CARRIAGE OF PASSENGERS AND THEIR LUGGAGE BY SEA Department for Maritime and Transport Law Doc.dr. sc. Iva Savić 27.04.2017.

Sources of law Internal MARITIME CODE (Art. 598-633) Application of MC only in cases when Regulation 392/2009 and AP 2002 don’t apply Internal MARITIME CODE (Art. 598-633) OBLIGATIONS ACT (Art. 694-698) EU regulation Regulation 392/2009, Regulation 1177/2010, Directive 2009/20 International Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974 Protocol of 2002 to the Convention > Croatia is a Party to Athens Convention as amended with 2002 Protocol Convention on Limitation of Liability of Maritime Claims (LLMC 1976) and 1996 Protocol (PLLMC 1996)

the contract of carriage (Maritime Code) “Carrier obliges himself by the contraact to carry the passenger by the ship, whereas the passenger obliges himself to pay the fee.” (Art. 599 MC) Constitutive elements: carrier passenger carriage by ship fare seaway

Passenger (MC) (Art 5, §41): „Passenger is any person on board the maritime craft, with the exception of children under the age of one year, and persons employed on the ship in any capacity” a person being carried on a ship based on the contract of carriage, OR person that accompanies a vehicle or live animals based on a contract for the transport of goods

carrier ≠ PERFORMING carrier concludes the agreement actually performs the carriage (shipowner, charterer, operator) Carriage with no paid fare - FREE OF CHARGE > application of Obligations act (ZOO), except for the carrier’s liability in the case of passenger’s death or personal injury > application of MC and Regulation EU 392/2009

TIME of carriage: while passenger is on the ship+ embarkation and disembarkation + “auxiliary transport” (IF cost of such transport is included in the fare or if the vessel used for this purpose has been put at the disposal of the passenger by the carrier) TICKET document proving the carriage of passenger issuance not obligatory, unless the passenger demands can be issued to specific person (named) or bearer

parties to contract CARRIER - obligations: main obligation: tranfer the passenger from the departure to destinatino point without the delay and interuption, saving his integrity (conditionally) food, entertainment PASSENGER - obligations: main obligation: pay the fare not to disturb the order, act on demand of the crew, not to endanger the ship as well as other persons and things on it

CARRIER’S LIABILITY FOR DEATH AND PERSONAL INJURY OF A PASSENGER

LIABILITY PRINCIPLE (MC) FAULT-BASED LIABILITY Art. 613: proven liability - in some cases, presumed (art. 615): shipwreck collision running aground explosion fire defects of the ship Passenger must prove: damage occured one of the liable persons caused the damage (except in listed cases) amount of suffered damage

who can be liable? Carrier Performing carrier Their employees > carriers are liable only when these cause the damage working inside their formal duties on board of ship

limitation 175 000 SDR per passenger and voyage (MC, Art 620) for all passengers and all incidents in course of one voyage compare to Protocol 2002 – each distinct occasion! carrier and passenger may explicitly agree on higher liability limits – does not apply to performing carrier or employees (Art. 624) any clause in the agreement concluded before the death or personal injury occured, and limiting carrier’s liability or setting him free, is VOID (art. 631)

lose of the right to limit liability (art. 623 MC) if the passenger proves that the damage occured as a result of activities or omissions which the carrier had performed, either intentionally or acting recklessly and with knowledge that damage might occur (dolus eventualis) > covering full amount of damage (proved) > it does not apply to a crew member

passengers conduct fault of the said passenger or his conduct which cannot be considered as regular > the court shall mitigate the carrier’s liability (partially) or relieve him therefrom (entirely) > if proved by carrier (art. 619 MC)

Protocol 2002 (to Athens convention) two-tier liability system – only if caused by a shipping incident* First tier – strict liability Second tier – fault-based (presumed) liability higher liability limits 250 000 SDR - 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 unavoidable character; or was wholly caused by an act or omission performed by a third party with the intent of causing the incident 400 000 SDR- unless the carrier proves that the incident which caused the loss occurred without the fault or neglect of the carrier on each distinct occasion! obligation to compulsory insurance + direct claim Croatia is a Party (in force since April 2014)

IMO Reservations (2006) considered as a lex specialis in relation to the 2002 Protocol reservation concerning a limitation of liability for carriers and a limitation for compulsory insurance for acts of terrorism (state of the insurance market) new provisions in respect to limits for carriers liability in respect to the death of or personal injury to a passenger caused by any war risks > 250,000 SDR in respect of each passenger on each distinct occasion; or 340 million SDR overall per ship on each distinct occasion

CONTRACT OF CARRIAGE OF LUGGAGE BY SEA

luggage Carriage of passengers and their luggage – one contract luggage = any article carried by the carrier under a contract of carriage, or vehicle, 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

luggage which the passenger has in his cabin or is otherwise in his possession, custody or control. Includes luggage which the passenger has in or on his vehicle* CAB I N LUGGAGE

Limit of liability for loss of or damage to luggage CABIN LUGGAGE max. (833 SDR) 2250 per passenger, per carriage VEHICLES including all luggage carried in or on the vehicle max. (3,333) 12700 SDR per vehicle, per carriage OTHER luggage max.(1,200) 3375 SDR per passenger, per carriage Agreement on deductibles

RIGHTS OF PASSENGERS IN THE EU

Third maritime safety package • Third maritime safety package Regulation EC 392/2009 (23 April 2009) on the liability of carriers of passengers by sea in the event of accidents → implementing solution from Athens Convention 2002 and IMO reservations Croatia and EU are parties to Protocol 2002 – in force since April 2014

Regulation 392/2009 Applicable to international carriage (art 9) and any carriage inside a MS for certain categories of ships (A, B according to Directive 918/18/EC), IF: (a) the ship is flying the flag of or is registered in a Member State; (b) the contract of carriage has been made in a Member State; or (c) the place of departure or destination, according to the contract of carriage, is in a Member State.

Regulation 392/2009 – important content IMO Reservations have a character of lex specialis in regard to Athens Convention Obligation to inform passengers on their rights before or on the departure at the latest Advance payment – only if caused by shipping incident (min. 21 000 € in case of death) Mobility equipment - compensation shall correspond to the replacement value of the equipment concerned or to the costs relating to repairs

Regulation 1177/2010 Applicable since Dec 2012 regulating rights of passengers in cases of A) CANCELLATION, or B) DELAY for more than 90 minutes beyond its scheduled time of departure Passengers shall be offered free of charge snacks, meals or refreshments in reasonable relation to the waiting time, provided they are available or can reasonably be supplied If a stay of one or more nights or a stay additional to that intended by the passenger becomes necessary, carrier shall offer passengers free of charge, adequate accommodation on board, or ashore, and transport to and from the port terminal and place of accommodation in addition

passenger has a right to choose to be a) RE-ROUTED - to the final destination, under comparable conditions, as set out in the transport contract, at the earliest opportunity and at no additional cost; b) REIMBURSED for the ticket price and, where relevant, a return service free of charge to the first point of departure, as set out in the transport contract, at the earliest opportunity

DELAY IN ARRIVAL compensation in cases of a delay in arrival at the final destination as set out in the transport contract Setting minimum level of compensation:25 % of the ticket price Duration of carriage Relevant delay ≤ 4 hours 1 hour or more >4 ≤ 8 hours 2 hours or more >8 ≤ 24 hours 3 hours or more > 24 hours 6 hours or more