The Court of First Instance No 81 of Madrid held partially (75%) in favour of the plaintiff, Mr Yerson, against the defendants, a cruise carrier and travel agency, for EUR 19,916.51 plus interest. The plaintiff suffered a slip and fall while on a international cruise with his wife and friends. This occurred near the ship's swimming pool due to a wet area, and caused a tarsal fracture of his left ankle, requiring hospitalisation. The plaintiff appealed, arguing that the defendants were wholly liable, whereas the defendants argued that there was no fault on their part.

Held: Plaintiff's appeal partially upheld, and compensation increased to EUR 26,555.84.

The defendants maintain the applicability of the Athens Convention 1974 which they allege would exclude the objective [ie strict liability] regime derived from consumer legislation. In this regard, art 3 of the Convention provides:

1. The carrier shall be liable for the damage suffered as a result of the death of or personal injury to a passenger and the loss of or damage to luggage if the incident which caused the damage so suffered occurred in the course of the carriage and was due to the fault or neglect of the carrier or of his servants or agents acting within the scope of their employment.

2. The burden of proving that the incident which caused the loss or damage occurred in the course of the carriage, and the extent of the loss or damage, shall lie with the claimant.

3. Fault or neglect of the carrier or of his servants or agents acting within the scope of their employment shall be presumed, unless the contrary is proved, if the death of or personal injury to the passenger or the loss of or damage to cabin luggage arose from or in connection with the shipwreck, collision, stranding, explosion or fire, or defect in the ship. In respect of loss of or damage to other luggage, such fault or neglect shall be presumed, unless the contrary is proved, irrespective of the nature of the incident which caused the loss or damage. In all other cases the burden of proving fault or neglect shall lie with the claimant.

From this provision it can be inferred that a purely objective liability is established (through the procedure of presuming the carrier's fault) for the case of loss or damage caused directly or indirectly by 'shipwreck, collision, stranding, explosion or fire, or defect in the ship', ie, by incidents inherent and exclusive to sea carriage of passengers.

In other cases, there is no presumption of fault, which is equivalent to saying that there is no objective liability whatsoever, in accordance with the text of the Convention, but this does not mean that the Convention excludes it. On the contrary, art 3 establishes a difference in regimes, establishing a specific regime for cases of damage occurring as a result of circumstances inherent to navigation ('shipwreck, collision, stranding, explosion or fire, or defect in the ship'), and another common regime, which refers to the general legal rules that are applicable, based on the type of damage, according to domestic law. These rules would include, in this case, arts 147 ff of the revised text of the Law for the Defence of Consumers and Users.

In any case, even judging the incident from the strictest application of the general liability regime (arts 1902 ff of the Civil Code), since the event actually has nothing to do with navigation but with the accommodation appropriate to this type of service, the liability attributable to the carrier should be established.

In this regard, the company that manages the cruise must guarantee its clients safe facilities, since that service also includes accommodation inherent in the unavoidable stay on the ship. The facilities here lacked that safety. It cannot be considered proven that, since the area where the incident occurred was adjacent to the swimming pool, where, as the Court of first instance says, the passage of wet bathers left traces of water on the surface, that the surface was non-slip. Indeed, the evidence demonstrates that the surface was not non-slip, or at least not enough to prevent a pedestrian from slipping, as actually happened. And, finally, whether it was non-slip or not, the area lacked any indication to warn of the presence of water on the ground, a circumstance that represented a danger for travellers passing through there.

The plaintiff was walking in an area open to general traffic, and he did so with the calm that such a circumstance inspires in anyone. Unexpectedly, he entered a wet area that caused him to slip and injure himself. He cannot be charged with any lack of caution or any self-endangerment, since everything he did was an act as normal as moving through an area permitted for that purpose. In normal circumstances, where there is no indication of any danger, it cannot be expected that a traveller should keep his eyes on the ground while walking. It is rather the carrier who must ensure that the confidence which inspires a traveller is not betrayed or surprised.

Therefore, the first ground of appeal of the plaintiff must be upheld and the first and second grounds of appeal of the defendant must be rejected.