This was an appeal from the judgment of the first instance Court that ordered the defendant to pay the plaintiff HRK 515,489.20 in damages, and ordered the defendant to pay the plaintiff costs. Both parties appealed against the judgment. The subject of the dispute was the plaintiff's claim for damages in connection with an incident on 31 July 2004, in which the plaintiff suffered injury on a seagoing catamaran. The plaintiff brought a direct action against the shipowner's insurer. He did not pay for a travel ticket, but the master of the ship issued him with a free ticket, as a result of which the transport was provided free of charge. The master and the manager of the vessel not only allowed the plaintiff to stay in the bridge area, but also did not prevent him from going out on the outer wing of the bridge and observing the port during departure.

The first instance Court found that the injury to the passenger was not partly caused by the passenger's fault or abnormal behaviour, and that the accident occurred due to the jamming of the ship's rope attaching its fender to the berth. Therefore, the Court held that the shipowner was solely liable for the passenger's bodily injury and the damage that occurred during the transport, and further considered that it was not possible to exclude or mitigate the shipowner's liability under art 632 of the Maritime Code, because no one warned the plaintiff about his presence on the outer part of the bridge. The plaintiff suffered severe bodily injury to his right eye with a permanent complete loss of vision, ie blindness, and a permanent and significant decrease in the sharpness of his left eye, with the rest of the vision of 1/10 of normal visual acuity. The plaintiff suffered a 60% reduction in life activities and significant adverse effects. In view of the above factual findings, taking into account the expert's findings and opinion, the first instance Court awarded the plaintiff HRK 40,000 for the physical pain suffered, HRK 40,000 for general damages, and HRK 30,000 for fear suffered. Taking into account the degree of physical disability of the plaintiff and all the difficulties he will be exposed to due to complete blindness in one eye, and a significant reduction of vision in the other eye, the first instance Court awarded the plaintiff HRK 40,000 for mental pain, and HRK 8,575 for care and assistance. With regard to the defendant's objection to the limit of payment of the sum insured, the first instance Court considered that art 633.1 of the Maritime Code, which prescribes the liability in SDRs of the shipowner in case of death or personal injury of passengers, cannot be considered separately from art 412.1 of the Maritime Code. According to this provision, in the case of claims for death or personal injury of passengers on board arising from the same event, the limit of liability of the shipowner is 46,666 SDRs multiplied by the number of passengers authorised by the ship. but up to a maximum of 25 million SDRs. The Maritime Code implemented the principles of the Athens Convention 1974 and its 1976 London Protocol. Therefore, the amount due to the plaintiff on all grounds was the amount of 46,666 SDRs per passenger, multiplied by the number of passengers authorised to be carried on the ship. The catamaran in question was authorised to carry 174 passengers.

Both parties appealed.

Held: Appeals dismissed. The judgment of the first instance Court is upheld.

In this particular case, it is necessary to apply first art 626.1 of the Maritime Code, according to which the shipowner is liable for damage caused by death or personal injury, damage, or lack or loss of luggage, if the event that caused the damage occurred during the transport and in the delay in the handover of the passenger's luggage, and if the damage or delay can be attributed to the fault of the shipowner or persons working for the shipowner. Therefore, it is a matter of liability on the basis of proven guilt, except in cases where the death or bodily injury of passengers occurred directly or indirectly due to shipwreck, collision, stranding, explosion, fire, or defect of the ship, when the liability of the shipowner is stricter (art 628.1 of the Maritime Code).

Pursuant to art 632 of the Maritime Code, if the carrier proves that the death or personal injury of a passenger, damage, lack or loss of luggage, or delay in handing over luggage to the passenger is wholly or partly caused by the passenger's fault or conduct which cannot be considered normal, the court will exclude or mitigate the shipowner's liability. From the presented evidence and in the opinion of this Court, the application of this provision of the Maritime Code is not considered, because according to the findings of the first instance Court, the shipowner is solely responsible for the damage caused by bodily injury to the passenger.

Regarding the defendant's appeal that the first instance Court did not assess the plaintiff's contribution or co-responsibility in the occurrence of the harmful event, the answer is that the first instance Court considered not only the result of criminal proceedings or the criminal court verdict, but also evaluated the evidence before it.

In relation to the defendant's appellate objection that the maximum amount of damages should be 46,666 SDRs per passenger and carriage, ie in accordance with art 633.1 of the Maritime Code, and that the first instance Court's reference to art 412 of the Maritime Code, ie linking the above provisions, the answer is that this Court fully accepts the conclusion of the first instance Court according to which the liability of the shipowner for one voyage is limited to an individual passenger, but also according to the number of passengers being transported, or that the ship is authorised to transport.

Furthermore, the findings of the first instance Court, which relate to the injuries sustained by the plaintiff in the harmful event and their consequences, are in line with the content of the evidence in the proceedings, which the first instance Court correctly assessed. The first instance judgment contains valid and clear reasons.

Therefore, given the type and severity of the injury, the course and duration of treatment, the length and intensity of physical pain, the degree of impairment and, in particular, the reduction of life activities that the plaintiff will endure in later life and work, this Court agrees with the trial Court's assessment.

[For the partially successful appeal to the Supreme Court, see Rev 269 /2012-2 (CMI1837).]