The liability (if any) of the Carrier for damages suffered as a result of death or personal injury to the Passenger, or loss or damage to luggage shall be subject to the following limitations and shall be determined in accordance with the following:
22.1 Subject to this Article, the Carrier will in no circumstances be liable for any loss or damage suffered by the Passenger including but not limited to death, personal injury, loss of or damage to Luggage or other property and any consequential or economic loss, whether or not arising from the negligence, wilful misconduct or breach of contract of the Carrier, its servants or agents.
22.2 Nothing in this Article shall be taken as an exclusion or modification of any term forming part of the Contract by the operation of, or any provision of, the Australian Competition and Consumer Act 2010 (Cth), the operation of which cannot by law be excluded, restricted or modified. In case of breach by the Carrier of such a term or provision, the liability of the Carrier shall be limited to the amount of money representing the cost of providing the services to the Passenger under this Contract again.
22.3 If for any reason, but only if, the exclusion of liability in Article 22.1 is declared invalid or unenforceable then the provisions of Articles 22.4 and following shall apply.
22.4 The liability of the Carrier shall be limited in accordance with the applicable limits contained in the International Convention relating to the Carriage of Passengers and their luggage by Sea, shall be governed by EU regulations 392/2009 (“Regulation 392/2009”) and any liability of the Company and/or Carrier for death or personal injury or for loss of or damage concerning the Rights of Passengers when travelling by sea in the event of Regulation 392/2009, shall apply. Subject to Articles 22.1, 22.2 and 22.3 the provisions of the Athens Convention 1974 as amended in 1976 (“The Athens Convention”) may be applicable to domestic carriage by sea. A copy of the Athens Convention and EU Regulation 392/2009 are available from the Company upon request. The Carrier shall be entitled to the benefit of all the limitations, rights and immunities provided by the Athens Convention and, where applicable EU Regulation 392/2009 including the maximum deductible specified in Article 8(4) of the Athens Convention. The liability of the Carrier for a shipping incident in respect of death and/or personal injury and loss of and damage to luggage which the Company may incur to the Passenger, whether under the Contract in accordance with these conditions or otherwise, shall always be subject to the maximum limits of liability contained in Regulation 392/2009 of 400,000 SDR’s per passenger for death/personal injury. The maximum limit may be 250,000 SDR’s in respect of certain incidents. The limits for death, personal injury to the Passenger under the Athens Convention are 46,666 SDRs per passenger. Limits of liability or cabin luggage are 2250 SDRs per passenger pursuant to EU 392/2009 and 833 SDRS per passenger pursuant to the Athens Convention. The Company and the Carrier have no liability for valuables unless deposited with the ship’s pursuer. In which case liability will be limited to 3375 SDRs or 1200 SDRs respectively. References to limits per passenger are per carriage. An SDR is a Special Drawing Right and fluctuates daily. The value of SDR can be calculated by visiting http://www.imf.org/external/np/fin/data/rms_five.aspx. Further information concerning the Athens Convention and its full text may be found on the European Commission website (http://europa.eu/legistation_summaries/transport/waterborne_transport/tr0018_en.htm) If any provision of these Conditions is rendered null and void by the Athens Convention or EU Regulation 392/2009 such invalidity shall be limited to the particular clause and not to the whole of the Contract or Conditions.
22.5 The Carrier’s liability in relation to death and/or personal injury is limited and shall in no circumstances whatsoever exceed the limits of liability set out under the Athens Convention, or where applicable EU Regulations 392/2009.
22.6 The Carrier will only be liable in relation to death and/or personal injury and/or loss of or damage to Luggage in the event that the Carrier and/or its servants or agents as required by Article 3 of the Athens Convention, or where there is liability for a shipping incident, where EU Regulation 392/2009 applies. The limits of liability under the terms of the Athens Convention shall be applicable to the Carrier’s servants and/or agents and/or Independent Contractors in accordance with Article 11 of the Athens Convention. Any damages payable by the Carrier shall be reduced in proportion to any contributory negligence by the Passenger as provided in Article 6 of the Athens Convention.
22.7 It is presumed under the Athens Convention and where applicable EU Regulation 392/2009 that the Carrier has delivered Luggage to a Passenger unless written notice is given by the Passenger within the following periods:
(i) in the case of apparent damage before or at the time of disembarkation or redelivery
(ii) in the case of damage which is not apparent or loss of Luggage within fifteen days from the disembarkation or delivery or of the date that such delivery should have taken place.
Any damages payable by the Company up to Regulation 392/2009 or Athens Convention limits shall be reduced in proportion to any contributory negligence by the Passenger and by the maximum deductible specified in Article 8 (4) of the Athens Convention. Copies of Regulation 392/2009 and the Athens Convention are available from the Company upon request.
22.8 If the carriage provided hereunder is not “international carriage” as defined in Article 2 of the Athens Convention or the Vessel is being used as a floating hotel, the remaining provisions of the Athens Convention shall apply to this/here contract and be deemed to be incorporated herein mutatis mutandis.
22.9 The Carrier shall not be liable for loss or damage to any valuables such as monies, negotiable securities, precious metal items, jewellery, art, cameras, computers, electronic equipment, or any other valuables unless they are deposited with the Carrier for safe-keeping, and a higher limit is agreed expressly and in writing at the time of deposit, and an extra charge is paid by the Passenger for declared value protection. Use of ship’s safe is not a deposit with the ship. Where there is liability for loss of or damage to valuables deposited with the ship then such liability is limited to 3,375 SDR under the Athens Convention or 1,200 SDR respectively. References to limits per passenger are per carriage.
The Carrier and Passenger agree not to demand any security from the other in connection with a claim of any kind. The Passenger waives the right to arrest the Vessel or to attach any other asset owned, chartered or operated by the Carrier. If the Vessel is arrested or attached, then the ship and the Carrier shall have the right to any limitation and all defences available herein.
22.10 In addition to the restrictions and exemptions from the liability provided in these Conditions, the Carrier shall have full benefit of any applicable laws providing for limitation and/or exoneration of liability (including without limitation, law and/or the laws of the Vessel’s flag in respect of/or the global limitation on damages recoverable from the Carrier). Nothing in these Conditions is intended to operate to limit or deprive the Carrier of any such statutory or otherwise limitation or exoneration or liability. The servants and/or agents of the Carrier shall have the full benefit of all such provisions relating to the limitation of liability.
22.11 The liability of the Company is excluded for claims arising out of loss of damage directly or indirectly occasioned by circumstances where performance and/or prompt performance of the Contract is prevented by reason of war, or threat of war, riot, civil strife, industrial dispute whether by the Company’s employees or others, terrorist activity or the threat of terrorist activity, failure of power supplies, health risks or epidemics natural or nuclear disaster, fire or adverse weather conditions or adverse sea states. Passenger’s suicide or attempted suicide or the Passenger’s deliberate exposure to unnecessary danger (except in an attempt to save human life), or circumstances of any nature whatsoever outside the Company’s control.
22.12 Without prejudice to the provisions of 22.1 to 22.11 above, if any claim is brought against the Carrier in any jurisdiction where the applicable exemptions and limitations incorporated in these Conditions are held to be legally unenforceable then the Carrier shall not be liable for death, injury, illness, damage, delay or other loss or detriment to any person or property arising out of any cause of whatsoever nature which has not been shown to have been caused by the Carrier’s own negligence or fault.