Date: Wed, 15 Dec 2004

To: nifs-athens@jus.uio.no

From: Erik Røsæg <erik.rosag@jus.uio.no>

Subject: Athens Correspondence Group (IMO Legal Committee): Articles 3 and 6

 

Dear Correspondents,

 

For your information, here's an exchange between Dr. Beate Czerwenka and myself concerning Articles 3 and 6 of the Athens Convention, 2002.

 

Regards,

Erik Røsæg

 

At 10:18 14.12.2004, Beate Czerwenka wrote:

Dear Erik,

 

due to time constraints I was not able to actively participate in the

negotiations on the availability of financial security in respect of the

Athens Convention, 2002. After having received a letter of our shipowner's

association I wonder, however, whether there might be some disagreement as

to the basis of the discussion.

 

In the letter mentioned above it was stated that according to Article 3 of

the Athens Convention 2002 the carrier shall be liable for the total loss if

he cannot prove that the incident was wholly caused by a third party. I have

doubts whether such an interpretation is correct. Rather I would - in

analogy to Article 6 of the Athens Convention - read the provision in the

sense that the carrier shall be liable for the whole or part of the loss to

the extent he cannot prove that the loss was caused by a third party.

 

I do not recall whether there has been a discussion on that issue. Could you

give me some guidance and eventually inform me about your opinion on that

matter?

 

Thank you in advance

and best regards,

Beate

 

______________________________________

 

Dr. G. Beate Czerwenka, LL.M. (Duke Univ.)

Federal Ministry of Justice

D-10115 Berlin

Tel.:      +49 (30) 2025 9314

Fax:      +49 (1888) 10580 9314

E-Mail:             czerwenka-be@bmj.bund.de

______________________________________

 

 

 

At 16:48 14.12.2004, Erik Røsæg wrote:

Dear Beate,

 

I am glad to see you actively back on the Athens file again!

 

The matter you mention has indeed been discussed. At the Diplomatic Conference, the Committee of the Whole even voted on whether all terrorism related losses should be excluded, or only those wholly caused by terrorism (on the basis of LEG/CONF.13/11

<http://rosaeg.no/erikro/WWW/corrgr/dipcon/11.pdf>). The result was that losses caused by terrorism (and other intentional acts of third parties) should only be excluded when they were "wholly caused" by such acts. This is well reflected in the Convention, where the exceptions for war and third party acts are differently worded.

 

Article 6 of the Convention deals with contributory negligence by the passenger claimant:

If the carrier proves that the death of or personal injury to a passenger or the loss of or damage to

his luggage was caused or contributed to by the fault or neglect of the passenger, the Court seized

of the case may exonerate the carrier wholly or partly from his liability in accordance with the

provisions of the law of that court.

Directly it does not, as you point out, provide for an exception to the terrorism liability (except, of course, in relation to the terrorist himself if he is a passenger). For may part I cannot see that it is possible to use an analogy from this clear wording to override the equally clear wording of article 3. Thus it does not suffice for the carrier to prove that the loss to some extent - and not wholly - was caused by a terrorist.

 

If the carrier is liable, the same rules of limitation of liability apply to claims caused by terrorism as to other claims.

 

This issue concerning article 6 has been raises a couple of times, but I do not think there is a written record on it. If I may, I would therefore very much like to distribute our correspondence to the Correspondence Group.

 

Kind regards,

Erik

 

 

On 15.12.2004, Beate Czerwenka wrote:

Dear Erik,

 

thank you very much for your fast response and your analysis. I agree that article 3 seems to be quite clear. I had just wondered whether one could not argue in a different way. After having read your e-mail and reconsidered the issue I must admit, however, that an analogy to article 6 is hardly possible.

 

I do not have any objections to circulating our correspondence to the Correspondence Group.

 

Kind regards,

Beate

 

 

            ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

            Professor Erik Røsæg (Rosaeg)

            Instituttleder, Nordisk institutt for sjørett, Universitetet i Oslo

            Director, Scandinavian Institute of Maritime Law, University

            of Oslo

            Karl Johansgt 47

            POB 6706 St. Olavs plass

            N-0130 Oslo, Norway

            Tel: (+47) 22 85 97 52

            Fax: (+47) 97 38 49 98

            Internet:

            <mailto:erik.rosag@jus.uio.no (Erik Rosaeg)>

            http://rosaeg.no/erikro/index.html

            ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++