Carriage of Passengers
The carriage of passengers is regulated by Part 4 of the Marine Liability Act which implements the 1974 Athens Convention relating to the Carriage of Passengers and their Luggage by Sea and the 1990 Protocol and introduces special Canadian amendments. The operative section is Section 37 which gives the Convention and Protocol the force of law in Canada.
Article 2 of the Athens Convention provides that the provisions of the conventions apply to: (a) any international carriage if the carrying “ship” is flagged or registered in a State party to the convention, (b) the “contract of carriage” is made in a State party to the convention, or (c) the place of departure or destination is, according to the contract of carriage, in a State party to the convention. The terms “ship” and “contract of carriage” are defined terms under the Athens Convention. “Ship” is defined as a seagoing vessel. “Contract of carriage” is defined as a contract for the carriage by sea of a “passenger”. “Passenger” is in turn defined as any person carried in a “ship”. The net effect of these definitions and Article 2 is that the Athens Convention applies of its own force only to international contracts for the carriage of passengers in seagoing ships. This application was considered too narrow for Canada and was therefore expanded by sections 36 and 37 of the MLA .
Section 36 expands on the definition of ship to include ships of all types, whether seagoing or not. The effect of this change in definition is to make the Convention applicable to the carriage of passengers on inland lakes and rivers.
Section 37(2)(a) expressly makes the Convention applicable to contracts for the domestic carriage of passengers as well as international carriage.
Section 37 (2)(b) further extends the application of the convention by dispensing with the requirement that there be a contract of carriage in the case of persons (excluding the Master, crew or employees) carried on ships operated for a commercial or public purpose. This is achieved through the following strangely worded provision:
"37(2) Articles 1 to 22 of the Convention also apply in respect of…
(b) the carriage by water, otherwise than under a contract of carriage, of persons or of persons and their luggage, excluding
(i) the master of a ship, a member of a ship’s crew or any other person employed or engaged in any capacity on board a ship on the business of the ship, and
(ii) a person carried on board a ship other than a ship operated for a commercial or public purpose."
The first clause of section 37(2)(b) extends the application of the Convention to the carriage of all persons regardless of whether there is a contract of carriage. The use of the term “persons” and the discarding of the requirement that there be a contract of carriage make the Convention applicable to virtually every person on board a ship for whatever reason. It is for this reason that the qualifiers in 37(2)(b)(i) and (ii) are introduced. Section 37(2)(b)(i) states that the Convention does not apply to the master or crew of the ship or other persons employed on board the ship. Section 37(2)(b)(ii) is intended to ensure that the Convention does not apply to persons carried on board pleasure craft.
In summary, the combination of Article 2 of the conventions and sections 36 and 37 of the MLA make the Convention applicable to both domestic and international carriage of passengers (except ‘adventure tourism") in ships of all sorts on inland lakes and rivers as well as the high seas. In addition, persons (not being master, crew or employees) on board ships used for commercial or public purposes are governed by the Convention regardless of the existence of a contract of carriage.
Section 37.1 of the MLA has an important exclusion for "Adventure Tourism". Specifically, s. 37.1 exempts "adventure tourism activities" from the provisions of Part 4. Adventure tourism is an activity that: 1. exposes participants to an aquatic environment; 2. normally requires safety equipment and procedures beyond the norm; 3. exposes participants to greater risks than normal; 4. its risks have been presented to the participant and they have accepted in writing to be exposed to them; and 5. any other prescribed condition (of which there are none as of January 2011). Where these conditions are met, Part 4 of the MLA does not apply. The exclusion of adventure tourism from Part 4 means that the liability of adventure tourism operators is governed by the general common law and that exclusion clauses can be used by such operators for such activities. It further means that the ship owner/operator cannot benefit from the limitation amounts established by Part 4 but is rather subject to the limits in Part 3 of the MLA. In turn, this means that the owner/operator could be subject to a higher limit of liability than would otherwise be the case if the activity was governed by Part 4.
Liability and Burden of Proof
Pursuant to Article 3, the carrier under the Athens Convention is liable for damages suffered due to the death or personal injury of the passenger or for the loss of or damage to the passenger’s luggage where (1) the incident which caused the damage occurred during the course of carriage and (2) the damage was due to the fault or neglect of the carrier or his servants or agents acting within the scope of their employment. The burden of proving the incident which caused the damage occurred during the course of carriage is on the claimant. In cases of shipwreck, collision, stranding, explosion, fire or defect in the ship, the fault or neglect of the carrier is presumed. Similarly, for claims in respect of loss of or damage to luggage the fault of the carrier is presumed. In all other cases, the burden of proving the fault or neglect of the carrier is on the claimant.
Who is Liable
The Athens Convention recognizes that there are often two types of carriers, contracting carriers and performing carriers, and makes both liable. The term “carrier” is defined in Article 1(a) as the person by or on behalf of whom a contract of carriage has been concluded regardless of whether the carriage is performed by him or a performing carrier. The term “performing carrier” is defined as the person who actually performs all or part of the contract of carriage.
Pursuant to Article 4, where there is both a contracting and performing carrier, the “carrier” (i.e. the contracting carrier) remains liable for the entire carriage. Further, pursuant to Article 4(2) the contracting carrier is made liable for the acts and omissions of the performing carrier. The liability of the “performing carrier” is invoked by Article 4(1) which makes the “performing carrier” subject to and entitled to the provisions of the Convention for that part of the carriage performed by him.
Article 4(4) provides that where both the contracting and performing carriers are liable their liability is joint and several.
Limitation of Liability
The carrier under the Athens Convention is given the right to limit his liability. Article 7 provides that the maximum liability of the carrier for the death of or personal injury to a passenger is 175,000 SDR (approximately C$350,000). Article 8 provides that the maximum liability of the carrier for loss of or damage to cabin luggage is limited to 1,800 SDR (C$3,150) and to 10,000 SDR (C$17,500) for loss of or damage to a vehicle including all luggage carried in the vehicle. Other types of luggage are subject to a limitation of 2,700 SDR (C$4,725) per passenger per carriage. (Note: All SDR amounts are converted to Canadian dollars at a rate of 1 SDR= C$1.75. This rate does however fluctuate. The current rate of exchange can be found at various internet sites including here.)
The above limits are individual limits applicable to claims by individual passengers. In the case of claims by multiple passengers, the carrier may seek the right to limit liability to a global figure pursuant to Part 3 of the MLA and the 1976 Convention on Limitation of Liability. Article 19 of the Athens Convention would appear to preserve this right in the carrier.
Loss of Right to Limit
Article 13 provides that the carrier will lose his right to limit liability where it is proved that the damage resulted from an act or omission done with intent to cause damage or recklessly and with the knowledge that such damage would probably result.
Article 15 prescribes a notice provision for claims for the loss of or damage to luggage. For “apparent” damage, the passenger is required to give written notice of such damage at the time of disembarkation for cabin luggage or the time of re-delivery for other luggage. In the case of loss of luggage or damage that is not “apparent”, the passenger must give written notice within 15 days from the date of disembarkation or re-delivery. In the absence of written notice, the luggage is presumed to have been received in good condition.
Prescription/ Time Limitation
Article 16 prescribes the applicable limitation periods. In the case of personal injury or loss of or damage to luggage the limitation period is two years from the date of disembarkation. In the case of death of the passenger during the carriage the limitation period is two years from the date the passenger should have disembarked. In the case of a death resulting after disembarkation due to a personal injury received during the carriage, the limitation period is two years from the date of the death but shall not exceed three years from the date of disembarkation.
Article 17 prescribes the jurisdictions in which a claim under the Convention must be brought. Those jurisdictions are: the place where the defendant has his permanent residence or principal place of business; the place of departure or of destination under the contract; the place where the claimant is domiciled or has permanent residence provided the defendant also has a place of business in that State; or the place where the contract of carriage was made if the defendant has a place of business in that State.
Pursuant to Article 18 of the Convention any contractual provision that tends to relieve the carrier of his liability or to fix a lower limit of liability than that prescribed shall be null and void. Similarly, any provision tending to shift the burden of proof which rests upon the carrier or to restrict the claimants right to commence proceedings in the specified jurisdictions is null and void.
For additional information, also see the paper The Marine Liability Act, Parts 2, 3 and 4: Apportionment of Liability, Limitation of Liability and Carriage of Passengers – 2002.