On 12 May 1999, a merchant vessel Elena-Maria sunk in the port of Piraeus. The owner of the vessel and second defendant, D & A Shipping Ltd, submitted to the Piraeus Court of First Instance a declaration of limitation of liability dated 17 March 2000, attaching a letter of guarantee from a bank for the amount of the limitation fund of GRD 248,826,696. In the same declaration, the defendant stated that the creditors known to it were the claimants and the third and fourth defendants, namely MSC SA and OLP AE (PPA SA), and that it made the declaration in order to release it from their claims, but also from all the claims arising from the aforementioned incident.

The three claimants, who lodged their claims to the fund, disagreed among themselves and raised objections against each other. The liquidator brought their objections before the Piraeus Court of First Instance, and the Court determined the amounts of their limited claims. The claimants appealed and counter-appealed the decision. The Court of Appeal of Piraeus issued Decision 149/2005. It dismissed the appeal of Thalassies Ypiresies Perivallontos Naytiki Etaireia (Marine Environmental Services Marine Co) and upheld the appeals of the two other claimants, increasing their limited claim amounts against the fund.

The first claimant appealed against the decision.

Held: the appeal is dismissed.

The Supreme Court reviewed the decision of the Court of Appeal in the light of arts 2, 2.1, 2.1.d, 3, 11, 11.1, 12, and 12.1 of the LLMC 1976 and concluded the following:

According to a general principle of private law, every debtor is liable for all its debts and is responsible for paying them with all its property. An exception to this rule is the possibility for the shipowner (and persons assimilated to the owner) to limit its liability for its debts arising from a specific event (mainly) by setting up a 'limitation fund', ie by offering a sum of money as defined in the LLMC 1976, which was ratified by Law 1923/1991, in conjunction with the provisions of arts 85 ff of the CPML, which do not conflict with the provisions of the Convention.

According to art 11.1 of the LLMC 1976, 'Any fund thus constituted shall be available only for the payment of claims in respect of which limitation of liability can be invoked.' Under art 12.1, 'the fund shall be distributed among the claimants in proportion to their established claims against the fund'. Article 2.1 of the Convention defines (restrictively) the claims that 'whatever the basis of liability may be, shall be subject to limitation of liability', and art 2.1.d lists 'claims in respect of the raising, the removal, destruction or the rendering harmless of a ship which is sunk, wrecked, stranded or abandoned, including anything that is or has been on board such ship'. Into this category - with a teleological interpretation of the provision - fall all claims relating to the raising of the wreck, either positively or negatively, ie the raising or the non-raising of it, such as the claim of the relevant port organisation (authority), resulting from its inability to make beneficial use of the wreck site when it occurs within the port and the shipowner omits to fulfil its legal obligation to raise and remove the sunken vessel.

This is because, since the favourable provision for the shipowner - and the correspondingly unfavourable provision for its creditors - of limiting its liability expressly and undoubtedly covers debts based on positive losses incurred by its creditors as a result of the costs of raising the wreck, by major reason and logical necessity, the claims for loss of profits are also subject to limitation. That is to say that the claims for loss of profits are satisfied only partially and the remainder is definitively extinguished and by their nature, they are not of the same degree of immediacy as the harmful event of the shipwreck. Therefore, the first and third grounds of appeal alleging that the appealed decision infringed arts 2 and 3 of the LLMC 1976, in that it included in the limitation fund the claim of OLP AE (PPA SA) for loss of profits resulting from the shipwreck, are dismissed as unfounded.

The appellant's second ground of appeal alleges that the Court of Appeal erred in law because 'it is not clear whether it accepts what it argued ... in its appeal ... that the LLMC 1976 identifies and contrasts in art 2 the claims subject to limitation with those of the claims, subject to limitation, which are excluded and identified in art 3, or whether it considers that art 2 mentions in an indicative manner the claims subject to limitation and that art 3 mentions in an indicative manner the claims not subject to limitation'. However, no ground of appeal is created if no account is taken of the arguments and conclusions drawn from the assessment of the evidence or of the denial of the validity of the right relied. Thus, this ground of appeal must be rejected as inadmissible.