Maximum Protection in MH v Costa Crociere SpA: Consumers, Cruises and the CJEU

Introduction

On 4^th June 2026 the Court of Justice of the European Union handed down its judgment in Case C-629/24 MH v Costa Crociere SpA on the interaction between the Athens Regulation (No 392/2009) and the Package Travel Directive. This article provides some observations which will be amplified by Sarah Prager KC and Anirudh Mandagere in our forthcoming Dekinar on the decision on 2 July 2026.

The decision is monumental, because it confirms that under European Union legislation, where someone has suffered personal injury on a cruise, they are able to bring an action both under the Athens Regulation and the legislation implementing the Package Travel Directive (in the UK, this would be the Package Travel and Linked Travel Arrangement Regulations 2018, the “PTRs”). The CJEU has held that the consumer has a choice between making a claim under the Package Travel Directive against the organiser of the cruise, or under the Athens Regulation against the contracting or performing carrier. The position as to whether, post Brexit, the courts of the UK legal systems will do so is yet to be seen. In the view of the author, the position of the CJEU in MH v Costa is inconsistent with the tone of current English law and English judges are unlikely to follow in the footsteps of the CJEU lightly. Ultimately, we will not know the answer until the higher courts have the opportunity to test the CJEU’s ruling in MH v Costa.

What we will certainly see more of is ‘dual’ pleading of the PTRs and the Athens Regulation/Convention, and actions being brought against both the ‘carrier’ and the ‘organiser’, where they differ.

This article will: (1) break down the decision into more detail, (2) explore whether the decision is consistent with English and Welsh Law as it stands, (3) attempt to give some assistance as to what an English court may do when confronted with MH v Costa and (4) highlight some problems going forward.

The Decision

The facts underpinning MH v Costa are as follows (two joined cases both originating from France):

1. MH v Costa Crociere SpA and Blue Passion –
   1. Costa Crociere was the owner of the ship. Blue Passion was the travel agency which provided the cruise.
   1. MH fell in her bedroom, resulting in a fractured humerus. She brought her claim against both the ‘carrier’ Costa, and the ‘organiser’ Blue Passion.
   1. The Regional Court of Paris held them jointly and severally liable. The Court of Appeal of Paris held MH solely responsible for her accident. MH then brought an appeal to the Court of Cassation, which was then the referring court.
2. DM v Crosière Club and Costa Crociere SpA –
   1. Crosière was the travel agency. The boat was owned by Costa Cociere.
   1. DM and DI went on a cruise. DI fell and fractured her left humeral head.
   1. They were successful against both the organiser and the carrier at first instance, and the decision was upheld by the Court of Appeal of Versailles.
   1. The matter was joined with MH.

The Court of Cassation asked the CJEU: whether Article 3(1) and the first paragraph of Article 7 of and Annex I to Regulation No 392/2009 (i.e. the Athens Convention), and Article 5 of Directive 90/314 (i.e. the original Package Travel Directive in 1990) must be interpreted as meaning that, where a cruise has the characteristics of a “tourism package” for the purpose of Article 2(1) of that Directive, actions for damages relating to personal injury sustained by a passenger on board the cruise ship during carriage by sea, within the meaning of Article 2 of that Regulation, are to be governed by the liability regime of the maritime carrier providing the cruise with that ship, as laid down in that regulation.

The answer was as follows (Paragraphs 63, 64, and 67):

“… the Court finds that, where, as in the present case, a consumer who has purchased a package to take a cruise that comes under Article 2(1) of Directive 90/314 sustains personal injury during the period in which he or she is on board the cruise ship and takes the view that that injury is due to non-performance or improper performance of the package contract, he or she has the choice of bringing two types of actions for damages.

 First, in accordance with Article 5 of Directive 90/314, that consumer may bring an action for damages against the organiser of that cruise in order to obtain compensation.

[…]

 Second, the consumer referred to in paragraph 63 of the present judgment may bring an action for damages on the basis of Regulation No 392/2009 and the Athens Convention directly against the carrier that actually carried out the carriage by sea, even where the latter is not the organiser of the cruise.”

In usual CJEU fashion, the decision is clear but accompanied by some-what limited reasoning (from the perspective of the English lawyer used to rather lengthier judgments).

At Paragraph 36 it says:

“Regulation No 392/2009 does not provide for any derogation from the uniform rules stipulating that the organiser or retailer will automatically be liable which are established by that directive. In addition, that directive seeks to ensure better consumer protection. That regulation concerns only contracts relating to the maritime transport of passengers, and the reference in Article 7 of that regulation to Directive 90/314 is limited solely to the obligations of tour operators relating to the provision of information to passengers and does not in any way relate to the liability regime laid down by that directive.”

Curiously, it uses Article 14 of the Athens Convention (pasted below) which supports exclusivity, in support of its judgment. At Paragraph 37 the Court says:

“Furthermore, the liability of the organiser of ocean cruises sold in the form of package travel could be covered by the liability regime laid down by Regulation No 392/2009, since, first, Article 14 of the Athens Convention, to which Article 3 of that regulation refers, provides that no action for damages for the death of or personal injury to a passenger, or for the loss of or damage to luggage, is to be brought against a carrier or performing carrier otherwise than in accordance with that convention, second, no provision of that regulation excluded the cruise from its scope, and, third, Article 7 of that regulation refers to Directive 90/314.”

Later in the judgment, it seems to interpret Article 14 as solely related to ‘limitations of its liability’ as provided within Articles 3 and 7 of the Athens Convention (Paragraph 68), rather than preventing another regime of liability.

The reasoning as to why the Directive applies to cruises is:

• “the purpose of that directive is to approximate the laws, regulations and administrative provisions of the Member States relating to packages sold or offered for sale in the territory of the European Union.” (Paragraph 43). This is later referred to as “approximation” Paragraph 45).
• Cruises fall within the definition of applicability of the directive (Paragraph 44).
• Whilst Article 5(2) of the original 1990 Directive makes reference to limits of international conventions, that only applies to a ‘carrier’ (Paragraph 49). It then goes on to describe those limits (Paragraphs 50-55).
• Article 5 (2) only proscribes a limit as to the consumer’s compensation (Paragraph 55).

The CJEU provides that there cannot be double compensation – i.e. in the event the claim is against the carrier and the organiser, the compensation must not be greater than that corresponding to the loss suffered (Paragraph 69).

There are some aspects of the judgment which are unclear, and confusing:

1. The CJEU holds that the organiser of a cruise will be subject to the same ‘limits’ under the Athens Convention (Paragraph 57-58). Seemingly that only applies to when the accident occurs ‘in the course of carriage’ (Paragraph 60-61); therefore, those limits will not apply to when the accident occurs outside the course of carriage e.g. when at port. Given that the CJEU describes quirks of Athens liability such as ‘shipping incidents’ (see for example paragraph 51, 52 and 53) within its description of ‘limits’, it is unclear whether those aspects would also apply to the organiser – i.e. the organiser can be strictly liable for any shipping incident, where that is caused by the provider of the services.
2. As the cases both involved organisers who were distinct from the carriers, it is not entirely clear whether the “choice” referred to by the CJEU exists where the organiser is also the performing carrier.
3. Whether the ‘fault’ for which the organiser is liable would be under Athens or domestic law (of the organiser) breach of contract / tort.
4. Whether the limitation period of 2 years proscribed by Article 16 also applies to actions against the organiser. The CJEU makes cursory reference to Article 16 in Paragraph 56 with no explanation. The fact the court says “that system of liability” would suggest the 2-year limitation is not applicable where the claim is made through the package travel directive.

The decision of the CJEU looks like it may fly in the face of interpretations made by some member states. Michael Wukoschitz in ‘Collective Commentary About the New Package Travel Directive’ (2020) helpfully explains: ‘While some states tend to a rather restrictive view according to which there is either a claim under the respective convention or no claim at all’ (for which he cites the UK case of Stott v Thomas Cook Operators [2014] UKSC 15, [2014] AC 1347 as an example) whilst ‘others only apply the exclusivity to claims, which are in principle covered by the convention’ (for which he cites an Austrian decision OGH 17.12.2012, 10 Ob 47/12b, which states national law may provide a remedy where the Montreal Convention applies, but it may not provide for more extensive claims for damages than under the Montreal Convention). Wukoschitz demonstrates an ability to predict the future when he says, ‘When judging the compatibility of the European Air Passenger Regulation with the Montreal Convention, the CJEU took the view that the compensation granted by the former in cases of cancellation or long delay fell outside the scope of Article 29 of the Montreal Convention. [CJEU 10.01.2006, C-344/04 IATA and ELFAA v Department for Transport and CJEU 19.11.2009 joint cases of C-402/06 Sturgeon v Condor; C-432/07 Böck ae v Air France] It seems therefore likely that the CJEU will rather follow the concept of a “weak exclusivity”’.

Given there is divergence, and some states interpreted the interaction between the two regulations more favourably to the consumer (i.e. providing dual protection), it is no surprise that the judicial guardians of the ‘ever closer union’ of the EU, who are renowned for their consumer protection, favoured what Wukoschitz calls ‘weak exclusivity’. I suggest the only way the CJEU was able to do this, was due to the fact of the Athens Regulation as opposed to the Athens Convention. This is an interesting development as English lawyers often use and plead the same interchangeably.

Consistency with English law

There are two aspects to consider (1) do English courts prefer ‘broad exclusivity’ of treaties? And (2) how has this issue been addressed in the past as to the interaction between the PTRs and the Athens Regulation/Convention?

The former is a large topic and could be subject to a PhD thesis. Stott as highlighted by Wukoschitz gives us a clue in respect of the Montreal Convention. In Stott the Supreme Court was considering whether the Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007 could be utilised to claim damages for an event which occurred onboard an airplane. The Defendant argued that Article 29 of the Montreal Convention precluded the claim. The facts were that the Claimant was a permanent wheelchair user and depended on his wife to manage his bodily needs when travelling by air. The airline had given assurances that he would be seated with his wife. He unfortunately was unable to sit with his wife, and this resulted in his wheelchair being overturned mid-flight and him falling to the cabin floor – which understandably caused him humiliation and distress. The Supreme Court held this fell within the exclusive scope of the Montreal Convention, since his humiliation and distress occurred on board the flight, and recovery of damages under the Civil Aviation Regulations was not possible. It is worth noting that Stott concerned claim against the carrier; it was slient on claims against the non-carrier (i.e. the package travel organiser).

As to the latter, there are contrastingdecisions in the County Court, and nothing exactly on point (albeit with clues) in the higher courts. In Norfolk v My Travel Group PLC [2004] 1 Lloyd’s Rep 106 (notably pre–Athens Regulation) the County Court held that no alternative claim could be made under the PTRs as the UK implementation of the Convention through s.183 of the Merchant Shipping Act 1995 meant that applied notwithstanding any contractual obligations between the parties. In Lee v Airtours Holiday Ltd [2004] 1 Lloyd’s Rep 683 (also pre-dating the Athens Regulation) the judge held that the PTRs could provide an alternative remedy as it was implemented in English law and the Convention was not incorporated in the contract.

Jennings v TUI UK Limited (t/a Thomson Cruises) [2018] EWHC 82 involved a cruise ship whose last port was Malaga, Spain. Flights were booked to and from Cardiff airport. The ship was docked, and there was a ‘structure’ which allowed passengers to disembark. Admiralty Registrar Kay KC determined that the fall had occurred in the corner of the walkway at the turn before the decline into the terminal building. Claimant counsel sought to argue that the accident had occurred during the ‘course of embarkation or disembarkation’ and therefore within the scope of the Athens convention. The judge held that the Athens Convention did not apply where the passenger ‘has left the ship to the extent of reaching spaces or equipment which are clearly not in the control of the ship’. Claimant counsel sought to rely upon the PTRs. Counsel for the Claimant prayed in aid of Article 14 of the Athens Convention quoted below to support the contention that where the Athens regime does not apply, the PTRs may apply. The judge held that the fall was within the period of the PTRs (albeit note this was not a simple cruise package but also included flights), but there was no duty to warn in respect of the hazard, and in any event evidence of local standards had not been supplied.

In Mahapatra v TUI UK Limited [2021] 1 Lloyds Rep 71Admiralty Registrar Kay KC did not interfere with the analysis he had made above, albeit in the context of applying to amend particulars so as to include the package travel regulations due to the walkway forming part of the port, rather than the ship disembarkation (and so not in direct consideration).

Impliedly it was the understanding of all the parties and Admiralty Registrar Kay KC in these cases that where the Athens convention applies, the PTRs did not apply; and it was only when it was held that the Athens Convention did not apply that the Claimant sought to rely upon the PTRs. Support for this underlying assumption can also be found in Collins v Lawrence [2017] EWCA Civ 2268.

On the other side of the coin, the Court of Appeal in Feest v South West Strategic Health Authority and another (Bay Island Voyages, Part 20 defendant) [2015] EWCA Civ 708 held that the exclusivity article of Athens did not prevent the Civil Liability (Contribution) Act 1978 from operating. Specifically, at paragraph 15 it is said: “The Convention is a Convention for the unification of certain rules relating to the carriage by sea of passengers and their luggage. It does not purport to be a complete code governing all liability of sea carriers to whomsoever owed in respect of the carriage of passengers and their luggage.” 

What will the courts of England and Wales do?

England and Wales retain the Athens Regulation as part of the directly applicable EU Law ‘translated’ into English Law by virtue of The Merchant Shipping (Passengers’ Rights) (Amendment etc.) (EU Exit) Regulations 2019. That means, rather uniquely, it is the only country to have the Athens Regulation but not be a member state of the EU. To add further complication for whichever lucky tribunal will consider this issue, the Athens Convention has an exclusivity clause:

Article 14: “No action for damages for the death or personal injury to a passenger, or for the loss of or damage to luggage, shall be brought against a carrier or performing carrier otherwise than in accordance with this Convention.”

If it was not complicated enough already, it is worth observing that some of our Common Law counterparts, such as Australia and the United Stated, who judges often like to refer to (and sometimes in preference to our European Neighbours in a post-Brexit world; see Arthern v Ryanair DAC [2023] 46 (KB)) are not party to the Athens Convention.

But authorities from all of those signatories to the Athens Convention (and therefore liable to interpret the interpretation broadly)may be enough to persuade an English court to strike out against the CJEU. It is perhaps worth further observing that the proposed amendments to the Package Travel and Linked Travel Arrangement Regulations have been published ; the fact of their amendment means that divergence with the EU is inevitable.

My instinct is that English judges would be slow to add a whole new area of liability, disrupting current structures, in contradiction to current assumptions of the current law, without the weight of the legislature behind them. Perhaps this may be a matter for Parliament to consider.

Problems Going Forward

Two questions spring to mind when considering the decision of the CJEU:

1. What impact will this have on the interpretation of the Montreal Convention?
2. What impact will this have on the Local Standards defence?

The Montreal Convention also has an ‘exclusivity clause’;

Article 29: “In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.”

The Montreal Convention has been determined by the Supreme Court to be exclusive when it applies (albeit in the context of carriers, and not package travel organisers; see also Sidhu and others v British Airways PLC [1997] AC 430) – and therefore any change to that may require an appeal up to the Supreme Court and a departure from its previous decision. There is an argument that previous authority has not determined exclusivity in the context of interaction with the PTRs where the defendant is the package travel organiser, and therefore it is possible to bring a claim against the organiser (within the limits of the Montral Convention i.e. within 2 years, and counts as an ‘accident’); so long as breach of local standards is also demonstrated.

Further, in relation to the Montreal Convention, there is not the problem of the Convention being subject to double translation, into and out of EU law. Additionally, more of our Common Law counter-parts are parties, and for example, the US interprets Article 29 broadly such that any claim for damages arising out of international air travel regardless of whether it is framed in tort or contract can only be brought under the conditions and limits of the treaty (El Al Israel Airlines Ltd v Tseng [1999] 525 US 155). Interestingly, when this topic arose in the CJEU, the CJEU refused to engage with it (DB v Austrian Airlines AG (C-510/21) [2024] 1 W.L.R. 927), but the Advocate General suggested it was appropriate for the CJEU to take into account the UK and US interpretation due to the ideal of uniform interpretation of the Convention, but national interpretations should not be accepted uncritically. This laid the foundations for what seems to be an inevitable expansion by the CJEU.

The impact on air travel would be more significant. This is because in order to claim under the Montreal Convention it must be an ‘accident’ within the meaning of Article 17 (unlike the Athens Convention, where there is the benefit of strict liability for a ‘shipping incident’ but additional fault-based liability available). It is perhaps worth noting that the cross-over of the PTRs in relation toair travel simpliciter is lesser than in the case of a cruise, which by virtue of supplying both travel and accommodation, is a ‘package’ in and of itself.

As to Local Standards, a whole other headache arises. It is trite that in order to establish liability in a case involving the Package Travel Regulations, a Claimant must provide evidence of the holiday destination’s local standards (so far as local standards do exist). If an accident occurs on a cruise, whilst not at port, and presumably crewed by employees from a mix of cultures and backgrounds; what ‘local’ standards apply? If English courts were to follow the CJEU, this may be an inroad into the local standards principle. Conversely this problem, and the reiteration of local standards as trite law, may be enough to dissuade an English court from following the CJEU.