The Protection of Cruise Passengers and the Athens Convention

The partly application of the Athens Convention 1974 by Shanghai Maritime Court in Miss Yang v Cruise PLC reflected some problems relating to the application of the Athens Convention 1974 in China and its protection for the cruise passengers. With the popularization of cruise vacation and the development of cruise industry, issues relating to the protection of cruise passengers gain growing attentions. Law application and jurisdiction is essential for the protection of cruise passengers. This paper will discuss the need for legal protection of cruise passengers versus carriers, and explore the application of the Athens Convention 1974 to cruise passengers, in particular, the relations between its application and choice of law, its protection for passengers in choosing the court. This paper will carry out a comparative study on the issue of the application of the Athens Convention 1974 to cruise passengers and the issue of its direct effect and supremacy in China and UK. It concludes that the Athens Convention 1974 is applicable to cruise passengers, it shall have direct effect and supremacy in Chinese court, and China should accede to the 2002 Protocol to the Athens Convention 1974 for better protection of the cruise passengers.


Introduction
With the popularization of cruise vacation, the number of cruise passengers has been growing rapidly and steadily. According to Cruise Lines International Association (CLIA), the official global cruise industry "has surpassed the 2017 ocean cruise passenger projections, reaching 26.7 million cruise passengers glo-ditions and the information contained in the brochure or website, and shall be governed by English law and the non-exclusive jurisdiction of the English courts." 5 The booking conditions may also incorporate the Athens Convention, as in the "Norwegian Jade": "The provisions of the Convention Relating to the Carriage of Passengers and their Luggage by Sea 1974… ('2002 apply to the cruise element of your holiday as well as the process of getting on or off the ship concerned" 6 .
Contractual provisions either limiting the passengers' right or limiting the carriers' liabilities may directly or indirectly result in serious injustice to the passengers. As in making contract with a cruise line or its agent, the passengers do not have any bargaining power to change the term of the contract; and once they are on board the cruise ship, their safety largely depends on the navigation and management of the ship. Thus, it is necessary and of vital importance to discuss the legal protection for the cruise passengers, which largely depends on the applicable law, either international convention or domestic law. This paper will firstly discuss the application of Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea, 1974(the Athens Convention 1974 to cruise passenger's claim from a comparative viewpoint; it will then focus on the direct effect and supremacy of the Athens Convention 1974, which exclude the need for choice of law; the following part will discuss the validity of jurisdiction clause under the Athens Convention 1974; the final part is a short conclusion.

The Athens Convention and Its Protection for Passengers
The Athens Convention 1974 is an important convention which establishes a regime of liability for passengers carried on seagoing vessels, but allows carriers to limit their liability. It provides for liability of the carrier and performing carrier, limit of liability and loss of right to limit liability, competent jurisdiction etc. (Berlingieri, 2014). More important is its mandatory application for the protection of the passengers which invalidates contractual provisions limiting the passengers' rights under the Athens Convention 1974. Art.18 of the Athens Convention 1974 reads as following: "Any contractual provision concluded before the occurrence of the incident which has caused the death of or personal injury to a passenger or the loss of or damage to his luggage, purporting to relieve the carrier of his liability towards the passenger or to prescribe a lower limit of liability than that fixed in this Convention except as provided in paragraph 4 of Article 8, and any such provision purporting to shift the burden of proof which rests on the carrier, or having the effect of restricting the option specified in paragraph 1 of Article 17, shall be null and void, …" Accordingly, if the contractual provision provides higher protection to the passengers than that provided by the Athens Convention 1974, e.g. higher limit of liability or wider choice of courts, that provision will be enforceable. Otherwise, if the contractual provision limits the rights of the passengers in violation of the Athens Convention 1974, that provision will be deemed null and void. Instead, the rules in the Athens Convention 1974 will be applied to determine the relevant issues.
There are three protocols to amend the Athens The 2002 Protocol increased burden on carriers and their insurers and therefore increased protection for the passengers (Soyer, 2002  Protocol and its regime of liability is the same as the 1976 Protocol (Wu, 1996) 12 There are not many reported cases which directly applied the Athens Conven- Law as the parties did not have common habitual residence and the incident happened at high sea which is not governed by law of any state, therefore the applicable law shall only be determined by the general rule embodied in Art.2 of the Chinese Law on Applicable Law to apply the law which has closest connection with the incident, that is Chinese Law. However, in determining the liability of the defendant carrier, the Court did not apply rules in Chapter 5 of Chinese Maritime Code relating to carriage of passengers by sea, instead, the Court applied rules in the Tort Law of the People's Republic of China. Nevertheless, the Court did say there was a contract of carriage of passengers by sea between the plaintiff and the defendant and held that the carrier was a "performing carrier" who shall have the legal right to limit liability, then applied Art.13(1) of the Athens Convention 1974 to deny the defendant's right to limit liability. 14 In reading the judgement, I found it really strange that the Court didn't apply Art.3 or Art.4 of the Athens Convention 1974 to determine the liability of the defendant carrier but applied Art.13 to determine the loss of the right to limit liability. All the necessary elements for the application of the Athens Convention 1974 and its 1976 Protocol were met in this case: 1) China is a Contracting Party, 2) the contract has been made in China, 3) the port of departure and destination were in China but the ship called at intermediate ports of South Korea and Japan. The Athens Convention 1974 shall have been applied not only in determining the loss of the right to limit liability but in determining the liability of the carrier as well. Such a strange application of the Athens Convention 1974 and the failure to apply rules relating to carriage of passengers by sea under Chinese Maritime Code led to my conclusion that the Court did not regard the carriage of passengers by cruise line as "carriage of passengers" under the Athens Convention 1974 and under Chinese Maritime Code. Indeed, there is paper specifically arguing for differentiation of cruise contract from passenger contract by sea (Guo, 2016).

The partial application of the Athens Convention 1974 by Shanghai Maritime
Court in Yang v Carnival PLC is inappropriate. Firstly, whether it is a cruise only arrangement or a travel package including cruise tour, as long as there is cruise tour at sea, there is a carriage of passengers by sea. The fact that the cruise line provides much more services on board the cruise ship than ordinary carriage of passengers, that the purpose of the carriage is not or not simply to transport the passengers from a place to another place but to make the life on board a cruise ship a vacation or part of a vacation package, that the port of departure and the port of destination are the same, will not change the essential relationship of car-   guard in Wales and was drowned before being rescued. Mr. Davis's widow brought a claim under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934, but the Court held "travel by ferry from the Republic of Ireland to the United Kingdom is governed by the Athens Conven-tion…, as set out in Schedule 6 to the merchant Shipping Act 1995" 19 and that "notwithstanding the fact that Mr. Davis was in the sea, rather than on board Koningin Beatrix, when he met his death, it is now common ground and the parties are agreed that he died during the course of carriage within the meaning of the Convention and that the Convention therefore applies" 20 .

The Application of the Athens Convention 1974 in the United Kingdom
In

The Application of the Athens Convention 1974 and Choice of Law
The Athens Convention 1974 includes both substantive rules governing the liability of carrier to passengers and procedural rules governing jurisdiction of court over disputes between carrier and passengers. Its duly application will avoid conflict of jurisdictions and conflict of laws among the Contracting Parties (Han, 2014).

Direct Effect and Applicability of the Athens Convention 1974
Like any other international convention, the Athens Convention 1974 is the result of agreement of sovereign states, it could not enter into effect without prescribed numbers of ratifying states. After the Convention entered into effect, the Contracting States are obliged to give effect to it, but the means of giving effect is left to the Contracting States (Li, 2003).
In the United Kingdom, international conventions do not have direct effect and could not be applied by English Courts without the Parliament legislation given them force of law (Li, 2003

Priority of the Application of the Athens Convention 1974
For  no need to apply international convention. Such an approach to the application of international convention is inappropriate and problematic.
Firstly, when an international convention is applicable, applying the same rules in domestic law may lead to the same result but would never be regarded as China's performance of its treaty obligation to give effect to international convention it ratified. Failure to apply international convention by the Courts will obviously be regarded as or be presumed to be a failure of the State to give effect to international convention.
Secondly, only applying different rules in international convention may make the application of law process very complicated, as the Court shall first compare domestic law with relevant international convention in order to decide whether there is any difference, then the Court may have to apply rules of domestic law and rules of international convention which are different from domestic law.
When simply applying the international convention will be enough and enough, why bothering to make such comparison and segregate the application of law? In Miss Yang v Carnival PLC, the Athens Convention 1974 could have been applied to decide both the liability of the carrier and limit of liability or loss of right to limit of liability.
Thirdly, this approach will inappropriately limit the application of substantive and there is no need for the court to choose applicable law. Simply applying the relevant applicable international convention will benefit all parties: the plaintiffs do not need to make comparison of the laws of different jurisdictions to make a forum shopping, the courts do not need to undergo the choice of law process to find the applicable law. It will also ensure the certainty of application of law and the reasonable expectation of the parties.
Fifthly, mandatory international convention aims not only to unify national laws but to provide minimum protection to the weaker parties in civil and commercial activities, failure to apply such convention will probably deprive the weaker party of their protection under the relevant international convention.

The Validity of Jurisdiction Clause in Cruise Passenger Contract
Cruise Line will normally include a law and jurisdiction clause or simply a jurisdiction clause in the passenger contract. For example, there is a law and jurisdic-  Art.9(a) of Guest Ticket Contract incorporating the Guest Conduct Policy and Refusal to Transport Policy: https://www.rcclchina.com.cn/content/brand/passenger/repeat. and is subject to jurisdiction in that State." Paragraph 2 of Art.17 of the Athens Convention 1974 allows the parties to make an agreement to submit the claim for damages to any jurisdiction or to arbitration, but this agreement could only be made after the occurrence of the incident which has caused the damage. 37 Therefore, a jurisdiction clause in a cruise passenger contract of whatever form which was made before the occurrence of the incident will not be given effect under the Athens Convention 1974 (Waldron, 1991). Furthermore, if the jurisdiction clause in a cruise passenger contract has "the effect of restricting the option specified in paragraph 1 of Article 17", it shall be null and void. 38  There is no such limitation under Chinese Law. Under the 2012 Civil Procedural Law of the People's Republic of China (the 2012 CPL), a jurisdiction clause in the passenger's contract may be given effect if the chosen court is "located in such a place having actual connection with the disputes as the place of the defendant's domicile, the place where the contract was performed or made, the place of the plaintiff's domicile, or the location of the subject matter etc." 39 There is no time restriction for the making of the jurisdiction agreement as that provided by paragraph 2 of Art.17 of the Athens Convention 1974, thus it is not possible for the passengers to challenge the validity of a jurisdiction clause in cruise passenger contract on the basis that it is not made after the occurrence of the incident. Nevertheless, the passenger may be able to avoid the jurisdiction clause as part of a standard form contract. The Supreme People's Court confirmed such option by providing in its interpretation of the 2012 CPL that "if the 37 Art.17(2)of the Athens Convention 1974 provides that "After the occurrence of the incident which has caused the damage, the parties may agree that the claim for damages shall be submitted to any jurisdiction or to arbitration." This provision has been added to Art.17 (3)  business dealer who adopts a standard form to make a jurisdiction agreement with the consumer has not taken reasonable measures to notify the consumer of such agreement, the court should support the consumer's argument to invalidate such jurisdiction agreement" 40 . This provision does not make jurisdiction clause in standard form consumer contract null and void but provides the consumer with a choice whether to quash such a jurisdiction clause. However, if the business dealer could establish that he has taken reasonable measures to notify the consumer of such a jurisdiction clause, the court would hold the clause valid and enforceable. 41 In comparison, the rules relating to jurisdiction agreement under the Athens Convention 1974 could provide better protection to the interest of the cruise passengers than the rules under China's Civil Procedural Law in that it is much easier for the passenger to avoid a jurisdiction clause in passenger contract.

Conclusion
Cruise travel, whether as a single arrangement or as part of a travel package, is

Conflicts of Interest
The author declares no conflicts of interest regarding the publication of this paper.