Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251(2) of the EC Treaty concerning the common position of the Council on the adoption of a Regulation concerning the liability of carriers of passengers by sea and inland waterway in the event of accidents
Date: 2008-06-13
Institutions: European Commission
Subjects: carriage of passengers, carrier, indemnification, inland waterway shipping, liability, maritime transport, transport accident

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 13.6.2008 
COM(2008) 375 final 

2005/0241 (COD) 

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT 

pursuant to the second subparagraph of Article 251(2) of the EC Treaty 

concerning the 

common position of the Council on the adoption of a Regulation concerning the liability 
of carriers of passengers by sea and inland waterway in the event of accidents 

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2005/0241 (COD) 

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT 

pursuant to the second subparagraph of Article 251(2) of the EC Treaty 

concerning the 

common position of the Council on the adoption of a Regulation concerning the liability 
of carriers of passengers by sea and inland waterway in the event of accidents 

(Text with EEA relevance) 

1. 

BACKGROUND 

Date of transmission of the proposal to the EP and the Council 
(document COM(2005) 592 final – 2005/0241(COD)): 

13 February 2006 

Date of the opinion of the Committee of the Regions: 

15 June 2006 

Date  of  the  opinion  of  the  European  Economic  and  Social 
Committee: 

13 September 2006 

Date of the opinion of the European Parliament at first reading: 

25 April 2007 

Date of the revised proposal of the Commission: 

22 October 2007 

Date of adoption of the common position: 

6 June 2008 

2. 

PURPOSE OF THE COMMISSION'S PROPOSAL 

The  purpose  of  the  proposal  is  to  give  all  passengers  travelling  by  ship,  whatever 
their journey, and their carriers a harmonised legal framework setting out their rights 
and  obligations  in  the  event  of  an  accident.  The  level  of  harmonisation  aimed  at 
should  be  sufficiently  ambitious  to  ensure  a  fairer  system  for  compensating  for 
damage and to improve accident prevention.  

The proposal seeks to incorporate into Community law the 2002 Protocol to the 1974 
Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea, 
adopted  under  the  auspices  of  the  International  Maritime  Organization  ("the  2002 
Athens  Convention).  The  2002  Athens  Convention  is  a  modern  text  setting  out 
clearly the rights and obligations of passengers and carriers; it provides for a system 
of  strict  liability – "liability  without  fault" – of  the  carrier  in  respect  of  damages  in 
the event of shipping incidents, lays down sufficiently high maximum compensation 
amounts,  requires  all  carriers  to  take  out  an  insurance  policy  and  allows  the 
complainant to contact the insurer directly in order to obtain compensation.  

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In parallel with this initiative, the Member States and the Community are preparing 
to become contracting parties to the 2002 Athens Convention1.  

When incorporating the 2002 Athens Convention into Community law, a number of 
adjustments should be made: 

–  the  2002  Athens  Convention  is  confined  to  international  shipping.  The 
Commission proposes extending the scope to cabotage (maritime transport within 
a single Member State) and to inland waterway transport; 

–  with a view to harmonising to the benefit both of passengers and of carriers, the 
Commission  proposes  to  render  inapplicable  the  clause  from  the  2002  Athens 
Convention  whereby  a  Member  State  may  individually  adopt  maximum 
compensation  limits  higher  than  those  laid  down  in  the  Convention.  In  its 
amended  proposal2,  the  Commission  accepted  an  amendment  by  the  European 
Parliament  which  would  ensure  that  victims  can  at  all  events  be  eligible  for 
compensation up to the maximum limits set by the Athens Convention, thus ruling 
out the application of competing rules regarding an overall limit on liability; 

–  addition  of  a  measure  to  increase  the  compensation  paid  for  damage  caused  to 

equipment for the disabled; 

–  addition of an obligation to pay advances; 

–  addition of an obligation to inform passengers about their rights. 

3. 

COMMENTS ON THE COMMON POSITION 

The Commission is of the view that the Council has emptied its proposal of much of 
its content. 

Firstly, the common position aims to exclude inland waterway transport and a large 
part of domestic maritime transport from the scope of the proposal. Parliament, for 
its  part,  had  been  somewhat  ambiguous  on  inland  waterway  transport  in  its 
first-reading opinion, though it had clearly come out in favour of including domestic 
maritime transport while making provision to allow some of the operators concerned 
more  time  to  adapt.  These  Parliamentary  amendments  had  been  supported  by  the 
Commission but have not been taken up by the Council. 

Secondly,  the  Council  has  rejected  two  mechanisms  for  harmonising  the  maximum 
compensation limits. As the text currently stands, the maximum compensation limits 
could in two respects be described as being of a "variable-geometry" nature: 

–  the maximum compensation limits applicable would not be the same throughout 
Europe.  The  Council  has  in  effect  chosen  to  maintain  the  implementation  of 

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Proposal for a Council Decision concerning the conclusion by the European Community of the Protocol 
of  2002  to  the  Athens  Convention  Relating  to  the  Carriage  of  Passengers  and  their  Luggage  by 
Sea - COM(2003) 375 of 24 June 2003. Under adoption. 
COM(2007)645 of 22 October 2007. 

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Article 7 of the 2002 Athens Convention, which allows the States that are party to 
the Convention to exceed individually the maximum limits set by the latter. 

–  the compensation paid to victims would depend on the scale of the accident. The 
Council  has  in  effect  maintained  the  implementation  of  Article  19  of  the  2002 
Athens  Convention,  which  allows  mechanisms  for  limiting  the  overall  level  of 
liability  to  be  applied  in  competition  with  the  Convention  itself,  with  the  result 
that  the  maximum  compensation  limits  may  be  lower  than  those  set  by  the 
Convention. 

The  Commission  notes,  also,  the  Council's  intention  to  clarify  the  rules  on 
jurisdiction and the recognition and enforcement of judgments. These rules may be 
derived  either  from  the  Athens  Convention  itself  or  from  Community  legislation 
(Council  Regulation  (EC)  No  44/2001,  or  the  "Brussels  I  Regulation").  The 
Commission  considers,  however,  that  the  wording  in  the  common  position  (recital 
3(e)) is not appropriate. This wording suggests a restrictive delimitation of the scope 
of the Community's exclusive jurisdiction which does not appear to be in line with 
the case law of the Court of Justice.  

It will be noted that the common position was adopted only by a qualified majority. 
By  opposing  this  majority  agreement  the  Commission  could  have  obstructed  its 
passage  at  second  reading,  but  chose  not  to  do  so  since  it  felt  that  the 
inter-institutional debate should be allowed to proceed.  

The Commission issued the following statement on the occasion of the adoption of 
the common position: 

"The Commission does not wish to stand in the way of a majority agreement on this 
important proposal that would establish a harmonised legal framework ensuring that 
passengers on vessels receive adequate compensation in the event of an accident. 

The Commission nevertheless regrets that the Council has not stuck to the original 
aim  of  its  proposal,  but  has  effectively  reduced  its  scope  by  excluding  inland 
navigation and a large part of domestic carriage.  The Council has also rejected two 
mechanisms to harmonise compensation levels that would have worked to the benefit 
of both passengers involved in accidents and the industry: as the political agreement 
stands, such passengers cannot in all cases be compensated up to the ceilings set by 
the Athens Convention and, in certain circumstances, carriers could be made to pay 
higher compensation than is provided for in the Athens Convention. 

Lastly, the Commission does not support the wording of recital 3e  as it appears to 
call into question the extent of exclusive Community competence." 

4. 

4.1 

DETAILED  COMMISSION  COMMENTS  ON  THE  AMENDMENTS 
ADOPTED BY THE EUROPEAN PARLIAMENT 

Parliamentary  amendments  accepted  by  the  Commission  and  incorporated  in 
full or in part in the common position 

Amendment 6, which is intended to take into account the adoption in October 2006 
of IMO guidelines on damages connected with terrorist attacks. 

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Amendments 2 and 10 on reimbursement of unduly paid advances.  

Amendments 3 and 11 on the nature of information supplied to passengers. 

4.2 

Parliamentary  amendments  accepted  by  the  Commission  but  not  incorporated 
in the common position  

Amendment 5 on the role of the port State. 

Amendments 7 and 8 concerning maximum compensation limits. 

Amendment 12 on passenger information arrangements. 

Amendment  13  on  the  gradual  implementation  of  the  Regulation  in  the  case  of 
regular ferry lines.  

Amendment 14 on the gradual implementation of the Regulation in the case of inland 
waterway transport. 

Amendment  15  on  the  gradual  implementation  of  the  Regulation  in  the  case  of 
regular ferry lines operating in overseas countries and territories. 

4.3. 

Parliamentary amendments rejected by the Commission but incorporated in the 
common position 

Amendment 9 limiting the payment of advances to shipping incidents. 

Amendments 16 to 27 on the exclusion of inland waterway transport. 

4.4 

Parliamentary  amendments  rejected  by  the  Commission  and  not  incorporated 
in the common position  

Amendment 4 on the role of the European Maritime Safety Agency. 

5. 

CONCLUSION 

The  Commission  takes  note  of  the  Council’s  common  position,  which  was  adopted  by  a 
qualified  majority,  while  reiterating  its  view  on  the  scope  and  on  the  need  for  the  levels  of 
compensation to victims to be harmonised at EU level. 

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