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The starting point is the 1974
Athens Convention and its
successor the 2002 Protocol,
which applies to passenger
ships, their passengers
and luggage and may offer
protection. Together, they
govern liability and the extent
of any compensation claims
brought by passengers against
the carrier and also the time
period in which to bring such
claims.
Time limits can vary depending
on a number of circumstances
and State parties may seek
to vary the limitation period
although it cannot be any less.
The carrier is strictly liable
unless it can prove that the
incident which caused the
death or injury was due to
circumstances such as a
war or an exceptional natural
phenomenon, or as a result of
someone causing the incident
intentionally.
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The carrier can generally limit
the extent of its liability to pay
damages.
However, one of the major
catches which can be
overlooked when making a
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claim under the Convention
is that it imposes a two-year
limitation period. This means
that a claim must be brought
within two years, usually
calculated from the time the
passenger disembarked from
the vessel, failing which the
claim is time barred.
Under the Convention a carrier,
such as a ferry company, is
liable for damages resulting
from a passenger’s death or
injury:
• If the incident happened
whilst travelling on board,
between embarking and
disembarking the ship; and
• If it was due to the carrier’s
fault (eg: a shipwreck,
collision, fire or other defect
in the ship unless proven
otherwise).
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During the holiday time, many
people may be sailing on
cross channel ferries across to
Europe or perhaps even going
on cruises. Although we hope
that that it’s all “plain sailing”,
what International Laws would
come into play if there was an
accident whilst at sea?
A good illustration of what
happens when a claim is
brought late comes from the
recent Scottish case of Warner
–v- Scapa Flow Charters
[2016] but the consequences
would apply equally to an
English case.
A scuba diver on board a
charter vessel, the MV Jean
Elaine, died whilst on a diving
trip off Scotland’s Cape Wrath
in August 2012. Three days
before, he had fallen on board
the vessel and suffered a
severe injury to his liver. On the
day of the accident, he was
allowed to dive by the crew but
as he entered the water to start
his descent, he experienced
serious difficulties which led to
his death. His widow brought
an action for negligence
against the owners of the
charter vessel.
The claim was brought in May
2015; over two years after
the date of “disembarkation”
and the Court upheld the
Defendant’s argument that the
action was time-barred under
the Athens Convention, as it
should have been brought by
August 2014. As a result,
his widow was unable to
pursue her claim for damages.
By Michael Mulcare