Passengers and Ports dr. Patrick Vlačič, University of Ljubljana Faculty of Maritime Studies and Transportation

At least in my country the lawyers are used to a sharp separation between public and private transport regulations. This method of the studying of transport is obsolete. The obligation rules of liability must be studied together with safety and security rules. Introduction I.

There are several threats to maritime transport (e. g There are several threats to maritime transport (e.g. the piracy, armed robbery incidents, terrorists) Are tterrorists a real threat for our countries? terrorists threats are clear and present more than ever, fortunately not for Croatia, Italy and Slovenia, this could change very quickly, though. transport is one of the most vulnerable day to day activity: 1. a large number of people in a small and confined space, 2. the attractiveness of the attack on the means of transport due to the effect of fear and paralysis of mobility (as mobility has become a way of life), there have been terrorists threats and attacks on board of means of transport and there have been threats and attacks on boarding facilities. Introduction II.

Threats and Attacks Tri types of threats and atacks: transport means are used to execute terrorist attack (9/11), transport is the target of terrorist attack (attacks on bridges or tunnels to disrupt transit, railroad, or highway operations, there are not necessarily human casualties; e.g. IRA bombing campaign against transit targets in England and Northern Ireland between the early-1970s and mid-1990s), the crowds that transport modes generate are the focus of a terrorist attack (airports, rail stations, bus terminals, ports and airplanes, trains, buses, ships. Threats and Attacks

Free mobility is a defining characteristic of free and open civil societies, and the consequences of closing, over securing, or even eliminating the transportation sector could wound the very heart of civil society. Damage the mobility kills two birds with one stone: it means terrorizing the population and causing economic damage. Terrorism is trying to attack our way of life. Up to now the most attacks have been attempted in air transport.

Terorist Attacks in Transport Absolute Numbers

Some Transport Terrorist Attacks 2001 9/11 New York, Washington airplane attacks 2002 shooting at Los Angeles International Airport 2004 Madrid train bombings 2006 London subway bombings 2006 Mumbai train bombings 2007 car bombing at Glasgow Airport 2008 Southern Afghanistan hijacked bus 2009 Aircraft en route from Amsterdam to Detroit; attempt to detonate an explosive 2013 Volgograd bus bombing 2014 Karachi, gunmen stormed into airport 2015 Kandahar Airport attack 2015 Metrojet Flight 9268 2016 Bruxelles airport and subway bombings Some Transport Terrorist Attacks

Attacks on any form of transportation are a small share of all terrorist attacks (these targets accounted for only 4 percent of all attacks in Western Europe and North America from 2002 through 2014). However, such attacks were disproportionately deadly

Consequences implication on human rights inconvenience of passengers costs (e.g.: security amounts to a huge part of airport operating costs, usually around 35%) Consequences

On 12 December 2002 the conference of the IMO adopted amendments to the 1974 International Convention for the Safety of Life at Sea (SOLAS Convention) and an International Ship and Port Facility Security Code (ISPS Code). These instruments are intended to enhance the security of ships used in international trade and associated port facilities; they comprise mandatory provisions and recommendations (some of which were made mandatory within the EU). IMO Response to 9/11

International Ship and Port Facility Security Code (ISPS Code) is in our countries implemented through: Regulation (EC) No 725/2004 of the European Parliament and of the Council of 31 March 2004 on enhancing ship and port facility security.

Regulation (EC) No. 725/2004 Security checks in Member State ports 1. Certificate verification, as defined in paragraph 1.1 of regulation 9 (Control of ships in port) of the special measures to enhance maritime security of the SOLAS Convention, shall be carried out in the port either by the competent authority for maritime security defined in Article 2(7) of this Regulation or by the inspectors defined in Article 2(5) of Directive 95/21/EC.   2. Where the officer conducting the certificate verification referred to in paragraph 1 has clear grounds for believing that the ship is not in compliance with the requirements of the special measures to enhance maritime security of the SOLAS Convention and of the ISPS Code, but does not belong to an authority which in that Member State is responsible for carrying out the measures provided for in paragraphs 1.2 and 1.3 of regulation 9 of the special measures to enhance maritime security of the SOLAS Convention, s/he shall immediately refer the matter to the said authority. Regulation (EC) No. 725/2004

ISPS Code is a comprehensive set of measures to enhance the security of ships and port facilities, developed in response to the perceived threats to ships and port facilities. ensuring the security of ships and port facilities is a risk management activity, it has to determine what security measures are appropriate; an assessment of the risks must be made in each particular case. The ISPS Code is providing a standardized, consistent framework for evaluating risk for ships and port facilities through determination of appropriate security levels and corresponding security measures. Risk Management - the most effective course of action is to eliminate the source of the threat. 100% security is an aim but cannot be guaranteed - hence the risk reduction approach to lessen possibilities to the lowest practicable. ISPS Code

ISPS Code Security Levels Security level 1: normal, the level at which the ship or port facility normally operates. Security level 1 means the level for which minimum appropriate protective security measures shall be maintained at all times. Security level 2: heightened, the level applying for as long as there is a heightened risk of a security incident. Security level 2 means the level for which appropriate additional protective security measures shall be maintained for a period of time as a result of heightened risk of a security incident. Security level 3: exceptional, the level applying for the period of time when there is the probable or imminent risk of a security incident. Security level 3 means the level for which further specific protective security measures shall be maintained for a limited period of time when a security incident is probable or imminent, although it may not be possible to identify the specific target. ISPS Code Security Levels

Regulation XI-2/10 covers requirements for port facilities, providing among other things for Contracting Governments to ensure that port facility security assessments are carried out and that port facility security plans are developed, implemented and reviewed in accordance with the ISPS Code. ISPS Code - Ports

ISPS Code - Ports Regulation 10 Requirements for port facilities 1 Port facilities shall comply with the relevant requirements of this chapter and part A of the ISPS Code, taking into account the guidance given in part B of the ISPS Code. 2 Contracting Governments with a port facility or port facilities within their territory, to which this regulation applies, shall ensure that:. 1 port facility security assessments are carried out, reviewed and approved in accordance with the provisions of part A of the ISPS Code; and. 2 port facility security plans are developed, reviewed, approved and implemented in accordance with the provisions of part A of the ISPS Code. 3. Contracting Governments shall designate and communicate the measures required to be addressed in a port facility security plan for the various security levels, including when the submission of a Declaration of Security will be required. ISPS Code - Ports

Liability for Damages Suffered by Passenger Liability of: Carrier Port (terminal operator) Liability for Damages Suffered by Passenger

8. Carriage covers the following periods (passengers): (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; Period of Carriage

8. Carriage covers the following periods (passengers): (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; Athens Convention 1974

Liability of Terminal Cargo: United Nations Convention on the Liability of Operators of Transport Terminals in International Trade (Vienna, 1991) (4 parties, 5 are requiered to entry into force) Passengers: no international instrument no EU instrument national Maritime Codes Liability of Terminal

Martime Code of Slovenia Interesting Rule of MC: port activity: among other is also: embarkation and disembarkation of passengers (port: servant or independent contractor of carrier?), Himalaya Clause The passenger ticket contained an immunity clause exempting the carrier from liabilities to guests and, consequently, the claimant sued the Master of the ship and the boatswain. The claimant argued that under the normal rules of privity of contract the defendants could not rely on the terms of a contract to which they were not party. However, the Court of Appeal ruled that in the carriage of passengers, just as it would be the case in the carriage of goods, the law permitted a carrier to stipulate not only for themselves, but also for those with whom they engaged to carry out the contract. It was held, as well, that the stipulation might be express or implied. Ironically, on the facts before the court, it was held that the passenger ticket did not expressly or by implication benefit servants or agents and thus the defendants could not take advantage of the exception clause. However, after the decision, specially drafted “Himalaya clauses”, benefiting stevedores and others, began to be included in bills of lading. Today Himalaya Clauses are written in B/L or Charterparties (carriage of goods) Martime Code of Slovenia

BIMCO Himalaya Clauses for Passenger Tickets Either: "By accepting or receiving this ticket, each passenger agrees without prejudice to its other provisions and both on his or her behalf and on behalf of any person or child travelling with him or her or in his or her care that neither the Captain, Officers, Crew and other personnel of the vessel named in this ticket or of any vessel owned or in the service of the Company nor any person employed by the Company at any time before, during or after the contemplated voyage shall be liable in respect of anything he may negligently do or omit to do in the course of or in connection with his employment which shall cause loss, damage or injury (whether fatal or otherwise) to the person and/or property of such passenger, person or child as aforesaid. For the purpose of the agreement expressed in this Clause, the Company shall be deemed to contract on behalf of and for the benefit of all persons who are or may be its servants or agents from time to time and all such persons shall to this extent be or be deemed to be parties to the Contract contained in or evidenced by this ticket." Or: "All limitations, exceptions and conditions herein contained as to the liability of the Carrier shall apply also to the liability, if any, of his agents, vessels, employees and other representatives, and also to the liability, if any, of the owners, vessels, agents, employees and other representatives of any substituted vessel." BIMCO Himalaya Clauses for Passenger Tickets

Transport of passengers and cabin luggage shall consist of the period when a passenger is on board, during the embarkation and disembarkation, and the period when traveling on the waterway from shore to ship and vice versa, if the price of this lateral transport is included in the price of the ticket or if the carrier gave to the passenger on the disposal a vessel which is used for this transport. (MC Art. 615)

Carriage of a passenger does not include the period when the passenger is on port facility on the coast. (MC Art. 615) If therefor passenger suffers damages while he/she is in port – is the liability based on general principles of liability? General principle: Any person that inflicts damage on another shall be obliged to reimburse it, unless it is proved that the damage was incurred without the culpability of the former. (Art. 131 (1) of Obligation Code) Obligation Code

Synthesis Himalaya? Or?: The port does not have a right to limit the liability. Port’s liability is fault. Port has to prove that it has acted with due diligence. If among other things fails to prove to comply with ISPS Code, the prove would be impossible. Synthesis

Thank you.