The Athens Convention in Cruise Ship Cases

The Athens Convention in Cruise Ship CasesIn all cruise line claims by passengers, if the itinerary of the cruise does not include a U.S. port, the Athens Convention applies. That is because the U.S. is not a signatory to the Athens Convention. Thus, if the itinerary does include a U.S. port, the Athens Convention – including its cap on damages – does not apply.

The Athens Convention has been amended over time. In 2002, there were changes which increased the cap on damages in personal injury claims to 400,000 SDR which as of a few years ago equated to about $660,000.  See, e.g., The revised Athens Convention: strict liability and higher limits of liability for passenger claims.

There are 34 signatory states to the Athens Convention. If the flag state of the vessel is not on that list of signatory nations, query whether the ticket contract is allowed to insert that the Athens Convention limitations apply.

Further, the carrier – that is, the cruise line – is strictly liable if the incident was caused by a “defect” in the vessel:

Liability for injury and death

Shipping incidents

The 2002 Athens Convention imposes strict liability for ‘shipping incidents’ – that is, “shipwreck, capsizing, collision or stranding of the ship, explosion or fire in the ship, or defect in the ship” as distinct from, for example, an incident arising from the food served on the ship. Where there is a claim for loss of life or personal injury arising from such an incident, the fault of the carrier is presumed, pursuant to Article 3.3, and it is up to them to disprove this. However, the burden of proving that the incident was a ‘shipping incident’ still rests with the Claimant.

This strict liability applies I believe to all cases involving any defect in flooring or stairs or other aspect of the ship which causes a slip and fall or trip and fall. I call these cases architectural detail cases.

In the transitory foreign substance cases, slip and falls on water for example, a negligence standard applies. The article above cites an English case and says:

The High Court in Lawrence v Norwegian Cruise Line, 6 May 2016 (unreported) provided further guidance as to the standard to be expected of a carrier. The claim was brought by a passenger who tripped over a ‘sill’ when entering a tender boat that was supposed to transport him to the cruise ship. In finding the carrier liable, the court noted that given the majority of cruise passengers were older and retired people, carriers should exercise a standard of care commensurate with caring for elderly passengers who might be less wary of potential danger; for example, in this case, by marking the sill with a warning.

It is unclear whether the court in that case considered that the incident was caused by a defect in the vessel thus making strict liability apply. Certainly, it would apply in that case.

The limitation of liability in the Athens Convention does not apply to sexual assault cases. The same article above discusses this and says:

Intention or recklessness

Article 13.1 of the Convention excludes the carrier’s right to limit liability “if it is proved that the damage resulted from an act or omission of the carrier done with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.” This is specific to intention or recklessness on the part of the carrier, rather than their employees or servants. Similarly, those employees or servants, when sued in their own capacity, cannot limit liability if the damage resulted from their own intention or recklessness (Article 13.2). A similar provision applies to the LLMC Convention (Article 4).

This exclusion was put to effect by the Southern District Court of Florida in Farraway v Oceana Cruises Inc. Case No. 10-cv-24312-JLK, a case concerning the alleged rape and false imprisonment of the plaintiff by a crew member. The Court refused the Defendant permission to amend its Defense to rely upon the limitations under the Convention on the basis that the assaults were intentional torts and therefore came within the recklessness exclusion.

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