Financial Security

The compulsory insurance provisions of the Protocol also specify that any claim for compensation may be brought directly against the insurer or the person providing the financial security.  Whilst they are not happy with this provision the International Group of P&I Clubs and the insurance market generally have accepted this situation. The only aspect of direct action which remains in issue concerns the right of the insurer to defend direct claims.  It seems to be agreed that the insurer should be able to limit in accordance with the terms of the Protocol even if the shipowner, by reason of his conduct, has lost the right to limit.  The insurer may also use such defences as would have been available to the shipowner but controversy remains as to whether the insurer should be able to use defences which would have been available to him in a claim for indemnity presented by the shipowner.  In this context the essence of the argument relates to the wilful misconduct defence which can generally be invoked by an insurer against the insured shipowner when he seeks indemnities for a claim.  This remains an issue which will need to be resolved at the next Session of the Legal Committee. It seems unlikely that there will be any change in the liability regime in relation to luggage claims but it is probable that the limitation amounts will be increased to take account of the loss in value of money since 1974. It now seems probable that the essential elements of this Protocol to the Athens Convention are in place and one may expect the final text of a Protocol to be agreed during the course of the next couple of years.  It is worth noting that the Athens Convention itself did not come into force until April 1987 i.e. 12½ years after the text was agreed at the Diplomatic Conference.  The concern is that the higher limits and complex compulsory insurance requirements might deter states from ratifying the Protocol.  If there is any delay in ratification it is anticipated that several European States will denounce the Athens Convention of 1974 and impose provision similar to those contained in the draft Protocol as a matter of domestic law.  Anyone interested in international uniformity of maritime law would deplore unilateral action of this sort.  This new domestic law would apply to vessels flying the State flag and would probably also be extended to vessels calling at State port.