The wife of a passenger who died in a fire on an Italian-flagged and owned passenger ferry en route from Greece to Italy submitted a claim against the carrier for: 1) EUR 38,140.20 for deprivation of the right to maintenance for the next 14 years; and 2) EUR 1,000,000 as compensation for pain and suffering (non-pecuniary injury) due to the death of the husband. The Multimember Court of First Instance of Piraeus awarded the claimant EUR 80,000. The Three-Member Appeal Court of Piraeus reduced the award to EUR 60,000. The Supreme Court, A2 Civil Division accepted the appeal of the defendant for part of the amount awarded.

Held: The appeal is partially upheld, and the case is returned to the Court of Appeal to be judged again by a differently constituted Court.

The Supreme Court interpreted arts 3.1.a, 3.1.b, 3.5.a, 3.5.b, 3.5.c, 3.5.d, 3.6, 4.1, 7.1, 7.2, and 14 of the Athens Convention 1974 as amended by the 2002 Protocol (the Athens Convention 2002) as follows: the carrier has strict liability for damage or loss up to 250,000 units of account and quasi-strict liability for damage or loss beyond that amount, meaning that passengers have to claim and prove their loss and that it was caused by a shipping incident, whereas the carrier has to claim and prove that the incident causing the loss was not due to fault or neglect of itself or its servants. In any case, whether contractual or non-contractual liability is involved, the relations of the international maritime passenger are governed by the rules contained in the Athens Convention (Supreme Court decision 1002/2002).

Since the carriage was international, the rights of the passengers are regulated by the Athens Convention 2002. However, while the Athens Convention 2002 imposes an obligation on the carrier to remunerate loss arising from the death or personal injury of a passenger due to a shipping incident, it does not obligate payment of compensation due to mental injury or pain and suffering, which are not considered as loss. This is concluded from art 3.5.d of the Convention, which states that loss does not include the remuneration of punitive or exemplary damages. Claims of an exemplary nature have a non-material character, as is the case for satisfaction of mental injury or pain and suffering.

The Supreme Court also noted that a similar provision is included in the Warsaw and Montreal Conventions. The Montreal Convention provides in art 17 that the carrier is liable for the damage caused by the death or any bodily injury of the passenger which was caused on board the aircraft or in the course of any of the operations of embarking or disembarking. On the basis of this provision it has been accepted by Supreme Court case law that the non-performance of the contract of air carriage of passengers leads to obligation of compensation for mental injury or pain and suffering only if it also has tortious characteristics. Similarly, the Supreme Court concluded that in the case of international carriage of passengers by sea, the obligation of the carrier to pay compensation for mental injury or pain and suffering has as its prerequisite the tortious behavior of the carrier. According to the Greek Civil Code (Αστικός Κώδικας (ΑΚ)) arts 914, 932, 297-299, 355 ff and 374 ff, compensation for mental injury or pain and suffering is recognised only if the breach of the contract has a tortious character, meaning that even if occurred without any contractual relationship, it would still be unlawful. Consequently, if the tortious requirements are met, and specifically if there is: a) unlawful and culpable behavior; b) the occurrence of damage; c) a causal connection between the unlawful and culpable behavior of the one party and the damage of the other, the claim for remuneration or compensation due to mental injury or pain and suffering can be based on the provisions of art 914 ff of the Civil Code.

In her claim, the claimant alleged that the shipwreck was solely due to actions and omissions by the carrier and its servants, whereas the defendant objected that this was not the case because it was sub-chartering the vessel from a bareboat charterer, who had chartered it from the shipowner. The defendant was therefore not liable for the actions and omissions of the crew members.

The Court of Appeal applied arts 3, 4, and 14 of the Athens Convention 2002, but did not investigate the tortious liability of the defendant and whether this was necessary, despite the fact that the claimant was referring in her claim to the fault and the tortious liability of the defendant. In doing so, the Court of Appeal misinterpreted arts 3.1, 4.1, and 14 of the Athens Convention 2002 and arts 297, 298, 330, 914, 922, and 932 of the Civil Code and did not include adequate reasoning in its decision regarding the issue of the fault of the defendant for the loss of the claimant's husband.