BY NYAMBURA KIMAI

The Merchant Shipping Act, 2009, does a great deal to bring about key measures for passenger ships as well as for loss or damage to any property. Part XV, Sections 360-368 in particular, deal solely with passenger ships, control and returns of persons on ships.
Given the rapid advancement of society – and the shipping industry – the Merchant Shipping Act of 2009 can be said to be slightly out-dated as far as its provisions for passenger ships are concerned. That said, the Athens Convention relating to the carriage of passengers and their luggage by sea (PAL) 1974, as amended by the 2002 Protocol, ought to be looked at in detail.

The 2002 Protocol is a critical driving force in this area of law, given the changes it has made to the 1974 Convention. It introduces higher liability limits for carriers per passenger, per carriage (from 45,000-400,000 Special Drawing Rights). The Special Drawing Rights (SDR), as mentioned in both the Convention and its Protocol, are the units of account defined by the International Monetary Fund (IMF). Kenya’s membership to the IMF dates back to 1964, thus, valuation for limits relating to the carriage of passengers and their luggage will be in accordance with the IMF’s operations and transactions. Previously, liability limits were calculated in gold francs and then converted into the national currency of a State party.

The 2002 Protocol replaces the fault-based liability system with a strict liability system for shipping related incidents. Therefore, in the case of death or personal injury, the carrier or ship owner will be liable to pay 250,000 SDR. Subsequently, this amount can increase to 400,000 SDR unless the carrier can prove that the incident that caused the death or injury occurred without fault or negligence on his part. Take for instance, the Costa Concordia incident of 2013. Any claimant injured by the capsizing of the vessel did not have to prove fault. The burden of proof was on the carrier to prove that the ship capsized without fault on the part of the captain or any other member of staff.

Kenya’s current position is one of a fault-based liability system. This is made evident by way of Section 404(1) of the Merchant Shipping Act that stipulates that “if loss of life or personal injury is suffered by any person on board a ship owing to the fault of that ship and of any other ship, the liability of the owners of the ships shall be joint and several”.

Introducing a strict liability regime for passenger ships in Kenya would ensure that higher and safer standards are complied with. Carriers and ship owners would be more likely to exercise (better) due diligence to meet the standards imposed on them by the Protocol.
It is worth noting that signatory countries to the Convention are allowed to increase the limits for the maximum sum payable by a carrier in respect of death and personal injury, for instance, the Carriage of Passengers and their Luggage by Sea (UK Carriers) Order 1998 where the limit was increased for British Carriers to 300,000 units of account (i.e approximately £292,500).

In addition to the above, liability per passenger for loss of or damage to cabin luggage would be, under the Protocol, equated to 2,250 SDR and 3,375 SDR per passenger for the loss of other luggage. The latter, having not been catered for under the Merchant Shipping Act, has its authority under Article 7(3) of the Protocol. Under Article 7(2) of the Protocol, it states, “liability of the carrier for the loss of or damage to vehicles including all luggage carried in or on the vehicles shall in no case exceed 12,700 units of account per vehicle per carriage”.

This illustrates that the 2002 Protocol works as an all-encompassing regime. It seeks to capture loss or damage in all aspects, not just limited in scope to cabin luggage, a concept Kenya would benefit substantially from should she ratify the Athens Convention.

Another notable measure the Protocol would bring about is that a carrier must give evidence of insurance (compulsory insurance) of approximately 250,000 SDR per passenger, on the basis of strict liability. In addition to this, Article 5(1) allows for a claim to be brought directly to the insurer for up to 250,000 SDR. This has since been remedied by the enactment of the Marine Insurance Act Cap 390. This effectively means that high standards are almost certainly guaranteed for passenger ships and would benefit Kenya in the long run. It must be noted, however, that it is incidents and subsequent claims that determine the cost of insurance, as opposed to a fixed limit of liability. Similarly, limits of liability depend on the classification of ships, and as such, a single fixed liability for insurers may not be as effective.

The 2002 Protocol also introduces a double time bar provision where a claim may be brought before the court under one of two instances; a) a period of five years beginning with the date of disembarkation of the passenger, or from the date when disembarkation should have taken place; b) a period of three years beginning with the date when the claimant knew or ought reasonably to have known of the injury, loss or damage caused by the accident.

In contrast, Section 401(3) of the Merchant Shipping Act states that no proceedings may be brought after the period of two years from the date when a) damage or loss was caused; or b) loss of life or injury was suffered. The Protocol thus allows for flexibility and better caters towards ensuring that passengers are justly compensated.

Should Kenya continue to be uncertain about some of the provisions, the 2002 Protocol allows State parties, when ratifying, to make a reservation in line with the International Maritime Organisation (IMO) Reservation and Guidelines for Implementation of the Protocol; a concept adopted by the legal committee of the IMO on the October 19, 2006.

Similarly, the Protocol would allow for Kenya to regulate limits of liability for death and personal injury specific to national laws. The Protocol imposes less restriction and rigidity on a State party by giving an element of discretion. Article 6 of the Protocol stipulates, “a State party may regulate specific provisions of national law the limit of liability prescribed in Paragraph 1, provided that the national limit of liability, if any, is not lower than that prescribed in paragraph 1”.

Further to this, Article 11 stipulates, “A State party to this Protocol may apply other rules for the recognition and enforcement of judgments, provided that their effect is to ensure that judgments are recognised and enforced at least to the same extent…” The discretion the Protocol allows would be a welcome challenge for our courts as well as the respective authorities mandated to carry out work in this area.

In summation, since Kenya is not party to the 1974 Athens Convention, we may avoid the long process of having to denounce previous regimes. The 2002 Protocol ought to be ratified by Kenya given its broad scope in regard to passenger ships, as well as the avenues of redress it seeks to offer injured parties. Also, it may well revive the passenger cruise ship industry that has long been overlooked.

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