Transcript power point presentation - PAVLAKIS

ROME II & INTERNATIONAL CONVENTIONS
A CASE STUDY
Silina Pavlakis
Pavlakis-Moschos & Associates
Piraeus, Greece
Rome II and International Conventions
• Regulation (EC) No 864/2007 on the law applicable to
non-contractual obligations (Rome II)
Article 28
• Relationship with existing international conventions
• 1. This Regulation shall not prejudice the application of
international conventions to which one or more Members
States are parties at the time when this Regulation is
adopted and which lay down conflict-of-law rules relating
to non-contractual obligations.
Question
• Does this imply that two EU Member States, one being
party to an international convention and the other not
being party to it, may apply different law to the same
incident and possibly arrive to different solutions?
• Let’s explore this by means of a shipping incident
Case : the subjects involved
• English family, Mrs and Mrs West and their two children,
enjoyed their holiday tour by their own car in Greece, and
now return home.
• They board a ferry Patra-Ancona. Passengers, car and
luggage
• The ferry is owned by the Italian shipowner “It Co” and
flies the Italian flag
• They buy their tickets from “Gr Co”, the charterer of the
vessel who operates the line.
Case : the shipping incident
• Fire breaks out in the garage while the ship is in
international waters in the Adriatic
• the ferry is poorly maintained and fire fighting systems do
not function properly,
• the crew is not experienced nor trained
• the fire cannot be controlled and spreads all over the ship
• life boats and saving equipment is inadequate-panic
results
Case : tragic consequences
• Mr. West and a great number of other passengers die in
their struggle to escape or trapped by the fire and smoke.
• Mrs West and her children suffer burns and respiratory
problems
• They witness Mr. West loss while trying to board a life
boat
• All surviving passengers live through a terrible nightmare
until they are rescued from the burning ship by
helicopters, many hours later.
• Cars and luggage are burnt and total loss
Jurisdiction - Regulation 1215/2012 on jurisdiction and the
recognition and enforcement of judgments in civil and commercial matters
1. “It Co”, the shipowner /actual carrier, is domiciled in Italy
“Gr Co”, contractual carrier, is domiciled in Greece
As per art.4.1 (domicile of the defendant) and
art. 8 (defendants sued together in the domicile of one of them)
Both “It Co” and “Gr Co” can be sued either in Italy or in
Greece.
The shipping incident/harmful event happened in
international waters, where the Italian flagged ferry is held
to be Italian territory (art. 7(2) (tort/delict) = Italian Court).
2.
Applicable Law
• General Rome II test would lead to :
• Italian law, being the law of the country where the
damage occurred (lex loci damni) since the ship was
Italian flagged and the incident happened in
international waters (art. 4.1 Rome II)
• Greek law, arguably applicable under art. 4.3 Rome II, due to the
preexisting contractual relationship between “Gr Co” and the
victims. But then, only one defendant (“Gr Co”) has a contractual
relationship with the passengers.
Regulation (EC) 392/2009 on the liability of carriers of passengers
by sea in the event of accidents (in force since 1.1.2014)
• Being an EU Regulation, it is immediately applicable
in both possible jurisdictions, Italy and Greece
• Basic Provisions
• Contractual carrier (“Gr Co”) and Actual/Performing carrier
(“It Co”) both liable
• Strict liability up to 250.000 SDR per passenger for
personal injury and death
• Limit of 400.000 SDR per passenger if the carrier cannot
prove that he had no fault
• Unlimited liability if reckless misconduct by the carrier
(incl. his agents and servants)
Regulation 392/2009 only ?
• Both Greek and Italian courts will apply the same law:
Regulation 392/2009.
• Can we then advise the West family to bring their actions
either in Greece of in Italy, after eventually merely
evaluating the judicial practice in each country, e.g.
quantum of damages awarded, procedural particularities
etc?
• Not so easy!
Limitation of Liability Maritime Convention 1976 as
amended by Protocol 1996 (LLMC)
• Greece is a party to the LLMC
• Italy has not implemented the LLMC
• To the extent that the LLMC contains conflict-of law rules
and is mandatorily applicable in its members states, it
constitutes for Greece an “existing international
convention” under art.28 of Rome II.
LLMC and Regulation 392/2009
• Art. 5 of R 392/2009 on the sea carriers liability provides:
• Global limitation of liability
• 1. This Regulation shall not modify the rights or duties of the carrier or
performing carrier under national legislation implementing the
International Convention on Limitation of Liability for Maritime Claims,
1976, as amended by the protocol 1996, including any future
amendment thereto.
• In the absence of any such applicable national legislation, the liability
of the carrier or performing carrier shall be governed only by Article 3
of this Regulation.
Compare limits of LLMC and Regulation 392/2009
LLMC
R 392/2009
175.000 SDR per passenger X
number of passengers’ capacity of
the ship as per its certificate
- 250.000 SDR per passenger –
strict liability
- 400.000 SDR per passenger- fault
based liability
unlimited liability if personal
reckless misconduct of
shipowner/charterer is proved
(held to be an actually unbreakable
system of limitation)
unlimited liability of carrier if
reckless misconduct is proved,
including agents and servants’
misconduct
An example
LLMC
R 392/2009
1000 pax X 175.000 SDR/pax =
175.000.000 SDR
Strict liability
1000 pax X 250.000 SDR/pax =
250.000.000 SDR
Fault based liability (carrier to prove
he was not liable)
1000 pax X 400.000 SDR/pax =
400.000.000 SDR
If action is brought in Greece (1)
• Greece, being a party to the LLMC, will apply it
mandatorily, as well as its own national law, to all issues
ruled by this international convention, including limitation
of liability of “It Co” and “Gr Co”
• Even though Italian law is the applicable under Rome II
lex damni, that will rule issues left unregulated by the
Regulation 392/2009
• Paradox: Greek courts will have to apply Italian law, but
also mandatorily
implemented
the
LLMC,
which
Italy
has
not
Action brought in Greece (2)
• If the number of the casualties and injuries of passengers
is large, the West family runs the risk to have their
adjudicated damages, for the death of Mr. West and for
the bodily injuries and non-pecuniary damages of Mrs
West and her children, being reduced pro rata.
• It is virtually impossible to succeed in proving personal
recklessness of the defendants in order to overcome the
limit under the LLMC.
If action is brought in Italy
• Italy has not implemented the LLMC
• If the West family bring their claims in Italian courts, the
defendant carriers will not be entitled to avail themselves
of the LLMC limitation.
• They will only be subjected to the rules and (higher)
limitations of Regulation 392/2009
Thank you