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Carriage of Passengers and Luggage by Sea Act

Commencement: 30th November, 1988

LAWS OF TONGA

[1988 Ed.]

CHAPTER 142

CARRIAGE OF PASSENGERS AND LUGGAGE BY SEA

Act 21 of 1977

AN ACT TO GIVE EFFECT TO THE ATHENS CONVENTION CONCERNING INTERNATIONAL CARRIAGE OF PASSENGERS AND THEIR LUGGAGE BY SEA

Commencement: [30th November, 1988]

Short title.

1. This Act may be cited as The Carriage of Passengers and Luggage by Sea Act.

Application to Crown.

2. This Act shall bind the Crown.

Convention to have the force of law.

3. (1) Subject to this section the provisions of the Convention known as "the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea" as set out in the Schedule to this Act so far as they relate to the rights and liabilities of carriers, carriers' servants and agents, passengers and other persons, and subject to the provisions of this Act, have the force of law in the Kingdom of Tonga.

(2) This section shall not apply so as to affect rights or liabilities arising out of an occurrence before the coming into force of this Act.

Designation of High Contracting.

4. (1) The Privy Council may from time to time by Order in Council certify who are the Contracting Parties to the Convention, in respect of what territories they have availed themselves of the provision of the convention.

(2) An Order under this section shall, except so far as it has been superseded by a subsequent Order, be conclusive evidence of the matters so certified.

(3) An Order under this section may contain such transitional and other consequential provisions as appear to the Privy Council to be expedient.

Limitation of Liability.

5. (1) It is hereby declared that the limitations on liability in Articles 7 and 8 of the Convention unless otherwise modified by the provisions of the Convention or by law, apply to any proceedings in which the liability may be enforced and that, in particular-

(a) those limitations apply where proceedings are brought by a tortfeasor to obtain a contribution from another tortfeasor, and

(b) the limitation for each passenger applies to the aggregate liability of the carrier in all proceedings which may be brought against him under the Law of Tonga together with any proceedings brought against him outside Tonga.

(2) A court before which proceedings are brought to enforce a liability which is limited by the said Articles 7 and 8 may at any stage of the proceedings make any such order as appears to the court to be just and equitable in view of the provisions of the said Articles, and of any other proceedings which have been, or are likely to be, commenced in Tonga or elsewhere to enforce the liability in whole or in part.

(3) Without prejudice to subsection (2), a court before which proceedings are brought to enforce a liability which is limited by the said Articles shall, where the liability is, or may be, partly enforceable in other proceedings in Tonga or elsewhere have jurisdiction to award an amount less than the court would have awarded if the limitation applied solely to the proceedings before the court, or to make any part of the award conditional on the result of any other proceedings.

(4) The Minister of Finance may from time to time by notice made in the Gazette specify the respective amounts which for the purposes of the said Articles are to be taken as equivalent to the sums expressed in francs which are mentioned in those Articles.

Time for bringing proceedings.

6. (1) No action shall be brought outside the time limits in Article 16 of the Convention expect [sic] for a cause of action not excluded Convention.

(2) No action shall be brought by a tortfeasor to obtain a contribution from a carrier in respect of a tort to which the Convention applies after the expiration of 2 years from the date on which the person claiming contribution is adjusted liable or admits liability.

(3) The foregoing provisions shall have effect as if references thereto included references to arbitration.

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SCHEDULE

ARTICLE I

Definitions

In this Convention the following expressions have the meaning hereby assigned to them:

1. (a) "carrier" means a person by or on behalf of whom a contract of carriage has been concluded, whether the carriage is actually performed by him or by a performing carrier;
   

(b) "performing carrier" means a person other than the carrier; being the owner, charter or operator of a ship, who actually performs the whole or a part of the carriage.

2. "contract of carriage" means a contract made by or on behalf of a carrier for the carriage by sea of a passenger or of a passenger and his luggage, as the case may be.

3. "ship" means only a seagoing vessel, excluding an air-cushion vehicle.

4. "passenger" means any person carried in a ship:

(a) under a contract of carriage, or

(b) who, with the consent of the carrier, is accompanying a vehicle or live animals who are covered by a contract for the carriage of goods not governed by this Convention.

5. "luggage" means any article or vehicle carried by the carrier under a contract of carriage, excluding:

(a) articles and vehicles carried under a charter party, bill of lading,

(b) or other contract primarily concerned with the carriage of goods, and live animals;

6. "cabin luggage" means luggage which the passenger has in his cabin or is otherwise in his possession, custody or control. Except for the application of paragraph 8 of this Article and Article 8, cabin luggage includes luggage which the passenger has in or on his vehicle;

7. "loss of or damage to luggage" includes pecuniary loss resulting from the luggage not having been re-delivered to the passenger within a reasonable time arrival of the ship on which the luggage has been or should have been carried, but does not include delays resulting from labour disputes.

8. "carriage" covers the following periods;

(a) with regard to the passenger and his cabin luggage, the period during which the passenger and/or his cabin luggage are on board the ship or in the course of embarkation or disembarkation, and the period during which the passenger and his cabin luggage are transported by water from land to the ship or vice-versa, if the cost of such transport is included in the fare or if the vessel used for this purpose of auxiliary transport has been put at the disposal of the passenger by the carrier. However, with regard to the passenger, carriage does not include the period during which he is in a marine terminal or station or on a quay or in or on any other port installation;

(b) with regard to cabin luggage, also the period during which the passenger is in a marine terminal or station or on a quay or in or on any other port installation if that luggage has been taken over by the carrier or his servant or agent and has not been re-delivered to the passenger;

(c) with regard to other luggage which is not cabin luggage, the period from the time of its taking over by the carrier or his servant or agent on shore or on board until the time of its re-delivery by the carrier or his servant or agent.

9. "international carriage" means any carriage in which, according to the contract of carriage, the place of departure and the place of destination are situated in two different States, or in a single State if according to the contract of carriage or the schedule itinerary, there is an intermediate port to call in another State.

10. "Organisation" means the Inter-Governmental Maritime Consultative Organisation.

ARTICLE 2

Application

1. This Convention shall apply to any international carriage if:

(a) the ship is flying the flag of or is registered in a State Party to this Convention, or

(b) the contract of carriage has been made in a State Party to this Convention, or

(c) the place of departure or destination, according to the contract of carriage, is in a State Party to this Convention.

2. Notwithstanding paragraph 1 of this Article, this Convention shall not apply when the carriage is subject, under any other international convention concerning the carriage of passengers or luggage by another mode of transport to a civil liability regime under the provisions of such convention, in so far as provisions have mandatory application to carriage by sea.

ARTICLE 3

Liability of the carrier

1. The carrier shall be liable for the damage suffered as a result of the death of or personal injury to a passenger and the loss of or damage to luggage if the incident which caused the damage so suffered occurred in the course of the carriage and was due to the fault or neglect of the carrier or of his se agents acting within the scope of their employment.

2. The burden of proving that the incident which caused the loss or damage occurred in the course of the carriage, and the extent of the loss or shall lie with the claimant.

3. Fault or neglect of the carrier or of his servants or agents acting within the scope of their employment shall be presumed, unless the contrary is proved if the death of or personal injury to the passenger or the loss of or damage to cabin luggage arose from or in connection with the shipwreck, collusion, stranding, explosion or fire, or defect in the ship. In respect of loss of or damage to other luggage, such fault or neglect shall be presumed, unless the contrary is proved, irrespective of the nature of the incident which caused the loss or damage. In all other cases the burden of proving fault or neglect shall lie with the claimant.

ARTICLE 4

Performing carrier

1. If the performance of the carriage or part thereof has been entrusted to a performing carrier, the carrier shall nevertheless remain liable for the entire carriage according to the provisions of this Convention. In addition, the performing carrier shall be subject and entitled to the provisions of this Convention for the part of the carriage performed by him.

2. The carrier shall, in relation to the carriage performed by the performing carrier, be liable for the acts and omissions of the performing carrier and of his servants and agents acting within the scope of their employment.

3. Any special agreement under which the carrier assumes obligations not imposed by this Convention or any waiver of rights conferred by this Convention shall affect the performing carrier only if agreed by him expressly and in writing.

4. Where and to the extent that both the carrier and the performing carrier are liable, their liability shall be joint and several.

5. Nothing in this Article shall prejudice any right of recourse as between the carrier and the performing carrier.

ARTICLE 5

Valuables

The carrier shall not be liable for the loss of or damage to monies, negotiable securities, gold, silverware, jewellery, ornaments, works of art, or other valuables, except where such valuables have been deposited with the carrier for purpose of safe-keeping in which case the carrier shall be liable up to the limit provided for in paragraph 3 of Article 8 unless a higher limit is agreed upon in accordance with paragraph 1 of Article 10.

ARTICLE 6

Contributory fault

If the carrier proves that the death of or personal injury to a passenger or loss or damage to his luggage was caused or contributed to by the fault or neglect of the passenger, the court seized of the case may exonerate the carrier wholly or partly from his liability in accordance with the provisions of law of that court.

ARTICLE 7

Limit of liability for personal injury

1. The liability of the carrier for the death of or personal injury to a passenger shall in no case exceed 700,000 francs per carriage. Where in accordance with the law of the court seized of the case damages are awarded in the form of income payments, the equivalent capital value of those payments exceed the said limit.

2. Notwithstanding paragraph 1 of this Article, the national law of any State Party to this Convention may fix, as far as carrier who are nationals of such State are concerned, a higher per capita limit of liability.

ARTICLE 8

Limit of liability for loss of or damage to luggage

1. The liability of the carrier for the loss of or damage to cabin luggage shall in no case exceed 12,500 francs per passenger, per carriage.

2. The liability of the carrier for the loss of or damage to vehicles including all luggage carried in or on the vehicle shall in no case exceed 50,000 francs per vehicle, per carriage.

3. The liability of the carrier for the loss of or damage to luggage other than that mentioned in paragraphs 1 and 2 of this Article shall in no case exceed 18,000 francs per passenger, per carriage.

4. The carrier and the passenger may agree that the liability of the carrier shall be subject to a deductible not exceeding 1,750 francs in the case of damages to a vehicle and not exceeding 200 francs per passenger in the case of loss of or damage to other luggage, such sum to be deducted from the loss or damage

ARTICLE 9

Monetary unit and conversion

1. The franc mentioned in this Convention shall be deemed to refer to a unit consisting of 65.5 milligrams of gold of millesimal fineness 900.

2. The amounts referred to in Articles 7 and 8 shall be converted national currency of the State of the court seized of the case on the basis of the official value of that currency, by reference to the unit defined in paragraph 1 of this Article, on the date of the judgment or the date upon by the parties. If there is no such official value, the competent authority of the State concerned shall determine what shall be considered as the value for the purpose of this Convention.

ARTICLE 10

Supplementary provisions on limits of liability

1. The carrier and the passenger may agree, expressly and in writing the higher limits of liability than those prescribed in Articles 7 and 8.

2. Interest on damages and legal costs shall not be included in the limits of liability prescribed in Articles 7 and 8.

ARTICLE 11

Defences and limits for carriers' servants

If an action is brought against a servant or agent of the carrier or of the performing carrier arising out of damage covered by this Convention, such servant or agent, if he proves that he acted within the scope his employment, shall be entitled to avail himself of the defences and limits of liability which the carrier or the performing carrier is entitled to invoked under this Convention.

ARTICLE 12

Aggregation of claims

1. Where the limits of liability prescribed in Articles 7 and 8 take effect, they shall apply to the aggregate of the amounts recoverable in all claims arising out of the death of or personal injury to any one passenger or the loss of or damage to his luggage.

2. In relation to the carriage performed by a performing carrier, the aggregate of the amounts recoverable from the carrier and the performing carrier and from their servants and agents acting within the scope of their employment shall not exceed the highest amount which could be awarded against either the carrier of the performing carrier under this Convention, but none of the persons mentioned shall be liable for a sum in excess of the limit applicable to him.

3. In any case where a servant or agent of the carrier or of the performing carrier is entitled under Article 11 of this Convention to avail himself of the limits of liability prescribed in Articles 7 and 8, the aggregate of the amounts recoverable from the carrier, or the performing carrier as the case may be, and from that servant or agent, shall not exceed those limits.

ARTICLE 13

Loss of right to limit liability

1. The carrier shall not be entitled to the benefit of the limit of liability prescribed in Articles 7 and 8 and paragraph 1 of Article 10, if it is proved damage resulted from an act or omission of the carrier done with the intend to cause such damage, or recklessly and with knowledge that such damage would probably result.

2. The servant or agent of the carrier or of the performing carrier shall not be entitle to the benefit of those limits if it is proved that the damage resulted from an act or omission of that servant or agent done with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.

ARTICLE 14

Basis for claims

No action for damages for the death of or personal injury to a passenger, for the loss of or damage to luggage, shall be brought against a carrier or performing carrier otherwise than in accordance with this Convention.

ARTICLE 15

Notice of loss or damage to luggage

1. The passenger shall give written notice to the carrier or his agent:

(a) in the case of apparent damage to luggage:

(i) for cabin luggage, before or at the time of disembarkation of the passenger;

(ii) for all other luggage, before or at the time of its re-delivery;

(b) in the case of damage to luggage which is not apparent, or loss of luggage, within fifteen days from the date of disembarkation or re-delivery or from the time when such re-delivery should taken place.

2. If the passenger fails to comply with this Article, he shall be presumed, unless the contrary is proved, to have received the luggage undamaged.

3. The notice in writing need not be given if the conditions of the luggage has at the time of its receipt been the subject of joints survey or inspection.

ARTICLE 16

Time-bar for actions

1. Any action for damages arising out of the death of or personal injury to a passenger or for the loss or damage to luggage shall be time-barn after a period of two years.

2. The limitation period shall be calculated as follows:

(a) in the case of personal injury, from the date of disembarkation of the passenger;

(b) in the case of death occurring during carriage, from the date when the passenger should have disembarked, and in the of personal injury occurring during carriage and resulting in the death of the passenger after disembarkation, from the date of death, provided that this period shall not exceed three years from the date of disembarkation;

(c) in the case of loss of or damage to luggage, from the date of disembarkation or from the date when disembarkation should have taken place, whichever is later.

3. The law of the court seized of the case shall govern the grounds of suspension and interruption of limitation periods, but in no case shall an action under this Convention be brought after the expiration of a period of three years from the date of disembarkation of the passenger or from the date when disembarkation should have taken place, whichever is later

4. Notwithstanding paragraphs 1, 2 and 3 of this Article, the period of limitation may be extended by a declaration of the carrier or by agreement of the parties after the cause of action has arisen. The declaration or agreement shall be in writing.

ARTICLE 17

Competent jurisdiction

1. An action arising under this Convention shall, at the option of the claimant, be brought before one of the courts listed below, provided that the court is located in a State Party to this Convention:

(a) the court of the place of permanent residence or principal place of business of the defendant, or

(b) the court of the place of departure or that of the destination according to the contract of carriage, or

(c) a court of the State of the domicile or permanent residence of the claimant, if the defendant has a place of business and is subject to jurisdiction in that State, or

(d) a court of the State where the contract of carriage was made, if the defendant has a place of business and is subject to jurisdiction in that State.

2. 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.

ARTICLE 18

Invalidity of contractual provisions

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, but the nullity of that provision shall not void the contract of carriage which shall remain subject to the provisions of this Convention.

ARTICLE 19

Other conventions on limitation of liability

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 seagoing ships.

ARTICLE 20

Nuclear damage

No liability shall arise under this Convention for damage caused by a nuclear incident:

(a) if the operator of a nuclear installation is liable for such damage under either the Paris Convention of 29 July 1960 on Third Party Liability in one Field of Nuclear Energy as amended by its Additional Protocol of 28 January 1964, or the Vienna Convention of 21 May 1963 on Civil Liability for Nuclear Damage, or

(b) if the operator of a nuclear installation is liable for such damage by virtue of a national law governing the liability for such damage, provided that such law is in all respects as favourable to persons who may suffer damage as either the Paris or the Vienna Conventions.

ARTICLE 21

Commercial carriage by public authorities

This Convention shall apply to commercial carriage undertaken by States or Public Authorities under contracts of carriage within the meaning of Article 1.

ARTICLE 22

Declaration of non-application

1. Any Party may at the time of signing, ratifying, accepting, approving or acceding to this Convention, declare in writing that it will not give effect to this Convention when the passenger and the carrier are subjects of nationals of that Party.

2. Any declaration made under paragraph 1 of this Article may be withdrawn at any time by a notification in writing to the Secretary-General of the Organization.

ARTICLE 23

Signature, ratification and accession

1. This Convention shall be open for signature at the Headquarters of the Organization until 31 December 1975 and shall thereafter remain open for accession.

2. States may become Parties to this Convention by:

(a) signature without reservation as to ratification, acceptance or approval;

(b) signature subject to ratification, acceptance or approval followed by ratification, acceptance or approval; or

(c) accession.

3. Ratification, acceptance, approval or accession shall be effected by the deposit of a formal instrument to that effect with the Secretary-General of the Organization.

ARTICLE 24

Entry into force

1. This Convention shall enter into force on the ninetieth day following the date on which ten States have either signed it without reservation as to ratification, acceptance or approval or have deposited the requisite instrument of ratification, acceptance, approval or accession.

2. For any State which subsequently signs this Convention without reservation as to ratification, acceptance or approval, or deposits its instrument of ratification, acceptance, approval or accession, the Convention shall come into force on the ninetieth day after the date of such signature or deposit.

ARTICLE 25

Denunciation

1. This Convention may be denounced by a Party at any time after the on which the Convention entered into force for that Party.

2. Denunciation shall be effected by the deposit of an instrument with the Secretary-General of the Organization who shall inform all other Parties of the receipt of the instrument of denunciation and of the date of its deposit.

3. A denunciation shall take affect one year after the deposit of an instrument of denunciation, or after such longer period as may be specified in the instrument.

ARTICLE 26

Revision and amendment

1. A Conference for the purpose of revising or amending this Convention may be convened by the Organization.

2. The Organization shall convene a Conference of the Parties to this Convention for revising or amending it at the request of not less than one-third of the Parties.

3. Any State becoming a Party to this Convention after the entry into force of an amendment adopted by a conference convened in accordance with this Article shall be bound by the Convention as amended.

ARTICLE 27

Depositary

1. This Convention shall be deposited with the Secretary-General of the Organisation.

2. The Secretary-General of the Organisation shall:

(a) inform all States which have signed or acceded to this Convention of:

(i) each new signature and each deposit of an instrument together with the date thereof;

(ii) the date of entry into force of this Convention;

(iii) any denunciation of this Convention and the date on which it takes effect;

(b) transmit certified true copies of this Convention to all signatory States and to all States which have acceded to this Convention.

3. Upon entry into force of this Convention, a certified true copy thereof shall be transmitted by the Secretary-General of the Organization to the Secretariat of the United Nations for registration and publication in accordance with Article 102 of the Charter of the United Nations.

ARTICLE 28

Languages

This Convention is established in a single original in the English and French languages, both texts being equally authentic. Official translations in the Russian and Spanish languages shall be prepared by the Secretary-General of the Organisation and deposited with the signed original.

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