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. 2. 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).

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 ) 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 SDR per passenger for personal injury and death Limit of 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 LLMCR 392/ SDR per passenger X number of passengers’ capacity of the ship as per its certificate SDR per passenger – strict liability 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 LLMCR 392/ pax X SDR/pax = SDR Strict liability 1000 pax X SDR/pax = SDR Fault based liability (carrier to prove he was not liable) 1000 pax X SDR/pax = 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 the LLMC, which Italy has not implemented

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