During a trip on a passenger ferry, a passenger died due to a fire on the ferry. His relatives initiated legal proceedings. The Court of Appeal partially accepted the claim and held that the defendant carrier should compensate the claimants for their mental suffering, awarding EUR 100,000 each to the deceased's mother and two children, and EUR 40,000 to his two siblings. The defendant appealed to the Supreme Court.

Held: The appeal is dismissed. The Court of Appeal decision is validated.

The Supreme Court reviewed the decision of the Court of Appeal in the light of arts 3, 3.1, 3.1.a, 3.1.b, 3.3, 3.5.a, 3.5.b, 3.5.c, 3.5.d, 3.6, 4, 4.1, 4.2, 7, 7.1, 14, 16, 16.1, 16.2.a, 16.2.b, 16.2.c, 16.3, 16.3.a, and 16.3.b of the Athens Convention 2002 and concluded the following:

The Athens Convention 1974, as amended by the 1976 Protocol and by the 2002 Protocol, was ratified by Laws 1922/1991 and 4195/2013, and has the power as stated in art 28.1 of the Constitution.

Any claim by passengers in international maritime carriage against the carrier for compensation for their loss (whether pecuniary or non-pecuniary) resulting from the personal injury they suffered, provided that the event giving rise to that loss occurred during the carriage and was due to the fault of the carrier, or of the carrier’s servants or agents, shall be exercised exclusively in the manner provided for in the Convention and shall be time-barred after two years from the date of disembarkation of the passenger, irrespective of the basis of this right in the contract of carriage by sea or in tort.

The contrary view, according to which the above-mentioned short limitation period applies only to the contractual and not to the non-contractual liability of the carrier, which is governed by the applicable law of the court seized of the case, is not based on the abovementioned provisions and in particular on those of arts 16.1 and 16.3 of the Athens Convention 2002. The first provision provides generally and without distinction that 'any action for damages arising out of ... personal injury to a passenger ... shall be barred after two years', while the second expressly provides that only suspension and interruption of the limitation period are governed by the applicable law of the court seized of the case. Moreover, under this contrary interpretation, the purpose for which the Convention, in seeking to unify the rules relating to the liability of the carrier by sea, established the above short limitation period for the legal relationship in question (Supreme Court Decision 1002/2002) would be undermined.

The first ground of appeal alleges that the Court of Appeal infringed the substantive provisions of art 16 of the Athens Convention 2002 by misinterpreting and misapplying them, by rejecting the defendant carrier’s plea that the two-year limitation period had been completed, or else that the three-year limitation period had been completed, in respect of the claimants’ claim.

The Court of Appeal did not infringe the substantive provisions of art 16 of the Athens Convention 2002, which it correctly interpreted and applied. This is because the claimants’ claims derive from the death of their relative, a passenger on the ship, which occurred during the course of the carriage, and are time-barred after the expiry of two years from the date on which the passenger should have disembarked (28 December 2014). The claimants filed their claim on 13 December 2016 against the defendant carrier (within the two years), so the limitation period of their legal claims for the death of their relative was interrupted. When their action was finally dismissed on the ground of vagueness, they commenced another legal action with the same factual history and legal cause, and claimed within six months of the final dismissal of the first action, so the limitation period of their claims is deemed to have been interrupted by their earlier legal action.

In the present case, art 16.2.b of the Athens Convention 2002 is inapplicable. It provides that an action may not be brought more than three years after the date of disembarkation, because that presupposes a physical injury which occurred during carriage and resulted in the death of the passenger after disembarkation. Here, the passenger's death occurred during carriage and the two-year period is calculated from the date on which the passenger should have disembarked. Also, art 16.3.b, which provides that an action may not be brought after the expiry of a period of three years from the date on which the claimant knew or ought reasonably to have known of the personal injury, loss, or damage caused by the incident, is inapplicable, because it does not relate to the case of the death of the passenger. Moreover, the time limits set out above relate to the bringing of an action in the first place, which interrupts the time limitation period, and not to the reopening of the action in the event of its dismissal on the grounds of its vagueness. Therefore, the first ground of appeal is unfounded.

In the third ground of appeal, the defendant carrier alleges that the Court of Appeal misinterpreted and misapplied the provisions of arts 3, 4, and 14 of the Athens Convention 2002 by accepting that the payment of compensation for mental suffering to the claimants does not require subjective tortious liability on the part of the defendant or its servants, but objective liability or constructive objective liability under the Athens Convention 2002. The Court of Appeal accepted that the necessary facts establishing the defendant contractual carrier's alleged fault in the legal action were sufficient to establish its genuine objective liability, its fault being presumed by reversing its burden of proof, having regard to: (a) the fact that the damage alleged by the claimants in respect of the loss of life of their relative, a passenger, exceeds the limit of the carrier's strict liability, whether contractual or actual, of 250,000 SDRs; and (b) that it is not necessary to establish the contractual or the actual carrier's liability in tort for the compensation for mental suffering sought. This is since their liability, which is based exclusively on the provisions of the Athens Convention 2002, extends to any damage arising from the loss of life of their relative during the carriage, including their non-pecuniary damage, without it being necessary to satisfy the requirements of tort, as the defendant wrongly claims. In particular, the defendant’s alleged claim that the Athens Convention 2002 does not provide a legal basis for a claim for compensation for moral injury or mental anguish, is contrary to its provisions, which expressly state that the Convention applies to every international carriage and establishes the carrier's liability for any damage suffered. Therefore, it clearly includes all claims for compensation of passengers or their relatives, as a result of personal injury or death, and extends to non-pecuniary, moral/mental damage, whether the legal basis of the carrier's liability is contract or tort, without providing for any separation or limitation of claims for each legal basis. But it does establish a uniform and unified system for every legal action for damages, in application of the provisions of this Convention, whether the liability of the carrier is contractual or extra-contractual.

The Court of Appeal did not infringe the aforementioned substantive provisions of the Athens Convention 2002, which it correctly interpreted and applied. This is because the carrier's liability for damage suffered as a result of the death of a passenger due to a maritime accident is objective, up to a maximum of 250,000 SDRs in each individual case of a passenger, and if the damage exceeds 250,000 SDRs and up to a maximum liability limit of 400,000 SDRs, the carrier's liability is wrongfully objective, ie subjective, with a presumption of fault. Therefore, in order to be relieved of its liability, the carrier must plead and prove that the event which caused the damage was not due to its own fault or negligence. It follows from art 14 of the Athens Convention 2002, which expressly provides that no action for compensation for the death of a passenger shall be brought against the carrier otherwise than in accordance with this Convention, that the defendant's liability in tort is not required to be established for the compensation sought. This is because its liability is based exclusively on the provisions of the Athens Convention 2002 and includes damage suffered as a result of the death of a passenger caused by a shipping incident, ie includes claims of the passenger's relatives for financial compensation for the mental anguish suffered because of the passenger's death. Therefore, the above ground of appeal is unfounded.

The amounts awarded by the Court of Appeal to the relatives did not infringe the principle of proportionality and did not exceed the outer limits of its discretion, since those sums, in the light of common experience, judicial practice and a sense of justice, are clearly not higher than those normally awarded in similar cases of compensation for mental suffering and are not excessive.