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disaster in 1993 which claimed 1,800 lives. In such situations, the number of people dead or injured is much greater than the number of passengers the ship is authorised to carry. In this case, of course, the carrier would probably be guilty of conduct barring limitation and would lose the protection of both limits. The point is that if the carrier is allowed to limit his liability in such a situation, should the limit be calculated on the number of passengers actually carried, or on the number the ship is authorised to carry? Article 19 of the Athens Convention provides: ‘This Convention shall not modify the rights or duties of the carrier, the performing carrier, and their servants or agents provided for in international conventions relating to the limitation of liability of owners of sea-going ships.’ As China has ratified the Athens Convention, the above provision, which does not appear in the Maritime Code, will be applied together with the Maritime Code. It becomes clear that if the total amount payable to all claimants after application of the limitation provisions under Chapter 5 exceeds the global limitation fund, calculated in accordance with Article 213 of Chapter 11, the latter will be applied. The same rule would apply if China were to ratify the 1990 Protocol to the Athens Convention and raise the limit per passenger to a maximum of 175,000 SDR per carriage. Another contradiction relates to the concepts of ‘each contract of carriage’ and ‘any given occasion’ in Chapters 5 and 11. Article 117(1) in Chapter 5 refers to the limitation of liability being governed by ‘each contract of carriage’, the whole period during which the passenger is being transported. However, the limitation of liability in Article 212 in Chapter 11 refers to the aggregate of all claims that may arise on ‘any given occasion’. If a passenger
DOI link for disaster in 1993 which claimed 1,800 lives. In such situations, the number of people dead or injured is much greater than the number of passengers the ship is authorised to carry. In this case, of course, the carrier would probably be guilty of conduct barring limitation and would lose the protection of both limits. The point is that if the carrier is allowed to limit his liability in such a situation, should the limit be calculated on the number of passengers actually carried, or on the number the ship is authorised to carry? Article 19 of the Athens Convention provides: ‘This Convention shall not modify the rights or duties of the carrier, the performing carrier, and their servants or agents provided for in international conventions relating to the limitation of liability of owners of sea-going ships.’ As China has ratified the Athens Convention, the above provision, which does not appear in the Maritime Code, will be applied together with the Maritime Code. It becomes clear that if the total amount payable to all claimants after application of the limitation provisions under Chapter 5 exceeds the global limitation fund, calculated in accordance with Article 213 of Chapter 11, the latter will be applied. The same rule would apply if China were to ratify the 1990 Protocol to the Athens Convention and raise the limit per passenger to a maximum of 175,000 SDR per carriage. Another contradiction relates to the concepts of ‘each contract of carriage’ and ‘any given occasion’ in Chapters 5 and 11. Article 117(1) in Chapter 5 refers to the limitation of liability being governed by ‘each contract of carriage’, the whole period during which the passenger is being transported. However, the limitation of liability in Article 212 in Chapter 11 refers to the aggregate of all claims that may arise on ‘any given occasion’. If a passenger
disaster in 1993 which claimed 1,800 lives. In such situations, the number of people dead or injured is much greater than the number of passengers the ship is authorised to carry. In this case, of course, the carrier would probably be guilty of conduct barring limitation and would lose the protection of both limits. The point is that if the carrier is allowed to limit his liability in such a situation, should the limit be calculated on the number of passengers actually carried, or on the number the ship is authorised to carry? Article 19 of the Athens Convention provides: ‘This Convention shall not modify the rights or duties of the carrier, the performing carrier, and their servants or agents provided for in international conventions relating to the limitation of liability of owners of sea-going ships.’ As China has ratified the Athens Convention, the above provision, which does not appear in the Maritime Code, will be applied together with the Maritime Code. It becomes clear that if the total amount payable to all claimants after application of the limitation provisions under Chapter 5 exceeds the global limitation fund, calculated in accordance with Article 213 of Chapter 11, the latter will be applied. The same rule would apply if China were to ratify the 1990 Protocol to the Athens Convention and raise the limit per passenger to a maximum of 175,000 SDR per carriage. Another contradiction relates to the concepts of ‘each contract of carriage’ and ‘any given occasion’ in Chapters 5 and 11. Article 117(1) in Chapter 5 refers to the limitation of liability being governed by ‘each contract of carriage’, the whole period during which the passenger is being transported. However, the limitation of liability in Article 212 in Chapter 11 refers to the aggregate of all claims that may arise on ‘any given occasion’. If a passenger
ABSTRACT
Law Department of the Ministry of Communications and the Legal Affairs Centre of Communication (eds), The Essentials of the Maritime Code, 1993, Beijing: People’s Communications Press, p 26.
