Carriage of Passengers and their Luggage by Sea (Domestic Carriage) Order 1987

HL Deb 26 March 1987 vol 486 cc336-9

6.23 p.m.

The Parliamentary Under-Secretary of State, Department of Transport (Lord Brabazon of Tara) rose to move, That the draft order laid before the House on 4th March be approved. [14th Report from the Joint Committee.]

The noble Lord said: My Lords, I hope it will be for the convenience of the House if I speak at the same time to the second order standing in my name, the Merchant Shipping Act 1979 (Commencement No. 11) Order 1987.

The purpose of these two orders is to bring about the changes in United Kingdom law necessary to reflect the coming into force of the 1974 convention relating to the carriage of passengers and their luggage by sea, known as the Athens Convention. The substance of this convention has been in force in the UK since 1978. These orders merely give effect in the UK to the entry into force of the convention in other states who are party to it.

Awareness of and interest in the Athens Convention have been raised by the tragic loss of the "Herald of Free Enterprise" at Zeebrugge. I hope the House will think it right if I briefly outline the background to the convention as it affects the limitation of liability in respect of claims arising from a maritime accident.

There have been six conventions this century bearing on limitation of liability to passengers. The present United Kingdom regime rests on two: the Athens Convention, and the 1976 Convention on Limitation of Liability for Maritime Claims. Under the Athens Convention and in respect of death or personal injury to a passenger, the limit is £38,173 per passenger claiming. For loss or damage to cabin luggage, the limit is £681 per passenger. For vehicles including their contents, the limit is £2,726 per vehicle. For loss or damage to luggage other than cabin luggage or vehicle contents, the limit is £981 per passenger.

The limits I have described are not entitlements; a claimant has to establish the extent of his loss. In respect of death or personal injury to passengers or loss of or damage to cabin luggage arising from shipwreck, collision, stranding, explosion or fire or a defect in the ship, fault or neglect of the carrier is presumed unless the contrary is proved. In respect of loss or damage to other luggage, fault or neglect of the carrier is again presumed irrespective of the nature of the incident which caused the loss or damage, again unless the contrary is proved. The introduction of these presumptions altered very substantially the balance between passenger and carrier, to the advantage of the passenger. Perhaps even more important was that the carrier could no longer contract out of liability.

Two other provisions of the convention are of particular importance. First, states party to the convention may apply to carriers, whose principal place of business is in their state, a higher per capita limit in respect of death or personal injury to passengers than the general limit in the convention.

Second, a carrier may lose his right to limit his liability, if it is proved that the damage resulted from an act or omission of the carrier done with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result. In including this provision, it was the intention and expectation of those participating in the 1974 conference that the provision would result in limitation being denied to a carrier in only the most exceptional circumstances.

Now that the convention has entered into force we can press for the limits of liability to be increased internationally. At the next meeting of the International Maritime Organisation council in June the United Kingdom delegation will press for the organisation's legal committee to be instructed to review the limits in the Athens Convention as a matter of urgency. I have to say, however, that agreement and implementation of such changes could take a number of years.

The preparation of these orders and the loss of the "Herald of Free Enterprise" have naturally led us to look at the scope we have to increase the limits unilaterally. As I have already said individual states who are party to the Athens Convention have the right to take unilateral action to increase the limit for death or personal injury to passengers on their ships. We have looked at the provisions made in the other international transport conventions to which the United Kingdom is a party. These are the Convention Concerning International Carriage by Rail 1980 where the limit is £56,108; the Convention for the International Carriage for Passengers and Luggage by Road 1965 which, though it is not in force internationally, set a limit of £66,795; and for air, the Third Protocol to the Warsaw Convention, done at Montreal but not yet in force, which will raise the limit to £80,154.

In these circumstances, the Government are giving the most serious consideration to a substantial increase in the per capita limit. One possibility would be to raise it to a figure close to that adopted by the Civil Aviation Authority for air passengers—that is to say, about £80,000. The Government have already initiated urgent consultations with a wide range of United Kingdom interests that would be involved in such an increase. Such an increase would apply only to United Kingdom ships, and could not be retrospective. In the case of the Zeebrugge disaster your Lordships may have noted P&O's commitment to make available ex-gratia funds in addition to the £250,000 they set aside for immediate hardship needs.

The commencement order No. 11 brings into force the relevant sections of the 1979 Merchant Shipping Act 1979 and the parts of Schedule 3 of the Act which apply the Athens Convention internationally. You may notice that the preamble to this order contains a paragraph, the third, which says: And whereas it is necessary to provide for the said Athens Convention to continue to apply to such contracts for international carriage made before 30th April 1987. This is not in the other order; and it is not in the commencement order as laid before the House. It was included in these printed copies in error. As it is not part of the actual order, but only a preamble, it does not affect the validity of the order your Lordships are being asked to approve. The paragraph will be omitted from the order when it is made.

The domestic carriage order applies the terms of the Athens Convention to contracts for domestic carriage.

I commend the two orders to your Lordships.

Moved, That the draft order laid before the House on 4th March be approved. [14th Report from the Joint Committee]—(Lord Brabazon of Tara.)

Lord Underhill

My Lords, I am certain that the House will be grateful to the Minister for explaining these two orders. Without his explanation very few of us would know what the orders were about—certainly I would not—except that they confirm the Athens Convention. It is rather regrettable that the explanatory notes sometimes do not tell us in precise detail what the order and the information contained therein is about. I certainly give ready approval to both these orders.

I am delighted to hear from the Minister that the Government will press internationally, as a matter of urgency, for the figures to be increased. Incidentally, no one would realise what the figures are because there is no reference either in the explanatory note or in the order. I am certain that other noble Lords like myself will be interested to learn from the Minister of the power that the United Kingdom or any other nation has to take unilateral action to increase its compensation irrespective of other countries. We welcome that. The figures given on rail and air, I am certain, will be welcome. If the Government move on the basis of air compensation, we shall be very grateful.

With regard to getting the fullest possible support, first, what steps do the Government propose to take internationally and unilaterally? What bodies are they consulting? It is unfortunate that there are no passenger organisations such as exist in the case of rail. We would like to know, therefore, what bodies the Minister may be consulting to ascertain the best figure for any unilateral increase in compensation.

Lord Brabazon of Tara

My Lords, I am grateful to the noble Lord, Lord Underhill, for his reception of the orders. I take the point that the explanatory notes could have been expanded a little to make clearer what is being done. I will draw that to the attention of my right honourable friend.

As to the steps that we are taking internationally to get the limits raised, as I said in opening we will be bringing this before the IMO as soon as possible. We have already suggested to the IMO that the limits should be raised, but the IMO is understandably unwilling to consider that until the convention comes into force. As it now has, we can press forward on that matter.

As regards the decision to raise the limits unilaterally, we have already consulted in writing shipowners, insurers, unions and local authorities on the matter. We have asked them for a fairly speedy response. We should like comments back by 16th April. Following consideration of those comments, my honourable friend Mr. Spicer intends to act without delay.

On Question, Motion agreed to.