This was an appeal filed by the Association of Spanish People Affected by the Costa Concordia 2012 (the appellant) against Costa Crocere SPA (the respondent) for compensation for damages arising from the shipwreck of the Costa Concordia. The appellant sought EUR 2,915,974.04 in damages.

The Court of First Instance No 63 of Madrid held the respondent liable to pay 49,500 Special Drawing Rights (SDRs) under the Athens Convention 1974 for the passengers' loss of luggage (at the rate of 2,250 SDRs for 22 passengers) and EUR 330,000 for physical, mental and moral damages (at the rate of EUR 15,000 for 22 passengers). The appellant appealed to the 14th Section of the Provincial Court of Madrid (see CMI419), which partially upheld the appeal, finding that the respondent must pay the following amounts:

• As compensation for injuries, the amounts provided for in the expert's medical reports, deducting 10% as a correction factor, for each of the passengers who have proven some physical or bodily injury.
• As compensation for luggage, the maximum amount established in the Athens Convention 1974, consisting of EUR 954 per passenger.
• As compensation for moral damages, for the capsizing, anxiety, anguish, and enormous stress experienced during the night of 13 January 2012 in Italian waters, the amount of EUR 12,000 per passenger.

The appellant appealed in cassation to the Supreme Court, arguing that the decision of the Court below was contrary to arts 162(2) and 162(3) of the Consumer and User Protection Law (Royal Legislative 1/2007 of November 16) (LGDCU) and jurisprudential doctrine that orders the effective repair of damage caused and the full indemnity of injured parties, and that the Court below incorrectly applied the damages scale for traffic accidents.

Held: Appeal dismissed. The decision issued on 29 April 2014 by the 14th Section of the Provincial Court of Madrid in Appeal No 725/2013 is confirmed.

The appellant alleges that the Court below incorrectly applied the damages scale, because the 10% correction factor is applicable to compensation of economic damages, not moral damages, and because the application of the scale excludes compensation separately for moral damages. Further, the appellant argues that the Court arbitrarily set the compensation for non-pecuniary damages at EUR 12,000 per passenger, and that this amount is less than other passengers, who have not litigated, have managed to obtain from the respondent, as well as less than the damages granted by other Sections of the same Court in the case of the shipwreck of the Sea Diamond in 2012.

Even if this Court condones the errors and serious defects in the appeal, the appeal is rejected totally for the following reasons:

First, as reiterated,eg, in Judgments 29/2015, of 2 February (Rec 3417/2012); and 123/2015, of 4 March (Rec 41/2013):

It is the doctrine of this Chamber that the determination of the amount of compensation for material or moral damages does not have access to appeal, since it corresponds to the sovereign function of the courts of first instance on the assessment of the evidence, only subject to review, due to a notorious error or arbitrariness, when there is a notorious disproportion, or an infraction of the legal system is committed in the determination of the bases used to fix the amount.

Secondly, art 162 LGDCU, which regulates the responsibility of organisers and retailers of combined trips in relation to consumers and users, does not contain any rule that imposes bases for determining the amount of the corresponding compensation. The only relevant matter that can be extracted from this provision is what the Court below stated in order to reinforce its decision to compensate for non-material damages suffered by the passengers:

Furthermore, we must state that sections 2 and 3 of article 162 of the Law of Consumers and Users of 2007 (the application of which is not questioned) establish the following:

2. The organisers and retailers of combined trips will also be liable for damages suffered by the consumer or user as a result of the non-execution or deficient execution of the contract ...

3. Compensation for damages resulting from non-compliance or poor performance of the benefits included in the combined trip will be limited in accordance with the international conventions that regulate these benefits.

According to the consumer regulations, first, both physical and moral damages must be compensated, although the Consumer and User Protection Law does not expressly specify this. In fact, both jurisprudentially and doctrinally, it is considered that, although section 2 of article 162 LGDCU does not expressly refer to moral damages, this is conceptualised within the concept of damages.

Secondly, section 3 of article 162 LGDCU establishes compensation limits, in accordance with international conventions, which in this case will be applied through the Athens Convention, on which we will comment later.

Naturally, the appellant has not denounced the fact that the amounts of compensation for physical and moral damages established in the contested judgment exceed the limits of the Athens Convention, and are obviously much higher than the specified amounts.

Third, the jurisprudence of this Court has also established the possibility of using the rules of the damages scale as non-binding guiding criteria to quantify the compensation for damages caused to people as a consequence of bodily harm caused in sectors of activity other than motor vehicle accidents.

Fourth, this Court must now qualify or complement that jurisprudential doctrine in the following sense:

The use of the rules of the damages scale as guiding criteria, that is, to quantify compensation for damages caused to people as a result of bodily harm not caused by a traffic accident (involving a motor vehicle), does not exclude compensation separately from moral damages that are not a consequence of said bodily harm; the latter requirement hypothetically eliminates the possibility of double compensation for the same non-pecuniary damage.

Fifth, the decision of the Court below to grant compensation for non-pecuniary damage inherent to 'the situation of agony, anxiety, anxiety and stress' was correct to describe the moral damages experienced by the passengers of the Costa Concordia during the night of 13 January 2012. It was also correct to grant compensation for moral damages both to those members of the appellant who did not suffer bodily harm, as well as to those who did. Certainly it would have been absurd not to grant such compensation to any of them, or to grant it only to the former category, in order to achieve something as plausible in light of the jurisprudence of this Chamber as using the rules of the damages scale as guiding criteria in the quantification of the damages caused to the latter category as a result of their respective bodily harm. In short, the result reached by the Court below, to treat all the aforementioned passengers equally, is clearly fairer.

Sixth, the Court below was, however, not correct in deciding to exclude or subtract from the compensation quantified according to the scale, the correction factor of 10% applied by the medical expert in the reports provided by the respondent. Although this factor is not ordered only in respect of compensation of property damages, the moral damages covered by (part) of the same scale do not coincide with the clearly extra-tabular damages that the Court below agreed to compensate with the amount of EUR 12,000 per passenger. However, that cannot lead to an upholding of the appeal in order to suppress the words 'deducting 10% of the correction factor' from the judgment below. That is not what the appellant is seeking. The appellant maintains its fundamental opposition to the use of the damages scale (even with the separate compensation for non-pecuniary damage, which the Court below conceded), while contradictorily basing its appeal on the incorrect application of the damages scale by the Court below. It seeks EUR 60,000 per passenger, simply because it contends that that is a more adequate compensation. It is certainly not the function of this Court to reconstruct the petition of the appellant to convert it into another that, consistent with the grounds for the appeal, might have succeeded.