On 28 September 2014, the appellant, Ms Gregoria, fell while embarking onto the ferry Martin i Soler owned by the respondent, Balearia Eurolineas Maritimas SA (Balearia). The ferry was moored in the port of Ibiza, waiting to set sail for Barcelona, and the accident occurred after passing security controls and once the passenger was on the gangway to the ship, where she slipped and fell to the ground, suffering an ankle injury. The accident resulted in surgery, medical leave, rehabilitation treatment, post-traumatic pain in her left ankle, and slight cosmetic damage.

The appellant was compensated by compulsory travel insurance in the amount of EUR 1,202.02. She claimed damages of EUR 11,331.65 from the respondent. The gangway where the fall occurred was managed by another company, Herbusa, under a concession regime by the Port Authority for the port of Ibiza. The appellant attributed the cause of the fall to the excessive inclination of the gangway.

The Court of first instance rejected the appellant's claim, finding that the appellant had not proven that the gangway to the ship was in poor condition, or that the respondent was responsible for any action or omission that could be classified as negligent, since the management and control of the gangway was in the hands of a third party.

The plaintiff appealed to the Provincial Court, alleging a lack of assessment of the evidence and an improper application of the relevant legal rules by the Court of first instance.

Held: Appeal upheld. The decision of the Court of first instance is revoked, and the respondent is ordered to pay the appellant EUR 11,331.65 plus interest and costs.

The appeal denounces the lack of response in the judgment of the Court of instance to relevant facts such as the state of the gangway at the time the accident occurred, specifically its inclination, and the failure of the respondent in the fulfilment of its duties of surveillance and assistance to embarking passengers.

The law applied by the lower Court is also questioned, due to its application of the Athens Convention 1974 in a version that should not be applied in the present case. Indeed, the appropriate version of the Convention is published in the BOE of 11 September 2015, which contains the Instrument of Ratification of the 2002 Protocol to the Athens Convention on the Carriage of Passengers and their Luggage by Sea 1974, made in London on 1 November 2002, which is in force in Spain since 23 April 2014.

The Law on Maritime Navigation (the LNM) refers to this legal regime governing passenger contracts. Article 298 of the LNM, which regulates the liability regime of the carrier, states:

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 3.2 of the Athens Convention 2002 states: '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.'

More specifically, art. 3.5 of the Convention states:

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; and

(d) 'loss' shall not include punitive or exemplary damages.

Having set out the foregoing, this Court considers it proven that the appellant's fall took place on a mobile and covered walkway that allowed access to the ship, which was managed, as already mentioned, by Herbusa. This is a device which adapts to the measurements and dimensions of each ship that docks, and is intended for use for the embarkation or disembarkation of passengers. This case therefore falls within the category of 'defect in the ship', in so far as it refers to equipment used in passenger boarding operations, regardless of whether the specific service is provided by another company, which must be considered an auxiliary or agent of the shipping company in this specific operation. It is not disputed that at the time of the accident no company employee was on the gangway to assist the passengers. The Court finds that there was an omission by the respondent shipping company which was responsible for the injuries suffered by the appellant, given the respondent's general duty to guarantee the safety and comfort of passengers set out in art 290.1 of the LNM.