Prof. Dr. Walter Müller, who was President of the Diplomatic Conference which adopted in 1974 the Athens Convention, has written on this subject the paper published below. It is hoped that this paper will contribute to the debate in Singapore.

 1. The Athens Convention relating to the Carriage of Passengers and their Luggage by Sea (PAL 1974) entered into force on 28 April 1987. On 25 May 1990, a Protocol was adopted increasing the liability limit per passenger from 46,666 SDR to 175,000 SDR. Article 7(2) of the Convention already provided, that a State Party could fix, as far as carriers who are nationals of such State are concerned, a higher per capita limit of liability. On 2 May 1996, a Protocol was adopted to amend the Convention on Limitation of Liability for Maritime Claims 1976 (LLMC 76). This included a change to Art 7(1), increasing the global limit for passenger claims to 175,000 SDR multiplied by the number of authorized passengers. This Protocol added a new para 3bis to Article 15, providing that a State Party could regulate the system of liability in their national law, provided that the limit of liability is no lower than that prescribed by the Convention. Neither the 1990 Protocol to the Athens Convention nor the 1996 Protocol to the LLMC 76 have entered into force. One reason for this is that some Governments which were preparing to submit the Protocol to their Parliaments for ratification decided, after the submission to the IMO Legal Committee in 1996 of new proposals to amend the Athens Convention, to wait for the result of these proposed changes. No Government may be prepared to engage at short intervals in parliamentary procedures. This indicates, once more, that international maritime lawyers’ somewhat restless desire for change and in particular their desire to change, previously adopted rules, actually impedes efforts to implement adopted Conventions world-wide, an aim also discussed at CMI.

 2. The Athens Convention had much greater acceptance than is represented by the 25 formal ratifications. It is interesting to have a look at the laws of Germany, the four Scandinavian countries, France, the Netherlands, the People’s Republic of China and Vietnam, countries which have incorporated the Convention’s liability system into their national law, so that the rules also apply to national carriage; and not only to international carriage, as provided in the Convention.

 Some of the above mentioned countries abstained from formal ratification, because they considered the limit of 46,666 SDR as too low. They have stipulated higher limits in their national laws, amounts, which would largely be covered by the increase in the Protocol of 1990. Since the adoption of the Convention in 1974, public opinion has changed during the following years as illustrated by the increase to 175,000 SDR in the 1990 Protocol.

 3. In 1974, a Diplomatic Conference considered new developments in international air-law and decided to provide an identical limit, namely 58,000 USD (at that time equal to 46,666 SDR) provided for in the so-called "Montreal-Agreement" of the main air-lines for carriage on from the United-States. This was done in order to convince the American Government to withdraw its denunciation of the 1929/1955 Warsaw-Convention at the last possible moment.

 The new Convention for the Unification of certain rules for International Carriage by Air of 28 May 1999, which is not yet in force, fixed the limitation amount per passenger for the first indemnity, on the basis of strict liablity, to 100,000 SDR, an amount that is lower than the 175,000 SDR provided in the 1990 Protocol for sea carriage.

 4. At present, two main proposals are under discussion in relation to the Athens Convention, one providing for compulsory insurance to be provided by the shipowner with a direct right to claim against the insurer, and the other to change the liability system based on fault into a system of strict liability as provided in the new 1999 Air-Carriage Convention for an initial damage amount of up to 100,000 SDR. The first proposal has already been incorporated in a draft for a Protocol in the IMO Legal Committee. Apart from the fact, as mentioned below, that this proposal affects the readiness to ratify the 1990 and 1996 Protocols, the proposal seems to be supported by the opinion of European carriers who are already covering their liability with a P&I Insurance for reasons of commercial prudence and want to avoid unfair competition by foreign carriers who have not covered their liability with voluntary insurance and may calculate their running costs without factoring in insurance costs. Is this argument really convincing on a world-wide basis in the light of the boom in cruise operations round the globe? A look at offers from travel agencies shows that they are providing embarkation and disembarkation in countries where there are no insurance obligations. A new unified rule of maritime law should not only be considered from a purely legal point of view if success is also expected with regard to the political and economic aspects which mostly prevail when a State is called to ratify a new instrument. Does it make sense only to unify and provide new rules for some advanced European countries which should be at least 10, the minimum number normally needed for a convention to enter into force?

 5. Critics of the Athens Convention should not forget that the liability system adopted at that time represented a milestone in the progressive development of maritime law. Prior to this, in virtually all countries, the contract of carriage of passengers was governed by the principle of freedom of contract, and the carrier used or abused this freedom to exclude liability. In purely domestic carriage, which is not covered by the Convention, transport-conditions endorsed in the tickets still contain the disclaimer "The carrier is not liable for any accident, injury or death for whatever cause".

 It was not easy to convince the delegations in 1974 to accept the compulsory liability as provided in the Convention and to abandon the unlimited freedom of contract as a first step in the right direction. The low acceptance rate of the previous 1961 Convention with the same principle demonstrates this fact; this although the 1961 Convention entered formally into force with two ratifications only.

 6. The liability system of the Athens Convention is based on facts, reality and experience. A passenger on board a ship is not an "inert thing" entrusted to the custody of the carrier, but a human being with his own agenda not to be controlled by the carrier and its staff like a passenger in an air plane or hovercraft. During the critical phase of takeoff and landing, the air passenger must sit and keep his/her seatbelt fastened, the crew, for safety reasons recommends keeping the belt fastened during the whole flight. On the other hand a passenger on board a ship can freely circulate and use the ship’s facilities, such as swimming pool, fitness centre, shooting ranges, etc. in particular on board a cruise vessel. He can dance, indulge in alcoholic excesses, quarrel with other passengers in the bar or on deck during the night, with the inherent risk of falling overboard. As to his cabin-luggage, the passenger can freely use and handle this without supervision. There are often many kinds of shop on board - including beauty salons, hairdresser and massage parlors. There is therefore a common perception, that a passenger ship is a "floating hotel" or at least a "floating restaurant". It may, therefore, not be an appropriate or a fair solution to provide strict liability in general for the carrier, as proposed by lawyers arguing that the carrier can, according the general rule, avoid liability by proving fault or concurrent fault on the part of the passenger. If a hairdresser burns a client’s skin, or, worse, if a doctor on board gives a wrong prescription or injection or makes a wrong diagnosis, or if a nurse gives wrong medication, one may not identify or prove fault of the passenger. It was therefore appropriate for the Athens Convention to provide for liability without proof of fault of the carrier and his staff only if a shipwreck, collision, stranding, explosion or fire or a defect of the ship were the cause of an accident or incident causing harm to a passenger. For other causes of harm or loss, the burden of proof of fault should lie with the passenger claiming damages. The new Dutch Civil Code of 1991 introduced not only the liability system of the Athens Convention with the exception of carriage by hovercrafts, but added, in Article 8.514, a very intelligent rule, as follows:

 "If persons whose assistance the carrier uses in the performance of his obligations render services upon the request of the passenger, to whom the carrier is not obliged, they are considered as acting upon the orders of the passenger to whom they render these services."

 7. When proposing new legal rules in an International Convention or Protocol lawyers should, as we have learned from experience, also consider the economic and political chances of such rules being accepted by a significant number of states, not only by a few advanced and developed so-called "rich states", but also by a large number of less advanced or developing states. Otherwise, a new instrument will remain in the records of IMO only, and the efforts and cost involved in a Diplomatic Conference will be in vain. If one considers the major deplorable incidents of the past years, sometimes involving hundreds of victims, one will see that these incidents happened mainly in ferry-boat enterprises operating between the mainland and islands or between islands in the so-called third-world countries, particularly in archipelagic areas, where the carriage of passengers is as important as carriage by train, coach or tramway in other parts of the world. These enterprises are usually run by the government or are governmental companies and they vary fares for political reasons; fares not even covering the running costs and the costs of providing safety devices and rescue services. Very often, the boats are double or even triple-booked. There are therefore serious doubts, as to whether countries which for the same reasons have not yet accepted the Athens Convention will be prepared to ratify new rules with higher limits of liability. One should always be aware that these countries represent the majority in a Conference. In addition, if new stronger liability rules are only applied in cases of international, transboundary carriage, as provided in the scope of application rule, the international legislator will provide no protection for the majority of passengers obliged to use a ship. A moderation is therefore also indicated for the CMI when dealing with a possible adaptation of liability at sea to liability in the air. It would possibly be wiser to promote further implementation of the existing liability systems than to invent or copy a new one at the risk of further disunifying maritime law.

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* Prof. Dr. Walter Müller (Switzerland) has been the president of the preparatory committees of CMI and IMO and of the Diplomatic Conference 1974).