Carriage of Passengers
IntroductionThe carriage of passengers is regulated by Part 4 of the Marine Liability Act which implements the 1974 Athens Convention relating to the Carriage of Passengers and their Luggage by Sea and the 1990 Protocol and introduces special Canadian amendments. The operative section is Section 37 which gives the Convention and Protocol the force of law in Canada. ApplicationArticle 2 of the Athens Convention provides that the provisions of the conventions apply to: (a) any international carriage if the carrying “ship” is flagged or registered in a State party to the convention, (b) the “contract of carriage” is made in a State party to the convention, or (c) the place of departure or destination is, according to the contract of carriage, in a State party to the convention. The terms “ship” and “contract of carriage” are defined terms under the Athens Convention. “Ship” is defined as a seagoing vessel. “Contract of carriage” is defined as a contract for the carriage by sea of a “passenger”. “Passenger” is in turn defined as any person carried in a “ship”. The net effect of these definitions and Article 2 is that the Athens Convention applies of its own force only to international contracts for the carriage of passengers in seagoing ships. This application was considered too narrow for Canada and was therefore expanded by sections 36 and 37 of the MLA . Section 36 expands on the definition of ship to include ships of all types, whether seagoing or not. The effect of this change in definition is to make the Convention applicable to the carriage of passengers on inland lakes and rivers. Section 37(2)(a) expressly makes the Convention applicable to contracts for the domestic carriage of passengers as well as international carriage. Section 37 (2)(b) further extends the application of the convention by dispensing with the requirement that there be a contract of carriage in the case of persons (excluding the Master, crew or employees) carried on ships operated for a commercial or public purpose. This is achieved through the following strangely worded provision: 37(2) Articles 1 to 22 of the Convention also apply in respect of... (b) the carriage by water, otherwise than under a contract of carriage, of persons or of persons and their luggage, excluding (i) the master of a ship, a member of a ship’s crew or any other person employed or engaged in any capacity on board a ship on the business of the ship, and (ii) a person carried on board a ship other than a ship operated for a commercial or public purpose. The first clause of section 37(2)(b) extends the application of the Convention to the carriage of all persons regardless of whether there is a contract of carriage. The use of the term “persons” and the discarding of the requirement that there be a contract of carriage make the Convention applicable to virtually every person on board a ship for whatever reason. It is for this reason that the qualifiers in 37(2)(b)(i) and (ii) are introduced. Section 37(2)(b)(i) states that the Convention does not apply to the master or crew of the ship or other persons employed on board the ship. Section 37(2)(b)(ii) is intended to ensure that the Convention does not apply to persons carried on board pleasure craft. In summary, the combination of Article 2 of the conventions and sections 36 and 37 of the MLA make the Convention applicable to both domestic and international carriage of passengers in ships of all sorts on inland lakes and rivers as well as the high seas. In addition, persons (not being master, crew or employees) on board ships used for commercial or public purposes are governed by the Convention regardless of the existence of a contract of carriage. Liability and Burden of ProofPursuant to Article 3, the carrier under the Athens Convention is liable for damages suffered due to the death or personal injury of the passenger or for the loss of or damage to the passenger’s luggage where (1) the incident which caused the damage occurred during the course of carriage and (2) the damage was due to the fault or neglect of the carrier or his servants or agents acting within the scope of their employment. The burden of proving the incident which caused the damage occurred during the course of carriage is on the claimant. In cases of shipwreck, collision, stranding, explosion, fire or defect in the ship, the fault or neglect of the carrier is presumed. Similarly, for claims in respect of loss of or damage to luggage the fault of the carrier is presumed. In all other cases, the burden of proving the fault or neglect of the carrier is on the claimant. Who is LiableThe Athens Convention recognizes that there are often two types of carriers, contracting carriers and performing carriers, and makes both liable. The term “carrier” is defined in Article 1(a) as the person by or on behalf of whom a contract of carriage has been concluded regardless of whether the carriage is performed by him or a performing carrier. The term “performing carrier” is defined as the person who actually performs all or part of the contract of carriage. Pursuant to Article 4, where there is both a contracting and performing carrier, the “carrier” (ie. the contracting carrier) remains liable for the entire carriage. Further, pursuant to Article 4(2) the contracting carrier is made liable for the acts and omissions of the performing carrier. The liability of the “performing carrier” is invoked by Article 4(1) which makes the “performing carrier” subject to and entitled to the provisions of the Convention for that part of the carriage performed by him. Article 4(4) provides that where both the contracting and performing carriers are liable their liability is joint and several. Limitation of LiabilityThe carrier under the Athens Convention is given the right to limit his liability. Article 7 provides that the maximum liability of the carrier for the death of or personal injury to a passenger is 175,000 SDR (approximately C$350,000). Article 8 provides that the maximum liability of the carrier for loss of or damage to cabin luggage is limited to 1,800 SDR (C$3,600) and to 10,000 SDR (C$20,000) for loss of or damage to a vehicle including all luggage carried in the vehicle. Other types of luggage are subject to a limitation of 2,700 SDR (C$5,400) per passenger per carriage. (Note: All SDR amounts are converted to Canadian dollars at a rate of 1 SDR= C$2.) The above limits are individual limits applicable to claims by individual passengers. In the case of claims by multiple passengers, the carrier may seek the right to limit liability to a global figure pursuant to Part 3 of the MLA and the 1976 Convention on Limitation of Liability. Article 19 of the Athens Convention would appear to preserve this right in the carrier. Loss of Right to LimitArticle 13 provides that the carrier will lose his right to limit liability where it is proved that the damage resulted from an act or omission done with intent to cause damage or recklessly and with the knowledge that such damage would probably result. Notice ProvisionsArticle 15 prescribes a notice provision for claims for the loss of or damage to luggage. For “apparent” damage, the passenger is required to give written notice of such damage at the time of disembarkation for cabin luggage or the time of re-delivery for other luggage. In the case of loss of luggage or damage that is not “apparent”, the passenger must give written notice within 15 days from the date of disembarkation or re-delivery. In the absence of written notice, the luggage is presumed to have been received in good condition. Prescription/ Time LimitationArticle 16 prescribes the applicable limitation periods. In the case of personal injury or loss of or damage to luggage the limitation period is two years from the date of disembarkation. In the case of death of the passenger during the carriage the limitation period is two years from the date the passenger should have disembarked. In the case of a death resulting after disembarkation due to a personal injury received during the carriage, the limitation period is two years from the date of the death but shall not exceed three years from the date of disembarkation. JurisdictionArticle 17 prescribes the jurisdictions in which a claim under the Convention must be brought. Those jurisdictions are: the place where the defendant has his permanent residence or principal place of business; the place of departure or of destination under the contract; the place where the claimant is domiciled or has permanent residence provided the defendant also has a place of business in that State; or the place where the contract of carriage was made if the defendant has a place of business in that State. Exclusion ClausesPursuant to Article 18 of the Convention any contractual provision that tends to relieve the carrier of his liability or to fix a lower limit of liability than that prescribed shall be null and void. Similarly, any provision tending to shift the burden of proof which rests upon the carrier or to restrict the claimants right to commence proceedings in the specified jurisdictions is null and void. Case SummariesPersonal Injury – Limitation Periods – Athens Convention – Extension of Suit Time – Application of Provincial Limitation Statutes MacKay v Russell et al., [2006] NBQB 350 See the summary under “Miscellaneous/Personal Injury” where it was held that a claim for personal injury on board a whale watching boat was governed by the Marine Liability Act and the two year limitation period in the Athens Convention and not the provincial limitations statute. Although the limitation period had expired, the court did extend the period due to special circumstances. Carriage of Passengers – Jurisdiction Clause – Athens Convention Friesen v Norwegian Cruise Lines et al., 2003 BCSC 256 This was an application by the Defendant to stay proceedings commenced in British Columbia on the grounds of a jurisdiction clause contained in the passenger ticket. The Plaintiff, a British Columbia resident, was injured on an Alaskan cruise ship which had departed from the port of Vancouver. The Plaintiff argued that the matter was governed by the Athens Convention; Article 17 of which gave her the right to commence the proceedings in British Columbia. The Court, however, held that the Athens Convention was not applicable since Canada had not enacted the Convention at the time of the Plaintiff's accident. Moreover, the fact that the vessel was registered in the Bahamas, a signatory to the Convention, was held to not be sufficient to make Bahamian law applicable. The Court therefore held that the test set out in The Eleftheria, [1969] 2 All E.R. 641, was applicable and the onus was on the Plaintiff to establish a strong cause for not enforcing the jurisdiction clause. The Court held that the Plaintiff had met this onus in that virtually all of the witnesses resided in British Columbia and a stay of the action in favour of Florida would come close to denying the Plaintiff access to a court at all. Failure to Warn Efford v Bundy (January 24, 1996) Victoria Registry No. 1158/92 (B.C.S.C.) In this matter the Plaintiff was injured on board a rigid hull inflatable boat while whale watching off Tofino, British Columbia. The Plaintiff injured her back when the bow of the boat came down hard when crossing the wake of a large fishing vessel. The Plaintiff alleged the Defendant was negligent in his operation of the boat and in failing to warn of the danger. The Court found that the Defendant had operated the boat in accordance with accepted safe boating practices but it also found that the Defendant had failed to adequately warn the Plaintiff. Specifically, the Court held that it was not sufficient that the Defendant had advised the Plaintiff that the bow seat was the roughest and that people with back problems should sit further back. The Court held that the Defendant should also have instructed passengers with respect to the location of safe handholds and the way in which to brace themselves. Nevertheless, the Plaintiff was found 75% at fault because she had a prior back problem and had been warned by her doctors to avoid heavy lifting. For the full text of this decision, click here.
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