What does the term "ship" mean?
As regards the provisions on passenger liability, this term has a broad meaning. It includes, for example, passenger ships, cargo ships, recreational craft, rubber boats, water cycles, canoes and kayaks. In practice, it is not possible to make an exhaustive list. The Danish Maritime Authority decides whether a vessel carrying up to 12 passengers is to be considered a ship under the definition contained in the provisions on passenger liability.
When is the carrier required to take out insurance and acquire an insurance certificate?
Everyone engaged in commercial passenger transportation is obliged to take out insurance covering the liability to pay compensation described under passenger rights. As regards schools, institutions or the like covered by a public (Government, municipal or regional) self-insurance scheme, the self-insurance scheme is sufficient.
Owners of passenger ships engaged in international voyages and owners of other ships engaged in commercial voyages abroad with passengers must carry a certificate documenting that insurance has been taken out for covering liability as described under passenger rights (see below). The same applies to passenger ships of category A and B engaged in international voyages. The certificate is issued in accordance with the provisions of the Athens order. The certificate must be kept on board and presented to the authorities upon request.
As regards ships that are required to hold a certificate, the insurance policy or any other proof of having taken out insurance must be carried on board and presented to the authorities upon request. However, ships are not required to carry passenger liability insurance if they cannot carry it due to their design. This may be the case with, for example, canoes and kayaks.
What does the term "commercial passenger transportation" mean?
The term "commercial passenger transportation" has a broad meaning. It is important whether an agreement on passenger transportation is available. This is typically the case if something is given in return for the passenger transportation. Direct payment through, for example, cash, goods or any other means should be considered the basis for assuming that it is a case of commercial passenger transportation. Depending on the circumstances, it could also be a case of commercial passenger transportation when direct payment is made, for example in connection with sponsor agreements.
Typically, there will also be an agreement to transport passengers and, thus, a case of commercial passenger transportation if a voyage is open to a wider circle of participants than family members and close friends and relatives. By making a voyage available to a wider audience, the voyage loses its original nature as a private, non-commercial voyage. Instead, it becomes public and commercial. This is so irrespective of whether the wider circle of participants are paying for the voyage.
When assessing whether a specific passenger voyage is to be considered commercial or non-commercial, it does not matter whether the ship is permanently or merely occasionally used for commercial passenger transportation. Neither is it of importance to the status of a specific passenger transportation whether the passengers take part in the propulsion of the ship, for example by rowing or paddling.
Ultimately, the courts will decide whether a specific voyage can be categorised as commercial passenger transportation. However, at present there is no case-law in this area. It is possible to acquire an assessment from the Danish Maritime Authority of whether a specific voyage is to be considered commercial passenger transportation by writing to email@example.com.
Which regulations apply to schools and institutions' voyages with students or placed persons?
According to the law, schools, including public schools, private schools, continuation schools and high-schools' voyages with students are considered commercial passenger transportation. The same applies to, for example, treatment centres, day-care centres and after-school centres' voyages with the users as well as hospitals' voyages with patients. Therefore, the organisations concerned are obliged to take out passenger liability insurance. This obligation applies irrespective of whether the students, users or patients, etc. pay for the passenger transportation.
If the institutions are covered by a municipal or a Government self-insurance scheme, it suffices.
Do the provisions on commercial passenger transportation apply to yachting clubs?
Normally, yachting clubs do not offer commercial passenger transportation and are, thus, not obliged to take out passenger liability insurance. For example, voyages and teaching in yachting clubs where only the club's own paying club members take part are not considered commercial passenger voyages. The same applies to yachting clubs' trial voyages with potential club members.
Typically, it is not a case of commercial passenger transportation if the owner of a boat navigates his own boat with privately invited family members or close friends or relatives on board - even if the persons invited contribute with payment for the expenses related to the voyage, such as fuel and food. The hiring out of yachts without a master by yachting clubs cannot be considered commercial passenger transportation either.
If, on the other hand, a yachting club performs activities that would normally be considered commercial in nature, the fact that they are performed by a yachting club does not constitute an exemption from the provisions on passenger liability and the obligation to take out insurance. This is, for example, the case when a yachting club - against payment - offers sailing activities to non-members, such as companies or associations. It may also be the case with voyages with persons who pay a club membership fee covering only a short period of time and one or more specific voyages, but who cannot be considered to actually have acquired membership status.
What does the term "marine accident" mean?
The term"marine accident" includes shipwreck, capsizing, collision or stranding, explosion or fire on board. In addition, the term covers ship defects, i.e. malfunctioning, failure or lack of compliance with current safety regulations related to ship parts or marine equipment.
What is the difference between the passenger rights under the Athens regulation and the merchant shipping act?
The Athens regulation bestows a number of rights on passengers that are not contained in the merchant shipping act. Thus, passengers have a few more rights according to the scope of application of the Athens regulations than under the scope of application of the merchant shipping act. More specifically, it concerns the following rights:
The passenger is entitled to compensation in case of marine accidents and accidents other than marine accidents arisen from acts of war, including acts of terrorism.
In connection with marine accidents, the passenger is entitled to receive compensation for mobility aids or other aids unless the carrier can prove that the marine accident was not due to his error or neglect. The same applies in connection with other accidents than marine accidents if the passenger can prove that the accident was caused by the carrier's error or neglect.
In case of the death or injury of a passenger, the passenger or another person who is entitled to receive compensation has the right to receive an advance payment for covering the immediate economic needs. The amount will be calculated in accordance with the injury suffered, must be paid within 15 days and amount to at least EUR 21,000 in case of death.
The passenger is entitled to get appropriate and intelligible information about his rights according to the Athens regulation.
Read about passenger rights.