This case arose as a result of personal injuries suffered by the appellant, Ms Estefanía, who fell while boarding the ferry Nura Nova owned by Compañía Trasmediterránea SA (Trasmediterránea) in the port of Ciutadella de Menorca. The Court of first instance ordered the insurer Generali España de Seguros y Reaseguros (Generali) to pay the appellant EUR 1,202.02 under the compulsory travel insurance scheme.

The appellant appealed, arguing that both Trasmediterránea and Generali were liable for damages for her personal injuries. The appellant claimed EUR 8,709.30 in general damages from Trasmediterránea, in addition to EUR 1,202.02 from Generali under the compulsory travel insurance scheme.

The appellant argued that on 1 May 2017 there was no 'finger pier' available in the port for boarding into the ferry's hold. Trasmediterránea staff did not take any security measures during boarding, which caused the appellant to stumble and subsequently fall. Trasmediterránea, as the creator of the risk, must adopt necessary preventive measures to avoid personal injuries. Trasmediterránea has not proven that the appellant was to blame for her injuries.

Trasmediterránea argued that it was not responsible for the appellant's injuries, and that the cause of the passenger's fall had not been proven. Trasmediterránea argued that its liability was governed by the Athens Convention 2002, and that the burden of proof of fault rested with the appellant.

Held: Appeal partially upheld. Generali is ordered to pay the appellant EUR 1,202.02 under the compulsory travel insurance scheme. Trasmediterránea is ordered to pay the appellant EUR 7,103.83 in damages.

It is not disputed that the passengers had to access the ferry via a ramp, not via the normal access for passengers. This Court, having reviewed the evidence and appeal submissions, concludes that security measures were not arranged appropriately.

This case concerns contractual liability, and the Law on Maritime Navigation 14/2014 (the LNM) governs. The carrier's civil liability is subject to the Athens Convention 1974, together with the Protocols that modify the Convention and to which Spain is a party, as well as in the regulations of the European Union, and those contained in the LNM itself. In the European sphere, Regulation (EC) No 392/2009, of the European Parliament and of the Council, of 23 April 2009, on the liability of sea passenger carriers in the event of an accident, aims to guarantee an adequate level of compensation to passengers who are involved in accidents that occur at sea. Also, under national law, Royal Decree 1247/1999, of July 16, on safety rules and regulations applicable to passenger ships that make crossings between Spanish ports, aims to incorporate into the Spanish legal system rules and safety standards applicable to passenger ships, in order to increase safety of human life at sea and the protection of the environment, determining the technical safety requirements with which, according to the characteristics of the maritime areas in which they are going to operate, passenger ships must comply. This sector is therefore governed by specific and mandatory regulations, which establish the safety conditions of ships and the specific responsibility of carriers.

The system is non-derogable. The victim must prove the carrier's fault, and the carrier may limit the amount of compensation. The LNM incorporates the limits of liability of the Athens Convention 1974 as amended by the 2002 Protocol, and maintains the global limitation of the LLMC 1976 and the 1996 Protocol.

Article 300 of the LNM provides as follows:

1. The performing carrier that executes transport of a ship transporting more than twelve passengers shall be bound to subscribe mandatory liability insurance for death or bodily harm to the passengers transported, with a limit for each passenger and each accident that is no lower than those established in the conventions and the provisions of the European Union. The implementing regulations shall govern the details of such mandatory insurance and it is mandatory for the ships to carry on board the relevant certificate.

2. The party injured shall be entitled to direct action against the insurer up to the limit of the sum insured. The insurer may raise the same objections as those to which the carrier is entitled pursuant to Article 3 of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea and, where appropriate, the fact of the accident being fraudulently caused by the insured. In all cases, it may also oppose the limit of liability established in Article 7 of the Convention, even in the event of the insured having lost it pursuant to Article 13 of the Convention.

In this case, the carrier has not proven that the fault of the passenger was the cause of her bodily injuries, or contributed to it (art 6 of the Convention). The carrier will be responsible for damages caused by the death or bodily injury of a passenger, and for loss or damage to luggage, if the event that caused the damage or loss occurred during the performance of the transport and is attributable to the fault or negligence of the carrier or its employees or agents if they acted in the performance of their duties. It is up to the passenger to demonstrate that the event that caused the damage occurred during the transport, as well as to demonstrate the extent of the damage.

Unless there is proof to the contrary, the fault or negligence of the carrier or that of its employees or agents shall be presumed when they have acted in the performance of their duties, if the death or bodily injury of the passenger or the loss or damage to luggage has been the direct or indirect result of a shipping incident, which covers shipwreck, capsizing, collision or stranding of the ship, explosion or fire in the ship, or defect in the ship. Defect in the ship means any malfunction, failure or non-compliance with applicable safety regulations in respect of any part of the ship or its equipment when used for the escape, evacuation, embarkation and disembarkation of passengers, or when used for the propulsion, steering, safe navigation, mooring, anchoring, arriving at or leaving berth or anchorage, or damage control after flooding; or when used for the launching of life saving appliances.

Trasmediterránea was in charge of boarding the passengers and, being able to do so through the 'finger piers' or from its warehouse, it preferred this second alternative, at its convenience, but did not ensure passenger safety. Consequently, the sole responsibility for the appellant's fall is attributable to Trasmediterránea, and any percentage of concurrent fault is dismissed. Trasmediterránea has not proven that it had adopted security measures to avoid falls, injuries, or other incidents. Trasmediterránea has not presented any evidence on the number and classification of the personnel on board, or how the boarding of the passengers was organised, or the training certificates of personnel.

The general compensation to be paid by Trasmediterránea is independent of the compulsory travel insurance to be paid by Generali.