Mrs Garcia, who was a passenger on a Mediterranean cruise on the MSC Fantasia, fell while heading towards one of the ship's restaurants for breakfast, explaining in her complaint that her fall occurred 'when she slipped due to the uneven condition of the floor', finding 'the floor wet and unmarked', even though she was wearing 'comfortable and safe footwear'.

The plaintiff, who was 61 years old at the time of the event, claimed EUR 54,197.48 from her travel agent, Viajes el Corte Inglés SA (VECI), and its insurer, Allianz Cia de Seguros y Reaseguros SA (Allianz), with Costa Crociere SpA (Costa) appearing as a voluntary intervener. Both the defendants and the intervener opposed her claim, arguing that the fall was due to her own lack of caution or fault, as the floor was in perfect condition, although it was slippery due to the ambient humidity typical of the open-air deck of every ship, a circumstance duly marked with signs indicating 'wet floor' and 'slippery deck'. They also highlighted that the passenger was wearing high-heeled sandals.

The Court below partially upheld Mrs Garcia's claim and awarded her EUR 24,129.38. Costa appealed.

Held: Appeal upheld.

The Athens Convention 1974 applies to retail travel agents (here, VECI) when they arrange the trip with the performing carrier (Costa), as can be seen from the definitions contained in art 1 of the Convention:

(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 that person 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;

(c) 'carrier who actually performs the whole or a part of the carriage' means the performing carrier, or, in so far as the carrier actually performs the carriage, the carrier;

Furthermore, if any doubt arises as to VECI's qualification as a carrier, its liability could also be established due to its status as an 'agent of the carrier', in respect of which art 11 of the Convention states:

If an action is brought against a servant or agent of the carrier or of the performing carrier arising out of damage covered by this Convention, such servant or agent, if he proves that he acted within the scope of his employment, shall be entitled to avail himself of the defences and limits of liability which the carrier or the performing carrier is entitled to invoke under this Convention.

VECI is thus obligated to answer to the passenger for the transport provided by Costa, and must do under the terms of the Convention, in accordance with the Consolidated Text of the Consumer Law approved by art 162.3 of Royal Decree-Law 1/2007, which provides that 'to the extent that international Conventions binding the European Union limit the scope or conditions of payment of compensation by providers of travel services included in a package tour, the same limitations shall apply to organisers and retailers'.

It is important to emphasise that, according to art 3 of the Convention, the carrier's liability is as follows:

1. The carrier shall be liable for the damage suffered as a result of the death of or personal injury to a passenger and 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.

2. The burden of proving that the incident which caused the loss or damage occurred in the course of the carriage, and the extent of the loss or damage, shall lie with the claimant.

3. Fault or neglect of the carrier or of his servants or agents acting within the scope of their employment shall be presumed, unless the contrary is proved, if the death of or personal injury to the passenger or the loss of or damage to cabin luggage arose from or in connexion with the shipwreck, collision, stranding, explosion or fire, or defect in the ship. In respect of loss of or damage to other luggage, such fault or neglect shall be presumed, unless the contrary is proved, irrespective of the nature of the incident which caused the loss or damage. In all other cases the burden of proving fault or neglect shall lie with the claimant. 

That is to say, if a passenger's injuries are caused by an event unrelated to navigation (as in a fall at the entrance of a ship's restaurant), this will only render the carrier liable when its fault or negligence is fully proven, which in principle excludes the application of criteria for objective liability such as liability for risk or the reversal of the burden of proof in favour of the victim.

Here, we are not dealing with any risky activity - travelling on a cruise ship is not inherently risky - and the plaintiff's fall while heading to one of the ship's restaurants can be explained within the framework of the general risks of life. When walking on a slippery surface due to humidity, it is up to the victim to prove the fault of the person they intend to hold responsible for their fall, that is, that the carrier did not implement the required surveillance, maintenance, signage, care, or precautionary measures. Here, the plaintiff has not done so.