The Dekagram: 9th of February 2026

In this week’s Dekagram Andrew Spencer and Anirudh Mandagere consider the opinion of the Advocate General Norkus in MH v Costa Crociere SpA, a pair of cruise‑related injury cases that raise important questions about whether liability should fall under the Athens Convention or the Package Travel Regulations. 

The most important case in travel law (that you’ve never heard of) MH v Costa Crociere SpA (C-629/24)

Introduction

MH v Costa Crociere SpA (C-692/24) is not a case which has been widely publicised. This is a mistake. The opinion of Advocate General Norkus in this matter has the potential to blow apart our notions of the division between the Athens Convention and the Package Travel Regulations, and expose cruise operators to a wider scope of liability, with longer limitation periods, and no liability limits. While the Advocate General’s opinion isn’t binding, it certainly presents a challenge to litigators’ understanding of travel law legislation and is worth serious consideration.  

Factual Background

The Accidents

The case involves two separate claims, following two separate accidents.

In the first case, DM and DI, C and her husband went on a cruise operated by the Defendant from Marseilles to the Greek islands. Whilst on board, C was struck by an unidentified person while serving herself at the buffet, and broke her arm.  C brought a claim against the cruise operator and their insurer.

In the second case, MH, C went on a cruise from South America to Australia, operated by the Defendant through the travel agency Blue Passion. One night, she got out of bed without turning on the light, fell, and also broke her arm.

Judgments at First Instance

DM and DI: The Tribunal Judiciaire de Nanterre found that the Defendants were liable for the damage caused and ordered those companies to pay compensation.

MH. The Regional Court in Paris ruled that Blue Passion and the Defendant was 20% liable for the damage suffered by C as a result of her fall. The court ruled that C was partly responsible because she had not turned on the light.

Appeal Judgment

DM and DI. The Court of Appeal of Versailles found that the Defendants were liable for the damage caused, holding that the Defendants were liable under the French version of the (old) Package Travel Regulations. The Defendant appealed, submitting that the Court of Appeal should have applied the  Athens Convention and not the French version of the Package Travel Regulations. 

MH. The Court of Appeal in Paris allowed the appeal. Applying the Athens Convention, the court  ruled that C was solely responsible for her accident due to her failure to turn on the light. Therefore, Blue Passion could not be held liable for improper performance of the contract under the French version of the Package Travel Regulations. Additionally, the Court held that Costa Crociere could not be held liable for the accident under the Athens Convention and Regulation No. 392/2009, since there was no evidence of any ship movements or failures by Costa Crociere that could have caused the fall.

The Claimant appealed, contending that the court ought to have applied the French version of the Package Travel Regulations and not  Regulation No 392/2009 and the Athens Convention.

Both appeals went to the Cour de Cassation, the highest court in France.

The Judgment of the Cour de Cassation

Hearing the two appeals, the Cour de Cassation noted that both appeals reached opposite conclusions, and that legal scholars were divided on the issue.  The Cour de Cassation stayed the proceedings and referred the following questions to the CJEU:

• Must Articles 2, 3(1) and the first paragraph of Article 7 of the Athens Convention be interpreted as governing the liability of a maritime carrier operating a cruise having the characteristics of a package holiday within the meaning of the Package Travel Directive?
• If the answer to the first question is in the affirmative, do those provisions of the Athens Convention govern the liability of that operator only where the personal injury relates to carriage by sea?’

Opinion of Advocate General Norkus

The Advocate considered it  was necessary to delineate the scope of the Package Travel Directive and the Athens Convention. Each establish a separate liability regime.

Advocate General Norkus’ analysis of the liability regimes

The Athens Convention constitutes a special legal basis for claims against the carrier in cases of death or personal injury in maritime transport.

However, Article 3(6) of the Convention provides that the liability of carrier only relates to loss arising from incidents that “occurred in the course of the carriage”. According to Advocate General Norkus, this provision defined a period of process during which the carrier’s liability applied. Therefore, bodily injuries that occur when the Claimant is not on board the ship are not covered by the Convention.

Could the Package Travel Directive apply in those circumstances? Advocate General Norkus accepted that there would be an overlap in their scope of application. However, Article 7 of the Regulation provided that the carrier was required to ensure that passengers receive appropriate and comprehensible information about their rights under the regulation at the time of departure. This indicated that the passengers’ rights under the Package Travel Directive may also apply in the context of package travel.

From that perspective, the scope of the Regulations and the Package Travel Directive could potentially overlap in certain circumstances. They were both aimed at different parties. The carrier typically bore liability for bodily injury onboard a ship. The organiser was responsible for ensuring the proper performance of the package travel contract and was liable for any deficiencies attributable to the carrier’s conduct.

Advocate General Norkus stated that the Convention should be applied in line with its original objective. Namely, to ensure compensation for bodily injuries that are closely linked to the transport operation. He rejected the argument that Article 14 of the Convention displaced the operation of the Package Travel Directive. The primary objective of that provision was to preclude the application of conflicting national legislation in the area of transport law. The signatory states of the Athens Convention agreed upon an international treaty aimed at establishing uniform liability rules.

Further, Article 14 of the Convention predated the Package Travel Directive and stemmed from a time when cruise travel organised by tour operators was not yet widespread. Those legal relationships between tour operators and consumers were not contemplated at the time. The evolving nature of travel law and the increasing popularity of cruise tourism are developments that should be reflected in the interpretation of the applicable legal framework. Advocate General Norkus similarly rejected the countervailing argument that the Package Travel Directive ousted the Athens Convention. This must have been the case given that the EU legislature intended the Regulation to remain fully applicable, irrespective of the evolution of consumer protection law.

When should a consumer use the Athens Convention and when they should use the Package Travel Directive?

Accordingly, according to Advocate General Norkus, events in which a risk typically associated with the carriage of passengers by sea has materialised – risk over which the carrier normally exercises control and bears a legal duty to take all measures to prevent it from materialising are subject to the Athens Convention. Advocate General Norkus gave the following examples:

Such incidents include: slips, trips and falls on board (due to wet or uneven deck surfaces, poorly lit stairwells or unsecured flooring); accidents caused by falling objects (for example, unsecured luggage or equipment falling in cabins or public areas); accidents occurring during embarkation or disembarkation (such as accidents on gangways, steps or within boarding areas); accidents due to malfunctioning or poorly maintained facilities (for example, defective elevators or doors); accidents due to inadequately maintained water rescue equipment (such as lifeboats, life vests, rescue nets and boarding ladders); and accidents due to the negligence of the crew (where the carrier failed to provide adequate safety or supervision).

Advocate General Norkus accepted that leisure activities that do not take place on board a vessel do not fall within the scope of the Athens Convention. Equally, damage sustained by passengers in the course of provision of services other than those intrinsically connected to the field of transport fell within the Package Travel Directive. Recital 17 of the Package Travel Directive indicates that a cruise ought to be distinguished from conventional forms of passenger transport (such as by road, train, water or air) in relation to which accommodation is subordinate to the transport of passengers. Advocate General Norkus identified that this meant that parts of a cruise could be equated with hotel accommodation.

The argument is that  a substantial part of the services typically encompassed in a cruise (including accommodation and the use of recreational facilities such as swimming pools, saunas, spas or gyms) fall outside the scope of the Athens Convention and ought to be governed by the Package Travel Directive. Advocate General Norkus noted that a passenger who suffers a bodily injury while resting in their cabin or dining in a restaurant occurred during a period of ‘accommodation’. The transport element receded in the background and therefore the Athens Convention did not apply.

In the event of doubt as to which rules apply, the Package Travel Directive should prevail over the Athens Convention, unless the conditions for compensation under the Convention are clearly met. He went further, and identified that:

When a comprehensive package tour is at issue, there exists a presumption that the accident is not a result of maritime transport and, thus, comes within the liability regime laid down by Directive 90/314, with the organiser bearing the burden of proof to the contrary.

Given that no risk typically associated with the carriage of passengers by sea materialised in either accident under consideration, the application of the Athens Convention should be excluded. Both accidents ought to be governed by the Package Travel Directive. Accordingly, Advocate General Norkus proposed that the answer to the question should be as follows:

Article 2, Article 3(1) and the first paragraph of Article 7 of Regulation (EC) No 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, as well as Annex I thereto, must be interpreted as governing the liability of a maritime carrier operating a cruise that has the characteristics of a package holiday within the meaning of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours only in so far as it concerns personal injuries sustained by a passenger as a result of the sea carriage. Conversely, personal injuries arising in the context of services typically included in a cruise package – such as accommodation and catering – fall within the material scope of Directive 90/314.

Comment

The mere fact that this opinion arises out of Luxembourg rather than London should not detract from its significance. Following the Supreme Court’s ruling in CG Fry & Sons v Secretary of State for Housing and Local Government [2025] UKSC 35 and the Court of Appeal’s ruling in Farley v Paymaster (1836) Limited [2025] EWCA Civ 1117, English courts will still look to the judgments and interpretation of the CJEU in interpreting the underlying directive. The Package Travel Regulations and the Athens Convention are international legislative measures, the courts will take into account the interpretation of such measures by international courts.

It remains to be seen whether the CJEU uphold Advocate General’s distinction between risks typically associated with the carriage of passengers by sea, and other risks. The potential implications of this are significant: unlike claims brought under the Athens Convention, package travel claims are subject to a three-year (extendable) limitation period. Further, holiday claims outside Athens are not subject to liability limits.

There is no conclusive English authority on this point. In Norfolk v My Travel Group PLC [2004] 1 Lloyd’s Rep. 106, it was found that the UK implementation of the Convention in S. 183 of the Merchant Shipping Act 1995 meant that it applied irrespective of any contractual obligations and noted its standing under as an international convention. The County Court concluded that no alternative claim could be brought under the 2018 Regulations. However, in Lee v Airtours Holiday Ltd [2004] 1 Lloyd’s Rep. 683, Judge Hollgarten QC (as he then was) suggested that the Package Travel Directive could provide an alternative remedy as it was implemented in English law and the Convention was not incorporated in the contract. The domestic implementation of an EU Directive would override the domestic law under the Merchant Shipping Act. Further, Regulation 16(5) of the Package Travel Regulations 2018 specifically limits compensation, and the conditions in which compensation is payable, to that payable pursuant to the Athens Convention.

Given the big advantage to claimants if certain cruise claims are not subject to the limits of the Athens Convention it is surely just a matter of time before arguments similar to those set out by the Advocate General are ventilated before the courts of England and Wales.

About the Authors: 

Andrew Spencer’s practice focuses on travel and cross-border claims; professional negligence; and personal injury.

Andrew is ranked as a Leading Junior in the Legal 500 and Chambers & Partners.

Anirudh is building a broad practice in civil and public law. His core practice areas include data protection, human rights and judicial review, police law, inquests, clinical negligence, personal injury (both domestic and cross border) and the Court of Protection.

He is ranked as a “rising star” (Legal 500) and “up and coming” (Chambers and Partners).