Regulations to implement the 2002 Protocol to the Athens Convention relating to the carriage of passengers and their luggage by sea: Law drafting instructions

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A decision made 28 October 2016:

Decision Reference: MD-E-2016-0049
Decision Summary Title :	Athens Protocol		Date of Decision Summary:	21 October 2016
Decision Summary Author:	Head of Maritime Administration		Decision Summary: Public or Exempt?	Public
Type of Report: Oral or Written?	Written		Person Giving Oral Report:	N/a
Written Report Title :	Law Drafting Instructions – Regulations to implement the 2002 Athens Protocol		Date of Written Report:	21 October 2016
Written Report Author:	Head of Maritime Administration		Written Report : Public or Exempt?	Report – public Instructions - Exempt article 36(1)
Subject: Law Drafting Instructions – Regulations to implement the 2002 Protocol to the Athens Convention relating to the carriage of passengers and their luggage by sea.
Decision(s): The Minister approved the law drafting instructions aimed at increasing the limits of liability for carriers and introducing compulsory insurance.
Reason(s) for Decision: The current Convention, dating from 1989, applies to Jersey. The liability levels are well out-of-date. After resolution of protracted issues concerning insurance and the workability of new procedures, the UK ratified the protocol in 2014. International voyages are already affected and UK domestic voyages will be affected from December 2016. The Island has indicated its wish to follow suit and this is in the interests of sea passengers travelling to and from Jersey as well as potentially for those in Jersey vessels overseas. The authority to implement the changes rests with the Shipping (Jersey) Law 2002 and it is therefore now time to act.
Resource Implications: There are no new financial, property, ICT or human resources issues arising.
Action required: The Law Draftsman is requested to develop the appropriate Regulations and Order.
Signature: Senator L J Farnham		Position: Minister for Economic Development, Tourism, Sport and Culture
Date Signed:		Date of Decision (If different from Date Signed):

Regulations to implement the 2002 Protocol to the Athens Convention relating to the carriage of passengers and their luggage by sea: Law drafting instructions

Athens convention relating to the carriage of passengers and their luggage by sea - 2002 Protocol

Introduction

The original 1974 Convention established a regime of liability for damage suffered by passengers in seagoing vessels. Broadly speaking, it declared a carrier liable for damage or loss suffered by a passenger if the incident causing the damage occurred in the course of the carriage and was due to the fault or neglect of the carrier.

Subsequently, the 1976 Protocol made the unit of account the Special Drawing Right (SDR), replacing the franc, as the applicable unit of account. A later protocol in 1990 was meant to raise the limits set out in the convention but it did not enter into force and has now been superseded by the 2002 Protocol.

The 2002 Protocol introduces compulsory insurance for carriers and substantially raises the limits of liability. It provides for automatic amendments to these limits through tacit acceptance at the IMO and gives passengers the right to make a claim of compensation directly against the insurer, rather than through the carrier.

The Protocol came into force internationally on 23 April 2014. As with the original convention, it applies only to international voyages. Notwithstanding that position, the EU (and hence the UK) have extended its effect to passenger ships on domestic offshore [1] voyages from 30 December 2016 and to certain inshore [2] voyages from 30 December 2018.

Application in Jersey

The UK ratified the 1974 Convention and 1976 Protocol on behalf of Jersey in 1987 and 1989 respectively. Thus the Convention has provided some protection for passengers on international voyages over the last 29 years. By Order in Council in 1987 this was extended under English law to cover voyages between the Channel Islands and the UK.

Because the limits of liability were not raised by the 1990 protocol, the limits both for Jersey and internationally are now well out-of-date. Current limits for death or personal injury (if not caused with intent or recklessly) allow the carrier to pay out no more than £48,000. This would rise to £250,000, based on the value of special drawing rights as of 30 June 2016.

Policy Position

The Policy and Resources Committee received legal advice in 2005 that the 2002 Protocol should be extended to Jersey. However, there were issues concerning the nature of international voyages, the effect on Jersey of the EU Regulation that was being implemented by the UK and worries concerning the core liability issues if a terrorist attack occurred. The UK was formally advised in 2011 that the Island intended to seek the extension of the Protocol but these matters remained unresolved at an international level. Meanwhile the UK had not ratified the Convention and Jersey could not seek ratification ahead of the UK because of our constitutional position.

The UK was finally able to ratify the protocol on 23 April 2014 simultaneously with it coming into force internationally. The EU has also ratified the Convention and this should mean that passengers will benefit from the provisions of the protocol for voyages between Jersey and France [3]. UK legislation enacting EU Regulations means ratification will be extended to passengers on UK and EU domestic voyages over the next two years but not on inter-Island voyages or voyages from Jersey to another non-EU destination. Hence now is the time to act to close that loop-hole.

An additional advantage of having the protocol extended to the Island is that local inspection of insurance certificates will be possible. Known as port state control, this will allow local inspectors to verify that a ship has sufficient liability cover. Crucially the requirement will be enforceable, even if the flag-state of the ship concerned had not ratified the protocol itself [4].

Law drafting instructions have been prepared. The policy position is therefore to apply the new protocol to Jersey as soon as possible and ensure that the relevant procedural and enforcement powers are in place.

21 October 2016

[1] Class A vessels – domestic passenger vessels operating more than 20 nm offshore in open sea

[2] Class B vessels – domestic passenger vessels operating not more than 20nm from land.

[3] At the time of writing, France has not ratified the protocol so it is not entirely clear if EU ratification is adequate by itself for enforcement purposes.

[4] At the time of writing the Bahamian flag also had not ratified the protocol.