S.I. No. 552/2012 - European Union (Liability of Carriers of Passengers by Sea) Regulations 2012.
Notice of the making of this Statutory Instrument was published in | ||
“Iris Oifigiúil” of 1st January, 2013. | ||
I, LEO VARADKAR, Minister for Transport, Tourism and Sport, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving full effect to Regulation (EC) No 392/2009 of the European Parliament and of the Council of 23 April 20091 and EU Council Decisions 2012/22/EU and 2012/23/EU, both of 12 December 2011, hereby make the following regulations: | ||
PART 1 | ||
Citation and commencement | ||
1. (1) These Regulations may be cited as the European Union (Liability of Carriers of Passengers by Sea) Regulations 2012. | ||
(2) Regulations 1 to 9 come into operation on 31 December 2012. | ||
(3) Regulation 10 shall come into operation when the Minister makes an order under paragraph (4). | ||
(4) The Minister may make an order bringing Regulation 10 into operation. | ||
(5) Where the Minister makes an order under paragraph (4) he or she shall lay a copy of the order before the Houses of the Oireachtas. | ||
PART 2 | ||
Interpretation (Part 2) | ||
2. (1) In this Part— | ||
“Class B ship” has the meaning assigned to it by Article 4 of Directive 2009/45/EC of the European Parliament and of the Council of 6 May 2009; | ||
“EU Regulation” means Regulation (EC) No 392/2009 of the European Parliament and of the Council of 23 April 20091 on the liability of carriers of passengers by sea in the event of accidents; | ||
“Minister” means Minister for Transport, Tourism and Sport; | ||
“ship” means a sea-going ship. | ||
(2) A word or expression that is used in this Part and is also used in the EU Regulation has, unless the contrary intention appears, the same meaning in this Part as it has in the EU Regulation. | ||
(3) In this Part references to the Athens Convention, or any provision thereof, are references to provisions of that Convention as applied by the EU Regulation. | ||
Application (Part 2) | ||
3. (1) Subject to paragraph (2), this Part applies to the carriage of passengers by sea on ships to which Article 2 applies. | ||
(2) This Part shall apply to the carriage of passengers by sea on Class B ships within the State from 31 December 2018. | ||
EU Regulation — certain provisions to apply | ||
4. For the purposes of the EU Regulation the following shall apply: | ||
(a) The reference to the law of the court in the Athens Convention and Article 6 of the Protocol of 2002 shall be construed as references to the Civil Liability Act 1961 . | ||
(b) The Minister may by order provide that, in relation to a carrier whose principal place of business is in the State, Article 7(1) of the Athens Convention shall have effect with the substitution for the monetary limit specified in that paragraph of a higher monetary limit specified in the order (which shall not be lower than the monetary limit specified in Article 7(1) of that Convention). | ||
(c) A court before which proceedings are brought in pursuance of Article 17 of the Athens Convention to enforce a liability which is limited by virtue of Article 12 of that Convention may at any stage of the proceedings make such order as appears to the court to be just and equitable having regard to the provisions of the said Article 12 and to any other proceedings which have been or are likely to be begun in the State or elsewhere to enforce the liability in whole or in part; without prejudice to the generality of the foregoing such a court shall, where the liability is or may be partly enforceable in other proceedings in the State or elsewhere, have jurisdiction to award an amount less than the court would have awarded if the limitation applied solely to the proceedings before the court or to make any part of its award conditional on the results of any other proceedings. | ||
(d)(i) An action for damages under the Athens Convention shall be deemed for the purposes of every enactment and rule of law to be an action founded on tort. | ||
(ii) Subparagraph (i) shall not have the effect of applying to an action referred to in subparagraph (i) a provision of an enactment or a rule of law that is inconsistent with the Athens Convention. | ||
(e) Section 38 of the Merchant Shipping (Liability of Shipowners and Others) Act 1996 (No. 35 of 1996) shall not relieve a person of any liability— | ||
(i) for loss or damage resulting from any such personal act or omission of the person as is mentioned in Article 4 of the Athens Convention, or | ||
(ii) that is imposed on the person by that Convention. | ||
Failure to provide certain information to passenger | ||
5. A carrier or performing carrier which fails to provide a passenger with the information as required in Article 7 of the EU Regulation shall be guilty of an offence. | ||
Proceedings | ||
6. An offence under this Part may be prosecuted summarily by the Minister. | ||
Penalty | ||
7. A person guilty of an offence under this Part shall be liable on summary conviction to a class A fine. | ||
Offence by body corporate | ||
8. Where an offence under this Part is committed by a body corporate and is proved to have been so committed with the consent, connivance or approval of, or to have been attributable to the neglect on the part of, any person being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person as well as the body corporate commits an offence and is liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence. | ||
PART 3 | ||
Amendment of Part III of Merchant Shipping (Liability of Shipowners and Others) Act 1996 | ||
9. Part III of the Merchant Shipping (Liability of Shipowners and Others) Act 1996 is amended— | ||
(a) in section 18, by inserting before the definition of “the 1974 Convention” the following definition: | ||
“ ‘the EU Regulation’ means Regulation (EC) No 392/2009 of the European Parliament and of the Council of 23 April 20091 on the liability of carriers of passengers by sea in the event of accidents;”, and | ||
(b) by inserting after section 29 the following: | ||
“Part III not to apply to certain claims. | ||
29A.—Part III shall not apply to any claim to which the EU Regulation applies.”. | ||
Further amendments to Merchant Shipping (Liability of Shipowners and Others) Act 1996 | ||
10. The Merchant Shipping (Liability of Shipowners and Others) Act 1996 is amended— | ||
(a) by substituting for section 18 the following: | ||
“18.—(1) In this Part, unless the context otherwise requires— | ||
‘the Athens Convention’ means the Convention relating to the Carriage of Passengers and their Luggage by Sea 2002, originally done at Athens on 13 December 1974, as amended by the 2002 Protocol, and includes the IMO Reservation and Guidelines; | ||
‘the EU Regulation’ means Regulation (EC) No 392/2009 of the European Parliament and of the Council of 23 April 2009; | ||
‘the IMO Reservation and Guidelines’ means the IMO Reservation and Guidelines for implementation of the Athens Convention, adopted by the Legal Committee of the International Maritime Organization on 19 October 2006, an extract of which is set out in Annex II of the EU Regulation; | ||
‘the 2002 Protocol’ means the Protocol to the 1974 Convention, done at London on 1 November 2002, which for convenience of reference is set out in Part II of the Second Schedule. | ||
(2) In this Part, unless the context otherwise requires— | ||
(a) a reference to the 1974 Convention shall be construed as a reference to the Athens Convention, and | ||
(b) a reference to the 1976 Protocol shall be construed as a reference to the 2002 Protocol.”, | ||
(b) in section 19, by deleting “and the 1976 Protocol”, | ||
(c) in section 20, by substituting for paragraph (b) the following: | ||
“(b) both that Convention and the 1976 Protocol, or | ||
(c) the 2002 Protocol,”, | ||
(d) by substituting for section 22 the following: | ||
“22.—The references to the law of the court in the Athens Convention 2002 and Article 6 of the 2002 Protocol shall be construed as references to the Civil Liability Act 1961 .”, | ||
(e) in section 23, by substituting “Article 7(1) of the Athens Convention” for “paragraph 1 (inserted by the 1976 Protocol) of Article 7 of the 1974 Convention”, | ||
(f) in section 27, by substituting “the Athens Convention” for “the 1974 Convention”, | ||
(g) by substituting for section 28 the following: | ||
“28.—(1) An action for damages under the Athens Convention shall be deemed for the purposes of every enactment and rule of law to be an action founded on tort. | ||
(2) Subsection (1) shall not have the effect of applying to an action referred to in subsection (1) a provision of an enactment or a rule of law that is inconsistent with the Athens Convention.”, | ||
(h) by inserting in Part III after section 29A the following: | ||
“Certain enactments to apply to judgements. | ||
29B.—Neither the European Communities (Civil and Commercial Judgements) Regulations ( S.I. No. 52 of 2002 ) nor the Jurisdiction of Courts and Enforcement of Judgements Act 1998 (No. 52 of 1998) shall be rendered inapplicable by Article 17bis of the Athens Convention to judgements following claims under the Athens Convention, and those Regulations or that Act shall, as the case may be, be applicable to such judgements instead of Article 17bis”, | ||
(i) by substituting the following for Part II of the Second Schedule: | ||
“PART II | ||
PROTOCOL OF 2002 TO THE ATHENS CONVENTION | ||
RELATING TO THE CARRIAGE OF PASSENGERS | ||
AND THEIR LUGGAGE BY SEA 1974 | ||
The States Parties to this Protocol, | ||
CONSIDERING that it is desirable to revise the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, done at Athens on 13 December 1974, to provide for enhanced compensation, to introduce strict liability, to establish a simplified procedure for updating the limitation amounts, and to ensure compulsory insurance for the benefit of passengers, | ||
RECALLING that the 1976 Protocol to the Convention introduces the Special Drawing Right as the Unit of Account in place of the gold franc, | ||
HAVING NOTED that the 1990 Protocol to the Convention, which provides for enhanced compensation and a simplified procedure for updating the limitation amounts, has not entered into force, | ||
HAVE AGREED as follows: | ||
ARTICLE 1 | ||
For the purposes of this Protocol: | ||
1. "Convention" means the text of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974. | ||
2. "Organization" means the International Maritime Organization. | ||
3. "Secretary-General" means the Secretary-General of the Organization. | ||
ARTICLE 2 | ||
Article 1, paragraph 1 of the Convention is replaced by the following text: | ||
1. (a)"carrier" means a person by or on behalf of whom a contract of carriage has been concluded, whether the carriage is actually performed by that person or by a performing carrier; | ||
(b)"performing carrier" means a person other than the carrier, being the owner, charterer or operator of a ship, who actually performs the whole or a part of the carriage; and | ||
(c)"carrier who actually performs the whole or a part of the carriage" means the performing carrier, or, in so far as the carrier actually performs the carriage, the carrier. | ||
ARTICLE 3 | ||
1.Article 1, paragraph 10 of the Convention is replaced by the following: | ||
10 “Organization” means the International Maritime Organization. | ||
2.The following text is added as Article 1, paragraph 11, of the Convention: | ||
11 "Secretary-General" means the Secretary-General of the Organization. | ||
ARTICLE 4 | ||
Article 3 of the Convention is replaced by the following text: | ||
Article 3 | ||
Liability of the carrier | ||
1. For the loss suffered as a result of the death of or personal injury to a passenger caused by a shipping incident, the carrier shall be liable to the extent that such loss in respect of that passenger on each distinct occasion does not exceed 250,000 units of account, unless the carrier proves that the incident: | ||
(a) resulted from an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character; or | ||
(b) was wholly caused by an act or omission done with the intent to cause the incident by a third party. | ||
If and to the extent that the loss exceeds the above limit, the carrier shall be further liable unless the carrier proves that the incident which caused the loss occurred without the fault or neglect of the carrier. | ||
2. For the loss suffered as a result of the death of or personal injury to a passenger not caused by a shipping incident, the carrier shall be liable if the incident which caused the loss was due to the fault or neglect of the carrier. The burden of proving fault or neglect shall lie with the claimant. | ||
3. For the loss suffered as a result of the loss of or damage to cabin luggage, the carrier shall be liable if the incident which caused the loss was due to the fault or neglect of the carrier. The fault or neglect of the carrier shall be presumed for loss caused by a shipping incident. | ||
4. For the loss suffered as a result of the loss of or damage to luggage other than cabin luggage, the carrier shall be liable unless the carrier proves that the incident which caused the loss occurred without the fault or neglect of the carrier. | ||
5. For the purposes of this Article: | ||
(a)“shipping incident” means shipwreck, capsizing, collision or stranding of the ship, explosion or fire in the ship, or defect in the ship; | ||
(b)“fault or neglect of the carrier” includes the fault or neglect of the servants of the carrier, acting within the scope of their employment; | ||
(c)“defect in the ship” means any malfunction, failure or non-compliance with applicable safety regulations in respect of any part of the ship or its equipment when used for the escape, evacuation, embarkation and disembarkation of passengers; or when used for the propulsion, steering, safe navigation, mooring, anchoring, arriving at or leaving berth or anchorage, or damage control after flooding; or when used for the launching of life saving appliances; and | ||
(d)“loss” shall not include punitive or exemplary damages. | ||
6. The liability of the carrier under this Article only relates to loss arising from incidents that occurred in the course of the carriage. The burden of proving that the incident which caused the loss occurred in the course of the carriage, and the extent of the loss, shall lie with the claimant. | ||
7. Nothing in this Convention shall prejudice any right of recourse of the carrier against any third party, or the defence of contributory negligence under Article 6 of this Convention. Nothing in this Article shall prejudice any right of limitation under Articles 7 or 8 of this Convention. | ||
8. Presumptions of fault or neglect of a party or the allocation of the burden of proof to a party shall not prevent evidence in favour of that party from being considered. | ||
ARTICLE 5 | ||
The following text is added as Article 4bis of the Convention: | ||
Article 4bis | ||
Compulsory insurance | ||
1. When passengers are carried on board a ship registered in a State Party that is licensed to carry more than twelve passengers, and this Convention applies, any carrier who actually performs the whole or a part of the carriage shall maintain insurance or other financial security, such as the guarantee of a bank or similar financial institution, to cover liability under this Convention in respect of the death of and personal injury to passengers. The limit of the compulsory insurance or other financial security shall not be less than 250,000 units of account per passenger on each distinct occasion. | ||
2. A certificate attesting that insurance or other financial security is in force in accordance with the provisions of this Convention shall be issued to each ship after the appropriate authority of a State Party has determined that the requirements of paragraph 1 have been complied with. With respect to a ship registered in a State Party, such certificate shall be issued or certified by the appropriate authority of the State of the ship’s registry; with respect to a ship not registered in a State Party it may be issued or certified by the appropriate authority of any State Party. This certificate shall be in the form of the model set out in the annex to this Convention and shall contain the following particulars: | ||
(a) name of ship, distinctive number or letters and port of registry; | ||
(b) name and principal place of business of the carrier who actually performs the whole or a part of the carriage; | ||
(c) IMO ship identification number; | ||
(d) type and duration of security; | ||
(e) name and principal place of business of insurer or other person providing financial security and, where appropriate, place of business where the insurance or other financial security is established; and | ||
(f) period of validity of the certificate, which shall not be longer than the period of validity of the insurance or other financial security. | ||
3. (a) A State Party may authorize an institution or an Organization recognised by it to issue the certificate. Such institution or organization shall inform that State of the issue of each certificate. In all cases, the State Party shall fully guarantee the completeness and accuracy of the certificate so issued, and shall undertake to ensure the necessary arrangements to satisfy this obligation. | ||
(b) A State Party shall notify the Secretary-General of: | ||
(i) the specific responsibilities and conditions of the authority delegated to an institution or organization recognised by it; | ||
(ii) the withdrawal of such authority; and | ||
(iii) the date from which such authority or withdrawal of such authority takes effect. | ||
An authority delegated shall not take effect prior to three months from the date from which notification to that effect was given to the Secretary-General. | ||
(c) The institution or organization authorized to issue certificates in accordance with this paragraph shall, as a minimum, be authorized to withdraw these certificates if the conditions under which they have been issued are not complied with. In all cases the institution or organization shall report such withdrawal to the State on whose behalf the certificate was issued. | ||
4. The certificate shall be in the official language or languages of the issuing State. If the language used is not English, French or Spanish, the text shall include a translation into one of these languages, and, where the State so decides, the official language of the State may be omitted. | ||
5. The certificate shall be carried on board the ship, and a copy shall be deposited with the authorities who keep the record of the ship’s registry or, if the ship is not registered in a State Party, with the authority of the State issuing or certifying the certificate. | ||
6. An insurance or other financial security shall not satisfy the requirements of this Article if it can cease, for reasons other than the expiry of the period of validity of the insurance or security specified in the certificate, before three months have elapsed from the date on which notice of its termination is given to the authorities referred to in paragraph 5, unless the certificate has been surrendered to these authorities or a new certificate has been issued within the said period. The foregoing provisions shall similarly apply to any modification which results in the insurance or other financial security no longer satisfying the requirements of this Article. | ||
7. The State of the ship’s registry shall, subject to the provisions of this Article, determine the conditions of issue and validity of the certificate. | ||
8. Nothing in this Convention shall be construed as preventing a State Party from relying on information obtained from other States or the Organization or other international organizations relating to the financial standing of providers of insurance or other financial security for the purposes of this Convention. In such cases, the State Party relying on such information is not relieved of its responsibility as a State issuing the certificate. | ||
9. Certificates issued or certified under the authority of a State Party shall be accepted by other States Parties for the purposes of this Convention and shall be regarded by other States Parties as having the same force as certificates issued or certified by them, even if issued or certified in respect of a ship not registered in a State Party. A State Party may at any time request consultation with the issuing or certifying State should it believe that the insurer or guarantor named in the insurance certificate is not financially capable of meeting the obligations imposed by this Convention. | ||
10. Any claim for compensation covered by insurance or other financial security pursuant to this Article may be brought directly against the insurer or other person providing financial security. In such case, the amount set out in paragraph 1 applies as the limit of liability of the insurer or other person providing financial security, even if the carrier or the performing carrier is not entitled to limitation of liability. The defendant may further invoke the defences (other than the bankruptcy or winding up) which the carrier referred to in paragraph 1 would have been entitled to invoke in accordance with this Convention. Furthermore, the defendant may invoke the defence that the damage resulted from the wilful misconduct of the assured, but the defendant shall not invoke any other defence which the defendant might have been entitled to invoke in proceedings brought by the assured against the defendant. The defendant shall in any event have the right to require the carrier and the performing carrier to be joined in the proceedings. | ||
11. Any sums provided by insurance or by other financial security maintained in accordance with paragraph 1 shall be available exclusively for the satisfaction of claims under this Convention, and any payments made of such sums shall discharge any liability arising under this Convention to the extent of the amounts paid. | ||
12. A State Party shall not permit a ship under its flag to which this Article applies to operate at any time unless a certificate has been issued under paragraphs 2 or 15. | ||
13. Subject to the provisions of this Article, each State Party shall ensure, under its national law, that insurance or other financial security, to the extent specified in paragraph 1, is in force in respect of any ship that is licensed to carry more than twelve passengers, wherever registered, entering or leaving a port in its territory in so far as this Convention applies. | ||
14. Notwithstanding the provisions of paragraph 5, a State Party may notify the Secretary-General that, for the purposes of paragraph 13, ships are not required to carry on board or to produce the certificate required by paragraph 2 when entering or leaving ports in its territory, provided that the State Party which issues the certificate has notified the Secretary-General that it maintains records in an electronic format, accessible to all States Parties, attesting the existence of the certificate and enabling States Parties to discharge their obligations under paragraph 13. | ||
15. If insurance or other financial security is not maintained in respect of a ship owned by a State Party, the provisions of this Article relating thereto shall not be applicable to such ship, but the ship shall carry a certificate issued by the appropriate authorities of the State of the ship’s registry, stating that the ship is owned by that State and that the liability is covered within the amount prescribed in accordance with paragraph 1. Such a certificate shall follow as closely as possible the model prescribed by paragraph 2. | ||
ARTICLE 6 | ||
Article 7 of the Convention is replaced by the following text: | ||
Article 7 | ||
Limit of liability for death and personal injury | ||
1. The liability of the carrier for the death of or personal injury to a passenger under Article 3 shall in no case exceed 400,000 units of account per passenger on each distinct occasion. Where, in accordance with the law of the court seized of the case, damages are awarded in the form of periodical income payments, the equivalent capital value of those payments shall not exceed the said limit. | ||
2. A State Party may regulate by specific provisions of national law the limit of liability prescribed in paragraph 1, provided that the national limit of liability, if any, is not lower than that prescribed in paragraph 1. A State Party, which makes use of the option provided for in this paragraph, shall inform the Secretary-General of the limit of liability adopted or of the fact that there is none. | ||
ARTICLE 7 | ||
Article 8 of the Convention is replaced by the following text: | ||
Article 8 | ||
Limit of liability for loss of or damage to luggage and vehicles | ||
1. The liability of the carrier for the loss of or damage to cabin luggage shall in no case exceed 2,250 units of account per passenger, per carriage. | ||
2. The liability of the carrier for the loss of or damage to vehicles including all luggage carried in or on the vehicle shall in no case exceed 12,700 units of account per vehicle, per carriage. | ||
3. The liability of the carrier for the loss of or damage to luggage other than that mentioned in paragraphs 1 and 2 shall in no case exceed 3,375 units of account per passenger, per carriage. | ||
4. The carrier and the passenger may agree that the liability of the carrier shall be subject to a deductible not exceeding 330 units of account in the case of damage to a vehicle and not exceeding 149 units of account per passenger in the case of loss of or damage to other luggage, such sum to be deducted from the loss or damage. | ||
ARTICLE 8 | ||
Article 9 of the Convention is replaced by the following text: | ||
Article 9 | ||
Unit of Account and conversion | ||
1. The Unit of Account mentioned in this Convention is the Special Drawing Right as defined by the International Monetary Fund. The amounts mentioned in Article 3, paragraph 1, Article 4bis, paragraph 1, Article 7, paragraph l, and Article 8 shall be converted into the national currency of the State of the court seized of the case on the basis of the value of that currency by reference to the Special Drawing Right on the date of the judgment or the date agreed upon by the parties. The value of the national currency, in terms of the Special Drawing Right, of a State Party which is a member of the International Monetary Fund, shall be calculated in accordance with the method of valuation applied by the International Monetary Fund in effect on the date in question for its operations and transactions. The value of the national currency, in terms of the Special Drawing Right, of a State Party which is not a member of the International Monetary Fund, shall be calculated in a manner determined by that State Party. | ||
2. Nevertheless, a State which is not a member of the International Monetary Fund and whose law does not permit the application of the provisions of paragraph 1 may, at the time of ratification, acceptance, approval of or accession to this Convention or at any time thereafter, declare that the Unit of Account referred to in paragraph 1 shall be equal to 15 gold francs. The gold franc referred to in this paragraph corresponds to sixty-five and a half milligrams of gold of millesimal fineness nine hundred. The conversion of the gold franc into the national currency shall be made according to the law of the State concerned. | ||
3. The calculation mentioned in the last sentence of paragraph 1, and the conversion mentioned in paragraph 2 shall be made in such a manner as to express in the national currency of the States Parties, as far as possible, the same real value for the amounts in Article 3, paragraph 1, Article 4bis, paragraph 1, Article 7, paragraph 1, and Article 8 as would result from the application of the first three sentences of paragraph 1. States shall communicate to the Secretary-General the manner of calculation pursuant to paragraph 1, or the result of the conversion in paragraph 2, as the case may be, when depositing an instrument of ratification, acceptance, approval of or accession to this Convention and whenever there is a change in either. | ||
ARTICLE 9 | ||
Article 16, paragraph 3, of the Convention is replaced by the following text: | ||
3. The law of the Court seized of the case shall govern the grounds for suspension and interruption of limitation periods, but in no case shall an action under this Convention be brought after the expiration of any one of the following periods of time: | ||
(a) A period of five years beginning with the date of disembarkation of the passenger or from the date when disembarkation should have taken place, whichever is later; or, if earlier | ||
(b) a period of three years beginning with the date when the claimant knew or ought reasonably to have known of the injury, loss or damage caused by the incident. | ||
ARTICLE 10 | ||
Article 17 of the Convention is replaced by the following text: | ||
Article 17 | ||
Competent jurisdiction | ||
1. An action arising under Articles 3 and 4 of this Convention shall, at the option of the claimant, be brought before one of the courts listed below, provided that the court is located in a State Party to this Convention, and subject to the domestic law of each State Party governing proper venue within those States with multiple possible forums: | ||
(a) the court of the State of permanent residence or principal place of business of the defendant, or | ||
(b) the court of the State of departure or that of the destination according to the contract of carriage, or | ||
(c) the court of the State of the domicile or permanent residence of the claimant, if the defendant has a place of business and is subject to jurisdiction in that State, or | ||
(d) the court of the State where the contract of carriage was made, if the defendant has a place of business and is subject to jurisdiction in that State. | ||
2. Actions under Article 4bis of this Convention shall, at the option of the claimant, be brought before one of the courts where action could be brought against the carrier or performing carrier according to paragraph 1. | ||
3. After the occurrence of the incident which has caused the damage, the parties may agree that the claim for damages shall be submitted to any jurisdiction or to arbitration. | ||
ARTICLE 11 | ||
The following text is added as Article 17bis of the Convention: | ||
Article 17bis | ||
Recognition and enforcement | ||
1. Any judgment given by a court with jurisdiction in accordance with Article 17 which is enforceable in the State of origin where it is no longer subject to ordinary forms of review, shall be recognised in any State Party, except | ||
(a) where the judgment was obtained by fraud; or | ||
(b) where the defendant was not given reasonable notice and a fair opportunity to present the case. | ||
2. A judgment recognised under paragraph 1 shall be enforceable in each State Party as soon as the formalities required in that State have been complied with. The formalities shall not permit the merits of the case to be re-opened. | ||
3. A State Party to this Protocol may apply other rules for the recognition and enforcement of judgments, provided that their effect is to ensure that judgments are recognised and enforced at least to the same extent as under paragraphs 1 and 2. | ||
ARTICLE 12 | ||
Article 18 of the Convention is replaced by the following text: | ||
Article 18 | ||
Invalidity of contractual provisions | ||
Any contractual provision concluded before the occurrence of the incident which has caused the death of or personal injury to a passenger or the loss of or damage to the passenger’s luggage, purporting to relieve any person liable under this Convention of liability towards the passenger or to prescribe a lower limit of liability than that fixed in this Convention except as provided in Article 8, paragraph 4, and any such provision purporting to shift the burden of proof which rests on the carrier or performing carrier, or having the effect of restricting the options specified in Article 17, paragraphs 1 or 2, shall be null and void, but the nullity of that provision shall not render void the contract of carriage which shall remain subject to the provisions of this Convention. | ||
ARTICLE 13 | ||
Article 20 of the Convention is replaced by the following text: | ||
Article 20 | ||
Nuclear damage | ||
No liability shall arise under this Convention for damage caused by a nuclear incident: | ||
(a) if the operator of a nuclear installation is liable for such damage under either the Paris Convention of 29 July 1960 on Third Party Liability in the Field of Nuclear Energy as amended by its Additional Protocol of 28 January 1964, or the Vienna Convention of 21 May 1963 on Civil Liability for Nuclear Damage, or any amendment or Protocol thereto which is in force; or | ||
(b) if the operator of a nuclear installation is liable for such damage by virtue of a national law governing the liability for such damage, provided that such law is in all respects as favourable to persons who may suffer damage as either the Paris or the Vienna Conventions or any amendment or Protocol thereto which is in force. | ||
ARTICLE 14 | ||
Model certificate | ||
1. The model certificate set out in the annex to this Protocol shall be incorporated as an annex to the Convention. | ||
2. The following text is added as Article 1bis of the Convention: | ||
“Article 1bis | ||
Annex | ||
The annex to this Convention shall constitute an integral part of the Convention”. | ||
ARTICLE 15 | ||
Interpretation and application | ||
1. The Convention and this Protocol shall, as between the Parties to this Protocol, be read and interpreted together as one single instrument. | ||
2. The Convention as revised by this Protocol shall apply only to claims arising out of occurrences which take place after the entry into force for each State of this Protocol. | ||
3. Articles 1 to 22 of the Convention, as revised by this Protocol, together with Articles 17 to 25 of this Protocol and the annex thereto, shall constitute and be called the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 2002. | ||
ARTICLE 16 | ||
The following text is added as Article 22bis of the Convention. | ||
Article 22bis | ||
Final clauses of the Convention | ||
The final clauses of this Convention shall be Articles 17 to 25 of the Protocol of 2002 to the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974. References in this Convention to States Parties shall be taken to mean references to States Parties to that Protocol. | ||
FINAL CLAUSES | ||
ARTICLE 17 | ||
Signature, ratification, acceptance, approval and accession | ||
1. This Protocol shall be open for signature at the Headquarters of the Organization from 1 May 2003 until 30 April 2004 and shall thereafter remain open for accession. | ||
2. States may express their consent to be bound by this Protocol by: | ||
(a) signature without reservation as to ratification, acceptance or approval; or | ||
(b) signature subject to ratification, acceptance or approval followed by ratification, acceptance or approval; or | ||
(c) accession. | ||
3. Ratification, acceptance, approval or accession shall be effected by the deposit of an instrument to that effect with the Secretary-General. | ||
4. Any instrument of ratification, acceptance, approval or accession deposited after the entry into force of an amendment to this Protocol with respect to all existing States Parties, or after the completion of all measures required for the entry into force of the amendment with respect to those States Parties shall be deemed to apply to this Protocol as modified by the amendment. | ||
5. A State shall not express its consent to be bound by this Protocol unless, if Party thereto, it denounces: | ||
(a) the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, done at Athens on 13 December 1974; | ||
(b) the Protocol to the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, done at London on 19 November 1976; and | ||
(c) the Protocol of 1990 to amend the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, done at London on 29 March 1990, with effect from the time that this Protocol will enter into force for that State in accordance with Article 20. | ||
ARTICLE 18 | ||
States with more than one system of law | ||
1. If a State has two or more territorial units in which different systems of law are applicable in relation to matters dealt with in this Protocol, it may at the time of signature, ratification, acceptance, approval or accession declare that this Protocol shall extend to all its territorial units or only to one or more of them, and may modify this declaration by submitting another declaration at any time. | ||
2. Any such declaration shall be notified to the Secretary-General and shall state expressly the territorial units to which this Protocol applies. | ||
3. In relation to a State Party which has made such a declaration: | ||
(a) references to the State of a ship’s registry and, in relation to a compulsory insurance certificate, to the issuing or certifying State, shall be construed as referring to the territorial unit respectively in which the ship is registered and which issues or certifies the certificate; | ||
(b) references to the requirements of national law, national limit of liability and national currency shall be construed respectively as references to the requirements of the law, the limit of liability and the currency of the relevant territorial unit; and | ||
(c) references to courts, and to judgments which must be recognised in States Parties, shall be construed as references respectively to courts of, and to judgments which must be recognised in, the relevant territorial unit. | ||
ARTICLE 19 | ||
Regional Economic Integration Organizations | ||
1. A Regional Economic Integration Organization, which is constituted by sovereign States that have transferred competence over certain matters governed by this Protocol to that Organization, may sign, ratify, accept, approve or accede to this Protocol. A Regional Economic Integration Organization which is a Party to this Protocol shall have the rights and obligations of a State Party, to the extent that the Regional Economic Integration Organization has competence over matters governed by this Protocol. | ||
2. Where a Regional Economic Integration Organization exercises its right of vote in matters over which it has competence, it shall have a number of votes equal to the number of its Member States which are Parties to this Protocol and which have transferred competence to it over the matter in question. A Regional Economic Integration Organization shall not exercise its right to vote if its Member States exercise theirs, and vice versa. | ||
3. Where the number of States Parties is relevant in this Protocol, including but not limited to Articles 20 and 23 of this Protocol, the Regional Economic Integration Organization shall not count as a State Party in addition to its Member States which are States Parties. | ||
4. At the time of signature, ratification, acceptance, approval or accession the Regional Economic Integration Organization shall make a declaration to the Secretary-General specifying the matters governed by this Protocol in respect of which competence has been transferred to that Organization by its Member States which are signatories or Parties to this Protocol and any other relevant restrictions as to the scope of that competence. The Regional Economic Integration Organization shall promptly notify the Secretary-General of any changes to the distribution of competence, including new transfers of competence, specified in the declaration under this paragraph. Any such declarations shall be made available by the Secretary-General pursuant to Article 24 of this Protocol. | ||
5. States Parties which are Member States of a Regional Economic Integration Organization which is a Party to this Protocol shall be presumed to have competence over all matters governed by this Protocol in respect of which transfers of competence to the Organization have not been specifically declared or notified under paragraph 4. | ||
ARTICLE 20 | ||
Entry into force | ||
1. This Protocol shall enter into force twelve months following the date on which 10 States have either signed it without reservation as to ratification, acceptance or approval or have deposited instruments of ratification, acceptance, approval or accession with the Secretary-General. | ||
2. For any State which ratifies, accepts, approves or accedes to this Protocol after the conditions in paragraph 1 for entry into force have been met, this Protocol shall enter into force three months after the date of deposit by such State of the appropriate instrument, but not before this Protocol has entered into force in agreement with paragraph 1. | ||
ARTICLE 21 | ||
Denunciation | ||
1. This Protocol may be denounced by any State Party at any time after the date on which this Protocol comes into force for that State. | ||
2. Denunciation shall be effected by the deposit of an instrument to that effect with the Secretary-General. | ||
3. A denunciation shall take effect twelve months, or such longer period as may be specified in the instrument of denunciation, after its deposit with the Secretary-General. | ||
4. As between the States Parties to this Protocol, denunciation by any of them of the Convention in accordance with Article 25 thereof shall not be construed in any way as a denunciation of the Convention as revised by this Protocol. | ||
ARTICLE 22 | ||
Revision and Amendment | ||
1. A Conference for the purpose of revising or amending this Protocol may be convened by the Organization. | ||
2. The Organization shall convene a Conference of States Parties to this Protocol for revising or amending this Protocol at the request of not less than one-third of the States Parties. | ||
ARTICLE 23 | ||
Amendment of limits | ||
1. Without prejudice to the provisions of Article 22, the special procedure in this Article shall apply solely for the purposes of amending the limits set out in Article 3, paragraph 1, Article 4bis, paragraph 1, Article 7, paragraph 1 and Article 8 of the Convention as revised by this Protocol. | ||
2. Upon the request of at least one half, but in no case less than six, of the States Parties to this Protocol, any proposal to amend the limits, including the deductibles, specified in Article 3, paragraph 1, Article 4bis, paragraph 1, Article 7, paragraph 1, and Article 8 of the Convention as revised by this Protocol shall be circulated by the Secretary-General to all Members of the Organization and to all States Parties. | ||
3. Any amendment proposed and circulated as above shall be submitted to the Legal Committee of the Organization (hereinafter referred to as "the Legal Committee") for consideration at a date at least six months after the date of its circulation. | ||
4. All States Parties to the Convention as revised by this Protocol, whether or not Members of the Organization, shall be entitled to participate in the proceedings of the Legal Committee for the consideration and adoption of amendments. | ||
5. Amendments shall be adopted by a two-thirds majority of the States Parties to the Convention as revised by this Protocol present and voting in the Legal Committee expanded as provided for in paragraph 4, on condition that at least one half of the States Parties to the Convention as revised by this Protocol shall be present at the time of voting. | ||
6. When acting on a proposal to amend the limits, the Legal Committee shall take into account the experience of incidents and, in particular, the amount of damage resulting therefrom, changes in the monetary values and the effect of the proposed amendment on the cost of insurance. | ||
7. (a) No amendment of the limits under this Article may be considered less than five years from the date on which this Protocol was opened for signature nor less than five years from the date of entry into force of a previous amendment under this Article. | ||
(b) No limit may be increased so as to exceed an amount which corresponds to the limit laid down in the Convention as revised by this Protocol increased by six per cent per year calculated on a compound basis from the date on which this Protocol was opened for signature. | ||
(c) No limit may be increased so as to exceed an amount which corresponds to the limit laid down in the Convention as revised by this Protocol multiplied by three. | ||
8. Any amendment adopted in accordance with paragraph 5 shall be notified by the Organization to all States Parties. The amendment shall be deemed to have been accepted at the end of a period of eighteen months after the date of notification, unless within that period not less than one fourth of the States that were States Parties at the time of the adoption of the amendment have communicated to the Secretary-General that they do not accept the amendment, in which case the amendment is rejected and shall have no effect. | ||
9. An amendment deemed to have been accepted in accordance with paragraph 8 shall enter into force eighteen months after its acceptance. | ||
10. All States Parties shall be bound by the amendment, unless they denounce this Protocol in accordance with Article 21, paragraphs 1 and 2 at least six months before the amendment enters into force. Such denunciation shall take effect when the amendment enters into force. | ||
11. When an amendment has been adopted but the eighteen-month period for its acceptance has not yet expired, a State which becomes a State Party during that period shall be bound by the amendment if it enters into force. A State which becomes a State Party after that period shall be bound by an amendment which has been accepted in accordance with paragraph 8. In the cases referred to in this paragraph, a State becomes bound by an amendment when that amendment enters into force, or when this Protocol enters into force for that State, if later. | ||
ARTICLE 24 | ||
Depositary | ||
1. This Protocol and any amendments adopted under Article 23 shall be deposited with the Secretary-General. | ||
2. The Secretary-General shall: | ||
(a) inform all States which have signed or acceded to this Protocol of: | ||
(i) each new signature or deposit of an instrument of ratification, acceptance, approval or accession together with the date thereof; | ||
(ii) each declaration and communication under Article 9, paragraphs 2 and 3, Article 18, paragraph 1 and Article 19, paragraph 4 of the Convention as revised by this Protocol; | ||
(iii) the date of entry into force of this Protocol; | ||
(iv) any proposal to amend the limits which has been made in accordance with Article 23, paragraph 2 of this Protocol; | ||
(v) any amendment which has been adopted in accordance with Article 23, paragraph 5 of this Protocol; | ||
(vi) any amendment deemed to have been accepted under Article 23, paragraph 8 of this Protocol, together with the date on which that amendment shall enter into force in accordance with paragraphs 9 and 10 of that Article; | ||
(vii) the deposit of any instrument of denunciation of this Protocol together with the date of the deposit and the date on which it takes effect; | ||
(viii) any communication called for by any Article of this Protocol; | ||
(b) transmit certified true copies of this protocol to all States which have signed or acceded to this Protocol. | ||
3. As soon as this Protocol comes into force, the text shall be transmitted by the Secretary-General to the Secretariat of the United Nations for registration and publication in accordance with Article 102 of the Charter of the United Nations. | ||
ARTICLE 25 | ||
Languages | ||
This Protocol is established in a single original in the Arabic, Chinese, English, French, Russian and Spanish languages, each text being equally authentic. | ||
DONE AT LONDON this first day of November two thousand and two. | ||
IN WITNESS WHEREOF the undersigned, being duly authorised by their respective Governments for that purpose, have signed this Protocol. | ||
ANNEX | ||
CERTIFICATE OF INSURANCE OR OTHER FINANCIAL SECURITY IN RESPECT OF LIABILITY FOR THE DEATH OF AND PERSONAL INJURY TO PASSENGERS | ||
Issued in accordance with the provisions of Article 4bis of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 2002, | ||
| ||
This is to certify that there is in force in respect of the above-named ship a policy of insurance or other financial security satisfying the requirements of Article 4bis of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 2002. | ||
Type of Security .............. | ||
Duration of Security .............. | ||
Name and address of the insurer(s) and/or guarantor(s) | ||
Name .............. | ||
Address .............. | ||
.............. | ||
.............. | ||
This certificate is valid until .............. | ||
Issued or certified by the Government of .............. | ||
.............. | ||
(Full designation of the State) | ||
OR | ||
The following text should be used when a State Party avails itself of Article 4bis, paragraph 3: | ||
The present certificate is issued under the authority of the Government of ......................................... (full designation of the State) by ......................................................... (name of institution or organisation) | ||
At ................................... On ...................................... | ||
(Place) (Date) | ||
................................................................ | ||
(Signature and Title of issuing or certifying official) | ||
| ||
EXPLANATORY NOTES: | ||
1. If desired, the designation of the State may include a reference to the competent public authority of the country where the Certificate is issued. | ||
2. If the total amount of security has been furnished by more than one source, the amount of each of them should be indicated. | ||
3. If security is furnished in several forms, these should be enumerated. | ||
4. The entry “Duration of Security” must stipulate the date on which such security takes effect. | ||
5. The entry “Address” of the insurer(s) and/or guarantor(s) must indicate the principal place of business of the insurer(s) and/or guarantor(s). If appropriate, the place of business where the insurance or other security is established shall be indicated. | ||
”. | ||
| ||
GIVEN under my Official Seal, | ||
21 December 2012. | ||
LEO VARADKAR, | ||
Minister for Transport, Tourism and Sport. | ||
INFORMATION NOTE | ||
(This note is not part of the Instrument and does purport to be a legal interpretation) | ||
The purpose of these Regulations is to give full effect to Regulation (EU) No. 392/2009 of the European Parliament and of the Council of 23 April 2009 on the liability of carriers of passengers by sea in the event of accidents. The Regulations defers the application of Regulation (EU) No. 392/2009 to Class B ships until 31st December 2018 in accordance with article 11.2 of the EU Regulation. | ||
Regulation (EU) No.392/2009 incorporates the provisions of the 2002 protocol to the Athens Convention relating to the carriage of passengers and their luggage by Sea, 1974 into EU Law and extends the application to certain types of domestic carriers. It covers liability of the carrier in respect of passengers, their luggage and their vehicles, as well as mobility equipment in the event of accidents. It raises the limits of liability, requires carriers to have mandatory insurance in place, and places an obligation on carriers to provide information to passengers regarding their rights under Regulation (EU) No. 392/2009. | ||
The Regulations also gives full effect to EU Council decisions 2012/22/EU and 2012/23/EU concerning the accession of the European Union to the 2002 Protocol to the Athens Convention by amending Part III of the Merchant Shipping (Liability of Shipowners and Others) Act 1996 (No. 35 of 1996) thus providing in legislation for the Accession by Ireland to the 2002 Protocol to the Athens Convention. | ||
The Regulations also provide for penalties for infringement of the provisions of Regulation (EU) No. 392/2009 and these Regulations. | ||
