The Athens Convention declares a carrier liable for damage suffered by a passenger resulting from death, personal injury or damage to luggage if the incident causing the damage occurred in the course of the carriage and was due to the fault or neglect of the carrier. Such fault or neglect is presumed, unless the contrary is proved.
In case of shipping incidents the 2002 Protocol substantially raises those limits to 250,000 SDR per passenger on each distinct occasion, unless the carrier proves that the incident resulted from an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character; or was wholly caused by an act or omission done with the intent to cause the incident by a third party.
If the loss exceeds this limit, and also in case of non-shipping incidents, the carrier is further liable – up to a combined limit of 400,000 SDR per passenger on each distinct occasion – unless the carrier proves that the incident which caused the loss occurred without the fault or neglect of the carrier.
As far as loss of, or damage to, luggage is concerned, the carrier’s limit of liability varies, depending on whether the loss or damage occurred in respect of cabin luggage, of a vehicle and/or luggage carried in or on it, or in respect of other luggage.
• The liability of the carrier for the loss of or damage to cabin luggage is limited to 2,250 SDR per passenger, per carriage.
• Liability of the carrier for the loss of or damage to vehicles including all luggage carried in or on the vehicle is limited to12,700 SDR per vehicle, per carriage.
• Liability of the carrier for the loss of or damage to other luggage is limited to 3,375 SDR per passenger, per carriage.
The carrier and the passenger may agree that the liability of the carrier shall be subject to a deductible not exceeding 330 SDR in the case of damage to a vehicle and not exceeding 149 SDR per passenger in the case of loss of or damage to other luggage, such sum to be deducted from the loss or damage.
The 2002 Athens Convention also introduces compulsory insurance, as well as mechanisms to assist passengers in obtaining compensation, based on well-accepted principles applied in existing liability and compensation regimes dealing with environmental pollution. These include replacing the fault-based liability system with a strict liability system for shipping related incidents, backed by the requirement that the carrier take out compulsory insurance to cover these potential claims.
Ships are to be issued with a certificate attesting that insurance or other financial security is in force and a model certificate is attached to the Protocol in an Annex.
The limits contained in the Protocol set a maximum limit, empowering – but not obliging – national courts to compensate for death, injury or damage up to these limits.
Amendment of limits
The 2002 Protocol introduces a tacit acceptance procedure for raising the limits of liability, whereby a proposal to amend the limits would be circulated on the request of at least one-half of the Parties to the Protocol, and adopted by a two-thirds majority of the States Parties. Amendments would then enter into force within 36 months unless not less than one fourth of the States Parties at the time of the adoption informed that they did not accept the amendment.