This was an appeal brought by the appellant passenger, Ms Marí Luz, against the decision of the Commercial Court No 1 of Palma on 27 September 2022, which only partially upheld her personal injury claim against the defendant carrier, Servicios y Concessiones Maritimas Ibicensas SA (SCMI) and the defendant insurer, MAPFRE España Compañía de Seguros y Reaseguros SA (MAPFRE), by ordering MAPFRE to pay the appellant EUR 1,072 plus interest, and dismissing her claim against SCMI. The appellant appealed, claiming EUR 8,689.26 from SCMI, and EUR 1,202.02 from MAPFRE.

On 19 October 2020, the plaintiff was travelling on a ship owned by SCMI on the Ibiza-Formentera route. At the time of disembarking on a ladder that was wet and slippery, the plaintiff fell, suffering an injury to her left shoulder and breaking her glasses. The first instance judgment ordered MAPFRE to pay EUR 1,072 owed due to material damages (broken glasses and two physiotherapy sessions). It excluded the rest of the appellant's claims because the appellant did not prove the extent of her injuries or their causal relationship with a 'shipping incident'.

Held: Appeal dismissed. The first instance judgment is confirmed.

Article 298.1 of the Maritime Navigation Law (the LNM) determines that:

The liability of the carrier will be governed, in all cases, by the International Convention on the Transportation of Passengers and their Luggage by Sea, made in Athens on 13 December 1974 (PAL), the Protocols that modify it to which Spain is a State party, the regulations of the European Union, and this law.

EC Regulation No 392/2009 of the European Parliament and the Council on the liability of passengers by sea in the event of accidents (the Regulation) is applicable here in accordance with art 2. Article 3 of the Regulation sets out the liability regime with respect to passengers, their luggage, and their vehicles, and the rules on insurance, referring to what is provided in the Regulation itself, to the articles of the Athens Convention that appear in Annex I, and the provisions of the IMO guidelines specified in Annex II. The carrier's liability regime is regulated in art 3.1 of Annex I:

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.

In this way, an objective liability regime is established in which the passenger is only required to prove the fault or negligence of the carrier when the death or injury of the passenger is caused by an event that is not a shipping incident. Article 3.5 defines 'shipping incident' as follows:

(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.

In this case, the passenger's fall comes within the scope of responsibility of the carrier as soon as it occurred in relation to a shipping incident, which was the disembarkation through the gangway of the ship. Once the responsibility of the carrier has been established, its scope must be analysed. The first instance judgment denies that the appellant has justified that the injury to the left shoulder for which she makes a claim and the consequent days of healing are related to the accident.

A fresh examination of the medical documentation leads the Court to confirm the reasoning of the first instance Judge. The accident occurred on 19 October 2020. On the same date, the plaintiff presented at the emergency medical service with bilateral back pain after her fall, being diagnosed with polycontusion. Despite the fact that, according to the claim, the plaintiff remained unable to move for seven days due to the pain she suffered in her shoulder and arm, it was not until almost 20 days later that she went to the medical service again. The following visits took place in February 2021 following rehabilitation treatment. Through the information that is extracted from these documents, it cannot be affirmed that the injury suffered by the plaintiff was caused by the fall that she suffered. Nor can the Court be convinced about the days that she needed to heal from the injury that she could have actually suffered. For this reason, it is necessary to confirm the decision of the first instance Judge.