The Court of first instance ordered the insurer, Generali España SA de Seguros y Reaseguros (Generali), and the carrier, Naviera Mar de Ons SL (NMO), to pay Ms Vicenta EUR 6,012 under the compulsory travel insurance scheme, and EUR 6,895.13 in damages respectively. Generali and NMO appealed against this judgment to the Provincial Court.

Ms Vicenta's claim arose from personal injuries that she suffered while boarding a passenger ferry for a trip from Cangas to Vigo. She fell between the ship and the pier. She claimed that her personal injuries were a result of the boarding process not being carried out with the appropriate security measures, including an access ladder that would have reduced the space and height between the dock and the ship. In addition, the two seafarers who carried out the work of helping the passengers were chatting among themselves, distracted, and not paying enough attention, so they did not provide due and necessary assistance to her.

NMO denied this version of events, or that there was any type of negligence in the passenger boarding process. On the contrary, Ms Vicenta's fall was attributable to the oversight or negligence of the injured party herself. In the alternative, the co-defendant contested the items and amounts claimed, and alleged that there was a duplication in the damages claim for the consequences that would be covered by mandatory travel insurance.

Generali argued that the plaintiff's injuries were arguably not included in any of the compensable categories of the mandatory travel insurance scheme.

Held: The appeal of General and NMO is partially upheld. The judgment of the Court of first instance is varied to provide that NMO must pay Ms Vicenta EUR 6,895.13 in damages, and Generali must pay Ms Vicenta EUR 1,202.02 under the mandatory travel insurance scheme.

This case concerns a passenger ticket contract, which is governed by arts 287-300 of Law 14/2014, of 24 July, on Maritime Navigation (the LNM). As stated in art 287 LNM, by the contract of maritime passage the carrier undertakes, in exchange for the payment of a price, to transport a person by sea and, where appropriate, his or her luggage. The LNM establishes a special regime regarding carrier liability. Thus, art 298 provides:

1. The liability of the carrier shall be governed, in all cases, by the International Convention relating to the Carriage of Passengers and their Luggage by Sea, done at Athens on 13th December 1974 (PYE/PAL), the Protocols that amend it to which Spain is a party, the provisions of the European Union and this Act.

2. The provisions of this Chapter shall imperatively apply to all maritime passage contracts. Contractual clauses that are directly or indirectly aimed at attenuating or avoiding such liability to the detriment of the holder of the right to demand such compensation shall not take effect.

Article 3 of the aforementioned Athens Convention 1974, as modified the 2002 Protocol, ratified by Spain on 20 May 2015 (BOE 11/09/2015), draws a distinction between whether or not the personal injury was caused by an event related to navigation:

1. For the loss suffered as a result of the death of or personal injury to a passenger caused by a shipping incident, the carrier shall be liable to the extent that such loss in respect of that passenger on each distinct occasion does not exceed 250,000 units of account, unless the carrier proves that the incident:

(a) resulted from an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character; or

(b) was wholly caused by an act or omission done with the intent to cause the incident by a third party.

If and to the extent that the loss exceeds the above limit, the carrier shall be further liable unless the carrier proves that the incident which caused the loss occurred without the fault or neglect of the carrier.

2. For the loss suffered as a result of the death of or personal injury to a passenger not caused by a shipping incident, the carrier shall be liable if the incident which caused the loss was due to the fault or neglect of the carrier. The burden of proving fault or neglect shall lie with the claimant.

Article 3.5 defines the concepts used in this provision:

5. For the purposes of this article:

(a) 'shipping incident' means shipwreck, capsizing, collision or stranding of the ship, explosion or fire in the ship, or defect in the ship;

(b) 'fault or neglect of the carrier' includes the fault or neglect of the servants of the carrier, acting within the scope of their employment;

(c) '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; ...

In this case, the fall occurred during the boarding of the passenger, an operation described in art 3.5.c, and the carrier assigned two crewmembers to assist passengers to bridge the gap and access the ship. This involved a risk that exceeds that inherent in activities of daily life. It is evident that we are facing an event related to navigation, which determines the responsibility of the carrier unless any of the exceptions provided for in the aforementioned provision concurs, which is not the case.

NMO argues that non-compliance with the safety rules applicable to boarding has not been proven. However, we are faced with a process that entails a risk, and the evidence reveals that not all necessary safety measures were taken to prevent the possibility of a fall. Certainly if, despite not being expressly contemplated in art 3.1 of the Convention, it is proven that the accident was due exclusively to the negligence of a passenger who, failing to comply with safety regulations or ignoring the instructions, placed him or herself in a specific situation of risk, it would be possible to think of a break in the causal link that would exempt the carrier from liability. But the proof of this lack of diligence lies with the person who, as the person responsible for the boarding process, not only has the functional command of the operation, but also has the duty to take all the precautions and measures aimed at avoiding or, where appropriate, minimising, the risk of an accident. NMO has not proven that the passenger's fall was exclusively attributable to her negligence, and that it would have occurred even if the necessary precautions had been taken. NMO's appeal is dismissed.

As to Generali's liability, art 300 LNM obliges the carrier to take out compulsory liability insurance that covers the death and bodily injury of the passengers it transports:

1. The effective carrier that executes transport of a ship transporting more than twelve passengers shall be bound to subscribe to 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 in the provisions of the European Union. The implementing regulations shall govern the details of such mandatory insurance and the certificate it is mandatory for ships to carry on board.

2. The party harmed 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 Spain, the regulatory framework is provided by Royal Decree 1575/1989, of December 22, which approves a Regulation of Compulsory Travel Insurance. The purpose of this insurance is to indemnify travelers or their heirs when they suffer bodily harm in an accident that takes place during travel on a means of collective public transport of people, provided that the circumstances established in the Regulation (art 1) occur. The insurance provides, exclusively, for the pecuniary compensation and health care established in that provision, when, as a consequence of an accident in the circumstances foreseen in art 1, death, permanent disability or temporary disability of the traveler occurs (art 3). The insurance covers all users of Spanish maritime transport (art 4.1.b). Article 8.1 of the Regulation expressly contemplates accidents while boarding vessels. Article 9, under the heading 'excluded accidents', excludes from insurance coverage 'those insured who cause accidents while intoxicated or under the influence of drugs, narcotics or stimulants, or by committing malicious acts'. Finally, as regards the content of the insurance, art 15 defines its scope:

1. The insured or beneficiaries shall be entitled to pecuniary compensation when, as a result of the accidents covered by the Compulsory Travel Insurance, death, permanent or temporary disability of the insured occurs.

2. Compensation will be paid according to the scale that, as an Annex, is attached to this Regulation.

Ms Vicenta argued that the injuries she suffered fell into the 10th category of the scale, and more specifically, into the concept of '[f]racture of the sternum or multiple ribs with malunion and neurological disorders'. This Court does not accept that Ms Vicenta's injuries were serious enough to fall within the 10th category. However, this does not imply that she cannot and must not be compensated. Complementary Rule 1 of the Annex to the Regulation provides:

Bodily injuries that cause permanent impairment, not explicitly included in this compensation scale, will be classified, for the purposes of their comparison with the same in any of its categories, based on the physiological deficit produced as a result of the accident, as established the criterion of the optional medical report.

On that basis, Ms Vicenta's injury can be equated, based on the physiological deficit that it entails, to that contemplated in the 14th category of the Annex, described as 'fracture of the costal arches with left chondro-sternal deviation with exostosis', since, although Ms Vicenta does not present chondro-sternal deviation with exostosis, she does present a pseudarthrosis, false joint or 'non-union', with pain or sporadic discomfort at the level of rotations of the trunk and stretching of the right arm, including deep breathing, which prevents or makes it difficult for her to perform certain movements that, taking into account her age, should be considered normal, and therefore generates a physiological deficit analogous to that which causes the ailment described in the 14th category of the Annex. Consequently, Generali's appeal must be partially upheld, with Generali ordered to pay Ms Vicenta EUR 1,202.02.