to 4.5 billion in available coverage, can endure in the passenger vessel industry:

(i) permit direct actions only in shipping incidents or claims arising from vessel defects (as defined), to prevent the anomaly of passengers joining insurers in lawsuits for every trivial mishap; and

(ii) permit direct actions only when actually needed--if the carrier is insolvent or

otherwise unable or unwilling to answer a claim. 10 To effect these limitations, ICCL proposes the following amendment to paragraph 10 of Article 4bis of the draft protocol (new language shown in bold italic):

LEG/CONF.13/15 - 4 -


�Any claim for compensation arising from a shipping incident or defect in the ship as defined in this protocol, which is covered by insurance or other financial security pursuant to this article, may be brought directly against the insurer or other person providing financial security. However, such direct action shall be brought only in the event the carrier is insolvent or otherwise unable or unwilling to answer the claim. In such case, the amount set forth in paragraph 1 applies��

11 Even with these compromises, passenger claims would continue to be secured by compulsory insurance to the full limit of the Club system, an amount far greater than in all other international carriage. The protocol would still impose requirements well beyond any comparable regime. Action requested of the Conference 12 The ICCL respectfully asks administrations to consider adopting these modest limits on the availability of direct actions to prevent claimants from using the remedy when it is neither necessary nor warranted, thereby avoiding litigation abuses and wasted resources of the parties and courts.

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LEG/CONF.13/17 2 October 2002 Original: ENGLISH



Direct liability of insurers

Submitted by the Comité Maritime International (CMI)

SUMMARY

Executive summary:

In this paper the Comité Maritime International seeks to give some background to the issue of direct action against the insurers of shipowners' liability for passenger claims.

Action to be taken:

The Conference is invited to consider the information contained in this paper.

Related documents:

-

1 In the draft protocol of 2002 to amend the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974, to be considered at a Diplomatic Conference in October 2002, it is proposed to introduce direct action against the carrier�s liability insurer by personal injury claimants. Liability to passengers is, in the case of most passenger ship owners, insured by the Protecting and Indemnity Association (�P and I Club�) in which the ship is entered. The International Group of P and I Associations (�International Group�) has opposed the introduction of such provisions. 2 It has been suggested that a short paper from the Comité Maritime International (CMI) may assist delegates in understanding the issues involved in the opposition to the proposal for direct action. The CMI is an international association of National Maritime Law Associations which includes in its membership lawyers regularly acting for both claimants and respondents in personal injury cases, as well as for passenger ship owners, P and I Clubs and insurers of all marine risks. The object of the CMI, according to its constitution, is ��to contribute by all appropriate means and activities to the unification of maritime law in all its aspects.� 3 In giving its comments, the CMI wishes simply to provide some background to the opposition to the proposed right of direct action for passenger claims. However, the organisation does not wish to take a position for or against such direct action, nor does it seek to comment on the issue of limited liability for such claims, or the amount of any such limit.

LEG/CONF.13/17 - 2 -


The existing arrangements 4 The P and I Clubs, which cover most passenger ships for liabilities to passengers, are all similar in structure. Each is a mutual insurer which indemnifies its assured (called a �member�) for legal liabilities which it has become liable to pay and has paid, which are within the range of insured risks covered by the Club. The income of the Club consists of payments (called �calls�) which are levied on the members, partly in advance of the policy year (�advance calls�) and partly after the end of the policy year, when the claims falling on the membership of the club for that year become known (�supplementary calls�). Since the nature of claims covered by the Clubs is that they take some time to come forward, and take a significant time to settle, there may be more than one supplementary call for any one policy year, or indeed none at all if the advance calls prove sufficient. 5 Some Clubs have introduced in recent years a �Mutual premium� which includes the advance and anticipated supplementary calls and which is payable in staged payments, but the fundamentals, and the ultimate liability of members to contribute to a major disaster which exceeds the pool and reinsurance cover (see below), remains the same. This simple model demonstrates the fundamental structure of the P and I Club insurance system. In reality it is much more complex. The International Group of P and I Clubs 6 This is an association of the largest Clubs based in London (plus three in Scandinavia, one in Japan and one in the USA) which pools the excess of any one claim (currently US$5m) and buys reinsurance in the world market for the excess over the pool limit (currently US$30m up to US$1.5bn) - this is the largest reinsurance contract in the world.

7. The International Group also represents the interests of the P and I Clubs (and their shipowner members) at an international level including the International Maritime Organization (IMO).

8 Some substantial Clubs exist in London, and elsewhere, which are not members of the International Group. P and I cover can be purchased from them and other insurers, usually for a fixed premium with fixed, usually much lower, limits than those provided by the mutual Clubs.

9 The International Group Agreement has long been under scrutiny by the Competition Directorate of the European Union (EU) as being in restraint of free competition in insurance matters. A ten-year exemption was granted in about 1987 but its renewal was the subject of intense debate. It was finally accepted that the Group Agreement was not in breach of European Commission (EC) principles after some minor changes were made to the Clubs' accounting principles.

Other reinsurances and reserves 10 In addition to the reinsurance arrangements concluded in and through the International Group, each P and I Club has its own reinsurance arrangements specific to the needs of its membership. Such reinsurances may cover liabilities below the level at which the International Group pooling arrangements become involved, or above the level of the International Group reinsurance cover. In addition to reinsurance arrangements it is usual for P and I Clubs to retain reserves in order to smooth out the overall claims pattern from year to year.

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The Impact of Direct Action 11 Since the inception of the P and I Clubs nearly 200 years ago, it has been of the essence of the mutual basis on which they work that the member should have paid any relevant claim before seeking reimbursement from his club. This was recognised in the judgments of the House of Lords in the leading case of the Fanti and Padre Island [1990] 2 Lloyds Rep 191. Most P and I Clubs which are members of the International Group are governed by rules which are subject to English law. That case concerned the alleged right of a claimant who had obtained judgment against a member of a P and I Club which had become insolvent (and thus could not meet the judgment in full) to enforce the judgment directly against the P and I Club by virtue of the Third Parties (Rights against Insurers) Act 1930. The judgments of the members of the House of Lords did not specifically address the general principle of direct action, but were concerned with the interpretation of the Act. Nevertheless they did recognise that the unique status and origins of the P and I Clubs as mutual insurers did put them in a special position in the face of the possibility of direct action. The judgment of Lord Goff contains the following section:

�In a mutual insurance association such as a P and I Club, it is essential that members should be able to assume the financial probity of other members, because all of them are insurers as well as assured. To that end, it is customary to require each member to discharge his own liability before he can be indemnified against it by the club. Each member is, after all, running his own business; it is up to him to make sure that a claim against him is well founded, and the best way of ensuring that is to require him first to pay the claim before seeking indemnity from the club. I must confess that I was much attracted by this submission�.(page 202).

12 It was recognised by the House of Lords (page 201) that in many cases the Clubs do pay direct to the claimant the claims which have been agreed, either because the Club has given a letter of guarantee of the members obligations or because it is agreed, expressly or impliedly, that they should do so. Such arrangements do not change the fundamental obligation of the P and I club to indemnify its member. 13 Arrangements to create a direct right of action in favour of a claimant have been introduced in other cases, notably under the legislation enacting the International Conventions of 1969 and 1992 governing liability for oil pollution. Similar provisions are included in the pending conventions on liability for hazardous and noxious substances (�HNS�) and for pollution by ships bunkers, but these Conventions have not yet entered into force. 14 The 1969 and 1992 Conventions on Civil Liability for Oil Pollution Damage provide for the issue by the Government of the ship�s flag State of a Certificate of Financial Responsibility (�COFR�) which certifies that insurance or other financial security is in force, which satisfies the requirements of the convention, and provides details of the name and address of the insurer. Article VII (8) of those Conventions goes on to provide for direct action against the insurer by the victims of oil pollution, and restricts the defences which may be raised by the insurer to such claims. 15 The practical effect of such provisions, which appear at first sight to be no more than a reasonable response to the difficulties of pursuing legitimate claims against the �one ship companies� which are now common in the shipping industry, is that the burden of defending and settling such claims has passed from the ship owner to his insurer, and that the general principle of indemnity which has underpinned the liability insurance provided by the P and I Clubs, has been set aside.

LEG/CONF.13/17 - 4 -


16 These four Conventions expressly provide that the defence of wilful misconduct of the shipowner is still available to the insurer, but any other misconduct, which may well prejudice the cover provided as between insurer and assured, will not be available to the insurer as a defence to a claim made direct against it. 17 The Rules of all the P and I Clubs whose managers are based in London, contain a provision expressly incorporating the English Marine Insurance Act 1906. The provisions of that Act contain a number of clauses which define circumstances in which the insurer is not liable. One of those is section 55(2)(a) which provides:

�The insurer is not liable for any loss attributable to the wilful misconduct of the assured��

This provision is mirrored by the defence of wilful misconduct of the owner to which an insurer is entitled in defending a direct action for pollution damage, and, in the draft protocol, in defending a passenger claim. The other defences to which the insurer is entitled under the Marine Insurance Act 1906 will not, however, be available to a P and I Club defending a direct action by a passenger. 18 Further, compliance with the ISM Code is now a prerequisite of cover in the rules of all the P and I Clubs in the International Group. Since the ISM Code is now applicable, with effect from July 2002 to all passenger ships and to cargo vessels of over 500 tons, this is an important matter. The ISM Code requires that every ship owner should have in place a Safety Management System, including procedures for reporting and monitoring the safety and pollution prevention aspects of the operation of each vessel and ensuring that adequate resources and shore-based support are applied as required. It also requires that systems should be in place for the reporting and analysis of non-conformities, accidents and hazardous occurrences. 19 It is not difficult to imagine that any accident which gives rise to a claim under the COFR has the potential, on investigation, to reveal a failure of the Safety Management System for the ship in question, which could in turn prejudice the P and I insurance cover. Yet the issue of a COFR at the beginning of the policy year and the relevant provisions of the Convention mean that, in the case of an accident within the terms of the Convention the insurer will be obliged to pay the claim first and to seek recompense afterwards from the ship owner if there has been a breach of the terms of cover. In the case of a vessel owned by a one ship company which has suffered a major casualty and where the vessel�s insurers are entitled to policy defences, the recovery prospects look distinctly doubtful. 20 Likewise, it is self evident that members of the International Group will not take kindly to contributing (through the Group Pooling Arrangements) to a claim paid by a member club in respect of an accident resulting from conduct by a member which fell below the standards set by the ISM Code, simply because that Club was obliged to honour the obligations to third parties resulting from a COFR issued under the proposed protocol. 21 One P and I Club, which is a member of the International Group, has already decided, as matter of general policy, not to accept passenger tonnage because it presents the risk of claims of a different nature from those to which a cargo vessel is exposed, and thus that such risks are inconsistent with the mutual nature of P and I insurance. The Chairmen of several Group Clubs have taken the opportunity afforded by their annual report to express grave concern at the potential exposure of the Group Member Clubs, and the Group itself, if a combination of high limits and direct action is imposed by the proposed protocol to the Athens Convention.

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22 To a large extent, passengers by sea are now carried either in roll-on roll-off ferries or in passenger cruise ships, some of which are very large. The largest cruise ships in service now carry up to 3500 passengers and 1500 crew, and even larger ships are on the drawing board. The potential liability of a carrier in the event of a major casualty involving such a ship is therefore substantial. If the carrier�s liability insurer is to be directly liable to the passengers of such a ship for sums of money substantially greater than those in the 1974 Athens Convention, and with a significant reduction of the policy defences otherwise applicable between the insurer and the insured (as to which see below), this is believed to have an impact on the insurance and reinsurance arrangements currently in place. 23 It is widely recognised that the compensation system created by the 1969 and 1992 Civil Liability Conventions on Oil Pollution Damage, including the right of direct action by claimants, has worked well for 30 years, and has not imperilled the P and I Clubs which insure such risks. The limits of the ship owner�s liability under those Conventions (up to 59.7 million SDR or about US$80 million) are, however, significantly lower than those under consideration for passenger claims under the proposed protocol. Conclusions 24 Without trying to balance the pros and cons of applying to claims by passengers the principle of direct action against insurers presently applicable in the case of oil pollution, there appear to be well-founded arguments supporting the reluctance of the P and I Clubs which are members of the International Group to accept the principle of direct liability as proposed in the draft Protocol to the 1974 Athens Convention. 25 The issue of certificates of financial responsibility as proposed by the draft protocol will expose the liability insurers of the passenger vessels to which the protocol applies, to significantly greater risks, by reason of reduced defences, than those customarily covered by the P and I Clubs. 26 The complex arrangements for pooling and reinsurance of those risks, which make it possible for the member Clubs of the International Group to offer such extensive cover at present, may be put at risk if direct action such as is proposed by the draft protocol is to become a part of the law of most maritime nations.

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LEG/CONF.13/1/121 October 2002

Original: ENGLISH

AGENDA

of the Conference to be convened at 11 a.m.

on Monday, 21 October 2002 at the Headquarters of the International Maritime Organization

4 Albert Embankment London, United Kingdom

Opening of the Conference

Election of the President

1 Adoption of the agenda 2 Adoption of the Rules of Procedure 3 Election of the Vice-Presidents and other officers of the Conference 4 Appointment of the Credentials Committee 5 Organization of the work of the Conference, including the establishment of other

committees, as necessary 6 Consideration of:

- a draft protocol of 2002 to amend the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974

- any draft Conference resolutions 7 Consideration of the reports of the committees:

(a) Credentials Committee

(b) Other committees 8 Adoption of the Final Act and any instruments, recommendations and resolutions

resulting from the work of the Conference 9 Signature of the Final Act

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INTERNATIONAL CONFERENCE ON THE REVISION OF THE ATHENS CONVENTION RELATING TO THE CARRIAGE OF PASSENGERS AND THEIR LUGGAGE BY SEA,1974 Agenda item 2

LEG/CONF.13/2/1 21 October 2002 Original: ENGLISH

ADOPTION OF THE RULES OF PROCEDURE

Rules of Procedure

Table of Contents Rule

CHAPTER I - REPRESENTATION AND CREDENTIALS 1 Composition of delegations 2 Alternates or advisers 3 Submission of credentials 4 Credentials Committee 5 Provisional participation in the Conference

CHAPTER II - OFFICERS 6 Election 7} } President 8 } 9} } Acting President 10} 11 Replacement of the President 12 The President shall not vote Rule

CHAPTER III - SECRETARIAT 13 Duties of the Secretary-General and the Secretariat 14 Statements by the Secretariat

LEG/CONF.13/2/1 - 2 -


CHAPTER IV - CONDUCT OF BUSINESS 15 Quorum 16 Speeches 17 Precedence 18 Points of order 19 Time-Limit on speeches 20 Closing of list of speakers 21 Adjournment of debate 22 Closure of the debate 23 Suspension or adjournment of the meeting 24 Order of procedural motions 25 Basic proposals 26 Other proposals and amendments 27 Decisions on competence 28 Withdrawal of motions 29 Reconsideration of proposals 30 Invitation to experts

CHAPTER V - VOTING 31 Voting rights 32 Required majority 33 Meaning of the expression "Representatives present and voting" 34 Method of voting 35 Conduct during voting 36 Division of proposals and amendments 37 Voting on amendments 38 Voting on proposals Rule 39} 40} Elections 41} 42} 43 Equally divided votes CHAPTER VI - COMMITTEES 44 Committee of the Whole 45 Drafting Committee 46 Establishment of other committees and subsidiary bodies 47 Representation on committees and other subsidiary bodies 48 Officers 49 Quorum 50 Conduct of business and voting in committees and other subsidiary

bodies

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CHAPTER VII - LANGUAGES AND RECORDS 51 Official and working languages 52 Interpretation from official languages 53 Interpretation from other languages 54 Records of Decisions 55 Languages of documents

CHAPTER VIII - PUBLIC AND PRIVATE MEETINGS 56 Plenary meetings and meetings of committees and subsidiary bodies 57 Communiqués to the Press 58 CHAPTER IX - OBSERVERS 59 CHAPTER X - AMENDMENTS TO THE RULES OF PROCEDURE 60 CHAPTER XI - SIGNATURE OF THE FINAL ACT

LEG/CONF.13/2/1 - 4 -


CHAPTER I - REPRESENTATION AND CREDENTIALS

Composition of delegations Rule 1

The delegation of each State participating in the Conference shall consist of accredited representatives and such alternate representatives and advisers as may be required.

Alternates or advisers

Rule 2

An alternate representative or an adviser may act as a representative upon designation by the head of the delegation.

Submission of credentials

Rule 3 (a) The credentials of representatives and the names of any alternate representatives and advisers

shall be transmitted to the Secretary-General of the International Maritime Organization before the opening of the Conference or not later than twenty-four hours after the opening of the Conference. The credentials shall be issued by the Head of State, the Head of Government, or the Minister for Foreign Affairs, or any other person or authority specifically authorized for that purpose by any of them.

(b) Any later change in the composition of the delegation shall as soon as possible be submitted to

the Secretary-General of the Conference.

Credentials Committee Rule 4

A Credentials Committee shall be appointed at the beginning of the Conference. It shall consist of five members who shall be appointed by the Conference on the proposal of the President. The Credentials Committee shall examine the credentials of representatives and report to the Conference without delay.

Provisional participation in the Conference Rule 5 (a) Pending a decision of the Conference upon their credentials, representatives shall be entitled

provisionally to participate in the Conference. (b) Any representative to whose admission a State participating in the Conference has made

objection shall be seated provisionally with the same rights as other representatives until the Credentials Committee has reported and the Conference has given its decision.

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CHAPTER II - OFFICERS

Election Rule 6

The Conference shall elect a President, five Vice-Presidents, the Chairman of the Committee of the Whole provided for in rule 44 and the Chairman of the Drafting Committee established under rule 45. The Conference may also elect such other officers as it deems necessary for the performance of its functions.

President

Rule 7

In addition to exercising the powers conferred upon him elsewhere by these rules, the President shall preside at the plenary meetings of the Conference, declare the opening and closing of each plenary meeting, direct the discussions at such meetings, accord the right to speak, put questions to the vote and announce decisions. The President shall rule on points of order and, subject to these rules of procedure, have complete control of the proceedings and over the maintenance of order thereat. The President may propose to the Conference the limitation of time to be allowed to speakers, the limitation of the number of times each representative may speak on any question, the closure of the list of speakers, the adjournment or closure of the debate, and the suspension or the adjournment of the meeting.

Rule 8

The President, in the exercise of the functions of President, remains under the authority of the Conference.

Acting President

Rule 9

If the President is absent from a meeting or any part thereof, one of the Vice-Presidents shall act as President.

Rule 10

A Vice-President acting as President shall have the same powers and duties as the President.

Replacement of the President Rule 11

If at any time the President is unable to perform the functions of President for the remaining period of the Conference a new President shall be elected.

The President shall not vote

Rule 12

The President or a Vice-President acting as President shall not vote. Where necessary another member of the President's delegation may be appointed to vote for the delegation.

LEG/CONF.13/2/1 - 6 -


CHAPTER III - SECRETARIAT

Duties of the Secretary-General and the Secretariat Rule 13 (a) The Secretary-General of the International Maritime Organization shall be the

Secretary-General of the Conference. (b) The Secretary-General shall appoint an Executive Secretary and a Deputy Executive Secretary

of the Conference and shall provide and direct the staff required by the Conference and its Committees.

(c) The Secretariat shall receive, translate, reproduce, issue and distribute the documents, records,

reports and resolutions of the Conference; interpret speeches made at the meetings; arrange for the publication, custody and preservation of the documents in accordance with the decisions of the Conference; distribute documents of the Conference to the participating Governments and organizations as appropriate and, generally, perform all other tasks which the Conference may require.

Statements by the Secretariat Rule 14

The Secretary-General, the Executive Secretary, the Deputy Executive Secretary and any member of the Conference staff designated for that purpose may, at any time, make oral or written statements concerning any question under consideration.

CHAPTER IV - CONDUCT OF BUSINESS Quorum Rule 15

A quorum of the Conference shall be constituted by the representatives of a majority of the States participating in the Conference.

Speeches Rule 16

No person may address the Conference without having previously obtained the permission of the President. Subject to rules 17, 18, 22 and 24, the President shall call upon speakers in the order in which they signify their desire to speak. The President may call a speaker to order if the remarks of such speaker are not relevant to the subject under discussion.

Precedence Rule 17

The Chairman or Rapporteur of a committee, or the representative of a subsidiary body may be accorded precedence for the purpose of explaining the conclusion arrived at by that committee or subsidiary body.

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Points of order Rule 18

During the discussion of any matter a representative may rise to a point of order, and the point of order shall immediately be decided by the President in accordance with the Rules of Procedure. A representative may appeal against the ruling of the President. The appeal shall immediately be put to the vote and the President's ruling shall stand unless overruled by the majority of the representatives present and voting. A representative rising to a point of order may not speak on the substance of the matter under discussion.

Time-limit on speeches

Rule 19

The Conference may, on the proposal of the President, limit the time to be allowed to each speaker on any particular subject under discussion. When the debate is limited and a representative has spoken for the allotted time, the President shall call such representative to order without delay.

Closing of list of speakers

Rule 20

During the course of a debate, the President may announce the list of speakers and, with the consent of the Conference, declare the list closed. The President may, however, accord the right of reply to any representative if a speech delivered after the closure of the list makes this desirable.

Adjournment of debate

Rule 21

During the discussion of any matter, a representative may move the adjournment of the debate on the question under discussion. In addition to the proposer of the motion, two representatives may speak in favour of, and two against, the motion, after which the motion shall immediately be put to the vote. The President may limit the time to be allowed to speakers under this rule.

Closure of the debate

Rule 22

A representative may at any time move the closure of the debate on the question under discussion, whether or not any other representative has signified his wish to speak. Permission to speak on the closure of the debate shall be accorded only to two speakers opposing the closure, after which the motion shall be immediately put to the vote. If the Conference is in favour of the closure, the President shall declare the closure of the debate. The President may limit the time to be allowed to speakers under this rule.

Suspension or adjournment of the meeting

Rule 23

During the discussion of any matter, a representative may move the suspension or the adjournment of the meeting. Such motions shall not be debated, but shall be immediately put to the vote. The President may limit the time to be allowed to the speaker moving the suspension or adjournment.

LEG/CONF.13/2/1 - 8 -


Order of procedural motions Rule 24

Subject to rule 18, the following motions shall have precedence in the following order over all the other proposals or motions before the meeting:

(i) to suspend the meeting; (ii) to adjourn the meeting; (iii) to adjourn the debate on the question under discussion; (iv) for the closure of the debate on the question under discussion.

Basic proposals

Rule 25

The basic proposal for discussion by the Conference shall consist of a draft protocol of 2002 to amend the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974, as contained in document LEG/CONF.13/3.

Other proposals and amendments

Rule 26

Other proposals, including proposed amendments to the basic proposals shall normally be introduced in writing and handed to the Executive Secretary of the Conference who shall circulate copies to the delegations. As a general rule, no proposal shall be discussed or put to the vote at any meeting of the Conference unless copies thereof have been circulated to all delegations not later than the day preceding the meeting. The President or Chairman of a Committee may, however, permit the discussion and consideration of amendments, even though such amendments have not been circulated or have only been circulated the same day.

Decisions on competence

Rule 27

Subject to rule 18, any motion calling for a decision on the competence of the Conference to discuss any matter or to adopt a proposal or an amendment submitted to it shall be put to the vote before the matter is discussed or a vote is taken on the proposal or amendment in question.

Withdrawal of motions

Rule 28

A motion may be withdrawn by its proposer at any time before voting on it has commenced, provided that the motion has not been amended or that an amendment to it is not under discussion. A motion which has thus been withdrawn may be reintroduced by any representative.

Reconsideration of proposals

Rule 29

When a proposal has been adopted or rejected it may not be reconsidered unless the Conference, by a two-thirds majority of the representatives present and voting, so decides. Permission to speak on a motion to reconsider shall be accorded only to the mover and one other supporter and to two speakers opposing the motion, after which it shall be put immediately to the vote.

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Invitation to experts Rule 30

The Conference may invite or admit to one or more of its meetings any person whose expertise it may consider useful for its work. A person invited under this rule shall not have the right to vote.

CHAPTER V - VOTING

Voting rights Rule 31

Each State represented at the Conference shall have one vote.

Required majority Rule 32 (a) Decisions of the Conference on all matters of substance shall be taken by a two-thirds majority

of representatives present and voting, and decisions on matters of procedure shall be taken by a simple majority of representatives present and voting.

(b) If the question arises whether a matter is one of procedure or of substance, the President of the

Conference shall rule on the question. An appeal against this ruling shall immediately be put to the vote and the President's ruling shall stand unless overruled by a two-thirds majority of the representatives present and voting.

Meaning of the expression "Representatives present and voting"

Rule 33

For the purpose of these rules the phrase "representatives present and voting" means representatives casting an affirmative or negative vote. Representatives abstaining from voting or casting an invalid vote shall be considered as not voting.

Method of voting

Rule 34

The Conference shall normally vote by show of hands. However, any representative may request a roll-call vote which shall be taken in the English alphabetical order of the names of the States participating in the Conference, beginning with the delegation whose name is drawn by lot by the President. The vote of each representative participating in any roll-call vote shall be inserted in the report or record of the meeting concerned.

LEG/CONF.13/2/1 - 10 -


Conduct during voting Rule 35

After the President has announced the beginning of voting, no representative shall interrupt the voting except on a point of order in connection with the actual conduct of the voting. Except in the case of elections held by secret ballot, the President may permit representatives to explain their votes after the voting. The President may limit the time to be allowed for such explanations.

Division of proposals and amendments

Rule 36 (a) Parts of a proposal or amendment thereto shall be voted on separately if the President, with the

consent of the proposer, so decides or if a representative requests that the proposal or amendment thereto be divided and the proposer raises no objection. If the proposer objects to a request for division, permission to speak on the request shall be given first to the representative making the request to divide the proposal or amendment, and then to the mover of the original proposal or amendment under discussion, after which the request to divide the proposal or amendment shall be put immediately to the vote.

(b) Where parts of a proposal or amendment thereto have been voted on separately, those parts of

a proposal which have been approved shall then be put to the vote as a whole. (c) If all the operative parts of the proposal or amendment have been rejected, the proposal or

amendment shall be considered to have been rejected as a whole.

Voting on amendments Rule 37 (a) A motion is considered to be an amendment to a proposal if it merely adds to, deletes from or

revises part of that proposal. An amendment shall be voted on before the proposal to which it relates is put to the vote.

(b) If two or more amendments are moved to a proposal, the Conference shall first vote on the

amendment furthest removed in substance from the original proposal and then on the amendment next furthest removed therefrom and so on until all amendments have been put to the vote. Where, however, the adoption of one amendment necessarily implies the rejection of another amendment, the latter amendment shall not be put to the vote.

(c) The President shall, in all cases, determine which amendment is furthest removed in substance

from a proposal or whether the adoption of an amendment necessarily implies the rejection of another amendment. An appeal against the President's ruling shall immediately be put to the vote and the President's ruling shall stand unless the appeal is approved by a majority of the representatives present and voting.

(d) If one or more amendments are adopted, the amended proposal shall then be voted upon.

Voting on proposals Rule 38

If two or more proposals relate to the same question, the Conference shall, unless it decides otherwise, vote on the proposals in the order in which they have been submitted.

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Elections Rule 39

All elections shall be held by secret ballot unless the Conference decides otherwise. Rule 40

Before the commencement of a secret ballot two scrutineers shall be appointed by the Conference, on the proposal of the President, from the delegations present. The scrutineers shall scrutinize the votes cast and report the results to the President indicating the number of votes cast including invalid votes, if any.

Rule 41 (a) If, when one person or one delegation is to be elected, no candidate obtains on the first ballot a

majority of the representatives present and voting, a second ballot restricted to the two candidates obtaining the largest numbers of votes shall be taken. If on the second ballot the votes are equally divided the President shall decide between the candidates by drawing lots.

(b) In the case of a tie on the first ballot among three or more candidates obtaining the largest

numbers of votes, a second ballot shall be held. If on such a second ballot a tie results among more than two candidates, the number shall be reduced to two by lot and the balloting, restricted to those two, shall continue in accordance with the preceding paragraph of this rule.

Rule 42

When two or more elective places are to be filled at one time under the same conditions, the candidates obtaining on the first ballot a majority of the representatives present and voting shall be elected. If the number of candidates obtaining the requisite majority is greater than the number of persons or delegations to be elected, the candidates obtaining the greatest number of votes shall be declared elected. If the number of candidates obtaining such majority is less than the number of persons or delegations to be elected, there shall be additional ballots to fill the remaining places, the voting being restricted to the candidates obtaining the greatest numbers of votes in the previous ballot, to a number not more than twice the places remaining to be filled; provided that, after a third inconclusive ballot, votes may be cast for any eligible person or delegation. If three such unrestricted ballots are inconclusive, the next three ballots shall be restricted to the candidates who obtained the greatest numbers of votes on the third of the unrestricted ballots, to a number not more than twice the places remaining to be filled, and the following three ballots thereafter shall be unrestricted, and so on until the places have been filled.

Equally divided votes

Rule 43

If a vote is equally divided on matters other than elections, the proposal shall be regarded as rejected.

LEG/CONF.13/2/1 - 12 -


CHAPTER VI - COMMITTEES

Committee of the Whole Rule 44

The Conference shall establish a Committee of the Whole. The Committee of the Whole may set up such subsidiary bodies as it considers necessary.

Drafting Committee

Rule 45

A Drafting Committee, composed of not more than nine members, shall be appointed by the Conference on the proposal of the President. The Drafting Committee shall prepare drafts and give advice on drafting as may be requested by the Conference or by any committee or subsidiary body. It shall also prepare the Final Act of the Conference. The Drafting Committee shall not alter the substance of texts submitted to it, but shall have the power to review and co-ordinate the drafting of all such texts. The Committee shall report as appropriate to the Conference or to any committee or subsidiary body.

Establishment of other committees and


In addition to the Committee of the Whole, the Credentials Committee and the Drafting Committee, the Conference may establish such other committees and subsidiary bodies as it deems necessary for the performance of its functions.

Representation on committees and other


Each delegation participating in the Conference shall be represented by one person on any committee or other subsidiary body to which that delegation may be appointed. The delegation may assign to these committees or other subsidiary bodies such alternate representatives and advisers as may be required.

Officers

Rule 48

Except in the cases of the Chairman of the Committee of the Whole and the Chairman of the Drafting Committee, each committee or other subsidiary body shall elect its own officers. The Committee of the Whole shall elect two Vice-Chairmen who shall be designated as First and Second Vice-Chairman, respectively, and take precedence in that order.

Quorum of committees and other subsidiary bodies

Rule 49 (a) The quorum of the Committee of the Whole shall be constituted by the representatives of a

majority of the States participating in the Conference. (b) The quorum of the Drafting Committee or the Credentials Committee shall be constituted by

the representatives of a majority of the States appointed to the Committee.

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(c) The quorum of any Committee or other subsidiary body established under rule 46 shall be constituted by the number determined by the Conference. Failing such determination the quorum shall be constituted by one half of the States participating in the Conference.

Conduct of business and voting in committees

and other subsidiary bodies Rule 50

The rules relating to officers and conduct of business contained in chapters II, III, IV, V, VII and IX shall be applicable mutatis mutandis to the proceedings of committees and other subsidiary bodies, except that all decisions of committees or other subsidiary bodies shall be taken by a majority of the representatives present and voting. However, in the case of reconsideration of proposals or amendments in a committee or subsidiary body, the majority required shall be that established by rule 29.

CHAPTER VII - LANGUAGES AND RECORDS

Official and working languages Rule 51 (a) The official languages of the Conference shall be Arabic, Chinese, English, French, Russian

and Spanish. (b) The working languages shall be English, French and Spanish.

Interpretation from official languages Rule 52

Speeches made at the Conference, in the Committee of the Whole or in the Drafting Committee or in other committees or other subsidiary bodies established under rule 46 in any of the official languages shall be interpreted into the other official languages.

Interpretation from other languages

Rule 53

Any representative may make a speech in a language other than an official language. In this case, that representative shall provide for interpretation into one of the official languages. Interpretation into the other official languages by the interpreters provided by the Organization may be based on any such interpretation given in the first official language.

Records of Decisions

Rule 54

The Secretariat shall prepare Records of Decisions of the Plenary and the Committee of the Whole.

Languages of documents

Rule 55

Conference documents shall be made available in the working languages.

LEG/CONF.13/2/1 - 14 -


CHAPTER VIII - PUBLIC AND PRIVATE MEETINGS

Plenary meetings and meetings of committees and subsidiary bodies Rule 56

The plenary meetings of the Conference and meetings of the Committee of the Whole shall be held in public unless the Conference decides otherwise. Meetings of other committees and other subsidiary bodies of the Conference shall be held in private unless the Conference decides otherwise.

Communiqués to the Press

Rule 57

At the close of any meeting a communiqué may be issued to the Press through the Executive Secretary.

CHAPTER IX - OBSERVERS Rule 58 (a) States may choose to participate in the Conference as observers. Delegations of States

participating as observers shall not have the right to vote. (b) Representatives of the Associate Members of the International Maritime Organization may

participate, without the right of vote, in the deliberations of the Conference, its committees and other subsidiary bodies.

(c) Liberation movements recognized by the Organization of African Unity or the League of Arab

States may participate, without the right to vote, in the deliberations of the Conference, its committees and other subsidiary bodies, upon the invitation of the President or Chairman as the case may be.

(d) Representatives from the United Nations, its specialized agencies and the IAEA may

participate, without the right to vote, in the deliberations of the Conference, its committees and other subsidiary bodies, upon the invitation of the President or Chairman as the case may be.

(e) Observers of other intergovernmental organizations and non-governmental bodies invited to

the Conference may, upon the invitation of the President or Chairman, as the case may be, take part without vote in the deliberations of the Conference, its committees or other subsidiary bodies on questions within the scope of their activities.

(f) Written statements submitted by observers or experts may be distributed by the Secretariat to

the delegations at the Conference.

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CHAPTER X - AMENDMENTS TO THE RULES OF PROCEDURE Rule 59

These Rules of Procedure may be amended by a decision of the Conference taken by a majority of the representatives present and voting.

CHAPTER XI - SIGNATURE OF THE FINAL ACT Rule 60 The Final Act resulting from the deliberation of the Conference shall be submitted for

signature by the delegations.

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LEG/CONF.13/21 11 November 2002 Original: ENGLISH

ADOPTION OF THE FINAL ACT AND ANY INSTRUMENTS, RECOMMENDATIONS

AND RESOLUTIONS RESULTING FROM THE WORK OF THE CONFERENCE

FINAL ACT OF THE INTERNATIONAL CONFERENCE ON THE REVISION OF THE ATHENS CONVENTION RELATING TO THE CARRIAGE OF PASSENGERS AND

THEIR LUGGAGE BY SEA, 1974

Text approved by the Conference

1 In accordance with Article 2(b) of the Convention on the International Maritime Organization, the Council of the Organization decided, at its twenty-first extraordinary session in November 2001, to convene a diplomatic conference to consider the adoption of a protocol of 2002 to amend the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974. This decision was endorsed by the Assembly of the Organization at its twenty-second regular session by resolution A.906(22) of 29 November 2001 on the Work Programme and Budget for the Twenty-Second Financial Period 2002-2003. 2 The Conference was held at the Headquarters of the International Maritime Organization in London from 21 October to 1 November 2002. 3 Representatives of 71 States participated in the Conference, namely the representatives of:

ALGERIA ANGOLA ARGENTINA AUSTRALIA BAHAMAS BANGLADESH BELGIUM BOLIVIA BRAZIL BURKINA FASO CANADA CHILE CHINA COLOMBIA COTE D�IVOIRE

CROATIA CUBA CYPRUS DEMOCRATIC PEOPLES� REPUBLIC OF KOREA DENMARK ECUADOR EGYPT ESTONIA FINLAND FRANCE GERMANY GHANA GREECE GUATEMALA

LEG/CONF.13/21 - 2 -


HAITI INDONESIA IRAN (ISLAMIC REPUBLIC OF) IRELAND ISRAEL ITALY JAMAICA JAPAN KENYA LATVIA LEBANON LIBERIA MALAYSIA MALTA MARSHALL ISLANDS MEXICO MOROCCO NAMIBIA NETHERLANDS NIGERIA NORWAY PANAMA

PERU PHILIPPINES POLAND PORTUGAL REPUBLIC OF KOREA RUSSIAN FEDERATION SAUDI ARABIA SINGAPORE SPAIN SWEDEN SWITZERLAND SYRIAN ARAB REPUBLIC TRINIDAD AND TOBAGO TUNISIA TURKEY UKRAINE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND UNITED STATES OF AMERICA VANUATU VENEZUELA

4 A delegation from the CZECH REPUBLIC attended the Conference as an observer. 5 HONG KONG, CHINA, an Associate Member of the Organization, sent observers to the Conference. 6 The following intergovernmental organizations sent observers to the Conference:

EUROPEAN COMMISSION (EC) INTERNATIONAL OIL POLLUTION COMPENSATION FUNDS (IOPC FUNDS) ARAB FEDERATION OF SHIPPING (AFS) INTERNATIONAL MOBILE SATELLITE ORGANIZATION (IMSO)

7 The following non-governmental international organizations sent observers to the Conference:

INTERNATIONAL CHAMBER OF SHIPPING (ICS) INTERNATIONAL UNION OF MARINE INSURANCE (IUMI) INTERNATIONAL CONFEDERATION OF FREE TRADE UNIONS (ICFTU) INTERNATIONAL MARITIME COMMITTEE (CMI) INTERNATIONAL ASSOCIATION OF PORTS AND HARBORS (IAPH) BIMCO INTERNATIONAL CARGO HANDLING CO-ORDINATION ASSOCIATION (ICHCA) INTERNATIONAL ASSOCIATION OF CLASSIFICATION SOCIETIES (IACS) EUROPEAN CHEMICAL INDUSTRY COUNCIL (CEFIC) INTERNATIONAL ASSOCIATION OF PRODUCERS OF INSURANCE AND REINSURANCE (BIPAR) INTERNATIONAL FEDERATION OF SHIPMASTERS' ASSOCIATIONS

(IFSMA)

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INTERNATIONAL SALVAGE UNION (ISU) INTERNATIONAL GROUP OF P AND I ASSOCIATIONS (P AND I CLUBS) THE WORLD CONSERVATION UNION (IUCN) INTERNATIONAL SHIP SUPPLIERS ASSOCIATION (ISSA) INTERNATIONAL COUNCIL OF CRUISE LINES (ICCL) INTERNATIONAL ASSOCIATION OF DRY CARGO SHIPOWNERS (INTERCARGO) WORLD NUCLEAR TRANSPORT INSTITUTE (WNTI)

8 H.E. Dr. Ra Jong-Yil, Head of the delegation of Republic of Korea was elected President of the Conference. 9 The Vice-Presidents elected by the Conference were: H.E. Senhor A. Da Costa Fernandes (Angola) H.E. Mr. B.G. O�Brien, CMG (Bahamas) Ms. M. Markus (Estonia) Mr. E. Tsantzalos (Greece) H.E. Mr. J. Mortada (Lebanon) 10 The Secretariat of the Conference consisted of the following officers:

Secretary-General - Mr. W.A. O'Neil Secretary-General of the Organization

Executive Secretary - Dr. R.P. Balkin

Director, Legal Affairs and External Relations Division

Deputy Executive Secretary - Mr. A. Blanco-Bazán

Senior Deputy Director/Head, Legal Office Legal Affairs and External Relations Division

11 The Conference established a Committee of the Whole with the mandate to consider a draft protocol of 2002 to amend the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974. 12 The Drafting Committee established by the Conference was composed of representatives of the following nine States: Chile China Egypt France Ghana Russian Federation Spain United Kingdom United States

LEG/CONF.13/21 - 4 -


13 A Credentials Committee was appointed to examine the credentials of representatives attending the Conference. The Committee was composed of representatives of the following five States: Ecuador

Indonesia Liberia Netherlands Turkey

14 The officers elected for the Committees were as follows:

Committee of the Whole: Chairman: Mr. G. Sivertsen (Norway) First Vice-Chairman: Dr. B. Czerwenka (Germany) Second Vice-Chairman: Capt. P. San Miguel (Venezuela)

Drafting Committee:

Chairman: Mr. Kofi Mbiah (Ghana)

First Vice-Chairman: Capt. J.F. Ahern (United States)

Second Vice-Chairman: Counsellor M.M.K. Abbas (Egypt)

Credentials Committee:

Chairman: Capt. J.E. Vega Romero (Ecuador) 15 The Conference used as the basis of its work the following document:

- draft protocol of 2002 to amend the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974

16 Also before the Conference were a number of documents containing proposals and comments submitted by Governments and interested organizations on the above-mentioned draft text. 17 As a result of its deliberations the Conference adopted the following instrument:

PROTOCOL OF 2002 TO THE ATHENS CONVENTION RELATING TO THE CARRIAGE OF PASSENGERS AND THEIR LUGGAGE BY SEA, 1974

18 The Conference also adopted the following resolutions which are contained in the Attachment to this Final Act:

1 RESOLUTION ON REGIONAL ECONOMIC INTEGRATION ORGANIZATIONS

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2 RESOLUTION ON CERTIFICATES OF INSURANCE OR OTHER FINANCIAL SECURITY AND SHIPS FLYING THE FLAG OF A STATE UNDER THE TERMS OF A BAREBOAT CHARTER REGISTRATION

3 RESOLUTION ON FRAMEWORK OF GOOD PRACTICE WITH RESPECT

TO CARRIERS� LIABILITIES 19 This Final Act is established in a single original text in the Arabic, Chinese, English, French, Russian and Spanish languages which is to be deposited with the Secretary-General of the Organization. 20 The Conference requested the Secretary-General to prepare the authentic, consolidated texts in Arabic, Chinese, English, French, Russian and Spanish of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 2002. 21 The Secretary-General shall send certified copies of this Final Act with its Attachment, and certified copies of the authentic texts of the instruments referred to in paragraphs 17 and 20 above to the Governments of the States invited to be represented at the Conference.

IN WITNESS WHEREOF the undersigned have affixed their signatures to this Final Act.

DONE IN LONDON this first day of November, two thousand and two.

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CONFERENCE RESOLUTIONS


RESOLUTION ON REGIONAL ECONOMIC INTEGRATION ORGANIZATIONS

THE CONFERENCE, HAVING adopted the Protocol of 2002 to the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974 (hereinafter "the Protocol"),

RECALLING that Article 19 of the Protocol has been developed and included in the Protocol in order to allow Regional Economic Integration Organizations and their sovereign Member States to become parties to the Protocol in case competencies over matters governed by the Protocol are, or have been, or will be, transferred to that organization by its sovereign Member States,

RECOGNIZING that States may, in the future, establish or become Members to various

forms of regional integration organizations to which they may opt to transfer competencies or functions governed by treaties and exercise these in a shared manner,

CONSIDERING FURTHER that it may not be feasible to cater for the particularities of each and every such organization or with the legislative or administrative functions or competencies such organizations may wish to adopt or share with its Member States, RECOGNIZING the need for the International Maritime Organization (hereinafter "the Organization") to promptly and adequately respond to evolution,

RECOGNIZING FURTHER the importance and the benefits of providing a generally

acceptable framework through which regional economic integration organizations and their Member States may become parties to treaties, or to amendments to treaties, developed by the Organization,

LEG/CONF.13/22 - 2 -


COGNIZANT of the fact that the United Nations have already addressed the issue of international organizations becoming parties to treaties when adopting the United Nations Convention on the Law of the Sea (UNCLOS) as well as in other treaties developed and adopted during recent years,

REQUESTS the Organization to carry out a study of the issue, and, if found necessary, to develop appropriate provisions which may be considered in new treaties it may develop, or in amendments to existing treaties, when there will be a need for such provisions to be included so as to enable present and future regional economic integration organizations and their Member States to become parties to such treaties.

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RESOLUTION ON CERTIFICATES OF INSURANCE OR OTHER FINANCIAL SECURITY AND SHIPS FLYING THE FLAG OF A STATE UNDER THE TERMS OF A

BAREBOAT CHARTER REGISTRATION

THE CONFERENCE, HAVING adopted the Protocol of 2002 to the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974 (hereinafter �the Protocol�), RECALLING that Article 2(1)(a) of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974 (hereinafter "the Convention") provides that the Convention applies to any international carriage if �the ship is flying the flag of, or registered in a State Party�, ALSO RECALLING that Article 5 of the Protocol (Article 4bis(1) of the Convention as modified by the Protocol) provides that any carrier who actually performs the whole or part of the carriage shall maintain insurance or other financial security to cover its liability under the Convention in respect of death of and personal injury to passengers, FURTHER RECALLING that Article 5 of the Protocol (Article 4bis(2) of the Convention as modified by the Protocol) provides that a certificate (hereinafter �the certificate�) attesting that insurance or other financial security is in force, in accordance with the provisions of the Convention, shall be issued to each ship, RECOGNIZING that since the adoption of the Convention in 1974, considerable evolution has taken place in the legal systems and in the practices of States in respect of the conditions under which they allow a ship to fly their flag, COGNIZANT of the fact that a number of States allow ships to fly their flag under the terms of bareboat charter, through which the bareboat charterer assumes all the duties and responsibilities of the owner for the operation of the ship whilst the ownership and encumbrances remain registered in another State which suspends the right of the ship to fly its flag, REQUESTS the Organization to carry out a study of the issuing of the certificate with regard to bareboat charter registration in the context of the Convention as modified by the Protocol and, if found necessary, to develop appropriate guidelines.

LEG/CONF.13/22 - 4 -


RESOLUTION ON FRAMEWORK OF GOOD PRACTICE WITH RESPECT TO CARRIERS� LIABILITIES

THE CONFERENCE, HAVING adopted the Protocol of 2002 to the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974 (hereinafter �the Protocol�), NOTING that Article 6 of the Protocol (Article 7 paragraph 1 of the Convention as modified by the Protocol) provides for the limit of liability of the carrier for death of or personal injury to a passenger to be 400,000 units of account per passenger, CONSIDERING that Article 5 of the Protocol (Article 4bis paragraph 1 of the Convention as modified by the Protocol) requires a carrier to maintain compulsory insurance or other financial security of 250,000 units of account per passenger in respect of the carrier�s liability under the Convention as revised by the Protocol for the death of or personal injury to a passenger,

RECALLING that the Assembly of the International Maritime Organization (hereinafter

�the Organization�) has adopted resolution A.898(21) on Guidelines on Shipowners� Responsibilities in Respect of Maritime Claims through which the shipowners are urged to maintain insurance cover to meet their liabilities for relevant claims up to the limits set out in Articles 6 and 7 of the International Convention on Limitation of Liability for Maritime Claims, 1976 including any amendments thereto that are in force internationally,

BELIEVING that it is desirable for States Parties to the Convention to ensure that carriers

maintain full insurance or other financial security to meet their liabilities under the Convention for the death of or personal injury to passengers,

REQUESTS the Organization to consider the issue, and, if found necessary, to develop

appropriate guidelines on the provision of insurance or other financial security for compensation for claims for death of or personal injury to passengers which will establish an appropriate framework of good practice to ensure that all carriers take steps to maintain full insurance or financial security to meet the full level of their liability provided in Article 6 of the Protocol (Article 7 paragraph 1 of the Convention as revised by the Protocol).

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ADOPTION OF THE FINAL ACT AND ANY INSTRUMENTS, RECOMMENDATIONS AND RESOLUTIONS RESULTING FROM THE WORK OF THE CONFERENCE

PROTOCOL OF 2002 TO THE ATHENS CONVENTION RELATING TO THE

CARRIAGE OF PASSENGERS AND THEIR LUGGAGE BY SEA, 1974


The States Parties to this Protocol, CONSIDERING that it is desirable to revise the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, done at Athens on 13 December 1974, to provide for enhanced compensation, to introduce strict liability, to establish a simplified procedure for updating the limitation amounts, and to ensure compulsory insurance for the benefit of passengers, RECALLING that the 1976 Protocol to the Convention introduces the Special Drawing Right as the Unit of Account in place of the gold franc, HAVING NOTED that the 1990 Protocol to the Convention, which provides for enhanced compensation and a simplified procedure for updating the limitation amounts, has not entered into force, HAVE AGREED as follows:

ARTICLE 1 For the purposes of this Protocol: 1 "Convention" means the text of the Athens Convention relating to the Carriage of

Passengers and their Luggage by Sea, 1974. 2 "Organization" means the International Maritime Organization. 3 "Secretary-General" means the Secretary-General of the Organization.

LEG/CONF.13/20 - 2 -


ARTICLE 2 Article 1, paragraph 1 of the Convention is replaced by the following text: 1

(a) "carrier" means a person by or on behalf of whom a contract of carriage has been concluded, whether the carriage is actually performed by that person or by a performing carrier;


charterer or operator of a ship, who actually performs the whole or a part of the carriage; and


performing carrier, or, in so far as the carrier actually performs the carriage, the carrier.

ARTICLE 3 1 Article 1, paragraph 10 of the Convention is replaced by the following: 10 �Organization� means the International Maritime Organization. 2 The following text is added as Article 1, paragraph 11, of the Convention:

11 "Secretary-General" means the Secretary-General of the Organization.


Article 3

Liability of the carrier

1 For the loss suffered as a result of the death of or personal injury to a passenger caused by

a shipping incident, the carrier shall be liable to the extent that such loss in respect of that passenger on each distinct occasion does not exceed 250,000 units of account, unless the carrier proves that the incident:


phenomenon of an exceptional, inevitable and irresistible character; or (b) was wholly caused by an act or omission done with the intent to cause the incident

by a third party.

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If and to the extent that the loss exceeds the above limit, the carrier shall be further liable unless the carrier proves that the incident which caused the loss occurred without the fault or neglect of the carrier.


caused by a shipping incident, the carrier shall be liable if the incident which caused the loss was due to the fault or neglect of the carrier. The burden of proving fault or neglect shall lie with the claimant.





5 For the purposes of this Article:

(a) �shipping incident� means shipwreck, capsizing, collision or stranding of the ship,

explosion or fire in the ship, or defect in the ship; (b) �fault or neglect of the carrier� includes the fault or neglect of the servants of the

carrier, acting within the scope of their employment; (c) �defect in the ship� means any malfunction, failure or non-compliance with

applicable safety regulations in respect of any part of the ship or its equipment when used for the escape, evacuation, embarkation and disembarkation of passengers; or when used for the propulsion, steering, safe navigation, mooring, anchoring, arriving at or leaving berth or anchorage, or damage control after flooding; or when used for the launching of life saving appliances; and

(d) �loss� shall not include punitive or exemplary damages. 6 The liability of the carrier under this Article only relates to loss arising from incidents that

occurred in the course of the carriage. The burden of proving that the incident which caused the loss occurred in the course of the carriage, and the extent of the loss, shall lie with the claimant.

7 Nothing in this Convention shall prejudice any right of recourse of the carrier against any

third party, or the defence of contributory negligence under Article 6 of this Convention. Nothing in this Article shall prejudice any right of limitation under Articles 7 or 8 of this Convention.

8 Presumptions of fault or neglect of a party or the allocation of the burden of proof to a

party shall not prevent evidence in favour of that party from being considered.

LEG/CONF.13/20 - 4 -


ARTICLE 5 The following text is added as Article 4bis of the Convention:

Article 4bis


1 When passengers are carried on board a ship registered in a State Party that is licensed to carry more than twelve passengers, and this Convention applies, any carrier who actually performs the whole or a part of the carriage shall maintain insurance or other financial security, such as the guarantee of a bank or similar financial institution, to cover liability under this Convention in respect of the death of and personal injury to passengers. The limit of the compulsory insurance or other financial security shall not be less than 250,000 units of account per passenger on each distinct occasion.


whole or a part of the carriage; (c) IMO ship identification number; (d) type and duration of security; (e) name and principal place of business of insurer or other person providing financial

security and, where appropriate, place of business where the insurance or other financial security is established; and


validity of the insurance or other financial security. 3 (a) A State Party may authorize an institution or an Organization recognised by it to

issue the certificate. Such institution or organization shall inform that State of the issue of each certificate. In all cases, the State Party shall fully guarantee the completeness and accuracy of the certificate so issued, and shall undertake to ensure the necessary arrangements to satisfy this obligation.



- 5 - LEG/CONF.13/20


(ii) the withdrawal of such authority; and (iii) the date from which such authority or withdrawal of such authority takes

effect.

An authority delegated shall not take effect prior to three months from the date from which notification to that effect was given to the Secretary-General.

(c) The institution or organization authorized to issue certificates in accordance with

this paragraph shall, as a minimum, be authorized to withdraw these certificates if the conditions under which they have been issued are not complied with. In all cases the institution or organization shall report such withdrawal to the State on whose behalf the certificate was issued.




6 An insurance or other financial security shall not satisfy the requirements of this Article if

it can cease, for reasons other than the expiry of the period of validity of the insurance or security specified in the certificate, before three months have elapsed from the date on which notice of its termination is given to the authorities referred to in paragraph 5, unless the certificate has been surrendered to these authorities or a new certificate has been issued within the said period. The foregoing provisions shall similarly apply to any modification which results in the insurance or other financial security no longer satisfying the requirements of this Article.

7 The State of the ship's registry shall, subject to the provisions of this Article, determine the conditions of issue and validity of the certificate.

8 Nothing in this Convention shall be construed as preventing a State Party from relying on

information obtained from other States or the Organization or other international organizations relating to the financial standing of providers of insurance or other financial security for the purposes of this Convention. In such cases, the State Party relying on such information is not relieved of its responsibility as a State issuing the certificate.



LEG/CONF.13/20 - 6 -


10 Any claim for compensation covered by insurance or other financial security pursuant to this Article may be brought directly against the insurer or other person providing financial security. In such case, the amount set out in paragraph 1 applies as the limit of liability of the insurer or other person providing financial security, even if the carrier or the performing carrier is not entitled to limitation of liability. The defendant may further invoke the defences (other than the bankruptcy or winding up) which the carrier referred to in paragraph 1 would have been entitled to invoke in accordance with this Convention. Furthermore, the defendant may invoke the defence that the damage resulted from the wilful misconduct of the assured, but the defendant shall not invoke any other defence which the defendant might have been entitled to invoke in proceedings brought by the assured against the defendant. The defendant shall in any event have the right to require the carrier and the performing carrier to be joined in the proceedings.


12 A State Party shall not permit a ship under its flag to which this Article applies to operate

at any time unless a certificate has been issued under paragraphs 2 or 15. 13 Subject to the provisions of this Article, each State Party shall ensure, under its national

law, that insurance or other financial security, to the extent specified in paragraph 1, is in force in respect of any ship that is licensed to carry more than twelve passengers, wherever registered, entering or leaving a port in its territory in so far as this Convention applies.


Secretary-General that, for the purposes of paragraph 13, ships are not required to carry on board or to produce the certificate required by paragraph 2 when entering or leaving ports in its territory, provided that the State Party which issues the certificate has notified the Secretary-General that it maintains records in an electronic format, accessible to all States Parties, attesting the existence of the certificate and enabling States Parties to discharge their obligations under paragraph 13.


State Party, the provisions of this Article relating thereto shall not be applicable to such ship, but the ship shall carry a certificate issued by the appropriate authorities of the State of the ship's registry, stating that the ship is owned by that State and that the liability is covered within the amount prescribed in accordance with paragraph 1. Such a certificate shall follow as closely as possible the model prescribed by paragraph 2.

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Article 7

Limit of liability for death and personal injury 1 The liability of the carrier for the death of or personal injury to a passenger under

Article 3 shall in no case exceed 400,000 units of account per passenger on each distinct occasion. Where, in accordance with the law of the court seized of the case, damages are awarded in the form of periodical income payments, the equivalent capital value of those payments shall not exceed the said limit.

2 A State Party may regulate by specific provisions of national law the limit of liability

prescribed in paragraph 1, provided that the national limit of liability, if any, is not lower than that prescribed in paragraph 1. A State Party, which makes use of the option provided for in this paragraph, shall inform the Secretary-General of the limit of liability adopted or of the fact that there is none.


Article 8 Limit of liability for loss of or damage to luggage and vehicles

1 The liability of the carrier for the loss of or damage to cabin luggage shall in no case

exceed 2,250 units of account per passenger, per carriage. 2 The liability of the carrier for the loss of or damage to vehicles including all luggage

carried in or on the vehicle shall in no case exceed 12,700 units of account per vehicle, per carriage.

3 The liability of the carrier for the loss of or damage to luggage other than that mentioned in paragraphs 1 and 2 shall in no case exceed 3,375 units of account per passenger, per carriage.


a deductible not exceeding 330 units of account in the case of damage to a vehicle and not exceeding 149 units of account per passenger in the case of loss of or damage to other luggage, such sum to be deducted from the loss or damage.

LEG/CONF.13/20 - 8 -



Article 9

Unit of Account and conversion

1 The Unit of Account mentioned in this Convention is the Special Drawing Right as defined by the International Monetary Fund. The amounts mentioned in Article 3, paragraph 1, Article 4bis, paragraph 1, Article 7, paragraph l, and Article 8 shall be converted into the national currency of the State of the court seized of the case on the basis of the value of that currency by reference to the Special Drawing Right on the date of the judgment or the date agreed upon by the parties. The value of the national currency, in terms of the Special Drawing Right, of a State Party which is a member of the International Monetary Fund, shall be calculated in accordance with the method of valuation applied by the International Monetary Fund in effect on the date in question for its operations and transactions. The value of the national currency, in terms of the Special Drawing Right, of a State Party which is not a member of the International Monetary Fund, shall be calculated in a manner determined by that State Party.


whose law does not permit the application of the provisions of paragraph 1 may, at the time of ratification, acceptance, approval of or accession to this Convention or at any time thereafter, declare that the Unit of Account referred to in paragraph 1 shall be equal to 15 gold francs. The gold franc referred to in this paragraph corresponds to sixty-five and a half milligrams of gold of millesimal fineness nine hundred. The conversion of the gold franc into the national currency shall be made according to the law of the State concerned.

3 The calculation mentioned in the last sentence of paragraph 1, and the conversion mentioned in paragraph 2 shall be made in such a manner as to express in the national currency of the States Parties, as far as possible, the same real value for the amounts in Article 3, paragraph 1, Article 4bis, paragraph 1, Article 7, paragraph 1, and Article 8 as would result from the application of the first three sentences of paragraph 1. States shall communicate to the Secretary-General the manner of calculation pursuant to paragraph 1, or the result of the conversion in paragraph 2, as the case may be, when depositing an instrument of ratification, acceptance, approval of or accession to this Convention and whenever there is a change in either.

ARTICLE 9 Article 16, paragraph 3, of the Convention is replaced by the following text: 3 The law of the Court seized of the case shall govern the grounds for suspension and

interruption of limitation periods, but in no case shall an action under this Convention be brought after the expiration of any one of the following periods of time: (a) A period of five years beginning with the date of disembarkation of the passenger

or from the date when disembarkation should have taken place, whichever is later; or, if earlier

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(b) a period of three years beginning with the date when the claimant knew or ought reasonably to have known of the injury, loss or damage caused by the incident.


Article 17

Competent jurisdiction

1 An action arising under Articles 3 and 4 of this Convention shall, at the option of the claimant, be brought before one of the courts listed below, provided that the court is located in a State Party to this Convention, and subject to the domestic law of each State Party governing proper venue within those States with multiple possible forums: (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.

2 Actions under Article 4bis of this Convention shall, at the option of the claimant, be brought before one of the courts where action could be brought against the carrier or performing carrier according to paragraph 1.

3 After the occurrence of the incident which has caused the damage, the parties may agree

that the claim for damages shall be submitted to any jurisdiction or to arbitration.

ARTICLE 11 The following text is added as Article 17bis of the Convention:

Article 17bis

Recognition and enforcement

1 Any judgment given by a court with jurisdiction in accordance with Article 17 which is enforceable in the State of origin where it is no longer subject to ordinary forms of review, shall be recognised in any State Party, except

LEG/CONF.13/20 - 10 -



present the case.


3 A State Party to this Protocol may apply other rules for the recognition and enforcement

of judgments, provided that their effect is to ensure that judgments are recognised and enforced at least to the same extent as under paragraphs 1 and 2.


Article 18

Invalidity of contractual provisions

Any contractual provision concluded before the occurrence of the incident which has caused the death of or personal injury to a passenger or the loss of or damage to the passenger�s luggage, purporting to relieve any person liable under this Convention of liability towards the passenger or to prescribe a lower limit of liability than that fixed in this Convention except as provided in Article 8, paragraph 4, and any such provision purporting to shift the burden of proof which rests on the carrier or performing carrier, or having the effect of restricting the options specified in Article 17, paragraphs 1 or 2, shall be null and void, but the nullity of that provision shall not render void the contract of carriage which shall remain subject to the provisions of this Convention.


Article 20

Nuclear damage

No liability shall arise under this Convention for damage caused by a nuclear incident: (a) if the operator of a nuclear installation is liable for such damage under either the

Paris Convention of 29 July 1960 on Third Party Liability in the Field of Nuclear Energy as amended by its Additional Protocol of 28 January 1964, or the Vienna Convention of 21 May 1963 on Civil Liability for Nuclear Damage, or any amendment or Protocol thereto which is in force; or

(b) if the operator of a nuclear installation is liable for such damage by virtue of a

national law governing the liability for such damage, provided that such law is in all respects as favourable to persons who may suffer damage as either the Paris or the Vienna Conventions or any amendment or Protocol thereto which is in force.

- 11 - LEG/CONF.13/20


ARTICLE 14

Model certificate 1 The model certificate set out in the annex to this Protocol shall be incorporated as an annex to the Convention.

2 The following text is added as Article 1bis of the Convention:

�Article 1bis

Annex

The annex to this Convention shall constitute an integral part of the Convention.�

ARTICLE 15

Interpretation and application

1 The Convention and this Protocol shall, as between the Parties to this Protocol, be read and interpreted together as one single instrument.

2 The Convention as revised by this Protocol shall apply only to claims arising out of

occurrences which take place after the entry into force for each State of this Protocol. 3 Articles 1 to 22 of the Convention, as revised by this Protocol, together with Articles 17

to 25 of this Protocol and the annex thereto, shall constitute and be called the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 2002.

ARTICLE 16

The following text is added as Article 22bis of the Convention.

Article 22bis

Final clauses of the Convention

The final clauses of this Convention shall be Articles 17 to 25 of the Protocol of 2002 to the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974. References in this Convention to States Parties shall be taken to mean references to States Parties to that Protocol.

LEG/CONF.13/20 - 12 -


FINAL CLAUSES

ARTICLE 17

Signature, ratification, acceptance, approval and accession 1 This Protocol shall be open for signature at the Headquarters of the Organization from

1 May 2003 until 30 April 2004 and shall thereafter remain open for accession. 2 States may express their consent to be bound by this Protocol by:

(a) signature without reservation as to ratification, acceptance or approval; or (b) signature subject to ratification, acceptance or approval followed by ratification,

acceptance or approval; or (c) accession.

3 Ratification, acceptance, approval or accession shall be effected by the deposit of an instrument to that effect with the Secretary-General.

4 Any instrument of ratification, acceptance, approval or accession deposited after the entry

into force of an amendment to this Protocol with respect to all existing States Parties, or after the completion of all measures required for the entry into force of the amendment with respect to those States Parties shall be deemed to apply to this Protocol as modified by the amendment.

5 A State shall not express its consent to be bound by this Protocol unless, if Party thereto, it denounces:

(a) the Athens Convention relating to the Carriage of Passengers and their Luggage

by Sea, done at Athens on 13 December 1974; (b) the Protocol to the Athens Convention relating to the Carriage of Passengers and

their Luggage by Sea, done at London on 19 November 1976; and (c) the Protocol of 1990 to amend the Athens Convention relating to the Carriage of

Passengers and their Luggage by Sea, done at London on 29 March 1990, with effect from the time that this Protocol will enter into force for that State

in accordance with Article 20.

ARTICLE 18

States with more than one system of law 1 If a State has two or more territorial units in which different systems of law are applicable

in relation to matters dealt with in this Protocol, it may at the time of signature, ratification, acceptance, approval or accession declare that this Protocol shall extend to all its territorial units or only to one or more of them, and may modify this declaration by submitting another declaration at any time.

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2 Any such declaration shall be notified to the Secretary-General and shall state expressly

the territorial units to which this Protocol applies.

3 In relation to a State Party which has made such a declaration:

(a) references to the State of a ship's registry and, in relation to a compulsory insurance certificate, to the issuing or certifying State, shall be construed as referring to the territorial unit respectively in which the ship is registered and which issues or certifies the certificate;

(b) references to the requirements of national law, national limit of liability and

national currency shall be construed respectively as references to the requirements of the law, the limit of liability and the currency of the relevant territorial unit; and

(c) references to courts, and to judgments which must be recognised in States Parties,

shall be construed as references respectively to courts of, and to judgments which must be recognised in, the relevant territorial unit.

ARTICLE 19

Regional Economic Integration Organizations

1 A Regional Economic Integration Organization, which is constituted by sovereign States that have transferred competence over certain matters governed by this Protocol to that Organization, may sign, ratify, accept, approve or accede to this Protocol. A Regional Economic Integration Organization which is a Party to this Protocol shall have the rights and obligations of a State Party, to the extent that the Regional Economic Integration Organization has competence over matters governed by this Protocol.

2 Where a Regional Economic Integration Organization exercises its right of vote in matters over which it has competence, it shall have a number of votes equal to the number of its Member States which are Parties to this Protocol and which have transferred competence to it over the matter in question. A Regional Economic Integration Organization shall not exercise its right to vote if its Member States exercise theirs, and vice versa.

3 Where the number of States Parties is relevant in this Protocol, including but not limited to Articles 20 and 23 of this Protocol, the Regional Economic Integration Organization shall not count as a State Party in addition to its Member States which are States Parties.

4 At the time of signature, ratification, acceptance, approval or accession the Regional Economic Integration Organization shall make a declaration to the Secretary-General specifying the matters governed by this Protocol in respect of which competence has been transferred to that Organization by its Member States which are signatories or Parties to this Protocol and any other relevant restrictions as to the scope of that competence. The Regional Economic Integration Organization shall promptly notify the Secretary-General of any changes to the distribution of competence, including new transfers of competence, specified in the declaration under this paragraph. Any such declarations shall be made available by the Secretary-General pursuant to Article 24 of this Protocol.

LEG/CONF.13/20 - 14 -


5 States Parties which are Member States of a Regional Economic Integration Organization which is a Party to this Protocol shall be presumed to have competence over all matters governed by this Protocol in respect of which transfers of competence to the Organization have not been specifically declared or notified under paragraph 4.

ARTICLE 20

Entry into force

1 This Protocol shall enter into force twelve months following the date on which 10 States

have either signed it without reservation as to ratification, acceptance or approval or have deposited instruments of ratification, acceptance, approval or accession with the Secretary-General.

2 For any State which ratifies, accepts, approves or accedes to this Protocol after the

conditions in paragraph 1 for entry into force have been met, this Protocol shall enter into force three months after the date of deposit by such State of the appropriate instrument, but not before this Protocol has entered into force in agreement with paragraph 1.

ARTICLE 21

Denunciation 1 This Protocol may be denounced by any State Party at any time after the date on which

this Protocol comes into force for that State. 2 Denunciation shall be effected by the deposit of an instrument to that effect with the

Secretary-General. 3 A denunciation shall take effect twelve months, or such longer period as may be specified

in the instrument of denunciation, after its deposit with the Secretary-General. 4 As between the States Parties to this Protocol, denunciation by any of them of the

Convention in accordance with Article 25 thereof shall not be construed in any way as a denunciation of the Convention as revised by this Protocol.

ARTICLE 22

Revision and Amendment 1 A Conference for the purpose of revising or amending this Protocol may be convened by

the Organization. 2 The Organization shall convene a Conference of States Parties to this Protocol for

revising or amending this Protocol at the request of not less than one-third of the States Parties.

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ARTICLE 23

Amendment of limits 1 Without prejudice to the provisions of Article 22, the special procedure in this Article

shall apply solely for the purposes of amending the limits set out in Article 3, paragraph 1, Article 4bis, paragraph 1, Article 7, paragraph 1 and Article 8 of the Convention as revised by this Protocol.

2 Upon the request of at least one half, but in no case less than six, of the States Parties to

this Protocol, any proposal to amend the limits, including the deductibles, specified in Article 3, paragraph 1, Article 4bis, paragraph 1, Article 7, paragraph 1, and Article 8 of the Convention as revised by this Protocol shall be circulated by the Secretary-General to all Members of the Organization and to all States Parties.

3 Any amendment proposed and circulated as above shall be submitted to the Legal

Committee of the Organization (hereinafter referred to as "the Legal Committee") for consideration at a date at least six months after the date of its circulation.

4 All States Parties to the Convention as revised by this Protocol, whether or not Members

of the Organization, shall be entitled to participate in the proceedings of the Legal Committee for the consideration and adoption of amendments.

5 Amendments shall be adopted by a two-thirds majority of the States Parties to the

Convention as revised by this Protocol present and voting in the Legal Committee expanded as provided for in paragraph 4, on condition that at least one half of the States Parties to the Convention as revised by this Protocol shall be present at the time of voting.

6 When acting on a proposal to amend the limits, the Legal Committee shall take into

account the experience of incidents and, in particular, the amount of damage resulting therefrom, changes in the monetary values and the effect of the proposed amendment on the cost of insurance.

7 (a) No amendment of the limits under this Article may be considered less than five

years from the date on which this Protocol was opened for signature nor less than five years from the date of entry into force of a previous amendment under this Article.

(b) No limit may be increased so as to exceed an amount which corresponds to the

limit laid down in the Convention as revised by this Protocol increased by six per cent per year calculated on a compound basis from the date on which this Protocol was opened for signature.

(c) No limit may be increased so as to exceed an amount which corresponds to the

limit laid down in the Convention as revised by this Protocol multiplied by three. 8 Any amendment adopted in accordance with paragraph 5 shall be notified by the

Organization to all States Parties. The amendment shall be deemed to have been accepted at the end of a period of eighteen months after the date of notification, unless within that period not less than one fourth of the States that were States Parties at the time of the adoption of the amendment have communicated to the Secretary-General that they do not accept the amendment, in which case the amendment is rejected and shall have no effect.

LEG/CONF.13/20 - 16 -


9 An amendment deemed to have been accepted in accordance with paragraph 8 shall enter

into force eighteen months after its acceptance. 10 All States Parties shall be bound by the amendment, unless they denounce this Protocol in

accordance with Article 21, paragraphs 1 and 2 at least six months before the amendment enters into force. Such denunciation shall take effect when the amendment enters into force.

11 When an amendment has been adopted but the eighteen-month period for its acceptance

has not yet expired, a State which becomes a State Party during that period shall be bound by the amendment if it enters into force. A State which becomes a State Party after that period shall be bound by an amendment which has been accepted in accordance with paragraph 8. In the cases referred to in this paragraph, a State becomes bound by an amendment when that amendment enters into force, or when this Protocol enters into force for that State, if later.

ARTICLE 24

Depositary 1 This Protocol and any amendments adopted under Article 23 shall be deposited with the

Secretary-General. 2 The Secretary-General shall: (a) inform all States which have signed or acceded to this Protocol of:

(i) each new signature or deposit of an instrument of ratification, acceptance, approval or accession together with the date thereof;

(ii) each declaration and communication under Article 9, paragraphs 2 and 3,

Article 18, paragraph 1 and Article 19, paragraph 4 of the Convention as revised by this Protocol;

(iii) the date of entry into force of this Protocol;

(iv) any proposal to amend the limits which has been made in accordance with

Article 23, paragraph 2 of this Protocol;

(v) any amendment which has been adopted in accordance with Article 23, paragraph 5 of this Protocol;

(vi) any amendment deemed to have been accepted under Article 23,

paragraph 8 of this Protocol, together with the date on which that amendment shall enter into force in accordance with paragraphs 8 and 9 of that Article;

(vii) the deposit of any instrument of denunciation of this Protocol together

with the date of the deposit and the date on which it takes effect;

- 17 - LEG/CONF.13/20


(viii) any communication called for by any Article of this Protocol;

(b) transmit certified true copies of this protocol to all States which have signed or acceded to this Protocol.

3 As soon as this Protocol comes into force, the text shall be transmitted by the Secretary-General to the Secretariat of the United Nations for registration and publication in accordance with Article 102 of the Charter of the United Nations.

ARTICLE 25

Languages This Protocol is established in a single original in the Arabic, Chinese, English, French, Russian and Spanish languages, each text being equally authentic. DONE AT LONDON this first day of November two thousand and two. IN WITNESS WHEREOF the undersigned, being duly authorised by their respective Governments for that purpose, have signed this Protocol.

***

LEG/CONF.13/20


ANNEX

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 4bis of the Athens Convention relating to

the Carriage of Passengers and their Luggage by Sea, 2002,

Name of Ship

Distinctive

number or letters

IMO Ship

Identification Number

Port of

Registry

Name and full address of the principal

place of business of the carrier who actually performs the carriage.

This is to certify that there is in force in respect of the above-named ship a policy of insurance or other financial security satisfying the requirements of Article 4bis of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 2002. Type of Security................................................................................................................................. Duration of Security .......................................................................................................................... Name and address of the insurer(s) and/or guarantor(s) Name ................................................................................................................................................. Address ............................................................................................................................................. ...........................................................................................................................................................



.............................................................................................................................................. (Full designation of the State) OR The following text should be used when a State Party avails itself of Article 4bis, paragraph 3: 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 If desired, the designation of the State may include a reference to the competent public

authority of the country where the Certificate is issued. 2 If the total amount of security has been furnished by more than one source, the amount of

each of them should be indicated. 3 If security is furnished in several forms, these should be enumerated. 4 The entry "Duration of Security" must stipulate the date on which such security takes

effect. 5 The entry "Address" of the insurer(s) and/or guarantor(s) must indicate the principal place

of business of the insurer(s) and/or guarantor(s). If appropriate, the place of business where the insurance or other security is established shall be indicated.

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LEG/CONF.13/20/Corr.1 4 December 2002 Original: ENGLISH



PROTOCOL OF 2002 TO THE ATHENS CONVENTION RELATING TO THE CARRIAGE OF PASSENGERS AND THEIR LUGGAGE BY SEA, 1974


Corrigendum

1 Under Article 24 of document LEG/CONF.13/20, paragraph 2 (a) (vi) is replaced by the following:

(vi) any amendment deemed to have been accepted under Article 23, paragraph 8 of this Protocol, together with the date on which that amendment shall enter into force in accordance with paragraphs 9 and 10 of that Article;

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INTERNATIONAL CONFERENCE ON THE REVISION OF THE ATHENS CONVENTION RELATING TO THE CARRIAGE OF PASSENGERS AND THEIR LUGGAGE BY SEA, 1974 21 October- 1 November 2002

LEG/CONF 13/INF.2

24 January 2003 Original: ENGLISH

LIST OF DOCUMENTS ISSUED IN CONNECTION WITH THE INTERNATIONAL

CONFERENCE ON THE REVISION OF THE ATHENS CONVENTION RELATING TO THE CARRIAGE OF PASSENGERS AND THEIR LUGGAGE BY SEA, 1974

Symbol Title LEG/CONF 13/1 PROVISIONALAGENDA OF THE CONFERENCE

1/1 Agenda of the Conference 2 ADOPTION OF THE RULES OF PROCEDURE. Provisional Rules

of Procedure 2/1 Idem. Rules of Procedure 3 CONSIDERATION OF A DRAFT PROTOCOL OF 2002 TO

AMEND THE ATHENS CONVENTION RELATING TO THE CARRIAGE OF PASSENGERS AND THEIR LUGGAGE BY SEA, 1974. Text of the draft protocol prepared by the Legal Committee of the Organization

4 Idem. Definition of “defect in the ship”. Alternative proposals.

Note by the Secretariat 5 Idem. Consolidated text of the Athens Convention and prospective

protocol. Submitted by Norway 6 Idem. Proposed revised article 4, paragraph 2 of the draft protocol.

Submitted by Japan 7 Idem. Two proposals for amendments to the draft protocol. Submitted

by the European Commission on behalf of the European Commission and its Member States

8 Idem. Insurance and statistics. Submitted by Norway 9 Idem. Wilful misconduct. Submitted by Australia and Norway

LEG/CONF 13/INF.2 - 2 - Symbol Title LEG/CONF 13/10 Idem. Proposals by insurance brokers regarding insurance-related

issues. Submitted by IUMI 11 Idem. Proposals intended to facilitated the operation of the draft

protocol. Submitted by the International Group of P & I Clubs 12 ORGANIZATION OF THE WORK OF THE CONFERENCE,

INCLUDING THE ESTABLISHMENT OF OTHER COMMITTEES, AS NECESSARY. Note by the Secretariat

13 Consideration of a draft protocol of 2002 to amend the Athens

Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974. Comments and suggestions. Submitted by ICS

14 Idem. Insurance limits, definition of “defect in the ship” and wilful

misconduct. Submitted by ICCL 15 Idem. Limits on direct action. Submitted by ICCL 16 Idem. Provision of financial security. Liability of the carrier and time-

bar for actions (LEG 83/4/8). Submitted by the United States 17 Idem. Direct liability of insurers. Submitted by CMI 18 Idem. Further explanation of some issues raised in document

LEG/CONF 13/11. Submitted by the International Group of P & I Clubs 19 CONSIDERATION OF THE REPORTS OF THE COMMITTEES.

Report of the Credentials Committee 20 ADOPTION OF THE FINAL ACT AND ANY INSTRUMENTS,

RECOMMENDATIONS AND RESOLUTIONS RESULTING FROM THE WORK OF THE CONFERENCE. Protocol of 2002 to the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974. Text approved by the Conference

20/Corr.1 Corrigendum 21 Idem. Final Act of the International Conference on the Revision of the

Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea, 1974. Text approved by the Conference

22 Idem. Conference resolutions. Text approved by the Conference

- 3 - LEG/CONF 13/INF.2 Symbol Title Records of decisions LEG/CONF 13/RD/1 Record of decisions of the first plenary meeting, 21 october 2002 -

11.00 a.m.

RD/2 Record of decisions of the second plenary meeting, 1 November 2002 - 10.00 a.m. to 12.00 a.m.

Information papers LEG/CONF 13/INF.1 List of participants (English only)

INF.2 List of documents issued in connection with the Conference ***

The following documents are for the attention of participants only

DRAFTING COMMITTEE LEG/CONF 13/DC/1 Draft Protocol of 2002 to the Athens Convention relating to the Carriage

of Passengers and their Luggage by Sea, 1974. Text examined and approved by the Drafting Committee

DC/1/Add.1 Idem. Annex – Certificate of insurance or other financial security in

respect of liability for the death and personal injury to passengers. Text examined and approved by the Drafting Committee

DC/2 Draft Conference resolutions. Regional economic integration

organizations. Text examined and approved by the Drafting Committee DC/3 Idem. Certificates of insurance or other financial security and ships

flying the flag of a State under the terms of a bareboat registration. Text examined and approved by the Drafting Committee

DC/4 Idem. Framework of Good Practice with respect to carriers liabilities.

Text examined and approved by the Drafting Committee DC/5 Draft Final Act of the International Conference on the revision of the

Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974. Text examined and approved by the Drafting Committee

Drafting Committee – Working papers LEG/CONF 13/DC/WP.1 Draft Final Act of the International Conference on the revision of

the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974

***

LEG/CONF 13/INF.2 - 4 - Symbol Title

COMMITTEE OF THE WHOLE LEG/CONF 13/CW/1 Provisional agenda for the Committee of the Whole

CW/1/1 Agenda for the Committee of the Whole CW/2 Consideration of a draft protocol of 2002 to amend the Athens

Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974. Agreed by the Committee of the Whole

CW/3 Idem. Articles 15 et 19 of the Protocol. Agreed by the Committee of

the Whole CW/4 Idem. New paragraph 3 to article 11 of the protocol (new paragraph

17bis of the Athens Convention). Agreed by the Committee of the Whole

CW/5 Idem. Articles 4, 5 and 6. Agreed by the Committee of the Whole CW/6 Idem. Draft Conference resolution – Regional Economic Integration

Organizations. Submitted by Brazil CW/7 Idem. New paragraph 3 of article 16 of the draft protocol. Agreed by the Committee of the Whole CW/8 Idem. Draft Conference resolution – Certificates of insurance or other

financial security and ships flying the flag of a State under the terms of a bareboat registration. Agreed by the Committee of the Whole

CW/9 Idem. Draft Conference resolution – Framework of Good Practice with

respect to carriers’ liabilities. Agreed by the Committee of the Whole CW/10 Idem. Certificate of insurance or other financial security in respect of

liability for the death and personal injury to passengers. Agreed by the Committee of the Whole

CW/11 Consideration of reports of Committees. Report of the Committee of

the Whole CW12 Consideration of a draft protocol of 2002 to amend the Athens

Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974. Article 15bis. Text proposed by the Secretariat

- 5 - LEG/CONF 13/INF.2 Symbol Title Committee of the Whole – Working papers

LEG/CONF 13/CW/WP.1 Consideration of a draft protocol of 2002 to amend the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974. Article 19 – Participation by international organizations. Proposed by Brazil

CW/WP.2 Idem. List of topics. Note by the Secretariat CW/WP.3 Idem. Report of the Working Group on article 4 of the protocol.

Submitted by the Working Group CW/WP.4 Idem. Report of the Working Group on article 17, paragraph 1 and

article 19 of the protocol. Submitted by the Working Group CW/WP.5 Idem. Limit of liability for loss of or damage to luggage and

vehicles. Note by the Secretariat

CW/WP.6 Idem. Proposed revision to article 17 of the draft protocol. Submitted by Japan

CW/WP.7 Idem. Availability of insurance without the wilful misconduct

defence. Submitted by Norway CW/WP.8 Idem. Draft Conference resolution – Regional [Economic]

Integration Organizations. Submitted by Brazil CW/WP.9/Rev.1 Idem. Proposed minor drafting amendments to the prospective

protocol to facilitate its ratification. Proposal by the United Kingdom CW/WP.10 Idem. Limitation of liability for death or personal injury and for

compulsory insurance. Chairman’s proposal CW/WP.11 Idem. Draft Conference resolution – Certificates of insurance or

financial security and ships flying the flat of a State under the terms of a bareboat registration. Submitted by Cyprus and Germany

CW/WP.12 Idem. Draft Conference resolution – Framework of Good Practice

with respect to carrier’s liabilities. Submitted by Cyprus and the United Kingdom

LEG/CONF 13/INF.2 - 6 - Symbol Title Committee of the Whole – Records of decisions LEG/CONF 13/CW/RD/1/Rev.1 Record of decisions of the first meeting, 21 October 2002,

2.30 p.m. to 5.30 p.m. CW/RD/2 Record of decisions of the second meeting, 22 October 2002,

9.30 a.m. to 5.30 p.m. CW/RD/3 Record of decisions of the third meeting, 28 October 2002,

9.30 a.m. to 5.30 p.m. CW/RD/4 Record of decisions of the fourth meeting, 29 October 2002,

3.30 p.m. to 5.00 p.m CW/RD/5 Record of decisions of the fifth meeting, 30 October 2002,

9.30 a.m. to 5.00 p.m.

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