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Cruise destination Athens… are the Package Travel Regulations destined for lost luggage?

Posted: 15/11/2016

Claims for injuries at sea, where the ship travels within international waters, brought in the English courts are governed by the Athens Convention 1974 (the Convention) which was brought into UK law pursuant to section 183 of the Merchant Shipping Act 1995.

Unlike other personal injury claims, the limitation period for such claims is two years. The courts have no scope for extending this period which runs from the date of disembarkation.

Following amendment to the Convention by virtue of the Merchant Shipping (Convention Relating to the Carriage of Passengers and their Luggage by Sea) (Amendment) (Order) 2014, liability of the carrier for death and personal injury under the Convention is strict if the incident occurred in the course of a ‘shipping incident’. This may include the shipwreck, capsizing, collision or stranding of the ship, explosion or fire in the ship or a defect in the ship, unless the carrier can prove that the incident resulted from an act of war, hostilities, civil war, insurrection or a natural phenomenon. In non ‘shipping incident’ cases, the claimant still has to prove fault.

The quid pro quo for this partial presumed fault is a ceiling on damages payable for death or personal injury. The Convention now limits this to 250,000 Special Drawings Rights (currently equivalent to around £280,250) for which the carrier has to have insurance coverage. Where the claim exceeds this sum, there is potential to claim up to a ceiling of 400,000 Special Drawings Rights (currently equivalent to around £448,400) unless the carrier can prove there is no negligence. The burden of proof is reversed if this additional amount is claimed.

Our travel team lawyers often deal with claims far in excess of the Convention’s £450,000 ceiling so, at first glance, bringing a claim against the tour operator under the Package Travel Regulations may seem a more viable route. However, Article 14 (1) provides ‘no action for damages for… personal injury to a passenger… shall be brought against the carrier otherwise than in accordance with this Convention’. Thus, the Convention appears to have exclusive jurisdiction for injured passengers at sea. The court agreed with this interpretation in Norfolk v My Travel (2004), where the claimant pleaded under the Package Travel Regulations but was outside the two year time limit imposed by the Convention. The court refused the claim for being out of time.

Nevertheless, just because the Convention imposes liability on the part of the carrier, ie the cruise line company, the tour operator may still be in the frame for claims. Article 1 of the Convention gives a wide definition of ‘carrier’ which would seem to include the tour operator. Moreover, it is quite conceivable that parallel claims for liabilities other than damages for personal injury (such as ‘loss of enjoyment’), may be advanced against the tour operator at the same time as an injury claim is brought.

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Penningtons Manches Cooper LLP