This was an appeal brought by Ms Ofelia, the appellant passenger, against a decision of the Commercial Court No 2 of Las Palmas de Gran Canaria dated 20 February 2020, dismissing her personal injury claim against the respondent carrier, Naviera Armas SA.

On 31 March 2011, the ferry Volcán del Teide, owned and operated by the respondent, was bound for the city of Huelva on its first voyage. Among the passengers were winners in a Facebook competition. Ms Soledad had won two tickets, and had invited the appellant to accompany her on the cruise.

The respondent kept the pool and pool bar open until the wee hours of the morning, plying the lucky passengers with all kinds of free alcoholic and non-alcoholic drinks. The respondent then offered free tickets to those who jumped into the pool dressed (a witness said that he considered doing it and rejected the idea 'because he was not drunk enough', and it was already cold). In fact, there were several people in the pool with their clothes on, and when they got in and out of the pool they made the deck wet. There were no security measures to prevent passengers from slipping on the wet deck. At one point in the morning after 02h00, a passenger who did not know the appellant pounced on her, lifted her off her feet, and headed with her towards the pool despite her protests. He slipped on the edge of the pool, and she fell between the pool and its edge, hitting her face. There were no lifeguards at the scene. The appellant was taken, bleeding profusely, to the ship's infirmary. There were no medical personnel on the ship, so the marine health services were consulted by radio. Once the ferry arrived in port, she was taken to Huelva Hospital and examined in the emergency room. A fractured and deviated nasal septum and a blunt incised wound on the right side of the face were diagnosed.

On 26 May 2016, the appellant filed this lawsuit against the respondent. The respondent claimed the prescription of the action, invoking art 16 of the Athens Convention 1974.

Held: Appeal allowed. The respondent is ordered to pay the appellant EUR 12,069.80 plus interest.

Spain ratified the Athens Convention 1974 long before the approval of 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), but the Athens Convention 1974 only provided for its application to cases of international carriage of passengers, ie, between ports of different countries. In Spain, national carriage of passengers continued to be governed by the provisions regulating carriage contracts in the Commercial Code, which refers to the Civil Code general rules on limitation [art 1964 of the Civil Code provides that the default limitation period for personal actions is 15 years].

In summary, international maritime passenger transport has been governed by the Athens Convention 1974 in Spain since 28 April 1987. The 2002 Protocol entered into force in Spain on 11 September 2015. Regarding transport within the EU that cannot be classified as national maritime transport, when the Regulation came into effect on 31 December 2012, in Spain it would be governed by the Athens Convention (including the 2002 Protocol, which contemplates the Regulation) as of that date.

However, internal passenger maritime transport between Spanish ports continued to be governed until 31 December 2012 by the Commercial Code, as mentioned above. The transport contract was concluded, and the accident occurred, before this date. The appealed judgment must thus be revoked, because the action brought by the appellant has not prescribed.