This was an appeal brought by a family of passengers against the carrier, Armas Cruceros SA, after the Court of first instance partially upheld their claims for a total of  EUR 10,859.38. The appellants argued that the limitation amounts in the Athens Convention 1974 did not apply, as 'the damage resulted from an act or omission of the carrier done with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result' (art 13.1).

Held: Appeal dismissed.

The evaluation of the evidence carried out by the Judge at first instance was correct, as well as the finding that, although the defendant carrier was liable for causing the loss and the damages derived from it, there were no elements that justified classifying the conduct of the defendant as reckless. The ship had on board the crew required by international regulations for cargo and passenger ships, it had excellent manoeuvrability, it was duly accredited that the maintenance conditions were excellent, all of its flag certificates up to date, and it had been sailing on this line for more than five months without incident. The master of the ship was accredited and experienced. The process after the accident occurred was fast, impeccable, safe, guided at all times by the objective of saving first the passengers, then the crew, and later the ship. Although the defendant had the intention of trying to recover the ship and its contents, it was ultimately impossible to recover the belongings of the appellants, an impossibility not attributable to the defendant carrier as it was due to circumstances beyond its control. The defendant's action in giving priority to safeguarding life and physical integrity of the passengers and their safety was correct.

This Court adopts the following findings in the judgment of first instance, which provided a consistent, clear, precise, complete, and totally correct motivation.

The Athens Convention 1974 is applicable to this case. The Protocol of 2002 has not yet come into effect in Spain. The Convention starts from the liability of the carrier for damages resulting from the death or bodily injury of a passenger, and for the loss or damage suffered by the luggage during transport, provided that they are attributable to the fault or negligence of the former, which is presumed (art 3).

Article 7 of the Convention sets the limits of the shipowner's liability in relation to death or bodily injury, such that the amount of compensation may not exceed 46,666 units of account per transport. The appellants claim that they have suffered a traumatic experience derived from the accident, and have post-concussion syndrome, for which they seek damages of EUR 80,085.51. From the literal tenor of the provision it seems that the compensable concept refers to bodily injuries, a term that could only extensively include a post-traumatic syndrome which in a broad sense can be included within the concept of bodily injury. The evidence does not clearly establish this. The relevant medical report is from 27 June 2008, when the incident occurred on 30 April. In addition, in the case of physical injuries, the appellants could have been examined in the Canary Islands in May, which could have made it possible to detect and discriminate injuries that are a direct consequence of the incident, since those that are seen in the report of June 2008 may not be causally linked to the ship's evacuation operations. The defendant's medical report rules out a causal relationship with the incident, and states that the injuries may be the result of previous trauma or osteoarthritis.

Article 8 of the Convention provides for a limitation for cabin luggage of 833 units of account per passenger, per transport. Being five passengers, the limit would amount to EUR 4,896.50. For the loss of the vehicle, the Convention provides 3,333 units of account per vehicle, which is equivalent to EUR 3,918.40. The items lost from inside the motorhome are not compensable as cabin baggage, so they would be covered in art 8.2 of the Convention, as baggage transported inside the vehicle. The rest of the expenses sought by the appellants, such as food, accommodation, telephone, transportation and miscellaneous expenses, tickets and mail, are not attributable to the defendant under the Convention, since they are not damages caused during the performance of the transport (art 3.1 of the Convention), and, even though they could have originated from the incident, the truth is that there is no causal link with it, because if the plaintiffs were going to reside permanently in La Palmas, the accommodation expenses would have been incurred anyway, unless they had planned to always live in the motorhome. The expenses for clothing are understood to be included in those for cabin baggage, and, as for the other expenses, they lack a direct causal connection with the accident, understanding that the airline tickets to Stuttgart are not attributable to the defendant carrier, since the replacement of the lost goods could have been done in the Canary Islands. Therefore, the claim regarding damage to luggage and vehicle must be partially upheld, and the appellants must be compensated in the amount of EUR 859.38, taking into account sums already paid by the defendant carrier.

Regarding the claim for non-pecuniary loss (anguish and anxiety), it is appropriate to grant each of the appellants the sum of EUR 2,000.