On 26 January 2022, the plaintiff filed a claim against the defendant claiming EUR 24,414.83, plus interest and costs. The plaintiff claimed for personal injuries suffered from a fall while on an international cruise. The defendant argued that it was not the proper defendant (passive legitimacy), and that the plaintiff's claim was time-barred.

Held: The plaintiff's claim is dismissed.

Regarding the passive legitimacy issue, the defendant alleges that it is not the owner of the ship, nor did it provide the contracted service, which was provided by a Swiss company, MSC Cruises SA (MSC).

This argument must be upheld. The plaintiff's claim is based on the rules governing contractual liability (arts 1101 ff Civil Code), as well as the rules of the Athens Convention 1974 as amended, and of the Law on Maritime Navigation (Law 14/2014) (the LNM), which regulate the liability of the carrier.

By virtue of these provisions, the responsible party is the party who entered into the contract with the plaintiff and organised the trip, as a carrier, because that is the party who, if applicable, should be responsible for the damages caused by breaching its obligations as a carrier. In this case, the evidence provided proves that the defendant was not the owner of the ship, and neither operated it nor provided the contracted service, but rather it was provided by the Swiss company, MSC. Therefore, the defendant was not a party to the contractual relationship between the plaintiff with MSC or with the travel agency involved (Viajes Tejedor).

Consequently, the defendant cannot be liable, even though it might be part of the same group of companies as the carrier, since they have different legal personalities. In this regard, the Provincial Court of Madrid ruled in its judgment of 4 May 2017, recalling that the STS of 28 February 2014 resolved this matter, referring to the STS of 28 October 2013, according to which 'the general rule must be to respect the personality of companies and the rules on the scope of responsibility for the obligations assumed by said entities, which does not affect their partners and administrators, nor the companies that could be part of the same group, except in the cases expressly provided for by law'.

Regarding the prescription of the action, the relevant time periods are provided in art 16 of the Athens Convention. In this case, the plaintiff claims compensation for personal injuries derived from the fall which she suffered on board the ship. Consequently, the limitation period is 2 years (or a maximum of 3 years) from the passenger's disembarkation, which in this case took place on 20 November 2018. Therefore, the action should have been filed before 20 November 2020 or, at the latest, before 20 November 2021. Instead, the lawsuit was filed on 26 January 2022, when the limitation period (which was not extended, since there is no written statement from the carrier granting an extension of the limitation period, or any written agreement between the parties in this sense) had already expired.

Consequently, for all these reasons, it is appropriate to dismiss the claim, due to the lack of passive standing of the defendant, and due to prescription of the action.