This was an appeal brought by the carrier, Armas Cruceros SA, against a judgment of the Court of first instance ordering it to pay the family of respondents EUR 3,804 (EUR 2,400 for his vehicle, plus EUR 300 for his hand luggage outside the vehicle, plus EUR 104 for his suitcase inside the vehicle, plus EUR 1,000 for non-pecuniary damage), EUR 1,580 (EUR 300 for her hand luggage outside the vehicle, plus EUR 280 for her suitcase inside the vehicle, plus EUR 1,000 for non-pecuniary damage), and EUR 2,830 (EUR 1,530 for the child's equipment, plus EUR 300 per suitcase of hand luggage outside the vehicle, plus EUR 1,000 for moral damages).

The appellant argued that the judgment was inconsistent with the Athens Convention 1974, as the decision to compensate the three respondents for a total of EUR 6,214.00 (including, separately, hand luggage and compensation for non-pecuniary damage) exceeded EUR 3,839.15, or the equivalent of 3,333 special drawing rights. The appellant contended that compensation for hand luggage was not included in art 8.1 of the Convention since it contemplates 'cabin luggage'. As the respondents had not contracted for a cabin, it was inappropriate to order the carrier to pay them 833 units of account per passenger, per transport.

The appellant also argued that the judgment for non-pecuniary damage was inadmissible since 'the existence and extent of the non-pecuniary damage whose payment is ordered has not been proven in any way in this proceeding'. Alternatively, the non-pecuniary damage, if proven, should be included within the established liability limit, so that the sum of the material and non-material damage should not exceed the limit of EUR 3,839.15.

Held: Appeal dismissed.

Starting with the issue relating to the loss of hand luggage and the consideration of hand luggage as 'cabin luggage' for the purposes of applying the Convention for all passengers traveling on the ship, regardless of whether they have specifically contracted an individual cabin, this Court has already ruled in a judgment handed down on 28 May 2013 (309/2012) on the claim of another passenger of the same ship based on the same incident, rejecting the same argument, and reasoning that:

Although the Athens Convention refers to cabin luggage, this cannot mean that it is only the luggage brought into the cabin. It may be a mistranslation and refers to what we know in our language as hand luggage, or that it properly refers to cabin luggage that which is not in the hold, as opposed to that deposited in the vehicle in the hold of the ship.

The Athens Convention refers in its art 8 to compensation for luggage in [art 8.1], which refers to cabin luggage and in [art 8.2] to luggage that is in the vehicle and in [art 8.3 establishes the aforementioned provision:

The liability of the carrier for the loss of or damage to luggage other than that mentioned in paragraphs 1 and 2 of this Article shall in no case exceed 18,000 francs per passenger, per carriage.

Given that we consider that the compensation of the judgment of first instance refers to cabin luggage, because it is not in the vehicle or the 'other' luggage of this third paragraph, it is only appropriate to confirm the judgment on this point, although considering that it always refers to the hand luggage that the passenger does not leave in the hold even if traveling without a cabin.

This conclusion was reached by interpreting the Convention itself, which in [art 1.6] says: '"cabin luggage" means luggage which the passenger has in his cabin or is otherwise in his possession, custody or control.'

From the literal tenor of the transcribed provision there is no doubt that cabin luggage is what is meant by hand luggage.

But the wording of the provision (art 8 of the Convention) of application in the present case (which seems not to have been noticed by the Court below or by this Section of the Provincial Court in the aforementioned judgment) is the one published in the Official State Gazette of 9 October 1990 (BOE no 242):

Article 8 of the Convention is replaced by the following text:

1. The liability of the carrier for the loss of or damage to cabin luggage shall in no case exceed 833 units of account per passenger, per carriage.

2. The liability of the carrier for the loss of or damage to vehicles including all luggage carried in or on the vehicle shall in no case exceed 3,333 units of account per vehicle, per carriage.

3. The liability of the carrier for the loss of or damage to luggage other than that mentioned in paragraphs 1 and 2 of this Article shall in no case exceed 1,200 units of account per passenger, per carriage.

4. The carrier and the passenger may agree that the liability of the carrier shall be subject to a deductible not exceeding 117 units of account in the case of damage to a vehicle and not exceeding 13 units of account per passenger in the case of loss of or damage to other luggage, such sum to be deducted from the loss or damage.

This means that the original wording of the 1974 Convention did not differentiate between luggage in a private cabin and outside a private cabin, but after the reform in the wording in 1976, the limit of liability for 'other luggage' is separated from the new art 8.3 of the Convention (which clearly should be understood as including hand luggage, in this case, with an even higher limit). And this is especially relevant in the present case, in which the claim for damages amounts to a total of EUR 31,738 jointly for the three passengers, since in the incident report, no mention is made of the specific places where the assets referenced therein were located, whether inside the vehicle or outside the vehicle. As a result, the maximum limits for baggage compensation must be applied, understanding that once the limitation amount established for the vehicle and the luggage that it could contain is reached, luggage outside the vehicle must be compensated, for each passenger, with a maximum limit of 1,200 special drawing rights (the most favorable interpretation for the consumer).

As regards non-pecuniary damage, its compensation has also been accepted by this Court. The Athens Convention does not expressly refer to non-pecuniary damage, but does not exclude it either. Nor does it establish that it is considered included in the compensation for damages and injuries. The Athens Convention says nothing about this issue. The Warsaw Convention establishes a global limitation of liability per passenger. However, this limitation per passenger is not stated in the Athens Convention, which has a limitation for injuries and death, and other limitations for luggage, so that the total limitation would be the sum of the previous ones, which would not occur if we include the EUR 1,000 per person for moral damage. Compensation for injuries or death is limited to the equivalent of EUR 120,688.573, an amount that does not reach the total compensation that is quantified in this Court for all heads of compensation. Non-pecuniary damage such as fear, anxiety, grief, and uncertainty produced by a shipwreck can be presumed. Experiencing the sinking of the ship, and having to be transported by lifeboat to the coast, always gives rise to non-pecuniary damage. The understanding of the Court of first instance is confirmed.

Finally, in relation to compensation for loss of the vehicle and luggage in it, the limit established by art 8.2 of the Convention is '3,333 units of account per vehicle, per carriage'. If the wording of art 8.2 is compared with arts 8.1 and 8.3, it is immediately observed that in these two cases the limit is set in terms of 'units of account per passenger, per carriage'. Consequently, it seems that since art 8.2 does not refer to a certain amount per passenger but per vehicle, the total limit set as liability for the loss of the vehicle and the luggage it contains should be set at a total of 3,333 special drawing rights, resulting in the distribution of compensation among the injured parties in the event that the amount of the loss is greater - despite the difficulty that this apportionment may entail when the relative value of the luggage transported is not proven in relation to the vehicle. But, given that the 'other' luggage that is not inside the vehicle or in a private cabin is compensated in art 8.3 since the entry into force of the 1976 amendment to the Athens Convention with a limit of 1,200 SDRs per passenger, per carriage (when it has not been proven, as it happens here, in which place each one of the items subject to compensation as luggage was located, but part of the luggage was in the vehicle), in the present case the maximum compensation is:

• 1,200 SDRs for the luggage of each passenger that was not inside the vehicle; and

• 3,333 SDRs for the vehicle and the luggage that the three passengers carried in or on it.

All of the above means that the compensation established for the loss of the vehicle, the luggage transported in or on the vehicle by the father, and the luggage transported in or on the vehicle by the mother, plus the part of the minor's luggage that was transported in or on the vehicle (which could be between EUR 447.77 and EUR 1,059.15 without exceeding the maximum limit set for damage caused to the vehicle and passenger luggage transported inside or on it) does not exceed the liability limit established by art. 8.2 of the Athens Convention in its wording given in 1976 in force at the date of the accident; and that the compensation set for the loss of luggage that was found outside the vehicle (which was prudently set at EUR 300 per carry-on bag per passenger) and for the loss of the minor's equipment (which could be found in part inside the vehicle, but undoubtedly would be found in part outside the vehicle - including at least a chair or pram, diapers, special food, cleaning products, clothes to change, thermos, etc) has also not exceeded the value of 1,200 SDRs per passenger.