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The legislative framework of the Maritime Passenger Claims under the Cyprus Law

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The legislative framework of the Maritime Passenger Claims under the Cyprus Law

        I.                        Applicable international conventions and national laws

Cyprus is not a contracting member of the Athens Convention, but through Law No. 5(I)/2014, has transposed the EU Passenger Liability Regulation (EC) No. 392/2009, which incorporates certain provisions of the Athens Convention into its national law. In addition, the Shipwrecked Passengers Law, Chapter 297, and Articles 2(b) and 17 of the LLMC Convention 1976, as amended by 1996 LLMC Protocol, also apply to maritime passenger claims in Cyprus. Moreover, the Regulation (EU) No. 1177/2010 concerning the rights of passengers when travelling by sea and inland waterway is also applicable in Cyprus.

      II.                        EU Passenger Liability Regulation (EC) No. 392/2009

The Provisions of the Regulation (EC) No. 392/2009 of the European Parliament and of the Council of 23 April 2009 on the liability of carriers of passengers by sea in the event of accidents are fully applicable in Cyprus as an EU Member State. The Regulation lays down a harmonised regime of liability and insurance for the carriage of passengers by sea, based on the Athens Convention and the International Maritime Organisation guidelines for implementation of the Athens Convention, adopted in 2006.

Operators of seagoing vessels licensed to carry more than 12 passengers are required to maintain compulsory insurance or other financial security of no fewer than 250,000 special drawing rights per passenger per incident to cover liability under the Athens Convention, in respect of death of and personal injury to passengers. Ships must obtain a certificate from their flag state confirming that insurance or other financial security is in force.

The definition of ‘passenger’ in Article 1(4) of Athens Convention, which has been transported in the Cypriot law through the EU Passenger Liability Regulation, encompasses anyone who is carried on a ship under a contract of carriage, or who (with the consent of the carrier) is accompanying a vehicle or live animals that are covered by a contract of carriage of goods not governed by the Athens Convention.

This definition also encompasses the drivers of vehicles carried on board roll-on/roll-off cargo vessels; consequently, the Cyprus authorities consider that cargo vessels which carry more than 12 such persons are also subject to the Athens Convention and the Regulation. Such vessels must therefore have the necessary compulsory insurance in place and submit evidence of insurance cover in order to obtain the requisite certificate from the Cyprus authorities. International carriage is defined under Article 1(9) of Athens Convention as any carriage in which, according to the contract of carriage, the place of departure and the place of destination are situated in two different States, or in a single State if, according to the contract of carriage or the scheduled itinerary, there is an intermediate port of call in another State.

For the sake of consistency and clarity, it is useful to determine the term ‘seagoing’. According to article 1(3) of the Athens Convention, a ship is a ‘seagoing vessel’. The English Admiralty Court in The Sea Eagle case, held that the meaning as to what a ‘seagoing vessel’ is, depends on the particular voyage. In a nutshell, it depends on the facts of each case per se. Last but not least, the Admiralty Registrar highlighted that the key factor was not ‘whether a ship could go to sea, but whether she did go to sea’.

    III.                        Regulation (EU) No. 1177/2010

The Regulation (EU) No. 1177/2010, concerning the rights of passengers when travelling by sea and inland waterway, is also applicable in Cyprus, along with the European Community Regulations and European Community Decisions Regulations of 2015.

More precisely, Regulation (EU) No. 1177/2010 provides for a minimum set of rights of passengers travelling by sea and inland waterway. More specifically, it establishes the right of passengers travelling by sea and inland waterways to assistance in cases of cancelled or delayed departures and lays down the right in certain circumstances to compensation in cases of delay in arrival.

Furthermore, the Regulation also aims to provide disabled persons and persons with reduced mobility with the same opportunities for maritime and inland waterway travel as the ones enjoyed by passengers in other transport sectors across the EU. On the other hand, the Regulations of 2015 introduce a mechanism of imposition of administrative fines, in case of infringement of certain provisions of the Regulation (EU) No. 1177/2010.

   IV.                Time limits of a passenger claim under Cyprus Law

In Cyprus, the limitation period for bringing a claim in negligence, including claims for personal injury or other passenger claims, is three years from the time when the plaintiff sustained damage or, where the negligence caused fresh damage continuing from day to day, from the time the damage ceases to occur. If the passenger claim is based on breach of contract, the limitation period is six years from the date the cause of action accrued.

In addition, pursuant to Article 16 of the Athens Convention, which has been incorporated into its national law through the Regulation (EC) No. 392/2009, any action for damages arising out of the death of or personal injury to a passenger or for the loss of or damage to luggage shall be time-barred after a period of two years.

The limitation period shall be calculated as follows:

a)    in the case of personal injury, from the date of disembarkation of the passenger;

b)    in the case of death occurring during carriage, from the date when the passenger should have disembarked, and in the case of personal injury occurring during carriage and resulting in the death of the passenger after disembarkation, from the date of death, provided that this period shall not exceed three years from the date of disembarkation; and

c)    in the case of loss of or damage to luggage, from the date of disembarkation or from the date when disembarkation should have taken place, whichever is later.

The law of the Court seized of the case shall govern the grounds for suspension and interruption of limitation periods, but in no case shall an action under this Convention be brought after the expiration of any one of the following periods of time:

a)    a period of five years beginning with the date of disembarkation of the passenger or from the date when disembarkation should have taken place, whichever is later; or (if earlier)

b)    a period of 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.

Notwithstanding with the above, the period of limitation may be extended by a declaration of the carrier or by agreement of the parties after the cause of action has arisen. The declaration or agreement shall be in writing.

      V.                        Limitation of liability

Cyprus has in place the Merchant Shipping (Liability of Carriers of Passengers by Sea in the Event of Accidents) Law of 2014 (Law No. 5(I)/2014), which applies to carriage of passengers falling within the scope of the EU Passenger Liability Regulation (EC) No. 392/2009, which incorporates certain provisions of the 1974 Athens Convention relating to the Carriage of Passengers and their Luggage by Sea. As mentioned above, Cyprus is not a contracting member of the Athens Convention, but through Law No. 5(I)/2014, which transposed the EU Passenger Liability Regulation into its national law, has incorporated certain provisions of Athens Convention as acquis communautaire and not at the level of international convention.

The EU Passenger Liability Regulation (EC) No. 392/2009 sets out limits for death, personal injury, for loss and damage to luggage and vehicles. According to the said Regulation, the contractual carrier is strictly liable under the two tiers of liability regimes. For the loss suffered as a result of death or personal injury there is, for the carrier, a prima facie limitation right 250,000 units (special drawing rights) per passenger. This liability can further reach up to 400,000 units (special drawing rights) per passenger, if a fault by the carrier is proved.

    VI.                        The limitation fund

The Regulation (EC) No. 392/2009 of the European Parliament and of the Council of 23 April 2009 on the liability of carriers of passengers by sea, requires a minimum of 250,000 special drawing rights as a compulsory insurance for ships carrying more than 12 passengers. Ships must obtain a certificate from their flag state confirming that insurance or other financial security is in force.

 Author: Zacharias L. Kapsis

 

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