Alte Leipziger (AL), a German company, sued Comarit España SL (Comarit), a Spanish company, for extra-contractual liability for damage to a vehicle allegedly caused the negligence of the latter's employees. The Court of first instance rejected AL's claim, arguing that it was mandatorily covered by the Athens Convention 1974, and that AL had sued the wrong party. AL appealed, arguing that the Convention was not applicable, because Morocco was not a signatory to it, and therefore the general rules on extra-contractual liability in the Civil Code applied.

Held: Appeal dismissed.

The Court of first instance held that the Athens Convention 1974 applied, because we are dealing here with an international transport contract (formalised by means of a passage ticket), and therefore its non-compliance supposed a clear assumption of breach of contract. Art 1.5 of the Convention provides that '"luggage" means any article or vehicle carried by the carrier under a contract of carriage'. Article 3.1 of the Convention provides:

The carrier shall be liable for the damage suffered as a result of ... the loss of or damage to luggage if the incident which caused the damage so suffered occurred in the course of the carriage and was due to the fault or neglect of the carrier or of his servants or agents acting within the scope of their employment.

The Convention further defines 'carrier' in art 1.1:

(a) 'carrier' means a person by or on behalf of whom a contract of carriage has been concluded, whether the carriage is actually performed by him or by a performing carrier;

(b) 'performing carrier' means a person other than the carrier, being the owner, charterer or operator of a ship, who actually performs the whole or a part of the carriage;

Finally, the Court of first instance held that it had not been proven that Comarit was the owner of the ship Boughaz. Rather, the ship was owned by Compagnie Maritime Maroco Norvegienne. The Court found that it had also not been proven that Comarit was the legal representative of the shipowner, or maintained any other relationship with it. This Court agrees with these findings after an examination and analysis of the evidence. Comarit's involvement was limited to acting solely and exclusively as the ship's agent in Algeciras. In general terms, ship agents are independent collaborators of the shipping company who are professionally dedicated to managing their interests on land. They carry out a complementary activity to that of the shipping company, with a range of functions that varies from case to case.