I.1. The 1974 Athens Convention, and its successor the 2002 Protocol, provide a liability and insurance regime for passenger ships with regard to passengers and their luggage. Together, they aim to improve compensation for passengers who suffer damages and improve the safety of maritime transport.

The Convention and Protocol also set financial limits of liability for carriers in respect of claims brought by passengers and a two-year time bar for claims to be made, which is typically calculated from the time the passenger disembarked from the vessel.

II.1. A carrier is liable for damage suffered as a result of the death of, or personal injury to,
a passenger, or loss or damage to luggage, if:

–  the incident occurred during the course of carriage; and

–  the incident was due to the fault or neglect of the carrier (fault is presumed in incidents of shipwreck, collision, stranding, explosion, fire or defect in the ship, unless the contrary is proven).

The carrier could limit its liability, unless it acted with intent to cause damage or recklessly and with knowledge that such damage could result, to 46,666 Special Drawing Rights (SDR) per carriage.

III. THE ATHENS PROTOCOL 2002

III.1. Death or personal injury

The 2002 Protocol raised the limit of liability for the death of, or personal injury to, a passenger to 250,000 SDR per passenger on each distinct occasion.

If the death or personal injury is caused by a ‘shipping incident’, the carrier is strictly liable unless the carrier proves that the incident:

– resulted from an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character; or

– was wholly caused by an act or omission done with the intent to cause the incident by a third party.

A ‘shipping incident’ is the shipwreck, capsizing, collision or stranding of the ship, explosion or fire in the ship, or defect in the ship.

If the loss exceeds 250,000 SDR, the carrier is further liable – up to a limit of 400,000 SDR per passenger on each distinct occasion – unless the carrier proves that the incident that caused the loss occurred without the fault or negligence of the carrier.

Where the loss suffered is not caused by a shipping incident, the carrier is liable only if its fault or negligence is proved by the claimant.

IV. DAMAGE TO LUGGAGE AND VEHICLES

IV.1. The carrier is liable for loss of, or damage to, cabin luggage and there is a presumption of fault if the loss results from a ‘shipping incident’. The carrier is also liable for the loss of, or damage to, vehicles, including luggage carried in them, unless the carrier can prove that the incident that caused the loss occurred without its fault or neglect.

The carrier’s limit of liability varies, as follows:

–  The liability of the carrier for the loss of or

damage to cabin luggage is limited to

2,250 SDR per passenger, per carriage.

–  Liability of the carrier for the loss of or damage to other luggage is limited to

3,375 SDR per passenger, per carriage.

–  Liability of the carrier for the loss of or damage to vehicles including all luggage carried in or on the vehicle is limited to 12,700 SDR per vehicle, per carriage.

V. LIMITATION OF LIABILITY

V.1. The 2002 Protocol allows state parties to the convention to vary the limitation levels provided that these are not lower than those in the Protocol. It is therefore vital for the relevant limitation provisions to be checked depending upon the state that has jurisdiction over the claim.

The 2002 Athens Protocol allows for claims to be made directly against the insurer of up to 250,000 SDR.

VI. IMPLEMENTATION OF THE CONVENTION

VI.1. 1974/2002 Athens Convention art. 2. f. 1, the Convention applies primarily to “international carriage”. The fact that the ports of departure and arrival are located in two different states, or even if they are in the same state, the intermediate port is located in a different state is sufficient for the transportation to be considered as “international carriage”. The second condition, m. 2. f. The realization of any of the situations listed in article 2.:

(a) the ship is with the flag of a State Party or is registered in a State Party;

(b) the contract of carriage is concluded in a State Party; or

(c) the place of departure or destination under the contract of carriage is in a State Party.

VII. TÜRKİYE AS A PARTY

VII.1. According to the Circular dated 20/6/2022 published by the World Maritime Organization (“IMO”), the 2002 Protocol art. 20 f. within the article of 25; The date on which the Convention entered into force for the Republic of Turkey is 16.9.2022.

As of today, there are 33 Parties in total to the 2002 Athens Convention, which entered into force on 23/4/2014 in international law. States Parties account for approximately 44.10% of the world’s maritime merchant fleet.

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