This quotation, discussed fiercely among literary circles, is from Shakespeare’s play Henry V (4. 4. 68-9). Shakespeare obviously does not refer to ships but he creates an analogy between the empty vessel and the emptied human heart in which everything echoes and there is room for all sorts of contentions. To the contrary, from a shipping point of view, passenger ships would be considered to have a “greater sound” when filled with passengers and their luggage. The Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974 (“Convention”) and the Protocol of 2002 (“Protocol”) sets out rules to avoid conflicts with the aim of unifying the applicable rules and grant operators and passengers a silent vessel and peaceful experience. This article will elaborate on some important changes introduced under the Convention and Protocol from a Turkish law perpspective.
A law for the approval of the the Protocol had already been passed by the Turkish Parliament on 3 April 2017. The next step in the ratification procees was recently taken when a presidential decree and the official Turkish translation of the Convention as amended by the Protocol was published in the Official Gazette on 20 September 2019. As the third paragraph of Article 17 of the Protocol specifies, the Protocol will come into effect in Turkey three months after the ratification and the presidential decree are deposited with the Secretary-General of the International Maritime Organization.
The Protocol designates its raison d'être as providing for enhanced compensation, introducing strict liability, establishing a simplified procedure for updating the limitation amounts and ensuring the compulsory insurance for the benefit of passengers. This designation reveals the most noteworthy changes introduced by the Protocol. Time-bar is another important revision under the Convention. Nevertheless, one must note that the terms of the Convention as amended by the Protocol had already been incorporated -for the most part- into the Turkish Commercial Code that came into force in July 2012 (“TCC”). Therefore, not all changes brought by the Protocol are novel to Turkish law. The remainder of this article will touch on some important rules under the Protocol in conjunction with their implementation in Turkey.
1. Strict Liability and Enhanced Compensation:
i) Death or Personal Injury
Article 4 of the Protocol revises the carrier’s liability set out in Article 3 of the Convention and introduces a strict liability regime which stipulats that the carrier shall be liable for the loss suffered as a result of the death of or personal injury to a passenger caused by a “shipping incident”1, provided that the loss thereof does not exceed 250,000 units of account (SDR 250,000) on each distinct occasion. The carrier shall compensate the loss irrespective of whether he is at fault concerning the occurrence of the incident. The carrier may avoid liability if it proves that the incident; i) was an act of God/force majeure ii) was the third's party's act or omission done with the intent to cause 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.
Nevertheless, if the loss was not caused by a shipping incident, the defect liability regime becomes applicable. In that case, the carrier may be held liable only if the loss is due to the fault or neglect of the carrier. The burden of proof lies with the claimant.
Article 7, Paragraph 1, of the Convention, as revised by Article 6 of the Protocol, states that the liability of the carrier for the death of or personal injury to a passenger under Article 3 shall not exceed SDR 400,000 per passenger on each distinct occasion. Nevertheless, as the upper limit for strict liability is SDR 250,000, the remaining SDR 150,000 must be subjected to the defect liability regime, i.e. the carrier may avoid paying compensation beyond SDR 250,000 by proving that the incident which caused the loss occurred without the fault or neglect of the carrier.
The strict liability rules and limits of liability explained above were already incorporated into the TCC almost verbatim before the ratification of the Protocol. Accordingly, although enhanced compensation rights and strict liability are two of the innovations introduced by the Protocol, they were already applicable under the TCC.
ii) Damage to Luggage
The third paragraph of the revised Article 3 suggests that the carrier is liable for the loss of or damage to cabin luggage, only if the incident that caused the loss was due to the fault or neglect of the carrier. Existence of such fault or neglect shall be proven by the claimant but if the loss was caused by a shipping incident a presumption in favour of the claimant is triggered. The liability regime herein is not strict and therefore does not require the carrier to compensate for the losses under all circumstances. The carrier may avoid liability by proving the lack of fault or negligence on his/her part (unlike the death or personal injury losses up to the limit of SDR 250,000). Although there is no strict liability here, it is an aggravated liability since the burden of proof lies with the carrier rather than the claimant. Furthermore, the first paragraph of the Article 8, as revised by Article 7 of the Protocol, suggests that the liability of the carrier for the loss of or damage to cabin luggage shall not exceed SDR 2,250 per passenger, per carriage.
The defect liability regime is also applicable for the loss of or damage to luggage other than the cabin luggage. Paragraph 4 of the revised Article 3 suggests that the carrier shall be liable unless he/she proves that the loss occurred without his/her fault or neglect. As for the compensation, the second paragraph of the revised Article 8 suggests that the liability of the carrier for the loss of or damage to vehicles including luggage carried in or on the vehicle shall not exceed SDR 12,700 per vehicle, per carriage. The limit of liability for all other luggage that cannot be categorized as cabin luggage or vehicles or luggage in or on a vehicle, the liability of the carrier shall not exceed SDR 3,375 per passenger, per carriage.
The liability regime explained above is identical with the one endorsed by the TCC.
2. Compulsory Insurance
Article 4bis added by the Protocol obliges carriers to maintain insurance or other financial security, such as the guarantee of a bank or similar financial institution, to cover their liability for the losses arising out of the death of and personal injury to passengers. For this requirement to apply, the ship in question must be registered in a State Party and licensed to carry more than twelve passengers, and it must fall within the scope of the Convention’s scope of application. The limit of the compulsory insurance shall not be less than SDR 250,000 per passenger on each distinct occasion. The compulsory insurance requirement with a limit of not less than SDR 250,000 can also be found under the TCC. On the other hand, the bank guarantee option has not been made available as it would contradict the general Turkish law concept of compulsory insurance.
3. Simplified Procedure for Updating the Limitation Amounts
Article 23 of the Protocol establishes a new system for the amendment of the limits specified above, similar to the tacit acceptance procedure in other IMO conventions such as the 1974 SOLAS Convention2 , the 1976 LLMC and its 1996 Protocol3. The proposals to amend the limits in this Protocol shall be circulated to all State Parties by the International Maritime Organization (IMO), upon the request of at least one half, but not less than six of the States Parties to this Protocol. This circulated proposal is submitted to the Legal Committee of the IMO, to be considered at least six months after the circulation date. The amendments shall be adopted by a two-thirds majority of the participating States Parties to the Convention as revised by this Protocol. An accepted amendment shall enter into force 18 months after its acceptance.
There is no provision in the TCC addressing the tacit acceptance procedure and it has been the subject of a discussion in Turkey whether a separate statutory instrument should be passed in the parliament or at least the Turkish translations of the amended limits are published in the Official Gazette in order for the higher limits to come into force.
Article 16, paragraph 3, of the Convention, which prescribes a three-year time-bar from the date the passenger disembarks or should have disembarked from the vessel (whichever happens later), was revised by Article 9 of the Protocol. According to the new rule under the Protocol, an action is to be brought not later than a) five years after the passenger disembarks or should have disembarked from the vessel, whichever is later; or, if earlier b) 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.
The time-bar under the TCC differs from the revision introduced by the Protocol. Rather than the respective five-year and three-year time bars, the TCC stipulates for a ten-year time-bar for all claims for damage arising out of the death of or injury to the passenger, and a two-year time bar for claims arising out of the loss of or damage to luggage. Having said that, the time-bar provisions of the TCC would not be applicable in cases where the Protocol applies.
The TCC was drafted with the aim to modernize Turkish law by bringing it in line with the texts of current international conventions. The Convention and the Protocol were no exception. Therefore, even though the ratification of the Protocol brings little change to Turkish law, it nevertheless is a welcome development for Turkey to become a party to another essential instrument of international law.
1 Article 3(5)a of the Convention defines the term shipping incident as “shipwreck, capsizing, collision or stranding of the ship, explosion or fire in the ship, or defect in the ship”
2 International Convention for the Safety of Life at Sea (SOLAS), 1974
3 1976 Convention on Limitation of Liability for Maritime Claims and the 1996 Protocol