By: Richard J. Davies, Kraft Davies, PLLC, Seattle, Washington
When Does The 2002 Protocol Go Into Effect?
Under Article 20, the 2002 Protocol will go into effect 12 months after 10 member states have ratified it. On April 23, 2013, Belgium became the 10th member state to ratify the 2002 Protocol and it will now come into full force on April 23, 2014. The provisions of the 2002 Protocol will apply to any cruise that does not originate or stop in a United States port of call. In any case that involves a cruise outside of the United States, the 2002 Protocol will now significantly alter the landscape of the claim by imposing a form of strict liability for any “shipping incident” and substantially increasing the liability limits for the passenger’s injury.
What is the Significance of the 2002 Protocol for Cruise Line Passengers?
The 2002 Protocol is a significant shift for liability and damages claims in cruise ship injury cases. First, the 2002 Protocol creates a form of strict liability for a “shipping incident” that occurs during a cruise. “Shipping incident” is defined as: “shipwreck, capsizing, collision or stranding of the ship, explosion or fire in the ship, or defect in the ship.” Article 3, Section 5 (emphasis added). The 2002 Protocol further defines “defect in the ship” as follows:
“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 the berth or anchorage, or damage control after flooding; or when used for the launching of life saving appliances . . .”
The meaning of “shipping incident’ under this definition is subject to considerable debate depending on the circumstances of each case. In the context of a “shipping incident,” the cruise line is liable unless it can “prove” that the incident: “(a) resulted from an act of 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.” In short, the 2002 Protocol creates a form of strict liability for any “shipping incident” and subjects the cruise lines to liability unless they can prove that one of the exceptions applies.
Second, with respect to other incidents that do not qualify as “shipping incidents,” the cruise line “shall be liable if the incident which caused the loss was due to the fault or neglect of the carrier.” Article 3, Section 2. The burden of proving fault or negligence is on the passenger bringing a claim for a non-shipping incident. Id. Accordingly, the cruise ship passenger would have the burden to show that the cruise line was negligent in causing an injury before liability would attach.
Third, the 2002 Protocol significantly increases the liability limits for cruise lines and prohibits the cruise lines from lowering the limits by contract. See Section 18 (prohibits lower contractual limits). With respect to “shipping incidents”, the limits have been increased to 250,000 Special Drawing Rights (currently approximately $374,000 U.S. Dollars). If the loss exceeds 250,000 Special Drawing Rights, the carrier may be liable for further damages up to 400,000 Special Drawing Rights (currently approximately $598,000 U.S. Dollars) “unless the carrier proves that the incident which caused the loss occurred without the fault or neglect of the carrier.” Article 3, Section 1; Article 7 Section 1. The liability limits for cruise lines for non-shipping incidents will also increase to 400,000 Special Drawing Rights. Article 7, Section 1.
While the precise boundaries and significance of these changes will need to get worked out over time, the changes will certainly benefit passengers injured on cruise ships and will hopefully spur the cruise line industry towards more safety reforms.