Flag State

It should be borne in mind that the liability and limitation regimes, described above, apply exclusively to claims for death or personal injury arising from a shipping incident.  But it seems probable that the Protocol, in its final form, will deal rather differently with claims for loss of life or personal injury not arising from a shipping incident.  Delegates have in mind, in this context, the slip or fall type of accident which arises from what it might be described as the hotel functions of a passenger carrying ship.  For this type of non-shipping incident the carrier will probably be liable unless he can show that the incident arose without negligence on his part or on the part of servants or agents.  (Known as the reverse burden of proof). If the Protocol follows the format suggested above it will be seen that as regards liability and limits the changes from the 1974 Convention are subtle but important and mean that it will be more difficult for a shipowner to escape liability for passenger claims.  Additionally the financial exposure will be substantially greater. Shipowners will be required to carry liability insurance or to otherwise prove their financial ability to meet claims.  This will be achieved by requiring all passenger carrying ships to maintain insurance or other financial security for claims up to an amount per passenger specified in the Protocol.  Currently the compulsory insurance requirement is unlikely to be less than 100,000 SDR per passenger nor more than 500,000 SDR per passenger. The compulsory insurance provisions of the Protocol are quite complex requiring, as they do, carriers to obtain and carry on the ship a certificate attesting that insurance or other financial security is in force in accordance with the provisions of the Convention.  These certificates will have to be issued by the Flag State or by an appropriate authority appointed by the Flag State.