With the increase in popularity of the number of passengers booking cruises there has also been a substantial increase in the number of passengers injured through slips, trips, falls and gastric illnesses at sea.
Personal Injury claims must be brought under the provisions of the Athens Convention ( 1974) .The Convention entered into force in April 1987 and was amended by a Protocol in November 2002. The main thrust of the 2002 Protocol is the compulsory requirement for all carriers performing carriage by sea which have more than 12 passengers to have indemnity insurance in respect of liability for death and personal injury to passengers in accordance with Athens Convention limits.
The 2002 Protocol came into force in April 2014 and with regard to Ireland, on the 7th November 2014. The Protocol also raised the limits on liability which limits are set out in Special Drawing Rights (SDR) which is a mix of currency values established by the International Monetary Fund (IMF). The current value of an SDR in Euro is available on the IMF’s website.
EU Regulations
Regulation 392/2009 on the liability of carriers of passengers by sea in the event of accidents applies in all European Union member states. The Regulation lays down a regime of liability and insurance for the carriage of passengers by sea, based on:
- The Athens Convention, as amended by the 2002 Protocol
- The IMO Guidelines
- Death or Injury to Passengers
Where loss is suffered as a result of the death of or personal injury to a passenger caused by a shipping incident, the carrier is strictly liable to 250,000 SDRs. A shipping incident is a shipwreck, capsizing, collision or stranding of the ship, explosion or fire in the ship or defect in the ship. If the loss or damage is more than 250,000 SDRs the carrier is further liable to a limit of €400,000 SDRs unless the carrier can prove it was not at fault.
Where a death or personal injury is caused by a shipping incident, the carrier must make an advance payment within 15 days to cover immediate economic needs, proportionate to the damages suffered. In the case of death, the minimum payment is €21,000. The advance payment is not an admission of liability by the carrier.
What Information has to be given to Passengers?
The carrier must ensure that the passengers are informed clearly and precisely of their rights under this Regulation. The information must be provided in the most appropriate format:
- At all points of sale, including by telephone and via the internet where the contract of carriage is signed in a member state.
- Prior to departure where the place of departure is in a member state.
- Upon departure in all other cases.
Where Can I Sue for a Cruise Ship Injury?
There is a special jurisdictional regime for Convention Claims. It is not governed by the Brussels I or the Common Law. A claimant is given a choice of forum, subject to some limitations. He/she must choose the courts of a country which is a state party to the Convention which is also either:
(i) The country of permanent residence or principal place of business of the Defendant, or
(ii) The country of departure or destination according to the contract of carriage, or
(iii) If the Defendant has a place of business in a particular country and is subject to jurisdiction in that country.
It is also open to the parties to a claim to agree to submit to any jurisdiction or arbitration after the occurrence of an incident causing damage.
Direct Right of Action against Carrier’s Insurer Explained
Any claim for compensation may be brought directly against the insurer of the carrier who actually performs whole or part of the carriage. All performing carriers are compelled to hold insurance cover in relation to liability under the Convention for the death of and personal injury to passengers.
It is very important to instruct an Irish law firm who have experience in dealing with claims under the Athens Convention. Travel Litigation Personal Injury actions can be complicated with regard to the choice of country where you can sue and the amount of compensation that you will be able to recover. Moloney & Company Solicitors have many years of experience acting for passengers injured on cruise ships and would be delighted to provide you with a preliminary opinion in relation to your case. Please feel free to email us at info@moloneysolicitors.ie for a no obligation legal opinion.
