Planes, Trains and … Cruiseships

01 May 2019

As the summer holiday season approaches everyone hopes to have a nice safe transfer to their destination, be it by air, rail or sea. Every year though people are injured in the course of this travel, though thankfully the frequency is quite small. It is however perhaps surprising that the contracts you enter into are not easily decipherable as to what the injured traveller’s rights may be.

It is necessary to understand the meaning of the three conventions that apply to the distinct modes of travel. These apply provided the incident involves signatory states.

Carriage by Air

The rules applying to flying are provided by Montreal Convention 1999 which has 132 states plus the EU as signatories. This means that if the unwary passenger has the misfortune to have an accident causing death or injury on board an aircraft (aeroplane, helicopter or even a hot air balloon) in the course of embarking or disembarking the carrier is strictly liable to compensate for the injuries.

The terminology is key as this means that an accident must cause the injury, rather than the colloquial acceptance of the term in the English Language.

Air crashes, runway collisions, on board defects, spilling of hot food or drink, food poisoning due to the served food or items falling from overhead compartments causing injury will be subject to strict liability. Trips and slips are largely not covered unless due to a defect in construction or maintenance.

Injuries caused by immobility, normal deceleration or acceleration and normal decompression would not be covered by strict liability.

The damages that may be awarded are subject to a strict liability limit of £113,100 SDR (currently about £105,000) subject only that recklessness may void the carriers entitlement to rely upon the limitation.

The limitation period that must be observed is 2 years from date of disembarkation.

Carriage by Sea

This will cover for instance cruise holidays and ferry crossings. In these circumstances the unwary traveller is protected by The Athens Protocol 2002, which is the successor to the Athens Convention 1974. If the unwary passenger has the misfortune to be injured, or killed during passage and this arises from a ‘shipping incident’ [which means shipwreck, capsizing, collision or stranding of the ship, explosion or fire in the ship, or defect in the ship, the carrier is strictly liable unless the carrier proves that the incident resulted from an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character; or was wholly caused by an act or omission done with the intent to cause the incident by a third party.

This strict liability extends to 250,000 Special Drawing Rights (currently approximately £230,000) (or in certain defined circumstances 400,000 Special Drawing Rights).

The injured person must act quickly as there are just two years before limitation, taken from the date of disembarkation and the case must be commenced in the Admiralty Division of the High Court.

International Carriage by Rail

The Berne Convention (COTIF) applies to international travel by rail between or through contracting parties. This could be for instance Eurotunnel or on the TGF. The variance is however that an action for death or personal injury of a passenger under the Berne Convention should be brought against the responsible railway/ franchisee/ operator on whose system the accident occurred and the courts of the state where the responsible railway is will normally have jurisdiction. This is qualified strict liability.

There is a prescribed limitation on the qualified strict liability of 70,000 Special Drawing Rights. Limitation in these cases is less prescriptive and is generally three years from the day after the accident.

In all conventions there is a lower strict liability for damage to property.

While more compensation may be sought in appropriate cases, such cases are not subject to strict liability.

What should I do?

These cases are however complex and despite the summaries above subject to various convention phraseology and interpretation. Additionally all the affected Defendants have deep pockets and will defend the cases if at all possible. At Curtislaw we have experienced solicitors who have acted in these cases for a number of years recovering hundreds of thousands of pounds. While we hope you will not be affected, we are your solution providers should the need arise.

The Holiday Team is a cross department team led by Andrew Bell, Director and Jerard Knott, Senior Associate Solicitor. The team advises on claims covered by (and outside the ambit of) the Package Tour Regulations; in air travel claims covered by the Montreal Convention; Cruise Industry claims under the Athens Convention and rail claims under the Berne Convention.

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