In 2016, Mr Abilio travelled as a passenger on a cruise ship owned by Balearia Eurolíneas Marítimas SA (Balearia) between Barcelona (Spain) and Ciutadella (Menorca). During the journey, Mr Abilio went down an exterior staircase of the vessel and slipped and fell, injuring himself.

On 11 March 2020, after conciliation attempts had failed, Mr Abilio filed a lawsuit against Balearia claiming EUR 47,642.12. Both the Court of first instance and the Provincial Court held that his claim was time-barred. Mr Abilio filed an appeal in cassation to the Supreme Court.

Held: Appeal in cassation denied.

Although the maritime passenger transport during which the accident occurred took place between two Spanish ports, art 298.1 of the Maritime Navigation Law (LNM) for the purposes of carrier liability refers to the Athens Convention 1974, as amended by the Protocol of 1 November 2002, ratified by Spain with entry into force on 11 September 2015, although the rules of the Convention were already applicable to Spain, in its capacity as a Member State of the European Union, in accordance with Regulation (EC) 392/2009.

Under the heading 'Statute of limitations', art 16 of the Athens Convention 1974, as amended by the Protocol of 2002, establishes:

1 Any action for damages arising out of the death of or personal injury to a passenger or for the loss of or damage to luggage shall be time-barred after a period of two years.

2 The limitation period shall be calculated as follows:

(a) in the case of personal injury, from the date of disembarkation of the passenger;

(b) in the case of death occurring during carriage, from the date when the passenger should have disembarked, and in the case of personal injury occurring during carriage and resulting in the death of the passenger after disembarkation, from the date of death, provided that this period shall not exceed three years from the date of disembarkation; ...

3 The law of the Court seized of the case shall govern the grounds for suspension and interruption of limitation periods, but in no case shall an action under this Convention be brought after the expiration of any one of the following periods of time:

(a) A period of five years beginning with the date of disembarkation of the passenger or from the date when disembarkation should have taken place, whichever is later; or, if earlier

(b) a period of three years beginning with the date when the claimant knew or ought reasonably to have known of the injury, loss or damage caused by the incident. ...

This provision establishes a limitation period of two years and a starting date for calculating the limitation period, which, in the case of bodily injury, is the date of the passenger's disembarkation. The reference to national law is solely for determining the grounds for suspension and interruption of the limitation periods, for which the law of the Court hearing the case applies, with the limitation that it establishes in any case, stipulating that no action may be brought under the Convention once one of the following periods has expired: a) a period of five years from the date of the passenger's disembarkation or from the date on which disembarkation should have taken place, if later; or, if the next period expires earlier, b) a period of three years from the moment when the claimant knew, or could reasonably be presumed to have known, of the injury, loss, or damage caused by the incident.

In other words, the interruption or suspension of the statute of limitations is governed by national law, but the application of the legislation of the Court that hears the case cannot allow the filing of the claim beyond the five or three year periods that it contemplates, depending on the case.

The original wording of art 16.3 of the Convention established a limitation period of three years from the disembarkation of the passenger from the ship, after which, regardless of whether the action might not be time-barred in accordance with the law of the Court that would hear the matter, the action would have lapsed, and any subsequent exercise would be untimely.

However, the currently applicable text imposes a double deadline, according to which in no case may an action be brought after any of the following time periods have expired: (i) a period of five years from the date of landing; or, if the next period expires earlier, (ii) a period of three years from the date on which the claimant had or could reasonably be presumed to have had knowledge of the injury.

In practice, the new wording extends the time period during which maritime passengers could exercise their rights against carriers, because from its entry into force it is possible to exercise an action up to five years from disembarkation, provided that three years have not elapsed since the passenger had, or should reasonably have had, knowledge of the injury.

According to the preparatory work and reports of the 2002 Protocol, the new wording of art 16.3 of the Convention was intended, in cases where injuries require a stabilisation period, to prevent the claims of passengers from automatically expiring three years after disembarkation, as happened with the previous regulation; for which purpose it was established that the passenger could take action up to three years after the stabilisation of the injuries, with the maximum limit of five years from disembarkation.

The interpretation advocated by the appellant deviates from the literal wording of this provision, which expressly states that neither of the two time limits is extendable ('in no case'), although one is calculated from disembarkation (the five-year period) and the other from the date the injury became known (the three-year period, if it expires before the five-year period). Thus, what is established is that if the three-year period from when the passenger became aware of the injury expires before the five-year period from disembarkation, the passenger may not bring any action against the carrier.

As a consequence, the issue is not choosing the most convenient time limit, but rather, as the Provincial Court correctly does, verifying whether the three-year period has elapsed, in order to determine which is applicable. This verification established that the three-year period had elapsed from the date of knowledge of the injury (the date of Mr Abilio's discharge from work, 8 March 2017) until the filing of the lawsuit (11 March 2020). Therefore, the action brought in the lawsuit was already untimely (it had 'expired', in the terminology of the Convention). The conciliation hearing cannot be taken into account, since, although it may have the effect of interrupting the statute of limitations under domestic Spanish legislation, it cannot remedy the exhaustion of the maximum time limits expressly established in art 16.3.b of the Athens Convention 2002.