Athens Convention – Procedural and Terrorism Exemption Issues
The United States would like to thank the delegations of Norway, the UK, Denmark and others as well as the CMI (Comité Maritime International), the P&I Clubs, the International Union of Maritime Insurers (IUMI), the International Chamber of Shipping, and others who have worked hard to bring these issues back to the forefront at the IMO. Trying to find appropriate and workable mechanisms for dealing with these issues is not easy in today’s environment with increased concerns regarding not only acts of terrorism, but also, as we have seen in recent weeks, acts of piracy against passenger vessels.
However, in this difficult area we do see two things clearly. While the United States appreciates the complex issues associated with the decision as to whether to exempt carriers from any liability for damage or injury resulting from acts of or related to terrorism, such an exemption presents many difficulties. In particular, when carriers are primarily responsible for providing security for their passengers, the United States cannot support an instrument that effectively exempts carriers unconditionally from any liability for a terrorist incident without regard for fault or possible negligence. This is particularly true in cases of internal attacks, inasmuch as carriers have a duty to provide adequate screening to prevent the introduction of weapons onto the vessel.
With regard to the proposed resolution in front of us, we understand the desire to move expeditiously toward a workable solution to the insurance cover and certification issue so that the 2002 Protocol may enter into force. However, we have significant concerns about the procedural mechanism in this resolution. It aims, in effect, to amend the terms of the Protocol substantively, but without following the revision or amendment procedures prescribed in the Protocol and underlying convention. Such an action could set an unfortunate treaty law precedent that could be invoked not only with respect to other instruments developed under the auspices of the IMO, but more broadly as well. Given the far-reaching consequences of any such departure from established treatymaking principles and practices in all areas, the United States cautions against establishing such a precedent, and would have concerns about whether an instrument could be ratified under these conditions. For these reasons, we cannot support the proposed resolution and suggest that substantive amendments be effected in accordance with the procedures prescribed for revision or amendment of the Protocol.
United States Intervention
Agenda item 5(ii): Athens Convention
The United States appreciates the complex issues associated with the decision as to whether to exempt carriers from liability for damage or injury resulting from acts of or related to terrorism and the concerns that have been raised regarding the availability of insurance cover for such incidents. We would like to thank the delegations of Norway, the UK, and others, as well as the Comité Maritime International (CMI), the International Group of P&I Associations, the International Chamber of Shipping (ICS), the International Council of Cruise Lines (ICCL), and others who have worked hard to resolve these issues.
Although the solution proposed by the United Kingdom, Norway, the ICCL, and the ICS represents a well-crafted compromise, the United States cannot support a solution that exempts carriers from liability for acts of terrorism without regard to fault.
As we have expressed previously, it is difficult to discuss changing the Convention’s fundamental terms outside of a diplomatic conference, especially when it regards such an important exemption. It is our position that carriers have a duty to provide adequate screening to prevent the introduction of weapons onto a passenger vessel and to take other security measures to prevent a terrorist attack. Carriers have a duty to provide security for their passengers and they should not be exempt from liability when they fail to do so.
An exemption from liability for negligent acts of carriers inappropriately shifts the consequences of carrier negligence from the carrier to innocent passengers and governments and should be rejected.