The international convention relevant to marine cargo claims in Cyprus is the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading and Protocol of Signature, Brussels 25/8/1924 (extended to Cyprus on 2/6/1931).
Cargo claims against the carrier
There is a lack of authoritative Cypriot case law in relation to cargo claims and subsequently, as is evident in Tzirkotis & Achilleos v Paneuropean Insurance of Nicosia, Cyprus courts draw on the legal principles applied by the High Court of Justice in the UK, Australia and other common law jurisdictions. Although there is also no substantial Cypriot case law in relation to International Safety Management Code (ISM) where a carrier is found to have been in breach of the ISM code the carrier may be found liable under the Hague Rules for a failure to meet legal obligations of due diligence and care in relation to the provision of a sea worthy vessel and the stowage, handling carrying and/or discharge of the goods being carried. The Cyprus courts have also ruled on the carrier’s absolute duty to provide a sea worthy ship prior to the adoption of the ISM code in Standard Fruit Company (Bermuda) Ltd and others v Gold Seal Shipping Company Ltd (1997) 1/A CLR 464.
Misdeclaration of cargo
According to Cap 263 the Hague Rules are applicable where they are expressly incorporated in the Bill of Lading, or other document of title. In this case the shipper is under a duty to properly declare cargo, particularly in the event that the cargo is hazardous or dangerous. Failure to do so would mean that the shipper is liable, not only to the carrier for damage to the ship, but also in relation to other cargo which may be damaged. The shipper has strict liability with respect to misdeclared cargo. There is no authoritative Cypriot case law on the issue of misdeclared cargo so the Courts would have recourse to English decisions and/or law.
Regulation (EC) No. 392/2009 (“the Regulation”) which came into force at the end of 2012 has fundamentally changed the relationship between passengers and carriers in relation to liability, claims and insurance coverage. In particular, the Regulation which incorporates the provisions of the Athens Convention and the IMO Reservation and Guidelines for Implementation of the Athens Convention adopted by the IMO Legal Committee on 19 October 2006, raises the limits of liability, imposes mandatory insurance requirements and provides passengers with new methods to obtain compensation for any claim relating to loss or damage suffered as a result of a shipping incident occurring during the course of carriage and as the result of the fault or negligence of the carrier, his servant or agents.
For example, the Regulation provides that a carrier will make an advance payment in the event of death or personal injury that occurred as a result of a shipping incident during carriage of a passenger. This is intended to cover the immediate economic needs of the passenger who suffered the damage. It is important to note that in light of the mandatory insurance requirements, the fault liability approach is replaced under the Regulation with a strict liability approach in relation to shipping incidents such as shipwreck, collision, stranding, explosion, fire, or defect of the vessel.
To manage the effects of the Regulation which applies more broadly than the Athens Convention, there is an option that permits countries to defer the application of the Regulation in relation to certain classes of vessels on domestic transits until 31/12/2016 and 31/12/2018; an option that Cyprus has exercised.
This publication has been written in general terms and should be seen as broad guidance only. The publication cannot be relied upon to cover specific situations and you should not act, or refrain from acting, upon the information contained herein without obtaining professional advice. This information should not be relied upon as a substitute for such advice.For more information please contact us at email@example.com; +357 25 823 593