On 28 December 2014, a fire broke out on the Italian-flagged passenger ferry NA while en route from Patras, Greece, to Ancona, Italy. The five claimants were the owners of trucks, refrigerated trailers, and their cargoes, which were destroyed by the fire. The claimants initiated legal proceedings against the first defendant as their contractual sea carrier, the second defendant as sub-charterer of the NA, which had provided the NA to the first defendant for its use and operation, and the third defendant as a member of the first defendant's consortium. The claimants applied for a declaration of joint and several liability of the defendants to pay compensation for their losses for: 1) the destruction of their trucks and trailers; 2) the loss of the fares for the transport of goods; 3) the loss of fuel and loss of money inside their trucks; 4) the loss of freight charges paid to the first defendant for the carriage of their trucks; and 5) for two of them additionally for the loss of grapnels inside their trailers. The claimants also applied for monetary compensation for non-material damage and consequential loss of income.

The Court of First Instance of Piraeus held that the Athens Convention 2002 was applicable on the basis of art 2.1, because: a) the ship was flying the flag of a Member State (Italy) and was registered in a port of a Member State (Bari, Italy); b) the contract of maritime carriage had been concluded in a Member State (Greece); and c) both the place of departure (Patras and Igoumenitsa) and the place of destination (Ancona, Italy) in accordance with the contracts of carriage, were located in Member State. The Court dismissed the action against the second and third defendants as inadmissible for lack of passive legal capacity. The Court also found that the first defendant's liability as a contractual carrier was objectively wrongful objective under arts 1.1.a, 1.1.b, 3.1, 3.2, 3.6, 4.1, 4.2, 7, 8.2, 9, 12, and 14 of the Convention. The Court partially upheld the claim on the merits on the basis of the contracts of carriage by sea, which it assessed as contracts of carriage of passengers' luggage by sea. The Court held that: a) the total destruction of the claimants' vehicles was due to a shipping incident within the meaning of art 3.5.a of the Convention in the context of the contracts of international carriage of passengers and their luggage by sea; b) the negligence or fault of the first defendant, in relation to the total destruction of the vehicles was presumed and deemed proven, since the defendant did not prove the lack of its fault or negligence, or that one of the grounds in arts 3.1.a or 3.1.b of the Convention were fulfilled; and c) as a consequence, the conditions of arts 3.1, 4.1, and 8.2 of the Convention were met, and the defendant's liability was limited to 12,700 SDRs for each of the claimants' vehicles.

The claimants and the first defendant both appealed the decision to the Court of Appeal of Piraeus.

Held: Thew first defendant's appeal (appeal B) is dismissed. The claimant's appeal (appeal A) is partially admitted and decided on its merits.

Regarding the Hague-Visby Rules, the Court of Appeal reviewed arts 1.b, 2, 3.1, 5, and 10, and concluded the following.

Greece ratified the Hague-Visby Rules and their 1968 and 1979 Protocols by Law 2107/1992. As per arts 1.b, 2, 3.1, 5, and 10, the Hague-Visby Rules are applicable in Greece: a) to sea carriage in which the ports of loading and unloading are located in different countries, which is covered by a bill of lading or other similar document constituting a title for the carriage of goods by sea; and b) to sea carriage between Greek ports, whether or not a bill of lading has been issued (Supreme Court Decision 343/2019; Supreme Court Decision 376/2008 (CMI2414); Court of Appeal of Thessaloniki Decision 1241/2019; Court of Appeal of Piraeus Decision 738/2009). In the first of the above cases, the bill of lading issued must be in order and circulated, in which case it constitutes a document of title for the sea carriage (Court of Appeal of Patras Decision 55/2018; Court of Appeal of Piraeus Decision 1206/2005). A document similar to a bill of lading, which constitutes a document of title for sea carriage, is obviously a document that has a similar function as a bill of lading, ie which is transferred by endorsement and embodies the claim of its holder (bearer) for the delivery of the goods loaded at their place of destination. However, such a document, similar to a bill of lading, is not provided for in Greek legislation, and is not used in the shipping practice of countries with a long maritime tradition.

Therefore, the Hague-Visby Rules do not apply. Instead, the provisions of the CPML and the CC apply in the case of international sea carriage for which a bill of lading in the above sense has not been issued, but a charter has been drawn up which is governed only by a charterparty or: a) a sea waybill; b) a vehicle ticket; c) a receipt; or d) a vehicle boarding pass. These are usually issued in cases of carriage of goods by ferries, in containers or trucks, ie documents which do not have a title and lien function and which are used in carriage where there is no possibility of selling the goods during the carriage (Court of Appeal of Piraeus Decision 545/2020; Court of Appeal of Patras Decision 55/2018; Court of Appeal of Piraeus Decision 738/2009; Court of Appeal of Piraeus Decision 76/2006; Court of Appeal of Piraeus Decision 1206/2005; Court of Appeal of Piraeus Decision 286/2004).

Furthermore, during the performance of the contract, it is possible for the contracting parties to incur a tort against each other, if the act or omission is culpable and unlawful and outside the contractual relationship. A tortious act or omission in breach of a contract may, in addition to a claim under the contract, give rise to a claim in tort where, regardless of the contractual relationship, it would nevertheless have been unlawful. In this case there is an overlapping of contractual and non-contractual liability, and the claimants are entitled to base their claims for damages either on the contract or on the tort, or on both. In particular, in the case of carriage by sea, governed by the Hague-Visby Rules, a situation in which the contractual and non-contractual liability of the maritime carrier/chartering shipowner overlapin respect of the loss of or damage to the goods carried. According to the prevailing view in theory and caselaw, the failure to take the necessary measures to safeguard the cargo constitutes a mere contractual omission on the part of the shipowner/carrier and its agents. Therefore, such conduct cannot be characterised as an unlawful and culpable act without the existence of a charterparty/sea carriage contract, and therefore without the existence of a tort (Court of Appeal of Piraeus Decision 545/2020; Court of Appeal of Thessaloniki Decision 1241/2019; Court of Appeal of Piraeus Decision 76/2006; Court of Appeal of Piraeus Decision 106/1994; Court of Appeal of Piraeus Decision 1741/1990).

The established system of the liability of the maritime carrier in arts 134 and 135 of the CPML is a partially different regulation from that of the Hague-Visby Rules. It is based on the presumed fault of the defendant, ie on the maritime carrier's statutory strict liability. In particular, in the event of loss or damage to the cargo, the carrier has the burden of proving that it is not at fault as regards the observance of due diligence (of a prudent shipowner), in particular with regard to the loading, stowage, storage, safekeeping, good preservation, carriage, and unloading of the goods carried during the period between their receipt for carriage and their delivery to the consignee (Court of Appeal of Thessaloniki Decision 1241/2019; Court of Appeal of Piraeus Decision 738/2009; Court of Appeal of Piraeus Decision 76/2006; Court of Appeal of Piraeus Decision 286/2004).

The principle of restrictive interpretation of exceptional provisions requires that the carrier's liability for damage caused by fire applies only if the damage is attributed exclusively to the existence of 'nautical fault' of the master or crew and the carrier is not personally involved even to a minimum degree, while even if it is proved that there is indeed 'nautical fault' on the part of the carrier's servants, it is not excluded that the carrier's liability may be revived, especially in cases where it approved the acts or omissions related to the navigation or management of the ship or benefited from them (The Arzew (1981) 1 Lloyds Rep 142; Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound (No 1)) [1961] AC 388).

Regarding the Athens Convention 2002, the Court of Appeal concluded that international carriage of passengers in Greece is governed by the Athens Convention 1974, as amended by the 1976 and 2002 Protocols, ratified by Laws 1922/1991 and 4195/2013, as well as by European law (Directive 392/2009). European law incorporated the Athens Convention 2002 and the IMO Reservations and Guidelines for the Application of the Athens Convention.

European law and the Athens Convention 2002 apply, among others, to any international carriage within the meaning of art 1.9 of the Athens Convention 2002, ie any carriage where, according to the contract of carriage, the place of departure and the place of destination are in two different States or in a single State if, according to the contract of carriage or the scheduled itinerary, there is an intermediate port of call in another State, provided that: a) the ship is flying the flag of, or is registered in a Member State; or b) the contract of carriage is concluded in a Member State; or c) the place of departure or destination, according to the contract of carriage, is in a Member State. As expressly provided in European law, the liability regime with regard to passengers, their luggage, and their vehicles is governed by it, as well as by arts 1, 1.a, 2.2, 3-16, 18, 20, and 21 of the Athens Convention 2002.

The Athens Convention 2002 regulates the liability of the carrier for damage caused as a result of the death or bodily injury of a passenger or the loss of or damage to the passenger's luggage (Supreme Court Decision 376/2008 (CMI2414); Supreme Court Decision 1326/2008 (CMI785); Court of Appeal of Piraeus Decision 738/2009). In this case, the vehicles of the claimants (trucks with refrigerated trailers) fall under the exclusion in art 1.5 of the Athens Convention 2002, according to which goods or vehicles carried under a chartering contract evidenced by a charterparty or a contract of carriage evidenced by a bill of lading or another contract primarily relating to the carriage of goods are not luggage, and therefore not covered by the above Convention. In particular, this is proved by the transportation contracts of vehicles and the non-appearance of the claimants as passengers of the vessel, but merely as drivers accompanying the trucks and trailers belonging to them. Thus these vehicles cannot be considered as an accompaniment (ancillary) to the passengers and intended for their personal use.

Moreover, in view of the fact that, according to the claimants' claims, the destruction of their carried trucks took place through the fault of a carrier and its agents, without the latter having issued a bill of lading or other similar document for those vehicles within the meaning set out above, the Hague-Visby Rules will not apply, but the provisions of art 107 ff of the CPML regarding chartering will apply.

Therefore, the Court of First Instance, which held that the legal action concerned the carriage of passengers and their luggage, and that the applicable law was the Athens Convention 2002 and not the CPML and the CC, wrongly interpreted and applied art 1.5 of the Convention and also incorrectly assessed the evidence and in particular the vehicle transport receipts issued by the first defendant for the transport of the claimants' trucks.

Furthermore, in view of the fact that the Athens Convention 2002 is not applicable to the present dispute concerning the carriage of vehicles by sea, the first ground of the first defendant's appeal B, regarding the wrongful interpretation and application of the above Convention, arts 1.1, 1.2, 1.5, 1.7, 1.8.c, 3.1, 3.4-3.8, 4.1, and 4.2 is unfounded.

The grounds of appeal of the claimants (appeal A) are thus accepted as well-founded in substance. The Court of First Instance of Piraeus decision 920/2019 is annulled. The case is reserved for hearing on the merits by the Court of Appeal.

Due to the application of the CPML, and not the Athens Convention 2002, it is not necessary to examine the defendants' arguments regarding limitation of liability under that Convention.

The claimants' legal action is well founded in respect of the accruing claims for damages (for breach of contract and in tort) and is partially accepted. All three defendants are liable to pay, jointly and severally each, to the first claimant EUR 177,200, to the second claimant EUR 72,200, to the third claimant EUR 86,100, to the forth claimant EUR 71,200, and to the fifth claimant EUR 83,100.

[For the unsuccessful appeal to the Supreme Court, see Supreme Court Decision 1016/2023 (CMI2411).]