This was an appeal against a judgment of the Court of first instance that partially upheld the claim of Ms Virginia (the claimant) against the carrier, Naviera Armas SA, and its insurer, Generali España SA de Seguros y Reaseguros, in the amount of EUR 4,702.09. The claim arose from personal injuries suffered by the claimant during her trip as a passenger on a ferry owned by the carrier on 8 November 2015. The insurer appealed, arguing that the judgment lacked proof of facts that made the carrier liable, and that it violated art 1 of the Law on Insurance Contracts (LCS), as transitory disability is not covered, and there is a quantitative limitation for the guarantees covered.

Held: Appeal dismissed.

This case falls within the framework of a passage contract, which justifies the jurisdiction of the Commercial Court, and which is currently governed by arts 287-300 of Law 14/2014, of 24 July, on Maritime Navigation (the LNM).

As stated in art 287 LNM, '[b]y means of a passage contract, the carrier undertakes, in exchange for payment of a price, to transport an individual and, where appropriate, his luggage, by sea'. That is why a special regime is established regarding the carrier's liability. Article 298.1 LNM provides:

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.

This reference leads to Regulation (CE) 392/2009 of the European Parliament and of the Council, of 23 April 2009, on the liability of sea passenger carriers in the event of an accident, which in turn refers in its art 3 in terms of liability and insurance to the Athens Convention 1974 and the 2002 Protocol, which was ratified by Spain by an Instrument published in the BOE of 11 September 2015.

For its part, art 298.2 LNM establishes:

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 establishes that the carrier shall be liable '[f]or the loss suffered as a result of the death of or personal injury to a passenger not caused by a shipping incident, ... 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.'

In other words, for accidents that are not a consequence of navigation, as in this case, liability for negligence governs, without reversal of the burden of proof, so that the claimant must prove the elements of such liability. The appellant says that the claimant has failed to demonstrate the liability of the person or institution that caused her injuries. Further, the judgment provides no reasons for where the responsibility lies.

However, it is not correct to speak of lack of motivation or reasoning in the judgment. It refers to the testimony of the master himself, who acknowledges the poor condition of some parts of the ferry deck and the accident suffered by the claimant, which is also corroborated by the documents provided with the lawsuit, especially the claim sheet, as well as the injuries sustained by the claimant, objectively supported by the medical reports. Likewise, the photos of the deck show sunken areas of wood likely to cause trips and falls. All these elements were taken into account in the decision of the Court of first instance to understand that the poor condition of some parts of the deck, the proper maintenance and conservation of which is the obligation of whoever operates the ship, was the cause of the fall and consequent injuries of the claimant.

That is why the appellant's generic criticism of the judgment is not correct, without the need for this Court to go into greater depth in the absence of other, more specific, arguments regarding the requirements or presuppositions of the responsibility declared by the appellant.

The second ground of appeal is limited to an alleged violation of art 1 LCS, as transitory disability is not covered, and there is also a quantitative limitation for the guarantees provided. The appellant maintains that the limits of coverage and amounts that appear in the particular conditions attached to its answer to the claim must be adhered to, with regard to the group accident insurance scheme that covers the risks of occupants of pleasure boats, up to a maximum amount of EUR 1,496.

However, the appellant forgets that art 300 LNM establishes:

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 the ships to carry on board.

Compulsory insurance is, therefore, mandatory, and any agreement that lowers the established minimum coverage cannot be accepted. Such compulsory insurance is to compensate for any injury, without limitation according to the type of disability, and in an amount of not less than 250,000 units of account, as provided for in art 4 bis of the Athens Convention 2002, to which art 3 of Regulation (CE) 392/2009 refers.