In order to enhance the safety of passenger ships, new regulations have come
into force at the beginning of 2013. Bettina Enderle and Nora Erler give an overview about the lessons learnt from the »Costa Concordia« disaster one year ago
On 31 December 2012, a Europe-wide harmonised liability regime for passenger carriage by sea entered into force. The new[ds_preview] regulations establish strict liability for shipping related incidents, raise the liability caps significantly, require the carrier to maintain insurance and make an advance payment. The decisive developments concerning maritime safety law were always triggered by shipping accidents, e. g. the conclusion of the International Convention for the Safety of Life at Sea (SOLAS) in 1914 as a reaction to the sinking of the »Titanic«.
It does not come as a surprise that the »Costa Concordia« disaster in Italy put ship safety issues in the spotlight again. On 13 January 2012, on the last leg of a seven-day Mediterranean cruise, the Italian-registered cruise ship hit Le Scole rocks off the island of Giglio. A total of 4,229 passengers and crew were on board at the time of the casualty – 32 of them lost their lives. One year after the »Costa Concordia« disaster the revision of passenger safety standards on the international and the EU level is ongoing, in particular as regards stability requirements and evacuation procedures.
This article sets out the new regulations on carrier liability for passengers by sea in the event of accidents (1) and the ongoing review of passenger safety legislation in the European Union (2). In parallel, measures were established on the international level and further regulatory developments are ongoing as a reaction to the »Costa Concordia« accident under the auspices of the International Maritime Organization (3). The outlook evaluates the new regulations and probable developments (4).
1. New regulations on EU level
The EU Passenger Liability Regulation (Regulation No. 392/2009 on carrier liability of carriers of passengers by sea in the event of accidents) applies since 31 December 2012. The Regulation is the last piece of legislation of the EU’s third maritime safety package (Erika III Package) adopted by the European Parliament on 11 March 2009. The Erika III Package already contains legislation on flag state control, port state control, classification societies, traffic monitoring, accident investigation and shipowner insurance for maritime claims. The Passenger Liability Regulation is based on the provisions of the Athens Convention relating to the Carriage for Passengers and their Luggage by Sea of 1974, as amended by the Protocol of 2002 on the carriage of passengers. Even though the Athens Convention is not in force yet, its regulations are now applicable in the Member States of the EU.
The Regulation applies to all international carriage and carriage (International carriage is 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) by sea within a single Member State on board ships of Classes A and B (Class A means a passenger ship engaged on domestic voyages other than voyages covered by Classes B, C, and D. Class B means a passenger ship engaged on domestic voyages in the course of which it is at no time more than 20 miles from the line of coast, where shipwrecked persons can land, corresponding to the medium tide height) under Article 4 of Directive 98/18/EC on safety rules and standards for passenger ships, in case:
• The ship flies the flag of or is registered in a Member State.
• The contract of carriage has been made in a Member State.
• The place of departure or destination according to the contract of carriage is in a Member State.
The main issues covered by Passenger Liability Regulation concern liability, insurance and the requirement of an advance payment. The Regulation also contains transitional provisions allowing Member States to defer the application of the Regulation.
Liability
• Liability of the carrier for the death of or personal injury to a passenger caused by a shipping incident (meaning shipwreck, capsizing, collision or stranding of the ship, explosion or fire in the ship, or defect in the ship) is strict and limited to 250,000 Special Drawing Rights (SDR) per passenger on each distinct occasion(250,000 SDR are approximately 297,500 €, 1 SDR = 1,19 € (as of November 2012)), in case the loss exceeds the limit of 250,000 SDR, the carrier is further liable up to a limit of 400,000 SDR (Approximately 476,000 €), unless he proves that the incident occurred without his fault or negligence.
• The carrier is liable unless he proves that the shipping incident resulted from an act of war or a natural phenomenon of an exceptional character or was caused intentionally by a third party.
• The liability caps have been raised significantly (Prior to the entry of force of the Regulation, under German legislation, for example, liability for death or personal injury of a passenger was limited to 163,850 €).
• In case the death of a passenger or personal injury are not caused by a shipping incident, the carrier is liable for negligence and fault and the burden of proof lies with the claimant.
• Liability for loss of or damage to cabin luggage is limited to 2,250 SDR per passenger and carriage and to 12,700 SDR per vehicle and carriage for loss of or damage to vehicles including the luggage carried and to 3,375 SDR for loss and damage to the other luggage.
Insurance
• Carriers must maintain insurance or other financial security, for example a bank guarantee.
• The compulsory insurance or other financial security must amount to a minimum of 250,000 SDR.
• Victims are entitled to make claims directly against the insurer.
• The insurance certificate or other financial security document has to be carried on board of the ship.
• Under German draft legislation on maritime insurance (»Seeversicherungsnachweisgesetz«) it is considered as an administrative offence if the required certificate is not carried on board and punishable by a fine of 5,000 €.
Advance payments
• The requirement to make an advance payment is an obligation under Passenger Liability Regulation that is not contained in the Athens Convention.
• In the event of death or personal injury to a passenger caused by a shipping incident, the carrier is obliged to make an advance payment, proportionate to the damage suffered, to cover immediate economic need (in the event of death no less than 21,000 €).
• An advance payment does not constitute a recognition of liability.
Transitional provisions
• Member States can defer from the requirements of Passenger Liability Regulation where the carriage by sea is carried out within a single Member State, for ships of class A until 31 December 2016, and for ships of Class B until 31 December 2018.
• Germany, for example, has made use of this option in its draft legislation on maritime insurance (»Seeversicherungsnachweisgesetz«).
2. Review of maritime safety legislation on EU level
The European Commission has been working since 2010 on a review of its legislation on passenger ships. Due to the »Costa Concordia« accident the focus is now on updating and improving the rules on stability of ships that are damaged and/or exposed to bad weather conditions, on evacuation standards and procedures, and on requirements concerning qualification and training of the crew. The EU has presented several options in the context of a consultation on passenger safety. The European Commission plans to present legislative proposals on the basis of the public consultation. Such options encompass a revision of Directive 2009/45/EC on safety rules and standards for passenger ships. It is envisaged to simplify the provisions and to extent them to ships that currently do not fall under the scope of the existing EU rules such as smaller passenger ships and ships built in material other than steel, for example sailing and historic ships.
The European Commissions takes into consideration to propose an amendment of Directive 2003/35/EG on passenger stability rules for ro-ro ferries, so as to improve stability after damage. A further measure could be the binding implementation of guidelines established by the IMO on EU level, such as of the Guidelines for Evacuation Analysis for New and Existing Passenger Ships. Apart from possible new regulations on European level, the EU also plans to promote developments on IMO level, so as to guarantee uniform safety standards for passengers everywhere and at any time of the journey.
3. Developments on the international level (IMO)
Passenger Safety Regulations were on the Agenda of the two last conferences of the IMO’s Maritime Safety Committee (MSC) in May and November 2012. The proposed voluntary recommended measures on passenger safety encompass:
• the carrying of additional lifejackets, to be readily accessible in public spaces;
• the carrying out of the muster for embarking passengers prior to departure from every port of embarkation, if the duration is 24 hours or more;
• the limitation of access to the bridge to those with operational functions during any period of restricted manoeuvring, or while manoeuvring in conditions requiring increased vigilance;
• a control that the ship’s voyage plan has taken into account IMO’s Guidelines for voyage planning;
• a registration of the nationality of all passengers on board.
It is planned to decide on complementary binding measures if this seams necessary on the basis of the investigations on the accident of the »Costa Concordia«. The technical investigations report of the Italian authorities has, however, twelve months after the casualty, not yet been released.
In the last MSC, further amendments of the SOLAS relating to passenger ship safety were adopted:
• Amendment to SOLAS regulation III/
17-1: The requirement that ships need to have plans and procedures on board to recover persons from the water will enter into force on 1 July 2014.
• Amendment to SOLAS regulation III/19: SOLAS will make mandatory musters of newly embarked passengers which must be performed prior to or immediately upon departure, instead of within 24 hours as provided for in the current regulation. Also, crew members with enclosed space-entry or rescue responsibilities will be required to participate in an enclosed-space entry and rescue drill at least once every two months. It is expected that the amendments will be adopted at the next MSC in June 2013.
4. Prospects
With the Passenger Liability Regulation the last set of regulations of the Erika III Package has now entered into force within the EU Member States. It introduces stricter requirements for carriers as concerns the liability for passengers and their luggage in the event of accidents. The new regulations on maritime safety are not as far-reaching and groundbreaking as the regulations that were enacted as a reaction to earlier shipping accidents. Yet, they contribute, on the one hand, to a further increase of maritime safety of passenger ships, on the other hand the regulation also entails more financial and administrative burdens for the carriers. More legislative proposals of the European Commission on passenger ship safety are soon to be expected. But also the German legislator further plans to extend liability
to inland vessels and smaller seagoing vessels that are not encompassed by the scope of the Passenger Liability Regulation.
On the IMO level new regulations going beyond the voluntary measures that have already been decided on are in discussion. These legislative projects form part of the developments in maritime law with a growing focus on the prevention of environmental damage and on maritime safety. As is the case with any regulatory efforts – they cannot direct the wind but can only adjust the sails.
Bettina Enderle, Nora Erler
