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

2. 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 )
OBLIGATIONS ACT (Art )
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 Protocol
Convention on Limitation of Liability of Maritime Claims (LLMC 1976) and 1996 Protocol (PLLMC 1996)

3. 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

4. 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

5. 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

6. 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

7. 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

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

9. 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

10. 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

11. 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)

12. 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

13. 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)

14. 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
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
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)

15. IMO Reservations (2006)
considered as a lex specialis in relation to the 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

16. CONTRACT OF CARRIAGE OF LUGGAGE BY SEA

17. 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

18. 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

19. 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) SDR per vehicle, per carriage
OTHER luggage max.(1,200) 3375 SDR per passenger, per carriage
Agreement on deductibles

20. RIGHTS OF PASSENGERS IN THE EU

21. 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

22. 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.

23. 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 € in case of death)
Mobility equipment - compensation shall correspond to the replacement value of the equipment concerned or to the costs relating to repairs

24. 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

25. 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

26. 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