Cassation appeal from a contested decision of the Piraeus Court of Appeal involving a collision between a vessel owned by the first respondent, while sailing off the island of Samos, and the Greek Navy warship, Cyrano. The Hellenic Republic, alleging that the collision was the exclusive fault of the first respondent shipping company, and in particular of the master and chief mate of the respondent's vessel, applied for a guarantee or, in the event of non-compliance, a conservatory seizure of all the maritime assets of the respondents, in order to secure a claim for damages, allegedly of the amount of GRD 15,52 billion. The Court of First Instance required the respondents to provide the Hellenic Republic with a guarantee of GRD 7,000,000,000. The respondent shipowner requested permission to set up a liability of limitation fund pursuant to the provisions of Law 1923/1991, which ratified the LLMC 1976 in Greece, by depositing to the Registrar of the Court a letter of guarantee from a creditworthy bank amounting to GRD 340,202,616. A limitation of liability decree was granted and a fund constituted by the Court of Justice. The Hellenic Republic appealed.

The Court of Appeal rejected the Hellenic Republic's appeal on several grounds, including that the appeal, which was lodged more than three years after the Court of First Instance's order, was out of time. Moreover, even if the appeal was not out of time, the appellant's argument that the Court of First Instance misapplied the provisions of the LLMC 1976 insofar as the appellant's claims were not subject to limitation under art 2 of that Convention was res judicata in that the Court of Justice had already allowed the respondent to constitute a limitation fund.  The Hellenic Republic appealed to the Supreme Court.

Held: The Hellenic Republic's request for the annulment of the decision of the Piraeus Court of Appeal is dismissed. 

Law 1923/1991 ratified the LLMC 1976 in Greece. The Convention is an integral part of Greek law since 1 November 1991 and overrides every other contrary provision of the law. It follows from the provisions of art 15 that the LLMC 1976 is directly applicable not only to international but also to domestic legal relations for which Greece did not use the discretion granted to it, either at the time of ratification of this Convention or later (except for the provision of art 77§6a of Law 1892/1990, which stipulates that liability and limitation of liability of the shipowner is governed by the law of the State whose flag the ship is flying). This limitation of liability regime also applies to the State, in view of the fact that ships which are used for government purposes are not excluded from the scope of the LLMC 1976. In addition to the provisions of arts 1.1, 1.2, 1.4, 1.5, 2.1.a, 2.1.e, 6, 7 and 11 of the LLMC 1976, the shipowner, as broadly defined in the Convention, may restrict its liability, inter alia, for claims arising from a collision of its ship with another ship and which are incidentally related to loss of life or personal injury and to the loss of, or damage to, the other ship and cargo, as well as wreck removal. In respect of limitation of liability, the above-mentioned person may set up a fund in the court or other competent authority in any Member State where judicial proceedings are brought to cover the whole of the sums determined in accordance with arts 6 and 7 and which may be constituted either by deposit of the amount or by the provision of a guarantee acceptable to the law of the Member State in which the fund is constituted, which is considered adequate by the Court or other competent authority. It is also clear from the combined provisions of arts 6, 7, 8 and 11 of the LLMC 1976 that the exact amount of the fund is provided by the Convention itself, which contains in detail all the elements of its objective definition, from which it it is produced by mathematical calculations. Thus, there is no need for the Court to intervene temporarily or definitively to determine the amount of that fund, and so the Convention does not allow for such intervention. The Court's intervention is reserved to the constitution of the limitation fund provided for in art 11.2 of the Convention, since in order to set up this fund it is necessary to have a judgment regarding the type of guarantee and its adequacy to secure the relevant claims in accordance with the provisions of the law of the Member State in which the fund is to be constituted. In light of art 14 of the Convention, which refers to the law of the Member State where the capital is constituted, in Greece, the issue of the guarantee to be provided for the constitution of the capital will be judged by the locally competent Single Judicial Court. That decision may be challenged by an appeal.

Consequently, for the establishment of a liability limitation fund in Greece, a debtor's statement must be made to the Registrar of the Court of First Instance, to which evidence of a public deposit of the amount provided or the guarantee specified by the competent court is annexed, from which point onwards the fund is constituted and individual proceedings against the debtor are suspended. In particular, art 13.1 of the Convention provides that, where a limitation fund has been constituted in accordance with art 11, any person having made a claim against the fund shall be barred from exercising any right in respect of such claim against any other assets of a person by or on behalf of whom the fund has been constituted.

Article 4 of the LLMC 1976 stipulates that 'A person liable shall not be entitled to limit his liability if it is proved that the loss resulted from his personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result'. That provision, which, because of its transnational character, is interpreted autonomously on the basis of the whole text of the Convention and the objective pursued by it to establish a uniform international law on maritime transport to limit the shipowner's liability for maritime claims. In the clear and redrafted wording of the above provision, it is primarily a barring of the right to limit liability for the claims referred to in art 2 where there was an intention to cause the damage, or where the party was indifferent and aware of the possible occurrence of the damage. The first element of this second limb of art 4, namely that the recipient of the constraint exhibited indifferent (reckless) behavior, exists when the offender, whose behavior deviates seriously from the behavior of the average prudent and diligent person in the same trade, shows a contempt for the other people's goods that are jeopardized by it. The second element of the prediction of the occurrence of the damage occurs when the perpetrator is aware of the possibility of occurrence of the specific damage without further interest in whether or not he or she accepts the probable damaging result. The victim bears the burden of proof to establish the cumulative contribution of the two above-mentioned elements, that is to say the recklessness of the perpetrator, and the knowledge of the possibility of the damage, in order for the for the perpetrator to lose its right to limit its liability. This second limb of art 4 covers behaviour which, from the point of view of Greek law, is part of both possible deception and grossly conscious negligence. In view of the fact that art 4 is limited to the conscious intent of the perpetrator, it is necessary and sufficient for the victim to invoke and prove the existence of negligence characterized as gross in the sense that the behavior (act or omission) of the perpetrator deviates seriously from the behavior of the average prudent and diligent person, and furthermore as conscious in the sense that it knows (predicts) the likelihood of the particular damage occurring. 

In the present case, the evidence does not establish that the master and first mate acted imprudently, that they exhibited foolish behavior that departed from the behavior of the prudent and diligent person who is in the same field of business. Moreover, it has not been proved that they acted as demonstrating contempt for other people's property and that they did or failed to do so by accepting the possibility that there would probably be a risk of collision with that particular warship. And while it is true that the collision and the resulting damage are beyond the responsibility of the officers of the warship,  the other parties' behaviour, in view of the conditions in the particular voyage, cannot be described as reckless, but as tending to display elements of slight negligence. Consequently, the statutory conditions for the barring of the respondent's limitation of liability have not been proved.

In the light of the foregoing, the appeal must be dismissed in its entirety.