Support study to the evaluation of Regulation (EC) 392/2009 : final report.
Date: 2017-04-10
Institutions: Directorate-General for Mobility and Transport
Subjects: carriage of passengers, carrier, indemnification, liability, maritime safety, maritime transport, transport accident

Support study to the 
Evaluation of Regulation (EC) 
392/2009 

Final Report 

Ecorys 
January – 2017 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
EUROPEAN COMMISSION 

Directorate-General for Mobility and Transport 

Directorate D — Waterborne 

Unit D.2 — Maritime Safety  

Contact: Lemonia Tsaroucha 

E-mail:  lemonia.tsaroucha@ec.europa.eu  

European Commission 

B-1049 Brussels 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
EUROPEAN COMMISSION 

Support study to the 
Evaluation of Regulation (EC) 
392/2009 

Final Report 

Authors:  

Date:   

Geert Smit, Ioannis Giannelos, Linette de Swart, Johan Gille (Ecorys) 
Dalila Frisani (Grimaldi Studio Legale) 
Frank Smeele, Wouter Verheyen, Fiona Unz (Ersamus University) 
6 January 2017 

2017 

EUR [number] EN 

Directorate-General for Transport and Mobility  

Ex-post Evaluation of Regulation (EC) No 392/2009   

 
   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Table of contents 

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This  document  has  been  prepared  for  the  European  Commission  however  it  reflects  the  views 

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More information on the European Union is available on the Internet (http://www.europa.eu). 

Luxembourg: Publications Office of the European Union, 2017 

ISBN: 978-92-79-65518-0 

doi:10.2832/956917 

catalogue number:MI-04-17-106-EN-N 

© European Union, 2017 

Reproduction is authorised provided the source is acknowledged. 

Support study to the Evaluation of Regulation (EC) 392/2009 

i 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
LIST OF ABBREVIATIONS 

1  EXECUTIVE SUMMARY 

Executive summary 

2 

INTRODUCTION 

2.1  Background 

2.2  Objective of this report 

2.3  Contents of this report 

3  METHODOLOGYethodology 

3.1  Evaluation criteria, questions and evaluation framework 

3.2  Design of the evaluation 

3.3  Data collection and analysis 

4  CONTEXT 

4.1 

Intervention logic 

4.2  The Athens Convention and the Liability Regulation 

4.3  Baseline: situation prior to the Liability Regulation 

4.4  Market developments 

4.5  National application of the Regulation 

4.6  State of play 

5  Relevance 

5.1  Q-1: Needs still relevant today 

5.2  Q-2: Scope of application of the Regulation 

5.3  Conclusion on relevance 

6  Effectiveness 

6.1  Q-3: Meeting Regulation objectives 

6.2  Q-4: Ensuring the same level of passenger rights protection 

6.3  Q-5: Unexpected Regulation effects 

6.4  Conclusion on effectiveness 

7  Efficiency 

7.1  Q-6: Costs reasonable and proportionate in relation to benefits 

7.2  Conclusion on efficiency 

8  Coherence 

8.1  Q7: Coherence with EU maritime safety and passenger right policies 

8.2  Q8: Coherence with broader EU policy 

8.3  Conclusion on Coherence 

9  EU added value 

9.1  Q9: EU added value compared to national and international regimes 

9.2  Conclusion on EU added value 

v 

i 

ix 

1 

1 

1 

1 

3 

3 

5 

8 

13 

13 

19 

25 

28 

31 

39 

47 

47 

50 

58 

61 

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77 

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81 

95 

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108 

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113 

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126 

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Support study to the Evaluation of Regulation (EC) 392/2009 

 
 
 
 
 
10  Complementarity 

127 

10.1  Q-10  Complementarity  in  supplementing  the  Athens  Convention  and  other 

regimes 

10.2  Conclusion on complementarity 

11  Conclusions and recommendations 

11.1  Conclusions 

11.2  Recommendations 

ANNEX 1  

EVALUATION FRAMEWORK 

ANNEX 2  

SURVEY QUESTIONNAIRE 

ANNEX 3  

RESULTS OF THE QUESTIONNAIRE 

ANNEX 4  

REFERENCES 

ANNEX 5  

RESULTS OF REVIEW OF ACADEMIC LITERATURE 

ANNEX 6  

QUESTIONNAIRE CASE STUDIES 

Annex 7 

Case studies 

ANNEX 8 

INTERVIEW SCRIPT 

ANNEX 9 

BACKGROUND NOTE FOR INTERVIEWEES 

ANNEX 10  

LIST OF INTERVIEWS 

ANNEX 11 

MINUTES OF INTERVIEWS 

ANNEX 12  

BASELINE SITUATION COUNTRY FICHES 

127 

133 

135 

135 

140 

143 

177 

195 

221 

227 

255 

257 

291 

297 

301 

305 

399 

ANNEX 13  

COMPARISON PASSENGER RIGHTS BETWEEN DIFFERENT MODES 

417 

Support study to the Evaluation of Regulation (EC) 392/2009 

iii 

 
 
 
 
 
 
 
LIST OF ABBREVIATIONS 

  Bln. 

  CLIA 

  COM 

  DSC 

  EC 

  ECJ 

  EEC 

  EMCIP  

  EMSA   

  EU 

  FGTI 

Billion 

Cruise Lines International Association 

Commission 

Dynamically Supported Craft 

European Commission 

European Court of Justice 

European Economic Community 

European Marine Casualty Information Platform 

European Maritime Safety Agency 

European Union 

Fonds  de  garantie  des  actes  de  terrorisme  er 

d’autres infractions 

  FTE 

  GBP 

  GT 

  HSC 

Full-time equivalent unit 

British’s Pound 

Gross Ton 

High Speed Craft 

 

 

ICS 

International Chamber of Shipping 

IG 
group of P&I clubs) 

International Group (referring to the international 

 

IMO 

  LLMC   
Claims 

  MCA 

  MC99   

  Mln. 

  MS 

  NEB 

  PAL 

  PRM 

  P&I 

International Maritime Organisation 

Convention  on  Limitation  of  Liability  for  Maritime 

Maritime Coast Agency (UK) 

Montreal Convention 1999 

Million 

Member State 

National Enforcement Body 

Athens Protocol 2002 

Person/passenger with reduced mobility 

Protection and Indemnity 

  Ro-pax 

Roll-on/roll-off passenger 

  SCM 

  SDG 

  SDR 

  SEK 

  TEU 

Standard Cost Model 

Steer Davis Gleave 

Special Drawing Right 

Swedish Kronor 

Treaty of the European Union 

Support study to the Evaluation of Regulation (EC) 392/2009 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  UK 

  US 

  USD 

  VDR 

United Kingdom 

United States 

United States’ Dollar 

Voyage Data Recorder 

vi 

Error! Not a valid result for table. 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
1 

EXECUTIVE SUMMARY 

Background 
The  European  Commission  has  mandated  a  study  supporting  the  Ex-Post 
Evaluation  of  Regulation  392/2009  on  the  Liability  of  Carriers  of  Passengers 
by  Sea  in  the  Event  of  Accidents  (hereafter  referred  to  as  the  Liability 
Regulation).  The  objective  of  this  report  is  to  provide  conclusions  and 
recommendations,  based  on  the  analysis  of  the  results  of  the  desk  and  field 
research.  

Evaluation criteria and questions 
The evaluation concentrates on the following six evaluation criteria: 
The  relevance  of  the  Liability  Regulation, 
i.e.  the  extent  to  which 
intervention's  objectives  are  pertinent  to  the  needs,  problems  and  issues  to 
be addressed; 
The  effectiveness  of  the  Liability  Regulation,  i.e.  the  extent  to  which  set 
objectives are achieved; 
The  efficiency  of  the  Liability  Regulation,  i.e.  the  extent  to  which  desired 
effects are achieved at a reasonable cost; 
The  coherence  of  the  Liability  Regulation,  i.e.  the  extent  to  which  the 
intervention logic is non-contradictory and/or the Liability Regulation does not 
contradict other interventions with similar objectives; 
The European Added Value of the Liability Regulation, i.e. the value resulting 
from the Liability Regulation which is additional to the value that would have 
been otherwise created by Member State action alone; 
The  complementarity  of  the  Liability  Regulation,  i.e.  the  extent  to  which  the 
Regulation  has  been  successful  in  supplementing  the  Athens  Convention  and 
any national regimes on liability of passenger  carriers in case  of accidents at 
sea applicable in the Member States. 

Based  on  these  evaluation  criteria,  ten  evaluation  questions  are  defined,  as 
presented  below  in  the  conclusions.  An  evaluation  framework  has  been 
created  to  provide  well-founded,  evidence-based  answers  for  each  of  the 
evaluation  questions.  The  evaluation  framework  defines  indicators  for  the 
evaluation questions and pinpoints the information, forming the basis for data 
collection and analysis. 

Conclusions 
The conclusions are linked to the ten defined evaluation questions, which are 
elaborated below, grouped per evaluation criterion. 

Relevance:  Evaluation  Question  1:  To  what  extent  are  objectives  of  this 
initiative still relevant today? 
No  major  developments  at  a  political,  legal  or  technical  level  affecting  the 
implementation  of  the  Regulation  have  taken  place  since  the  introduction  of 
the Liability Regulation. The entry into force  of the Athens Protocol has been 
an  important  event,  however,  stakeholders  do  not  see  this  as  a  reason  for 
adapting  the  Liability  Regulation.  The  fact  that  the  Liability  Regulation  is 

Support study to the Evaluation of Regulation (EC) 392/2009 

i 

 
 
 
 
 
 
 
 
 
 
 
relatively  “young”,  with  an  implementation  timespan  of  less  than  four  years1 
is  obviously  a  strong  contributing  factor  in  this  regard.  The  short  timespan 
since  implementation  may  also  explain  the  fact  that  the  needs  on  which  the 
Liability  Regulation  is  based  correspond  to  the  needs  of  today’s  society.  The 
latter  applies  especially  to  the  problems  of  “rights  of  passengers”;  and  “no 
level playing field”; and, to a lesser extent, the “safety level of passengers”. 

Relevance:  Evaluation  Question  2:  To  what  extent  is  the  current  scope  of 
application of the Regulation adequate for the attainment of the objectives? 
There  is  broad  consensus  on  the  application  of  the  Liability  Regulation  on 
international  and  domestic  Class  A  and  B  ships.  The  inclusion  of  these  ships 
contributes  to  attaining  the  Regulation’s  objectives,  as  supported  by  the 
stakeholder survey. Extending the scope of the Regulation to domestic Class C 
and  D  ships  is  perceived  differently  per  Member  State,  resulting  in  the 
majority of the Member States not having opted for extension to Class C and 
D ships so far. Stakeholder views, as presented in the stakeholder survey, are 
split  regarding  the  importance  of  the  stated  problems  in  relation  to  Class  C 
and  D  ships.  While  the  majority  of  stakeholders  have  no  strong  opinion, 
passenger  rights are considered a relatively unimportant problem for Class C 
and  D  vessels,  whereas  safety  of  passengers  and  level  playing  field  are 
considered relatively important problems for Class C and D ships.  

In the decision to extend the scope of the Regulation to Class C and D ships, 
different  and  sometimes  opposing  aspects  are  taken  into  consideration  by 
Member  States.  One  aspect  is  the  rights  of  passengers,  which  need  to  be 
protected,  irrespective  of  the  size  or  material  of  the  vessel  or  the  area  of 
operations.  An  additional  aspect  is  that  having  two  systems  for  passenger 
ships  can  result  in  complexity,  unfair  competition  and  market  distortion.  At 
the  same  time,  an  important  factor  is  the  ability  of  the  sector,  notably  the 
smaller  operators,  to  comply  with  the  provisions  of  the  Liability  Regulation, 
specifically related to the insurability of Class C and D ships.   

Member  States  have  developed  their  own  systems  at  national  level  in  which 
the  above-mentioned  aspects  are  balanced.  Member  States  that  have  made 
the Regulation applicable to Class C and D ships have often created measures 
to reduce the burden on the sector, notably by creating exemptions to adopt 
certain provisions of the Regulation, as in the case of Denmark. This approach 
works  well  in  these  Member  States.  Member  States  that  have  not  extended 
the  scope  to  Class  C  and  D  ships  have  often  included  means  of  protecting 
passengers’  rights  for  Class  C  and  D  ships  in  their  national  legislation.  For 
example, in Germany, the German Commercial Code applies to Class C and D 
ships, which is based on the Athens Convention. Although the passenger may 
not be protected at the level of the Regulation, the practical situation may be 
quite  similar  to  the  situation  in  Denmark.  For  Member  States  that  have  not 
extended  the  application  of  the  Regulation  to  Class  C  and  D  ships,  local 
solutions  are  created  on  a  country  by  country  basis,  which  are  reflected  in 
national legislation.  

1  

Entry into force of the Regulation is 31 December 2012. 

ii 

Support study to the Evaluation of Regulation (EC) 392/2009 

 
 
 
 
 
 
 
 
 
 
                                                           
In  conclusion,  extending  the  scope  to  Class  C  and  D  ships  is  a  trade-off 
between  sometimes  opposing  aspects  and  thus  a  political  decision.  The 
evaluation,  including  through  its  stakeholder  consultation,  does  not  provide 
the  results  to  take  this political  decision.  Mitigating  measures  can  be  defined 
to  compensate  for  risks  related  to  the  choice  for  a  system.  In  case  of 
extension,  some  provisions  from  the  Liability  Regulation  may  be  softened, 
reducing the burden on the sector.  In case  of  non-extension, provisions may 
be  created  in  national  law,  contributing  to  passenger  protection.  From  a 
passengers’  rights  perspective,  expanding  the  scope  to  Class  C  and  D  ships 
provides more safeguards. 

Effectiveness:  Evaluation  Question  3:  To  what  extent  have  the  objectives  of 
the Regulation been achieved? 
The  extent  to  which  the  objectives  have  been  met  is  presented  for  the  four 
defined objectives: 
Objective  of  protecting  passenger  rights:  The  facts  collected  present  a  broad 
picture  of  the  adequacy  of  the  Regulation  to  achieve  this  first  objective. 
Stakeholders  tend  to  agree  that  the  Regulation  strengthens  the  passenger’s 
position.  Inputs  collected  from  a  number  of  sources  address  the  specific 
impact  of  the  Regulation  improving  the  level  of  the  advance  payment  and 
reducing the time required to receive it. Evidence on the Regulation’s impact 
on the final compensation suggests that despite difficulties still encountered in 
grasping the full intended benefits of the Regulation, passengers are better off 
than  before.  Additionally,  the  Regulation  can  be  considered  to  have  had  a 
positive  impact  on  the  number  of  cases  reaching  settlements,  as  the 
clarification provided on the compensation level that can be expected and the 
strict  liability  provision  strengthen  the  victim’s  negotiation  power  increasing 
the chances of a settlement. 
Objective  of  creating  a  level  playing  field:  The  facts  and  opinions  collected 
present  different  angles  on  this  issue.  However,  the  collected  input  is 
sufficient  to  suggest  that  the  playing  field  is  levelled  to  a  large  extend  for 
international  carriage  and  especially  for  the  cruise  sector.  The  same  is  not 
exactly  the  case  for  domestic  carriage  where  the  differences  of  the  national 
legal frameworks and Regulation application process cause Member States to 
deviate  from  a  harmonised  application.  It  should  be  here  noted  that  during 
this evaluation period, only a fraction of the EU domestic fleet came under the 
provisions of the Regulation. Thus, the impact of the Regulation on creating a 
level  playing  field,  in  domestic  transport  will  be  possible  to  assess  more 
coherently after the Regulation comes into full effect in 2019. 
Objective  of  incentivising  increased  safety  and  security  performance  of 
passenger  transport  operators:  Academic  literature  and  stakeholder  views 
collected  provide  different  angles  to  answering  this  question.  The  theoretical 
mechanism  that  was  expected  to  increased  pressure  for  vessel  safety,  as  a 
result  of  the  mandatory  insurance  requirement,  seems  not  to  materialise  as 
stakeholders think that safety standards have improved due to the entry into 
force of dedicated maritime safety rules for ship construction and design, and 
ship operation. Insurance premiums do not seem to play a role in that regard. 
Objective  of  setting  up  and  complementing  a  balanced  framework  of 
passenger  rights  protection:  The  Regulation  is  an  improvement  in  creating  a 
balanced  framework  of  passenger  rights.  However,  looking  into  specific 
issues,  such  as  the  compensation  of  vehicle  or  property  damage,  the  input 

Support study to the Evaluation of Regulation (EC) 392/2009 

iii 

 
 
 
 
 
 
 
 
basis is less than that used for the other objectives, also due to the marginal 
importance  attributed  to  the  issue  by  the  relevant  stakeholders.  Data 
collected  from  the  case  studies  indicate  that  compensations  might  have 
increased  as  an  impact  of  the  Regulation.  Combined  with  the  provisions 
protecting  additional  passenger  rights  (information,  luggage,  advanced 
payment etc.), the Regulation results in harmonisation towards other modes. 

Effectiveness:  Evaluation  Question  4:  To  what  extent  have  the  measures 
adopted  in  the  Regulation  ensured  the  same  level  of  passenger  rights 
protection regardless of the area of operation of the ship? 
The Regulation has contributed to a large improvement  of the harmonisation 
of  sea  passenger  rights  in  Europe.  This  is  initially  the  case  for  international 
voyage where since 2013 a reference framework has been created, providing 
clarity  in  the  expectations  for  compensations  and  dis-incentivising  “forum 
shopping”.  However,  the  limited  application  of  the  Regulation  on  domestic 
carriage (with the states possessing the larger fleets deferring application for 
Class A and Class B) and especially the vastly different approaches of Member 
States  in  regulating  (or  not)  vessel  classes  beyond  Class  A  and  B  ships 
currently lead to a very diverse framework of application across the  EU. This 
situation  is  expected  to  improve  after  the  deferment  period  is  concluded. 
Nonetheless, a large factor preventing  a harmonised approach across Europe 
is  the  great  variation  of  national  legal  frameworks  which  are  applied  in 
addition to the Regulation, and defining a number of critical elements. 

Effectiveness:  Evaluation  Question  5:  Has  the  Regulation  led  to  any  positive 
or negative unexpected effects? 
The  Regulation  has  presented  no  unexpected  negative  impacts.  The  findings 
indicate  that  the  insurability  of  carriers  has  not  been  affected  by  the 
Regulation. Authorities have managed to contain fees charged for certificates 
to  a  small  amount  and  insurance  premiums  and  passenger  fares  have  been 
largely  unaffected.  This  should  be  seen  in  the  context  of  broad  exemptions 
and deferments of the application of the Regulation and against a soft market 
condition  for  the  vessel  insurance  industry  that  has  allowed  for  retaining 
insurance  premiums  to  remain  unchanged.  Moreover,  the  Regulation  has 
caused unexpected positive effects,  such as providing clarity for dealing with 
(especially international) claims on accidents and incidents and the fact that it 
may  have  caused  a  small  number  of  Member  States  to  go  beyond  the  scope 
of the application and expand the coverage of passenger rights.  

Efficiency:  Evaluation  Question  6:  Do  the  costs  of  the  measures  adopted  in 
the  Regulation  to  achieve  the  aforementioned  objectives  remain  reasonable 
and proportionate in relation to the benefits of the Regulation? 
The costs of implementing the Liability Regulation are low. Estimates suggest 
annual costs to be between zero and approximately € 40 million, which mainly 
concerns  the  increase  of  insurance  premiums  due  to  the  raised  liability 
ceilings.  Other  cost  elements  such  as  certification  costs,  administrative 
burdens  and  costs  of  adapting  operations  are  considered  to  be  only  a  small 
fraction  of  this  amount.  Additionally,  costs  for  MS  authorities  to  issue  the 
relevant  certificates  are  considered  to  be  on  average  approximately  between 
€ 35,000 and € 70,000 per Member State per year. Additionally, no impact on 
passenger  fares  has  been  identified.  This  amount  represents  only  a marginal 

iv 

Support study to the Evaluation of Regulation (EC) 392/2009 

 
 
 
 
 
 
 
 
 
share  of  the  industry’s  size  (in  the  order  of  0.05%).  Stakeholders  consulted 
confirm the costs to be minimal.  

The benefits are diverse. Besides the achievement of objectives (in particular, 
improved  passenger  rights  and  an  improved  level  playing  field,  as  noted 
above),  also  savings  in  claims  handling  as  a  result  of  the  Regulation  are 
reported. However, these benefits could not be quantified due to lack of data 
on  the  levels  of  compensations  provided  and  the  duration  of  legal 
proceedings.  Overall,  the  Regulation  is  considered  to  be  efficient,  as  it  is 
largely  achieving  its  objectives,  thereby  creating  benefits  (which  could, 
however, not be quantified), against relatively low costs. 

Coherence:  Evaluation  Question  7:  To  what  extent  does  the  Regulation  fit  in 
well  within  the  framework  of  the  EU  maritime  safety  policy  and  passenger 
rights  policy  and,  more  specifically,  within  the  Union's  approach  to  transport 
operators' liability? 
The  Liability  Regulation  is  coherent  in  different  degrees  with  the  three 
identified EU policies, as illustrated below. With regard to the maritime safety 
policy  it  can  be  said  the  Regulation  is  coherent  and  contributes  to  reach  the 
overall goals of the Third Maritime Safety Package. With regard to both the EU 
policy  on  passenger  rights  and  the  EU’s  approach  to  transport  operator 
liability,  the  coherence  is  more  disputable.  Although  the  maritime  regime  is 
becoming  increasingly  more  in  line  with  the  regimes  in  other  modes,  some 
differences still exist. However, the differences identified are justified as they 
are  the  result  of  the  specific  transport  mode  characteristics,  which  require 
their own regime (e.g. lower compensation to maritime passenger as a result 
of  the  hotel-like  environment2  they  enjoy  on-board  the  ship,  etc.). 
Stakeholders  do  not  agree  whether  or  not  further  alignment  is  needed  and 
desirable.  One  point  of  potential  concern  is  the  coherence  between  the 
Liability Regulation and the Travel Package Directive. 

Coherence; Evaluation Question 8: Are the objectives of the Regulation (still) 
coherent with the EU Transport policy, notably the White Paper on Transport 
(not  published  when  it  was  adopted),  and  ten  policy  areas  that  are  set  as 
priorities by the current European Commission (as announced in July 2014)? 
The  Liability  Regulation  is  in  line  with  the  2011  White  Paper  on  Transport. 
Although  the  Regulation  does  not  always  actively  contribute  in  reaching  the 
overall goals laid down in the White Paper, the Regulation does not hamper its 
realisation.  Where  possible,  the  Liability  Regulation  provides  the  building 
blocks  to  reach  one  or  more  of  the  defined  goals.  Therefore,  it  can  be 
concluded that Liability Regulation is coherent. The contribution of the Liability 
Regulation to achieving the goals laid down in the ten priority policies areas is 
less apparent. The Liability Regulation mainly contributes to priority number 4 
on  a  deeper  and  fairer  market  as  the  Liability  Regulation  creates  a  level 

2   On-board the ship the passenger enjoys great freedoms. For instance, the passenger can move around freely and even 

engage in sporting activities. As such there is no great difference between passengers on-board a cruise ship and guests 
in a land-based hotel. Operators of land based holiday resorts do not face reversed burden of proof in cases where their 
guests sustain personal injury on their premises. A similar argumentation should apply to cruise operators in case of a 
non-shipping incident aboard their ships (Soyer2002). It is not fair and appropriate to expose a sea carrier to a similar 
regime as in air, as the risk on a self-inflicted injury in air is much lower than in sea. By applying the same liability rules, the 
sea carrier would run a much higher risk to be held liability, although he will not be able to avoid the personal sustained 
injuries of passengers.  

Support study to the Evaluation of Regulation (EC) 392/2009 

v 

 
 
 
 
 
 
 
 
 
 
                                                           
playing  field  for  all  ships  carrying  passengers  entering  an  EU  port.  The 
Regulation  also  indirectly  influences  priority  number  1  on  jobs,  growth  and 
investments  as  the  Regulation  requires  investments  in  on-board  safety, 
additional  insurance  and  more  documentation,  which  could  contribute 
negatively  to  the  goals  set  in  the  first  priority  area.    Although  the  Liability 
Regulation  does  not  contribute  actively  to  most  of  the  priority  areas,  the 
Regulation also does not hamper its full realisation and therefore can be seen 
as coherent with the overall goals. 

EU added value: Evaluation Question 9: What added value has the Regulation 
brought,  compared  to  the  international  and  national  regimes  for  liability  of 
carriers of passengers at sea? 
The Liability Regulation clearly has EU added value. In particular, the fact that 
the  Liability  Regulation  contributed  to  the  ratification  and  entry  into  force  of 
the  Athens  Protocol  2002  is  an  important  added  value.  In  addition,  the 
obligation  for  a  carrier  to  provide  information  to  the  passenger  (before  the 
journey  starts)  and  the  obligation  to  make  an  advance  payment  (in  case 
something  has  happened),  is  also  adding  value.  It  should  be  noted  that 
although  the  Liability  Regulation  has  introduced  additional  passenger  rights, 
the  actual  implementation  of  those  rights  should  be  further  improved  to 
realise its full potential.  

Complementarity: Evaluation Question 10: To what extent has the Regulation 
been  successful  in  supplementing  the  Athens  Convention  and  any  national 
regimes on liability of passenger carriers in case of accidents at sea applicable 
in the Member States? 
The  main  value  added  of  Liability  Regulation  is  its  contribution  to  the 
ratification  and  entry  into  force  of  the  Athens  Protocol  2002.  The  Liability 
Regulation  has  supplemented  a  system  consisting  of  the  Athens  Convention 
1974  and  individual  national  regimes,  which  is  seen  by  stakeholders  as  an 
improvement.  Mainly  academic  authors  seem  to  encounter  some  issues,  for 
example,  related  to  choose  of  jurisdiction  and  recognition.  An  often-
mentioned  problem  in  literature  is  possible  concerns  with  the  Brussel  I 
Regulation.  The  EU  wished  to  continue  applying  the  Brussels  Regulation, 
instead  of  using  the  rules  on  recognition  and  enforcement  in  civil  and 
commercial matters as created under the PAL2002. Academics point out that 
the  Brussels  rules  have  been  criticised  as  not  being  as  generous  as  the  PAL 
rules.  To  be  more  precise,  under  the  Brussels  Regulation,  enforcement  may 
be  denied  on  the  grounds  of  public  policy  considerations  or  irreconcilability 
with an earlier judgment. 

Stakeholders,  both  interviewed  and  the  ones  responding  to  the  survey,  did 
not  indicate  that  major  problems  are  encountered.  Some  issues  between 
domestic  laws  and  the  Liability  Regulation  are  reported,  however,  their 
number is limited. Such problems could be best addressed on a national level. 
In  principle,  the  provisions  of  the  Liability  Regulation  would  take  precedence 
over the national laws. All in all, it can be concluded that the complementarity 
between  the  Liability  Regulation  and  other  international  regimes,  and  the 
Liability Regulation and national regimes is high. 

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Recommendations 
Based  on  the  ex-post  evaluation  of  the  Liability  Regulation,  a  number  of 
recommendations  can  be  made  regarding  the  future  implementation  of  the 
Regulation and a possible revision thereof. 

Extending the scope to Class C and D ships 
Member States define their own national systems on liability of Class C and D 
ships  in  which  they  balance  passenger  rights  and  (financial)  burden  to  the 
sector. In a few cases (Denmark, Sweden, The Netherlands), the Regulation is 
applied to Class C and D ships. Other Member States have opted not to apply 
the  Regulation  to  these  ships  and  have  their  national legislation  to  deal  with 
liability  and  passenger  rights.  Although  both  routings  can  work  in  practice, 
and  often  result  in  situations  which  are  rather  close  in  terms  of  passenger 
protection and burden on the sector, a possible alignment of national systems 
may be beneficial. A dialogue on this issue between the Commission and the 
Member  States  is  recommended,  possibly  through  an  expert  network,  as 
suggested below. 

Clarification: provision of guidelines and definitions 
The implementation of the Regulation would benefit from clarification on some 
of aspects of the Regulation. This can be done in case the Liability Regulation 
would  be  revised.  Alternatively,  this  can  be  done  through  soft  law  by 
preparing guidelines based on best practices. Subjects to consider include: 
Uniform rules on calculation of damages; 
Clearer distinction between shipping incident and non-shipping incident; 
Clearer rules on what constitutes personal injury; 
Integration  of  the  consequences  of  the  EU  accession  to  PAL  2002  in  the 
Regulation,  i.e.  integration  of  jurisdiction  rules  in  the  Regulation  insofar  as 
this  concerns  international  jurisdiction  of  the  courts  and  not  internal 
jurisdiction within a single Member State3; 
Clear definition of “ship defect”.  

Monitoring compliance with the Regulation 
If Member States do not monitor compliance with the obligations of providing 
advance payment and providing information to passengers on their rights, the 
consequence  is  that  the  requirements,  as  included  in  the  Regulation,  are 
regarded  as  recommendations,  which  may  not  be  followed  up.  Thus,  strict 
monitoring of the implementation of the Regulation is recommended. 

Develop an expert network at Member States level 
As  it  is  rather  complex  to  have  a  full  overview  of  the  implementation  of  the 
Liability  Regulation,  it  could  be  considered  to  set  up  an  expert  network  at 
Member  States  level.  National  contact  points  could  be  established  that  can 
collaborate  as  a  working  group  towards  effective  implementation  of  the 
Regulation.  This  expert  network  can  be  used  to  contribute  to  the 
implementation  of  some  of  the  above-mentioned  recommendations,  notably 
on the provision of guidelines and definitions, for example on defining uniform 
rules  on  calculation  of  damages;  making  clear  distinction  between  shipping 
incident  and  non-shipping  incident;  setting  clear  rules  on  what  constitutes 

3  

This recommendation does not concern purely domestic cases. 

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personal  injury;  integrating  the  consequences  of  the  EU  accession  to  PAL 
2002 in the Regulation; and clearly defining “ship defect”. The expert network 
can  exchange  good  practices  in  the  implementation  of  the  Regulation,  for 
example  related  to  expanding  the  scope  of  the  Regulation  to  Class  C  and  D 
ships. As a result, the Regulation may be applied in a more harmonised way. 
Such an expert network could also be beneficial in the process of a revision of 
the Regulation, if that would be considered, by providing input in the process 
and creating support.  

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EXECUTIVE SUMMARY 

Rappel 
La Commission européenne a mandaté une étude étayant l'évaluation ex post 
du  règlement  no  392/2009  relatif  à  la  responsabilité  des  entreprises  de 
transport  maritime  de  passagers  en  cas  d'accident  (dénommé  ci-après 
règlement  en  responsabilité).  L'objectif  de  ce  rapport  est  de  fournir  des 
conclusions  et  des  recommandations,  sur  la  base  de  l’analyse  des  résultats 
obtenus  à  partir  d’une  recherche  documentaire  et  d’une  prospection  sur  le 
terrain.  

Critères d'évaluation et questions 
L’évaluation se concentre sur les six critères d’évaluation suivants : 
1.  La  pertinence  du  règlement  en  responsabilité,  c’est-à-dire  dans  quelle 
mesure  les  objectifs  d'intervention  sont  pertinents  relativement  aux 
besoins, problèmes et questions à considérer ; 

2.  L'efficacité du règlement en responsabilité, c'est-à-dire dans quelle mesure 

les objectifs fixés sont atteints ; 

3.  L’efficience du règlement en responsabilité, c’est-à-dire dans quelle mesure 

les effets attendus sont atteints à un coût raisonnable ; 

4.  La  cohérence  du  règlement  en  responsabilité,  c’est-à-dire  dans  quelle 
mesure l’intervention logique, de même que le règlement en responsabilité, 
ne  sont  pas  contradictoires  au  regard  d’autres  interventions  ayant  des 
objectifs similaires ; 

5.  La  valeur  ajoutée  européenne  du  règlement  en  responsabilité,  c’est-à-dire 
la  valeur  résultant  du  règlement  en  responsabilité  qui  vient  en  sus  de  la 
valeur qui aurait été autrement produite par l'action de l’État membre lui-
même ; 

6.  La  complémentarité  du  règlement  en  responsabilité,  c’est-à-dire  jusqu’à 
quel point le règlement a réussi à compléter la convention d'Athènes et les 
mesures  nationales  en  responsabilité  civile  pour  les  passagers  en  cas 
d'accidents maritimes applicables aux États membres. 

Sur  la  base  de  ces  critères  d'évaluation,  dix  questions  d’évaluation  ont  été 
arrêtées,  ainsi  que  présentées  ci-dessous  dans  les  conclusions.  Un  cadre 
d’évaluation  a  été  défini  afin  de  procurer  des  réponses  motivées,  s’appuyant 
sur des éléments concrets pour toutes les questions d’évaluation. La stratégie 
d’évaluation  définit  des  indicateurs  concernant  les  questions  d'évaluation  et 
identifie  les  informations,  qui  constituent  la  base  aux  fins  de  collecte  des 
données et d’analyse. 

Conclusions 
Les  conclusions  sont  liées  aux  dix  questions  d'évaluation  définies,  ainsi  que 
développées ci-dessous, groupées par critère d'évaluation. 

Pertinence :  Question  d’évaluation 1 :  Dans  quelle  mesure  les  objectifs  de 
cette initiative sont-ils encore pertinents aujourd'hui ? 
Aucune démarche d’envergure, que ce soit à un niveau politique, juridique ou 
technique,  jouant  un  rôle  dans  la  mise  en  œuvre  du  règlement  n’a  eu  lieu 

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depuis  l’introduction  du  règlement  en  responsabilité.  L’entrée  en  vigueur  du 
protocole  d’Athènes  a  été  un  événement  important,  néanmoins,  les  parties 
intéressées ne considèrent pas cela comme une raison suffisante pour adapter 
le  règlement  en  responsabilité.  Le  fait  que  règlement  en  responsabilité  soit 
relativement  « jeune »,  considérant  un  délai  de  mise  en  œuvre  inférieur  à 
quatre ans4, constitue évidemment un facteur déterminant à cet égard. Il est 
possible que le court délai depuis la mise en œuvre explique également le fait 
que les besoins, sur la base desquels est fondé le règlement en responsabilité, 
corresponde aux besoins de la société d'aujourd'hui. Cette derrière remarque 
s’applique en particulier aux problèmes des « droits des passagers » et « aux 
règles  du  jeu  qui  ne  sont  pas  équitables »,  de  même,  dans  une  moindre 
mesure, au « niveau de sécurité des passagers ». 

le  champ 

Pertinence :  Question  d’évaluation 2 :  Dans  quelle  mesure 
d’application actuel du règlement convient pour atteindre les objectifs ? 
Il  existe  un  large  consensus  sur  l'application  du  règlement  en  responsabilité 
pour  les  navires  des  classes A  et B.  L’intégration  de  ces  navires  contribue  à 
atteindre  les  objectifs  du  règlement,  comme  cela  est  étayé  par  l’étude  des 
intervenants.  L’élargissement  du  champ  d’application  du  règlement  aux 
navires  en  trafic  intérieur  des  classes C  et D  est  perçu  différemment  par  les 
États  membres,  ce  qui  entraîne  qu’une  majorité  d’entre  eux  n’ont  pas  opté 
pour une extension aux navires des classes C et D jusqu'à présent. Les points 
de vue des intervenants, tels que présentés dans l'enquête auprès de ceux-ci, 
sont répartis au regard de l’importance des problèmes mentionnés en relation 
aux navires des classes C et D. Bien que la majorité des intervenants n'aient 
pas une opinion très arrêtée, les droits des passagers sont considérés comme 
un problème relativement peu important pour les navires des  classes C et D, 
alors  que  la  sécurité  des  passagers  et  que  des  règles  du  jeu  équitables  sont 
perçues  comme  des  problèmes  assez  importants  pour  les  navires  des 
classes C et D.  

Concernant  la  décision  de  l’élargissement  du  règlement  aux  navires  des 
classes C  et  D,  des  considérations  différentes  et  parfois  contradictoires  sont 
prises  par  les  États  membres.  Un  aspect,  celui  des  droits  des  passagers, 
nécessite  d’être  protégé,  indépendamment  de  la  taille  ou  du  matériau  du 
navire  ou  des  lieux  d’exploitation.  Un  aspect  supplémentaire  est  que  le  fait 
d'avoir deux systèmes pour des navires de passagers peut devenir complexe, 
entraîner  de  la  concurrence  déloyale  et  de  la  distorsion  de  marché. 
Simultanément,  un  facteur  important  relève  de  la  capacité  du  secteur,  en 
particulier  des  petits  exploitants,  à  se  conformer  aux  dispositions  du 
règlement  en  responsabilité,  notamment  la  possibilité  d’assurer  des  navires 
des classes C et D.   

Les États membres ont élaboré leurs propres dispositifs au niveau national, au 
sein  desquels,  les  aspects  évoqués  ci-dessus  sont  compensés.  Les  États 
membres qui ont rendu la réglementation applicable aux navires des classes C 
et  D  ont  souvent  créé  des  mesures  en  vue  de  réduire  la  pression  sur  le 
secteur,  notamment  par  l’introduction  de  dérogations  concernant  l’adoption 
de  certaines  dispositions  du  règlement,  comme  c’est  le  cas  au  Danemark. 

4  

Le règlement est entré en vigueur le 31 décembre 2012. 

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Cette approche fonctionne bien dans ces États membres. Des états membres 
n’ayant  pas  élargi le  champ  d’application  aux navires  des  classes C  et D,  ont 
fréquemment  intégré  des  dispositifs  de  protection  des  droits  des  passagers 
pour  les  navires  des  classes  C  et  D  dans  leur  doit  national.  Par  exemple,  en 
Allemagne,  le  Code  du  commerce  allemand  est  applicable  aux  navires  des 
classes C et D, lequel est élaboré sur la base de la convention d'Athènes. Bien 
que  les  passagers  puissent  ne  pas  être  protégés  au  niveau  du  règlement, 
dans la pratique la situation est quasi similaire à celle du Danemark. Pour ce 
qui concerne les États membres n’ayant pas élargi l'application du règlement 
aux navires des classes C et D, des solutions ont été prises  à l’échelon local, 
pays par pays, et celles-ci transparaissent dans les législations nationales.  

En  conclusion,  l’élargissement  de  l’application  aux  navires  des  classes C  et D 
est  un  compromis  entre  des  aspects  parfois  antagonistes  et  en  conséquence 
une  décision  politique.  L’évaluation,  prenant  en  compte  la  consultation  des 
intervenants, ne fournit pas de résultats permettant de prendre cette décision 
politique. Des mesures d'atténuation peuvent être définies afin de compenser 
les  risques  liés  au  choix  d'un  système.  En  cas  d’élargissement,  des 
dispositions du règlement en responsabilité peuvent être modérées, réduisant 
d’autant  la  pression  sur  le  secteur.  Dans  le  cas  de  non-élargissement,  il  est 
possible de prendre des dispositions dans le droit national qui contribuent à la 
protection  des  passagers.  D’une  perspective  des  droits  des  passagers, 
l’élargissement du champ d’application aux navires des classes C et D procure 
davantage de protections. 

Efficacité :  Question  d’évaluation 3 :  Dans  quelle  mesure  les  objectifs  du 
règlement ont-ils été atteints ? 
Le  niveau  de  réalisation  atteint  des  objectifs  est  présenté  pour  les  quatre 
objectifs définis : 
1.  Objectif  de  protection  des  droits  des  passagers :  Les  faits  recueillis 
présentent  une  image  générale  de  l’adéquation  du  règlement  pour 
atteindre ce premier objectif. Les intervenants ont tendance à convenir que 
le  règlement  renforce  la  position  des  passagers.  Les  données  recueillies 
auprès  d’origines  diverses  abordent  l'impact  spécifique  du  règlement  dans 
l’amélioration  du  niveau  du  paiement  anticipé  et  de  la  réduction  du  délai 
pour le percevoir. Le rôle du règlement sur la compensation finale suggère, 
qu’en  dépit  des  difficultés  toujours  rencontrées  dans  l’obtention  complète 
des  dédommagements  attendus  du  règlement,  les  passagers  sont  mieux 
lotis qu’auparavant. En outre, il est possible de penser que le règlement a 
eu un effet positif sur le nombre de cas ayant fait l’objet d’un accord, dans 
la  mesure  où 
fournis  quant  au  niveau  de 
l’indemnisation  pouvant  être  attendue  et  des  dispositions  strictes  en 
matière  de  responsabilité  renforcent  le  pouvoir  de  négociation  de  la 
victime, augmentant ainsi les chances de règlement. 

les  éclaircissements 

2.  Objectif  de  création  de  règles  du  jeu  équitables :  Les  faits  et  les  opinions 
recueillis  présentent  des  angles  de  perception  différents.  Néanmoins,  les 
données recueillies sont suffisantes pour penser que les règles du jeu sont 
dans  une  large  mesure  équitables  dans  le  transport  international,  en 
particulier  dans  le  secteur  des  croisières.  Ce  qui  n’est  pas  exactement  le 
cas  pour  le  transport  intérieur  où  les  différences  entre  les  stratégies 
juridiques nationales et la procédure d’application du règlement entraînent 

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les  États  membres  à  dévier  au  détriment  d’une  application  harmonisée.  Il 
convient de noter ici, qu’au cours de cette période d'évaluation, seule une 
fraction  de  la  flotte  intérieure  de  l'Union  européenne  s’est  conformée  aux 
dispositions  du  règlement.  En  conséquence,  le  rôle  joué  par  le  règlement 
dans la création de règles de jeu équitables pour le transport national, sera 
plus  aisé  à  évaluer  de  façon  cohérente,  une  fois  le  règlement  pleinement 
en vigueur en 2019. 

3.  Objectif  d’encouragement  des  exploitants  en  transport  de  passagers  en 
faveur  de  résultats  accrus  en  termes  de  sûreté  et  de  sécurité :  La 
documentation  universitaire  et  les  points  de  vue  des  intervenants  qui  on 
été collectés fournissent des angles de réponse différents à cette question. 
Le  mécanisme  théorique  dont  on  attendait  qu’il  augmentât  la  pression  au 
profit de la sûreté des navires en tant que conséquence de l’exigence faite 
d’une  assurance  obligatoire,  ne  semble  pas  produire  ses  effets  dans  la 
mesure  où  les  intervenants  estiment  que  les  normes  de  sûreté  ont  été 
améliorées  en  raison  de  l'entrée  en  vigueur  des  règles  de  sûreté 
spécifiques  dans  la  construction  et  l’architecture  navales,  de  même  que 
dans  l’exploitation  maritime.  Les  primes  d’assurance  ne  semblent  jouer 
aucun rôle à cet égard. 

4.  Objectif  de  mise  en  place  et  de  réalisation  d’une  stratégie  équilibrée  de 
protection  des  droits  des  passagers :  Le  règlement  constitue  une 
amélioration  dans  la  création  d'une  stratégie  équilibrée  des  droits  des 
passagers.  Néanmoins,  en  observant  des  problèmes  particuliers,  tels  que 
l’indemnisation  des  dommages  aux  véhicules  ou  aux  biens,  l’engagement 
est  moindre  comparativement  à  celui  envers  d’autres  objectifs,  ce  qui  est 
également  dû  à  l’importance  marginale  accordée  aux  problèmes  par  les 
intervenants.  Les  données  recueillies  à  partir  d’études  de  cas,  indiquent 
que  les  indemnisations  auraient  augmenté  sous  l’influence  du  règlement. 
Combiné avec les dispositions de protection supplémentaire des droits des 
passagers  (information,  bagages,  paiement  anticipé,  etc.),  le  règlement 
résulte en une harmonisation envers d’autres modes. 

Efficacité :  Question  d’évaluation 4 :  Dans  quelle  mesure,  les  dispositions 
adoptées  par  le  règlement  garantissent-elles  le  même  niveau  de  protection 
des  droits  des  passagers,  indépendamment  de  la  zone  d’exploitation  du 
navire ? 
Le  règlement  a  contribué  à  une  grande  amélioration  de  l'harmonisation  des 
droits  des  passagers  maritimes  en  Europe.  C’est  d'abord  le  cas  pour  les 
voyages  internationaux  où,  depuis  2013,  une  stratégie  de  référence  a  vu  le 
jour, fournissant plus de clarté dans les attentes en matière de compensations 
et  de  découragement  de  la  chalandise  aux  meilleures  solutions.  Néanmoins, 
l’application  limitée  du  règlement  dans  le  transport  intérieur  (les  États 
possédant  les  flottes  les  plus  importantes  reportant  l’application  pour  les 
classes A  et B)  et  en  particulier  les  approches  très  différentes  des  États 
membres  dans  la  régulation  (ou  non)  des  classes  de  navire  au-delà  des 
classes de navire A et B, conduit aujourd’hui à une stratégie d’application très 
diverse  à  travers  l’Union  européenne.  On  s’attend  à  ce  que  la  situation 
s’améliore  suite  à  la  fin  de  la  période  d’ajournement.  Cependant,  un  facteur 
important  empêchant  une  approche  harmonisée  à  travers  l'Europe  est  la 
grande  variation  des  cadres  juridiques  nationaux  qui  sont  appliqués  en  plus 
du règlement et qui définissent un certain nombre d'éléments essentiels. 

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Efficacité :  Question  d’évaluation 5 :  Est-ce  que  le  règlement  a  abouti  à  des 
résultats positifs ou négatifs inattendus ? 
Le  règlement  n’a  présenté  aucun  effet  négatif  inattendu.  Les  constatations 
indiquent  que  l'assurabilité  des  transporteurs  n’a  pas  été  touchée  par  le 
règlement.  Les  autorités  ont  réussi  à  contenir  les  frais  facturés  pour  les 
certificats à un montant réduit, tandis que les primes d'assurance et les tarifs 
des  passagers  sont  demeurés,  en  grande  partie,  inchangés.  Il  faut  prendre 
cela  en  considération  dans  le  contexte  de  larges  exemptions  et  des  reports 
d’application du règlement, de même qu’en regard de la faiblesse du marché 
du  secteur  de  l’assurance  maritime  qui  a  permis  de  maintenir  les  primes 
d'assurance  inchangées.  En  outre,  le  règlement  a  entraîné  des  effets  positifs 
inattendus,  comme  davantage  de  clarté  pour  le  traitement  (en  particulier,  à 
l’international) des litiges relevant des accidents et des incidents, de même le 
fait  que  celui-ci  pourrait  avoir  entraîné  un  petit  nombre  d'États  membres  à 
aller au-delà le champ  d'application et à  élargir la prise  en  charge des droits 
des passagers.  

Efficience :  Question  d’évaluation 6 :  Est-ce  que  les  coûts  des  mesures 
adoptées  par  le  règlement  en  vue  de  réaliser  les  objectifs  susmentionnés 
demeurent  acceptables  et  proportionnels  relativement  aux  avantages  du 
règlement ? 
Les coûts liés à l’introduction du règlement en responsabilité sont faibles. Des 
estimations  donnent  une  indication  des  coûts  annuels  compris  entre  zéro 
environ  40 millions €,  qui  concernent  principalement  l'augmentation  des 
primes  d’assurance  due  à  l’augmentation  des  plafonds  de  responsabilité.  Les 
autres charges, comme les frais de certification, les charges administratives et 
les coûts d’exploitation, ne constituent qu’une faible partie de ce montant. En 
outre,  les  coûts  des  autorités  des  États  membres  pour  délivrer  les  certificats 
utiles  sont  considérés  comme  étant  en  moyenne  de  l’ordre  de  35 000  à 
70 000 €  par  État  membre  et  par  an.  Par  ailleurs,  aucune  incidence  sur  les 
tarifs  des  passagers  n’a  été  relevée.  Ce  montant  ne  représente  qu’une  part 
marginale  par  rapport  aux  volumes  du  secteur  (de  l’ordre  de  0,05 %).  Les 
intervenants consultés confirment que les coûts sont minimes.  

Les  avantages  sont  divers.  Au-delà  de  la  réalisation  des  objectifs  (en 
particulier,  droits  des  passagers  améliorés  et  règles  du  jeu  équitables,  ainsi 
que cela a été précisé ci-dessus), des économies dans la gestion des sinistres 
à  la  suite  du  règlement  ont  été  rapportées.  Cependant,  ces  avantages  n’ont 
pas pu être quantifiés en raison du manque de données relatives aux niveaux 
d’indemnisation  octroyée  et  aux  délais  des  procédures  judiciaires.  D’une 
manière générale, le règlement est perçu comme efficace, dans la mesure où 
il  atteint  pleinement  ses  objectifs,  créant  ainsi  des  avantages  (toutefois, 
impossibles à quantifier) avec des coûts relativement faibles. 

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xiii 

 
 
 
 
 
 
 
 
 
 
 
Cohérence :  Question  d’évaluation 7 :  Dans  quelle  mesure  le  règlement 
s’intègre-t-il  harmonieusement  au  sein  de  la  stratégie  des  politiques  de 
l’Union européenne en matière de sûreté maritime et des droits des passagers 
et  plus  particulièrement,  au  sein  de  l’approche  de  l’Union  européenne  en 
matière de responsabilité des exploitants en transport de passagers ? 
Le  règlement  en  responsabilité  est  cohérent  à  divers  degrés  avec  les  trois 
politiques  de  l'Union  européenne  recensées,  ainsi  que  cela  est  illustré  ci-
dessous.  Pour  ce  qui  concerne  la  politique  de  sûreté  maritime,  on  peut 
affirmer  que  le  règlement  est  cohérent  et  contribue  à  atteindre  les  objectifs 
globaux  du  troisième  paquet  maritime.  Pour  ce  qui  concerne,  à  la  fois  la 
politique des droits des passagers de l’Union et l’approche de l’Union envers la 
responsabilité des opérateurs de transport de passagers, la cohérence est plus 
discutable.  Bien  que  le  régime  maritime  devienne  notablement  plus  en  ligne 
avec  les  régimes  d'autres  modes,  il  subsiste  toujours  quelques  différences. 
Cependant,  les  différences  recensées  sont  justifiées  du  fait  qu’elles  sont  le 
résultat  des  caractéristiques  particulières  du  mode  de  transport,  lesquelles 
nécessitent  un  régime  qui  leur  soit  propre  (par  exemple,  une  indemnisation 
plus  faible  des  passagers  à  raison  de  l’environnement  de  type  hôtelier5  dont 
ceux-ci  jouissent  à  bord  du  navire,  etc.).  Les  intervenants  ne  sont  pas 
d'accord  sur  le  fait  qu’il  soit  nécessaire  ou  non  de  procéder  à  un  alignement 
supplémentaire. Un point de préoccupation potentielle est la cohérence entre 
le règlement en responsabilité et la directive relative aux voyages organisés. 

Question  d’évaluation 8 :  Est-ce  les  objectifs  du  règlement  sont  (encore) 
cohérents  avec  la  politique  européenne  des  transports,  notamment  le  Livre 
blanc  sur  les  transports  (non  publié  lors  de  son  adoption)  et  les  dix  espaces 
politiques désignés comme prioritaires par la Commission européenne actuelle 
(ainsi qu’annoncé en juillet 2014) ? 
Le  règlement  en  responsabilité  est  conforme  au  Livre  blanc  de  2011  sur  les 
transports.  Bien  que  le  règlement  ne  contribue  pas  toujours  activement  à 
atteindre  les  objectifs  globaux  énoncés  dans  le  Livre  blanc,  celui-ci  ne  freine 
pas leur réalisation. Lorsque cela est possible, le règlement en responsabilité 
fournit  les  éléments  constitutifs  pour  atteindre  un  ou  plusieurs  des  objectifs 
définis. En conséquence, on peut conclure que le règlement en responsabilité 
est  cohérent.  La  contribution  du  règlement  dans  la  réalisation  des  objectifs 
fixés  dans  les  dix  espaces  politiques  est  moins  évidente.  Le  règlement  en 
responsabilité  contribue  principalement  à  la  priorité  numéro 4  relative  à  un 
marché  qui  soit  plus  juste  et  durable  dans  la  mesure  où  le  règlement  en 
responsabilité  crée  des  règles  du  jeu  équitables  pour  tous  les  navires  de 
transport  de  passagers  qui  entrent  dans  un  port  de  l'Union  européenne.  Le 
règlement influence également indirectement la priorité numéro 1 relative aux 
emplois, la croissance et aux investissements dans la mesure où le règlement 
la  sûreté  à  bord,  des  assurances 
exige  des 

investissements  dans 

5  

À  bord  du  navire,  le  passager  jouit  de  grandes  libertés.  Par  exemple,  le  passager  peut  se  déplacer  librement  et  même 
prendre part à des activités sportives. De fait, il n’existe pas de grande différence entre des passagers à bord d’un navire 
de  croisière  et  les  hôtes  d’un  hôtel  basé  à  terre.  Les  exploitants  de  lieux  de  villégiature  basés  à  terre  ne  sont  pas 
confrontés à la difficulté de l’inversion de la charge de la preuve lorsque leurs hôtes sont victimes de dommages corporels 
dans leurs installations. Il est nécessaire qu’une argumentation similaire soit appliquée aux exploitants de croisière en cas 
d'incident à bord des navires qui ne relèverait pas du domaine maritime (Soyer 2002). Exposer un transporteur maritime à 
un régime similaire à celui de l'aérien, n’est ni équitable, ni  approprié, dans la mesure où le risque d'une blessure auto-
infligée en transport aérien est bien moindre qu’en mer. Lors de l’application de règles similaires, le transporteur maritime 
courrait  de  bien  plus  grands  risques  d’être  tenu  pour  responsable,  bien  que  celui-ci  ne  soit  pas  en  mesure  d’éviter  les 
dommages corporels subis par les passagers.  

xiv 

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supplémentaires  et  davantage  de  documents,  ce  qui  pourrait  contribuer 
négativement  aux  objectifs  définis  dans le  premier  domaine  prioritaire.    Bien 
que  le  règlement  en  responsabilité  ne  participe  pas  activement  à  la  plupart 
des domaines prioritaires, celui-ci ne fait pas obstacle à leur pleine réalisation 
et peut donc être considéré comme cohérent avec les objectifs globaux. 

Valeur  ajoutée :  Question  d’évaluation 9 :  Quelle  est  la  valeur  ajoutée 
apportée  par  le  règlement,  comparativement  aux  régimes  internationaux  et 
nationaux  en  matière  de  responsabilité  civile  des  transporteurs  de  passagers 
maritimes ? 
Le règlement en responsabilité a clairement de la valeur ajoutée européenne. 
En  particulier,  le  fait  que  le  règlement  en  responsabilité  ait  contribué  à  la 
ratification  et  l‘entrée  en  vigueur  du  protocole  d'Athènes  de  2002  constitue 
une  valeur  ajoutée  importante.  En  outre,  l’obligation  faite  à  un  transporteur 
de  fournir  des  informations  au  passager  (avant  que  le  voyage  ne  débute)  et 
l’obligation  d’un  paiement  anticipé  (dans  le  cas  d’un  événement)  constitue 
également  de  la  valeur  ajoutée.  Il  est  nécessaire  de  remarquer,  bien  que  le 
règlement  sur  la  responsabilité  eût  octroyé  des  droits  supplémentaires  aux 
passagers,  que  l‘octroi  effectif  de  ces  droits  doit  encore  être  amélioré  pour 
atteindre sa pleine efficacité.  

Complémentarité :  Question  d’évaluation 10 :  Dans  quelle  mesure 
le 
règlement est-il parvenu à compléter la convention d'Athènes et les  mesures 
nationales  en  responsabilité  civile  pour  les  passagers  en  cas  d'accidents 
maritimes applicables aux États membres ? 
La principale valeur ajoutée du règlement en responsabilité est sa contribution 
à  la  ratification  et  l'entrée  en  vigueur  du  protocole  d'Athènes  de  2002.  Le 
règlement  en  responsabilité  a  complété  le  dispositif  de  la  convention 
d’Athènes  de  1974  et  des  régimes  nationaux  individuels,  ce  qui  a  été  perçu 
par  les  intervenants  comme  une  amélioration.  Pour  l’essentiel,  ce  sont  des 
auteurs  universitaires  qui  semblent  rencontrer  quelques  difficultés,  par 
exemple, en relation avec le choix de la compétence et de la reconnaissance. 
Une  question  qui  revient  fréquemment  dans  la  littérature  universitaire 
concerne 
rapport  au  Règlement 
interrogations  par 
« Bruxelles I ».  L’Union  européenne  souhaitait  poursuivre  l’application  du 
Règlement « Bruxelles I » au lieu d'utiliser les règles sur la compétence et la 
reconnaissance dans les affaires civiles et commerciales telles que créées sous 
le PAL 2002 (Passive Activity Loss Rules). Les universitaires indiquent que les 
règles  de  Bruxelles  ont  été  critiquées  dans  la  mesure  où  elles  n’étaient  pas 
aussi  généreuses  que  les  règles  PAL.  Pour  être  plus  exact,  dans  le  cadre  du 
règlement  de  Bruxelles,  il  est  possible  de  refuser  une  entrée  en  vigueur  à 
raison  de  considérations  de  politique  d'intérêt  général  ou  parce 
qu’inconciliable avec un jugement antérieur. 

les  possibles 

Les  intervenants,  ceux  ayant  été  interrogés  et  ceux  ayant  répondu  à 
l'enquête, n’ont pas indiqué avoir rencontré de difficultés majeures. Quelques 
problèmes  entre  les  législations  nationales  et  le  règlement  en  responsabilité 
ont  été  signalées,  leur  nombre  néanmoins  est  limité.  De  telles  difficultés 
pourraient  être  mieux  traitées  à  un  niveau  national.  Dans  le  principe,  les 
dispositions  du  règlement  en  responsabilité  ont  préséance  sur  les  lois 
nationales. Dans l’ensemble, on peut conclure que la complémentarité entre le 

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xv 

 
 
 
 
 
 
 
 
 
 
règlement  en  responsabilité  et  d’autres  régimes  internationaux  ou  nationaux 
est élevée. 

Recommandations 
Sur  la  base  de  l'évaluation  ex-post  du  règlement  en  responsabilité,  il  est 
possible de faire un certain nombre de recommandations concernant la future 
introduction du règlement et de sa possible révision. 

Étendre le champ d’application aux navires des classes C et D 
Les  États  membres  définissent  leurs  propres  dispositifs  nationaux  sur  la 
responsabilité  civile  des  navires  des  classes C  et D  au  sein  desquels  ceux-ci 
équilibrent  les  droits  des  passagers  et  les  charges  (financières)  du  secteur. 
Dans  quelques  cas  (Danemark,  Suède,  Pays-Bas),  le  règlement  est  appliqué 
aux navires des classes C et D. D’autres États membres ont choisi de ne pas 
appliquer le règlement à ces navires et leurs législations nationales traitent de 
la  responsabilité  civile  et  des  droits  des  passagers.  Quoique  les  deux 
approches  puissent  fonctionner  dans  la  pratique  et  souvent  résulter  en  des 
situations  relativement  proches  en  termes  de  protection  des  passagers  et  de 
charge  pour  le  secteur,  un  alignement  possible  des  dispositifs  nationaux 
pourrait être bénéfique. Des échanges à ce sujet, entre la Commission et les 
États membres est recommandé, si possible par le truchement d’un réseau de 
spécialistes ainsi que suggéré ci-dessous. 

Éclaircissement : mise à disposition de lignes directrices et de définitions 
L’introduction  du  règlement  tirerait  profit  d'éclaircissements  sur  certains  de 
ses  aspects.  Ceci  peut  se  faire  en  cas  de  révision  du  règlement  en 
responsabilité.  Sinon,  ceci  peut  se  faire  par  le  biais  de  dispositions  non-
contraignantes  en  préparant  des  lignes  directrices  fondées  sur  des  pratiques 
exemplaires. Les points à prendre en compte comprennent : 
  Des règles uniformes pour le calcul des dommages ; 

  Une  distinction  claire  entre  les  incidents  maritimes  et  les  incidents  ne 

relevant pas du transport maritime ; 

  Des règles plus claires sur ce qui constitue des dommages corporels ; 

 

Intégration des conséquences de l'adhésion de l'Union européenne aux 
PAL 2002  dans  le  règlement,  c’est-à-dire  l'intégration  des  règles  de 
compétence  juridictionnelle  au  sein  du  règlement,  dans  la  mesure  où 
cela  concerne  la  compétence  internationale  des  tribunaux  et  pas  la 
compétence juridictionnelle intérieure d’un seul État membre6 ; 

  Une définition claire de « défaut du navire ».  

Contrôle de conformité avec le règlement 
Lorsque  des  États  membres  ne  contrôlent  pas  le  respect  des  obligations  de 
paiement  par  anticipation  et 
la  mise  à  disposition  aux  passagers 
d’informations  relatives  à  leurs  droits,  il  s’en  suit  que  les  exigences  du 
règlement, telles qu’elles figurent dans le règlement, ne sont considérées que 
comme  des  recommandations  que  l’on  est  autorisé  à  ne  pas  suivre.  Par 
conséquent, un contrôle rigoureux de l’introduction du règlement est suggéré. 

6  

Cette recommandation ne concerne pas strictement des cas nationaux. 

xvi 

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Développer un réseau de spécialistes au niveau des États membres 
Comme  il  est  assez  complexe  d’avoir  un  aperçu  complet  de  l’introduction  du 
règlement  en  responsabilité,  il  convient  d’envisager  de  mettre  en  place  un 
réseau  de  spécialistes  au  niveau  des  États  membres.  Des  points  de  contact 
nationaux  pourraient  être  établis  pouvant  collaborer  en  tant  que  groupe  de 
travail  pour  favoriser  l’introduction  effective  du  règlement.  Il  peut  être 
possible  d’utiliser  ce  réseau  de  spécialistes  afin  de  contribuer  à  l’introduction 
de certaines des recommandations mentionnées ci-dessus, notamment en ce 
qui  concerne  la  mise  à  disposition  de  lignes  directrices  et  de  définitions,  par 
exemple  la  définition  de  règles  uniformes  de  calcul  des  dommages ;  en 
établissant  une  distinction  claire  entre  des  incidents  maritime  et  non-
maritime ;  en  définissant  des  règles  claires  sur  ce  qui  constitue  des 
dommages corporels ; l’intégration des conséquences de l'adhésion de l'Union 
européenne  aux  PAL 2002  dans  le  règlement ;  et  une  définition  claire  de 
« défaut  du  navire ».  Le  réseau  de  spécialistes  échange  de  bonnes  pratiques 
dans  l’introduction  du  règlement,  par  exemple  liées  à  l'élargissement  du 
champ  d'application  du  règlement  aux  navires  des  classes C  et D.  De  cette 
façon, le règlement serait appliqué de façon plus harmonieuse. Un tel réseau 
de  spécialistes  pourrait  également  être  bénéfique  dans  le  processus  de 
révision  du  règlement,  si  on  l’envisageait  sous  la  forme  de  contributions  et 
d’un soutien.  

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xvii 

 
 
 
 
 
 
 
 
 
2 

INTRODUCTION  

2.1  Background 

The  present  report  forms  part  of  the  study  mandated  by  the  European 
Commission supporting the Ex-post Evaluation of Regulation 392/2009 on the 
Liability  of  Carriers  of  Passengers  by  Sea  in  the  Event  of  Accidents7 
(MOVE/D2/LT D (2015)). The European Commission has granted a contract to 
carry  out  the  support  study  to  the  evaluation  of  Regulation  392/2009  to  the 
consortium consisting of Ecorys (leading partner), Grimaldi Studio Legale, and 
Erasmus School of Law (ESL). 

2.2  Objective of this report 

The  objective  of  the  Final  Report  (FR)  is  to  provide  conclusions  and 
recommendations  of  the  evaluation,  based  on  the  analysis  of  the  results  of 
the desk and field research. 

2.3  Contents of this report 

The Final Report consists of the following chapters: 

  Chapter  2:  methodology,  presenting  the  design  of  the  ex-post 
evaluation,  as  well  as  the  key  processes,  i.e.  data  collection  and 
analysis; 

  Chapter  3:  context,  with  emphasis  on  the  Athens  Convention  and  the 
Regulation;  the  state  of  play  and  the  national  application  of  the 
Regulation; 

  Chapters  4-9:  analysis  of  the  facts  collected  though  desk  research, 
survey  questionnaire,  interviews  and  case  studies,  resulting  in 
responding to the evaluation questions; 

  Chapter  10:  conclusions  and  recommendations,  based  on  the  analysis 

carried out in the Chapters 4-9.  

The  evaluation  framework  is  presented  in  Annex  1.  Annex  2  presents  the 
survey questionnaire with results of the survey presented in Annex 3. Annex 4 
presents  the  references  and  Annex  5  the  results  of  the  literature  review. 
Annex  6  presents  the  draft  questionnaire  of  the  case  studies.  Annex  7 
presents  the  results  of  the  case  studies.  Annex  8  includes  interviews  script 
and Annex 9 the Background Note for Interviewees, while Annex 10 presents 
the  list  of  interviewed  persons  and  Annex  11  the  approved  minutes  of  the 
interviews. Annex 12 presents the baseline situation (selected country fiches). 
Annex  13  presents  a  comparison  of  passenger  rights  between  modes  of 
transport. 

7  

Hereafter referred to as the Liability Regulation. 

Support study to the Evaluation of Regulation (EC) 392/2009 

1 

 
 
 
 
 
 
 
 
 
 
 
 
                                                           
3  METHODOLOGY 

This  chapter  presents  the  methodological  aspects  of  the  evaluation  of  the 
Liability  Regulation.  The  intervention  logic  is  presented  in  Section  2.1, 
highlighting  the  objectives,  needs,  activities  and  outputs,  as  well  as  EU 
policies and external factors. Section 2.2 presents the scope of the evaluation 
by  listing  the  six  evaluation  criteria,  which  can  be  linked  to  the  intervention 
logic,  and  the  10  evaluation  questions  formulated  for  these  criteria.  These 
criteria  and  questions  form  the  basis  for  the  evaluation  framework,  which  is 
outlined in briefly addressed in Section 2.2. Section 2.3 presents the design of 
the evaluation, including the evaluation’s objective and the tasks to be carried 
out to deliver the project objectives. Section 2.4 presents the process of data 
collection  and  analysis,  including  its  bottlenecks  and  the  limitations  of  the 
evaluation. 

3.1  Evaluation criteria, questions and evaluation framework 

Evaluation criteria 
The evaluation concentrates on the following six evaluation criteria: 

1.  The  relevance  of  the  Liability  Regulation,  i.e.  the  extent  to  which 
intervention's objectives are pertinent to the needs, problems and issues 
to be addressed; 

2.  The effectiveness of the Liability Regulation, i.e. the extent to which set 

objectives are achieved; 

3.  The efficiency of the Liability Regulation, i.e. the extent to which desired 

effects are achieved at a reasonable cost; 

4.  The  coherence  of  the  Liability  Regulation,  i.e.  the  extent  to  which  the 
intervention  logic  is  non-contradictory  and/or  the  Liability  Regulation 
does not contradict other interventions with similar objectives; 

5.  The  European  Added  Value  of  the  Liability  Regulation,  i.e.  the  value 
resulting  from  the  Liability  Regulation  which  is  additional  to  the  value 
that would have been otherwise created by Member State action alone; 
6.  The Complementarity of the Liability Regulation, i.e. the extent to which 
the  Regulation  has  been  successful  in  supplementing  the  Athens 
Convention and any national regimes on liability of passenger carriers in 
case of accidents at sea applicable in the Member States. 

Evaluation questions 
Based  on these  evaluation  criteria ten (10) evaluation questions are  defined, 
as  presented  below  (grouped  per  evaluation  criteria):  The  evaluation 
questions  are  addressed  in  Chapters  4-9,  forming  the  analytical  part  of  this 
Draft Final Report.  

Relevance 
1.  To what extent are the objectives of this initiative still relevant today? 
2.  To  what  extent  is  the  current  scope  of  application  of  the  Regulation  (i.e. 
international  and  classes  A  and  В  of  domestic  carriage)  adequate  for  the 
attainment of the objectives? 

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3 

 
 
 
 
 
 
 
 
 
 
Effectiveness 
3.  To what extent have the objectives of the Regulation been achieved? 
4.  To what  extent have the measures  adopted in the Regulation ensured the 
same  level  of  passenger  rights  protection  regardless  of  the  area  of 
operation of the ship? 

5.  Has the Regulation lead to any positive or negative unexpected effects? 

Efficiency 
6.  Do  the  costs  of  the  measures  adopted  in  the  Regulation  to  achieve  the 
aforementioned objectives remain reasonable and proportionate in relation 
to the benefits of the Regulation? 

Coherence 
7.  To what extent does the Regulation fit in well within the framework of the 
EU  maritime  safety  policy  and  passenger  rights  policy  and,  more 
specifically,  within  the  Union's  approach  to  transport  operators'  liability? 
Are there any overlaps, gaps or inconsistencies? 

8.  Are the  objectives  of the Regulation (still) coherent with the  EU  Transport 
policy, notably the White Paper on Transport, and ten policy areas that are 
set as priorities by the current European Commission (as announced in July 
20148)? 

EU Added Value 
9.  What  added  value  compared  to  the  international  and  national  regimes  for 

liability of carriers of passengers at sea has the Regulation brought? 

Complementarity 
10. 

To  what  extent  has  the  Regulation  been  successful  in  supplementing 
the  Athens  Convention  and  any  national  regimes  on  liability  of  passenger 
carriers in case of accidents at sea applicable in the Member States? 

Evaluation framework 
An evaluation framework was developed as  an  aid for the assessment  of  the 
Liability  Regulation.  It  ensures  a  pragmatic  and  structured  approach  for 
answering  each  evaluation  question,  while  detailing  data  needs  and  data 
collection  tools.  The  purpose  of  the  evaluation  framework  is  to  assist  in 
reaching  well  founded,  evidence-based  answers  for  each  of  the  evaluation 
questions. In practical terms, the framework assists in linking the questions to 
indicators,  as  well  as  in  defining  approaches  on  data  collection,  sources,  and 
methodology for analysis of the tasks to follow. 

Annex  1  includes  the  evaluation  framework.  This  framework  has  been  fine-
tuned on the basis of literature review and exploratory interviews, as well as 
comments  received  from  the  Commission.  It  has  been  used  in  the  analytical 
work and the formulation of responses to the evaluation questions. 

8  

Summary of President Juncker's Political Guidelines (July 2014). Source: http://ec.europa.eu/priorities/docs/political-
guidelines-short_en.pdf. 

4 

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3.2  Design of the evaluation 

Objective of the evaluation 
The general objective is to support the Commission with the evaluation of the 
Liability  Regulation.  More  specifically,  this  support  study  provides  the 
Commission with input for an independent evidence-based assessment of the 
application of the legislation on liability of carriers of passengers by sea in the 
event  of  accidents  in  the  years  2013-2015,  according  to  its  effects  and  the 
needs it aims to satisfy, examining specific aspects thereof. 

Tasks 
The  project’s  methodological  approach  is  illustrated  in  Figure  3.1,  presenting 
the seven tasks that are described in the subsequent section.  

Figure 3.1 

Methodological approach 

Source: Ecorys 

Task 1 Study structure 
The study structure task, part of the inception phase, was carried out in order 
to  establish  the  foundation  for  implementing  the  project.  An  evaluation 
framework  was  developed  at  the  beginning  of  the  project  to  facilitate  the 
evaluation (see description above).  A total of six exploratory interviews were 
carried  out9  and  the  kick-off  meeting  with  the  Commission  took  place.  All 
activities resulted in the submission and approval of the Inception Report.  

Task 2 Desk research 
Literature  has  been  reviewed,  based  on  information  needs  coming  from  the 
to 
evaluation 
effectiveness  and  coherence.  A  list  of  documents  reviewed  is  presented  in 
Annex  4.  Results  from  desk  research,  as  reported  in  Annex  5,  have  been 
linked to the evaluation questions, and as such incorporated in the Sections 4-

framework,  mainly  concentrating  on  questions  related 

9  

See Annex 10: List of interviews for detailed information on the exploratory interviews (names, organizations, dates). 
Annex 11 contains the minutes of meetings of these interviews. 

Support study to the Evaluation of Regulation (EC) 392/2009 

5 

 Improved evaluation framework, with methodological approach and work plan Kick-off meeting Exploratory interviews Inception Report Inventory of relevant documentation Review of relevant documentation Conclusions per 6 defined evaluation criteria Recommendations where appropriateInception phaseData collection and analysis phaseSynthesis phaseT2: Desk researchT5: Conclusions and recommendations T3a: Surveys – specific for stakeholders groups T3b: Targeted interviews T3c: Expert group meetings Prepare a synthesis note with main findings Identify audience/key users Define communication channelsT3: Field researchT6: Development dissemination strategy Minimum of four case studies In-depth assessment of the application of the RegulationT4: Case studies Analyze responses of OPC Prepare a report on the stakeholder consultationT7: Open Public ConsultationT1L Study structure 
 
 
 
 
 
 
 
 
 
                                                           
9.  The  use  of  the  initial  results  of  review  of  academic  legal  literature  was 
found to be limited. Therefore, we have broadened the scope of the literature 
review,  providing  results  that  could  be  better  used  for  responding  to  the 
evaluation questions.  

Task 3a Questionnaires targeted survey 
The questionnaire survey was targeted at the main actors concerned with the 
application  of  the  Liability  Regulation,  i.e.  EU  Member  States  (policy  making 
authorities  and 
inspectorate  authorities)  ;  ship  owners;  passengers’ 
associations;  insurers;  academic;  law  firms  and  third  (non-EU)  states.  The 
questionnaire survey was officially opened on 20 May 2016 and, with an initial 
one-month  response  period,  had  a  deadline  of  20  June  2016.  In  order  to 
further  raise  the  response  rate,  the  deadline  was  been  extended  to  29  July 
2016. A total of 72 persons have commenced the survey, with many persons 
partially  completing  the  survey10.  Some  stakeholders  groups  are  relatively 
well represented, notably the Member States,  with a combined 40 responses 
from policy making authorities and inspectorate authorities. Other stakeholder 
groups  are  less  well  represented,  e.g.  passenger  representatives  (five 
responses) and law firms (three responses). A full overview of respondents is 
presented in Annex 3. Overall, it is the consultant’s opinion that the response 
rate  is  satisfactory.  Some  groups  that  are  less  well  presented,  such  as  law 
firms  and  passenger  representatives,  were  given  extra  emphasis 
in 
interviews. A total of nine law firms and five passenger  representatives were 
interviewed,  as  presented  in  Annex  9,  adding  to  the  evidence  base  and 
robustness of our conclusions. 

Task 3b Targeted interviews 
In  total,  43  interviews  have  been  carried  out.  An  overview  of  stakeholder 
groups  that  have  been  interviewed  is  presented  in  Table  3.1.  Annex  9 
presents the individual organisations that have been interviewed. 

Overview of interviews conducted per stakeholder group 

Table 3.1 
Stakeholder groups 
EU Member State 
Ship owner / operator 
Passengers / Victims association 
Insurer 
Third (non-EU) state 
Law frim 
Academic 
Other 
Total 

Implemented 
12 
5 
5 
5 
0 
9 
5 
2 
43 

All  interviews  have  approved  minutes  of  meeting  (see  Annex  11).  An 
interview  script  and  a  background  note  for  the  interviewees  have  been 
prepared for these interviews, presented in Annex 8 and 9 respectively.  
The  interviews  have  proven  to  be  a  very  effective  instrument  for  collecting 
data. It should be noted that it has not always been possible to cover the full 

10   Out of the 72 respondents that started the survey, 42 respondents completed the survey fully or the majority, allowing for 

quantitative analysis of the questions of the first and larger part of the survey. Details are presented in Annex 3. 

6 

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range  of  evaluation  aspects  with  all  stakeholders,  as  presented  in  the 
interview script. Often a stakeholder had a specific field of interest. However, 
the  whole  blend  of  stakeholders  provided  a  comprehensive  coverage  of  the 
full range of evaluation aspects.  

Task 3c Expert group meetings 
The  conference  on  Meeting  of  National  Enforcement  Bodies  for  the  Rights  of 
passengers  when  travelling  by  sea  and  inland  waterway  (25  April  2016)  has 
been attended, providing the opportunity to present the evaluation to national 
enforcement bodies of EU Member States.  

Task 4 Case studies 
Four case studies are included to understand how the Liability Regulation has 
impacted  the  compensation  of  passengers  injured  as  a  result  of  shipping 
incidents  and  other  related  accidents  that  have  occurred11;  and  to  gather 
input  for  replying  to  evaluation  questions12.Four  case  studies  have  been 
selected  that  represent  the  different  types  of  incidents  covered  under  the 
scope of the Liability Regulation and the Athens Convention, i.e. the cases of 
the Ogia (2015, a wave crashed into the ship causing passengers to fall from 
their seats); the Norman Atlantic (2014, fire on-board the ship); the Sorrento 
(2015, fire on-board the ship); and the City of Poros (1998, terrorist attack). 
The  cases  have  been  selected  to  reflect  accidents  of  a  different  nature. 
Moreover,  shipping  incidents  and  non-shipping  incidents  were  included  to 
illustrate whether cases involving a shift in the burden of proof (i.e. passenger 
to carrier) are being handled in a different matter. Detailed information on the 
case studies is presented in Annex 7. 

Task 5 Conclusions and recommendations 
In  this  task,  the  data  collection  has  been  analysed,  resulting  in  conclusions, 
mainly  in  the 
form  of  responses  to  the  evaluation  questions,  and 
recommendations.  The  analysis  is  presented  in  Sections  4-9  and  the 
conclusions and recommendations are presented in Section 10. 

Task 6 Development dissemination strategy 
In  this  task,  a  dissemination  strategy  is  developed  to  stimulate  the  use  and 
uptake  of  the  evaluation  results.  To  this  end  a  synthesis  note  is  made, 
summarising  the  conclusions  and  recommendations  of  our  analysis.  This 
synthesis  note  is  distributed  to  a  large  audience,  making  use  of  contacts 
established  during  the  stakeholder  consultation  process  and  the  wider 
audience, to be reached in collaboration with the Commission. 

Task 7 Open Public Consultation 
Input  was  provided  to  the  questionnaire  of  the  Open  Public  Consultation 
(OPC).  The  OPC  was  launched  at  a  relatively  late  point  in  time  in  order  to 
provide  input  for  both  the  ex-post  evaluation  and  possibly  also  the  impact 
assessment  on  the  points  where  the  Regulation  explicitly  requires  the 
Commission  to  examine  possible  amendments.  Results  of  the  OPC  have 

11   More details on this are presented in the Questionnaire for case studies, as presented in Annex 6. 
12   The case studies have especially provided information for responding the evaluation criteria effectiveness, efficiency, 

coherence and complementarity. 

Support study to the Evaluation of Regulation (EC) 392/2009 

7 

 
 
 
 
 
 
 
 
 
 
 
                                                           
become  available  end  of  October  and  have  been  reported  in  the  Stakeholder 
Consultation Report. It should be noted that the response rate of the OPC was 
low (16 responses). Where useful, results from the OPC have been integrated 
in the Final Report. 

3.3  Data collection and analysis 

The  data  collection  process  has  been  driven  to  meet  the  information  needs 
that  have  been  defined  in  the  evaluation  framework.  This  section  points  out 
data  limitations  and  draws  conclusions  on  the  ability  to  respond  to  the 
evaluation questions.  

Limitations 
Limitations  have  been  encountered  in  collecting  data.  In  such  cases, 
mitigating measures have been taken in order  to still  be able respond to the 
evaluation questions. 

Initially,  the  short  implementation  period  of  the  Liability  Regulation  has 
resulted  in  relatively  limited  experience  with  the  implementation  of  the 
Regulation13. Many Member States have opted for the transitional provisions, 
as included in Article 11 (see  Table 4.7)14. As a consequence, the experience 
with  the  application  of  the  Regulation  to  domestic  ships  is  limited  to  a 
restricted number of Member States15.  

Table 3.2 presents an overview of difficulties in data collection and mitigating 
measures, organised per evaluation question.  

Table 3.2 
Evaluation question 

General 
representation 
Member 
authorities in survey 

measure 

Data limitation 

high 
of 
State 

Difficulties in data collection and mitigating measures 
Mitigating 
solution 
The  survey  results  are 
reviewed per stakeholder 
category,  where  needed. 
In  addition,  results  are 
triangulated  with  other 
sources, 
notably 
interviews. 

The  majority  (57%)  of 
the  72  respondents  of 
represent 
the  survey 
State 
Member 
either 
authorities; 
or 
policy 
bodies. 
inspectorate 
Consequently, 
the 
survey  results  may  be 
biased. 

making 

13   The Liability Regulation entered into force on 31 December 2012. According to the ToR our evaluation period considers 

the period until 31 December 2015, thus the implementation period is restricted to 3 years. 

14   From the total of 28 Member States the transitional provision is relevant for 22 Member States (five member States being 
landlocked and Malta not having Ships Class A-B). Out of the 22 remaining Member States, 10 have opted to make use of 
the transitional provision fro Class A ships and 12 Member States have opted to make use of the transitional provision fro 
Class B ships.  

15   Experience with Class A ships: 12 Member States; experience with Class B ships: 10 Member States; experience with 

Class C-D ships: 3 Member States. 

8 

Support study to the Evaluation of Regulation (EC) 392/2009 

 
 
 
 
 
 
 
 
 
 
 
 
                                                           
Evaluation question 

Data limitation 

some 
General 
groups 
stakeholder 
in 
under-represented 
law 
(notably 
survey 
firms  and  passenger 
representatives) 

benchmark 
Relevance 
of  Member 
analysis 
have 
that 
States 
already 
the 
applied 
Regulation  to  domestic 
ships 
and  Member 
States  that  have  not 
done so.  

Effectiveness  consulting 
the  EMSA  spreadsheet 
conclusions 
to  draw 
with 
the 
incident analysis section 

respect 

to 

Effectiveness  Literature 
review 

of 

the 

Out 
72 
respondents  three  were 
law  firms  and  five  were 
passenger 
representatives. 

on 

level 

The  comparison  base  of 
quantified  data  was 
small,  weak  or  absent, 
of 
e.g. 
paid, 
compensation 
insurance 
level 
of 
premiums, 
passenger 
complaints,  or  related 
to  accidents  (shipping 
and non-shipping). 
The mechanism used by 
the  EMCIP  database 
which  is  also  reflected 
in 
EMSA 
spreadsheet of incidents 
does  not  answer  the 
question  of  whether  an 
incident 
is  considered 
as  a  shipping  or  a  non-
shipping incident. 
It  was  hard  to  connect 
the  opinions  of  authors 
to  specific  evaluation 
criteria, provided that in 
most  instances  authors 
general 
offer 
input. 

some 

the 

the 

and 

firms 

measure 

interviews 

Mitigating 
solution 
Specific focus was placed 
in 
in 
providing coverage of the 
that  were 
categories 
under-represented  in  the 
survey.  A  total  of  nine 
law 
five 
passenger  representative 
organisations 
were 
interviewed. 
Analysis  was  more  done 
qualitatively  and  based 
on 
from 
stakeholders,  particularly 
perceived 
how 
issues,  e.g. 
relevance 
the  extent 
to  which 
needs  and  objectives  are 
still relevant today.  

responses 

they 

No 
conclusions  were 
drawn  with  respect  to 
the  categorization  of  the 
incidents  on  the  basis  of 
the  EMSA  spreadsheet. 
Instead, the case studies 
offered  more 
insight 
regarding  how  particular 
incidents were treated. 

of 

scope 

the 
The 
review  was 
literature 
broadened  enabling  the 
consultants to distinguish 
the main points raised by 
most authors and on that 
basis  determine  whether 
these  fall  under  one  of 
the 
evaluation 
criteria.  

given 

Support study to the Evaluation of Regulation (EC) 392/2009 

9 

 
 
 
 
 
 
Evaluation question 

Data limitation 

Effectiveness  Mapping 
the  scope  of  application 
of the Regulation 

The 
information 
available  on  the  scope 
of  application  of  the 
Regulation  by  individual 
Member States, in most 
cases  did  not  clarify 
how HSC, DSC and non-
vessels  were 
steel 
treated. Further, the list 
with  the  information  on 
the  scope  of  application 
of  the  Regulation,  as 
held  by  the  EC  was  not 
updated  with 
latest 
policy decisions. 

with 

measure 

Mitigating 
solution 
All  competent  National 
authorities  needed  to  be 
approached 
a 
specific  inquiry  to  clarify 
the 
of 
application  and  managed 
to  obtain  a  very  high 
response  rate  for  coastal 
Member State. 

scope 

exact 

Effectiveness  Impact  on 
insurance premiums 

The 
was 
question 
approached  qualitatively 
both  in  the  survey  as 
well  as  in  the  interviews 
to  obtain  an  assessment 
impact  of  the 
of  the 
Regulation.  The  opinions 
of  different  stakeholder 
(national 
groups 
authorities,  ship  owners 
and 
were 
insurers) 
triangulated  to  validate 
them. 

of 

impact 

faced  a 

We 
lack  of 
disaggregated  data  on 
the 
the 
Regulation  on  insurance 
premiums.  Data  on  the 
(liability) 
overall 
insurance  premiums  do 
not  reflect  in  specific 
the impact on  European 
passenger 
carriage. 
Moreover  specific  P&I 
clubs16  and  most  of  the 
approached ship owners 
were  not  willing  to  take 
part 
targeted 
the 
interviews  or  able  to 
provide specific relevant 
data, 
no 
quantification  possible 
of  the  exact  impact  on 
insurance 
premiums 
was possible. 

therefore 

in 

16   A P&I Club provides protection and indemnity insurance, which is a form of mutual maritime insurance and more 

commonly known as "P&I" insurance. 

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Support study to the Evaluation of Regulation (EC) 392/2009 

 
 
 
 
 
 
 
                                                           
Evaluation question 

Data limitation 

Effectiveness  Impact  on 
level  and 
timing  of 
compensations 

Effectiveness  Impact  on 
compensations 
for 
luggage  and  mobility 
equipment 

Effectiveness/ 
coherence 

Effectiveness/ 
coherence 

Effectiveness analysis of 
how  the  provisions  of 
the  Regulation  have 
affected  the  handling  of 
passengers’  claims  and 
their 
improved 
knowledge 
their 
rights. 

of 

of 

The  limited  amount  of 
important 
accidents 
that  happened  during 
the  application  of  the 
Regulation 
led  most 
stakeholders  to  be  able 
to  only  theorize  on  the 
the 
impact 
Regulation.  Moreover, 
the  many  parameters 
defining  the  nature  of 
such  accidents  prevent 
(in  most  parts)  any 
direct  comparison  of 
cases  prior  and  after 
the  application  of  the 
Regulation. 
Claims related to loss of 
or  mobility 
luggage 
equipment  are 
rare, 
usually small in size and 
no  monitoring  of  such 
claims  was 
identified, 
while most stakeholders 
to 
were 
comment 
these 
impacts  due  to  lack  of 
knowledge. 
Absence  of  case  law  on 
the interpretation of key 
provisions  of  Regulation 
392/2009 
PAL 
2002. 
Absence  of  case  law  on 
compensations  awarded 
Regulation 
under 
392/2009 
PAL 
and 
2002.  
In  the  context  of  the 
studies 
case 
Confidentiality 
issues 
and 
lack  of  /limited 
availability  of  relevant 
stakeholders.  Lack  of 
hard sources. 

able 

and 

not 

on 

measure 

Mitigating 
solution 
The  assessment  of  such 
impacts of the Regulation 
is to a large extent based 
on  the  findings  of  the 
existing 
studies 
case 
which  is  supplemented 
by stakeholder opinions. 

opinions 

presented 

The  assessment  of  such 
impacts  is  based  on  the 
limited 
that 
were  encountered  and 
the  overall  impact  of  the 
Regulation on such cases 
is 
a 
secondary  impact  of  the 
Regulation 
into 
account  the  information 
limitations. 
This  lack  was  addressed 
by  analysing  cases  on 
other  legal  instruments 
with similar rules. 

taking 

as 

the 

analysis 

was 
looking 
applicable 
law  rules  on 

The 
performed  by 
into 
national 
these issues.  
Various 
stakeholders 
have  been  consulted  on 
the  same  issues  in  order 
to  fill  information  gaps 
the 
and 
accuracy  of  the  gathered 
information. 

assess 

to 

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11 

 
 
 
 
 
 
Evaluation question 

Data limitation 

Efficiency 
scarce 
literature  sources  and 
information form  

value 
Added 
assessment  of  how  the 
implementation  of  the 
has 
Regulation 
impacted 
passengers’ 
protection. 
Source: Ecorys, Grimaldi, ESL. 

literature 

Available 
in 
which elements of costs 
and 
are 
efficiency 
addressed  are  dated 
from  times  prior  to  the 
Regulation  entering into 
force. 
In  the  context  of  the 
case  studies  Lack  of 
/limited  availability  of 
relevant stakeholders. 

measure 

Mitigating 
solution 
The  assumptions  found 
in  these  studies  could 
not be verified with other 
literature,  but  have  been 
complemented 
with 
interviews. 

The gathered information 
has  been  complemented 
analysis 
by 
legal 
filling 
allowing 
information gaps. 

a 

Conclusion on data limitations and robustness of conclusions 
The evaluation is confronted with data limitations.  An important factor in this 
is  the  short  implementation  period  (three  years)  and  the  fact  that  the 
application  of  the  Liability  Regulation  to  domestic  carriage  (Class  A-D  ships) 
has  been  postponed  in  about  half  the  Member  States17.  Consequently,  the 
evidence base is restricted. Bearing that in mind, the data collection process, 
as described in the Tasks 2-4 (see Section 2.2), has delivered a  strong base 
for  analysis  and  responding  to  the  evaluation  questions.  Where  data 
limitations  were  faced,  sufficient  mitigating  measures  have  been  taken,  as 
outlined in Table 3.2.  

17  

In line with Article 11 of the Regulation. 

12 

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4 

CONTEXT 

This  section  presents  information  on  the  context  within  which  the  Regulation 
is  applied.  Firstly,  the  evaluation’s  intervention  logic  is  presented  (Section 
3.1). Secondly, a comparison is made between the Athens Convention and the 
Regulation  (Section  3.2).  Consequently,  the  Baseline  Situation  prior  to  the 
introduction  of  the  Regulation  in  a  sample  of  Member  States  is  presented 
(Section 3.3). This is followed by a presentation of the market developments 
affecting  passenger  transport  that  has  taken  place  since  the  introduction  of 
the  Regulation  (Section  3.4),  to  be  followed  by  an  overview  of  differences  in 
the  application  of  the  Regulation  by  Member  States  (Section  3.5).  Finally,  a 
description of the  state of play in terms  of data on passenger fleet and their 
performance and incident analysis is presented in Section 3.6.  

4.1  Intervention logic 

The intervention logic describes how the intervention is expected to work, i.e. 
how  different  inputs/activities/outputs  triggered  by  the  EU  intervention  are 
expected to interact to deliver the promised changes over time and ultimately 
achieve  the  objectives.  The  intervention  logic  also  considers  external  factors 
which may influence both the performance of the EU intervention, or generate 
the same type of effects. A graphical presentation of the intervention logic, as 
included  in  the  evaluation  roadmap,  is  presented  in  Figure  4.118.  Elements 
from  the  intervention  logic  are  addressed  below,  starting  with  objectives, 
based  on  needs  and  leading  to  measures,  and  then  external  factors  and  EU 
policies are addressed19.  

Objectives 
Liability  rules  for  damages  caused  to  passengers  are  important  to  safeguard 
passengers'  rights,  but  also  to  create  a  level  playing  field  for  carriers  across 
Europe  fostering  responsible  shipping  practices  and,  indirectly,  raising  safety 
standards.  

Hence, the following general objectives are defined: 

1.  Ensuring that passenger rights are respected in the event of accidents at 
sea in the course of carriage, including in particular an adequate level of 
compensation, irrespective of the area of operation of the vessel; 

2.  Establishing  a  level  playing  field  for  the  operators  taking  into  account 
insurability  of  risks  and  the  differences  among  the  different  types  of 
carriage; 

3.  Establishing  an  additional  incentive  for  better  safety  performance  of 
operators  in  EU  waters,  as  carriers  will  have  to  demonstrate  that  their 
ships are safe in order to obtain the mandatory insurance coverage. 

18   See: http://ec.europa.eu/smart-

19  

regulation/roadmaps/docs/2015_move_048_evaluation_liability_of_passenger_carriers_by_sea.pdf. 
 It should be noted that elements have been added in relation to the intervention logic as presented in Figure 4.1, notably 
on a fourth defined objective. 

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13 

 
 
 
 
 
 
 
 
 
 
 
                                                           
A fourth general objective was added20: 
4.  Seeking  to  create  a  balanced  framework  of  protection  for  passengers 
across  transport  modes,  with  respect,  in  particular,  to  the  right  to 
information, the rights to special compensation for persons with reduced 
mobility and the right to an advance payment. 

20   This fourth general objective is not included in the intervention logic that is included in the roadmap.  

14 

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Figure 4.1 

Intervention logic 

Support study to the Evaluation of Regulation (EC) 392/2009 

15 

 
 
 
 
 
 
 
 
 
 
Source: Evaluation roadmap. 

16 

Support study to the Evaluation of Regulation (EC) 392/2009 

 
 
 
 
 
 
 
 
Needs: drivers and problems 
The  intervention  logic  links  drivers  to  the  defined  problems  in  the  following 
way: 
1.  Main problem 1- rights of passengers are not sufficiently safeguarded: 
  Passengers are not aware of their rights in case of accidents; 

 

Insufficient compensation for passengers in case of accidents; 

  Carriers are not liable for the loss of mobility equipment of PRMs in an 

accident; 

  Long time for receiving compensation; 

  Lack of legal certainty for victims and carriers. 

2.  Main problem 2- no level playing field for carriers in the EU: 

  Rights for compensation (standards) differ in EU Member States; 

  Unlimited  liability  for  carriers  (including  for  terrorism  risks)  cannot  be 

combined with mandatory insurance; 

  Lack of legal certainty for victims and carriers. 

3.  Main  problem  3  -  potential  risks  to  the  safety  of  passengers  carriage  by 

sea.  
  This  problem  is  directly  linked  to  the  first  main  problem,  no  specific 

drivers are defined. 

4.  Main  problem  4  -  balanced  framework  of  protection  for  passengers  across 

transport modes. 
  This  problem  has  been  added  to  provide  the  base  for  the  fourth 
general objective, as defined above, dealing with difference in level of 
protection  of  passengers  carried  by  sea  as  compared  to  passengers 
travelling by transport modes (air, train, bus); 

  Underlying  drivers  are:  different  levels  of  compensation;  difference  in 
timing  of  receiving  compensation;  difference  in  providing  information 
to  passengers  (between  modes)  and  in  general  differences  in  legal 
certainty from victims across modes. 

Measures: activities and outputs 
Three  types  of  measures  are  defined  in  the  Regulation  to  deliver  above-
mentioned objectives: 
7.  Measures  establishing  specific rights for passengers in case  of an accident 

in the course of carriage by sea: 
 

Incorporating  Athens  Convention  as  amended  by  the  2002  Protocol 
(PAL 2002) into EU law (strict liability of the carrier; raising maximum 
liability  limits;  mandatory  insurance  for  carriers;  right  of  direct 
resource against insurers); 

  Rights of an advance payment; 

  Obligation for carriers to provide information to passengers; 

  Compensation for loss or damage to mobility equipment for Passengers 

with Reduced Mobility (PRMs). 

8.  Measures  establishing  a  wider  scope  of  application  for  these  rights,  going 
beyond  the  standards  of  the  relevant  international  convention,  covering 
both international and domestic carriage: 
  Extending the scope of PAL 2002 and IMO Guidelines 2006 to domestic 

carriage of passengers by sea. 

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17 

 
 
 
 
 
 
 
9.  Measures  taking  into  account  the  financial  capabilities  of  carriers  and 
protecting the insurability of the relevant obligations established under the 
two aspects mentioned above: 
 

Incorporating IMO Guidelines 2006 (including terrorism risks in capped 
liability;  eliminating  possibility  for  states  to  raise  unilaterally  liability 
limits for carriers). 

In order to support the proportionality of the requirements, different deadlines 
for  implementation  are  defined  for  the  various  ship  classes  in  domestic 
carriage. 

Results and impacts 
The  following  three  impacts  are  defined,  each  presented  with  underlying 
results: 
1.  Reinforced passenger protection at sea: 

  Equal  level  of  protection  of  passengers  across  transport  modes  in  the 

EU; 

  Gradual  harmonisation  of  standards  between 

international  and 

domestic carriage; 

  Protecting access to information for passengers on their rights in case 

of an accident. 

  No  further  need  fro  parallel  passenger  insurance  against  accidents  at 

sea. 

2.  Improved maritime safety for passenger vessels: 

  Raising standards for passenger carriage by sea. 

  Gradual  harmonisation  of  standards  between 

international  and 

domestic carriage; 

3.  Level playing field for businesses/carriers: 

  Raising standards for passenger carriage by sea. 

  Ensuring insurability of relevant risks for carriers. 

Besides the  results that are listed with the three defined impacts, there is 
also  the  result  of  increased  costs  for  carriers,  which  may  result  in  an 
increase of ticket prices. 

EU policies and External factors 
EU policies 
The  Liability  Regulation  is  part  of  a  larger  EU  policy  framework.  The  main 
policies  influencing  the  Liability  Regulation  are  listed  below:  This  part  is 
elaborated in Section 7 on coherence. 

  EU approach to transport operators’ liability; 

  EU passenger rights policy; 

  EU maritime safety policy; 

  EU transport policy; 

  EC ten priority policy areas, as announced in the Summary of President 

Juncker's Political Guidelines (July 2014)21. 

21   Source: http://ec.europa.eu/priorities/docs/political-guidelines-short_en.pdf 

18 

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External factors 
The external factors relate to developments outside the direct influence of the 
European Commission, but which do influence impact of the Regulation. Most 
important legal external factors are the adoption and coming into force of the 
2002  Athens  Protocol,  as  well  as  the  adoption  of  the  IMO  Guidelines  2006. 
Both documents aim to improve maritime passenger protection and set clear 
rules on operator’s liability. During the evaluation it is important to assess the 
complementarity  between  the  Regulation  on  the  one  hand  and  the  2002 
Athens Protocol and IMO Guidelines on the other. 

Besides legal external factors also economic external factors are important to 
assess  the  impacts  of  the  Liability  Regulation.  Most  important  economical 
factor is the recent (and future) increase of passenger transport, especially in 
the  cruise  sector.  The  number  of  cruise  passengers  is  growing  each  year22, 
both at a global level as well as in the EU. This growth implies that the group 
falling  within  the  scope  of  the  Regulation  is  also  increasing.  Irrespective  of 
safety  levels,  the  number  of  incidents  might  increase  to  a  higher  number  of 
potential ‘victims’. 

Contrary to the cruise market, the number of EU ferry passengers is declining. 
A recent study (2015) indicates that the average number of ferry passenger in 
the  EU  declines  with  2%  per  year23.  As  a  result,  the  number  of  ferry 
passengers falling within the scope of the Regulation will decrease. 

4.2  The Athens Convention and the Liability Regulation 

The  Liability  Regulation  is  part  of  a  multi-layered  framework  of  international 
and EU legislation impacting sea passenger rights. In order to properly assess 
the  Liability  Regulation  based  upon  the  evaluation  criteria  and  mainly  to 
assess  the  relevance;  effectiveness;  efficiency;  coherence;  EU  added  value 
and  complementarity,  it  is  important  to  first  assess  the  differences  between 
the Liability Regulation and Protocol of 2002 to the Athens Convention relating 
to  the  Carriage  of  Passengers  and  their  Luggage  by  Sea,  197424  (Section 
3.1.1)  and  the  difference  between  the  Liability  Regulation  and  the  original 
Athens  Convention  relating  to  the  Carriage  of  Passengers  and  their  Luggage 
by Sea, 197425 (Section 3.1.2).  

4.2.1  The Liability Regulation compared to PAL 2002 
The  Liability  Regulation  did  not  incorporate  the  entire  PAL  2002,  but  only 
Articles  I,  Ibis,  II  para.  2,  III  to  XVI,  XVIII,  XX  and  XXI.  There  are  three 
points  where  the  Regulation  has  taken  a  different  approach  than  PAL  2002: 
the scope, the procedural rules (expressed in jurisdiction and recognition) and 
the possibility for the carrier to invoke global limitation Conventions. After the 

22   Source: http://www.cruisemarketwatch.com/growth/.  
23   Source: Cenit et al (2015).  
24   Hereinafter referred to as PAL 2002. 
25   Hereinafter referred to as Athens Convention 1974. 

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19 

 
 
 
 
 
 
 
 
 
 
 
 
                                                           
accession  of  the  EU  to  PAL  2002  with  the  Council  Decisions  of  201226,  the 
impact  hereof  was  largely  eliminated.  Table  4.1  highlights  the  main 
differences between the Liability Regulation and PAL 2002.  

apply 

Liability 

Regulation 

States  may 

Article  1.3:  exclusion  of  air-
cushion vehicles 

Liability Regulation compared to PAL 2002 
PAL 2002 

Article  2:  Connecting  factor  “State 
Parties” 
Art 2: International Carriage 

Table 4.1 
Liability Regulation  
Scope 
Article  2:  Connecting  factor  “Member 
State” 
Article  2:  International  carriage  within 
the meaning of point 9 of Article 1 of the 
Athens  Convention  and  carriage  by  sea 
within  a  single  Member  State  on  board 
ships  of  Classes  A  and  B  under  Article 4 
of Directive 98/18/EC 
Member 
this 
Regulation  to  all  domestic  seagoing 
voyages. 
The  Regulation  has  broadened  the  regime  to  types  of  transport  excluded 
under PAL 2002 and thus expanded passenger protection. 
Jurisdiction 
The 
excludes 
jurisdiction  rules  of  PAL  2002.  With  the 
accession of the EU to PAL 2002 (Council 
Decision  2012/23/EU),  the  PAL  2002 
jurisdiction  rules  however  have  priority 
over those of Regulation 1215/2012 in a 
situation  where  said  Convention 
is 
applicable  (Recital  4  Council  decision 
2012/23/EU).  
example 
In  other 
domestic 
transportation),  Regulation 
1215/2012  (recast  repealing  Regulation 
I(bis)')  will  be 
44/2001 
applicable  within  its  scope  of  application 
: 
Article 4.1: domicile respondent.  
In addition: Special jurisdiction Rules for 
consumer contracts.  
Article  18:  A  consumer  may  bring 
proceedings against the other party to a 
contract  either  in  the  courts  of  the 
Member  State  in  which  that  party  is 
domiciled  or,  regardless  of  the  domicile 
of  the  other  party,  in  the  courts  for  the 

Article 17: 
(a)  the  court  of  the  State  of 
permanent  residence  or  principal 
place of business of the defendant, 
or  
(b)  the  court  of  the  State  of 
the 
departure 
destination 
the 
contract  of  carriage,  or  (c)  the 
court  of  the  State  of  the  domicile 
or  permanent  residence  of  the 
claimant,  if  the  defendant  has  a 
place of business and is subject to 
jurisdiction in that State, or  
d) the court of the State where the 
contract  of  carriage  was  made,  if 
the  defendant  has  a  place  of 
business  and 
to 
jurisdiction in that State."  
Insofar  as 
situated in state parties 

3.  After  the  occurrence  of  the 
incident  which  has  caused  the 

or 
that 
according 

courts  are 

situations 

'Brussels 

subject 

of 
to 

these 

(for 

is 

26   Council Decision 2012/22/EU: Council Decision of 12 December 2011 concerning the accession of the European Union to 
the Protocol of 2002 to the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974, 
with the exception of Articles 10 and 11 thereof. OJ L 8, 12.1.2012, p. 1–12 and Council decision 2012/23/EU of 12 
December 2011 concerning the accession of the European Union to the Protocol of 2002 to the Athens Convention 
relating to the Carriage of Passengers and their Luggage by Sea, 1974, as regards Articles 10 and 11 thereof, OJ 12 
January 2012, L 8/13). 

20 

Support study to the Evaluation of Regulation (EC) 392/2009 

 
 
 
 
 
 
 
 
 
 
 
 
                                                           
Liability Regulation  
place where the consumer is domiciled. 

PAL 2002 
damage,  the  parties  may  agree 
that  the  claim  for  damages  shall 
be submitted to any jurisdiction or 
to arbitration 

also 

other 

I(bis)); 

situation 

contracts 

transport 

However, 
are 
excluded  from  the  scope  of  the  above 
protective  consumer  jurisdiction  rules, 
except  in  case  of  an  all  in  price  for 
transport  and  accommodation  (art.  17.3 
Brussels 
transport 
contracts fall under art. 7 1b) 2 Brussels 
I(bis).  
art.  7  1b)  2  Brussels  I(bis):  Member 
State  where,  under  the  contract,  the 
services  were  provided  or  should  have 
been provided. 
In 
exclusive 
this 
jurisdiction  clauses  are  valid  (art.  25 
Brussels I(bis)). 
A  difference  exists  in  case  of  domestic  transport  covered  by  the  Liability 
Regulation but not by PAL 2002, in such situation, in case of cruise contracts, 
the  jurisdiction  rules  are  as  favourable  to  the  passenger  as  under  PAL  2002. 
In case of ferry-transportation, jurisdiction rules of the Liability Regulation are 
however  less  favourable,  as  'ferry  transportation'  does  not  qualify  as  a 
package  travel,  and  thus  it  falls  under  general  contractual  jurisdiction  rules 
and  not  under  protective  consumer  jurisdiction  rules  under  the  Brussels  I 
Regulation. From a legislative point of view it could be argued that reference 
to  the  jurisdiction  rules  of  PAL  2002  in  the  Liability  Regulation  (including  a 
possible delimitation of the applicability of these rules as to take into account 
the  effects  of  Council  Decision  2012/23/EU)  could  be  advantageous  for 
passengers as this would avoid that passengers would need to analyse three 
different legal instruments in order to find the applicable jurisdiction rules. 
Recognition 
Even  though  the  EU  acceded  to  PAL 
2002,  the  rules  on  recognition  and 
enforcement of PAL 2002 do not apply in 
the  following  situations(art.  2.2  and  2.3 
and 
decision 
Recital 
2012/23/EU):  
-in  case  of  judgements  by  EU  courts 
when  recognition  or  enforcement 
is 
sought in another EU member State.  
-in  case  of  judgments  by  States  Parties 
to 
Lugano  Convention  when 
recognition  or  enforcement  is  sought  in 
an EU member State. 
In  the  first  hypothesis  this  topic  stays 
subject  to  Regulation  1215/2012.  (in 
case  of  a  judgment  rendered  by  Danish 
courts,  the  Agreement  between  the 
European  Community  and  the  Kingdom 
of  Denmark  on  jurisdiction  and  the 

Article 17 bis:  
Any  judgment  given  by  a  court 
with jurisdiction in accordance with 
Article  17  which  is  enforceable  in 
the  State  of  origin  where  it  is  no 
longer subject to ordinary forms of 
review,  shall  be  recognised  in  any 
State Party, except  
(a)  where 
obtained by fraud; or  
(b)  where  the  defendant  was  not 
given  reasonable  notice  and  a  fair 
opportunity to present the case.  
2.  A  judgment  recognised  under 
paragraph  1  shall  be  enforceable 
in each State Party as soon as the 
formalities  required  in  that  State 
have  been  complied  with.  The 
formalities  shall  not  permit  the 

judgment  was 

Council 

the 

the 

5 

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21 

 
 
 
 
 
 
 
 
to 

for 

rules 

other 

failed 

enforcement 

PAL 2002 
merits  of  the  case  to  be  re-
opened. 
However, according to para 3 
A  State  Party  to  this  Protocol  may 
the 
apply 
recognition  and  enforcement  of 
judgments,  provided  that  their 
effect  is  to  ensure  that  judgments 
are  recognised  and  enforced  at 
least  to  the  same  extent  as  under 
paragraphs 1 and 2." 

Liability Regulation  
of 
and 
recognition 
judgments 
in  civil  and  commercial 
matters  is  applicable,  which  ensures 
application  of  the  Brussels  I  Regulation 
in Denmark): 
Article 45 Brussels I(bis): 
the  recognition  of  a  judgment  shall  be 
refused: 
(a)  if  such  recognition  is  manifestly 
contrary to public policy (order public) in 
the Member State addressed; 
(b)  where  the  judgment  was  given  in 
default  of  appearance,  if  the  defendant 
was not served with the document which 
instituted  the  proceedings  or  with  an 
equivalent  document  in  sufficient  time 
and  in  such  a  way  as  to  enable  him  to 
arrange  for  his  defence,  unless  the 
commence 
defendant 
proceedings  to  challenge  the  judgment 
when it was possible for him to do so 
(c)  if  the  judgment  is  irreconcilable  with 
a  judgment  given  between  the  same 
parties in the Member State addressed; 
(d) if the judgment is irreconcilable with 
an  earlier  judgment  given  in  another 
Member  State  or 
in  a  third  State 
involving  the  same  cause  of  action  and 
between the same parties, provided that 
the earlier judgment fulfils the conditions 
necessary  for  its  recognition  in  the 
Member State addressed; or 
(e) if the judgment conflicts with: 
(i)  the  jurisdiction  rules  applicable  to 
consumer contracts (see above) 
Under  Article  17  bis.  PAL  2002,  the  grounds  for  a  refusal  of  recognition  are 
fewer  than  under  Brussels  I(bis).An  important  difference  between  the  two  is 
that PAL 2002 doesn`t provide for a public policy exception. 
Global limitation 
Article 5.1 
This  Regulation  shall  not  modify  the 
the  carrier  or 
rights  or  duties  of 
national 
performing 
under 
the 
implementing 
legislation 
International Convention on Limitation of 
Liability  for  Maritime  Claims,  1976,  as 
amended  by  the  Protocol  of  1996, 
including any future amendment thereto. 
In  the  absence  of  any  such  applicable 
national  legislation,  the  liability  of  the 

Article 19 
This  Convention  shall  not  modify 
the  rights  or  duties  of  the  carrier, 
the  performing  carrier,  and  their 
servants  or  agents  provided  for  in 
international  conventions  relating 
to  the  limitation  of  liability  of 
owners of seagoing ships. 

carrier 

22 

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PAL 2002 

Liability Regulation  
carrier  or  performing  carrier  shall  be 
governed  only  by  Article  3  of  this 
Regulation. 
Global  limitation  can  undermine  the  effectiveness  of  the  protection  of 
passenger  rights.  PAL  2002  doesn`t  specify  the  limitation  Conventions  that 
could  be  invoked  by  the  carrier.  While  carriers  can  thus  for  example  invoke 
LLMC 1976 under PAL 2002, this is not possible under the Regulation. 
Source: ESL 

In  addition,  the  Liability  Regulation  provides  for  additional  protection  of 
passengers,  as  it  provides  for  rules  on  advance  payment  and  protective 
measures  for  disabled  passengers,  as  well  as  the  requirement  to  provide 
passengers  with  appropriate  and  comprehensible  information  regarding  their 
rights. Main additions are: 

  Advance  payments:  Article  8:  Advance  payment  in  case  of  injury  or 

dead within 15 days of at least 21.000 Euro in case of death; 

  Disabled  passengers:  In  the  event  of  loss  of,  or  damage  to,  mobility 
equipment  or  other  specific  equipment  used  by  a  passenger  with 
reduced  mobility, 
the 
replacement value of the equipment concerned or, where applicable, to 
the costs relating to repairs; 

the  compensation  shall  correspond 

to 

 

Information:  Article  7:  the  carrier  and/or  performing  carrier  shall 
that  passengers  are  provided  with  appropriate  and 
ensure 
comprehensible 
this 
Regulation. 

rights  under 

information 

regarding 

their 

4.2.2  The Liability Regulation and PAL 2002 compared to Athens 1974 
As  the  Liability  Regulation  took  over  the  PAL  2002  provisions  to  a  large 
extent,  and  those  provisions  brought  a  significant  change  to  the  liability 
regime  of  the  Athens  Convention  1974,  such  differences  also  exist  between 
the  Liability  Regulation  and  the  Athens  Convention  1974.  As  a  result  of  the 
EU’s  accession  to  PAL  2002  (Council  decision  2012/22/EU  and  2012/23/EU), 
PAL 2002 became a part of the EU legal order.  

Table  4.2  presents  the  main  differences  between  the  Liability  Regulation  and 
PAL  2002  on  the  one  hand,  and  the  Athens  1974  Convention  on  the  other 
hand.  The  main  differences  relate  to  liability  standards  and  the  burden  of 
proof, liability limits and deductibles, time bars and compulsory insurances.  

Regulation 392/2009 & PAL 2002 compared to Athens 1974 Convention 
Athens 1974 

Table 4.2 
Regulation 392/2009 and PAL 2002 
Liability standard and burden of proof 
shipping incidents: 
Article  3.1:  Presumed  liability  (strict 
liability),  
Damage up to 250.000 SDR: 
only  a  limited  number  of  exceptions 
available:  
Damage  (a)  resulted  from  an  act  of 

Article 3.1: Fault based liability. 
Article  3.2:  Burden  of  proof  for  the 
claimant  
But: Article 3.3: presumed liability  
if  the  death  of  or  personal  injury  to 
the  passenger  or  the  loss  of  or 
damage  to  cabin  luggage  arose  from 

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23 

 
 
 
 
 
 
 
 
 
 
 
fault 

based 

liability, 

Athens 1974 
or  in  connection  with  the  shipwreck, 
collision,  stranding,  explosion  or  fire, 
or defect in the ship. 

Regulation 392/2009 and PAL 2002 
war, hostilities, civil war, insurrection 
or  a  natural  phenomenon  of  an 
exceptional, inevitable and irresistible 
character;  or  (b)  was  wholly  caused 
by  an  act  or  omission  done  with  the 
intent to cause the incident by a third 
party. 
Damage above 250.000 SDR:  
proof  of  the  absence  of  fault  or 
negligence. 
Non-shipping incident: 
Article3.2: 
burden of proof on claimant.  
The  main  difference  between  PAL  2002  and  Athens  1974  are  the  defences 
available  to  the  carrier  in  case  of  shipping  incidents,  insofar  it  relates  to 
damage  under  250.000  SDR.  While  the  reference  to  force  majeure  in  PAL 
2002  does  broaden  the  possibilities  to  escape  liability,  still  this  standard  is 
higher than the absence of fault under Athens 1974. 
Liability limits and deductibles 
Luggage: 
Compensation (art. 8, 1, 2 and 3):  
2250  SDR  (cabin  luggage),  12700 
(Vehicles) and 3375 (other Luggage) 
Deductibles (art. 8.4): 
330  SDR  (vehicles)  and  149  SDR 
(other luggage). 
Dead or personal injury 
Article 7.1: 400.000 SDR  
Article 7.2: state parties can increase 
limits 
The  liability  limits  underwent  a  significant  increase  with  PAL  2002.  Even 
though  regards  is  to  be  given  to  the  inflation  factor,  depending  on 
calculations, over this period inflation of the SDR-limit is only to be estimated 
at between 100 and 200 %. Thus especially the limits for vehicles and death 
or personal injury substantially increased, even when taking into account the 
inflation-correction.  Downside  for  the  passenger  is  the  fact  that  the  same  is 
true for the deductibles for other luggage.  
Time bar 
Article 16.1: time bar 2 years 
Article 16.3: suspension 
But  claim  barred  5  years  after 
disembarkation 
time 
disembarkation  should  have  taken 
place  or  3  years  after  the  actual 
knowledge  about  the  injury,  loss  or 
damage resulting from the incident 
Compulsory insurance 
art. 4(bis): 
art.  4(bis).1:  Compulsory  insurance 
or other financial securities in case of 

Luggage: 
Compensation(art. 8, 1, 2 and 3):  
833  SDR  (cabin 
(Vehicles) and 1200 (other Luggage) 
Deductibles (art. 8.4): 
117  SDR  (vehicles)  and  13  SDR 
(other luggage). 
Dead or personal injury 
Article 7.1: 46.667 SDR  
Article  7.2:  state  parties  can  increase 
limits 

Article 16.1: time bar 2 years 
Article  16.3:  suspension  subject  to 
national law 
But  claim  barred  3  years  after 
disembarkation 
time 
disembarkation  should  have  taken 
place 

luggage),  3333 

the 

the 

or 

or 

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Athens 1974 

Regulation 392/2009 and PAL 2002 
vessels  licensed  to  carry  more  than 
12 passengers.  
At  least  250.000  SDR  per  passenger 
per distinct occasion.  
art.  4(bis).10:  Direct  action  against 
the 
limit  of 
250.000 SDR. 
Source: ESL. 

insurer,  up  to  this 

4.3  Baseline: situation prior to the Liability Regulation 

Before the entry into force of the Liability Regulation, some EU Member States 
were  party  to  the  Athens  Convention  1974,  others  had  national  rules  which 
were  str  ongly  in  line  with  the  provisions  of  the  Athens  Convention,  and  the 
remainder  had  their  own  specific  national  regime  in  place.  In  this  section,  a 
brief  overview  of  the  systems  in  place  in  several  EU  Member  States  is 
presented.  The  situation  prior  to  1  January  2013  was  analysed  for  seven  EU 
Member States, i.e., the Netherlands, Denmark, the United Kingdom, France, 
Italy, Germany and Greece. These seven Member States have been chosen as 
they  represent  large  passenger  vessel  fleets  in  Europe  and  together  form  a 
well-balanced geographical representation of EU sea basins, i.e. representing 
the Baltic Sea, North Sea, Atlantic Sea and Mediterranean Sea.  

In the analysis three main questions were elaborated: 
1.  Whether  strict  liability  of  the  carrier  applied  before  the  Regulation  and  if 

the Member States were party to Athens 1974/2002? 

2.  Whether  specific  legislation  covered  accidents  at  sea  on  board  passenger 

vessels? 

3.  How passengers were compensated for claims falling under the Regulation 

before the Regulation? 

In  order  to  answer  these  three  main  questions,  11  sub-questions  were 
formulated.  Together  the  answers  provide  insights  for  the  three  main 
questions. The sub-questions are listed below: 
1.  What was the regime in force concerning the liability of carrier before 2013 

and whether there was a regime of strict liability or fault liability? 
2.  Was there a distinction between shipping and non-shipping incidents? 
3.  Which  were  the  rules  on  the  burden  of  proof?  Was  the  carrier  presumed 

guilty in case of shipping incident? 

4.  Was  the  liability  of  the  carrier  governed  by  specific  rules  governing  the 

contract of carriage or by general rules on contractual liability? 
5.  Was the Member State member of the Athens 1974 Convention? 
6.  Which  damages  were  compensated  under  national  rules:  physical  loss, 
economic  loss?  Were  there  specific  rules  on  losses  concerning  luggage, 
disability equipment? 

7.  Where  there  rules  granting  an  advance  payment  to  passengers  in  case  of 

shipping incident or any other form of assistance? 
8.  Was there an obligation of the carrier to be insured? 
9.  Did the passenger have a direct action against the insurer? 

Support study to the Evaluation of Regulation (EC) 392/2009 

25 

 
 
 
 
 
 
 
 
 
 
10.  Were  there  limits  to  the  liability  of  the  carrier?  If  yes,  when  did  they 

apply? In case of strict liability? What about fault liability? 

11. 

Did national law foresee an obligation to inform passengers concerning 

their rights to compensation? 

Table 4.3 below presents the brief answers to the 11 questions above. Annex 
12 presents more elaborated answers to these questions.  

26 

Support study to the Evaluation of Regulation (EC) 392/2009 

 
 
 
 
 
 
 
 
 
Table 4.3 

1. Regime in place? 
Strict or fault-based liability? 
2.  Distinction  shipping  non-
shipping? 
3.  Presumed  liability  of  the 
carrier? 

for 

Athens 

Advance 

4.  Specific  of  general  liability 
rules? 
5. 
to 
Party 
Convention 1974? 
loss 
6.  Compensation 
damage mobility equipment? 
7. 
payment 
possible?  
8. 
carrier? 
9.  Direct  action  against 
insurer? 
10. Liability limits in place? 
11.  Information  obligation  of 
the carrier? 

Insurance 

obligation 

Overview of responses per baseline question 
NL 
Yes 
Fault-based 
No 

DK 
Yes 
Fault-based 
No 

UK 
Yes 
Fault-based 
No 

FR 
Yes 
Fault-based 
Yes 

IT 
Yes 
Fault-based 
No 

DE 
Yes 
Fault-based 
Yes 

EL 
Yes 
Fault-based 
Yes 

for 

Yes, 
some 
damages 
Specific 

for 

Yes, 
some 
damages 
General 

for 

Yes, 
some 
damages 
Specific 

No 

No 

No 

No 

No 

Yes 
No 

No 

No 

No 

No 

No 

Yes 
No 

Yes 

No 

No 

No 

No 

Yes 
Yes 

Yes, 
only 
for persons 

Yes 

Yes 

Yes 

Specific 

Specific 

Specific 

No 

No 

No 

No 

No 

Yes 
No 

No 

No 

No 

No 

No 

Yes 
No 

No 

No 

No 

No 

No 

Yes 
No 

Depended 
on damage 
Yes 

Yes 

No 

No 

No 

Yes 
No 

Support study to the Evaluation of Regulation (EC) 392/2009 

27 

 
 
 
 
 
 
 
Table  4.3  indicates  that  the  regimes  in  place  in  the  analysed  countries  are 
highly  similar.  In  relation  to  the  three  main  questions  the  following  answers 
can be given. 

Question 1: strict liability of the carrier 
None  of  the  seven  countries  analysed  had  a  strict  liability  system  in  place. 
Two  countries,  the  UK  and  Greece,  were  party  to  the  Athens  Convention, 
while  the  remaining  five  closely  followed  the  provisions  laid  down  in  the 
Convention.  Therefore,  the  applicable  regimes  in  these  seven  countries  are 
very  similar  and  comparable  (expect  for  countries  specific  differences,  which 
are often minor). 

Question  2:  specific  legislation  covering  accidents  at  sea  on  board 
passenger vessels 
In most of the countries analysed, the liability of the carrier was governed by 
specific  rules  regarding  the  contract  of  carriage.  Only  in  two  of  the  countries 
were general rules on contractual liability in place. In Denmark all claims were 
dealt with under the general liability rules, while in Greece it depended on the 
specific claim. In case of death or injury of a passenger or damages or loss of 
belongings,  a  specific  regime  was  in  place,  while  for  all  other  claims  general 
rules applied.  

Question 3: compensation for claims falling under the Regulation 
In  all  the  countries  which  were  analysed,  the  liability  of  the  carrier  was 
limited,  although  the  actual  limits  differ  per  country27.  In  all  countries 
damages were paid in case of the passenger’s death or injury and damage to 
or  loss  of  luggage.  In  some  countries  rules  regarding  valuables  also  existed. 
None of the countries specifically included mobility equipment under the scope 
of  the  liability  regime.  While  no  case  law  addressing  issues  related  to  such 
equipment  were  identified,  the  assessment  is  that  such  equipment  would  be 
treated as cabin luggage28.  

Furthermore, within the analysed countries, none of the legal regimes foresaw 
an  obligation  to  the  carrier  or  insurer  to  provide  the  passenger  with  an 
advance payment.  

4.4  Market developments 

The  aim  of  this  section  is  to  present  the  developments  in  the  market  of 
passenger transport since the entry into force of the Regulation. The following 
sections  present  developments  in  passenger  fleet  size  (cruise  and  ferries), 
sector  size,  passenger  volumes  and  developments  in  the  sea  passenger 
vessels insurance market. These developments provide contextual knowledge 
that  assists  in  the  interpretation  of  the  stakeholder  consultation  findings  as 
performed in the assessment of the evaluation questions. 

27   For example, in Italy there ere no limits for damage to persons. 
28   Under the Regulation the regime of liability for such equipment is the same as the one for cabin luggage.  

28 

Support study to the Evaluation of Regulation (EC) 392/2009 

 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
4.4.1  Passenger fleet size 
In  the  years  following  the  adoption  of  the  Regulation,  the  passenger  vessel 
fleet  registered  under  EU  flags  has  remained  relatively  constant  with a  small 
increase observed in the number of vessels as seen in Table 4.4. This increase 
has occurred to its majority in the last year.  However, the total fleet volume 
(in dead weight tonnes) has decreased in the mean time by more than 3.5%.  

Table 4.4 

Number of passenger ships with EU flags (300 gross tonnes and over)  
Change 

2012 

2014 

2016 

2015 

2013 

# of ships 

1.267 

1.240 

1.276 

1000s dwt 
2.858 
Source: Institute of Shipping Economics and Logistics29 

2.799 

2.797 

1.269 

2.786 

1.295 

2.758 

2.2% 

-3.5% 

This  development  underlines  the  fact  that  the  number  of  vessels  required  to 
apply the Regulation has not changed significantly. 

4.4.2  Sector size 
Looking  into  the  evolution  of  the  number  of  ferry  connections  calling  at  EU 
ports,  two  clear  patterns  can  be  distinguished.  Although  domestic  ferry 
connections  have  increased  nearly  constantly since  2008  raising  from  559  to 
609, the 378 ferry lines on cross-border connections have n the same period 
decreased by approximately 15% with the entirety of this decline coming after 
2011. 

Table 4.5 

Number of ferry connections in the EU 

2008 

2009  2010  2011  2012  2013  2014  Change 

Domestic 

559 

Cross-border  378 

571 

365 

Total 
Source: TRT Transporti e Territorio30 

937 

936 

568 

372 

940 

593 

376 

969 

597 

350 

947 

616 

337 

953 

609 

327 

936 

8.2% 

-15.6% 

-0.1% 

This  reduction  on  cross-border  traffic  is  attributed  to  the  competition  from 
fixed  links  and  low-cost  airline  carriers  and  the  escalation  of  bunker  prices 
(prior to 2014) having influenced the operations in the industry. 

4.4.3  Sea passenger volumes 
However, recent developments have been more intense in the volumes of sea 
passengers.  Since  the  Regulation  came  into  force,  the  number  of  sea 
passengers  embarking and  disembarking in  EU  ports  has  remained  relatively 
stable  at  approximately  400  million.  This  came  predominantly  in  the  period 
just  prior  to  the  introduction  of  the  Regulation  (2008-2012),  a  nearly  8% 
decrease in ridership had been observed as in 2012 there were 40 million less 
passengers  arriving  at  or  departing  from  EU  ports  compared  to  2008  (see 
Figure 4.2).  

29   Shipping Statistics and market review 2016, volume 60 – No. 7, World Merchant Fleet by Ownership Patterns 
30   TRT Transporti e Territorio (2015), Research for TRAN Committee - The EU Maritime Transport System: Focus on Ferries 

Support study to the Evaluation of Regulation (EC) 392/2009 

29 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
Figure 4.2 

Number of passengers embarking and disembarking at EU ports 

s
n
o

i
l
l
i

M

450

440

430

420

410

400

390

380

370

2008

2009

2010

2011

2012

2013

2014

Source: Eurostat (mar_mp_aa_cph). 

This fact comes to showcase that the application of the Regulation came at a 
challenging timing for the sea passenger transport sector. 

4.4.4  Passenger vessels insurance market 
Finally,  it  is  worth  mentioning  the  context  in  matters  of  insurance  premiums 
in which the Regulation was  introduced. As prof. Erik Roesag demonstrates in 
his  research  of  published  P&I  club  insurance  premiums  (presented  in  Figure 
4.3)  there  is  a  notable  increase  in  passenger  transport  premiums.  After  a 
period of relative stability in insurance premiums lasting from 2007 to 2012, a 
large jump in insurance premiums for passenger transport is observed. In just 
one year, insurance premiums for passenger vessels more than doubled while 
in the same time the increases in premiums for other shipping segments were 
very  modest.  While  it  is  tempting  to  link  this  increase  to  the  impact  of  the 
Regulation  the  introduction  of  which  coincides  with  this  increase,  it  is 
important  to  note  that  these  premiums  concern  global  prices  and  are  only 
slightly  influenced  by  EU-specific  liability  regulations.  On  the  other  hand,  as 
insurance  industry  interviews  indicated,  insurance  premiums  are  mostly 
influenced,  at  a  global  level,  by  accidents  that  lead  the  industry  to  reassess 
the  risk  exposure31.  Industry  experts  reported  that  the  Regulation impact  on 
premiums was already anticipated and introduced earlier as the industry was 
expecting the coming into force of the Athens Protocol 200232.  

31   The sudden increase i9n premiums can, in the view of these findings, be linked to the Costa Concordia accident occurring 

in 2012. 

32   Could potentially be linked to the increase in premiums taking place in 2007. 

30 

Support study to the Evaluation of Regulation (EC) 392/2009 

 
 
 
 
 
 
 
 
 
 
 
                                                           
 
Figure 4.3 

P&I club insurance premiums for passenger ships 

n
o
t

r
e
p
D
S
U

4
3.5
3
2.5
2
1.5
1
0.5
0

Dirty Tanker

Clean Tanker

Passenger

Dry Cargo

Source: Erik Roesag (http://folk.uio.no/erikro/Erik_Rsg/Erik_Rsg.html)  
The 2013 premium increases have been reported to be linked to the ongoing 
restructuring of the mutuality scheme as discussed in Section 5.1.2. 

4.5  National application of the Regulation 

This  section  aims  to  present  the  main  difference  in  implementation  of  the 
Regulation  in  the  Member  States.  Firstly,  the  application  to  vessel  types  is 
presented  for  all  Member  States  that  responded  to  the  information  request. 
The  application  of  the  Regulation  on  specific  issues  is  then  examined  in  a 
representative sample of Member States. 

4.5.1  Scope of application 
The Athens Convention 1974 entered into force on April 28, 1987, and ten EU 
Member  States  became  a  party  to  this  Convention.  Even  though  PAL  2002 
imposes on the member states to the protocol the duty to denounce from the 
Convention  (17.5  PAL),  the  Athens  Convention  is  still  relevant  today  for  two 
reasons.  Firstly,  at  the  moment  of  entry  into  force  of  the  Regulation,  PAL 
2002 did not enter into force yet, as the required number of ratifications (10) 
were  not  yet  made.  PAL  2002  only  entered  into  force  on  23  April  2014. 
Denunciations  only  became  effective  as  of  this  date  and  thus  after  the  entry 
into  force  of  the  Regulation.  Secondly,  even  today,  PAL  2002  has  only  24 
Member States and still only 15 EU Member States became a party to it, while 
three  EU  Member  States  are  still  party  to  the  Athens  Convention  1974.  For 
the  three  Member  States  that  are  still  party  to  the  Athens  Convention  1974, 
the  Accession  of  EU  to  PAL  2002  has  also  brought  into  effect  the  relevant 
provisions of PAL 2002 to these countries33. 

Table 4.6 EU Member States who ratified Athens 1974 and/or PAL 2002* 

Athens 1974 

Belgium 
Bulgaria 
Croatia 
Denmark 

X 

X 

Denunciation 
Athens 1974 
23 April 2014 

23 April 2014 

Accession 
PAL 2002 
23 April 2014 
23 April 2014 
23 April 2014 
23 April 2014 

33   Although should these countries not Denounce Athens 1974 conflicts of interpretation over which convention takes effect 

may raise in the event of an accident.  

Support study to the Evaluation of Regulation (EC) 392/2009 

31 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
 
 
 
Athens 1974 

Denunciation 
Athens 1974 

Accession 
PAL 2002 

Estonia 
Greece 
Ireland 
Latvia 
Lithuania 
Luxembourg 
Malta 
Netherlands 
Poland 
Romania 
Slovakia 
Spain 

Sweden 

Still party 
X 
X 
X 

Still party 

Still party 

X 

23 April 2014 
7 November 2014  7 November 2014 
23 April 2014 

23 April 2014 

23 April 2014 
10 June 2015 

23 April 2014 
23 April 2014 

September 

11 
2015 

September 

21 January 2015 
13 July 2015 
11 
2015 
2 
2015 
23 April 2014 

September 

United Kingdom 
*  Austria,  Cyprus,  Czech  Republic,  Finland,  France,  Germany,  Hungary,  Italy,  Portugal,  and  Slovenia  have 
neither ratified PAL 2002 nor Athens 1974. 

23 April 2014 

X 

The  Liability  Regulation  applies  to  all  EU-28  Member  States.  The  Regulation 
does  not  only  apply  to  international  shipping,  but  also  to  domestic  shipping. 
However,  under  the  Regulation  it  is  possible  to  apply  the  Regulation  to  all 
forms  of  national  shipping  (Class  A,  B,  C  and  D),  to  apply  it  only  to  Class  A 
and B ships or to also  exempt those classes until a set deadline given in the 
Regulation.  Table  4.7  provides  an  overview  of  the  application  of  the 
Regulation to domestic shipping in each of the Member States.  

Application of Article 11 of the Regulation 

the 

the  Regulation 

Table 4.7 
Application  of  Article  11  of 
Regulation 
Application  of 
domestic carriage 
Classes A and B since 31/12/2012  
application  to  Classes  C  and  D  (in 
bracket) 
Application  of 
domestic carriage: 
Class A and B since 31/12/2012 

the  Regulation 

to 

to 

EU Member States + EEA 

Netherlands, 

Norway 
The 
(31/12/2012), 
Denmark 
(15/01/2013), Sweden (2/9/2015) 

Belgium,  Bulgaria,  Finland,  France, 
Lithuania, Romania*, Slovenia* 
Landlocked 
States: 
Austria, Czech Republic*, Hungary, 
Luxembourg, Slovakia* 
Ireland*, Poland 

Member 

the  Regulation 

to 

Application  of 
domestic carriage: 
Class A since 31/12/2012 
Postponement of application to  
Class B until 31/12/2018 
Application  of 
domestic carriage: 
Class A: 31/12/2014 
Postponement of application to: 

the  Regulation 

to 

Spain 

32 

Support study to the Evaluation of Regulation (EC) 392/2009 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
EU Member States + EEA 

Croatia*, 
Estonia*, 
Cyprus, 
Germany,  Greece,  Italy,  Latvia*, 
Portugal*, United Kingdom 

the 

Application  of  Article  11  of 
Regulation 
Class B until 31/12/2018 
Postponement  of  application  of  the 
Regulation to: 
Class A: 31/12/2016 
Class B: 31/12/2018 
Not  applying  the  Regulation in  domestic 
carriage due to absence of Class A and B 
ships 
(*): Based exclusively from desk research. 
Source: Survey, Interviews and European Parliamentary Research Services. 

Malta 

Denmark,  the  Netherlands  and  Sweden  have  chosen  to  apply  the  Regulation 
also  to  Class  C  and  D  ships.  However,  in  order  to  reduce  the  burden  to  the 
maritime  administration  and  ship-owners,  these  countries  have  chosen  for  a 
lighter  implementation  to  these  vessels.  For  Denmark,  the  implementation 
approximates  the  provisions  of  the  PAL  as  these  vessel  classes  are  exempt 
from some of the Regulation provisions, such as the obligation to carry a war-
risk  insurance.  However,  they  are  stripped  of  the  obligation  to  issue  a 
certificate of insurance (proof of insurance suffices). 

A  number  of  vessel  categories  are  not  explicitly  included in  the  provisions  of 
the Regulation. This relates to: 
  High Speed Craft (HSC); 

  Dynamically Supported Craft (DSC); 

  Non-steel vessels, made of: 

-  Aluminium; 
-  Wood; 
-  Composite materials. 

  Vessels carrying less than 12 passengers. 

Throughout  our  research, it was noted that Member States adopted different 
approaches  as  to  the  application  of  the  Regulation  to  these  vessel  types. 
Figure  4.4  presents  the  application  of  the  Regulation  to  High  Speed  Craft 
(HSC)  and  Dynamically  Supported  Crat  (DSC)  domestic  carriage.  The  two 
categories  are  approached  in  the  same  way  by  the  Member  States.  A  usual 
exception to the application of the Regulation is the air-cushioned vessels (i.e. 
France,  the  Netherlands).  Most  of  the  Member  States  apply  (or  intend  to 
apply)  the  Regulation  to  vessels  of  equivalent  use  as  to  the  steel  classes  to 
which they already apply (or plan to apply) the Regulation.  

Support study to the Evaluation of Regulation (EC) 392/2009 

33 

 
 
 
 
 
 
 
 
 
 
 
Figure 4.4 

Application  of  Regulation  to  High  Speed  Craft  (HSC)  and  Dynamically 

Supported Craft (DSC) 

Source: Ecorys. 

Figure  4.5  presents  the  application  of  the  Regulation  to  non-steel  vessels. 
Similar  to  the  previous  figure,  Member  States  chose  to  apply  (or  intend  to 
apply)  the  Regulation  to  vessels  of  equivalent  use  as  to  the  steel  classes  to 
which they already apply (or plan to apply) the Regulation. Here it should be 
noted that a number of Member States could not respond to the enquiry as to 
their  application  of  the  Regulation  to  non-steel  vessels.  This  is  the  case 
especially  for  Member  States  that  have  deferred  the  application  of  the 
Regulation  for  Classes  A  and  B  and  are  therefore  not  yet  applying  the 
Regulation to any domestic carriage. 

34 

Support study to the Evaluation of Regulation (EC) 392/2009 

 
 
 
 
 
 
 
 
 
Figure 4.5 

Application  of  Regulation  to  non-steel  vessels  (aluminium,  wood, 

composite) 

Source: Ecorys. 

Finally, it should be noted that Denmark is the only member state that applies 
the  Regulation  to  all  vessels,  including  those  that  are  licenced  to  carry  less 
than 12 passengers. The approach of the Ministry of Transport of Denmark is 
that  there  should  be  no  discrimination  as  to  passenger  rights  depending  on 
the route and vessel type. 

4.5.2  Application in selected Member States 
The absence  of uniform rules, determining the recoverable damage, result in 
a threat to uniformity, as national law regimes governing recoverable damage 
differ  to  a  significant  extent.  Member  States  can  be  categorised  in  four  legal 
systems regarding their approach on transport liability legislation: 
1.  The French System (e.g. France, Belgium, Spain and Italy); 
2.  The  German  system  (e.g.  Germany,  The  Netherlands,  Switzerland  and 

Austria); 

3.  Common law systems (English law, Scottish law and Irish law); 
4.  Scandinavian systems. 

These systems mainly differ on three main aspects:  
1.  The amount of compensation; 
2.  The types of damage that are considered recoverable; 
3.  The compensation for personal injury. 

The  biggest  difference  in  these  systems  exists  between  the  Common  Law 
(highest  compensation)  and  Scandinavian  Law  (lowest  compensation).  In 
addition, the circle of persons entitled to compensation is subject to significant 
differences. While compensation for loss of income is awarded in all countries, 
compensation  for  pain  and  suffering  is  not  awarded  in  most  countries 

Support study to the Evaluation of Regulation (EC) 392/2009 

35 

 
 
 
 
 
 
 
 
 
 
 
 
 
belonging  to  the  German  system,  while  the  French  system  has  an  open 
system  and  judges  award  such  compensation  to  a  broad  category  of  people, 
and in English law, there is a closed system. The Fatal Accidents Act provides 
for  such  compensation  to  a  limited  category  of  people.  Again  the  amount  of 
compensation  differs  greatly.  For  example,  in  English  law,  an  integral 
compensation  is  awarded  for  loss  of  income,  often  amounting  to  millions  in 
compensation.  In  the  French  system,  for  example,  compensation  scales  are 
applied, leading to a more limited compensation. 

The question whether compensation is available for personal injury in different 
countries,  is  very  much  linked  with  social  security.  Traditionally,  there  is  no 
liability  for  costs  covered  by  social  security.  However,  there  might  be  a 
recourse action available in national law for social security institutions. When 
it  comes  to  mental  distress,  in  Southern  countries,  compensation  is  being 
awarded, while in the Netherlands, Germany and the UK such compensation is 
only being awarded in case of a recognised psychological disease. Exceptions 
exist  in  case  of  a  violation  of  human  rights  (e.g.  privacy),  but  in  such 
situations the violation of law is the basis for the claim and not necessarily the 
damage incurred. 

It  is  considered  unlikely  that  a  harmonising  effect  from  the  Regulation  will 
occur  on  these  points.  According  to  Professor  Lindenbergh34,  there  are  no 
examples  in  other  domains  where  the  existence  of  common  limits  to  liability 
had a harmonising impact on the compensations that are awarded. 

In the following tables, the differences in a representative sample of Member 
States  identified  largely  confirms  the  above  as  presented,  with  Table  4.8 
addressing  the  differences  in  the  limits  to  liability  and  Table  4.9  addressing 
differences in the types of recoverable damages. 

A  study  of  the  pre-existing  national  law  of  a  sample  of  EU  member  states 
shows  evidence  that  albeit  most  countries  did  not  ratify  the  Athens 
Convention 1974, all of them still provided for a national law limitation and a 
reversed  burden  of  proof.  However,  the  limits  in  national  law  were 
significantly  lower  than  those  under  PAL  2002.  With  this,  PAL  2002 
significantly improves passenger rights. 

Table 4.8 

Limits to liability in a sample of Member States 

Athens 
Convention 
1974/1976/1990 

Netherlands  Not ratified 

Limitation 
based on  
National Law 
life/ 
Loss  of 
injury  137.000 
Euro p.p. 
Luggage  1.000 
Euro 
Vehicles  9.100 
Euro 

1996 
protocols/ 
1976 LLMC 
Ratified 

Burden  of 
proof 

National 
law: 
Reversal  of 
the  burden 
of proof 

34   Professor of Civil Law, Erasmus University Rotterdam. 

36 

Support study to the Evaluation of Regulation (EC) 392/2009 

 
 
 
 
 
 
 
 
 
 
 
 
                                                           
Athens 
Convention 
1974/1976/1990 
Not ratified 

Germany 

France 

Not ratified 

United 
Kingdom 

Ratified 

Burden  of 
proof 

1996 
protocols/ 
1976 LLMC 
Not ratified  National 

law: 
Reversal  of 
the  burden 
of proof 

Limitation 
based on  
National Law 
Loss  of 
injury 
320.000 
Luggage 
4.000 
Vehicles 
16.000 
Other 
DM 6.000 

life/ 
DM 

DM 

DM 

luggage 

luggage 

luggage 

life/ 
SDR 

Loss  of 
injury 
175.000 p.p. 
Cabin 
1.140 Euro 
Vehicle  4.600 
Euro 
Other 
1.520 Euro 
Loss  of 
injury 
300.000 p.p. 
Luggage  SDR 
833 
Vehicles  SDR 
3.333 
Other 
1.200 SDR 

life/ 
SDR 

luggage 

Ratified 

from 

Ratified but 
excluded 
sea-going 
ships 
the 
application 
of 
1996 

LLMC 

1961 
Brussels 
Convention 
and 
national 
law: 
Reversal  of 
the  burden 
of proof 
Article 
3 
(3)  Athens 
Convention 
1974: 
Reversal  of 
the  burden 
of proof. 

Table 4.9 

Recoverable damages in a sample of Member States 

France 

Germany 

Loss  of 
earning 
capacity 

Recoverabl
e 

Only  insofar  accompanied 
by  financial  loss  of  actual 
or future income 

Common 
Law (UK) 
+ 

Scandinavi
a (Norway) 
+ 

Calculation  Standardis
(not 

ed 
binding) 

No 
standardisati
on 
BGH, 
17.01.1995 
VI ZR 62/94 

Standardis
ed 

(Ogden 
Tables)35 

Standardisi
ng 
case 
law 
Article  3-1 
SKL 

35  

https://www.gov.uk/government/publications/ogden-tables-actuarial-compensation-tables-for-injury-and-death. 

Support study to the Evaluation of Regulation (EC) 392/2009 

37 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
Scandinavi
a (Norway) 
Not 
awarded 

Not 
awarded 

Mental 
distress 

General 
conditions 

France 

Germany 

Common 
Law (UK) 

General principles: 
1)witnessing  daily  horror 
sufficient 
2)  pure  emotional  shock 
sufficient,  only 
mental or physical injury. 

is  not 
if  accompanied  by 

is  not 

Additional 
conditions 

Close 
relationship 
(BGH11.5.19
71, 
56, 163) 

BGHZ 

+ 

Compensat
ion for pain 
and 
suffering  

Schmerzensg
eld 

1 

South 

Close 
relationship 
with 
victim/ 
Proximity 
in time and 
place 
(Alcock  v. 
Chief 
Constable 
of 
Yorkshire 
[1992] 
A.C. 310) 
Awarded 
Pain 
suffering: 
subjective 
test 
Amenity: 
objective 
test 
Compensat
ion 
injury: 
standardise
d  (Judicial 
College 
guidelines)
36 

and 

for 

36  

https://www.wildy.com/isbn/9780198757627/judicial-college-guidelines-for-the-assessment-of-general-damages-in-
personal-injury-cases-13th-ed-paperback-oxford-university-press. 

38 

Support study to the Evaluation of Regulation (EC) 392/2009 

 
 
 
 
 
 
 
 
 
                                                           
France 

Germany 

Pretium 
doloris 

Loss  of 
consorti
um 
(dead  of 
a 
relative) 

No 

Open 
category: 
affection 
relationshi
p 

Scandinavi
a (Norway) 
Not 
awarded 

if 

Common 
Law (UK) 
-limited 
category  of 
persons  
-only 
financially 
dependent 
upon 
deceased 
(The  Fatal 
Accidents 
Act  1976+ 
Damages 
for 
bereaveme
nt 
2013/510 
(sum 
12.980 
GBP)) 

Order 

is 

4.6  State of play 

4.6.1  Data on passenger fleet and their performance 
Using the data from Directive 2009/45 EC, an overview has been made of the 
number of domestic carriage vessels falling under the main vessel classes for 
which  the  Liability  Regulation  has  been  adopted  (Class  A-D  ships  and  HSC). 
This has been done by checking for each of the separate Member States and 
37  for  the  various  classes.  Figure 
Norway  whether  the  Regulation is into  force0 F
4.6 summarises the number of ships and their passenger capacity by Member 
State.  There  is  a  total  of  922  vessels  operating  in  the  domestic  shipping 
according  to  the  Directive  2009/45  vessel  database,  out  of  these  882  are 
classified  as  either  belonging  to  classes  A-D  or  HSC.  This  number  should  be 
compared  to  about  4,600  passenger  vessels  operating  in  international 
shipping38 to which the Athens Convention already applied. 

Italy, Greece and Norway have the largest passenger ship fleet for which  the 
Regulation  applies,  both  in  numbers  and  passenger  capacity.  Note  that  Italy 
and  Greece  together  account  for  approximately  37%  of  the  total  number  of 
39,  explaining  their 
passengers  embarked  and  disembarked  in  the  EU  in  2014 1F
larger fleets. In both Greece and Italy, the Regulation will enter into force for 
Class A on 31 December-2016 and Class B on 31 December 2018. This means 
that  in  the  near  future,  a  large  group  of  passengers  will  benefit  from  the 
Regulation.  

37   European Commission (2012). Application of Regulation (EC) No 392/2009 to domestic carriage on board ships of 

Classes A, B, C and D as of 31/12/2012. 

38   Tractebel (2015), Support Study for the Fitness Check (FC), Evaluation of Passenger Ship Safety Legislation. 
39   Eurostat (2016), Maritime Ports Freight and Passenger Statistics. Retrieved on 21-06-2016 from 

http://ec.europa.eu/eurostat/statistics-explained/index.php/Maritime_ports_freight_and_passenger_statistics. 

Support study to the Evaluation of Regulation (EC) 392/2009 

39 

 
 
 
 
 
 
 
 
 
 
 
 
                                                           
Although not an EU Member State, Norway has the largest number of vessels 
and  passenger  capacity  on  ships  abiding  to  the  Regulation  to  this  date  (and 
will  remain  so  until  31  December,  2016  when  a  number  of  countries  will  be 
added).  Passenger  ships  from  Denmark,  the  UK  and  Spain  also  host 
significant  capacity,  explained  by 
large  number  of 
(dis)embarking  maritime  passengers  yearly.  Denmark  accounts  for  around 
10% of the total of the EU, while the UK and Spain account for slightly less. 

relatively 

the 

Out  of  the  882  vessels,  the  Liability  Regulation  applies  to  only  about  a  third 
(282).  This  number  will  grow  to  reach  333  vessels  by  the  end  of  this  year 
when the Regulation will be applied to the remaining Class A ships, and will be 
nearing half of the vessels in 2018, with 428. By 2018 all ships of Class A and 
Class B should fall under the regulation. At that point, only around 20% of the 
Class  C  ships  and  roughly  40%  of  the  Class  D  ships  will  fall  under  the 
regulation.  Additionally,  roughly  a  quarter  of  HSC  vessels  (41  out  of  152) 
already apply the Regulation (most of which are Norwegian). For the majority 
of  the  rest  (107  vessels),  their  flag  states  stated  that  they  aim  to  apply  the 
Regulation to HSC but have deferred the application to A and B class vessels 
for 2017 and 2019 respectively. Therefore, it is assumed that the application 
of  the  Regulation  to  these  vessels  will  take  effect  fully  only  after  31 
December,  2018.40  This  would  raise  the  application  of  the  Regulation  to 
approximately 97% of the EU HSC fleet (see Figure 4.6). 

Figure 4.6 

Comparison  of the  ships under  the  regulation with  the  total  number  of 

ships per class 

Figure 4.6 illustrates that  Class A and B jointly cover about 25% of the total 
domestic  fleet  of  the  database.  Figure  4.7  shows  that  these  ships  cover  just 
over 44% of the capacity, which is explained by the larger average capacity of 
Class A and B ships. Note however that even though Class A and B are larger 
on average, Class C and D ships can also be large: vessels with a capacity of 
over 1,000 passengers are no exception. Class C and D ships represent about 
61% of the ships, while covering 42% of the passenger capacity and the rest 

40   These MS (Greece, Italy, Spain and Estonia) have not indicated any limitations to the application of the Regulation to HSC 
vessels therefore we assume application to the entirety of their HSC fleet after the Regulation comes into effect for Class A 
and B ships in these countries. 

40 

Support study to the Evaluation of Regulation (EC) 392/2009 

 
 
 
 
 
 
 
 
 
 
                                                           
belong to the HSC category. While the Regulation currently applies to around 
20% of the EU domestic fleet capacity41, this figure is expected to increase to 
just  over  40%  after  31  December,  2016  and  reach  56%  by  the  beginning  of 
2019.  

Figure 4.7 

Comparison  of  the  passenger  capacity  under  the  regulation  with  the 

total capacity per class. (Passenger capacity in thousands) 

Regarding  Class  C  and  D,  by  the  end  of  2018  the  Regulation  will  apply42  to 
only 11% of the overall Class C ships capacity and to 31% of the overall Class 
D capacity. In addition, the HSC class of ships represent  roughly 15% of the 
total  capacity,  of  which  97%  will  be  under  the  Regulation.  Figure  4.8  and 
Figure  4.9  present  the  current  and  prospective  application  of  the  Regulation 
per  country,  in  regard  to  the  number  of  vessels  and  total  vessel  capacity 
respectively. 

41   Always referring to the fleet identified under the Directive 2009/45 EC database. 
42   Also assuming steady fleet size and composition for each vessel class. 

Support study to the Evaluation of Regulation (EC) 392/2009 

41 

 
 
 
 
 
 
 
 
 
 
 
                                                           
Figure 4.8 
number of ships per country 

Comparison  of  the  ships  under  the  regulation  with  the  total 

Figure 4.9 

Comparison  of  the  passenger  capacity  under  the  regulation  with  the 

total capacity per country. (Passenger capacity in thousands) 

42 

Support study to the Evaluation of Regulation (EC) 392/2009 

 
 
 
 
 
 
 
 
 
 
 
 
4.6.2  Incident analysis 
This  section  focuses  on  the  analysis  of  the  EMSA  EMCIP  database  incident 
information.  The  aim  of  this  database  is  to  record  the  accidents  occurring  in 
the  EU,  as  collected  at  a  national  level,  which  includes  the  total  number  of 
incidents  falling  under  the  scope  of  the  Regulation  from  2013  to  2015.  The 
EMCIP database does not contain information on claims or compensations that 
are  pertinent  for  the  Regulation  since  this  data  is  confidential  and  not 
collected  at  an  EU  or  national  level.  In  order  to  obtain  such  information,  an 
inquiry  to  the  relevant  stakeholders  (e.g.  insurers,  ship  owners,  passengers) 
is  necessary.  Thus  the  purpose  of  this  exercise  was  to  identify  potentially 
relevant  incidents  for  the  case  studies  for  which  this  more  specific  analysis 
can be made. 

The  findings  of  the  incident  analysis  are  summarised  further  below.  As 
demonstrated  in  Table  3.8,  during  the  complete  period  of  the  Regulation’s 
application  there  have  been  443  incidents  in  total,  which  include  372 
occupational  accidents  and  71  casualties  with  ships.  The  vast  majority  of 
incidents  constitute  occupational incidents  resulting in injuries  of  less  serious 
nature which occurred in the accommodation area of the ship. In most cases, 
such  events  are  falls  of  passengers  from  escalators,  stairs  or  other  areas  of 
the ship. Due to the fact that these incidents do not amount to “very serious 
marine casualties”, it is highly unlikely that an investigation has been initiated 
and  consequently  that  a  report  has  been  issued.  Furthermore,  it  should  be 
emphasised  at  this  point  that  the  distinction  between  occupational  accidents 
and  casualties  with  ships  does  not  coincide  with  the  exact  categories  of 
“shipping” and “non-shipping” incidents as defined by the Athens Convention. 
More specifically, a casualty with a ship indicates an event which affected the 
ship  itself,  and  possibly  a  passenger  as  well.  On  the  other  hand,  an 
occupational  accident  reflects  an  event  which  did  not  affect  the  ship  at  all. 
Therefore,  although  it  appears  that  these  categories  could  encompass  the 
distinction  of  shipping  and  non-shipping  incidents,  the  analysis  of  the  cases 
found below illustrates that this is not the case in many instances. 

Incidents reported in EMSA database 

Table 4.10 
Type of incident 
Casualty with a ship 
Less Serious 
Marine incident 
Serious 
Very serious 
Occupational accident 
Less Serious 
Marine incident 
Serious 
Very serious 
Grand Total 
Source: EMSA Directive 2009/18/EC. 

Count of reported incidents 
71 
44 
2 
18 
7 
372 
300 
7 
58 
7 
443 

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43 

 
 
 
 
 
 
 
 
 
 
 
Table 4.11 

Total lives lost and injured passengers 

of 
Sum 
Passenger Total 

Lives 

lost 

Sum  of  People  injured 
Passenger Total 

Casualty with a ship 

Occupational accident 

19 

7 

173 

371 

26 

544 

Grand Total 
Source: EMSA Directive 2009/18/EC. 
In  the  Skagastøl  case,  the  fall  of  a  passenger  down  the  staircase  resulted  in 
extensive head injuries and ultimately his death. In view of the severity of his 
injuries,  the  Norwegian  Authority  undertook  the  responsibility  to  conduct  an 
investigation.  It  was  thus  found  that  the  stairs  were  so  designed  that  they 
could entail a risk of falling. Specifically, as set out in the English summary of 
the official report “the  angle of the stairs was  steep, the first  step down was 
placed 35 cm in past the edge of the wheelhouse deck, and the railing on the 
starboard side did not extend all the way to the last step. (…) The drawings, 
which  were  approved  by  the  Norwegian  Maritime  Authority,  show  that  the 
plan  was  that  the  railing  would  extend  down  the  full  length  of  the  stairs  on 
both  sides.  However,  the  railing  was  not  built  in  accordance  with  the 
drawings.  The  Norwegian  Maritime  Authority  did  not  discover  this  during 
inspection.  The  investigation  has  shown  that  the  shipping  company's  safety 
management  system  and  mapping  of  risks  had  not  identified  falling  on  the 
stairs  as  a  risk  factor  on  board  'Skagastøl'.  Since  the  accident,  the  shipping 
company has extended the railing beside the stairs on this ferry and another 
ferry  with  a  corresponding  design.  The  shipping  company  has  further 
emphasised  passenger  safety  and  fall  injuries  in  its  safety  management 
system.  The  Norwegian  Maritime  Authority  has  also  defined  fall  injuries  as  a 
focus area in its risk-based inspections”.  

According to the IMO Casualty Investigation Code, an Investigation Authority 
should be established, which is responsible for the issuance of such reports in 
the event of an accident involving a ship. The States bear such responsibility 
in case of very serious marine casualties. Such an instance is further defined 
as a marine casualty involving the “total loss of a ship, the death of a person 
or severe damage to the environment”. For the rest of the occasions, Chapter 
17  specifies  that  a  marine  safety  investigation  should  be  conducted  into 
casualties  or  incidents  which  do  not  amount  to  “very  serious  marine 
casualties”  in  case  it  is  considered  likely  that  this  would  provide  information 
which is useful for the prevention of other incidents. With respect to the scope 
of  these  reports,  it  is  worth  noting  that  the  goal  of  the  investigation  is  to 
identify not only the immediate causal factors but also the failures which were 
present  in  the  whole  chain  of  responsibility.  Having  noted  this,  these  reports 
do  not  have  a  legal  focus  as  mentioned.  In  accordance  with  the  above, 
Directive 2009/18/EC clearly states in Article 1 that the purpose of these rules 
is  to  improve  safety  and  prevent  casualties.  The  same  provision  further 
denotes  that  investigations  under  said  Directive  shall  not  be  concerned  with 
determining  liability  or  apportioning  blame.  Thus,  despite  the  fact  that  the 
reports  offer  valuable insight  with  respect  to  the  causes  of  accidents,  relying 
solely  on  these  reports  regarding  the  issues  of  fault,  negligence,  the 
distinction  of  shipping  and  non-shipping  incidents  and  in  general  the  liability 
of the carrier, would not lead to safe conclusions. 

44 

Support study to the Evaluation of Regulation (EC) 392/2009 

 
 
 
 
 
 
 
 
 
In  light  of  the  analysis  above,  it  is  considered  that  there  is  insufficient 
information in order to conclude whether a particular event is one amounting 
to  a  shipping  incident  or  a  non-shipping  incident.  As  a  result,  essential 
information  is  lacking  in  order  to  assess  whether  passengers  have  been 
compensated sufficiently in the event of an accident. As explained above, the 
investigation  report  mechanism  followed  by  the  Member  States  does  not 
touch upon the question whether an event is shipping or a non-shipping one. 
This may be explained in view of the fact that the focus of the investigations 
is  not  set  to  serve  judicial  purposes.  Other  than  the  investigation  reports 
issued  by  the  competent  Authorities,  Member  States  submit  the  information 
related to all incidents (including the aforementioned reports) to the European 
Marine  Casualty 
(EMCIP  database).The  EMSA 
spreadsheet, which relies on that data, refers to the grouping of incidents into 
occupational accidents and casualties with ships, which cannot be relied upon 
for the purpose of identifying the shipping incidents. Thus, based on the data 
shared by  EMSA and the investigation reports, it was not possible to identify 
the  instances  involving  a  reversed  burden  of  proof  and  consequently 
investigate  whether  carriers  comply  with  their  obligations  under  the 
Regulation outside of courtrooms.  

Information  Platform 

Another consideration is whether a particular effect  of the  ship amounts to a 
ship defect, as this was defined above.  In terms of  evaluating the provisions 
of  the  Athens  Convention  it  has  been  voiced  by  some  experts  that  the 
definition of “ship defect” contains uncertainty. According to the 2002 Protocol 
to  the  Athens  Convention,  a  ship  defect  is  defined  as  follows:  “defect  in  the 
ship means any malfunction, failure or non-compliance with applicable safety 
regulations in respect of any part of the ship or its equipment when used for 
the  escape,  evacuation,  embarkation  and  disembarkation  of  passengers;  or 
when  used  for  the  propulsion,  steering,  safe  navigation,  mooring,  anchoring, 
arriving at or leaving berth or anchorage, or damage control after flooding; or 
when used for the launching of life saving appliances”. By way of example, in 
a specific incident case, a toilet door swung shut due to the movement of the 
vessel and caught the fingers of a passenger who was assisting a minor in the 
bathroom  amputating  them.  It  may  be  argued  that  the  door  securing 
mechanism  was  faulty or  that  the  absence  of  such  mechanism  amounts  to  a 
defect  of  the  ship.  It  is  not  clear  however  if  this  event  would  fall  under  the 
scope  of  the  definition  of  'defect'  set  out  above.  Considering  the  important 
consequences of this categorisation, as well, as the fact that passengers who 
suffered injuries as a result of a shipping incident are subject to higher limits 
of  compensation  and  a  reversed  burden  of  proof,  such  uncertainty  could 
endanger the level of protection offered by the Regulation. 

In the Skagastol case on the other hand, it is likely that the staircase qualifies 
as  a  part  of  the  ship  used  for  the  embarkation  of  passengers,  and  thus  to  a 
ship defect. Nevertheless, the distinction between occupational accidents and 
casualties  with  ships  is  based  on  the  question  of  whether  the  event  under 
consideration  has  also  affected  the  ship  itself,  other  than  possibly  a 

Support study to the Evaluation of Regulation (EC) 392/2009 

45 

 
 
 
 
 
 
 
 
 
passenger43. Therefore, the question that inevitably arises is the following: In 
a  case  where  the  ship  or  parts  of  the  ship  cause  the  injury  of  death  of  a 
passenger, is it to be considered as an event that affected the ship?  Or does 
such  an  event  still  qualify  only  as  an  occupational  accident?  Notably,  this 
incident  has  been  reported  to  EMSA  as  an  occupational  accident,  which 
denotes  the  fact  that  the  shipping  incident  category  and  the  casualty  with  a 
ship category do not coincide. 

43   According to the definition provided by EMSA in the 2015 Annual Overview of Marine Casualties and Incidents 

(file:///C:/Users/ioannis.giannelos/Downloads/Annual%20Overview%20of%20Marine%20Casualties%20and%20Incidents
%202015.pdf) 

46 

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5 

Relevance 

This  section  presents  the  conclusions  of  the  analysis  related  to  the  defined 
relevance  evaluation  questions,  based  on  the  results  of  desk  research, 
interviews,  stakeholder  survey  and  case  studies.  Each  evaluation  question  is 
scored on its underlying evaluation criterion.  

5.1  Q-1: Needs still relevant today 

Q1: To what extent are objectives of this initiative still relevant today? 

This question is broken down in two sub-questions: 
1.  Are  objectives  and  underlying  problems  and  drivers  still  relevant  and 

appropriate? 

2.  This  sub-question  considers  (i)  whether  needs,  on  which  the  Regulation 
and  its  objectives  are  based,  still  correspond  to  the  needs  of  today’s 
society;  and  (ii)  to  what  extent  objectives  have  proven  to  be  appropriate 
for the intervention? 

3.  To what extent has the environment changed  (technological, legal, policy) 
and  if  so,  is  there  a  need  to  adapt  the  Regulation  to  the  changing 
environment? 

5.1.1  Are  objectives  and  underlying  problems  and  drivers  still  relevant  and 
appropriate 
The  Liability  Regulation  entered  into  force  on  31  December  2012.  The  short 
implementation  period44  contributes  to  a  general  perception  amongst 
stakeholders  that  the  needs,  on  which  the  Liability  Regulation  is  based,  still 
correspond to the needs of today’s society. This is, for example, reflected by 
the  Maritime  Coast  Agency  (UK),  stating  that  the  Liability  Regulation  brings 
reassurance  as  a  result  of  having  legislation  in  place  that  ensures  that  if  a 
shipping  incident  occurs,  the  matter  is  properly  dealt  with.  This  is  further 
reinforced  by  a  Dutch  Transport  Law  Association  representative  noting  that 
the  Liability  Regulation  is  useful  legislation  increasing  the  international 
uniformity  in  the  sector,  as  well  as  a  specialist  P&I  and  Marine  Liabilities 
insurance  provider  stating  that  all  objectives  of  the  Liability  Regulation  are 
relevant. Moreover, more than half of the 13 respondents to the relevant OPC 
question stated they considered the objectives of the Regulation to be fully in 
line  with  the  needs  of  the  maritime  industry  and  passengers,  while  the  rest 
stated they are mostly or partially in line. 

Regarding the main problems defined, and its underlying problem drivers, the 
following can be remarked based on feedback from stakeholders: 

  Rights  of  passengers  are  not  sufficiently  safeguarded.  This  problem  is 
indeed still relevant as even with the Liability Regulation in place, there 
continue to be issues on the specific implementation of the Regulation. 

44   According to the ToR, our evaluation period considers the period until 31 December 2015, thus 3 years. 

Support study to the Evaluation of Regulation (EC) 392/2009 

47 

 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
For  example,  the  proper  provision  of  information  on  passenger  rights 
in  the  case  of  the  Norman  Atlantic  is  a  point  of  debate.  As  an 
illustration,  a  Norman  Atlantic  passenger  and  lawyers  assisting 
passengers  stated  that  no  information  on  passengers’  rights  was 
provided. In addition, in the Sorrento case, no advance payments were 
granted in connection with the shipping incident. The Norman Atlantic 
case also illustrates that advance payments in Italy are complicated by 
legal  uncertainties  concerning  the  identification  of  the  relatives  of  the 
deceased  passengers  entitled  to  such  payments.  This  because  the 
provisions  on  advance  payments  do  not  specify  who  the  entitled 
relatives are. In a recent case, an Italian judge ruled that all relatives 
are  entitled  to  an  advance  payment45.  The  relevance  of  level  and 
timing of compensation in general is broadly recognised; 

  No  level  playing  field  for  carriers  in  the  EU.  This  problem  is  still 
relevant as well. As an illustration, a large tour operator mentions that 
before  the  Liability  Regulation  victims  from  poorer  regions  and 
countries  were  likely  to  be  offered  a  smaller  compensation  and  would 
be prompt to settle with that. Through the Liability Regulation a proper 
and  harmonised  level  of  compensation  for  passengers  involved  in 
maritime accidents is guaranteed.; 

  Potential  risks  to  the  safety  level  of  passenger  carriage  by  sea.  This 
problem  is  mostly  not  recognised  as  a  direct  problem  related  to  the 
Liability  Regulation.  Instead,  the  Liability  Regulation  is  considered  to 
(at  best)  indirectly  affect  the  safety  level  of  passengers,  as  described 
in Section 4 on effectiveness.  

 

In  general,  the  first  two  main  problems  (passenger  rights  and  level 
playing field) are seen as fully relevant. To a lesser extent this applies 
to safety level of passengers. This is confirmed by responses from the 
stakeholder survey, as illustrated in Figure 5.146. 

Figure 5.1 

Survey outcome for needs still corresponding to today’s society 

Source; Stakeholder survey, Ecorys (2016). 

  When  zooming  in  on  the  responses  from  the  various  stakeholder 

groups the following conclusions can be drawn: 

  On  passenger  rights:  the  Member  States,  notably  through  their  policy 
making  authorities  found  this  to  be  an  important  or  very  important 
problem.  Out  of  the  group  that  considered  this  problem  to  be  very 

45   Minutes from confidential interview. 
46   Respondents combined scores on important problem and very important problem is higher than the combined scores for 

unimportant problem and very unimportant problem for “passenger rights” and “level playing field”, while being about equal 
for “safety level of passengers”. 

48 

Support study to the Evaluation of Regulation (EC) 392/2009 

 
 
 
 
 
 
 
 
 
 
                                                           
75% 

important, 
Passenger 
policy  making 
representatives (2 out of 3) and ship owners (5 out of 9) indicated to 
have no strong opinion on the matter. 

authorities. 

is 

  On level playing field: notably the policy making authorities considered 
level  playing  field  to  be  a  very  important  problem  (from  the  4  very 
important  responses,  3  came  from  policy  making  authorities).  This  in 
contrast to the inspectorate authorities, from which none scored this as 
very  important.  Groups  that  scored  level  playing  field  important  are 
policy  making  authorities  (33%),  ship  owners  (30%)  and  notably 
insurers (50%).  

  On  safety  level:  the  “no  strong  opinion”  response  is  dominant. 
Responses in the categories “important” and “unimportant” are spread 
quite evenly over the stakeholders groups.  

  The  survey  also  provides  insight  into  how  the  underlying  problem 

drivers are perceived by stakeholders: 

  The  problem  drivers  for  the  problem  of  “passenger  rights”  are  almost 
all  scored  as  important  or  very  important  contributors,  with  the 
following  combined  scores  of 
important 
contributors:  

important  and  very 

-  Passengers not being aware of their rights: 73%; 
-  Long time for receiving compensation: 66%; 
-  Insufficient compensation: 66%; 
-  Lack of legal certainty of victims and carriers: 68%; 
-  Carriers  are  not  liable  for  loss  of  mobility  equipment  of  PRMs: 
37%  (which  is  ranked  considerably  lower  than  the  other 
factors). 

  The problem drivers for the problem of “no level playing field” are also 
almost all scored as important or very important contributors, with the 
following  combined  scores  of 
important 
contributors:  

important  and  very 

-  Right for compensation (standards) differ in EU Member States: 

61%; 

-  Lack of legal certainly for passengers and carriers: 70%; 
-  Unlimited liability for carriers *(including terrorism risks) cannot 

be combined with mandatory insurance: 66%. 

5.1.2  To  what  extent  has  the  environment  changed  and  is  there  a  need  to 
adapt the Regulation accordingly? 
Since  the  implementation  period  of  the  Liability  Regulation  is  short,  as 
established above, the time factor again strongly affects this sub-question. No 
major changes have taken place with the exception of the entry into force of 
the  Athens  Protocol47.  Notwithstanding  the  Athens  Protocol,  all  stakeholders 
consulted made it clear that there have been no changes of technical, legal or 
policy  nature  that  have  resulted  in  the  need  to  adapt  the  Regulation. 
Examples  of  stakeholders  that  have  confirmed  this 
include  national 
administrations,  such  as  the  Danish  Ministry  of  Transport  and  the  French 
Ministry  of  Environment,  and  market  parties,  such  as  ship  operators  and 

47   This convention entered into force on 23 April 2014. 

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49 

 
 
 
 
 
 
 
 
 
 
                                                           
insurance providers. The stakeholder survey confirms this pattern as the vast 
majority,  i.e.  94.3%  of  the  respondents,  indicates  that  there  have  been  no 
developments  at  a  political,  legal  or  technical  level  since  the  introduction  of 
the  Liability  Regulation  which  have  affected  the  implementation  of  the 
Regulation.  

5.1.3  Conclusion response to the evaluation question 
No  major  developments  at  a  political,  legal  or  technical  level  affecting  the 
implementation  of  the  Regulation  have  taken  place  since  the  introduction  of 
the Liability Regulation. The entry into force of the Athens Protocol has been a 
milestone, however, stakeholders do not see this as a reason for adapting the 
Liability Regulation. The fact that the Liability Regulation is relatively “young”, 
with  an  implementation  timespan  of  less  than  four  years48  is  obviously  a 
strong  contributing  factor  in  this.  The  short  timespan  since  implementation 
may  also  explain  the  fact  that  the  needs  on  which  the  Liability  Regulation  is 
based correspond to the needs of today’s society. The latter applies especially 
to the problems of “rights of passengers”; and “no level playing field”; and to 
a lesser extent to “safety level of passengers.  

5.2  Q-2: Scope of application of the Regulation 

Q2: To what extent is the current scope of application of the Regulation (i.e. 
international,  classes  A  and  B  of  domestic  carriage)  adequate  for  the 
attainment of the objectives? 

This question is broken down into two sub-questions49: 
1.  Is  the  current  scope  of  international  and  Class  A  and  B  adequate  for 

attaining the objectives of the Regulation? 

2.  Should the scope of the Regulation be extended to Class C and D in order 

to better attain the objectives of the Regulation? 

Classification of domestic passenger ships 
Before  addressing  these  two  sub-questions  the  classification  of  domestic 
passenger ships is addressed. This classification of domestic passenger ships, 
i.e. the Classes A, B, C and D, are defined in the Directive on safety rules and 
standards  for  passenger  ships50.  The  ship  classes  are  based  on  the  place  of 

48   Entry into force: 31 December 2012. 
49   The two sub-questions are close related. The perceived insufficient adequacy is mainly linked to the extension of the 

scope to Class C and D ships. The discussion on extending the scope to Class C and D is mainly dealt with in the second 
sub-question. 

50   As defined in Article 4 of Directive 98/18/EC: 

- 

- 

- 

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; 
‘Class C’ means a passenger ship engaged on domestic voyages in sea areas where the probability of exceeding 
2,5 m significant wave height is smaller than 10 % over a one-year period for all-year-round operation, or over a 
specific restricted period of the year for operation exclusively in such period (e.g. summer period operation), in the 
course of which it is at no time more than 15 miles from a place of refuge, nor more than 5 miles from the line of 
coast, where shipwrecked persons can land, corresponding to the medium tide height; 
‘Class D’ means a passenger ship engaged on domestic voyages in sea areas where the probability of exceeding 
1,5 m significant wave height is smaller than 10 % over a one-year period for all-year-round operation, or over a 
specific restricted period of the year for operation exclusively in such period (e.g. summer period operation), in the 

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operation of a ship, notably related to distance to shore and wave height. An 
overview  per  Member  State  of  the  application  of  the  Liability  Regulation  to 
these ship classes is included in Table 4.7. 

Regarding the ship classification, the following remarks can be made: 

  The  classification  is  not  always  clear  to  those  who  need  to  work  with 
the Regulation. For example, a Dutch ferry operator indicated to find it 
difficult in what category to place its ships; 

  The  classification  is  not  linked  directly  to  a  liability  regime  for 
passenger  ships  or  (level  of)  mandatory  insurance  obligation.  Nor  can 
the  classification  be  directly  linked  to  the  stated  objectives  of  the 
Regulation (apart from safety level of passengers).  

The ship size and the number of passengers carried are related to the above-
mentioned classification.  Figure 5.2 presents an overview of number  of ships 
per passenger volumes classes (0-200; 200-400, etc.). Although it is evident 
that  Class  A  and  B  ships  are  the  larger  ships  and  Class  C  and  D  are  the 
smaller ships, it can also be noted that Class A and B ships can also be found 
in  the  lower  passenger  volume  classes  and  that  in  the  volume  classes  800-
1,400  passengers  there  is  a  substantial  overlap  between  the  classes  of 
domestic passenger ships.  

Figure 5.2 

Number of passengers for different ship categories 

Source: EC Domestic Vessel database (Directive 2009/45). 

Notwithstanding  the  above-mentioned  overlap,  a  common  perception  is  that 
the  current  scope,  i.e.  international  and  Class  A  and  B  domestic  passenger 
ships  are  the  larger,  high  volume  passenger  ships.  The  Class  C  and  D  ships 
are  the  smaller,  low  volume  passenger  ships.  This  size-based  perception  is 
applied  in  the  response  to  the  two  sub-questions  below,  together  with  the 
factual  difference  in  reach  of  operations,  i.e.  international  and  long-distance 
domestic versus more local operations. These factors result in the description 
of the two categories, as presented in Table 5.1.  

course of which it is at no time more than 6 miles from a place of refuge, nor more than 3 miles from the line of 
coast, where shipwrecked persons can land, corresponding to the medium tide height. 

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51 

 
 
 
 
 
 
 
 
 
 
 
                                                                                                                                                               
Perceived characteristics of ship categories 

Table 5.1 
Ship categories 
Current  scope: 
and Class A-B 
Possible extended scope: Class 
C-D 
Source: Ecorys. 

international 

Size and pax 
Large, 
volume pax 
Small, 
volume pax 

high 

low 

Operations 
International, 
long-distance 
Local, short distance 

domestic 

As  indicated  in  Section  3.5,  a  number  of  ship  categories  are  not  explicitly 
included in the Liability Regulation. This includes High Speed Craft (HSC) and 
Dynamically Supported Craft (DSC). This also applies to non-steel ships, such 
as  aluminium,  wooden  and  composite  materials  ships.  Member  States  make 
their own choices in applying the Liability Regulation to these ship categories, 
affecting  the  scope  of  the  Regulation.  The  majority  of  respondents  of  the 
survey  questionnaire  (64%)  indicates  that  the  Regulation  applied  to  High 
Speed  Crafts  (HSCs)  calling  in  ports  in  their  country,  whereas  59%  of 
respondents indicate that the Regulation applied to High Speed Crafts (HSCs) 
flying the flag in their country.  

5.2.1  Adequacy  of  current  scope  of  international  and  Class  A  and  B  for 
attaining the objectives of the Regulation 
Broad  consensus  exists  amongst  Member  States  on  the  current  scope  of  the 
Liability  Regulation  and  its  ability  to  obtain  the  objectives  of  the  Regulation. 
Member  States  declare  that  coverage  of  international  and  Class  A  and  B 
domestic ships is appropriate, at least as a minimal level (a “no regret” level).  

All  Member  States  that  were  directly  consulted  underline  the  fact  that 
international  and  Class  A  and  B  ships  are  to  be  included.  Some  Member 
States,  such  as  the  United  Kingdom,  do  not  foresee  any  problems  with  the 
(upcoming)  application  of  the  Regulation,  as  most  ship-owners  are  aware  of 
upcoming  changes  and  the  Maritime  Coast  Agency  (MCA)  provides  support 
through  guidance  notes.  In  addition,  the  step  from  existing  practice  for 
international  and  Class  A  and  B  domestic  ships  is  relatively  small.  For 
example,  limits  to  liability  in  the  United  Kingdom  based  on  national  law  are 
already at a comparable level to the provisions of the Liability Regulation (see 
Table 4.8). In other Member States, applying the Liability Regulation requires 
a more substantial change in relation to the existing situation. For example, in 
Poland the legal system was based on the Athens Convention with much lower 
limits to liability.  

Whereas there is consensus on the current scope, Member States differ in the 
extent to which they see the current scope as sufficient or whether the scope 
should be expanded to Class C and D domestic ships. The latter is elaborated 
in the second sub-question below.  

Related  to  the  objectives  of  the  Liability  Regulation  the  following  can  be 
remarked: 

 

It  is  notably  the  passenger  rights  objective  that  is  used  as  an 
argument for going beyond the current scope and expanding the scope 
of the Liability Regulation to Class C and D ships. The reasoning is that 

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passengers  on  smaller  ships  should  be  granted  the  same  level  of 
protection as passenger on larger ships; 

  From a level playing field point of view, it is probable that international 
and  Class  A  and  B  domestic  ships  would  have  passengers  from 
different  countries,  in  which  case  the  risk  of  discrepancies  in  dealing 
with  accidents  would  be  greatest.  Based  on  this,  the  current  scope  of 
the  Liability  Regulation  would  be  sufficient  to  deal  with  cases  that 
created inequalities in the past; 

  A  comparison  between  Member  States  that  have  applied  the 
Regulation on (i) Class A and B ships, as from 31 December 2012, and 
(ii)  Member  States  that  have  made  use  of  the  transitional  provisions, 
as  defined  in  Article  11  of  the  Regulation51,  has  not  been  feasible  as 
the time period is too short and the number of accidents is too limited. 

The consensus regarding the current scope of  the Liability Regulation and its 
ability  to  obtain  the  objectives  of  the  Regulation  is  partly  confirmed  by  the 
stakeholder survey. From the 50 respondents, 34% indicates that the Liability 
Regulation can reach its objectives in its current scope; while 12% states that 
this  is  not  the  case,  with  the  remaining  respondents  scoring  partially  true 
(26%)  and  don’t  know  (28%).  The  fact  that  for  each  three  respondents  that 
think the Regulation with the current scope can obtain its objectives, there is 
one  respondent  that  thinks  this  is  not  the  case,  fits  at  least  partially  in  with 
the described general consensus. The relatively high score on partially true is 
an  indication  that  a  scope  extension  to  Class  C  and  D  ships  is  needed,  as 
elaborated in the next section.  

Figure 5.3 

Ability to attain objectives in the current scope of the Regulation 

Source; Stakeholder survey, Ecorys (2016). 

51   See Table 3.5 on the extent to which he Liability Regulation has been applied to the international and Class A,B,C and D 

ships in time. 

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53 

 
 
 
 
 
 
 
 
 
 
 
                                                           
5.2.2  Should the scope of the Regulation be extended to classes C and D in 
order to better attain the objectives of the Regulation? 
On  the  question  of  extension  of  the  Regulation  to  Class  C  and  D  ships  two 
principally opposing views can be registered. The main argument in favour of 
expanding  the  Liability  Regulation’s  scope  is  based  on  the  principle  that  the 
protection of the passenger should not depend on where the vessel operates, 
nor  the  size  or  the  material  of  the  vessel.  The  argument  not  to  expand  the 
scope  of  the  Regulation  is  often  triggered  by  not  wanting  to  increase  the 
financial  burden  on  the  Class  C  and  D  ship  operators,  by  having  to  meet 
provisions  of  the  Regulation,  such  as  war  risks,  potentially  resulting  in 
insurance  difficulties.  This  section  first  concentrates  on  the  argument(s)  for 
expanding the scope, notably by focusing on Member States that have chosen 
to do so (Denmark, the Netherlands and Sweden). Subsequently, reasons for 
not  expanding  are  presented,  followed  by  an  elaboration  of  the  trade-off 
between the two opposing arguments.  

Factors supporting expanding the scope to Class C and D ships 
The principle argument for  expanding the scope of the  Liability Regulation to 
Class  C  and  D  ships  is  based  on  the  principle  that  the  protection  of  the 
passengers should neither depend on the place of operation of the passenger 
ship  nor  on  the  size  of  the  material  of  the  ship.  Additional  arguments  are 
found in reducing complexity of the system (by avoiding two parallel systems 
for Class A and B ships on the one hand and Class C and D ships on the other 
hand). 

The  passenger  protection  argument  is  clearly  reflected  in  Danish  policy. 
Regarding the implementation of the Liability Regulation, the Danish Ministry 
of Transport identifies three main ship categories: 

 

International carriage and domestic Class A and B ships; 

  Domestic Class C and D ships; 

  Other  ships  used  to  carry  passengers  (also  with  less  than  12 

passengers)52. 

It  should  be  noted  that  Denmark  has  a  lot  of  sea  transport  and  a  relatively 
high  number  of  small  ferry  lines  (159  registered  Class  C  and  D  ships).  This 
amount exceeds by far the international carriage and Class A and B ships (30 
registered Class A and B ships). For the first category (Class A and B ships), 
the Liability Regulation applies fully. The Liability Regulation is also applied to 
the  second  and  third  category;  however,  not  all  provisions  from  the  Liability 
Regulation are maintained (see  below in section on trade-off). The prevailing 
argument  for  this  broad  application  is  the  protection  of  the  passenger 
(irrespective of type of passenger ship). This argument is also stated by other 
Member States, for example by Sweden and France.  

52   See Order no. 9 of 10 January 2013 issued by the Danish Maritime Authority. The reason for included this last category 

within the scope of Danish law is that many boating activities take place which can lead to serious injuries, but where 
covered by the then applying legislation. A direct cause of introducing for smaller ships was an incident with a dragon boat 
where several children fell from the boat and were injured. At the time of the incident, only general liability legislation 
applied (in which the burden of proof was placed on the victims). 

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The  Netherlands  follow  a  pragmatic  approach  in  extending  the  scope  of  the 
Liability Regulation to Class C and D ships. A common approach is applied for 
all sea-going ships, including Class C and D ships. An underlying argument is 
that  passenger  ship  operators  will  be  faced  with  similar  requirements, 
avoiding  unfair  competition  and  market  distortion.  it  should  be  noted  that  in 
the  Netherlands  ships  (although  sea-going)  operating  on  the  Waddenzee  are 
qualified  as  inland  ships  and  therefore  fall  outside  the  scope  of  the  Liability 
Regulation.  In  France,  it  is  noted  that  the  distinction  between  Class  A  and  B 
ships on the one hand and Class C and D ships on the  other hand, increases 
the complexity of the framework governing the liability of carriers.  

Factors supporting not expanding the scope to Class C and D ships 
The  overriding  argument  for  not  expanding  the  scope  of  the  Liability 
Regulation to Class C and D ships is the burden on the sector, notably related 
to the insurability of Class C and D ships.  

France, for example, indicates that an extension of the Regulation to Class C 
and  D  ships  would  raise  administrative  and  financial  burden  and  possible 
insurance  problems  for  smaller  ships,  especially  related  to  insuring  war  and 
terrorism risks. The Department of Transport of the United Kingdom indicates 
that there is no intention to apply the Regulation to Class C and D ships53. For 
these  ships it will be problematic to obtain all the cover needed for war-risk. 
MCA  adds  that  applying  the  Regulation  to  Class  C  and  D  ships  will  create  an 
additional  financial  burden  for  these  ships.  It  should  be  noted  that  for  the 
Class C and D ships insurance is already in place; namely the 300,000 SDR54 
or 46,666 SDR, depending on the carrier’s principle place of business55; 

The trade-off: balancing passenger rights and burden on the sector 
In  practice,  Member  States  often  search  for  a  compromise  in  which  above-
mentioned drivers are combined and balanced. A compromise can be found by 
following different routings: 

  By  extending  the  scope  to  Class  C  and  D  ships  in  combination  with 
excluding the application of some provisions of the Liability Regulation 
to  Class  C  and  D  ships.  The  clear  example  is  Denmark,  which  has 
chosen  this  route  to  protect  passengers  irrespective  of  the  place  of 
operation of the passenger ship or the size of the material of the ship. 

53   As an indication of the fleet composition in the United Kingdom, out of the fleet of 275 passenger vessels (as per 1 

September 2011), 46 vessels (17%) were international passenger vessels; 63 vessels (23%) were domestic Class A and B 
ships; and 166 vessels (60%) were domestic Class C and D ships. 

54   The SDR (Special Drawing Rights) is an international reserve asset, created by the IMF in 1969 to supplement its member 
countries’ official reserves (http://www.imf.org/external/np/exr/facts/sdr.htm). 1 SDR= 1,2477 EUR, per 23 September 2016 
(http://nl.investing.com/currencies/eur-sdr-converter) 

55   Before the introduction of Regulation 392/2009, the UK already was party to the Athens Convention 1974. The UK had the 
intention to ratify the Athens Protocol 2002 (which they have done now); however, before they ratified the Athens Protocol 
the Regulation came into force which caused some problems. Especially related to different limitations schemes being in 
place: 
• Sea-going ships providing UK international services Limit of 300,000 SDR based on domestic legislation which 
incorporates Convention on Limitation of Liability for Maritime Claims (LLMC); 
• Non-EU ships providing international services Limit of 46,666 SDR based on Athens Convention; 
• Sea-going ships providing UK domestic services (for carriers whose principal place of business is in the UK) Limit of 
300,000 SDR based on domestic legislation which incorporates LLMC; 
• Sea-going ships providing UK domestic services (for carriers whose principle place of business is outside UK) Limit of 
46,666 SDR based on Athens Convention; 
• Non-sea going ships providing UK domestic services on inland waterways limit of 175,000 SDR based on LLMC. 

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55 

 
 
 
 
 
 
 
 
 
 
                                                           
 
 
 
 
 
  By-non-extending the scope to Class C and D ships in combination with 
applying national legislation to Class C and D ships, resulting in (some 
level  of)  protection  of  passenger.  Such  is  the  case  for  the  UK  and 
Germany  which  have  opted  not  to  extend  the  scope  of  the  Liability 
Regulation  in  order  to  avoid  additional  burden  on  the  sector,  i.e.  the 
Class C and D ships. 

As  illustrated  above,  in  Denmark  this  trade-off  via  the  route  of  extension  is 
well illustrated.  The  scope  has  been  extended,  however,  not  all  provisions  of 
the Liability Regulation apply to Class C and D ships and the other ships used 
to  carry  passengers  (see  categorisation  mentioned  above).  Provisions  not 
applied 
include  handicapped  equipment,  advanced  payment,  war-risk 
coverage.  For  these  two  ship  categories,  legislation  is  aligned  with  the  IMO 
Regulation.  Furthermore,  for  the  two  mentioned  ship  categories  the 
authorities  are  not  required  to  issue  a  certificate,  as  is  required  for  Class  A 
and  B  ships.  For  Class  C  and  D  ships  and  other  vessels,  Danish  law  only 
requires  that  they  have  obtained  insurance  and  that  proof  of  insurance  is 
available on board the ship. The above-mentioned adjustments were made in 
order  to  lighten  the  burden  for  smaller  ship  operators,  while  ensuring 
passenger  protection.  The  special  provisions  for  Class  C  and  ships  and  other 
passenger  ships  aim  to  tackle  the  difficulty  of  smaller  operators  to  get  extra 
P&I  coverage  for  smaller  ships.  Thus,  applying  only  the  Athens  Convention 
and  IMO  Conventions  provisions  standardises  the  insurance  requirements, 
rendering  no  need  for  new  insurance  products.  It  should  be  noted  that  no 
significant  difficulties  were  encountered  in  the  implementation  of  the 
Regulation for Class C and D ships. Only very few reactions were derived from 
local  communities/operators,  mainly  on  their  capacity  to  insure  their  local 
operations.  To  accommodate  this  process,  a  minor  extension  of  the 
implementation period was granted, allowing for a relevant insurance product 
to become available. Other Member States follow a similar approach in which 
the  burden  for  smaller  ship  operators  is  relieved.  For  example,  in  Sweden 
war-risk is not applied to smaller ships. 

A clear example of the routing via non-extension is Germany.  Germany does 
not  apply  the  Liability  Regulation  to  Class  C  and  D  ships;  however,  German 
national law (German Commercial Code) applies to Class C and D ships, which 
provides  for  almost  the  same  rules  as  the  Athens  Regulation.  Three  main 
areas are identified where differences appear:  

  The rights of passengers with reduced mobility are less generous under 

German law; 

  The  right  to  have  a  direct  claim  against  the  insurer  does  not  exist 

under national law; 

  The  right  to  have  an  advance  payment  is  not  a  part  of  the  German 

passenger protection regime. 

Based  on  the  above,  it  can  be  argued  that  Member  States  in  their  effort  to 
design an adequate liability system for the Class C and D ships are driven by 
the dual ambition of (i) protecting passengers, irrespective of the type of ship 
used,  and  (ii)  protecting  the  sector  by  avoiding  (too)  high  financial  and 
administrative  burden.  The  routing  towards  a  compromise  solution  may  lead 
via  extending  the  scope,  while  exempting  the  sector  from  some  of  the 

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provisions that would result in substantial burden to the sector (as applied in 
Denmark and Sweden). An alternative routing may be through not expanding 
the  scope  to  Class  C  and  D  ships,  but  applying  national  legislation  to  these 
ships, often based on the Athens Convention, providing passengers protection 
(most other Member States, see example Germany). Depending on applicable 
national legislation, these two routings may result in situations that are rather 
similar in terms of passenger rights and burden to the sector. 

Different approaches towards extending the Liability Regulation towards Class 
C  and  D  ships  are  to  some  extent  also  reflected  by  responses  from 
stakeholders to the survey questionnaire. When asked about the relevance of 
the  defined  problems  (passenger  rights,  level  playing  field,  safety  of 
passengers)  for  Class  C  and  D  ships,  the  majority  of  respondents  have  no 
strong opinion (passenger rights: 53%; level playing field: 55%; and safety of 
passengers:  47%),  as  presented  in  Figure  5.4.  When  combining  the score  of 
important  and  very  important  vs.  unimportant  and  very  unimportant,  the 
following pattern can be seen: 

  Safety  of passengers: combined important (30%)  outscores combined 

unimportant (22%); 

  Level  playing  field:  combined  important  (26%)  outscores  combined 

unimportant (18%); 

  Passenger  rights:  combined  unimportant  (28%)  outscores  combined 

important (18%). 

Figure 5.4 

Survey outcome for the importance of the stated problems in relation to 

classes C and D ships 

Source, Ecorys, survey (2016). 

5.2.3  Conclusion response to the evaluation question 
There  is  broad  consensus  on  the  application  of  the  Liability  Regulation  on 
international  and  domestic  Class  A  and  B  ships.  The  inclusion  of  these  ships 
contributes  to  attaining  the  Regulation’s  objectives,  as  supported  by  the 
stakeholder survey. Extending the scope of the Regulation to domestic Class C 
and  D  ships  is  perceived  differently  per  Member  State,  resulting  in  the 
majority of the Member States not having opted for extension to Class C and 
D ships so far.  

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57 

 
 
 
 
 
 
 
 
 
 
 
 
 
Stakeholder views, as presented in the stakeholder survey, are split regarding 
the  importance  of  the  stated  problems  in  relation  to  Class  C  and  D  ships. 
While  the  majority  of  stakeholders  have  no  strong  opinion,  passenger  rights 
are  considered  a  relatively  unimportant  problem  for  Class  C  and  D  vessels, 
whereas safety of passengers and level playing field are considered relatively 
important problems for Class C and D ships.  
In the decision to extend the scope of the Regulation to Class C and D ships, 
different and sometimes opposing aspects considered by Member States. One 
aspect is the rights of passengers, which need to be protected, irrespective of 
the  size  or  material  of  the  vessel  or    the  area  of  operations.  An  additional 
aspect  is  that  having  two  systems  for  passenger  ships  can  result  in 
complexity,  unfair  competition  and  market  distortion.  At  the  same  time,  an 
important factor is the ability of the sector, notably the smaller operators, to 
comply  with  the  provisions  of  the  Liability  Regulation,  specifically  related  to 
the insurability of Class C and D ships.  

Member  States  have  developed  their  own  systems  at  national  level  in  which 
the  above-mentioned  aspects  are  balanced.  Member  States  that  have  made 
the Regulation applicable to Class C and D ships have often created measures 
to reduce the burden on the sector, notably by creating exemptions to adopt 
certain provisions of the Regulation, as in the case of Denmark. This approach 
works  well  in  these  Member  States.  Member  States  that  have  not  extended 
the  scope  to  Class  C  and  D  ships  have  often  included  means  of  protecting 
passengers’  rights  for  Class  C  and  D  ships  in  their  national  legislation.  For 
example, in Germany, the German Commercial Code applies to Class C and D 
ships, which is based on the Athens Convention. Although the passenger may 
not be protected at the level of the Regulation, the practical situation may be 
quite  similar  to  the  situation  in  Denmark.  For  Member  States  that  have  not 
extended  the  application  of  the  Regulation  to  Class  C  and  D  ships,  local 
solutions  are  created  on  a  country  by  country  basis,  which  are  reflected  in 
national legislation.  

In  conclusion,  extending  the  scope  to  Class  C  and  D  ships  is  a  trade-off 
between  sometimes  opposing  aspects  and  thus  a  political  decision.  The 
evaluation,  including  through  its  stakeholder  consultation,  does  not  provide 
the  results  to  take  this political  decision.  Mitigating  measures  can  be  defined 
to  compensate  for  risks  related  to  the  choice  for  a  system.  In  case  of 
extension,  some  provisions  from  the  Liability  Regulation  may  be  softened, 
reducing the burden on the sector.  In case  of  non-extension, provisions may 
be  created  in  national  law,  contributing  to  passenger  protection.  From  a 
passengers’  rights  perspective,  expanding  the  scope  to  Class  C  and  D  ships 
provides more safeguards. 

5.3  Conclusion on relevance 

The  two  evaluation  questions  on  relevance  combined  indicate  the  overall 
relevance of the Liability Regulation. The Regulation scores especially high on 
the  first  evaluation  question  on  the  needs  being  still  relevant  in  today’s 
society.  As  concluded  above,  the  fact  that  the  Liability  Regulation  is  still 
relatively young strongly contributes to this.  

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On  the  second  evaluation  question,  regarding  the  scope  of  the  Liability 
Regulation  being  adequate  for  attaining  the  Regulation’s  objectives,  there  is 
broad  consensus  on  the  application  of  the  Regulation  to  international  and 
domestic  Class  A  and  B  ships.  Regarding  expanding  the  scope  to  domestic 
Class C and D ships, stakeholder opinions are split, with a slight advantage for 
the view that this segment faces the same problems as the larger vessels. On 
the  issue  of  extending  the  scope  of  the  Regulation,  Member  States  take 
different  positions,  as  indicated  above.  A  limited  number  of  Member  States 
(Denmark, Sweden, and the Netherlands) have chosen to extend the scope of 
the  Regulation,  mainly  based  on  the  argument  that  a  passenger  should  be 
protected irrespective of the location of operation, size and material of a ship. 
Often  mitigating  measures  are  taken  to  reduce  the  burden  on  the  sector. 
Other  Member  States  have  not  extended  the  scope,  often  because  financial 
burden  on  the  sector.  In  these  Member  States,  sometimes  specific  national 
legislation  is  in  place  to  protect  the  passenger,  as  reflected  in  the  German 
case.  The  level  of  passenger  protection  differs  per  Member  State.  Although 
passenger  protection  can  be  at  reasonable  levels,  the  level  of  passenger 
protection is in general less secured than under the Liability Regulation.  

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6 

Effectiveness 

This  section  presents  the  conclusions  of  the  analysis  related  to  the  defined 
effectiveness evaluation questions. For each question, the main indicators, as 
identified in the Evaluation Framework (see Annex I) are discussed  based on 
the results of desk research, interviews, stakeholder survey and case studies. 
Then, for each evaluation question a short conclusion is provided. 

6.1  Q-3: Meeting Regulation objectives 

Q3: To what extent have the objectives of the Regulation been achieved? 

In order to better address this evaluation question, it is relevant to distinguish 
the  four  specific  Regulation  objectives  and  assess  the  effectiveness  in 
achieving  each  one  of  them  separately.  Namely,  to  what  extend  have  the 
following  objectives  been  fulfilled  following  the  adoption  of  the  Liability 
Regulation: 
1.  Are passenger rights better protected in the event of an accident? 
2.  Has a level playing field for sea passenger carriers been created? 
3.  Have  passenger  transport  operators  been  incentivised  to  improve  their 

safety and security performance? 

4.  Has a balanced framework of passenger rights protection been established 

and complemented? 

More  specifically,  the  following  sections  assess  how  these  general  level 
objectives  are  pursued,  including  the  achievement  of  the  specific  objectives, 
as  given  in  the  evaluation  roadmap.  These,  as  well  as  the  operational 
objectives,  are  implicitly  addressed  in  the  following  sections  under  the 
relevant general objectives: 
1.  Ensure same level of passenger rights regardless of the area of operation56 
2.  Ensure adequate protection of passengers in case of accidents57 
3.  Ensure market ability to accommodate reinforced passenger rights58 

And in more detail with the achievement of the operational objectives: 
1.  Provide  a  common  minimum  framework  for  compensation  rights  and 

standards 

2.  Ensure the proportionality of requirements59 
3.  Ensure carriers can obtain affordable insurance cover60 

6.1.1  Are passenger rights better protected in the event of an accident? 
When  asked  about  the  capacity  of  the  Liability  Regulation  to  improve  the 
protection of passenger rights in the event of an accident, nearly two thirds of 

56   See section 5.2 on the scope of application of the Regulation to international and domestic carriage. 
57   See section 5.1.1 on the provision and timing of compensations and advanced payments and section 5.1.4 on the 

protection of luggage, vehicles, mobility equipment and the right to information. 

58   See section 5.1.2 on the impact on insurance premiums. 
59   See section 5.1.4 on the comparison with aviation. 
60   See section 5.1.2 on the impact on insurability of vessels. 

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the  stakeholders  that  participated  in  the  survey  have  indicated  that  the 
impact  of  the  Regulation  has  been  either  positive  (44%)  or  very  positive 
(19%)  while  the  rest  indicated  either  an  absence  of  impact  or  a  knowledge 
over the issue. (see Figure 6.1). Among the respondents, ministries and ship 
owners  are  the  most  positive  groups  supporting  that  the  Regulation  had  a 
positive or very positive effect in this aspect by 73% and 72%. Additionally 10 
out of 13 OPC respondents stated that the Regulation was fairly or absolutely 
contributing to an improved protection of passenger rights. This is in line with 
the  findings  of  the  Third  Maritime  Safety  Package  evaluation  where  the 
majority of survey respondents61 reported that the position of passengers has 
improved due to the Regulation. 

Figure 6.1 

Performance of Regulation in achieving its objectives 

Source, Ecorys, survey (2016). 

Across  the  board,  the  Regulation  is  thought  to  improve  the  power  of 
passengers when claiming a compensation in the event of an accident62. This 
can  be  viewed  in  comparison  to  the  Athens  Convention  1974  or  to  the 
national  framework  previously  in  application.  A  number  of  stakeholders 
interviewed63  stated  that  the  Regulation  strengthens  the  passengers’ 
negotiation  position  specifically  due  to  the  strict  carrier  liability  provisions  of 
the  fault-based  system  previously  in  place  in  most  Member  States.  This 
finding  is  strengthened  by  the  Norman  Atlantic  and  Ogia  case  findings  were 
passenger  rights  protection, in  terms  of  strengthening  the  negotiating  power 
of victims and improved timing of compensations delivery, have improved as 
an  impact  of  the  Regulation  coming  into  effect.  Additionally,  the  increased 
minimum and maximum limits to liability provided are, in regard to these two 
cases,  assessed  to  have  equipped  accident  victims  with  ammunition  when 
negotiating  an  agreement  with  the  operator,  further  strengthening  their 
negotiation power.  

The  above  have  been  recognised  as  expected  outcomes  of  the  Regulation 
implementation  by  academics  that  studied  the  Regulation  prior  and  after  its 
implementation.64  Further,  they  consider  that  the  extension  of  the  limitation 

61   Public authorities. 
62   Victims’ negotiation power is considered to be initially weakened due to the legal systems access barriers as a result of the 

high processes costs and the possible long delays in attribution of liability. 

63   The Swedish Ministry of Justice, the Danish Ministry of Transport, Raets Marine, Vista tour operator and Norman Atlantic 

victim lawyer. 

64   Testa (2013), Kirchner et al. (2015), Kroger (2009). 

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period  to  file  a  claim  to  up  to  three  or  five  years  serves  the  interests  of  the 
passengers  better 
in  sea 
transportation,  which  could  be  diagnosed  at  a  later  stage  (such  as  a 
whiplash).65 

in  view  of  the  possible 

involved 

injuries 

Strict liability in shipping vs non-shipping accidents 

Testa  and  Peralta  (2014)  follow  Soyer  (2012)  in,  highlighting  the  importance  of  the 

distinction  between  shipping  and  a  non-shipping  incident.  Despite  the  demarcation  of  the 

exact boundaries of these two categories being subject to interpretation (e.g. the definition of 

a  ship  defect  entails  the  risk  of  vagueness  and  therefore  is  in  need  of  clarifications)  as 

explained  earlier,  they  both,  suggest  that  imposing  a  strict  liability  in  case  of  a  shipping 

incident is only fair, however, the same cannot be the case for non-shipping accidents, given 

the  hotel-like  environment  on-board  of  ships  which  is  much  more  prone  to  accidents 

compared  to  air  transport.  According  to  Soyer,  similar  to  the  liability  rules  applicable  to 

operators  of  holiday  resorts,  it  would  be  unfair  for  cruise  operators  to  have  to  prove  their 

innocence  with  respect  to  injuries  in  non-shipping  incidents.  As  stated  by  Lewins,  a  similar 

case is noted for Australia, where a passenger may bring a claim under the Trade Practices 

Act. More specifically, in that case the amended section 74 of the Act dictates that a carrier 

may  limit  his  liability  for  injury or  death  in case  of  an event  involving recreational  activities 

on board the hotel-like environment of a cruise ship. 

A  comparison  of  findings  from  interviews  with  lawyers  involved  in  both  the 
Costa  Concordia  and  the  Norman  Atlantic  accident  indicates  that  the  Costa 
Concordia case  set  the  tone  for higher  compensations offered in the  Norman 
Atlantic case. The Italian Ministry of Transport clarifies that in the case of the 
Costa  Concordia,  compensation  was  provided  pursuant  to  contractual  rules 
and not pursuant to Italian rules on the liability of the ship owner.66 According 
to the  analysis of liability limits in national legislation prior to the application 
of  the  Regulation  it  was  established  that  in  most  countries  the  limits  to 
liability  of  the  carrier  were  set  considerably  lower  than  those  foreseen in the 
Regulation.67  In  that  sense,  the  Liability  Regulation  increases  the  limit  to 
liability  across  Member  States,  on  average 
increasing  the  potential 
compensation  to  be  provided  in  case  of  an  accident.  This  comes  to  verify 
relevant  survey  findings  regarding  an  expected  increase  in  compensations 
provided,  despite  the  fact  that  the  limited  occasions  of  application  of  the 
Regulation  rendered  a  number  of  stakeholders  unable  to  respond.68 
Nevertheless,  in  the  case  of  Norman  Atlantic  specifically,  the  case  study 
analysis found that the level of compensation is actually lowered as a result of 
the  Regulation,  as  Italy,  not  having  ratified  the  Limitations  of  liability  for 
Maritime  Claims  (LLMC)  Convention,  was  one  of  the  Member  States  that  did 
not have a maximum limit to liability69, while the provisions of the Regulation 
make  it  difficult  to  break  the  maximum  limit  to  liability.  Compensations 
provided in the case of the Norman Atlantic also included a compensation for 
psychological  trauma  despite  the  lack  of  a  solid  framework  on  how  to  deal 

65   Soyer (2012). 
66   Rules on the contract of carriage and on the liability of the carrier Articles 1681 Civil Code and 409 Transport Code. 
67   See section 3.2 National application. 
68   According to the survey results 28% of the respondents considered the Regulation to have had a positive (19%) or very 
positive (11%) effect on the amount of compensation received by passengers. The rest had a neutral or no view on the 
impact of the Regulation. 
It should be noted that limits are different. The LLMC sets a global limit. the liability could be limited but only to the extent 
the global limits would be reached. 

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63 

 
 
 
 
 
 
 
 
 
                                                           
with  claims  of  this  nature,  as  it  is  still  unclear  as  to  whether  moral  and 
psychological  injury  is  included  under  the  term  “personal  injury”  in  the 
Regulation. 

Breaking the liability limits 

Some authors have additionally found the requirements necessary for the carrier to lose the 

right  to  limit  his  liability  problematic.  In  the  words  of  sir  Haddon-Cave:  “The  phrase 

“…recklessly and with knowledge that damage would probably result …” is now regarded as 

having  the  same  subjective meaning  in  many  jurisdictions:  the  wrong-doer  must  be proved 

actually  to  have  known  or  realized  that  damage  would  probably  (not  just  possibly)  result.” 

Notably,  the  author  comments  that  in  view  of  the  above,  an  incident  may  amount  to 

manslaughter  but  may  still  not  lead  to  breaking  the  liability  limits  under  the  Athens 

Convention. (The test of involuntary manslaughter was restated by the English Courts in R v 

Adomako  to  be:  “Gross  negligence,  which  a  jury  might  properly  find  on  proof  [A]  of 

indifference  to  an  obvious  risk  to  injury  to  health,  or  [B]  of  actual  foresight  of  the  risk 

coupled  with  either  the  determination  nevertheless  to  run it  or  with  an  intention  to  avoid  it 

but  involving  such  a  high  degree  of  negligence  in  the  attempted  avoidance  as  the  jury 

considered justified conviction, or [C] of inattention or failure to advert to a serious risk going 

beyond  mere  inadvertence  in  respect  of  an  obvious  and  important  matter  which  the 

defendants’ duty demanded he should address.”) 

Although  insurers  and  transport  authorities  already  recognised  the  tendency 
to  settle  smaller  claims  avoiding  the  costs  and  image  damage  of  the  judicial 
procedure,  they  do  realise  that  the  strengthened  passenger  position  created 
improves the chances of settling individual claims. In case a settlement is not 
reached,  then  the  Regulation  still  acts  as  a  safety  net  ensuring  a  proper 
compensation  for  passenger  victims.  The  Norman  Atlantic  case  is  again 
indicative of this trend with more than 400 (out of 730) claims settled to date. 
All  in  all,  information  retrieved  on  compensations  provided  in  the  Norman 
Atlantic case in the event of death are near the maximum liability limit set by 
the  Regulation  (approx.  400,000  SDR)  indicating  that  the  Regulation 
provisions set the tone for negotiating a settlement agreement. The Ogia case 
can  also  be  used  to  indicate  the  increased  willingness  of  insurers  to 
compensate for modest expenses without going in depth and questioning the 
nature of the accident, as proven by the direct compensation of medical costs. 
In this light, the Regulation acts positively in clarifying what claimants should 
expect,  which  in  combination  with  the  increased  negotiation  power  of 
claimants, makes a settlement more probable.70 

In  line  with  the  above,  it  can  be  expected  that  the  Regulation’s  push  in  the 
direction  of  settling  cases  avoiding  lengthy  judicial  processes  will  eventually 
have  a  positive  impact  on  reducing  the  overall  time  needed  for  claimants  to 
receive  their  compensations.  This  is  proven  by  the  fact  that  more  than  400 
out of the 730 lawsuits in the Norman Atlantic case have been already settled 
in the two years following the accident. Furthermore, the Ogia case, were the 
insurer directly compensated medical expense, highlighted that compensation 
(at least for medical expenses) is accelerated as a result of the provisions of 
the  Regulation.  On  the  contrary,  an  Italian lawyer  identified  that  the  biggest 
problem  with  the  application  of  the  Regulation  in  Italy,  was  the  existence  of 

70   According to insurers interviewed. 

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too  general  provisions  giving  rise  to  legal  uncertainty.  As  a  result,  he 
suggested  that  insurers  and  carriers  have  incentives  to  make  low  settlement 
offers  and  delay  payments.  These  contradictions  in  views  and,  the  limited 
amount  of  cases  in  which  the  Regulation  has  been  applied  as  well  as  the 
limited  comparability  of  accident  cases,  do  not  provide  clear  evidence  to 
derive  a  general  conclusion  on  the  impact  on  the  timing  of  receiving 
compensation,  although  generally  it  would  be  expected  that  a  reduction  of 
time needed would be the case due to the additional clarity. This is illustrated 
by the survey findings, as stakeholders that responded where largely unaware 
of such an impact (43%) or believe the Regulation had no effect (35%) as can 
be  seen  in  Figure  6.2.  Nevertheless,  it  is  worth  noting  that  3  out  of  the 
insurers that completed the survey stated they realised some or a decrease or 
a large decrease I the time for a victim to receive compensation. 

Figure 6.2 

Stakeholder  opinions  regarding  Regulation  impact  in  passenger  rights 

protection 

Source, Ecorys, survey (2016). 

Regarding advanced payments, the interviewees provided conflicting views as 
to the availability, and timing of such payments and the difference brought by 
the Regulation. This is the case as different viewpoints, even when examining 
the  case  of  the  same  accident  can  be  due  to  different  levels  of  information 
availability or different national legal provisions. For instance, a Greek lawyer 
stated  that  the  Regulation  enabled  passengers  to  claim  advanced  payments, 
which was a rare practice before. Nevertheless, the Norman Atlantic, Ogia and 
Sorrento  cases  indicated  that  there  have  been  limited  (if  any)  initiatives 
aiming  at  informing  passengers  of  their  rights  and  passengers  were 
confronted  with  a  lack  of  information  on  their  rights.  This  resulted  in  some 
cases  where  passengers  did  not  request  an  advance  payment  or  even 
compensation  as  entitled  What  can  be  concluded  from  these  cases  is  that, 
only  a  fraction  of  the  potential  beneficiaries  of  the  Norman  Atlantic  accident 
made  actual  use  of  this  right  and  actually  received  advanced  payments, 
despite  the  fact  that  the  Regulation  indicates  that  the  carrier  is  obliged  to 
identify  and  inform  the  beneficiaries  accordingly.  The  carrier  has  been 
reported  to  have  provided  the  advanced  payment  within  a  week  from 
receiving requests without contesting the claims. In the case of Ogia however, 
the  application  of  the  Regulation  is  considered  to  have  encouraged  the 

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65 

 
 
 
 
 
 
 
 
 
 
provision of advanced payments that would probably not have been provided 
under the French legal framework71. 

The  same  case  has  been  reportedly  handled  differently  in  Italy.  A  lawyer 
representing  claimants  of  the  Norman  Atlantic  case  claims  that  advanced 
payments  are  prone  to  delays  when  the  relatives  of  the  deceased  entitled  to 
such  payment  need  to  be  identified.  Additional  interviews  indicated  that 
advanced  payments  were  not  always  provided  to  relatives  of  the  victims 
within  the  timeframe  foreseen  by  the  Regulation  if  received  at  all.  According 
to lawyers that dealt with the case of Norman Atlantic, this happens because 
some  aspects  of  the  Regulation  do  not  necessarily  fit  well  in  Member  States’ 
liability  frameworks.  One  is  that  there  is  legal  uncertainty  in  case  of 
international  carriage  as  to  which  rules  apply  to  advance  payment,  whether 
they  are  the  rules  of  the  Court  hearing  a  case  or  the  rules  of  the  State  of 
nationality  of  a  deceased  passenger.  This  problem  is  also  relevant  for  the 
compensation of relatives of a deceased passenger: it is not clear which rules 
apply for determining who the relatives entitled to compensation are and how 
to allocate compensation. 

Interviewees  from  the  insurance  industry  of  countries  where  advanced 
payments were already a common industry practice (despite not being a legal 
requirement)  before  the  adoption  of  the  Regulation  (such  as  France  and 
Germany),  suggest  that  the  Regulation  impact  on  the  advanced  payment  is 
also  significant  as  it  is  now  easier  provided  with  the  clarification  of  liability 
attribution.  

Finally,  competent  authorities  that  were  interviewed72  reported  no  indication 
that  the  current  regime  is  not  working  well.  Specifically,  no  complaints  have 
been received regarding the application (or non-application) of the Regulation 
since  its  introduction.  However,  this  is  not  seen  as  a  large  change  to  the 
previous  situation  as  it  might  be  the  case  as  claimants  turn  first  to  their 
lawyers  for  their  claims  rather  than  the  authorities.  This  is  confirmed  by  the 
report  on  the  Ex-Post  Impact  Assessment  of  the  Third  Maritime  Package73, 
where  no  significant 
issues  regarding  the  Regulation 
implementation  had  been  identified.  Some  of  the  respondents  commented 
that  the  number  of  complaints  regarding  passenger  rights  has  decreased 
(although no specification of the nature of these complaints is provided). 

implementation 

Conclusion on achieving the objective 
Objective  of  protecting  passenger  rights  protection:  The  facts  collected 
present a broad picture of the adequacy of the Regulation to achieve this first 
objective.  Stakeholders  tend  to  agree  that  the  Regulation  strengthens  the 
passenger’s  position.  Inputs  collected  from  a  number  of  sources  address  the 
specific impact of the Regulation improving the level of the advance payment 
and  reducing  the  time  required  to  receive  it.  Evidence  on  the  Regulation’s 
impact  on  the  final  compensation  suggests  that  despite  difficulties  still 

In Ogia three advance payments were made. 

71  
72   UK Department for Transport, UK Maritime Coast Agency, Greek National Enforcement Body, Italian Ministry of Transport 

and the Danish Ministry of Transport. 
http://www.europarl.europa.eu/RegData/etudes/STUD/2015/536331/EPRS_STU(2015)536331_EN.pdf 

73  

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encountered  in  grasping  the  full  intended  benefits  of  the  Regulation, 
passengers  are  better  off  than  before.  Additionally,  the  Regulation  can  be 
considered  to  have  had  a  positive  impact  on  the  number  of  cases  reaching 
settlements,  as  the  clarification  provided  on  the  compensation  level  that  can 
be  expected  and  the  strict  liability  provision  strengthen  the  victim’s 
negotiation power increasing the chances of a settlement. 

6.1.2  Has a level playing field for sea passenger carriers been created? 
When  asking  stakeholders  about  the  effectiveness  of  the  Liability  Regulation 
in  creating  a  level  playing  field  for  the  protection  of  passenger  rights  in  the 
event of an accident, more than half (56%) indicated that the Regulation had 
a  positive  impact  or  very  positive  impact  (47%  and  9%  respectively),  23% 
declared that it had no effect and 2% responded suggesting it had a negative 
effect,  while  the  rest  (19%)  declared  having  no  opinion  on  the  subject.  The 
most positive stakeholder group regarding their belief in this respect has been 
that  of  Member  States’  policy  making  authorities,  with  73%  considering  the 
Regulation worked in that direction. 

Most of the stakeholders who were interviewed agree with the statement that 
the  Regulation  brings  an  improvement  to  the  levelling  the  playing  field  for 
passenger  carriers  across  Europe.  The  Regulation  is  thought74  to  have  to  a 
large  extent  harmonised  the  way  carriers  and  insurers  deal  with  claims  of 
passengers  of  different  nationalities  (within  the  same  accident),  providing 
common liability limits, rights etc. as previously the  victims country  of origin 
and/or  the  location  of  the  accident  might  have  influenced  the  level  and 
process  of  providing  compensation.  Levelling  the  playing  field  through  the 
creation  of  a  harmonised  regulatory  framework  was  also  one  of  the  main 
advancements  referred  to  by  ship  owner  stakeholders75  that  participated  to 
the  OPC.  The  Regulation  brings  an  improvement  in  creating  a  level-playing 
field  for  carriers  since  the  area  of  operation  an  the  nationality  of  the 
passengers  becomes  of  a  lesser  importance  when  regarding  the  level  and 
process  of providing compensations. However, the impact of largely different 
national  legal  backgrounds  should  not  be  underrated  as  suggested  by 
insurance industry stakeholders. These provisions (still) regulate the majority 
of  domestic  going  vessels.  The  diverging  national  legislations  undermine  the 
creation  of  a  level  playing  field  as  some  Member  States  apply  stricter  rules 
(e.g. broader definition of shipping accident in France) or choose to apply the 
Regulation in different ways (see Section 3.2 on national application).  

However, the capacity of the Regulation to level the playing field should also 
be viewed in light of the deferred application of the Regulation for Class A and 
B ships. Since, the Members States that have chosen to defer the application 
of  the  Regulation  to  a later  date  include  some  of  those  with  the largest  fleet 
registries,  such as  Italy, Greece, Spain, Germany and the UK, it is not really 
possible  to  asses  the  creation  of  a  level  playing  field  as  far  as  domestic 
carriage is concerned until these deferments expire. The same line of thinking 

Interviews CLIA, Greek lawyer, Greek NEB, HA Group. 

74  
75   Four ship owner stakeholders participated to the OPC including ECSA, CLIA and two individual operators (as seen in the 

Stakeholder Consultation Report). 

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concerns  application  to  Class  C  and  D  ships  where  only  the  Netherlands  and 
Denmark  apply  the  Regulation  to  Class  C  and  D  ships  since  its  entry  into 
force, while Sweden expanded the scope of application to cover classes C and 
D  in  2015.  Overall,  in  passenger  rights  protection  for  domestic  carriage 
creation of a level playing field is limited to date to cover about a third of the 
domestic operating vessels and a fifth of the domestic operating fleet capacity 
(see Figure 4.6 and Figure 4.7). 

Exceptions  to  the  Regulation  application  to  Speed  Craft  (HSC)  vessels, 
Dynamically  Supported  Craft  (DSC)  vessels  and  non-steel  vessels  (wood, 
aluminium and composite) are more prevalent. Whereas some Member States 
have  adopted  a  functional  application  of  the  Regulation  depending  on  the 
conditions  of  operation  of  the  vessel,  others  retain  a  ship-safety-
categorisation  approach,  extending  or  not  the  Regulation  to  the  afore-
mentioned  categories  in  a  similar  way  as  other  requirements  (i.e.  apply  to 
aluminium  but  not  wood  vessels),  while  others  exclude  either  all  or  some  of 
these vessel categories. 

As far as insurance premiums are concerned, there are limited data available 
concerning  their  development  in  light  of  the  Regulation’s  adoption.  Shipping 
and  insurance  industry  stakeholders  suggest  that    in  principle,  significantly 
increased  insurance  premiums  were  expected,  but  in  the  current  market 
situation no large increases in insurance premiums were observed. Especially 
for  international  carriage  involving  Member  States  that  had  ratified  the  PAL 
2002, the Regulation brought minimal impact. This statement was  confirmed 
in  an  interview  with  CLIA  as  it  was  suggested  that  there  has  been  no 
reference  from  cruise  operators  regarding  a  significant  increase  in  insurance 
premiums  after  the  Regulation  come  into  force.  The  most  recent  IG  P&I 
premium  increases  as  presented  in  the  P&I  club  circulars  represent  a  global 
situation  and  are  mostly  irrelevant  with  the  Liability  Regulation.  These 
increased premiums for passenger ships are introduced by the P&I clubs at a 
global scale and are relevant to the restructuring of the mutuality scheme that 
is taking place lately. The considerations leading to this restructuring concern 
the remaining appropriateness of P&Is bundling the risks of different shipping 
segments.  This  is  because  most  of  the  perceived  differences  in  the  (some 
times  diverging)  levels  of  risk  to  cover  the  liability  of  different  shipping 
segments. The industry’s reaction in covering this perceived difference in risks 
comes with the increase in passenger vessel premiums. 

From  interviews  with  representatives  from  the  insurance  industry,  it  was 
derived  that  currently  there  is  no  room  in  the  market  to  absorb  increases  in 
premiums  as  ship  owners  would  not  be  able  to  pay  for  them.  Nevertheless, 
differences in the capacity of larger and smaller operators to secure insurance 
and  their  capacity  to  pay  for  the  premiums  still  exist  with  larger  carriers 
having the advantage of additional negotiating power vis-à-vis insurers. 

The Ex-Post Impact Assessment study for the Third Maritime Safety Package, 
which took place after a year of the application of the Regulation, had derived 
similar findings as the ones gathered from the stakeholder consultation. That 
is  to  say  that  the  Regulation  did  not  have  a  significant  effect  on  insurance 
premiums. Nevertheless, it was stated that “if a serious incident involving the 

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death  of  passengers  on  a  large  passenger  ship  were  to  occur,  the  market 
would  possibly  need  to  reassess  its  exposure  and  reinsurance  capacity,  and 
both  capacity  and  cost  of  insurance  reinsurance  may  become  an  issue.”, 
which  is  not  linked  to  the  Regulation  alone.  A  statement  confirmed  by 
insurance industry stakeholders currently. Also, less than a quarter of survey 
respondents (23%) suggested that there has been some increase in insurance 
premiums with none of the ship owners that respondent to this question being 
amongst  them,  On  the  contrary,  insurers  and  academics  were  positive  that 
the  Regulation  brought  some  increase  to  the  insurance  premiums,  without 
presenting any concrete evidence thereof. These facts point to the conclusions 
that  despite  the  minimum  impact  on  insurance  premiums  in  the  current 
context. The Regulation might lead to a latent increase in the years to come 
should the market conditions and occurrence of incidents change regardless of 
the  fact  that  up  to  date  no  impact  has  been  observed  on  the  insurability  of 
vessels. 

Conclusion on achieving the objective 
Objective  of  creating  a  level  playing  field:  The  facts  and  opinions  collected 
present  different  angles  on  this  issue.  However,  the  collected  input  is 
sufficient  to  suggest  that  the  playing  field  is  levelled  to  a  large  extend  for 
international  carriage  and  especially  for  the  cruise  sector.  The  same  is  not 
exactly  the  case  for  domestic  carriage  where  the  differences  of  the  national 
legal frameworks and Regulation application process cause Member States to 
deviate  from  a  harmonised  application.  It  should  be  here  noted  that  during 
this evaluation period, only a fraction of the EU domestic fleet came under the 
provisions of the Regulation. Thus, the impact of the Regulation on creating a 
level  playing  field,  in  domestic  transport  will  be  possible  to  assess  more 
coherently after the Regulation comes into full effect in 2019. 

6.1.3  Have passenger transport operators been incentivised to improve their 
safety and security performance? 
Roughly  a  third  of  the  stakeholders  consulted  in  the  survey  (33%)  indicated 
that  the  Regulation  had  a  positive  (28%)  or  very  positive  (5%)  impact  on 
increased  safety  and  security  performance  of  passenger  transport  operators. 
This  positive  view  was  shared  by  just  2  out  of  7  (29%)  ship  owners  that 
responded to this question. Alternatively, 42% of the respondents stated that 
the  Regulation  had  no  effect  towards  this  objective  and  the  rest  (26%), 
claimed unaware of any relevant Regulation impact. 

The  functioning  of  the  Liability  Regulation  in  respect  to  the  objective  of 
incentivising increased  safety  and  security  performance  is  based  on  a  simple 
market  principle.  This  has  been  described76  by  theorising  that  a  compulsory 
insurance  scheme  would  create  the  need  for  carriers  to  operate  aiming  for 
higher  safety  and  security  standards  in  pursuit  of  achieving  lower  insurance 
premiums.  This  would  happen  in  case  insurance  companies  would  be  more 
willing (and thus requesting lower premiums) to insure vessels they perceive 
as well maintained rather than poorly maintained or overcrowded vessels. The 
Regulation  was  expected  to  create  a  mechanism  that  would  eventually 

76   Kircher et al. (2015), Soyer (2012). 

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69 

 
 
 
 
 
 
 
 
 
 
 
                                                           
internalise the cost of running an unsafe operation provoking higher insurance 
premiums  and  eventually  ensuring  higher  safety  standards  would  occur  in 
response to the added layer of safety checks conducted by the P&I clubs. 

  Nevertheless,  stakeholders  from  the  insurance  industry  and  beyond 
have  revealed  that  although  insurers  can  inspect  a  vessel  and  decide 
not  to  insure  it  if  this  found  to  be  substandard,  ultimately  insurer 
inspections  take  place  only  when  there  are  already  reasonable  doubts 
concerning  the  safety  standards  of  the  vessel.  Factors  affecting  the 
decision to make an inspection are not based on stringent rules per se 
but  respond  to  the  knowledge  of  the  carrier’s  general  management 
practices,  safety  record,  claims  history,  age  and  class  of  vessel  and 
most  importantly  on  flag  reputation.  That  is  to  say,  that  in  order  to 
trigger  an  inspection  of  a  vessel,  usually  other  layers  of  control  will 
have  raised  attention  to  the  safety  performance  of  the  vessel  and/or 
operator. This means that the market mechanism does not eventually 
create  a  complementary  safety  check  mechanism,  but  rather  creates 
one  that  is  triggered  only  when  a  vessel  is  already  considered  of 
potential safety hazard. 

The  explanation  of  the  market  mechanism  provided  above  can  be  confirmed 
when  considering  the  research  of  Professor  Erik  Rosaeg  identifying  a 
correlation  between  ships  (not)  having  P&I  cover  and  their  detention  record 
under  Port  State  Control.  Professor  Roesag  claims  that  of  the  ships  detained 
by  Port  State  Control,  a  higher  than  average  proportion  did  not  have  P&I 
cover.77  

When  asked,  national  authorities78  stated  exactly  that  they  considered  the 
impact  of  the  Regulation  on  ship  safety  to  be  less  obvious  and  to  their 
understanding  safety  standards  to  be  more  efficiently  implemented  and 
enforced  by  the  provisions  of  the  Port  State  Control  (2009/16/EC)  and  Flag 
State Control (2009/21/EC) Directives. This view of the Regulation having no 
claim  for  an  impact  on  safety  performance  of  operators,  or  at  least  only  a 
marginal  indirect  impact  was  shared  by  the  majority  of  the  consulted 
stakeholders79.  Ship  owners  and  cruise  operators  interviewed  specifically 
stated that they already had a high incentive to take good care of passenger 
safety due to their pursue of client satisfaction and aim to avoid bad publicity. 
As far as security is concerned, the responses received addressed the lack of 
ability  of  operators  to  foresee  terrorism  acts  and  perform  a  meaningful  risk 
analysis  thereof.  According  to  interviewees,  cruise  operators  already  avoid 
destinations with low public perception of security for commercial reasons and 
to  comfort  passenger-clients  rather  than  a  choice  motivated  by  insurance 
premiums.  This  leads  us  to  conclude  that  it  may  only  have  minor  indirect 
impact to the safety performance of a carrier. 

The  limited  accident  cases  that  occur  annually  do  not  allow  for  a  robust 
statistical  analysis  attributing  an  impact  to  the  Regulation.  This  is  especially 
the  case  as  the  EMSA  incident  dataset  reliably  presents  only  the  amount  of 
incidents occurring during the application of the Regulation (2013 2015) with 

Interview prof. Erik Rosaeg. 

77  
78   UK Department for Transport, Swedish Ministry of Transport, Danish Ministry of Transport. 
79  

Interviews with P&I service provider, ship-owner association, claims lawyer and a national Maritime Law association. 

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earlier  data  being  of  poor  quality  and  therefore  a  comparison  of  accident 
occurrences  with  the  years  prior  to  the  application  of  the  Regulation  is  not 
possible. 

Some  incremental  behavioural  changes  have  been  recorded  in  the  aftermath 
of  incidents,  such  as  the  one  occurred  with  the  'Skagastøl'  vessel.  In  this 
case,  the  shipping  company  has  since  extended  the  railing  beside  the  stairs 
on this and another ferry with a corresponding design, after a passenger had 
fallen  from  the  stairs.  The  shipping  company  has  further  emphasised 
passenger  safety  and  fall  injuries  in  its  safety  management  system.  At  a 
higher level, the Norwegian Maritime Authority has also defined fall injuries as 
a  focus  area  in  its  risk-based  inspections.  However,  it  is  not  clear  to  what 
extent such behavioural changes can be attributed to the Regulation or other 
instruments  of the  Third Maritime Safety Package.  This would have been the 
case  should  the  increasing  liability  requirements  lead  insurers  to  perform 
more  rigorous  inspections  before  underwriting  a  vessel.  Nonetheless,  no 
change in the inspection mechanism has been identified in the last years as a 
result of the Regulation coming into force and non-IGPANDI insurers reported 
that the only impact of the increase in liability was the reduction in vessel size 
they are willing to underwrite, especially regarding the cruise sector  to which 
a “claims culture” is attributed. 

The  conclusions  above  are  confirmed  when  inquiring  for  operational 
implications  of  the  Regulation.  Only  4  out  of  38  (13%)  survey  respondents 
indicated  that  their  organisation  implemented  actions  to  increase  safety  and 
security  while  3  out  of  38  (11%)  reported  an  impact  on  the  approach  to 
assessing  safety  and  security  standards  (see  Figure  6.3).  This  argument  is 
strengthened  by  the  fact  that  non  of  the  positive  respondents  to  these 
questions, were amongst the 6 ship owners participating in the survey. On the 
contrary the ship owner stakeholders that participated to the OPC mentioned 
that  the  main  impact  on  their  organisation’s  operation  was  an  increase  in 
administrative burden. 

Figure 6.3 

Impact of Regulation on safety and security assessment 

Source, Ecorys, survey (2016). 

Conclusion on achieving the objective 
Objective  of  incentivising  increased  safety  and  security  performance  of 
passenger  transport  operators:  Academic  literature  and  stakeholder  views 
collected  provide  different  angles  to  answering  this  question.  The  theoretical 
mechanism  that  was  expected  to  increased  pressure  for  vessel  safety  as  a 

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71 

 
 
 
 
 
 
 
 
 
 
 
 
result  of  the  mandatory  insurance  requirement  seems  not  to  materialise  as 
stakeholders think that safety standards have improved due to the entry into 
force of dedicated maritime safety rules for ship construction and design, and 
ship operation. Insurance premiums do not seem to play a role in that regard. 
6.1.4  Has  a  balanced  framework  of  passenger  rights  protection  been 
established and complemented? 

  Under  this  objective,  the  provisions  of  Regulation  are  compared  with 
the provisions protecting passenger rights for air transport. This mode 
was  selected  for  the  comparison  as  the  type  of  carriage  (mass 
transportation provided by larger operators) is more comparable. This 
comparison is done for both the levels of compensation but also for the 
types  of  passenger  rights  that  are  protected.  The  aim  is  to  assess 
whether  passenger  rights  are  protected  in  a  similar  way  rather  than 
protected  to  the  same  level.  Afterwards,  it  was  assessed  whether  the 
protection  of  the  full  set  of  passenger  rights  as  described  in  the 
Liability Regulation has been achieved. 

  First,  comparing  maritime  with  air  transport  liability  regulation,  a 
number  of  passenger  rights  seem  to  be  protected  in  a  different  way 
(let alone at a different level) between the two modes; mainly: 

  The  liability  position  of  the  sea  passenger  is  disadvantageous 
compared  to  that  of  the  air  passenger.  This  is  first  and  foremost  true 
for  non-shipping  incidents,  but  also  in  case  of  shipping  incidents  the 
carrier has a much broader possibility to escape liability; 

  The  limits  for  compensation  for  death  or  bodily  injury  are  different  in 
case  of  air  transportation  (minimum  limit  is  100.000  SDR  and 
unlimited  maximum  compensation)  than  in  case  of  transport  by  sea 
(minimum limit 250.000 SDR and maximum is 400.000 SDR).; 

 

In  case  of  damage  to  luggage  ,  the  Liability  Regulation  is  more 
favourable for passengers as it includes a presumption of fault in case 
of  a  shipping incident, whereas  the  passenger  under  the  MC99  has  to 
prove that the carrier is at fault. The limits to liability amount to 3.375 
SDR for sea transport, compared to 1,131 SDR for air transport; 

  Both  regimes  provide  for  mandatory  insurance.  In  case  of  air 
transportation,  however,  insurance  must  ensure  the  full  amount  of 
compensation,  while  in  the  case  of  maritime  transportation,  only 
insurance up to the lower limit to liability is compulsory,. Moreover, the 
maritime  carrier  only  needs  to  take  up  insurance  in  case  of  vessels 
licenced  to  carry  more  than  12  passengers80,  while  there  is  no  such 
rule  relating  to  air  transport.  A  number  of  other  vessels  operating 
domestically are also exempt from this obligation (Class C and D, HSC, 
DSC,  air-cushioned,  non-steel  vessels),  depending  on  the  preferred 
approach  of  the  respective  Member  State  (either  flag  or  host  state  to 
the carrier). Member States have also had the opportunity to defer the 
application  of  the  Regulation  for  Class  A  and  B  of  domestic  carriage 
vessels; 

  The fact that the 392/2009 Regulation and the PAL 2002 provide for a 
direct  action  against  the  insurer  is  beneficial  for  maritime  passengers 
as  it  is  widely  considered  that  this  enhances  passengers  negotiating 
position. 

80  

since according to Council Directive 98/18/EC, on which the Regulation basis the classification of vessels of domestic 
traffic, to which the Regulation applies, passenger ships are considered all ships that carry more than 12 passengers.  

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Despite the remaining differences between modes, the information obligation 
and the advance payment can be considered significant improvements to the 
protection  of  passenger  rights  and  the  enhancement  of  the  framework  of 
passenger  rights.  Additionally,  the  provisions  on  compulsory  insurance  and 
the  right  for  direct  action  against  the  insurer  improve  the  position  of 
claimants.  

When examining the success of the Regulation in protecting passenger rights 
including  the  provision  of  information  and  compensations  for  damages  to 
vehicles,  luggage  and  mobility  equipment  the  majority  of  the  stakeholders 
that filled in the survey (56%)  considered that the Regulation had a positive 
impact  or  very  positive  impact  (51%  and  5%  respectively).  Slightly  more 
positive  were  the  views  of  Member  States’  policy-making  authorities  (53% 
and 13% respectively. A smaller amount 14% stated that the Regulation had 
no effect, while another 9% of the respondents thought the Regulation had a 
negative  (7%)  or  very  negative  effect  (2%)  on  achieving  this  objective.  The 
rest  of  the  respondents  (21%),  indicated  they  didn’t  know  the  effects  of  the 
Regulation  on  this  objective  (see  Figure  6.1).  These  findings  are  in  line  with 
the responses of public authorities recorded in the Impact Assessment survey 
for the Third Maritime Safety Packages where a small number of respondents 
noticed  that  the  situation  now  allows  for  greater  comparability  between 
different modes of transport. 

Lawyers  specialised  in  maritime  liability  stressed  the  fact  that  improving  the 
information  position  of  passengers  (i.e.  information  obligation  of  the  ship-
owner)  before  the  start  of  a  journey  is  fairly  ambitious.  As  mentioned  in 
Section 5.1.1, there have been limited (if any) initiatives aiming at informing 
passengers  of  their  rights  and  passengers  were  confronted  with  a  lack  of 
information on their rights. Nonetheless, the quality and quantity of available 
information  to  passengers  has  increased  strongly  or  just  increased  as  a 
consequence  of  the  Regulation,  according  to  39%  of  the  41  survey 
respondents.  Only  5%  suggested  a  decrease  in  the  level  of  available 
information and 27% indicated no effect, while a 29% declared no knowledge 
over the topic, however, no strong evidence was identified in that direction. 

In the Norman Atlantic case, compensations were also provided for the loss of 
vehicles  according  to  the  provisions  of  the  Regulation.  The  situation  is  more 
complicated in the event of a leased vehicle as both lessee and lessor need to 
be  compensated.  Lawyers  representing  passengers  claim  that  under  the 
current  framework  it  is  very  difficult  for  passengers  to  provide  evidence  for 
the  quantification  of  the  damage  to  property,  such  as  damage  to  vehicles, 
however  this  might  relate  to  deficiencies  of  the  national  legal  framework  in 
Italy.81  The  Norman  Atlantic  case  shows  in  this  respect  that  offers  are  made 
by  the  insurer  concerning  vehicles  located  in  specific  parts  of  the  ship82 
invoking  the  limits  to  liability  set  by  the  Regulation.  However,  these  limits 
prevent the settlement of claims for more expensive vehicles. 

81   One of the main problems is related to the fact that there are no clear rules in Italy to identify the entity that has the 

responsibility to unload the ship and this implies that this uncertainty delays all the activities aimed at the gathering of the 
evidence necessary to quantify damages to the property of passengers (e.g. vehicles). 

82   Referring to the vehicles located on the parking decks for which the identification and examination of vehicles has finished. 

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73 

 
 
 
 
 
 
 
 
 
 
 
                                                           
When examining the application of the provisions of the Regulation in relation 
to luggage loss claims and loss of mobility equipment, it gets even harder to 
provide with quantitative evidence of its impact. In the cruise industry carriers 
are reported to have been  eager to provide  compensations in  case  of loss  of 
luggage or minor injuries to avoid any court case, even before the Regulation 
coming  into  force.  As  a  result  there  is  limited  documentation  of  the  smaller 
cases and hardly a lawyer is necessary making thus difficult to distinguish the 
impact of the Regulation.  

  Evidence of the limited awareness of the impact of the Regulation can 
be seen in the survey findings where a total of 33 survey respondents 
provided  answers  on  the  development  of  passenger  complaints  over 
time: 

  Slightly more than half (between 52 and 58%) chose the “don’t know” 

option for all of the complaint categories; 

  The  rest  largely  supported  that  there  was  no  effect  relevant  to  the 
Regulation  on  the  number  of  complaints  received  by  national 
authorities  with  only  a  few  respondents  recognising  the  Regulation’s 
impact on specific complaint types; 

  6%  indicated  some  decrease  in  complaints  over  “loss  or  damage  of 

mobility equipment for handicapped passengers”; 

  3%  indicated  some  increase  in  complaints  relevant  to  “lack  of  an 
advanced payment in the event of injuries or deaths” and another 3% 
indicated some decrease; 

  3%  suggested  a  large  increase  in  complaints  relevant  to  “loss  or 
damage of luggage or vehicles” and 3% suggesting a large decrease; 

  6%  suggested  a  large  (3%)  or  some  increase  (3%)  in  complaints 

regarding “compensations in the event of injuries or deaths”. 

In  specific,  Ministries  reported  no  effect  (46%)  or  unawareness  over  any 
effect  of  the  Regulation  (54%)  on  the  number  of  comments  received. 
Similarly,  none  of  the  ship  owners  participating  to  the  survey  realised  any 
impact on the number of complaints. 

In  any  case,  the  Regulation  has  been  considered  by  the  stakeholders 
interviewed, a good step towards completing a solid framework  of passenger 
rights further harmonising the types of rights protected across modes. 

Conclusion on achieving the objective 

  Objective  of  setting  up  and  complementing  a  balanced  framework  of 
passenger  rights  protection:  The  Regulation  is  an  improvement  in 
creating  a  balanced  framework  of  passenger  rights.  However,  looking 
into  specific  issues,  such  as  the  compensation  of  vehicle  or  property 
damage,  the  input  basis  is  thinner  that  that  used  for  the  other 
objectives, also due to the lesser importance attributed to the issue by 
the  stakeholders  involved.  Data  collected  from  the  case  studies 
indicate that compensations might have increased as an impact of the 
Regulation.  Combined  with  the  provisions  protecting  additional 
passenger  rights  (information,  luggage,  advanced  payment  etc.)  the 
Regulation results in harmonisation towards other modes. 

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6.2  Q-4: Ensuring the same level of passenger rights protection 

Q4: To what extent have the measures adopted in the Regulation ensured the 
same level of passenger rights protection regardless of the area  of  operation 
of the ship? 

In  order  to  better  address  this  evaluation  question,  the  geographical 
parameter  of  passenger  rights  protection  are  considered,  both  addressing 
differences between Member States, as well as within specific Member States. 

Currently  the  Regulation  can  be  considered  as  having  a  potentially  coherent 
impact on passenger rights only when international carriage is concerned.  As 
identified  earlier  the  deferred  application  of  the  Regulation  for  Class  A  and  B 
ships  of  domestic  carriage  as  well  as  the  application  on  Class  C  and  D  ships 
leads  to  an  uneven  application  of  the  Regulation  across  the  Union  since  a 
considerable  number  of  domestic  vessels  will  not  be  applying  the  Regulation 
even after 31/12/201883. 

  Additionally,  the  approach  of  Member  states  concerning  the  vessel 
categories not defined in the Regulation can differ significantly. A near 
unique  approach  is  adopted  by  each  Member  State  as  to  the 
application of the Regulation on non-defined vessel types such as High 
Speed  Craft  (HSC),  Dynamically  Supported  Craft  (DSC),  non-steel 
vessels  and  vessels  with  less  than  12  passengers  as  can  be  seen  in 
Section  3.3.  These  findings  have  been  supported  by  the  survey  and 
interview  data  retrieved  during  the  stakeholder  consultation.84  These 
differences  are  based  on  Member  States’  interpretation  of  the 
Regulation requirements. The analysis of the domestic passenger fleet 
data  falling  under  the  Regulation  indicates  that  to  this  day,  the 
Regulation  provisions  are  only  applicable  to  a  small  portion  of  the  EU 
domestic fleet. Exemptions to vessel types, become especially relevant 
in  light  of  specific  the  domestic  market  share  of  some  of  these  vessel 
types  in  specific  Member  States.  Such  is  the  case  for  HSC  vessels 
holding  a  significant  market  share  in  the  UK  domestic  market85  or 
wooden vessels in Greece and Italy86 and other examples. 

  A  number  of  authorities  have  identified  issues  with  achieving  the 
insurability  of  especially  the  smallest  vessels  under  the  high  limits 
provided  by  the  Regulation.87  These  concerns  may  relate  to  the 
availability  of  war  or  terrorist  risk  insurance,  as  there  is  the  need  to 
ensure  that  insurers  are  ready  to  cover  such  risks.  Securing  the 
insurability  of  smaller  carriers  is  a  main  concern  related  to  the 
functioning  of  the  insurance  market  nationally.  While  for  Denmark,  a 
country  with  a  very  good  safety  record,  there  have  been  very  few 
complaints  regarding  the  insurability  of  vessels,  despite  the  extension 
of  the  Regulation  to  all  vessel  classes.  However,  the  same  is  not  the 
case  in  other  countries.  In  Poland  for  instance,  the  application  of  the 
Regulation  to  Class  B  ships  has  had  to  be  deferred  to  2018  from  an 

83   As identified earlier in Chapter 3  
84   Survey results: Out of the 22 respondents, the majority (64%) indicate that the Regulation applied to High Speed Crafts 

(HSCs) calling in ports in their country while a clear majority of Members States (59%) apply the Regulation also to vessels 
lying their flag. This indicates that the Regulation is not applied equally to HSC vessels across the Union but rather, some 
countries apply it to HSC while others do not. 
85   According to the UK Maritime Coast Agency. 
86   Directive 2009/45/EC domestic vessel database. 
87   Similar preoccupations were identified in the interviews with at least the French, UK, Danish and Polish authorities. 

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75 

 
 
 
 
 
 
 
 
 
 
                                                           
initial  planning  to  apply  the  Regulation  in  2013,  due  to  claims  of  ship 
owners  that  they  were  unable  to  obtain  affordable  insurance  for  their 
vessels.  It is indeed in accordance with earlier findings that  insurance 
premiums would be more challenging to cover for smaller operators in 
countries  with  poorer  safety  records  than  for  larger  ones  with  better 
performances.  Eventually  the  differences  in  insurability  of  vessels 
contribute  to  different  Member  States’  approaches  applying  the 
Regulation. Although this is definitely not the sole criterion for making 
such  decisions,  measures  to  alleviate  the  burden  from  ship  owners 
(such  as  those  applied  in  Denmark)  can  assist  in  expanding  the 
application  of  the  Regulation  to  cover  a  larger  share  of  the  domestic 
vessel  fleet.  To  confirm  this  line  of  thinking,  insurance  industry 
stakeholders  have  mentioned  that  for  countries  with  lower  safety 
standards,  insurance  premiums  can  be  higher  compared  to  countries 
holding  good  safety  records,  however  the  most  important  factor  in 
defining insurance premiums is the safety reputation of the operator. 

  Further,  national  definitions  of  shipping  incident,  ship  and  contract  of 
carriage  may  endanger  the  Regulation’s  uniformity,  since  the 
applicability of the Regulation may depend on the requirements set by 
different  states.  88  Similar  concerns  are  raised  in  connection  to  the 
definition of injury and the inclusion of emotional injury under the head 
of damages.89 Further comments that the provision allowing individual 
nations to adopt higher limits of liability or unlimited liability for claims 
regarding death of or personal injury to a passenger can threaten the 
Regulation’s  uniformity.  This  could  threaten  one  of  the  main 
advantages  that  the  shipping  and  insurance  industry  see  into  the 
Regulation;  the  harmonisation  of  the  approach  to  liability  across  the 
Union.  

  National definitions may also affect the calculation of damage and the 
exemplary  damages  estimation  which  can  differ  significantly  between 
different  countries.  These  damages  are  calculated  based  on  a  fixed 
table  in  the  Netherlands  and  the  UK,90  but  even  if  other  countries 
develop a similar approach it is far from certain that the calculation of 
damages  will  be  performed  in  a  harmonised  manner.  Currently  the 
uniform level of compensation theoretically does not incentivise “forum 
shopping”  as  claims  brought  in  different  Member  States  will  probably 
result in similar compensations91. Nonetheless, according to lawyers, if 
large differences in the valuation of damages appear, this may prompt 
the  reappearance  of  “forum  shopping”  behaviours  as  has  been 
reportedly 
to 
unsuccessfully  bring  their  claims  before  US  courts.92  However  the 
phenomenon  cannot  be  totally  eclipsed  with  the  type  of  provisions 
envisaged  in  the  Regulation  as  the  experience  of  the  Norman  Atlantic 
victims  shows  that  differences  in  the  time  needed  for  the  judicial 
procedure between Member States led Greek victims to seek Italy as a 
jurisdiction  forum,  expecting  a  faster  process  there.  All  in  all  non-
uniform  national  legislations  applying  to  the  points  not  covered  or 
clarified by the Regulation may boost such behaviours. Such points are 
namely  related  to  heads  of  damages,  quantification  of  damages,  the 
persons who are entitled to compensation, are all issue that are left to 
be determined by the lex fori.  

for  Costa  Concordia  victims 

the  case 

trying 

88   B. Soyer, “Boundaries of the Athens Convention: What you see is not always what you get!”, in Dr Thomas (ed) Liability 

Regimes in Contemporary Maritime Law, Informa 2007.  
89   Shaw supra note 9; Testa supra note 1; Kroger supra note 1. 
90  
91  
92  

Interview with P&I representative. 
Interview prof Erik Roesag. 
Interview lawyer Costa Concordia Network of Passengers and Lawyers. 

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For  example,  some  national  laws  provide  for  non-pecuniary  damages  and  others  do  not; 

adult  siblings  are  entitled  to  quite  significant  non-pecuniary  compensation  in  case  of  death 

under Greek law, but that is not the case in other jurisdictions. 

6.2.1  Conclusion response to the evaluation question  
The Regulation has contributed to a large improvement  of  the harmonisation 
of  sea  passenger  rights  in  Europe.  This  is  initially  the  case  for  international 
voyage where since 2013 a reference framework has been created, providing 
clarity  in  the  expectations  for  compensations  and  dis-incentivising  “forum 
shopping”.  However,  the  limited  application  of  the  Regulation  on  domestic 
carriage (with the states possessing the larger fleets deferring application for 
Class A and Class B) and especially the vastly different approaches of Member 
States  in  regulating  (or  not)  vessel  classes  beyond  Class  A  and  B  ships 
currently lead to a very diverse framework of application across the  EU. This 
situation  is  expected  to  improve  after  the  deferment  period  finishes. 
Nonetheless, a large factor preventing a harmonised approach across  Europe 
is  the  great  variation  of  national  legal  frameworks  applying  aside  the 
Regulation and defining a number of critical elements. 

6.3  Q-5: Unexpected Regulation effects 

Q5: Has the Regulation lead to any positive or negative unexpected effects? 

There  has  been  a  limited  identification  of  unexpected  Regulation  effects  with 
most  of  them  being  less  significant  that  the  impacts  addressed  earlier.  It 
should  be  noted,  that  the  identified  effects  come  in  relation  to  the  current 
scope  of  application  of  the  Regulation.  This  means  that  as  the  Regulation 
comes  into  full  effect  with  the  expiration  of  the  deferral  periods  for  A  and  B 
vessel  classes,  more  effects  might  be  observed  in  the  field  of  domestic 
transport.  The  additional  effects  identified  are  addressed  in  the  following 
Sections. 

Out  of  the  42  survey  respondents  that  answered  this  question,  a  clear 
majority  (83%)  indicated  that  they  saw  no  unexpected  effects  of  the 
Regulation. From the remaining seven respondents the following aspects were 
derived: 
 

the additional administrative burden for authorities; 

 

 

 

the creation of a clear framework of rules; 

the  initiative  of  some  Member  States  to  expand  the  Regulation 
provisions also to smaller vessels; and 

the  strengthening  of  a  claims  culture  due  to  the  existence  of  the 
insurance regime. 

In the following sections these aspects are addressed, plus the issue of impact 
on  insurance  premiums  and  passenger  fares  that  have  been  identified  in  the 
Evaluation Framework. 

The  respondents  of  the  survey  for  the  Impact  Assessment  of  the  Third 
Maritime Safety Package stated that the issuing Blue Card certificates to third 

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77 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
country vessels (alongside issuing certificates for EU Member States’ vessels), 
calling  at  ports  in  the  EU  induced  extra  costs.  At  that  time  some  Member 
States’  administrations  were  planning  to  introduce  fees  to  cover  these  extra 
costs. Further, all Member States agreed that the Regulation puts pressure on 
their  staff.  In  the  interviews  conducted  with  state  authorities,  we  identified 
that  indeed  a  number  of  authorities  introduced  certificate  fees  (the  level  of 
which is elaborated in Section 6) to compensate for the small amount of FTE 
consumed by this process. Denmark went one step forward making the whole 
certificate procedure digital lowering costs and fees in the process. 

When  asked  in  the  survey  about  the  impact  of  the  Regulation  on  the 
insurability  of  passenger  carrying  vessels,  only  a  few  participants  were 
positioned  to  respond  (7).  However  there  was  no  response  indicating  the 
impact  to  be  challenging  or  very  challenging  to  the  insurability  of  carriers. 
This  might  have  also  been  the  case  as  the  application  of  the  Regulation  has 
been  deferred  for  the  vast  majority  of  the  domestic  vessels.  This  finding 
comes  in  line  with  the  statements  of  interviewees  indicating  that  there  has 
been to date only a very minor (if any) impact of the Regulation on insurance 
premiums  also  as  a  result  of  the  current  market  conditions.93  Thus,  it  is 
considered  that  the  insurability  of  the  vessels  currently  under  the  scope  of 
application is not threatened.  In any case, P&I  representatives indicated that 
they expect differences between larger and smaller  operators  regarding their 
capacity to pay for the premiums. 

No stakeholder interviewed identified an impact on passenger fares while only 
6% of the survey respondents suggested that the Regulation resulted in some 
increase of passenger fares. On the same question, 35% indicated there was 
no effect and another 58% were not aware of any relevant effect. 

Figure 6.4 

Stakeholder reported impact of Regulation on passenger fares 

Source, Ecorys, survey (2016). 

A  large  number  of  stakeholders  interviewed  identified  as  a  major  impact  of 
the Regulation the fact that it offers clarity especially in European cases where 
the passengers have the choice to go to different jurisdictions. Further, it was 
stated that the Regulation contributes by offering legal certainty. This feeling 
is  supported  by  stakeholders  on  both  the  claimant  and  insurer/ship  owner 
side. A German P&I correspondent goes one step further indicating that:  

 

“… passenger claims under German law have not changed. They cover 
(as  was  the  case  also  before)  all  types  of  claims  including  injuries, 
material, moral and psychological claims. What has changed since the 

93   As mentioned in section 5.1, should the market conditions change, or a large accident occur, experts of the market expect 

a rise in insurance premiums as a reaction. 

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effect  of  the  Regulation  has  been  the  fact  that  looking  into  a  claim in 
principle  has  become  much  more  straightforward  nowadays.  It  is 
clearer as to what is covered.” 

  Finally,  the  Regulation  triggered  the  ratification  of  the  PAL  2002  by  a 
number  of  Member  States  and  led  some  Member  States  to  reassess, 
adjust  and  update  their  national  legal  framework94.  Moreover  some 
states  where  triggered  to  expand  the  application  of  the  Regulation 
beyond  the  provisions  of  the  Regulation  to  also  cover  Class  C  and  D 
ships (and other). This has been the case in the Netherlands, Denmark 
and Sweden. Stakeholders in these  Member States  such as the  Dutch 
Maritime  Law  Association,  Dutch  ship  owners,  the  Danish  Ministry  of 
Transport  and  the  Swedish  Ministry  of  Justice  report  that  the 
implementation  of  the  Regulation  to  classes  C  and  D  brought  no 
unexpected negative effects.95 

6.3.1  Conclusion response to the evaluation question  
The Regulation, within the scope of application during the evaluation period96, 
has presented no unexpected negative impacts. The findings indicate that the 
insurability  of  carriers  has  not  been  affected  by  the  Regulation.  Authorities 
have managed to contain fees charged for certificates to a small amount and 
insurance  premiums  and  passenger  fares  have  been  largely  unaffected.  This 
should  be  seen  in  the  context  of  broad  exemptions  and  deferments  of  the 
application  of  the  Regulation  and  against  a  soft  market  condition  for  the 
vessel  insurance  industry  that  has  allowed  for  retaining  insurance  premiums 
to  remain  unchanged.  Moreover,  the  Regulation  has  caused  unexpected 
positive  effects,  such  as  providing  clarity  for  dealing  with  (especially 
international) claims on accidents and incidents and the fact that it may have 
caused  a  small  number  of  Member  States  to  go  beyond  the  scope  of  the 
application and expand the coverage of passenger rights.  

6.4  Conclusion on effectiveness 

Based on the evaluation of the three questions related to the effectiveness of 
the  Regulation,  it  is  concluded  that  the  Liability  Regulation  has  been  largely 
successful in achieving its objectives. The Regulation has been most effective 
in  improving  passenger  rights  protection,  and  in  creating  a  balanced 
framework of passenger rights. The main contributors to these achievements 
have been the clarifications provided on how to deal with maritime accidents 
and incidents and the introduction of new types of passenger rights protection 
in  an  attempt  to  harmonise  with  the  existing  framework.  However,  the 
Liability  Regulation  has  been  less  successful  in  levelling  the  maritime 
transport playing field for all carriers. In the case of international carriage, the 
Regulation has contributed in developing a set of common practices. However, 
the  differences  in  application  scope,  as  well  as  the  interpretation  and 

94   Example of Poland from interview with Dr. Peplowska. 
95   All 3 MS that have expanded the application of the Regulation to vessel classes C and D have taken measures to lighten 

the burden for smaller carriers according to the findings of the interviews conducted. 

96   Referring to the deferred application to class A and B vessels. 

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79 

 
 
 
 
 
 
 
 
 
 
 
 
                                                           
interaction  with  national  legal  frameworks  do  not  allow  for  an  equal 
implementation  in  all  Member  States.  The  full  effects  of  the  Regulation  in 
matters of levelling the playing filed will be possible to observe only after the 
Regulation comes into full effect after the expiration of the deferment period. 
Further,  the  Regulation  has  not  been  successful  to  date  in  incentivising  (at 
least directly) a better safety performance. This is because the Regulation has 
landed on a timing where the shipping market is facing difficulties to live up to 
increased  premiums.  and  thus,  insurers  absorbed  the  increased  risk  for  the 
time being. 

Considering  the  potential  for  equal  protection  of  passenger  rights,  the 
Regulation  has  been  fairly  successful  in  guaranteeing  this  for  international 
carriage,  however  the  differences  in  implementation  scope  and  national 
frameworks  between  Member  States  allow  for  the  continuation  of  potential 
deviations in practices97 not only between Member States but also within the 
same Member State. 

the  Regulation  has  been  successful 

Nonetheless, 
in  not  producing 
considerable unexpected effects, but rather a small set of unexpected benefits 
have  emerged,  relevant  to  the  increasing  clarity  in  liability  regimes  and  the 
increasing  passenger  rights  protection  in  some  Member  States  beyond  the 
obligatory provisions of the Regulation. 

To  conclude  the  above,  it  can  be  stated  that  the  Regulation  has  been  an 
effective  instrument  to  achieve  its  objectives  within  its  current  scope  of 
application. 

97  

In case accidents do occur. 

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7 

Efficiency 

This  chapter  presents  the  conclusions  of  the  analysis  related  to  the  defined 
efficiency  evaluation  question,  based  on  the  results  of  desk  research, 
interviews,  stakeholder  survey  and  case  studies.  Each  evaluation  question  is 
scored on its underlying evaluation criterion.  

7.1  Q-6: Costs reasonable and proportionate in relation to benefits 

Q- 6: Do the costs of the measures adopted in the Regulation to achieve the 
objectives  remain  reasonable  and  proportionate  in  relation  to  the  benefits  of 
the Regulation? 

For  the  evaluation,  this  question  is  divided  into  three  sub-questions  (which 
are presented in detail below):: 
1.  What are the costs of implementing the Regulation? 
2.  What are the benefits of implementing the Regulation? 
3.  Are costs reasonable and proportionate in relation to the benefits? 

7.1.1  Costs of implementing the regulation 
The  inventory  of  data,  interviews  and  literature  has  revealed  cost  impacts  in 
the following categories: 

  For the ship owners to comply; 

  For the authorities to implement, monitor and enforce; 

  For the passengers. 

Costs for ship owners 
The  Liability  Regulation  has  had  cost  implications  for  ship  owners  in  three 
fields: 
1.  Insurance premiums to be paid by ship owners; 
2.  Certificate costs to be paid to authorities; 
3.  Administrative burden related to these; 
4.  Costs of adapting operations. 

Each of these categories is discussed further below. 

1. Insurance premiums to be paid by ship owners 
Typically liability insurance makes up some 10% of total insurance costs (the 
remainder  for  hull  *  machinery,  cargo  etc.).98  It  is  noted  that  this  figure 
includes  more  than  only  passenger  liability  insurance  costs.  Typically, 
insurance  costs  can  make  up  in  the  order  of  10%  of  total  shipping  costs99, 
although  this  ballpark  figure  should  be  interpreted  with  care  as  a  range  of 

98   Based on IUMI statistics on insurance premiums, http://www.iumi.com/index.php/committees/facts-a-figures-

committee/statistics. 

99   For example, Panteia, Significance and PwC (2015), Study on the Analysis and Evolution of International and EU 

Shipping. Final report, September 2015. 

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81 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
variables  will  be  of  influence  (factors  like  size  and  age  of  the  ship,  area  of 
operation  and  the  variation  of  other  cost  components  like  fuel  costs).  The 
overall  levels  of  insurance  premiums  are  typically  not  published  by  shipping 
lines.  Stakeholders  consulted  indicated  that  financial  information  was 
confidential  and  insurance  industry  stakeholders  were  found  unwilling  to 
disclose  it.  In  general  terms,  interviewees  indicated  that  the  levels  of 
insurance  premiums  paid  relate  to  fleet  composition,  track  record  of  the 
company,  as  well  as  external  factors  such  as  competition  in  the  insurance 
industry. 

Theoretically,  a  rise  in  liability  insurance  cover  would  lead  to  an  increase  in 
insurance  premiums  to  be  paid.  Now,  since  the  Athens  Convention  has 
already been ratified in several Member States, the changes in liability cover 
due to the  Liability Regulation are fairly small, so that in those countries no, 
or hardly any, change would be needed, whereas in countries that had applied 
much lower liability cover ceilings, they would change. 

Secondly,  insurance  premiums  are  also  affected  by  the  actual  pay-out  from 
funds needed as a consequence of accidents and incidents. Major events with 
high  financial  impact  on  insurance  firms  usually  have  repercussions  on 
premiums in following years. 

From the interviews and literature review, however, it was found that liability 
insurance  premiums  have  changed  very  little  or  not  at  all.  Moreover,  it  was 
stated  that,  in  view  of  the  expected  ratification  of  the  Athens  Convention 
and/or  the  announcement  of  the  Liability  Regulation,  insurance  premiums 
were  already  gradually  adapted,  so  that  a  firm  one-time  increase  at  the 
moment of the Regulation entering into force was not seen. 

Along  with  studies  conducted  at  European  level,  also  several  Member  States 
investigated the efficiency of the Regulation. Several of these concern ex ante 
analyses,  such  as  presented  in  a  Lloyds  List  2008  Article,  in  which  insurer 
Marsh  indicated  that  war  risk  cover  would  cost  less  than  USD  0.10  per 
passenger per day100, or the UK government’s  ex ante impact assessment of 
101, in which they made use of an estimate provided by insurer Marsh of 
20125F
USD  0.03  per  passenger  per  carriage.  Adding  costs  of  certificates,  the  UK 
government’s IA concluded that an overall annual costs of GBP 42,000 for all 
ship-owners,  as  of  2018,  excluding  administrative  costs  for  ship-owners  and 
monitoring  &  enforcement  costs  However,  this  source  dates  from  before  the 
entry  into  force  of  the  Regulation,  and  the  estimate  could  not  be  verified 
against  actual  market  rates.  According  to  the  Ex-Post  Impact  Assessment  of 
the  Third  Maritime  Safety  Package102,  the  implementation  of  the  Liability 
Regulation  did  not  have  a  significant  impact  on  insurance  premiums.  They 
suggest,  however,  that  if  ‘a  major  incident  was  to  occur,  the  market  would 
possibly  need  to  reassess  its  exposure  and  reinsurance  capacity,  and  both 
capacity  and  cost  of  insurance  reinsurance  may  become  an  issue.’  To  this 

100   Lloyds List (2008), CLIA joins with Marsh in online insurance launch. Monday 28 January 2008. 
101   UK DfT (2012), Impact Assessment for: Domestic legislation implementing EU Regulation 392/2009 on the liability of 

carriers of passengers by sea in the event of accidents. 09/07/2012. 

102   European Parliamentary Research Service (2015), Ex post Impact Assessment on the Implementation and Effects of the 

Third Maritime Safety Package. Study for the European Parliamentary Research Services, October 2015. 

82 

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date,  such  an  accident  has  not  happened,  so  that  the  validity  of  this 
assumption cannot be verified. 

The  UK  government’s  consultation,  which  it  held  alongside  its  2012  ex  ante 
103
study,  indicates  that  out  of  34  stakeholders  invited,  only  five  responded 6 F
who  reported  that  no  monetised  estimate  of  the  potential  costs  and  benefits 
could be made. 
On  the  whole,  while  literature  does  not  provide  for  detailed  reviews  of 
insurance  costs  before  and  after  the  regulation,  recent  stakeholder  papers 
suggest  little  impact.104  For  domestic  shipping,  literature  suggests  data 
availability  is  too  limited  for  any  quantitative  estimate  (See  for  example  the 
UK impact assessment for raising LLMC limits for domestic shipping).105 

In  relation  to  premium  levels,  interview  findings  deliver  the  following 
understanding: 

  At  the  side  of  shipping  companies,  an  impact  on  insurance  premiums 
was  expected.  As  far  as  interviewees  are  concerned,  however,  this 
cannot  be  substantiated,  and  most  interviewees  state  that  no,  or 
hardly any change of premiums was  observed. A main reason for this 
given is that premiums were already being adjusted in response to the 
pending  entry  into  force  of  the  Athens  Protocol  2002  (and  the  IMO 
Resolution  and  Guidelines  agreed  by  the  IMO  Legal  Committee  in 
2006).  Passenger  cover  limits  were  increased  thus  affecting  the 
premium  levels  as  well.  The  entry  into  force  of  the  Regulation  on  31 
December 2012 did not have any additional impacts. It can be argued 
whether  this  statement  holds  for  all  countries,  since  the  Athens 
Protocol  was  not  ratified  in  all  Member  States  at  the  same  time  (see 
Section 3.3); 

  An  additional  reason  for  premiums  not  to  have  changed  that  was 
raised  by  interviewees,  was  the  fact  that  the  insurance  market  is 
considered  highly  competitive,  and  insurers  indicate  that  raising  their 
premiums would have negatively affected their market positions; 

  Financial 

information 

is 

confidential  and 

insurance 

industry 

stakeholders were found not willing to disclose it; 

 

Interviewees  note  that  the  level  of  insurance  premiums  not  only 
relates to passenger numbers but also to a variety of  risk factors and 
formulae, including specific characteristics (e.g. ship type, age, trading 
route,  ship  management,  safety  record,  historical  claims  record).  It 
may  well  be  that  ship-owners  have  taken  operational  measures  to 
improve their safety profile as a means to absorb part of the insurance 
premium  increase.  This  is  not  confirmed  by  the  interviewees,  but 
signals of such actions are noted in the survey (see below); 

  The  impact  on  premiums  may  have  been  smaller  for  larger  sized  ship 
owners,  as  those  will  have  more  negotiation  powers  than  smaller 
firms; 

  Another factor raised is the ‘claim culture’ in Europe compared to that 
in the USA, where claimants are incentivised to ‘play hard’ in trying to 

103   UK government response to the consultation on the implementation of regulation (EC)392/2009 on the liability of carriers 
of passengers by sea in the event of accidents and the UK’s ratification of the Protocol of 2002 to the Athens Convention 
relating to the carriage of passengers and their luggage by sea, 1974. 

104   CLIA Europe written response to survey, 24-06-2016. 
105   UK DfT (2015), Consultation on changes to domestic legislation implementing certain international maritime liability 

conventions. Including Annexed Impact Assessment. 22 December 2015. 

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83 

 
 
 
 
 
 
 
 
 
 
                                                           
get  as  much  compensation  as  possible.  This  would  raise  the  costs  of 
legal procedures and ultimately would translate into higher premiums, 
according  to  one  interviewee,  who  also  explained  that  this  aspect 
would  be  more  significant  for  international  multi-day  cruise  holidays 
than for smaller vessels operating on day excursions. Typically, as one 
interviewee  stated,  “when  a  number  of  claims  of  the  same  nature 
come in and are won by the claimant, the premium will increase in that 
respective  area”.  The  safety  record  as  well  as  the  amounts  paid  in 
previous claims are thus important factors in defining premium levels; 

  Finally,  interviewees  point  to  the  fact  that  the  insurance  market  is 
volatile  and  that  insurers  are  not  always  willing  or  able  to  provide 
insurance. For instance, smaller insurance companies that have a limit 
to  the  amounts  they  are  able  to  insure,  may  not  be  able  to  offer 
insurance  for  larger  vessels  (the  coverage  including  the  number  of 
for 
passengers  *  the 
independent  insurers  that  are  not  attached  to  P&I  clubs.  The  vessel 
and  operator  claim  history  is  usually  also  taken  into  account  in  such 
decisions; 

liability  amounts).  This  especially  holds 

 

It  is  unclear  how  the  insurance  market  will  react  to  future  war  risk 
cover  in  the  event  of  a  major  incident,  as  there  is  currently  no 
experience with such risks. Generally it is stated that war risk cover is 
receiving  increased  interest  from  ship  owners,  which  may  be  a 
increased  terrorism  and 
reflection  of  current  circumstances  of 
cybercrime attention; 

  Overall,  out  of  31  respondents  answering  this  question,  16%  (5 
respondents) state that insurance premiums have seen some increase, 
while  23%  (7  respondents)  report  a  significant  increase,  and  other 
respondents  don’t  know.  Respondents  do  not  see  any  difficulties 
(29%),  or  only  slight  challenges  (43%)  among  operators  to 
accommodate  the  required  premiums.  On  the  impact  on  passenger 
fares,  respondents  report  no  effect  (35%  of  31  respondents)  or  some 
effect  (6%),  with  the  majority  of  respondents  stating  not  to  know 
(58%).  

Figure 7.1 

Impact of the Regulation on insurance premiums 

Source, Ecorys, survey (2016). 

  How the fee is calculated: 60% of the respondents refers to a flat fee 
as  the  basis  of  calculation,  whereas  13%  mention  that  other  factors 
like  company  performance  and  safety  record,  or  a  combination  of 
these, are of influence to the insurance cost. 

As the regulation has only effectively been in force for a short period of time, 
with  claims  from  major  accidents  not  being  fully  handled  yet,  evaluation 
literature  is  scarce  if  not  altogether  absent.  However,  lessons  from 
evaluations in other sectors (aviation, rail) may be of relevance as these may 
have parallels to the maritime sector: 

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  Regulation  784/2004  on  insurance  requirements  for  air  carriers  and 
aircraft operators was the subject of a midterm review by Steer Davies 
Gleave  in  2012106.  On  premium  levels,  it  reports  a  strong  volatility, 
quoting  Aon  insurers  that  “hull  and  liability  premium  has  swung  from 
84% increases and 24% declines between 2000 and 2010”. Also they 
mention  a  succession  of  cycles  where  premiums  exceeded  claims  and 
vice  versa.  Typically  this  was  caused  by  a  factor  of  ‘low  chance  high 
impact’.  Still  price  levels  are  stated  to  be  low  and  an indicative  figure 
of  0.80  USD  (approximately  €  0.70)  for  all  basic  airline  insurance 
premiums is reported, with examples of lower premiums for short-haul 
intra-European flights. This figure covers all insurance aspects and the 
share of liability insurance is not separately given.  In terms of impact 
on  the  sector,  the  report  concludes  that  as  carriers  already  had 
significant  insurance  cover,  the  EU  Regulation  has  not  had  any 
significant impact on their costs, but that for small and niche operators 
its impacts may have been significant; 

  Regulation 1371/2007 arranges, amongst others, liability requirements 
for  railway  undertakings  in  view  of  the  rights  to  compensation  in  the 
event of death or injury, or damage to luggage. It must be noted that 
the scope of this regulation is wider than that of Regulation 392/2009. 
The  evaluation  conducted  by  Steer  Davies  Gleave  in  2012107  reports 
that  there  is  only  limited  information  on  the  efficiency  of  the 
Regulation and no data on implementation cost is given, or addressing 
aspects of the regulation that do not deal with liability itself. The report 
is  stating,  however,  that  the  implementation  costs  appear  to  have 
been  limited,  as  in  most  countries  railway  undertakings  were  already 
applying similar policies. 

All in all, estimates on the impact of the Regulation on insurance costs range 
from  zero  to  about  10  cents  per  passenger  per  carriage.  If  this  range  is 
applied  to  the  volume  of  passenger  shipping  in  the  EU  in  2012  (371  mln 
embarkations  according  to  Eurostat108),  insurance  costs  would  have  been 
impacted by at most € 37 mln per year (assuming average trips to take  one 
day). For the cruise sector, the number of passengers was 6.1 mln in 2012109, 
and if an average cruise duration of one week is assumed, this would imply a 
maximum  increase  of  insurance  costs  of  about  €  4.3  mln  for  this  sector.  As 
the  Eurostat  embarkation  data  include  cruise  as  well  as  ferry  passengers, 
adding  up  these  figures  would  result  in  double-counting,  and  a  reasonable 
estimate  of  the  total  insurance  impact  would  be  between  zero  and  €  41  mln 
per  year.  Based  on  the  literature  and  interviews,  it  is  concluded  that  the 
actual  cost  increase  will  probably  be  at  the  lower  end  of  this  range,  also  as 
insurers  have  indicated  strong  competition  in  their  market,  limiting  their 
abilities of raising premiums. 

When  comparing  this  increase  to  overall  shipping  costs,  the  impact  is 
considered  as  very  small.  For  example,  a  large  ferry  operator  such  as  Stena 
line  has  34  vessels  in  operation,  carrying  some  7  mln  passengers  per  year 

106   Steer Davis Gleave, 2012, Mid-term evaluation of Regulation 785/2004 on insurance requirements of air carriers and 

aircraft operators. Final Report for DG MOVE, July 2012. 

107   Steer Davis Gleave, 2012, Evaluation of Regulation 1371/2007. Final Report for DG MOVE, July 2012. 
108   Eurostat Database (accessed 28-09-2016), Passengers embarked and disembarked in all ports by direction annual data. 
Figure for 2012 amounts to 371.441.000, which is a decline from over 400 mln before 2009, and which is increasing again 
to 378 mln by 2014. 

109   CLIA Europe, http://www.cruising.org/docs/default-

source/research/clia_europe_statistics_and_markets_2014.pdf?sfvrsn=2. 

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85 

 
 
 
 
 
 
 
 
 
                                                           
and has a turnover of 12,400 mln SEK (€ 1.3 bln). If insurance premiums for 
their operations would increase by € 0.10 per passenger (the high end of the 
estimate  range),  this  would  affect  its  overall  turnover  by  some  0.05%,  or  a 
little  higher  if  premiums  are  based  on  ship  capacity.110  Applying  this 
calculation to other large ferry operators  such as DFDS or Grimaldi results in 
similar low percentages. 

2. Certification costs to be paid to authorities 
Ship owners need to acquire certification providing evidence that they comply 
with  the  regulation  (i.e.  have  the  required  liability  insurance  in  place). 
typically, Member State authorities charge fees for the issuing and renewal of 
such certificates.  

Administrative  costs  to  be  made  (the  costs  of  acquiring  certificates  from 
authorities)  are  generally  considered  low  although  a  wide  range  of  fees  is 
quoted, ranging from € 26 to about € 166.111  

If  one  would  assume  an  average  of  €  100  per  certificate,  then  the  overall 
yearly  costs  for  922  domestic  vessels  (See  Section  3.4))  would  be  around  € 
0.1  million,  an  insignificant  amount  compared  to  the  increase  of  insurance 
premium costs of (between zero and) € 41 mln as presented above. From the 
survey and interviews, it is concluded that these fees are to cover the costs of 
the authorities issuing the certificates. 

3. Administrative burden for ship owners 
Having  to  comply  with  the  Regulation  places  some  effort  on  the  side  of  the 
ship  owners,  in  terms  of  ensuring  that  insurance  is  in  place,  application  of 
certificates, and handling claims in accordance with the regulation. 

On  the  side  of  ship  owners,  interviewees  point  to  the  fact  that,  in  most 
countries, prior to the Liability Regulation entering into force they also had to 
spend staff time for insurance and claims arrangements, and the changes due 
to the Liability Regulation itself have not really affected this. Even more so, as 
the  regime  has  created  a  harmonisation  within  Europe,  for  companies 
operating  internationally,  findings  from  interviews  suggest  that  it  may  have 
reduced  their  administration  costs.  The  same  is  said  for  handling  claims, 
which  may  have  rather  become  more  efficient  than  prior  to  the  Regulation 
(see under benefits section 6.1.2 hereafter). 

It  is  therefore  concluded  that  the  Regulation  has  had  no,  or  only  negligible, 
impact on the administrative burden for ship owners. 

4. Costs of adapting operations 
In advance of the Regulation entering into force, it has been argued that the 
Regulation  could  stimulate  ship  owners  to  adapt  their  operations  procedures 
in  view  of  increasing  safety,  thus  lowering  liability  risk.  This  assumption  is, 
however,  not  confirmed.  Rather,  respondents  to  the  survey  as  well  as 

110   Figures taken from Stena Line website, http://www.stenaline.com/en-GB-corp/corporate. 
111   Figures taken from the Survey, figures available for 5 countries. In the Netherlands, the tariff is € 133 per certificate (per 
year), https://www.ilent.nl/onderwerpen/transport/visserij/sportvissersvaartuigen/passengers_liability_certificate/. 

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interviewees  indicate  that  the  safety  culture  within  the  maritime  passenger 
sector,  and  even  more  so  in  the  cruise  segment,  already  was  of  a  very  high 
standard.  Most,  if  not  all  respondents,  report  that  the  Regulation  has  not 
affected  the  operational  procedures  of  the  sector.  Only  5  out  of  38  (13%) 
report that it has led to organisations implementing actions to improve safety 
and  security.  There  are  no  indications  of  extra  costs  which  have  been 
incurred. 

Figure 7.2 

Operational implications of the Regulation 

Source, Ecorys, survey (2016). 

Domestic shipping and the costs associated to ships of category C and 
D 

  As a consequence of the above, according to interviewees, the impact 
on  costs  would  be  larger  for  smaller  operators.  Typically  small 
ferry/cruise  operators  active  regionally  rather  than  EU  wide  or  global 
have  a  smaller  fleet  and  smaller  ships,  and  less  staff.  For  them  the 
Regulation may have had a relatively larger cost impact. This would be 
an argument for some interviewees not to include classes C and D, as 
these  are  usually  operated  by  smaller  companies.  On  the  other  hand, 
smaller  ship  operators  will  typically  not  arrange  their  insurance 
directly,  but  have  their  agent  or  broker  deal  with  insurers  along  with 
other  insurance  requirements  to  ship  owners.  Administrative  costs  for 
small  ship  owners  would  thus  be  absorbed  in  the  efficiency  of  (larger 
sized)  insurance  brokerage  firms.  Further  to  this  it  was  found  that  in 
some  countries  that  have  not  included  Class  C  and  D  ships  under  the 
scope, national legislation is in place that addresses passenger liability 
aspects for these segments (see Section.3 and Annex 12); 

 

It  is  also  noted  that  a  distinction  between  domestic  and  international 
routes would be likely, as the latter were already required to follow the 
1974  Convention.  In  regard  to  domestic  routes,  interviewees  point  to 
the  distinction  between  commercially  operated  routes  and  public 
service obligations, where the latter are regulated through concessions 
in which there may or may not be a clause for responding to legislative 
changes  (which  would  be  relevant  in  general,  not  just  in  view  of  the 
Liability Regulation). In any case, no data on fares before and after the 
Regulation  entered  into  force  are  known,  and  interviewees  report  no 
impacts in this regard; 

  The fact that the regulation extends to domestic shipping, as opposed 
to the Athens Convention, may thus mean an increase of costs, which 
however  depends  on  whether  there  were  liability  regimes  in  place  for 
domestic  shipping  at  national  level.  As  shown  in  Section  3,  a  number 
of Member States has  national regimes in place addressing passenger 
liability of domestic shipping, and only the levels of coverage may have 

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87 

 
 
 
 
 
 
 
 
 
 
changed  (which  in  the  case  off  the  UK  has  meant  an  increase,  thus 
likely implying an increase  of premiums as  well). Particular concern is 
raised  for  niche  categories  like  heritage  shipping,  a  category  also 
identified has affected stronger in the aviation liability regime. 

As  illustrated  in  Chapter  3,  the  Regulation  extends  to  domestic  shipping  of 
Class C and D ships in only a few Member States (Denmark, the Netherlands 
and  Sweden).  The  cost  impacts  analysed  above  apply  to  these  categories  as 
well, but available data does not provide sufficient basis to calculate the costs 
of implementing the Regulation for these categories. 

Interviewees have argued that for ferry operators active in segments of Class 
C  and  D  ships,  the  Regulation  would  have  larger  impacts  than  for  large 
international operators, because small operators have much smaller fleets and 
typically  insurance  costs  make  up  a  larger  share  of  their  operations.  Also, 
some  interviewees  argued,  the  negotiating  power  of  large  international 
operators is larger than for small operators, thus resulting in higher insurance 
premiums  for  the  smaller  operators.  On  the  other  hand,  while  large 
companies  with  large  fleets  are  limited  in  their  choice  of  insurers  to  the  P&I 
clubs able to carry the high liability amounts which for large cruise ships can 
be  more  than  €  1  bln),  small  operators  can  choose  also  other,  smaller 
insurers,  and  typically  will  work  through  insurance  brokers  as  to  minimise 
their  administrative  burden.  Further  to  this,  liability  insurance  is  usually 
arranged  in  packages  addressing  other  maritime  insurance  requirements  as 
well, thus benefiting from efficiency gains. 

Although  figures  on  passengers  carried  by  Class  C  and  D  ships  are  lacking, 
one  can  assume  that,  as  these  ships  operate  on  shorter  distances,  they  will 
serve at higher frequencies, and will carry higher numbers of passengers per 
unit  of  operation.  Risks  may  be  rated  lower  as  they  operate  in  more  quiet 
waters,  while  more  frequent  in-port  operations  may  pose  an  increased  risk 
compared to longer voyages. All in all, such factor might balance out resulting 
in  similar  average  insurance  premiums  per  passenger/day  on  board  Class  C 
and D ships. 

As  operators  of  Class  C  and  D  ships  are  generally  smaller  firms,  annual 
reports are not widely published so that cost structures cannot be assessed. 

It is noted in literature and also by interviewees, that in various countries that 
have not included Class C and D ships yet, alternative national legislation on 
liability  is  in  place.  Therefore,  the  extra  cost  of  the  Regulation  would  be 
minimal and only depend on the coverage limits and any exemptions in place. 

Costs for authorities 
Authorities  responsible  for  implementing  the  Regulation  are  also  faced  with 
costs,  in  particular  costs  of  issuing  certificates,  of  monitoring,  and  of 
enforcement. Administrative costs on the side of authorities for the issuing of 
certificates  are  typically  rated  around  0.5  hours  per  certificate,  an  amount 
that  interviewees  consider  as  very  reasonable.  The  fees  charged  to  ship 
owners  are  typically  intended  to  cover  these  costs,  so  that  no  net  costs  for 
authorities  remain.  Additional  costs  for  authorities  concern  inspections  which 

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are  usually  part  of  the  normal  Port  State  Control  inspections.  From  the 
interviewees who touched upon this point, it appears that the addition of one 
extra certificate under these inspections adds only insignificant to the costs of 
inspections. 

The main costs for authorities relate to monitoring and enforcement.  

  A Swedish government report providing an  ex ante assessment of the 
impacts of the Regulation, indicates a cost increase to Swedish courts 
which  the  courts  estimate  at  500,000  SEK  (€  52,000)  annually,  but 
which the government considers much lower. No cost increase for the 
Coast  Guard  who  is  to  implement  and  enforce  the  Regulation  was 
expected.  The  report  states  not  to  expect  any  significant  increase  of 
premiums, as the majority of ships already needed to have coverage in 
place before the Regulation entered into force;112 

  The  costs  to  comply  with  the  Regulation  are  estimated  as  very  small, 
with some respondents reporting 0.5-1 FTE and others stating that this 
has  had  no  impact  on  their  staffing.  Noting  that  54%  of  the 
respondents are representing government authorities, this could be an 
indication of the implementation cost at the side of the Member States. 
They  can  however  not  distinguish  between  activities  relating  to 
certification and enforcement, and activities relating to the handling of 
accidents. The time effort of issuing certificates are typically given as 1 
day,  with  answers  ranging  from  0.1  day  to  4  days  for  first  time 
certification, and 0.1 to 2 days for renewals. 

From the survey responses by Member States, an average of 0.5 to 1 FTE per 
year  per  Member  State  is  found.  It  is  noted  that,  on  the  one  hand,  several 
interviewees  consider  this  estimate  too  low  as  it  does  not  take  account  the 
additional efforts of ship’s inspections in port. On the other hand, as in many 
Member  States  already  insurance  certificates  were  issued  prior  to  the 
regulation  entering  into  force,  the  required  extra  staff  time  would  be  lower. 
Therefore, the indicated extra effort is considered a reasonable estimate. One 
would expect the effort to vary with the annual number of ships to be certified 
as well, but the responses from Member States do not show such correlation. 

Applying the Standard Cost Model (SCM) to these numbers of FTE per Member 
State  gives  a  cost  of  approximately  €  35,000  to  €  70,000  per  Member  State 
per  year113,  or  about  €  1  mln  to  €  2  mln  for  all  Member  States  together. 
Obviously  the  cost  impact  will  be  lower  than  average  in  countries  with  lower 
salary  costs  of  civil  servants  and  higher  in  countries  with  higher  average 
salaries. 

Costs for passengers 
In  ex  ante  studies,  as  well  as  in  evaluations  of  liability  regulations  in  other 
transport sectors, it has been argued that cost increases for  operators would 
be  passed  on  to  passengers  through  fare  increases.  However,  insurance 
premiums were hardly raised, and no impact on fares has been observed.  

112   Swedish government, 2015, Regeringens proposition 2014/15:95 Förstärkt skydd för fartygspassagerare, 12 March 2015. 
113   Derived from Regulation (EU) no 423/2014, assuming a mix of staff grades. 

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89 

 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
While  the  impacts  on  premiums  is  thus  considered  small  or  invisible,  its 
subsequent  impact  on  passenger  fares  would  even  be  smaller.  Interviewees 
also  report  that,  compared  to  other  factors,  the  costs  of  overall  insurance  is 
only  a  small  share  of  shipping  costs,  up  to  a  few  percent  (all  insurance,  not 
just  for  passenger  liability).  For  instance  fuel  costs,  a  significant  part  of 
shipping  costs,  have  reduced  sharply  with  oil  price  decline  over  the  past 
years. Meanwhile, as regards the cruise sector, over the past 5 years the size 
of cruise ships has increased thus reducing the cost per passenger. 

As a result, it is concluded that, so far, costs for passengers in terms of fare 
levels, have not been affected by the Regulation. 

7.1.2  Benefits of implementing the Regulation 
A  regulation  can  be  considered  efficient  if  its  objectives  are  achieved 
(effectiveness)  against  reasonable  cost.  Therefore,  to  assess  the  benefits,  a 
review  of  its  effectiveness  is  an  important  starting  point  (see  Section  5).  In 
addition,  the  Liability  Regulation  may  have  had  other  benefits,  in  particular 
through  impacts  on  operating  costs  (savings).  The  latter  is  the  case  in 
particular as regards the costs of handling liability claims. 

Benefits resulting from effectiveness 
The  Liability  Regulation  has  four  objectives,  as  indicated  in  Section  2.1. 
Achieving those objectives was expected to create benefits in the areas of: 

  Passenger rights in the event of accidents: largely successful; 

  A level playing field among ship operators: less successful; 

 

Incentives for better safety performance: not successful; 

  A  more  balanced  framework  of  passenger  rights  across  transport 

modes: largely successful. 

As  concluded  in  the  previous  chapter,  the  regulation  has  been  largely 
successful in improving passenger rights protection and in creating a balanced 
framework  of  passenger  right,  but  less  successful  in  further  levelling  the 
playing field among operators. It is evaluated as not effective in incentivising 
a  better  safety  performance.  The  previous  chapter  also  indicates  that  no 
quantification of the effectiveness could be made due to lack of data. 

Benefits from improved passenger rights 
Achieving  improved  passenger  rights  is  a  benefit  in  itself,  and  the 
effectiveness evaluation has shown that the regulation has been successful in 
contributing to this, in terms of 

  Significantly raising the liability limits (a factor 2 or more, see Sections 

3.2 and 3.4) 

  Reducing  uncertainties  due  to  the  variations  in  liability  levels  and 
regimes in place in EU Member States before the Regulation (again see 
Section 3.4). 

The  result  is  highly  appreciated  by  the  stakeholders.  Such  a  benefit  is  very 
important, and the survey, as well as the case studies, show that passengers 
have benefited from higher compensation limits, advance payment and faster 

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settling of claims. Indicators identified in our evaluation framework to quantify 
this  measure  included  number  of  complaints  received  by  authorities  and/or 
consumer  representing  agencies  (a  reduction  of  complaints,  or  a  high 
satisfaction  level  of  addressing  complaints),  and  the  effort  (hours  of  time, 
number of forms to fill) of passengers to claim their compensation 

However no data on the number of claims or the duration of their handling, on 
the  pay-out  of  compensation  or  advance  payment  could  be  provided  by 
authorities  nor  by  passenger  representing  agencies.  Also  other  stakeholders 
consulted did not have such data available. 

the 

As  a  side  effect  to  this,  findings  from  the  interviews  point  to  the  additional 
benefit  for  passengers  of  experiencing  less  ‘hassle’.  The  regulation  has 
improved 
to 
harmonise/standardise  the  settling  of  claims,  as  well  as  the  more  automatic 
provision  of  information,  advance  payments,  etc.  It  has  also  helped  to  ease 
the process that passengers/victims need to go through when confronted with 
an accident. 

liability  grounds  and  has  helped 

clarity 

for 

The appreciation of this benefit can be confronted with the amount of  liability 
complaints  received  by  ship  operators  or  authorities.  Specifically,  no 
complaints  have  been  received  since  the  introduction  of  the  Regulation.  A 
comparison  with  complaints  prior  to  the  entry  into  force  of  the  Regulation 
could not be made, as no consistent time series is available. 

Overall, and in line with the assessment of the effectiveness of the Regulation 
in respect of passenger rights, the benefits in this category are considered to 
be significant. 

Benefits from improved level playing field 
The  instrument  of  an  EU  Regulation  provides  a  powerful  mechanism  for 
achieving  harmonised  legislation  across  the  EU  Member  States.  In  view  of 
liability,  the  Regulation  is  said  to  have  contributed  to  ratifying  the  Athens 
Convention,  thus  achieving  a  level  playing  field  for  liability  in  international 
shipping.  From  the  side  of  the  passenger  shipping  industry  (ship  operators), 
this is considered a significant benefit, as it: 

  Provides  a 

level  playing 

field  among  operators  thus  reducing 
inequalities  in  competition  within  the  sector.  As  one  interviewee 
mentioned, the differences in operations between geographic areas are 
reduced,  making  it  easier  to  compete,  access  new  markets,  etc.  An 
example  from  the  cruise  market  was  that  competition  for  tourists  is 
made  more  level  as  all  operators  need  to  include  in  their  offers  the 
same liability coverage, irrespective  of  where they  operate. While this 
was appreciated by the stakeholders consulted, it was also noted that, 
according  to  ship  operators,  passengers  usually  do  not  consult  the 
liability  coverage  ,  and  do  not  use  this  parameter  for  choosing  an 
operator;114 

  Enhances  administration  within  a  company.  For  operators  active  in 
multiple  markets,  the  harmonisation  across  Europe  may  have  eased 
their  internal  operations,  for  instance  by  aligning  the  insurance 

114   Eurobarometer 432, January 2016, 

http://ec.europa.eu/COMMFrontOffice/publicopinion/index.cfm/Survey/getSurveyDetail/search/tourism/surveyKy/2065 

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requirements  across  the  countries  of  activity,  thus  allowing  lower 
operating costs (administration costs staff time) for this ship operator. 
The extent to which such a benefit accrues depends on the size of the 
company  and  its  areas  of  activity.  As  compliance  to  the  Liability 
Regulation  is  only  a  small  part  of  the  administrative  activities  of  a 
company, the benefit cannot be isolated or quantified; 

 

Improved  transparency  -  this  can  be  seen  as  a  benefit  both  for 
operators  and  for  passengers.  For  passengers,  as  mentioned  above, 
more clarity over rights and procedures reduces their ‘burden’ in case 
of  accidents.  For  operators,  it  reduces  their  uncertainty  over  liability 
claims that they may be confronted with. 

For domestic shipping, it has contributed similarly as regards classes A and B, 
but  so  far  only  partially  as  12  Member  States  have  postponed  application  of 
the Regulation for categories A and/or B till end of 2016 or end of 2018 (see 
section 3.3). The regulation has only marginally contributed to a level playing 
field for classes C and  D as these are  either deferred in most countries,  or a 
range  of  exceptions  is  applied,  as  explained  in  the  previous  chapter. 
Therefore, the benefits of an improved level playing field remain at the side of 
international shipping and domestic shipping of classes A and B. On the other 
hand, it is also observed that operators active in the markets of categories C 
and  D  typically  are  smaller  operators  only  active  within  their  own  country. 
Therefore,  assuming  a  national  legislation  on  liability  is  in  place,  within  their 
market a level playing field already  exists.  Only for those  operators active in 
multiple countries and/or active also on A and B category markets, extending 
the scope would provide additional benefits. 

Benefits from improved passenger safety performance 
Although  survey  respondents  indicate  a  positive  impact  of  the  Regulation  on 
safety  and  security  performance,  most  interviewees  state  that  there  is  no 
impact  at  all.  Their  main  argument  is  that  first  of  all  the  safety  standards  in 
passenger shipping are believed to be already very high, since a good safety 
image  is  considered  crucial  for  an  industry  with  such  high  visibility  in  the 
consumer market, and second that other legal requirements (SOLAS and ISPS 
Code Port State Control in particular) are providing more of an incentive than 
the Liability Regulation. Further to this, attention to on-shore activities safety 
of cruise passengers is receiving increased attention from operators. 

On the other hand, interviewees consulted had not been faced with accidents 
that called upon the Liability Regulation, suggesting that at least the accidents 
have  not  increased.  As  stated  earlier,  the  data  on  accidents  reported  by 
EMSA,  while  showing  26  lives  lost  and  544  people  injured  over  the  period 
2013-2015,  do  not  allow  a  proper  analysis  of  the  numbers  before  and  after 
the entry into force. 

Hence the benefit of improved passenger safety performance is considered to 
be limited. 

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Benefits  from  a  more  balanced  framework  of  passenger  rights  across 
transport modes 
While the objective of the Regulation also was to further harmonise passenger 
rights  across  modes  of  transport,  conclusion  from  the  previous  is  that 
although  it  has  certainly  raised  the  level  of  passenger  rights,  the  benefit  of 
these  rights  being  more  balanced  with  those  applicable  in  other  modes  of 
transport is less clear. This may be due to the fact that passengers choosing 
for a ship journey do so without necessarily considering  the passenger  rights 
they would have when choosing another transport mode. 

The focus of the objective on balanced passenger rights lies with the right to 
information,  the  rights  to  special  compensation  for  persons  with  reduced 
mobility  and  the  right  to  an  advance  payment.  The  main  benefit  achieved  in 
this  regard  is  that  rights  have  been  harmonised  across  EU  Member  States, 
including  domestic  shipping  categories  A  and  B.  Besides  the  general 
improvement  of  passenger  rights  (addressed  above)  the  fact  that  they  have 
been harmonised across countries can be considered an additional benefit, as 
travellers  are  now  treated  equally  irrespective  of  where  they  travel  (in  the 
EU).  Such  benefit  can  be  expressed  by  the  level  of  compensation  offered 
(harmonised through the Regulation) but also the equal treatment in terms of 
handling claims and paying advances, which could be measured through time 
required  for  receiving  payment,  and  complaints  received  on  these.  The  main 
benefit  here  is  the  improved  clarity  transparency,  and  due  to  the 
harmonisation the increased certainty among passengers that their rights are 
ensured  irrespective  of  where  they  make  their  boat  trip.  Unfortunately, 
however, none of the stakeholders consulted were able to provide quantitative 
data on these indicators. 

Finally,  in  the  context  of  harmonisation,  a  benefit  identified  in  relation  to 
passenger  rights  is  that  the  Regulation  is  believed  to  have  contributed  to 
easier enforcement. For authorities, inspecting foreign vessels, the regulation 
has changed the requirements, and harmonised them across Europe. However 
as  inspections  are  a  Member  State’s  responsibility,  this  has  not  provided 
efficiency benefits to individual inspectorates. 

Savings in claims handling 
The  Regulation  is  reported  to  have  had  an  impact  on  the  costs  of  handling 
claims  following  accidents  or  incidents,  in  particular  due  to  its  provision  of  a 
uniform  approach  across  Europe,  and  including  domestic  shipping  in  this 
approach  as  well.  Lawyers  interviewed  suggest  that  the  Liability  Regulation 
has  helped  smoothening  the  claim  procedure,  thus  lowering  its  cost.  Two 
reasons are given, firstly, being that the Regulation has provided more clarity 
regarding  under  which  conditions  the  ship  owner  is  liable  and  which 
jurisdiction  applies,  reducing  disputes  between  claimants’  lawyers  and  ship 
owners,  and  secondly,  that  the  Regulation  is  said  to  have  contributed  to  an 
increased  willingness  to  settle  claims  outside  of  court,  thus  avoiding  lengthy 
court  cases  and  associated  high  costs.  In  addition,  Member  State  authorities 
and ship owners confirm this assumption, while the settling of claims outside 
of court is also observed in the case studies, which have shown that accidents 
involving  multiple  countries  (international  shipping)  and/or  passengers  from 
multiple nationality created complexities in handling claims. This statement is 

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confirmed from the effectiveness analysis in the previous chapter, concluding 
that  the  strengthened  passenger  position  improves  the  chances  of  settling 
claims. 

This reasoning should, however, be taken with care, as respondents from the 
survey  do  not  have  personal  experience  in  applying the  Regulation in regard 
of  dealing  with  liability  claims,  and  a  comparison  with  claims  related  to  the 
regime prior to the Regulation is not  possible as data on claim costs prior to 
the  Regulation  are  not  available,  and  claims  under  the  Regulation  have  not 
been  completed  yet.  The  case  studies  conducted  indicate,  however,  that  the 
time  required  for  handling  claims  has  been  shortened  compared  to  what  it 
would  have  been  without  the  Regulation  in  place.  For  example,  case  study 
interviewees  state  that  individual  claimants  (passengers)  have  their  claims 
settled several years faster than before. 

It is noted here that a distinction between international and domestic accident 
claims  must  be  made.  For  international  claims,  in  most  countries  the  Athens 
Convention/PAL would be followed had the Regulation not been there, and the 
impact of the Regulation on claims handling is limited. For domestic cases, the 
Regulation is considered a major improvement as the case studies show, but 
this benefit cannot be monetized. As an example, if a lawyer would charge € 
20,000 for handling a claim (which would in practice depend on duration and 
complexity)  and  the  duration  of  the  claims  procedures  is  shortened  by  half 
(from the case studies it can be seen that cases can take several years to be 
settled), a significant amount of costs is saved for each individual case (in the 
order of € 10,000 in this example). 

Opposite  to  what  was  stated  by  interviewees,  part  of  the  respondents  to  the 
survey  report  an  increase  of  the  duration  of  legal  procedures  after  accidents 
(12%)  as  well  as  an  increase  of  the  number  of  cases  ending  up  in  court 
procedures (17%). This might be due to the fact that most respondents have 
not been involved in claims handling and can only indicate their expectation. 
No particular country differences could be derived from the responses. 

Overall, it seems fair to conclude that the Regulation has helped to lower the 
costs  of  handling  claims,  both  at  the  side  of  the  ship  owners,  insurers  and 
their  lawyers,  and  at  the  side  of  the  authorities  (courts).  A  quantification  of 
these  benefits  can  however  not  be  made  as  quantitative  data  on  actual 
changes (e.g. numbers of claims handled, duration, pay-out of compensation 
or  advance  payments,  as  well  as  changes  in  accident  levels  since  the 
Regulation entered into force,  could not be obtained from any of the sources 
consulted (literature, interviews, surveys, case studies). This relates partly to 
the  fact  that  the  Regulation  has  only  been  in  use  for  a  short  period  of  time 
and  experience  with  it  is  limited.  For  instance,  the  stakeholders  interviewed 
have  not  been  engaged  in  liability  claims  in  the  context  of  the  Regulation 
since  its  entry  into  force,  and  the  accident  case  studies,  which  are  very 
specific  and  cannot  be  generalised  in  this  regard,  largely  are  still  in  the 
handling process115.  

115   This is partly due to the fact that each accident is different.  

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7.1.3  Are costs reasonable and proportionate in relation to the benefits 
The total costs of implementing the Regulation are estimated at between zero 
and € 43 million per year, the majority of which concern costs for ship owners 
in  the  form  of  an  increase  of  liability  insurance  premiums  to  be  paid,  the 
remainder  relating  to  cost  increases  for  authorities  implementing  and 
enforcing the regulation. Overall, this amount is considered low, both in terms 
of  how  it  is  perceived  among  stakeholders,  and  objectively  in  terms  of  the 
relative  impact  on  the  passenger  shipping  sector  as  a  whole,  where  this 
amount is negligible compared to overall operating costs and revenues (in the 
order of 0.05%). 

It  has  not  been  possible  to  quantify  the  benefits  due  to  lack  of  data  on  the 
levels  of  compensations  provided  and  the  duration  of  legal  proceedings, 
however,  it  is  still  reasonable  to  assume  that  they  outweigh  the  costs 
especially  as  the  costs  are  fairly  low  overall  and  make  up  a  minimal 
contribution  to  overall  shipping  costs.  This  conclusion  is  supported  by  the 
survey respondents. 

7.2  Conclusion on efficiency 

The costs of implementing the Liability Regulation are low. Estimates suggest 
annual costs to be between zero and approximately € 40 million, which mainly 
concerns  the  increase  of  insurance  premiums  due  to  the  raised  liability 
ceilings.  Other  cost  elements  such  as  certification  costs,  administrative 
burdens  and  costs  of  adapting  operations  are  considered  to  be  only  a  small 
fraction  of  this  amount.  Additionally,  costs  for  MS  authorities  to  issue  the 
relevant  certificates  are  considered  to  be  on  average  approximately  between 
€ 35,000 and € 70,000 per Member State per year. Additionally, no impact on 
passenger  fares  has  been  identified.  This  amount  represents  only  a marginal 
share  of  the  industry’s  size  (in  the  order  of  0.05%).  Stakeholders  consulted 
confirm the costs to be minimal.  

The benefits are diverse. Besides the achievement of objectives (in particular 
improved  passenger  rights  and  an  improved  level  playing  field,  as  illustrated 
above),  also  savings  in  claims  handling  as  a  result  of  the  Regulation  are 
reported.  However,  these  benefits  could  not  be  quantified.  Overall,  the 
Regulation is considered to be efficient, as it is largely achieving its objectives, 
thereby creating benefits (which could, however, not be quantified due to lack 
of  data  on  the  levels  of  compensations  provided  and  the  duration  of  legal 
proceedings), against relatively low costs.  

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8 

Coherence 

This  chapter  presents  the  conclusions  of  the  analysis  related  to  the  defined 
coherence  evaluation  questions,  based  on  the  results  of  desk  research, 
interviews,  stakeholder  survey  and  case  studies.  Each  evaluation  question  is 
scored on its underlying evaluation criterion.  

8.1  Q7: Coherence with EU maritime safety and passenger right policies 

Q7: To what extent does the Regulation fit in well within the framework of the 
EU maritime safety policy and passenger  rights policy and, more specifically, 
within  the  Union’s  approach  to  transport  operators’  liability?  Are  there  any 
overlaps, gaps or inconsistencies? 

8.1.1  To  what  extent  does  the  Regulation  fit  in  the  EU  maritime  safety 
policy? 
The Liability Regulation has been adopted as part of the Third Maritime Safety 
Package.  Together  with  six  other  Regulations  and  Directives116,  this 
Regulation  aims  to  improve  maritime  safety  throughout  the  EU  and  reduce 
substandard  shipping.  In  order  to  achieve  these  overarching  goals,  the  Third 
Maritime Package puts emphasis on four topics: 
1.  The eradication of substandard vessels; 
2.  The emphasis on accountability, responsibility and liability; 
3.  The combination and integration of data; 
4.  Monitoring and reporting requirements. 

The  Liability  Regulation  relates  especially  to  the  second  topic,  as  the 
Regulation  focuses  on  introducing  a  liability  regime  for  carriers  in  case  a 
passenger  dies  or  is  injured  during  the  journey.  Besides  the  Liability 
Regulation  other  regulations  and  directives  focus  on  liability  aspects 
(especially  Directive  2009/20/EC,  Directive  2009/17/EC  and  Regulation 
391/2009). Although all regulations and directives lay down rules on liability, 
they  all  focus  on  different  actions  causing  liability  of  ship  owners.  The 
differences,  however,  do  not  lead  to  coherency  problems  between  the 
different instruments of the EU maritime safety policy.  

During  the  ex-post  evaluation  of  the  Third  Maritime  Package117,  the  Liability 
Regulation was only in force a couple of years. The evaluation concluded that, 
at that time, it was not possible to indicate whether or not the Regulation had 
effectively contributed to reaching the set goals. The evaluation, however, did 
conclude  that  the  Regulation,  together  with  several  other  Regulations  and 
Directives,  did  contribute  to  a  more  equal  share  of  the  burden  of  measures 

116   Directive 2009/21/EC (on Flag State Control), Directive 2009/16/EC (on Port State Control), Directive 2009/15/EC and 
Regulation 391/2009 (on ship inspection and survey organization), Directive 2009/17/EC (on vessel traffic monitoring), 
Directive 2009/18/EC (on investigation of maritime accidents) and Directive 2009/20/EC (on insurance for ship-owners for 
maritime claims). 

117   European Parliamentary Research Service (2015). 

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among  maritime  players.  The  set  of  rules  also  makes  it  increasingly  difficult 
for ship-operators to avoid the applicable rules.  

The  findings  of  the  previous  evaluation  are  supported  by  stakeholders’  views 
obtained  during  this  evaluation.  One  stakeholder  explicitly  referred  to  the 
coherence between the Liability Regulation and the EU maritime safety policy, 
while  others  referred  to  the  coherence  in  broader  terms.  In  the  stakeholder 
survey  held,  43%  (15  respondents)  indicated  that  they  consider  that  the 
Liability Regulation is entirely in line with the EU policies on maritime safety. 
One  respondent  indicated  that  the  Liability  Regulation  is  partially  conflicting 
with  other  EU  policies  in  maritime  safety118,  while  the  remaining  19 
respondents indicated that they do not know whether or not the regulation is 
in line with the broader maritime policies. 

None of the stakeholders, both the ones interviewed and the ones responding 
to  the  survey,  mentioned  problems  between  the  Liability  Regulation  on  the 
one  hand  and  other  EU  maritime  safety  related  regulation  or  policies  on  the 
other. It therefore seems plausible to conclude that the Liability Regulation is 
coherent with other EU maritime safety related policies.  

8.1.2  To  what  extent  does  the  Regulation  fit  in  the  EU  passenger  right 
policy? 
This  evaluation  aspect  can  be  divided  into  three  aspects.  One  the  hand,  it is 
important  to  assess  whether  or  not  the  Liability  Regulation  is  coherent  with 
the overall passenger rights policy of the European Commission. On the other 
hand,  it  is  important  to  assess  if  the  Liability  Regulation  (together  with 
Regulation 1177/2010) is in line with the protection offered in other modes of 
transport. As a final step, the coherence between the Liability Regulation and 
the Travel Package Directive is discussed.  

Coherence with general passenger right policies 
The  EU  has  formulated  a  comprehensive  set  of  basic  passenger  rights119, 
which should apply to all transport modes (i.e. air, rail, waterborne, bus and 
coaches).  This  set  of  basic  passenger  rights  is  based  on  three  cornerstones; 
(i)  non-discrimination,  (ii)  accurate,  timely  and  accessible  information,  and 
(iii) immediate and proportionate assistance. Based on these cornerstones ten 
principles  have  been  formulated  which  form  the  core  of  the  EU  passenger 
rights framework. The principles are: 

1.  Right to non-discrimination in access to transport; 
2.  Right to mobility: accessibility and assistance at no additional cost for 
disabled passengers and passengers with reduced mobility (PRM); 
3.  Right  to  information  before  purchase  and  at  the  various  stages  of 

travel, notably in case of disruption; 

4.  Right  to  renounce  traveling  (reimbursement  of  the  full  cost  of  the 

ticket) when the trip is not carried out as planned; 

5.  Right  to  the  fulfilment of  the  transport  contract  in  case  of  disruption 

(rerouting and rebooking); 

118   The stakeholder did not specifically indicate where Regulation 392/2009 partially conflicts with the other maritime policies.  
119   COM(2011) 898 final. 

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6.  Right  to  get  assistance  in  case  of  long  delay  at  the  departure  or  at 

connecting points; 

7.  Right to compensation under certain circumstance; 
8.  Right to carrier liability towards passengers and their baggage; 
9.  Right to a quick and accessible system of complaint handling; 
10.  Right to full application and effective enforcement of EU law. 

For maritime transport the ten principles mentioned above are codified in two 
Regulations;  Regulation  1177/2010  and  the  Liability  Regulation.  These  two 
Regulations  need  to  be  seen  as  complementary  instruments,  where  most  of 
the  passenger  rights  are  protected  by  Regulation  1177/2010.120  The  Liability 
Regulation  focuses  on  a  limited  number  of  the  above  mentioned  passenger 
rights.  This  is  not  problematic  however,  as  the  main  aim  of  the  latter 
Regulation  is  to  lay  down  a  Community  regime  relating  to  liability  and 
insurance for the carriage of passengers by sea in the event of accidents only 
(see  Article  1  the  Liability  Regulation).  The  focus  of  the  Regulation  therefore 
lies  more  on  introducing  a  liability  scheme  for  the  carriers  and  thereby 
strengthening  passenger  protection 
focus  of  Regulation 
1177/2010 is on fulfilling the three cornerstones mentioned above. 

further.  The 

The main rights protected by the Liability Regulation are: 

  Principle 3 (right to information): 

-  This principle is laid in Article 7 which states that ‘the carrier shall 
ensure  that  passengers  are  provided  with  appropriate  and 
comprehensible information regarding their rights.’ In essence, this 
means  that  the  carrier,  amongst  others,  has  to  provide  the 
passenger  with  information  on  the  possibilities  for  compensation, 
the  maximum  limits,  the  right  to  an  advance  payment  and  the 
time frame applicable.  
  Principle 8 (right to compensation): 

-  This  principle  is  laid  down  in  Annex  I;  Articles  7  (loss  of  life  or 
personal injury) and 8 (loss of or damage to luggage) of the Annex 
give  the  maximum  compensation  limits.  Articles  3  and  5  provide 
guidance on how and when liability can be established; 

-  Article  4  of  the  Regulation  itself  explicitly  includes  the  right  for 
compensation  in  the  event  of  loss  or  damage  to  mobility 
equipment. In addition, Article 6 provides the  right of an advance 
payment. 

  The remaining principles are covered by Regulation 1177/2010. Solely 
looking at these two regulations in relation to the Commission’s policy 
to  passenger  rights,  these  two  Regulations  together  form  a  coherent 
set of rules, aiming to protect the basic passenger rights.  

120  

It should be noted that the scope of the two Regulations is different. Regulation 392/2009 applies to all ships flying the flag 
of a EU Member State, all contracts of carriage made in EU Member States or when the place of departure or destination 
is located in a EU Member State (article 2). Regulation 1177/2010 applies to passenger services where the port of 
embarkation is located in a Member State, to passenger services of which the port of embarkation is outside EU the 
territory of a Member State, but the port of disembarkation is within the territory and the service is carried out by a Union 
carrier or on a cruise where the port of embarkation is within the territory of a Member State (however articles 16(2), 18, 
19, 20(1) and 20(4) will not apply). 

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This  view  is  partially  confirmed  by  the  stakeholders  consulted  during  the 
evaluation.  Several  interviewees  are  of  the  opinion  that  the  Liability 
Regulation  fits  well  with  the  overall  EU  passenger  rights  policy121.  Others  did 
not explicitly comment on this topic. 

In the survey, 49% of the respondents (17 in total) indicated that they are of 
the opinion that the Regulation is entirely in line with the EU passenger rights 
policy.  However,  another  9%  (3  respondents)  indicated  the  Regulation  is 
partially  conflicting.  Main  points  of  concern  voiced  by  stakeholders  relate  to 
the fact that:  

  provisions  regarding  mobility  equipment  are  laid  down  in  both  the 
Liability  Regulation  and  Regulation  1077/2010.  As  the  rules  are  laid 
down  in  two  pieces  of  legislation,  this  might  lead  to  deviations  in  the 
application  of  such  rules.  To  increase  further  coherence  between  the 
two  Regulations,  both  regimes  should  be  consolidated,  which  would 
reduce the possibility of different interpretations; 

 

certain  regulations  are  read  and  explained  differently  in  different 
countries,  leading  to  different  application  of  passenger  regulation 
throughput the EU. 

Although some stakeholders voiced their concern that the Liability Regulation 
and Regulation 1177/2010 might not be fully coherent, it seems that on most 
points both regulations are in line with the overall passenger right policies of 
the  European  Commission.  Therefore,  it  is  possible  to  say  that  the  Liability 
Regulation is coherent with the overall policies. 

Coherence with passenger rights in other modes 
A second relevant point to address is whether or not the rules laid down in the 
Liability  Regulation  (together  with  Regulation  1177/2010)  are  coherent  with 
the rules laid down in other modes of transport.  

As a first general observation to the question posted above, Kirchner and his 
co-authors122  note  that  “due  to  the  similar  nature  of  many  passenger 
transports,  it  has  been  important  for  the  EU  to  strengthen  passenger  rights 
across  the  board.  However,  whether  or  not  the  rights  granted  to  passengers 
in maritime transport are  coherent with the rights granted in other transport 
modes remains a question mark.”  

In  2012  the  ex-post  evaluation  of  the  Rail  Regulation123,  an  overview  of  the 
different  regulations  was  made  and  they  were  compared  on  several  topics, 
such  as  rules  regarding  information,  security  &  liability  and  PRMs.  In  the 
comparison  Regulation  1371/2007  (rail),  Regulations  889/2002,  261/2004 
and 1107/2006 (air) and Regulation 181/2011 (bus and coach) were included. 
For  maritime  transport  only  Regulation  1177/2010  was  included  in  the 
analysis. As presented in Annex 13, Regulation 1177/2010 covers many of the 
different passenger rights aspects as laid down in COM (2011) 898, however 
the liability & security aspects are not covered by this Regulation.  

121   Stakeholders indicating that the Regulation 392/2009 fits well with the overall passenger rights framework are e.g. the 
Maritime and Coastguard Agency (UK), the Danish Ministry of Transport and the Dutch maritime network association. 

122   Kirchner, Tüngler & Martin Hoffmann (2015). 
123   Steer Davis Gleave (2012). 

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If the Liability Regulation is added to this overview (as is done in Annex 13) it 
becomes clear that the points on liability and security are covered in maritime 
transport  as  well.  On  a  high  aggregation  level  it  can  be  concluded  that  the 
Liability Regulation together with Regulation 1177/2010 are coherent with the 
passengers  rights  laid  down  in  other  transport  modes  (as  all  relevant  topics 
are addressed). 

The  comparison  also  shows  the  extent  of  the  protection  offered  between  the 
different  modes.  It  becomes  clear  that  the  actual  protection  offered  varies 
between the modes. For example, the advance payment granted in the event 
of  death  or  injury  is  at  least  €  21,000  in  rail  and  maritime  transport,  in  air 
transport it is at least € 19,000, while an advance payment in bus and coach 
transport  is  absent.  The  Commission  stated  in  the  2011  Communication  on 
passenger rights124 that: ‘in order to guarantee a fair and respectful treatment 
of passengers, the legislator has had two aims. First, to introduce a common 
set  of  passenger  rights  guaranteed  by  law  for  the  four  transport  modes. 
Secondly, to allow the necessary distinctions due to the specific characteristics 
of  each  mode  and  their  markets,  related  to  the  industries  (company  size, 
revenues  or  number  and  frequency  of  routes)  and  passengers  (length,  price 
and  conditions  of  the  trip)  to  ensure  proportionality.’  Therefore  the  offered 
passenger  protection  between  modes  can  differ  depending  on  specific 
characteristics  of  the  transport  modes.  Although  the  Commission  has  a  clear 
view  on  passenger  right  protection,  it  remains  a  topic  of  debate  between 
different  stakeholders  whether  or  not  passenger  rights  granted  in  different 
modes should be equal.  

In the ex-post evaluation of the Third Maritime Safety Package125 around 40% 
of  the  stakeholders  indicated  that  the  effect  of  the  Regulation  on  the 
comparability  with  other  modes  is  as  anticipated.  In  their  opinion,  the  rights 
granted  within  maritime  transport  are  sufficiently  coherent  with  the  rights 
granted in other modes. The remaining 60% indicated that no effect was seen 
with the entry into force of the Liability Regulation.  

Attorney  General  Jääskinen  at  the  European  Court  of  Justice126  is  not  yet 
satisfied  that  passenger  rights  are  equally  protected  in  all  modes.  He 
expressed  that  while  there  are  similarities  between  different  liability  regimes 
for  different  modes  of  transportation,  the  comparability  is  limited.  In  the 
opinion of the Attorney General, the EU still has to develop a coherent ocean-
related vision. The Liability Regulation is a noteworthy example of how Europe 
can lead in the search for new legislative developments. 

Several  academic  authors,  however,  disagree  with  the  view  that  maritime 
passenger  rights  should  fully  equal  to  passenger  rights  in  other  modes, 
notably  air  transport.  For  example,  Kroger127  touches  upon  the  fact  that  the 
sea  carrier  simply  cannot  be  subject  to  the  same  rules  as  the  air  carrier 
mainly  on  the  basis  of  the  differing  estimates  of  potential  risks  of  the 
individual  transport  mode,  the  economic  background  of  the  markets  and  the 

124   COM(2011) 898 final. 
125   European Parliamentary Research Service (2015). 
126   C-509/11 ÖBB-Personenverkehr, AG 2013. 
127   Kroger (2001). 

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101 

 
 
 
 
 
 
 
 
 
 
 
                                                           
political influence on liability clauses. This view is supported by Soyer128 who 
indicates that circumstances surrounding the transportation of passengers by 
sea and the potential risks involved are different from transportation by air. In 
air transport, the passenger is seated for most of the voyage with a fastened 
seat  belt,  while  ship  passengers  find  themselves  free  to  move  and  enjoy  a 
hotel-like  environment.129  These  views  are  in  support  of  lower  compensation 
limits  for  maritime  passengers  and  a  more  limited  liability  of  the  carriers,  in 
case  of  non-shipping  incidents.  For  a  more  elaborate  overview  of  the 
differences between passenger rights protection in air and maritime transport, 
please refer to Section 5.1.4. 

On  the  other  hand,  Kroger  also  argues  that  the  definition  of  damages  under 
the Athens Convention is notably wider than the one included in the Montreal 
Convention  (the international  Convention  forming  the  basis  for  air  passenger 
rights)130,  encompassing  mental  or  psychological  losses131.  The  same  view  is 
expressed  by  Saggerson132  who  denotes  the  fact  that  the  use  of  the  words 
“personal injury”  compared  to  “bodily injury” indicates  that  psychiatric  injury 
or  other  impairment  of  mental  faculties  are  included  under  the  Athens 
Convention.  

Where academics seem to have a rather clear view of which types of damages 
are  covered  under  the  Montreal  Convention  and  the  Athens  Protocol, 
stakeholders  consulted  seem  to  have  a  less  clear  understanding.  Several 
lawyers argue that a legal gap regarding the possible compensation of certain 
damages exists. For  example in case  of an air incident, the  ECJ  ruled133 that 
the  limit  provided  under  the  Montreal  Convention  includes  all  kinds  of 
damages (so also emotional and psychological trauma is covered). In case of 
a maritime incident, it is unclear if all kinds of damage will be covered under 
the set limit. This poses legal uncertainty amongst stakeholders. 

Furthermore,  quite  some  stakeholders  consulted  during  the  evaluation 
support  the  view  that  differences  between  the  transport  modes  are  not  an 
obstacle  for  sufficient  passenger  right  protection.  Many  indicate  that  the  fact 
that  passengers’  rights  are  protected  in  maritime  transport  and  are,  in 
general, protected in a similar way as in other modes, is more important than 
the  minor  differences  that  still  exist.  These  differences  are  inherent  to 
maritime transport according to the stakeholders.  

128   Soyer (2002). 
129   On-board the ship the passenger enjoys great freedoms. For instance, the passenger can move around freely and even 

engage in sporting activities. As such there is no great difference between passengers on-board a cruise ship and guests 
in a land-based hotel. Operators of land based holiday resorts do not face reversed burden of proof in cases where their 
guests sustain personal injury on their premises. A similar argumentation should apply to cruise operators in case of a 
non-shipping incident aboard their ships (Soyer2002). It is not fair and appropriate to expose a sea carrier to a similar 
regime as in air, as the risk on a self sustained injury in air is much lower than in sea. By applying the same liability rules, 
the sea carrier would run a much higher risk to be held liability, although he will not be able to avoid the personal sustained 
injuries of passengers. 

130   Convention for the Unification of Certain Rules for International Carriage by Air (Montreal, 28 May 1999). 
131   And thus offer a higher level of protection of the maritime passenger compared to the air passengers and more types of 

damage can be claimed in maritime transport.  

132   Saggerson (2008). 
133   C-63/09 Axel Walz versus Clickair SA. 

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All  in  all,  it  can  be  concluded  that  the  Liability  Regulation  (together  with 
1177/2010)  is  rather  coherent  with  the  passenger  right  protection  offered  in 
other modes. On minor points differences still exist, however such differences 
are not seen as major obstacles. As indicated in paragraph 5.1.4, only 9% of 
the  respondents  indicated  that  Regulation  392/2009  has  a  negative  or  very 
negative effect on reaching the objective of creating a balanced framework of 
passenger right protection.  

Coherence between the Liability Regulation and the Package Travel Directive  
One  potential  problem  referred  to  in  some  academic  literature  is  a  possible 
tension  between  the  Liability  Regulation  and  the  Travel  Package  Directive134 
The  problem  especially  arises  in  the  cruise  shipping  market,  as  cruise 
passengers  can  both  have  a  contract  of  carriage  (and  then  would  fall  under 
the  scope  of  the  Liability  Regulation)  and  a  contract  for  a  travel  package 135 
(and then would fall under the Travel Package Directive136).  

The judgment of the European Court (Grand Chamber) of 7 December 2010, 
in the joined cases C-585/08 and C-144/09 has confirmed the view that cruise 
ship  services  could  fall  under  the  scope  of  the  aforementioned  Directive  and 
thus  be  regarded  as  package  travel.  The  court  had  to  decide  –  among  other 
questions- whether a “voyage by freighter” constituted package travel for the 
purposes  of  Article  15.3  of  Regulation  nº  44/2001.  The  ECJ  ruled  that  a 
contract  concerning  a  voyage  by  freighter,  such  as  that  at  issue  in  the  main 
proceedings  in  Case  C-585/08,  is  a  contract  of  transport  which,  for  an 
inclusive  price,  provides  for  a  combination  of  travel  and  accommodation 
within the meaning of Article 15(3) of Council Regulation (EC) No 44/2001 of 
22  December  2000  on  jurisdiction  and  the  recognition  and  enforcement  of 
judgments  in  civil  and  commercial  matters.  Accordingly,  such  a  service 
fulfilled  the  necessary  conditions  for  a  package  within  the  meaning  of  Article 
2.1 of Directive 90/314. 

In view of the above, authors refer to some cases where the Courts dealt with 
the  potential  conflict  between  the  Package  Travel  laws  and  the  Athens 
Convention.137  In  Lee  vs  Airtours  Holidays  Ltd138.  the  contract  for  a  cruise 
holiday  on  Sun  Vista,  which  caught  fire  and  sank  with  passengers’  valuables 
on  board,  had  been  made  through  a  travel  agent.  The  claim  was  brought 
under Regulation 15 of the PTR, against the travel agent for inter alia loss of 
valuables.139  Judge  Hallgarten  held  that  the  Regulations  represented  an 
alternative  regime  to  the  Convention.  Insofar  as  the  Regulations  conflicted 
with UK domestic law (the law implementing an international convention), the 
regime  of  the  Regulations  must  prevail  pursuant  to  the  European 
Communities  Act.  In  case  there  was  no  express  incorporation  of  the  Athens 

134   Council Directive 90/314/EEC. 
135   Peralta (2014). 
136   According to Article 2.1 of Council Directive 90/314/EEC the term “package” means “the pre-arranged combination of at 

least two of the following: “transportation, accommodation, other tourist services not ancillary to transport or 
accommodation and accounting for a significant part of the package. The separate billing of various components of the 
same package shall not absolve the organizer or retailer from the obligations under this Directive.” 

137   Peralta (2014), Mandaraka-Sheppard (2009); Tsimplis (2009). 
138   Lee and Lee v Airtours Holidays Ltd and Airtours Plc, 26 April 2002, Central London County Court (HH) Hallgarten QC, 

(2004) 1 Lloyd’s Rep 683. 

139   The UK Package Travel, Package Holidays and Package Tours Regulations 1992. 

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103 

 
 
 
 
 
 
 
 
 
 
                                                           
Convention in the contract, the package travel rules prevailed over the Athens 
Convention  to  the  extent  that  the  two  conflicted.  However,  in  the  Norfolk 
case140, the plaintiff tried to file a suit under the package travel rules since the 
two-year  limitation  period  had  elapsed.  The  court  rejected  this  claim  by 
explaining  that  a  claim  for  any  personal  injury  suffered  aboard  a  cruise  ship 
when  the  Athens  Convention  applies  will  fall  within  the  scope  of  the 
Convention and as a consequence the claim was found time barred.  The fact 
that the package travel rules flowed from the Package Travel Directive did not 
affect  the  standing  of  the  Convention.  The  Court  also  noted  that  Athens 
Convention  was  given  the  force  of  law  in  the  UK  and  therefore  applied  even 
where there was no express reference to it in the contract.  

As  noted  by  both  Tsimplis  and  Mandaraka  Sheppard,  the  risk  of  conflict is in 
any  case  waived  in  view  of  the  Liability  Regulation  which  takes  precedence 
over  national  laws  implementing  the  Package  Travel  Directive.  On  the  other 
hand,  Peralta  in  his  Article  discusses  both  legal  instruments  and  considers 
when  it  should  be  appropriate  for  the  Package  Travel  Directive  to  take 
precedence  over  the  Convention’s  regime.  Accordingly,  Peralta  suggests  that 
the key to that question is to consider the role of transport in the services. In 
the  carriage  of  passengers,  the  transport  is  essential  and  the  “obligation  of 
result”, which involves the carriage of passengers to their destination, cannot 
be changed in that case. In contrast, in cruise shipping, transport is ancillary 
to other services. The  vessel is the destination itself and in view of that, the 
itinerary  could  change  without  significant  consequences.  That  type  of 
transport, according to the author, qualifies as a package component and the 
package travel rules should apply.  

Until  now,  no  case  relating  to  this  question  is  pending  before  the  European 
Court  of  Justice.  Therefore  no  ruling  on  EU  level  is  available  and  national 
courts remain the main source of information.  

It  should  be  noted  that  Peralta  also  refers  to  possible  repercussions  on  the 
notion of “package” deriving out of the application of Regulation 1177/2010 of 
24  November  2010  concerning  the  rights  of  passengers  when  travelling  by 
sea  and  inland  waterway  and  amending  Regulation  (EC)  nº  2006/2004  that 
will  be  applicable  from  18  December  2012.  Peralta  refers  to  the  answer 
provided  by  the  Commission  following  a  question  posed  by  the  European 
Parliament141,  regarding  in  particular  the  marketing  of  cruises.  According  to 
the  Commission,  “The  Commission  finds  it  likely  that  a  cruise  that  fulfils  the 
requirements of Article 2(1) of Council Directive 90/314/EEC of 13 June 1990 
on package travel, package holidays and package tours (‘the directive’) would 
qualify  as  a  ‘package’.  In  relation  to  this,  the  Commission  points  to  the  fact 
that  most  cruises  are  sold  at  an  inclusive  price  and  involve  a  combination  of 
at least transport and accommodation.142 ” 

140   Norfolk v My Travel Group plc (2004) 1 Lloyd’s Rep 106. 
141   http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2011-007683&language=EL. 
142  

"[...] As highlighted by the Honourable Member, the Court of Justice of the European Union has repeatedly pointed out the 
criteria that are sufficient for a service to qualify as a package within the meaning of Article 2. The Commission cannot find 
strong arguments to argue that a cruise should only be considered ‘as a stand-alone service within the category of 
transport services’ in relation to the definition of a ‘package’. Against this background, the Commission is of the opinion 
that Regulation (EC) No 1177/2010(3) and its definition of a ‘cruise’ do not have repercussions on the notion of a ‘package’ 
as defined in Article 2(1) of the directive. However, as the Honourable Member is aware, the competence to interpret EU 

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Also  several  stakeholders  discussed  the  potential  conflict  between  the 
Package Travel Directive and the Liability Regulation. According to them it can 
lead to legal uncertainty for, especially, the cruise passenger. In their opinion, 
the potential conflict reduces the protection of the passenger.  

Based on the discussion above, it can be concluded that it is unclear whether 
or  not  the  Liability  Regulation  is  coherent  with  the  Travel  Package  Directive. 
This  issue  can  only  be  clarified  through  further  experience  gained  with  the 
application of both instruments, in particular in view of the recent revision of 
the Package Travel Directive.  

linked 

travel  and 

(EU)  2015/2302143  on  package 

Directive 
travel 
arrangements,  which  repeals    the  1990  Package  Travel  Directive  with  effect 
from  1  July  2018,  when  the  national  provisions  transposing  Directive  (EU) 
2015/2302  will  become  applicable,  suggests  in  its  recital  17  that  cruises  will 
normally have  to  be  considered  as  packages.  Article  14  (5)  of  Directive  (EU) 
2015/2302 specifies that rights to compensation or price reduction under the 
Directive shall not  prevent travellers from presenting claims under certain EU 
regulations  and  under  international  conventions.  Compensation  and  price 
reduction granted under those regulations and international conventions have 
to  be  deducted  from  each  other  in  order  to  avoid  overcompensation.  Article 
14  (4)  of  Directive  (EU)  2015/2302  provides  that  insofar  as  international 
conventions  binding  the  Union  limit  the  extent  of  or  the  conditions  under 
which  compensation  is  to  be  paid  by  a  provider  carrying  out  a  travel  service 
which is part of a package, the same limitations shall apply to the organiser. 

8.1.3  To what extent does the Regulation fit in the EU approach to transport 
operator’s liability? 
As acknowledged by the Commission in its European vision for passengers144 
the  EU  legislation  transposes  international  conventions  into  EU  law.  The 
Liability Regulation transposes the Athens Protocol 2002 in EU law. Regulation 
889/2002  does  something  similar  for  the  Montreal  Convention  (carriage  by 
air)145. 

The  international  conventions  all  establish  liability  of  the  carrier  and  impose 
liability  limits.  However,  each  regime  has  its  own  merits  and  substantial 
differences can exist between passenger protection in one mode compared to 
the other. Most mentioned differences exist between air and sea. Therefore, it 
is interesting to take a closer look at the differences existing between Athens 
Protocol  and  the  Montreal  Convention,  especially  regarding;  (i)  the  different 
liability regimes, (ii) the limitation period and (iii) incident vs accident.  

legislation rests with the Court of Justice of the European Union. The Commission can therefore not give a legally binding 
answer regarding the interpretation of Article 2(1) of the directive." 

143 Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and linked 
travel arrangements, amending Regulation (EC) No 2006/2004 and Directive 2011/83/EU of the European Parliament and of the 
Council and repealing Council Directive 90/314/EEC, OJ L 326 of 11.12.2015, p. 1  
144   COM(2011) 898 final. 
145   For all transport modes, expect bus transport, EU regulations are in place transposing international conventions into EU 

law.  

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105 

 
 
 
 
 
 
 
 
 
 
 
 
 
                                                                                                                                                               
Differences in liability regimes 
The 2002 Protocol amended the previous provisions of the Athens Convention 
and  introduced  strict  liability  for  shipping  incidents  while  at  the  same  time 
raising the limits. These changes brought the liability regime of the sea carrier 
one  step  closer  to  the  respective  regime  imposed  by  Montreal  for  the  air 
carrier.  Nevertheless,  these  two  regimes  are  not  identical.  More  specifically, 
non-shipping  incidents  are  still  subject  to  a  fault-based  regime  under  the 
2002  Protocol.  As  explained  by  Soyer  and  Kroger,  this  differentiation  is 
justified in view of the different circumstances surrounding the transportation 
of  passengers  by  sea  and  the  potential  risks  involved.  The  air  passenger  is 
seated  for  most  of  the  voyage  with  a  seat  belt  fastened,  while  the  ship 
passengers  find  themselves  free  to  move  and  in  some  cases  may  engage  in 
sport  activities.  On-board  cruise  ships  in  particular,  many  authors  recognize 
that  passengers  enjoy  a  hotel-like  environment146,  which  means  that 
passengers  can  walk  around  freely  and  in  some  instances  even  can  enjoy 
sport  activities.  In  an  airplane,  the  passenger  is  seated  with  his/her  seatbelt 
fastened.  The  risk  on  a  self  sustained  injury  is  in  air  transport  much  lower 
than  in  sea  transport  (as  a  result  of  the  freedom  to  move  around).  Thus,  it 
does  not  seem  fair  and  appropriate  for  a  sea  carrier  to  be  exposed  to  the 
same liability rules as an air carrier and be held strictly liable for all accidents, 
which occur in the course of the voyage.147  

In addition, the liability of the sea and air carrier is also different as far as the 
limits are concerned. Although the Montreal Convention provides for unlimited 
liability  in  case  of  injury  or  death,  the  Athens  Convention  retained  the  limits 
and  raised  them  through  the  2002  Protocol.  Sir  Haddon-Cave148  strongly 
supports the view that shipping law should follow the example of aviation and 
eliminate  the  limits  of  liability,  since  the  grounds  justifying  their  existence 
have ceased to exist for both modes of transport. 

Other  authors  argue  that  the  differences  between  the  two  modes  are 
inevitable. The Athens Convention includes a maximum liability limit which is 
considered desirable on the grounds  of public policy and the  structure of the 
insurance markets.  

Limitation period 
Referring  to  the  two-year  limitation  period  applicable  under  the  Regulation, 
Soyer comments that the possibility granted to courts to extend the period to 
three  or  five  years  will  allow  a  passenger  diagnosed  with  a  whiplash  injury 
four years after disembarkation to bring a claim and be compensated. For P&I 
Clubs however, such extension amounts to an extended period of exposure to 
risks.  Comparing  this  provision  to  the  respective  one  under  Montreal,  it  is 
evident  that  the  latter  does  not  offer  the  possibility  to  extend  the  limitation 
period.  Nevertheless,  according  to  Soyer,  it  should  be  kept  in  mind  that  the 
types of injuries which may take longer to be diagnosed are not as common in 

146  

In the words of Soyer, “In this respect, there is not great difference between the positions of passengers on a cruise and 
guests at a land-based resort. The operators of holiday resorts do not face reversed burden of proof in cases where their 
guests sustain personal injury on their premises; neither therefore should cruise operators have to prove their innocence 
with respect to guest injuries in non-shipping incidents aboard their vessels”. 

147   Soyer (2002); Kroger (2001). 
148   Haddon-Cave (2001). 

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air transportation. It should also be noted however, that the author does not 
provide  any  concrete  data  in  support  of  his  argument  above.  He  concludes 
that, “the Montreal Convention seems inapt as a basis for opposing change in 
the Athens Convention in this area.” 

Incident versus accident 
Saggerson  also  points  out  that  the  use  of  the  word  “incident”  as  opposed  to 
“accident”  may  be  intended  to  extend  the  scope  of  liability  beyond  the  one 
contemplated  by  Montreal  Convention,  despite  the  fact  that  no  concrete 
examples in support of this view are shared by the author. At the same time, 
the  author  adds  that  it  avoids  the  difficulties  arising  when  interpreting  the 
term “accident” under the Montreal regime. In the author’s opinion, however, 
it  is  likely  that  injury  resulting  from  some  internal  factor  specific  to  the 
passenger  (for  example  pre-existing  physical  weakness)  are  not  likely  to  be 
covered by the Athens  compensation regime any more that they give rise to 
compensation under the Montreal Convention. 

Stakeholders views 
Although differences certainly exist between the applicable regimes in air and 
sea, many stakeholders are of the opinion that with the entry into force of the 
Liability Regulation the differences between the regimes have decreased, that 
operator’s liability is more equal and that passenger rights (especially those of 
maritime passengers) have increased.  

Although  most  stakeholders  indicate  that  differences  have  decreased,  they 
also  indicate  that  the  coherence  with  other  modes  is  not  yet  fully  achieved. 
For  instance,  prior  to  the  adaptation  of  the  Liability  Regulation,  the  gap 
between passenger right protection in the maritime field on the one hand and 
air  and  rail  on  the  other  hand  was  considerable.  With  the  adoption  of  the 
Liability  Regulation  the  gap  is  closed  and  passenger  rights  regimes  became 
more  in  line.  However,  the  protection  in  maritime  transport  is  still  less 
favourable compared to the other modes, especially air and rail.  

Another  example  referred  to  is  the  difference  between  the  liability  of  a  ship 
operator  and  of  an  airline  operator.  An  airline  operator  under  the  Montreal 
Convention  is  unlimitedly  liable  unless  he  is  able  to  prove  that  the  accident 
was  not  due  to  fault  or  negligence  (from  him  or  his  servants/agents).  In 
maritime  law,  the  operator  is  only  limited  liable  unless  his  recklessness  is 
proved  by  the  claimant.  In  the  opinion  of  the  lawyer,  the  Montreal  regime is 
more preferable from a passenger right point of view. 

Some  stakeholders  still  remark  that  it  is  questionable  if  the  Liability 
Regulation  is  coherent  with  other  modes,  from  a  liability  requirement 
perspective.  The  limit  to  liability  is  not  equal  between  modes,  as  well  as  the 
requirements  for  establishing  liability.  Main  differences  exist  between 
maritime and rail. 

These mixed views on whether or not the Liability Regulation is coherent with 
the  EU  approach  to  transport  operator’s  liability  are  also  apparent  from  the 
survey  responses.  17%  of  the  respondents  (6  in  total)  specified  that  they 
think  the  Regulation  is  entirely  in  line  with  the  EU  regime  on  transport 

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107 

 
 
 
 
 
 
 
 
 
 
 
 
 
operator’s  liability.  Another  11%  (4  respondents)  indicated  they  think  the 
Regulation is partially conflicting and one other respondent answered that the 
Regulation  is  entirely  conflicting149.  The  remaining  69%  (24  respondents) 
indicated  that  they  do  not  know  whether  or  not  the  Regulation  is  coherent 
with the over EU regime. 

All in all, it can be concluded that there is no shared view whether or not the 
Liability Regulation is coherent with the EU’s approach to transport operator’s 
liability. 

8.1.4  Conclusion response to the evaluation question  
The  Liability  Regulation  is  coherent  in  different  degrees  with  the  three 
identified EU policies, as illustrated below. With regard to the maritime safety 
policy  it  can  be  said  the  Regulation  is  coherent  and  contributes  to  reach  the 
overall goals of the Third Maritime Safety Package. With regard to both the EU 
policy  on  passenger  rights  and  the  EU’s  approach  to  transport  operator 
liability  the  coherence  is  more  disputable.  Although  the  maritime  regime  is 
becoming  more  and  more  in  line  with  the  regimes  in  other  modes,  some 
differences still exists. However the differences identified are justified as they 
are  the  result  of  the  specific  transport  mode  characteristics,  which  require 
their own regime (e.g. lower compensation to maritime passenger as a result 
of  the  hotel-like  environment  they  enjoy  on-board  the  ship150)  Stakeholders 
do  not  agree  whether  or  not  further  alignment  is  needed  and  desirable.  One 
point  of  potential  concern  is  the  coherence  between  the  Liability  Regulation 
and the Travel Package Directive.  

8.2  Q8: Coherence with broader EU policy 

Q8: Are the objectives of the Regulation (still) coherent with the EU transport 
policy,  notably  the  White  Paper  on  Transport  (not  published  when  it  was 
adopted),  and  ten  policy  areas  that  are  set  as  priorities  by  the  Current 
European Commission (as announced in July 2014)? 

8.2.1  Are  the  objectives  (still)  coherent  with  the  2011  White  paper  on 
Transport? 
In 2011, the European Commission adopted the White paper on Transport151, 
in  which  the  Commission  sets  out  the  roadmap  to  reach  a  Single  European 
Transport Area. The White Paper highlights the actions needed to establish a 
competitive  and  resource  efficient  transport  system.  Part  of  reaching  this 
goal, is to increase passenger right protection ensuring that the rights granted 
to passengers are equal throughout the EU. In Annex I of 2011 White paper, 
an overview of passengers’ right related initiatives is presented. The following 
initiatives are included: 

149   None of the respondents indicate why they think Regulation 392/2009 is not entirely or not at all in line with the EU 

approach to transport operator’s.  

150   Which means that passengers can walk around freely and in some instances even can enjoy sport activities. In an 

airplane, the passenger is seated with his/her seatbelt fastened. The risk on a self sustained injury is in air transport much 
lower than in sea transport (as a result of the freedom to move around). 

151   COM(2011) 144 final. 

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1.  Develop a uniform interpretation of EU Law on passenger rights and a 
harmonised and effective enforcement, to ensure both a level playing 
field  for  the  industry  and  a  European  standard  of  protection  for  the 
citizens; 

2.  Assemble  common  principles  applicable  to  passengers’  rights  in  all 
transport  modes  (Charter  of  basic  rights),  notably  the  ‘right  to  be 
informed’, and further clarify existing rights. At a later stage, consider 
the adoption of a single EU framework Regulation covering passenger 
rights for all modes of transports (EU Codex); 

3.  Improve  the  quality  of  transport  for  elderly  people,  Passengers  with 
Reduced  Mobility  and  for  disabled  passengers,  including  better 
accessibility of infrastructure; 

4.  Complete  the  established  legislative  framework  on  passenger  rights 
with  measures  covering  passengers  on  multimodal  journeys  with 
integrated  tickets  under  a  single  purchase  contract  as  well  as  in  the 
event of transport operator’s bankruptcy; 

5.  Improve  the  level  playing  field  at  international  level  through  the 
inclusion  of  care  quality  standards  in  bilateral  and  multilateral 
agreements  for  all  modes  of  transport,  with  a  view  to  further 
passengers’ rights also in the international context. 

With  regard  to  the  first  initiative,  developing  a  uniform  interpretation  of  EU 
Law  and  passengers  rights,  it  seems  that  the  Liability  Regulation,  together 
with  Regulation  1177/2010,  is  in line  with  the  overall  objective.  As  indicated 
by the table in Annex 13, the current passenger right regime is highly similar 
between the different modes, except for some minor changes. However not all 
stakeholders  consulted  share  this  view.  Several  indicated  that  EU  passenger 
rights are not yet harmonised, as especially limits to liability differ per mode. 
Other  stakeholders  address  the  issue  that  certain  regulations  are  read  and 
explained  differently  in  different  countries,  leading  to  different  application  of 
passenger  regulation.  It  can  be  concluded  that  on  this  point  the  Liability 
Regulation is rather coherent with the initiative laid down in the White paper 
on Transport.  

Also with regard to the second initiative the Liability Regulation seems to be in 
line.  The  Regulation  explicitly  introduces  a  right  for  the  passenger  to  be 
informed  (Article  7).  Where  needed,  existing  rights  are  further  clarified.  One 
example  is  the  explicit  inclusion  of  mobility  equipment  in  the  definition  of 
luggage (Article 4). Some of the stakeholders indicated that the obligation to 
inform  passenger  of  his/her  rights  is  an  important  improvement.  However, 
raising  awareness  of  these  rights  remains  important.  CLIA,  for  instance,  has 
introduced a campaign to also make non-EU passengers aware of their rights, 
and  the  UK  Maritime  and  Coast  Guard  Agency  is involved  in  a  wide  range  of 
promotional  activities  to  raise  awareness  (e.g.  via  websites,  seminar  and  a 
dedicated  app).  With  regard  to  this  initiative,  it  can  be  concluded  that  the 
Liability  Regulation  is  coherent,  however  on  the  practical  effect,  work  still 
needs to be done. 

The  Liability  Regulation  is  contributing  in  reaching  the  third  initiative.  In 
particular, special attention is to passengers with reduced mobility (see Article 
4  where  mobility  equipment  is  included  in  the  definition  of  luggage).  Other 

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aspects  of  this  initiative  are  covered  by  Regulation  1177/2010,  which has  as 
its  main  purpose  guaranteeing  such  rights.  As  the  Liability  Regulation  does 
contain  provision  contrary  to  this  view,  it  can  be  concluded  that  the  Liability 
Regulation is coherent with the third initiative as well.  

The  Liability  Regulation  does  not  seem  to  explicitly  contribute  to  the  fourth 
and  fifth  initiatives.  However,  the  current  rules  laid  down  in  the  Liability 
Regulation  still  allow  reaching  the  initiatives  and  it  seems  no  contradictory 
rules  have  been  adopted.  It  can  be  concluded  that,  although  Regulation 
392/2009 does not actively contribute to reaching those goals, the Regulation 
also  does  not  prohibit  its  realisation.  It  could  be  concluded  that  the  Liability 
Regulation is also coherent on these points.  

Most  stakeholders  involved  in  the  evaluation  (74%  or  26  respondents)  were 
not  able  to  say  whether  or  not  the  Liability  Regulation  is  coherent  with  the 
2011  White  paper  on  Transport.  The  remaining  26%  (or  nine  respondents) 
indicated  they  think  the  Regulation  is  fully  or  partially  in  line  with  the  White 
paper on Transport152. 

All in all, it can be concluded  that, although the Liability Regulation does not 
actively contribute to all goals laid down in the White Paper on Transport, the 
Regulation  does  not  prohibit  its  full  realisation.  Where  possible,  the  Liability 
Regulation  provides  the  building  blocks  to  reach  one  or  more  of  the  defined 
goals. Therefore, it can be concluded that the Liability Regulation is coherent.  

8.2.2  Are the objectives (still) coherent with the 10 priority policy areas? 
In  July  2015,  the  new  European  Commission  presented  their  political 
guidelines  and  they  formulated  ten  priority  policy  areas.  Transport  policy  is 
part of the first priority ‘a new boost for jobs,  growth and investment’. None 
of  the  subtopics  formulated  directly  relates  to  passenger  right  protection  in 
maritime  transport  specifically nor  to  passengers’  right  protection  in general. 
Although  none  of  the  actions  formulated  directly  link  to  the  Liability 
Regulation,  the  Regulation  indirectly  impacts  the  priority.  As  highlighted  by 
some  stakeholders  they  worry  whether  or  not  the  Liability  Regulation  is 
coherent with the goals set out in this priority area.  

The  stakeholders  indicated  that  a  slight  conflict  between  the  Liability 
Regulation and the priority policy on growth and jobs exists as for companies 
with  older  and/or  smaller  vessels,  it  is  very  difficult  to  live  up  to  the  higher 
safety  standards.  Also  the  Regulation  increases  bureaucracy  and  requests 
more documents. All these factors hamper growth possibilities of smaller ship 
operators, likely result in a loss of jobs. Although the Liability Regulation itself 
does  not  aim  to  impact  jobs,  growth  and  investments,  indirectly  the 
Regulation  does  as  the  Regulation  requires  investments  in  on-board  safety, 
additional  insurance  and  more  documentation,  which  could  contribute 
negatively to the goals set in the first priority area.  

152   The stakeholders indicating that the Regulation is only partially in line with the 2011 White Paper on Transport did not 

provide further details supporting their opinion.  

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Another relevant priority is priority number four which relates to a deeper and 
fairer  internal  market.  Especially  the  aim  of  establishing  level  playing 
contributes to this priority area. Several stakeholders indicated that one of the 
main  advantages  of  the  Liability  Regulation  is  the  creation  of  a  level  playing 
field  for  all  ships  carrying  passengers.  The  same  set  of  rules  applies  to  all 
ships calling at an EU port. As argued in Section 5.1.2, the level playing field 
is  not  fully  realised  throughout  the  entire  maritime  sector.  In  international 
shipping,  the  Liability  Regulation  has  increased  the  level  playing  field,  as 
confirmed  by  several  stakeholders.  On  the  domestic  shipping  markets, 
differences  still  exist  and  the  level  playing  field  has  not  been  established 
everywhere.  

Under the remaining eight priorities protection of passenger rights appears to 
not be  explicitly included. One stakeholder remarked that although improved 
compensation is not conflicting with any of these policy areas, it is hard to see 
how the Athens regulation contributes to reaching these objectives set out  in 
the priority policy areas. 

This  view  and  the  lack  of  understanding  of  how  the  Liability  Regulation  and 
the  ten  priority  areas  are  interlinked,  also  becomes  apparent  from  the 
stakeholder survey. Seven respondents (20%) answered that in their opinion 
the Liability Regulation is entirely in line with the ten priority policy areas set 
by  the  European  Commission.  Two  respondents  (3%)  indicated  that  they 
believed  the  regulation  is  partially  conflicting,  while  the  remaining  26 
respondents (74%) indicated they do not know whether or not the regulation 
is in line with the priority areas. The results show that for many stakeholders, 
the  link  between  the  Liability  Regulation  and  the  ten  priority  areas  is  not 
clear. 

As  hardly  any  concrete  problems  have  been  identified  by  stakeholders  or 
during  the  literature  review,  it  seems  that  the  Liability  Regulation  does  not 
hamper  a  sufficient  execution  of  the  ten  priority  areas.  It  can  therefore  be 
said that although the Regulation does not actively contribute to the goals laid 
down, the Regulation does not prohibit its full realisation. 

8.2.3  Conclusion response to the evaluation question  
The  Liability  Regulation  is  in  line  with  the  2011  White  Paper  on  Transport. 
Although  the  Regulation  does  not  always  actively  contribute  in  reaching  the 
overall goals laid down in the White Paper, the Regulation does not hamper its 
realisation.  Where  possible,  the  Liability  Regulation  provides  the  building 
blocks  to  reach  one  or  more  of  the  defined  goals.  Therefore,  it  can  be 
concluded  that  the  Liability  Regulation  is  coherent.  The  contribution  of  the 
Liability Regulation to achieving the goals laid down in the ten priority policies 
areas  is  less  apparent.  The  Liability  Regulation  mainly  contributes  to  priority 
number  4  on  a  deeper  and  fairer  market  and  indirectly  the  Regulation 
contributes  to  priority  number  1  on  jobs,  growth  and  investments.  The 
Regulation  does  not  contribute  to  the  remaining  eight  priorities  the 
Regulation.  Although  the  Liability  Regulation  does  not  contribute  actively  to 
most  of  the  priority  areas,  the  Regulation  also  does  not  hamper  its  full 
realisation and therefore can be seen as coherent with the overall goals. 

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8.3  Conclusion on Coherence 

The Liability Regulation is mostly coherent in relation to the topics discussed, 
however, this depends on several factors. The Liability Regulation is coherent 
with the overall EU maritime safety policies and the White Paper on transport. 
There is to be no conflict between the Liability Regulation and the ten priority 
policy areas, however, the Liability Regulation does not actively contribute  to 
reaching most of the goals laid down in the priority  policy areas. Having said 
so,  the  Regulation  clearly  contributes  to  the  fourth  priority  related  to  the 
internal  market,  while  indirectly  contributing  to  first  priority  on  jobs,  growth 
and investments. 

The Liability Regulation  seems not to be fully coherent with the EU policy on 
passenger  rights  and  the  transport  operator’s  liability.  Whether  or  not  the 
Liability Regulation needs to be fully coherent with these policies, is a topic of 
debate  amongst  stakeholders.  The  point  of  potential  concern  is  the  relation 
between the Liability Regulation and the Package Travel Directive, which may 
both be applicable to a cruise contract. 

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9 

EU added value 

This chapter presents the conclusions of the analysis related to the defined EU 
added  value  evaluation  question,  based  on  the  results  of  desk  research, 
interviews,  stakeholder  survey  and  case  studies.  The  evaluation  question  is 
scored on its underlying evaluation criterion.  

9.1  Q9: EU added value compared to national and international regimes 

Q9: What added value compared to the international and national regimes for 
liability of carriers of passengers at sea has the Regulation brought? 

9.1.1  Added value of the Liability Regulation compared to previous system 
The  Liability  Regulation  did  not  incorporate  the  entire  Athens  Protocol  2002 
(PAL 2002), but  most  of its provisions, namely  Articles I,  Ibis,  II para. 2,  III 
to  XVI,  XVIII,  XX  and  XXI.  These  Articles  include,  amongst  others,  the  new 
provisions  regarding  a  strict  liability,  the  introduction  of  the  distinction 
between  shipping  and  non-shipping  incidents,  the  mandatory  insurance 
obligation  for  the  ship  operator,  the  direct  action  to  the  insurer  and  the  new 
and  higher  liability  limits.  PAL  2002  aims  to  provide  a  better  passenger 
protection compared to the regime laid down in the Athens Convention 1974. 

In  addition  to  these  new  rules,  the  Liability  Regulation  also  made  some 
additions  to  the  PAL  2002.  Based  on  its  Recital,  the  Liability  Regulation 
envisions five main additions: 
1.  Extending the scope to domestic shipping (recital 3); 
2.  Including mobility equipment explicitly in the luggage definition (recital 4); 
3.  Ensuring an advance payment for the passenger (recital 5); 
4.  Introducing an information obligation for the carrier (recital 6); 
5.  Speeding up entry in to force of the Athens Protocol 2002 (recital 2); 

Each of the five main additions are presented below.  

Extending the scope to cover certain types of domestic carriage 
One of the objectives of the Liability Regulation is to extend the scope of the 
liability  regime  established  under  the  Athens  Protocol  2002.  The  Athens 
regime  only applies to international shipping, excluding all domestic shipping 
activities from its scope. In recital 3 of the Liability Regulation it is stated that, 
because the distinction between national and international transport has been 
eliminated within the internal market it is appropriate to have the same level 
and  nature  of  liability  in  both  international  and  national  transport  within  the 
Community.  Article  1  (2)  of  the  Regulation  therefore  states  that  besides 
international  carriage  of  passengers,  also  carriage  of  passenger  on  board 
ships of Classes A and B fall within the scope of the Regulation.  

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As  illustrated  in  Section  3.5.1  (see  Table  4.7),  the  Liability  Regulation 
provides  temporary  exemptions  for  ships  falling  within  the  Classes  A  and  B. 
For  Class  A  ships  the  Regulation  will  apply  no  later  than  31  December  2016 
(Article 11 (1)) and for Class B ships the Regulation will apply not later than 
31  December  2018  (Article  11  (2)).  It  is  open  to  Member  States  to  decide 
whether or not they apply the Regulation to their Class C and D ships as well.  

In the ex-post evaluation of the Third Maritime Safety Package153 an overview 
of  the  status  quo  per  31  December  2012  was  presented.  For  each  of  the 
Member  States,  it  was  indicated  if  per  31  December  2012  they  had  already 
applied  the  Regulation  to  their  Class  A  and  B  ships  or  whether  they  had 
exempted  them.  An  overview  of  Member  States  applying  the  Regulation  to 
their Class C and D ships was also provided. The study reported that  at that 
time, it was not yet possible to conclude what the impact of the Regulation on 
domestic  shipping  was,  as  many  Member  States  had  opted  for  delaying  the 
application  of  the  Regulation’s  provisions  to  domestic  carriers.  In  many 
Member States, the rules will apply onwards from 2017 and 2019. During this 
evaluation,  the  exercise  was  carried  out  again.  For  each  of  the  28  Member 
States (plus Norway), an assessment was made as to which ship classes they 
applied  the  Regulation.  The  results  of  this  exercise,  which  are  presented  in 
Section 3.5.1, are summarised in Table 9.1.  

Application to domestic shipping comparison between 2012 and 2016 

per 

Status 
31/12/2012 
The  Netherlands  and 
Denmark 

#  Status 

per 

# 

2 

31/09/2016 
The 
Denmark, 
and Norway 

Netherlands, 
Sweden 

4 

to 

Table 9.1 
Application 
domestic shipping 
Application  of  the 
to 
Regulation 
domestic  shipping, 
classes  A,  B,  C  and 
D 
Application  of  the 
Regulation 
to 
domestic shipping: 
Classes A and B 

Application  to  Class 
A, 
postponed 
application  to  Class 
B 
Postponement 
application 
classes A and B 

of 
for 

Bulgaria, 
France, 
Poland, 
Slovenia 

Belgium, 
Finland, 
Lithuania, 
Romania, 
and Sweden 
Landlocked countries: 
Czech 
Austria, 
Hungary, 
Republic, 
Luxembourg, Slovakia 
- 

9  Belgium, 
Finland, 
Lithuania, 
and Slovenia 

7 

Bulgaria, 
France, 
Romania 

5 

0 

Landlocked countries: 
Czech 
Austria, 
Hungary, 
Republic, 
Luxembourg, Slovakia 
Ireland,  Poland154  and 
Spain 

Cyprus, 
Croatia, 
Germany, 
Estonia, 
Greece,  Italy,  Ireland, 
Portugal, 
Latvia, 

Cyprus, 
11  Croatia, 
Germany, 
Estonia, 
Greece,  Italy,  Latvia, 
United 
Portugal, 

5 

3 

9 

153   European Parliamentary Research Service (2015). 
154   Based on interview with Ministry of Maritime Economy and Inland Navigation (Poland). The Ministry indicated that the 

information presented in the previous study was not correct. 

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Application 
domestic shipping 

to 

per 

#  Status 

per 

# 

United 

31/09/2016 
Kingdom 

Status 
31/12/2012 
Spain, 
Kingdom 
Malta 

applying 
Not 
to 
Regulation 
classes A and B due 
to  absence  of  these 
classes 
Source: European Parliamentary Research Service (2015) and stakeholder interviews. 

1  Malta 

1 

As    shows,  the  number  of  countries  applying  the  Regulation  to  all  domestic 
ship  classes  has  increased  from  two  to  four155.  In  addition,  three  countries 
(Ireland,  Poland  and  Spain)  now  apply  the  Regulation  to  their  Class  A  ships, 
while  their  Class  B  ships  are  still  exempted.  Although,  the  application  of  the 
Regulation  to  domestic  shipping  is  only  slowly  expanding,  it  has  become 
broader since 31 December 2012. 

Sub-conclusion 
Although  the  Regulation  does  not  yet  apply  to  all  Class  A  and  B  ships, 
stakeholders  consulted  indicated  that  the  extension  of  the  scope  is  a  value 
added, as also passengers travelling with a  Class A or B vessel will be better 
protected than before the adoption of the Liability Regulation.  

Mobility equipment 
A  second  point  where  the  Regulation  aims  to  add  value  compared  to  the 
Athens  Protocol  is  the  compensation  of  mobility  equipment  or  other  specific 
equipment  (in  short  mobility  equipment).  Although  it  could  be  argued  that 
mobility equipment is already covered by the liability rules regarding luggage, 
Article 4 of the Regulation explicitly includes it within the definition. As stated 
in  Article  4  ‘in  the  event  of  loss,  or  damage,  to  mobility  equipment  or  other 
specific equipment used by a passenger with reduced mobility, the liability of 
the carrier shall be governed by Article 3(3) of the Athens Convention’. 

Most  EU  Member  States  did  not  have  specific  national  maritime  liability 
legislation  in  place  regarding  loss  of  or  damage  to  mobility  equipment  in 
maritime transport. Based  on the analysis, presented in Chapter 3, it can be 
concluded  that  out  of  the  seven  considered  countries,  only  Greece  had 
dedicated  regulations  in  place  to  cover  loss  of  or  damage  to  mobility 
equipment.  The  remaining  six  countries  did  not  have  any  specific  rules  in 
place. Therefore, it seemed there was a need to harmonise this aspect at EU 
level. Since the entry into force of the Liability Regulation, the same system is 
now in place in all seven countries.156  

Including Norway as non EU Member State. 

155  
156   By explicitly including this provision in the Regulation it applies to all passengers falling within the scope of the Regulation. 
It is no longer possible that at national level different rules will be applied and mobility equipment is not compensated when 
damaged or lost. National courts cannot deviate from this right and need to ensure, when asked, to compensate for this. 

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115 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
In  the  reviewed  literature,  no  comments  were  made  whether  or  not  the 
explicit inclusion of mobility equipment in the definition of luggage will add to 
increased  passenger  protection  and  therefore  if  it  could  be  seen  as  an  EU 
added  value.  Also  during  the  interviews,  most  stakeholders  did  not  provide 
any  insights  in  this  topic.  IGPANDI  commented  on  compensation  to  disabled 
passenger and indicated that disabled passengers were, before the entry into 
force  of  the  Regulation,  already  sufficiently  compensated.  Consequently,  the 
Regulation  does  not  bring  added  value  in  this  respect.  Some  ship  operators 
stated  that  they  have  not  received  claims  regarding  damage  to  or  loss  of 
mobility  equipment.  They  reflect  that  most  passengers,  in  such  cases,  will 
instead turn to their health insurers for compensation.  

The  results  of  the  stakeholder  survey  provide  a  diverse  picture  whether  the 
explicit inclusion of mobility equipment in the definition of the luggage brings 
EU added value. As the figure below shows, 10 respondents (equalling 30% of 
the  sample)  indicated  that  this  objective  is  fulfilled.  Another  10  respondents 
indicated that the objective is partially fulfilled or not at all. The remaining 13 
(39%)  of  the  respondents  indicated  that  they  are  not  able  to  answer  the 
question. 

Figure 9.1 

Stakeholder opinion whether objective is fulfilled (mobility equipment) 

in # 

Source, Ecorys, survey (2016). 

Sub-conclusion 
The  overall  conclusion  is  that  this  objective  only  contributes  slightly  to  EU 
added  value.  Many  stakeholders  (especially  interviewees  and  (academic) 
authors) are not aware of the extended definition and those that are, do not 
particularly see the added value. 

Advance payments 
A  third  addition  made  by  the  Liability  Regulation  to  the  Athens  Protocol 
regime is the obligation for the carrier to pay the passenger or its relative(s) 
an advance payment. According to recital 5 of the Regulation it is appropriate 
that  the  passenger  is  entitled  to  an  advance  payment  in  case  of  death  or 
personal  injury.  This  implicates  that  in  case  of  loss  of  or  damage  to  luggage 
the  passenger  is  not  entitled  to  such  a  payment.  The  recital  explicitly  states 
that  the  advance  payment  does  not  constitute  recognition  of  liability.  The 
specifics  are  laid  down  in  Article  6,  which  states  that  the  passenger  should 
receive  the  payment  within  15  days  after  identification  of  the  passenger.  In 
case  of  death,  the  payment  should  not  be less  than  €  21,000  and in  case  of 
personal injury, a case by case assessment will be made.  

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Before  the  entry  into  force  of  the  Liability  Regulation,  none  of  the  seven 
countries reviewed in Chapter 3 had specific national legislation in place that 
granted  the  passenger  an  advance  payment.  The  obligation  to  provide  an 
advance  payment  is  now  part  of  their  national  legal  systems.  It  needs  to 
ensure  a  basic  level  of  passenger  protection  (i.e.  in  all  EU-28  countries  the 
passenger is entitled to an advance payment in line with the rules presented 
above). 

Several  academic  scholars  welcome  the  obligation  of  the  advance  payment. 
Kirchner et al157 indicate that the right to an advance payment constitutes an 
important  benefit  for  the  protection  of  the  passenger  carrier  by  sea. 
Ringbom158 indicates that the introduction of an advance payment contributes 
to  a  better  passenger  protection.  Testa159  also  considers  that  the  advance 
payment  has  significantly  improved  the  position  of  a  passenger.  He  denotes 
the  importance  of  a  balance  among  the  interests  of  carriers,  passengers  and 
insurers  and  goes  on  to  emphasise  that  such  balance  will  ensure  the  proper 
level of compensation for passengers in the event of an accident.  

During  the  interviews,  most  stakeholders  commented  on  the  introduction  of 
advance  payments.  Views  as  to  whether  or  not  the  advance  payments  bring 
added  value  are  mixed.  Most  insurers  indicated  that  the  obligation  of  paying 
advance  payments  is  more  a  codification  of  standing  practice  than  the 
introduction  of  a  new  obligation.  According  to  insurers,  prior  to  the  adoption 
of  Regulation  392/2009,  it  was  already  common  in  maritime  shipping  that 
passengers involved in an accident would receive an advance payment. In this 
regard,  they  were  already  compensated  for  direct  costs,  e.g.  medical 
treatment.  

Some  lawyers  indicated  that  the  introduction  of  the  advance  payment  is  the 
main  value  added  of  the  Liability  Regulation.  Other  lawyers  indicated  that 
although  ship  operators  or  insurers  need  to  pay  an  advanced  payment,  they 
do  not  always  seem  willing  to  do  so.  One  of  the  problems  identified  was 
determining  who  is  entitled  to  the  advance  payment  in  case  of  a  deceased 
passenger.  The  answer  to  this  question  differs  per  Member  State.  According 
to  these  lawyers,  passengers  mainly  obtained  a  ‘paper  right’.  They  are 
entitled to an advance payment according to the law, but in practice they do 
not receive it and therefore are left empty-handed.  

It  was  also  commented  by  smaller  ship  operators  that  the  advance  payment 
can  pose  financial  difficulties  on  them.  In  case  of  a  larger  shipping  incident, 
with  many  passengers  injured  or  killed,  the  total  amount  of  advance 
payments  to  be  paid  can  be  substantial.  As  the  companies  are  rather  small, 
they  think  they  will  not  have  the  necessary  money  available  to  fulfil  their 
obligations.  In  case  insurers  can  pay  the  advance  payment,  this  problem 
might be solved. However, for the ship operators interviewed, it was not clear 
if the insurers would also cover the advance payment.  

157   Kirchner, Tüngler & Martin Hoffmann (2015). 
158   Ringbom (2012). 
159   Testa (2013). 

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117 

 
 
 
 
 
 
 
 
 
 
 
 
                                                           
The  stakeholder  survey  provided  a  mixed  picture  as  well.  Up  to  16 
respondents  (equalling  48%  of  the  sample)  indicated  that  this  objective  is 
either  fully  or  partially  fulfilled.  The  remaining  17  respondents  (52%) 
indicated they are not able to answer the questions. None of the respondents 
indicate that the objective is not at all filled.  

Figure 9.2 

Stakeholder opinion whether objective is fulfilled (advance payment) in 

# 

Source, Ecorys, survey (2016). 

  One  of  the  survey  respondents  indicated  that  the  introduction  of  the 
advance  payment  leads  to  a  new  problem.  According  to  Article  6  (2), 
an  advancement  payment  has  to  be  made  within  15  days  after 
establishing the identity of the passenger. However, investigations into 
size of the damage (especially concerning personal injuries which need 
a case by case assessment), which could be required to assess the size 
of the advance payment, are often not completed within 15 days. This 
may  lead  to  difficulties  into  determining  the  height  of  the  advance 
payment  required.  According  to  the  stakeholder,  this  problem  is  only 
partially addressed by the Regulation.  

Sub-conclusion 
Although  academic  scholars  see  a  clear  added  value  of  the  right  to  an 
advance  payment,  many  other  stakeholders  hold  mixed  views.  Lawyers 
especially  do  not  agree  whether  or  not  the  advance  payment  has  led  to  an 
actual  benefit  for  the  passenger,  as  in  many  cases  the  advance  payment  is 
not  paid  and  the  passenger  has  only  obtained  a  ‘paper  right’.  Insurers  have 
an  opposing  view  and  indicate  that  providing  an  advance  payment  was 
already standing practice in maritime shipping. Therefore they see the right to 
an advance payment as a mere codification of current practices which has not 
changed the position of the passenger. 

As  the  views  between  different  stakeholder  groups  differ  widely,  it  is  not 
possible  to  provide  one  overarching  answer.  It  should  be  concluded  that  the 
right to an advance payment is in principle welcomed by all stakeholders, but 
that  the  practical  implementation  still  requires  improvement.  Therefore  it  is 
concluded that this objective is only partially met.  

Information obligation 
A fourth difference between the Liability Regulation and the Athens Protocol is 
the introduction of an information obligation by the carrier in the Regulation. 
In  recital  6  of  the  Liability  Regulation,  it  is  stated  that  it  is  deemed 
appropriate  that  passengers  are  informed  about  their  rights  prior  to  their 
journey or, at the latest, on their departure. Article 7 elaborates on this right. 
Important to note is that the information needs to be, according to Article 7, 
provided at all points of sale, including sale by phone and via internet.  

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The country analysis as outlined in Chapter 3 shows that before the entry into 
force  of  the  Liability  Regulation,  only  the  UK  had  a  legal  information 
obligation.  The  remaining  six  countries  did  not  require  the  ship  operator  to 
provide the necessary information.  

The ex-post evaluation of the Third Maritime Safety Package160 assessed what 
the  impact  of  the  Regulation  is  regarding  the  provisions  of  equal  passenger 
rights  and  provision  of  better  information  regarding  these  rights.  The  study 
concluded  that  due  to  insufficient  availability  of  information  it  was,  at  the 
time, not possible to draw any conclusion.  

Academic scholars, especially Testa161, indicate that the information obligation 
for the carrier can be seen as a significant improvement on the position of the 
passenger. Ringbom162 is in support of this view.  

Several stakeholders163 which were interviewed commented on the obligation 
to  provide  information  to  passengers.  In  particular,  lawyers  interviewed  for 
the  case  studies  commented  on  the  topic.  During  the  case  studies,  it  turned 
out  to  be  difficult  to  establish  whether  or  not  the  information  had  been 
provided  to  the  passenger.  Therefore,  it  is  difficult  to  conclude  if  these  legal 
obligations,  in  practice,  has  led  to  a  concrete  added  value  (i.e.  better 
informed passengers). 

Several  other  stakeholders  questioned  whether  passengers  actually  read  the 
information provided to them. Some indicated that they have a strong feeling 
that  even  when  information  is  provided,  most  passengers  do  not  consider 
their rights until an incident has happened. Some of these stakeholders, e.g. 
the  Maritime  and  Coastguard  Agency  and  CLIA,  indicated  they  have  taken 
actions  to  raise  awareness  amongst  passengers  to  inform  them  about  their 
rights (e.g. via websites, seminars and a dedicated app).  

Fear  exists  for  those  stakeholders164,  as  although  passengers  now  have  a 
right  to  be  informed,  their  actual  situation  has  not  improved,  because  many 
passengers do not consider their rights before the start of the trip. Effectively, 
their position has not improved.  

Also with regard to this objective, the survey responses are mixed.  Up to  13 
respondents (equalling 39%) indicate that this objective is fully filled. Another 
8 respondents (24%) indicated that the objective is only partially or not at all 
fulfilled.  The  remaining  12  respondents  (36%)  did  not  know  whether  or  not 
the objective is fulfilled.  

160   European Parliamentary Research Service (2015). 
161   Testa (2013). 
162   Ringbom (2012). 
163   Mainly Member State authorities, ship operators, lawyers and academics. 
164   Mainly Member State authorities, ship operators, lawyers and academics. 

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119 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
Figure 9.3 

Stakeholder  opinion  whether  objective 

is 

fulfilled  (information 

obligation) in # 

Source, Ecorys, survey (2016). 

Sub-conclusion  
Mixed  views  for  this  topic  also  exist  amongst  stakeholders.  Stakeholders 
generally seem to agree that the information obligation is a good stimulus to 
improve the passenger position. However, many indicate that granting a right 
to  the  passenger  and  informing  them  about  it  is  not  enough  to  also  ensure 
that  the  passenger  is  better  protected.  The  way  in  which  passengers  are 
informed is important in order to ensure that they are actually aware of their 
rights.  Therefore,  awareness  campaigns  are  essential.  Overall,  it  can  be 
concluded  that  the  inclusion  of  this  right  in  the  Liability  Regulation  is  an 
important step in the right direction to improve the position of the passenger. 

Speeding up entry into force Athens Protocol 2002 
The last and perhaps most important objective of the Liability Regulation is to 
ensure  entry  into  force  of  the  Athens  Protocol  2002.  In  recital  2  of  the 
Regulation, it is stated that both the Community and its Member States are in 
process of deciding whether to accede to or ratify the Protocol. As part of the 
entry  into  force  of  the  Liability  Regulation,  Member  States  also  promised  to 
ratify the Athens Protocol (see Chapter 3). Via Council Decisions 2012/22/EU 
and 2012/23/EU, the EU acceded to the PAL2002.165 The PAL2002 would only 
enter  into  force  once  accepted  by  10  States.166  Prior  to  any  EU  action, 
ratification  was  advancing  slowly  and  with  the  accession  of  several  EU 
Member  States  to  the  Protocol,  the  ratification  requirements  were  fulfilled 
(Belgium being the 10th State to ratify). 

The ex-post evaluation of the Third Maritime Safety Package167 concluded that 
because  the  majority  of  the  passenger  ships  already  carried  insurance,  the 
impact  of  the  Regulation  is  rather  limited  in  Europe.  However,  the  impact  of 
the  Regulation  at  the  international  level  is  large.  The  ex-post  evaluation 
concluded  the  Athens  Protocol  significantly  improved  the  rules  compared  to 
the rules laid down in the Athens Convention 1974 and that the Protocol came 
into force thanks to the Regulation168169.  

165   2012/23/EU: Council Decision of 12 December 2011 concerning the accession of the European Union to the Protocol of 

2002 to the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974, as regards Articles 
10 and 11 thereof 

166   http://www.imo.org/en/MediaCentre/PressBriefings/Pages/13-athens-2002-.aspx#.WByAyi0rKUk 
167   European Parliamentary Research Service (2015). 
168   Please refer to page 125 of the ex-post evaluation. 
169   Per 31 October 2016 PAL2002 had a total of 27 ratifications, including the accession of the EU. None EU countries that 
ratified PAL2002 are Albania, Belize, Marshall Island, Montenegro, Norway, Palau, Panama, Serbia and Syrian Arab 
Republic. 

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The  Protocol,  as  a  result  of  the  Regulation,  is  now  in  force  and,  as  a  result, 
novelties introduced by the Protocol are applicable in maritime shipping; e.g. 
the compulsory insurance obligation and the direct action against the insurer. 
Several  academic  scholars,  Kirchner  et  al170,  and  Testa171  amongst  others, 
indicate  that  both  novelties  have  improved  the  position  of  the  passenger. 
Kirchner et al state that the economic pressure on carriers, as a result of the 
insurance  obligation,  may  serve  as  an  incentive  for  improving  the  safety 
standards on-board.  

Testa  also  discusses,  besides  the  insurance  obligation,  the  right  of  direct 
action  against  an  insurer.  This  right  is  subject  to  certain  limitations,  for 
example, the right of the insurer to be relieved of liability if the damage is a 
result  of  the  carrier’s  wilful  misconduct.  Such  a  right  undermines  the 
Regulation’s  aim  to  ensure  proper  compensation  to  passengers,  although 
public  considerations  may  justify  such  provision.  Finally,  with  respect  to  the 
right  of  Governments  to  limit  liability  to  SDR  250.000  or  340  million  in  the 
event  of  the  risks  mentioned  in  Section  2.2.  of  the  IMO  Guidelines,  Testa 
assesses these limits are reasonable, despite the fact that the impact of such 
limits could be substantial in certain cases. Two positive characteristics of the 
said right is the pro rata distribution and the fact that the 340 million SDR are 
designated for passenger claims under the Convention only. 

Soyer172  notes  that  the  social  function  of  insurance  has  changed  over  the 
years,  leading  to  the  approach  which  suggests  that  “insurance  proceeds  are 
viewed as for the benefit of the injured party”. The right of direct action is in 
line with this new approach according to the author. 
During  the  interviews  IGPANDI,  ICS,  FENVAC,  the  Danish  Ministry  of 
Transport  and  the  Swedish  Ministry  of  Justice  mentioned  that  the  main 
advantage  for  them  is  that  the  Liability  Regulation  achieved  that  the  Athens 
Protocol 2002 applies in the EU. The rules laid down in the Protocol do directly 
apply in all EU-28 Member States.  

Improved  passenger  protection  is  also  mentioned  several  times.  CLIA,  for 
instance,  indicated  that  the  regulation  leaves  less  room  for  lawyers  to 
manoeuvre  regarding  liability  and  jurisdiction.  As  a  result,  passenger 
protection  has  increased.  Several  lawyers  indicated  that  the  regulation 
provides clear guidance, for  example, by clarifying that a carrier  can  only be 
exempted  from  liability  if  he  proves  that  the  accident  was  caused  by  force 
majeure  or  action  of  a  third  party.  Individual  insurers  indicate  that  the 
process of assessing claims is now simpler, due to clear guidance. As a result, 
the individual passenger has enhanced protection.  

The Maritime and Coastguard Agency indicated that the largest added value of 
the Regulation is the guarantee that ship-owners do have a proven means of 
financial protection which they have to provide. The fact that during the Paris 
MoU  inspections,  a  ship  is  checked  whether  it  has  the  actual  proof  available 
on board, contributes to effective oversight and good compliance.  

170   Kirchner, Tüngler & Martin Hoffmann (2015). 
171   Testa (2013). 
172   Soyer (2002). 

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121 

 
 
 
 
 
 
 
 
 
 
 
                                                           
The picture presented above is confirmed by the stakeholder responses to the 
survey.  In total, 33  respondents  of the survey173 responded to this question. 
61% (equalling 20 respondents) answered that this objective is fully fulfilled. 
3%  (equalling  1  respondent)  indicated  that  this  objective  was  only  partially 
fulfilled,  while  6%  (equalling  2  respondents)  indicated  this  objective  is  not 
fulfilled  at  all.  The  remaining  30%  (equalling  10  respondents)  indicated  that 
they do not know whether or not this objective has created EU added value.  

Figure 9.4 

Stakeholder  opinion  whether  objective  is  fulfilled  (Athens  Protocol 

2002) in # 

Source, Ecorys, survey (2016). 

Sub-conclusion 
Based  on  the  information  presented  above,  it  can  be  concluded  that  the 
objective of speeding up the entry into force of the Athens Protocol has been 
successful. Not only did the Protocol enter into force, most stakeholders also 
see this as the main advantage of the Liability Regulation.  

Other observations resulting from stakeholder consultation 
Besides  information  regarding  the  five  objectives  described  above,  some 
additional  information  was  also  collected  from  stakeholders.  During  the 
interviews,  other  topics  were  often  mentioned  by  stakeholders:  uniformity 
equal application and compensation.  

Uniformity and equal application 
Several  stakeholders  referred  to  uniformity  and  equal  application  of  liability 
law  in  the  maritime  field.  One  stakeholder  indicated  that  equal  application, 
especially  on 
is  nowadays  ensured.  Another 
stakeholder  indicated  that  the  regulation  has  harmonised  passenger  rights. 
Without  the  regulation,  rights  would  have  been  different  between  Member 
States. A third stakeholder highlighted in this respect that a level playing field 
has been created, which provides the same conditions for every one.  

international  carriage, 

Compensation 
Several  of  the  law  firms  indicate  that  settlements  have  been  reached, 
especially in cases which involved injuries of deaths. Two law firms involved in 
the  Norman  Atlantic  case  indicate  that  although  they  were  able  to  settle  in 
case of injury and death, it is difficult to settle in case damage to vehicles or 
luggage  is  concerned.  In  case  vehicles  are  concerned,  the  car  insurance 
companies  also  need  to  be  involved,  which  increases  the  complexity  of  the 
settlement. 

173   The question was asked to both Member State policy makers and inspectorates. 

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One  of  the  stakeholders  in  the  survey  indicate  one  area  of  concern.  He 
addressed  the  lack  of  explicit  provisions  which  regulate  the  recognition  of 
judgements  of  States  not  party  to  the  Athens  Protocol.  In  the  opinion  of  the 
stakeholder  this  gap  is  also  not  addressed  in  the  Liability  Regulation  and 
therefore still exists. 

9.1.2  The Liability Regulation and the basic EU principles 
As  part  of  the  EU  value  added  analysis,  it  is  important  to  assess  whether  or 
not the Commission’s adaptation of the Liability Regulation is in line with the 
main  principles  of  EU  policy  making,  more  specifically  the  principles  of 
subsidiarity and proportionality. Both principles are elaborated below. 

The principle of subsidiarity 
The  principle  of  subsidiarity  is  laid  down  in  Article  5.3  TEU  (Treaty  of  the 
European  Union).  This  Article  states  that  the  European  Union  can  only  act 
when  objective  of  the  proposed  action,  when  it  does  not  fall  under  the 
exclusive  competence  of  the  EC,  cannot  be  sufficiently  received  by  the 
individual Member States. 

Article 5.3 TEU Principle of subsidiarity 

Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, 

the  Union  shall  act  only  if  and  in  so  far  as  the  objectives of  the  proposed  action  cannot  be 

sufficiently  achieved  by  the  Member  States,  either  at  central  level  or  at  regional  and  local 

level,  but  can  rather,  by  reason  of  the  scale  or  effects  of  the  proposed  action,  be  better 

achieved at Union level. 

The main aim for adopting the Liability Regulation, as stated in Article 1 of the 
Regulation,  is  to  lay  down  a  Community  regime  relating  to  liability  and 
insurance  for  the  carriage  of  passengers.  In  order  to  do  so,  the  Regulation 
aims,  at  least  partially,  to  incorporate  the  provision  of  the  Athens  Protocol 
2002. It could be argued that it is the obligation of Member States themselves 
to  ratify  the  Athens  Protocol,  but  as  indicated  in  Table  4.6  none  of  the 
Member  States  had  yet  done  so  (at  the  time  of  the  drafting  of  the  Liability 
Regulation).  In  addition,  only  a  limited  number  of  Member  States  (10  out  of 
the  28)  were  Party  to  the  Athens  Convention  1974.  Although  some  Member 
States not being Party to the Athens Convention 1974 (i.e. Denmark and the 
Netherlands) had rather similar legal systems in place, differences existed and 
passenger protection could widely differ between the different Member States.  

These  differences  are  confirmed  by  the  analysis  done  in  Chapter  3  for  seven 
EU  Member  States  (i.e.  the  Netherlands,  Denmark,  the  United  Kingdom, 
France, Italy, Germany and Greece) for which the situation prior to the entry 
into  force  of  the  Liability  Regulation  has  been  analysed.  The  table,  repeated 
here,  clearly  shows  that  differences  in  passenger  rights  protection  existed 
between the seven Member States. In order to ensure an equal basic level of 
passenger  protection,  intervention  at  EU  level  seemed  justified.  Member 
States  would  not  have  been  able  to  achieve  similar  results  when  all  acting 
individually.  For  example,  it  would  have  been  very  difficult  to  provide  for 
additional  rights  (such  as  the  advance  payment  and  the  information 
obligation)  as  maritime  transport  is  often  international,  i.e.  involving  more 

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123 

 
 
 
 
 
 
 
 
 
 
 
 
 
than  one  Member  States.  In  order  to  achieve  similar  results  each  Member 
State should have tried to reach bilateral agreements, which is a difficult and 
time  consuming  process.  Also  there  would  not  be  a  guarantee  that  rights 
between  different  agreements  would  be  similar.  Hence,  passenger  protection 
could  be  different  depending  on  the  applicable  agreement.  Therefore,  the 
adoption of the  Liability Regulation provides  EU added value as currently the 
same set of basic rules applies to all EU 28 Member States. 

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Table 9.2 

Overview of the answer per country (situation prior to 1 January 2013) 

NL 
Yes 
Fault-based 

DK 
Yes 
Fault-based 

UK 
Yes 
Fault-based 

FR 
Yes 
Fault-based 

IT 
Yes 
Fault-based 

GE 
Yes 
Fault-based 

EL 
Yes 
Fault-based 

fault-based 

1. Regime in place? 
Strict 
or 
liability? 
2.  Distinction  shipping 
non-shipping? 
3.  Presumed  liability  of 
the carrier? 

to 

Party 

Athens 

Advance 

4.  Specific  of  general 
liability rules? 
5. 
Convention 1974? 
6.  Compensation  for  loss 
damage 
mobility 
equipment? 
7. 
possible?  
8.  Insurance  obligation 
carrier? 
9.  Direct  action  against 
insurer? 
10.  Liability 
place? 
11. Information obligation 
of the carrier? 

payment 

limits 

in 

No 

No 

No 

Yes 

No 

Yes 

Yes 

Yes 

Yes 

Yes 

for 

Yes, 
some 
damages 
Specific 

for 

Yes, 
some 
damages 
General 

for 

Yes, 
some 
damages 
Specific 

only 

Yes, 
for persons 

Specific 

Specific 

Specific 

No 

No 

No 

No 

No 

Yes 

No 

No 

No 

No 

No 

No 

Yes 

No 

Yes 

No 

No 

No 

No 

Yes 

Yes 

No 

No 

No 

No 

No 

Yes 

No 

No 

No 

No 

No 

No 

Yes 

No 

No 

No 

No 

No 

No 

Yes 

No 

Depended 
on damage 
Yes 

Yes 

No 

No 

No 

Yes 

No 

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125 

 
 
 
 
 
 
 
 
 
 
 
The  second  important  principle  is  the  principle  of  proportionality,  indicating 
that  the  content  and  action  chosen  by  the  EU  shall  not  exceed  what  is 
necessary to achieve the  objectives of the Treaty, in this case improving the 
position of the passenger by creating a liability regime for the carrier. 

Article 5.4 TEU Principle of proportionality 

Under the principle of proportionality, the content and form of Union action shall not exceed 

what is necessary to achieve the objectives of the Treaties. 

As  indicated  in  the  previous  Section,  some  stakeholders  explicitly  indicated 
that  due  to  the  Regulation,  the  level  of  minimum  protection  is  now  equal 
throughout  Europe,  especially  for  international  voyages  (and  for  domestic 
shipping,  Classes  A  and  B,  from  2017  respectively  2019  onwards).  A  similar 
conclusion  was  reached  in  the  ex-post  evaluation  which  concluded  that, 
although  the  impact  for  the  majority  of  the  passenger  ships  maybe  rather 
limit, the impact of the Regulation at the international level is large. The  ex-
post evaluation concluded the Athens Protocol improved the rules significantly 
compared to the rules laid down in the Athens Convention 1974 and that the 
Protocol came into force due to the Regulation. 

As  indicated  above,  substantive  differences  between  Member  States  used  to 
exist.  By  applying  a  Regulation  as  instrument,  rules  throughout  Europe  are 
identical and the same level of protection needs to be offered. In additional to 
this,  the  Regulation  has  been  effective  in  at  least  partially  achieving  its 
objectives,  with  more  success  in  increasing  passenger  rights  protection, 
creating  a  level-playing  field  and  working  towards  a  balanced  framework  of 
passenger  rights  protection.  All  the  previous  have  been  achieved  with  only  a 
minor impact on costs for the industry, the authorities and the passengers (as 
seen  in  Chapter  6).  That  said,  we  can  conclude  that  within  the  EU-28,  the 
Regulation seems to be proportionate. 

9.2  Conclusion on EU added value 

The Liability Regulation clearly has EU added value. In particular, the fact that 
the  Liability  Regulation  contributed  to  the  ratification  and  entry  into  force  of 
the  Athens  Protocol  2002  is  an  important  added  value.  In  addition,  the 
obligation  for  a  carrier  to  provide  information  to  the  passenger  (before  the 
journey  starts)  and  the  obligation  to  make  an  advance  payment  (in  case 
something  has  happened),  is  also  adding  value.  It  should  be  noted  that 
although  the  Liability  Regulation  has  introduced  additional  passenger  rights, 
the  actual  implementation  of  those  rights  should  be  further  improved  to 
realise its full potential.  

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10  Complementarity 

This  chapter  presents  the  conclusions  of  the  analysis  related  to  the  defined 
complementarity  evaluation  question,  based  on  the  results  of  desk  research, 
interviews,  stakeholder  survey  and  case  studies.  Each  evaluation  question  is 
scored on its underlying evaluation criterion.  

10.1  Q-10  Complementarity  in  supplementing  the  Athens  Convention  and 

other regimes 

Q10: To what extent has the Regulation been successful in supplementing the 
Athens Convention and any national regimes on liability of passenger carriers 
in case of accidents at sea applicable in the Member States? 

10.1.1 The differences between Regulation 392/2009 and the Athens Protocol 
2002 
According  to  Ringbom,  IMO  Conventions  normally  do  not  allow  the  European 
Union to become a party.174 If this is the case, each individual Member State 
can  decide  to  ratify  a  convention  or  not.  However,  if  an  IMO  Convention 
contains provisions falling under the exclusive EU competence (e.g. provisions 
on  jurisdiction,  recognition  and  enforcement),  Member  States  cannot  ratify 
the  convention  individually,  unless  authorised  by  the  EU.  As  far  as 
conventions concerning issues of maritime liability, the EU has taken action in 
different  ways  in  order  to  promote  ratification.  The  author  refers  to  the 
example  of  oil  -  pollution  liability  regime  and  decision  2004/246  which 
authorised  Member  States  to  ratify  the  2003  Supplementary  Protocol  to  the 
IOPC Funds Convention.  

A  different  approach  was  adopted  regarding  the  sea  carrier’s  liability  in  case 
of accidents. More specifically, the 2002 PAL is linked to European law through 
the  inclusion  of  a  clause  allowing  the  EU  or  any  other  regional  economic 
integration  organisation  to  become  a  contracting  party.  As  explained  by 
Ringbom, when ratifying or acceding, the organisation (i.e. the EU) is required 
to  submit  a  list  of  subject  matters  over  which  it  exercises  competence.  With 
respect to those issues, the EU takes over the responsibilities of the Member 
States and has a number of votes equalling the number of its Member States 
parties  to  the  protocol.  The  subject  matters  that  are  not  listed  are  thus 
presumed to remain in the competence of Member States.  

Despite the fact that the original proposal for the EU to become party to the 
2002 PAL was made in 2003, it was only in 2011 and after the adoption of the 
392/2009  that  the  EU  took  the  decision  to  accede  to  the  Protocol.175  It  is 
important  to  note  that  under  EU  law,  conventions  to  which  the  Union  is  a 

174   Ringbom (2012). 
175   Council Decision 2012/23/EU. 

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party rank higher than EU directives or regulations which means that the IMO 
provisions thereby take precedence over conflicting EU rules. 
New provisions 
Even  if,  as  was  noted  above,  the  Liability  Regulation  specifically  aims  at 
incorporating  the  provisions  of  the  Athens  Convention  2002  into  European 
law, it  contains  a  number  of  additional  features  that  go  beyond  the  scope  of 
the  convention  as  explained  by  Ringbom.  Apart  from  extending  the  scope  of 
application  of  the  Athens  Convention  (which  only  applies  to  ships  in 
international  trade)  to  sea  carriage  within  a  single  member  State,  it 
introduced  certain  new  substantive  elements  inspired  by  the  EU’s  work  on 
passenger rights in other fields. Most important additions are:  

 

 

the obligation for the performing carrier to make an advance payment 
sufficient to cover immediate economic needs within 15 days from the 
identification of the person entitled to damages; 

the  specific  provisions  on  the  full  compensation  of  damage  to 
equipment  belonging  to  persons  with  reduced  mobility,  and  on 
information to passengers; 

  The implementation of the 2006 IMO Guidelines. 

Jurisdiction and Recognition of foreign judgments 
There  are  certain  differences  in  substance  between  the  EU  rules  on 
jurisdiction  and  recognition  as  laid  down  in  that  Regulation  and  their 
international  counterparts.  The  Athens  Convention  provides  a  broader  range 
of options for claimants by listing four jurisdictions, i.e.:176 

1.  the  court  of  the  State  of  permanent  residence  or  principle  place  of 

business of the defendant; 

2.  the  court  of  the  State  of  departure  or  that  of  the  destination  according 

to the contract of carriage; 

3.  the  court  of  the  State  of  the  domicile  or  permanent  residence  of  the 
claimant,  if  the  defendant  has  a  place  of  business  and  is  subject  to 
jurisdiction in that State; 

4.  the  court  of  the  State  where  the  contract  of  carriage  was  made,  if  the 
defendant  has  a  place  of  business  and  is  subject  to  jurisdiction  in  that 
State.  

6.  As  to  recognition  and  enforcement,  Ringbom  indicates  that  the  IMO 
conventions  seek  to  avoid  complex  procedures  relating  to  the 
recognition  of  cross-border  judgments  by  requiring  the  recognition  of  a 
judgment which is no longer subject to ordinary forms of review, except 
where the judgment was obtained by fraud, or where the defendant was 
not given reasonable notice and a fair opportunity to present his case.  
7.  Judgments are required to be enforceable in each state party as soon as 
the  formalities  required  in  the  state  where  the  judgment  was  issued 
have  been  complied  with.  Under  the  Brussels  Regulation  (Recast) 
recognition of a judgment given in one court of an EU member state is 
automatic in another member state unless contested.  

8.  Ringbom  states  that  while  it  may  be  discussed  how  significant  this 
difference actually is, it was perceived by the  EU in the negotiations as 
representing  a  potential  weakening  of  its  own  recognition  scheme.  The 

176   Please refer to article 17 of the PAL Athens Convention. 

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matter  was  resolved  in  the  Athens  Protocol  by  the  introduction  of  the 
opt-out  clause.  Ringbom  finally  notes  that  there  has  been  some 
uncertainty  as  to  the  legal  effects  of  the  EU  decision  to  ratify  the  IMO 
Liability Convention in the interest of the EU and whether it could oblige 
Member  States  to  apply  the  provisions  of  the  Brussels  Regulation 
instead.  A  practical  approach  would  be  to  give  precedence  to  the  IMO 
conventions’  rules  on  jurisdiction,  while  the  EU  regime  for  recognition 
and enforcement could be applied as between Member States instead of 
the (quite similar) rules of the conventions. Such a solution has recently 
been favoured in decision 2012/23 relating to the accession of the EU to 
the 2002 Protocol to the Athens Convention. 

Other authors have expressed their concern, particularly in connection to the 
opt-out  clause.177  More  specifically,  Gahlen  explains  that  EU  Member  States 
were  prevented  from  ratifying  the  PAL  2002  since  it  contained  rules  on 
jurisdiction,  recognition  and  enforcement  in  civil  and  commercial  matters, 
although  these  issues  were  already  regulated  under  the  Brussels  Regulation. 
For the purpose of eliminating these hesitations, the EU ratified the 2002 PAL 
by virtue of Article XIX of the PAL.  

Gahlen points out that, since the EU wished to continue applying the Brussels 
Regulation, it negotiated a disconnection clause, which is found under Article 
XVI bis para 3 of PAL 2002. According to that Article, contracting States may 
apply other rules for the recognition and enforcement of judgments, provided 
their effect is to  ensure that judgments are  recognised and enforced  at least 
to  the  same  extent  as  under  paragraphs  1  and  2.  As  a  result,  Contracting 
States are allowed to deviate under the aforementioned condition. The author 
nevertheless highlights the fact that the Brussels rules have been criticised as 
not  being  as  generous  as  the  PAL  rules.  To  be  more  precise,  under  the 
Brussels  Regulation,  enforcement  may  be  denied  on  the  grounds  of  public 
policy  considerations  or  irreconcilability  with  an  earlier  judgment,  as  also 
highlighted by Tebbens.  

In  contrast  to  the  exceptions  possible  under  the  Brussels  Regulation,  these 
exception  grounds  are  not  found  under  the  PAL  2002  rules.  An  important 
example mentioned by Gahlen regarding PAL2002 is that a judgment from an 
EU  Member  State  which  declares  a  passenger  claim  to  be limited in amount, 
in  accordance  with  Article  5  of  the  Liability  Regulation  allowing  the  global 
limitation  of  claims  as  long  as  this  is  based  on  the  1996  LLMC,  could  be 
considered  as  contravening  public  policy  in  a  State  where  recognition  is 
sought and where such a claim could not be limited.  

In  addition,  different  limits  of  liability  could  lead  to  contradictory  judgments, 
especially  in  view  of  the  multitude  of  possible  forums  under  the  PAL.  The 
arguments  above  lead  to  the  violation  of  the  PAL  or  the  alteration  of  the 
Brussels Regulation’s scope. 

177   Gahlen (2015) and Tebbens (2008). 

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Main advantages of the Regulation compared to the Athens Protocol 2002 
Stakeholders178 were also asked what the main advantages of the Regulation 
are  compared  to  a  system  with  national  and  international  law.  In  total,  17 
stakeholders did provide written comments in the survey.  

The  provided  answers  can  be  divided  into  two  main  categories.  On  the  one 
hand,  many  stakeholders  mentioned  the  introduction  of  uniform  regulation 
throughout  the  EU,  harmonisation  of  legal  system  and  the  creation  of  a  EU-
wide  level  playing  field.  On  the  other  hand,  the  availability  of  financial 
guarantees,  better  consumer/passenger  protection  and  the  introduction  of 
common interpretation and guidance (on how  to deal with claims) are highly 
valued.  In  addition  to  these  to  main  answers,  the  entry  into  force  of  the 
Athens  Convention  was  also  mentioned.  These  views  were  confirmed 
throughout the interviews. 

10.1.2 Co-existence of PAL and Liability Regulation 
Kirchner and his co-authors state that “the EC's choice to replicate large parts 
of  the  PAL  2002  in  the  Liability  Regulation  Annex  I  indicates  that  there  was 
not only a rush in the proliferation of passenger-related legislation, but also a 
lack of understanding as to the relationship between EU (formerly the EC) law 
and  international  law”.  According  to  their  view,  there  is  a  double  regime, 
which may threaten the coherence and uniformity of the Regulation.  

Kirchner  et  al.  explain  the  above  as  follows:  “Those  EU  Member  States  that 
have ratified the PAL 2002 are now bound by both the Liability Regulation and 
the  PAL  2002.  While  the  EU's  aim  may  be  the  creation  of  a  coherent  legal 
system,  the  question  needs  to  be  asked  whether  the  changes  introduced  by 
the  EC  may  have  made  it  more  difficult  to  reach  this  goal.  The  only  way  to 
prevent the emergence of two different legal systems, which was not intended 
by either the EU or the drafters of the PAL 2002, would be to adopt a monist 
understanding  which  would  see  international  and  domestic  law  as  one 
coherent  legal  order  and  international  law  as  self-executing.  While  a  monist 
understanding of international law can be found, it seems highly unlikely that 
the  EC  intended  to  adopt  such  an  understanding  of  international  law.  It 
appears more likely that the potential problems are the result of an oversight 
on the part of the EC, rather than the consequence of a monist view.”  

Furthermore, the authors point out  that transport law in the European Union 
faces  the  challenge  of  having  become  three-layered,  irrespective  of  the 
specific  mode  of  transportation.  Thus,  domestic,  European  and  international 
law apply, which may lead to conflicts. 

Finally,  Ringbom  explains  that  since  the  rules  of  the  Regulation  became 
binding before the Athens Convention Protocol was in force, the duplication of 
its  provisions  could  give  rise  to  interesting  questions,  such  as  whether  a 
separate  EU  certificate  is  required  to  replace  the  IMO  certificate  which  is 
referred to in the Regulation. However, this has not been the case as the EU 

178   Complementarity questions in the survey were mainly asked to and answered by Member States, both authorities and 

inspectorates. 

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Member States and the Commission explained also at IMO at LEG 101 (2014) 
noting that certificates issued under the Convention will be recognised for the 
purposes of the Regulation, provided that the relevant war risk insurance blue 
card is also present – in line with the IMO 2006 Guidelines179.  

The different versions of the Athens Convention  could also raise the prospect 
that  Member  States  may  be  under  an  EU  law  obligation  to  apply  the  more 
stringent  liability  rules  of  the  2002  PAL,  but  may  still  be  bound  under 
international law to implement the 1974 Convention in relation to other State 
Parties  to  that  convention.  This  has  not  been  supported  by  any  evidence  in 
practice so far. 

Stakeholder opinions on having two regimes in place 
In  academic  literature,  several  concerns  regarding  the  applicability  of  two 
international  regimes  have  been  addressed.  During  the  survey,  respondents 
were  also  asked  if  they  currently  experience  any  problems  now  that  two 
systems  are  in  place  (i.e.  the  Regulation  and  the  Athens  Convention).  Up  to 
20  respondents180  answered  this  question,  with  16  indicating  that  they  have 
not  experienced  any  problems.  Four  respondents  answered  that  having  two 
systems  in  place  may  lead  to  questions  or  difficulties.  For  example,  Finland 
indicated that it is not clear if and how fast the Regulation can be updated if 
the Athens Convention is modified. 

The  German  respondent  indicated  that  problems  might  occur  when  the 
international  law  is  interpreted  by  different  national  courts.  However,  the 
stakeholder  also  points  out  that  this  is  a  problem  which  can  hardly  be 
avoided.  

Two  respondents  from  Norway  indicated  that  having  two  systems  in  place 
makes  this  specific  legal  system  very  complicated.  The  first  Norwegian 
stakeholder  signalled  that  the  system  becomes  complicated  once  parts  of  a 
Convention  are  included  in  national  law,  while  the  country  itself  does  not 
ratify  the  Convention.  The  other  stakeholder  suggested  combining  the 
Regulation,  the  Athens  Convention  and  the  IMO  guidelines  all  together  in 
order to have only one piece of relevant regulation. 

10.1.3 Additions to Regulation 392/2009 laid down in national law 
As indicated above, a three layered legal system currently exists. Besides the 
international  and  European  law,  domestic  law  also  applies.  During  the 
stakeholder  consultation  (interviews,  targeted  survey  and  OPC)  stakeholders 
were  asked  what  kind  of  national  provisions  exist  in  addition  to  the  Liability 
Regulation and the Athens Convention 2002. 

179   See para. 8.23 of the LEG 101 Report: "8.23 One delegation stated that the 1974 Athens Convention and its 2002 

Protocol was incorporated into EU law and all EU Member States fully supported and effectively implemented the 2002 
Protocol, and issued certificates in accordance with the requirements of article 4bis. Certificates issued by an EU Member 
State attesting that insurance or other financial security was in place were in full compliance with article 4bis and all States 
parties to the Protocol were strongly encouraged to accept them. With regard to the 2006 reservation and guidelines 
endorsed by resolution A.988(24), the delegation noted that the reservation was binding in the EU." 

180   Mainly Member State authorities and inspectorates. 

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Two main categories of national additions can be identified. On the one hand, 
several Member States (e.g. Sweden, Finland, Germany, the Netherlands and 
Portugal)  have  adopted  auxiliary  legislation,  which  aims  to  optimise  the 
proceedings  of  the  Liability  Regulation.  The  additional  provisions  can  be 
qualified  as  procedural  requirements  indicating  when  claims  expire  and  what 
kind of penalties or sanctions are available when no common understanding is 
reached. 

On  the  other  hand,  several  Member  States  have,  without  applying  the 
Regulation  to  their  Class  C  and  D  ships,  laid  down  provisions  which  require 
guarantees  from  the  ship  operator  which  are  highly  similar  to  the  provisions 
of  the  Regulation,  with  some  minor  deviations.  One  example  is  Germany 
where Class C and D ships are not covered, but where, nevertheless, German 
national law applies to those ships in a more or less similar way181.  

Although  most  stakeholders  did  not  indicate  specific  problems  with  having  a 
three  layered  legal  system  in  place,  two  stakeholders  explicitly  mentioned 
problems.  The  French  Ministry  of  Environment,  responsible 
for  the 
implementation  of  the  Liability  Regulation,  addressed  the  issue  that  the 
definition of shipping incident under French law is wider than the one used in 
the  Regulation.  Under  French  law  it  also  includes  ‘every  major  incident 
involving  the  ship’.  As a  result,  most  incidents  will  be  qualified  as  a  shipping 
incident  under  French  law  and  strict  liability  will  be  in  place.  Consequently, 
there is a risk that the liability of the ship operator will increase. 

The  Italian  stakeholders  indicated  that  in  Italy  no  auxiliary  legislation  has 
been  adopted.  Therefore,  many  provisions  of  the  Regulation  are  not  further 
clarified.  An  example  which  was  often  mentioned,  are  the  problems  with  the 
advance  payment.  Insurers  cannot  make  advance  payments  to  heirs,  when 
there  is  no  written  agreement  between  the  intended  heirs.  Therefore,  the 
payment  is  made  with  delay.  It  is  also  not  clear  which  authority  needs  to 
handle passenger claims. 

181   Some provisions of German law deviate from the Regulation for these smaller ships: 
The rights of passengers with reduced mobility are less generous under German law; 
• 
The rights to have a direct claim against the insurer does not exist under law; 
• 
The right to have an advance payment is also not a part of the German passenger protection regime. 
• 

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10.2  Conclusion on complementarity 

The above analysis shows no major problems between the Liability Regulation 
on the one hand, and international regimes, in particular the Athens Protocol, 
on  the  other.  Mainly  academic  authors  seem  to  encounter  some  issues,  for 
example related to choice of jurisdiction and recognition. An often mentioned 
problem in literature is possible concerns with the Brussel I Regulation. 

Stakeholders,  both  interviewed  and  the  ones  responding  to  the  survey,  did 
not  indicate  that  major  problems  are  encountered.  Some  issues  between 
domestic  laws  and  the  Liability  Regulation  are  reported,  however,  their 
number is limited. Such problems could be best addressed on a national level. 
In  principle,  the  provisions  of  the  Liability  Regulation  would  take  precedence 
over the national laws. Overall, it can be concluded that the complementarity 
between  the  Liability  Regulation  and  other  international  regimes,  and  the 
Liability Regulation and national regimes is high.  

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11  Conclusions and recommendations 

This  section  presents  the  conclusions  (Section  10.1)  and  recommendations 
(Section  10.2)  of  the  ex-post  evaluation.  The  conclusions  are  based  on  the 
conclusions  formulated  in  the  analytical  Sections  4-9,  dealing  with  the 
evaluation criteria and questions. 

11.1  Conclusions 

Relevance 
Evaluation question 1: Needs still relevant today 
No  major  developments  at  a  political,  legal  or  technical  level  affecting  the 
implementation  of  the  Regulation  have  taken  place  since  the  introduction  of 
the Liability Regulation. The entry into force  of the Athens Protocol has been 
an  important  event,  however,  stakeholders  do  not  see  this  as  a  reason  for 
adapting  the  Liability  Regulation.  The  fact  that  the  Liability  Regulation  is 
relatively “young”, with an implementation timespan of less than four years182 
is  obviously  a  strong  contributing 
factor.  The  short  timespan  since 
implementation may also explain the fact that the needs on which the Liability 
Regulation  is  based  correspond  to  the  needs  of  today’s  society.  The  latter 
applies  especially  to  the  problems  of  “rights  of  passengers”;  and  “no  level 
playing field”; and to a lesser extent to “safety level of passengers”. 

Evaluation question 2: Scope of application of the Regulation 
There  is  broad  consensus  on  the  application  of  the  Liability  Regulation  on 
international  and  domestic  Class  A  and  B  ships.  The  inclusion  of  these  ships 
contributes  to  attaining  the  Regulation’s  objectives,  as  supported  by  the 
stakeholder survey. Extending the scope of the Regulation to domestic Class C 
and  D  ships  is  perceived  differently  per  Member  State,  resulting  in  the 
majority of the Member States not having opted for extension to Class C and 
D ships so far. Stakeholder views, as presented in the stakeholder survey, are 
split  regarding  the  importance  of  the  stated  problems  in  relation  to  Class  C 
and  D  ships.  While  the  majority  of  stakeholders  have  no  strong  opinion, 
passenger  rights are considered a relatively unimportant problem for Class C 
and  D  vessels,  whereas  safety  of  passengers  and  level  playing  field  are 
considered relatively important problems for Class C and D ships.  

In the decision to extend the scope of the Regulation to Class C and D ships, 
different and sometimes opposing aspects considered by Member States. One 
aspect is the rights of passengers, which need to be protected, irrespective of 
the  size  or  material  of  the  vessel  or    the  area  of  operations.  An  additional 
aspect  is  that  having  two  systems  for  passenger  ships  can  result  in 
complexity,  unfair  competition  and  market  distortion.  At  the  same  time,  an 
important factor is the ability of the sector, notably the smaller operators, to 
comply  with  the  provisions  of  the  Liability  Regulation,  specifically  related  to 
the insurability of Class C and D ships.  

182   Entry into force: 31 December 2012. 

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Member  States  have  developed  their  own  systems  at  national  level  in  which 
the  above-mentioned  aspects  are  balanced.  Member  States  that  have  made 
the Regulation applicable to Class C and D ships have often created measures 
to reduce the burden on the sector, notably by creating exemptions to adopt 
certain provisions of the Regulation, as in the case of Denmark. This approach 
works  well  in  these  Member  States.  Member  States  that  have  not  extended 
the  scope  to  Class  C  and  D  ships  have  often  included  means  of  protecting 
passengers’  rights  for  Class  C  and  D  ships  in  their  national  legislation.  For 
example, in Germany, the German Commercial Code applies to Class C and D 
ships, which is based on the Athens Convention. Although the passenger may 
not be protected at the level of the Regulation, the practical situation may be 
quite  similar  to  the  situation  in  Denmark.  For  Member  States  that  have  not 
extended  the  application  of  the  Regulation  to  Class  C  and  D  ships,  local 
solutions  are  created  on  a  country  by  country  basis,  which  are  reflected  in 
national legislation.  

In  conclusion,  extending  the  scope  to  Class  C  and  D  ships  is  a  trade-off 
between  sometimes  opposing  aspects  and  thus  a  political  decision.  The 
evaluation,  including  through  its  stakeholder  consultation,  does  not  provide 
the  results  to  take  this political  decision.  Mitigating  measures  can  be  defined 
to  compensate  for  risks  related  to  the  choice  for  a  system.  In  case  of 
extension,  some  provisions  from  the  Liability  Regulation  may  be  softened, 
reducing the burden on the sector.  In case  of  non-extension, provisions may 
be  created  in  national  law,  contributing  to  passenger  protection.  From  a 
passengers’  rights  perspective,  expanding  the  scope  to  Class  C  and  D  ships 
provides more safeguards. 

Effectiveness  
Evaluation question 3: Meeting the objectives of the Regulation 
The  extent  to  which  the  objectives  have  been  met  is  presented  for  the  four 
defined objectives: 

1.  Objective  of  protecting  passenger  rights  protection:  The  facts 
collected present a broad picture of the adequacy of the Regulation to 
achieve  this  first  objective.  Stakeholders  tend  to  agree  that  the 
Regulation  strengthens  the  passenger’s  position.  Inputs  collected 
from  a  number  of  sources  address  the  specific  impact  of  the 
Regulation improving the level of the advance payment and reducing 
the  time  required  to  receive  it.  Evidence  on  the  Regulation’s  impact 
on  the  final  compensation  suggests  that  despite  difficulties  still 
encountered  in  grasping  the  full intended  benefits  of  the  Regulation, 
passengers  are  better  off  than  before.  Additionally,  the  Regulation 
can  be  considered  to  have  had  a  positive  impact  on  the  number  of 
cases  reaching  settlements,  as  the  clarification  provided  on  the 
compensation  level  that  can  be  expected  and  the  strict  liability 
provision  strengthen  the  victim’s  negotiation  power  increasing  the 
chances of a settlement. 

2.  Objective  of  creating  a  level  playing  field:  The  facts  and  opinions 
collected  present  different  angles  on  this  issue.  However,  the 
collected input is sufficient to suggest that the playing field is levelled 
to  a  large  extend  for  international  carriage  and  especially  for  the 
cruise sector. The same is not exactly the case for domestic carriage 

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where the differences of the national legal frameworks and Regulation 
application  process  cause  Member  States  to  deviate 
from  a 
harmonised  application.  It  should  be  here  noted  that  during  this 
evaluation period, only a fraction of the EU domestic fleet came under 
the  provisions  of  the  Regulation.  Thus,  the  impact  of  the  Regulation 
on creating a level playing field, in domestic transport will be possible 
to assess  more coherently after the Regulation comes into full effect 
in 2019. 

3.  .Objective of  incentivising increased  safety and security performance 
literature  and 
transport  operators:  Academic 
of  passenger 
stakeholder views collected provide different angles to answering this 
question.  The  theoretical  mechanism  that  was  expected  to  increased 
pressure  for  vessel  safety  as  a  result  of  the  mandatory  insurance 
requirement  seems  not  to  materialise,  as  stakeholders  think  that 
safety  standards  have  improved  due  to  the  entry  into  force  of 
dedicated maritime safety rules for ship construction and design, and 
ship  operation.  Insurance  premiums  do  not  seem  to  play  a  role  in 
that regard. 

4.  Objective  of  setting  up and  complementing  a  balanced  framework  of 
passenger  rights  protection:  The  Regulation  is  an  improvement  in 
creating a balanced framework of passenger rights. However, looking 
into  specific  issues,  such  as  the  compensation  of  vehicle  or  property 
damage,  the  input  basis  is  thinner  that  that  used  for  the  other 
objectives,  also  due  to  the  lesser  importance  attributed  to  the  issue 
by  the  stakeholders  involved.  Data  collected  from  the  case  studies 
indicate that compensations might have increased as an impact of the 
Regulation.  Combined  with  the  provisions  protecting  additional 
passenger  rights  (information,  luggage,  advanced  payment  etc.)  the 
Regulation results in harmonisation towards other modes. 

Evaluation question 4: Ensuring same level of passenger rights 
The Regulation has  contributed to  a large improvement  of the harmonisation 
of  sea  passenger  rights  in  Europe.  This  is  initially  the  case  for  international 
voyage where since 2013 a reference framework has been created, providing 
clarity  in  the  expectations  for  compensations  and  dis-incentivising  “forum 
shopping”.  However,  the  limited  application  of  the  Regulation  on  domestic 
carriage (with the states possessing the larger fleets deferring application for 
Class A and Class B) and especially the vastly different approaches of Member 
States  in  regulating  (or  not)  vessel  classes  beyond  Class  A  and  B  ships 
currently lead to a very diverse framework of application across the  EU. This 
situation  is  expected  to  improve  after  the  deferment  period  finishes. 
Nonetheless, a large factor preventing a harmonised approach across Europe 
is  the  great  variation  of  national  legal  frameworks  applying  aside  the 
Regulation and defining a number of critical elements. 

Evaluation question 5: Unexpected effects of the Regulation 
The  Regulation  has  presented  no  unexpected  negative  impacts.  The  findings 
indicate  that  the  insurability  of  carriers  has  not  been  affected  by  the 
Regulation. Authorities have managed to contain fees charged for certificates 
to  a  small  amount  and  insurance  premiums  and  passenger  fares  have  been 
largely  unaffected.  This  should  be  seen  in  the  context  of  broad  exemptions 

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137 

 
 
 
 
 
 
 
 
 
and deferments of the application of the Regulation and against a soft market 
condition  for  the  vessel  insurance  industry  that  has  allowed  for  retaining 
insurance  premiums  to  remain  unchanged.  Moreover,  the  Regulation  has 
caused unexpected positive effects,  such as providing clarity for dealing with 
(especially international) claims on accidents and incidents and the fact that it 
may  have  caused  a  small  number  of  Member  States  to  go  beyond  the  scope 
of the application and expand the coverage of passenger rights.  

Efficiency  
Evaluation question 6: Costs are reasonable and proportionate 
The costs of implementing the Liability Regulation are low. Estimates suggest 
annual costs to be between zero and approximately € 40 million, which mainly 
concerns  the  increase  of  insurance  premiums  due  to  the  raised  liability 
ceilings.  This  amount  represents  only  a  marginal  share  of  the  industry’s  size 
(in  the  order  of  0.05%).  The  consulted  stakeholders  confirm  the  costs  to  be 
minimal.  

The benefits are diverse. Besides the achievement of objectives (in particular 
improved  passenger  rights  and  an  improved  level  playing  field,  as  illustrated 
above),  also  savings  in  claims  handling  as  a  result  of  the  Regulation  are 
reported.  However,  these  benefits  could  not  be  quantified.  Overall,  the 
Regulation is considered to be efficient, as it is largely achieving its objectives, 
thereby  creating  benefits  (which  could,  however,  not  be  quantified),  against 
relatively low costs.  

Coherence  
Evaluation question 7: Coherence with maritime and passenger rights policy 
The  Liability  Regulation  is  coherent  in  different  degrees  with  the  three 
identified EU policies, as illustrated below. With regard to the maritime safety 
policy, it can be said the Regulation is coherent and contributes to reach the 
overall goals of the Third Maritime Safety Package. With regard to both the EU 
policy  on  passenger  rights  and  the  EU’s  approach  to  transport  operator 
liability,  the  coherence  is  more  disputable.  Although  the  maritime  regime  is 
becoming  more  and  more  in  line  with  the  regimes  in  other  modes,  some 
differences still exists. However, the differences identified are justified as they 
are  the  result  of  the  specific  transport  mode  characteristics,  which  require 
their own regime (e.g. lower compensation to maritime passenger as a result 
of  the  greater  freedom  of  sea  passenger  to  move  on  board  freedom,  which 
increases the chance on self sustained injuries, It is not seen as fair that a sea 
carrier  should  be  held  liable  for  injuries  that  result  from  the  passenger 
him/herself  and  which  cannot  be  prevented  by  the  ship  operator.  ). 
Stakeholders  do  not  agree  whether  or  not  further  alignment  is  needed  and 
desirable.  One  point  of  potential  concern  is  the  coherence  between  the 
Liability Regulation and the Travel Package Directive, which has to be further 
examined in the light of the recent revision of the latter entering into force in 
2018.  

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Evaluation question 8: Coherence with broader EU policy 
The  Liability  Regulation  is  in  line  with  the  2011  White  Paper  on  Transport. 
Although  the  Regulation  does  not  always  actively  contribute  in  reaching  the 
overall goals laid down in the White Paper, the Regulation does not hamper its 
realisation.  Where  possible,  the  Liability  Regulation  provides  the  building 
blocks  to  reach  one  or  more  of  the  defined  goals.  Therefore,  it  can  be 
concluded that Liability Regulation is coherent. The contribution of the Liability 
Regulation to achieving the goals laid down in the ten priority policies areas is 
less apparent. The Liability Regulation mainly contributes to priority number 4 
on  a  deeper  and  fairer  market  and  indirectly  the  Regulation  contributes  to 
priority number 1 on jobs, growth and investments.  The Regulation does not 
contribute  to  the  remaining  eight  priorities  the  Regulation.  Although  the 
Liability Regulation does not contribute actively to most of the priority areas, 
the  Regulation  also  does  not  hamper  its  full  realisation  and  therefore  can  be 
seen as coherent with the overall goals.  

EU added value  
Evaluation question 9: EU added value compared to national and international 
regimes 
The  Liability  Regulation  clearly  has  EU  added  value.  Especially,  the  fact  that 
the  Liability  Regulation  contributed  to  the  ratification  and  entry  into  force  of 
the  Athens  Protocol  2002  is  an  important  added  vale.  In  addition,  also  the 
obligation  for  a  carrier  to  provide  information  to  the  passenger  (before  the 
journey  starts)  and  the  obligation  to  make  an  advance  payment  (in  case 
something  has  happened),  is  adding  value.  It  should  be  noted  that  although 
the Liability Regulation has introduced additional passenger rights, the actual 
implementation  of  those  rights  should  be  further  improved  to  realise  its  full 
potential.  

Complementarity  
Evaluation  question  10:  Complementarity  in  supplementing  the  Athens 
Convention and other regimes 
The above analysis shows no major problems between the Liability Regulation 
on the one hand and international regimes, in particular the Athens Protocol, 
on  the  other.  Mainly  academic  authors  seem  to  encounter  some  issues,  for 
example, related to choice of jurisdiction and recognition. An often mentioned 
problem  noted  in  the  reviewed  literature  are  possible  concerns  with  the 
Brussel I Regulation. 

Stakeholders, both interviewed and the ones responding to the survey did not 
indicate that major problems are encountered. Some issues between domestic 
laws  and  the  Liability  Regulation  are  reported,  however,  their  number  is 
limited.  Such  problems  could  be  best  addressed  on  a  national  level.  In 
principle,  the  provisions  of  the  Liability  Regulation  would  take  precedence 
over the national laws. All in all, it can be concluded that the complementarity 
between  the  Liability  Regulation  and  other  international  regimes,  and  the 
Liability Regulation and national regimes is high.  

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11.2  Recommendations 

Based  on  the  ex-post  evaluation  of  the  Liability  Regulation,  a  number  of 
recommendations  can  be  made  regarding  the  future  implementation  of  the 
Regulation and a possible revision thereof. 

Extending the scope to Class C and D ships 
Member States define their own national systems on liability of Class C and D 
ships  in  which  they  balance  passenger  rights  and  (financial)  burden  to  the 
sector.  In  a  few  cases  (Denmark,  the  Netherlands  and  Sweden)  the 
Regulation is applied to Class C and D ships. Other Member States have opted 
not to apply the Regulation to these ships and have their national legislation 
to deal with liability and passenger rights. Although both routings can work in 
practice,  and  often  result  in  situations  which  are  rather  close  in  terms  of 
passenger  protection  and  burden  on  the  sector,  a  possible  alignment  of 
national  systems  may  be  beneficial.  A  dialogue  on  this  issue  between  the 
Commission  and  the  Member  States  is  recommended,  possibly  through  an 
expert network, as suggested below. 

Clarification: provision of guidelines and definitions 
The implementation of the Regulation would benefit from clarification on some 
of aspects of the Regulation. This can be done in case the Liability Regulation 
would  be  revised.  Alternatively,  this  can  be  done  through  soft  law  by 
preparing guidelines based on best practices. Subjects to consider include: 

  Uniform rules on calculation of damages; 

  Clearer  distinction  between  shipping 

incident  and  non-shipping 

incident; 

  Clearer rules on what constitutes personal injury; 

 

Integration of the consequences of the EU accession to PAL 2002 in the 
Regulation,  i.e.  integration  of  jurisdiction  rules  in  the  Regulation 
insofar as this concerns international jurisdiction of the courts and not 
internal jurisdiction within a single Member State183; 

  Advance payment procedure; 

  Clear definition of “ship defect”.  

Monitoring compliance with the Regulation 
If Member states do not monitor compliance with the obligations of providing 
advance payment and providing information to passengers on their rights, the 
consequence  is  that  the  requirements,  as  included  in  the  Regulation,  are 
regarded  as  recommendations,  which  may  not  be  followed  up.  Thus,  strict 
monitoring of the implementation of the Regulation is recommended. 

Develop an expert network at Member States level 
As  it  is  rather  complex  to  have  a  full  overview  of  the  implementation  of  the 
Liability  Regulation,  it  could  be  considered  to  set  up  an  expert  network  at 
Member  States  level.  National  contact  points  could  be  established  that  can 
collaborate  as  a  working  group  towards  effective  implementation  of  the 
Regulation.  This  expert  network  can  be  used  to  contribute    to  the 

183   This recommendation does not concern purely domestic cases. 

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implementation  of  some  of  the  above-mentioned  recommendations,  notably 
on the provision of guidelines and definitions, for example on defining uniform 
rules  on  calculation  of  damages;  making  clear  distinction  between  shipping 
incident  and  non-shipping  incident;  setting  clear  rules  on  what  constitutes 
personal  injury;  integrating  the  consequences  of  the  EU  accession  to  PAL 
2002 in the Regulation; and clearly defining “ship defect”. The expert network 
can  exchange  good  practices  in  the  implementation  of  the  Regulation,  for 
example  related  to  expanding  the  scope  of  the  Regulation  to  Class  C  and  D 
ships. As a result, the Regulation may be applied in a more harmonised way. 
Such an expert network could also be beneficial in the process of a revision of 
the Regulation, if that would be considered, by providing input in the process 
and creating support.  

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ANNEX 1   EVALUATION FRAMEWORK  

Relevance 
1. To what extent are objectives of this initiative still relevant today? 
What do we want to measure? 

1)  Regulation still relevant? 

The Regulation was adopted in 2009 and entered into force on 31 December 
2012. Consequently, the Regulation is still in the early stages of its lifecycle. 

Sub-question:  To  what  extent  has  the  environment  changed  (technological, 
policy, legal) and based on this, is the Regulation still relevant or needs to be 
adapted to a changed environment? 

  We need to assess whether any  significant changes have taken place. 
An  area  for  consideration  is  increased  terrorist  threat.  Also  from  the 
perspective of including terrorism risk into EU law though incorporating 
IMO guidelines 2006 (also scope see relevance question 2); 

 

If so, whether the Regulation would need to adapt to these changes. 

Remark on data/input: here we need to rely on stakeholder consultation. It is 
a  question  that  we  can  include  in  interview  scripts  and  surveys.  Expected 
answer:  little/no  changes  due  to  short  timespan.  Terrorist  risks  may  need 
special attention. 

2)  Objectives  and  underlying  problem  and  drivers  still  relevant  and 

appropriate? 

When the Regulation entered into force, it aimed to establish (i) an adequate 
level  of  passenger  rights  across  the  Union  is  respected,  (ii)  create  a  level 
playing  field  for  operators,  (iii)  incentivise  improved  safety  performance  and 
(iv)  complement  the  framework  of  passenger  protection  across  transport 
modes. This against the drivers and problems as described in the intervention 
logic24F

184. 

Sub-question: How well do the defined needs still correspond to the needs within the EU today?  

  We  need  to  assess  whether  the  needs,  on  which  the  Regulation  were 
based,  are  still  corresponding  to  today’s  needs.  We  can  use  the 
intervention logic as included in the roadmap (focus on the drivers and 
problems  mentioned)  as  a  basis  and  check  whether  these  drivers  are 
still  relevant  for  the  Regulation  today  (considering  the  situation  that 
the Regulation would not exist). 

Remark  on  data/input:  on  needs:  here  we  need  to  rely  on  stakeholder 
consultation.  It  is  a  question  that  we  can  include  in  interview  scripts  and 
surveys. 

Sub-question: To what extent have these above-mentioned objectives proven 
to have been appropriate for the intervention, i.e. the Regulation? 

  We  need  to  assess  whether  the  right  objectives  are  set?  For  this,  we 
should  look  at  the  intervention  logic  and  see  if  the  link  between 

184   See roadmap. 

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Relevance 
1. To what extent are objectives of this initiative still relevant today? 

defined drivers and problems and defined objectives still “works”; 

  We  need  to  approach  this  per  objective  (all  four).  We  need  to 
consistently  approach  this  taking  into  consideration  responses  to  the 
first effectiveness question. 

Remark on data/input: here we need to rely on stakeholder consultation. It is 
a question that we can include in interview scripts and surveys. 
Indicators 

Sources 

  None 

information 

Additional 
evaluation 
Stakeholder input relating to: 

  Perceived  changes  in  the 

for 

Sources 

  Questionnaire; 

  Stakeholder targeted interviews; 

environment 
(technological, 
legal); 

policy, 

  Expert  Group  meeting  on  national 
enforcement of passenger rights. 

  Perceived  importance  of 
needs and objectives. 

Methodological approach 
On Regulation still relevant: 
Changes  in  the  “environment”  will  be  assessed  qualitatively  through 
consulting the stakeholders. Due to the short  timespan since implementation 
of  the  Regulation,  we  expect  the  Regulation  still  to  be  relevant  (on  this 
aspect). 

On needs and objectives still relevant and appropriate: 
This  will  be  assessed  qualitatively  through  consulting  the  stakeholders.  We 
can  include  selected  elements  of  the  intervention  logic  (drivers,  problems, 
objectives)  and  check  whether  these  are  still in tune  with  the  situation  as  of 
today. 

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Relevance 
2.  To  what  extent  is  the  current  scope  of  application  of  the  Regulation  (i.e. 
international  classes  A  and  B  of  domestic  carriage)  adequate  for  the 
attainment of the objectives  
What do we want to measure? 

1)  Expanding scope to C and D classes 

Currently, domestic carriage classes C and D ships are not covered by the 
Regulation. We need to assess whether the  needs (drivers and problems) 
and  objectives  are  also  relevant  for  C  and  D  classes  and  whether 
consequently  the  scope  of  the  Regulation  would  need  to  be  expanded  to 
covering  also  C  and  D  classes.  In  other  words,  can  the  Regulation  reach 
its  objective if it  only concentrates  on  classes  A  and  B  or  does the  scope 
of the Regulation need to be expanded? 

Special  focus  will  be  on  the  performance  of  the  Netherlands  and 
Denmark,  as  C  and  D  classes  are  covered  in  these  countries.  The 
performance  of  these  countries  will  be  benchmarked  against  the  overall 
performance. 

Sub-question:  Are  the  defined  drivers  (see  intervention  logic)  and 
problems  (rights  of  passengers  not  sufficiently  safeguarded,  no  level 
playing field for carriers, potential risks for safety levels) also relevant for 
Class C and D ships? 

  We need to assess the way the rights of passengers in C and D classes 
are dealt with. This can be broken down in a number of aspects, such 
as: 

-  Are passengers of C and D classes sufficiently compensated in case 
of accidents (in relation to provisions included in the Regulation for 
A and B classes)? This includes receiving an advance payment; 
-  Are  passengers  of  C  and  D  classes  compensated  in  a  timely 
manner  in  case  of  accidents  (in  relation  to  provisions  included  in 
the Regulation for A and B classes); 

-  Are passengers of C and D sufficiently informed about their rights 
in  case  of  accidents  (in  relation  to  provisions  included  in  the 
Regulation for A and B classes)? 

  We also need to assess the level playing field for carriers in relation to 

C and D classes vessels: 

-  To what extent do rights for compensation (standards) differ in EU 

Member States for C and D classes? 

-  Can limited liability (including terrorism risks) for C and D  classes 

be combined with mandatory insurance? 

Remark  on  data/input:  here  we  can  use  KPIs,  as  defined  for  the  first 
effectiveness question (see box KPIs below). 

Sub-question: Has the Regulation been effective in reaching its objectives 
regarding  C  and  D  classes  in  the  Netherlands  and  Denmark?  Note:  this 
question is clearly linked to effectiveness but included here as it presents 
insight in how the Regulation affects C and D classes. 

  We need to assess the extent to which objectives are met for  C and D 
classes  in  the  Netherlands  and  Denmark  and  establish  an  overview  of 
the situation before and after the implementation of the Regulation; 

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145 

 
 
 
 
 
 
 
 
 
 
 
Relevance 
2.  To  what  extent  is  the  current  scope  of  application  of  the  Regulation  (i.e. 
international  classes  A  and  B  of  domestic  carriage)  adequate  for  the 
attainment of the objectives  

  This  overview  will  include  also  unexpected  effects  as  addressed  in 
evaluation  question  5  on  effectiveness  aiming  to  assess  if  the 
Regulation has managed to meet sector needs. 

2)  Application of classes A and B to domestic carriage 

The  Regulation  defines  transitional  provisions  in  Article  11  related  to 
carriage by sea within a single Member State on board for classes A and B 
ships.  17  EU  Member  States  have  chosen  to  apply  the  Regulation  to 
domestic  carriage  fro classes  A  and  B  as  pre  31/12/2012. 10  EU  Member 
States  have  chosen  to  defer  the  application  of  the  Regulation  to  a  later 
stage,  i.e.  Class  A  to  31/12/2016  and  Class  B  to  31/12/201825F185.  In 
other words, part of the EU  Member States has applied the Regulation to 
domestic  carriage  of  passengers  and  part  of  the  EU  Member  States  has 
not. We need to assess whether the Regulation has reached its objectives 
for A and B  classes in those EU  Member States  where the Regulation has 
already been  applied to  A  and  B  classes  for  domestic  carriage.  Note:  see 
overview of entry into force of Class A and B for domestic carriage per EU 
Member  State,  indicating  at  what  date  the  application  entered  into  force 
for A and B classes. 

Sub-question:  Are  the  defined  drivers  (see  intervention  logic)  and 
problems  (rights  of  passengers  not  sufficiently  safeguarded,  no  level 
playing  field  for  carriers,  potential  risks  for  safety  levels)  relevant  f or 
Class A and B ships related to domestic carriage? 

  To  assess  whether  the  defined  drivers  and  problems  and  stated 

objectives are relevant for A and B classes for domestic carriage; 

  Make a benchmark comparison between those EU  Member States that 
have  already  applied  the  Regulation  to  A  and  B  classes  for  domestic 
carriage  and  those  EU  Member  States  that  have  not  yet  applied  the 
Regulation to those classes; 

  Assess  whether  the  application  of  the  Regulation  to  A  and  B  class 

vessels in some Member States managed to meet sector needs. 

Quantitative indicators 
Related to C and D classes: 

Sources 
Related to C and classes: 

  Development  in  the  level 
of 
compensations  paid 
and  comparison  with  the 
amounts claimed; 

in 

the 
  Development 
passenger 
number 
of 
complaints 
to 
each  of  the  passenger 
rights  elements  of  the 
Regulation; 

relevant 

  Development 

in 

the 

 

Interview  transcripts  with  carriers, 
P&I clubs, passenger organisations, 
national authorities; 

  Survey 

on 

carriers, 

national 
authorities,  P&I  clubs,  passenger 
organisations 
victim 
associations; 

and 

  Passenger  complaints  gathered  by 

National authorities; 

  THETIS information system data on 
reported  Regulation 

Port  State 

185   For Malta this is not applicable as there are no classes A and B ships operating within its jurisdiction. 

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Relevance 
2.  To  what  extent  is  the  current  scope  of  application  of  the  Regulation  (i.e. 
international  classes  A  and  B  of  domestic  carriage)  adequate  for  the 
attainment of the objectives  

number 
reported deficiencies; 

of 

regulation 

  Development  in  insurance 
premiums  paid  by  carrier 
operators 
per 
country). 

(also 

deficiencies; 

  Flag  State 

on 
Regulation deficiencies as gathered 
by national competent authorities; 

control 

data 

  P&I 

club  data  on 

insurance 

premiums. 

  Related to A and B classes 
for domestic carriage: 

 

  Development  in  the  level 
of 
compensations  paid 
and  comparison  with  the 
amounts claimed; 

in 

the 
  Development 
passenger 
number 
of 
complaints 
to 
each  of  the  passenger 
rights  elements  of  the 
Regulation; 

relevant 

  Development 
number 
of 
reported deficiencies; 

in 
the 
regulation 

  Development  in  insurance 
premiums  paid  by  carrier 
per 
operators 
country). 

(also 

Additional 
evaluation 

information 

for 

Sources 

 

expansion 

Impact  of  the  Regulation 
scope 
to 
domestic  carriage  classes 
C  and  D  in  Denmark  and 
the Netherlands; 

  Stakeholder  opinions  on 
impact 
Regulation 
of 
scope  expansion  on  fares 
and  insurability  of  vessel 
operators. 

  Survey questionnaire for passenger 
carrier  operators,  passenger  and 
victim  associations,  ship-owners 
and P&I Clubs; 

  Targeted interviews with passenger 
carrier  operators,  passenger  and 
victim  associations  and 
ship-
owners and P&I Clubs; 

  Targeted interview of Dutch and/or 

Danish stakeholders. 

Methodology 
In order to answer this evaluation question, it is necessary to understand the 
relevance  of  the  passenger  vessels  that  are  not  (yet)  covered  by  the 
Regulation  and  to  assess  how  this  affects  achieving  the  objectives  of  the 
Regulation.  This  applies  to  C  and  D  classes,  as  well  as  A  and  B  classes  for 
domestic  carriage  (in  a  number  of  EU  Member  States  see  overview  table 
presented by DG MOVE). The quantitative data collection needs to be closely 
coordinated  with  data  collected  for  responding  to  the  first  effectiveness 
question  related  to  achieving  stated  objectives.  Targeted  interviews  with 
Danish  and  Dutch  stakeholders  can  assist  in  understanding  the  costs  and 

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Relevance 
2.  To  what  extent  is  the  current  scope  of  application  of  the  Regulation  (i.e. 
international  classes  A  and  B  of  domestic  carriage)  adequate  for  the 
attainment of the objectives  
benefits induced by the expansion of the regulation scope in this countries to 
domestic  carriage  classes  C  and  D.  Additional  input  in  that  direction  can  be 
collected  from  the  rest  of  the  targeted  interviews  as  well  as  from  the 
stakeholder survey. 

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Effectiveness 
3. To what extent have the objectives of the Regulation been achieved? 
What do we want to measure? 
To what extend have the 4 objectives of the Regulation been attained: 
1.  To ensure that passenger rights are protected in the event of accidents; 
2.  To  create  a  level  playing  field  for  operators  promoting  best  practices  and 

responsible behaviour; 

3.  To incentivise increased safety and security performance  of passenger transport 

operators; 

4.  To  assist  in  setting  up  and  complementing  a  balanced  framework  of  passenger 
rights protection also regarding the right to information, special compensation for 
reduced mobility passengers and the right to an advance payment. 

Effectiveness in achieving Objective 1 
Sub-question:  To  what  extent  has  the  Regulation  achieved  the  objective  of 
protecting passenger rights in the event of accidents? 

  For  this  sub-question,  it  would  be  relevant  to  estimate  the  development  of 
the  time  needed  for  compensations  to  be  paid  since  the  entry  into  effect  of 
the Regulation; 

  Additionally,  the  portion  of  accident  cases  settled instead  of  ending in  court 
cases.  Should  a  settlement  be  reached,  it  could  be  assume  that  victims 
consider the offered compensation to be in accordance with the provisions of 
the Regulation; 

  Moreover,  an  estimation  of  the  portion  of  cases  for  which  an  advanced 
payment  has  been  given,  and  the  time  necessary  to  provide  this  payment 
can  be  further  indications  of  the  effectiveness  of  the  Regulation  to  protect 
passenger rights; 

  Also relevant, is to compare the level of compensations paid before and after 
the entry into effect of the Regulation and to assess the development in the 
relation between claimed and settled amounts; 

  Finally, the development in the number of passenger complaints received by 
national  competent  authorities,  relevant  to  each  of  the  Regulation’s 
provisions,  can  be  a  further  indicator  to  assessing  the  level  of  passenger 
right protection. 

Remark  on  data/input:  Data  on  the  impact  of  the  Regulation  on  the  level  of 
compensations  and  the  portion  of  accident  cases  being  settled  would  be  asked 
to  the  relevant  stakeholders  in  the  targeted  interviews  task  (EPF,  ECTAA, 
victims’ associations, IG P&I etc.). 

Effectiveness in achieving Objective 2 
Sub-question: Has the Regulation succeeded in creating a level playing field for 
operators promoting best practices and responsible behaviour? 

  Answering  this  question  requires  examining  the  level  of  harmonisation  in 
passenger  carriers’  insurance  requirements  in  the  EU  accounting  for  the 
existing exceptions to the Regulation; 

  Moreover, it is relevant to estimate the portion of sea passenger traffic that 
falls under these exceptions. In specific i) the portion of sea passenger traffic 
with C and D class vessels; ii) the portion of sea passenger traffic with A and 
B  class  vessels  for  countries  in  which  the  application  of  the  Regulation  has 
been postponed; 

  Further,  an  estimation  would  be  relevant  regarding  passenger  traffic 
reaching  EU  ports  conducted  with  third  country  flag  vessels  that  have  not 

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149 

 
 
 
 
 
 
 
 
 
 
Effectiveness 
3. To what extent have the objectives of the Regulation been achieved? 

made  the  reservation  under  the  2006  IMO  Guidelines  regarding  liability  for 
‘war-risks’; 

  Finally the impact to insurance premiums (per country) can be considered a 
correction  to  the  uneven  playing  field  that  might  have  existed  prior  to  the 
Regulation application. 

Remark  on  data/inputs:  For  answering  this  sub-question,  the  data  collection 
approach  regarding  passenger  traffic  data  is  similar  to  the  one  used  for 
evaluation question 1 on relevance but needs to go in further detail to provide 
estimations  on  the  portion  of  EU  sea  passenger  traffic  not  abiding  with  the 
requirements of the regulation. 

Effectiveness in achieving Objective 3 
Sub-question:  Has  the  Regulation  been  successful  in  incentivising  increased 
safety and security performance of passenger transport operators? 

 

Initially, the evolution of the number of maritime transport accident involving 
passengers’ needs to be estimated; 

  Further an understanding of the contribution of this Regulation to the safety 

and security performance of the sector needs to be examined; 

  This  can  build  on  assessing  the  stakeholder  behavioural  changes  that  have 
been  brought  by  the  entry  of  the  Regulation  into  effect,  i.e.  whether  the 
Regulation  has  led  operators  in  applying  stricter  safety  and  security 
procedures.  This  assessment  should  account  for  the  differences  between 
Member  States  that  have  deferred  the  application  of  the  Regulation  and 
those that have not done so; 

  On  the  other  hand,  the  performance  of  the  Regulation  can  be  measured  by 
observing the evolution in the number of Regulation recorded deficiencies. 

Remark  on  data/inputs:  For  the  identification  of  impacts  of  the  Regulation  on 
the  behaviour  of  stakeholders  such  as  operators  and  P&I  clubs  the  primary 
source  of  information  would  be  the  information  coming  out  of  the  interviews 
and survey with the relevant stakeholders. The EMSA and  national data should 
be  reviewed  in  relation  to  the  development  in  maritime  accidents  while  the 
THETIS  system  can  be  consulted  regarding  recordings  of  Regulation 
deficiencies  by  port  state  control.  Since  the  Regulation  under  evaluation  is  jus 
tone  of  the  developments  that  are  considered  to  potentially  have  influence 
maritime  safety,  it  is  relevant  to  always  try  to  distinguish  the  part  of  the 
effects  on  the  indicators  addressed  that  can  be  attributed  to  this  Regulation 
compared to other developments, 

Effectiveness in achieving Objective 4 
Sub-question:  Has  the  Regulation  assisted  in  setting  up  and  complementing  a 
balanced  framework  of  passenger  rights  protection  also  regarding  the  right  to 
information,  special  compensation  for  reduced  mobility  passengers  and   the 
right to an advance payment? 

  The  Regulation  aims  in  assuring  that  passenger  rights  are  sufficiently 
safeguarded, this can be assessed by investigating the behavioural change of 
carriers  in  providing  information,  special  compensation  for  reduced  mobility 
passengers and advanced payments in the case of accidents; 

  Further  the  effectiveness  in  attaining  this  objective  is  related  to  assessing 
the development in the number of passenger complaints received by national 

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Effectiveness 
3. To what extent have the objectives of the Regulation been achieved? 

competent  authorities,  relevant  to  each  of  the  Regulation’s  provisions,  can 
be a further indicator to assessing the level of passenger right protection; 

  Also  relevant  for  answering  this  question  could  be  an  assessment  of  the 
number of court cases related to these elements of passenger rights, where 
relevant data are available. 

Remark  on  data/inputs:  The  survey  amongst  relevant  stakeholders  is  key  in 
identifying a stakeholder behavioural change that that may have been inflicted 
by the Regulation. 
Indicators 

Sources 

  Past  development  and  future 
passenger 

of 

sea 
trends 
transport volumes; 

  Portion  of 
transport 
Regulation’s provisions; 

sea  passenger 
the 
by 

except 

  Fleet 

volume 

temporarily 
exempt from implementation of 
the  Regulation  (per  country  or 
region); 

  Transport  Statistical  Pocketbook 

2015; 

  2013 Reference scenario; 

  COM(2015) 508 final; 

  EMSA  annual  overview  of  marine 

casualties and accidents; 

  EMSA  monitoring  data  EMCIP 

accident investigation results; 

  Passenger  complaints  gathered  by 

of  maritime 

National authorities; 

  Development 
accidents; 

  Portion  of  accident 

compensated  or  ending 
settlements; 

cases 
in 

  Development  in  the  level  of 
compensations 
and 
comparison  with  the  amounts 
claimed; 

paid 

  Development  in  the  portion  of 
cases  receiving  an  advanced 
payment  and  the  level  of  such 
a payment; 

  Development 

in 

the 

time 
needed  to  victims  receiving  an 
advanced  payment  and  the 
the 
final 
compensation; 

payment 

of 

  THETIS  information  system  data  on 
reported  Regulation 

Port  State 
deficiencies; 

  Flag  State 

on 
Regulation  deficiencies  as  gathered 
by national competent authorities; 

control 

data 

  P&I  club  data  on  impact  of  the 

regulation on insurance premiums; 

 

Interview  transcripts  with  carriers, 
P&I  clubs,  passenger  organisations, 
national authorities; 

  Survey 

on 

carriers, 

national 
authorities,  P&I  clubs,  passenger 
organisations 
victim 
associations; 

and 

  Case studies. 

  Development  in  the  number  of 
passenger  complaints  relevant 
to each of the passenger rights 
elements of the Regulation; 

  Percentage 

of 
and 

carriers 
other 
operators 
stakeholders 
have 
undertaken  actions  to  improve 
passenger 
and 
passenger rights protection; 

safety 

that 

  Development  in  the  number  of 
reported 

regulation 

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Effectiveness 
3. To what extent have the objectives of the Regulation been achieved? 

deficiencies; 

  Development 

in 

premiums  paid  by 
operators (also per country). 

insurance 
carrier 

Additional 
evaluation 

information 

for 

Sources 

  National 

legislation 

in  place 
of 
concerning 
passenger carriers in the event 
of accidents; 

liability 

  Stakeholder 
undertaken 
passenger 
passenger rights protection; 

to 
safety 

actions 
improve 
and 

  Stakeholder 
transcripts; 

targeted 

interview 

  Survey of stakeholders; 

  Open  public  consultation  results  (if 

available and relevant). 

  Stakeholder  opinion  on 

the 
elements  consisting a balanced 
framework  of  passenger  rights 
protection; 

  Stakeholder 

opinions 

on 

creating a level playing field. 

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Effectiveness 
3. To what extent have the objectives of the Regulation been achieved? 
Methodology 
The assessment of the Regulation success in meeting its four objectives will be 
initially  based  as  much  as  possible  on  quantitative  data  and  will  be  further 
supplemented by qualitative inputs. Per objective, the methodology applied: 

  Strengthening  of  protection  of  passenger  rights:  data  are  collected  on  the 
number  and  content  of  complaints  received  from  the  national  enforcement 
bodies.  Additionally,  the  targeted  interviews  will  be  utilised  to  draw  a 
comparison  between  the  level  of  compensation  claimed  and  that  paid  and 
the portion of cases ending in court cases versus those settled. Further input 
will be requested regarding the provision of an advanced payment as well as 
the  time  lapsing  between  the  accident  and  the  deposit  of  the  advanced 
payment  and  the  final  compensation.  The  views  of  passenger  and  victim 
associations  and  the  input  received  from  the  open  consultation  and  other 
data  sources  on  the  effect  of  the  Regulation  on  safeguarding  passenger 
rights will further complement the assessment of this objective; 

  Creating  a  level  playing  field:  The  Regulation  describes  some  exceptions  its 
scope  of  application.  These  regard  domestic  sea  passenger  transport  for 
vessels  of  Class  C  and  D  (the  Member  States  can  decide  on  themselves 
whether  to  expand  the  Regulation  scope  to  these  vessel  classes)  and  3rd 
country  flag  vessels  from  states  that  have  ratified  the  Protocol  to  Athens 
2002 but not the 2006 IMO  Guideline regarding reservations for  ‘war-risks’. 
Additionally, for domestic transport in some Member States its application to 
vessels of Class A and B is temporally deferred. Referring to statistical data 
on passenger transport within these exemption classes will highlight the level 
of  exemption  from  the  level  playing  field.  Also,  the  effect  on  insurance 
premiums  paid  by  operators  will  be  estimated  per  country  based  on  input 
from  the  survey  questionnaires,  the  targeted  interviews  and  other  data 
collection  means.  Assuming  that  the  Regulation  creates  an  equal  need  for 
insurance, uneven changes in premiums per country can be considered to be 
the  case  when  insurance  requirements  significantly  varied  in  the  pre-
Regulation  situation.  This  analysis  will  be  complemented  by  an  assessment 
of the national legal frameworks in place before the Regulation adoption and 
the qualitative input received from the stakeholder survey and interviews; 

 

Increasing  safety  and  security  performance:  Data  regarding  Regulation 
deficiencies  recorded  by  port  state  control  and  their  development  as 
registered by European and national monitoring mechanisms will be used to 
assess the compliance with the regulation requirements. Data retrieved from 
EMCIP  on  maritime  passenger  accidents  development  after 
the 
implementation  of  the  regulation  cannot  be  straightforward  linked  to  the 
increased safety performance of the regulation since the safety performance 
of  the  EU  sector  is  affected  by  a  number  safety  regulations  (Third  Maritime 
Safety Package) and developments. Thus, the interpretation of the impact of 
the  Regulation  on  safety  performance  will  have  to  be  assessed  in  close 
examination  of  stakeholder  inputs  regarding  actions  triggered  by  the 
Regulation  entering  into  force.  This  assessment  needs  to  account  for  the 
differences in behavioural change between states that have chosen to defer 
the  application  of  the  Regulation  for  domestic  carriage  and  those  that  have 
not.  The  latter  will  assist  in  also  assessing  the  stakeholder  behavioural 
change that can be attributed to this Regulation compared to that attributed 
to other developments; 

  Contribution  to  a  balanced  passenger  rights  protection  framework:  Data  on 
development and content of passenger complaints will be gathered from the 
national  enforcement  bodies  (where  such  data  are  kept)  and  if  possible 
related  to  the  specific  elements  of  passenger  rights  protection  provided  in 
the  Regulation.  Additionally  the  impact  of  the  Regulation  on  behavioural 

Support study to the Evaluation of Regulation (EC) 392/2009 

153 

 
 
 
 
 
 
 
Effectiveness 
3. To what extent have the objectives of the Regulation been achieved? 

change  of  stakeholders  regarding  passenger  rights  protection  will  be 
recorded  via  the  stakeholder  survey  with  questions  targeting  the  protection 
of  passengers  with  reduced  mobility,  the  protection  of  passengers’  right  to 
information  and  the  provision  of  an  advanced  compensation  in  the  event  of 
accident.  The  survey  findings  will  be  cross-validated  with  the  analysis 
conducted in the case studies. 

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Effectiveness 
4.  To  what  extent  have  the  measures  adopted  in  the  Regulation  ensured  the 
same  level  of  passenger  rights  protection  regardless  of  the  area  of  operation  of 
the ship? 
What do we want to measure? 
level  of  harmonisation  of  Regulation 
the 
This  question  relates 
implementation  among  EU  Member  States.  Meaning,  that  the  aim  is  to 
assess  whether  the  Regulation  has  managed  to  produce  the  same  level  of 
passenger rights protection across the whole of the EU internal market. 

to 

Is  passenger  rights  protection  harmonised  regardless  of  the  area  of 
operation of a ship? 
Sub-question: Are passenger rights protected to the same level regardless of 
the area of operation of a ship? 

  Answering  this  question  relates  to  determining  the  exceptions  to  the 
regulation  as  identified  in  the  previous  evaluation  questions  and  the 
geographical distribution of these exceptions; 

  Moreover,  it  is  interesting  to  attempt  an  analysis  of  the  significance  of 

these exemptions for each country and/or region of the EU. 

Remark  on  data/inputs:  Similar  to  Evaluation  question  3  on  effectiveness, 
answering  this  will  require  data  from  EU  and  national-level  statistics 
regarding  passenger  traffic  levels  with  vessels  and  operators  exempt  by  the 
Regulation,  or  for  which  the  Regulation  application  is  deferred  to  a  future 
date. 

Sub-question:  Is  passenger  rights  protection  applied  to  the  same  level 
regardless of the area of operation of a ship? 

  This  refers  to  the  developments  in  the  number  of  maritime  accidents, 
passenger complaints, portion of cases settled and recorded deficiencies to 
the Regulation as measured in for evaluation question 3 on effectiveness. 
This  need  to  be  analysed  against  their  geographical  element  (either  at  a 
regional or country scope); 

  Further, the behavioural impact of the Regulation on stakeholder practices 
in  protecting  passenger  rights  as  identified  in  evaluation  question  3  on 
effectiveness can be also analysed in relation to the geographical scope of 
the Regulation. 

Remark  on  data/inputs:  In  answering  this  sub-question  we  draw  data  from 
the  same  sources  as  in  Evaluation  question  3  on  effectiveness,  adding 
however a geographic element to their analysis either accounting for regional 
or for a country distribution. 
Indicators 

Sources 

trends 

and 
  Past  development 
of 
sea 
future 
passenger 
transport 
volumes  (per  country  or 
region); 

  Portion  of  sea  passenger 
transport  except  by  the 
Regulation’s 
provisions 
(per country or region); 

  Development  of  maritime 
accidents  (per  country  or 

  Transport 
2015; 

Statistical 

Pocketbook 

  COM(2015) 508 final; 

  EMSA  annual  overview  of  marine 

casualties and accidents; 

  EMSA monitoring data EMCIP accident 

investigation results; 

  Passenger  complaints  gathered  by 

national authorities; 

Support study to the Evaluation of Regulation (EC) 392/2009 

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Effectiveness 
4.  To  what  extent  have  the  measures  adopted  in  the  Regulation  ensured  the 
same  level  of  passenger  rights  protection  regardless  of  the  area  of  operation  of 
the ship? 

region); 

  Portion  of  accident  cases 
compensated  or  ending  in 
settlements  (per  country 
or region); 

  Development  in  the  level 
of compensations paid and 
the 
with 
comparison 
amounts 
(per 
claimed 
country or region); 

in 
the 
  Development 
passenger 
number 
of 
to 
complaints 
the  passenger 
each  of 
rights  elements  of 
the 
Regulation  (per  country  or 
region); 

relevant 

  Percentage 

of 
and 

carriers 
other 
operators 
that  have 
stakeholders 
to 
actions 
undertaken 
improve  passenger  safety 
and 
rights 
protection  (per  country  or 
region); 

passenger 

  THETIS  information  system  data  on 
Port State Regulation deficiencies; 

  Flag  State  control  data  on  Regulation 
deficiencies  as  gathered  by  national 
competent authorities; 

  European  Parliament  IA  of  the  Third 

Maritime Safety Package (2015); 

  Regulation State of implementation; 

countries 
  National 
deferring 
application 
regulation 
regarding domestic fleet classification; 

statistics 

of 

  P&I  club  data  on  impact  of  the 
regulation on insurance premiums; 

 

Interview transcripts with carriers, P&I 
clubs, 
organisations, 
passenger 
national authorities; 

  Survey 

on 

national 
authorities,  P&I  clubs,  passenger 
organisations and victim associations; 

carriers, 

  Case studies. 

in 
the 
  Development 
number 
regulation 
of 
reported  deficiencies  (per 
country or region); 

  Development  in  insurance 
premiums  paid  by  carrier 
operators  (per  country  or 
region); 

  Fleet  volume  temporarily 
from 
exempt 
the 
implementation 
Regulation  (per  country  or 
region). 

of 

Additional 

information 

for 

Sources 

evaluation 
  National  differences 

in 

Regulation 
implementation; 

  National  differences 

in 

enforcement procedures; 

  Stakeholder 
regarding 
implementation 
harmonisation. 

views 
Regulation 

  Desk 

research 
implementation differences; 

on 

Regulation 

  Websites  of  National  Enforcement 
complaint  processing 

Bodies 
procedures and complaint reporting; 

on 

 

Information  available  by  carriers  to 
passengers  regarding  the  complaint 
procedures; 

 

Information 

from 

National 

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Effectiveness 
4.  To  what  extent  have  the  measures  adopted  in  the  Regulation  ensured  the 
same  level  of  passenger  rights  protection  regardless  of  the  area  of  operation  of 
the ship? 

Enforcement  Bodies 
legislation  enforcement, 
imposed and cost of compliance; 

relevant 

to 
sanctions 

  Expert  Group  meeting  on  national 
enforcement of passenger rights; 

  Case studies. 

Methodology 
In assessing the effectiveness of the Regulation implementation along the EU 
Transport Area we build on the results of evaluation question 3 on efficiency 
and  add  a  geographical  element  to  where  possible  in  order  to  create  insight 
on  the  level  of  harmonisation  to  passenger  right  protection  brought  by  the 
regulation,  as  well  as  on  the  harmonisation  on  passenger  rights  protection 
practices applied by the relevant stakeholders. 

Initially,  the  level  of  harmonisation  of  passenger  rights  protection  is 
assessed  by  addressing  the  significance  of  the  regulation  exemptions.  The 
first step to this consists of an analysis of significance of the exemptions and 
instances of Regulation deference at an EU level, as performed in evaluation 
question 3. The second step considers an analysis of the significance of these 
exemptions at a more detailed geographical scope (national or regional). 

The  volume  of  the  EU  and  national  fleets  currently  exempt  from  the 
application  of  the  Regulation  can  be  addressed  through  EU  and  national 
statistics.  The  Report  from  the  Commission  to  the  European  Parliament  and 
Council  “REFIT  Adjusting  course:  EU  Passenger  Ship  Safety  Legislation 
Fitness  Check”  provides  additional  statistics  on  the  classification  of  the  EU 
passenger  vessel  fleet  under  each  vessel  category.  Additionally,  the 
Transport  statistical  Pocketbook  2015  can  be  used  to  further  deepen  our 
understanding. 

Nevertheless,  except  from  the  harmonisation  of  Regulation  protection  of 
passenger  rights,  also  the  level  of  harmonisation  in  applying  passenger 
rights  protection  needs  to  be  analysed  across  the  European  Transport  Area. 
This  means  that  the  following  indicators  need  also  to  be  assessed  regarding 
their  geographical  distribution:  development  of  passenger  complains  p er 
passenger  rights  element,  development  of  maritime  accidents  occurrence, 
recorded  regulation  deficiencies  and  portion  of  cases  settled  instead  of 
resulting in court cases. 

in 

Eventually,  the  desk  phase  of  the  study  can  focus  in  understanding 
differences 
the  Regulation  enforcement  procedures  and  reporting 
processes  amongst  Member  States  to  identify  potential  reporting  bias  when 
national  sources  data  are  collected.  The  views  of  stakeholders  (especially  of 
those  active  in  multiple  Member  States)  on  the  differences  in  Regulation 
implementation  will  add  valuable  insight  in  framing  an  answer  to  this 
evaluation question. Also the analysis of case study findings and further desk 
research  on  academic  publications  can  contribute  to  qualitatively  answering 
this question. 

Support study to the Evaluation of Regulation (EC) 392/2009 

157 

 
 
 
 
 
 
 
 
 
 
 
 
 
Effectiveness 
5. Has the Regulation lead to any positive or negative unexpected effects? 
What do we want to measure? 
This question relates to the impacts caused by the implementation of the 
Regulations  that  were  not  foreseen.  This  can  be  especially  related  to 
effects  of  the  Regulation  that  have  not  been  identified  as  significant  in 
the impact assessment  conducted prior to the  Regulation implementation 
or  to  effects  beyond  the  Regulation  objectives,  the  significance  of  which 
had been underestimated. 

Sub-question: Has the Regulation resulted in unexpected effects? 

  This  question  goes  beyond  the  identified  and  expected  Regulation 
impacts  that  have  been  addressed  in  evaluation  question  3  and  4  on 
effectiveness; 

 

In  answering  this  exploratory  interviews  held  are  critical  as  they  will 
provide  the  necessary  insight  on  what  the  full  scale  of  effect  of  the 
Regulation. 

Sub-question: What is the scale of the Regulation unexpected effects? 

  Once  additional  Regulation  impacts  are  identified,  relevant  additional 

indicators need to be developed to measure them; 

  Next  step is to  identify additional data sources that can yield relevant 

information regarding these new indicators; 

  Finally  adjusting  the  survey  questionnaire  as  well  as  the  interview 
guides  for  the  interview  as  much  as  possible  to  capturing  the 
necessary input for measuring these indicators. 

The identified unexpected effects might relate to the unforeseen potential 
impacts  of  the  Regulation  on  transport  fares  or  to  the  ability  of  the 
market  to  obtain  affordable  insurance  coverage  to  operators  all  over  the 
European  Transport  Area  and  regardless  of  the  maritime  passenger 
transport  type  of  service.  Other  unforeseen  effects  could  concern  the 
potential financial and administrative cost of the regulation as well as any 
potential administrative burden caused. 

Additionally,  other  existing  or  potential  effects  of  the  regulation  beyond 
what  is  described  in  the  Commission’s  impact  assessment  accompanying 
the  proposal  for  the  Regulation  {SEC(2005)  1516}.  The  views  of  the 
relevant  stakeholders  need  to  be  investigated  for  relevant  input.  Should 
these unexpected effects identified not be quantifiable, they need to be at 
least qualitatively described. 

Remark  on  data/inputs:  In  answering  this  sub-question  we  initially  rely 
heavily  on  the  stakeholder  input  on  the  experienced  unexpected  effects. 
This  approach  runs  the  risk  of  overreliance  on  a  biased  viewpoint. 
Therefore,  the  effect  should  be  quantifiable  as  much  as  possible,  reliant 
on data and will need to be carefully assessed and triangulated with other 
stakeholder views and against existing academic literature. 
Indicators 

Sources 

 

in 

Impact 
insurance 
premiums  paid  by  carrier 
operators; 

 

Impact  on 

the  market 

  EUR-Lex, {SEC (2005) 1516)}; 

  European  Parliament  IA  of  the 
Third  Maritime  Safety  Package 
(2015); 

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Effectiveness 
5. Has the Regulation lead to any positive or negative unexpected effects? 

to 

capacity 
affordable 
coverage to operators; 

obtain 
insurance 

  UK  Department 

consultation  document  on 
Regulation implementation; 

of  Transport 
the 

  Effect on passenger fares; 

  Exploratory interview scripts; 

  Financial 

and 
administrative  cost  of  the 
regulation to authorities. 

  Academic  literature  and  reports  on 
the  Regulation 

the  effects  of 
implementation; 

  Survey 

to  national  authorities, 
carrier  operators,  P&I  clubs  and 
passenger organisations. 

Additional 

information 

for 

Sources 

evaluation 
  Other  unexpected  effects 

of the regulation; 

  Other 

types 

of 
administration  costs  and 
burdens. 

 

Interviews 
stakeholders; 

scripts 

with 

  Expert  Group  meeting  on  national 
enforcement of passenger rights; 

  Case studies; 

 

International  Standard  Cost  Model 
Manual; 

  Better  Regulation  Toolbox  on 

identification of impacts. 

Methodology 
The  Impact  Assessment  of  the  Regulation  as  presented  in  SEC  (2005) 
1516,  identifies  the  expected  impacts  of  the  Regulation  implementation, 
this  IA  will  form  the  starting  point  to  an  analysis  of  the  unexpected 
benefits  and  costs  of  the  regulation.  The  European  Parliament  IA  of  the 
Third  Maritime  Safety  Package  (2015),  and  the  UK  Department  of 
Transport  consultation  document  on  the  Regulation  implementation 
identify  impacts  of  the  regulation  implementation  such  an  increased 
pressure on national authorities’ administration to issue certificates which 
is dealt in some cases by the application of administration fees. 

Additionally,  the  exploratory  interviews  conducted  during  the  project 
inception  phase  will  provide  further  guidance  on  the  identification  of 
unforeseen  costs  and  benefits  of  the  Regulation  implementation.  Thes e 
effects and their scale will be supported by facts and data retrieved other 
stakeholders. All unexpected identified effects will need to be triangulated 
with  other  stakeholder  views  and  independent  data  sources.  E.G:  When 
carrier  operators  identify  a  negative  effect  on  their  operations,  this  will 
need  to  be  proven  with  reliable  data  and  confirmed  in  consultation  with 
other  relevant  stakeholders  such  as  the  National  Enforcement  Bodies,  or 
by  reviewing  ]  the  extensive  existing  literature  of  academic  publica tions. 
Further  the  possibility  to  use  the  remaining  targeted  interviews  and/or 
the  survey  to  retrieve  further  information  from  stakeholders  regarding 
the  quantification  of  such  additional  costs  and  benefits  will  be  assessed 
and  potentially  a  tailored  questionnaire  approach  will  be  adopted  to 
retrieve information from the most relevant stakeholders. 

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159 

 
 
 
 
 
 
 
 
 
 
 
Effectiveness 
5. Has the Regulation lead to any positive or negative unexpected effects? 
Further  quantification  of  the  regulatory  and  administrative  costs  and 
burden  of  the  Regulation  can  be  assisted  (if  deemed  significant)  by  the 
application of the International Standard Cost Model methodology. 

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Efficiency 
6.  Do  the  costs  of  the  measures  adopted  in  the  Regulation  to  achieve  the 
aforementioned objectives remain reasonable and proportionate in relation to 
the benefits of the Regulation? 
To  answer this question,  we  need  to  compare  the  benefits  with the  costs 
of the regulation, and assess if the ratio is reasonable and proportionate. 
For assessing the efficiency of the  Liability Regulation, a comparison with 
the  situation  before  the  introduction  of  the  Liability  Regulation  is 
considered. In the analysis we will, to the extent relevant, distinguish: 

  Between  countries  that  had  already  signed  up  to  the  Athens 

Convention and countries that had not; 

 

International from domestic shipping; 

  Between  countries  that  have  included  ship  categories  C&D  versus 

countries that have not. 

What are the costs of adopting the regulation? 
1.  What are the costs involved for ship-owners? 

Sub-question:  What  are  the  charges  related  to  the  measure  (i.e.  fees 
paid to authorities for issuing insurance certificates)? 

  These concern the fees to be paid to authorities for certification. 

Remark  on  data/inputs:  These  can  be  obtained  from  Member  States 
national inspectorate’s tariff books, if published, or else requested from 
the Member States authorities concerned. 

Sub-question:  What  are  the  costs  of  organising  compliance  with  the 
measure  (i.e.  payment  of  the  required  insurance  premiums)?  These 
concern other costs for the ship-owners, notably: 

  How much do liability insurance premiums cost for a ship on an annual 

basis? 

  What are the main decisive factors that define the premium level? 

  How  much  do  the  liability  insurance  premiums  under  the  Liability 
Regulation differ from those before the regulation was introduced (e.g. 
under the Athens Convention). 

Remark  on  data/inputs:  These  costs  are  not  found in  publications online, 
but  will need to  be  gathered  directly  from  P&I  clubs  (IGPANDI)  and  from 
ship-owners  (ECSA,  CLIA,  national  ship-owner  associations).  If  these 
sources  provide  insufficient  information,  additionally  through  the  survey 
indications  may  be  gathered.  The  results  from  the  survey  held  under  the 
EP’s 3rd MP IA survey suggest that respondents considered no significant 
impacts on premiums. 

Sub-question:  What  is  the  administrative  burden  for  ship-owners  of 
ensuring continued compliance? This includes: 

  Time effort for acquiring a first time certificate; 

  Time effort for certificate renewal; 

  Other administrative burdens on the side of the ship-owners. 

Remark  on  data/inputs:  Ship-owners  will  be  consulted  (ECSA,  CLIA, 
selected individual ship-owners) to gather indications of the level of these 
costs. 

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161 

 
 
 
 
 
 
 
 
 
 
 
 
Efficiency 
6.  Do  the  costs  of  the  measures  adopted  in  the  Regulation  to  achieve  the 
aforementioned objectives remain reasonable and proportionate in relation to 
the benefits of the Regulation? 

Sub-question:  What  are  the  costs 
accidents/incidents? 
These may include: 

for  ship-owners  associated  to 

  Costs of advance payments to be made to passengers; 

  Costs of adjudication; 

  Differences in annual settling costs (ship-owners vis-à-vis P&I clubs). 

Remark on data/inputs: As regards the first two items, only in the case of 
accidents,  such  costs  are  considered.  As  the  number  of  cases  over  the 
past  few  years  is  limited,  and  as  indicated  in  our  proposal  most  cases 
may not yet have seen a final verdict, only indications are possible.  Ship-
owners, P&I clubs as well as passenger associations (EPF, ECTAA) will be 
consulted  for  this.  From  the  case  studies  also  information  on  these  costs 
may be derived. 

Were there any other possible costs changes since the introduction of the 
Liability Regulation? These might be: 

  Specific cost changes due to adding domestic shipping; 

  Does the distinction between war and non-war matter? 

  Distinguish the situation in EU countries that already signed up to the 

Athens Conventions versus those that had not. 

2.  What are the costs involved for authorities? 

This  addresses  both  flag  state  and  port  state  authorities.  For  authorities 
we identified the following cost categories: 

  Costs for issuing certificates (flag state); 

  Costs for monitoring (flag state); 

  Costs for enforcement in case of non-compliance (port state); 

  Costs  associated  to  accidents/incidents  (both  port  state  and  flag 

state); 

  Other costs. 

Remark on data/inputs: As these cost items will mainly involve staff time 
costs, data on staff numbers and time inputs per type of activity and per 
ship is needed: 

  Staff  numbers  involved  before/after:  have  these  increased  as  the 
regulation was added  or rather reduced as the harmonization lowered 
the effort needed? 

  Time effort involved among authorities; 

  Time  involved  in  handling  accidents/incidents  and  court  procedure 

costs savings compared to the pre-Liability Regulation situation; 

  Level  of  cost  coverage  from  fees  paid  by  ship-owners  (which  is  a 

transfer). 

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Efficiency 
6.  Do  the  costs  of  the  measures  adopted  in  the  Regulation  to  achieve  the 
aforementioned objectives remain reasonable and proportionate in relation to 
the benefits of the Regulation? 

Data on staff numbers and time for handling certification, monitoring and 
accidents  will  be  requested  from  Member  States  competent  authorities 
(survey  among  all  Member  States;  interview  with  EMSA  +  with  selected 
Member  States).  This 
the  calculation  of 
administrative costs using the Standard Cost Model. 

information  will 

feed 

What are the benefits of adopting the Regulation? 
The  benefits  of  the  regulation  can  be  organised  in  line  with  the 
Regulation’s objectives (see also evaluation question 3 effectiveness). 

Sub-question:  what  are  the  benefits  in  terms  of  improved  protection  of 
passenger rights in the event of accidents? 

  How much have liability complaints reduced? 

-  Numbers of complaints over time; 

- 

Impact  of  the  harmonization  generated  by  the  regulation:  lower 
number of complaints and/or % addressed satisfactorily; 

  Effort of passenger to obtain liability payments? 

Remark  on  data/inputs:  Information  on  these  aspects  will  be  based  on 
complaints  records  from  Member  States  authorities,  national  or  EU 
Ombudsman,  and  complemented  with  data  from  ECTAA  and  EPF. 
Interviews with the latter, as well as case studies, will be used to validate 
these data. 

Sub-question:  What  are  the  benefits  in  terms  of  an  improved  level 
playing field among operators? 

  Has the duration of the legal procedure after an accident been reduced 
in comparison with that before the Liability Regulation was introduced? 

Remark on data/inputs: Ideally for this factor, data is kept by authorities, 
ship-owners  or  passenger  representative  organisations.  These  will  be 
consulted  for  such  information.  Alternatively,  the  survey  will  be  used  to 
gain further insight. 

Sub-question:  What  are  the  benefits  in  terms  of  increased  maritime 
safety? 

  Numbers  of  accidents  (before/after  the  regulation),  number  of 

casualties injured; 

  Other  safety  improvements,  for  instance  improved  safety  equipment 

on board ships. 

Remark  on  data/inputs:  Data  on  numbers  of  accidents  and  severity  will 
be  taken  from  EMSA’s  EMCIP  database,  noting  the  limitations  of 
interpreting  these  data  (trends  related  to  better  reporting).  It  will  be 
important  to  distinguish  the  contribution  of  thee  Regulation  from  other 
safety  regulations  and  policies  that  may  have  impacted  the  number  of 
shipping accidents over the past years. 

Sub-question:  What  are  the  benefits  in  terms  of  a  better  balanced 
framework vis-à-vis other modes of transport? (we understand that this is 

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163 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
Efficiency 
6.  Do  the  costs  of  the  measures  adopted  in  the  Regulation  to  achieve  the 
aforementioned objectives remain reasonable and proportionate in relation to 
the benefits of the Regulation? 
referred to) 

  How is better information to passengers perceived? 

Remark  on  data/inputs:  Passenger  representative  organisations  will  be 
consulted on their views of the balance achieved and the benefit this has 
generated. 

Sub-question: Are there any other benefits? 

  Any unintended side effects affecting the regulation’s efficiency. 

Remark on data/inputs: This question will be answered in close relation 
to evaluation question 5 on effectiveness, for  this interviewees  will be 
asked  for  their  views  on  other  benefits  that  the  Regulation  has 
delivered. 

What do we consider reasonable and proportionate? 
The ratio of benefits and costs can be drafted on the basis of the first two 
sub-questions.  However  because  of  the  nature  of  the  measure  (a 
regulation  posing  continuous  costs),  an  assessment  of  the  annual 
cost/benefit  ratio  is  considered  more  appropriate  than  a  Cost  Benefit 
Analysis.  If  the  ratio  is  positive,  one  may  consider  the  costs  reasonable 
and proportionate in relation to the benefits. Other than that, we propose 
to: 

  Compare  with  other  liability  regimes  introduced  earlier  in  other 
transport  sectors  evaluations  of  those  regulations,  if  these  are 
available: 

-  Regulation 23027/97 on air transport liability; 
-  Regulation 1371/2007 on rail transport liability; 
-  Regulation  2009/20/EC  on  insurance  of  ship-owners  for  maritime 
claims  ex  post  evaluation  2015  (as  part  of  the  Third  Maritime 
Package) by the European Parliamentary Research Service. 
  Assess  the  efficiency  vis-à-vis  the  Athens  Convention  (by  adding 
national shipping to the scope + putting more stringent requirements?) 

-  To get the Athens convention effective (3rd MP IA states that main 
benefit  of  Liability  Regulation  is  that  it  resulted  in  28  countries 
ratifying  the  Athens  Conventions,  which  would  alternatively  have 
been much higher costs or delay); 

-  Would  international  liability  standards  (Athens  convention)  have 

been more efficient than the EU regulation? 

-  Understanding  that  international  might  be  better/more  efficient, 
but  an  EU  harmonized  approach  perhaps  more  stringent/more 
effective at low extra costs, thus still being considered efficient. 

What  role  do  exemptions/variations  in  application  play  in  the 
Regulation’s efficiency? 
In  some  Member  States,  additional  categories  of  ships  (C+D)  are 
included  in  the  scope,  while  in  other  countries  these  are  not.  Al so  for 
categories A and B there may be deviations in place. 
Sub-question: have exemptions or variations been applied with regard to 
ship  categories  A,  B,  C,  and  D  in  your  country?  To  clarify  what  these 

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Efficiency 
6.  Do  the  costs  of  the  measures  adopted  in  the  Regulation  to  achieve  the 
aforementioned objectives remain reasonable and proportionate in relation to 
the benefits of the Regulation? 
exemptions were. 
Sub-question:  To  what  extent  does  this  affect  the  efficiency?  Does  it 
increase or rather reduce efficiency? 
To assess this, we will collect information on: 

  Data on safety & complaints related to these types of ships; 

 

Indication of compliance costs for these ships; 

  Comparison between countries (NL/DK vs other EU Member States); 

  Comparison  with  exemptions/variations  included  in  other  liability 
regulations (ex post evaluations for air transport; maritime liability). 

Quantitative indicators 

Sources 

  European  Parliament  IA  of  the 
Third  Maritime  Safety  Package 
(2015); 

  Academic  studies  and  reports  on 
the effect of liability regulations on 
insurance premiums, fares and the 
capacity  of  the  market  to  offer 
insurance coverage; 

  UK 

the 
implementation of the Regulation; 

consultation 

on 

  Questionnaire to P&I clubs; 

  Questionnaire to carrier operators; 

  Questionnaire to port authorities; 

  Questionnaire 

to 
Enforcement Bodies; 

National 

  Passenger  complaints  gathered  by 
national  authorities  or  by  ECTAA 
or EPF; 

  EUR-LEX  (on  passenger  rights 
Regulations for different modes); 

  Expert  Group  meeting  on  national 
enforcement of passenger rights. 

In  terms  of  “direct  compliance 
costs”; 

  Average  increase  in  vessel 

insurance premiums; 

  Value  of 
obtain 
to 
vessel 
insurance certificate; 

fees  paid  per 
an 

 

Increase  in  workload  to 
comply with requirements; 

  Costs 

of 

advance 

payments; 

  Legal costs. 

 

In  terms  of  “enforcement 
costs”: 

  Costs 

incurred 

by 
authorities for monitor and 
enforce the regulation; 

  Adjudication 
incurred. 

costs 

  Benefits  can  be  quantified 

as: 

  Reduction 
complaints 
authorities; 

in  passenger 
received  by 

  Reduction in accidents; 

  Reduction  of  deviations  in 
rights 
for 

passenger 
protection  provisions 
different modes. 

information 

for 

Sources 

Additional 
evaluation 
Stakeholder 
benefits regarding: 

opinions 

on 

  Contribution  to  creating  a 

level playing field; 

  Targeted interviews with IGPANDI, 
EPF,  ECTAA,  Member  States 
inspection authorities; 

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165 

 
 
 
 
 
 
 
Efficiency 
6.  Do  the  costs  of  the  measures  adopted  in  the  Regulation  to  achieve  the 
aforementioned objectives remain reasonable and proportionate in relation to 
the benefits of the Regulation? 

 

Incentivising  improvement 
of safety performance. 

  Stakeholder survey; 

  Case studies (case law, case study 

interviews, case study data). 

on 

costs 

opinions 

and 
and 

Stakeholder 
perceptions 
benefits. 
Methodology 
The  assessment  of  benefits  will  align  as  much  as  possible  with  the 
aspects addressed under evaluation questions 3-4-5 effectiveness. 

In  order  to  include  them  in  the  CBA,  however,  they  will  need  to  be 
monetised. The study on the costs and benefits of regulation26F186 refers 
to  several  methods  to  do  this,  namely  Willingness  to  Pay  (WTP), 
Willingness  to  Accept  WTA),  Stated  Preference  (SP)  and  Revealed 
Preference  RP).  For  several  of  the  above  benefits,  such  values  can  be 
obtained from valuation studies at European level (e.g. value of statistical 
life  for  accidents),  but  for  other  benefits,  stakeholders  need  to  be 
consulted. 
Gathering data on costs is expected to be more difficult, in particular as it 
includes  an  element  of  commercial  sensitivity.  The  evaluation  will  target 
this data need by: 

  Collecting  publicly  available  tariff  data  on  certification  fees  and 

insurance premiums; 

  Contact  IGPANDI  and  its  member  P&I  clubs  as  well  as  Member  State 

inspectorates to obtain further detailed information; 

  Contact ECSA and individual ship-owners to obtain cost information; 

  Conduct  interviews  with  selected  stakeholders  (see  stakeholder 
overview matrix) to verify information collected and where possible to 
acquire further understanding or details; 

  Use  the  survey  to  collect  opinions  on  levels  and  directions  of  costs 

observed. 

The  analysis  of  efficiency  will  in  particular  take  account  of  potential 
differences  between  EU  Member  States,  by  analysing  the  costs  and 
benefits  observed  at  a  country  level,  to  the  extent  possible.  This  should 
provide an understanding on: 

  The  efficiency  in  countries  that  had  already  signed  the  Athens 
Convention  before  the  Liability  Regulation  was  introduced  versus 
countries that had not; 

  The efficiency in countries that have included ship categories  C and D 

versus in countries that have not. 

Efficiency of the regulation then implies a ratio of costs to benefits (or in 
other  words:  inputs  to  intended  effects)27F187,  as  well  as  an  assessment 
of the possibilities to improve this ratio. 

186   http://ec.europa.eu/smart-regulation/impact/commission_guidelines/docs/131210_cba_study_sg_final.pdf. 
187   http://ec.europa.eu/smart-regulation/guidelines/tool_43_en.htm. 

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Coherence 
7. To what extent does the Regulation fit in well within the framework of the 
EU maritime safety policy and passenger  rights policy and, more specifically, 
within  the  Union's  approach  to  transport  operators'  liability?  Whether  there 
are any overlaps, gaps or inconsistencies? 
What do we want to measure? 
This Regulation is part of the Third Maritime Safety Package. This consists 
of  a  series  of  7  proposals  intending  to  supplement  European  maritime 
safety  rules and improve  the  efficiency  of  the  measures  already in  place. 
The  liability  provisions  of  the  Third  Maritime  Safety  Package  are 
complemented  by  the  Directive  on  extra-contractual  liability  of  ship-
owners.  In  order  to  assess  the  coherence  of  the  Liability  Regulation  with 
the overall EU maritime safety policy the following sub-question needs to 
be addressed: 
Sub-question:  To  what  extent  does  the  Regulation  fit  in  the  EU  maritime 
safety policy? 

  What are the main objectives of the EU maritime safety policy? 

  Do  the  Regulation  and  overall  maritime  safety  policy  have  similar 

objectives? 

  Are  there  any  parts  of  the  Regulation  conflicting  with  the  main 

objectives of the EU maritime safety policies? 

Remark  on  data/input:  To  assess  the  coherence  between  the  Regulation 
and  the  EU  maritime  safety  policy it is  vital to  analyse  the  relevant legal 
and accompanying documents, e.g. negotiation history, policy papers and 
other background information. The findings of this desk research needs to 
be  validated  with  the  authors  of  both  the  regulation  and  the  maritime 
safety policy, as well as with the relevant stakeholders. 

from  the  Commission  on  “A  European  vision 

Additionally,  the  Union  has  actively  pursued  harmonisation  of  passenger 
rights  protection  for  all  modes  of  transport.  This  is  described  in  the 
for 
Communication 
Passengers”. In that, this Regulation does not stand alone, but should be 
seen  as  part  of  the  overall  effort  to  safeguard  passenger  rights  and 
incentivise an ameliorated safety performance. Relevant regulations have 
been  adopted  to  protect  also  air,  rail  and  road  passenger  rights. 
Additionally, regarding aviation, a separate regulation have been adopted 
to  foster  the  protection  of  Reduced  Mobility  Passengers  and  that  of 
disabled  passengers.  In  order  to  assess  the  coherence  of  Regulation 
392/2009  with  the  overall  EU  passenger  rights  policy  the  following  sub-
question needs to be addressed: 
Sub-question: To what extent does the Regulation fit in the EU passenger 
rights policy? 

  What are the main objectives of the EU passenger rights policy? 

  Are  the  objectives  set  in  the  Regulation  in  line  with  the  objectives  of 

the EU passenger rights policy? 

  Are there any parts of the Regulation conflicting with the EU passenger 

rights policy? 

  Which passenger rights are protected in other modes (i.e. air, rail and 

road)? 

  Are  the  protected  passenger  rights  in  the  Regulation  similar  to  the 

protected rights in the other modes? 

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Efficiency 
6.  Do  the  costs  of  the  measures  adopted  in  the  Regulation  to  achieve  the 
aforementioned objectives remain reasonable and proportionate in relation to 
the benefits of the Regulation? 

  Are  there  deviations  between  the  levels  of  protection  in  maritime 

transport compared to the other modes? 

Remarks on data/input: Again, starting point of the assessment will be an 
extensive  desk  research.  The  relevant  policy  documents,  legislation  and 
background  documents  will  be  analysed.  The  findings  of  this  part  will  be 
validated  with  the  authors  of  the  policy  and  other  Regulations.  For 
triangulation  of 
like  passenger 
organisations,  consumer  organisations  and  legal  stakeholders  will  be 
interviewed. Also a survey will be conducted aiming to collect experiences 
from national stakeholders. 

relevant  stakeholders 

facts, 

the 

In  addition  to  the  assessment  whether  or  not  the  Regulation  is  coherent 
with  the  EU  passenger  rights’  policy,  a  detailed  assessment  will  be  made 
on  the  coherence  between  the  Regulation  and  the  EU  approach  to 
transport  operators’  liability.  Is  the  liability  system  in  line  with  the 
liability systems adopted for other modes (i.e. rail, road and air)? 

Sub-question:  To what  extent  does  the  Regulation  fit in the  EU  approach 
to transport operators’ liability? 

  What  are  the  main  objectives  of  the  EU  approach  to  transport 

operators’ liability? 

  Are  the  objectives  set  in  the  Regulation  in  line  with  the  objectives  of 

the EU approach to transport operators’ liability? 

  Are there any parts of the Regulation conflicting with the EU approach 

to transport operators’ liability? 

  How is transport  operators’ liability regulated in other modes (i.e. air, 

rail and road)? What is the scope, exemptions etc.? 

 

Is  the  transport  operator’s  liability  similar  to  the  liability  in  the  other 
modes? 

  Are  there  deviations  between  the  levels  of  protection  in  maritime 

transport compared to the other modes? 

Remarks on data/input: Also for this part of the evaluation, desk research 
will  be  the  starting  point  of  the  analysis.  Based  on  the  relevant  policy 
documents,  legislative  acts  and  their  accompanying  documents  a  good 
understanding  of  the  EU  approach  to  operators’  liability  can  be  obtained. 
This  desk  research  will  be  further  supplemented  with  relevant  academic 
literature  on transport  operators’ liability  and  factual  documentation.  The 
findings  will  be  validated  with  the  main  authors  of  the  EU  approach.  For 
triangulation  purposes  several  targeted 
interviews  with  the  main 
stakeholders  will  be  conduced  and  a  survey  will  be  used  to  collect  views 
from national stakeholders. 

The Regulation on liability and compensation for damage of passengers in 
the event of maritime accidents needs to be examined in close connection 
with  the  provisions  of  the  above  mentioned  legislative  acts.  The 
coherence  of  the  Regulation  with  the  rest  of  the  legislation  of  these  two 
policy  areas  (maritime  safety  and  passenger  rights  protection  (including 

168 

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Efficiency 
6.  Do  the  costs  of  the  measures  adopted  in  the  Regulation  to  achieve  the 
aforementioned objectives remain reasonable and proportionate in relation to 
the benefits of the Regulation? 
the  transport  operators’  liability))  needs  to  be  examined  for  overlaps, 
potential gaps and inconsistencies. 

Indicators 

Sources 

  Qualitative indicators: 

  EUR-Lex; 

provisions 

  The  level  of  harmonisation 
between  the  Regulation  No 
392/2009 
on 
passenger  rights  protection 
and  that  of  the  passenger 
rights  regulations  for  other 
modes;  as  well  as 
the 
transport operators’ liability; 

  The level of coherence of the 
Regulations  with  the  rest  of 
the  Third  Maritime  Safety 
Package legislative acts. 

  Third Maritime Safety Package; 

  A 

vision 

European 

for 
Passengers:  Communication  on 
Passenger Rights in all transport 
modes {COM(2011) 898 final}; 

  European  Parliament  IA  of  the 
Third  Maritime  Safety  Package 
(2015); 

  Ex-post evaluation of Regulation 
261/2004  on  air  passenger 
rights (2010); 

  Ex-post evaluation of Regulation 
1371/2007  on  rail  passenger 
rights (2012); 

  Ex-post evaluation of Regulation 
1107/2006  on  protection  of 
people  with  reduced  mobility 
when travelling by air; 

  Targeted stakeholder interviews. 

Additional 
evaluation 

information 

for 

Sources 

  Stakeholder 

input  on 

the 
coherence  of  the  Regulation 
with 
the  Third  Maritime 
Safety  Package  and  the  rest 
of 
safety 
regulations; 

the  maritime 

  Expert 

on 

input 

the 
adequacy  of  the  Regulation 
to  incentivise  better  safety 
performance  and  increased 
passenger rights protection. 

  Questionnaire 
operators; 

  Questionnaire 
organisations 
organisations; 

for 

carrier 

for  passenger 
consumer 

  Questionnaire 

for 

national 

competent authorities; 

  Expert  Group  meeting 

national 
passenger rights; 

enforcement 

on 
of 

  Targeted 

interviews; 

stakeholder 

  Open public consultation results. 

Methodology 
The  answer  to  this  question  will  be  given  through  an  analysis  of  the 
objectives/requirements  of  the  Regulation  and  those  of  the  other 
legislative  acts  in  the  areas  of  maritime  safety  and  passenger  rights 
protection  in  search  for  overlaps  in  their  provisions,  gaps  in  the 
protection  of  passenger  rights  and  inconsistences  of  the  regulations  for 

Support study to the Evaluation of Regulation (EC) 392/2009 

169 

 
 
 
 
 
 
 
 
 
Efficiency 
6.  Do  the  costs  of  the  measures  adopted  in  the  Regulation  to  achieve  the 
aforementioned objectives remain reasonable and proportionate in relation to 
the benefits of the Regulation? 
the  different  modes.  Central  in  the  analysis  are  the  policy  documents 
relating  to  the  EU  maritime  safety  policy,  the  EU  passenger  rights  policy 
and  the  EU  approach  to  transport  operators’  liability.  As  indicated  before 
besides  extensive  desk  research,  findings  will  be  validated  with  the 
respective  authors  of  the  policy  to  get  a  full  understanding  of  the 
intentions of the different policies. 

The  evaluations  of  the  relevant  passenger  rights  protection  regulations 
for  other  modes  will  be  reviewed  in  order  to  identify  possible  differences 
between  the  level  of  protection  as  well  as  the  transport  operators’ 
liability.  Besides  an  extensive  desk  research  the  differences/gaps  can  be 
identified through stakeholder consultation. The main stakeholders will be 
interviewed,  while  others  will  be  approached  via  a  survey.  Especially  the 
input  from  national  stakeholders  will  be  obtained  through  the  survey. 
Although  we  aim  to  approach  all  relevant  national  stakeholders  and  do 
are utmost best to achieve the highest possible response rate, it deserves 
mentioning  that  it  is  possible  that  not  all  national  stakeholders  are 
able/willing  to  answer.  Therefore,  it  might  be  difficult  to  obtain  the  full 
picture. 

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Coherence 
8.  Are  the  objectives  of  the  Regulation  (still)  coherent  with  the  EU 
Transport  policy,  notably  the  White  Paper  on  Transport  (not  published 
when it was adopted), and ten policy areas that are set as priorities by the 
current European Commission (as announced in July 2014)? 
What do we want to measure? 
This question seeks to investigate the coherence of the Regulation with the 
higher  level  EU  Transport  policy  objectives.  These  are  set  out  in  the  2011 
White  paper  on  Transport  in  relation  to  passenger  rights  protection, 
maritime  and  transport  safety,  creation  of  a  level  playing  field  and 
improvement  of  the  level  of  transport  services.  The  objectives  of  the 
Regulation as  well as the  results  obtained  from its implementation  need  to 
be  compared with  the ambitions  set in the White  Paper.  In  order to  do  so, 
the following are relevant: 
Sub-questions: 

  What are the main objectives of the 2011 White Paper on Transport? 

  Are the objectives set in the Regulation in line with the objectives of the 

2011 White Paper on Transport? 

  Are  there  any  parts  of  the  Regulation  conflicting  with  or  deviating  from 

the 2011 White Paper on Transport? 

Remarks on data/input: Large part of the assessment will be based on desk 
related  background 
research.  The 
information  will  be  analysed.  The  findings  of  the  desk  research  will  be 
validated  with  the  main  authors  of  the  Regulation  and  the  EU  Transport 
policy. 

relevant  policy  documents  and 

The  Junker  Commission  announced  in  July  2014  the  ten  policy  priority 
areas  for  the  current  European  Commission.  The  coherence  of  the 
orientation  of  the  Regulation  with  the  policy  priorities  as  formed  the 
Political  Guidelines  for  the  European  Commission  announced  by  Jean-
Claude  Juncker  needs  to  be  assessed  as  well.  In  order  to  do  so,  the 
following need to be addressed: 
Sub-questions: 

  What are the main objectives of these 10 priority policy areas? 

  What are the most relevant policy areas in relation to the Regulation? 

  Are the objectives of the Regulation in line with the objectives set in the 

relevant priority policy areas? 

  Are  there  any  parts  of  the  Regulation  conflicting  with  or  deviating  from 

the relevant priority policy areas? 

Remarks  on  data/input:  Again,  main  sources  of  input  will  be  the  relevant 
policy  documents.  Information  on  the  ten  priority  areas  will  be  collected 
and  analysed.  Information  ranges  from  relevant  policy  documents  to 
additional  background 
information  and  other  publically  available 
information. Information with the main stakeholders will be conducted. This 
will be mainly other DGs. 
Indicators 

Sources 

  Qualitative indicators: 

  2011 White Paper on Transport; 

  Level  of  alignment  of  the 
Regulation  objectives  and 
impacts  with 
EU 
Transport Policy objectives; 

the 

  Level  of  alignment  of  the 
Regulation  objectives  and 
the  policy 
impacts  with 

  Political  Guidelines  for  the  Next 

Commission; 

  Targeted stakeholder interviews. 

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Coherence 
8.  Are  the  objectives  of  the  Regulation  (still)  coherent  with  the  EU 
Transport  policy,  notably  the  White  Paper  on  Transport  (not  published 
when it was adopted), and ten policy areas that are set as priorities by the 
current European Commission (as announced in July 2014)? 

objectives 
Juncker 
Guidelines. 

se 

in 
the 
Political 

for 

opinions 

Sources 

information 

surveys (EU level stakeholder). 

  Qualitative  comments  for  stakeholder 

Additional 
evaluation 
on 
Stakeholder 
perceived  alignment  with  EU 
transport policy objectives. 
Methodology 
Assessing  the  coherence  of  the  Regulation  with  the  higher  level  EU  policy 
directions  requires  examination  of  the  objectives  as  well  as  the  assessed 
impacts  of  the  Regulation  in  contrast  with  the  objectives  for  transport  as 
set  in  the  2011  White  Paper  for  Transport.  Additionally,  coherence  of  the 
Regulations  impacts  with  the  ten  policy  priority  areas  identified  in  the 
Political  Guidelines  delivered  by  President-elect  Juncker  will  be  assessed. 
To  formulate  an  informed  opinion,  not  only  the  relevant  document  will  be 
analysed, but also the relevant EC DGs will be interviewed to obtain a clear 
understanding of the embedment of the Regulation in higher EU policy. 

EU Added Value 
9.  What  added  value  compared  to  the  international  and  national  regimes  for 
liability of carriers of passengers at sea has the Regulation brought? 
What do we want to measure? 
This  section  will  look  at  whether,  and  if  so,  to  what  extent,  the 
Regulation’s  additional  requirements  did  bring  benefits  on  an  EU  level 
compared  to  the  previously  existing  combination  of 
international 
legislation  and  national  regimes  governing 
liability  of  carriers  of 
passengers  by  sea.  To  answer  this  question,  two  sub-questions  need  to 
be addressed: 
Sub-questions: 

  What are the main additions of the Regulation to the previous system 

of international and national legislation? 

  Which (i.e.  relating to  protection/liability/information) gaps have been 
filled  by  the  Regulation  compared  to  the  previous  system  of 
international and national legislation? And can therefore be considered 
as advantages? 

  Which Member States have deferred the Regulation application for A & 

B classes? And what have been the reasons for doing so? 

Remarks  on  data/input:  To  answer  these  questions  the  team  will  mainly 
depend  on  input  provided  by  different  stakeholders.  It  is  expected  that 
only  limited  information  can  be  obtained  through  desk  research  as  most 
documents  will  relate  to  facts  instead  of  identifying  the  main  perceived 
advantages/gaps.  As  the  main  input  will  be  stakeholder  opinions,  the 
analysis  needs  to  be  conducted  carefully  in  order  to  avoid  a  biased 
outcome. 

Additionally,  this  section  will  address  also  questions  regarding  the 
fulfilment of the principles of conferral, subsidiarity and proportionality by 
this Regulation. Specifically: 
Sub-questions: 

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EU Added Value 
9.  What  added  value  compared  to  the  international  and  national  regimes  for 
liability of carriers of passengers at sea has the Regulation brought? 

  Does  producing  the  Regulation  fall  within  the  competences  of  the  EU, 
in the light of the founding treaties, more specifically  Article 5.2 TEU? 
(principle of conferral); 

  Does  action  at  an  EU  level  deliver  clear  advantages  that  cannot  be 
delivered  by  actions  of  the  EU  countries,  more  specifically  Article  5.3 
TEU? (principle of subsidiarity); 

  Do  the  content  and  the  form  of  the  action  not  go  beyond  what  is 
necessary  to  achieve  the  objectives  set  by  the  Treaties,  more 
specifically Article 5.4 TEU? (Principle of proportionality). 

Remarks  on  data/input:  It  is  important  to  analyse  whether  or  not  the 
Regulation falls in the scope of the different principles. In order to assess 
the exact scope of the principles information on the principles needs to be 
collected.  This  will  be  done  through  policy  documents  and  court  rules 
where possible. 
Indicators 
Qualitative indicators: 

Sources 

  Desk 

  Has 

the 

Regulation 
delivered  sufficient  benefits 
to  justify  EU  action  that 
could  not  be  produced  by 
national 
legislation 
regarding: 

-  Strengthen 

the 
protection  of  passenger 
rights; 
-  producing 

level 

a 

research  on  preciously 
existing  national  regimes  and 
regulations  regarding  passenger 
vessel liability; 

  Desk 

research  on  previously 
existing  national  procedures  for 
processing  passenger  complains 
and 
national 
legislation; 

enforcing 

  Desk 

research 
international legislation; 

on 

relevant 

- 

playing field; 
increase 
performance; 

safety 

-  contribute  to  creating  a 
balanced  framework  of 
rights 
passenger 
protection 
across 
transport modes. 

  European  Parliament  IA  of  the 
Third  Maritime  Safety  Package 
(2015); 

  UK 

consultation 

on 

implementation 
Regulation; 

of 

the 
the 

  Questionnaire 

to  P&I 

operators, 

clubs, 
passenger 
carrier 
organisations, 
consumer 
organisations,  port  authorities 
National Enforcement Bodies; 

  Court cases. 

Additional 
evaluation 

information 

for 

Sources 

  Stakeholder  input  on  the 
contribution 
the 
additional  requirements  to 
delivering benefits. 

of 

  Stakeholder survey; 

  Targeted interviews; 

  Case studies. 

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173 

 
 
 
 
 
 
 
 
EU Added Value 
9.  What  added  value  compared  to  the  international  and  national  regimes  for 
liability of carriers of passengers at sea has the Regulation brought? 
Methodology 
The  main  part  of  the  value  added  question  (i.e.  the  part  of  the  value 
added brought by the Regulation compared to the previous situation) will 
be  largely  based  on  stakeholder  input.  Although  we  aim  to  approach  all 
relevant  national  stakeholders  and  do  are  utmost  best  to  achieve  the 
highest  possible  response  rate,  it  deserves  mentioning  that  it  is  possible 
that not all national stakeholders are able/willing to answer. Therefore, it 
might  be  difficult  to  obtain  the  full  picture.  In  addition,  it  is  crucial  to 
ensure  that  the  picture  is  well  balanced  and  does  not  give  a  biased 
overview. 

For  second  part  of  this  evaluation  the  answer  will  be  mainly  based  on 
desk  research  and  analysis  of  relevant  court  cases.  Crucial  is  to  collect 
the  most  relevant  court  cases,  especially  the  ones  relating  to  one  of  the 
three  founding  principles  and  maritime  passengers.  If  such  cases  do  not 
exist, cases that are somewhat similar will be selected. 

Complementarity 
10.  To  what  extent  has  the  Regulation  been  successful  in  supplementing  the 
Athens Convention and any national regimes on liability of passenger carriers 
in case of accidents at sea applicable in the Member States? 
What do we want to measure? 
This  section  will  look  at  whether,  and  if  so,  to  what  extent,  the 
Regulation’s  additional  obligations  compared  to  the  Athens  Convention 
did  bring  benefits  on  an  EU  level.  In  order  to  answer  this  question,  the 
following sub-questions are relevant: 
Sub-questions: 

  What is covered by the Athens Convention? 

  What  are  the  main  additions  the  Regulation  brings  compared  to  the 
for 
terms 

(in 
Athens 
compensation/liability, and other passenger rights)? 

Convention 

grounds 

scope, 

of 

  Where do the Regulation and the Athens Convention overlap? 

  Where does the Regulation deviate from the Athens Convention? 

 

In case additional passenger rights are given by the Regulation, is this 
considered to be a success? 

Remarks  on  data/input:  to  answer  most  of  the  sub-questions  desk 
research  will  be  conducted.  The  Athens  Convention  and  the  related 
protocol  will  be  studied  as  well  as 
relevant  background 
documentation.  The  findings  will  be  validated  with  relevant  stakeholders. 
To  answer  the  last  sub-question,  stakeholder  input  is  required.  In  order 
to obtain this target interviews as well as a survey will be held. 

the 

As  a  second  step,  the  team  will  assess  whether  the  Regulation  (EU  law) 
impose  conflicting  or  overlapping  obligations  on  Member  States,  or  other 
burdens  that  result  in  inefficiencies  in  delivering  higher  sea  passenger 
transport  services  safety  performance.  To  answer  this  question,  the 
following sub-questions are of relevance: 
Sub-questions: 

  What  was  regulated  by  the  national  liability  of  passenger  carriers, 

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Complementarity 
10.  To  what  extent  has  the  Regulation  been  successful  in  supplementing  the 
Athens Convention and any national regimes on liability of passenger carriers 
in case of accidents at sea applicable in the Member States? 

before introduction of the Regulation? 

  Which  bottlenecks  have  been  overcome  with  the  introduction  of  the 

Regulation? 

  Are there still any difficulties with regard to passenger right protection? 

  Are  difficulties  experienced  now  that  two  systems,  i.e.  the  Regulation 

and the Athens Convention, are in place? 

Remarks  on  data/input:  the  sub-questions  mainly  relate  to  national 
liability  systems.  To  obtain  information,  national  authorities  need  to  be 
contacted. In order to do so a survey will be sent. Although the team will 
do its utmost best to contact all relevant national authorities, it is unsure 
whether  or  not  answers  from  all  national  stakeholders  will  be  received. 
Missing  information  leads  to  an  information  gap,  which  will  make  it 
difficult to answer this part of the evaluation question. 
Indicators 
Qualitative indicators: 

  Athens Convention; 

Sources 

  Benefits  derived  from  the 
additional  requirements  of 
the Regulation; 

 

Is  there  an  overlap  between 
the 
the  Regulation  and 
Athens Convention? 

  Are 

there 

conflicting 
requirements  deriving  from 
simultaneous 
the 
implementation 
the 
Regulation  and  the  Athens 
Convention? 

of 

  European  Parliament  IA  of  the 
Third  Maritime  Safety  Package 
(2015); 

  UK 

consultation 

on 

implementation 
Regulation; 

of 

the 
the 

  Survey  to  relevant  authorities  in 

Member States. 

Additional 
evaluation 

information 

for 

Sources 

  Stakeholder 

input  on  the 
simultaneous  application  of 
the 
the 
regulation  and 
Athens Convention. 

  Targeted interviews; 

  Questionnaire 

for 
Enforcement Bodies; 

National 

  Questionnaire for P&I clubs; 

  Questionnaire  for  passenger  and 

victims associations; 

  Case studies. 

Support study to the Evaluation of Regulation (EC) 392/2009 

175 

 
 
 
 
 
 
 
Complementarity 
10.  To  what  extent  has  the  Regulation  been  successful  in  supplementing  the 
Athens Convention and any national regimes on liability of passenger carriers 
in case of accidents at sea applicable in the Member States? 
Methodology 
This section will rely on the liability system that would have existed if the 
Regulation was not in place. It will look at how passenger rights would be 
protected  should  they  have  been  affected  only  by  the  provisions  of 
Athens Convention and/or national legislation. Therefore, the analysis will 
look  at  the  situation  that  would  have  existed  without  the  additional 
requirements  of  the  Regulation  and  will  compare  that  situation  to  the 
existing  one  where  the  Regulation  requirements  are  in  force.  This  will 
allow  the  measuring  of  the  benefits  (i.e.  added  values)  of  the  additional 
requirements  of  the  Regulation.  Consideration  will  also  be  given  to  the 
possible (in) efficiencies caused by the coexistence of Regulation and the 
Athens Convention. 

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ANNEX 2   SURVEY QUESTIONNAIRE  

Background 
Regulation  392/2009  has  been  adopted  as  part  of  the  third  maritime  safety 
legislative  package.  Liability  rules  for  damages  caused  to  passengers  are 
important  to  safeguard  passengers'  rights,  but  also  to  create  a  level  playing 
field  for  carriers  across  Europe  fostering  responsible  shipping  practices  and, 
indirectly, raising safety standards. 

Regulation  392/2009  lays  down  rules  for  the  establishment  and  organisation 
of  a  strict  liability  regime  for  carriers  of  passengers  by  sea,  coupled  with  a 
mandatory insurance obligation for the carrier, and a right of direct  recourse 
of  the  passenger  against  the  carrier’s  insurer.  This  regime  is  in  fact 
established  in  the  Athens  Convention  relating  to  the  Carriage  of  Passengers 
and  their  Luggage  by  Sea,  and  is  reproduced  in  Annex  1  of  the  Regulation. 
Objectives of the regulation are: 
To ensure that passenger rights are protected in the event of accidents; 
To  create  a  level  playing  field  for  operators  promoting  best  practices  and 
responsible behaviour; 
To  incentivise  increased  safety  and  security  performance  of  passenger 
transport operators; 
To assist in setting up and complementing a balanced framework of passenger 
rights protection also regarding the right to information, special compensation 
for reduced mobility passengers and the right to an advance payment. 

The  European  Commission  has  initiated  the  ex-post  evaluation  of  Regulation 
392/2009  on  the  Liability  of  Carriers  of  Passengers  by  Sea  in  the  Event  of 
Accidents  and  has  granted  a  contract  to  carry  out  the  evaluation  to  the 
consortium  consisting  of  Ecorys  (leading  partner),  Grimaldi  and  Erasmus 
School  of  Law  (ESL).The  evaluation  will  provide  the  Commission  with  an 
independent  evidence-based  assessment  of  the  application  of  Regulation 
392/2009 in the first three years since it became applicable, 2013-2015. This 
evaluation shall also provide input to the Commission to, as per Article 1 (3), 
if appropriate, present a legislative proposal in order, inter alia, to extend the 
scope  of  this  Regulation  to  ships  of  Classes  C  and  D  under  Article  4  of 
Directive 98/18/EC. 

Explanatory note 
The  application  of  the  Regulation  is  foreseen  to  gradually  expand  to  all 
domestic carriage vessels belonging to classes A and B. Article 4 of Directive 
98/18/EC classifies domestic carriage vessels into 4 classes. 

Structure of the questionnaire 
The questionnaire consists of the following sections: 
Part I: Respondent information; 
Part II: Problems that the Regulation aims to address; 
Part III: Functioning of the Regulation; 
Part IV: Practical experiences and suggestions. 

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177 

 
 
 
 
 
 
 
 
 
 
 
 
any 

Support 
For 
contact 
to 
passenger.carrier.liability@ecorys.com.  If  you  cannot  continue  the  survey 
while waiting for support, you can stop the survey and continue later. 

questions 

relevant 

survey, 

please 

the 

Confidentiality clause 
ECORYS  adheres  to  the  EU’s  legislation  on  the  protection  of  personal  data 
(Regulation  (EC)  45/2001).  Any  data  collected  through  this  survey  will  be 
managed  in  line  with  these  requirements  and  will  not  be  shared  with  third 
parties. The survey results will thereto be stored in a confidential manner. 

The data collected will be aggregated and presented anonymously in the main 
report.  It  will  be  guaranteed  that  individual  answers  will  not  be  traceable  to 
the companies approached.  

Please  inform  us  should  your  company  policy  require  additional  safeguards 
with regard to compliance. We would be pleased to cooperate on this matter. 

Important caveat 
Please  note  that  this  document  has  been  drafted  for  information  and 
consultation purposes only. It has not been adopted  or in any way approved 
by the European Commission and should not be regarded as representing the 
view  of  the  Commission.  It  does  not  prejudge,  or  constitute  the 
announcement  of  any  position  on  the  part  of  the  Commission  on  the  issues 
covered.  The  European  Commission  does  not  guarantee  the  accuracy  of  the 
information  provided,  nor  does  it  accept  responsibility  for  any  use  made 
thereof. 

This questionnaire will take about 30 minutes to complete. 

Part I Respondent information 
1. In what capacity are you completing this questionnaire?* 

Capacity 
My personal capacity 
Private sector company 
Industry association or NGO 
National public authority 
Lawyer acting for claimants under the Regulation 
Other, please specify 

Select one 
o 
o 
o 
o 
o 
o 

178 

Support study to the Evaluation of Regulation (EC) 392/2009 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
2. What country or region are you based?* Select one answer. 

  Austria  

  Belgium 

  Bulgaria 

  Croatia 

  Cyprus 

  Czech Republic 

  Denmark  

  Estonia 

  Finland  

  France 

  Germany  

  Greece 

  Hungary 

 

 

Ireland 

Italy 

  Latvia 

  Lithuania 

  Luxembourg 

  Malta 

  Netherlands 

  Poland  

  Portugal  

  Romania  

  Slovakia  

  Slovenia  

  Spain 

  Sweden 

  United Kingdom 

 

Iceland 

  Norway 

  Europe non-EU  

  USA 

  Canada 

  Rest of America 

  Asia 

  Africa 

  Australia 

  Other, please specify: 

3. Indicate the sectors in which you are engaged* 

Inspectorate 

Sector 
EU  Member  State  Policy  making 
authority 
EU  Member  State 
authority 
Ship owner operator 
Passengers victims association 
Insurer 
Third (non-EU) state 
Law firm 
Academic 
Other, please specify: 

Select at least one 
o 

o 

o 
o 
o 
o 
o 
o 
o 

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179 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Part II Underlying problems, environment and scope of the Regulation 
4. Which  of  the  following  problems  that  were  identified  at  the  development 
stage of the Regulation are in your opinion still important problems that the 
Regulation should address in today’s society? 

No 
strong 
opinion 
o 

Unimportant 
problem 

o 

Very 
unimportant 
problem 
o 

Very 
important 
problem  
o 

o 

Important 
problem 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

Main problems 

A)  Rights  of 
passengers  are 
not  sufficiently 
protected 
level 
B)  No 
playing  field  for 
passenger 
carriers  in  the 
EU 
C) Potential risk 
the  safety 
to 
of 
level 
passengers 
carriage by sea 
Other 
problems, 
please  specify: 
(1) 
Other 
problems, 
please  specify: 
(2) 
Other 
problems, 
please  specify: 
(3) 

What causes the stated problems? 

IF  RESPONDENT  SCORES  Q4  (A)  AS  VERY  IMPORTANT  PROBLEM  OR  IMPORTANT 

PROBLEM: 

--> GO TO Q5. OTHERWISE: GO TO Q6. 

5. In  today’s  society,  are  the  following  factors  important  contributors  to  the 
stated problem “Rights of passengers are not sufficiently protected”? 

180 

Support study to the Evaluation of Regulation (EC) 392/2009 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Very 
important 
Contributo
r 
o 

Important 
contributo
r 

o 

No 
strong 
opinio
n 
o 

Unimportan
t 
contributor 

o 

Very 
unimportan
t 
contributor 
o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

Passengers 
not 
are 
aware 
of 
their rights in 
case 
of 
accidents 
Insufficient 
compensatio
for 
n 
passengers in 
case 
of 
accidents 
Carriers  are 
not  liable  for 
the 
loss  of 
mobility 
equipment  of 
person  with 
reduced 
mobility in an 
accident 
Long  time  for 
receiving 
compensatio
n  
Lack  of  legal 
for 
certainty 
victims 
and 
carriers 
Other 
cause(s), 
please 
specify: (1) 
Other 
cause(s), 
please 
specify: (2) 
Other 
cause(s), 
please 
specify: (3) 

IF  RESPONDENT  SCORES  Q4  (B)  AS  VERY  IMPORTANT  PROBLEM  OR 
IMPORTANT PROBLEM: 
-> GO TO Q6. OTHERWISE: GO TO Q7. 

Support study to the Evaluation of Regulation (EC) 392/2009 

181 

 
 
 
 
 
 
 
 
 
 
6. In today’s society, are the following factors still important contributors to the stated 

problem “No level playing field for carriers in the EU”? 

Very 
important 
Contributo
r 
o 

Important 
contributo
r 

o 

No 
strong 
opinio
n 
o 

Unimportan
t 
contributor 

o 

Very 
unimportan
t 
contributor 
o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

for 

for 

Rights 
compensatio
n  (standards) 
differ  in  EU 
Member 
States 
Unlimited 
liability 
carriers 
(including 
terrorism 
risks)  cannot 
be  combined 
with 
mandatory 
insurance 
Lack  of  legal 
for 
certainty 
victims 
and 
carriers 
Other 
cause(s), 
please 
specify: (1) 
Other 
cause(s), 
please 
specify: (2) 
Other 
cause(s), 
please 
specify: (3) 

182 

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Changes in the operational environment of the Regulation  

7. Have  there  been  developments  (e.g.  policy,  legal,  technological)  since  the 

introduction of the Regulation that affect the way it is implemented? 

o  Yes (please specify in box below) 
o  No 

If Yes, please specify 

Scope of the Regulation 
8. Can the Regulation fully reach its objectives covering international carriage 
and  only  some  types  of  domestic  carriage  (classes  A  and  B  as  defined  in 
Article 4 of Directive 2009/45/EC28F188)? 

o  Yes 
o  No  
o  Partially 
o  Don’t know 

Please elaborate your answer in box below 

Q9  ONLY  TO  BE  RESPONDENT  BY  MEMBER  STATES  (SO  Q3:  EU  MEMBER 
STATE  POLICY  MAKING  AUTHORITY  OR  EU  MEMBER  STATE  INSPECTORATE 
AUTHORITY) 

9. Has your country made use of the possibility to apply the  Regulation to all 
domestic seagoing voyages (in accordance with Article 2 of the Regulation)? 

o  Yes 
o  No 
o  Partially 
o  Don't know 

Please elaborate your answer in box below: 

188   OJ L 163, 25.6.2009, p. 1: http://eur-lex.europa.eu/eli/dir/2009/45/oj. 

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183 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
10.  How important are the  stated problems in relation to domestic carriage 

in classes C and D? 

Very 
important 
problem 
o 

o 

o 

Main problems 

Rights 
of 
passengers  are 
not  sufficiently 
safeguarded 
No level playing 
field for carriers 
in the EU 
Potential  risk  to 
the  safety  level 
of  passengers 
carriage by sea 

Important 
problem 

o 

o 

o 

No 
strong 
opinion 
o 

o 

o 

Unimportant 
problem 

o 

o 

o 

Very 
unimportant 
problem 
o 

o 

o 

Q11  ONLY  TO  BE  RESPONDENT  BY  MEMBER  STATES  (SO  Q3:  EU  MEMBER 
STATE  POLICY  MAKING  AUTHORITY  OR  EU  MEMBER  STATE  INSPECTORATE 
AUTHORITY) 

11. 

Does your country apply the Regulation on High Speed Craft (HSC): 

in  ports  of  your 

Yes  No 
o 

o 

Please specify 

the 

flag  of  your 

o 

o 

Calling 
country 
Flying 
country 

184 

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Part III Functioning of the regulation 
Objectives 

12. 

How  has  the  implementation  of  the  Regulation  affected  its  originally 

stated objectives? 

Ensuring 
that  passenger 
rights  are  protected  in  the 
event of an accident? 
level  playing 
Creating  a 
operators 
for 
field 
promoting  best  practices 
and responsible behaviour? 
increased 
Incentivised 
security 
safety 
performance 
sea 
passenger 
transport 
operators? 
Setting 
and 
complementing  a  balanced 
framework  of  passenger 
rights? 

and 

up 

of 

Very 
negative 

Negative  No 

Positive  Very 

effect 

positive 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

13. 

In  what  way  has  the  implementation  of  the  Regulation  impacted  the 

following aspects? 

in 

The  number  of  accident 
cases  ending 
court 
procedures? 
The  duration  of 
procedures 
accidents? 
The quantity and quality of 
to 
information  provided 
sea vessel passengers? 

legal 
after 

Large 
increase 

Some 
increase 

No 
effect 

Some 
decrease 

Large 
decrease 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

14. 

Has the Regulation resulted in any other type of effect? 

o  Yes 
o  No  

Please specify your answer in box below 

Support study to the Evaluation of Regulation (EC) 392/2009 

185 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Data needs (to be addressed only by Member State authorities) 

15. 

Can  you  please  specify  which  of  the  following  factors  impact  the 
calculation  of  the  fees  charged  to  provide  a  certificate  of  insurance  under 
the Regulation in line with the 2002 Athens Protocol requirements, and with 
the  IMO  Guidelines  of  2006?  Please  specify  how  these  fees  are  calculated 
(e.g. per vessel class, tonnage, passenger etc.) 

Yes  No 

If Yes, Please explain how 

It is a flat rate 

Vessel size 

Vessel passenger capacity 

Vessel  class  (A,  B,  C,  D  or 
HSC) 
Vessel age 

Vessel safety standards 

Vessel safety record 

Operating  company  safety 
standards 
Operating  company  safety 
record  
Country of operation 

Portion  of  time  operating  in 
EU water annually 
Other 
specify: 

(1),  please 

factor 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

Other 
specify: 

factor 

(2),  please 

o 

o 

Other 
specify: 

factor 

(3),  please 

o 

o 

Operational implications 

16. 

To  your  experience,  has  the  Regulation  resulted  in  any  of  the 

operational implications mentioned below? 

Yes  No 

If Yes, Please explain how 

Affected  the  operations  of 
your organisation? 

o 

o 

Led  your  organisation  to  a 
different  way  of  assessing 
vessel  safety  and  security 
standards? 
Led  your  organisation  to 
implementing  actions 
to 
improve  vessel  safety  and 

o 

o 

o 

o 

186 

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Yes  No 

If Yes, Please explain how 

security? 

Impacts 

17. 

How  has  the  implementation  of  the  Regulation  impacted  the  following 

aspects? 

Large 
increase 

Some 
increase 

No 
effect 

Some 
decrease 

Large 
decrease 

case 

receive 

for  a 
the 

The  level  of  compensation 
provided 
of 
in 
accidents 
The  time  needed 
victim 
to 
compensation 
The  portion  of  cases  for 
advanced 
which 
payment is provided 
The  time  needed 
to 
victim 
advanced payment 

for  a 
the 

receive 

an 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

18. 

How has the implementation of the Regulation affected the number of 

complaints received relevant to the following aspects? 

Large 
increase 

Some 
increase 

No 
effect 

Some 
decrease 

Large 
decrease 

of 

Compensations in the event 
of injuries or deaths 
Lack 
advanced 
an 
payment  in  the  event  of 
injuries or deaths 
Loss  or  damage  of  luggage 
or vehicles 
loss  or  damage  of  mobility 
equipment  for  handicapped 
passengers 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

Q19 and Q20 ONLY TO BE RESPONDENT BY INSURERS (SO Q3: INSURERS) 

Costs 
19. 

Can you please indicate if the following factors affect the calculation of 
the vessel insurance premiums paid for obtaining non-war Blue Card, and in 
what way? 

Yes  No 

If Yes, Please explain how 

Vessel size 

Vessel passenger capacity 

Vessel  class  (A,  B,  C,  D  or 
HSC) 

o 

o 

o 

o 

o 

o 

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187 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Vessel age 

Vessel safety standards 

Vessel safety record 

Operating  company  safety 
standards 
Operating  company  safety 
record  
Country of operation 

Portion  of  time  operating  in 
EU water annually 
Other 
specify: 

(1),  please 

factor 

Yes  No 

If Yes, Please explain how 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

Other 
specify: 

factor 

(2),  please 

o 

o 

Other 
specify: 

factor 

(3),  please 

o 

o 

188 

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20. 

Can you please indicate if the following factors affect the calculation of 
the vessel insurance premiums paid for obtaining war risk Blue Card, and in 
what way? 

Yes  No 

If Yes, Please explain how 

Vessel size 

Vessel passenger capacity 

Vessel  class  (A,  B,  C,  D  or 
HSC) 
Vessel age 

Vessel safety standards 

Vessel safety record 

Operating  company  safety 
standards 
Operating  company  safety 
record  
Country of operation 

Portion  of  time  operating  in 
EU water annually 
Other 
specify: 

(1),  please 

factor 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

Other 
specify: 

factor 

(2),  please 

o 

o 

Other 
specify: 

factor 

(3),  please 

o 

o 

21. 

How  has  the  Regulation  impacted  insurance  premiums  for  passenger 

carriers? 

Large 
increase 
o 

Some 
increase 
o 

No effect 

o 

Some 
decrease 
o 

Large 
decrease 
o 

I 
know 
o 

don’t 

Please explain 

IF YOU SCORED Q20 AS LARGE INCREASE OR SOME INCREASE: 

--> GO TO Q22. OTHERWISE: GO TO Q23 

Support study to the Evaluation of Regulation (EC) 392/2009 

189 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
22. 

How challenging has it been for carriers to accommodate the required 

insurance premiums after the application of the Regulation? 

Not challenging 

o 

Slightly 
challenging 
o 

Challenging 

Very challenging 

o 

o 

23. 

In  relation  to  obtaining  the  certification  as  required  by  the legislation, 
what  is  the  average  effort  required  for  each  vessel  related  to  these 
activities? 

Obtain first time certification 
Annually renew the certification 
Other necessary activities (please describe): 

person-days 

24.  What has been the impact of the Regulation on passenger fares? 

Large 
increase 
o 

Some 
increase 
o 

No effect 

o 

Some 
decrease 
o 

Large 
decrease 
o 

Don’t know 

o 

25. 

How  many  staff  (FTE  full  time  equivalents)  are  in  your  organisation 

dealing with the requirements of the Regulation, on an annual basis. 

………FTE/year 

26. 

Please  specify  if  possible  in  what  activities  your  staff  is  involved,  e.g. 
issuing  certificates,  monitoring,  enforcement  in  case  of  non-compliance, 
handling accidents/incidents, other costs 

27. 

To  what  extent  do  the  fees  paid  by  applicants  (vessel  owners)  cover 

the administrative costs of your authority)? 

………% 

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Part IV Links with other Policies & Legislations 
28. 

Is the Regulation in line with the following policies? 

Entirely 
line 

in 

Partially 
conflicting 

Entirely 
conflicting 

Don’t know 

passenger 

EU  policies  on 
maritime safety 
EU 
rights policies 
Transport 
operator’s 
liability  in  other 
modes 
EU  White  Paper 
on 
Transport 
2011 
Ten 
policy areas 
Please elaborate 

priority 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

o 

29.  Which gaps have been filled by the entry into force of the Regulation? 

Fully 
filled 

Partially 
non-
filled 

Not  at 
all filled 

Don’t 
know 

Introduction  of  the  Athens  Protocol 
2002 standards in EU legislation 
Applicability  of  international  liability 
rules to domestic shipping 
Provision of advance payment 
Protection  of  people  with  reduced 
mobility 
Information obligation on the side of 
the operator 
Other (1): 
Other (2): 
Other (3): 

o 

o 

o 

o 

o 

o 
o 
o 

o 

o 

o 

o 

o 

o 
o 
o 

o 

o 

o 

o 

o 

o 
o 
o 

o 

o 

o 

o 

o 

o 
o 
o 

30.  Which  additional  topics  regarding  maritime  passenger  rights  are 
regulated in national legislation? Please only refer to topics not including in 
the Regulation. 

Please elaborate 

31. 

Do  you  experience  any  problems  now  that  two  systems  are  in  place, 

i.e. the Regulation and the Athens Convention? 

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191 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Please elaborate 

32.  What  are  the  main  advantages  of  the  Regulation  compared  to  the 

previous system of international and national legislation? 

Please elaborate 

192 

Support study to the Evaluation of Regulation (EC) 392/2009 

 
 
 
 
 
 
 
 
 
 
 
Part V Other comments or input 
33. 

Do you have any other comments on the application of the Regulation? 

Please elaborate 

34. 

Do  you  have  any  documents  or  data  that  you  would  like  to  share 
related  to  the  application  of  the  Regulation?  You  can  send  them  to 
passenger.carrier.liability@ecorys.com. 

35. 

For  the  evaluation  of  the  Regulation,  we  would  like  to  ask  for  your 
contact  details  in  case  a  clarification  for  certain  question  is  necessary.  In 
addition, we could possibly approach you for an interview. 

THANK YOU FOR YOUR PARTICIPATION! 

Support study to the Evaluation of Regulation (EC) 392/2009 

193 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
ANNEX 3   RESULTS OF THE QUESTIONNAIRE 

This  section  provides  a  brief  summary  of  the  steps  taken  to  implement  the 
survey, as well as an overview of the online survey responses. 

Process 
The following initial steps have been taken to implement the survey: 

  For each of the eight identified stakeholder groups, between 10 and 30 
stakeholders have been identified. Contact details have been gathered 
for  these  stakeholders,  in  addition  to  contact  details  supplied  by  the 
Commission. 

  Around 160 initial emails have been sent with the request to complete 
the questionnaire. Out of the 160 emails, 15 email deliveries failed and 
another 15 emails were returned with an ‘out of office’ message. 

  A  reminder  has  been  sent  to  all  earlier  recipients  2.5  weeks  after  the 
initial  invitation.  With  this  reminder,  almost  all  contact  persons  that 
initially  returned  an  ‘out  of  office’  message  have  been  reached.  The 
reminder  had  a  great  impact  on  the  response  numbers,  from  around 
15 that had started the survey to 51 that had started the survey, with 
a greater overall level of completion among respondents. 

 

In  addition,  we  have  asked  relevant  associations,  such  as  CLIA, 
Interferry, ECSA and IGPANDI, to approach their members to fill in the 
questionnaire survey. This process has not proven to be effective yet, 
as only a few members have responded. 

Respondent details 
Figure  A3.1  shows  the  spread  of  respondents  by  sector.  A  total  of  72  have 
started the survey, though not all off them have entirely finished the survey. 
There  are  42  respondents  over  halfway,  making  their  the  most  important 
questions in the survey having enough responses to be able to do quantitative 
analysis.  

Figure A3.1 Spread of respondents by sector: Fully and Partially completed survey 

It can be seen that the sector EU member  state policy making authority and 
inspectorates  have  been  contributing  the  most,  however  it  should  be  noted 

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195 

 
 
 
 
 
 
 
 
 
 
 
 
that  some  of  the  respondents  filled  in  the  survey  on  account  of  both  bodies 
resulting  into  slightly  imploding  these  figures.  The  ship  owners  follow.  The 
“other  please  specify”  category  consists  of  the  sectors  mentioned  in  Table 
A3.1. In addition, four respondents haven’t specified their sector. 

Table A3.1 Sectors stated in question 2: Indicate the sectors in which you are engaged? 
Other, please specify: 
I was active in drafting the convention 
Class 
EEA Member State inspectorate authority 
ECC Denmark 
Individual 
Trade association 
Consumer rights protection agency 
European Group of Travel Agents and Tour Operators Association 

In  
Figure A3.2  an overview is given of the geographical spread. With more than 
20 EU28 countries having completed one  or more questionnaires, the survey 
represents the  EU nicely. The “other, please specify” responses are shown in 
table A3.1.  

Figure A3.2 Results of question 3: What country or region are you based? 

Table A3.2 Region or countries specified in question 3: What country or region are you 

based? 
Other, please specify 
Iceland 

196 

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Norway 
Norway 

ICS represents national ship-owners from 35 countries 

Europe, ECSA represents all Ship-owners’ National Associations of the European Union and Norway 

Context 
Figure  A3.3  shows  the  results  of  the  question  “Which  of  the  following 
problems that were identified at the development stage of the Regulation are 
in your opinion still important problems that the Regulation should address?”.  

Figure A3.3 Results of question 4 

In  addition,  respondents  have  given  other  problems  the  regulating  should 
adress. The respondents that gave these additional problems then have been 
asked  to  rate  the  importance  of  these  problems.  Both  can  be  found  in  Table 
A3.3. 

Rated as 
Very important problem 

No strong opinion 

Table A3.3 Additional problems and their perceived importance 
Other, please specify: 
Vessels operating predominantly from 
the  EU  but 
flagged  to  non  EU 
countries 
ECSA is not aware of any problems on 
the  matters  referred  to  above.  In 
detail,  ECSA  is  unable  to  answer  to 
this  question  with 
the  proposed 
options. 
How  the  regulation 
monitored  by 
authorities 
Limits of liability 
The  Regulation  could  address  as  a 
matter 
that 
compensation  for  pain  and  suffering 
does not come on top of the limitation 
amount  but  that  these  damages  are 

is 
country 

clarification 

framework 

individual 

of 

Important problem 

Very important problem 
Important problem 

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197 

 
 
 
 
 
 
 
 
 
 
 
 
part  of  the  damage  to  which  the 
'normal' limitation amounts apply. 
Equal  rights  instead  of  preferring 
customers over the company 
Anti strict liability rules 

Important problem 

Very important problem 

Question 5 and 6 serve as a follow-up questions to gain insight in the reason 
for  viewing  “Right  of  passengers  are  not  sufficiently  safegaurded”  and  “No 
level  playing  field  for  carriers  in  the  EU”  as  a  (very)  important  problem. 
Various  contributors  have  been  identified,  and  the  respondents  that  have 
rated  “Right  of  passengers  are  not  sufficiently  safegaurded”  as  a  (very) 
important  problem  have  been  asked  to  rate  these  contributors.  In  addition, 
respondents  have  been  asked  whether  there  are  additional  contributors  to 
these  problems.  The  results  are  given  in  Figure  A3.4.  One  additional 
contributor  has  been  mentioned  by  a  respondent.  This  additional  contributor 
and the respondent’s preceived importance are given in Table A3.4. 

Figure A3.4 Results of question 5 

Table A3.4 Additional contributors and their rating 
Additional contributor 
E-mail 
properly 

contracts  are  not 

read 

Rated as 
Important problem 

Question  6  was  only  asked  to  respondents  rating  “No  level  playing  field  for 
carriers in the EU” as a important problem or a very important problem. The 
results  are  shown  in  Figure  A3.5.  There  are  no  additional  contributors  to  the 
problem mentioned by the respondents. 

198 

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Figure A3.5 Results of question 6 

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199 

 
 
 
 
 
 
 
 
 
 
 
 
Figure A3.6 Results of question 7 and 8 

The results of questions 7 and 8 can be seen in Figure A3.6. The respondents 
that  have  given  Yes  as  an  answer  in  question  7:  “have  there  been 
developments  (e.g.  policy,  legal,  technological)  since  the  introduction  of  the 
regulation that affect the way it is implemented?”, were asked to specify their 
choice.  However,  given  there  are  more  specifications  than  individuals  opting 
for  yes,  also  some  of  the  respondents  opting  no  have  been  giving  an 
explanation. These specifications can be found in Table A3.5. 

Table A3.5 Specification of question 7 
Yes, please specify: 
L'inclusion des trafics domestiques pour les seuls navires de classe A et B crée 
une dualité de régimes de responsabilité sur la base de critères techniques qui 
ne  sont  pas  pertinents  pour  les  questions  de  responsabilité.  The  inclusion  of 
domestic  trafics  only  for  Class  A  and  B  ships  creates  a  duality  of  liability 
regimes on the basis of technicals criteria that are not relevant to the matter 
of liability. 
It is probable that the cases concerning international carriage and Class A and 
B  of  domestic  carriage  would  also  be  the  cases  in  which  there  would  be  the 

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Yes, please specify: 
greatest likelihood to have groups of passengers from different countries, and 
in  which  the  risk  of  discrepancies  in  treating  their  cases  would  be  greatest. 
Therefore,  the  current  scope  of  application  of  the  Regulation  appears  to  be 
sufficient  to  cover  most  of  the  cases  that  created  perceivable  inequalities  in 
the past. 
German  Commercial  Code  provides  for  almost  the  same  rules  as  the  Athens 
Regulation. So, there would be no affect. However, German law does not have 
rules  as  to  advance  payment  (Article  6  of  the  Regulation)  and  a  direct  claim 
against the insurer (Annex I to the Athens Regulation Article 4bis para 10). To 
my  opinion  these  two  rules  are  not  used  very  often,  so  that  the  Regulation 
definitely  will  reach  its  objectives  without  widening  the  scope.  Even  though 
Article 4 of the Athens Regulation does not apply to domestic carriage (classes 
C  and  D),  these  rules  would  apply  thorugh  Regulation  1177/2010  (also  for 
domestic carriage). 
It  could  be  considered  disproportionate  to  require  small  domestic  carriers  to 
retain  insurance  cover  amounting  to  several  thousands  of  Euros  for  a 
relatively small danger. 
Passengers on smaller carriers should be granted the same level of protection 
as passenger on larger carriers. 
The Regulation should cover all to reach an overall consensus. 
Also smaller ships has a significant risk potential. 
as per my understanding some countries have also included all category types 
of vessels to be included also in domestic travels when some haven't or some 
just have included category A and B. 
ICS does not deal with issues concerning domestic carriage. 
ECSA  would  like  to  underline  that  the  compensation  for  domestic  carriage 
may vary depending on the class of the ship depending on national legislation. 
Classes  A  and  B  are  regulated  in  the  Regulation  to  come  into  force  soon. 
Besides, we would like to mention that national regulations in Germany have 
fully implemented the regulations on international carriage in accordance with 
the  Regulation,  which  came  into  force  on  31  December  2012,  both  with 
regard  to  liability  of  carriers,  as  well  as  with  regard  to  the  carriage  of 
passenger  liability  certificates  on  board.  With  regard  to  domestic  carriage, 
national  German  law  makes  use  of  the  possibility  provided  for  in  Article  4  of 
Directive  2009/45/EC  to  apply  the  Regulation  with  regard  to  passenger 
liability  certificates:  Class  A  ships  four  years  after  the  date  of  application  of 
the  Regulation i.e.  31  December  2016;  and  Class  B  ships  six  years  after  the 
date  of  application  of  the  Regulation  i.e.  31  December  2018.  Liability 
regulations with regard to Class A and B ships, as well as Class C and D ships, 
in  accordance  with  the  Regulation  are  additionally  already  implemented  in 
national  German  Commercial  law.  In  addition,  we  were  informed  that 
transitional arrangements in the Regulation permitted Member States to defer 
the application of the rules to Class A ships until the end of 2016 and to Class 
B ships until the end of 2018. The UK took up this option, which means that 
they are unable to provide the information sought by the researchers. 

The results of question 9 are given in  

Figure  A3.7  .  In  addition,  a  box  has  been  provided  to  explain  the  answer. 
These explanations are shown in Table A3.6. 

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Figure A3.7 Results of question 9 

Table A3.6 Explanations of question 9 
Please elaborate 
Regulation  is  applied  to  transport  of  passengers  and  their  luggage  on 
international  and  national  voyages  by  Class  A  and  B  ships  as  defined  by 
Directive 2009/45/EC. 
Greece  has  made  use  of  the  possibility  to  defer  the  application  of  the 
Regulation  to  Class  A  and  Class  B  ships  until  31.12.2016  and  31.12.2018 
respectively. 
We do require insurance to the limits of Athens Convention 74/76 (which was 
the  requirement  of  the  national  law  for  all  passenger  carriers  before  the 
regulation). 

Figure A3.8 Results of question 10 

Question 10 is shown in Figure A3.8 and question 11 in Figure A3.9. The latter 
is  Member  state  only,  meaning  only  Member  State’s  authorities  and 
inspectorates  were  shown  this  question.  In  addition,  stakeholders  have  been 
asked  to  explain  their  answers  on  question  11.  These  are  shown  in  Table 
A3.7. 

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Figure A3.9 Results of question 11 

Table A3.7 explanation of question 11 
Question 

Explanation 

Calling  in  ports  of  your 
country? 

Virtu Ferries. 

Flying  the  flag  of  your 
country?  

No high speed craft calling LT ports. 

In accordance with the definition of ship as given 
in  Athens  Convention,  only  air  cushion  vehicles 
are excluded. 
Virtu Ferries. 

No high speed craft under LT flag. 

no HSC under Belgian flag. 

Functioning of the Regulation 
Objectives 
The results of question 12 and 13 are shown in respectively Figure A3.10 and 
Figure A3.11. 
In  addition,  the  responses  on  the  “please  explain”  question  given  with 
question 13 are given in Tabloe A3.8. 

Figure A3.10 Results of question 12 

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Figure A3.11 Results question 13 

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Table A3.8 Explanations of question 13 
Question 

Response  Explanation 

duration 

The 
procedures after accidents? 

of 

legal 

The  quantity  and  quality  of 
information  provided  to  sea 
vessel passengers? 

The  number  of  accident 
cases 
court 
procedures? 

ending 

in 

No effect  Already  party 

to  earlier 

IMO 

Convention. 

Some 
decrease 

No effect  The  duration  of  court  proceedings 
the 
first  of  all  depends  on 
complexity  of  the  individual  Claim 
and less on the legal regime to be 
applied. 
Notices  are  handed  over  to  the 
passenger  and  displayed  on  many 
places. the passenger is also made 
Aware  of  his  rights  during  the 
booking process. 
I  doubt  that  passengers  actually 
read  the  information  as  to  their 
rights.  If  there  has  been  an 
incident  which  could  give  rise  to 
liability,  the  passenger  will  inform 
afterwards. 

No effect 

No effect  There  have  been  no  accidents 

where the regulation would apply. 

No effect 

Some 
decrease 

From  experience,  it  appears  that 
most  passenger  cases  were,  and 
still are, settled beforehand. 
Before  and  after  the  Regulation 
to  avoid  court 
carriers  want 
Regulation 
proceedings. 
The 
provides 
rules  and 
for  clear 
thereby  helps  to  find  an  amicable 
settlement. 

No effect  Accidents 

in 

the 
resulting 
application  of  the  rules  are  rare; 
so  an  increase  in  the  number  of 
cases  if  any  is  probably  more 
attributable 
rising 
to 
passenger numbers. 

the 

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Figure A3.12 Results of question 14 

Figure  A3.12  shows  the  results  of  question  14.  Respondents  then  have  been 
asked to specify their answers. All the specifications given are shown in Table 
A3.9. 

Table A3.9 specifications of question 14 
Please specify 
We do not know. 
Do not know, therefor the answer is ‘No’. 
Clear  rules  (for  instance  as  to  Article  5  (Valuables))  help  to  find  quicker 
solutions. Extensive discussions are being avoided. 
Administrative burden and costs for the administrations. 
The  Danish  Merchant  Shipping  Act  now  includes  rules  related  to  the  liability 
and insurance for the carriage of passengers by sea for ships of classes C and 
D as well as for ships with up to 12 passengers. To a large extent, these rules 
are based on regulation 392/2009. 
Ambulance  chasers  seeking  to  pursue  claims  against  carriers  because 
Insurance is in place. 
ICS and its members are not aware of any other type of effect that may have 
resulted from the Regulation. 
ECSA  and  its  members  are  not  aware  of  any  other  type  of  effect  that  may 
have resulted from the Regulation. 

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Data needed from Member States 

Figure A3.13 Results of question 15 

Figure  A3.13  shows  the  results  of  question  15.  Respondents  then  have  been 
asked to specify their answers. All the specifications given are shown in Table 
A3.10. One  explanation has been given for answering no to every  single one 
of  the  factors,  and  that  is  a  lack  of  data.  This  was  not  included in  the  table. 
Respondents  also  have  been  asked  to  state  additional  factors  influencing  the 
charged premium, however none are given. 

Table A3.10 specifications of question 15 
Please specify 
30 Euro which was set by the parliament and it’s also the same for the CLC 92 
and Bunkers 2001 certificates 
The deliverance of the certificate is delegated 

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Operational implications 

Figure A3.14 Results of question 16 

Respondents have been asked if they perceived operational implications of the 
regulations.  It’s  results  are  in  Figure  A3.14.  In  addition,  an  explanation  has 
been asked for each of the sub-questions. These are stated in Table A3.11. 

Table A3.11 Explanation for question 16 
Sub-question 
Affected 
organization? 

the  operations  of  your 

If yes, please specify 
Need for certification. 

Led  your  organization  to  a  different 
way  of  assessing  vessel  safety  and 
security standards? 

Led 
your 
implementing  actions 
to 
vessel safety and security? 

organization 

to 
improve 

IMO 
not 

circulars  and 

Response times were reduced. 
Administrative burden. 
Vessels  safety  is  driven  by  customer 
rules  and 
demand  and/or 
legal 
by 
and 
regulations 
requirements. 
Reserving of claims and costs. 
Before  the  Athens  Regulations  there 
were strict rules as to safety. 
our 
for 
members  regarding  safety  matters 
have increased. 
Loss Prevention. 
Before  the  Athens  Regulations  there 
were strict rules as to safety. 
Royal  decree  270/2013  to  elaborate 
the certificate. 
Vessels  safety  is  driven  by  customer 
rules  and 
demand  and/or 
regulations 
legal 
by 
and 
requirements (same as earlier). 

IMO 
not 

seminars 

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Impacts 

Figure A3.15 Results of question 17 

The results of question 17 and 18 are shown in respectively Figure A3.15 and 
Figure  A3.16.  Note  question  18  was  not  shown  to  stakeholders  that  are  not 
part of the complaint process on either side. 

Figure A3.16 Results of question 18 

Questions  19  and  20  were  only  for  insurers.  The  results  are  given  in  Figure 
A3.17 and Figure A3.18. One should note that this response does contain the 
views  of  IGPANDI,  which  in  represents  multiple  P&I  clubs.  One  of  the 
respondents stated that the non-war Blue Card is made available at no extra 
cost.  A  second  insurer  has  specified  their  costs  some  more,  including 
additional contributors as given in Table A3.12. 

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Figure A3.17 Results of question 19 

Table  A3.12  Detailed  explanation  and  additional  factors  mentioned  by  one  of  the 

respondents 
Contributor? 
Factor 
Vessel Size 
Yes 
Vessel Passenger capacity  Yes 

Vessel class 
Vessel age 

Vessel safety standards 
Vessel safety record  

Yes 
Yes 

Yes 
Yes 

is 

Premium is per GT 
More  passengers 
more risk 
Seize 
Older  ships  pay  higher 
premium 
IACS class 
History  of  incidents  is 
part of risk assessment 

No 

No 

Operating  company  safety 
standards 
Operating  company  safety 
records 
Country of operation 
Portion  of 
waters annually 
Other contributing factors 
Loss record of a ship owner but closely related to safety record 
PSC detentions 
Nationality of the crew 

Yes 
No 

in  EU 

time 

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Figure A3.18 Results of question 20 

One  of  the  explanatory  answers  given  at  these  questions,  is  that  the  ship 
owners  are  rated  individually.  This  implicates  there  is  no  standardized  way, 
and is handled on a case-by-case base. No other contributors to the insurance 
premium have been given, other than already stated. 

Costs 

Figure A3.19 Results of question 21 

The explanation for question 21 are given in Table A3.13. 

Table A3.13 Explanations of respondents of the choices in question 21 
Please explain 
Hungary is a landlocked country without seagoing vessels in the ship registry. 
Les  primes  d'assurance  ont  varié  pour  des  raisons  qui  ne  sont  pas  liées  au 
règlement, telles que l'accident du Costa Concordia ou des hausses de coût de 
réassurance  engendrés  par  des  événements  en  dehors  de  son  champ 
d'application.  Il  ne  semble  pas  possible  d'isoler  un  effet  spécifique  du 
règlement.  L'impact  financier  réel  en  cas  de  sinistre  resterait  sujet  à 

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Please explain 
spéculation.  Insurance  premiums  have  varied  for  reasons  not  related  to  the 
regulation,  such  has  the  Costa  Concordia  accident  or  higher  reassurance  cost 
due to major disasters outside of its scope. It does not seems possible to isolate 
an  effect  specific  to  the  regulation.  The  real  financial  impact  in  case  of  an 
accident would remain a matter of speculation. 
Premiums are decided directly with customers of insurance undertakings. 
As far as we have heard from our carriers, some increase. 
The  liability  exposure  has  increased  significantly  and  consequently  requires 
more premium. 
Insurance Premiums have increased plus the additional war insurance. 
Overall passenger carriers have high premiums to begin with and extra liability 
costs more 
ICS does not have information on this aspect. 
We  are  not  aware  of  any  impact,  but  should  any  changes  on  the  insurance 
market  occur,  then  this  would  cause  an  impact  and  this  would  have  to  be 
assessed. The Regulation has not been reported as being burdensome. 

. 

Question 22 was only shown to stakeholders that have answered question 21 
as large increase or some increase. The results can be seen in Figure A3.20. 

Figure A3.20 Results of question 22 

Question 23 consists out of 3 open sub questions. Submitted results that give 
the anticipated response to the question are given in Table A3.14. In addition, 
multiple  respondents  answered  that  they  either  didn’t  know,  the  values 
weren’t  calculated  and/or  no  certificates  have  been  issued.  There  are  12  of 
these  replies,  and  are  not  given  in  the  table  as  they  do  not  give  any  extra 
information  other  than  that  they  do  not  know  what  the  exact  administrative 
burden is. 

Table A3.14 Results of question 23 

Obtain first time certification 

Annually renew the certification 

person-days 
1 person = 1 day 
0.1 person day 
4 days more or less 
3 
1 person = 1 day 
0.1 person day 

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1 day more or less 
2 

1 person = 1/2 day 
1 person = 1/2 day 

(not specified) 

(please 

Other  necessary  activities 
describe): 
1)  formal  request  of  the  Blue  Cards  by 
P&I Club 
2)  formal  request  of  the  certificate  by 
the  Italian  authority  (CONSAP)  =  1 
person = 1/2 day 
3)  delivery  of  the  original  certificate  to 
the vessel 

Figure A3.21 Results of question 24 

The results of question 24 on impact of the regulation on passenger fares are 
shown in Figure A3.21. After that the number of staff and the specification of 
the activities involved have been asked in question 25 and 26. The results are 
given in Table A3.15. 

with 

Table A3.15 Results of question 25 and 26 
How  many  staff  (FTE 
full  time  equivalents) 
are in your organisation 
the 
dealing 
the 
requirements  of 
an 
on 
Regulation, 
annual 
basis? 
(FTE/year) 
1 
None full time 
1 unit 

1 

None 
No staff 
0,5 FTE 

Specify  if  possible  in  what  activities  your  staff  is 
certificates,  monitoring, 
involved,  e.g. 
enforcement  in  case  of  non-compliance,  handling 
accidents/incidents, other costs 

issuing 

monitoring implementation. 
Issuing. 
The  Ministry  of  transport  is  involved  for  regulatory 
matters. 
Monitoring,  enforcement  in  case  of  non-compliance 
and  spreading  information  about  the  regulation  to 
businesses and consumers. 
Issuing certificates. 
no case was registered. 
Flag  authority: 
handling accidents and incidents reports. 

issuing  certificates,  monitoring, 

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1 

to 

Implementation  part  is 
port 
delegated 
the 
authorities  under 
the 
from 
supervision 
Ministry  of  Maritime 
Affairs 
Insular 
and 
policy 
Less  than  one  FTE  a 
year 

le  suivi  de 

La délivrance des certificats est délégué. L'activité de 
notre  administration  concerne 
la 
délégation  et  les  vérifications  portant  les  assureurs, 
ainsi  que  le  contrôle  de  l'Etat  du  port.  L'estimation 
est aléatoire, concernant une faible partie de l'activité 
d'un  grand  nombre  de  personnes,  en  ce  qui  regarde 
le  contrôle  de  l'Etat  du  port.  The  issuance  of 
is  delegated.  The  activity  of  our 
certificates 
administration 
this 
delegation, the verification carried out on the insurers 
and  port  state  control.  The  estimate  is  a  guess  as, 
regarding  port  state  control,  many  persons  are 
involved, but only for a quite minor part of their total 
activity. 
Issuing  certificates  to  ships  under  the  Greek  flag  or 
ships calling at Greek ports and general enforcement 
including  imposition  of  sanctions  in  case  of  non-
compliance. 

the  monitoring  of 

includes 

Issuing  certificates,  monitoring,  enforcement  in  case 
of  non-compliance  Regarding  the  question  before:  It 
is  really  hard  to  say,  as  we  don’t  have  any  staff 
dedicated exclusively to this regulation. It is a part of 
many  responsibilities  of  the  FSC/PSC.  Taking  into 
account  total  hours  worked,  I  would  say  less  than 
one  FTE/year  (but  keep  in  mind  that  we  don’t  have 
many  ships  covered  by  the  regulation in  our  register 
as for the FSC) 

Question  26  was  “To  what  extent  do  the  fees  paid  by  applicants  (vessel 
owners) cover the administrative costs of your authority? Give your answer as 
approximate  percentage.”  The  results  are  given  in  Table  A3.16.  Other 
responses mainly say that either this is not known, not calculated, or because 
the stakeholder isn’t the authority issuing certificates. Another reason given is 
that there were no cases registered in the respective country. 

Table A3.16 results of question 27 
To  what  extent  do  the  fees  paid  by  applicants  (vessel  owners)  cover  the 
administrative costs of your authority? 
None 
0% 
100% 
75% 
0% 
0% 

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Link with other Policies and Legislations 

Figure A3.22 Results of question 28 

The  results  of  question  28  are  given  in  Figure  A3.22.  In  addition,  an 
explanation has been asked for each of the sub-questions. These are stated in 
Table A3.17. 

Table A3.17 explanations of question 28 
Please elaborate 
Les dispositions relatives aux indemnisations des équipements de mobilité des 
règlements  392/2009  et  1077/2010  mériteraient  d'être  consolidées.  The 
clauses  relating  to  compensation  for  mobility  equipment  in  the  regulation 
392/2009 and 1077/2010 should be consolidated. 
I  am  not  sure  but  the  feeling  I  get  is  that  a  regulation  is  normally  checked 
with  other  regulations  as  well  so  partly  in  line  with  obviously  exceptions  as 
always. 
It  is  slightly  conflicting  regarding  the  priority  policy  area  that  has  to  do  with 
growth  and  jobs.  Even  if  the  carriers  invest  on  to  the  safety,  it  is  a  huge 
investment  to  transfer  older  and  smaller  vessels  to  according  to  standards 
which lead that the smaller companies are facing the fact that it is not worth, 
which thus leads to loss of jobs and loss of investments. Regulation has also 
lead  to  an  increased  bureaucracy  and  documentation,  and  some  nations 
authorities have not been up to date in order to provide blue cards or advice 
to carriers. 
ECSA  is  unable  to  answer  to  this  question  with  the  proposed  options.  ECSA 
notes that the Regulation does not address issues of safety of passengers as 
such  and  that  passenger  rights  are  (additionally)  protected  by  Regulation 
1177/2010.  Regarding  EU  passenger  rights  policies,  it  could  be  stated  that 
these  policies  complement  the  passenger  rights  regulation.  Regarding 
‘’Transport  operator’s  liability  in  other  modes’’  there  are  similar  initiatives/ 
framework  for  other  transport  modes,  but  ECSA  is  not  an  expert  on 
regulations that are referring to these other modes. We are therefore not able 
to  present  a  more  detailed  analysis  on  this.  Concerning  the  ‘’Ten  priority 
policy areas’, while improved compensation isn’t conflicting with any of these 
policy  areas,  it’s  hard  to  see  how  the  Athens  regulation  contributes  to 
reaching these objectives. 

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Figure A3.23 Results of question 29 

The results of question 29 are given in Figure A3.23. In addition respondents 
have  been  asked  to  mention  other  gaps  that  have  been  filled  by  the 
regulation.  These  additional  gaps  than  have  been  rated  by  the  respective 
respondent. The results are stated in Table A3.18. 

Table A3.18 Other gaps mentioned by respondents in question 29 
Other gaps specified 
No  provisions  for  recognition  of  judgments  from 
non-member Athens states. 
Advance  payment  brings 
investigation 
concluded yet within 15days. 

the  problem 
the  accident  has  not 

that 
fully 

into 

Rated as 
Not at all filled. 

Partially non-filled. 

The  last  couple  of  questions  are  open  questions.  Firstly,  Table  A3.19  shows 
the  response  on  question  30  on  national  legislation  on  maritime  passenger 
rights.  

includes  provisions 

Table A3.19 Results of question 30 
Which  additional  topics  regarding  maritime  passenger  rights  are  regulated  in 
national legislation? Please only refer to topics not including in the Regulation. 
More control over the quality of insurance and length of legal proceedings. 
reduction claim by time delay. 
National  Maritime  Law  (1994/674) 
for  competent 
authorities  and  the  sanctions  which  can  be  used  to  enforce  the  Maritime 
Passenger  Rights  regulation  (1177/2010).  The  law  also  includes  general 
provisions  for  the  duties  and  liabilities  of  the  Ship  Management  Company, 
which might be applied in this case. 
Regulation  no.  463/1998  provides  for  rules  for  the  issuance  of  passenger 
carrying license for all ships engaged in domestic voyages. The requirements 
of the regulation include confirmation of insurance of passengers. 
There are no additional topics. German Commercial Code introduces almost all 
rules  taken  from  the  Athens  Regulation  (exception:  advance  payment,  direct 
claim against insurer). 

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Which  additional  topics  regarding  maritime  passenger  rights  are  regulated  in 
national legislation? Please only refer to topics not including in the Regulation. 
Passenger rights in case of delays, cancellation of the carriage etc. 
As mentioned above, in respect of ships not covered, we do require insurance 
to  the  limits  of  Athens  Convention  74/76  (which  was  the  requirement  of  the 
national law for all passenger carriers before the regulation). 
In  general,  the  rules  of  regulation  392/2009  have  been  extended  in  Danish 
law to include the carriage of passengers by ships of classes C and D as well 
as  ships  with  up  to  12  passengers.  A  few  exceptions  relate  to  liability  for 
terrorism-related  damage,  compensation  for  damage  to  mobility  equipment 
and the duty to inform passengers and provide advance payment. 
Strict liability based on case law. 
ICS deals with international regulations and is unable to answer questions on 
national legislation. 
Regulation  1177/2010,  which  has  entered  into  force  in  2012,  mainly 
introduces  in  EU  law  the  following  rights  Right  to  travel  for  persons  with 
reduced  mobility  (PRMs),  without  discrimination.  Should  safe  boarding 
disboarding  not  be  possible,  the  operator  must  try  to  offer  an  alternative. 
Upon request of the passenger, the refusal shall be motivated. The operator, 
as well as the terminal operator, must provide assistance if the need has been 
notified  in  advance.  The  personnel  providing  assistance,  but  also  any  staff 
member  in  relation  with  the  clients,  must  be  training  as  relevant  Assistance 
and compensation in case of travel disruptions (delays and cancellations). For 
any delays at departure above 90 minutes, the carriers shall offer drinks, food 
and, if necessary, accommodation, and the passenger may ask either for re-
routing or reimbursement. When the ships’ arrival is delayed, the passenger is 
compensated (25 or 50% of the ticket price, depending both on the duration 
of the journey and on the delay). In addition, it includes a general obligation 
to provide information to the passengers, and the possibility for them to lodge 
a 
see: 
http://ec.Europa.eu/transport/themes/passengers/maritime/doc/summary_en
.pdf.  Lastly,  it  was  reported  that  in  the  UK  the  Consumer  Rights  Act  2015 
provides  protection  from  terms  in  consumer  contracts  that  purport  to:  Levy 
additional charges and fees in small print. Limit the legal rights of consumers. 
Levy  disproportionate  charges  on  consumers  in  the  event  of  any  default  on 
their part (“penalty” clauses). Levy excessive charges for early termination of 
a consumer contract. 

complaint, 

regulation 

Please 

the 

Secondly,  the  results  of  question  31  on  the  experiences  of  respondents  with 
having  both  the  Regulation  and  the  Athens  Convention  in  place  are  given  in 
Table A3.20. 

Table A3.20 Results of question 31 
Do you  experience  any  problems now that two systems are in place, i.e. the 
Regulation and the Athens Convention? 
No. 
No. 
No problems experienced till now. 
No. 
No. 

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217 

 
 
 
 
 
 
 
 
 
Do you  experience  any  problems now that two systems are in place, i.e. the 
Regulation and the Athens Convention? 
No experience. 
How  fast  will  and  can  the  Regulation  be  updated  if  the  Athens  Convention  is 
modified?  It  would  be  very  confusing  if  the  Regulation  would  include  a 
different and out-of-date version of the Convention. 
No. 
Non.  Les  deux  systèmes  sont  essentiellement  alignés.  Quelques  questions 
concernant la certification ont été résolues. No. The two systems are basically 
aligned. Some questions about certification have been resolved. 
The phenomenon that the European courts may, through an interpretation of 
the  Regulation,  interpret  the  terms  of  an  international  convention  (that  may 
then  be  considered  binding  to  domestic  courts  in  the  EU,  but  not  outside  of 
the  EU)  has,  to  my  knowledge,  not  yet  occurred.  In  any  case,  domestic 
interpretation  of  international  treaties  is  a  problem  that  can  hardly  be 
avoided. 
No,  not  at  all  because  the  scope  of  the  Regulation  is  very  wide  there  is  in 
Europe almost no room for direct applicability the Convention. 
No. 
No. 
No, not any longer. At an earlier stage some EU Member States had acceded 
to the Athens Convention, whereas others had not. This state of affairs led to 
some  uncertainty  as  to  the  legal  situation.  Now  all  Member  States  have 
acceded to the convention, and the uncertainty is gone. 
No. 
No. 
The structure of the legislation has been overly complicated. The  Regulation, 
the  Convention  and  the  Guidelines  should  be  written  together  to  one 
instrument. 
It  can  be  confusing  to  have  two  similar  systems,  especially  when  some 
countries ratify convention in really late and some parts of it is included to the 
national law but not ratified the actual convention. 
As the Regulation has been largely aligned with the 2002 Athens Protocol, the 
potential  for  conflict  between  the  two  instruments  is  reduced  and  our 
members have not reported any difficulties. 
No,  Our  members  stated  that  there  are  no  problems  to  report  and  in  some 
cases  the  Regulation  has  been  fully implemented  at  national level.  The  issue 
in this situation is that not all  Member States have ratified the 2002 Protocol 
and  that  prompt  ratification  should  be  encouraged.  Furthermore,  as  it  was 
reported  by  the  UK  Chamber  of  shipping  the  P&I  clubs  issue  certificates  that 
meet  the  requirements  of  the  Regulation  and  the  Athens  Convention 
simultaneously, overcoming what might otherwise have been a problem. 

Thirdly,  in  question  32  the  advantages  of  the  Regulation  over  the  legislation 
that was in place before has been asked. The responses of stakeholders have 
been given in Table A3.21. 

218 

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Table A3.21 Results of question 32 
What  are  the  main  advantages  of  the  Regulation  compared  to  the  previous 
system of international and national legislation? 
Harmonization. 
Better consumers protection. 
Uniform regulation. 
Don’t know. 
In Finland there has been no change what so  ever  since there  have been no 
accidents since the Regulation came into force. 
Contribue  à  l'harmonisation  Européenne  et  internationale  des  régimes  de 
responsabilité  des  transporteurs  maritimes.  Etablit  des  garanties  financières 
et une responsabilité sans faute. Contribute to the harmonization of maritime 
carriers  liability  regimes  both  within  EU  and  internationally,  Establishes 
financial guaranties and no fault liability. 
The liability limits set out in the Regulation provide an important guideline for 
passengers  as  to  the  compensation  that  they  may  expect  in  a  given  case, 
especially for settlement agreements. 
Clear liability rules which help avoiding extensive discussions as to the liability 
of the carrier. 
Uniform EU regime. 
level playing field, insurance availability 
1) The system mirrors other international liability systems, e.g. the oil bunker 
and wreck removal convention systems. That goes, for instance, for the rules 
on insurance and on certificates as proof of insurance. 2) The system operates 
with  strict  liability  of  the  defendant  and  is  easier  to  handle  than  the  former 
system  making  the  defendant  liable  unless  he  could  prove  his  innocence.  3) 
Higher liability limits. 4) Improved passenger rights. 
more uniform interpretation of the Rules. 
It attempts to create a level playing field between maritime and other modes. 
The  attitude  of  many  in  the  maritime industry,  however,  is  that  their is  very 
largely  a  leisure  market  and  therefore  it  is  not  fair  to  compare  it  with  the 
markets for air, rail and road. We can appreciate this viewpoint but it should 
not be overplayed. 
The  liability  exposures  can  be  determined  more  easily,  which  is  important, 
since passengers on board are regularly of different nationalities; at the same 
time the handling is more harmonized and consequently more efficient despite 
some  national  peculiarities  which  still  may  need  to  be  taken 
into 
consideration. 
Better compensation and insurance. 
Ideally it should bring all the European Union countries under same regulation 
and level. 
The  main  benefit  conferred  by  the  Regulation  is  that  it  brought  forward  the 
entry  into  force  of  the  international  Athens  Convention/Protocol.  The 
Regulation contained additional provisions concerning mobility equipment and 
advance  payments  and  which  would  in  any  event  have  been  covered  in 
appropriate cases by the P&I insurance effected by the IG of P&I Clubs. 

Finally,  respondents  have  been  asked  to  give  additional  comments.  Two  of 
them have used this to give a final comment as shown in Table A3.22. 

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219 

 
 
 
 
 
 
 
 
 
 
Table A3.22 Additional comments 
Do you have any other comments on the application of the Regulation? 
Si le  champ  d'application  du  règlement  devait  être  étendu,  utiliser  le  critère 
des  classes  C  et  D  ne  serait  pas  adéquat,  car  cela  certains  navires  à 
passagers resteraient encore en dehors du champ d'application.  If the scope 
of the regulation were to be extended, using the criteria of the C and D class 
would not be adequate, as some passengers ships would still be outside the 
scope. 
This is a good piece of legislation and there is no need to change this, unless 
Member States complain, or come up with specific issues. 

As a very last point, respondents have been asked their contact details and to 
upload  any  documents  or  data  that  might  have  been  relevant  for  the  study. 
These  were  optional  questions,  and  only  the  contact  details  have  been  given 
by a few respondents. No documents or datasets were uploaded. 

220 

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ANNEX 4   REFERENCES  

Academic publications 
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nelle alter modalita: uniformita a differenze’, Il Diritto Marittimo 2012, 786-
797 

2.  Burke, D. (2000), ‘Cruise Lines and Consumers, Troubled Waters’, 690 Vol. 

37 I American Business Law Journal 

3.  Cachia,  J.  (2011),  ‘The  liability  of  carriers  of  passengers  by  sea  in light  of 
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4.  Cadoni,  C.  (2013)  ‘La  Tutela  del  passeggero  marittimo  nella  prospettiva 

Europea’, doctoral Thesis 

5.  Comenale  P.  &  Michele  M.  (2006),  ‘Il  trasporto  marittimo  di  passeggeri: 
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6.  Comenale  P.  &  Michele  M.  (2008),  ‘Il  passaggio  marittimo  fra  codice  della 
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and further 

7.  Dickerson,  T.A.  (2003-2004),  ‘The  Cruise  Passenger's  Dilemma:  Twenty-

First-Century Ships, Nineteenth-Century Rights’, 28 Tul. Mar. L.J. 447 

8.  Dickerson, T.A (2013-2014), ‘The Cruise Passenger's Rights and Remedies 
2014:  The  COSTA  CONCORDIA  Disaster:  One  Year  Later,  Many  More 
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9.  Gahlen,  S.F  (2014),  ‘Civil  responsibility  for  passenger  claims,  in  Civil 
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10. 

Gahlen,  S.F.  (2014),  ‘Jurisdiction,  recognition  and  enforcement  of 
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12-24 

11. 

S.  F.  Gahlen  (2015),  ‘Civil  Liability  for  Accidents  at  Sea’,  in  Hamburg 

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12. 

Haddon-Cave  QC,  C.  (2001),  ‘Limitation  against  passenger  claims: 

medieval, unbreakable and unconscionable’, CMI Yearbook 2001, 234 

13. 

Hasic,  T.  (2015),  ‘The  maritime  carrier`s  liability  for  the  loss  suffered 
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vjesnik, Vol.31 No.1 Travanj 2015, 103-122 

14. 

Karsten, J. (2007), ‘Passengers, consumers, and travellers: The rise of 
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consumer law and policy’, J Consum Policy (2007) 30:117–136 

15. 

Kirchner, S., Tüngler G. & Martin Hoffmann, J. (2015), ‘Carrier Liability 
for  Damages  Incurred  by  Ship  Passengers:  The  European  Union  as  a 
Trailblazer Towards a  Global Liability Regime?’, 23 U. Miami Int’l & Comp. 
L. Rev. 193 

16. 

Kroger, B. (2001), ‘Passengers carried by Sea Should they be Granted 

the Same rights as Airline Passengers?’ CMI Yearbook 2001 

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221 

 
 
 
 
 
 
 
17. 

Lewins,  K.  (2004),  ‘The  Cruise  Ship  Industry  Liabilities  to  Passengers 
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18. 

Lopez  de  Gonzalo,  M.  (2012),  ‘La  responsabilita  del  vettore  marittimo 
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Diritto Marittimo 2012, 756-765 

19. 

Mandaraka-Sheppard,  A.  (2009)  ‘Modern  Maritime  Law  and  Risk 

Management’, Informa 

20. 

Marsden, E. (2014), ‘Risk Regulation, liability and insurance Literature 

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21. 

Peltz,  R.  (2012),  ‘The  Athens  Convention  Revisited’,  43  J.  Mar.  L.  & 

Com. 491 

22. 

Peralta,  E.O.  (2014),  ‘New  Requirements  and  Risk  Distribution  for  the 
Liability  of  Carriers  of  Passengers  by  Sea  in  the  Event  of  Accidents  under 
Regulation (EC) No 392/2009’, European Transport Law, III, 247-270 

23. 

Piras,  M.  (2011-2012),  ‘International  Recent  developments  European 
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2012), 628-638. 

24. 

Pulido Begines, J. (2015), ‘Cruise Ship Law’, in The Hamburg Lectures 

on Maritime Affairs 2011-2013, Springer, 2015, 200-236 

25. 

Rosaeg,  E.  (2000),  Compulsory  maritime  insurance’,  Scandinavian 

Institute of Maritime Law Yearbook 2000. MarIus No 258  

26. 

Ringbom,  H.  (2012),  ‘Maritime  Liability  and  Compensation  in  EU  Law’ 
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27. 

Saggerson,  A.  (2008),  ‘Travel  Law  and  Litigation’,  4th  rev.  ed.  St 

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Shaw, R. (2008), ‘Carriage of Passengers in Southampton on Shipping 

Law’, Informa 

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Soyer,  B.  (2002),  ‘Sundry  Considerations  on  the  Draft  Protocol  to  the 
Athens  Convention  Relating  to  the  Carriage  of  Passengers  and  Their 
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30. 

Soyer, B. (2007), ‘Boundaries of the Athens Convention: What you see 
is  not  always  what  you  get!’,  in  Dr  Thomas  (ed)  Liability  Regimes  in 
Contemporary Maritime Law, Informa 

31. 

Tebbens,  H.D.  (2008), 

‘The  European  Union  and  the  Athens 
Convention  on  Maritime  Carrier’s  Liability  for  Passengers  in  case  of 
Accidents: An Incorporation adventure’, 61 RHDI 653 

32. 

Testa,  D.  (2013),  ‘’Liability  and  Insurance  for  the  Carriage  of 
Passengers by Sea Under Regulation 392/2009: Providing a Lifeline to the 
Cruise  Industry  and  Ensuring  Proper  Compensation  for  Passengers  in  the 
Event of Accidents’, ELSA Malta Law Review, Vol. 3 

33. 

Tsimplis,  M.  (2009),  ‘Liability  in  respect  of  passenger  claims  and  its 

limitation’, 15 JIML 

34. 

Tsimplis,  M.  &  Shaw,  R.  (2014),  ‘Carriage  of  Passengers’,  in  Yvone 

Baatz Maritime Law, CRC Press 

9.   
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35. 

Carnival Cruise Lines v. Shute, 499 U.S. 585 (1991) 

222 

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36. 

Cases  C-286/82  and  26/83,  Luisi  and  Carbone  v  Ministerio  del  Tesero 
[1984]  ECR  377;  Case  C-186/87,  Cowan  v  Le  Tre´sor  Public  [1989]  ECR 
195 

37. 

Case C-168/00, Simone Leitner v TUI Deutschland [2002] ECR I-2631, 

Opinion of Advocate General Tizzano of 20 September 2001 

38. 

Case  C-400/00.  Judgment  of  the  Court  (Third  Chamber)  of  30  April 
2002.  Club-Tour,  Viagens  e  Turismo  SA  v  Alberto  Carlos  Lobo  Gonc¸alves 
Garrido,  and  Club  Med  Viagens  Ldª.  Reference  for  a  preliminary  ruling: 
Tribunal Judicial da Comarca do Porto Portugal 

39. 

Case  C-400/00.  ECJ  (Third  Chamber)  of  30  April  2002.  Club-Tour 
Viagens  e  Turismo  SA  v  Alberto  Carlos  Lobo  Gonc¸alves  Garrido  and  Club 
Med  Viagens  Ldª.France,  Cour  de  Cassation  18  November  2005,  and  15 
December 2011, DMF 735 (2012) 356 ff 

40. 

41. 

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ECJ  (Grand  Chamber)  of  7  December  2010,  in  the  joined  cases  C-

585/08 and C-144/09 European Court reports 2010 Page I-12527 

42. 

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E-20/14, 
http://www.eftacourt.int/uploads/tx_nvcases/20_14_Judgment.pdf 

Court, 

March 

31 

2015, 

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Schwartz v. S.S. Nassau, 345 F. 2d 465 (2d Cir. 1965) 

Other publications 
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COM(2005)  592_final,  ‘Proposal  for  a  Regulation  of  the  European 
Parliament  and  of  the  Council  on  the  liability  of  carriers  of  passengers  by 
sea and inland waterways in the event of accidents’ 

50. 

COM(2011)  144_final,  ‘White  paper  Roadmap  to  a  Single  European 
Transport  Area  Towards  a  competitive  and  resource  efficient  transport 
system’ 

51. 

COM(2011)  898_final,  ‘Communication  from  the  Commission  to  the 
European  Parliament  and  the  Council  A  European  vision  for  passengers: 
Communication on Passenger rights in all modes of transport’ 

52. 

COM(2015)  508_final,  ‘Communication  from  the  Commission  to  the 
European Parliament and the Council REFIT adjusting course: EU Passenger 
Ship Safety Legislation Fitness Check’  

53. 

COM  (2016)  274_final,  ‘Communication  from  the  Commission  to  the 
European  Parliament  and  the  Council  Report  on  the  application  of 
Regulation  (EU)  No  1177/2010  concerning  the  rights  of  passengers  when 
travelling  by  sea  and  inland  waterway  and  amending  Regulation  (EC)  No 
2006/2004 

54. 

Danish  Ministry  of  Transport  (2015),  ‘Report  on  enforcement  of  the 

maritime passenger rights regulation’ 1 June 2015 

55. 

European  Commission  (2014),  ‘Political  guidelines  for  the  next 

European Commission Setting Europe in Motion’ 

56. 

European  Parliament  resolution  of  23  October  2012  on  passenger 

rights in all transport modes (2012/2067(INI)) 

Support study to the Evaluation of Regulation (EC) 392/2009 

223 

 
 
 
 
 
 
 
 
57. 

Lloyds  List  (2008),  ‘CLIA  joins  with  Marsh  in  online  insurance  launch’, 

Monday 28 January 2008 

58. 

59. 

Memo/05/438 (2005), ‘Third maritime safety package’ 

European  Parliamentary  Research  Service  (2015),  ‘Ex  post  Impact  Assessment  on  the 

Implementation and Effects of the Third Maritime Safety Package’, October 2015. 

60. 

Roadmap  to  a  Single  European  Transport  Area  Towards  a  competitive 

and resource efficient transport system 

61. 

SEC(2011)  391_final, 
accompanying the White paper’ 

‘Commission  Staff  Working  Document 

62. 

Steer  Davies  Gleave  (2010),  ‘Evaluation  of  Regulation  261/2004  final 

report’ 

63. 

Steer Davies Gleave (2010), ‘Evaluation of Regulation 1107/2006 final 

report’ 

64. 

Steer Davies Gleave (2012), ‘Evaluation of Regulation 1371/2007 final 

report’ 

65. 

Steer Davis Gleave, 2012, Mid-term evaluation of Regulation 785/2004 
on  insurance  requirements  of  air  carriers  and  aircraft  operators.  Final 
Report for DG MOVE, July 2012 

66. 

67. 

SWD (2015) 111, ‘Better Regulation Toolbox’ 
SWD  (2015)  197_final, 

‘Commission  Staff  Working  Document 
accompanying the document report from the Commission to the  European 
Parliament  and  Council  REFIT  adjusting  course:  EU  passenger  ship  safety 
legislation fitness check’ 

68. 

Swedish  government,  (2015),  ‘Regeringens  proposition  2014/15:95 

Förstärkt skydd för fartygspassagerare’, 12 March 2015 

69. 

Tractebel (2015), ‘Support study for the Fitness Check (FC) Evaluation 

of Passenger ship safety legislation 

70. 

UK  Department  of  Transport 

the 
implementation  of  EU  Regulation(EC)  392/2009  on  the  liability  of  carriers 
of passengers by sea in the event of accidents and the UK’s ratification of 
the  Protocol  of  2002  to  the  Athens  Convention  relating  to  the  Carriage  of 
Passengers and their Luggage by Sea, 1974 

‘Consultation  on 

(2012), 

71. 

72. 

UK  Department  of  Transport  (2015),  ‘Consultation  on  changes  to 
domestic  legislation  implementing  certain  international  maritime  liability 
conventions’, Including Annexed Impact Assessment. 22 December 2015 
http://www.Europarl.Europa.eu/sides/getAllAnswers.do?reference=E-

2011-007683&language=EL 

10. 
Legislation and accompanying documents 
73. 

Convention  for  the  Unification  of  Certain  Rules  for  International 

Carriage by Air (the Montreal Convention) 1999 

74. 

Council  Directive  (90/314/ECC)  of  13  June  1990  on  package  travel, 

package holidays and package tours 

75. 

Council  Directive  98/18/EC  of  17  March  1998  on  safety  rules  and 

standards for passenger ships 

76. 

77. 

78. 

79. 

Danish Merchant Shipping Act (Consolidation), per 1 July 2010 
Danish Merchant Shipping Act (Consolidation), per 17 January 2014 
Dutch Burgelijk Wetboek, Boek 8, titel 3, per August 2016 
International  Maritime  Organisation  Athens  Convention  relating  to  the 

carriage of passengers and their luggage by Sea 1974 

224 

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80. 

International  Maritime  Organisation  Protocol  of  2002  to  the  Athens 
Convention  relating  to  the  Carriage  of  Passengers  and  their  Luggage  by 
Sea, 1974 

81. 

Regulation  (EC)  No  889/2002  of  the  European  Parliament  and  of  the 
Council of 13 May 2002 amending Council Regulation (EC) No 2027/97 on 
air carrier liability in the event of accidents 

82. 

Regulation  (EC)  No  261/2004  of  the  European  Parliament  and  of  the 
Council  of  11  February  2004  establishing  common  rules  on  compensation 
and  assistance  to  passengers  in  the  event  of  denied  boarding  and  of 
cancellation  or  long  delay  of  flights,  and  repealing  Regulation  (EEC)  No 
295/91 

83. 

Regulation  (EC)  No  1107/2006  of  the  European  Parliament  and  of  the 
Council  of  5  July  2006  concerning  the  rights  of  disabled  persons  and 
persons with reduced mobility when travelling by air 

84. 

Regulation  (EC)  No  1371/2007  of  the  European  Parliament  and  of  the 

Council of 23 October 2007 on rail passengers’ rights and obligations 

85. 

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 

86. 

Regulation  (EU)  No  181/2011  of  the  European  Parliament  and  of  the 
Council of 16 February 2011 concerning the rights of passengers in bus and 
coach transport and amending Regulation (EC) No 2006/2004 

87. 

Regulation (EU) No 1177/2010 of the  European Parliament and of the 
Council  of  24  November  2010  concerning  the  rights  of  passengers  when 
travelling  by  sea  and  inland  waterway  and  amending  Regulation  (EC)  No 
2006/2004 

88. 

Tweede  Kamer,  vergaderjaar  2011–2012,  33  217,  nr.  3  Wijziging  van 
Boek  8  van  het  Burgerlijk  Wetboek  ter  uitvoering  van  het  Verdrag  van 
Athene  betreffende  het  vervoer  van  passagiers  en  hun  bagage  over  zee 
van  1974,  zoals  gewijzigd  bij  het  Protocol  van  2002  (Trb.  2011,  110),  en 
ter uitvoering van Verordening (EG) 392/2009 van het Europees Parlement 
en  de  Raad  van  23  april  2009  betreffende  de  aansprakelijkheid  van 
vervoerders van passagiers bij ongevallen (Pb EU L 131). 

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225 

 
 
 
 
 
 
 
 
ANNEX 5   RESULTS OF REVIEW OF ACADEMIC LITERATURE  

Summaries of Literature reviewed 
This  section  includes  an  overview  of  the  relevant  information  shared  by 
academics  through  their  publications,  organized  per  author  for  the  reader’s 
convenience.  

S.  Kirchner,  G.  Tüngler  &  J.  Martin  Hoffmann,  “Carrier  Liability  for  Damages 
Incurred by Ship Passengers: The European Union as a Trailblazer Towards a 
Global Liability Regime?”, 23 U. Miami Int’l & Comp. L. Rev. 193, 2015. 
Overall,  the  authors  of  this  Article  suggest  that,  although  not  perfect,  the 
Regulation  points  to  the  right  direction  and  strengthens  the  position  of 
passengers  under  European  law.  More  specifically,  they  consider  the  level  of 
passenger  compensation  to  be  adequate,  especially  compared  to  the 
respective  applicable  rules  in  the  US.  Additionally,  the  right  to  an  advance 
payment  constitutes  an  important  benefit  for  the  protection  of  passenger 
carried by sea. An interesting point raised by the authors is that the economic 
pressure on carriers, as a result of the insurance obligation, may serve as an 
incentive for improving the safety standards on-board.  

Furthermore, the authors express their concerns as far as the co-existence of 
the  Regulation  and  the  2002  PAL  is  concerned.  There  are  significant 
differences  between  the  2002  PAL  and  the  Regulation,  since  specific  rules 
have  been  omitted  while  others  have  been  added  to  the  Regulation.  In  the 
author’s  opinion,  “the  EC's  choice  to  replicate  large  parts  of  the  PAL  2002  in 
the Liability Regulation Annex I indicates that there was not only a rush in the 
proliferation of passenger-related legislation, but also a lack of understanding 
as  to  the  relationship  between  EU  (formerly  the  EC)  law  and  international 
law”.  According  to  their  view,  there  is  a  double  regime,  which  may  threaten 
the  coherence  and  uniformity  of  the  Regulation.  The  authors  explain  the 
above  as  follows:  “Those  EU  member  states  that  have  ratified  the  PAL  2002 
are  now  bound  by  both  the  Liability  Regulation  and  the  PAL  2002.  While  the 
EU's aim may be the creation of a coherent legal system, the question needs 
to  be  asked  whether  the  changes  introduced  by  the  EC  may  have  made  it 
more  difficult  to  reach  this  goal.  The  only  way  to  prevent  the  emergence  of 
two  different  legal  systems,  which  was  not  intended  by  either  the  EU  or  the 
drafters  of  the  PAL  2002,  would  be  to  adopt  a  monist  understanding  which 
would  see  international  and  domestic  law  as  one  coherent  legal  order1  and 
international  law  as  self-executing.  While  a  monist  understanding  of 
international  law  can  be  found,  for  example,  in  Dutch  constitutional  law,  it 
seems highly unlikely that the EC intended to adopt such an understanding of 
international  law.  It  appears  more  likely  that  the  potential  problems  are  the 
result of an oversight on the part of the EC, rather than the consequence of a 
monist  view.”  Additionally,  the  authors  point  out  that  transport  law  in  the 
European  Union  faces  the  challenge  of  having  become  three-layered 
irrespective of the specific mode of transportation. Thus, domestic,  European 
and International law apply, which may lead to conflicts.  

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227 

 
 
 
 
 
 
 
 
 
 
Finally,  Krichner  and  his  co-authors  refers  to  the  opinion  expressed  by  the 
Attorney General at the European Court of Justice, who denoted that there is 
only limited comparability among the legal regimes for all transport modes.  

D.  Burke,  “Cruise  Lines  and  Consumers,  Troubled  Waters”,  690  Vol.  37  I 
American Business Law Journal, 2000. 
Burke  examines  the  legal  obstacles  faced  by  plaintiffs  who  try  to  litigate 
consumer  complaints  against  cruise  lines  under  US  law.  Some  interesting 
aspects  of  the  author’s  analysis  relate  to  the  applicability  of  forum  selection 
clauses and time limitation clauses in maritime contracts.  

Regarding  the  issue  of  jurisdiction  clauses,  the  author  refers  to  the  case  of 
Carnival  Cruise  Lines  v.  Shute  involving  personal  injury  where  the  Court 
upheld a non-negotiated forum selection clause contained in a cruise contract. 
The  judge  justified  this  decision  on  three  grounds:  First,  Carriers  could  face 
claims in various forums, thus a clause could serve the purpose of eliminating 
confusion  about  where  suits  must  be  brought.  Secondly,  the  clause  may  be 
useful  for  avoiding  the  time-consuming  and  expensive  procedure  of  figuring 
out  the  right  forum.  Third,  the  Court  shared  the  view  that  “passengers  who 
purchase  tickets  containing  a  forum  clause  benefit  in  the  form  of  reduced 
fares  reflecting the savings that the cruise line enjoys by limiting the forums 
in  which  it  may  be  sued”.  Notably,  the  Court  highlighted  that  these  clauses 
are subject to judicial scrutiny for fundamental fairness. On that basis, Courts 
the 
often 
inconvenience of litigation in a distant forum and bad faith.  

reasonable  communicativeness, 

factors  such  as 

look  at 

Additionally, the author provides insight regarding the limitation period under 
US  law.  More  specifically,  according  to  this  paper,  most  cruise  passenger 
contracts  provide  that  notice  of  intent  to  file  suit  must  be  given  and  claims 
must  be  filed  within  a  specified  period.  In  the  absence  of  contractual 
provisions to the contrary, admiralty law has a three-year statute of limitation 
period for personal injury claim. A one-year limitation period with a six-month 
notice requirement to the carrier is permissible under admiralty law if such a 
limitation  is  contained  in  the  contract  of  passage.  Such  limitation  provisions 
for  personal  injury  claims  are  routinely  included  in  passenger  contracts  and 
upheld by courts, provided they are reasonably communicated. 

B.  Soyer,  “Sundry  Considerations  on  the  Draft  Protocol  to  the  Athens 
Convention Relating to  the Carriage of Passengers and Their Luggage  at Sea 
1974”, Journal of Maritime Law & Commerce, Vol. 33, 2002. 
Soyer’s Article offers valuable insight regarding specific provisions of the 2002 
PAL  and  consequently  the  Regulation.  The  author  shares  his  view  regarding 
the basis of liability by stating that the distinction between shipping and non-
shipping incidents is appropriate in view of the special circumstances involved 
in  the  transport  of  passengers  by  sea.  Especially  when  compared  to  the 
transportation of passengers by air it is evident that it would not be fair for a 
sea  carrier  to  be  exposed  to  the  same  liability  rules,  provided  that  the  risks 
are  different.  The  different  approach  between  the  applicable  rules  for  the  air 
and sea carrier is justified as far as the time bar is concerned. In other words, 
since  sea  transportation  entails  the  risk  of  injuries  which  are  diagnosed  at  a 
later  stage,  it  is  considered  appropriate  to  grand  the  courts  the  option  of 

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extending the limitation period beyond two years, although such an extension 
is not an option under  the Montreal Convention. The limits of liability for the 
first  layer  of  liability  in  shipping  incidents  should  be  kept  at  225.000  SDR 
which  in  his  view  appears  to  be  a  compromise  among  all  parties’  interests. 
The  author  also  criticized  the  definition  of  a  ship  defect  under  the  2002  PAL 
which  may  create  confusion  and  uncertainty.  Additionally,  Soyer  comments 
that  the  exceptions  of  liability  for  shipping  incidents  need  better  drafting. 
Furthermore,  in  his  view  the  right  of  direct  action  against insurers  ensures  a 
better  level  of  protection  to  sea  passengers.  Despite  the  fact  that  the  use  of 
the wilful misconduct defence by the insurer may possibly create some unjust 
results,  it  is  considered  appropriate  for  public  policy  reasons.  Finally,  the 
author criticizes Article 7 of the 2002 PAL on the basis that it defeats the goal 
of establishing a uniform liability scheme. 

R. Peltz, “The Athens Convention Revisited”, 43 J. Mar. L. & Com. 491 2012. 
The  author  suggests  in  his  Article  that  the  incorporation  of  the  Athens 
Convention’s  limits  in  a  passenger  ticket  under  US  law  circumvents  public 
policy. As stated by the author, under 46 U.S.C. §30509 the carrier may not 
limit  his  liability  for  negligence  or  fault  in  case  of  accidents.  However,  a 
limited number of cases have upheld the incorporation of the Athens limits in 
a  cruise  line  ticket.  Notably,  the  author  highlights  that  all  of  these  cases 
involved  a  purely  foreign  voyage.  In  most  of  these  judgments,  the  Courts 
ruled that the passenger should be bound by the ticket’s terms, including the 
term limiting the carrier’s liability under the Athens Convention, on the basis 
that  a  cruise  line  ticket  does  not  constitute  a  contract  of  adhesion. 
Nevertheless,  this  conclusion  has  been  clearly  rejected  by  a  number  of 
binding  appellate  decisions.  The  Supreme  Court  has  additionally  described 
Carnival  Cruise  Lines  tickets  as  contracts  which  amount  to  contracts  of 
adhesion.  

to  both 

that 
these 
test,  which 

Furthermore, when examining the incorporation of the limits, the courts have 
the 
clauses  must  pass 
generally  agreed 
reasonable 
communicativeness 
ticket's  physical 
the 
looks 
characteristics as well as to whether the clause reasonably communicates the 
existence and substance of the limitation to the passenger. The tickets which 
have been found not to meet this standard have either failed to describe the 
limitation  amount  in  U.S.  dollars  and/or  incorporated  numerous  additional 
statutory limitations, thereby making it extremely difficult for a passenger to 
determine which limitation would apply to any particular situation. Once past 
this threshold, the focus of the inquiry turns to whether these clauses violate 
maritime public policy. 

In  the  author’s  view,  maritime  public  policy  in  reference  to  such  clauses  as 
defined by the courts is clear cut and unambiguous. Long before the adoption 
of  46  U.S.C.  §  183c,  the  present  statute's  predecessor,  the  courts  routinely 
rejected  carrier's  attempts  at  insulating  themselves  from  liability  in  this 
manner. Nevertheless,  even the newer damage cap violates the public policy 
underlying  both  U.S.  maritime  and land  based  tort  law,  which is  designed  to 
fully  compensate  victims  of  negligence  and  to  deter  future  wrongdoing  by 
holding  tortfeasors  responsible  for  their  actions.  Therefore,  in  the  final 
analysis, to allow a carrier to escape responsibility for the consequences of its 

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own  actions  by  hiding  behind  a  damage  cap  plucked  in  isolation  out  of  a  36 
year-old treaty, which the United States never signed, is not only contrary to 
the  well-established  public  policy  of  both  American  maritime  and  land  based 
tort law, but simply unsupportable under the existing law. 

K.  Lewins,  “The  Cruise  Ship  Industry  Liabilities  to  Passengers  for  Breach  of 
s52 and s74 Trade Practices Act 974 (Cth)”, 18 MLAANZ Journal, 2004. 
The  author  explains  the  position  of  a  passenger  who  wishes  to  bring  a  claim 
under the Trade Practices Act. According to  Lewins, the amended Section 74 
is applicable which enables the carrier to limit his liability for injury or death in 
case  of  an  event  involving  recreational  activities  on  board  the  hotel-like 
environment  of  a  cruise  ship.  Other  than  that,  the  carrier  may  not  limit  his 
liability. Thus, a claim for injury associated with a lack of due care and skill in 
the navigation of the ship, the traditional ‘slip and trip’ claims, food poisoning, 
negligence  during  beauty  services,  legionnaires  disease  etc.  will  not  be 
subject to limits. 

H. D. Tebbens, “The European Union and the Athens Convention on Maritime 
Carrier’s  Liability  for  Passengers  in  case  of  Accidents:  An  Incorporation 
adventure”, 61 RHDI 653 2008. 
The  author  suggests  that  the  jurisdiction  rules  under  the  Athens  Convention 
have  an  impact  on  the  Brussels  I  Regulation.  More  specifically,  the  author 
explains:  “option  a)  corresponds  to  Article  2  of  the  Regulation,  or  if  the 
claimant is a consumer to one of the options open to him or her under Article 
16. Option c) recalls the special jurisdiction rule for consumers in the Brussels 
I Regulation in so far as defendants with a place of business in the claimant's 
state  ordinarily  will  have  a  'branch,  agency  or  other  establishment'  as 
required  by  Article  15(2)  of  the  Regulation.  However,  claims  by  ship 
passengers  are  excluded  from  this  special  rule  unless  the  transport  contract 
includes the journey and accommodation for a single price (package tours). It 
appears  therefore  that,  curiously  enough,  cruise  passengers  can  but  ferry 
passengers  cannot  invoke  the  consumer  jurisdiction  rules  of  the  Brussels  I 
Regulation.  For  the  latter  category  of  claimants,  the  Protocol  offers  a  wider 
choice  of  courts  than  the  Regulation.  Hence  it  can  be  said  that  adopting  the 
2002  Protocol  will in  this  particular  situation  supplement  the  Regulation.  The 
same is true for option d), referring to the place of conclusion of the carriage 
contract, which has no counterpart in the Brussels Regulation”. 

Furthermore,  the  author  discusses  the  disconnection  clause  allowing  the  EU 
Member States to apply the Brussels I Regulation, on the condition that those 
rules  ensure  recognition  and  enforcement  at  least  to  the  same  extent  as  the 
Convention permits. However, according to the author’s view, the alternative 
regime  might  on  some  occasions  be  less  favourable  than  the  Protocol:  for 
example,  the  Protocol  does  not  recognize  violation  of  public  policy  or  a 
conflicting  judgment  in  the  second  state  as  a  bar  to  enforcement  of  the 
foreign  judgment,  unlike  Article  34  of  the  Regulation.  In  other  cases,  the 
opposite  will  be  true,  e.g.,  the  Protocol  is  limited  to  final  judgments  but  the 
Regulation  is  not.  As  explained  by  Tebbens,  although  the  operation  of  this 
particular  disconnection  clause  may  give  rise  to  some  uncertainties  it  does 
imply  that  in  some  circumstances  the  Brussels  I  Regulation  may  not  be 

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applied even if by its own terms it is applicable. Therefore, the Protocol is, to 
that extent, capable of affecting the Regulation. 

T.  A.  Dickerson,  “The  Cruise  Passenger's  Dilemma:  Twenty-First-Century 
Ships, Nineteenth-Century Rights”, 28 Tul. Mar. L.J. 447, 2003-2004. 
The  author  gives  an  overview  of  the  cruise  passenger’s  right  under  US  law, 
which  can  be  useful  for  the  purpose  of  evaluating  the  Regulation’s 
effectiveness in comparison with other regimes. 

Maritime law allows cruise lines to impose  very short time limitations for the 
filing  of  claims  and  the  commencement  of  lawsuits.  For  physical  injuries 
occurring on cruise vessels that touch U.S. ports, passengers may be required 
to  file  a  claim  within  six  months  and  commence  a  lawsuit  within  one  year. 
Additionally,  passengers  may  expect  that  they  are  entitled  to  bring  a  claim 
before  their  local  court.  However,  jurisdiction  issues  may  be  more  complex 
than that. For example, the author refers to the possibility jurisdictional issues 
which may arise when an accident occurs in territorial waters and may involve 
in rem claims against the ship. Finally, Dickerson also refers to the possibility 
of a  carrier to incorporate the Athens Convention’s limitation in the contract, 
which  may  apply  despite  the  fact  that  the  US  is  not  a  signatory  to  the 
Convention,  in  case  the  cruise  does  not  touch  a  US  port.  As  noted  by  the 
author, the Athens Convention is important since it may apply to as many as 
twenty  percent  of  U.S.  cruise  passengers  who  annually  "sail  from,  and  back 
to, foreign ports, like a Mediterranean or Caribbean cruise. 

M.  Tsimplis,  “Liability  in  respect  of  passenger  claims  and  its  limitation”,  15 
JIML 2009. 
The author mentions two  cases where the plaintiffs used a package  directive 
instead  of  the  Athens  Convention  on  the  basis  that  the  defendant  tour 
operators  and  their  agents  fell  within  the  definition  of  the  carrier  under  the 
Athens Convention. The author noted that if there were  conflicting provisions 
the Directive would prevail as EU law. However, in view of the 392 Regulation, 
this  conflict  would  be  resolved  with  the  Regulation  prevailing  over  the 
Directive. Additionally, the author considers that the problem of the conflicting 
provisions  of  the  Athens  Convention  and  the  LLMC  is  resolved  through  the 
Protocol  by  giving  options  to  the  State  parties  to  both  Conventions.  These 
options are the following: 
1)  Limit  liability  for  passengers  both  under  the  1996  LLMC  and  the  2002 
Protocol.  This  would  imply  a  limit  of  liability  of  400.000  SDR  per  passenger 
under Article 7.1 of the 2002 Athens Convention capped by an overall limit of 
175.000 SDR multiplied by the number of passengers the ship is authorized to 
carry (according to the ship’s certificate) under Article 7.1 of the 1996 LLMC. 
However,  this  solution  may  restrict  the  strict  liability  of  up  to  250.000  SDR 
under  Article  3.1  of  the  2002  Athens  Convention  to  175.000  SDR  per 
passenger  (in  accordance  with  the  limit  of  Article  7.1  of  the  1996  LLMC)  if 
many passengers were injured; 
2) A state could provide for unlimited liability for loss of life of personal injury 
under the 1996 LLMC under Article 15(3bis). In such a case, the limits of the 
2002 Athens Convention will apply alone; 
3) A state could provide unlimited liability under the 2002 Athens Convention 
and permit limitation of liability under 7.1 of the LLMC; 

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231 

 
 
 
 
 
 
 
 
 
 
5) A state can remove the limits of liability from both conventions and permit 
unlimited liability for passenger claims in respect of death or personal injury. 

H. Ringbom, "Maritime Liability and Compensation in EU Law" in B. Soyer and 
A. Tetterborn, Pollution at Sea Law and Liability, Informa Law 2012. 
According  to  Ringbom,  the  2002  PAL  is  linked  to  European  law  through  the 
inclusion  of  a  clause  allowing  the  EU  or  any  other  regional  economic 
integration  organization  to  become  a  contracting  party.  As  explained  by 
Ringbom, when ratifying or acceding the organization is required to submit a 
list  of  subject  matters  over  which  it  exercises  competence.  With  respect  to 
those issues, the EU takes over the responsibilities of the member states and 
has  a  number  of  votes  equalling  the  number  of  its  member  states  parties  to 
the protocol. In 2011 the EU took the decision to accede to the 2002 PAL. It is 
very important to note that under EU law conventions to which the Union is a 
party rank higher than EU directives or regulations which means that the IMO 
provisions thereby take precedence over conflicting EU rules. 

jurisdictions, 

Ringbom  highlights  the  fact  that  the  Regulation  contains  a  number  of 
additional features that go beyond the scope of the convention, including the 
extension  of  the  scope  of  application  of  the  Athens  Convention,  the  advance 
payment  and  the  information  provision.  Simultaneously,  there  are  certain 
differences in substance between the EU rules on jurisdiction and recognition 
as  laid  down  in  that  Regulation  and  their  international  counterparts.  The 
Athens Convention provides a broader range of options for claimants by listing 
four 
i.e.  the  domicile  of  the  defendant,  the  state  of 
destination/departure of the carriage and where the defendant has a place of 
business  in  those  jurisdictions,  the  domicile  of  the  claimant  and  the  state 
where  the  contract  of  carriage  was  made.  A  fifth  ground  of  jurisdiction, 
granting competence to the courts of the state of the claimant’s domicile was 
deleted from the draft, mainly on the grounds that it would have been against 
the  philosophy  of  the  (then  newly  adopted)  Brussels  Regulation.  As  to 
recognition  and  enforcement,  the  IMO  conventions  seek  to  avoid  complex 
procedures relating to the recognition of cross-border judgments by requiring 
the recognition of a judgment which is no longer subject to ordinary forms of 
review,  except  where  the  judgment  was  obtained  by  fraud,  or  where  the 
defendant  was  not  given  reasonable  notice  and  a  fair  opportunity  to  present 
his  case.  Judgments  are  required  to  be  enforceable  in  each  state  party  as 
soon as the formalities required in the state where the judgment given in one 
court  of  an  EU  member  state  is  automatic  in  another  member  state  unless 
contested.  Similarly,  a  declaration  that  a  judgment  is  enforceable  is  virtually 
automatic  after  purely  formal  checks  of  the  documents.  Enforcement  can  be 
refused  only  on  one  of  the  grounds  exhaustively  listed,  mainly  cases  where 
recognition would violate the order public of the receiving state. While it may 
be discussed how significant this difference actually is, it was perceived by the 
EU  in  the  negotiations  as  representing  a  potential  weakening  of  its  own 
recognition  scheme.  The  matter  was  resolved  in  the  Athens  Protocol  by  the 
introduction of the opt-out clause. Ringbom finally notes that there has been 
some  uncertainty  as  to  the  legal  effects  of  the  EU  decision  to  ratify  the  IMO 
liability  convention  in  the  interest  of  the  EU  and  whether  it  could  oblige 
member  states  to  apply  the  provisions  of  the  Brussels  Regulation  instead.  A 
practical approach would be to give precedence to the IMO conventions’ rules 

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on jurisdiction, while the EU regime for recognition and enforcement could be 
applied  as  between  member  states  instead  of  the  (quite  similar)  rules  of  the 
conventions. Such a solution has recently been favoured in decision 2012/23 
relating  to  the  accession  of  the  EU  to  the  2002  Protocol  to  the  Athens 
Convention. 

C.  Haddon-Cave  QC,  “Limitation  against  passenger  claims:  medieval, 
unbreakable and unconscionable”, CMI Yearbook 2001, 234. 
Sir  Haddon-Cave  strongly  supports  the  view  that  shipping  law  should  follow 
the example of aviation and eliminate the limits of liability, since the grounds 
justifying  their  existence  have  ceased  to  exist  for  both  modes  of  transport. 
More  specifically  the  author  refers  to  eight  reasons  listed  by  Professor  Drion 
used  in  justification  of  the  right  of  an  air  carrier  or  operator  to  limit  and 
proceeds  to  examine  whether  these  reasons  still  have  a  stand  in  either 
aviation or shipping as follows:  

a)  Analogy between the aviation and maritime law  

The  author  explains  that  maritime  law  influenced  strongly  the  drafters  of 
aviation law in its early stages. Aircraft and ships (unlike railway trains) were 
thought  to  share  many  of  the  same  problems  and  proclivities  and  to  require 
similar treatment. The question of the appropriateness of liability limits in the 
maritime  sector  in  particular  has  been  the  subject  of  heated  debates  among 
legal  scholars  for  many  years.  However,  as  sir  Haddon-Cave  notes,  since 
these debates, “public attitudes and government attitudes have hardened and 
more and more questions are being asked about the justification for limitation 
of any sort (see e.g. The “Erika”)”; 

b)  Necessary protection for a financially weak industry. 

The  second  ‘rationale’  mentioned  by  Drion  was  the  perceived  necessity  to 
protect  a  financially  weak  industry.  The  aviation  industry  was  fledgling  in 
1920s  but  not  now;  and,  moreover,  the  playing  field  has  been  entirely 
changed by the advent of the modern insurance and reinsurance industry. The 
same is equally true of the shipping industry if not more so; 

c)  Catastrophic risks should not be borne by aviation alone. 

Professor Drion next refers to the notion that ‘catastrophic risks’ should not be 
borne  by  the  industry  alone.  They  are  not  any  longer:  the  insurers  bear  the 
burden; 

d)  The  necessity  of  the  carrier  or  operator  being  able  to  insure  against 

these risks. 

Drion  next  lists  the  necessity  of  the  carrier  or  operator  being  able  to  insure 
against these risks. The carrier can, at reasonable cost; 

e)  The  possibility 
themselves. 

for  the  potential  claimants  to  take 

insurance 

Next,  Drion  mentions  the  possibility  for  the  potential  claimants  to  take 
insurance  themselves.  Travel  insurance  is  widely  available,  but  is  relatively 
expensive compared with cover obtainable by the industry; 

f)  Limitation of liability was the ‘quid pro quo’ for the aggravated regime 

of presumed liability. 

Drion next refers to the point that limitation of liability was the ‘quid pro quo’ 
for the aggravated regime of presumed liability of the carrier; 

g)  The avoidance of litigation by facilitating quick settlements. 

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Finally,  Drion  refers  to  the  argument  that  the  Warsaw  regime  has  facilitated 
quick  settlements  and  avoidance  of  litigation.  In  recent  years  this  has  not 
been the case: limitation regimes have been an increasing source of litigation.  

On  the  basis  of  the  above,  sir  Haddon-Cave  concludes  that  raising  the  limits 
through  the  Protocol  is  not  enough  to  ensure  sufficient  protection  of 
passenger rights. What should also be taken into account is that the limits are 
essentially unbreakable according to the author. As explained, “It is a curious 
fact  that  in  English  law  at  least,  and  (I  suspect)  the  law  of  many  other 
countries, a cruise liner captain or aircraft pilot’s conduct could give rise to a 
charge  of  manslaughter  but  still  be  insufficient  to  break  the  limit  under  the 
Athens”. Thus, in light of these problematic provisions and since the grounds 
justifying  the  existence  of  limits  has  ceased  to  exist  for  both  air  and  sea 
transportation,  shipping  law  should  follow  the  example  of  air  law  and 
eliminate the liability limits.  

transportation, 

the  chapter  discussing  passenger 

A.  Mandaraka-Sheppard,  Modern  Maritime  Law  and  Risk  Management, 
Informa 2009. 
Under 
the  author 
investigates whether claims by passengers carried in a cruise ship can lead to 
possible conflicts between the Athens Convention and the PTR 92.189 In Lee 
vs Airtours Holidays Ltd. the contract for a cruise holiday on Sun Vista which 
caught  fire  and  sank  with  passengers  valuables  on  board,  had  been  made 
through  a  travel  agent.  The  claim  was  brought  under  Regulation  15  of  the 
PTR, against the travel agent for inter alia loss of valuables. Judge Hallgarten 
held  that  the  Regulations  represented  an  alternative  regime  to  the 
Convention.  Insofar  as  the  Regulations  conflicted  with  UK  domestic  law  (the 
law implementing an international convention), the regime of the Regulations 
must  prevail  pursuant  to  the  European  Communities  Act.  Nevertheless,  the 
court  made  clear  that  if  there  was  no  express  incorporation  of  the  Athens 
Convention in the contract, the PTR prevailed over the Athens Convention to 
the extent that the two conflicted.  In stark  contrast, in the Norfolk case, the 
plaintiff tried to file a suit under the PTR since the two year limitation period 
had elapsed.  The  court  rejected this claim by explaining that a claim for  any 
personal  injury  suffered  aboard  a  cruise  ship  when  the  Athens  Convention 
applies will fall within the scope of the Convention. As a result, the claim was 
time barred. The fact that the PTR flowed from the Package Directive did not 
affect the standing of the Convention. 

The author also refers to the right of the insurer to invoke the defence of the 
carrier’s wilful misconduct. She explains that despite lengthy discussions and 
recommendations  to  the  IMO’s  Legal  Committee  about  dropping  the  “wilful 
misconduct” defence, since the purpose of compulsory insurance is to protect 
the  victims  of  disasters,  it  is  unfortunate  that  it  has  been  maintained.  It  is 
also unfortunate that the alternative proposal for protection of victims by the 
provision  of  accident  insurance,  which  is  not  subject  to  the  defence  of  wilful 
misconduct,  was  not  accepted.  One  argument  in  support  of  retaining  the 
defence  of  wilful  misconduct  is  that  it  will  discourage  owners  who  may  be 
minded to scuttle their ship for gain, or deliberately do not maintain the ship 

189   UK Package Travel Regulations 1992. 

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in  a  seaworthy  condition.  However,  such  an  argument  is  flawed:  in  the  first 
place,  insurers  should  not  insure  such  owners,  and  second,  such  owners  will 
not be deterred by maintaining the defence against the victims, who will have 
no asset of the bankrupt owner against which to proceed. The other argument 
in  favour  of  maintaining  this  defence  is  that  it  will  be  unfair  to  the  other 
owners  who  are  insured  mutually  in  the  P&I  Clubs  to  have  to  finance  the 
insurance  for  such  conduct  by  substandard  owners.  However,  the  P&I 
managers  and  directors  of  the  mutual  insurance  are  in  a  better  position  to 
evaluate  the  credentials  of  owners  who  enter  with  the  particular  club  (and 
refuse the insurance of substandard owners), that ferry passengers who may 
board a substandard ferry. 

A.  Saggerson,  Travel  Law  and  Litigation,  4th  rev.  ed.  St  Albans  Tarquin 
Publications, 2008. 
In the chapter dealing with passenger transportation and liabilities, Saggerson 
comments  on  the  relationship  between  the  Convention’s  regime  and  the 
Package  Travel  Directive.  According  to  his  view,  the  Convention  applies  by 
operation of law to any carrier even if the carrier is also a tour operator within 
the meaning of the PTR 1992. The Convention is not qualified by or limited in 
its  effect  by  virtue  of  anything  in  the  PTR  1992  and  prevails  over  the  PTR 
1992 where the carrier  happens also to be a tour operator. He also refers to 
the  Norfolk  case,  which  involved  a  plaintiff  who  tried  to  file  a  suit  under  the 
PTR  since  the  two-year  limitation  period  had  elapsed.  The  judge  noted  that 
there was no inconsistency between the Convention and the PTR because the 
latter  did  not  specify  any  limitation  period  at  all  and  therefore  there  was  no 
reason  why  for  accidents  on  board  vessels  to  which  the  Convention  applied 
the limitation period should not be that specified in the Athens Convention. In 
any event the Convention having the force of law applied as against or as in 
this  case  in  favour  of  performing  and  contracting  carriers  irrespective  of  the 
PTR. 

Regarding  the  comparison  between  Montreal  and  the  Convention’s  regime, 
the author notes the following differences: 

  Liability is  for  personal injury  as  opposed  to  bodily injury.  This  clearly 
indicated that psychiatric injury or other impairment of mental faculties 
are included; 

  The  use  of  the  word  incident  as  opposed  to  accident  may  well  be 
intended  to  extend  the  scope  of  liability  modestly  beyond  that 
contemplated by the Montreal Convention and probably avoids some of 
the more arcane difficulties that gave arises in construing the meaning 
of the word “accident” under the Montreal and formerly Warsaw-Hague 
regimes.  However,  it  is  likely  that  injury  resulting  from  some  internal 
factor  specific  to  the  passenger  (for  example  pre-existing  physical 
weakness)  are  not  likely  to  be  covered  by  the  Athens  compensation 
regime  any  more  that  they  give  rise  to  compensation  under  the 
Montreal Convention.  

Furthermore,  the  author  discusses  Article  13,  which  according  to  his  opinion 
appears  to  require  proof  that  there  has  been  a  systematic  or  managerial 
failure  of  an  intentional  or  reckless  character  as  opposed  to  intentional  or 
reckless conduct by an employee in the course of his employment. The Athens 
Convention  seems  to  assume  that  where  an  employee  has  caused  injury  or 

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damage,  action  will  be  taken  against  that  employee  directly.  If  it  is,  the 
employee  is  subject  to  the  same  regime  and  also  loses  the  right  to  limit  his 
liability for intentional or reckless conduct. As with the Warsaw Convention it 
is  for  the  passenger  to  prove  intention  or  recklessness  in  order  to  overcome 
the  Athens  Convention  limits.  It  is  thought  likely  that  any  court  concerned 
with  allegations  of  recklessness  would  apply  the  same  test  as  that  which  is 
applied  under  the  Warsaw  Convention.  Ticketing  errors  by  the  carrier  do  not 
result in the loss of the carrier’s right to rely on the limits of liability activated 
by  the  Athens  Convention.  Finally,  Saggerson  also  touches  upon  the  subject 
of  the  measurement  of  the limitation  period, which is  subject  to  the  national 
rules  on  suspension  or  interruption  of  limitation.  If  the  domestic  rules  of  the 
court  seized  of  the  action  permit  the  suspension  or  interruption  of  limitation 
periods, those domestic rules can be applied subject to an absolute bar after 
three years.  

R.  Shaw,  Carriage  of  Passengers  in  Southampton  on  Shipping  Law,  Informa 
2008. 
Regarding  the  interaction  between  the  Package  Travel  Directive  and  the 
Athens  Convention  the  author  refers  to  the  cases  of  Lee  and  another  v 
Airtours Holidays Ltd and another (2002), as  well Norfok v. My  Travel Group 
plc.  In  the  former  case,  the  Court  held  that  the  provisions  of  the  directive 
were part of UK domestic law and should be applied unless the provisions of 
the Athens Convention were specifically referred to in the contract. However, 
in  the  Norfok  v.  My  Travel  Group  plc  Court  ruled  that  that  the  Athens 
Convention  was  given  the  force  of  law  in  the  UK  and  therefore  applied  even 
where there was no express reference to it in the contract. The two- year time 
bar did not conflict with the terms of the Directive. Shaw comments that on a 
broader basis there is an apparent conflict between the terms of the directive 
and  the  express  terms  of  Articles  11  and  14  of  the  Convention,  which 
demonstrate  that  it  is  intended  that  the  code  contained  in  the  Convention 
applicable  to  claims  against  a  carrier  should  also  apply  to  claims  against  the 
servants  or  agents  of  the  carrier  and  more  important  that  no  claims  by 
passengers  should  be  brought  otherwise  than  in  accordance  with  the 
Convention.  It  is  strongly  arguable  that  the  provisions  of  the  EU  directive  to 
the extent that they conflict with it, amount to a breach by the member states 
of their treaty obligations to the other state parties to the Athens Convention. 
However,  the  introduction  of  the  Athens  Regulation  partly  resolves  this 
conflict. 

Finally, Shaw sets out the reasons why plaintiffs might choose the US Courts 
to  bring  their  claims  against  carriers.  More  specifically,  the  advantages  of 
bringing a claims in the US from the plaintiff’s point of view are: 

  Higher level of damages; 

  Lawyers will accept instructions on a contingency fee basis; 

  Penetrating discovery procedures; 

  No liability to pay the defendant’s costs; 

  Class actions. 

Shaw  also  notes  that  the  possibility  of  obtaining  an  award  of  punitive 
damages  in  a  shipping  case  in  the  USA  is  a  myth.  There  is  no  recorded 

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maritime  case  in  the  US  where  such  damages  have  been  awarded,  but  it  is 
fair to say that no defendant or their insurance company wants to be the first. 
The  threat  of  such  proceedings  in  a  case  involving  a  maritime  casualty  in 
Europe  has  in  many  cases  led  to  a  Mid-Atlantic  Settlement  at  a  figure 
substantially higher than that obtainable in the English courts.  

M.  Tsimplis  &  R.  Shaw,  “Carriage  of  Passengers”,  in  Yvone  Baatz  Maritime 
Law, CRC Press 2014. 
The  authors  clarify  the  interaction  between  the  LLMC  and  the  Athens 
Convention. As noted by another author above, the States parties to the 2002 
Protocol and the LLMC will have the following options: 
1)  Limit  liability  for  passengers  both  under  the  1996  LLMC  and  the  2002 
Protocol.  This  would  imply  a  limit  of  liability  of  400.000  SDR  per  passenger 
under Article 7.1 of the 2002 Athens Convention capped by an overall limit of 
175.000 SDR multiplied by the number of passengers the ship is authorized to 
carry (according to the ship’s certificate) under Article 7.1 of the 1996 LLMC. 
However,  this  solution  may  restrict  the  strict  liability  of  up  to  250.000  SDR 
under  Article  3.1  of  the  2002  Athens  Convention  to  175.000  SDR  per 
passenger  (in  accordance  with  the  limit  of  Article  7.1  of  the  1996  LLMC)  if 
many passengers were injured; 
2) A state could provide for unlimited liability for loss of life of personal injury 
under the 1996 LLMC under Article 15(3bis). In such a case, the limits of the 
2002 Athens Convention will apply alone; 
3) A state could provide unlimited liability under the 2002 Athens Convention 
and permit limitation of liability under 7.1 of the LLMC; 
5) A state can remove the limits of liability from both conventions and permit 
unlimited liability for passenger claims in respect of death or personal injury. 

Kroger Passengers carried by sea, should they be granted the same rights as 
airline passengers?   
This  Article  was  written  in  2001  and  discusses  the  different  liability  regimes 
which regulate air and sea transport, in particular the carrier’s liability vis-à-
vis passengers. In view of the date this Article was drafted, it does not touch 
upon  the  provisions  of  the  Regulation  and  consequently  does  not  evaluate 
these.  However,  the  author  does  indeed  analyse  the  underlying  reasons 
justifying the liability regime applicable to the air and sea carrier. Additionally, 
Kroger  touches  upon  the  markets  of  passenger  transportation  by  sea  and 
finally  suggests  specific  amendments  to  take  place  regarding  the  Athens 
Convention,  which  have  already  been  made  by  the  Regulation.  To  be  more 
precise,  the  author  explains  that  the  sea  carrier  simply  cannot  be  subject  to 
the same rules as the air carrier mainly on the basis of the differing estimates 
of  potential  risks  of  the  individual  transport  mode,  the  economic  background 
of  the  markets  and  the  political  influence  on  liability  clauses.  The  author 
identifies four categories of markets in sea transport: National ferry transport, 
International  ferry  transport  linking  two  nearby  countries,  cargo  ships 
carrying passengers and the cruise shipping market, which is characterized by 
the  extensive  freedom  of  movement  on-board.  The  liability  rules  adopted  by 
the  Athens  Convention  must  be  considered  in  view  of  the  social-economic 
conditions  present  in  these  markets.  Thus,  the  author  considers  the  liability 
rules  adopted  by  the  Convention  appropriate.  He  justifies  his  view  using  the 
following  arguments:  The  carrier  should  be  primarily  responsible  for  taking 

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237 

 
 
 
 
 
 
 
 
 
measures to prevent risks, including the responsibility to care for the technical 
conditions  of  facilities  on-board  which  are  used  by  passengers.  Accordingly, 
the  passenger  should  be  responsible  for  the  proper  use  of  such  well-
maintained facilities. Furthermore, the definition of damages under the Athens 
Convention is notably wider than the one included in the Montreal Convention, 
losses.  Moreover,  the  Athens 
encompassing  mental  or  psychological 
Convention includes a maximum liability limit which is considered desirable on 
the  grounds  of  public  policy  and  the  structure  of  the  insurance  markets. 
Kroger also mentions the fact that the ship-owners should be obliged to take 
out  liability  insurance  with  sufficient  cover.  Most  importantly,  Kroger 
comments  on  the  possibility  of  a  direct  action  against  the  insurer,  which  he 
considers  a  prudent  step.  Additionally,  the  passengers  could  take  out  an 
additional  accident  insurance.  Finally,  the  author  considers  whether  the  high 
liability  limits  could  act  as  an  incentive  for  the  carrier  to  take  all  possible 
safety  measures,  concluding  that  there  is little  room  for  a  carrier  to  improve 
these  measures  in  view  of  the  international  legal  instruments  and  guidelines 
imposing specific safety standards. In his conclusions, the author denotes the 
importance of balance among the interests of the passengers, the carrier and 
the insurance markets.  

Testa  Liability  and  Insurance  for  the  carriage  of  passengers  by  sea  under 
Regulation  392/2009:  Providing  a  lifeline  to  the  cruise  industry  and  ensuring 
proper compensation for passengers in the event of accidents. 
David  Testa’s  Article  evaluates  the  Regulation’s  provision  by  categorizing  the 
respective  rules  and  assessing  their  effectiveness.  To  be  more  precise,  Testa 
first  discusses  the  rules  on  liability  adopted  by  the  Athens  Convention  and 
embodied in the Regulation. He denotes the importance of the balance among 
the  interests  of  carriers,  passengers  and  insurers  and  goes  on  to  emphasize 
that such balance will ensure the proper level of compensation for passengers 
in the event of an accident. The author also highlights the importance of the 
distinction  between  shipping  and  a  non-shipping  incident  and  the  respective 
consequences  of  such  characterization.  Testa’s  opinion  is  that  imposing  a 
strict  liability  in  case  of  a  shipping  incident  only  is  fair.  In  his  opinion  a  sea 
carrier  could  under  no  circumstances  be  regarded  in  the  same  context  as  an 
air carrier, given the hotel-like environment on-board of ships which is much 
more  prone  to  accidents.  However,  the  author  identifies  in  the  next  section 
two particular provisions of the Regulation which he considers were drafted in 
an  imprecise  manner.  Namely,  Testa  mentions  the  two  exceptions  to  strict 
liability in Article 3(1). In the event when an accident is caused both by one of 
the  exceptions  mentioned  therein  and  the  contributory  fault  of  the  carrier, 
they  would  be  relieved  from  liability,  which  appears  to  be  problematic. 
Further,  the  definition  of  a  ship  defect  entails  the  risk  of  vagueness  and 
therefore  is  in  need  of  clarifications.  Finally,  the  question  of  whether  mental 
injury  is  included  under  the  term  “personal  injury”  is  one  that  should  have 
been  addressed  in  the  Regulation.  In  the  following  parts  Testa  discusses  the 
possibility for a Member State to adopt higher or unlimited liability in the case 
of  claims  relating  to  the  death  or  injury  of  passengers.  According  to  the 
author’s  position,  this  provision  endangers  uniformity  and  further,  it  is 
potentially flawed, in view of the detrimental consequences that it could entail 
for  carriers.  Most  importantly,  carriers  are  likely  to  be  unable  to  respond  to 
such claims, which are not subject to limits. As far as the loss of the right to 

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limit  liability,  Testa  expresses  the  view  that  the  threshold  is  set  too  high, 
considering  that  a  captain’s  conduct  under  the  current  framework  could 
amount  to  manslaughter  but  still  not  qualify  as  grounds  to  lose  the  right  to 
liability  limits.  Another  important  argument  voiced  by  the  author  is  that, 
although the compensation available to passengers appears to be adequate, it 
is  not  reasonable.  That  argument  is  justified  on  the  basis  that in  case  of  per 
capita limits, the unused portions of funds could be pooled and made available 
to  satisfy  larger  claims  that  exceed  the  per  capita  limit.  Naturally,  the 
interests of the cruise and insurer industries should be safeguarded. As far as 
the  new  provisions  introduced  by  the  Regulation  are  concerned,  namely  the 
information  obligation  and  the  advance  payment,  Testa  considers  that  these 
have significantly improved the position of a claimant. Another positive aspect 
of  the  Regulation  according  to  the  Article  is  the  compulsory  insurance 
provision,  which  is  desirable  both  by  passengers  and  carriers.  Testa  also 
discusses the right of direct action against an insurer. This right is subject to 
certain  limitations,  for  example  the  right  of  the  insurer  to  be  relieved  of 
liability if the damage is a result of the carrier’s wilful misconduct. Such right 
undermines  the  Regulation’s  aim  to  ensure  proper  compensation  to 
passengers, although public considerations may justify such provision. Finally, 
with  respect  to  the  right  of  Governments  to  limit  liability  to  SDR  250.000  or 
340  million  in  the  event  of  the  risks  mentioned  in  Section  2.2.  of  the  IMO 
Guidelines,  Testa  assesses  these  limits  are  reasonable,  despite  the  fact  that 
the  impact  of  such  limits  could  be  substantial  in  certain  cases.  Two  positive 
characteristics  of  the  said  right  is  the  pro  rata  distribution  and  the  fact  that 
the  340  million  are  designated  for  passenger  claims  under  the  Convention 
only.  

Justice  Thomas  A.  Dickerson  The  Cruise  passenger’s  rights  and  remedies 
2014:  The  Costa  Concordia  disaster:  One  year  later,  many  more  incidents 
both on board megaships and during risky shore excursions. 
This  Article  touches  upon  the  issue  of  the  passenger’s  rights  on-board  cruise 
ships,  but  solely  focuses  on  U.S.  legislation  and  case  law.  Additionally,  the 
Athens  Convention  and  the  EC  Regulation  are  only  mentioned  in  the  final 
chapter,  where  the  author  describes  the  rules  contained  therein  and  the 
applicability  of  these  provisions  to  U.S.  citizens  or  the  application  of  these 
rules  by  U.S.  courts.  It  does  not  offer  insight  for  the  purpose  of  the 
evaluation. 

Jens  Karsten  Passengers,  consumers  and  travellers:  The  rise  of  passenger 
rights in EC transport law and its repercussions for Community consumer law 
and policy. 
The paper by Karsten suggests that passenger law may constitute a branch of 
the  wider  consumer  policy  which  expands  the  area  of  Community  law  of 
contracts.  The  author  sets  out  the  developments  at  the  time  the  Article  was 
drafted  in  terms  of  passenger  rights’  regulation  for  all  transport  modes. 
Following this part, Karsten discusses the policy framework which constitutes 
the  background  for  the  promotion  of  passenger  rights’  protection.  Among 
others,  it  is  stated  that  a  minimum  degree  of  protection  would  bring  the 
individuals  closer  to  the  European  values.  The  White  Paper  “European 
Transport  Policy  for  2010:  Time  to  decide”  clearly  involves  the  intention  to 
strive  for  transport  with  a  human  face  through  strengthening  of  the  user’s 

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rights.  The  author  further  denotes  that  despite  similar  objectives,  legislating 
for  an  integrated  internal  market  does  not  engender  uniform  rules  for 
passengers  and  consumers.  Consumer  policy  is  distinguished  into  three 
branches,  depending  on  the  group  of  persons  benefiting  from  the  rules 
established: Consumers, Travelers and Passengers.  In the first branch, there 
is  a  distinction  between  private  entities  or  professional  ones  (B2C  or  B2B). 
This  is  not  the  case  with  travellers  however,  nor  passengers.  The  author 
concludes with some points for further reflection.  

Eugenio Olmedo Peralta New requirements and risk distribution for the liability 
of  carriers  of  passengers  by  sea  in  the  event  of  accidents  under  Regulation 
(EC) 392/2009. 
Peralta’s  Article  introduces  the  provisions  of  the  Regulation  regarding  the 
liability of the carrier in the event of an accident and connects that liability to 
a  breach  of  contract.  More  specifically,  Peralta  considers  that  the  carrier 
undertakes  the  responsibility  to  carry  the  passenger  to  his  destination 
unharmed.  Thus,  in  case  a  passenger  has  suffered  any  kind  of  damage  this 
obligation is not complied with, resulting consequently in a breach of contract. 
Nevertheless, the author refers to both the Regulation and the PAL in order to 
establish  that  the  liability  of  the  carrier  depends  greatly  on  the  risk 
distribution. In other words, despite the fact that the carrier has breached an 
obligation  at  first  sight,  he  may  not  be  held  liable  on  the  grounds  that  the 
damage  is  not  attributable  to  the  carrier.  The  author  first  touches  upon  the 
issues  of  scope,  definitions  of  terms  under  the  Regulation  and  the  specific 
liability  provisions  in  a  descriptive  way.  In  some  instances,  Peralta  offers 
some  insight  as  to  the  evaluation  of  the  Regulation.  By  way  of  example,  he 
mentions  that  “Anyway,  it  is  easy  to  comprehend  that  the  regulation  is  set 
seeking  the  protection  of  the  passenger’s  interests,  provided  that  this  shall 
not  imply  a  burden  too  heavy  to  carry  by  the  carriers.  Besides,  this  fault-
based liability system and the way it is articulated by the Regulation and the 
PAL  is  consistent  with  the  consumers  and  users’  regulations.”  Next,  Peralta 
analyses the liability provisions in more detail and discusses the attributability 
of the harmful event to the carrier. The author distinguishes between shipping 
and  non-shipping  incidents  and  further  explains  the  two-tier  liability  system 
under  the  latter.  According  to  the  author,  the  fact  that  the  passenger  bears 
the  burden  of  proof  in  case  of  non-shipping  incidents  is  justified  on  the 
grounds of freedom of movement. On the other hand, the author also agrees 
with  the  allocation  of  risks  in  case  of  a  shipping  incidents,  provided  that  the 
chances  that  the  passenger  has  contributed  to  damage  produced  as  a  result 
of  these  incidents  are  limited.  Additionally,  it  should  be  very  hard  for  a 
passenger  to  establish  the  carrier’s  fault  or  neglect  in  case  of  such  an 
incident.  Finally,  Peralta  sets  out  the  grounds  for  exemption  and  notes  that 
the  list  appears  to  be  incomplete,  since  the  Regulation  should  also  consider 
the consequences of nuclear incidents.  

Sarah Fiona Gahlen Civil Responsibility Regimes for Passenger Claims. 
In  her  dissertation,  Gahlen  analyses  in  depth  the  liability  regime  governing 
passenger claims against the sea carrier. The author discusses the provisions 
of the Athens  Convention and the 2002 Protocol and for -inter alia- refers to 
the  EC  Regulation  392/2009.  In  that  subsection,  Gahlen  comments  that  the 
EU aimed for a uniform standard of passenger protection to the level granted 

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to other consumers and a level playing field for carriers. She then proceeds to 
discuss  the  rules  on  jurisdiction,  recognition  and  enforcement.  More 
specifically,  Gahlen  explains  that  EU  Member  States  were  prevented  from 
ratifying the PAL 2002 since it contained rules on jurisdiction, recognition and 
enforcement  in  civil  and  commercial  matters,  although  these  issues  were 
already  regulated  under  the  Brussels  Regulation.  For  the  purpose  of 
eliminating these hesitations, the EU ratified the 2002 PAL by virtue of Article 
XIX  of  the  PAL.  Nevertheless,  since  the  EU  wished  to  continue  applying  the 
Brussels Regulation it negotiated a disconnection clause, which is found under 
Article XVIbis para 3 of PAL 2002. According to that Article, contracting States 
may  apply  other  rules  for  the  recognition  and  enforcement  of  judgments, 
provided their effect is to ensure that judgments are recognized and enforced 
at  least  to  the  same  extent  as  under  paragraphs  1  and  2.  As  a  result, 
Contracting States are allowed to deviate under the aforementioned condition. 
The author nevertheless highlights the fact that the Brussels rules have been 
criticized  as  not  being  as  generous  as  the  PAL  rules.  To  be  more  precise, 
under the Brussels Regulation enforcement may be denied on the grounds of 
public  policy  considerations  or  irreconcilability  with  an  earlier  judgment.  In 
contrast  these  exception  grounds  are  not  found  under  the  PAL  2002  rules. 
Most  importantly,  the  author  suggests  that  a  judgment  from  an  EU  Member 
State which declares a passenger claim to be limited in amount, in accordance 
with  Article  5  of  Regulation  392/2009  allowing  the  global limitation  of  claims 
as  long  as  this  is  based  on  the  1996  LLMC,  could  be  considered  as 
contravening  public  policy  in  a  State  where  recognition  is  sought  and  where 
such a claim could not be limited. Additionally, different limits of liability could 
lead  to  contradictory  judgments,  especially  in  view  of  the  multitude  of 
possible forums under the PAL. The arguments above lead to the violation of 
the PAL or the alteration of the Brussels Regulation’s scope. In the next sub-
chapter  Gahlen  discusses  the  geographical  scope  of  application  under  the 
Regulation 392/2009. According to the author, these rules differ slightly under 
the Regulation and the PAL 2002 respectively. The former mirrors the latter’s 
provisions  but  replaced  the  reference  to  the  Contracting  State  with  a 
reference  to  a  Member  State.  Additionally,  the  author  notices  that  the 
application  of  the  PAL  to  domestic  voyages  through  the  Regulation  could  be 
considered inappropriate, provided that the PAL specifically limits its scope to 
“international carriages”.  

M.  Piras,  International  Recent  developments:  European  Union-  maritime 
passenger transportation. 
In  his  Article,  Piras  discusses  the  general  developments  in  the  field  of 
maritime  passenger  transport.  Regarding  the  Regulation,  his  Article  is  rather 
descriptive,  setting  out  the  provisions  on  liability  and  commenting  that  for 
non-shipping incidents the liability regime is similar to a tort liability system. 
Additionally, the author provides input regarding Italian law. More specifically, 
he  compares  the  rules  under  the  Regulation  to  the  relevant  Italian  rules  and 
highlighting  the  similarities  and  differences.  The  Codice  della  navigazione 
establishes  that  the  carrier  is  liable  for  damages  suffered  by  its  passengers 
unless  it  proves  that  the  accident  arose  from  a  cause  not  imputable  to  the 
carrier. To do so the passenger has to prove the existence of the contract of 
transport, the fact that the accident occurred during transport and the extent 
of  damages.  Accordingly,  the  carrier  is  discharged  if  he  can  prove  that  the 

Support study to the Evaluation of Regulation (EC) 392/2009 

241 

 
 
 
 
 
 
 
 
damage  was  caused  by  an  event  outside  of  his  sphere  of  control  which  was 
unforeseeable  and  unpreventable.  Further,  the  Italian  Navigation  Code  has 
been  criticized  as  burdensome.  It  has  been  therefore  suggested  that  a 
distinction  could  be  made  on  the  basis  of  whether  the  incident  was  due  to 
transport or in occasion of the transport. That distinction has been adopted by 
courts,  despite  the  fact  that  it  is  not  incorporated  in  the  text  of  the  law. 
Additionally,  under  Italian  law  the  carriage  of  vehicles  is  not  regulated  and 
courts  usually  apply  the  provisions  of  carriage  of  goods  by  sea,  resulting  in 
some  unsatisfactory  results  for  passengers.  In  the  next  sub-chapters,  the 
author touches upon the developments in the other fields of transport as well 
by  setting  out  the  European  regulations  applicable  and  explains  the  rights  of 
passengers in case of interrupted travel. Finally, Piras touches upon the issue 
of  protection  of  disabled  persons  and  persons  with  reduced  mobility  under 
Regulation 1177/2010 and the obligation to provide information.  

Juan  Pulido  Begines,  Cruise  Ship  Law,  in  The  Hamburg  Lectures  on  Maritime 
Affairs 2011-2013. 
The  author  of  the  chapter  under  consideration  offers  valuable  insight 
regarding  the  cruise  sector  and  the  applicable  rules  regarding  the  protection 
of passengers’ rights on-board cruise vessels. Pulido focuses on the particular 
nature of a cruise, which includes accommodation and transportation. Due to 
this special nature leads to a plurality of sources that could be applicable. To 
be  more  precise,  on  the  one  hand,  cruise  travel  falls  under  the  scope  of  the 
relevant  rules  on  package  tour  travel.  On  the  other  hand,  it  also  falls  under 
the  scope  of  rules  created  for  the  protection  of  passengers  carried  by  sea, 
such  as  the  Athens  Convention  of  1974.  In  view  of  the  significant 
consequences  connected  to  the  application  of  each  of  the  above  set  of  laws, 
the author further discusses the relationship of cruise shipping with consumer 
protection law and transport law respectively. As far as the first is concerned 
the  author  refers  to  Council  Directive  90/314/EEC  of  1990  regulating  the 
relationship between travel agencies and tourists. Based on Article 2.1 cruise 
ship services can be considered as a package tour. The Courts have ruled that 
cruise  services  fulfilled  the  necessary  conditions  for  a  package  under  the 
aforementioned  Article  and  further  fell  under  the  definition  of  Article  15.3  of 
Regulation  44/2001,  in  other  words  “a  contract  of  transport  which  for  an 
inclusive  price  provides  for  a  combination  of  travel  and  accommodation”. 
Setting  cruise  shipping  in  the  field  of  EU  consumer  protection  law  offers  a 
wide range of protection according to Pulido, especially in comparison to other 
legal systems. With respect to transport law considerations, the author raises 
the question of the extent to which the regime of liability for damage suffered 
by  passengers  carried  by  seagoing  vessels  is  applicable  to  cruise  ships.  The 
answer,  notably,  depends  on  the  contractual  regulation  taken  by  the  parties 
and  the  interpretation  given  to  general  rules  of  package  and  consumer 
protection.  The  application  of  the  Athens  Convention  is  possible,  despite 
significant  obstacles.  The  author  specifically  refers  to  the  scope  of  the 
Convention, which is not intended to  establish a comprehensive legal regime 
for travel contracts, in contrast to uniform law for passengers carried by other 
means. Additionally, the standards under the Convention are mandatory, with 
exemption or limitation contract clauses being null. Furthermore, the security 
obligation  assumed  by  the  carrier  is  ancillary  to  the  principal  one  of 
transportation. Finally, its irregular scope of application is the main limitation. 

242 

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Accordingly,  the  author  comments  on  the  multiple  amendments  and  the 
creation  of  Regulation  392/2009  which  adopted  the  PAL  2002  provisions, 
introducing  on  the  one  hand  a  regime  of  two-tier  responsibility,  involving 
strict  liability  as  well,  regarding  shipping  incidents  and  on  the  other  hand  a 
fault  based  regime  as  far  as  non-shipping  incidents  are  concerned.  After 
examining  some  considerations  connected  to  both  consumer  and  transport 
law and concluding that cruise shipping is a compromise of both, Pulido raises 
the  following  question:  “When  should  transport  laws  be  applied  with  priority 
over package tour laws?”.  The key to that question is to consider the role  of 
transport  in  the  services.  In  the  carriage  of  passengers,  the  transport  is 
essential  and  the  “obligation  of  result”,  which  involves  the  carriage  of 
passengers to their destination, cannot be  changed in that case.  In contrast, 
in  cruise  shipping  transport  is  ancillary  to  other  services.  The  vessel  is  the 
destination  itself  and  in  view  of  that  the  itinerary  could  change  without 
significant consequences. That transport, according to the author, qualifies as 
a  package  component.  Pulido  further  touches  upon  some  problematic  issues 
under  transport  law,  such  as  the  commercial  practice  in  cruise  lines  and  the 
forum  selection.  Notably,  if  we  apply  consumer  law  the  forum  selection 
clauses  may  be  overridden  according  to  the  terms  of  Rome  I  Regulation, 
which  does  not  apply  to  contracts  of  carriage.  However,  it  does  apply  if  the 
contract  under  consideration  provides  for  an  inclusive  price  a  combination  of 
travel  and  accommodation.  Pulido  also  touches  upon  Regulation  1177/2010 
which  assimilates  cruise  to  transport  and  sets  the  same  discipline  for  both. 
Under these rules both the travel agency and the ship owner should be liable 
to  passengers.  Additionally,  cruise  ship  services  shall  be  subject  to  both 
Regulations  1177/2010  and  392/2009  as  well  as  the  PAL  2002.  In  the 
following  chapters,  Pulido  discusses  the  standard  general  conditions  involved 
in cruise shipping, comprising standard industry and the contractual relations 
involved in a cruise ship.  

Case law: EFTA Court E-20/14. 
In this judgment, the Court finds that Iceland has failed to fulfil its obligations 
under  Article  7  EEA  by  failing  to  adopt  the  measures  necessary  to  make,  as 
such  and  within  the  time  prescribed,  part  of  its  internal  legal  order  the  Act 
referred  to  at  point  56x  of  Chapter  V  of  Annex  XIII  to  the  EEA  Agreement 
(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), as adapted to the EEA Agreement by way of Protocol 1 thereto 
and  by  Joint  Committee  Decision  No  17/2011  of  1  April  2011.  The  facts  are 
set  out,  describing  the  communications  between  the  EFTA  Surveillance 
Authority  and  the  State  of  Iceland.  The  question  of  whether  an  EEA/EFTA 
State has failed to fulfil its obligations must be determined by reference to the 
situation  in  that  State  as  it  stood  at  the  end  of  the  period  laid  down  in  the 
reasoned opinion. It is undisputed that by the expiry of the time limit given in 
the  reasoned  opinion  concerning  the  Regulation,  Iceland  had  not  adopted 
measures  so  as  to  implement  the  Regulation.  No  information  useful  for  the 
evaluation framework. 

Aviation and maritime law compared. 
Comparison  392/2009  &  PAL  2002  with  261/2004,  Montreal  Convention  and 
Regulation 2027/97 as amended by Regulation (EC) No 889/2002. 

Support study to the Evaluation of Regulation (EC) 392/2009 

243 

 
 
 
 
 
 
 
 
 
The comparison of Regulation 392/2009 & PAL 2002 with 261/2004, Montreal 
Convention  and  Regulation  2027/97  as  amended  by  Regulation  (EC)  No 
889/2002 serves a double purpose: 

1.  The fact that that the air passengers regimes are already much longer in 
force  allow  to  predict  the  implementation  of  certain  provisions  of 
Regulation  392/2009  and  PAL  2002  by  future  case  law  and  to  identify 
potential  obstacles,  endangering  the  effectiveness  and  coherence  of 
Regulation 392/2009; 

2.  A  comparison  with  the  Montreal  Regime  allows  to  analyse  in  how  far 
uniformity  in  passenger  law  exists  and  thus  whether  the  different 
regimes are coherent.  

This comparison deals with the scope, the liability grounds and compensation, 
advanced payments and mandatory insurance.  

244 

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Subjects covered 

Regulation No. 261/2004  Montreal Convention 

1 

persons, 

Article 
baggage & cargo 
Art 19 delay 
Article  21  death  & 
injury 
Article  22  damage  to 
baggage 

  Denied boarding; 

 

 

the 
cancelled; 

flight 

the 
delayed. 

flight 

is 

is 

included 

is  governed  by 
Delay 
Regulation No. 1177/2010 
for  maritime  passengers. 
Still,  on  some  points  the 
in 
rules 
261/2004 
Regulation 
could  be 
to 
assess  the  coherence  of 
EU  passenger  law  as  well 
the 
as 
effectiveness 
of 
Regulation 392/2009. 

relevant 

test 

to 

Scope 

Regulation No. 261/2004  Montreal Convention 

registration 

The scope of the regulation 
is  determined  based  on 
geographical 
regarding 
considerations 
the  place  of  departure  and 
to 
arrival  as,  pursuant 
Article  3 
to 
it  applies 
flights  departing  from  a 
Member  State.  The  place 
of 
(the 
nationality of the carrier) is 
an  additional  ground  upon 
which  the  regulation  can 
be  invoked.190  The  place 
where  the  contract  was 
concluded is not taken into 
account. 
Pursuant  to  Article  3  para 
4,  passengers 
that  are 
traveling  for  free  or  at  a 
reduced  fare  not  available 
directly  or  indirectly  to  the 
public  fall  outside  of  the 
regulations 
scope. 

The 

to 

The  convention  applies 
to 
‘international’ 
carriage.  Article  1  para. 
2  MC99  reads  that  or 
the  purposes  of  this 
Convention, 
the 
expression  international 
carriage  means  any 
which, 
carriage 
in 
according 
the 
agreement  between  the 
parties: 
(i) 
of 
departure and the place 
of  destination,  whether 
or  not  there  be  a  break 
in  the  carriage  or  a 
transhipment, 
are 
situated  either  within 
the  territories  of  two 
States Parties; 
(ii) 
the 
or  within 
territory  of  a  single 
State  Party  if  there  is 

place 

the 

Regulation  2027/97  as 
amended by 889/2002 
Insurance 
Article  3 
(Jo. 
Regulation 
2407/92) 
Article  5  Advanced 
Payment 
Article 6 Information 

Regulation  2027/97  as 
amended by 889/2002 
International  carriage 
as  meant  in  Article  1 
(9)  PAL2002,  which 
reads  ‘any  carriage  in 
which,  according  to 
the 
of 
contract 
carriage,  the  place  of 
the 
departure  and 
place  of  destination 
are  situated  in  two 
different  States,  or  in 
if, 
a  single  State 
according 
the 
contract of carriage or 
the 
scheduled 
itinerary,  there  is  an 
intermediate  port  of 
call  in  another  State’, 
it  can  also  apply  to 
voyages 
domestic 
single 
within 
Member  State 
on 
board ships of Classes 
A  and  B  under  Article 

to 

a 

190  

In  the  ECJ  case  Schenkel  the  Court  clarified  above  that  a  journey  out  and  back  cannot  be  regarded  as  a  single  flight. 
Consequently, Article 3(1)(a) of Regulation No 261/2004 cannot apply to the case of an outward and return journey such 
as that at issue in the main proceedings, in which passengers who have originally departed from an airport located in the 
territory of a Member State travel back to that airport on a flight departing from an airport located in a non-member country 
when the carrier is not a community carrier. 

Support study to the Evaluation of Regulation (EC) 392/2009 

245 

 
 
 
 
 
 
 
 
                                                           
of 

Regulation  2027/97  as 
amended by 889/2002 
Directive 
4 
98/18/EC’, where191:  
the  ship  is  flying  the 
flag of or is registered 
in  a  Member  State; 
the 
of 
contract 
carriage  has  been 
made  in  a  Member 
State;  or  the  place  of 
departure 
or 
destination,  according 
the  contract  of 
to 
carriage, 
in  a 
is 
Member State.  

Regulation No. 261/2004  Montreal Convention 

pertain only to a motorised 
fixed wing aircraft. 
The  regulation  applies  also 
to  operating  air  carriers. 
They  are  considered  to  act 
on  behalf  of  the  person 
having a contract with that 
passenger. 

should 

agreed 

stopping 
an 
the 
within 
place 
territory 
another 
of 
State, even if that State 
is not a State Party.  
This  criterion  is  stricter 
than  the  ones  put  forth 
in  the  regulation,  as 
normally  two  Member 
States 
be 
involved.  The  place  of 
(the 
registration 
nationality 
the 
carrier) 
is  not  taken 
into  account,  neither  is 
the  place  where  the 
contract was concluded. 
It  applies  equally  to 
gratuitous  carriage  by 
aircraft  performed  by 
an 
transport 
undertaking. 

air 

of 

Under  the  MC99  two  points  of  contact  a  with  contracting  states  are  required 
to  trigger  application  of  the  convention,  or  in  the  alternative,  at  least  a 
stopover  in  a  foreign  state.  The  definition  of  international  carriage  in 
Regulation 392/2009 is similar to the MC99. The second requirement is not.  

The  EC  in  (23)  of  the  preamble  of  261/2004  debates  that  it  should  analyse 
the opportunity of extending its scope to all passengers having a contract with 
a  tour  operator  or  with  a  Community  carrier.  This  would  make  Regulation 
261/2004 more similar to the maritime equivalent.  

Types of damage covered 

Montreal Convention 

a. Loss of/damage to/delay of luggage 
a. exclusion 
none 
b.  damage  and  loss  to  checked  in 
luggage 
Period of responsibility? 
The  period  of  liability  for  damage  to 
to 
luggage 
luggage  that  is  checked  in  and  under 
the control of the carrier.  

is  primarily  confined 

Liability standard? 
Presumed liability 
EXONERATION: However, the carrier is 
not liable in case of an inherent defect, 

Regulation 392/2009 

to/delay  of 

a.  Loss  of/damage 
luggage 
a. Exclusion 
valuables (if negotiated) (Article 5) 
b.  damage  and  loss  to  checked  in 
luggage 
checked in luggage? 
Under  the  regulation  there  is  no 
concept  of  checked  in  luggage.  The 
distinction  that  is  made  is  cabin 
luggage  versus  other  luggage.  As 
cabin luggage is within the control of 
the  passenger,  the  other  luggage 
corresponds with checked luggage in 
air transportation.  

191   Article 1 3. No later than 30 June 2013, the Commission shall, if appropriate, present a legislative proposal in order, inter 

alia, to extend the scope of this Regulation to ships of Classes C and D under Article 4 of Directive 98/18/EC. 

246 

Support study to the Evaluation of Regulation (EC) 392/2009 

 
 
 
 
 
 
 
 
 
 
                                                           
quality or vice of the baggage.  

c. unchecked baggage 
The  liability  of  the  carrier  is  fault 
based. 

d. delay 
Delay  s  covered  pursuant  to  Article 
22(2).192 

Period of responsibility? 
Includes  the  period  in  which  the 
luggage  is  at  the  marine  terminal, 
station  or  quay,  under  the  condition 
that  the  carrier  has  taken  over  the 
luggage 
Liability standard? 
The liability of the maritime carrier is 
fault  based  but  with  a  reversed 
burden of proof. Hence, the Montreal 
Convention  is  more  favourable  than 
PAL 2002 and Regulation 392/2009. 
c. unchecked luggage 
Unchecked luggage? 
This  corresponds  with  cabin  luggage 
(see above) 
Liability standard? 
Fault based 
But: in case of shipping incident, 
reversed burden of proof.  
d. delay 
not governed 

The  MC99  is  more  favourable  to  the  passengers  in  case  of  checked  in 
baggage. The liability regime for luggage that is not checked in the Regulation 
392/2009  is  more  favourable  for  passengers  as  it  includes  a  presumption  of 
fault  in  case  of  a  shipping  incident,  whereas  the  passenger  under  the  MC99 
has to prove that the carrier is at fault.  

192   Nastych v. British Airways PLC, 33 Avi.18,603 (S.D.N.Y. 2010). 

Support study to the Evaluation of Regulation (EC) 392/2009 

247 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
is 

to 

liable 

movement, 

B Death or Injury of a Passenger 
Article 17 
for  damage 
The  carrier 
sustained  in  case  of  death  or  bodily 
injury  of  a  passenger  upon  condition 
only  that  the  accident  which  caused 
the  death  or  injury  took  place  on 
board  the  aircraft  or  in  the  course  of 
any  of  the  operations  of  embarking  or 
disembarking. 
Period of responsibility 
The  carrier  is  under  the  MC99  only 
liable for damage sustain on board the 
aircraft  or  during  (dis)embarking.  In 
order  to  establish  whether  a  person  is 
embarking,  The  court  developed  a 
"four-prong  test:  (1)  the  activity  of 
the passengers, (2) restrictions on the 
(3) 
passengers' 
imminence  of  actual  boarding,  (4) 
proximity  of  passengers 
the 
gate."193 
Public  spaces  such  as  entrance  halls 
do not fit the requirements.194 
Liability standard: 
Presumed liability 
EXONERATION Article 20 MC99 
The  carrier  shall  be  wholly  or  partly 
exonerated  from  its  liability  to  the 
extent  that  it  proves  that  the  damage 
was  caused  or  contributed  to  by  the 
negligence  or  other  wrongful  act  or 
omission of the passenger.  
This  exoneration  is  to  be  interpreted 
narrowly  and  very  few  examples  of 
actual  application  of  the  Article  are 
law.  An  example 
found 
however 
the 
Warsaw  regime,  Chutter  v.  KLM  Royal 
Dutch  Airlines  &  Allied  Aviation 
Services 
International  Corporation, 
where  a  passenger  ignored  a  fasten 
seatbelt  sign  to  say  goodbye  to  her 
family.  As  she  hadn’t  noticed  the 
stairway  landing  had  been  removed 
she  injured  herself.  In  this  case  the 
carrier was not held liable.195 
compensation  of  over 
To  avoid 
113.130  SDR,  the  carrier  may  also 
avail  himself  from  liability  by  proving 
that  the  damage  was  not  caused  by 
his  fault  (see  Article  21,  limitation  of 
liability) 
Requirements:  

in  case 
is 

the  case,  under 

B Death or Injury of a Passenger 

Two 
distinguished: 

situations 

should 

be 

1.  liability  in  case  of  a  shipping 
incident (Article 3.1) 

2.  Liability in  case  of  a  non-shipping 
incident (Article 3.2) 
Period of responsibility 
Article  1.8  PAL  2002:  the  period 
during  which  the  passenger  and/or 
his  cabin  luggage  are  on  board  the 
ship or in the course of embarkation 
or  disembarkation,  and  the  period 
during  which  the  passenger  and  his 
cabin  luggage  are  transported  by 
water  from  land  to  the  ship  or  vice-
versa, if the cost of such transport is 
included  in  the  fare  or  if  the  vessel 
used  for  this  purpose  of  auxiliary 
transport  has  been  put  at 
the 
disposal  of  the  passenger  by  the 
carrier.  However,  with  regard  to  the 
passenger, carriage does not include 
the  period  during  which  he  is  in  a 
marine  terminal  or  station  or  on  a 
quay  or  in  or  on  any  other  port 
installation 

Shipping incident: 

Two tier liability: 

Tier 1: presumed liability 

Exonerations: 

Injury  or  dead  resulted  from  an  act 
of  war,  hostilities, 
civil  war, 
natural 
or 
insurrection 
phenomenon  of  an  exceptional, 
inevitable  and  irresistible  character; 
or  

a 

Injury or dead was wholly caused by 
an  act  or  omission  done  with  the 
intent  to  cause  the  incident  by  a 
third party.  

Or  damage  was  caused  partly  or 
wholly by the passenger. 

Tier  2:  fault  based  liability  with 
reversed burden of proof: absence of 
actual  fault  or  neglect  or  proof  that 
damage was caused partly or wholly 
by the passenger. 

Non-shipping incident  

Fault based liability 

193   Buonocore v. Trans World Airlines, Inc., 900 F.2d 8, 10 (2d Cir. 1990). 
194   Air-Inter v. Sage Et A.l., Cour d’Appel de Lyon (France), Feb. 10, 1976; (1976) RFDA. 
195   Chutter  v.  KLM  Royal  Dutch  Airlines  &  Allied  Aviation  Services  International  Corporation,  US  District  Court,  Southern 

District of New York, June 27, 1955, (1955) USAvR 250, (1956) JALC 232, Avi, Vol. 4, p. 177,733. 

248 

Support study to the Evaluation of Regulation (EC) 392/2009 

 
 
 
 
 
 
 
                                                           
B Death or Injury of a Passenger 
A. Accident  

  Should  be  defined  flexibly  after 
assessing  all  the  circumstances 
surrounding  the  injury  of  the 
passengers; 

  Should  be  an  event  that  is 
or 

unexpected 

abnormal, 
unusual; and 

  Should  be  an  event  that  is 
external  to  the  passenger  and 
not  be  an  internal  reaction  of 
the  passenger  to  the  normal 
operations of the flight196. 

B. Causation 
C. Injury  
It  has  been  disputed  whether  Article 
17, providing liability for bodily injury, 
allows recovery for emotional distress. 
The following The following options are 
now available:  
1.  Disallow  recovery  for  emotional 
distress197 
2.  Disallow  recovery  of  emotional 
distress  if  it  is  not  accompanied  by 
physical injury198 
3.  Allow  emotional  distress  as 
damages  for  bodily  injury,  including 
distress about the accident199 
4.  Allow  recovery  only  for  emotional 
distress flowing from a bodily injury200 

Despite  numerous  judgments  on  this 
point, the issue regarding recovery for 
emotional  damages  accompanied  by 
bodily injury remains unsettled.  
D. Recoverable damage? 
The  term  ‘person’  under  Article  1 
MC99  should  be  read  in  the  light  of 
Article  1  para  2  MC99  which  clarifies 
that  there  is  need  for  a  contract  of 
carriage.  In  the  Air  Baltic  case,  the 
Court  used  the  usage  of  the  term 
‘person’  rather  than  passenger  to 
argue  that  also  an  employer  can 
recover  damages  in  case  on  of  its 

B Death or Injury of a Passenger 

Requirements: 

See difference between shipping and 
non-shipping incident. 

first 

Shipping incident has a meaning that 
sight  much  more 
is  at 
PAL2002): 
restricted(Article 
“shipping incident” means shipwreck, 
capsizing,  collision  or  stranding  of 
the  ship,  explosion  or  fire  in  the 
ship, or defect in the ship; 

3.5 

the 

used 

Dr.  Gahlen  identifies  that  the  broad 
definition  of 
‘defects  of  a  ship’ 
(means  any  malfunction,  failure  or 
non-compliance  with 
applicable 
safety  regulations  in  respect  of  any 
part  of  the  ship  or  its  equipment 
escape, 
for 
when 
evacuation, 
and 
embarkation 
disembarkation  of  passengers;  or 
when  used 
the  propulsion, 
steering,  safe  navigation,  mooring, 
anchoring,  arriving  at  or  leaving 
berth  or  anchorage,  or  damage 
control  after  flooding;  or  when  used 
life  saving 
for  the 
appliances) 
motivate 
passengers  to  (successfully)  litigate 
claims  not  related  to  a  maritime 
peril, such as slipping on board. 

launching  of 

may 

for 

B. Causation 
C. Injury  
The  concept  of  personal injury  could 
give 
to  similar  questions 
concerning mental distress. 

raise 

D. Recoverable damage? 

Just  like  the  Montreal  Convention, 
PAL  2002  doesn`t  provide  any 
recoverable 
restrictions 

the 

to 

196   Air France v. Saks (470 U.S 392, 105 S.Ct.1338 (1985).) Aggravation of a pre-existing injury during the course of a routine 
and  normal  flight  should  not  be  considered  an  „accident‟,  see:  739  F.2nd  at  133.  The  flight  attendant’s  failure  to  lend 
assistance van constitute such an event, see: Olympic Airways v. Husain, 541 U.S. 1007, 157 L. Ed. 2d 1146, 124 S. Ct. 
1221 (2003). 

197   Rosman v. Trans World Airlines (1974) N.Y.A.Ct., 34 N.Y.2d 385, 314 N.E.2d 848, 358 N.Y.S.2d 97. 
198   Eastern Airlines, Inc. v. Floyd 499 U.S. 530 (1991). 
199   Jack v. Trans World Airlines, Inc., 854 F. Supp. 654 (N.D.Cal. 1994). 
200   M. Clarke,  Contracts of  carriage  by  air, London: Lloyd list 2nd  ed. P.  85-90;  In re Air Crash at  Little Rock, Arkansas, on 

June 1, 1999 (Lloyd v. American Airlines). 

Support study to the Evaluation of Regulation (EC) 392/2009 

249 

 
 
 
 
 
 
 
 
 
 
 
 
                                                           
B Death or Injury of a Passenger 
damage.  Therefore  similar  questions 
could arise here.  

B Death or Injury of a Passenger 
employees is entitled to it.201 Both the 
regulation  and  the  convention  apply 
only to passengers. The ECJ ruled that 
the  MC99  also  applies  in  case  of 
carriage  by  air  thus  that  a  passenger 
can  also  be  someone  who  is  in  a 
helicopter to perform labour for a third 
party.202  Article  3  of 
the  Athens 
Convention  likewise  doesn`t  restrict 
the  states  that  the  carrier  shall  be 
liable “For the loss suffered as a result 
of the death of  or personal injury to a 
passenger  caused  by  a  shipping 
incident”.  If  an  identical  interpretation 
is  followed,  also  here  employers  could 
claim 
for  damage 
resulting from death or personal injury 
of  a  passenger.  This  could  of  course 
the  amount  of 
strongly 
compensation  claimed 
for  as  The 
Convention  and  Regulation  392/2009 
don`t restrict the recoverable damage. 

compensation 

impact 

liability.  Considering 

The  liability  position  of  the  sea  passenger  is  disadvantageous  compared  to  that  of  the  air 
passenger. This is first and foremost true for non-shipping incidents, but also 
in  case  of  shipping  incidents  the  carrier  has  a  much  broader  possibility  to 
escape 
‘extraordinary 
circumstances’  under  regulation  261/2004  in  case  of  delay,  the  phrase: 
‘natural  phenomenon  of  an  exceptional,  inevitable  and  irresistible  character’ 
may  need  clarification  at  the  same  point  to  avoid  similar  discussions.203 
Other  terms  that  should  be  clarified  are  personal  injury  and  the  types  of 
damage that are recoverable or fall under the regime.  

the  ongoing  debate  on 

201   ECJ 17-02-2016, C-429/14 (Air Baltic Corporation v Lietuvos Respublikos specialiųjų tyrimų tarnyba).  
202   ECJ C-6/14, 25 February 2015, Wucher Helicopter GmbH, Euro-Aviation Versicherungs AG v Fridolin Santer. 
203   See on the issues associated with this exception for example the steer-davis-gleaves study of 2012. 

250 

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Rights of passengers 
a. Compensation 

to 

and 

award 

Calculation of damages 
Pursuant  to  Article  29  MC99,  it  is 
‘punitive, 
prohibited 
non-
exemplary 
compensatory’  damage  claims.  This  is 
for  the  benefit  of  the  carrier  that  can 
bar any  claim or a part of  a claim that 
extends beyond this scope. 
Amount of compensation 

other 

A)  dead or bodily injury 

Article 21 provides a ‘two-tier system: 
Tier 1: 113.130 SDR 
Tier 2: above 113.150  

B)  Luggage:  
Limit: 1.131 SDR  
Breaking through the limits:  
If  the  damage  resulted  from  an  act  or 
omission  of  the  carrier,  its  servants  or 
agents,  done  with  intent  to  cause 
recklessly  and  with 
damage  or 
(subjective)  knowledge204  that  damage 
would probably result; provided that, in 
the  case  of  such  act  or  omission  of  a 
servant or agent, it is also proved that 
such  servant  or  agent  was  acting 
within the scope of its employment. 

a. Compensation 

Calculation of damages 
Article 3 (d) provides that ‘loss’ shall 
not  include  punitive  or  exemplary 
damages. 

Amount of compensation 

A)  dead or personal injury 

Shipping-incident:  
two-tier system 
Tier 1: 250.000 SDR 
Tier 2: 400.000 SDR  
Non-shipping incident: 
400.000 SDR 

B)  Luggage 

Pursuant to Article 8 the carrier may 
limit his liability for: 

 

 

 

the  loss  of  or  damage  to 
cabin luggage to 2 250 SDR; 

the  loss  of  or  damage  to 
vehicles including all luggage 
carried in or on the vehicle to 
12  700  SDR  per  vehicle,  per 
carriage; 

the  loss  of  or  damage  to 
that 
luggage  other 
mentioned  to  3  375  SDR  per 
passenger, per carriage. 

than 

Breaking through the limits:  
If the damage is caused by an act or 
omission  of  the  carrier  done  with 
the intent to cause such damage, or 
recklessly  and  with  knowledge  that 
such damage would probably result, 
the  carrier  loses  the  right  to  invoke 
the limits (Article 13 PAL2002). 

Global  limitation:  possibility  to  limit 
under the 1996 Protocol (Article 5.1 
Regulation 392/2009). 

The  limits  for  dead  or  bodily  injury  are  much  higher  in  case  of  air 
transportation  than  in  case  of  transport  by  sea.  The  limits  for  luggage  are 
higher  in  case  of  sea  transportation.  However  regards  is  to  be  given  to  the 
fact  that  the  size  of  luggage  is  not  necessarily  comparable  in  both  types  of 
transport.  

204   Bassam v. American Airlines (5th Cir. (La.) July 14, 2008). 

Support study to the Evaluation of Regulation (EC) 392/2009 

251 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
b. Advanced Payments 

b. Advanced Payments 

Pursuant  to  Article  6  of  Regulation 
392/2009,  a  passenger  may  claim  an 
advanced  payment  in  case  a  shipping 
incident caused: 
1.  Where 

caused  by  a 
the 

the  death  of,  or 
personal injury to, a passenger 
shipping 
is 
incident, 
carrier  who 
actually  performed  the  whole 
or  a  part  of  the  carriage  when 
the  shipping  incident  occurred 
advance 
shall  make 
payment  sufficient  to  cover 
immediate  economic  needs  on 
a  basis  proportionate  to  the 
damage  suffered  within  15 
days of the identification of the 
person  entitled  to  damages.  In 
the  event  of  the  death,  the 
payment  shall  not  be  less  than 
EUR 21 000; 

an 

2.  Recital  (5)  of  the  preamble 
reads It is appropriate to oblige 
the carrier to make an advance 
payment  in  the  event  of  the 
death of or personal injury to a 
passenger,  whereby  advance 
payment  does  not  constitute 
recognition of liability’. 

of 

to 

28 

the 

case 

entitled 

2027/97 

Montreal 
Advance 

Article 
Convention- 
payments 
In 
aircraft 
accidents  resulting  in  death  or 
injury  of  passengers, 
the 
carrier  shall,  if  required  by  its 
national  law,  make  advance 
payments  without  delay  to  a 
natural person or persons who 
are 
claim 
compensation in order to meet 
the immediate economic needs 
of such persons. Such advance 
payments  shall  not  constitute 
a  recognition  of  liability  and 
may  be  offset  against  any 
amounts  subsequently  paid  as 
damages by the carrier 
Regulation 
as 
amended by Regulation (EC) No 
889/2002 
Article  5:  The  Community  air 
carrier  shall  without  delay,  and  in 
any  event  not  later  than  fifteen 
identity  of  the 
days  after  the 
to 
natural 
compensation 
been 
established,  make  such  advance 
payments  as  may  be  required  to 
meet  immediate  economic  needs 
on  a  basis  proportional  to  the 
hardship suffered; 
2.  Without  prejudice  to  paragraph 
1, an advance payment shall not be 
less  than  the  equivalent  in  Euro  of 
16  000  SDRs  per  passenger  in  the 
event of death; 
3.  An  advance  payment  shall  not 
constitute  recognition  of  liability 
and  may  be  offset  against  any 
subsequent sums paid on the basis 
of  Community  air  carrier  liability, 
but is not returnable, except in the 
cases prescribed in Article 20 of the 
Montreal  Convention  or  where  the 
person  who  received  the  advance 
the  person 
payment  was  not 
entitled to compensation. 

entitled 

person 

has 

252 

Support study to the Evaluation of Regulation (EC) 392/2009 

 
 
 
 
 
 
 
The  deadline  for  advanced  payments  is  identical  under  both  regimes.  Under 
Regulation  392/2009  the  sum  in  case  of  dead  is  slightly  higher  (16000  SDR 
equals € 19860.97).  

require 

Mandatory insurance 
Article  50  Montreal  Convention— 
Insurance 
their 
States  Parties  shall 
carriers 
adequate 
to  maintain 
insurance  covering  their  liability  under 
this  Convention.  A  carrier  may  be 
required  by  the  State  Party  into  which 
it  operates  to  furnish  evidence  that  it 
insurance 
maintains  or  adequate 
covering 
this 
its 
Convention. 

liability  under 

or 

other 

4(bus).1: 

Article 4(bus): 
Compulsory 
Article 
insurance 
financial 
securities in case of vessels licensed 
to carry more than 12 passengers.  
At least 250.000 SDR per passenger 
per distinct occasion.  
Article  4(bus).10:  Direct  action 
against  the  insurer,  up  to  this  limit 
of 250.000 SDR. 

Article  3  Regulation  2027/97  as 
amended  by  Regulation 
(EC)  No 
889/2002  
The  obligation  of  insurance  set  out  in 
Article  7  of  Regulation  (EEC)  No 
2407/92  as  far  as  it  relates  to  liability 
for  passengers  shall  be  understood  as 
requiring  that  a  Community  air  carrier 
shall  be  insured  up  to  a  level  that  is 
adequate  to  ensure  that  all  persons 
entitled  to  compensation  receive  the 
full amount to which they are entitled 
in accordance with this Regulation. 

Both  regimes  provide  for  mandatory  insurance.  In  case  of  air  transportation 
insurance  must  however  ensure  the  full  amount  of  compensation,  while  in 
case of maritime transportation only Tier 1 insurance is compulsory. Moreover 
the  maritime  carrier  only  needs  to  take  up  insurance  in  case  of  vessels 
licenced to carry more than 12 passengers, while there is no such rule in case 
of air transport. Beneficial for the sea passenger is however the fact that PAL 
2002 provides for a direct action against the carrier.  

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253 

 
 
 
 
 
 
 
 
 
 
 
 
ANNEX 6   QUESTIONNAIRE CASE STUDIES 

1.  What is your involvement in the marine accident [……]?  
2.  How  many  passengers/victims’  relatives  did  you  assist  (for  passengers’ 

lawyer)? 

3.  With how many passengers did you settle? (for carriers’/P&I lawyers) 
4.  Which were the reasons that led some claimants to not settle? 
5.  What was the amount of the compensation proposed offered?  
6.  Was it a lump sum?  
7.  Did it vary according to the losses suffered? 
8.  Which losses were compensated? 
9.  Did settlement offers cover damage to luggage and vehicles? 
10. 

Did  you  invoke  limitation  of  liability  for  claims  arising  out  of  the 

accident according to LLMC 1996 limits? (for carriers/P&I/insurers) 

11.  Which documents were you/passengers requested to submit in order to 

obtain compensation? 

12. 

Did you assist any passenger with reduced mobility? How was loss of, 
to,  mobility  equipment  or  other  specific  equipment 

or  damage 
compensated? 

13. 

Did any of the passengers you assisted received/asked for an advance 

payment?  

14. 

If  applicable  what  was  the  reason  for  the  refusal  to  grant  an  advance 

payment? 

15. 

How  long  did  it  take  to  make  an  advance  payment  for  death  or 

personal injury to the relevant persons? 

16. 

How  did  you  identify  the  relevant  persons  entitled  to  an  advance 

payment? 

17. 
18. 

How much was the advance payment made? 
How  were  the  passengers  informed  about  their  rights  prior  to 

departure?  

19.  Was any other form of assistance available after the accident occurred? 
20. 
21. 

How long did it take on average to settle a claim? 
How  are  claims  for  injury  resulting  from  an  accident  linked  to  war  or 

terrorism acts dealt with in your jurisdiction? 

22. 

Is  there  a  fund  that  specifically  compensates  the  victims  of  terrorist 

attacks in your Member State? 

23. 

If yes, how does it work? 

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255 

 
 
 
 
 
 
 
 
ANNEX 7   CASE STUDIES 

This  Annex  presents  the  results  of  the  case  studies  performed.  Section  1 
introduces the four case studies, after which the case studies are presented in 
more detail, i.e. the Norman Atlantic case study in Section 2; the City of Poros 
case  study  in  Section  3;  the  Ogia  case  study  in  Section  4;  and  the  Sorrento 
case study in Section 5.  

Introduction 
The aim of the case studies was two-fold: 
1.  To  understand  how  the  Regulation  has  impacted  the  compensation  of 
passengers  injured  as  a  result  of  shipping  incidents  and  other  related 
accidents that have occurred; and 

2.  To gather input for replying to evaluation questions. 

Four  case  studies  were  selected  that  represent  the  most  common  types  of 
incidents  covered  under  the  scope  of  the  Liability  Regulation  and  the  Athens 
Convention. The cases  selected were  each  of a different nature, i.e.  cases of 
accidents  on  board  ships  caused  by  different  events.  Moreover,  shipping 
incidents and non-shipping incidents were included to illustrate whether cases 
involving a shift in the burden of proof (i.e. passenger to carrier) were being 
handled in a different manner. 

Since  no  terrorist  attack  had  been  carried  out  against  an  EU  flagged  ship  or 
ship travelling to/from EU ports in the period covered by this evaluation, our 
approach  was  to  select  a  benchmark  case  as  a  case  study,  i.e.  a  terrorist 
attack  involving  a  carrier  that  occurred  prior  to  the  Regulation  entering  into 
force.  The  analysis  of  this  case  study  assessed  whether  and  to  what  extent 
the victims of the terrorist attack were compensated, and how the victims and 
their  relatives  would  have  been  compensated  had  the  Regulation  been 
applicable. 

It is worth noting that: 

  Three of the selected case studies occurred recently: two in 2015 and 

one in 2014; 

  The  accident  investigations  concerning  two  case  studies  are  still 

pending; 

  None of the claims related to the case studies have been the subject of 

a judicial decision; 

  We could not identify a suitable marine accident that occurred in 2013 
in  terms  of  availability  of  information  and  the  number  of  potential 
claimants; 

  We  are  aware  of  one  non-shipping  incident  that  occurred  in  2013205 
that involved the Italian flagged ship Sorrento where a passenger died. 
However, since the case involved only one claim, we decided that this 

205   See MARINE CASUALTY SAFETY INVESTIGATION REPORT 10/2013 

http://www.hbmci.gov.gr/js/investigation%20report/final/10-2013%20SORRENTO.pdf. 

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257 

 
 
 
 
 
 
 
 
 
 
 
                                                           
case  may  not  be  suitable  to  provide  a  comprehensive  picture  of  the 
application of the Regulation. 

The selected four case studies are presented in the table below. 

Table A7.1 
Case 

Year 

Selected case studies 

004/ 
2015 

2014 

Ship 
Name 
Norman 
Atlantic 

Incident 

Fire 
board 

on 

Locatio
n 
Italy 

Flag 

Italy 

675/ 
2016 

2015 

Sorrento  Fire 

on 

Spain 

Italy 

board  

Pax 
Injuries/Deaths 
> 
11 
deceased206 
31 injured 
≥ 700 lawsuits 
Some  claims  of 
personal  injury 
some 
and 
of 
claims 
damage 
to 
property 
16 injured 

France 

France 

1119/ 
2016 

2015 

Ogia 

1988 

Bench-
mark 
case  
Source: Grimaldi Studio Legale. 

The  City 
of Poros 

the 

wave 

A 
crashed 
into 
ship 
causing 
passengers 
to  fall  from 
their seats 
Terrorist 
attack  on 
board 

Greece  Greece  11 deceased 

100 injured 

Our case selection includes: two case studies on major fire incidents on board 
passenger  vessels;  a  case  study  involving  minor  personal  injuries  that 
frequently occur on board passenger vessels; and a case study on a terrorist 
attack on a passenger ship. 

The Norman Atlantic case involves the well-known incident of a fire on board 
the ship which resulted in numerous deaths,  multiple injuries and more than 
700 lawsuits. It is worth noting that the accident investigation report has not 
yet  been  published.  Therefore,  the  official  number  of  deaths  and  injured 
passengers  has  not  been  established.  Moreover,  the  case  has  not  yet  been 
heard before a court and an investigation is ongoing before the Criminal Court 
of Bari (Proceeding number 20598/14 RG) and in Greece. 
The Sorrento case concerns a shipping incident that occurred on 28 April 2015 
on  board  the  Ro-Ro/passenger  ship  Sorrento  owned  by  the  Grimaldi  Group, 

206   11 is a figure provided by the European Commission. Based on our findings this number should be 24. This includes 

missing passengers. Our source are the Ordinanza ammissiva di incidente probatorio issued by the Court of Bari on 22 
April 2015. We counted the relatives of passengers parties to the criminal proceeding concerning Norman Atlantic. In 
addition, we took into consideration information provided by the insurer of the charterer. It is also worth pointing out that 
pursuant to data included in an Italian report the accident caused at least 27 deaths. The report was updated as to 
February 2015: RAPPORTO SUI SINISTRI MARITTIMI 2014, available at http://www.mit.gov.it/mit/mop_all.php?p_id 
=23901. However, the report does not differentiate between passengers and members of the crew. 

258 

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an  Italian  shipping  company,  and  operated  by  Transmediterranea  Acciona. 
The  ship  caught  fire  while  sailing  from  Palma  to  Valencia,  Spain  with  152 
passengers. Based on the information gathered,  some claims for injuries and  
for damages to property have been filed.  

In the accident concerning Ogia, many passengers fell from their seats due to 
heavy  rolling  caused  by  a  big  wave  crashing  into  the  ship.  Based  on  the 
accident  investigation  report,  16  passengers  were  injured.  This  accident  is 
interesting  because  the  insurer  handled  the  claims  as  shipping  incident207 
claims, despite the fact that the accident does not qualify as shipping incident 
under the Regulation.  

In  the  City  of  Poros  incident,  three  Palestinian  gunmen  stormed  the  vessel 
killing nine passengers. The passenger ship was returning from a daily island 
cruise  in  the  Saronic  Gulf208.  The  gunmen  boarded  the  vessel  at  Aegina, 
Greece,  its  normal  boarding  point.  After  the  ship  had  left  port,  the  gunmen 
attacked using automatic weapons and hand grenades. In 2012, the case was 
heard before a French court. 

Norman Atlantic Case study 
Introduction: the facts 
On Sunday, 28 December 2014209, a fire broke out in the garage of the ro-ro 
ship  Norman  Atlantic  of  Italian  flag  and  registry.  The  ship  was  built in  2009, 
had  a  capacity  of  850  passengers,  and  was  performing  the  Patras-
Igoumenitsa-Ancona  trip.  The  ship  was  owned  by  the  Italian  shipping 
company  Visemar  Transporti  SRL  and  was  chartered  by  the  Italian  company 
Visemar di Navigazione SRL. 
ANEK Lines (“ANEK”) had sub-chartered the vessel from the  Italian company 
Visemar di Navigazione SRL (the vessel’s bareboat charterer), from December 
2014.  While  information  on  the  contract  between  ANEK  and  Visemar  di 
Navigazione was not available, the information provided confirmed that ANEK 
issued the travel tickets. Thus it entered into the contract of carriage with the 
passengers in its own name210. 
The  ship  owner  was  insured  with  Gard  while  the  sub-charterer  was  insured 
with West of England. It commenced the service between Greece and Italy on 
14 December 2014. The charterer contract had a 12 month duration and the 
daily  rate  was  16,500  Euros211.  The  ship  was  chartered  for  the  Ancona-
Igoumenitsa-Patras  route.  It  was  in  international  waters  35  miles  north  of 
Corfu when the incident occurred. 

207   See Ogia case study. 
208   See City of Poros case study for an assessment of the classification of the ship under current EU law. 
209  
210  

IMO: 9435466. 
Information provided by the International Group of P&I Clubs. Based on non-confirmed information the agreement between 
ANEK and Visemar was a time charter. Time charter is the hiring of a manned vessel for a specific period of time; the 
owner still manages the vessel but the charterer selects the ports and directs the vessel where to go. The charterer pays 
for all fuel the vessel consumes, port charges, commissions, and a daily hire to the owner of the vessel. 

211   Source: http://www.trasportoeuropa.it/index.php/home/archvio/14-marittimo/11925-norman-atlantic-era-un-pezzo-pregiato 

della-flotta-ro-ro. 

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259 

 
 
 
 
 
 
 
 
 
 
 
 
                                                           
After very lengthy coordinated operations of the Italian and Greek authorities, 
rescue efforts were made by means of air and sea. The majority of the ship's 
passengers and crew were saved.  

Based on the information available in the press (but not confirmed by official 
passenger  registration  records),  the  ship  was  travelling  with  422  passengers 
and  55  crew  members212.  234  passengers  were  Greek  and  many  of  the 
remaining  passengers  were  Turkish  and  Italian.  In  addition,  the  ferry  was 
carrying 222 vehicles. In the accident, around 24 passengers died and at least 
31 were injured. 

Investigations 
The  safety  and  criminal  investigations  concerning  the  causes  of  the  accident 
on board the Norman Atlantic are still open. However, since the accident was 
caused  by  a  fire,  the  accident  can  qualify  as  a  shipping  incident  under  the 
Regulation. 

A  combined  port  state  control  and  ro-pax  inspection  (in  accordance  with 
Directive  2009/16/EC213  and  the  procedures  of  the  Paris  MoU214  (an 
international  organisation)  and  Directive  1999/35/EC215)  was  carried  out  on 
the vessel on 19 December 2014 by the Greek authorities (as "port state" and 
"host  state")  in  Patras  harbour  in  Greece  and  identified  six  different 
deficiencies  affecting  the  ship,  including  malfunctioning  fire  doors,  missing 
emergency  lights  and  equipment,  faulty  lifesaving  devices  and  inadequate 
documentation216. All of these deficiencies were considered by the inspector to 
be of a minor nature and were left for correction by the crew within 14 days in 
accordance with the port state control Directive. 

The  Italian  Ministero  delle  Infrastrutture  e  dei  Trasporti,  Direzione  Generale 
per  le  Investigazioni  Ferroviarie  e  Marittime  is  still  carrying  out  safety 
investigations  in  view  of  the  submission  of  the  safety  report  that  will  be 
included in the EMCIP database217.  

Based  on  information  provided  on  15  September  2016  by  the  investigation 
Unit of the Ministry of Transport (the Direzione Generale per le Investigazioni 
Ferroviarie  e  Marittime),  the  investigations  are  close  to  their  conclusion  and 
the marine casualty investigation report will be prepared shortly thereafter. 

In  addition,  two  criminal  investigations  are  pending  in  connection  with  the 
accident. 

212   http://www.keeptalkinggreece.com/2014/12/28/norman-atlantic-ablaze-dramatic-rescue-efforts-to-evacuate-478-

passengers-crew/. 

213   Directive 2009/16/EC of the European Parliament and of the Council of 23 April 2009 on port State control. 
214   www.parismou.org. 
215   Council Directive 1999/35/EC of 29 April 1999 on a system of mandatory surveys for the safe operation of regular ro-ro 

ferry and high sped passenger craft eservices. 

216   http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+WQ+E-2015 000687+0+DOC+XML+V0 //EN&la 

nguage=pl. 

217   The European Marine Casualty Information Platform (EMCIP) is a database and a data distribution system operated by 
EMSA. Member States notification of marine casualties and incidents, and reporting of data resulting from safety 
investigations in EMCIP, has been mandatory since 17 June 2011. 

260 

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One  is  pending  before  the  Criminal  Court  of  Bari  (Italy)218.  It  is  still  in  the 
evidentiary  phase  and  the  data  of  the  VDR  (Voyage  Data  Recorder  or  black 
box)  has  not  yet  been  fully  decrypted,  according  to  information  provided  by 
one of the technical advisers in the criminal proceeding219. 

The  Court  of  Bari  opened  criminal  investigations  against  various  individuals 
including:  the  representatives  of  the  charterer  and  the  sub-charterer  (both 
natural  persons),  the  charterer  (Visemar  di  Navigazione)  and  the  sub-
charterer (ANEK Lines) (both legal persons).  

The  charges  brought  against  the  natural  persons  are  for  various  criminal 
offences.  Among  them  are  manslaughter,  abandonment  of  a  ship  in  distress 
and  shipwreck.  The  charterer  and  the  sub-charterer  are  charged  with 
administrative offences. 

In April 2015, the Prosecutor ordered an inspection of the ferry to assess the 
functioning of the ship’s systems and security measures, the causes of the fire 
and  of  its  spread,  and  the  management  of  the  rescue  operations.  The  first 
official  site  inspection  on  the  Norman  Atlantic  was  carried  out  on  12  June 
2015 by the experts appointed by the Criminal Court of Bari and consultants 
of the parties in the dispute. The ship is currently moored in the Bari port. 

The  unloading  of  the  vehicles  on  board  was  completed  in  April  2016 9
.  The 
vehicles have been moved and stored in a warehouse to allow the owners and 
ANEK to assess the recoverability of the cars. 

220

Another  criminal  investigation  is  pending  in  Greece221.  The  crimes  that  the 
Greek  prosecutor  is  investigating  are  the  following:  impairing  the  safety  of 
maritime  transport,  and  provocation  of  fire  (arson)  resulting  in  death  and 
injuries. 
From a criminal law standpoint, it is interesting to note that an accident such 
as the Norman Atlantic gives rise to interesting legal issues since at least two 
countries  have  jurisdiction  over  the  crime  allegedly  committed  by  individuals 
involved  in  the  accident  and  in  both  States,  public  prosecutors  have  an 
obligation  to  bring  up  charges  against  authors  of  criminal  actions  assuming 
that some conditions are met. 
Italy has jurisdiction over the alleged crimes based  on the flag of the ship222 
and  on  the  nationality  of  the  offender223  and  of  the  nationality  of  the 
victims224. 
Greece  has  jurisdiction  based  on  the  territoriality  principle225,  the  nationality 
of the offender and the nationality of the victims. 

218 Proceeding No. 20598/14. 
219   Minutes from confidential interview . 
220   https://giustiziapernormanatlantic.wordpress.com/category/news/. 
221  

Information provided by lawyer Tsiridis at the 9th International Conference on Maritime Law: 
http://www.imlc2016piraeus.gr/index.php/en /theconference/the-9th international-conference.html.No public information on 
this proceeding was found. 

222   Under this principle the flag State of the vessel can prosecute criminal offences that are committed on board, regardless of 

the nationality of the perpetrator. 

223   Also called active personality principle: according to this principle a State has the power to prosecute its nationals for 

offenses committed abroad. 

224   Also called passive personality principle. Under this principle a State can prosecute acts committed by a foreigner abroad 

against its nationals. 

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261 

 
 
 
 
 
 
 
 
 
 
 
 
                                                           
Against  this  background  and  in  the  absence  of  EU  rules  determining  the 
prevailing  criminal  jurisdiction,  the  Italian  and  Greek  proceedings  are  taking 
place  in  the  two  countries  contemporaneously  and  concern  the  same 
individuals and the same facts226. 
The above situation implies that from a legal standpoint it cannot be excluded 
that  the  two  parallel  criminal  proceedings  may  have  partially  conflicting 
outcomes for the following reasons.  
On the one hand, Article 50 of the Charter of Fundamental Rights in European 
Union  foresees  the  ne  bis  in  idem  principle,  i.e.  the  right  not  to  be  tried  or 
punished twice in criminal proceedings for the same criminal offence. 
Thus,  the  application  of  such  principle  should  imply  that  once  an  irrevocable 
decision  is  issued  from  one  State  (Italy  or  Greece),  the  latter  shall  be 
considered  as  a  supranational  res  judicata  and  therefore  prosecution  for  the 
same acts (idem factum) will be inadmissible in all other courts.  
On  the  other  hand,  the  principle  of  ne  bis  in  idem  applies  assuming  that  the 
same persons are convicted for the same facts. Thus, the extent to which this 
principle  will  prevent  Greek  and  Italian  courts  from  adopting  conflicting 
decisions will depend on whether they will conclude that they are prosecuting 
the same facts227. 
Furthermore,  we  believe  that  it is  not  to  be  excluded  that  the  matter  will  be 
heard  by  the  European  Court  of  Justice,  upon  the  request  of  one  of  the 
national Courts. 

Handling of claims  
Based  on  our  analysis228,  66  alleged  injured  passengers  and  the  relatives  of 
14  deceased  or  missing  passengers  have  filed  their  claims  in  the  criminal 
proceeding that is pending in Italy229. The claimants230 filed their claims in the 
criminal  proceeding  because,  pursuant  to  Italian  law,  parties  to  a  criminal 
proceeding  may  rely  on  the  findings  of  the  criminal  proceeding  in  their 

225   Under this principle a sovereign state can prosecute criminal offences that are committed within its borders. The principle 
also bars states from exercising jurisdiction beyond their borders, unless they have jurisdiction under other principles such 
as the principle of nationality, the passive personality principle, the protective principle, and possibly universal jurisdiction. 
According to the Greek Penal Code (Article 16) the place of commission of a crime is the place where the action took 
place, or where an omission that caused the event qualified as a crime took place, and the place where the results of an 
action materialize. 

226   EU rules foresee a mechanism to avoid parallel criminal proceedings (COUNCIL FRAMEWORK DECISION 2009/948/JHA 

of 30 November 2009 on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings). 
However, the mechanism is aimed at improving the exchange of information between the competent authorities of different 
Member States and at facilitating the possibility to reach consensus about any effective solution aimed at avoiding the 
adverse consequences arising from such parallel proceedings. Thus the current framework does not prevent parallel 
criminal proceedings. 

227   As regards the interpretation of "idem factum" (same facts) the case law of the European Court of Human Rights ("ECHR") 
in the case of Sergey Zolotukhin v. Russia, Judgment of 10 February 2009 ("ECHR Decision") indicates that in order to 
assess whether criminal proceedings are concerning the same facts one has to look at the concrete factual circumstances 
involving the same defendant and inextricably linked together in time and space, and not at the legal qualification of facts 
under prosecution. This is in line with the case law of the EU Court of Justice (Decisions Van Esbroek, Case C-436/04 of 
09.03.2006; and Kretzinger, Case C-288/05, of 18.07.2007). 

228   We had access to the so called “Ordinanza ammissiva di incidente probatorio”, an order of the Bari criminal Court. A 

reading of such order allowed identifying the passengers and relatives of passengers who have not settled their claims with 
the insurer and have filed their claims in the criminal proceeding concerning the accident Norman Atlantic. 

229   However, these figures are not official and are based on an analysis of documents of the criminal proceeding which is still 
pending and where many natural and legal persons filed their claims and not only passengers and their relatives. In 
addition, since other persons might still file their claims in the criminal proceeding the list is not final. 

230   As explained by the lawyers of some claimants. 

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subsequent  civil  proceedings  where  the  amount  of  losses  suffered  will  be 
assessed231. 
This implies that many claimants may have to  wait many years before being 
able  to  claim  compensation  before  a  civil  law  court,  since  a  criminal 
proceeding may last years in Italy. 

A  second  reason  why  the  lawyers  recommended  for  the  passengers  to  not 
settle  their  claims  (out  of  court)  and  to  not  start  a  civil  proceeding  pending 
the criminal proceeding relates to the amount of compensation they may seek 
under  the  Regulation.  Under  the  Regulation,  the  liability  of  the  carrier  is 
capped at 250,000 units of account for the loss suffered as a  result of death 
or personal injury to a passenger. However, such limit can be exceeded where 
the  fault  or  negligence  of  the  carrier  is  proven,  i.e.  where  the  carrier  cannot 
prove that the incident was not due to its fault or neglect.  In  other  words, if 
the carrier is found liable in the criminal proceeding, then the carrier will not 
be  able  to  invoke  the  above  limit.  In  addition,  the  findings  of  the  criminal 
proceeding could also ease the burden of proof for claimants having suffered 
damage  to  property.  The  liability  of  the  carrier  for  damage  to  property  is 
essentially based on fault232. Fault is presumed for non-cabin luggage and for 
cabin luggage in shipping incidents. 

More  importantly,  the  findings  of  a  criminal  proceeding  could  be  used  in  a 
claim seeking compensation for the loss of life which is above the limits set in 
the  Regulation  pursuant  to  Article  13  of  Annex  I  to  the  Regulation233234,  i.e. 
above the 400,000 unit of account limit. 

The discussions below detail the information gathered concerning out of court 
settlements.  Such  information  concerning  the  handling  of  Norman  Atlantic 
claims is not public information.  

Advance payment 
Pursuant  to  Article  6  of  the  Regulation,  in  the  case  of  death  of  or  personal 
injury to a passenger  caused by a  shipping incident, the carrier should grant 
an  advance  payment  to  the  injured  passenger  or  to  the  relatives  of  the 
deceased  passengers  to  cover  immediate  economic  needs.  This  payment 
should  be  done  within  15  days  of  the  identification  of  the  person  entitled  to 
damages. Concerning advance payments, the analysis found that the practical 
application of such provision is problematic. 

231   First,  being  a  party  in  the  criminal  proceeding  will  allow  the  claimant  to  rely  on  the  findings  of  the  criminal  proceeding 
concerning the cause of damage, i.e. that the death or the injury was caused by the accident. Second, being a party to the 
proceeding allows the claimant to rely on the findings of the proceeding concerning the liability of the carrier and the crew 
and  thus, that the  accident  was caused  by the fault  of the latter. Thus, being able to  rely  on the  findings  of the criminal 
proceeding will  ease the burden of proof of the claimant in a civil law proceeding that the latter could start further to the 
conclusion of the criminal proceeding. 

232   Pursuant to the Regulation for the loss suffered as a result of the loss of or damage to cabin luggage, the carrier shall be 
liable if the incident which caused the loss was due to the fault or neglect of the carrier. The fault or neglect of the carrier 
shall be presumed for loss caused by a shipping incident. For the loss suffered as a result of the loss of or damage to 
luggage other than cabin luggage, the carrier shall be liable unless the carrier proves that the incident which caused the 
loss occurred without the fault or neglect of the carrier. 

233   The reference is to the provision “Loss of right to limit liability”: “The carrier shall not be entitled to the benefit of the limits of 

liability prescribed in Articles 7 and 8 and Article 10(1), if it is proved that the damage resulted from an act or omission of 
the carrier done with the intent to cause such damage, or recklessly and with knowledge that such damage would probably 
result”. 

234   Minutes from confidential interviews . 

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Based  on  information  provided  by  the  passengers,  the  passengers’  lawyers 
and  the  carrier’s  lawyer,  no  advance  payment  was  offered  to  passengers235. 
Most  of  the  information  available  involved  advance  payments  to  relatives  of 
deceased passengers. 

The  data  gathered  shows  that  most  of  the  relatives  of  deceased/missing 
passengers  received  an  advance  payment,  but  that  such  payment  was  not 
made  before  April  2015  i.e.  four  months  after  the  accident  took  place.  The 
analysis  identified  that  the  main  reason  for  the  delay  in  payment  was  the 
uncertainty  identifying  the  relatives  entitled  to  the  advance  payment.  The 
uncertainty was a result of disputes among relatives236 which made it difficult 
for  the  insurer  to  grant  such  payment  pending  any  agreements  among  the 
relatives.  However,  this  was  a  problem  mostly  relevant  only  to  Italian 
passengers to the best of our knowledge. 

The  information  also  shows  that  the  amount  granted  was  far  above  the 
minimum  21,000  Euros  per  deceased  passenger  required  by  the  Regulation. 
In  some  cases,  the  advanced  payment  reached  150,000  Euros.  Conversely, 
the lawyer of Greek claimants did not identify any major obstacles to receive 
the  advance  payment.  Rather,  the  advance  payment  was  paid  immediately 
after the request was submitted237. 

Regarding  injured  passengers,  our  analysis  was  based  on  the  information 
provided by some lawyers involved in the case. 

Based on the information provided, we were able to gather that the advance 
payment  was  granted  to  a  few  injured  passengers  within  1  week  of  the 
request being made238. Notably, seven passengers sought advanced payments 
and all seven received the payment over a period of February-April 2015. One 
injured  passenger  was  paid  in  January  2015.  The  average  request  for 
payment was approximately €7,000. However, we confirmed that the lawyers 
of  other  passengers  who  received  minor  injuries  and  settled  did  not  request 
an advance payment239. 

Based  on  our  analysis,  one  reason  why  lawyers  did  not  ask  for  advance 
payment  is  that  there  were  few  seriously  injured  passengers  in  the  Norman 
Atlantic  accident240.  Another  reason  was  due  to  the  lack  of  awareness 
concerning  the  provision  of  Article  6  of  the  Regulation,  as  confirmed  by  the 
fact that this provision is not correctly interpreted by practitioners241 and that 
most  of  the  consulted  stakeholders  interpret  the  provision  as  requiring  a 
request  from  the  passenger,  while  the  Regulation  requires  the  carrier  to 
provide such payment independently from a request.  

235   Minutes from confidential interviews. 
236   Minutes from confidential interviews 
237   Minutes from confidential interview. 
238   Minutes from confidential interview. 
239   Minutes from confidential interview. 
240   Minutes from confidential interview]. 
241   Minutes from confidential interviews. 

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Out of court settlements 
While  no  Norman  Atlantic  claim  has  been  settled  in  court  yet,  based  on 
information  provided  by  the  lawyers  whom  we  interviewed,  a  substantial 
number of claims have been settled out of court.242. 
Our analysis found that the number of claims filed in relation to the accident 
was 730. Out of those, one law firm settled 303 claims and another law firm 
settled around 100 claims. Thus, around 400 claims have been settled 243. 

Personal injuries including psychological injury 
Concerning  settlement  offers,  we  were  informed  that  Norman  Atlantic’s 
insurer  combined  a  general  approach  and  case-by-case  approach  to 
determine the amount of compensation for personal injuries244. 

The  insurer  and  its  lawyers  fixed  a  standard  amount  for  each  passenger  but 
were  ready  to  modify  the  offer  in  light  of  the  details  of  each  case.  All 
passengers  who  were  on  board  and  claimed  compensation  for  psychological 
damages were offered €30,000 on the basis that these persons had a similar 
or identical experience, namely that they were found in the water and rescued 
by  boats.  That  offer  could  be  raised  by  approximately  5,000  Euros  if  the 
passenger could prove additional damages.  

Our research could not gather extensive information concerning the approach 
followed  in  connection  with  the  compensation  of  physical  injuries  such  as 
burns, since few passengers were seriously injured in the accident. 

Based  on  the  information  provided  by  an  Italian  passengers’  lawyer,  none  of 
the injured passengers whom the lawyer assisted settled their claims because 
an agreement on the amount of compensation could not be reached245. 
In conclusion, the approach to determine the amount of damages for personal 
injuries  was  on  a  case  by  case  basis  which  was  based  on  the  evidence 
submitted  by  the  claimant  concerning  the  gravity  of  his  or  her  injury,  i.e.  a 
medical report246.  

Loss of life 
Information concerning compensation for loss of life shows that out of the 23 
claims247 filed, only 5 were formally settled.  However, formal settlements for 
2 more claims are pending as an agreement has been reached.  

The  agreed  amount  of  compensation  for  each  loss  of  life  averaged  above 
500,000  Euros248.  The  lower  amount  was  granted  to  the  elder  relatives  of  a 
deceased passenger who did not have any children or a spouse. The amount 
awarded  was  partially  based  on  the  deceased’s  obligation  to  provide  support 
for  the  claimants  and  on  the  number  of  the  relatives  who  were  financially 
dependent on the deceased passenger. 

Information provided in confidential interview. 

242  
243   Minutes from confidential interview. 
244   Minutes from confidential interview. 
245   Minutes from confidential interviews.  
246   Minutes from confidential interview. 
247   A further claim has been submitted in relation to the death of an unticketed passenger.  
248   Confidential source of information. 

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265 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
No settlements were reached before October 2015. Most of them occurred in 
2016, which is over one year after the accident took place. For the remaining 
claims,  the  reasons  for  not  settling  are  in  general  due  to  the  fact  that  the 
insurer  and  relatives  could  not  reach  an  agreement  on  the  amount  of  the 
compensation,  as  relatives  were  asking  for  an  amount  higher  than  the 
Regulation limit, i.e. higher than 400,000 units of accounts. 

Another obstacle in reaching a settlement is the fact that claims are often filed 
by  separate  groups  of  relatives,  typically  the  spouse  and  the  children,  and 
also the brothers and sisters of the deceased passenger249. 

Disputes  among  such  relatives  concerning  the  distribution  among  claimants 
have  led  to  delays  and  continue  to  hinder  the  conclusion  of  settlement 
agreements  between  the  insurer  and  the  claimants.  This  problem  concerns 
mostly  Italian  passengers  and  has  been  identified  by  the  interviewed  Italian 
lawyers as a major difficulty in the handling of claims for loss of life.  

Another  obstacle  to  the  settlement  of  claims  for  loss  of  life  is  that  there  are 
minors/persons  among  the  claimants  who  are  legally  unable  to  conclude  an 
agreement. This implies that the person (typically a parent) who has custody 
of  a  legally  incapable  individual  needs  to  obtain  the  authorization  from  the 
competent  judicial  authority  to  reach  an  agreement  with  the  insurer250.  

Damage to property  
Concerning  compensation  for  damages  to  vehicles  or  to  luggage,  there  is 
conflicting  information  regarding  the  approach  followed  by  the  insurer  to 
compute the compensation of vehicles. 

Some  lawyers  noted  that  the  insurers  suspended  the  quantification  of  such 
damages pending the unloading of the Norman Atlantic that occurred in April 
2016 251 I252. 

However,  other  sources  stated  that  the  unloading  of  the  ship  did  not  affect 
the  timing  of  the  settlement  negotiations  since  passenger  cars  were  stowed 
on  either  deck  5  (upper  weather  deck)  of  the  ship  or  deck  2  (closed  lower 
deck)253.  They  also  stated  that  compensation  was  offered  based  on  the 
market  value  of  the  vehicles  at  the  end  of  December  2014.  The  amount  of 
compensation  was  up  to  the  limit  provided  in  the  Regulation  for  vehicles.  It 
was also noted that compensation offers were made to owners of “undamaged 
cars” on the ground that the smoke affected the cars. 

We  were  not  provided  with  data  on  the  number  of  concluded  settlement 
agreements  concerning  claims  for  loss  of  vehicles.  It  is  noted  that  the  main 
reason  why  settlement  agreements  concerning  damage/loss  of  vehicles  were 

249   The legal reason for this uncertainty is that in case of death claimants are compensated not only jure hereditariio but jure 
proprio. Thus the amount of the compensation to which every claimant is entitled is not determined by succession law but 
by a case by case analysis. 
250   Minutes from confidential interview. 
251   Minutes from confidential interview. 
252   Minutes from confidential interviews 
253   Such sources refer that it was known from soon after the incident that nearly all the cars on deck 5 were completely 

destroyed, and that in early March 2015 the Italian Authorities produced a list of “undamaged” cars in deck No.2.  

266 

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not  concluded  was  because  the  insurer  made  a  comprehensive  settlement 
offer  combining  claims  for  personal  injuries  and  claims  for  damage  to 
property. 

Since the accuracy of such information could not be verified, we conclude that 
claims  for  damage  to  vehicles  were  not  settled  because  an  agreement  could 
not be made on the amount of damage254. 

Concerning damages to mobility equipment, it is noted that no claims for loss 
of such equipment were filed.  

Damage to luggage 
Based  on  the  information  provided  by  stakeholders,  settlement  agreements 
have  included  damage  to  luggage.  Claims  concerning  luggage  ranged  from 
hundreds of Euros to up to several thousands of Euros. Most were around the 
limitation figure of SDR 2,250. 

The  average  settlement  was  around  2,500  Euros  based  on  supporting 
documents. 

information  demonstrate  that  ANEK 

Damage to trucks and cargo 
In  addition  to  passengers’  vehicles,  the  vessel  was  carrying  trucks  that 
contained  cargo  and  their  drivers.  It  is  referred  that  in  the  Norman  Atlantic 
case,  the  carrier  did  not  issue  a  bill  of  lading  for  the  cargo,  but  cargo  was 
carried  under  a  simple  “receipt  of  carriage”  provided  by  Anek  specifying  the 
main particulars of the trucks. 
Publicly  available 
initially  offered 
compensation  for  the  trucks,  but  the  offered  amount  was  not  sufficient  to 
replace the damaged vehicles according to some truck owners. 
Thus,  for  example,  several  truck  owner  members  of  OFAE  (Federation  of 
Greek  truckers)  have  not  settled  with  the  company  and  are  seeking 
compensation  in  court255.  Instead,  some  truck  owners  assisted  by  a  Greek 
lawyer  who  provided  information  on  a  confidential  basis  settled  their  claims 
with  the  insurer  for  an  amount  that  was  around  70%  of  what  they  had 
originally  sought.  This  amount  included  compensation  for  the  lost  truck  as 
well as for the cargo that it was carrying. Settlements were reached within ten 
months from the occurrence of the accident. 

It  is  worth  pointing  out  that  the  physical  and  material  damages  suffered  by 
truck  owners  in  the  Norman  Atlantic  accident  gives  rise  to  interesting  legal 
issues  which  have  not  been  addressed  in  court,  since  there  is  no  case  law 
concerning Norman Atlantic. 
However, some practitioners involved in the case have analysed the relevant 
legal  framework  in  order  to  substantiate  the  claims  of  their  clients  with  the 
insurer  and  have  come  to  the  conclusion  that  it  is  not  controversial  that  the 
physical  damage  suffered  by  the  truck  owners/drivers  who  were  on  board 
Norman Atlantic falls under the scope of the Regulation/Athens Convention. 

254   Minutes from confidential interview.  
255 “http://www.ekathimerini.com/204631/article/ekathimerini/news/questions-still-hang-over-norman-atlantic-disaster 

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It is also not controversial that the damage to/loss of the trucks falls into the 
scope of the above legal instruments. 
Instead,  the  damage  to/loss  of  the  cargo  contained  in  trucks  carried  on  the 
Norman  Atlantic  should  be  compensated  under  Greek  law  on  the  contract  of 
carriage of goods (Greek Code of Private Maritime Law – L.3816/1958) to the 
extent that the cargo were not carried based on the issuance of a bill of lading 
by the carrier256. 
Finally,  it  is  worth  pointing  out  that  the  situation  of  truck  drivers  in  the 
aftermath of the accident was made more complex by the fact that they were 
still obliged to pay their social security fees despite not being able to work257. 

Evidence 
Based  on  the  gathered  information,  the  victims/relatives  were  required  to 
produce different kinds of  evidence for settlement negotiations depending on 
the damage claimed. 

Passengers claiming the standard psychological damage needed to prove that 
they  were  on  board  the  Norman  Atlantic  to  receive  a  settlement  offer.  For 
example,  passengers  were  required  to  submit  their  passenger  ticket  as 
evidence  that  they  were  on  board.  However,  our  analysis  found  that  the 
claimant’s  name  on  a  list  detailing  the  rescued  passengers,  the  deceased 
passengers and the missing passengers drafted by the competent authorities 
was sufficient258.  

Passengers  claiming  bodily  injury  or  additional  emotional  damage  had  to 
submit a medical report which would substantiate their claim.  

Passengers  claiming  compensation  for  the  lost  vehicles  had  to  submit  the 
vehicle’s insurance contract along with a certification that the insurers had not 
paid or did not intend to pay any compensation for the loss of the vehicle to 
the passenger due to the loss. 

For  leased  cars,  the  lessor  was  required  to  be  involved  in  settlement 
negotiations1259. 

Passengers  who  claimed  damage  to  luggage  had  to  submit  a  list  of  items  in 
the luggage260. 

Relatives of deceased passengers had to submit a Family Status Certificate or 
any  other  certificate  proving  their  status  as  relatives  of  the  deceased 
passengers. 

256   Damage to cargo can be compensated under The Hague-Visby Rules. However, the application of the Hague-Visby Rules 
is conditioned on the fact that the carrier issues a bill of lading. As anticipated, this was not the case for the cargo carried 
by the Norman Atlantic. Against this background, one lawyer of truck owners has concluded that the liability of the carrier 
for damage to cargo carried by Norman Atlantic cannot be compensated under international rules and notably The Hague-
Visby  Rules,  but  under  Greek  rules.  The  courts  which  will  deal  with  Norman  Atlantic  claims  will  have  a  final  say  on  the 
liability rules applicable to the carriage of cargo. Under Greek Law, the liability of the carrier is a fault presumed liability and 
the  Greek  laws  provide  limitation  of  liability  and  time  bar  provisions  which  in  certain  cases  are  different  than  the  ones 
provided in the Hague-Visby Rules.  
Information provided to the press by Apostolos Kenanidis, head of the OFAE (Federation of Greek truckers). 

257  
258   Minutes from confidential interview. 
259   Minutes from confidential interview. 
260   Minutes from confidential interview. 

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Information to passengers 
We did not gather evidence supporting that Norman Atlantic passengers were 
informed of their rights under the Regulation before or after the accident261.  

A Norman Atlantic passenger and the lawyers assisting passengers stated that 
no  information  on  passengers’  rights262  was  provided  on  board  the  ship.  The 
lawyers stated that their clients were not aware of what their rights were. 

We have tried to discuss this issue with the further involved stakeholders  but 
the  latter  were  not  available  for  an  interview.  Furthermore  no  stakeholder 
could provide  the ticket bought by passengers. 

In  addition,  our  discussions  with  Italian  authorities  show  that  there  are  no 
specific  regulatory  tools  in  place  enabling  the  monitoring  of  compliance  with 
the  obligation  to  provide  information  to  passengers  of  their  rights  under  the 
Regulation. 

Our conclusion in this regard is that there is no evidence that Norman Atlantic 
passengers  received  information  on  their  rights  pursuant  to  the  Regulation 
prior to its departure.. 

However, since none of the stakeholders consulted could/was in a position to 
provide  the  ticket  of  the  trip  or  other  supporting  evidence,  there  is  no 
conclusive  evidence  that  such  information  was  not  provided,  at  least  on  the 
ticket. 

Counterfactual 
In  order  to  assess  the  added  value  of  the  Regulation,  we  compared  the 
legislative  framework  in  Italy  concerning  the  liability  of  carriers  before  the 
Regulation’s entry into force. Italy was the country of the flag of the ship, of 
destination  of  the  voyage263,  of  the  domicile  and  residence  of  many 
passengers264 and where the carrier has a place of business. 

According  to  Italian  law,  applicable  to  domestic  and  international  voyages 
before 2013, the liability of the carrier concerning personal injuries and death 
was  based  on  fault  but  there  was  a  rebuttable  presumption  of  fault.  Italian 
law did not require a limit for the liability of the carrier for personal injuries or 
death. 

It did, however, require a limit on damage to property (Article 423 Transport 
Code). The liability limit for vehicles was 103,29 Euros or a greater amount if 
the value was declared by the passenger when the vehicle was boarded onto 

261   Minutes from confidential interviews]. 
262   Minutes from confidential interview. 
263   Indeed the Norman Atlantic was carrying passengers from Igoumenitsa and Ancona. 
264   See rules on jurisdiction pursuant to the Athens Convention as amended by Pal 2002 and as applicable to the NA accident 
further to the accession of the EU to the Pal 2002 (2012/23/EU: Council Decision of 12 December 2011 concerning the 
accession of the European Union to the Protocol of 2002 to the Athens Convention relating to the Carriage of Passengers 
and their Luggage by Sea, 1974, as regards Articles 10 and 11 thereof OJ L 8, 12.1.2012, pages 13–16). 

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269 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
the ship. This limit would not apply where the claimant could prove the intent 
or  gross  negligence  of  the  carrier  in  causing  the  accident.  The  law  did  not 
require any limit to liability for damage to cabin luggage. However, a claimant 
seeking compensation for the damage to cabin luggage was required to prove 
the fault of the carrier. 

As  to  non-cabin  luggage,  the  carrier  was  liable  for  fault  and  fault  was 
presumed.  The  limit  to  liability  was  calculated  based  on  the  number  of 
kilograms  of  the  luggage  multiplied  per  300  Italian  liras  (i.e.  around  1  Euro 
and  fifty  cents)  or  based  on  the  value  declared  by  the  passenger  when  he 
provided  the  luggage  to  the  carrier.  Finally,  under  Italian  law,  carriers  were 
not  required  to  be  insured  but  compulsory  insurance  was  required  for  ships 
which provided a direct action against the insurer of the ship. 

Italian  law  did  not  require  the  obligation  of  the  carrier  to  grant  an  advance 
payment  in  the  case  of  a  shipping  incident,  or  specific  provisions  on 
compensation of mobility equipment. 

There  were  no  provisions  in  Italy  and  in  Greece  requiring  the  carrier  to 
provide information to passengers concerning their right to compensation for 
the losses arising from incidents that occurred in the course of the carriage. 

Against this background, a comparison of the legal framework in Italy before 
2013  and  after  the  Regulation’s  entry  into  force  shows  that  the  passengers’ 
rights  have  increased  and  that  Norman  Atlantic  passengers  have  more 
protection under the Regulation than under Italian law. 

One  of the main improvements is that the carrier will not be able to  exclude 
its  liability  by  proving  that  the  shipping  incident  was  not  caused  by  its  own 
fault.  Should  the  carrier  be  still  able  to  escape  liability,  this  would  have 
weakened  the  passengers’  positions  in  settlement  negotiations  with  the 
insurer. 

As  explained  above,  the  criminal  proceeding  concerning  Norman  Atlantic  will 
likely  last  years.  After  the  end  of  the  criminal  proceeding,  the  claimants  will 
still have to bring the case before civil courts. Thus, passengers would have to 
wait years before obtaining the sought compensation.  

A  second  improvement  is  the  fact  that  the  Regulation  requires  the  carrier  to 
provide an advance payment in the case of shipping incidents. The granting of 
such  payment  has  been  delayed  in  some  cases  due  to  disputes  among  the 
relatives of deceased passengers. Nonetheless, the Regulation has provided a 
needed  form  of  assistance  to  passengers  and  relatives  of  deceased 
passengers.  As  seen,  in  some  cases  the  amount  of  such  payment  was  far 
above the minimum sum required by the Regulation. 

The  protection  of  passengers  with  reduced  mobility  has  also  been  improved 
by the Regulation. However, the implementation of such provision in the case 
Norman  Atlantic  could  not  be  assessed  due  to  the  lack  of  claims  from 
passengers  with  reduced  mobility.  However,  it  should  be  pointed  out  that 
pursuant  to  Italian  law  there  were  no  provisions  on  such  compensation  for 

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such  equipment.  In  addition,  the  liability  of  the  carrier  for  objects  not 
delivered  to  the  carrier  was  based  on  fault  and  such  fault  was  not 
presumed265.  On  the  other  hand  the  fault  is  presumed  in  case  of  shipping 
incidents under the Regulation. 

Finally, the Regulation improves the rights of passengers to the extent that it 
provides  an  obligation  on  the  carrier  to  provide  information  on  their  right  to 
passengers,  at  the  latest  before  departure.  Indeed  such  obligation  was  not 
required  under  Italian  law266  before  2013.However,  at  this  stage,  the 
improvement  is  purely  legal  since  our  case  study  shows  that  there  is  no 
evidence  that  this  provision  has  been  implemented  based  on  the  Norman 
Atlantic case.  

The Regulation’s entry into force affects the position of passengers in Italy to 
the extent that it requires a limitation of liability in the case of personal injury 
and death which applies even in the case of the fault of the carrier  and thus 
was a factor in settlement negotiations among passengers and the insurer of 
the  carrier.  Indeed  settlement  offers  for  claims  concerning  loss  of  life  have 
been  made  within  the  liability  limit  required  in  the  Regulation,  and  this  limit 
does not provide for full compensation of the relatives of passengers based on 
the actual damage suffered. This limit was not required under Italian law.  

In addition, to compare the added value of the Regulation, we have compared 
the  outcome  of  the  Norman  Atlantic  case  with  its  likely  outcome  under  Pal 
2002. 

With the accession of the EU to Pal 2002 and its entry into force in April 2014, 
the  provisions  of  the  Athens  Convention  as  amended  by  Pal  2002  apply  to 
international  voyages267  in  the  EU.  Thus,  from  a  theoretical  standpoint,  the 
Norman  Atlantic  accident  would  have  fallen  under  the  scope  of  Pal  2002  had 
the  Regulation  not  been  in  place.  Taking  into  consideration  the  legal 
implications of the accession of the EU to Pal 2002, we assessed whether the 
application  of  the  Regulation  in  the  Norman  Atlantic  case  strengthened  the 
protections  granted  to  passengers  compared  to  under  Pal  2002.  In  this 
respect,  we  note  that  the  regime  of  liability  provided  in  the  Regulation  is 
similar  to  the  one  established  under  Pal  2002.  Thus  the  liability  would  not 
have changed in Norman Atlantic had Pal 2002 applied. 

The main differences between the Regulation and Pal 2002 concern the right 
to  an  advance  payment,  the  right  to  compensation  for  loss/damage  to 
mobility  equipment  and  the  carrier’s  obligation  to  provide  passengers  with 
information on their rights. 

Against  this  background,  our  conclusion  regarding  the  added  value  of  the 
Regulation is that passengers are better protected under the Regulation than 

265   Thus, the passenger would have to prove the fault of the carrier to seek compensation for mobility equipment or other 

specific equipment. 

266   Greek law did not foresee such obligation as well (see above). 
267   Assuming that the ship is flying the flag or is registered in a State party to the Convention, or the contract of carriage has 
been made in a State party to the Convention, or the place or of destination is in a State party to the Convention.  

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271 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
would  be  the  case  if  Pal  2002  applied,  primarily  because  passengers  and 
relatives  of  deceased  passengers  are  able  to  obtain  an  advance  payment  by 
the insurer under the Regulation but not under Pal 2002. 

Conclusive remarks 
The  provisions  of  the  Regulation  enhance  the  protection  of  passengers 
compared to the Pal 2002 and the national legislation of Italy. 

The  effectiveness  of  the  Regulation  in  ensuring  an  adequate  protection  of 
passengers  has  been  affected  to  some  extent  by  a  lack  of  understanding  of 
some  of  its  provisions  among  the  involved  stakeholders  and  by  a  lack  of 
implementing  measures  at  the  national 
level  that  ensure  a  proper 
enforcement  of  some  of  the  rules  of  the  Regulation  that  impose  concrete 
obligations on the involved operators. 

City of Poros Case study  
Introduction: the facts 
The City of Poros was a Greek cruise ship that made day-cruises for Cycladic 
Cruises to Hydra, Aegina and Poros from Flisvos Marina, a port in the Athens 
suburbs. The ship was  roughly 200 feet (60 m) long, and ran the regular 16 
mile  (26  km)  trip  between  the  two  harbours  every  day,  with  a  carrying 
capacity of 500 passengers.  

On this voyage, the City of Poros ship would keep a distance of 5 miles from 
the  coast  and  of  less  than  15  miles  from  a  place  of  refuge.  In  addition,  the 
strength  of  the  wind  and  wave  height  during  such  voyage  make  unlikely  the 
probability of exceeding 2,5 metres significant wave height. 

On 11 July 1988 at 18:45 the ship was attacked by three armed gunmen. On 
that day, it was carrying 471 passengers. 220 of them were French. The three 
gunmen boarded the ship at Aegina, and then waited until the ship was three 
miles  into  its  journey  before  they  began  their  attack.  Using  concealed 
automatic  weapons  and  hand  grenades,  they  opened  fire  on  their  fellow 
passengers. Some of the latter passengers jumped overboard, and some died 
because they became caught in the ship's propellers. 

Shortly  after  the  attack  began,  the  three  gunmen  were  picked  up  by  their 
accomplices on a speedboat that pulled up alongside the City of Poros before 
disappearing. 

The  rescue  operation  was  carried  out  by  those  that  were  not  hurt  on  board 
the ship and by other ships that arrived shortly after the distress signal. Many 
of  the  passengers  in  the  water  were  rescued  by  these  other  ships  and  taken 
to  shore,  where  emergency  services  were  waiting  to  transport  them  to 
hospitals. The final toll was nine killed and around 50 injured, many of which 
were  seriously  injured.  Mostly  tourists  were  killed,  including  three  268  from 
France,  one  from  Denmark,  one  from  Sweden,  one  from  Hungary,  and  two 

268   The French deceased passengers were: Laurent VIGNERON, Isabelle BISMUTH and Annie AUDEJEAN. 

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from Greece. The French victims were 2 students and a 21-year-old secretary. 
28 of the injured passengers were French. 

The attack on the City of Poros was preceded by a large car bomb explosion in 
Piraeus  earlier  in  the  day  at  the  pier  that  the  ship  usually  berths  at.  Due  to 
the  isolated location  of  the  pier  and  the  lack  of  tourists  waiting  on it  (as  the 
ship  was  at  sea),  the  only  fatalities  were  the  two  occupants  of  the  vehicle, 
both of whom were killed instantly. 

There  were  suggestions  that  the  bomb's  intended  target  was  the  ship,  but 
there was no evidence to prove this. It was also suggested that the attack on 
the ship was the "Plan B" after the failed car bomb. On 13 July 1988 the Fatah 
terrorist organization claimed responsibility for the act. 

Investigations 
The  investigations  that  followed  the  accident  were  led  by  the  French  and 
Greek  authorities.  Greek  investigators  originally  suspected  that  a  French 
passenger  was  involved  in  the  accident.  Since  the  beginning  of  the 
investigations  four  men  were  the  suspected  terrorists.  On  7  September,  a 
French  judge  sent  a  letter  rogatory  to  Greece,  and  on  30  October  French 
investigators went to Greece. 

Both  the  Athens  Police  and  the  Piraeus  Police  involved  in  the  investigations 
cooperated  with  the  French  authorities.  However,  the  cooperation  was 
difficult269. The French authorities took the lead in the investigations. Sweden 
and Bulgaria were also involved in the investigations. 

The weapons used in the attack were of Libyan origin, and at least one of the 
assailants entered Greece on a Libyan passport. It was suggested that one of 
the  reasons  of  the  attack  was  to  pressure  the  Greek  government  into 
releasing some terrorists from jail270.  

We  did  not  have  access  to  the  Greek  police  files  concerning  this  case271,  but 
based on the gathered information, no list of passengers was available on the 
ship  and  no  sufficient  controls  had  been  carried  out  by  the  ship’s  staff272.  To 
the  best  of  our  knowledge,  no  criminal  or  civil  proceedings  concerning  the 
case were opened in Greece273 further to the attack.  

In  February  2012,  France  brought  three  of  the  terrorists  to  trial  in  absentia. 
The three men were: Adnan Sojod who was charged with voluntary homicide, 
Samir  Khaidir  and  Abdul  Hamid  Amoud  who  were  both  charged  with 

269   Pleading of the French Avocat Gèneral Olivier Bray, hearing of 1 March 2012, criminal proceeding concerning the case 

City of Poros. 

270   http://www.higginsctc.org/patternsofglobalterrorism/1988pogt.pdf. A case had been running in the Greek courts concerning 

the known ANO member Muhammed Rashid, who was fighting extradition to the United States for terrorist activities. The 
Greek justice Minister later arranged for his release and transport to Libya, which was at this time engaged in a terrorist 
campaign against Western Europe and the USA as part of their revenge for Operation El Dorado Canyon. 
 Based on the information provided informally by the French Judge who heard the criminal case in France in 2012 the 
Greek file included at least pictures of the accident. 

271  

272   The information is provided on the webpage http://cityofporos.fenvac.org/. The page reports the pleading of the French 

273  

Avocat général Olivier Bray. 
It is worth pointing out that pursuant to French criminal law a criminal proceeding cannot be opened in France if for the 
same fact a criminal proceeding has been opened in another State (ne bis in idem principle).  

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273 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
attempted voluntary homicide linked to a terrorist enterprise. In addition, the 
latter  two  men  were  convicted  of  "aiding  and  abetting".  Around  sixty  French 
victims  filed  their  claims  in  the  proceeding.  Many  French  passengers  did  not 
file their claims. 

Handling of claims  
At  the  outset,  we  note  that  based  on  our  research,  we  were  unable  to 
conclude  that  City  of  Poros  passengers  were  compensated  pursuant  to  the 
civil liability  rules  that governed  the  liability  of  the  carriers  for  passengers  in 
Greece  at  the  time  of  the  attack.  The  legal  grounds  for  such  conclusion  are 
explained  below.  The  factual  grounds  for  such  conclusions  are  based  on  the 
information  provided  by  the  consulted  stakeholders.  Also,  our  desk  research 
did  not  identify  any  reference  to  any  judicial  proceedings  opened  in  Greece 
further to the attack. 

In  addition,  our  analysis  found  that  no  action  has  been  brought  against  the 
carrier in France, a country from which many passengers were citizens of. 

Instead,  our  information  concerning  the  outcome  of  compensation  claims 
were  based  on  information  provided  by  French  stakeholders  and  on  the 
documents  of  the  criminal  proceeding  that  took  place  in  France  in  2012 
concerning the City of Poros case. 

Based  on  information  provided  by  stakeholders  and  confirmed  by  desk 
research,  many  French  passengers  did  not  claim  compensation  immediately 
after  the  attack  but  claimed  compensation  only  in  2012,  after  the  criminal 
proceeding concerning the terrorist attack was opened in France. 

In addition, none of the French passengers sought or obtained compensation 
from the carrier274. 

On  1  March  2012,  a  French  Court,  the  COUR  D'ASSISES  DE  PARIS,  issued  a 
decision  concerning  the  right  to  compensation  for  the  French  victims  of  the 
attack  who  had  filed  their  claims  in  the  criminal  proceeding  concerning  the 
case. 

The claimants were French passengers who under criminal law are qualified as 
victims of the attempted murder. 

This  decision  condemns  the  authors  of  the  crime,  the  above  listed  Adnan 
Sojod, Samir Khaidir and Abdul Hamid Amoud to compensate the claimants. 

The amount of the compensation varied depending on the damage claimed. 
The  compensations  awarded  to  passengers  and  relatives  of  deceased 
passengers are described below. 

274   Minutes case study interview Françoise Rudetzki. Ms Rudetzki handled the claims of French passengers on behalf of the 

FGTI. She refers that the French victims referred that they did not obtain any compensation before addressing the FGTI. In 
addition, a reading of the French decision of 1 March 2012 shows that reference is only made to the compensation 
received by French victims from the FGTI. No reference is made in such decision to the fact that claimants had received 
compensation from other stakeholders than the FGTI. 

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The Criminal court awarded to each claimant: 
  an  amount  varying  from  10,000  to  30,000  Euros  for  serious  moral 

damage; 

  an  amount  of  5,000  Euros  for  the  so  called  “exceptional  permanent  loss”. 
The exceptional permanent loss is a non-economic loss that is not defined 
in  the  French  “nomenclature  Dintilhac”,  a  list  elaborated  by  the  French 
judiciary that identifies and defines the categories of losses that victims of 
personal injuries may suffer; 

  an  amount  of  10,320  Euros  for  permanent  disability  and  of  3,420  for 

temporary disability; 

  an amount of 1,500 Euros for the so called esthetic loss; 
  an  amount  of  2,000  Euros  for  the  so  called  “loss  of  wellbeing”,  i.e.  loss 
related  to  the  fact  that  the  claimant  has  lost  the  ability  to  practice  the 
activities that he usually carried out before the event causing the personal 
injury occurred.  

In  addition,  the  court  awarded  a  payment  varying  from  600  to  3,000  Euros 
under Article 375 of the French Criminal procedure code. This Article enables 
a criminal court to condemn the author of a crime to reimburse the party who 
filed a civil claim in a criminal proceeding for the costs incurred to the extent 
that such costs have not been paid by the State.  

That  said,  since  the  authors  of  the  crime  were  tried  in  absentia,  the 
compensation awarded in the above decision was not paid to claimants. 

However,  French  passengers  have  been  compensated  under  French  law 
protecting  victims  of  terrorism  and  notably  by  Le  Fonds  de  garantie  des 
victimes  des  actes  de  terrorisme  et  d'autres  infractions  (FGTI)275  in  the 
1990s276 and after the end of the above criminal proceeding in 2012. 

275   The FGTI was set up by a law of September 9th 1986 and applies to all acts of terrorism committed after December 31st 
1984. The Fund, financed by national solidarity contributions, compensates the victims of terrorist acts and the families of 
the people killed in these attacks. It does not cover the material damage caused. 
It provides compensation to victims of acts of terrorism perpetrated in France (all victims or their beneficiaries, regardless 
of their nationality and their administrative status in France) and to all French victims or their beneficiaries for acts of 
terrorism perpetrated abroad. In addition, the Fund provides full compensation for harm caused to the victims in the event 
of injury or for the families in the event of death. Compensation is offered to victims independently of judicial proceedings. 
The victims keep their rights according to criminal proceedings and can bring an action against terrorists. The Guaranty 
Fund manages the files directly and the compensation is not subject to tax. The victims have 10 years to apply for 
compensation from the Fund. However, in 2012 the law governing the fund was amended and pursuant to Article 9 of the 
law of September 9th 1986, as amended, the victims of acts of terrorism can seek compensation within one year after a 
criminal decision concerning the relevant case has been issued. 
We have been informed by a representative of the Association S.O.S. Attentats that this amendment of French law was 
made in order to allow the victims of the attack City of Poros to ask compensation as many of them had not sought 
compensation before 2012. Form a procedural standpoint, whenever an act of terrorism is committed in France, the FGTI 
is informed of the identity of the victims by the District Prosecutor. If the terrorist attack occurred abroad, the Guaranty 
Fund is informed of the identity of the victims by the Ministry of Foreign Affairs. People who consider themselves as victims 
of terrorism can apply directly to the FGTI. 
Victims or their beneficiaries must send their claims for compensation to the Guaranty Fund by certified mail. 
The claim must include a letter stating: the person’s first and last name, nationality, marital status, address and occupation, 
the date and place of the attack; or the date of the hostage-taking and liberation; all the information about the state health 
insurance records (number, center, address, applicable plan); whether the incident is an occupational accident and, if so, 
the employer’s name and address; the amount of any benefits received from state health insurance (daily benefits or a 
disability pension) and insurance companies; a photocopy of the passport, resident’s permit, French ID card, or family 
record book; a police report or witness’ account; the initial medical certificates, hospital reports and sick leave certificates; 
proof of loss of wages and earnings; photocopies of all bills (personal attendant, childcare, transportation, etc.); 
documentary proof of all losses suffered and the person’s bank account details (IBAN code).  

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Publicly available information show that a French passenger was granted the 
amount  of  10,000  French  francs  by  the  FGTI  on  9  August  1988,  and  the 
amount of 50,000 French francs on 18  October  277.  In addition, our  research 
found  that  around  20  additional  passengers  were  granted  compensation  by 
the FGTI shortly after the accident278. 

The  relatives  of  all  the  deceased  French  victims  were  compensated  by  the 
FGTI  shortly  after  the  accident.  Such  compensation  was  granted  to  the 
parents and siblings of the victims279. The compensation received by relatives 
from the FGTI included non-economic losses, i.e. the so called moral damage 
but not the economic loss since all the deceased passengers were young and 
did not have an obligation to provide for any of their relatives280. However, we 
did  not  get  information  concerning  the  exact  amount  of  the  payment  they 
received. 

As  anticipated,  many  passengers  sought  compensation  from  the  FGTI  after 
the conclusion of the above French criminal proceeding concerning the City of 
Poros. From a legal standpoint, the decision of 1 March 2012 is not binding on 
the  FGTI.  Thus  the  handling  of  the  subsequent  claims  submitted  by 
passengers was not affected by the above decision. This implies that the FGTI 
was  not  bound  to  grant  each  claimant  the  respective  amount  of  the 
compensation awarded by the French court in such decision281.  

Advance payment 
Further to Article 9 of French law of 9 September 1986, the FGTI must grant 
an  advance  payment  to  victims  of  acts  of  terrorism  within  one  month  of 
receiving the claim. Additional advance payments may be made according to 
the person’s medical situation. As mentioned above, our research showed that 
at least one passenger received an advance payment in August 1988, i.e. one 
month after the attack was carried out.  

Out of court settlements 
To the best of our knowledge neither the carrier nor its insurer compensated 
passengers and their relatives for loss of life or personal injuries. Settlements 
were  concluded  between  the  FGTI  and  the  French  claimants  (see  section 
above). 

Evidence 
Based on the gathered information and on a reading of the French decision of 
1 March 2012, the victims were required to produce a medical report, in order 

The Fund is directly in charge of the files. It makes an offer within three months after the victims or their beneficiaries 
submit proof of loss. If the victims do not agree with the Fund’s offer they can file a civil claim, and can then appeal the 
court’s decision. Payments can be made as a lump-sum; an annuity or a combination of both.  
Information provided informally by the FÉDÉRATION NATIONALE DES VICTIMES D'ATTENTATS ET D'ACCIDENTS 
COLLECTIFS. 

276  

277   This information is available in the French decision of 1 March 2012. 
278   Reference to such payment is made in the French decision of 1 March 2012. 
279   None on the French City of Poros victims had children. 
280   Minutes case study interview Françoise Rudetzki. 
281  

Information provided by the legal expert of the FÉDÉRATION NATIONALE DES VICTIMES D'ATTENTATS ET 
D'ACCIDENTS COLLECTIFS. The latter was not available for an interview but kindly accepted to provide information.  

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to  substantiate  their  claim  for  physical  loss  in  the  criminal  proceeding 
concerning the City of Poros. 

On  the  other  hand,  pursuant  to  French  law,  in  order  for  victims  to  obtain 
compensation  from  the  FGTI,  they  must  provide:  evidence  that  they  were  in 
the  place  where  the  terrorist  took  place,  all  the  information  about  the  state 
health  insurance  records  (number,  centre,  address,  applicable  plan);  the 
amount of any benefits received from state health insurance (daily benefits or 
a  disability  pension)  and  insurance  companies;  a  photocopy  of  the  passport, 
resident’s  permit,  French  ID  card,  or  family  record  book;  a  police  report  or 
witness’  account;  the  initial  medical  certificates,  hospital  reports  and  sick 
leave certificates; proof of loss of wages and earnings; photocopies of all bills 
(personal  attendant,  childcare,  transportation,  etc.);  and  documentation  to 
prove all losses suffered. 

Information to passengers 
Not applicable. 

Counterfactual 
To  assess  the  Regulation’s  added  value,  we  compared  the  actual  outcome  of 
the  City  of  Poros  case  with  the  virtual  outcome  of  such  case  had  the 
Regulation  been  applicable.  We  carried  out  such  comparison  in  three 
scenarios.  

In the first scenario, we compared the actual outcome to the virtual outcome 
of the case, taking into consideration the City of Poros’ classification today. In 
the  second  scenario,  we  assessed  the  Regulation’s  impact  assuming  that  the 
City of Poros was a Class A ship and the accident occurred after 31 December 
2012 and before 31  December 2016.  In the third scenario, we assumed that 
the attack took place after 31 December 2016, i.e. the date as from which the 
Regulation applied in Greece to Class A ships involved in domestic voyages. 

In  assessing  the  actual  outcome  of  the  case,  we  took  into  account  the 
relevant legislation applicable at the time of the accident, in order to fill in any 
information  gaps  concerning  the  handling  of  passengers’  claims  versus  the 
carrier and its insurer282. 

An  analysis  of  Greek  legislation  in  force  at  the  time  and  applicable  to  ships 
involved  in  domestic  voyages,  provides  the  conclusion  that  based  on  Greek 
law, passengers were not entitled to compensation from a maritime carrier in 
the case of a terrorist attack, unless the claimant could prove that the carrier 
had committed a very serious security breach and the breach had allowed the 
terrorist attack. 

Pursuant  to  Greek  law  at  the  time  of  the  attack,  maritime  carriers  were 
neither  required  to  keep  a  list  of  passengers  nor  required  to  check  the 
luggage of passengers.  

282  

Indeed due to the time elapsed it was impossible to identify the insurer of the ship and to interview the carrier. In addition, 
there is no legal literature on this case shedding light on the outcome of possible passengers’ claims to which the accident 
gave rise nor hard sources such as Greek judicial decisions on the case. 

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277 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
Thus, we believe that passengers had no grounds to seek compensation from 
the  carrier  under  Greek  law  in  connection  with  the  City  of  Poros  case.  In 
addition,  pursuant  to  Greek  law  applicable  to  ships  engaged  in  domestic 
voyages, passengers were not entitled to an advance payment and the carrier 
was not required to be insured. As a consequence, passengers did not have a 
direct claim against the insurer of the carrier and/or the ship. 

Greek law did not require carriers to inform the passengers of their rights nor 
any  specific  rules  concerning  the  compensation  for  loss/damage  to  mobility 
equipment. Moreover, it did not foresee a general mechanism to compensate 
victims of terrorism before 2009. 

Scenario No. 1 
The  City  of  Poros  would  likely  be  classified  as  a  Class  C  ship  under  Directive 
2009/45/EC283. Thus, the City of Poros would likely fall out of the scope of the 
Regulation since Greece did not decide to apply the Regulation to Class C and 
D ships. Therefore, the Regulation would not impact the outcome of the case 
since Greek law would still apply.  

Scenario No. 2 
In  scenario  2,  to  assess  the  possible  added  value  of  the  Regulation,  we 
assumed that the City of Poros was not a Class C ship but a Class A ship that 
was carrying a voyage of more than 20 nautical miles.  

Since the Regulation applies in Greece to Class A ships as of December 2016 
and  Class  B  ships  as  of  December  2018,  the  Regulation’s  application  would 
not  affect  the  outcome  in  the  City  of  Poros  case  if  the  attack  occurred  after 
2013. 

Scenario No. 3 
The Regulation would however impact the outcome of the City of Poros case if 
the attack had occurred after 31 December 2016 and the City of Poros was a 
Class  A  ship.  Under  the  Regulation,  for  non-shipping  incidents,  the  carrier  is 
liable  if  he  is  at  fault.  The  claimant  has  the  burden  of  proof  to  establish  the 
carrier’s fault. It follows that the Regulation does not affect the basis for the 
carrier’s  liability.  Concerning  the  possibility  to  prove  the  fault  of  the  carrier, 
we note that a list of passengers was missing in the City of Poros case. 

For instance, as of  1999, further to Directive  98/41284, the ship operator has 
an  obligation  to  keep  a  registry  of  passengers  on  passenger  ships  departing 
from  an  EU  port  on  a  voyage  of  more  than  20  nautical  miles.  It  follows  that 
from  a  theoretical  standpoint,  a  claimant  could  successfully  argue  that  the 
carrier  committed  a  serious  breach  of  security  and  thus  allowed  a  terrorist 
attack. Consequently he could seek compensation from the carrier. 

283  

It is worth pointing out that in 1988 there were not EU harmonized standards and classification for passenger ships and 
craft operating domestic services and that the first Directive harmonizing such standards was Council Directive 98/18/EC 
of 17 March 1998 on safety rules and standards for passenger ships. 

284   Council Directive 98/41/EC of 18 June 1998 on the registration of persons sailing on board passenger ships operating to or 

from ports of the Member States of the Community. 

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The  Regulation’s  application  to  the  City  of  Poros  case  would  imply  that  the 
ship would be insured for terrorist attack risks and that the passengers would 
have a direct claim against the insurer. They would not be entitled to advance 
payment.  Thus,  the  application  of  the  Regulation  to  the  City  of  Poros  case 
could have facilitated the negotiations of all the passengers with the insurer of 
the  carrier  and  likely  allowed  them  to  get  compensation  without  delay.  The 
amount  of  the  compensation  for  personal  injuries  and  loss  of  life  would  be 
capped  under  the  Regulation.  The  Regulation  would  also  have  facilitated  the 
specific position of French passengers in the City of Poros case to the  extent 
that  they  had  suffered  damage  to  property.  However,  the  Regulation  would 
not have improved the situation of French passengers in connection with their 
personal  injuries  and  loss  of  life  as  French  law  requires  full  compensation  of 
losses for personal injuries or death.  

Conclusive remarks 
The  City  of  Poros  case  study  shows  that  the  protection  of  passengers  in 
terroristic  attacks  on  board  domestic  Class  C  and  D  ships  remains  uneven 
across  the  EU.  The  Regulation has  not  substantially improved  the  position  of 
passengers  of  ships  engaged 
international  voyages  and  will  not 
substantially improve the position of passengers of Class A and B ships in the 
future, to the extent that the fault of the carrier would still need to be proven 
by the claimant. 

in 

On the other hand, the fact that the passengers (in international and in some 
domestic  voyages)  will  have  the  possibility  to  directly  address  the  insurer 
might  facilitate  the  handling  of  their  claims  and  speed  up  the  compensation 
process. 

Ogia Case study  
Introduction: the facts 
The  Ogia  accident  occurred  on  1  May  2015  on  board  the  French  passenger 
ship Ogia. The accident occurred close to the Île d’Yeu. 

16  passengers  were  injured  in  the  accident  285.  The  ship  has  the  capacity  to 
carry 309 passengers and it does not carry vehicles. The ship is classified as a 
category  3  ship  under  the  French  law  of  23  November  1987,  i.e.  it  is 
authorized to travel up to 60 miles from the coast. This law was in force when 
the ship Ogia was built in 2003. 

Based  on  the  information  provided  by  the  French  Bureau  d’enquêtes  sur  les 
évènements  de  mer286  the  ship  is  a  Class  B  ship  under  Directive 
2009/45/EC287.  

In France, the Regulation applied since 2013 to domestic voyages for  Class A 
and B ships. Thus the accident that occurred on board the Ogia falls within the 
scope of the Regulation. 

285   Based on the findings of the “Rapport d’enquête simplifié” drafted by the French Bureau d’enquêtes sur les évènements de 

mer” and published in September 2015. 

286   Which is part of the French Ministère de l’Écologie, du Développement durable et de l’Énergie. 
287   Email of 6 July 2016. 

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279 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
Ogia  is  a  ship  which  belongs  to  the  Compagnie  Vendéenne,  a  company 
belonging to the company Croisières.  It is operated primarily for  connections 
between  Saint-Gilles-Croix-de-Vie  and  Île  d'Yeu  (60  minute  crossing).  On  1 
May 2015 at 08:30, 220 passengers boarded in Saint-Gilles-Croix-de-Vie. The 
number  of  passengers  boarded  was  deliberately  limited  by  the  captain  by 
taking into account the number of available seats. 

There was a group of 50 people belonging to an association of retired persons 
who  reached  the  pier  by  coach.  Based  on  the  captain  of  the  ship,  the  group 
was informed about the conditions at sea. The carrier noted that the driver of 
the  coach  was  offered  to  change  the  trip  but  he  did  not  accept.  The  group 
embarked while other passengers were already on board. 

At  9:00,  the  Ogia  was ready  to  set  sail  with  220  passengers  to  Port-Joinville 
(Ile Yeu). The safety instructions were broadcast on TV screens placed in the 
living  room  and  in  the  upper  deck  of  the  ship.  The  captain  made  an 
announcement to passengers to inform them of the precautions to take during 
the  trip  in  the  light  of  the  conditions  at  sea.  Based  on  what  referred  by  the 
passengers  to  the  BEAmer,  they  did  not  understand  the  content  of  the 
announcement.  

At  around  9:40,  4.2  miles  from  the  Pointe  Crows  (Ile  d'Yeu),  two  waves 
(higher  than  3  meters)  raised  the  vessel  which  then  fell  heavily.  Due  to  the 
shock, several passengers were ejected from their seats and 16 of them were 
injured.  The  chief  engineer  informed  the  captain  of  the  accident  and  asked 
him to reduce the speed. The speed was then reduced to 13 knots. 

At 9:53, the captain made a request for assistance to SDIS 85 (which alerted 
the CROSS Etel). 

The  crew  took  care  of  the  injured.  At  10:05,  the  Ogia  was  sheltered  by  the 
island and the speed was increased up to 20 knots in order to arrive to Port-
Joinville faster. 

At  10:08,  the  85  CODIS  alerted  by  the  CROSS  organized  the  arrival  of  the 
wounded. 

At  10:15  the  Ogia  docked  in  Port-Joinville.  The  crew  grouped  the  injured 
passengers in the same area. At 10:19, firefighters were on board. At 12:00, 
firefighters  disembark  the  last  of  the  injured.  At  24:17,  five  of  them  were 
transported via helicopter to the mainland; others injured were brought to the 
hospital of Ile d'Yeu. Most of the injured passengers were brought back to the 
continent  by  the  evening  boat.  As  anticipated  16  injured  passengers  were 
injured. The injuries included bruises, mouth injuries, and sprains.  

Two passengers, a 35 year old father and his son, were sitting in the front of 
the  upper  deck.  The  father  suffered  injuries  that  produced  a  temporary  total 
disability for one week. 

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Nine passengers were sitting in the front of the main deck. One of them was 
still  hospitalized  four  weeks  after  the  incident.  Four  passengers  sitting  in  the 
middle of the main deck were injured. 

The  accident  did  not  cause  any  damage  to  luggage  or  other  passengers’ 
belongings.  

Investigations 
The  main  conclusions  of  the  safety  report  drafted  by  the  Bureau  d’enquêtes 
sur les  évènements de  mer is that had the speed of the ship been limited to 
12  knots,  the  trip  would  have  been  more  comfortable  and  this  would  have 
reduced  the  risk  for  passengers  to  be  ejected  from  their  seats.  It  was  noted 
that at 12 knots, the arrival time would have been delayed about 20 minutes. 

The report also concluded: 
1.  The  use  of  benches  in  the  front  of  the  main  dock  increases  the  risk  of 

injury when a ship rolls or pitches; 

2.  It  would  be  beneficial  to  have  seats  with  a  system  that  would  allow 

passengers to maintain their position while a ship rolls or pitches; 

3.  Chairs  located  where  the  platform  movements  are  not  as  strong  could  be 

offered to the most vulnerable passengers. 

Handling of claims  
 Based  on  the  information  gathered288,  one  year  after  the  Ogia  accident 
occurred,  the  insurer  received  claims  by  six  injured  passengers.  Ten 
passengers who were slightly injured did not file any claim.  

The  accident  did  not  cause  any  damage  to  the  property  of  the  passengers 
such as luggage.  

The company also received claims by the social security organisations and the 
insurers  of  some  passengers  that  were  hospitalized  to  the  extent  that  such 
organisations  had  anticipated  the  medical  costs  borne  by  some  of  the 
passengers. However, no further details were provided in this respect. 

Our analysis also found that passengers’ claims were treated by the insurer as 
claims  related  to  a  shipping  incident,  despite  the  fact  that  the  accident  that 
occurred  on  board  the  Ogia  does  not  qualify  as  shipping  incident  under  the 
Regulation. 

The  Ogia  accident  consisted  of  the  raising  of  the  vessel  and  its  fall  which 
caused  passengers  to  fall  from  their  seats.  This  cannot  be  qualified  as  a 
shipping incident since this notion includes shipwrecks, capsizing, collisions or 
stranding of the ship, explosions or fires in the ship, or a defect in the ship. 

This opinion is shared by the French Ministry of Transport. 

288   Minutes from confidential interview 

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281 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
The  reason  why  the  Ogia has  been  treated  as  a  shipping incident is  that  the 
definition of shipping incident under French law is broader than the one of the 
Regulation, as it includes “every major incident involving the ship”.  

Under  French  law,  the  qualification  of  an  accident  as  a  shipping  incident 
presumes the carrier is at fault. However, there have not been measures that 
have  clarified  that  the  definition  of  a  shipping  incident  in  the  Regulation  is 
different  from  the  one  of  the  French  Transport  Code,  and  that  operators 
should not use the definition of the French Transport Code to assess whether 
and to what extent the Regulation applies.  

Thus,  it  occurs  that  practitioners  qualify  a  shipping  incident  under  the 
Regulation  as  an  accident  that  would  qualify  as  a  shipping  incident  under 
French  law  but  that  would  not  qualify  as  shipping  incident  under  the 
Regulation. In this respect, we note that the European Court of Justice and/or 
French  judges  could  interpret  the  notion  of  shipping  incident  under  the 
Regulation  as  encompassing  any  accident  involving  the  whole  ship  and  not 
only individual passengers. However, pending a judicial decision we conclude 
that the accident occurred on the ship Ogia is not a shipping incident.  

Advance payment 
Based  on  the  consulted  stakeholders,  three  passengers  were  awarded  an 
advance payment.  

It  was  also  noted  that  the  reason  why  the  insurer  granted  the  advance 
payment  was  a  commercial  one,  i.e.  the  company  did  not  want  to  initiate  a 
dispute  on  the  advance  payment  with  the  passengers.  Thus,  the  insurer  did 
not  assess  whether  the  passengers  were  entitled  to  an  advance  payment 
under  EU  law.  In  our  opinion,  the  insurer  granted  such  a  payment  partially 
because it qualified the accident as a shipping incident.  

Out of court settlements 
To the best of our knowledge, no Ogia claim has been settled in court. 

Based on information provided by the insurer of the ship, six passengers filed 
compensation claims. 

Personal injuries  
No Ogia passenger has been compensated yet for personal injuries other than 
the medical costs incurred.  Three passengers  were compensated for the cost 
of medical fees and their case was closed. 

The  claims  submitted  by  the  other  three  passengers  have  not  been  settled 
yet.  Such  passengers  were  hospitalized  and  have  undergone  thorough 
medical inspections aimed at assessing the physical damage suffered.  

The  medical  report  of  one  passenger  was  finalized  in  2015.The  medical 
assessments  concerning  the  other  two  passengers  will  take  place  in  October 
2016. The latter three passengers have not yet quantified their claims. 

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Loss of life 
The  accident  did  not  cause  any  loss  of  life.  Therefore  no  claim  for  such 
damage was filed. 

Damage to property  
The  accident  did  not  cause  any  damage  to  property.  Therefore  no  claim  for 
such damage was filed. 

Evidence 
Based  on  the  gathered  information,  the  victims  were  required  to  produce  a 
medical report in order to substantiate their claim. 

Information to passengers 
The stakeholders’ consultation did not provide evidence that passengers were 
informed of their rights under the Regulation before their departure. 

On  the  contrary,  based  on  the  information  gathered,  passengers  submitting 
claims in their personal capacity are in general not aware of their rights under 
the  Regulation.  Rather,  professionals  (i.e.  the  so  called  providers  of  legal 
protection insurance) who submitted claims on behalf of passengers tended to 
file claims in order to enforce the passengers’ rights. 

While  this  information  does  not  prove  that  information  was  not  provided  by 
the  carrier,  such  information  indicates  that  there  is  a  knowledge  gap  among 
passengers such that the implementation of the Regulation has likely not yet 
filled in. This is also confirmed by the fact that only six injured passengers out 
of  16  filed  compensation  claims.  In  addition,  the  analysis  found  that  France 
has  not  adopted  specific  rules  aimed  at  verifying  how  carriers  inform 
passengers on their rights under the Regulation. 

Against  this  background,  the  analysis  concluded  that  while  there  is  no 
conclusive  evidence  that  the  carrier  provided  information  to  the  passengers 
concerning their rights under the Regulation.  

Counterfactual 
From  a  legal  standpoint,  the  Ogia  accident  is  a  non-shipping  incident  under 
the Liability Regulation. Since the accident occurred in a domestic voyage on 
a Class B ship, the liability of the carrier would fall under the scope of French 
legislation had the Regulation not been applicable. Indeed Pal 2002 does not 
apply to domestic voyages. 

Under  French  law,  the  accident  would  qualify  as  a  shipping  incident  to  the 
extent  that  it  involved  more  passengers  and  the  event  causing  the  accident 
involved the whole ship289. Had French law been applied to the Ogia accident, 
the  carrier  would  have  been  liable  only  to  the  extent  that  it  could  not  prove 
that there was no negligence or fault of its own.  

289   Article L5420-1 to L5421-12 of the Transport Code. 

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283 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
Pursuant to French law, damages to persons were limited pursuant to Article 
7 of the Convention on Limitation of Liability for Maritime Claims, 1976 to the 
amount of 175,000 Units of Account (around 210,000 Euros). No limits could 
be  invoked  in  case  the  damage  was  the  consequence  of  intentional,  reckless 
conduct. 

The  law  limited  the  liability  to  1,140  Euros  per  passenger  for  cabin  luggage, 
460  Euros  par  passenger  for  personal  effects  and  non-registered  cabin 
luggage, and 4,600 Euros for both the passengers’ vehicles and the luggage it 
may contain. There were no limits for valuable objects given to the personnel 
of the ship to hold for the passenger. 

Concerning  insurance  matters,  French  law  did  not  foresee  an  insurance 
obligation  specific  to  the  carrier,  but  Directive  2009/20  applies  to  ships  of 
more than 300 GT and  pursuant to such Directive, ships have to be insured. 
This  insurance  obligation  covers  standard  civil  liability  insurance  for  the 
operator of the ship. 

In  addition,  the  law  did  not  require  that  the  passengers  have  a  direct  action 
against the insurer of the ship. To the contrary, the insurance policies of ships 
required  that  the  insured  operator  had  to  compensate  the  claimant  and  that 
afterward he could be reimbursed by the insurer. 

French  law  did  not  require  an  obligation  to  grant  an  advance  payment, 
specific  rules  on  the  compensation  of  the  mobility  equipment  and  on  the 
provision of information to passengers. 

Since the Ogia case has not been settled in Court, it is not possible to assess 
whether  the  carrier  will  be  held  liable  for  fault.  Based  on  the  findings  of  our 
analysis,  the  carrier  had  informed  passengers  of  the  strong  weather 
conditions  advising  them  to  stay  inside  the  ship  and  reduced  the  number  of 
passengers before departure, in order to ensure that all passengers would fit 
into the ship. However, a French judge could find that the carrier’s staff could 
have handled the situation in a way that would prevent the occurrence of the 
accident, i.e. could have reduced the speed of the ship. 

In this context, the fact that French law requires a presumption of fault of the 
carrier for damages to persons implies that the insurer/the carrier would have 
been  likely  to  try  to  settle  the  case  out  of  court  had  French  law  been 
applicable.  Thus  under  French  law,  a  passenger  would  have  likely  been 
compensated by the carrier or his insurer, at least in out of court settlements. 

Under the Regulation in a case such as Ogia, the carrier would be liable only 
to  the  extent  that  the  claimant  could  prove  the  fault  of  the  carrier.  Thus  a 
correct application of the Regulation would have made it more difficult for the 
passenger  to  obtain  compensation  than  under  the  previously  applicable 
French rules. 

However,  since  the  insurer  treated  the  accident  as  a  shipping  incident,  the 
application  of  the  Regulation  has  strongly impacted  and  could  further  impact 

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the  handling  of  the  compensation  claims  in  the  OGIA  case.  Indeed,  treating 
Ogia  as  a  shipping  incident  implies  that  the  carrier’s  liability  is  classified  by 
the insurer as strict, and that the carrier can only be exempted from liability if 
he  proves  that  the  accident  was  caused  by  force  majeure  or  an  action  of  a 
third party. 

Thus,  to  the  extent  that  the  insurer  has  treated  the  Ogia  case  as  a  shipping 
incident,  the  legal  position  of  passengers  is  better  protected  under  the 
Regulation than under French law. 

In  addition,  the  insurer  has  granted  passengers  an  advance  payment.  Such 
payment  was  not  required  under  French  law  neither  in  the  case  of  shipping 
incidents nor in the case of non-shipping incidents. 

Thus  to  the  extent  that  passengers  were  compensated  before  a  settlement 
agreement  was  reached  and  for  the  medical  costs  incurred,  it  can  be 
concluded  that  they  were  better  protected  under  the  Regulation  than  under 
French law. 

Concerning damage to property, since property was not damaged in the Ogia 
case,  the  analysis  could  not  identify  any  impact  of  the  application  of  the 
Regulation  on  compensation  of  damage  to  property  including  mobility 
equipment or to other property.  

The  entry  into  force  of  the  Regulation  has  improved  the  protection  of 
passengers in France to the extent that the liability limits for both damages to 
person and property have been increased. 

However,  based  on  the  information  received,  no  impact  can  be  observed  in 
the Ogia case because the accident did not cause any damage to property and 
secondly  because  so  far  passengers  have  not  filed  claims  above  the  liability 
limit foreseen by French law. 

Finally,  as  observed,  French  law  did  not  require  the  carrier  to  inform  the 
passenger of their right to compensation. From a purely legal standpoint, the 
Regulation  has  improved  the  protection  of  passengers  by  providing  for  such 
obligation. 

However, the case study could not gather evidence that passengers had been 
informed  before  departure  of  their  rights  under  the  Regulation.  Thus,  such 
improvement appears to still be theoretical. 

Conclusive remarks 
The  Ogia  case  demonstrates  that  the  application  of  the  Regulation  has 
substantially  strengthened  the  position  of  passengers  to  the  extent  that  the 
more  favourable  provisions  of  the  Regulation  concerning  shipping  incidents 
have been applied. 

The case also shows that had the Regulation been strictly applied, the position 
of injured passengers would have been to some extent less favourable under 
the Regulation than under French law.  

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The case also shows that that insurers are willing to settle  claims and do not 
question the nature of the accident to the extent that the claims are modest. 

Finally, the case also showed that passengers  might  not be well informed of 
their  rights  since  six  out  of  sixteen  injured  passengers  filed  compensation 
claims with the insurer. 

Sorrento Case study  
Introduction: the facts 
Sorrento290  was  a  ro-pax  ferry  which  was  built in  2003  as  Eurostar  Valencia. 
The  ferry  was  renamed  Sorrento  in  2006.  It  was  owned  by  the  Grimaldi 
Group.  On  March  2014  it  was  chartered  to  Atlantica  di  Navigazione  and 
operated  by  Acciona  Trasmediterránea  on  the  Palma  de  Mallorca  Valencia 
route  (289,3  km).  Acciona  Trasmediterránea  was  carrying  passengers  in  its 
own name, i.e. it issued the carriage tickets291.  

It had the capacity to carry 1,000 passengers and 160 vehicles. 

On  28  April  2015,  Sorrento  caught  fire  during  a  voyage  from  Palma  de 
Mallorca to Valencia. It caught fire off Mallorca, Spain. It was carrying around 
156  passengers  in  addition  to  7  cars,  100  lorries,  4  small  lorries  and  a 
motorbike. 
The  ship  was  15  nautical  miles  (27  km)  off  Mallorca  when  the  fire  was 
discovered  on  one  of  the  car  decks.  An  emergency  was  declared  and  a 
number  of  vessels  went  to  its  assistance  including  the  ferries  Publia  and 
Visemar One. Publia rescued most of the 156 passengers and crew. However, 
four crew members were injured and were taken by helicopter to a hospital in 
Palma  de  Mallorca.  Some  passengers  suffered  minor  injuries  but  the  exact 
number  is  unknown.  The  passengers  were  from  Spain,  Romania,  China, 
Colombia,  Ecuador,  Senegal,  Argentina,  Albania,  Australia,  Bulgaria  and 
Algeria292, 

Based  on  provisional  information  available  on  the  Spanish  Ministerio  de 
Fomento  website,  the  accident  did  not  cause  any  deaths  or  injuries.  No 
passengers are missing.  

In  the  aftermath  of  the  accident,  the  carrier  provided  assistance293  to  the 
passengers by providing accommodation in a hotel and for transport services 
carrying passengers home. 

Investigations 
The  case  is  being investigated  by  Italian  and Spanish  authorities,  notably  by 
the Direzione Generale per le Investigazioni Ferroviarie e Marittime within the 

IMO number: 9264312. 

290  
291   Minutes from confidential interview. 
292   http://www.menorcadiario.es/el-sorrento-llevaba-a-bordo-pasajeros-de-12-nacionalidades-diferentes. 
293   http://www.elmundo.es/baleares/2015/04/29/5540eb7e22601d353e8b4574.ht. 

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Italian  Ministry  for  Transport  and  the  Spanish  Comisión  Permanente  de 
Investigación de Accidentes e Incidentes Marítimos (CIAIM). 

Italian  authorities  are  heading  the  investigation.  Both  authorities  refused  to 
provide any details on  the case, including the number of passengers injured. 
Based  on  information  found  in  the  press  in  May  2015,  investigations  were 
delayed  due  to  difficulties  related  to  the  ability  to  gain  access  to  the  ship's 
hold. The causes of the fire are still under investigation. However, it appears 
that the fire started in a lorry that was on board the vessel. 
It  seems  that  a  criminal  investigation  has  been  opened  concerning  the 
accident294. 

Handling of claims  
Based on the information  gathered295, some  claims for personal injuries and 
many    claims  for  damage  to  property  were  submitted  in  connection  to  the 
incident. 
.  No  complaints  have  been  submitted  by  passengers  in  Spain  concerning 
alleged  infringements  of  their  rights  under  the  Regulation.  However  the 
Spanish  Ministerio  De  Fomento  received  one  complaint  by  a  German 
passenger  concerning  the  reimbursement  of  the  price  of  his  ticket296.  No 
judicial  decision  concerning  the  case  was  issued.  Nevertheless,  some 
passengers have filed their claims in judicial proceedings297. 
The  ship owner that the latter did not receive any claims from passengers. 

Advance payment 
No  advance  payment  has  been  granted  in  connection  with  the  shipping 
incident. 
It  is  referred  as  well  that  none  of  the  passengers  sought  an  advance 
payment298.  

Out of court settlements 
Personal injuries  
Two  claims  for  personal  injuries  have  been  settled  with  the  carrier’s  insurer. 
No further information was provided. 
Based on available information, the personal injuries were not serious. 

Loss of life 
The  incident  did  not  cause  any  deaths.  Therefore  no  claims  for  loss  of  life 
have been filed. 

Damage to property  
Some  claims  for  damage  to  property  have  been  filed  but  none  of  them  have 
been  settled.  There  is  no  detailed  information  concerning  the  objects  of  the 
claims or the reasons why they have not yet been settled. However, we were 
informed that the claims concern both damage to luggage and vehicles. 
No claims concerning mobility equipment were filed299. 

294    Minutes from confidential interview. 
295   Minutes from confidential interview. 
296   Minutes interview- Gerardo Aynos Maza, Jefe de Área de Tráfico y Seguridad de la Navegación. 
297   Minutes from confidential interview. 
298   Confidential source of information. 

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Evidence 
The stakeholders’ consultation did not allow gathering information concerning 
the  evidence  that  passengers  had  to  provide  in  filing  their  claims  with  the 
insurer. 
As explained, only two claims were settled. 

Information to passengers 
No  information  was  provided  by  the  consulted  stakeholders.  Thus  the 
stakeholder  consultation  did  not  allow  gathering  evidence  supporting  that 
passengers  where  informed  of  their  rights  under  the  Regulation  before 
departure.. 

Counterfactual 
In  order  to  assess  the  added  value  of  the  Regulation,  we  compared  the 
legislative  framework  concerning  the liability  of  carriers  applicable  to  Class  A 
ships  on  domestic  voyages  before  and  after  the  Regulation’s  entry  into  force 
in Spain.  

According to Spanish law applicable to domestic and international voyages300, 
the  carrier’s  liability  was  based  on  fault.  For  domestic  voyages,  the  carrier’s 
liability  was  covered  by  the  rules  on  the  contract  of  carriage.  Such  rules 
foresaw  liability  based  on  fault,  but  fault  was  not  presumed.  Rather,  the 
passenger had the burden of proof to establish fault.  

It  has  been  noted  that  maritime  accidents  have  often  led  to  criminal 
proceedings. Thus, passengers have been involved in the criminal proceedings 
and have sought compensation under tort law. They have brought carriers to 
court  based  on  the  infringement  of  their  obligation  to  protect  them.  It  was 
also noted that it was easier for passengers to seek compensation under tort 
law than under contractual liability rules301. 

Regarding  insurance,  prior  to  2013,  carriers  were  required  to  provide 
insurance  covering  damages  in  the  case  of  an  accident.  Thus,  passengers 
would  have  a  direct  action  against  an  insurer  because  they  would  have 
insurance coverage included as part of their travel ticket. 

This  insurance  would  oblige  the  insurer  to  pay  compensation  to  the  injured 
passenger.  The  carrier  was  the  policy  holder  and  paid  a  premium  to  the 
insurer  which  was  included  in  the  price  of  the  ticket.  This  insurance  did  not 
cover the liability of the carrier but the mere fact that an accident occurred on 
board that caused injury or damages. Passengers were the beneficiaries of the 
insurance  contract.  In  the  case  of  death,  the  spouse  and  children  and  other 

299   Confidential source of information. 
300   Spain had ratified the Athens Convention 1974. 
301   See Minutes interview Hernández Gutiérrez José Francisco (Spanish Ministerio de Fomento). 

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family  members  were  the  beneficiaries  according  to  the  order  of  precedence 
provided for in Article 22 of royal decree 1575/1989. 

For  domestic  voyages  the  applicable  limits  to  liability  were  the  ones  of  the 
LLMC  1996.  The  losses  for  personal  injuries  compensated  under  Spanish law 
are  economic  damages  (medical  expenses  plus  days  of  work  lost)  and  moral 
damage.  Spanish  law  did  not  foresee  any  obligation  to  grant  an  advance 
payment for shipping incidents. It did not provide an obligation for the carrier 
to provide information to passengers. 

Against  this  background,  the  application  of  the  Regulation  to  the  Sorrento 
accident substantially improved the protection of passengers. Under Sorrento 
the  carrier’s  liability  is  strict  while  under  Spanish  law  it  is  based  on  fault. 
Thus, the claimant would need to prove the fault of the carrier. Compensation 
was  eventually  obtained  by  the  passengers  or  their  relatives,  but  this  was 
based  on  an  insurance  contract  for  which  the  passenger  had  to  pay  an 
additional fee. 

In addition, from a theoretical standpoint, the passenger has more protections 
under  the  Regulation  because  they  are  entitled  to  an  advance  payment  and 
because they are better informed. 
However, as seen, no advance payment has been granted in the case at hand 
and  not  enough  information  was  provided  to  conclude  that  passengers  were 
informed  of  their  rights  before  departure.  Thus  these  improvements  remain 
theoretical. 

Conclusive remarks 
The  provisions  of  the  Regulation  enhance  the  protection  of  passengers 
compared  to  the  Spanish  legislation  which  would  have  been  otherwise 
applicable to the Sorrento case. 

The  possibility  to  assess  the  effectiveness  of  the  Regulation  in  ensuring 
adequate protection of passengers is affected to some extent by the fact that 
only  few  settlement  agreements  have  been  reached  between  the  insurer  of 
the carrier and the passengers and no advance payments were granted. 

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ANNEX 8 

INTERVIEW SCRIPT 

This document serves as a checklist for the interviewer both in preparation of 
and during the interview. 

Background of the evaluation 
Regulation  392/2009  has  been  adopted  as  part  of  the  third  maritime  safety 
legislative package. This Regulation lays down rules for the establishment and 
organisation  of  a  strict  liability  regime  for  carriers  of  passengers  by  sea, 
coupled  with  a  mandatory  insurance  obligation  for  the  carrier,  and  a  right  of 
direct recourse of the passenger against the carrier’s insurer. This regime is in 
fact  established  in  the  Athens  Convention  relating  to  the  Carriage  of 
Passengers  and  their  Luggage  by  Sea,  and  is  reproduced  in  Annex  1  of  the 
Regulation. Objectives of the regulation are: 

  To  ensure  that  passenger  rights  are  protected  in  the  event  of 

accidents; 

  To  create  a  level  playing  field  for  operators  promoting  best  practices 

and responsible behaviour; 

  To incentivise increased safety and security performance of passenger 

transport operators; 

  To  assist  in  setting  up  and  complementing  a  balanced  framework  of 
passenger  rights  protection  also  regarding  the  right  to  information, 
special compensation for reduced mobility passengers and the right to 
an advance payment. 

Interview preparation 

  When  approaching  stakeholders  for  an  interview,  the  team  will  first 
communicate the context of the evaluation by sending the interviewee 
guidance  note  and  the  EC  Letter  of  Support  in  advance  of  the 
interview. In this document, the interviewee is also made aware of the 
confidentiality  clause  our  consortium  applies  with  information  being 
treated anonymously and in an aggregated manner. 

The targeted interviews consist one of the major information collection blocks 
for this evaluation. They provide the opportunity to discuss in depth with the 
stakeholders  on  the  impacts  Regulation  392/2009  has  had  to  their 
organisation  and  the  maritime  passenger  transport  sector  overall  and 
compared  to  the  exploratory  interviews  they  are  meant  to  be  oriented 
towards covering the data needs to address the evaluation questions. 

The  interviews  are  meant  to  be  conducted  in  a  semi-structured  approach, 
following  below  headings  (order  not  mandatory,  but  all  items  would  need  to 
be  addressed)  to  ensure  that  it  provides  inputs  for  answering  the  entire  ex 
post evaluation questions. During the interview we should make sure that the 
relevant  topics  are  addressed,  and  elaborated  in  depth,  depending  on  the 
stakeholder’s capacity and knowledge of the topic. 

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291 

 
 
 
 
 
 
 
 
 
 
 
 
Topics of discussion 
The  interview  should  provide  input  to  all  the  key  evaluation  questions, 
including  their  underlying  questions  as  also  formulated  in  the  evaluation 
framework: 

Context 
Identity  of  the  stakeholder  (name,  position,  organisation,  role  in  relation  to 
the Regulation). 

Start with open question (ice-breaker). 

What is your general experience with the application of the Regulation: 

 

 

In terms of meeting the Regulation’s requirements; 

In  terms  of  applying  the  Regulation  in  relation  to  specific  accidents 
incidents. 

(let the interviewee elaborate and make useful statements those can be taken 
as  a  basis  for  further  in-depth  questions  related  to  the  evaluation  questions 
hereafter) 

Relevance: 

(1) To  what  extent  are  the  problems  that  were  defined  at  the  time  of 
developing  this  Regulation  (passenger  rights;  level  playing  field  and 
passenger safety) and the objectives that were formulated accordingly 
still relevant today?  

Please  explore  this  for  the  objectives:  enhanced  passenger  rights;  improved 
level playing field for operators and increased passenger safety. The question 
can also be approached as: if the Regulation would be developed today would 
it then still try to tackle the same problems and define similar objectives? 

(2) Have  there  been  developments  (for  example  in  policy,  legal  or 
technological fields) since the introduction of the Regulation that affect 
the way the Regulation is implemented? 

(3) To  what  extent  is  the  current  scope  of  application  of  the  Regulation 
(i.e. international and classes A and В of domestic carriage) adequate 
for the attainment of the objectives? 

Please  check  if  the  Regulation  can  reach  its  objectives  (enhanced  passenger 
rights;  improved  level  playing  field  for  operators  and  increased  passenger 
safety)  by  covering  ONLY  international  carriage  and  domestic  Class  A  and  B 
carriage.  

If feasible, bring into the discussion the pros and cons of bringing in C and D 
classes of domestic carriage into the scope of the Regulation.  

Effectiveness: 
(3+4) To what extent have the objectives of the Regulation been achieved? 

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Please  check  with  the  interviewees  where  relevant,  their  opinion  on  the 
impact  of  the  Regulation  on  (accounting  where  possible  for  the  specifics  in 
brackets): 

  Passenger  right  been  better  protected  (developments  in:  level  of 
advanced  payments,  level  of  compensations,  time  to  payment, 
protection of luggage and vehicles, provision of information); 

  Levelling  the  playing  field  (impact  on  insurance  premiums  for 
vessels  of  different  classes,  significance  of  no-war  risk  liability  for  3rd 
country  vessels,  exception  in  the  domestic  market:  i)  deferred 
application  to  classes  A  and  B,  ii)  exception  of  classes  C  and  D, 
iii)application on HSC, iv) application on non-steel vessels); 

  Increasing  safety  and  security  performance  (actions  undertaken 
to improve safety and security performance, contribution of Regulation 
to  increasing  safety  standards,  impact  of  vessel  safety  standards  to 
insurance premiums); 

  Setting  up  and  complementing  a  balanced  framework  of 
passenger  rights  protection  (impact  on  number  and  type  of 
complaints received, settlement of cases outside courts). 

Especially  for  countries  applying  the  Regulation  beyond  classes  A  and  B  (i.e. 
classes  C  and  D,  HSC,  non-steel  vessels),  has  the  application  scope 
contributed to increased objectives achievement. 

Especially  for  stakeholders  that  operate/are  relevant  for  more  than  one 
Member  State  it  is  important  to  enquire  their  view  on  uneven  application  of 
the Regulation in different Member States. 

(5) Has the Regulation led to any positive or negative unexpected effects? 
Asking initially in an open way, then try to obtain the interviewees opinion on 
Regulation impact on: 

  attainability of insurance premiums; 

  passenger fares; 

  administrative burden to comply with the Regulation; 

  other… 

Additionally  please  enquire  for  any  issues  arising  from  the  application  of  the 
Regulation  (i.e.  delays  in  advanced  payment  attribution  due  to  delays  in 
identification of entitled relatives). 

Efficiency: 
(6)  Do  the  costs  of  the  measures  adopted  in  the  Regulation  to  achieve  the 
aforementioned objectives remain reasonable and proportionate in relation to 
the benefits of the Regulation? 

 

Impact in insurance premiums: 

for non-war Blue Card and war risk insurance; 

- 
-  passenger fares (ask for figures or other indications if possible); 
-  and impact on the market (passengers/carriers). 

insurer  or 
Depending  on 
government), the stakeholder may have different views. Please explore in the 
discussion what s/he thinks and why ideally get quantitative figures but if not, 

the  stakeholder  perspective  (ship  owner, 

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293 

 
 
 
 
 
 
 
 
 
 
 
 
then a qualitative judgment. Important is to get an impression of the changes 
compared  to  the  situation  before  the  Regulation  entered  into  force.  So  how 
much have costs changed? 

  Administrative and enforcement burden for authorities (FTE); 

  Mainly for governments (how much staff time/other costs for a) issuing 
certificates/registration  and  b)  monitoring/enforcement  and  c)  related 
to specific accidents (if applicable). 

  Compliance  cost,  administrative  fees  and  workload  hassle  (costs  and 

FTE at a company or vessel level); 

  Mainly  for  ship  owners  (how  much  staff  time/other  costs  related  to 

complying with the Regulation). 

Coherence: 
(7) To what extent does the Regulation fit in well within the framework of the 
EU maritime safety policy and passenger  rights policy and, more specifically, 
within  the  Union's  approach  to  transport  operators'  liability?  Whether  there 
are any overlaps, gaps or inconsistencies? 

Please  try  to  separate  between  the  different  themes  in  this  question;  i.e. 
explore the coherence  

-  between the Regulation and the EU maritime safety policy; 
-  between  the  passenger  right  protection  scheme  in  Regulation  and 
other  modes  of  transport  (besides  air,  also  rail  and  buses/coaches), 
e.g. in terms level of compensation, burden of proof; 

-  between  the  operators’  liability  regimes  in  the  Regulation  compared 

to the regimes in other modes. 

(8) Are the objectives of the Regulation (still) coherent with the EU Transport 
policy,  notably  the  White  Paper  on  Transport  (not  published  when  it  was 
adopted),  and  ten  policy  areas  that  are  set  as  priorities  by  the  current 
European Commission (as announced in July 2014)? 

Please explore the coherence between the Regulation and the White  paper of 
reduced 
transport,  e.g.  contribution 
mobility/elderly  people,  develop  uniform  interpretation  of  EU  passenger  law, 
assemble common principles of transport law (e.g. right to be informed). 

transport  of  persons  with 

to 

Please explore the coherence between the Regulation and the ten EU priority 
policy  goals.  (Please  note,  if  interviewees  indicates  they  do  not  know  the 
answer, this is also a finding). 

EU added value: 

 

(9)  What  added  value  compared  to  the  international  and  national 
regimes for liability of carriers of passengers at sea has the Regulation 
brought? 

Please  elaborate  on  applicability  of  Regulation  to  domestic  shipping,  advance 
payments,  right  to  be  informed  on  rights,  passengers  reduced  mobility  and 
the introduction of Athens 2002 and see what in the opinion of the interview 
is a value added and why. 

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Complementarity: 
(10) To what extent has the Regulation been successful in supplementing the 
Athens Convention and any national regimes on liability of passenger carriers 
in case of accidents at sea applicable in the Member States? 

-  National and other legislation relevant to liability the stakeholder has to 

comply and how this works in combination with the Regulation; 

-  Application  of  the  Regulation  in  the  broader  policy  context  (passenger 
rights protection, EU transport policy, international and national liability 
regimes, Protocol to the Athens Convention). 

Do you see any other effects/developments as a result of the Regulation? 

Final notes, comments, suggestions. 

Who else should we consult? 

(organisation, name, and main reason why that person would be valuable to speak to). 

After the interview 
Make  detailed  minutes  of  the  interview  in  writing,  send  these  in  draft  to  the  interviewee  for 

comments/approval, and then revise as appropriate. Then share with the other consortium partners. 

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ANNEX 9  BACKGROUND NOTE FOR INTERVIEWEES  

Background of the study 
Regulation  392/2009  has  been  adopted  as  part  of  the  third  maritime  safety 
legislative package. This Regulation lays down rules for the establishment and 
organisation  of  a  strict  liability  regime  for  carriers  of  passengers  by  sea, 
coupled  with  a  mandatory  insurance  obligation  for  the  carrier,  and  a  right  of 
direct recourse of the passenger against the carrier’s insurer. This regime is in 
fact  established  in  the  Athens  Convention  relating  to  the  Carriage  of 
Passengers  and  their  Luggage  by  Sea,  and  is  reproduced  in  Annex  1  of  the 
Regulation. Objectives of the regulation are: 

  To  ensure  that  passenger  rights  are  protected  in  the  event  of 

accidents; 

  To  create  a  level  playing  field  for  operators  promoting  best  practices 

and responsible behaviour; 

  To incentivise increased safety and security performance of passenger 

transport operators; 

  To  assist  in  setting  up  and  complementing  a  balanced  framework  of 
passenger  rights  protection  also  regarding  the  right  to  information, 
special compensation for reduced mobility passengers and the right to 
an advance payment. 

The  European  Commission  has  initiated  the  ex-post  evaluation  of  Regulation 
392/2009  on  the  Liability  of  Carriers  of  Passengers  by  Sea  in  the  Event  of 
Accidents  and  has  contracted  the  consortium  of  Ecorys  (leading  partner), 
Grimaldi  and  Erasmus  School  of  Law  (ESL)  for  this  task.  The  evaluation  will 
provide  the  Commission  with  an  independent  evidence-based  assessment  of 
the application of Regulation 392/2009 in the first three years since it became 
applicable,  2013-2015.  This  evaluation  shall  also  provide  input  to  the 
Commission  to,  as  per  Article  1  (3),  if  appropriate,  present  a  legislative 
proposal in order, inter alia, to extend the scope of this Regulation to ships of 
Classes C and D under Article 4 of Directive 98/18/EC. 

Objective and approach of the interview 
Through the interviews we aim to engage with practitioners and stakeholders 
regarding  the  liability  of  passenger  carriers  by  sea.  The  key  objective  is  to 
identify  what  has  been  the  outcome  of  3  years  of  implementation,  in 
retrospect.  To  this  purpose,  we  would  like  to  go  through  your  experience 
dealing with the provisions of the Regulation to discuss the effects it has had 
on  your  organisation  and  maritime  passenger  transport.  Items  for  the 
interview include: 

  The  development  of  the  sector  relevant  to  the  objectives  of  the 

Regulation; 

 

Impacts  of  the  Regulation  to  the  maritime  transport  sector  and  your 
organisation  (passenger  rights,  vessel  safety,  vessel 
insurance 
premiums, passenger fares, claim procedures, etc.); 

  Practical  experience  with  the  Regulation  (administration  costs, 

workload induced, complexity of compliance, etc.); 

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 

Issues  with  Regulation  scope  (domestic  carriage,  non-steel  vessels, 
high-speed craft etc.); 

  Application of the Regulation in the broader policy context (passenger 
rights  protection,  EU  transport  policy,  international  and  national 
liability regimes, Protocol to the Athens Convention). 

In particular, the ex post evaluation addresses six main evaluation criteria: 
1.  Relevance: to what extent are the objectives of this initiative still relevant 
today?  And  to  what  extent  is  its  scope  (i.e.  application  to  international 
shipping and classes A and B of domestic shipping) adequate? 

2.  Effectiveness: to what extent have the objectives of the Regulation been 
achieved?  To  what  extent  have  the  measures  adopted  in  the  Regulation 
ensured  the  same  level  of  passenger  rights  protection  regardless  of  the 
area  of  operation  of  the  ship?  Has  it  led  to  any  unexpected  positive  or 
negative effects? 

3.  Efficiency:  do  the  costs  of  the  measures  adopted  in  the  Regulation  to 
reasonable  and 

the  aforementioned  objectives 

achieve 
proportionate in relation to the benefits of the Regulation? 

remain 

4.  Coherence:  To  what  extent  does  the  Regulation  fit  in  well  within  the 
framework  of  the  EU  maritime  safety  policy  and  passenger  rights  policy 
and, more specifically, within the Union's approach to transport operators' 
liability? Whether there are any overlaps, gaps or inconsistencies? Are the 
objectives  of  the  Regulation  (still)  coherent  with  the  EU  Transport  policy, 
notably the White Paper on Transport (not published when it was adopted), 
and  ten  policy  areas  that  are  set  as  priorities  by  the  current  European 
Commission (as announced in July 2014)? 

5.  EU  added  value:  What  added  value  compared  to  the  international  and 
national  regimes  for  liability  of  carriers  of  passengers  at  sea  has  the 
Regulation brought? 

6.  Complementarity:  to  what  extent  has  the  Regulation  been  successful  in 
supplementing the Athens Convention and any national regimes on liability 
of passenger carriers in case of accidents at sea applicable in the Member 
States? 

Confidentiality 
ECORYS  adheres  to  the  EU’s  legislation  on  the  protection  of  personal  data 
(Regulation  (EC)  45/2001).  Any  data  collected  through  this  survey  will  be 
managed  in  line  with  these  requirements  and  will  not  be  shared  with  third 
parties. The survey results will thereto be stored in a confidential manner. 

The data collected will be aggregated and presented anonymously in the main 
report.  It  will  be  guaranteed  that  individual  answers  will  not  be  traceable  to 
the companies approached.  

Please  inform  us  should  your  company  policy  require  additional  safeguards 
with regard to compliance. We would be pleased to cooperate on this matter. 

Planning and contact details 
This  study  is  estimated  to  be  completed  by  the  end  of  October  2016.  The 
interviews are planned to take place in June, July and August 2016.  

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For more information, please contact the project team: 
Geert Smit (team leader) 
Geert.Smit@ecorys.com 
T: +31 10 453 88 00 

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299 

 
 
 
 
 
 
 
 
 
ANNEX 10  LIST OF INTERVIEWS 

This  section  presents  the  status  of  interviews  implemented.  The  table  below 
provides  an  overview  of  people  and  organisations  interview  (per  7  October 
2016): 
1.  Exploratory interviews, with approved minutes of the meeting; 
2.  Target and case study interviews, with approved minutes of the meeting; 
3.  Written input received from stakeholders. 

Name 

Organisation 

Stakeholder 
category 

Date 

Maria 

David 

Kriton 

Andrew 

Confidential 

Confidential 

Confidential  

IGPANDI 
ICS 

A&K  Metaxopoulos  & 
Partners law firm 

Italian  Ministry  of 
Transport 
UK  Department  of 
Transport 

Approved exploratory interviews 
1. Erik Rosaeg 
2. 
Bolomini 
3. Kiran Khosla 
4.  Confidential 
Interview 
5.  Confidential 
Interview 
6. 
Metaxopoulos 
Approved target/case study interviews 
7.  Confidential 
Interview 
8. 
Catalano 
9. 
Angel 
Andrew Kelly 
10. 
Hjört 
11. 
Kontorouhas 
12. Confidential 
Interview 
13. Confidential 
Interview 
14. Confidential 
Interview 
15. 
Bazargan 
Maria Pittordis 
16. Confidential 
Interview 
17.  Marie-Alice 
Bels 
Fabien Joret 

Swedish  Ministry  of 
Justice 
Greek NEB 

French  Ministry  of 
Environment 
(first interview) 

Confidential  

Confidential  

Confidential 

Confidential 

Michael 

Dario 

CLIA 

Mr. 

Academic 
Insurers 
Ship-owners 

15 March 2016 
22 March 2016 

Lawyer 

29 March 2016 

Lawyer 

30 March 2016 

Lawyer 

31 March 20106 

Lawyer 

1 April 2016 

Member State 

6 April 2016 

Member State 

12 April 2016 

Member State 

20 April 2016 

Member State 

22 April 2016 

Lawyer 

4 May 2016 

Academic 

5 May 2016 

Lawyer 

6 May 2016 

Ship owner 

1 June 2016 

Ship owner 

20 June 2016 

Member State 

24 June 2016 

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301 

 
 
 
 
 
 
 
 
 
Name 

Organisation 

Stakeholder 
category 
Lawyer 
Academic 
Member State 

Date 

/ 

5 July 2016 

7 July 2016 

Lebuhn & Puchta 

Maritime 
Agency 

Coast 

Mark 

Sarah 

18. 
Gahlen 
19. 
Flavell 
Tim Garnish 
20. Confidential 
Interview 
21. 
Lindenberg 
22.  Taco  van 
der Valk 
23. 
Joret 

Professor 

Fabien 

. 

Nils 

Brigit 

Matias 

Françoise 

24. Confidential 
Interview * 
25. Confidential 
Interview 
26. 
Confidential 
Interview * 
27. 
Moldenhauer 
28. 
Heijboer 
29. 
Sølling Olsen 
30.  Rolf-Jürgen 
Hermes 
31. 
Rudetzki* 
32. 
Haagen 
33. 
Hassing 
34. Confidential 
Interview 
35. Confidential 
Interview* 
36. 
Aynos Maza 
37. 
Kontorouchas 
38.  Hernández 
Gutiérrez  José 
Francisco 
39. Wouter van 
Hal 

Christos 

Gerardo 

Sibrand 

Peter 

Confidential  

Insurer 

7 July 2016 

Netherlands  Maritime 
Law Association 
French  Ministry  of 
Environment 
(second interview) 

Academic 

11 July 2016 

Law association  12 July 2016 

Member State 

12 July 2016 

Family of victim  12 July 2016 

Confidential  

Lawyer 

15 July 2016 

Family of victim  26 July 2016 

Vista Tours 

Tour operator 

2 August 2016 

Dutch P&I 

Insurer 

4 August 2016 

Danish  Ministry  of 
Transport 
PANDI Services 

Member State 

4 August 2016 

Insurer 

8 August 2016 

SOS Attendats 

Raets Marine Insurers 

Passenger 
representative 
Insurer 

8 August 2016 

10 August 2016 

HAL Groups 

Ship operator 

24 August 2016 

Confidential  

Lawyer 

- 

Spanish  Ministry  of 
Public Works 
Greek  Ministry 
Maritime Affairs 
Spanish  Ministry  of 
Public Works 

of 

/ 

Passenger 
Victim 
Member State 

Member State 

Member State 

Wagenborg 

Ship operator 

September 

September 

September 

September 

September 

September 

7 
2016 
12 
2016 
14 
2016 
20 
2016 
22 
2016 

26 
2016 

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Name 

Organisation 

Annet 

(Dutch 

Zuzanne 

Law  Faculty  of  the 
Nicolaus  Copernicus 
University 
IL&T 
Inspectorate) 

40. 
Peplowska-
Dabrowska 
41. 
Bronnewasser 
Aad Kramers 
Written input received from stakeholders 
42.  Stéphane 
Gicquel 
43. 
Dorota 
Lost-Sieminska 
Jan de Boer 
* These interviews are case study interviews only. 

FENVAC 

IMO 

Stakeholder 
category 
Academic 

Member State 

Date 

26 
2016 

29 
2016 

September 

September 

Passenger 
representative 
International 
organisation 

- 

- 

NB:  As  part  of  the  stakeholder  consultation  several  classifications  societies 
have  been  approached.  Both  Lloyd’s  Register  and  Bureau  Veritas  indicated 
that  they  do  not  have  any  experiences  with  Regulation  392/2009  and/or 
PAL2002 as this legislation does not affect to their main activities.  

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Table A9.1 Overview of interviews conducted per stakeholder group 
Stakeholder category 
EU Member State 
Ship owner / operator 
Passengers / Victims association 
Insurer 
Third (non-EU) state 
Law frim 
Academic 
Other 
Total 

Implemented 
12 
5 
5 
5 
0 
9 
5 
2 
43 

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ANNEX 11  MINUTES OF INTERVIEWS  

Minutes exploratory interview Erik Rosaeg 
Interviewee:  Erik Rosaeg 
Interviewers: 
Date and time: 

Frank Smeele, Fiona Unz (EUR) 
15 March 2016, 14.00 15.00 

Introduction 
Erik Rosaeg has been involved, on behalf of Norway, in the negotiation on the 
Athens  Convention.  Passenger  rights  became  an  important  topic  in  Norway 
after  the  accident  with  the  Scandinavian  Star  (a  ferry  between  operating 
between Norway and Denmark which caught fire in 1990, killing 159 people). 
Following the accident several victim associations were established in Norway. 
These  organisations  are  more  efficient  than  the  passenger  organisations, 
which  are  loosely  organised  and  are  often  not  able  to  sufficiently  protect 
passenger rights. 

The case of the Scandinavian Star is still ongoing today. The passenger claims 
have  been  settled,  however  the  Norwegian  Parliament  is  investigating 
whether  or  not  the  fire  was  caused  deliberately  in  order  to  claim  insurance 
benefits (i.e. insurance fraud).  

Erik Rosaeg has his own website on which he publishes much information. On 
his website information can be found on the meetings of the correspondence 
group;  a  group  of  experts  that  contributed  to  the  negotiations  of  the  Athens 
Convention.  

A vessels category that is often ‘forgotten’ is the group of high-speed vessels 
(e.g.  catamarans).  This  vessel  category  should  also  be  included  in  the  study 
as they generate a specific sort of claims, i.e. whiplash claims.  

Notes on P&I coverage 
P&I  clubs  pool  passenger  vessels  with  general  cargo  vessels.  This  makes 
general cargo vessels also stakeholders when it comes to the liability regime 
of passenger vessels. The pooling arrangements of P&I Clubs are not publicly 
available, however according to Erik Rosaeg, who has seen examples of them, 
the description of the features of such pooling arrangement at the website of 
IGPANDI, including information on the premiums, payment conditions and the 
limits on the coverage, is accurate. 

The  P&I  Clubs  pool  both  EU  and  US  passenger  vessels  and  are  therefore 
exposed to the unlimited US liability regime and the limited EU regime (based 
upon the Athens convention). It should be checked with P&I clubs whether or 
not the cover for claims from US passenger ships is limited. 

Information on insurance premium levels can be found in ‘P&I Confidential’, a 
non-confidential newsletter. 

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Erik Rosaeg has found a correlation between ships (not) having P&I cover and 
their detention record under Port State Control. Of the ships detained by Port 
State  Control  a  higher  than  average  proportion  did  not  have  P&I  cover.  This 
provides a supporting argument in favour of mandatory liability insurance for 
ships calling at EU ports. Since P&I Clubs seem unwilling to provide  cover to 
ships  that  do  not  comply  with  their  safety  standards,  the  effect  of  making 
liability  insurance  mandatory  is  that  ship-owners  will  have  no  choice  but  to 
improve the safety standards of their ships if they wish to keep calling at EU 
ports. It may also be worthwhile to cross-reference the incident reports in the 
EMCIP  database  with  the  port  state  inspection  and  detention  records  of  the 
ships mentioned therein. 

Erik  Rosaeg  assumes  P&I  clubs  have  internal  guidelines  for  claims  settling, 
but  these  are  not  in  the  public  domain.  It  is  known  however  that  after  an 
incident,  passengers  affected  receive  a  standardized  offer  depending  on  the 
nature  of  their  claim.  There  are  offers  for  different  types  of  injuries,  lost 
luggage  etc.  It  seems  many  passengers  do  accept  such  an  offer.  It  is  worth 
checking this option.  

Other coverage than P&I 
IUMI  does  not  offer  insurance  for  liability.  They  mainly  focus  on  insuring the 
hull  and  machinery  (H&M).  They  have  never  shown  much  interest  in 
passenger  ships.  For  the  evaluation,  they  probably  cannot  provide  much 
input. 

During the discussions at IMO, which led to the amended Athens Convention, 
at  one  stage  it  was  considered  whether  a  kind  of  accident  insurance  to  be 
taken  out  by  the  carrier  for  the  benefit  of  the  passenger  could  offer  an 
alternative  form  of  compensation  for  passengers.  This  idea  was  however  nit 
included in the Athens Convention.  

The war risk cover is an important addition to the P&I liability cover. Gard in 
Norway has experience with this topic. Erik Rosaeg will provide contact details 
so  that  this  organisation  can  be  contacted.  US  Shoreline  (??)  has  similar 
arrangements to the war risk cover. This should be checked. 

It is important to keep in mind the relation between Regulation 392/2009, the 
Athens Convention and the IMO guidelines.  

Class C and D ships 
It is unsure if the inclusion of Class C and D ships will lead to major insurance 
issues.  Often  the  government  is  the  owner  of  the  ferry  connection,  so 
therefore the government is also responsible for insuring the vessel. In cases 
where  the  government  is  not  the  owner,  the  government  could  consider 
subsidizing these shipping lines to ensure they are insured. It is important to 
check if this is in line with state aid rules.  

Forum shopping 
It  is  questionable  if  forum  shopping  is  really  an  issue  under  the  Regulation. 
According  to  Erik  Rosaeg,  passengers  that  to  do  not  fall  within  the  scope  of 
the  Regulation  will  be  covered  by  the  Brussel  I  Regulation,  which  regulates 

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that they are consumers. As a consumer they will benefit from a certain level 
of protection which is similar in all countries. Therefore, there  is no incentive 
for a passenger to go forum shopping as all courts have to apply the same set 
of rules.  

It  should  be  noted  that  a  ship-owner  can  still  face  court  cases  in  more  than 
one  country  as  it  is  likely  that  passengers  will  start  a  procedure  in  their 
country  of  domicile.  For  ship-owners  this  may  provide  a  strong  incentive  to 
settle  claims  amicably  so  that  they  avoid  court  cases  in  multiple  countries, 
which otherwise could lead to high legal expenses. 

Follow-up 

  Team  members  will  check  website  of  Erik  for  useful  information.  Erik 
will  send  the  team  contact  details  for  other  stakeholders  to  be 
consulted, especially on war risk cover; 

  The team can contact Erik whenever needed for further information or 

contact details.  

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307 

 
 
 
 
 
 
 
 
 
 
 
Minutes exploratory interview David Bolomini, IGPANDI and Kiran Khosla, ICS 
Interviewees:  
Date and time: 
Interviewers: 
Unz (EUR). 

David Bolomini, Kiran Khosla 
22 March 2016, 11.30-13.00  
Frank  Smeele  (EUR),  Linette  de  Swart  (Ecorys),  Fiona 

Effects upon insurance  
The entry into force of the Regulation on 31 December 2012 has had no direct 
effect  upon  the  premium  levels  paid  by  ship-owners  and  operators  of 
passenger vessels. The Group’s passenger cover limits were already raised in 
response to the pending entry into force of the Athens Protocol 2002 (and the 
IMO Resolution and Guidelines agreed by the IMO Legal Committee in 2006). 
The passenger cover limits were subsequently increased for the 2007/8 policy 
year and currently up to $ 2 billion is available through the cover provided by 
the  International  Group’s  pooling  and  reinsurance  arrangements.  This  cover 
limit is based on a 3,600 PAX ship29F302. The International Group’s cover limit 
of  US$  2  billion  applies  to  all  passenger  ships  entered  on  a  mutual  basis  in 
any one of the Group’s 13 P&I clubs.  

Operators  of  passenger  vessels  licensed  to  carry  more  than  3,600  PAX  can 
obtain  excess  cover  outside  the  IG  reinsurance  programme  through  the 
regular commercial marine insurance market.  

While  the  US  is  not  party  to  the  Athens  Protocol  2002,  the  Protocol  can  still 
apply to passengers engaged in voyages to/from or in the US. For example, if 
the  ticket  is  bought  the  UK,  but  the  cruise  takes  place  in  US  waters,  the 
passenger falls within the scope of the Athens Protocol 2002 by virtue of the 
provisions  in  Article  2  ‘Application’.  While  relatively  few  States  (25/26)  have 
ratified  the  Athens  Protocol  2002,  its  incorporation  in  contracts  of  carriage 
(tickets) and the scope of application has had the effect of giving the Protocol 
much wider geographical cover. 
It should be noted that the US has no specific liability regime in place for the 
carriage  of  passengers  by  sea.  US  passengers’  claims  not  subject  to  the 
Athens  Protocol  or  the  EU  Regulation  are  likely  to  be  subject  to  US  law 
(absent other agreed provisions) if the voyage is within the US. If the voyage 
is  outside  the  US  jurisdiction,  the  governing  law  and  jurisdiction  specified  in 
the  respective  contract  of  carriage/ticket  is likely  to  apply.  As the  US has  no 
specific  liability  regime  for  passenger  claims,  the  ship-owner  will  not  be 
subject  to  a  strict  liability.  A  US  claimant  therefore,  if  he  is  to  recover  his 
claim for damage or loss, may need to pursue an action in court in accordance 
with US law, both as to the liability of the ship-owner and the quantum. The 
burden  of  proof  under  general  US  law  lies  with  the  claimant  passenger  (and 
not with the ship-owner). The US does permit class actions if needed. 

Non war Liability cover versus war risk cover 
Since the entry into force  of Regulation 392/2009 and followed in April 2014 
by  the  entry  into  force  of  the  2002  Athens  Protocol,  certain  categories  of 
passenger  vessels  registered  in  or  operating  in  the  Member  States  of  the 

302   Calculation: 3,600 PAX * the maximum limits of SDR 400,000 = SDR 1,440 billion which equals approximately $ 2 billion 

dollar. Calculation is in line with Article 4bis Annex 1 Regulation 392/2009. 

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European  Union  are  required  to  carry  on  board  an  Athens  Protocol  2002 
certificate  (the  certificate  is  contained  in  an  annex  to  the  Protocol  and  its 
format  was  agreed  by  the  Diplomatic  Conference  in  2002).  The  certificate 
must be issued by a ship’s State of registration, providing that State is party 
to  the  Protocol.  If  a  ship  is  not  registered  in  a  State  Party  it  must  obtain  a 
certificate from a State that has ratified the Protocol. When a State issues the 
‘Athens’ certificate it confirms that it is satisfied that a ship is duly insured in 
accordance  with  Article  4bis  of  the  Protocol.  States  issuing  this  certificate 
require ship-owners to provide evidence of liability insurance cover and this is 
provided by the International Group clubs in the form of so called blue cards. 
Without  such  blue  cards  a  ship  cannot  obtain  an  Athens  certificate.  Without 
such  certificate  a  passenger  vessel  registered  in  a  State  party  will  be  in 
breach of the applicable rules  on registration and may be prohibited by from 
entering the port of a State party or it may be detained by Port State Control 
Inspectors if it attempts to leave. 

The  liability  provisions  in  the  Protocol  do  not  exempt  certain  types  of  risk 
arising from acts of terrorism and thus include both “war” risks and “non-war” 
risks  see  the  2006  IMO  Guidelines  and  Reservation  annexed  to  Regulation 
392/2009.  The  State  certificate  must  verify  that  insurance  for  all  risks  is  in 
place. In marine insurance practice, the provision of non-war liability cover is 
separate  from  the  provision  of  war  risk  cover  (which  includes  cover  for 
terrorism  related  losses).  The  IMO  2006  Reservation  and  Guidelines 
recognises  this  and  that  the  International  Group  insurance  arrangements 
cover non-war risks only and also that war risk cover is obtained by the ship-
owner  from  the  commercial  war  risks  insurance  market.  However,  some 
International  Group  clubs  issue  blue  cards  for  owners’  liability  arising  under 
the  IMO  2006  Reservation  and  Guidelines.  Other  blue  card  providers  also 
issue  blue  cards  for  war  risks,  thereby  ensuring  that  owners  obtain  the 
requisite  certificate  from  a  State  Party  to  the  2002  Protocol  for  all  Protocol 
risks.  It  should  be  noted  that  war  risk  cover  and  liability  for  such  risks  is 
capped by virtue of the Reservation to USD 500 million.  

The  introduction  of  insurance  certification  is  a  result  of  the  Athens  Protocol 
2002, which includes an insurance obligation. Here, regulation 392/2009 had 
no  effect  other  than  to  enter  into  force  some  13  months  before  the  2002 
Protocol.  The  International  Group  clubs  had  already  agreed  to  issue  non-war 
risk  blue  cards  before  the  Regulation  was  adopted  in  order  to  ensure  that 
their entered ships would be compliant once the Protocol entered into force. 

If a ship-owner’s insurance cover with a P&I Club is terminated or some other 
reason necessitates the termination of blue cards, the P&I club will notify the 
State  that  issued  the  certificate  and  cancel  the  blue  card/s.  It  is  then 
incumbent  upon  that  State  to  recover  the  Athens  certificate  from  the  ship-
owner or if cover is terminated for example because of a change of insurance 
provider  a  new  blue  card  and  certificate  must  be  issued.  This  is  an 
administrative matter for States.  

All International Group clubs provide publicly accessible information regarding 
vessels  and  their  insurance  arrangements,  including  details  of  blue  cards 
issued  to  entered  vessels  (not  only  for  the  Athens  Protocol,  but  also  for  the 

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309 

 
 
 
 
 
 
 
 
 
 
 
Civil Liability Convention (tankers) Bunker Convention and the Wreck Removal 
Convention).  Typically  a  passenger  ship  will  carry  on  board  3  State 
certificates:  one  for  the  Athens  Protocol,  one  for  the  Bunker  oil  convention 
and  one  for  the  Wreck  Removal  Convention.  Blue  cards  issued  for  all  these 
conventions can be verified on the insuring club’s website.  

Claim levels 
It  is  premature  to  say  whether  there  has  been  an  increase  in  claims  or 
whether  claims  have  been  affected  as  a  result of  the  Regulation.  In  general, 
passenger  claims  seem  to  have  decreased,  both  in  number  and  quantum. 
While  individual  P&I  clubs  maintain  information  on  claims  this  is  confidential 
and is not publicly available. Maybe the individual annual reports of the clubs 
might provide some general information.  

The  Regulation  differs  from  the  2002  Athens  Protocol  by  introducing  an 
obligation  to  make  advance  payments  in  certain  described  circumstances. 
Despite  the  introduction  of  this  requirement,  it  is  not  new  for  the  sector,  as 
most  P&I  Clubs  already  made  such  payments  for  instance  in  the  incidents 
involving  the  Herald  of  Free  Enterprise  (1987)  and  the  Estonia  (1994).  P&I 
clubs respond quickly once an incident has happened as it is in the club’s and 
the assured’s best interests to do so.  

It  was  noted  that  insurance  premiums  are  calculated  according  to  many  risk 
factors  and  formulae,  including  specific  characteristics  (e.g.  ship  type,  age, 
trading route, ship management, safety record, historical claims record).  

Relationship ship-owner charter 
In passenger shipping a variety of charter contracts is used depending on the 
type of passenger trade. In the case of cruise ships, it is understood that the 
most often used contract is the bareboat charter. Other charter parties might 
also  be  used,  such  as  long  term  time  charter  parties  or  shorter-term  time 
charters. In view of the complexities of the trade and the specialised industry, 
it is expected that these contracts may  contain bespoke provisions regarding 
indemnity  provisions  although  ICS  does  not  have  precise  information  on  the 
exact  terms  that  might  be  agreed.  However,  none  of  these  chartering 
arrangements  detract  from  the  fact  that  a  claimant  maintains  a  right  of 
recourse to the performing carrier and insurer named on the State certificate. 
If the Consortium would like to have information on this topic, they can best 
contact  individual  ship-owners  and  ask  them  which  types  of  contracts  they 
use  and  how  these  aspects  are  regulated  in  those  contracts.  Equally  ICS  is 
happy to co-ordinate by obtaining this information from relevant associations 
such as CLIA and ferry operator associations.  

Passenger tariffs (fares) 
It is difficult to say whether fares have changed due to the entry into force of 
the  Regulation.  On  international  shipping  routes  the  effects  on  fares  are 
probably limited. The effects for domestic passenger routes might be greater 
as some categories of ships on such routes may need to have insurance cover 
for  the  2002  Athens  Protocol.  We  cannot  say,  however,  whether  fares  have 
increased  as  a  result  of  the  entry  into  force  of  the  Regulation  or  the  2002 

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Athens  Protocol.  Member  States  may  be  best  placed  to  provide  this 
information. 

Fleet of passenger vessels 
As far as ICS and IGPANDI are aware the passenger shipping market has not 
changed  as  a  result  of  the  Regulation.  Only  normal  market  trends  have 
influenced  the  passenger  shipping  market.  It  should  be  noted  that  it  is  very 
difficult  to  assess  such  influences.  The  UK  Department  of  Transport  asked 
similar  questions  during  their  impact  assessment  of  the  LLMC  1996 
Protocol30F303 and hardly received information. The Consortium is advised to 
check what the UK Department did (contact: Andrew Angel). 

Guidelines for claim handling 
There  are  no  ‘IG’  guidelines  for  clubs  on  how  to  deal  with  claims.  Each  P&I 
Club has its own operating methods and instructions or procedures which are 
in  line  with  industry  standard  procedures.  In  addition,  some  clubs  may  have 
manuals  or  check  lists. Clubs,  when  presented  with  a  claim,  will  assess  each 
case  on  its  own  merits.  In  the  assessment  much  depends  on  the  governing 
law/jurisdiction, how the claimant substantiates their claims and the evidence 
they  present  in  support  of  their  claim.  Claim  handlers  may  seek  advice  from 
external  legal  advisors  in  the  law/jurisdiction  governing  the  claim.  By  doing 
so, application of the relevant legal system is ensured.  

Disabled passengers 
Claims from disabled passengers are dealt with in the same  way as all other 
claims. Before the Regulation entered into force priority may have been given 
to  the  payment  of  claims  from  disabled  people  who  also  included  their 
mobility  equipment.  The  Regulation  does  not  provide  added  value  in  this 
respect. 

Overall, it is difficult to indicate where the added value of the Regulation can 
be  found.  Perhaps  the  most  important  effect  of  the  Regulation  is  that  it 
indirectly  helped  to  bring  the  Athens  Protocol  2002  into  force  by  virtue  of 
European Union Member States ratifying the Protocol. It is possible that in the 
absence  of  the  Regulation  the  Protocol  would  have  entered  into  force  later 
than  it  did  and  with  fewer  States  Parties.  It  is  still  incumbent  on  all  EM 
Member States to ratify the Protocol and they should be encouraged to do so.  

Final remarks 
Passenger  ships  are  only  a  small  part  of  the  business  of  the  International 
Group  clubs.  Passenger  tonnage  accounts  for  approximately  5%  of  the  total 
tonnage  entered  in  the  IG.  The  number  of  passenger  claims  is  limited  and 
therefore examples of such claims is also limited. The largest risk in terms of 
claims quantum is for wreck removal and related costs not personal injury. 

It  should  be  kept  in  mind  that  the  IG  clubs  first  and  foremost  represent  the 
interests  of  their  members,  i.e.  the  ship-owners.  This  relationship  is 

303   Protocol to the 1976 Convention on Limitation of Liability for Maritime Claims.  

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confidential  and  clubs  cannot  provide  specific  information  without  prior 
consent of the individual ship-owner.  

Both  IG  and  ICS  suggest  contacting  personal  injury  lawyers  to  cover  the 
passenger  perspective.  For  example  in  the  UK  the  Association  of  personal 
Injury Lawyers (APIL) could be contacted.  

Follow-up 

  Minutes of the meeting will be send to IGPANDI and ICS. 

 

 

 

 

ICS will provide the Consortium with additional names of stakeholders, 
who can be interviewed or approached for the questionnaire.  

IGPANDI  will  check  if  it  is  possible  to  provide  the  Consortium  with 
information on the premiums paid by ship-owners in the category ‘loss 
of life and personal injuries’.  

IGPANDI  will  look  if  information  on  charter  agreements  in  passenger 
shipping is available.  

IGPANDI and ICS are willing to distribute the Consortium questionnaire 
amongst  their  members.  They  advice  the  consortium  to  keep  the 
questions broad in order to ensure a higher response. 

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314 

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interview  Kriton  Metaxopoulos  (partner  at  A&K 

Minutes  exploratory 
Metaxopoulos & Partners law firm) 
Interviewee: 
Interviewers: 
Date and time: 

Kriton Metaxopoulos 
Wouter Verheyen, Fiona Unz 
March 31st 2016, 18:30 19:00 

Number and types of incidents handled by the firm 
Mr.  Metaxopoulos  denoted  the  fact  that  maritime  law  is  not  his  area  of 
expertise.  Therefore,  he  was  involved  in  the  case  of  Norman  Atlantic  only. 
More  specifically,  Mr.  Metaxopoulos  assisted  an  Italian  firm  with  the 
submission  of  penal  complaints  for  25  passengers  of  the  ship.  Out  of  these 
passengers,  4  have  reached  an  agreement  with  the  carrier  and  thus  settled 
their  claim  already.  The  interviewee  also  represents  the  family  of  a  missing 
person. 

Jurisdiction 
Mr. Metaxopoulos also noted that he advised all of his clients to choose Italy 
as jurisdiction forum, due to three reasons: Firstly, timing. In Greece a penal 
decision could take 15 years to be issued. Civil proceedings can commence at 
the  same  time  as  penal  proceedings,  however  judges  usually  wait  for  the 
penal  decision  to  be  published  until  they  decide  upon  the  merits  of  the  civil 
procedure.  Secondly,  the  penal  code  in  Greece  does  indeed  provide  for  a 
possibility  to  award  damages  in  penal  proceedings.  However,  that  happens 
very rarely in reality. Usually lawyers will merely claim a token amount of €50 
for  example  and  then  claim  the  actual  amount  for  damages  in  the  civil 
proceedings.  Thirdly  and  most  importantly,  the  investigation  and  all 
procedural measures are taking place in Italy. 

P&I Club approach 
Mr.  Metaxopoulos  shared  the  view  that  P&I  Clubs  do  not  offer  fixed 
compensation. As an example, he suggested that each passenger has suffered 
different  kinds  and  extent  of  bodily  injury,  which  would  mean  that  fixed  or 
standard  amounts  could  not  be  offered  for  all.  In  the  case  of  the  Norman 
Atlantic  in  particular,  the  injuries  under  consideration  are  of  moral  nature, 
therefore  there  is  a  lot  of  room  for  a  court  to  apply  the  law  at  its  discretion 
and determine the damages. 

Settlement amounts 
Regarding the settlements agreed upon, the interviewee explained that three 
offers  were  of  the  same  amount  and  one  is  slightly  higher.  They  were  all 
offered  as  compensation  for  moral  damages.  In  the  single  case  involving  a 
slightly  higher  amount,  the  passenger  rejected  the  amount  first  offered  and 
the  carrier  reverted  with  a  higher  offer,  provided  that  the  passenger  would 
agree  to  be  examined  by  an  Italian  doctor.  This  claim  was  also  based  on 
emotional  trauma,  the  passenger  had  experienced  post-traumatic  stress  and 
got the relevant diagnosis. 

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Evidence 
Carriers  do  not  request  a  lot  of  evidence.  Mr.  Metaxopoulos  mentioned  that 
practically carriers only request his clients to establish that they were actually 
passengers of that particular ship. No medical investigations were requested, 
except for one case. 

Distinction between emotional trauma and post-traumatic distress. 

All  of  the  cases  involve  emotional  trauma  and  the  passengers  get 
compensation  for  this  particular  kind  of  damage.  But  in  case  the  passenger 
can  prove  that  they  actually  suffered  post-traumatic  stress,  through  medical 
examination  and  diagnosis  then  the  compensation  will  be  higher,  as  in  the 
case of the passenger mentioned. In Italy in particular, courts use a complex 
point system for emotional trauma, which is taken into account by carriers as 
well. 

Advance payments 
According  to  Mr.  Metaxopoulos,  he  generally  has  not  handled  cases  where 
advance  payments  would  apply.  The  family  of  the  missing  person  are  in  the 
process of discussions regarding settlement but to the best of my knowledge 
there were no advance payments made up to this point. 

Evaluation of the Regulation 
Mr.  Metaxopoulos  stated  that  he  would  not  be  in  a  position  to  evaluate  the 
Regulation,  due  to  his  limited  experience  with  cases  falling  under  its  scope. 
However, he did mention that in his view, the Regulation serves mainly as a 
shield  for  carriers.  More  specifically,  carriers  can  use  it in  order  to  limit their 
offers  for  settlement  to  the  maximum  limit  under  the  Regulation  and  avoid 
court  proceedings  which  could  disregard  the  limits  and  award  higher 
compensation.  The  penal  courts  in  his  opinion,  would  not  apply  these  limits 
and would award much higher amounts. So in cases like the Norman Atlantic 
where  penal  proceedings  are  present,  these  limits  would  not  be  applied  by 
courts according to Mr. Metaxopoulos. 

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Minutes interview – Maria Catalano, Italian Ministry of Transport  
Interviewee: 
Interviewer:Dalila Frisani (Grimaldi) 
Date and time: 

6 April 2016, 12.30-13:30 

Maria Catalano 

Introduction 
Miss  Maria  Catalano  works  as  official  at  the  Italian  Ministry  of  Transport, 
Maritime  Transport  Department,  General  Directorate  Port  authorities, 
Infrastructures and maritime and inland transport. 

She has negotiated for Italy and on behalf of the Italian Ministry of Transport 
the  text  of  the  Regulation.  She  holds  a  law  degree  and  is  specialized  in 
maritime transport law. 

Notes on the application of the Regulation. 
Ms Catalano states that while Italian Ministry of Transport negotiated the text 
of the regulation when it had to be adopted, the Ministry is not responsible for 
monitoring its implementation.  

She also states that Italian law does not clarify which authority is responsible 
for the implementation of the Regulation, i.e. which authorities is in charge of 
handling  complaints.  It  could  be  argued  that  the  competent  authority  is  the 
Italian  Transport  Authority,  since  this  Authority  is  competent  to  receive 
complaints  under  EU  Regulation  no  1177/2010.  However,  as  specific 
provisions are missing, there is no legal certainty as to which Italian authority 
is  competent  for  monitoring  the  implementation  of  the  Regulation  and  for 
receiving complaints concerning the application of the Regulation. 

That  said,  she  states  that  the  Ministry  of  Transport  has  not  received  any 
complaint  further  to  the  implementation  of  the  Regulation,  and  not 
D’Alessi,ably she has not received any complaints by passengers. 

She recommends consulting the Italian Transport Authority in order to obtain 
information  from  such  authority  concerning  the  possible  complaints  received 
in connection to the implementation of the Regulation.  

She  also  states  that  the  Italian  authority  which  has  an  overview  of  the 
implementation  of  the  Regulation  and  notably  on  shipping  accidents  and  on 
accidents  on  board  of  ships  is  the  Corpo  delle  Capitanerie  di  porto  Guardia 
Costiera  (Coast  guard).  Indeed  the  Coast  Guard  received  accidents’  reports. 
The Cost Guard should also have statistics on accidents. 

Ms Catalano states that the Italian Ministry of Economic Development (MISE) 
should  have  relevant  information  on  the  impact  of  the  Regulation  on  the 
insurance sector. 

She  also  invites  the  Consultant  to  interview  Confirtarma,  Federlinea  and  the 
company  Tirrenia,  currently  Compagnia  Italiana  di  Navigazione  and  other 
companies providing local transport such as Siremar and Saremar. 

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Ms Frisani asks Miss Catalano if Italy has adopted any measure implementing 
the Regulation. 

Ms Catalano confirms that there are no measures implementing or facilitating 
the  application  of  the  Regulation.  The  only  implementing  measure  is  the 
Agreement  between  the  MISE  and  the  company  Consap,  a  Public  Service 
Insurance  Company,  for  the issuance of certificates attesting that the ship is 
insured. 

Compensation  of  passengers  before  the  implementation  of  the 
Regulation  
Ms Frisani asks MS  Catalano to identify rules that were applicable before the 
implementation  of  the  Regulation  and  that  ensured  the  compensation  of 
maritime passengers in case of accidents. 

Ms Catalano states that passengers were compensated further to long judicial 
proceedings  and  that  the  legal  basis  for  compensation  was  the  contractual 
liability pursuant to the contract of carriage under the Civil Code. This implied 
that liability of the carrier was based on fault. 

She  also  points  out  that  Italy  had  not  ratified  the  Athens  Convention  as 
modified in 2002 and that before the implementation of the Regulation there 
were no specific rules on the liability of the ship-owner. 

She also clarifies that in the case Costa Concordia compensation was provided 
pursuant to contractual rules and not pursuant to Italian rules on the liability 
of the ship-owner. 

She  refers  that  before  2013  she  received  complaints  by  passengers.  For 
example  in  one  case  the  passenger  had  hurt  himself  on  board  of  a  ship 
because a step was not signalized and he fell. The company was not willing to 
compensate  the  passenger.  At  the  end  an  agreement  was  reached  between 
the  company  and  the  passenger  due  to  the  intervention  of  the  Ministry  of 
Transport.  

Had the case not been settled the judicial proceeding would have been long.  

Identification of knowledgeable stakeholders 
Mr  Catalano  identifies  the  following  stakeholders  as  stakeholders  to  be 
contacted: 
Ms  Luca  Ferri,  Transport  Authority,  l.ferri@autorita-trasporti.it,  passenger 
rights; 
Ms  Silvia  Simone,  Transport  Authority,  s.simone@autorita-trasporti.it, 
passenger rights; 
of 
Greco, 
Mr 
massimo.greco@mise.gov.it, insurance issues. 

Development, 

Economic 

Massimo 

Ministry 

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Minutes  interview  Mr.  Angel,  Mr.  Kelly  and  Mr.  Wilson  (UK  Department  of 
Transport) 
Interviewees: 
Interviewers: 
and Fiona Unz (EUR) 
Date and time: 

Mr. Angel, Mr. Kelly and Mr. Wilson 
Johan Gille and Linette de Swart (Ecorys); Frank Smeele 

12 April 216, 10.30 12.00 

The UK system: Regulation 392/2009 and Athens Protocol 2002 
For  each  piece  of  EU  legislation  the  UK  government  needs  to  conduct  an 
impact  assessment.  Therefore  an  IA  was  conducted  for  Regulation  392/2009 
as  well.  In  this  IA  some  problems  were  experienced,  which  were  mainly 
caused by the existing domestic regime and also a lack of information on the 
likely  impacts  on  insurance  premiums.  It  took  some  time  to  streamline  the 
domestic  legislation  with  the  EU  legislation.  Further  to  this  it  is  noted  that 
European  Commission  IA  studies  often  do  not  provide  much  information  at 
the level required of individual Member States. 

  One of the main issues was to identify an insurer willing to provide the war 
risk  cover.  Some  P&I  clubs  offer  a  limited  war  risk  cover,  but  not  to  the 
extent  necessary  to  meet  the  requirements  of  the  Regulation.  Eventually 
Marsh  was  willing  to  provide  the  necessary  war  risk  cover.  However,  the 
number of insurers (and underwriters) willing to provide war risk cover was 
and  still  is  limited  in  the  EU.  It  seems  this  has  now  improved  and  as  a 
result UK insurers (and underwriters) also insure  a relatively high number 
of non-UK ship-owners. 

Before the introduction of Regulation 392/2009, the UK already was party to 
the  Athens  Convention  1974.  The  UK  had  the  intention  to  ratify  the  Athens 
Protocol 2002 (which they have done now); however before they  ratified the 
Athens Protocol the Regulation came into force which caused some  problems 
(if the UK had ratified, the implementation of the Regulation would have been 
easier). Especially, different limitations schemes where in place: 

  Sea-going  ships  providing  UK  international  services  Limit  of  300,000 
SDR based on domestic legislation which incorporates LLMC31F304; 

  Non-EU  ships  providing  international  services  Limit  of  46,666  SDR 

based on AC32F305; 

  Sea-going  ships  providing  UK  domestic  services  (for  carriers  whose 
principal place of business is in the UK) Limit of 300,000 SDR based on 
domestic legislation which incorporates LLMC; 

  Sea-going  ships  providing  UK  domestic  services  (for  carriers  whose 
principle place of business is outside UK) Limit of 46,666 SDR based on 
AC; 

  Non-sea  going  ships  providing  UK  domestic  services  on  inland 

waterways limit of 175,000 SDR based on LLMC.  

 

  Regulation 392/2009 offers the  exemption for  Class A and B  ships. In 
the UK those ship types are currently exempted. The limit applying to 
those ship types is 300,000 SDR. The Regulation will apply to Class A 

304   LLMC: Convention on Limitation of Liability for Maritime Claims. 
305   Athens Convention (1974). 

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from  1st  January  2017  onwards  and  to  Class  B  from  1st  January  2019 
onwards.  

 

 

In the UK, the Regulation will not apply to Class C and D ships. The UK 
government has no intention to apply the Regulation to these types of 
vessels. For these vessels it will be problematic to obtain all the cover 
needed for war risk and it is questionable how large their risk actually 
is.  It  should  be  noted  that  for  the  Class  C  and  D  ships  insurance  is 
already  in  place;  namely  the  300,000  SDR  or  46,666  SDR  depending 
on  where  the  carrier’s  principle  place  of  business  is.  It  is  also 
questionable  whether  State  Certificates  would  be  necessary  for  such 
vessels either. 

  On 1 September 2011 the UK passenger fleet consisted of 257 ships: 

  46 ships providing international passenger services; 

  63 ships providing domestic passenger services (Class A + B); 

  166 ships providing domestic passenger services (Class C + D). 

  The  data  presented  in  the  impact  assessment  do  not  distinguish 
between  different  passenger  ship  types.  The  Maritime  Coastguard 
Agency (MCA) should be able to provide such information. 

Potential impacts of Regulation 392/2009 
information 

  Financial 

is 

confidential  and 

industry 
stakeholders were found not willing to disclose it. It will be difficult to 
obtain information on a potential increase in premiums. It should also 
be noted that the insurance market is volatile and that insurers are not 
always  willing  to  provide  insurance.  It  is  unclear  how  the  insurance 
market  will  react  to  future  war  risk  cover  in  the  event  of  a  major 
incident as currently there is no experience with such risks. 

insurance 

 

  The impact on the fares tariffs was not included in the UK consultation. 
In  the  UK  the  government  does  not  interfere  in  the  tariff  regimes  as 
the  ferry  lines  are  a  purely  commercial  operation  and  factors  like  fuel 
costs  are  much  more  important.  This  situation  might  be  different  in 
Scotland  where,  for  example  Caledonian  MacBrayne  ferries  operates 
under  a  PSO-contract.  The  Consortium  is  advised  to  contact  the 
Scottish administration to discuss this point.  

 

  The  UK  Department  of  Transport  has  no  indication  that  the  current 
regime  is  not  working  well,  as  no  complaints  have  been  received. 
Fortunately,  no  major  accidents  happened  in  the  UK.  Only  some 
smaller  accidents  took  place  in  which  passengers  could  claim 
compensation.  The  UK  Department  of  Transport  does  not  deal  with 
these  claims,  so  they  are  unaware  if  problems  occur.  This  point  could 
be  checked  with  the  investigative  body  that  is  the  main  point  of 
contact. 

It  is  unclear  if  the  Regulation  will  establish  a  level  playing  field.  The  UK  was 
already party to the Athens Convention 1974 and the EU Directive 2009/20 on 
insurance  for  ship-owners  for  maritime  claims,  therefore  all  vessels  entering 
the UK were required to have insurance. The adoption of the Regulation, and 

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321 

 
 
 
 
 
 
 
 
 
 
 
 
higher  liability  limits,  does  not  essentially  change  this.  In  addition,  domestic 
ships already have insurance for a long time.  

It is also unclear if the safety on board ships will increase. The impact of the 
Regulation on ship safety is debatable. However, the most important point is 
that  all  vessels  need  to  have  insurance  and  to  obtain  cover  need  to  full  fill 
certain safety requirements. 

Passenger representation 
In  the  UK  no  single  passenger  representative  organisation  exists,  which 
represents  passengers  on  a  policy  level33F306.  At  a  non-policy  level  a 
‘Voluntary Complaint Handling Body (CHB) Scheme’ has been introduced, but 
this  is  only  for  passenger  rights  purposes.  This  scheme  was  initiated  by  the 
UK Department for Transport but does not receive governmental funding. The 
CHBs  help  passengers  to  get  in  contact  with  the  ship-owner  and,  if  needed, 
can help settle the claim. This system works really well and several other EU 
Member  States  have  shown  an  interest  in  the  system.  The  current  CHBs  are 
ABTA  (the  Association of  British  Travel  Agents);  CCNI  (Consumer  Council  for 
Northern  Ireland);  the  Scottish  Government;  CLIA  UK  (the  Cruise  Liner 
International Association) and London Travel Watch.  

Other remarks 
The  MCA  is  the  enforcement  body  and  is  therefore  responsible  for  executing 
all parts of the Regulation related to port state control and the issuing of State 
Certificates  (attesting  that  insurance  is  in  place).  They  deal  with  both  the 
domestic and international aspects. 

Including  Class  A  and  B  ships  in  the  scope  of  the  Regulation  will  not  lead  to 
many problems as most ship-owners are aware of the upcoming changes.  In 
addition, the MCA will issue guidance notes indicating which changes are to be 
expected and how ship-owners can deal with them.  

Follow-up: 
The UK Department of Transport agreed to send Ecorys contact details of: 

  The Maritime Coastguard Agency; 

  Representatives of the Scottish Government; 

  Complaint handling bodies & investigative body(ies); 

  ABTA and other relevant trade associations. 

Furthermore  they  offer  their  support  for  the  survey  process  (channelling  to 
relevant organisations in the UK). 

306  

If passengers want to be represented on a policy level they will contact their local government representatives and try to 
make them take the case. Failing that they resort to taking Court action. 

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Minutes interview Mikael Hjort, Swedish Ministry of Justice 
Interviewee:  Mikael Hjort 
Interviewers: 
Date and time: 

Geert Smit and Linette de Swart (Ecorys) 
20 April 2016, 10.30 12.00 

The Ministry of Justice was involved in developing Regulation 392/2009 and is 
responsible  for  its  implementation  in  Sweden.  The  actual  enforcement  of  the 
Regulation is done by the Swedish Transport Agency. For questions relating to 
the  Regulation’s  effectiveness  etc.  the  Consortium  is  referred  to  the  Agency 
(see contact details below). 

Situation prior to the Regulation 
Sweden  was  not  party  to  the  Athens  Protocol  2002  and  nor  to  the  Athens 
Convention  1974.  Therefore  only  the  Swedish  Maritime  Code  applied  to 
potential passenger claims. The system adopted in the Swedish Maritime Code 
was in general based on the provisions of the Athens Convention 1974. Only 
small deviations occurred. 34F307 

The  previous  system  is  replaced  since  the  introduction  of  Regulation 
392/2009, with regards to incidents falling within the scope of the Regulation. 
As the Athens Protocol 2002 is annex to the Regulation and EU has acceded to 
the Protocol, the Protocol now also directly applies in Sweden. 35F308 

In  addition  to  the  Regulation,  Sweden  has  adopted  some  national  auxiliary 
legislation  as  well.  The  main  aim  of  this  national legislation is  to  ensure  that 
the  Athens  Protocol  and  Regulation  can  function  optimally.  This  auxiliary 
legislation  focuses  on  penalty  clauses,  for  example  on  sanctions  against  ship 
operators  not  complying  with  the  insurance  obligations,  e.g.  their  vessel  can 
be held in port.  

Objectives of Regulation 392/2009 
Objective 1: improving passenger rights 
Passenger rights have improved since the Regulation and the Athens Protocol 
2002. Compared to the previous system operators are now strictly liable. The 
strict  liability  gives  the  passenger  a  stronger  right  than  under  a  system  of 
negligence.  In addition, ship operators are now obliged to inform passengers 
on certain rights according to the provisions in the regulation36F309 

Objective 2: creating an level playing field 
It  is  difficult  to  indicate  if  this  objective  is  reached.  In  Sweden  there  was  no 
resistance  from  the  maritime  sector  to  the  new  Regulation  and  the  Athens 
Protocol  2002.  Also  on  a  political  level  no  objections  to  the  regulations  were 
made. The introduction went without much resistance. 

Objective 3: improving safety on board 
It  is  difficult  to  indicate  if  safety  on  board  has  increased.  It  is  expected  that 
since  ship  operators  are  strictly liable  they  will  have  an  incentive  to  improve 

307   The main criteria for passenger claims under the Athens Convention 1974 is negligence (see art. 3). 
308   As we see it, because of EU:s accession to the Protocol, at least some of it’s provisions are directly applicable in Sweden 

regardless of the Regulation. 
I cannot really say how this has affected the information to passengers in practice. 

309  

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safety  standards  on  board.  It  is  not  known  by  Mr.  Hjort  if  safety  standards 
have  indeed  increased  on  board  Swedish  ships.  This  question  could  be 
directed to the Transport Agency. 

Objective 4: Comparability with other modes 
Mr.  Hjort  has  no  knowledge  if  the  Regulation  is  comparable  to  regulation  of 
other modes. The comparability was not really considered during the adoption 
of the Regulation in Sweden. 

Obstacles 
A few minor obstacles can be mentioned: 

  Terminology could lead to interpretation problems. 

-  The  Athens  Protocol  uses  a  specific  terminology  As  the  Protocol 
became  part  of  EU  law,  interpretation  difficulties  can  occur.  For 
example,  the  Protocol  refers  to  Convention  State.  What  does  this 
mean when applying the provision as a part of the Regulation? 

  Actions required from the Athens protocol. 

-  The  Athens  Protocol  requires  actions  to  be  taken  by  the 
Convention  States  (e.g.  Article  4a.13).  In  order  to  make  the 
Athens  Protocol  effective  some  actions  need  to  be  taken  under 
national  law.  How  should  Member  States  deal  with  these 
obligations now that the provisions in the Protocol directly applies 
in the Member States? 

Advantages of Regulation 392/2009 
Main advantage of the Regulation is that the provisions of the Athens Protocol 
in  Sweden.  The  Regulation  has  made  some 
are  directly  applicable 
modifications  to  the  Swedish  system,  with  the  result  that  stricter  rules  for 
carrier liability apply. 

Scope of Regulation 392/2009 
The scope of the Regulation has been extended to smaller ships operating at 
domestic  level  as  well.  Besides  the  applicability  to  Class  A  and  B  ships,  the 
Regulation  applies  to  all  vessels  that  are  certified  to  carry  more  than  12 
passengers. For the smaller vessels some exemptions have been made: 

  They  do  not  need  to  have  an  insurance  certificate  issued  by  the 
Transport  Agency.  As  is  the  case  with  the  insurance  directive 
(2009/20/EG)  it is  sufficient  with  a  certificate  issued  by  the  insurance 
provider; 

  Some  exceptions  to  liability  are  made.  For  example,  these  smaller 

ships do not fall under the war risk cover.  

Contact details 
Transport Agency 
Thomas Lantz  
+46 70 83 79 215 

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Minutes interview Mr. Kontorouhas, Greek NEB representative 
Interviewee:  Mr. Kontorou 
Interviewer:  Fiona Unz 
Date:  22 April 2016 

Statistics for Greece 
Mr. Kontorouhas explained that Greece has made use of the exception offered 
under  the  Regulation’s  provisions,  thus  all  domestic  traffic  is  currently 
exempted from the application of 392/2009. Additionally, he stated that there 
are approximately 13 Class A ships which are temporarily exempted from the 
Regulation’s  application  and  40  Class  B  ships  to  which  the  Regulation  will 
apply at a later stage, as provided by the Regulation. Furthermore, since the 
Regulation’s entry into force, there have been  no reported shipping incidents 
under  the  jurisdiction  of  the  Greek  Maritime  Administration,  in  contrast  to 
about  10  non-shipping  incidents  that  have  been  recorded.  Mr.  Kontorouhas 
denoted that in the case of the latter, namely the non-shipping incidents, the 
Greek  NEB  is  in  no  position  to  assess  whether  these  incidents  involved  the 
fault  or  negligence  of  the  carrier,  and  thus  the  carrier’s  liability.  What  is  of 
particular  interest  is  that  the  NEB  has  received  zero  complaints  regarding 
specific provisions under the Regulation such as lost or damaged luggage and 
mobility equipment, advance payments etc. According to the interviewee, this 
may  be  the  case  due  to  the  fact  that  the  passengers  turn  to  legal 
representation instead of the Greek NEB. Therefore, the State is not aware of 
the outcome of any such complaints which may have been dealt by attorneys 
at  law.  As  a  consequence,  Mr.  Kontorouhas  was  not  able  to  provide  answers 
to our questions regarding the compensation procedure followed in case of an 
accident.  

Evaluation of the Regulation 
As  far  as  the  evaluation  of  the  Regulation’s  provisions  is  concerned,  Mr. 
Kontorouhas  highlighted  the  fact  that  the  Greek  law  offers  an  identical  legal 
framework  for  the  protection  of  passengers’  rights,  through  law  4195/2013 
and  two  additional  circulars.  In  total,  Mr.  Kontorouhas  considers  the 
Regulation  effective  and  does  believe  that  specific  elements  are  missing. 
Furthermore, he noted that the Regulation in his view will in the future ensure 
a level playing field for carriers, keeping in mind that it is still an early stage 
in the application of the Regulation. 

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Minutes interview Dario Bazargan and Maria Pittordis (CLIA) 
Interviewees: 
Interviewers: 
Date and time: 

Dario Bazargan, Maria Pittordis 
Johan Gille (Ecorys), Ioannis Giannelos (Ecorys) 
1 June 2016, 11.00-12.15 

Introduction  
Maria  Pittordis  chair  of  CLIA  Europe’s  Tourism  and  Consumer  affairs  working 
group (lawyer-partner at Hill Dickinson law firm). CLIA Europe has distributed 
survey  to  members  and  asks  for  extension  of  the  deadline.  Also  a  response 
paper to be expected from CLIA Europe. 

Context 
The Costa Concordia incident showed a lot of complexity in claim handling due 
to different jurisdiction issues. 

Relevance 
The Regulation could be more impactful for  smaller domestic travel. BUT the 
limits to liability are currently different based on the area of operation. E.g. in 
the  UK,  international  carriage  follows  the  Liability  Regulation  (400k  SDR), 
domestic carriage (300k SDR) and river carriage (175k SDR).  

It should be understood that cat C and D ships are mainly operated by smaller 
companies, that are less flexible than big fleet operators. 

Effectiveness 
The Regulations is doing the job in matters of level playing field. There is now 
a common way of dealing with passengers of different nationalities (within the 
same  accident).  The  Costa  Concordia  indicated  the  complexity  of  the  pre-
Regulation set-up.  

A  lot  of  information  to  show  that  the  Regulation  supports  the  level-playing 
field. 

Regarding  advanced  payments,  the  Norman  Atlantic  incident  shows  that  the 
Regulation boosted a shift in application. 

In 2012, CLIA launched an operational safety review examining procedures to 
evaluate  existing  safety  procedures,  identify  industry  best  practices,  and 
develop  new  policies  for  rapid  implementation  to  strengthen  the  sector's 
already strong safety record. The review resulted in the voluntary adoption of 
10  wide-ranging  policies  which  have  all  been  included  in  formal  IMO 
regulations  and  standards  specific  to  passenger  ship  safety  and  have  been 
implemented across CLIA members’ fleets. 

Liability Regulation leaves less room for manoeuvre to lawyers  regarding the 
liability  and  jurisdiction.  Under  the  74’Convention  and  the  2002  Protocol 
jurisdiction  was  more  complicated,  the  Liability  Regulation  has  adapted  it  for 
the European market. 

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Efficiency 
Liability Regulation has helped to streamline the processes and make it more 
straight  forward  compared  to  the  1974  convention.  Handling  claims  became 
more  straight-forward  and  efficient  and  there  were  much  less  issues  of  legal 
arguments  than  before,  simply  because  the  Liability  Regulation  created  less 
room for manoeuvre than the old regime did (case example Norovirus in 2015 
where court immediately ruled that it did not relate to operations of the ship). 
Also as the jurisdiction to apply is clearer the claims process is smoothened. 
There  is  no  reported  deficiency.  Impact  on  the  cost  of  insurance  and 
passenger  fares  needs  to  be  seen  (we  should  ask  the  individual  operators), 
but  there  is  no  evidence  or  complaint  known.  It  is  a  short  while  since  the 
application  of  the  Regulation  started  as  of  2012  and  there  are  still  claims  in 
procedure under the 74 convention. 

Coherence 
The  Regulation  as  such  did  not  lead  to  increased  safety  and  security  levels. 
Although  it  was  adopted  in  the  context  of  the  so-called  third  EU  Maritime 
Safety  package  the  Regulation  does  not  address  safety  or  security  issues 
which  are  instead  regulated  under  different  international  legal  instruments. 
However  strict  liability  and  increased  limits  could  encourage  further  risk 
assessment to minimise the risk of accidents No specific impact of the Liability 
Regulation  to  safety,  but  only  indirectly  (e.g.  due  to  the  terrorism  clause 
influencing  decision  makers).  Operational  risk  assessment  of  carriers  also 
examines the liability involved in decisions. This impact is indirect and multi-
level  (insurance  department,  claims  department  etc.)  and  all  together 
contribute  to  the  increased  safety  culture  of  organisations.  ’74  Convention 
claims are significantly more than the Liability Regulation claims.  

CLIA  informs  passengers  that  the  Regulation  applies  also  to  non-EU 
passengers that join the trip in the EU. 

EU added value 
Clear added value over 1974 convention/2002 PAL as outlined above. 

It is important to assure that the Regulation is understood and applied equally 
across Europe. 

Survey 
It  is  more  feasible  to  receive  concrete  feedback  by  the  second  week  of  July, 
due to the timing of the CLIA meeting in end of June and the need to discuss 
internally and consolidate the views of the sector. 

Ecorys will confirm the extension of the deadline by the week of June 5th. 

Ecorys  is  kindly invited  to  attend  the  CLIA  working  group  meeting in London 
(27th of June). Costa, MSC and other operators will be there. 

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Minutes 
interview  Marie-Alice  Bels  and  Fabien  Joret,  Ministère  de 
l'Environnement,  de  l'Energie  et  de  la  Mer  Direction  des  affaires  maritimes 
(France) 
Interviewees: 
Interviewer:Dalila Frisani (Grimaldi) 
Date and time: 

Marie-Alice Bels, Fabien Joret 

24 June 2016, 15.00-16:30 

Introduction 
Ms  Marie-Alice  Bels  is  in  charge  of  European  Relations  within  the  French 
Ministry for the Environment, Energy and the Sea. Mr Fabien Joret is in charge 
of Regulatory affairs within the above Ministry. 

The  role  of  the  French  Ministry  for  the  Environment,  Energy  and  the  Sea  in 
the  implementation  of  the  Regulation  is  twofold.  On  the  one  hand  it  has 
adapted the legal framework with the provisions of the Regulation. 

On the other hand it has adopted the necessary measures to delegate to the 
company  Veritas  the  task  of  issuing  insurance  certificates  under  the 
Regulation. Veritas is a private company. 

The  bodies  in  charge  of  checking  that  passenger  ships  carry  the  insurance 
certificates  required  by  the  Regulation  are  the  “Centres  de  sécurité  des 
navires”. 

The French Ministry for the Environment, Energy and the Sea is then informed 
about  the  outcome  of  controls  concerning  the  obligation  to  carry  insurance 
certificate. 

The Ministry is involved in activities following a shipping incident to the extent 
that  its  Bureau  d'enquêtes  sur  les  événements  de  mer  (BEAmer)  carries  out 
the  technical  investigations  that  follow  a  shipping  incident  or  in  any  case  an 
incident occurred on board a ship. 

The legal investigations that follow an accident on board a ship are carried out 
by the competent courts. 

Impact of the Regulation  
The  entry  into  force  of  the  Regulation  has  substantially  impacted  the  French 
liability system concerning incidents occurred on board ships. 

Notably, it has affected the rules applicable in case of shipping incidents. 

Before  the  implementation  of  the  Regulation  French  rules  foresaw  a 
presumption of fault for carriers. 

This implied that in case of shipping incidents carriers could be held non liable 
if they could prove that there was no fault or negligence on their behalf. 

The implementation of the Regulation has, however, not impacted the liability 
rules applicable in France in case of non-shipping incidents instead. 

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Concerning insurance issues, further to the implementation of the Regulation 
carriers have to buy insurance policies covering non-fault liability. 

Before  the  implementation  of  the  Regulation  carriers  were  insured  against 
third party liability, but the insurance did not provide a right of direct recourse 
to the victims against the insurer. 

A major issue with the implementation of the Regulation concerned relates to 
war or terrorists risks. 

French  officials  refer  that  the  main  problem  with  the  implementation  of  the 
Regulation  concerning  insurance  against  such  risks  was  to  ensure  that 
insurers were ready to cover such risks. 

Finally,  French  officials  confirm  that  in  France  the  Regulation  applies  since 
2013  to  domestic  voyages  for  ships  of  Class  A  and  B  and  does  not  apply  to 
ship of Class C and D. 

French  officials  refer  that,  as  there  have  not  been  shipping  incidents 
concerning French ships or involving French carriers under the regime  of the 
392/2009 regulation, there is not  much experience on the implementation of 
the Regulation in France and on the problems that its application may trigger 
in practice. 

They also refer that there are no figures attesting an alleged improvement of 
the safety of the ships since 2013. 

However,  to  their  knowledge  no  ship  was  found  non-compliant  with  the 
obligation  to  hold  an  insurance  certificate  covering  the  non-fault  third  party 
liability.  

French official refer that there is not a specific authority in charge of receiving 
complaints  by  passengers/relatives  involved  in  a  shipping  incident  having 
suffered  loss  as  a  result  of  injuries  or  death  on  board  ships  or  as  a  result  of 
loss/destruction/damage of property. 

However  they  confirm  the  Ministry  did  not  receive  any  complaints  on  this 
respect by passengers/relatives. 

Some  complaints  have  been  filed  before  the  courts  by  passengers  who 
suffered a loss as a result of injuries in non-shipping related incidents. 

French  officials  refer  that  France  has  not  adopted  specific  rules  aimed  at 
verifying how carriers inform passengers on their rights under the Regulation. 

Costs related aspects. 
French officials refer that there are no statistics with regard to the variations 
of the costs of fares before and after 2013. 

Therefore it is impossible to state whether there has been an increase of fares 
due to the implementation of the Regulation. 

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In  addition,  there  is  also  a  lack  of  statistics  concerning  the  cost  of  insurance 
premiums further to the implementation of the Regulation. 

The  officials  suggest  that  some  insurers  had  increased  insurance  premiums 
before  2013,  profering  as  a  justification  the  coming  implementation  of  the 
Regulation. 

They  also  argue  that  the  accident  on  board  Costa  Concordia  might  have 
insurance  premiums  more  substantially  than  the 
impacted  prices  of 
implementation of the Regulation. 

They also state that French Government did not receive complaints by carriers 
concerning  an  alleged  increase  of  costs  related  to  the  implementation  of  the 
Regulation. 

Concerning  administrative  costs:  French  officials  refer  that  it  was  not 
necessary  to  allocate  new  resources  fully  dedicated  to  carry  out  the  tasks 
required by the implementation of the Regulation. 

Controls concerning compliance with the Regulation on board ships are carried 
out  by  port  State  controls  officers  that  are  in  charge  to  carry  out  all  the 
relevant  inspections  that  a  ship  has  to  undergo  under  other  EU  and  national 
regulations. 

In  conclusion,  the  costs  of  the  implementation  of  the  Regulation  are  not 
perceived excessive. 

Advance payment 
French  officials  refer  that  there  in  France,  until  now,  the  provision  related  to 
advance payment has not yet been practically implemented.  

The features of this provision and notably the fact it does not identify who the 
entitled  relatives  of  the  victims  are  or  what  immediate  economic  needs  are, 
may  create  uncertainties  concerning  the  concrete  allocation  of  the  advance 
payment. 

Possible amendment of the Regulation 
It  is  necessary  to  assess  very  carefully  whether  to  extend  the  scope  of  the 
Regulation  and  to  assess  whether  insurers  are  ready  to  offer  insurance 
coverage  for  war  risks  under  this  extended  scope  and  also  for  non-fault 
liability incidents.  

If  the  regulation  were  to  be  extended,  it  would  be  necessary  to  delete 
reference  to  ship  of  classes  A,  B,  C  and  D  and  to  simply  refer  to  passenger 
ships,  because  reference  to  such  ships  excludes  from  the  scope  of  the 
Regulation ships which are not under the scope of directive 98/41. 

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Minutes interview Sarah Gahlen, Lebuhn & Puchta 
Interviewee:  Sarah Gahlen 
Interviewers: 
Date and time: 

Linette de Swart, Fiona Unz 
5 July 2016, 09.00 

Context 
Dr.  Gahlen has not been personally involved in cases falling under the scope 
of  the  Regulation.  She  noted  however  that  some  of  her  colleagues  have 
worked  on  such  cases,  mostly  involving  accidents  on-board  due  to  external 
causes. In general, the interviewee highlighted these cases do not go to court 
or  arbitration,  but  rather  they  are  settled.  From  a  lawyers’  point  of  view 
therefore the Regulation serves as guidance, especially regarding the head of 
damage  and  the  liability  limits.  Settlements  are  made  on  that  basis,  despite 
the  fact  that  the  decision  on  the  settlement  offer  is  usually  made  by  the 
insurers instead of the ship-owners, in particular since the introduction of the 
right of direct action against insurers. Negotiations usually take place, keeping 
in mind that the liability limits for injury claims are high, especially compared 
to the limits applicable besides a maritime claim in Germany.  

Effectiveness 
Dr.  Gahlen  denoted  the  fact  that  the  limits  under  the  Regulation  are  very 
generous.  Additionally,  the  Regulation  offers  clarity  especially  in  European 
cases  where  the  passengers  have  the  choice  to  go  to  different  jurisdictions. 
Further,  it  was  stated  that  the  Regulation  contributes  by  offering  legal 
certainty with respect to the head of damages for examples.  

On the other hand, the interviewee stated that it is hard to judge whether the 
provisions  of  the  Regulation  have  acted  as  an  incentive  for  ship-owners  to 
enhance  safety  measures.  Rather,  Dr.  Gahlen  is  of  the  opinion  that  German 
ship-owners  already  demonstrate  sufficient  safety  measures  on-board  their 
ships.  

Furthermore,  she  stressed  upon  the  fact  that  improving  the  information 
position  of  passengers  (i.e.  information  obligation  of  the  ship-owner)  before 
start  of  a  journey,  is  fairly  ambitious.  A  general  problem  in  consumer  law  is 
the provision of information to consumers, as they often tend not to read the 
small letters on their tickets and therefore are not aware  of their rights (and 
are insufficiently informed).  

Complementarity  
As far as the comparison between the Athens Convention and the Regulation 
is  concerned,  Dr.  Gahlen  noted  that  there  are  considerable  differences 
between  the  original  version  of  the  Convention  (Athens  1974)  and  the 
Regulation.  However,  she  has  not  seen  the  aforementioned  version  of  the 
Convention  operating  in  practice  as  only  a  limited  number  of  countries  has 
implemented the Convention. 

In contrast, the Protocol of 2002 and the Regulation are similar in many ways, 
due  to  the  fact  that  the  material  law  under  both  is  the  same.  It  was  also 
stated  that  there  are  some  difficulties  under  the  Regulation  regarding 

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jurisdiction  and  enforcement  but  that  did  not  create  significant  issues  in 
practice.  

Furthermore,  the  interviewee  explained  that  most  of  the  problems  related  to 
the  co-existence  of  the  Convention  and  the  Regulation,  which  are  identified 
through  academic  research,  are  in  practice  very  rare.  In  general,  the 
Regulation implements the material law under the Protocol in an efficient way. 
During  her  academic  research,  Dr.  Gahlen  in  particular  identified  a  potential 
issue  arising  due  to  the  overlap  of  the  Athens  Convention  and  the  Brussels 
Convention. To be more precise, the Athens Convention offers its own system 
of  jurisdiction  and  enforcement  while  in  Europe  Brussels  I  is  applicable.  On 
that basis, Dr. Gahlen noted that since the European system is less generous, 
this could create problems, however she has not experienced any in practice.  

Relevance and Added Value 
Most of the ships in Germany, especially connecting small islands on the west 
coast, belong to the Classes of C and D, namely ships operating domestically 
close  to  the  shore.  Up  to  this  point,  such  ships  are  not  covered  by  the 
Regulation’s  provisions,  considering  that  Germany  has  not  opted in  for  these 
classes.  The  interviewee  could  not  offer  insight  with  certainty  as  to  the 
question  of  whether  there  is  an  intention  to  expand  the  scope  of  the 
Regulation, so that it covers such vessels in Germany. Nevertheless, German 
national law is very close to the provisions of the regulation. Dr Gahlen could 
identify three main areas where differences appear:  
1.  the  rights  of  passengers  with  reduced  mobility  are  less  generous  under 

German law; 

2.  the  right  to  have  a  direct  claim  against  the  insurer  does  not  exist  under 

national law; and  

3.  the  right  to  have  an  advance  payment  is  also  not  a  part  of  the  German 

passenger protection regime. 

Other  than  the  above,  the  rules  under  German  law  are  very  similar  to  the 
provisions of the Regulation.  

Finally,  regarding  the  limits  in  particular,  Dr.  Gahlen  informed  us  that  under 
German  law,  in  a  maritime  context  the  LLMC  global  limits  apply  through 
Directive 20/2009, by which ship-owners are obliged to carry such insurance. 
According  to  the  interviewee’s  opinion,  that  most  ship-owners  operating 
passenger vessels carry insurance exceeding the limits of the Regulation. 

The interviewee is not aware of any specific developments, e.g. political, legal 
technological,  that  have  affect  the  way  the  Regulation  is  implemented. 
Additionally,  due  to  the  fact  that  the  cases  falling  under  the  scope  of  the 
Regulation  are  usually  settled,  the  interviewee  shared  the  view  that  the 
Regulation  probably  cannot  influence  policy  and  law  makers,  since  there  not 
enough court cases heard. 

Efficiency 
Dr. Gahlen noted that one possible negative effect of the Regulation could be 
the  increased  insurance  premiums,  in  view  of  the  high  liability  limits.  As 
explained  however,  this  opinion  is  based  on  an  assumption  and  not  any 

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specific  information,  especially  since  insurers  are  very  reluctant  in  sharing 
such details.  

The  Regulation  seems  to  result  in  more  settled  claims  as  the  willingness  to 
settle  a  claim  seems  to  be  high  (both  on  the  side  of  ship-owners  and 
insurers). There is no rise in the number of cases going to court and this could 
be seen as a positive effect of the Regulation.  

Coherence 
The  interviewee  was  not  able  to  provide  an  opinion  on  the  coherence  of  the 
Regulation  concerning  passenger  right  protection  in  other  modes,  e.g.  air  or 
rail,  with  certainty,  due  to  the  fact  that  she  is  not  sufficiently  familiar  with 
other modes of transport. She is mainly working in the maritime field. 

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Minutes interview Mark Flavell and Tim Garnish, Maritime Coast Agency (MCA) 
Interviewees: 
Interviewers: 
Date and time: 

Mark Flavell and Tim Garnish 
Johan Gille and Linette de Swart (Ecorys) 
7 July 2016, 15.00-16.00 

Relevance  
From a  relevance point of view the Regulation is a success. So far not much 
intervention  from  the  MCA  was  needed.  It  is  important  to  have  legislation in 
place  that  ensures  that,  once  a  shipping  incident  occurs,  the  matter  is 
properly  dealt  with.  It  is  good  to  know  that  insurance  is  in  place.  It  is 
appropriate.  

As far as the MCA is aware no changes in the context took place that influence 
the  working  of  the  Regulation.  The  reassurance  the  Regulation  brings  is  of 
importance. 

Class C and D ships currently do not fall under the scope of the Regulation. It 
is  questionable  whether  or  not  they  should  be  included  as  it  will  create  an 
additional  financial  burden  for  these  ships.  The  risk  factor  for  those  ships  is 
smaller  and  there  is  no  clear  case  that  such  vessels  actually  need  insurance 
cover. A comparison could be made with Regulation 1177/2010 which applies 
to  Class  C  and  D  ships.  The  vessels  do  have  difficulties  in  fulfilling  their 
obligations under Regulation 1177/2010. As these ships are already struggling 
not more pressure should be put on them.  

Shipping  activities  between  the  UK’s  mainland  and  several  of  their  Islands, 
e.g. Channel Islands and Isle of Man are seen as domestic shipping, to which 
the  Regulation  does  apply  even  though  these  islands  are  not  part  of  the  EU. 
Shipping from France to the Channel Islands is seen as international shipping 
and therefore falls within the scope of the Regulation.  

HSC  should  be  included  in  the  scope  of  the  Regulation.  It  would  be 
appropriate to include them as well. For the UK this would be important as a 
significant share of the UK shipping market consists of HSCs.  

Effectiveness 
The  MCA  did  not  experience  any  difficulties  with  Regulation  392/2009.  The 
Regulation  is  working  well  and  all  operators  seems  to  comply  with  the  new 
obligations.  No  problems  were  reported  to  the  MCA  and  also  no  complaints 
related to a cost increase were heard.  

The MCA does not have experience with claims as so far no claims have been 
reported to the organisation. The MCA is responsible for maintaining a register 
of claims. However, as the organisation did not receive any claims yet, there 
is no register.  

The  MCA  also  does  not  have  experience  with  accident  dealing  under  the 
Regulation as luckily accidents, especially those resulting in death casualties, 
are rare. In recent years some accidents resulted in injury or death; however 
these accidents were not related to shipping and therefore did not fall within 
the scope of the Regulation.  

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The  Regulation  contributes  to  the  creation  of  a  level  playing  field,  which  is 
important  in  international  shipping.  For  all  ships  operating  in  EU  waters  the 
same rules apply which results in a more level playing field.  

The MCA does not know if passenger rights’ protection has improved. They do 
not have experience with this. Whether or not payments are made timely, the 
MCA has no experience with that.  

The  MCA  cannot  say  if  security  performance  increased  as  a  result  of  the 
Regulation. Improvements in safety is an ongoing process and it is difficult to 
link  safety  with  the  Regulation.  However,  over  the  years  the  number  of 
shipping incidents has decreased.  

Efficiency 
A  recent  trend  seen  by  the  MCA,  although  unclear  if  this  is  related  to 
Regulation 392/2009, is the spike in certification and renewal requests around 
February  20th.  Each  year  around  this  date  ship-owners  seem  to  renew  their 
insurance  certificates  and  the  staff  of  the  MCA  needs  to  issue  many  more 
certificates than in other months. Mr. Flavell does not know why February 20th 
is so important for ship-owners. It might be that ship-owners often re-charter 
their ships around that date. 

It seems that the Regulation did not lead to a significant financial burden for 
UK  ship-owners.  The  obligations  would  have  been  in  place  already  for  UK 
ship-owners, so the Regulation did not change much. However, this might be 
different  for  ship-owners  from  other  EU  countries.  For  them  the  Regulation 
might  have  a  financial  impact.  All  in  all,  the  obligations  are  nowadays  the 
days throughout Europe.  

Until  now  the  Regulation  does  not  consist  of  a  big  administrative  task.  It 
to  electronic 
would  become  even  easier  when  one  would  switch 
documentation, however this might lead to some security issues. 

Also  the  administrative  costs  are  low.  No  changes  in  staff  were  made  as  a 
result of the Regulation. The fees for an insurance certificate will go up in the 
near  further.  The  new  fee  rates  are  implemented  once  the  Parliament  has 
agreed  on  them  (this  is  a  regular  UK  procedure).  The  fees  are  based  on  the 
cost recovery principle. Currently, a ship needs to pay 31 GB pounds per year 
for the issuing of the insurance certificate. On average it will take a MCA staff 
member about 0.5 hour per ship to issue the certificate.  

On-board checks are conducted together with the Port State Controls checks. 
Costs  for  these  checks  are  not  included  in  the  31  pound  fee.  Most  vessels 
checked do have the insurance certificate on-board.  In  case the certificate is 
not on-board often the  ship-owner forgot to  send it to the ship. All in all the 
compliance is very good and ships can proof they have the insurance needed.  

As  for  relevance,  inclusion  of  classes  C  and  D  would  not  be  desired  as  the 
smaller  operators  active  in  these  classes  would  be  faced  with  relatively  high 
additional costs while they have less financial power to comply. 

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Coherence 
The  coherence  between  Regulation  392/2009  and  other  EU  maritime  policy 
initiatives  seems  good.  An  environment  should  be  created  where  passengers 
know of the support.  

Overall  the  protection  of  maritime  passengers  is  similar  to  the  protection  of 
passengers  in  other  modes.  Maritime  passengers  do  not  have  greater 
advantages  than  passengers  in  the  other  modes.  However,  maritime 
passengers are often not fully aware of their rights (common to passengers in 
other  modes).  The  MCA  deployed  several  initiatives  to  increase  passenger 
awareness,  e.g.  via  websites,  seminars,  broadcasts  from  the  MCA  to  the 
industry  and  joint  initiatives  with  ECTAA  and  the  UK  Chamber  of  Shipping. 
Also an app has been launched which provides information. 

To further strengthen the awareness the industry has a role to play too.  The 
prints  on  the  tickets  are  too  small  and  therefore  not  read.  The  operators 
should better point out the rights to the passengers.  

Added value 
The  largest  added  value  of  the  Regulation  is  the  guarantee  that  ship-owners 
do  have  proven  means  of  the  financial  protection  they  have  to  provide,  and 
that it has been taken up to Paris MoU inspection procedures, leading to good 
oversight and good compliance.  

Although  MCA  does  not  have  experience  with  Regulation  392/2009,  they  do 
have  some  experience  with  1177/2010.  There  was  an  UK  case  where  a 
passenger  fell  between  the  loading  pontoon  and  the  ship.  The  accident 
happened  in  Cambodia.  The  accident  happened  during  the  embarkation 
process,  which  does  not  fall  within  the  scope  of  Regulation  392/2009. 
Problems  occurred,  especially  with  the  repatriation  of  the  victim.  Suggestion 
might  be  that  the  scope  of  Regulation  392/2009  would  be  extended,  so  that 
further case will fall within the scope.  

Complementarity 
One  of  the  main  differences  between  Regulation  392/2009  and  the  Athens 
Convention  1974  is  the  compulsory  insurance  obligation  for  ship-owners. 
Result  is  that  each  vessel  is  properly  insured  nowadays  and  is  also  able  to 
proof  it,  as  the  Regulation  requires  that  each  vessel  has  an  insurance 
certificate on-board (confirmation that insurance is in place).  

Follow-up and suggestions: 

  The consortium is advised to talk to IGPANDI; 

  The  consortium  could  contact  organisations  involved  in  port  state 
control.  They  might  be  able  to  provide  more  detail  on  the  non-
compliance rate; 

  Mr.  Garnish  will  send  some  figures  on  rates  of  compliance  and 

inspection statistics. 

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Minutes interview professor Lindenbergh 
Interviewee: 
Interviewer:Wouter Verheyen(EUR) 
Date and time: 

professor Lindenbergh 

11 July 2016, 13.20-13.35 

We contact you for the Review of Regulation 392/2009.  
This  Regulation  incorporates  the  liability  rules  of  PAL  2002.  This  convention 
provides  for  liability  in  case  of  death,  personal  injury  and  loss/damage  to 
luggage.  The  Convention  does  provide  limits  to  compensation,  but  doesn`t 
provide  rules  on  recoverable  damage  and  thus  this  issue  remains  subject  to 
national law. It is on this point that I want you to evaluate the impact on the 
effectiveness, uniformity and EU added value of the Regulation.  

Are  national  law  regimes  governing  recoverable  damage  different  to  such  an 
extent that this threatens uniformity?  
This  is  indeed  the  case,  all  countries  have  their  own  regime.  The  different 
countries can be categorized in four systems: 

  The French System (e.g. Belgium, Spain and Italy); 

  The German system (e.g. The Netherlands, Switzerland and Austria); 

  Common law systems (English law, Scottish law and Irish law); 

  Scandinavian systems. 

These systems mainly differ on three points:  

  The amount of compensation; 

  The types of damage that are considered recoverable; 

  The compensation for personal injury. 

The  biggest  difference  exists  between  Common  Law  (highest  compensation) 
and Scandinavian Law (lowest compensation).  

Are  there  also  countries  where  only  symbolic  compensation  is  awarded  for 
emotional damage in case of death or bodily injury?  
Traditionally Eastern European regimes knew such regimes, but compensation 
is going up here as well.  

What about the circle of people who are entitled to compensation? 
Also on this point there is a big difference between individual countries. While 
compensation for loss of income is awarded in all countries, compensation for 
pain and suffering is not awarded in most countries belonging to the German 
system, while the French system has an open system and judges award such 
compensation  to  a  very  broad  category  of  people,  in  English  law,  there  is  a 
closed  system.  The  Fatal  Accidents  Act  provides  for  such  compensation  to  a 
limited category of people. Again the amount of compensation differs greatly.  

Could you illustrate this for the loss of income?  
In  English  law,  an  integral  compensation  is  awarded,  amounting  often  to 
millions  of  compensation.  In  for  example  the  French  system,  Bireme’s  are 
being used, leading to a more limited compensation.  

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To  what  extent  is  the  compensation  for  personal  injury  different  in  different 
countries? 
This is very much linked with social security. Traditionally, there is no liability 
for  costs  covered  by  social  security.  However,  there  might  be  a  recourse 
action available in national law for social security institutions.  

And what about the compensation for mental distress? 
In  Southern  countries,  compensation  is  being  awarded  for  mental  distress, 
while  in  the  Netherlands,  Germany  and  the  UK  such  compensation  is  being 
awarded  only  in  case  of  a  recognized  psychological  disease.  Exceptions  exist 
in case of a violation of human rights (e.g. privacy), but in such situation the 
violation  of  law  is  the  bases  for  the  claim  and  not  necessarily  the  damage 
incurred.  

Concerning  the  EU  added  value:  did  you  already  observe  in  other  domains 
that  the  existence  of  limits  has  a  harmonizing  impact  on  the  compensations 
that are awarded?  
No. 

Are you aware of the distribution of compensations for the different categories 
of damage in case limits are exceeded? 
I expect that there will be a priority, but I`m not aware of this.  

One  concluding  question:  what  countries  do  you  suggest  us  to  investigate 
further in order to get a representative overview of the different systems? 
German  Law,  French  law  and  English  law.  For  the  Scandinavian  regimes, 
Norwegian law is a good example.  

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Minutes interview Taco van der Valk, Dutch Maritime Law Association 
Interviewee: 
Taco van der Valk 
Interviewer:Linette de Swart (Ecorys) 
Date:  12 July 2016 

General 
Mr. van der Valk does not have specific experience with Regulation 392/2009. 
He  was  involved in  the  Costa  Concordia  case,  however  this  accident was  not 
covered  by  the  Regulation,  as  the  Regulation  had  not  yet  entered  in  force. 
Although  the  Regulation  was  not  yet  in  force,  the  lawyers  involved  tried  to 
take actions in line with the principles of the Regulation, e.g. by approaching 
passengers  earlier  on  in  the  process.  The  Dutch  passengers  were  offered  a 
compensation.  The  level  of  compensation  was  based  on  older  legislation. 
Some  additional  compensation  was  offered,  which  led  to  acceptance  of  the 
offer by most of the passengers. Only the difficult cases remained and had to 
dealt with separately. These cases did not involve Dutch passengers and were 
dealt with by lawyers from other countries. 

Mr.  van  der  Valk  was  not  aware  of  any  cases  in  the  Netherlands  since  the 
Regulation  was  in  force,  neither  in  his  own  practice,  nor  on  the  basis  of 
hearsay  or  published  case  law.  If  there  actually  was  a  Dutch  case  were  the 
Regulation  applied,  maybe  the  ship-owner  dealt  with  the  matter  himself  and 
no lawyers were involved. 

Most books and Articles published are rather general, only describing what the 
Regulation contains, without commenting on how it works in practice.  

Relevance 
The  Dutch  government  has  chosen  to  apply  the  Regulation  to  all  domestic 
vessels,  including  Class  C  and  D  ships.  Main  reason  is  that  in  general  the 
Dutch legal system does not apply different rules to international and national 
transport.  Also  in  other  modes  and  in  general  freight  transport,  international 
rules do apply to both international and national carriers and no distinction is 
made between the two.  

As  a  result  of  Regulation  392/2009  the  entire  EU  is  member  to  the  Athens 
Protocol  and  the  rules  laid  down  in  that  treaty  do  apply  to  all,  which  is 
important.  The  Regulation  is  a  useful  piece  of  legislation  as  it  increases 
international uniformity in the sector.  

There  have  not  been  any  large  developments  in  the  legal,  technological  or 
political field that have affected the  way the Regulation is implemented. It is 
difficult to indicate what the real impact of the Regulation is until now, as the 
time between the entry into force of the Regulation and the evaluation is very 
short. Also no major incident has happened that could showcase the working 
of  the  Regulation  in  full.  Such  an  incident  would  be  needed  to  see  how  the 
Regulation works (but this is of course undesirable).  

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Effectiveness 
One of the objectives of Regulation 392/2009 is to create a level playing field 
between EU ship-owners. Mr. van der Valka is not aware if this objective has 
been achieved.  

Safety  on-board  ships  is  continuously  improving.  However,  it  is  difficult  to 
indicate  whether  or  not  this  is  a  result  of  Regulation  392/2009.  Ship-owners 
are  focused  on  safety  and  their  performance,  so  also  without  the  Regulation 
they would still take measures to improve on-board safety standards. 

For  cruise  liners  it  is  important  that  passengers  are  happy.  In  case  a 
passenger loses his luggage or sustains an injury, the operator is often willing 
to  compensate.  The  ship-owner  would  like  to  ensure  that  his  good  name  is 
kept  and  will  avoid  negative  feedback  on  Twitter  or  Facebook.  As  a  result  of 
this, most smaller cases do not involve lawyers and will never end up in court. 
Therefore,  it  is  difficult  to  indicate  if  the  Regulation  leads  to  any  negative 
impacts.  

Further no negative effects can be seen at this stage. 

Efficiency 
It  is  difficult  to  say  whether  or  not  the  Regulation  has  impacted  ship 
operations.  Probably  P&I  clubs  already  included  the  higher  liability  limits  in 
their packages  offered  to ship-owners.  There is no  clear  evidence that prices 
have increased substantially.  

War risk cover is important for ship-owners, however it is not possible to say 
if this is a result of the Regulation. The cover may simply be needed in view of 
current circumstances, just as the increased risk of cybercrime. 

Coherence 
Overall, the regime of Regulation 392/2009 seems in line with the regimes in 
other modes of transport. The regimes may differ on smaller points, e.g. the 
actual height of the limits, but in general the regimes are more or less similar. 
There is a clear trend in passenger right protection to strengthen the position 
of the passenger and increase the liability of the operators.  

It  is  difficult  to  compare  the  EU  passenger  right  protection  for  maritime 
passengers with that of airline passengers as in the airline market it is more 
common to take a claim to court. In the maritime sector this seems less likely 
to  happen.  Both  EU  regulations  (261/2004  and  1177/2010)  are  rather 
different, while Montreal and Athens are more similar.  

In the opinion of Mr. van der Valka it is important to ensure that international 
uniformity  is  created  within  a  sector,  e.g.  maritime  transport,  instead  of 
striving  for  uniformity  across  all  modes.  For  ship-owners  international 
uniformity is important. The same rules should apply if they plan a cruise trip 
in Europe or a cruise trip from Europe to the Caribbean.  

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Complementarity EU value added 
The Netherlands had not ratified the Athens Convention 1974. However, they 
had incorporated most of the provisions in their national law. The structure of 
the Dutch national system was similar to the structure of the convention. Main 
difference  was  the  height  of  the  limitations,  with  the  Dutch  regime  offering 
higher limits. The Dutch government was at the time, in 1991, of the opinion 
that the limits under the Athens Convention were not sufficient.  

The  Athens  Protocol  2002  introduced  higher  limits  than  the  limits  under  the 
Athens Convention 1974. The limits of the Protocol were higher than the limits 
of the Dutch national regime. However, the Dutch government did not change 
the  national  limits,  which  was  probably  an  omission.  This  omission  has  been 
solved  by  the  entry  into  force  of  Regulation  392/2009,  which  introduced  the 
higher limits in the Netherlands.  

Follow-up 
Mr.  van  der  Valka  will  indicate  which  other  persons  organisations  are 
interesting to interview. 

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Minutes  interview  Fabien  Joret,  Ministère  de  l'Environnement,  de  l'Energie  et 
de la Mer Direction des affaires maritimes (France) 
Interviewee:  Fabien Joret 
Interviewer:Dalila Fricano (Grimaldi) 
Date and time: 

12 July 2016, 17.00-18.00  

Introduction 
Mr Fabien Joret is in charge of Regulatory affairs within the within the French 
Ministry for the Environment, Energy and the Sea [See minutes of interview of 
24 June 2016 for further details]. 

As  a  cautionary  word:  this  interview  does  not  reflect  an  official  position  duly 
adopted by the French authorities. 

Case study Ogia 
Upon  request  by  the  interviewer  Mr  Joret  clarifies  that  his  Ministry  has  not 
received  any  complaint  by  Ogia’s  passengers  in  relation  to  the  accident 
occurred on board Ogia on 1 May 2015 and that his department has not dealt 
with such case. 

Notwithstanding,  upon  request  of  the  interviewer,  Mr  Joret  clarifies  some 
issues concerning the French legal framework relevant for the case. 

Concerning  the  qualification  of  the  accident  as  a  shipping  incident,  Mr  Joret 
considers  that  the  Ogia  accident  cannot  be  qualified  as  a  shipping  incident 
under the Regulation. 

He  acknowledges  that  the  definition  of  shipping  incident  under  French  law  is 
wider  than  the  one  of  the  Regulation,  as  it  includes  “every  major  incident 
involving the ship”. 

He  explains  that  since  the  Regulation  is  directly  applicable  in  France,  there 
have  not  been  measures  that  have  clarified  that  the  definition  of  shipping 
incident  in  the  Regulation  is  different  from  the  one  of  the  French  Transport 
Code and that operators should not use the definition of the French Transport 
Code in order you assess whether and to what extent the Regulation applies. 
But  the  French  transport  Code  states  explicitly  that  its  liability  provisions  do 
not cover the case covered by regulation 392/2009. 

He  expects  that  at  a  certain  point  the  French  courts  or  most  likely  the  EU 
Court  of  Justice  will  clarify  the  definition  of  shipping  incident  under  the 
Regulation. 

He  also  provides  clarifications  on  issues  raised  by  other  stakeholders 
interviewed by the interviewer and concerning the identification of the class of 
the ships involved in domestic voyages pursuant to Directive 2009/45/EC. 

He acknowledges that there is not a clear correlation between the French way 
of classifying ships and the classes as defined in the above EU Directive. 

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He confirms that the security certificate of ships engaged in domestic voyages 
specifies  whether  the  ship  is  Class  A,  B,  C,  or  D  ship  under  the  above 
Directive.  

Case study City of Poros 
Mr Joret states that he is not familiar with such accident. 

Relevance  
Mr Joret cannot identify developments in the last years that would affect the 
way the Regulation is implemented. 

He  points  out  that  the  fact  that  different  liability  regimes  apply  to  ships  of 
Class A and B and to the other passenger ships engaged in national cabotage 
is not justified from the perspective of passengers’ interest and increases the 
complexity  of  the  framework  governing  the  liability  of  carriers.  On  the  other 
hand,  an  extension  of  the  Regulation  would  raise  question  of  administrative 
burden  and  of  the  availability  and  cost  of  compliant  insurance  solutions  for 
smaller ships (especially for the war/terrorism risk). 

As  to  the  application  of  the  Regulation  to  high  speed  crafts  in  France,  he 
refers that this issue has not been discussed in France. 

Apart from the above inconsistency, Mr Joret has no opinion as to whether the 
Regulation  fits  or  does  not  fit  well  with  the  objectives  of  EU  Transport  policy 
and does not believe that the fact that different liability regimes applicable to 
other  modes  of  transport  affect  the  consistency  of  EU  framework  on 
passengers’ protection. 

Coherence 
According to Mr Joret one debatable feature of the current legal framework is 
that  passengers  are  provided  less  protection  under  the  provisions  applicable 
to  contracts  of  carriage,  than  under  the  provisions  applicable  to  the  cruise 
contracts  since  EU  provisions  on  consumer  protection  apply  to  the  latter 
contracts under the regulations pertaining to conflict of law and jurisdiction in 
commercial  matters.  There  is  also  an  additional  layer  of  protection  for 
contracts relating to package travel. 

EU added value 
Mr Joret confirms that before the implementation of the Regulation the carrier 
would have been held liable only in case of fault with a presumption of fault in 
case of a maritime incident. 

Thus in a case of terrorist attack, the carrier could have been held liable if its 
fault could be proven, i.e. if it would be found that a serious breach of security 
rules  could  have  facilitated  the  perpetration  of  the  terrorist  attack.  However, 
there is no French case law concerning the liability of a maritime carrier in a 
case of terrorist attack. Thus we do not know which infringements of security 
rules  would  be  qualified  by  a  judge  as  a  fault  of  the  carrier  in  a  case  of  a 
terroristic attack. 

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Under  French  law,  passengers  have  a  direct  action  against  the  insurer  if  no 
fund  has  been  constituted  for  the  purpose  of  limitation  of  liability. 
Nevertheless, unlike under the Regulation, the insurer can then invoke all the 
defences  stipulated  in  its  insurance  policy.  There  was  no  obligation  for  the 
carrier  to  be  insured  against  third  party  liability,  other  than  the  obligation 
deriving  from  directive  2009/20  for  ship  of  more  than  300  GT.  The  fund  for 
the victims of terrorism provides cover in case of terrorism. 

In addition, passengers were not entitled to ask for an advance payment.  

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Minutes interview Matias Moldenhauer (Vista Travel) 
Interviewee: 
Interviewers: 
Date and time: 

Matias Moldenhauer 
Ioannis Giannelos, Menzo Rood (Ecorys) 
02 August 2016, 10:00-11:00 

Context 
MR.  Matias  Moldenhauer  owns  a  small  Tour  operating  company  named  Vista 
Travel  Reiseveranstaltung.  They  offer  international  luxury  cruises,  with 
destinations  all  over  the  world.  They  are  not  a  cruise  liner  themselves,  but 
operate  between  the  passengers  and  the  ship-owners.  As  a  tour  operator  he 
offers cruises with international or Class A ships (destined for open seas). 

Vista  Travel  Reiseveranstaltung  had  a  particular  case  regarding  an  incident. 
This  was  before  the  application  of  the  Regulation  in  2013.  The  case  lasted 
over seven years. The incident regarded a client who claimed he slipped and 
hit his head during a cruise. This was on-board an American cruise operator. 
The  passenger  can’t  remember  the  incident  himself  because  of  the  resulting 
head  injury,  and  there  were  no  witnesses.  He  didn’t  have  an  insurance  and 
since  he  had  to  be  helicoptered  and  treated  in  the  United  States,  the 
compensation  amount  was  eventually  very  large  (approx.  500k).  This  made 
the case very complex. 

Mr.  Moldenhauer  says  the  regulation  feels  more  like  it  addresses  main 
incidents,  like  with  Costa  Concordia.  Subjects  as  advance  payments,  loss  of 
luggage and provision of information mainly target larger cases. In their case 
even  though  the  victim  could  file  a  law  suit  against  the  insurer,  since  it  was 
expected to be a long lasting case, the victim decided to sue the tour operator 
instead (i.e. Vista Travel). They assume this is because the lawsuit was easier 
and cheaper in Germany, instead of in the USA. Also it is an economic choice 
to  sue  smaller  entities  as  the  possibility  to  reach  a  settlement  instead  of 
having  a  long-lasting  case  is  higher.  Eventually  the  case  was  settled,  as 
winning  the  lawsuit  would  be  more  expensive.  The  costs  of  a  lawsuit  are  a 
large factor in this. The tours Vista Tours books, are mostly US-operated, so 
ships are safer and their risk is lower. 

Mr. Molenhauer had no specific knowledge of the provisions of the Regulation, 
as his small Tour Operator business does not require cover equivalent to that 
required by the Regulation. Legally, tour operators are only obliged to insure 
for €1,000,000 per incident. The limit to liability of a tour operator is around 
€10,000,000. 

Relevance 
Mr.  Moldenhauer  states  that  in  the  United  States  of  America,  although  the 
safety of  ships is strictly regulated, it is more  expensive to bring claims as a 
passenger  to  courts  than  it  is  in  the  EU.  Thus  protection  of  the  rights  of 
passengers is still a relevant topic today, at least in other places in the world. 
He  also  mentions  that  German  regulations  on  passenger  rights  are  already 
very strict. For example, when you’re on a 10-day trip, and you can’t call in a 
port  for  whatever  reason  even  safety  reasons  you  can  be  claimed  a  10% 
return  of  payment.  This  can  vary  for  other  countries.  In  the  USA  you  have 
significantly less rights as a passenger. 

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Mr.  Moldenhauer  noted  that  the  levelling  the  playing  field  is  also  a  relevant 
objective.  As  an  example  he  mentioned  that  previously  victims  from  more 
poor  regions  and  countries  were  more  probably  offered  a  smaller 
compensation and would be prompt to settle with that. 

No recent development leads to changes in the sector affecting the application 
of the Regulation. 

Effectiveness 
The  Regulation  at  stake  provides  a  much  fairer  and  equal  scheme  for 
compensations  compared  to  what  existed  before,  where  compensation 
dependent  significantly  on  the  origin  of  the  victim  and/or  the  location  of  the 
accident. He notes that in for example the United States, it is much harder to 
claim your rights. Reasons are expensive processes and long delays between 
trials. Thus there is difference between theoretical rights and what you get in 
practice. He expects this Regulation to narrow this gap in the EU.  

Mr. Moldenhauer does state that the regulation can make it harder for smaller 
companies to survive. This could be the case when the regulation would also 
contain  Class  C  and  D,  which  concern  average  and  smaller  ships,  possibly 
owned  or  operated  by  smaller  companies.  This  would  not  necessarily  help 
build a level playing field from a tour operator’s perspective. 

However,  Mr.  Moldenhauer  still  sees  voluntary  offers  of  small  compensations 
happening a lot in the market when minor losses are  concerned, as they are 
easier and prevent court cases, while leaving both passengers and operators 
content for avoiding a potentially lengthy and costly procedure.  

Regarding  the  requirement  for  war  and  terrorism  cover  Mr  Moldenhauer 
acknowledges  that  some  regions  are  riskier,  but  that's  not  really  a  problem 
dealt  by  the  Regulation  as  the  industry  responds  to  that  anyway.  In  Turkey 
for  example,  due  to  recent  political  instability  and  terrorism  all  cruises  were 
rerouted to other destinations, for example Greece. In practice one can never 
exclude terrorism acts anywhere, therefore it is difficult to plan trips based on 
such  assessments.  It  is  more  probable  that  cruise  operators  choose 
destinations  based  on  public  perception  of  safety  for  commercial  reasons, 
rather than based on risk analysis. 

For  tour  operators,  there  is  initially  not  so  much  added  value  seen  in  the 
Regulation  as  it  takes  away  freedom  however  some  level  of  clarity  in  rights 
can  help.  [Paraphrasing]  “Nobody  likes  regulation  when  it  enters  into  force, 
but when things get serious, everyone is happy that their rights are clear and 
protected.” 

Efficiency 
Mr.  Moldenhauer  says  that  it  is  easier  for  large  cruise  liners  to  insure 
correctly.  However  for  smaller  businesses  like  Vista  Travel,  it  is  harder.  The 
profits  in  the  sector  are  anyway  small,  and  when  a  serious  incident  might 
occur  and  exceeds  the  insurance  cover,  then  it  is  easy  to  be  driven  out  of 
business.  

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The interviewee states that insurance premiums increase every year, but not 
necessarily due to the Regulation. Inflation and other corrections are the main 
cause  of  this.  Eventually  the  Regulation  should  impact  passenger  fares,  but 
this is by no means the main cost driver. Costs are mainly driven by fuel (and 
hotel  operating  costs  for  tour  operators)  so  the  impact  of  the  Regulation  on 
passenger fairs is potentially small. He takes cruises in the Mediterranean sea 
over the last year as an example for passenger fares. The fares in that region 
have  even  increased  less  than  inflation.  Some  of  the  reason  given  are  the 
introduction  of  larger  ships,  making  it  possible  to  efficiently  serve  more 
costumers (i.e. economies of scale) and the evolution of oil prices. The largest 
ships  can  carry  over  6000  guests,  in  addition  to  3500  crew  members.  Vista 
mostly focusses on the cruisers of approx. 300 to 600 guests. 

The impact of the Regulation the insurance premiums may not be very large, 
especially  for  bigger  companies  because  of  the  options  they  can  find  in  the 
market.  For  smaller  companies,  there  is  a  higher  impact  as  they  have  less 
choices available. 

Mr. Moldenhauer also responds that administrative burden is large to comply 
to all EU regulations especially for SMEs that cannot afford hiring specialists to 
assist. This is due to the time needed to check the requirements and prepare 
compliance,  but  even  more  so  because  of  the  knowledge  required.  Large 
companies  have  legal  departments,  but  smaller  companies  cannot  always 
follow  all  developments.  Smaller  companies  consult  their  insurer:  “What  do 
we need to do to comply with EU legislation?”, but sometimes it could also be 
a risk that a company takes. 

EU Added Value 
The  German  passenger  protection  Regulations  were  already  pretty  strict 
before the entry into force of the Regulation.  These national regulation made 
tours subject to German laws already comply with most of the EU regulations’ 
provisions,  such  as  392/2009.The  regulation  provides  however  added  value, 
mostly  due  to  harmonization  of  passenger  rights,  as  without  the  regulation 
the  rights  of  passengers  would  be  different  in  the  Member  States.  Now 
passengers  can  know  what  can  be  expected  in  matters  of  compensation, 
although prior information is not always the case.  

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Minutes interview Nils Heijboer (Dutch P&I) 
Interviewee: 
Interviewers: 
Date and time: 

Nils Heijboer 
Ioannis Giannelos, Menzo Rood (Ecorys) 
04 August 2016, 14:00-15:00 

Context 
Mr. Nils Heijboer is director claim of Dutch P&I (DUPI). Being the P&I club for 
multiple  ship-owners  and  operators,  DUPI  acts  under  Regulation  392/2009. 
Mr. Heijboer mostly encountered the Athens Convention in practice However, 
the  consequences  of  the  Regulation  have  been  seen  in  practice.  This  is 
especially  true  for  the  rights  of  advance  payment  and  protection  of  luggage 
and cars of passengers. Mr Heijboer states that advance payments are given 
directly  when  rightfully  asked.  DUPI  trusts  lawyers  in  this,  as  they  are  the 
experts on the application of the Regulations. 

Under  Dutch  law,  a  party  losing  a  trial,  must  pay  for  the  lawyer  of  the 
claimant.  So  when  the  companies’  fault  is  obvious,  costs  can  also  be  driven 
up.  He  also  states  that  because  of  trials,  which  can  take  a  lot  of  time  and 
money, thus settlements occur often for minor incidents.  

Relevance 
In  the  past  a  lot  of  claims  used  to  be  stalled  in  court  and  hoped  to  be 
forgotten,  or  otherwise  deplete  the  claimants  sources  due  to  lengthy 
processes.  Since  the  regulation,  Mr.  Heijboer  sees  that  the  underwriter  are 
more engaged and active. Claims are handled a lot faster since the Regulation 

Effectiveness 
For  countries  with  a  lower  safety  standards,  insurance  premiums  can  be 
higher  than  countries  with  good  safety  records,  however  the  most  important 
factor is the safety reputation of the operator.  

For  example,  Denmark  has  quite  strict  rules.  This  also  results  in  safer 
conditions.  Mr.  Heijboer  has  had  one  case  there  three  years  ago,  where  a 
girl’s  hand  got  stuck  between  the  boat  and  the  dock  during  mooring.  In  this 
specific case, the fault is harder to establish. It is explicitly a safety measure 
that passengers should have their hands inboard. However the reaction of the 
medical  service  (ambulance)  might  also  have  been  critical  making  the 
allocation  of  the  claim  debatable.  The  case  is  still  pending,  as  the  lawyer 
prefers  not  to  settle  before  the  criminal  investigation  is  completed,  because 
claims are higher in case the shipper is proven responsible. After the incident, 
the shipper explicitly announces a hands on board message during mooring. 

Mr.  Heijboer  notes  that  there  is  still  a  grey  area  regarding  the  attribution  of 
liability, with sometimes a lot of discussion as a result. In most cases a deal is 
worked  out,  so  that  court  is  avoided,  if  it  regards  a  smaller  incident.  The 
regulation makes the rights more clear, but Mr. Heijboer doubts it’s more fair 
than  before.  He  does  mentions  when  the  fault  lies  with  the  ship-owner,  it  is 
easier nowadays to reach a settlement. 

In  terms  of  injury,  he  mentions  two  types  of  claimed  costs,  which  are  the 
calculation  of  damage  (including  loss  of  productivity  etc.,  a  fixed  price)  and 

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exemplary damages/indemnity. This last one can be ridiculously high in some 
cases,  but  most  of  the  times  are  reasonable.  This  differs  per  country.  In  the 
Netherlands, there is a fixed table with the sums, but in the United States of 
America,  the  sum  is  decided  by  jury,  allowing  much  larger  differences  in 
sums. 

Mr Heijboer has also encountered some cases of loss of luggage and damage 
on  cars  during  shipping.  Most  of  the  time  the  latter  involves  a  gate  barrier 
that drops on the back of a car. This sorts of property damage will be settled. 
Sometimes  there  happens  a  collision.  The  most  common  are  disappeared  or 
broken  belongings  of  passengers,  but  the  most  difficult  to  handle  are  the 
sinking incidents, involving casualties. 

Efficiency 
Private individuals have more rights, and underwriters cannot walk away from 
it.  In  addition,  he  mentions  that  with  social  media,  a  lot  more  claim  and 
complaints reach either the company or the rest of the world. In order to stay 
in business, companies need to have a good reputation. Mr Heijboer sees that 
this leads to higher safety standards:  If a certain company has more  claims, 
the  premium  will  go  up,  and  this  absolutely  has  an  effect  on  the  safety 
standard. When a number of claims of the same nature come in and are won 
by  the  claimant,  the  premium  will  increase  in  that  respective  area.  Mr 
Heijboer  says  also  that  if  a  ship-owner  tries  to  switch  insurers,  the  new 
underwriter will be able to see the recent losses too, contributing to a higher 
risk  profile  for  the  ship-owner.  As  insurance  is  obligatory,  and  a  ship-owner 
not abiding with safety standards will not be able to find affordable insurance. 

The insurance premium is based on multiple criteria in addition to  the safety 
record.  Size  and  number  of  passenger  are  other  contributors.  However,  the 
safety  history  has  a  great  influence.  Mr  Heijboer  says  that  sometimes  the 
management of a ship is checked. So the safety record, and the amounts paid 
in recent claims affect the price. The safety record is operator-based, meaning 
that  the  ship’s  safety  record  itself  isn’t  as  important.  In  addition,  maritime 
classification societies of the ship are an important contributor. Ships have to 
be  assessed  by  larger  classification  societies  as  Lloyds  register,  American 
Bureau  of  shipping  etcetera,  if  they  want  to  be insured  with  an  International 
Group P&I. 

Mr. Heijboer says that smaller carriers have a more difficult time to obtain the 
same  premiums  for  a  certain  coverage  compared  to  larger  carriers. 
Companies like Carnival Cruise Lines, Disney Cruises and Costa Cruises have 
large fleets, meaning they have more power in negotiating premiums.  

In  Europe,  we  have  the  Athens  Convention  and  the  Regulation  to  protect 
passenger  rights.  However  in  countries  like  Indonesia,  some  ships  with  a 
capacity of 300 passengers carry 3000 passengers.  In  European ship owners 
that  break  the  conditions  of  the  cover,  are  in  trouble.  The  risk  of  going  bust 
then in case of an accident is very large. In addition, passengers will shift to 
companies that abide the safety standard better.  

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The price of a premium of a fleet is first of all based on standard/basic vessel 
information,  such  as  number  of  ships  in  the  fleet,  size  of  the  ships  and  the 
number of passengers that the ships can carry. A quote for insurance then will 
be ready in 2 days, so a cover can be in place in 2 days. A few e-mails will do, 
given the right documents are supplied. Sometimes with a larger ship, it has 
to be subjected to a condition survey, which will take a little longer, and could 
take a day. 

Coherence 
Even  though  Mr.  Heijboer  does  not  necessarily  mentioned  problems  due  to 
having multiple regulations in place, he does mention that certain regulations 
are  read  and  explained  differently  in  certain  countries.  In  addition,  national 
laws can make even more differences between EU Member States. 

EU Added Value 
Mr Heijboer finds that the major EU added value is the increased protection of 
the  individual.  The  regulation  has  helped  counter  the  process  of  running 
individuals out of cost with long trials and delays. This is mostly now the case 
when the company has a strong defence. 

Regarding war-risk, Mr. Heijboer notes that every ship that will go to regions 
marked  as  war  zone  will  have  to  announce  it  and  pay  extra  premium.  The 
new  regulations  on  this  do  not  necessarily  impact  premiums,  as  there  is  no 
war within the EU itself.  

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Minutes interview Brigit Soling Olsen, Danish Ministry of Transport 
Interviewee: 
Interviewers: 
(Ecorys) 
Date and time: 

Brigit Soling Olsen 
Ioannis  Giannelos,  Linette  de  Swart  and  Geert  Smit 

04 August 2016, 11:00-12:00 

Background 
Mrs.  Olsen  was  leading  the  Danish  delegation  negotiating  the  392/2009 
Regulation and responsible for drafting the Regulation and implementation in 
Denmark,  including  drafting  secondary  legislation.  Mrs  Olsen  was  involved  in 
the  subject  area  prior  to  the  implementation  of  the  Regulation,  specifically 
dealing with the Athens Convention.  

National application 
Although the Regulation applies directly to Denmark, the government decided 
to  have  national  regulation  as  well  (including  secondary  legislation,  as 
mentioned  above).  This  also  serves  in  extending  its  scope  and  defining  the 
exact provisions for vessels not covered in the Regulation.  

The Danish implementing regulation identifies 3 main vessel categories for the 
purpose of the Regulation: 
1.  International  carriage  and  domestic  A  &  B  class  vessels  (already  covered 

by Regulation); 

2.  Domestic C & D class vessels; 
3.  Other  vessels  used  to  carry  passengers  (also  with  less  than  12 

passengers)310. 

For  the  first  category,  the  Regulation  applies  fully.  For  the  second  and  third 
category  not  all  Regulation  provisions  are  maintained.  The  application  for 
these  categories  exempts  specific  Regulation  provisions  (e.g.  handicapped 
equipment,  advanced  payment,  war-risk  coverage,  etc.)  and  is  aligned  with 
the  IMO  regulation.  Further,  for  categories  2  and  3  the  authorities  are  not 
required to issue a certificate as is required for ships falling in category 1. For 
ships  falling  in  categories  2  and  3,  Danish  law  only  requires  that  they  have 
obtained insurance and that proof of insurance is available on board the ship. 
The  adjustments  were  made  is  in  order  to  lighten  the  burden  for  smaller 
vessel operators while ensuring passenger protection. 

Category  3  was  necessary  to  ensure  that  also  passengers  in  smaller  vessels 
are  properly  protected.  This  includes  vessels  operating  in  ports,  event  ships, 
fast  ships  used  for  “joyrides”  etc.  It  is  important  that  insurance  limitations 
amounts  and  strict  liability  for  these  ships  is  in  accordance  with  the  Athens 
Convention.  [quote]  The  commentary  to  the  draft  legislation  which  is  an 
integrated  part  of  the  governments  proposal  stated:  the  protection  of 
passengers should not depend on where the passenger vessel operates. 

310   The reason for included this last category within the scope of Danish law is that many boating activities take place which 
can lead to serious injuries, but where covered by the then applying legislation. A direct cause of introducing for smaller 
ships was an incident with a dragon boat where several children fell from the boat and were injured. At the time of the 
incident, only general liability legislation applied (in which the burden of proof was placed on the victims). 

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The material of which the ship is made nor the size of the ship is relevant for 
the application of Danish legislation. In Danish law the activity is the subject, 
not  the  ship  itself.  If  a  ship  is  carrying  passengers  (on  a  contractual  basis), 
the ship fall under the applicably liability regime. 

The  special  provisions  for  categories  2  and  3  aim  to  tackle  the  difficulty  of 
smaller operators to get extra P&I coverage for smaller vessels. Thus applying 
only the Athens Convention and IMO Conventions provisions standardises the 
insurance  requirements,  rendering  no  need  for  new  insurance  product 
creation. 

Denmark has a lot of sea transport and a relatively high number of small ferry 
lines  (159  registered  Class  C  and  D  ships).  This  amount  exceeds  by  far  the 
international carriage and Class A and B ships (app. 30 registered Class A and 
B ships) No significant difficulties were encountered in the implementation of 
the Regulation for  Class C and  D ships Only very few  reactions were  derived 
from local communities/operators mainly on their capacity to insure their local 
operations.  A  minor  extension  of  the  period  to  implement  was  granted 
allowing for a relevant insurance product to become available.  

Despite  the  significant  sea  transport  activity,  there  are  very  few  serious 
accidents in Denmark, with the last one taking place 3 years ago, proving that 
shipping in Denmark is very safe. This was an accident on a port tour were a 
little girl got her arm caught between the ship and the quay and her arm had 
to  be  amputated.  As  the  accident  took  place  on  a  smaller  vessel  (tourist 
attraction),  this  proves  the  necessity  to  properly  cover  also  smaller 
operations. 

Before  the  adoption  of  Regulation  392/2009  and  the  Athens  Protocol,  the 
Danish  liability  regime  for  shipping  accidents  was  based  on  the  general 
liability regime. In this regime the burden of proof rests with the victim. As a 
result  of  the  specific  rules  laid  down  in  the  Regulation  and  the  Athens 
Protocol, Denmark now has a liability regime (for shipping incidents) in which 
the burden of proof rests with the ship operator. This means a reversal of the 
burden proof and larger protection of the passenger.  

Relevance  
The  Regulation  objectives  are  seen  as  relevant.  Especially  the  level  of 
protection of passenger rights is appropriate. Ensuring a level playing field is 
an  issue  in  international  carriage.  In  domestic  operations,  equal  protection 
can  be  enforced  by  national  authorities  and  rules  can  apply  to  all  vessels 
irrespective their flag. 

In  the  time  since  the  application  of  the  Regulation,  there  are  no  significant 
changes  observed  that  would  impact  the  application  of  the  Regulation  (for 
example in the technical or legal environment). 

Effectiveness 
Safety  standards  are  very  efficiently  implemented  and  enforced  by  PSC  and 
FSC, not this legislation. The legal framework on sanctions in case of violation 
of these standards is very important.  

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Denmark  has  had  very  few  incidents,  but  the  level  of  compensation  and  the 
timing  of  payment  and  advanced  payment  should  be  affected  by  clear 
Regulations. The limits to liability and other provisions provide to the victims 
options and strengthen their negotiation power in case there is no agreement 
with  the  operator.  Often  an  agreement  will  be  reached  between  the  ship 
operator and the victim and only in a minority of cases a victim needs to rely 
on  the  provision  of  the  Regulation.  In  this  respect  the  Regulation  acts  as  a 
safety  net.  However,  quality  operators  do  not  like  to  have  bad  publicity  so 
they operate responsibly and opt for settlements satisfying to the victims. 

An evidence of the Danish operators’ emphasis on quality is that although the 
Passenger  Rights  Regulation  1177/2010  is  in  force  for  3  years,  only  2 
complaints have been received by the Maritime Authority. 

There is a question regarding the harmonisation of liability requirements with 
other modes, especially rail. Limits to liability are not equal for all modes.  
Overall,  the  application  of  the  Regulation  has  been  with  no  problems  and  no 
unexpected effects. although there is only limited experience in place. 

Efficiency 
The Maritime Authority issues a Liability Insurance Certificate. In order to get 
this certificate a fee is required, which is based on the amount of time spent 
and  can  only  be  set  on  a  cost-recovery  basis.  The  certificate  is  issued 
electronically,  which  further  decreases  the  cost.  The  administrative  burden 
(nor the fee itself) is significant. As stated above, no certificate is needed for 
Class C and D ships and other vessels. 

Effort to obtain certificate for operators seems to be a standard operation and 
no  complaints  have  been  observed.  Insurance  outside  the  IGPANDI  and  EU 
P&I companies might be an issue, since the Danish Maritime Authority needs 
to  check  the  coverage  of  the  insurer.  Before  issuing  a  certificate  the  Danish 
Maritime  Authority  needs  to  verify  whether  there  is  actual  coverage  behind 
the  insurance  paper,  so  that  in  case  something  happens  the  club  will  indeed 
pay. If it would turn out that a club is not able to pay in case of damage, but 
the  ship  owner  would  be  able  to  show  a  certificate  issued  by  the  Danish 
Maritime  Authority,  the  Danish  state  could  be  held  liable  based  on  state 
liability. Such a situation needs to be avoided.  

There  has  been  no  complaints  or  proof  regarding  too  high  an  impact  on 
insurance  premiums  and  passenger  fares.  Also,  there  is  no  hint  that  the 
insurability  of  safe  operators  is  jeopardised.  [quote]  “If  no  one  is  willing  to 
insure an operation, maybe it is not as safe as it should be”. 

Coherence 
The  Regulation  fits  well  with  EU  policy  on  passenger  rights  framework.  EU 
should require quality operators and the Regulation is part of this strategy as 
well as it protects passenger rights. 

Added value 
There is EU action added value in securing an equal application, especially on 
international carriage, aimed at protection of passenger rights.  

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Also  of  added  value  is  the  bringing  into  effect  of  the  Athens  Protocol  at  EU 
Member State level through the ratification by the EU.  

Complementarity 
The  Regulation  supplements  the  Athens  Convention  provisions  and  the 
national  legislation  of  Denmark.  No  problem  is  reported  on  the  interaction 
between EU and Danish legislation. 

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Minutes interview Rolf-Jürgen Hermes, PANDI Services 
Interviewee: 
Rolf-Jürgen Hermes 
Interviewer:Ioannis Giannelos (Ecorys) 
Date and time: 

8 August 2016, 15:00-16:00 

General 
Mr Hermes is a correspondent for P&I Clubs in Germany and part of a network 
representing  P&I  clubs  locally  covering  multiple  German  ports  and  having 
representation in Russia and the Baltic Sea. They protect the interests of ship-
owners  as  well  as  those  of  insurers  in  case  of  accidents  or  other  difficulties. 
Amongst  others  they  represent  many  cruise  operators  for  passenger  claims. 
PANDI  has  been  monitoring  the  legal  situation  starting  from  the  Athens 
Convention.  In  practice  passengers  direct  their  claims  initially  to  the  cruise 
operator,  i.e.  the  contractual  partner  of  the  passenger  or  (less  often)  ship 
owners since they are the obvious point of entry into the procedure as in case 
of incidents. Then the claim is handed to the insurer if necessary. 

Relevance 
The general approach of the Regulation is right as it aims to clarify passenger 
rights.  

The  scope  seems  partly  relevant  since  it  covers  the  vast  majority  of 
passengers (at least for cruise resp. ferry operators). There will be limited use 
of  expanding  the  scope  to  smaller  vessels  at  least  for  Germany,  as  smaller 
operators are properly covered by German Law provisions. 

However,  this  Regulation  does  not  seem  to  be  a  relevant  tool  to  increasing 
ship  safety  or  establish  a  full  level  playing  field  as  national  regulations  are 
impacting this as well. 

Effectiveness 
Passenger  protection  was  pretty  effective  already  according  to  German  law 
with  the  exception  that  passengers  did  not  have  the  right  of  direct  action 
against the insurers. 

Mr.  Hermes,  does  not  see  the  Regulation  as  being  able  to  create  a  level 
playing  field  on  itself  for  multiple  reasons:  i)  there  are  also  national  laws 
applicable  that  still  differ  the  level  of  protection  in  Member  States;  and  ii) 
more than 90% of the world tonnage is covered by P&I clubs that cover legal 
liability of ships. 

Nevertheless,  the  Regulation  has  probably  brought  on  slightly  larger 
premiums  due  to  the  potentially  increased  risk  introduced  of  paying  a  large 
claim. Differences between larger and smaller operators and their capacity to 
pay  for  the  premiums  however  still  exist.  There  is  a  difference  between 
carrying  EU  and  US  passengers  as  claims  can  be  higher  in  the  US  affecting 
also the premiums. Operators carrying mixed passengers may be required to 
pay higher premiums to account for these higher risks. 

However, passenger claims under German law have not changed. They cover 
(as  was  the  case  also  before)  all  types  of  claims  including  injuries,  material, 

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moral  and  psychological  claims.  What  has  changed  since  the  effect  of  the 
Regulation has been the fact that looking into a claim in principle has become 
much more straightforward nowadays. It is more clear as to what is covered. 
Once the responsibility is established, there is still however the need to agree 
on the level of the compensation, this is something still open to interpretation 
by  national  courts.  Nevertheless,  it  is  now  more  clear  under  what 
circumstances operators can be held liable. 

The  impact  on  the  advanced  payment  is  also  significant  as  this  is  easier 
provided since the liability is now more straightforward to attribute. Advanced 
payments  were  anyway  in  accordance  with  industry  practice,  but  now  they 
are more easily attributed. 

There can be no claim for an impact on safety performance of operators. This 
is  the  primary  concern  of  (and  dealt  with  by)  other  Regulations.  Regulation 
392/2009 does not have a particular impact in this respect. 

Also,  no  specific  negative  or  unexpected  effect  has  been  identified,  only 
possibly  a  consequence  on  insurance  premiums.  But  it  is  difficult  not  to  say 
impossible  to  quantify  this  effect:  too  many  different  factors  influence  the 
level of the individual level of insurance premium. 

Efficiency 
Beyond  the  expected  impact  on  insurance  premiums  there  is  no  other 
expected  Regulation  impact.  Mr.  Hermes  cannot  comment  on  the  level  of 
impact  as  there  are  no  specific  information  available  from  different  clients. 
Thus  also  no  insight  exists  on  the  impact  on  the  insurability  and  passenger 
premiums for operators 

Regarding  the  level  of  administrative  burden  brought  in  by  the  Regulation, 
there is no more work required compared to before to acquire a cover, since 
this was anyway required in Germany, just the provisions of the cover change 
in  in  that  the  level  has  to  reflect  the  increased  legal  liability  following 
Regulation 392/2009. 

Coherence 
EU  Law  has  with  the  Regulation  been  unified.  Liability  is  about  the  same 
everywhere  which  makes  life  easier  especially  for  mixed  nationality  voyages. 
The  existence  of  one  Regulation  for  all,  reduces  a  bit  of  administration  work 
for  operators  as  there  is  no  need  for  special  contract  conditions  for  ship 
owners in voyages with passengers of different nationalities.  

As  far  as  Mr.  Hermes  is  relevant  to  answer,  there  are  no  specific  concerns 
encountered related to  the interaction between Regulation 392/2009 and the 
relevant international framework. 

EU value added 
There  is  a  higher  level  of  protection  than  before  but  liability  in  principle  did 
not  necessarily  effectively  change,  since  the  way  the  legal  system  operates 
and assesses the value of compensation is still the same, namely relevant to 
the  interpretation  of  the  value  of  the  loss  by  local  judges.  The  level  of 

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363 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
limitation of liability has been set quite high and it is difficult to see individual 
claims  reaching  these  levels  from  a  German  perspective.  In  normal  (95%) 
cases, these limits are unlikely to become relevant. 

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Minutes interview Françoise Radetzky, EESC 
Interviewee: 
Interviewer: 
Date and time: 

Françoise Radetzky 
Dalila Frisani (Grimaldi) 
8 August 2016, 9:00-10:30 

Françoise  Radetzky  is  since  November  2015  member  of  the  Economic,  social 
and  environmental  Council  (EESC).  She  was  founding  president  (1986-1998) 
and  General  Delegate  (1998-2008)  of  SOS  Attendants  and  is  responsible  for 
victims of terrorism. 

She  was  working  (as  a  lawyer)  at  the  French  Ministry  of  Industry  between 
1971  and  1974  and  as  CEO  of  the  corporation  Havre-Provence  in  1982.  On 
December 23, 1983, she was hurt during a terror attack.  

Further  to  this  episode  she  realized  that  the  victims  of  the  terrorist  attacks 
received  no  support.  Thus,  she  created  in  1986  the  SOS  Attendants-SOS 
Terrorism for assistance to victims. 

She  funded  the  Guarantee  Fund  for  victims  of  acts  of  terrorism  and  other 
offences in 1986 of which she is still a member of the board. She received in 
1990  the  status  of  civilian  war  victim  granted  to  all  victims  of  terrorism  and 
hostages. Received repeatedly at the UN, she supports the establishment of a 
European criminal code for particularly serious and transnational crimes. 

On  22  September  2008,  the  association  SOS  Attendants  she  headed  was 
dissolved due to lack of funding. 

Ms  Radetzky  manages  the  above  Fund  for  victims  of  acts  of  terrorism  but 
does not handle specific files. 

City of Poros attack 
Ms Radetzky confirms that to the best of her knowledge no French passenger 
injured on board the ship City of Poros received any compensation further to 
the above attack.  

She confirms that the French passengers whom her association assisted in the 
criminal proceeding concerning the case City of Poros stated that they had not 
been  compensated  by  the  insurer  of  the  ship/the  carrier  or  the  ship-owners. 
Similarly,  the  relatives  of  the  three  French  deceased  passengers  did  not 
receive  any  compensation  by  the  insurer  of  the  ship  or  by  the  carrier/ship-
owners. 

Victims  and  their  relatives  stated  that  they  had  not  received  any  form  of 
assistance further to the above City of Poros terrorist attack. 

She  is  not  aware  of  whether  Greek  passengers  received  any  form  of 
compensation by the insurer of the ship. 

She is also not aware of any judicial proceeding concerning the attack to the 
ship City of Poros other than the one opened in France and concluded in 2012. 

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365 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Concerning  the  functioning  of  the  Fund  she  manages,  i.e.  the  Fonds  de 
garantie  des  victimes  d'actes  de  terrorisme  et  autres  infractions  (FGTI),  she 
explains  that  there  are  no  limits  to  the  compensation  that  the  fund  offers  to 
injured victims and to relatives of deceased victims.  

Concerning  the  case  City  of  Poros  she  refers  that  the  relatives  of  deceased 
victims were compensated for moral damage. Entitled relatives were: parents 
of  the  victims,  sisters  and  brothers  and  grandparents.  The  victims  had  no 
children, so the fund did not compensate any children of deceased passengers 
in the case City of Poros. 

She  refers  that  the  fund  covers  the  economic  losses  in  case  of  death  of  a 
relative  and  in  case  of  injuries.  However  in  the  case  of  the  three  French 
passengers  deceased  during  the  attack,  no  claim  for  economic  loss  could  be 
compensated  because  the  three  deceased  French  passengers  were  not 
working due to their young age. 

As to the injured passengers, their compensation was calculated based on the 
findings of the medical report that each claimant submitted to the fund along 
with his application. 
She  refers  that  many  passengers  jumped  into  the  water  so  they  were  not 
registered by the Greek authorities further to the terrorist act. 

Such  passengers  did  not  claim  compensation  immediately  after  the  accident 
but claimed for compensation when the criminal proceeding started in France 
in 2012. 

However in 2012 their right had expired pursuant to French rules on limitation 
periods.  

In consideration of the situation of the above victims Ms Radetzky lobbied for 
an amendment of the law concerning limitation periods. Thus in 2012 the law 
was  amended  in  order  to  allow  victims  of  terrorist  attacks  to  seek 
compensation  to  the  fund  she  manages  1  year  after  a  criminal  proceeding 
concerning  a  terrorist  attack  is  closed.  The  new  rules  on  time  limits  applied 
retroactively to the claimants in the case City of Poros. 

Ms  Radetzky  clarifies  that  the  fund  she  manages  compensates  victims  of 
terrorism for moral and physical losses and for economic losses. 

Physical  losses  are  compensated  based  on  specific  evidence  concerning  the 
disability of the claimant. 

Ms Radetzky says that the fund compensates victims even in case they have 
been compensated pursuant to liability rules.  

However  the  fund  does  not  compensate  a  loss  if  the  same  has  already  been 
compensated. 

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As  to  the  evidence  that  the  claimant  has  to  submit  in  order  to  obtain 
compensation  by  the  fund,  he/she  has  to  provide  copies  of  travel  tickets  or 
pictures proving that he/she was on board a ship or in the place of the attack 
at the time of the attack. 

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Minutes interview Peter Haagen (Raets Marine) 
Interviewee: 
Interviewers: 
Date and time: 

Peter Haagen 
Ioannis Giannelos, Johan Gille (Ecorys) 
10 August 2016, 15.00-16.00 

Context 
Raets Marine is a fixed P&I insurer. Besides the mutual P&I club system, since 
25  years  there  are  also  fixed  P&I  underwriters.  Mutuals  don’t  have  profit 
incentive,  put  fixed  underwriters  do.  In  practice  same  business,  insure  ship 
owners,  yacht,  fisheries,  passenger  vessels.  The  appetite  for  passenger 
vessels is more with P&I clubs than fixed underwriters, due to the risk profile. 
This is especially valid for cruise vessels due to the claim culture in cruise that 
creates a higher risk profile, making it not very appealing for most insurers. 

Example  Costa  Concordia,  claim  culture  causing  insurers  (American  claim 
culture  also).  Plus  risk  of  these  types  of  ships  is  less  predictable.  Not  too 
many clubs are willing to underwrite cruise ships, also the members of these 
clubs  do  not  always  like  cruise  vessels  involved.  Therefore,  there  are  talks 
whether or not big cruise lines (and also the large crude tankers) should have 
their  own  mutuality.  This  would  result  in  raising  premiums  for  this  sector 
segment. For ferries there is not such a problem at large. 

In  any  case,  Raets  Marine,  as  a  fixed  P&I  have  a  limited  appetite  for  cruise. 
These  require  very  high  limits  of  insurance.  They  underwrite  up  to  limits  of 
10-25-50 mln, but for the big ones you need 500 mln. (400,000 SDR per pax 
* capacity can be much higher for big cruise ships). Above 500 passengers a 
special  approval  is  needed.  Passenger  ships  in  their  books  smaller  sized, 
ideally  ferries  or  day  trip  vessels.  Vast  majority  of  their  portfolio  in  Turkey, 
some  in  Indonesia,  and  here  &  there  across  Europe.  Example  ferries  to 
Wadden Sea islands, Bosporus ferries etc. 

No  real  changes  in  behaviour  observed  since  the  entry  into  force  of  Liability 
Regulation. No claims since. Continued to insure, take note of the regulation. 
Only  effect  has  been  the  increase  of  liability  limits,  the  size  of  ships  to  be 
insured  was  reduced  in  order  to  fit  their  capacities.  Technically  this  reduces 
their  market,  but  as  they  already  targeted  smaller  vessels  only,  it  did  not 
directly affect them. 

The insurance market comprises of the IG (with 13 P&I  clubs) and a number 
of fixed underwriters, globally overall maybe some 25-30. None in some parts 
of  the  world  (e.g.  Latin  America).  So  traditionally  the  market  already  works 
internationally.  A  ship  owner  simply  needs  to  have  insurance,  irrespective  of 
where he sails. He might rely on his local insurance broker (Aon, Marsh, etc.) 
to find him an appropriate insurance product. He would in most cases not be 
in  direct  contact  with  the  insurers  anyway.  Same  goes  for  other  types  of 
shipping insurance. 

Relevance 
Creating a level playing field is a positive objective. Harmonising is very good, 
although  Europe  is  still  not  very  good  at  it.  If  everybody  would  finally  follow 
suit  that  would  be  ideal.  As  all  insurers  are  affected  similarly,  it  has  not 

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affected  Raets  Marine  especially.  The  pay-to-be-paid  principle  was  already 
eroding  as  a  result  of  the  blue  card  introduction,  but  not  an  issue  for  them 
either. 

All 4 of the objectives of the regulation are relevant. These help improve the 
image  of  shipping  at  large,  especially  after  some  of  the  most  recent  events 
that have affected public opinion (oil spills, costa Concordia etc.).  

Scope (international + domestic A&B): good to have level playing field, good 
to  have  protection  of  passenger  rights  and  awareness  among  them.  But  not 
aware  of  complaints  in  this  field.  This  might  be  different  for  the  cruise 
segment (with an American claim culture). 

Regarding domestic vessels, passengers are really not aware of what they are 
entitled  to,  in  Costa  Concordia  and  other  vessels,  there  is  a  lack  of 
information.  Complaints  on  levels  of  compensations  and  claims  come 
predominantly  from  the  cruise  business  also  due  to  the  American  claim 
culture.  This  is  not  the  case  for  ferries.  However,  the  increased  levels  of 
liability, the creation of the level playing field and the increased protection of 
passenger rights are good objectives that the shouldn’t be opposed. 

For  loss  of  live,  etc.,  fair  to  have  good  coverage  level.  For  things  like  car 
damage,  loss  of  luggage,  is  more  a  matter  of  travel  insurance  business,  not 
really critical. 

If  insurance  premiums  would  increase,  it  may  become  more  difficult  for 
smaller  vessels  (regulation  already  applies  to  ships  carrying  12  pax).  On  the 
other hand economic reality will dictate premium levels. 

Effectiveness 
The set of  objectives  create a stick & carrot situation. If a ship owner gets a 
stick (far higher liability thresholds) it should be more effective than anything 
else. For shipping at large however, during a difficult economic situation (such 
as that faced now) owners have difficulty to stay afloat. Money shortage first 
affects  maintenance,  thus  ships  are  deteriorating,  indirectly  raising  risks.  A 
stick  method  cannot  avoid  this.  Would  this  lead  to  higher  premiums? 
Potentially  yes,  but  in  this  current  situation  this  is  not  the  case.  There  is  no 
room to increase premiums as ship owners would not be able to pay for them. 
Usually  insurers  can  inspect  a  ship  and  reject  to  insure  it  if  this  found  to  be 
substandard.  Ultimately  those  vessels  that  are  not  up  to  standard  on  safety 
will not be able to insure. However insurer inspections take place when there 
are  reasonable  doubts  concerning  the  safety  standards  of  the  vessel.  Factor 
affecting the decision to make an inspection are not based on stringent rules 
per  se  but  general  management  practices,  safety  record,  claims  history,  age 
of ship, class, but most importantly on flag reputation….and data crunching. 

It  is  clear  that  the  Regulation  does  not  incentivise  safety  performance.  Ship 
owners  are  not  incentivised  by  liability  limits,  moreover  they  do  not  have  to 
demonstrate safety levels of vessels to insurers to get insured (this is not the 
industry  practice).  There  is  in  principal  no  ship  owner  that  cuts  corners  on 
safety (risking his ship) due to low liability levels.  

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369 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
The  Regulation  provides  larger  clarity  regarding  the  rules  of  compensation 
creating a level playing field across Europe and better protection of passenger 
rights. There is no specific knowledge of impact on claims. However, there are 
rumours that the more recent cases in IT and EL indicate a move of towards 
toward the higher limits to liability of the Reg. 400k SDR instead of 250k SDR. 
This  affects  the  ability  of  insurers  to  underwrite  larger  vessels  since  the 
underwriting  happens  on  a  higher  basis.  Normally  this  would  lead  to  higher 
premiums but the situation in the insurance market does largely not allow for 
this  increase  premiums  at  this  point,  this  is  an  insurance  competition  issue. 
Should  the  industry  be  confronted  with  an  increase  in  claims,  or  should  the 
market situation allow, premiums are expected to rise to compensate for the 
higher risk profile. However, under the new Liability Regulation, Raets Marine 
has not received any claims. 

There  has  been  an  increase  in  IG  P&Is  premiums  for  passenger  transport 
recently, however, and since this represents a global situation, this increase is 
mostly  irrelevant  with  the  Liability  Regulation.  The  raise  is  mostly  attributed 
to  the  discussion  within  P&Is  regarding  the  mutuality  of  risks,  very  large 
vessels,  such  as  the  larger  cruise  vessels  or  container  ships  (e.g.  Emma 
Maersk)  call  for  a  restructuring  of  the  mutuality  scheme.  This  is  part  of  a 
much  more  complicated  discussion.  Ferries  are  less  adversely  affected  than 
cruise ships.  

Efficiency 
Costa Concordia a number of passengers accepted compensation on the basis 
of  Athens  convention,  but  some  did  not  hoping  that  suing  the  mother 
company  will  result  in  higher  compensation,  anticipating  the  Liability 
Regulation. However insurance sector is ‘soft’ at the moment, e.g. can decide 
to dissolve costs within existing cost structures. This might change in future, 
but if and when is unknown. If a change in the claims culture starts to arise, it 
certainly  will  result  in  increasing  premium  levels.  Such  increases  would  be 
much more difficult for smaller ferries to facilitate. 

However  so  far  not  a  lot  of  material  claims  are  received.  If  there  would,  the 
industry  might  be  forced  to  increase  premiums  and  if  the  market  does  not 
allow then they would need to step out of this market. This is a general issue 
across the entire shipping insurance market, not just passenger ships. 

Insurance  is  part  of  the  running  costs  of  a  ship,  say  5-10%,  but  don’t  know 
how this reflects in passenger fares, probably not having an enormous impact. 
Things  like  bunkering  costs  have  much  bigger  impacts  and  are  much  more 
volatile also. No real difference between larger and smaller ships is expected. 
The vessel and operator claim history is important. Day ferries are not a high 
risk category 

Costa Concordia costs, although to be covered by re-insurance between P&Is 
(International Group) but no systematic change. Underlying issue is the sheer 
value of such big ships that may call for restructuring mutuality. Smaller ship 
owners,  and  smaller  insurers  are  increasingly  unwilling  to  be  in  the  same 
mutuality scheme with these. 

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Coherence 
Link  to  maritime  safety  policy:  ship  owner  is  not  incentive  by  a  stick  to 
become  more  safely  operating.  Higher  liability  limits  are  OK  for  passengers, 
but do not contribute to more  safety as  such.  No ship owner will cut corners 
just because the risk of liability is lower. Issues like advance payments, good 
that they are there, but not having an influence on shipping operations. 

Regulation  contributes  to  level  playing  field,  which  is  clearly  supported  by 
Raets Marine. It is not that passengers have been brutalised by ship owners in 
the  past,  though.  Big  incidents  like  Costa  Concordia  and  also  crude  carriers 
have been providing arguments for restructuring of the mechanisms, but still 
shipping  should  be  seen  as  an  important  and  reliable  industry.  Sometimes 
regulations  seem  to  suggest  that  the  sector  is  not  trustworthy,  which  is  not 
the case at all. 

EU Added Value 
Level playing field, same conditions for everyone is very much supported. And 
an insurer  does  not  have  to  assess  each  jurisdiction  saves  them  costs.  Idem 
from a claims perspective. 

The  common  Regulation  brings  a  harmonised  set  of  rules  that  simplifies  the 
process of assessing claims for insurers. Now they do not need to look up all 
national  legislations  in  such  cases  (this  is  more  relevant  for  international 
carriage). 

EU vs national provisions? No experience with this so far. 

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Interview minutes – HA Group 
Interviewee: 
Interviewers: 
Date and time: 

Sibrand Hassing 
Johan Gille and Linette de Swart (Ecorys) 
24 August 2016, 10.00- 11.30 

Background 
Mr. Hassing is the Director Fleet Operations of the HA Group. In this position 
he  is,  amongst  others,  responsible  for  monitoring  all  EU  regulations  and 
assessing  the  implications  for  the  HA  Group.  In  the  past  he  worked  at  the 
Dutch Ministry of Infrastructure & the Environment.  

The  HA  Group  consists  of  the  cruise  liners:  Holland  Amerika  Line  (HAL), 
Seabourn,  P&O  Australia  and  Princess.  Jointly  these  cruise  liners  operate  39 
ships. HAL owns 14 ships, all sailing under Dutch flag. The ships of Seabourn 
are  sailing  under  the  flag  of  the  Bahamas,  the  ships  of  P&O  Australia  are 
sailing under UK flag, most of the Princess ships are sailing under the flag of 
Bermuda, three of their ships fly the UK flag.  

The HA Group is part of the Carnival Group and the entire group operates 101 
ships.  The  headquarters  of  the  HA  Group  is  located  in  the  US,  similar  to  the 
headquarters of many other cruise liners. The cruise market in general is very 
US  oriented  and  also  the  majority  of  HAL  passengers  (around  80%)  are 
American.  Therefore,  US  legislation  is  very  important  for  HAL  as  well  as 
having  sufficient  insurance  in  place,  as  a  result  of  the  general  US  claim 
culture.  

From a cruise line perspective HAL operates in the middle ship size segment, 
which means that they do have ships with a maximum capacity of 2,700 pax.  

Relevance 
Before the entry into force of Regulation 392/2009 the ships of the HAL were 
already  insured  for  liability  claims.  For  each  risk  the  HA  Group  decides 
whether or not they will have insurance or whether the risk can be borne from 
the company’s own capital resources. Several risks need to be insured based 
on  legislation,  e.g.  wreck  removal  and  since  its  entry  into  force  also  the 
insurance  coverage  falling  under  Regulation  392/2009.  For  other  risks  an 
assessment of the risk and the insurance premiums will be made. 

Also before the entry into force of Regulation 392/2009, HAL did not receive a 
major  claim,  so  they  do  not  have  experience  with  this.  In  general,  most  of 
their passengers have their own travel insurance, which will cover the costs in 
case of lost luggage or minor injuries. In case a passenger files a complaint to 
HAL, they will try to solve the problem in consultation with the passenger(s). 
It  is  important  that  passengers  remain  satisfied.  In  most  cases,  passengers 
try  to  claim  a  free  cruise  trip  or  a  reduction  on  their  next  cruise,  instead  of 
claiming  money.  More  in  general,  passengers  have  become  more  aware  and 
pro-active in claiming their rights. The role of social media is a factor in this. 

Until now HAL does not have experience with claims falling under the scope of 
Regulation  392/2009  as,  luckily,  no  major  incident  has  happened  to  one  of 
the HAL ships.  

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HAL  only  offers  international  services  and  therefore  has  no  experience  with 
the domestic Class A, B, C and D provisions of the Regulation. From a cruise 
perspective  this  is  also  hardly  relevant  as  in  Europe  there  are  hardly  any 
domestic  cruises.  Perhaps  in  the  UK  and  Norway  such  cruises  may  be 
organised,  but  even  Norwegian  cruises  often  start  outside  Norway  (e.g.  in 
Denmark, Germany or the Netherlands). In the cruise industry it is important 
to start a cruise near a large international airport. Norway does not have such 
an airport available.  

Effectiveness  
Level playing field 
As  the  provisions  are  laid  down  in  a  Regulation  instead  of  a  Directive,  the 
contribution to the creation of a level playing field will be higher. In practise, 
P&I clubs offer more or less similar products, which make it easier to take out 
insurance. Less negotiation time is required, which smoothens the process. 

In  the  cruise  market,  only  the  largest  P&I  clubs  are  active  as  the  risks  that 
need  to  be  insured  are  very  high.  Smaller  clubs  are  not  able  to  offer  the 
required cover for such risks. HA Group has its liability insured with three P&I 
clubs.  For  some  of  them,  their  relation  goes  back  to  the  times  of 
establishment of the company (1873). The large clubs are able to provide the 
advance payments quickly. Being able to quickly fulfil such obligations is vital, 
especially in the cruise market. In case such an obligation is not fulfilled, the 
ship is not allowed to leave port which is crucial for a cruise ship (one needs 
to  keep  the  passengers  satisfied  and  being  detained  in  port  is  not  part  of 
that).  

Passenger protection 
With  the  entry  into  force  of  the  Regulation  passengers  are  better  protected 
than before, according to Mr. Hassing. On the one hand the insurance offered 
is equal, so the room for ship owners to deviate in this has diminished. They 
all  need  to  have  a  similar  insurance.  On  the  other  hand,  ship  owners  no 
longer have the  freedom to make different offers to passengers,  so the level 
playing field is improved. Before the entry into force one ship owner could, for 
instance, offer full compensation to the passenger in case of proven damage, 
while another could offer only to cover 50%. Nowadays, they have to offer full 
compensation in case of proven damage.  

Although it is good that passengers are compensated similar by cruise liners, 
this  will  not  influence  their  choice  for  a  specific  company.  When  choosing  a 
cruise,  they  look  at  the  destination  and  price.  They  do  not  consider  any 
compensation policies. They also typically do not read the general conditions, 
although  HAL  always  provides  them,  once  the  ticket  is  booked.  This  was 
already done before the Regulation entered into force.  

Passenger safety 
The  Regulation  did  not  impact  safety  standards  on  board  HAL  ships.  The 
safety standards were already very high and for cruise liners on-board safety 
is  vital.  Much  attention  is  paid  to  this  topic;  however  the  regulation  did  not 
additionally raise the awareness. Even before the Regulation, general policy of 

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373 

 
 
 
 
 
 
 
 
 
 
 
 
 
the  HA  Group  was  not  to  go  to  dangerous/high  risk  areas.  Recently,  their 
cruises  no  longer  go  to  the  East  Med  and  Turkey,  but  this  was  triggered  by 
internal  motivation  instead  of  the  regulation.  It  is  common  practice  in  the 
cruise market to avoid dangerous/high risk areas.  

In  case  cruise  ships  decide  to  sail  to  more  dangerous/high  risk  areas,  their 
insurance premiums will go up as well, as P&I clubs are only willing to insure 
such vessels when the risks are sufficiently covered.  

The cruise market is more influenced by the IMO ISPS Code. As a result of the 
9-11  attacks  on  board  security  is  more  intensely  monitored  in  order  to 
increase on board security. In addition, cruise liners are nowadays also more 
focused  on  onshore  security  performance.  For  example,  bus  companies 
offering  transport  to  touristic  locations  are  asked  for  their  safety  records,  in 
order to ensure that passengers are safely transported to and from the ship. 
The  responsibility  of  a  cruise  operator  for  the  passenger  has  thus  extended. 
This result more from a business perspective than a legal perspective, as from 
a legal perspective the operator is often not responsible for passengers going 
ashore.  

Efficiency 
The  HA  Group  did  not  experience  problems  with  obtaining  the  required 
insurance.  All  P&I  clubs  ensured  that  they  offered  the  insurance  needed,  so 
both  the  war  risk  and  non-war  risk  cover  were  easily  obtained.  In  practise, 
the HA Group obtains cover from several clubs in order to spread the risk. In 
case HA  Group faces a  claim, it can potentially be very high; therefore more 
than  one  club  is  used  to  ensure  that  a  claim  can  be  dealt  with.  Each  club 
insures a part of the risk. 

Main advantage from an efficiency perspective is the more simplified process 
for  claim  handling.  The  Regulation  provides  guidance  on  how  to  deal  with 
claims  and  therefore  claims  could  be  dealt  with  in  a  more  standardized  way, 
as there is no room for interpretation. However, no impact on the number of 
FTE was seen, and HAL has not had any events effecting the application of the 
Regulation 

EU added value 
Main  advantage  of  the  Regulation  is  that  it  creates  uniformity.  Because  the 
provisions  are  laid  down  in  a  regulation  there  is  hardly  any  room  for 
interpretation. In each Member State the same rules apply and no deviations 
are  allowed.  Also  all  cruise  liners  are  facing  the  same  regime.  In  case  the 
provisions  were  laid  down  in  a  directive,  the  room  for  interpretation  would 
have been larger. Member States would also have more room to deviate from 
the  rules,  which  reduces  the  uniformity  of  the  rules.  In  such  case,  still  28 
different regimes would apply, which would make it more difficult to comply.  

The  Regulation  has  probably  impacted  the  ferry  shipping  more  than  the 
international  cruise  market,  as  in  the  cruise  market  most  operators  were 
already  insured  against  passenger  liability  (in  one  form  or  another).  This  is 
due  to  the  fact  that  the  cruise  market  is  very  US-oriented.  Ferry  shipping  is 

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EU organised and the claim culture is less anchored in the EU society than it is 
in the US one.  

Complementarity  
A  general  problem  with  both  IMO  and  EU  regulation  that  HA  Group  faces  is 
that  the  provisions  are  mainly  written  for  cargo  ships  and  not  for  passenger 
ships. From a regulatory view it is understandable that uniform rules apply to 
the maritime shipping sector as a whole, however for passenger operators in 
general, and cruise liners in particular, it is difficult to comply with the rules, 
as passenger shipping is very different from freight shipping.  

An  example  is  the  Polar  regulation,  which  sets  very  high  quality  and  safety 
standards.  From  a  cargo  shipping  perspective  these  provisions  make  much 
sense  as  such  vessels  will  really  enter  the  ice  and  tricky  waters.  The  same 
rules  also  apply  to  the  cruise  ships.  In  practise  they  operate  differently  in 
those areas, but still need to comply with the strict rules.  

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376 

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377 

 
 
 
 
 
 
 
 
 
Interview minutes – Spanish Ministry of Public Work 
Interviewee: 
de la Navegación 
Interviewers: 
Date and time: 

Dalila Frisani (Grimaldi)  

4 September 2016, 10:00-11:30 

Gerardo Aynos Maza Jefe de Área de Tráfico y Seguridad 

Introduction 
Mr  Gerardo  Aynos  Maza  works  at  the  Subdirección  General  de  Seguridad, 
Contaminación e Inspección of the Spanish Ministerio de Fomento. 

His department deals with maritime claims under the Athens Convention and 
under Spanish rules on passengers with reduced mobility. 

His  department  issues  also  insurance  certificates  under  the  Regulation 
392/2009 and is responsible for checking that ships carry such certificates. 

He refers that complaints for claims under the Regulation are to be addressed 
to  the  Agency  AECOSAN  (Spanish  Agency  for  Consumer  Affairs,  Food  Safety 
and Nutrition). 

Information concerning the accident Sorrento  
Mr  Gerardo  Aynos  Maza  refers  that  his  organization  was  not  involved  in  the 
Sorrento accident. 

However, his department received a complaint by a German passenger. 

The complaint concerned the reimbursement of the price of the ticket and not 
claims under the Regulation.  

Implementation of the Regulation 
Mr  Gerardo  Aynos  Maza  refers  that  to  the  best  of  his  knowledge  the 
implementation of the Regulation is not problematic in Spain. 

He also refers that inspections of ships show that ships are compliant with the 
obligation  to  be  insured  under  the  Regulation  and  that  carrying  out  the 
relevant  inspections  has  not  increased  the  administrative  burden  for  Spanish 
authorities. 

Passengers with reduced mobility 
He  refers  that  the  Regulation  has  not  impacted  d  the  Spanish  framework  on 
protection  of  people  with  disabilities  in  force  since  2007.  He  refers  that  no 
complaints  have  been  submitted  to  his  department  by  passengers  with 
disabilities  concerning  their  rights  under  Spanish  law  and  under  the 
Regulation. 

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Interview minutes – Greek Ministry of Maritime Affairs 
Interviewee: 
Interviewers: 
Date and time: 

Mr CHRISTOS KONTOROUCHAS 
Dalila Frisani 
September 20 2016, 09:00 – 10:00 

Introduction 
Mr  Christos  Kontorouchas  is  the  head  of  the  unit  dealing  with  EU  and 
international organizations of the Greek Ministry for Maritime Affairs & Insular 
Policy. 

The  Greek  Ministry  for  Maritime  Affairs  &  Insular  Policy  is  competent  for  all 
matters  concerning  the  operation  of  ships  and  the  monitoring  of  compliance 
with EU, international and Greek legislation concerning maritime transport. 

Among its competence there are issuing certificates of seaworthiness, issuing 
certificates attesting that insurance or other financial security is in force under 
the Regulation and Pal 2002. 

Case study City of Poros 
Mr  Kontorouchas  states  that  he  is  not  aware  of  any  file  opened  in  Greece 
concerning the City of Poros terrorist attack. 

However, he does not exclude that there is a security file. 

The interview focuses on the assessment of EU legislation in force at the time 
of the accident and today. 

Mr  Kontorouchas  refers  that  before  2009  there  was  an  obligation  to  have 
insurance  for  ships  carrying  regular  services  in  Greece.  It  was  in  force  since 
2001. 

In  1988  Greek  legislation  did  not  foresee  an  obligation  for  the  ships  to  be 
insured. 

The  interview  focuses  on  trying  to  assess  the  class  of  the  ship  City  of  Poros 
under current EU legislation. 

Mr Kontorouchas refers that taking into consideration the voyage that the ship 
City  of  Poros  was  carrying  at  the  time  of  the  accident  and  the  distance  from 
the coast that the ship would have reached at  any time during such voyage, 
the ship would probably qualify today as Class C ship. 

He  also  took  into  account  the  strength  of  the  wind  and  wave  height  during 
such voyage. 

The ship would not be covered under the Regulation as under Greek law ships 
of Class C are not covered by the Regulation. 

The ship, if above 300gt, would in any case be insured under national law and 
Directive 2009/20/EC. The liability covered would be based on fault and would 
cover the ship. 

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379 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Concerning  the  security  rules  in  force  at  the  time  of  the  accident  Mr 
Kontorouchas  refers  that  an  obligation  to  keep  a  registry  of  passengers  is  in 
place since 1999 further to Directive 98/41311 passenger ships departing from 
an EU port on a voyage of more than 20 nautical miles. 

However pursuant to Greek law it seems there was not an obligation to keep 
a registry of passengers in 1988. 

Concerning  controls  to  be  carried  out  before  the  departure  of  a  ship  Mr 
Kontorouchas states that there are currently no rules requiring the carriers to 
check  the  luggage  of  passengers  before  departure.  No  such  rules  were  in 
place in 1988 under Greek law. 

There was an obligation of the master of a ship to take care that no gun was 
carried  out  on  board  his  ship  without  his  permission  but  it  was  a  general 
obligation  whose  content  was  no  further  specified  and  did  not  imply  an 
obligation to check the luggage of passengers. 

Mr Kontorouchas states that there is no much  experience with compensation 
of passengers in case of terrorist attacks, since no other attacks were carried 
out in Greece after city of Poros. 

Effectiveness 
Mr Kontorouchas  confirms that all ships inspected comply with the obligation 
to carry an insurance certificate. 

He  also  states  that  his department  has  not  received  any  complaint  by  Greek 
passengers concerning alleged infringement of their rights. 

Implementation of the Regulation in Greece 
Mr  Kontorouchas  confirms  that  pursuant  to  Greek  law  adopted  in  2013  (n. 
4195,  article  seventh)  port  authorities  check  whether  the  carrier  complies 
with  the  obligation  to  provide  information  under  the  Regulation.  Non-
compliance  with  such  Regulation  can  be  fined  up  to  500000  euros.  The 
minimum amount of the fine is 300 euros. 

311   Council Directive 98/41/EC of 18 June 1998 on the registration of persons sailing on board passenger ships operating to or 

from ports of the Member States of the Community. 

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Interview minutes – Spanish Ministry of Public Works 
Interviewee: 
Interviewers: 
Date and time: 

Mr Hernández Gutiérrez José Francisco 
Dalila Frisani 
September 22 2016, 10:00 – 11:00 

Introduction 
Mr  Hernández  Gutiérrez  José  Francisco  works  in  the  legal  department  of  the 
General Directorate of the Merchant Marine within the Spanish Ministerio de 
Fomento. 

The  Ministry  is  competent  for  maritime  issues  in  Spain  including  the 
implementation  of  the  Regulation  and  all  tasks  related  to  the  issuance  of 
insurance  certificates  and  the  handling  of  some  passengers  claims,  such  as 
the ones concerning passengers with reduced mobility. 

Case study Sorrento 
Mr Hernández states that he has no information concerning the case at hand. 

The discussion focuses on the legislative framework applicable in Spain before 
the entry into force of the Regulation. 

Mr  Hernández  explains that international voyages fell under the  scope  of the 
regime of the Athens Convention since Spain had ratified it. 

For domestic voyages instead there was not a specific regime.  

The  applicable  rules  were  the  ones  of  the  Commercial  Code,  Consumer  law 
and the Civil Code. 

Notably,  the  liability  of  the  carrier  was  governed  by  the  rules  governing  the 
contractual liability  for  the  contract  of  carriage.  Such  rules  foresaw  a  liability 
based on fault, but the fault was not presumed.  

The passenger  had to prove it. There was no presumption of  fault in case of 
accident occurred during the contract of carriage. 

Often maritime accidents led to criminal proceeding. Thus passengers acted in 
criminal  proceedings  and  sought  compensation  under  tort  law,  meaning  that 
they brought carriers to court for the infringement of the obligation to protect 
them. 

In  other  words  in  Spain  it  was  easier  for  passengers  to  seek  compensation 
under tort law than under contractual liability rules. 

Concerning  insurance,  before  2013  there  was  an  obligation  of  selling  travel 
contract  which  included  insurance  in  case  of  accident.  Thus  in  case  of 
accidents  occurred  before  2013  Spanish  passengers  would  have  a  direct 
action against an insurer because they would buy insurance in addition to the 
ticket. 

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381 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
This insurance would cover the accident, and would oblige the insurer to pay 
compensation  to  the  injured.  The  carrier  was  the  policy  holder  and  paid  a 
premium  to  the  insurer  which  was  included  in  the  price  of  the  ticket.  This 
insurance  did  not  cover  the  liability  of  the  carrier  but  the  mere  fact  that  an 
accident  occurred  on  board.  The  passenger  was  the  beneficiary  of  the 
insurance  contract.  In  case  of  death  the  beneficiaries  were  the  spouse  and 
children  and  other  family  members  according  to  the  order  of  precedence 
provided for in article 22 of royal decree 1575/1989. 

Concerning  limits  to  liability  Mr  Hernández  refers  that  for  domestic  voyages 
the applicable limits to liability were the ones of the Convention on Limitation 
of Liability for Maritime Claims (LLMC). 

For international voyages the Athens Convention’s limits would apply.  

The  interview  focuses  on  the  issue  of  compensation  of  damages  in  case  of 
death of a passenger pursuant to Spanish law. 

In  case  of  death  of  a  passenger  damages  are  compensated  jure  hereditario. 
In  this  case  succession  law  applies.  The  carrier  has  an  obligation  (a  safe 
transport)  arising  out  of  the  contract  of  transport.  The  heirs  are  entitled  to 
claim for breach. They must prove the breach.  

As to personal injuries the compensated damages are the economic damages 
(medical expenses plus days of work lost) and a moral damage. 

Implementation of the Regulation 
Mr  Hernández  is  not  aware  of  any  provisions  implementing  the  rules  of  the 
Regulation  concerning  the  carrier’s  obligation  to  provide  information  to 
passengers, or the ones on advance payment, or the ones on passengers with 
reduced mobility. 

In  this  regard  one  should  consider  that  Spanish  law  already  had  provisions 
protecting passengers with reduced mobility.  

EU added value and coherence 
Mr Hernández points out that to the extent that the Regulation has extended 
Pal 2002 to domestic voyages it has improved the legal framework applicable 
to maritime passengers transport, making it more coherent. 

According  to  Mr  Hernández  the  previous  regime  differentiated  international 
and domestic voyages. Thus it was not coherent and it was difficult to justify 
the existence of different rules. 

The interview focuses on the liability of carriers in case of terrorist attacks. 

Mr Hernández explains that the liability of the carrier was based on fault. The 
carrier  could  in  theory  be  liable  in  case  of  a  breach  of  security  that  had 
allowed the attack. 

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He refers that Spanish law foresees a fund for the compensation of victims of 
terrorism. 

The fund is financed by insurers. 

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383 

 
 
 
 
 
 
 
 
 
 
 
Minutes - Interview Wagenborg 
Date and time: 
Interviewee: 
Interviewer: 

26 September 2016, 9.00-9.30 
Wouter van Hal 
Linette de Swart (Ecorys) 

Wagenborg  Passagiers  Diensten  BV  (Wagenborg)  is  a  Dutch  ship  operator, 
operating  ferry  services  between  Schiermonnikoog  –  Lauwersoog  and 
Ameland – Holwerd. Ships used on those routes qualify as Class D ships.  

As  Wagenborg  provides  transport  services  according  to  a  publically  available 
timetable,  the  services  are  qualified  as  public  transport  according  to  Dutch 
law.  Therefore,  the  services  are  excluded  from  the  scope  of  Regulation 
392/2009 as well as the Dutch legislation implementing the Regulation.  

Wagenborg  is  not  familiar  with  Regulation  392/2009  and  the  resulting  Dutch 
new  rules.  Normally  all  Dutch  ship  operators  do  receive  a  letter  from  the 
Inspectorate  (IL&T)  when  the  Dutch  government  introduces  new  legislation. 
In  such  a  letter  the  new  obligations  are  explained  and  IL&T  also  indicates 
whether  or  not  new  certificates  are  required.  Until  now  Wagenborg  did  not 
such a letter. 

All  vessels  of  Wagenborg  are  insured  for  passenger  claims.  The  ships  are 
insured  by  a  P&I  club.  Therefore,  the  company  is  able  to  pay  the  passenger 
compensation in case of a claim. However, the insurance is not a result of the 
entry  into  force  of  Regulation  392/2009.  Even  before  the  entry  into  force  of 
the Regulation, Wagenborg was insured for such claims. 

Wagenborg  does  not  have  the  certificate  as  referred  to  in  the  Regulation. 
They  also did not apply for  such a certificate,  as they were not aware of the 
new obligation. As indicated above, IL&T did not inform Dutch ship owners of 
the new legislation312.  

The safety on-board the Wagenborg ships is high. All ships of Wagenborg sail 
under  the  Dutch  flag  and  are  Dutch  owned.  As  the  ships  fly  the  Dutch  flag, 
the standards to use the flag are high. Without sufficient safety standards the 
ships would not be able to fly the Dutch flag.  

On average, Wagenborg transports around 800,000 passengers per year. The 
number  of  accidents  is  limited.  Serious  accidents  hardly  occur,  max  1  per 
year. Smaller accidents occur a bit more often, but still their number is low. In 
general,  when  a  passenger  follows  the  safety  instructions,  nothing  will 
happen.  Most  accidents  happen  on  the  car  deck.  Passengers  are  not  allowed 
between the cars on the car deck during (dis) embarking, however once in a 
while  a  passenger  does  not  oblige  to  this  instruction.  Being  between  moving 
cars on deck, could lead to a minor personal injury.  

312   However, it should be noted that after the interview held with IL&T is became clear that Wagenborg operates in internal 

waters and according to Dutch law provides inland waterway services instead of maritime services, therefore Wagenborg 
falls outside the scope of Regulation 392/2009 and is not required to have an insurance based on Regulation 392/2009. 

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One  of  the  more  challenging  provisions  in  Regulation  392/2009  is  the 
provision regarding the advance payment. In case the company needs to pay 
an advance payments to a large share of the passengers, for example in case 
of grounding, the amount will become  so high that the company is likely not 
able  to  pay  all  the  passengers  their  advance  payment.  A  solution  could  be 
that the insurer pays the advance payment. 

As  the  services  offered  by  Wagenborg  can  be  qualified  as  public  transport 
under Dutch law, the company has to comply with the Dutch rules regarding 
public transport. These rules guarantee access to public transport by disabled 
passengers or passengers with a reduced mobility. Therefore the accessibility 
of Wagenborg ships is high for these groups of passengers.  

Mr. van Hal is not aware of any claims regarding mobility equipment. In case 
of damage to the equipment, passengers do not turn to the ship operator, but 
often  contact  their  health  insurance,  as  these  insurances  have  rules  in  place 
for covering the costs of repair and/or replacement. In addition, the risk that 
something happens on-board the ship is very low.  

The  new  Regulation  increases  the  administrative  burden  for  the  shipping 
company.  For  all  of  the  vessels,  certificates  should  be  obtained,  which  is  a 
time and cost intensive process. The benefits of having the certificate are low 
as  the  safety  standards  are  already  high  (as  a  result  of  flag  state 
requirements). There is not much added value in the new requirements.  

Main issue for Wagenborg in passenger claims is the involvement of lawyers. 
These  lawyers  seem  to  work  more  for  themselves  than  for  the  passengers. 
The lawyer always wishes to establish liability first before giving insight in the 
actual  damage  suffered.  Main  reason  is  that  lawyers  will  only  get  paid  once 
liability is established. According to Dutch, Wagenborg needs to pay in those 
circumstances.  Such  practices  make  it  difficult  for  Wagenborg  to  settle  a 
passenger claim amiably.  

Overall,  EU  legislation  is  very  complicated.  It  took  Wagenborg  quite  some 
time to find out in which vessel class their ships fall. In order to make EU law 
more  effective,  it  would  be  much  welcomed  that  the  EU  rules  become  easier 
to  find  and  that  the  relevant  rules  are  all  clustered  in  one  and  the  same 
Regulation/Directive,  so  that  one  does  not  have  to  consult  may  different 
pieces of legislation. 

In addition, the Dutch codification is also complicated and difficult to follow. It 
takes  quite  some  effort  to  identify  where  and  how  the  EU  rules  have  been 
implemented in the Dutch Civil Code.  

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385 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Interview Dr. Zuzanne Peplowska0Dabrowska 
Interviewees: 
Interviewers: 
Date and time: 

Dr. Zuzanna Peplowska-Dąbrowska 
Ioannis Giannelos, Linette de Swart (Ecorys) 
26 September 2016, 10.00-11.00 CET 

Background 
Dr.  Zuzanna  Peplowska-Dąbrowska  is  an  assistant  professor  in  the  Law 
Faculty  of  the  Nicolaus Copernicus  University.  She  is  a  member  of  the  Polish 
Codification Commission for Maritime Law and has been involved in the Polish 
Maritime  Code  amendment  that  took  place  to  incorporate  Regulation 
392/2009.  Before  the  coming  into  force  of  Regulation  392/2009,  Poland  had 
not  ratified  the  2002  PAL.  Poland  was  (and  still  is)  Party  to  the  Athens 
Convention 1974. The entry into force of Regulation 392/2009 which caused a 
dichotomy  in  Polish  Maritime  Law,  as  currently  international  shipping  and 
domestic  shipping,  involving  Class  A  and  B  ships,  is  covered  by  Regulation 
392/2009,  while  all  other  domestic  shipping  is  covered  by  the  Athens 
Convention  1974,  as  Poland  applied  the  provisions  of  the  Athens  Convention 
1974  also  to  domestic  shipping  (irrespective  type  and  material  of  the  ship). 
For  this  reason,  Poland  is  currently  considering  to  ratify  the  2002  PAL.  This 
dichotomy was caused when the Polish Maritime Code was amended to reflect 
the  provisions  of  the  392/2009  Regulation.  Classes  C  and  D  are  regulated 
under the national law that incorporated and expanded the Athens Convention 
1974 to cover all contracts of carriage governed by the Polish Maritime Code, 
including  domestic  carriage,  however  they  are  left  out  of  the  scope  of 
application  of  Regulation  392/2009.  The  Codification  Commission  supports 
ratification  of  the  2002  PAL  with  the  intention  to  apply  this  to  all  carriages 
international  and  domestic  (covering  also  classes  C  and  D  also).  However, 
Classes C and D would be exempted from the mandatory insurance obligation.  

National application 
The  national  application  of  the  392/2009  Regulation  in  Poland  covers  both 
classes  A  and  B,  but  Class  B  application is  deferred  until  2018  regarding the 
carriers  obligation to carrying insurance required under the Regulation, while 
the  other  provisions  of  the  Regulation  (such  as  the  strict  liability)  already 
apply.  This  approach  was  chosen  because  Class  B  ships  were  considered  not 
being able to obtaining affordable insurance at low rates. For the same reason 
the  Regulation  application  was  not  extended  to  Class  C  and  D  ships.  In 
Poland,  the  Regulation  does  not  apply  to  HSC  and  DSC  nor  to  non-steel 
vessels. 

Relevance  
In Poland the main problem faced concerns the application of the old regime 
(Athens 1974) as under this regime the basis for liability was fault on the side 
of  the  carrier.  Moreover,  low  limits  of  liability  are  seen  as  a  major 
disadvantage  of  the  convention.  In  that  sense  the  Regulation  is  an 
improvement as under the new regime there is a presumed liability up to the 
high liability limits. In cases of shipping incident, the passenger only needs to 
prove the damage occurring during carriage, while lack of fault on the side of 
the  carrier  will  not  relief  him  from  liability.  Also  in  Poland  there  was  no 
national  legislation  regulating  the  topic  except  of  the  law  transposing  the 
application  of  the  Athens  Convention  to  domestic  carriage.  In  that  sense 

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Regulation 392/2009 was a relevant tool to use and no framework conditions 
have changed since to indicate that this is no longer the case. 

In the personal opinion of Dr. Peplowska-Dąbrowska, the Regulation should 
be  expanded  to  all  vessel  classes  as  passengers  should  not  enjoy  different 
rights  when  boarding.  A  reason  for  it  being  that  passengers  are  not  aware 
that different regimes might exist and therefore one overall regime would be 
preferable.  

Effectiveness 
Dr.  Peplowska-Dąbrowska  considers  that  Regulation  392/2009  definitely 
brings  in  a  better  protection  of  passenger  rights.  Regarding  the  levelling  of 
the  playing  field:  the  introduction  of  the  Regulation  has  caused  a  dichotomy 
as,  according  to  the  national  law  incorporating  the  Athens  Convention  1974, 
there  is  an  obligation  for  carriers  to  insure  all  domestic  passengers  carriage, 
not only classes A and B, however that obligation requires insurance up to low 
limits of liability as set in the Athens Convention 1974 and no direct action to 
insurer  is  provided.  With  Regulation  392/2009  a  different  regime  is  created 
where passengers in vessel classes A and B (the latter from 1.1.2019) enjoy a 
higher  level  of  passenger  rights  protection  compared  to  passenger  on  non-
Class  A  and  B  ships.  Also  different  liability  limits  between  ships  operators 
would exist, which is not preferable. All in all, the level playing field in Poland 
has  diminished in this  respect.  However,  it is  envisaged  that  after  the future 
ratification  of  PAL  2002  the  requirement  of  financial  security  from  PAL  2002 
will be applicable in domestic carriage solely to ships of Class A and B. In that 
respect  ships  of  C  and  D  class  will  be  exempted  from  PAL  2002,  while  other 
provisions of the Protocol will be applicable. It is believed that otherwise ships 
of classes C and D would face problems with in obtaining affordable insurance. 

No  proof  is  available  concerning  the  impact  to  insurance  premiums.  Dr. 
Peplowska-Dąbrowska  can  check  with  the  Polish  relevant  Ministry  for  such 
proof  collected  during  the  implementation  of  consultation  phase  of  the 
Regulation in Poland. 

As  far  as  incentivising  safety  performance,  it is  expected  that  the  Regulation 
should cause insurers to place higher pressure on the safety requirements of 
vessels.  Thus  the  Regulation  is  thought  of  having  a  preventive  effect  and 
indirectly increasing vessel safety. 

Finally,  regarding  the  effectiveness  of  the  Regulation  in  securing  a  balanced 
framework  of  passenger  rights,  this  goal  is  much  better  achieved  under  the 
new regime. With the change of the legal regime being quite substantial and 
direct  action  and  limits  to  liability  being  now  established,  a  more  balanced 
passenger rights protection framework is now the case. 

There  is  no  sign  or  expectation  of  other  impacts  of  the  Regulation’s 
application.  Dr.  Peplowska-Dąbrowska  can  check  with  the  Polish  relevant 
Ministry regarding any evidence of direct or indirect impact of the Regulation 
on maritime passenger fares. 

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Efficiency 
Dr.  Peplowska  has  no  knowledge  of  the  impact  of  the  Regulation  to  the 
In  her  upcoming 
Maritime  or  other  public  authorities 
communication with the ministry she can also check if this is the case. 

in  Poland. 

Coherence 
In  comparison  with  the  Montreal  convention,  it  is  difficult  to  apply  the  same 
level  of  protection  for  both  modes  of  transport.  Comparison  of  maritime  and 
aviation  law  shows  visible  differences  when  discussing  issues  such  as  the 
limits  to  liability.  Passenger  protection  comparison  depends  on  the  types  of 
claim.  There  is  similar  level  of  protection  for  delays  etc.  however  different 
levels of protection regarding personal losses. 

The  differences  in  air  and  maritime  carriage  markets  should  be  considered 
when  discussing  the  unification  of  the  regimes  for  the  2  modes.  The  major 
goal should be that passengers are well informed on their rights.  

There  appear  to  be  no  striking  problems  or  issues  when  examining  the 
Regulation in  comparison  to  the  rest  of  the  body  of  EU  policy.  A  clash  might 
be observed when discussing the comparison between the Regulation and the 
Travel  Package  Directive.  The  2  legal  instruments  conflict  as  the  Regulation 
gives a broad description of what is considered a carrier (might include e.g. a 
tourist  office).  The  Directive  sets  a  different  limit  to  liability  (2-3  times  the 
package  price).  There  is  currently  no  Polish  case  law  clarifying  this  aspect. 
Also  on  an  EU  level  no  rulings  have  been  given  related  to  this  issue. 
Therefore,  to  solve  any  issues  one  needs  to  seek  refuge  in  other  Member 
States.  Only  under  English  case  law  two  cases  have  ruled  on  these  issues. 
(Lee vs Airtours Holidays ltd and the Norfolk case). However, both rulings lead 
to  contradictory  outcomes  and  therefore  do  not  provide  guidance  on  the 
potential  outcome.  The  Regulation  is  applicable  in  the  time  of  the  adoption, 
Directives  need  to  be  adapted  in  national  law  but  this  does  not  resolve  the 
issue of which one takes precedence. 

Added value 
From  a  Polish  perspective,  the  Regulation  has  induced  the  prospective 
ratification of the Athens PAL 2002. The main reason for not ratifying this until 
now is political as there seems to be a lack of priority currently in increasing 
passenger rights protection levels. 

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Minutes – Interview Dutch Inspectorate (IL&T) 
Date and time: 
Interviewees: 
Interviewers: 

29 September 2016, 15.00 - 16.00 
Annet Bronnewasser and Aad Kramers 
Geert Smit and Linette de Swart (Ecorys) 

Flag state vs port state control 
The  Dutch  Inspectorate  (in  Dutch:  Inspectie  voor  de  Leefomgeving  en 
Transport,  IL&T  in  short)  both  performs  flag  state  control  and  port  state 
control  inspections.  As  part  of  the  flag  state  inspections  IL&T  issues  the 
necessary  certificates  for  Dutch  flagged  ships  and  enforces  international,  EU 
and  national  legislation.  It  is  up  to  the  flag  state  how  to  arrange  its 
inspections  (see  UNCLOS).  In  the  Netherlands,  flag  state  inspections  are 
thematically based. IL&T chooses a topic that is relevant, e.g. life boats, and 
will inspect ships on this particular topic. 

As  some  flag  states  do  not  perform  their  flag  state  duties,  port  state  control 
inspections have been introduced. Within port state control, which focuses on 
vessels  not  flying  the  Dutch  flag,  IL&T  only  enforces  (no  certificates  are 
issued). Port state control inspections are highly regulated (based on the Paris 
MoU) and only minor room for deviation is possible. Within port state control 
‘naming  &  shaming’  is  used.  On  the  website  of  the  Paris  MoU  ships  with 
defects are mentioned. This is very effective. Under flag state control it is not 
possible to do this (no legal possibility for it). 

Both inspections (flag state, port state) do influence each other. For example, 
a common defect established under port state control can be used to increase 
the number of flag state inspections on this topic.  

National application 
At the moment, IL&T issues certificates for all international conventions, with 
the  exception  of  the  HNS  Convention.  However,  IL&T  expects  that  this 
Convention will be added to the list in the near future.  

IL&T has a legal obligation to certify all Dutch passenger vessels. For IL&T it is 
not  important  whether  a  passenger  ships  is  qualified  as  Class  A  or  Class  D 
ship  under  Regulation  392/2009,  as  in  the  Netherlands  the  Regulation  does 
apply  to  all  passenger  vessel  operating  at  sea.  Where  at  sea  the  ship  is 
operating is for the Dutch certification not relevant. 

IL&T  issues,  based  on  both  war-  and  non  war  risk  related  blue  cards, 
statutory certificates. The certificates issued are in line with the international 
format  required  for  such  certificates.  Therefore  the  certificates  issued  follow 
the format laid down in Annex 1 of the Athens Protocol 2002. The blue cards 
are received from the P&I clubs. For each P&I club, IL&T will check whether or 
not  the  club  is  solvent  (and  can  provide  the  coverage  if  needed).  Each  year 
the ship operator needs to obtain a new certificate for this insurance. 

Only for Regulation 392/2009 IL&T is required to issue a statutory certificate. 
All  IMO  liability  Conventions  and  EU  liability  Regulations  require  statutory 
certification  based  on  blue  cards.  Only  insurance  Directive  2009/20  EG  does 
not  require  statutory  certification.  In  principle,  IL&T  only  issues  certificates, 

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based  on  article  4bis  PAL2002,  to  Dutch  flagged  ships.  Under  certain 
circumstances,  the  Inspectorate  can  issue  certificates  for  non-Dutch  flagged 
vessels as well. This can happen in a situation where the ship is operating in 
Dutch water (and therefore needs to have a certificate), while in its own flag 
state no law is in place requiring such a certificate.  

Not all salt water areas in the Netherlands are qualified as sea. For example, 
the  Waddenzee  (although  the  water  is  salt)  is  qualified  as  internal  water. 
Vessels  (although  seaworthy)  operating  on  the  Waddenzee  are  qualified  as 
inland ships and therefore fall outside the scope of Regulation 392/2009. 

Effectiveness 
For  the  large  cruise  vessels  the  impact  of  the  Regulation  will  be  low.  These 
vessels  already  had  an  insurance  in  place  and  where  already  able  to  cover 
passenger  claims  if  needed.  The  main  difference  for  them  is  to  have  a 
certificate  on-board,  which  may  lead  to  some  additional  administration. 
However, the consequences are limited. 

The Regulation will mainly impact small passenger vessels, for example sport 
fishing vessels. These vessels are qualified as passenger vessels and therefore 
should  now  have  insurance  when  operating  at  sea.  The  smaller  vessels  are 
confronted  with  new  rules  and  requirements,  which  will  ultimately  lead  to  a 
cost increase.  

For  IL&T  the  new  certification  obligation  led  to  an  increase  in  administrative 
burden  and  work.  The  Inspectorate  had  expected  that  insurers  would  inform 
ship-operators  about  the  consequences  of  Regulation  392/2009,  as  the  ship-
operators  are  their  clients.  However,  most  Dutch  ship-operators  turned  to 
IL&T  for  information.  It  took  a  sufficient  amount  of  time  to  inform  all 
operators. This was not foreseen by IL&T.  

Another  additional  administrative  burden  is  that  under  Dutch  law  IL&T  does 
not  only  have  to  sent  the  certificate  to  the  ship-operator  (who  is  required  to 
have the certificate on-board), but also to the cadastre as in the cadastre the 
owners of the ships are mentioned. Also all certificates obtained for a specific 
ship need to be laid down there as well.  

A peak in certificate application is seen in February, as many ships follow the 
traditional insurance year (from 20 February to 20 February). Ship operators 
are  rather  slow  in  applying  for  a  certificate  as  the  negotiation  with  the  P&I 
club takes long. The peak in applications leads to an increase in workload at 
the side of IL&T.  

The best way to improve maritime safety is accidents. For instance, after the 
accident  with  the  Costa  Concordia,  many  initiatives  have  been  taken  to 
improve  safety  standards.  Accidents  have  such  an  impact  that  they  are  a 
much  stronger  trigger  to  improve  safety  than  the  rules  laid  down  in  the 
Athens Protocol and the Regulation.  

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Other remarks 
The actual implementation of Regulation 392/2009 was done by the Ministries 
of Transport and Justice.  

The  EU  regulation  is  rather  complicated,  as  rules  regarding  maritime 
passenger  protection  are  spread  across  different  Regulation.  It  would  be 
welcomed  if  EU  legislation  would  become  easier  accessible,  e.g.  all  relevant 
rules in one document only.  

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391 

 
 
 
 
 
 
 
 
 
 
 
 
Ex-post  evaluation  of  Reg.  392/2009  on  the  liability  of  carriers  of  passenger 
by sea in the event of Accidents 
interpretation  and 
First  of  all  the  IMO  Secretariat  emphasizes  that 
implementation  of  IMO  instruments  is  a  prerogative  of  the  States  Parties, 
therefore, in principle, the IMO Secretariat does not comment on the way that 
IMO Member States give effect to the IMO conventions. 

Questions: 
1.  What were the main reasons for adopting PAL 2002? Are those reasons still 

valid? Are there new needs that would require additional measures? 

Answer:  The  main  reasons  for  adopting  PAL  Protocol  2002  were  updating 
the text of the 1974 Athens Convention and bringing it into line with other 
IMO  liability  conventions.  In  particular,  PAL  Protocol  2002  introduces  the 
principles  of  strict  liability  and  compulsory  insurance.  Also,  the  limits  of 
liability have been raised significantly, to reflect present day conditions and 
the mechanism for raising limits in the future has been made easier. There 
are  no  indications  known  of  that  these  reasons  would  not  be  valid  at 
present. 
The  IMO  Legal  Committee,  at  its  92nd  session  in  October  2006,  adopted 
the text of a reservation intended for use as a standard reservation to PAL 
Protocol 2002 and adopted Guidelines for the implementation of the Athens 
Convention,  to  allow  limitation  of  liability  in  respect  of  claims  relating  to 
war  or  terrorism.  The  aim  is  to  put  States  in  a  position  to  ratify  PAL 
Protocol 2002 and thereby afford passengers better cover. However, there 
was no need for additional measures. 

2.  Also  what  are  the  main  differences  compared  to  Athens  1974?  Can  you 

provide some examples of deviations? 

Answer:  PAL  Protocol  2002  introduces  compulsory  insurance  to  cover 
passengers  on  ships  and  raises  the  limits  of  liability.  It  also  introduces 
other  mechanisms  to  assist  passengers  in  obtaining  compensation,  based 
on  well-accepted  principles  applied  in  existing  liability  and  compensation 
regimes  dealing  with  environmental  pollution.  These  include  replacing  the 
fault-based liability system partly with a strict liability system for shipping 
related incidents.  

Examples:  A  new  Article  4bis  of  the  Convention  requires  carriers  to 
maintain  insurance  or  other  financial  security,  such  as  the  guarantee  of  a 
bank or similar financial institution, to cover the limits for liability under the 
Convention in respect of the death of and personal injury to passengers. 
The  limit  of  the  compulsory  insurance  or  other  financial  security  shall  not 
be less than 250,000 Special Drawing Rights (SDR) per passenger on each 
distinct  occasion.  Ships  are  to  be  issued  with  a  certificate  attesting  that 
insurance  or  other  financial  security  is  in  force  and  a  model  certificate  is 
attached to PAL Protocol 2002 in an Annex. 
If  the  loss  exceeds  the  limit,  the  carrier  is  further  liable  up  to  a  limit  of 
400,000  SDR  per  passenger  on  each  distinct  occasion  unless  the  carrier 
proves that the incident which caused the loss occurred without the fault or 
neglect of the carrier. 

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3.  Is  there  a  possibility  for  State  Parties  to  deviate  from  certain  PAL  2002 

provisions? If yes, where is deviation possible? 

Answer:  PAL  Protocol  2002  allows  a  State  Party  to  regulate  by  specific 
provisions of national law the limit of liability for personal injury and death, 
provided  that  the  national  limit  of  liability,  if  any,  is  not  lower  than  that 
prescribed in the Protocol. A State Party, which makes use of this option is 
obliged to inform the IMO Secretary-General of the limit of liability adopted 
or of the fact that there is none. 

Follow-up:  On  Question  3,  you  mention  that  State  Parties  are  obliged  to 
notify IMO of making use of their option to regulate higher limits to liability 
for  personal  injury  and  death,  that  those  foreseen  by  the  PAL  Protocol 
2002.  Can  you  please  share  the  countries  that  have  made  use  of  this 
option and accordingly notified IMO? Are you able to also share the higher 
limits set by those countries? 

Ad  1:  Regarding  Question  3  no  State  Party  has  so  far  notified  IMO  of 
making  use  of  the  option  to  regulate  higher  limits  to  liability  for  personal 
injury and death, than those foreseen by the PAL Protocol 2002. 

4.  Are  State  Parties  able  to  adopt  national  legislation?  Is  the  IMO  aware  of 
additional  national  legislation?  And  what  can  the  IMO  do  when  this 
additional  legislation  is  conflicting  with  the  provisions  laid  down  in  PAL 
2002? 

Answer:  In  general,  a  treaty  must  be  implemented  properly  into  the 
domestic  law  of  the  States  parties  so  that  it  can  be  applied  by  courts  or 
other  national  authorities.  As  regards  PAL  Protocol  2002  Article  4bis 
contains  many  provisions  that  need  to  be  implemented  but  so  do  many 
other provisions of PAL Protocol 2002 and PAL 1974. 
IMO  is  an  intergovernmental  regulatory  body  that  deals  with  matters 
referred  to  it  by  its  Member  Governments  and  is  mainly  involved  in  the 
development  of  international  regulations  on  the  basis  of  proposals  by  its 
Member  Governments, 
the 
responsibility  of  the  maritime  administrations  concerned.  IMO  has 
emphasised  the  importance  of  its  Member  States  actually  implementing 
maritime  treaties  into  their  domestic  law,  and  the  theme  for  the  World 
Maritime  Day  2014  organised  by  IMO  was  ‘IMO  conventions:  effective 
implementation’.  Moreover,  the  second  main  priority  of  the  2016-2017 
IMO’s Integrated Technical Cooperation Programme (ITCP) in the legal field 
is  the  promotion  of  a  wider  acceptance  of  the  limitation  of  liability  and 
compensation conventions. 

the  practical  application  of  which 

is 

5.  The EU is party to PAL 2002. Several of the EU Member States have ratified 
PAL 2002 as well, while others haven’t. Is there, from an IMO perspective, 
still the need that the remaining EU Member States do ratify PAL 2002 or is 
it sufficient that the EU is a party? 

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393 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Answer: From IMO’s perspective all IMO Member States are encouraged to 
ratify  and  implement  the  IMO  liability  and  compensation  conventions, 
including PAL Protocol 2002.  

Follow-up:  On  Question  5;  to  our  understanding  the  implementation  of 
Regulation  392/2009  by  the  European  Commission  as  well  as  the 
ratification of the PAL Protocol 2002 by the EU, effectively  implements the 
Protocol  provisions  to  all  EU  Member  States.  That  said,  what  is  the 
reasoning for  encouraging EU Member States to also separately ratify and 
implement  the  IMO  liability  and  compensation  conventions  and  the  PAL 
Protocol 2002? What would be the practical impact of such actions? 

Ad 2: Regarding Question 5 the IMO Legal Committee, at its 101st session, 
suggested  that  delegations  should  take  action  under  the  2014  World 
Maritime Day theme by encouraging their respective Governments to work 
towards  ratification  of  all  relevant  conventions.  Although  the  IMO 
Secretariat is not in a position to comment on EU legislation we have been 
informed  that  the  requirements  of  two  EU  Council  Decisions  (2012/22/EU 
and  2012/23/EU)  necessitate  further  EU  Member  State  intervention  to 
ratify PAL Protocol 2002. For this there are practical reasons to ensure that 
ships  registered  in  EU  Member  States  can  be  issued  with  the  correct 
international certification attesting that they have the necessary insurance 
in  place,  but  it  will  also  enable  the  PAL  Protocol  2002  to  be  extended  to 
Oversea Territories that fall outside the EU 

6.  The EU is currently under pressure. What would happen to the ratification 
of  PAL  2002  when  the  EU  would  no  longer  be  Member  to  the  Protocol,  so 
would denunciated? 

Answer:  According  to  Article  19(1)  PAL  Protocol  2002  the  EU  has  become 
Party  to  the  protocol  as  a  regional  economic  integration  organization 
(REIO)  and  has  the  rights  and  obligations  of  a  State  Party,  to  the  extent 
that the REIO has competence over matters governed by this Protocol and 
subject  to  other  provisions  of  Article  19.  Article  19(4)  provides  that  the 
REIO shall promptly notify the IMO S-G of any changes to the distribution 
of  competence,  including  new  transfers  of  competence.  As  stated  the 
interpretation  and 
is  not  the 
prerogative of the IMO Secretariat. 

implementation  of  IMO 

instruments 

7.  Has  the  application  of  PAL  2002  reached  its  objectives?  Does  IMO  assess 

this? If yes, how? 

Answer:  PAL  Protocol  2002  entered  into  force  on  23  April  2014  and  at 
present  there  are  25  States  Parties  which  represent  43.48%  of  world 
tonnage.  As  stated  from  IMO’s  perspective  all  IMO  Member  States  are 
encouraged  to  ratify  and  implement  the  IMO  liability  and  compensation 
conventions, including PAL Protocol 2002. 

8.  Have you realized any impact to the safety and security of shipping due to 

the ratification of the PAL 2002? 

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Answer:  IMO  has  not  yet  taken  out  a  study  on  the  relation  between  the 
safety  and  security  of  shipping  due  to  the  ratification  of  the  PAL  Protocol 
2002 but the (insurance) industry may have.  

9.  Have  you  realized  any  impact  on  transport  fares  and  insurance  premiums 

for ship-owners due to the ratification of the PAL 2002? 

Answer:  IMO  has  not  yet  taken  out  a  study  on  the  impact  on  transport 
fares and insurance premiums for ship-owners due to the ratification of the 
PAL Protocol 2002 but the (insurance) industry may have.  

Have you got experience with issues arising from State Parties giving effect 
to  the  PAL  2002  in  different  ways?  If  yes,  could  you  mention  some 
examples? 

Answer:  The  IMO  Legal  Committee,  at  its  101st  session,  considered 
insurance ramifications for vessels registered in States that had ratified or 
would  ratify  the  2002  Athens  Protocol  but  had  not  deposited  the  2006 
reservation  and  guidelines  endorsed  by  resolution  A.988(24)  which  are 
referred  to  in  the  answer  to  question  1.  The  Committee  noted  that  the 
reservation  and  guidelines  had  been  developed  and  agreed  with  the 
express  intention  of  facilitating  entry  into  force  of  the  2002  Athens 
Protocol.  The  Committee  urged  States  to  include  the  2006  reservation 
when  depositing  their  instruments  of  ratification  to  ensure  its  uniform 
application and allow operators of passenger ships to obtain the necessary 
insurance cover and certification to trade. 

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Input FENVAC S.O.S. Catastrophe 

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ANNEX 12  BASELINE SITUATION COUNTRY FICHES 

The Netherlands 
1.  What  was  the  regime  in  force  concerning  the  liability  of  carrier 
before  2013?  Was  there  was  a  regime  of  strict  liability  or  fault 
liability? 
The  Netherlands  was  not  a  party  to  the  Athens  Convention  1974.  However, 
most  of  the  provisions  of  the  Athens  Convention  1974  were  transposed  into 
Dutch  national  law.  Some  deviations  existed  between  the  Dutch  regime  and 
the  Athens  Convention.  The  main  deviation  concerned  the  liability  limits, 
which where higher under Dutch law. 

The  Netherlands  has  ratified  the  1996  Protocols  to  amend  the  1976  London 
Limitation of Maritime Claims (LLMC) Convention with entry into force as per 
23 March 2011. This implies that the overall limit of liability stated in Article 7 
313, i.e. SDR 175,000 per passenger multiplied by the 
LLMC 1996 is applicable0F
number of passengers the ship is authorised to carry. 

As  the  Dutch  regime  was  more  or  less  similar  to  the  Athens  Convention  the 
regime was a fault based regime as well.  

2.  Was  there  a  distinction  between  shipping  and  non-shipping 
incidents? 
Under  Dutch  law  no  distinction  between  shipping  and  non-shipping  incidents 
was made. 

3.  Which  were  the  rules  on  the  burden  of  proof?  Was  the  carrier  presumed 
guilty in case of shipping incidents? 
A carrier was liable for damage caused by the death or injury of a passenger, 
in  case  the  damage  was  sustained  during  the  carriage  and  in  case  a  ‘careful 
carrier’  could  have  avoided  the  incident  or  could  have  avoided  the 
consequences of such incident (Article 8:504.1 Dutch Civil Code ‘old’). 

A carrier was liable for damage caused by entire or partial loss or damage to 
cabin luggage or living animal, in case the damage was sustained during the 
carriage  and  in  case  a  ‘careful  carrier’  could  have  avoided  the  incident  or 
could have avoided the consequences of such incident (Article 8:505.1 Dutch 
Civil Code ‘old’): 

  Fault  and  neglect  were  presumed  in  case  the  death  or  injury  of  the 
passenger  or  the  loss  of  cabin  luggage  arose  from  or  in  connection 
with  the  shipwreck,  collision,  stranding,  explosion  or  fire,  or  defect  in 
the  ship,  unless  the  contrary  was  proved  (i.e.  by  the  carrier)  (Article 
8:504.2 jo 8:505.2 Dutch Civil Code ‘old’): 

  This  presumed  fault  or  neglect  did  not  apply  to  living  animals  (Article 

8:505.2 Dutch Civil Code 'old'). 

 

In  addition  to  the  examples  mentioned  in  Article  8:504.2  (and  the 
Athens  Convention)  the  carrier’s  fault  and  neglect  was  also  presumed 

313   Article 8:756 BW. 

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399 

 
 
 
 
 
 
 
 
 
 
 
 
                                                           
the  damage  caused 

in  case 
from  decrepitude  or 
malfunctioning  of  the  ship  that  was  used  during  the  carriage  (Article 
8:504.3 Dutch Civil Code ‘old’). This is one of the deviations from the 
Athens Convention; 

resulted 

  For other luggage such fault and neglect was presumed irrespective of 
the nature of the incident which caused the loss or damage, unless the 
contrary was proved (i.e. by the carrier); 

  The  carrier  could  not  be  held  liable  for  the  loss  of  or  damage  to 
314,  unless  these  goods  were  entrusted  to  the  care  of 
valuable  goods1F
the  carrier  and  the  carrier  had  agreed  to  provide  secured  storage 
(Article 8:507 Dutch Civil Code ‘old’); 

4. Was the liability of the carrier governed by specific rules governing 
the contract of carriage or by general rules on contractual liability? 
A specific liability regime for the carrier was in place. As indicated above, the 
system in place was highly comparable with the Athens regime, expect some 
deviations.  The  specific  regime  was  laid  down  in  Article  8:500  8:532  of  the 
Dutch Civil Code ‘old’. 

In  case,  the  regime  did  not  provide  an  outcome  for  a  specific  case,  the 
general rules on contractual liability (both  Article 6:74 and 6:162 Dutch Civil 
Code) were available as a fall back-option.  

5. Was the Member State member of the Athens 1974 Convention? 
The  Netherlands  was  not  party  to  the  Athens  Convention  1974,  however  the 
legal regime in place was more in less in line with the provisions of the Athens 
Convention 1974, expect some deviations.  

6.  Which  damages  were  compensated  under  national  rules:  physical 
loss,  economic  loss?  Were  there  specific  rules  on  losses  concerning 
luggage, disability equipment? 
The compensated damages were death  of  or personal injury, and damage to 
cabin  luggage  as  well  as  to  boarded  belongings.  There  were  no  specific 
provisions for damages to disability equipment. 

7.  Where  there  rules  granting  an  advance  payment  to  passengers  in 
case of shipping incident or any other form of assistance? 
Under  the  previous  Dutch  regime  it  was  not  possible  to  obtain  an  advance 
payment.  

8. Was there an obligation of the carrier to be insured? 
Under  the  previous  Dutch  regime  carriers  were  not  obliged  to  have 
compulsory insurance or any other financial insurance available. 

9. Did the passenger have a direct action against the insurer? 
No, passengers did only have an action against the carrier, not the insurer. 

314   E.g. money, gold, jewellery, works of art etc. 

400 

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10.  Were  there  limits  to  the  liability  of  the  carrier?  If  yes,  when  did 
they apply? In case of strict liability? What about fault liability? 
As  indicated  above  the  Dutch  liability  regime  was  more  or  less  equal  to  the 
Athens Convention 1974. Therefore, the limits applied to fault based liability. 
Main  difference  between  the  two  systems  were  the  level  of  compensations. 
According  to  Article  8:518.1  Dutch  Civil  Code  ‘old’  the  actual limits  were  laid 
315.  This  administrative  order  introduced  the 
down  in  an  administrative  order 2 F
following limits: 

  For  injury  to  or  death  of  the  passenger  a  maximum  of  €  137,000.- 

applied; 

  For the loss of or damage to luggage a maximum of € 1,000.- applied; 

  For  loss  of  or  damage  to  vehicles  or  ships  a  maximum  of  €  9,100.- 

applied. 

11.  Did  national  law  foresee  an  obligation  to  inform  passengers 
concerning their rights to compensation? 
No, there was no information obligation for the carrier. 

315   Please refer to: http://wetten.overheid.nl/BWBR0005012/2002-01-01. 

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401 

 
 
 
 
 
 
 
 
 
 
                                                           
Denmark 

1.  What  was  the  regime  in  force  concerning  the  liability  of  carrier 
before  2013?  Was  there  was  a  regime  of  strict  liability  or  fault 
liability? 
The  Danish  Merchant  Shipping  Act  contained  a  dedicated  section  on  carrier 
liability  (Part  15,  Articles  401  440).  Although  Denmark  was  no  party  to  the 
Athens Convention, the Danish liability regime showed many similarities with 
the Convention. 

The Danish system was based on a fault based liability regime. 

2.  Was  there  a  distinction  between  shipping  and  non-shipping 
incidents? 
In the Danish Merchant Shipping Act no distinction between shipping and non-
shipping incidents was made. 

3.  Which  were  the  rules  on  the  burden  of  proof?  Was  the  carrier 
presumed guilty in case of shipping incidents? 
In  the  Danish  Merchant  Shipping  the  following  was  stated  on  the  liability  of 
the carrier: 

  Article 418. The carrier shall be liable for losses suffered as a result of 
the  death  of  or  personal injury  to  a  passenger,  caused  by  an  incident 
in the course of the carriage if the loss was due to fault or neglect by 
the  carrier  himself  or  any  person  for  whom  he  is  responsible  acting 
within the scope of their employment. The same shall apply for losses 
or  damage  caused  by  delay  in  connection  with  the  carriage  of  the 
passenger; 

  Article 419.- 

-  1) The carrier shall be liable for losses suffered as a result of loss 
of or damage to luggage if caused by an incident in the course  of 
the  carriage  if  the  loss  was  due  to  fault  or  neglect  by  the  carrier 
himself or any person for whom he is responsible. The same shall 
apply  for  losses  or  damage  caused  by  delay  in  the  carriage  or 
delivery of the luggage; 

-  2) The carrier shall not be liable for loss of or damage to monies, 
securities or other valuables such as silver, gold, watches, jewels, 
jewellery and works of art, except where such valuables have been 
deposited with the carrier for safe-keeping. 

  Article  420.  The  liability  of  the  carrier  may  be  reduced  or  eliminated 
entirely,  if  the  carrier  proves  that  the  loss  or  damage  mentioned  in 
sections 418 and 419 was contributed to by the fault or neglect of the 
passenger; 

  Based  on  the  above  it  can  be  concluded  that  carriers,  under  Danish 
law, did not face presumed liability. Only in case their fault or neglect 
has been proved, can they be held liable.  

The burden of proof mainly laid with the claimant (i.e. the passenger). In the 
Merchant Shipping Act the following was said: 

  Article 421.- 

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-  1) The claimant shall have the burden of proving the extent of the 
loss  or  damage  and  that  the  loss  or  damage  was  caused  by  an 
incident in the course of the carriage; 

-  2) In the event of death or personal injury, the claimant shall also 
have the burden of proving the damage was caused by the fault or 
negligence  of  the  carrier  or  of  any  person  for  whom  he  is 
responsible.  If  the  damage  arose  in  connection  with  shipwreck, 
collision,  stranding,  explosion,  fire  or  as  a  result  of  defects  in  the 
ship,  however,  the  carrier  shall  have  the  burden  of  proving  that 
there has been no fault or neglect; 

-  3)  The  provision  of  subsection  2  shall  apply  correspondingly  for 
loss  of  or  damage  to  cabin  luggage.  The  carrier  shall  have  the 
burden  of proving that there has been no fault or neglect for loss 
of or damage to other luggage; 

-  4) The carrier shall have the burden of proving that loss caused by 
delay  was  not  due  to  the  fault  or  neglect  of  the  carrier  or  any 
person for whom he is responsible. 

4. Was the liability of the carrier governed by specific rules governing 
the contract of carriage or by general rules on contractual liability? 
Danish law did not have a specific set of rules in place governing the liability 
of  carriers  and  the  contract  of  carriage.  Liability  was  based  on  the  general 
liability  regime  (also  applicable  to  other  contracts).  As  part  of  the  general 
liability regime the burden of proof lay with the claimant (i.e. the passenger). 

5. Was the Member State member of the Athens 1974 Convention? 
Denmark  was  not  a  party  to  the  Athens  Convention  1974,  nor  to  the  Athens 
Protocol 2002 (before the entry into force of Regulation 392/2009). 

6.  Which  damages  were  compensated  under  national  rules:  physical 
loss,  economic  loss?  Were  there  specific  rules  on  losses  concerning 
luggage, disability equipment? 
The compensated damages were death  of  or personal injury, and damage to 
cabin  luggage  as  well  as  to  boarded  belongings.  There  were  no  specific 
provisions for damages to disability equipment. The carrier also had, under all 
circumstances,  the  right  to  be  exempt  from  liability  for  the  carriage  of  live 
animals which are carried as luggage. (Article 431 (4)). 

7.  Where  there  rules  granting  an  advance  payment  to  passengers  in 
case of shipping incident or any other form of assistance? 
No, there were no rules granting an advance payment to passengers. 

8. Was there an obligation of the carrier to be insured? 
Under  the  previous  Danish  regime  carriers  were  not  obliged  to  have 
compulsory insurance or any other financial insurance available. 

9. Did the passenger have a direct action against the insurer? 
No, passengers did only have an action against the carrier, not the insurer. 

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403 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
10.  Were  there  limits  to  the  liability  of  the  carrier?  If  yes,  when  did 
they apply? In case of strict liability? What about fault liability? 
Yes,  the  Danish  regime  introduced  limits  to  the  liability  of  the  carrier.  The 
following limits did apply according to Article 422: 

  422.-(1)  The  liability  of  the  carrier  for  the  death  of  or  personal  injury 
to each passenger shall not exceed 175,000 SDR. The liability for delay 
in connection with the carriage of the passenger may not exceed 4,150 
SDR; 

 

(2) The liability of the carrier for the loss of  or damage to or delay of 
luggage shall not exceed”: 

-  1) 1,800 SDR per passenger for cabin luggage; 
-  2) 6,750 SDR for valuables as mentioned in section 419(2); 
-  3) 10,000 SDR per vehicle; and 
-  4) 2,700 SDR per passenger for other luggage. 

11.  Did  national  law  foresee  an  obligation  to  inform  passengers 
concerning their rights to compensation? 
No, there was no information obligation for the carrier. 

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United Kingdom 
1.  What  was  the  regime  in  force  concerning  the  liability  of  carrier 
before  2013?  Was  there  was  a  regime  of  strict  liability  or  fault 
liability? 
The UK had ratified the 1974 PAL Convention and the 1976 SDR protocol with 
entry into force for the UK as per 30 April 1989. The ratification of the Athens 
Convention  was  incorporated  in  UK  law  through  the  Merchant  Shipping  Act 
1995,  provisions  183  and  1843F316.The  provisions  itself  were  enacted  as 
schedule 6 of the Merchant Shipping Act. The Athens Convention did not only 
apply to international shipping, but also to internal shipping in the UK through 
the  Carriage  of  Passengers  and  their  Luggage  by  Sea  (Domestic  Carriage) 
Order  19874F317.The  Convention  has  been  denunciated  again  as  per  21 
January 2014.  

The  United  Kingdom  has  further  ratified  the  1996  Protocols  to  amend  the 
1976 London Limitation of Maritime Claims (LLMC) Convention with entry into 
force  per  13  May  2004.  However,  pursuant  to  the  power  given  in  Article  15 
3bis  LLMC  1996  to  contracting  states  to  set  a  higher  limit  than  the  one 
prescribed  in  Article  7  (1)  LLMC  1996  for  loss  of  life  and  personal  injury 
claims,  the  UK  has  excluded  sea-going  ships  from  the  application  of  LLMC 
1996.5F318 

The  Athens  Convention  1974  introduced  a  fault  based  liability  (Article  3  (1)) 
and  therefore  in  the  UK  carrier  liability  was  based  on  a  fault  based  liability 
regime. 

2.  Was  there  a  distinction  between  shipping  and  non-shipping 
incidents? 
No,  the  Athens  Convention  did  not  make  a  difference  between  shipping  and 
non-shipping incidents. So also under UK law (which was de facto the same as 
the  Athens  Convention)  no  difference  between  the  two  incident  types  was 
made. 

3.  Which  were  the  rules  on  the  burden  of  proof?  Was  the  carrier 
presumed guilty in case of shipping incidents? 
As  the  UK  was  party  to  the  Athens  Convention  1974  the  burden  of  proof  lay 
with  the  claimant  (i.e.  the  passenger)  for  non-ship  related  incidents.  See 
Article 3 (2) of the Convention. 

Article 3 (2) of the Athens Convention 1974 
The  burden  of  proving  that  the  incident  which  caused  the  loss  or  damage 
occurred in the course of the carriage, and the extent of the loss or damage, 
shall lie with the claimant. 

In  several  cases,  especially  ship-related  incidents,  fault  and  neglect  on  the 
side  of  the  carrier  were  presumed  (Article  3(3))  under  the  following 
circumstances: 

316   http://www.legislation.gov.uk/ukpga/1995/21/contents. 
317   S.I.1987/670, please refer to http://www.legislation.gov.uk/uksi/1987/670/schedule/made. 
318   Source: Article 7 (b) Merchant Shipping (Convention on Limitation of Liability for Maritime Claims) (Amendment Order) 

1998, SI 1998, 1258. 

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405 

 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
  Fault  and  neglect  were  presumed  in  case  the  death  or  injury  of  the 
passenger  or  the  loss  of  cabin  luggage  arose  from  or  in  connection 
with  the  shipwreck,  collision,  stranding,  explosion  or  fire,  or  defect  in 
the ship, unless the contrary was proved (i.e. by the carrier); 

  For other luggage such fault and neglect was presumed irrespective of 
the nature of the incident which caused the loss or damage, unless the 
contrary was proved (i.e. by the carrier); 

 

In  all  other  circumstances  the  burden  of  proving  fault  and  neglect  lay 
with the claimant (i.e. the passenger). 

4. Was the liability of the carrier governed by specific rules governing 
the contract of carriage or by general rules on contractual liability? 
As  the  UK  was  party  to  the  Athens  Convention  1974,  the  rules  laid  in  this 
Convention  applied  in  the  UK.  Therefore  specific  rules  regarding  liability 
governed the contract of carriage.  

5. Was the Member State member of the Athens 1974 Convention? 
Yes,  the  UK  was  party  to  the  Athens  Convention  1974.  Before  the  entry  into 
force  of  Regulation  392/2009,  the  UK  was  in  the  process  of  ratifying  the 
Athens Protocol 2002.  

6.  Which  damages  were  compensated  under  national  rules:  physical 
loss,  economic  loss?  Were  there  specific  rules  on  losses  concerning 
luggage, disability equipment? 
The compensated damages were death  of  or personal injury, and damage to 
cabin  luggage  as  well  as  to  boarded  belongings.  There  were  no  specific 
provisions for damages to disability equipment. 

7.  Where  there  rules  granting  an  advance  payment  to  passengers  in 
case of shipping incident or any other form of assistance? 
No, there were no rules granting an advance payment to passengers.  

8. Was there an obligation of the carrier to be insured? 
Under  the  Athens  Convention  carriers  were  not  obliged  to  have  compulsory 
insurance or any other financial insurance available.  

9. Did the passenger have a direct action against the insurer? 
No, passengers did only have an action against the carrier, not the insurer.  

10.  Were  there  limits  to  the  liability  of  the  carrier?  If  yes,  when  did 
they apply? In case of strict liability? What about fault liability? 
The following limitation schemes were in place, before the entry into force of 
Regulation 392/2009: 

  Sea-going  ships  providing  UK  international  services  Limit  of  300,000 

SDR based on domestic legislation which incorporates LLMC; 

  Non-EU  ships  providing  international  services  Limit  of  46,666  SDR 

based on AC; 

  Sea-going  ships  providing  UK  domestic  services  (for  carriers  whose 
principal place of business is in the UK) Limit of 300,000 SDR based on 
domestic legislation which incorporates LLMC; 

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  Sea-going  ships  providing  UK  domestic  services  (for  carriers  whose 
principle place of business is outside UK) Limit of 46,666 SDR based on 
AC; 

  Non-sea  going  ships  providing  UK  domestic  services  on  inland 

waterways limit of 175,000 SDR based on LLMC.  

Per  category  the  following  limits  applied,  before  the  entry  into  force  of 
Regulation 392/2009: 
The  applicable  limits  were  46,666  Special  Drawing  Rights  (SDR)  per 
carriage6F319,  with  limits  for  cabin  luggage  of  833  SDR7F320,  for  vehicles  of 
3,333 SDR8F321 and for other luggage of 1,200 SDR.9F322 After the Herald of 
Free  Enterprise  disaster  (1987)  the  UK  has  used  the  power  of  Article  7  (2) 
Athens  Convention  1974  to  unilaterally  raise  the  limit  (in  1989)  to  SDR 
100,000 and as from 1998 to SDR 300,000.10F323  

11.  Did  national  law  foresee  an  obligation  to  inform  passengers 
concerning their rights to compensation? 
Yes,  based  on  SI  1987  No.  703  (The  Carriage  of  Passengers  and  their 
Luggage  by  Sea  (Notice)  Order  1987)  passengers  had  to  be  notified  about 
certain  provisions  of  the  Athens  Convention  1974.  Especially,  information 
regarding Article 5 (valuables), Article 7 (limit of liability for personal injury), 
Article  8  (limit  of  liability  for  loss  of,  or  damage  to,  luggage)  and  Article  15 
(Notice of loss or damage to luggage) had to be given11F324. 

France 
1.  What  was  the  regime  in  force  concerning  the  liability  of  carrier 
before 2013 Was there was a regime of strict liability or fault liability? 
The liability of the carrier was based on fault. 

Before  the  implementation  of  the  Regulation  French  rules  foresaw  a 
presumption of liability for carriers for damages to persons. 

This implied that in case of shipping incidents carriers could be held non liable 
only if they could prove that there was no fault or negligence on their behalf. 

In case of non-shipping incidents the law did not foresee any presumption of 
fault. Thus passengers claiming compensation had to provide evidence of the 
fault of the carrier. 

The  liability  for  the  loss  of  cabin  luggage  and  passengers’  belongings  was  a 
liability for fault. 

319   Article 7 Athens 1974. 
320   Article 8 (1) Athens 1974. 
321   Article 8 (2) Athens 1974. 
322   Article 8 (3) Athens 1974. 
323   Source: The Carriage of Passengers and their luggage by Sea (United Kingdom Carriers) Order 1998, SI 1998/2917, 

Article 3. 

324   http://www.legislation.gov.uk/uksi/1987/703/schedule/made. 

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407 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
2.  Was  there  a  distinction  between  shipping  and  non-shipping 
incidents? 
Yes,  there  was  a  distinction  between  shipping  and  non-shipping  incidents  to 
the  extent  that  the  carrier  was  not  presumed  liable  in  case  of  damages 
occurred  in  during  the  carriage  but  not  related  to  a  shipping  incident.  The 
notion of shipping incident in France included an “accident collective” or a tout 
sinistre majeure”. 

Such  notion  was  broader  than  the  notion  of  shipping  incident  of  the 
Regulation. 

3.  Which  were  the  rules  on  the  burden  of  proof?  Was  the  carrier 
presumed guilty in case of shipping incidents? 
Yes in case  of shipping incident the carrier was presumed liable for damages 
to persons. 

4. Was the liability of the carrier governed by specific rules governing 
the contract of carriage or by general rules on contractual liability? 
Yes the liability of the carrier was governed by Titre III of the loi n° 66-420 of 
18 juin 1966 sur les contrats d'affrètement et  de transport  maritimes.  Those 
provisions were codified in Article L5420-1 to L5421-12 of the Transport Code 
they are still applying to ships not covered by the regulation. 

This  law  provides  for  the  rules  applicable  to  the  contract  of  carriage,  the 
obligations  of  the  carrier  and  the  liability  of  the  latter  in  case  he  does  not 
comply with his obligations. 

5. Was the Member State member of the Athens 1974 Convention? 
No,  France  was  neither  party  to  the  Athens  Convention  nor  to  the  2002 
Protocol. 

6.  Which  damages  were  compensated  under  national  rules:  physical 
loss,  economic  loss?  Were  there  specific  rules  on  losses  concerning 
luggage, disability equipment? 
The law foresees that the carrier is liable for injuries and death. 

In  addition  the  law  foresaw  that  the  carrier  is  liable  for  damage  to  luggage 
and for registered touristic vehicles belonging to passengers. 

There were no specific rules on damages to disability equipment. 

7.  Where  there  rules  granting  an  advance  payment  to  passengers  in 
case of shipping incident or any other form of assistance? 
No, there were no specific rules. 

8. Was there an obligation of the carrier to be insured? 
There  was  not  an  insurance  obligation  specific  to  the  carrier,  but  the 
obligation under Directive 2009/20 applied to ships of more than 300 GT. This 
covers standard civil liability insurance for the operator of the ship. 

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9. Did the passenger have a direct action against the insurer? 
No, if a limitation fund had been constituted. 

10.  Were  there  limits  to  the  liability  of  the  carrier?  If  yes,  when  did 
they apply? In case of strict liability? What about fault liability? 
Yes, there were different limits for different types of damages. 

Damages  to  persons  were  limited  pursuant  to  Article  7  of  the  Convention  on 
Limitation  of  Liability  for  Maritime  Claims,  1976  (i.e.175,000  Units  of 
Account). 

No  limits  could  be  invoked  in  case  the  damage  was  the  consequence  of  an 
intentional, reckless action. 

The  law  referred  to  specific  implementing  measures  setting  limits  to  liability 
for  cabin  luggage  and  personal  belongings  of  passengers.  Such  measures 
limited the liability to 1.140 Euros per passenger for cabin luggage, 460 Euros 
par passenger for personal effect and non-registered cabin luggage and 4600 
Euros for both the passengers’ vehicle and the luggage it may contain. 

There were no limits for value objects that the passenger gave in custody to 
the personnel of the ship. 

11.  Did  national  law  foresee  an  obligation  to  inform  passengers 
concerning their rights to compensation? 
No. 

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Italy 
1.  What  was  the  regime  in  force  concerning  the  liability  of  carrier 
before 2013 Was there was a regime of strict liability or fault liability? 
In  Italy  before  the  entry  into  force  of  the  Regulation  passengers  were 
compensated  further  to  long  judicial  proceedings.  The  legal  basis  for 
compensation  were  the  rules  governing  the  contractual  liability  pursuant  to 
the contract of carriage foreseen in the Maritime Code. 

This  implied  that  liability  of  the  carrier,  as  interpreted  by  Italian  Court,  was 
based on fault.  

2.  Was  there  a  distinction  between  shipping  and  non-shipping 
incidents? 
No, there was not a distinction between shipping and non-shipping incidents. 

3.  Which  were  the  rules  on  the  burden  of  proof?  Was  the  carrier 
presumed guilty in case of shipping incidents? 
Yes,  pursuant  to  Maritime  Code  the  carrier  was  presumed  liable.  The 
presumption  was  a  rebuttable  presumption,  meaning  that  he  could  escape 
liability  if  he  could  prove  he  had  done  everything  possible  to  prevent  the 
event causing the loss. 

4. Was the liability of the carrier governed by specific rules governing 
the contract of carriage or by general rules on contractual liability? 
Yes, the liability of the carrier was governed by specific rules foreseen in the 
Maritime  Code.  The  Maritime  code  specifies  that  the  carrier  is  liable  for 
damages to the persons, to luggage and to  other  objects that the passenger 
delivered to the carrier in view of the carriage. 

5. Was the Member State member of the Athens 1974 Convention? 
No,  Italy  was  neither  party  to  the  Athens  Convention  nor  to  the  2002 
Protocol. 

6.  Which  damages  were  compensated  under  national  rules:  physical 
loss,  economic  loss?  Were  there  specific  rules  on  losses  concerning 
luggage, disability equipment? 
Pursuant  to  the  rules  on  the  contract  of  carriage  the  carrier  was  liable  for 
damages  to  person  or  to  property  that  the  passenger  was  carrying.  The 
Maritime Code  specifies that the carrier is liable for damages to luggage and 
to  other  objects  that  the  passenger  delivered  to  the  carrier  in  view  of  the 
carriage. 

The  types  of  damage  to  persons  that  are  compensated  in  Italy  are  not 
identified in specific rules but have been identified by the case law. In case of 
personal injury a claimant can seek compensation for the physical loss and for 
the  economic  loss  directly  linked  to  the  injury.  The  physical  losses  are 
compensated pursuant to tables that link the amount of the compensation to 
the disability caused by the event that caused the damage. The economic loss 
is  compensated  based  on  a  calculation  of  the  medical  loss  and  the  loss  of 
income due to the impossibility to work. 

410 

Support study to the Evaluation of Regulation (EC) 392/2009 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
This  applies  also  in  case  of  death.  Relatives  can  claim  compensation  for  the 
economic  loss  linked  to  the  death  of  the  relative  assuming  that  they  can 
provide  evidence  of  such  loss,  i.e.  actual  cost  borne  and  loss  of  the  right  to 
claim for maintenance from the deceased passenger. 

They  can  claim  also  compensation  for  the  physical  loss  they  suffered  as  a 
consequence of the loss of a relative (i.e. emotional trauma suffered). 

They  can  also  claim  compensation  for  the  physical  damage  suffered  by  the 
deceased  person,  assuming  that  a  certain  laps  of  time  elapsed  between  the 
accident and the death. 
There were no specific rules on damages to disability equipment. 

7.  Where  there  rules  granting  an  advance  payment  to  passengers  in 
case of shipping incident or any other form of assistance? 
No, there were no specific rules. 

8. Was there an obligation of the carrier to be insured? 
No. 

9. Did the passenger have a direct action against the insurer? 
No. 

10.  Were  there  limits  to  the  liability  of  the  carrier?  If  yes,  when  did 
they apply? In case of strict liability? What about fault liability? 
Yes, there were limits in case of damage to property, but no limits concerning 
damages to persons. 

For  luggage  the  limits  to  liability  were  calculated  based  on  the  weight  of  the 
luggage and amounted to 6 Euros per kilogram. 

For vehicles the limits to liability were set at 100 Euros or to the higher value 
declared by the passenger when the vehicle was boarded. 

11.  Did  national  law  foresee  an  obligation  to  inform  passengers 
concerning their rights to compensation? 
No. 

Support study to the Evaluation of Regulation (EC) 392/2009 

411 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Germany 
1.  What  was  the  regime  in  force  concerning  the  liability  of  carrier 
before 2013 Was there a regime of strict liability or fault liability? 
The regime in force before 2013 was based on fault as Germany incorporated 
the  Athens  Convention  by  way  of  reference  in  an  attachment  to  the 
Commercial Code. 

The liability regime of the Athens Convention applied to all ship and all types 
of voyages. 

2.  Was  there  a  distinction  between  shipping  and  non-shipping 
incidents? 
Yes. 

3.  Which  were  the  rules  on  the  burden  of  proof?  Was  the  carrier 
presumed guilty in case of shipping incidents? 
Yes. 

4. Was the liability of the carrier governed by specific rules governing 
the contract of carriage or by general rules on contractual liability? 
The  liability  of  the  carrier  was  governed  by  the  Athens  1974  Convention. 
Germany did not ratify the Convention but it incorporated it in its regulations 
by way of reference. 

5. Was the Member State member of the Athens 1974 Convention? 
No, Germany was not a member of the Athens 1974 Convention.  

6.  Which  damages  were  compensated  under  national  rules:  physical 
loss,  economic  loss?  Were  there  specific  rules  on  losses  concerning 
luggage, disability equipment? 
The compensated damages were death  of  or personal injury, and damage to 
cabin luggage as well as to boarded belongings. 

The  damages  compensated  under  national  rules  are  further  specified  by  the 
BGB  (German  Civil  Code),  which  contains  general  provisions.  Damages  to 
person include the costs of medical treatment and any additional measures to 
restore  the  health.  Also  the  costs  for  professional  rehabilitation  could  be 
compensated. If medical treatment was not adequate to restore the health of 
the  victim,  the  victim  could  claim  compensation  for  individual  pain  and 
suffering  in  accordance  with  section  847  of  the  German  Civil  Code.  Section 
842 of the Civil Code provides a claim for loss of earnings and lost career. In 
case  of  the  death  compensation  for  loss  of  earnings  can  be  acclaimed  to  the 
extent  that  the  victim  was  obliged  to  pay  maintenance  to  the  claimant. 
German  law  does  not  foresee  a  right  of  compensation  for  immaterial 
damages.  

There were no specific provisions for damages to disability equipment. 

German courts interpreted the Athens Convention, as allowing the recovery of 
nonpecuniary  damages  for  pain  and  suffering  under  section  847  of  the  Civil 
Code. 

412 

Support study to the Evaluation of Regulation (EC) 392/2009 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
7.  Where  there  rules  granting  an  advance  payment  to  passengers  in 
case of shipping incident or any other form of assistance? 
No there were not rules granting any advanced payment or any other form of 
assistance. 

8. Was there an obligation of the carrier to be insured? 
No, the carrier didn’t have an obligation to be insured.  

9. Did the passenger have a direct action against the insurer? 
No, the passenger did not have a direct action against the insurer. 

10.  Were  there  limits  to  the  liability  of  the  carrier?  If  yes,  when  did 
they apply? In case of strict liability? What about fault liability? 
Yes, for loss of life and personal injury a limit of liability of DM 320,000 (≈ € 
164,000)  per  carriage  applied.  For  cabin  luggage  a  limit  of  DM  4,000  (≈  € 
2,045), for vehicles a limit of DM 16,000 (≈ € 8,180) and for other luggage a 
limit of DM 6,000 (≈ € 3,068) applied. 

11.  Did  national  law  foresee  an  obligation  to  inform  passengers 
concerning their rights to compensation? 
No,  there  was  not  any  obligation  to  inform  passengers  about  their  rights  to 
compensation.  

Support study to the Evaluation of Regulation (EC) 392/2009 

413 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Greece 
1.  What  was  the  regime  in  force  concerning  the  liability  of  carrier 
before 2013 Was there a regime of strict liability or fault liability? 
Before  2013  the  legal  regime  which  covered  the  liability  of  carriers  of 
passengers caused by shipping accidents was governed by the Greek law no. 
1922/1991 which had ratified the Athens International Convention relating to 
the  Carriage  of  Passengers  and  their  Luggage  by  Sea  dated  13  December  of 
1974,  which  introduced  a  liability  based  on  fault.  The  Greek  Code  of  private 
maritime  law,  dated  since  1958,  applies  to  the  carriage  of  passengers  in the 
following cases: a) from the mainland to the Greek islands, b) from the Greek 
islands to the mainland and c) for the journeys in between Greek islands. The 
said the Code has also a liability provision based on fault for such accidents. 

2.  Was  there  a  distinction  between  shipping  and  non-shipping 
incidents? 
Yes,  this  distinction  was  restricted  in  the  burden  of  proof.  While  for  shipping 
accidents  (i.e.  shipwreck,  collision,  stranding,  explosion,  fire  and  damage  of 
the ship) the carriers’ fault or negligence was presumed, unless he proved the 
opposite,  in  non-shipping  accidents  the  victim  has  to  give  evidence  of  the 
fault of the carrier. 

3.  Which  were  the  rules  on  the  burden  of  proof?  Was  the  carrier 
presumed guilty in case of shipping incidents? 
Yes, the applicant had to give evidence that the event which caused the loss 
or damage had happened during the carrying. The carrier presumed guilty in 
case of shipping incidents unless he could prove the opposite  (see answer to 
question 2). 

4. Was the liability of the carrier governed by specific rules governing 
the contract of carriage or by general rules on contractual liability? 
Only the liability of the carrier for passenger’s death, injuries and damages or 
losses  of  their  belongings  was  governed  by  the  above  mentioned  law 
1922/1991. Other liability issues were governed by general rules on contract 
liability (civil code, code of private maritime law). 

5. Was the Member State member of the Athens 1974 Convention? 
Yes 

6.  Which  damages  were  compensated  under  national  rules:  physical 
loss,  economic  loss?  Were  there  specific  rules  on  losses  concerning 
luggage, disability equipment? 
Pursuant  to  the  rules  on  the  contract  of  carriage  the  carrier  was  liable  for 
damages to persons or to luggage that the passenger was carrying.  

Other valuable were compensated to the extent that they had been delivered 
to the carrier. 

The  passenger  or  the  relatives  of  the  passenger  were  entitled  to  obtain 
pursuant to Greek law: compensation for material damage (Article 928 GCC), 
i.e.  medical  and  funeral  expenses  as  well  as  loss  of  the  right  to  claim 
maintenance from the deceased passenger, loss of capacity for work. 

414 

Support study to the Evaluation of Regulation (EC) 392/2009 

 
 
 
 
 
 
 
 
 
 
 
 
 
7.  Where  there  rules  granting  an  advance  payment  to  passengers  in 
case of shipping incident or any other form of assistance? 
No. 

8. Was there an obligation of the carrier to be insured? 
No. 

9. Did the passenger have a direct action against the insurer? 
No. 

10.  Were  there  limits  to  the  liability  of  the  carrier?  If  yes,  when  did 
they apply? In case of strict liability? What about fault liability? 
The carrier could limit his liability except where he acted with intent to cause 
damage or recklessly. 

Greek  was  party  to  the  Convention  on  Limitation  of  Liability  for  Maritime 
Claims, 1976 and the limits to liability were governed by such Convention. 

11.  Did  national  law  foresee  an  obligation  to  inform  passengers 
concerning their rights to compensation? 
No. 

Support study to the Evaluation of Regulation (EC) 392/2009 

415 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
ANNEX 13  COMPARISON PASSENGER RIGHTS BETWEEN DIFFERENT MODES 

Area 

Right granted 

Rail 
Regulation 
1371/2007 

of 
to 

Must  be  provided 
when selling ticket 

Air 
Regulations 
889/2002,  261/2004 
and 1107/2006 
Notice  must 
be 
published  at  check-in 
desk, and provided in 
event  of 
incident. 
NEBs  have  obligation 
to  inform  PRMs  of 
their rights. 

Bus and coach 
Regulation 
181/2011. 

Maritime 
Regulations  1177/2010 
and 392/2009. 

Must be provided at 
latest on departure, 
and  at 
terminals 
and on internet. 

Member 

Must  be  published  on 
board and in ports 
When  contract  is  made 
State 
in 
information 
be 
provided  at  all  points  of 
sale,  including  sale  by 
phone and via Internet. 
At  least  €  21,000  in 
event of death. 

shall 

At least € 21,000 in 
event of death. 

No. 

At least 16,000 SDRs 
(€19,000) 
the 
event  of  death  or 
injury. 

in 

Information 

Liability  and 
security 

Obligation 
operator 
provide 
information 
rights 
Regulation 

on 
under 

to 

Right 
immediate 
assistance 
in 
case  of  death  or 
injury. 
Right 
to 
compensation  in 
case  of  death  or 
injury. 

to 

Right 
compensation 
when  baggage  is 

costs 
Necessary 
death, 
following 
for  any 
support 
of 
dependents 
passenger,  up 
to 
national  limit  of  at 
least  175,000  units 
of 
account 
(€161,000). 
Up  to  1,400  units 
of account (€1,285) 
per piece. 

are 
Carriers 
prohibited 
from 
contesting  claims  of 
up  to  113,100  SDRs 
(€134,000). 

costs 
Necessary 
death, 
following 
for  any 
support 
of 
dependents 
passenger,  up 
to 
national  limit  of  at 
least €220,000. 

The liability of the carrier 
shall not exceed 400,000 
units  of  account  per 
passenger (€ 500,000). 

Up  to  1,131  SDRs 
(€1,344). 

Up  to  €1,200  per 
piece. 

*  Up  2,250  unit  of 
account 
cabin 
luggage,  per  passenger 

for 

Support study to the Evaluation of Regulation (EC) 392/2009 

417 

 
 
 
 
 
 
 
 
 
Area 

Right granted 
lost or damaged. 

Rail 

Air 

Bus and coach 

Maritime 
(€ 2,807) 
*  Up  to  12,700  units  of 
account  per  vehicle  (€ 
15,845) 
*  Up  to  3,375  units  of 
other 
accounts 
luggage  per  passenger 
(4,210)325 
No. 

for 

of 
to 

of 
for 

Obligation 
operator 
ensure 
passengers’ 
personal 
security. 
Liability 
operator 
passenger 
safety, 
obligation 
have 
to cover this. 
Right 
assistance/care 
(food and drink). 

and 
to 
insurance 

to 

Delays 
cancellations 
missed 

Must take adequate 
measures. 

No. 

N/A. 

Yes. 

N/A. 

Obligation 
for 
insurance  (defined  in 
detail  in  Regulation 
785/2004). 

Yes,  see  annex  I,  Article 
4bis. 

N/A. 

For  delays  of  over 
60  minutes,  and 
where  available  or 
can  reasonably  be 
supplied. 

For  journey  of  over 
hours,  where 
3 
delay  is  over  90 
minutes, and where 
can 
available  or 
be 
reasonably 
supplied. 
Limited 
two 
nights, maximum of 

to 

For  delays  of  over  90 
and  where 
minutes, 
available 
can 
reasonably be supplied. 

or 

Limited  to  three  nights, 
maximum  of  €80  per 

Right 
accommodation 

to 

Yes, 
limitations. 

with 

no 

Yes, 
limitations. 

with 

no 

325   Conversion is based on a conversion rate of 1 SDR= 1,2477 EUR, per 23 September 2016 (http://nl.investing.com/currencies/eur-sdr-converter). 

418 

Support study to the Evaluation of Regulation (EC) 392/2009 

 
 
 
 
 
 
                                                           
Area 

Right granted 
where  delay 
overnight. 

is 

Rail 

Air 

Right 
alternative. 

to 

Right 
compensation. 

to 

between 

Choice 
reimbursement, 
rebooking  and  re-
under 
routing 
comparable 
transport 
conditions. 
Where 
reimbursement  not 
accepted,  right  to 
compensation 
varying 
between 
25%  of  ticket  price 
for short delays (1- 
2  hours)  and  50% 
if longer. 

between 

Choice 
reimbursement, 
rebooking  and 
re-
under 
routing 
comparable  transport 
conditions. 

For 
cancellation 
causing  delay  over  2 
hours,  and  delays 
hours, 
3 
over 
between  €250  and 
€600  (depending  on 
journey), 
length  of 
but 
if 
paid 
not 
extraordinary 
circumstances can be 
proved 

Bus and coach 
€80  per  night.  No 
where 
right 
cancellation 
or 
delay due to severe 
weather  conditions 
natural 
or 
disasters. 
For 
journeys  of  over  3 
hours only. 
Choice 
between 
reimbursement  and 
rerouting 
under 
comparable 
conditions. 

Compensation 
of 
50%  of  ticket  price 
if  choice  between 
re-
continuation 
routing 
and 
reimbursement  not 
offered. 

PRMs 

to 
Access 
and 
services 
assistance 
for 
disabled  persons 

Yes. 

Yes. 

Yes. 

Maritime 
night.  No  right  where 
cancellation or delay due 
to 
weather 
conditions. 

severe 

Choice 
reimbursement 
rerouting 
comparable conditions. 

between 
and 
under 

(delay 

In  event  of  delayed 
arrival  at  destination. 
Varies  between  25%  of 
for  short 
ticket  price 
delays 
is 
approximately  25%  of 
journey  time) 
planned 
and  50%  (for  delay  of 
50%).  Does  not  apply in 
the case of extraordinary 
circumstances  or  severe 
weather conditions. 
Yes. 

Support study to the Evaluation of Regulation (EC) 392/2009 

419 

 
 
 
 
 
 
 
Rail 

Air 

Bus and coach 

Maritime 

Area 

Right granted 
and  persons  with 
reduced mobility. 
Circumstances 
under 
which 
carriage  can  be 
refused. 

it 

If 
would 
contravene  access 
rules. 

No. 

Requirement  for 
to 
operator 
provide 
training 
to staff. 

Upon request. 

Operator  obliged 
provide 
to 
accessibility 
information. 

To  meet 
safety 
requirements  set  by 
law  or  authority,  or 
physically 
where 
impossible. 
Disability  awareness 
assistance 
or 
training,  depending 
on  role  of  staff  All 
new  staff  must  have 
‘disability-related’ 
training. 
Safety  rules  must  be 
publically available. 

Service 
quality 

Right 
to 
compensation  for 
damage 
to 
mobility 
equipment. 
Obligation 
operators 
establish 
complaint 
handling 
mechanisms 

for 
to 

Unlimited. 

In  accordance  with 
law. 

No requirement. 

reply 
initial 
Yes, 
required  within  one 
month  and 
final 
reply  within  three 
months. 

420 

Support study to the Evaluation of Regulation (EC) 392/2009 

To  meet 
safety 
requirements set by 
law  or  authority,  or 
physically 
where 
impossible. 
Disability 
or 
awareness 
assistance  training, 
depending  on  role 
of staff. 

meet 

To 
safety 
requirements  set  by  law 
or  authority,  or  where 
physically impossible. 

Disability  awareness  or 
training, 
assistance 
depending  on  role  of 
staff. 

conditions 
Access 
be  made 
must 
publically  available, 
physically or on the 
internet,  and  on 
of 
request 
passenger. 
Up  to  replacement 
or  repair  cost  of 
damaged 
equipment. 

reply 
initial 
Yes, 
required  within  one 
month  and 
final 
reply  within  three 
months. 

Access  conditions  must 
be publically available. 

Up  to  replacement  or 
repair  cost  of  damaged 
equipment  (laid  down  in 
both Regulations). 

Yes, initial reply required 
within  one  month  and 
final  reply  within  two 
months. 

 
 
 
 
 
 
Area 

of 

Right granted 
regarding 
violations 
these rights. 
for 
Obligation 
operators 
to 
establish  service 
quality 
standards, 
and 
to  publish  their 
performance 
against them. 

Enforcement 
bodies 

Independence. 

Where 
complaints 
should be made. 

Rail 

Air 

Bus and coach 

Maritime 

Yes. 
Publication 
includes  data  on 
complaints 
received. 

from 
in 

Independent 
operators 
organisation, 
funding  decisions, 
legal 
structure, 
decision-making. 
To  any  NEB,  no 
obligation 
to 
transfer  complaint 
general 
but 
obligation  for  NEBs 
to co-operate. 

for 

PRM 
Only 
services: 
Airports 
required  to  publish 
quality 
standards 
(but  not  explicitly 
required  to  publish 
performance  against 
No 
them) 
requirement 
for 
airlines. 
Not required. 

For  liability:  no  right 
to 
For 
complain. 
delays,  cancellations: 
To  any  NEB,  no 
obligation  to  transfer 
complaint 
PRM 
issues:  To  any  NEB, 
but  complaints  must 
be transferred to NEB 
with responsibility for 
incident. 

No. 

from 
in 

Independent 
operators 
organisation, 
funding  decisions, 
legal 
structure, 
decision-making. 
To  any  NEB,  no 
obligation 
to 
transfer  complaint, 
general 
but 
obligation  for  NEBs 
to co-operate. 

respect 

required 

Operators 
to 
publish quality standards 
to 
with 
passengers  with  reduced 
not 
mobility, 
but 
to 
explicitly 
required 
performance 
publish 
against 
No 
them. 
requirement 
for  other 
service quality issues. 
Independent 
of 
commercial  interests  in 
terms  of  organisation, 
funding  decisions,  legal 
structure  and  decision-
making. 
no 
any 
To 
obligation 
transfer 
to 
complaint  but  general 
obligation  for  NEBs  to 
co-operate. 

NEB, 

Source: Steer Davies Gleave (2012), orange additions Ecorys. 

Support study to the Evaluation of Regulation (EC) 392/2009 

421 

 
 
 
 
 
 
 
 
 
P.O. Box 4175 

3006 AD Rotterdam 

The Netherlands 

Watermanweg 44 

3067 GG Rotterdam 

The Netherlands 

T +31 (0)10 453 88 00 

F +31 (0)10 453 07 68 

E netherlands@ecorys.com 

W www.ecorys.nl 

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