Conflict resolution: PASSENGER CLAIMS

With a clear bet in favour of cruise tourism due to the relevance that this sector has in the economy of our country, Spain has achieved a privileged position in the global context of this sector. According to data from the public entity Puertos del Estado, in 2017 the number of visitors on cruise ships exceeded by 9 million, making Spain the second largest European country in the number of cruise passengers. Puertos del Estado estimates that by 2020, Spain will receive 9.5 million cruise passengers.

These data must be completed with regular line vessels that progressively add tourist visits year after year. In 2017, the total number of passengers traveling on regular lines amounted to 24.7 million. Although the majority of these lines are dedicated to the traffic between the peninsula and Africa and inter-island connections, it is expected that these numbers will increase as the routes linking Spain with Italy and the United Kingdom or the recently inaugurated line between Santander and the Irish port of Cork, are gaining prominence.

In this context, it is not surprising that the number of passenger claims is increasing and it becomes necessary to analyze how the rights of these passengers are regulated in our legal system, particularly when they suffer some type of physical injury or impairment during the carriage.

The contract of carriage of passengers is governed by articles 287 et seq. of Law 14/2014, of July 27, the “Spanish Shipping Act”. The first issue that this legal body arises is the obligation of the effective carrier to subscribe civil liability insurance for death or bodily injury of all passengers. According to the Spanish Shipping Act, this civil liability may be limited in accordance with the provisions of the International Convention relating to the Carriage of Passengers and their Luggage by Sea, made in Athens on December 13, 1974 and the Protocols that modify it of which Spain is a State Party. Passengers have a direct action against the insurance company and, in such direct action, the insurer has the right to raise the same exceptions that would correspond to the insured, including the application of the right to limit of liability.

Depending on which is the cause of the damages, the 2002 Protocol to the Athens Convention distinguishes between losses suffered as a result of the death of or personal injury to a passenger caused by a shipping incident and those losses unrelated to shipping incidents, establishing a different liability regime for each of them.

In the case of losses suffered as a result death or personal injury caused by non-shipping incident, the Protocol requires that the event that caused the loss be attributable to the fault or negligence of the carrier. The burden of proof of such fault or negligence relies on the passenger.

In the case of death or personal injury arising from a shipping incident, a distinction must be made between losses that exceed 250,000 SDRs and those that do not. For losses that do not exceed 250,000 SDR, the Protocol establishes a quasi-strict liability regime for the carrier that is only avoided by proving that such incident resulted from an act of war, hostilities, civil war, insurrection, force majeure or was wholly caused by an intentional act or omission of a third party. On the other hand, for those losses that exceed 250,000 SDRs, and in the amount and to the extent that they exceed 250,000 SDR, the Protocol provides that the carrier shall be further liable unless he proves that the incident which caused the loss was not due to his fault or neglect.

In order for this highly qualified liability regime to be applied it is necessary to establish that the losses were caused by a shipping incident. This requires evidence of the existence of an event such as a collision, shipwreck, stranding, explosion or fire, or a defect of the vessel. In particular, with respect to ship defects, such defects must relate to specific elements of the ship and require failure or non-compliance of these elements with applicable safety regulations. The burden of proof of the existence of a shipping incident falls on the passenger.

Regarding the quantum of injuries, there are no specific quantification parameters for maritime accidents, which has obliged the courts, not without some controversy, to apply the parameters applicable to road traffic accidents contained in Royal Legislative Decree 8/2004, of 29 October, which approved the revised wording of the Civil Liability and Insurance for Motor Vehicles (as modified by Law 35/2015, of September 22, amending the system for the valuation of damages caused in traffic accidents). This application, however, is made in an “orientative” and non-binding manner and does not exclude the possibility of claiming additional moral damages arising from the circumstances of the accident.

In any case, it must be taken into account that, according to Article 7 of the 2002 Protocol to the Athens Convention, claims for death or personal injury may not exceed 400,000 SDRs, all without prejudice to the limits established in the 1996 Protocol (as amended in 2012) to the Convention on Limitation of Liability for Claims arising from Maritime Law, made in London on November 19, 1976, which may be inferior to the Athens Convention limits.

The above mentioned civil liability insurance to be obtained by carriers engaged in the carriage of persons by sea, must not be confused with the compulsory insurance requirement for accidents applicable to companies engaged in collective transport and which is established in Royal Decree 1575/1989, of December 22, approving the Compulsory Passenger Insurance Regulation. This other compulsory insurance, implemented in Spain as another measure within the tourism development policy, must be included in the transport ticket and is cumulative to the mandatory civil liability insurance referred to in previous paragraphs.

The scope of action of this compulsory passenger insurance includes all carriage contracts within Spain or that begin in national territory, even if the destination is international, and benefits all users of Spanish maritime transport. Compulsory passenger insurance includes medical care, death, permanent disability and temporary disability, all within the limits established in Royal Decree 1575/1989, of December 22, aforementioned. In addition, according to Spanish Supreme Court case law, compulsory insurance has a clear objective character since this liability arises whenever there is an accident with personal injuries on board a ship flying the Spanish flag whether there is fault or neglect or not on behalf of the carrier.

Finally, it should be noted that, when the carriage has been contracted through a travel agency, the responsibility of the carrier will be extended to said travel agency, all according to Supreme Court case law (i.e., judgment of January 20, 2010), in application of article 162 of RDL 1/2007, of November 16, which approves the revised text of the General Law for Consumer Protection. This Supreme Court judgment settled the disparity of criteria of the Courts of Appeals and established a joint and several case of liability so that the passenger does not need to inquire who is responsible for the breach.