This was an appeal from a decision of the Single-Member Court of Appeal of Piraeus concerning the interpretation and application of the Athens Convention 2002 and Regulation EC 392/2009 of the European Parliament and of the Council of 23 April 2009 on the liability of carriers of passengers by sea in the event of accidents (the Regulation), which implements the Athens Convention 2002 in the European Union.

Held: Appeal dismissed.

The international carriage of passengers is governed in Greece by the Athens Convention 1974, as amended by the Protocols of 1976 and 2002, ratified by Laws 1922/1991 (Official Gazette A 15/15-2-1991) and 4195/2013 (Official Gazette A 211/10-10-2013) respectively, as well as by the Regulation, which is of effect from 31 December 2012.

The Regulation and the Athens Convention 2002 apply to any international carriage, within the meaning of art 1.9 of the Convention, where according to art 2.1:

(a) The ship is flying the flag of or is registered in a State Party to this Convention, or
(b) The contract of carriage has been made in a State Party to this Convention, or
(c) The place of departure or destination, according to the contract of carriage, is in a State Party to this Convention.

According to art 3.1 of the Regulation:

The liability regime in respect of passengers, their luggage and their vehicles and the rules on insurance or other financial security shall be governed by this Regulation, by Articles 1 and 1 bis, Article 2(2), Articles 3 to 16 and Articles 18, 20 and 21 of the Athens Convention set out in Annex I and by the provisions of the IMO Guidelines set out in Annex II.

According to art 1.5.a of the Convention, reproduced in Annex I of the Regulation:

'luggage’ means any article or vehicle carried by the carrier under a contract of carriage, excluding:

(a) articles and vehicles carried under a charter party, bill of lading or other contract primarily concerned with the carriage of goods.

The Convention is not intended to regulate the contract of carriage as a whole, but its exclusive object is the responsibility of the maritime carrier for damages resulting from the death or physical injuries of passengers and the loss of or damage to their luggage. To fill any gaps that arise, the provisions of the applicable national law (here Greek law) define luggage as packed objects which accompany passengers and are intended for their personal use.

Article 138 of the Κώδικας Ιδιωτικού Ναυτικού Δικαίου (ΚΙΝΔ) (the Code of Private Maritime Law) (the Code) provides that:

The carrier is liable for the fault of its agents and employees, including the master and the crew, as its own fault. If the damage was caused by an act or omission related to the navigation or management of the ship, the carrier is only liable as a result of its own fault. The navigation or management of the ship does not include measures taken primarily in the interests of the cargo. If the damage was caused by fire, the carrier is liable only as a result of its own fault.

This last provision establishes the lack of responsibility of the carrier for damage caused by fire. Only when the fire is due to the carrier's own personal fault is its responsibility revived. Fault on the part of the master, the crew, and generally persons acting for the carrier is insufficient to establish its liability for damage by fire. Instead, personal fault is required or, if the carrier is a company, fault of the persons who represent the company or exercise its management, since the above provision exempts the carrier in this particular case from responsibility for the faults of its agents and employees.

With this provision, a rebuttable presumption is introduced in favour of the carrier providing for its lack of responsibility for fire damage, which can be overturned by proving the carrier's personal fault. Therefore, the carrier, in order to be freed from liability, has to prove that the damage is due to fire, while the injured party can rebut this presumption by proving that the fire was caused by the personal fault of the carrier.

The principle of restrictive interpretation of exceptional provisions, such as the above provision, requires that the carrier's lack of responsibility for damage caused by fire is valid only in the event that this damage is attributed exclusively to the existence of 'maritime fault', ie the fault of the master or of the crew concerning the navigation or management of the ship, and the carrier is not personally involved in the slightest degree, unless it approved the acts or omissions relating to the 'navigation' or 'management' of the ship, or benefited from them.

The appellants argued that the Court of Appeal misinterpreted the Athens Convention 2002 by ruling that it was inapplicable to their vehicles which were destroyed by fire. This ground of appeal is rejected as unfounded, because it is based on an incorrect premise. This is because, according to art 1.5 of the Convention, luggage does not include 'vehicles carried under a charter party, bill of lading or other contract primarily concerned with the carriage of goods'.

In this case, a contract was drawn up for the carriage of goods and not of persons, since the vehicles' transport receipts did not include the details of the drivers who accompanied them. Therefore, the dominant objects of the transport were the vehicles, which are expressly excluded from the application of the Athens Convention. The non-issuance of a bill of lading cannot, due to the non-application of the Hague-Visby Rules, lead to the application of the Athens Convention.

The second ground of the appeal is also inadmissible. The numerous safety infringements mean that the fire was due to the personal fault of the carrier. The Court of Appeal correctly interpreted and applied art 138 of the Code.