Sailing in the face of Convention – MH v. Costa Crociere SpA

When a passenger on a cruise holiday is injured on board the ship, can a claim be brought under the relevant Package Travel Regulations (“the PTRs”) or can a claim be brought only pursuant to the rules set out in the Athens Convention?

While it has not been the subject of binding authority in the English and Welsh courts, the orthodox view has been that the Athens Convention provides an exclusive regime for determining such claims.  There are particular reasons why this could be important: the Convention has its own rules on limitation and financial limits of compensation, and a presumption of liability in the case of a “shipping incident” with a requirement to prove fault in other cases.

There is binding authority in the case of the equivalent convention dealing with air travel: in Sidhu v. British Airways Plc [1997] AC 430, the House of Lords held that the (then) Warsaw Convention was an exclusive source of remedy in respect of the areas with which it dealt (albeit that case concerned a claim against an air carrier and not an organiser of a package holiday).

The Court of Justice of the European Union has recently delivered a judgment considering the issue in the context of the Athens Convention.  In MH v. Costa Crociere SpA (Case C-629/24, Judgment of the Court (Fifth Chamber,) 4 June 2026) the CJEU was asked to give a preliminary ruling by the French Court of Cassation in respect of claims by two claimants on cruise holidays: one claimant had fractured her humerus having fallen after getting out of bed; another, also suffering a humeral fracture, had been struck by an unidentified person while serving herself at the ship’s buffet.  The CJEU considered the interplay between Directive 90/314/EEC (the Package Travel Directive – pursuant to which Member States enacted their own package travel legislation, including the PTRs in this jurisdiction) and Regulation 392/2009 (which effectively brought into force as a matter of EU law the key provisions of the Athens Convention).

The Advocate General delivered his Opinion on 4 September 2025.  He suggested that the regimes under the Package Travel Directive and the Athens Convention may apply concurrently.  He did, however, propose criteria for determining which regime would apply in any given case: for the Athens Convention to apply, the incident must be an event “in which a risk typically associated with the carriage of passengers by sea has materialised”, such as slips or trips on board (due to wet or uneven deck surfaces), falling objects, poorly maintained facilities or the negligence of the crew; the PTRs would be applicable where the services are those such as accommodation and the use of recreational facilities, for example swimming pools, as in this context cruise ships are more akin to “floating hotels”.

In its judgment, the CJEU considered that the question that it had to determine was, in essence, whether a proper interpretation of Regulation 392/2009, together with the Package Travel Directive, meant that where a cruise has the characteristics of a tourism package, actions for damages relating to personal injury sustained by a passenger on board the cruise ship during carriage by sea are to be governed by the liability regime of the maritime carrier providing the cruise as laid down in the Regulation (and hence the Athens Convention).  The Court answered that question in the affirmative. 

The Court found that actions could be brought either against the organiser of the cruise under the Package Travel Directive or against the carrier under the Convention – which might be thought to go against the idea of the Convention being exclusive.  But, it held, in either case the defendant to the action could rely on the limits set out in Articles 3 and 7 of the Convention – relating to what is required to establish liability, including the burden of proof; and the financial limit to compensation.   

While, therefore, a claim against an organiser under the Package Travel Directive (who might, in some cases, also be the carrier) in respect of injury suffered on board a cruise ship is a valid cause of action, the liability regime that would apply to such a claim would be that set out in the Athens Convention.

This does not expressly deal with the relevant limitation period; but one could perhaps presume that, applying the same reasoning, the limitation period provided for by the Athens Convention is part of its “liability regime” and should be able to be relied upon by a defendant: Article 3 of Regulation 392/2009 (not to be confused with Article 3 of the Convention) states that the “liability regime in respect of passengers …” shall be governed by certain Articles of the Convention, which include Article 16 of the Convention concerning the time bar for actions.

The basis for the judgment is that the Package Travel Directive provided that Member States may allow compensation for improper performance of the package contract to be limited in accordance with conventions, including the Athens Convention; but, given that Regulation 392/2009 was to apply from no later than 31 December 2012, from that date “the Member States no longer have the option of limiting freely the organiser’s liability for the carriage by sea of passengers, given the limits of the liability of a carrier in charge of such carriage laid down by the Athens Convention, but are required to limit that liability” (emphasis added).  These limits apply where the incident occurred in the course of the carriage. 

The judgment does not expressly refer to the Advocate General’s Opinion.  It does, however, state that determining which liability regime applies in the event of injury on board a ship “cannot depend on the answer to the question whether that death or personal injury is due to non-performance or improper performance of the carriage services rather than being due to non-performance or improper performance of the on-board accommodation or recreation services” – thereby dismissing the approach proposed by the Advocate General.

The starting point of the CJEU’s analysis – that claims lie under both the Package Travel Directive and the Athens Convention – is somewhat novel, at least to those in this jurisdiction.  It is also fair to say that the decision is not without problem or room for debate (would the organiser of the package be strictly liable, as the carrier would, for injury caused by a “shipping incident”?).  But notwithstanding the acceptance that claims may validly be brought under either of the two routes, the governing liability regime would be the same, and so it would seem, therefore, that the orthodox position remains, and the Athens Convention provides an exclusive regime on matters falling within its compass.