CEACCU, a Spanish consumer rights organisation, obtained a declaration as to the nullity of certain terms in the 2012 General Conditions of Costa Crociere SpA (Costa Cruises) (Costa). The Court of first instance found in favour of CEACCU. Costa appealed to the Provincial Court.

Held: Appeal partially upheld.

Clause 18.1 of the Costa General Conditions 2012 (Custody of valuables) provides the following:

On board the ship, a centralised safe deposit box service is made available to passengers. The Organiser does not assume any responsibility for the custody of money, documents, title deeds, jewels, or precious objects that have not been received for deposit in said safe, even if they were deposited in the safes of the cabins ... that provide accommodation services.

Costa considers that this clause is in accordance with the provisions of the Athens Convention 1974. It adds that this clause does not limit consumer or user rights recognised by a dispositive or mandatory norm, but rather applies the Convention.

In the case of the international carrier liability regime, the Athens Convention 1976 is applicable, which in its art 5, relating to 'Valuables', provides:

The carrier shall not be liable for the loss of or damage to monies, negotiable securities, gold, silverware, jewellery, ornaments, works of art, or other valuables, except where such valuables have been deposited with the carrier for the agreed purpose of safe-keeping in which case the carrier shall be liable up to the limit provided for in paragraph 3 of Article 8 unless a higher limit is agreed upon in accordance with paragraph 1 of Article 10.

The rules of the Convention are mandatory, and its scope of application includes all types of passenger transport by sea, including travel for pleasure or recreation. Regarding this provision, it has been highlighted in the doctrine that it enshrines what is a generalised practice in the hospitality sector, exempting the carrier from liability for loss or damage to valuables which are part of the passengers' luggage and have not been delivered to the carrier and accepted by it.

The Convention is incorporated into the acquis communautaire by virtue of Regulation (CE) 392/2009, applicable in all the Member States. This Regulation was complemented by Regulation (EU) 1177/2010, establishing the rights of passengers in the event of cancellation or delays. A 'cruise' is defined as a transport service by sea or inland waterways carried out exclusively for pleasure or recreation, complete with accommodation and other services, with a stay on board of more than two nights.

And finally, the liability regime provided for in the Law on Maritime Navigation (the LNM) is unified with that of the Convention in art 298:

1. The liability of the carrier shall be governed, in all cases, by the International Convention relating to the Carriage of Passengers and their Luggage by Sea, done at Athens on 13th December 1974 (PYE/PAL), the Protocols that amend it to which Spain is a party, the provisions of the European Union and this Act.

2. The provisions of this Chapter shall imperatively apply to all maritime passage contracts. Contractual clauses that are directly or indirectly aimed at attenuating or avoiding such liability to the detriment of the holder of the right to demand such compensation shall not take effect.

In short, the aforementioned clause contemplates the liability regime applicable to valuable objects provided for in the mandatory regulations mentioned, which excludes any assessment of unfair terms in consumer law (Kušionová v SMART Capital as, CJEU of 10 September 2014, C-34/13 ). The appeal must thus be upheld in relation to the aforementioned cl 18.1 of the General Conditions 2012 (Custody of valuables), since it is limited to implementing the general regime on liability arising from loss of or damage to valuables.