Mobility and Transport

Maritime

Ex-post Evaluation of Regulation (EC) No 392/2009 on the liability of carriers of passengers by sea in the event of accidents

Ex-post Evaluation of Regulation (EC) No 392/2009 on the liability of carriers of passengers by sea in the event of accidents

Timing: February 2016 - December 2016

Background of the initiative

Regulation (EC) No 392/2009

(the 'Passenger Liability Regulation') establishes liability rules for damages caused to passengers in case of accidents during travel by sea. It covers both international and some types of domestic carriage.

In particular, it establishes strict liability, meaning liability without fault, for the carrier in case of an accident resulting from a 'shipping incident' as defined in the Regulation. For all other cases, when the accident is not due to a shipping incident (e.g. bad weather) the passenger is responsible to prove fault or neglect on the part of the carrier. At the same time, the Regulation obliges the carrier to have insurance, and gives passengers the right to claim compensation directly from the carrier's insurer.

A 'shipping incident' means shipwreck, capsizing, collision or stranding of the ship, explosion or fire in the ship, or defect in the ship. A '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.

On the other hand, the Regulation ensures that carriers will be in a position to obtain insurance for relevant risks by 'capping' liability to a maximum amount per incident, i.e. 250,000 SDR for each passenger per incident (approx. 312,000 EUR) or 340 million SDR in total per incident (approx. 424 million EUR). The limitation of liability also applies to war and terrorism risks, wherever the carrier may be found partly responsible for any resulting damages to passengers. This enables carriers to obtain insurance for war and terrorism risks as well, which have in the past also materialised in maritime transport.

SDR stands for Special Drawing Rights and it is an 'international reserve asset' whose value depends on the value of four major currencies: the U.S. dollar, euro, the Japanese yen, and pound sterling. This basket of currencies determining the value of the SDR will be expanded to include the Chinese renminbi (RMB) as the fifth currency, as from 1 October 2016.

The Regulation was adopted as part of the third maritime safety legislative package in 2009, because the obligation for carriers to take out insurance for potential claims under the Regulation is also linked to the carrier choosing 'safer ships' and 'more responsible shipping practices'. As passengers are directly affected by the safety standards in transport, the rules that govern their compensation in case of an accident during carriage should clearly form part of the relevant transport sector safety policy.

The Regulation contains provisions that envisage two possible amendments with a view to fully achieving the original objectives thereof and improving its application, as well as tackling any negative consequences for operators, in particular operators in domestic carriage. Therefore, the Commission has to examine a possible extension of the scope of the Regulation to also cover passenger carriage in all types of domestic traffic, and the possibility of an amendment to the limits of liability of operators for certain types of domestic carriage. These possible amendments will be examined through a subsequent impact assessment, which this ex-post evaluation is aiming to support and inform.

Consultation strategy

Strategy

Feedback from the publication of the Roadmap

Roadmap: http://ec.europa.eu/smart-regulation/roadmaps/docs/2015_move_048_evaluat...

No feedback has been received so far on the Roadmap

Open public consultation

Consultation period: 27 July to 31 October 2016

For more information: MOVE-OPC-PASSENGER-LIABILITY@ec.europa.eu

Targeted consultation

The targeted consultation is conducted by ECORYS Netherlands, on behalf of the European Commission.

  • Interviews: April 2016- September 2016
    • EU Member States - flag State and port State authorities;
    • Shipowners engaged in passenger carriage;
    • Passengers, victims' associations including consumer protection organisations;
    • Third (non-EU) States whose ships perform carriage falling under the Regulation;
    • Law firms representing clients for claims under the Regulation;
    • Academic experts on the subject of the Regulation and the Convention;
    • Other actors involved in the carriage of passengers by sea, such as tour operators and crew

Summary of interviews to form part of the Synopsis Report:

  • Survey: April 2016 - July 2016
    • EU Member States - flag State and port State authorities;
    • Shipowners engaged in passenger carriage ;
    • Passengers, victims' associations including consumer protection organisations;
    • Third (non-EU) States whose ships perform carriage falling under the Regulation;
    • Law firms representing clients for claims under the Regulation;
    • Academic experts on the subject of the Regulation and the Convention;
    • Other actors involved in the carriage of passengers by sea, such as tour operators and crew.

Survey Questionnaire: https://s.chkmkt.com/?e=59688&h=6EE8B313F70721E&l=en&v=1&m=PREVIEW

For questions relevant to this e-survey, please contact: passenger.carrier.liability@ecorys.com

  • Expert workshop: (tbc)

Synopsis report

(not yet available)

Background documents

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

Impact Assessment Report (2005)

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 - COM(2005) 592 final

Communication from the Commission on the enhanced safety of passenger ships in the Community - COM(2002) 158 final

Contacts

MOVE-OPC-PASSENGER-LIABILITY@ec.europa.eu