This case concerned a claim brought by the appellant for EUR 110,234.11 against the respondent carrier for personal injuries suffered on a trip between Algeciras, Spain, and Tangier, Morocco, on 8 April 2015. The appellant stated that she had purchased tickets to travel with her son, and that there had been bad weather during the crossing. She was warned by the public address system that she had to stamp their passports at the control office. When she got up and went to the stern, due to the shaking of the ship in the storm, she fell and injured herself. She was assisted by a doctor on the ship. An ambulance was waiting for her at the port, which transferred her to the Mohamed V hospital. She received rehabilitative treatment for her injuries in Morocco, before returning to Granada, her place of residence, where she continued treatment of her injuries.

In a judgment dated 28 June 2021, the Commercial Court no 1 of Cádiz dismissed the appellant's claim, holding that her action was time-barred two years from her disembarkation from the vessel, as regulated by art 16 of the Athens Convention 1974 and its 2002 Protocol.

The appellant appealed, arguing that her action was not prescribed, since prescription was interrupted by her request for a solicitor in accordance with art 16 of the Law on Free Legal Aid.

Held: Appeal dismissed.

The application to this case of the Athens Convention 1974, modified by the 2002 Protocol, to which art 298 of the Law on Maritime Navigation (the LNM) expressly refers, is not controversial. The Convention entered into force in Spain on 11 September 2015, although the rules of the Convention were already applicable to Spain, as a Member State of the European Union, in accordance with Regulation (EC) 392/2009.

The parties differ regarding the interpretation of art 16 and its application to this case. Article 16 of the Athens Convention, as modified by the 2002 Protocol, provides:

Article 16 Time-bar for actions

1. Any action for damages arising out of the death of or personal injury to a passenger or for the loss of or damage to luggage shall be time-barred after a period of two years.

2. The limitation period shall be calculated as follows:

a) in the case of personal injury, from the date of disembarkation of the passenger;

b) in the case of death occurring during carriage, from the date when the passenger should have disembarked, and in the case of personal injury occurring during carriage and resulting in the death of the passenger after disembarkation, from the date of death, provided that this period shall not exceed three years from the date of disembarkation;

c) in the case of loss of or damage to luggage, from the date of disembarkation or from the date when disembarkation should have taken place, whichever is later.

3. The law of the Court seized of the case shall govern the grounds for suspension and interruption of limitation periods, but in no case shall an action under this Convention be brought after the expiration of any one of the following periods of time:

a) A period of five years beginning with the date of disembarkation of the passenger or from the date when disembarkation should have taken place, whichever is later; or, if earlier

b) a period of three years beginning with the date when the claimant knew or ought reasonably to have known of the injury, loss or damage caused by the incident.

The judgment of the Court below held that the fall that caused the appellant's injuries occurred on the trip on 8 April 2015, which was also the date of her disembarkation, and her lawsuit was filed on 17 December 2018. Therefore, the action was already prescribed when it was filed. It was not possible to apply the other provisions of art 16, those of 3 and 5 years of expiration, which start running from the interruption of prescription. Interruption of prescription did not happen here, since there was no record of extrajudicial claims made prior to the lawsuit, nor were they alleged to have been made by the appellant.

The foundation of prescription lies in the need to give stability to legal relationships. In this case, not only were there no extrajudicial claims, but also no incident report was processed with the respondent carrier. There was also no record of the appointment of lawyers until January 2017.

In the opinion of this Chamber, the appellant misinterprets the two-year limitation period contained in art 16 of the Athens Convention and the reference made to national law. This provision establishes a limitation period running from the beginning of the calculation of the limitation period, which in the case of personal injury is the date of disembarkation of the passenger. The reference made to national law is only to determine reasons for suspension and interruption of the limitation period, for which the law of the court that hears the matter governs, with the limit that in any case no action may be brought under the Convention once one of the periods mentioned has expired.

As the Court interprets art 16.3, what must be understood is that interruption or suspension of prescription is governed by national law but, regardless of the application of the legislation of the court that hears the matter, no court can allow the filing of a claim beyond the terms of five or three years that the provision contemplates, depending on the case.

Therefore, based on the prescription period of two years from the disembarkation, ie, from 8 April 2015, the application of Spanish legislation leads the Court to art 1973 of the Civil Code, which regulates the causes of interruption of prescription, providing: 'The prescription of actions is interrupted from their exercise before the Courts by any extrajudicial claim of the creditor and by any act of recognition of the debt by the debtor.'

In this case, since there was no extrajudicial claim by the appellant or an act of acknowledgment of the debt by the respondent, the interruption of the prescription of the action can only be understood through its exercise before the courts. It is unquestionable that the lawsuit was filed when more than two years had elapsed from the date of disembarkation. Under the Law on Free Legal Aid, the appellant's application for recognition of the right to free legal assistance suspended the prescription for a maximum term of two months from the formulation of the request. After those two months, the calculation of prescription resumed.

In this case, the claim was filed three years and eight months after the fall, which coincided with the date of disembarkation. During this period, the prescription was interrupted for two months. The two-year period of art 16 of the Convention has therefore elapsed, and the appeal must be dismissed.