This case arose out of the grounding of the Costa Concordia off the Italian coast on 13 January 2012. The Court of First Instance of Madrid partially upheld the claim of the Asociacion de Afectados Españoles por el Costa Concordia 2012 (the appellant), ruling that it was entitled to receive compensation of 49,500 SDRs according to the value set by the IMF at the date of this resolution, in terms of loss of baggage (at a rate of 2,250 SDRs for each of the 22 associated passengers: 1-6, 9-21 and 39-41) and EUR 330,000 in terms of physical, mental and moral damages (at a rate of EUR 15,000 for each of the 22 associated passengers) from Costa Crociere SPA (the respondent).

The appellant appealed against this assessment of damages. The respondent also challenged the ruling on a number of grounds, including the application of EU Regulation 392/2009 instead of the Athens Convention 1974 in calculating damages for the loss of luggage. Rather, it argued that Book Four, relating to Combined Travel, of the Consumer and Users Act, as well as the Athens Convention 1974, modified by its Protocol of 1976, both approved by Spain under the Instrument of Accession dated 22 September 1981 and published in BOE 108/1987 and 242/1990, respectively, should apply. With regard to compensation, art 8 of the Athens Convention 1974 establishes a maximum compensation of 833 SDRs or EUR 954 per passenger.

Held: Appeal and counter-appeal partially successful.

The Court held that the moral damages suffered by passengers on the Costa Concordia were compensable independently, without the need to be accredited or dependent on physical injuries, because this accorded with recent jurisprudence of the Supreme Court. In fact, in this type of case in which the events are of such notoriety, the fact that a passenger does not have physical injuries, cannot prevent him or her from being compensated for moral damages independently, in the face of the most serious worry, anxiety, anguish and stress suffered on the night of the grounding. As a result, the Court considered that the compensation of EUR 15,000 awarded to each passenger for physical, psychological and moral damage by the court below did not comply with the law. Rather, the court held that moral damages must be quantified independently of physical harm, and awarded a lump sum of EUR 12,000 per passenger as moral damages.

In regard to calculating liability for loss of luggage, EU Regulation 392/2009, of the European Parliament and of the Council, of 23 April 2009, on the liability of passenger carriers by sea in the event of an accident, which entered into force on 31 December 2012, significantly increases the maximum liability amounts of the Athens Convention 1974. Thus, whereas the Athens Convention 1974 establishes a maximum compensation for luggage of 833 SDRs, Regulation 392/2009 provides a limit of 2,250 SDRs. Also, in the case of death or injury, whereas the Athens Convention 1974 contemplates a maximum of compensation for death or injury of 46,666 SDRs, Regulation 392/2009 establishes limits of 250,000 SDRs, and up to 400,000 SDRs.

The Court agreed with the respondent's argument that, in order to establish the maximum amounts in order to compensate the loss of luggage, belongings, etc, the limits set out in the Athens Convention 1974 must be applied. Thus, the court below was incorrect in stating that Regulation 392/2009 was applicable, the limits of which established compensation for luggage of 2,250 SDR per passenger. In view of the foregoing, the limit of 833 SDRs or EUR 954 per passenger would apply.

In addition, the respondent asserted that the passengers did not reliably document the contents of their luggage by means of invoices, to accredit all the damages caused by the loss. However, the Court considered that for a nine-day cruise, in which at least one gala dinner is usually organised, the plaintiffs would have brought luggage, equipment and jewellery reaching the maximum value.

[For the unsuccessful appeal to the Supreme Court, see Asociación de Afectados Españoles por el Costa Concordia 2012 v Costa Crociere SPA, Roj: STS 1420/2016 (CMI1687).]