The paper examines the CJEU’s decision in MH v Costa Crociere, which departs from the traditional view that the Athens Convention exclusively governs cruise-passenger injury claims. The Court held that injured passengers on package cruises may also sue package organisers under the Package Travel Directive, although liability caps under the Athens Convention still apply. This could broaden routes to compensation and may help avoid the Convention’s two-year limitation period. The article notes that the ruling is binding across the EU but not in post-Brexit UK law, where its persuasive value is uncertain. It also identifies unresolved issues concerning limitation, the application to air travel under the Montreal Convention, standards of care, and whether compensation caps may constitute unfair consumer terms.
Keywords: Athens Convention; Montreal Convention; Package Travel Directive; MH v Costa Crociere; CJEU; exclusivity; cruise packages; limitation periods; consumer protection; UK post-Brexit.
For decades, practitioners in international personal injury law across Europe and beyond have operated on a seemingly settled understanding: claims for personal injury arising during international carriage by sea and air are governed exclusively by the Athens Convention and the Montreal Convention respectively. These instruments impose strict limitation periods and, critically, exclude all alternative causes of action, therefore a passenger injured aboard a ship or aircraft could only seek redress within the framework of the applicable Convention. That orthodoxy has now been disrupted.
In its decision in MH v Costa Crociere (Case C-629/24) the Court of Justice of the European Union held that the Athens Convention does not preclude a passenger from pursuing a claim under the Package Travel Directive against the organiser of a cruise package. This article examines the established legal framework, the case law that reinforced it, the CJEU’s landmark ruling, and the open questions it leaves, particularly for UK practitioners navigating the post-Brexit landscape.
The Orthodoxy: Exclusivity under the Conventions
Under the Athens Convention (as amended by the Protocol of 2002 and brought into force within the EU by Regulation (EC) No. 392/2009) and the Montreal Convention (given domestic effect in the UK by section 1 of the Carriage by Air Act 1961, as amended, and in the EU by Regulation (EC) No.2027/97, as amended), claims for death, personal injury, or loss of or damage to luggage arising during carriage must be brought under the relevant Convention and on no other legal basis.
Article 14 of the Athens Convention states:
“No action for damages for the death of 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.”
Article 29 of the Montreal Convention mirrors this exclusivity, but in even broader terms:
“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.”
Practitioners in state signatories to the Conventions have typically understood these provisions to prevent an action from being brought as against a contracting or performing carrier otherwise than under the relevant Convention; and this understanding has been validated by the courts of numerous jurisdictions.
Caselaw Reinforcing Exclusivity
The exclusivity principle has been robustly upheld by courts across the common-law world. The leading authority remains Sidhu v British Airways [1997] 2 WLR 26, in which the UK House of Lords held that where the Warsaw Convention (the precursor to Montreal) applies, no claim may be brought in contract, tort, or any other cause of action outside the Convention. In Fellowes v Clyde Helicopters [1997] 2 WLR 380, even a passenger who was working at the time of the accident was held to be limited to a Convention claim against the carrier.
The principle was reiterated at the highest level in Stott v Thomas Cook [2014] UKSC 15, where the UK Supreme Court held that the failure to assist a disabled passenger during a flight was not compensable outside the Montreal Convention. The Court could not permit a cause of action in negligence, contract, or under the Disability Regulations. In a notable observation, the Court remarked that it “seems unfair that a person who suffers ill treatment of the kind suffered by Mr Stott should be denied any compensation,” describing it as “a grave injustice to which the international community should now be turning its attention.”
Sidhu has been followed internationally, including by the US Supreme Court in El Al Israel Airlines Ltd v Tseng525 US 155 (1999), the Federal Court of Australia in South Pacific Air Motive Pty Ltd v Magnus 157 ALR 443 (1998), the Court of Appeal of Hong Kong in Ong v Malaysian Airline System Berhad [2008] HKCA 88, and courts in Germany, Ireland, Canada and New Zealand. The principle was also applied against a tour operator in the lower courts of England and Wales in Norfolk v My Travel Group Plc, unreported, 2003, where a claimant injured during a cruise which was booked as part of a package holiday was denied recovery because her claim was brought after the Athens Convention limitation period had expired, notwithstanding that it was within the ordinary three year personal injury limitation period.
MH v Costa Crociere, Case C-629/24: a Paradigm Shift?
The ruling of the Court of Justice of the European Union in MH v Costa Crociere (C-629/24) represents a fundamental challenge to this orthodoxy.
MH concerned a claim brought against both the carrier, Costa Crociere, and the package organiser, Blue Passion. The French courts had differed as to whether both defendants could properly be sued, the question being whether the Athens Convention’s exclusivity provisions precluded a parallel claim under the Package Travel Directive (Directive 90/314, the precursor to the current Directive 2015/2302). A related (and similar) case, DM v Croisiere Club, had succeeded against both the organiser and carrier at first instance and was upheld by the Court of Appeal of Versailles. The cases were conjoined on referral to the CJEU.
The Court held that the Athens Convention does not exclude the operation of the Package Travel Directive, holding that the Directive seeks to ensure better consumer protection, albeit balanced against business efficiency; moreover, the Directive does not specifically exclude cruises from its scope, and therefore its provisions must apply to cruise packages. Logically, therefore, a consumer who has purchased a package including cruise falling within Article 2(1) of Directive 90/314 and who sustains personal injury on board the cruise ship has the choice of bringing two types of action for damages: (s)he may sue either under the Convention or the Directive, or both (with no double recovery being contemplated by the Court).
The Court did impose a significant qualification: the limits of liability contained within the Athens Convention remain applicable to claims made under the Directive. Nevertheless, the core finding—that an injured passenger may pursue a Package Travel Directive claim alongside or instead of a Convention claim—breaks new ground. It opens the door to claims against organisers who are and are not carriers, and potentially extends the effective limitation period beyond the two-year Convention deadline where domestic transposition of the Directive permits.
Is the Decision Binding in the United Kingdom?
For UK practitioners, the immediate question is whether Costa Crociere has any binding or persuasive authority post-Brexit. The Athens Regulation (EC No. 392/2009) forms part of retained EU law, having been preserved by the Merchant Shipping (Passengers’ Rights)(Amendment etc.) (EU Exit) Regulations 2019. However, CJEU decisions handed down after 31st December 2020 (post-IPCD) are not binding on UK courts
The approach taken by CJEU jurisprudence after 31st December 2020 was authoritatively summarised in Various Claimants v Mercedez-Benz Group GP and others [2026] EWHC 1753 (KB).
- Where post-IPCD authority follows or is logically predicated on binding pre-IPCD authority it will almost always be appropriate to follow that authority on the point or points in relation to which it follows or is logically predicated on the earlier authority. This is an approach which is consistent with that taken in Warner Music UK Ltd v TuneIn Inc [2021] EWCA Civ 441, and Eversfield Preparatory School Trust Ltd v Diverse World Ltd [2025] EWCC 33.
- Absent such an underpinning of pre-IPCD authority, post-IPCD authority is not binding, but is something which may be taken into account, if in all the circumstances of the case the court considers it appropriate to do so.
- Factors such as those in Farley v Equitini [2025] EWCA Civ 1117 are the kinds of factors which may well be brought into the equation in weighing whether in all the circumstances of the case post-IPCD authority is to be followed or departed from. These include (i) whether the regulation in question is one that had direct effect in this jurisdiction, and (ii) whether post-Brexit the same wording has been used for the domestic successor legislation.
- So too are discernible errors in the post-IPCD authorities: see Umbrella Interchange Fee Claimants v Umbrella Interchange Fee Defendants [2024] EWCA Civ 1559 and Tower Bridge GP Ltd v Revenue and Customs Commissioners [2022] EWCA Civ 998.
It is by no means certain that English courts would follow Costa Crociere. There is a real argument that this ruling contains ‘discernible errors”. Its interpretation of Article 14 of the Convention is novel and ambitious. It can also be said that it does violence to the language of the treaty.
Practitioners in England and Wales therefore anticipate that the decision in Costa Crociere will be raised in litigation, and that the domestic courts may be receptive to its reasoning, even absent formal binding authority. The same may be said for other signatories to the Conventions outside the EU. In the EU-27, of course, the decision is binding in the usual way.
Unanswered Questions
Limitation
The CJEU’s ruling pays little attention to limitation. In particular, the Court makes cursory reference to Article 16, but does not grapple with whether such claims brought under the Package Travel Regulations will be subject to the two-year limitation period. This question has particular resonance within England and Wales in the context of abuse claims, where section 11ZB of the Limitation Act 1980 (which removes the limitation period for personal injury claims arising from sexual or physical abuse) could theoretically apply. Whether the Convention’s limitation provision can be circumvented is likely to be contested.
Montreal Convention
The CJEU’s analysis focused on the Athens Convention and carriage by sea. The Montreal Convention’s exclusivity clause (Article 29) is, if anything, more broadly drafted. Whether the Package Travel Directive can similarly override Montreal Convention exclusivity in the context of flight-inclusive packages remains untested.
Standard of Care
Thirdly, the decision does not deal with the standard of care to be expected aboard a ship, and how this interacts with the Convention’s liability regime when a Directive claim is pursued. The application of domestic consumer protection standards to what was previously an exclusively international-Convention matter will generate new complexity. Consider, for example, a French claimant who contracts with an Italian tour operator for the provision of a cruise around Scandinavia aboard a vessel registered in Panama. What standard should the defendant be held to in any claim that may arise?
Unfair Term
The CJEU makes clear that a claim brought under the PTR will not circumvent the compensation limits set out in the Athens Convention, namely, that under Article 4(7) of the Convention, the liability of the carrier for the death of or personal injury to a passenger is in no case to exceed 400,000 units of account per passenger on each distinct occasion.
However, this begs a further question: can such a term be considered unfair within the meaning of consumer protection legislation? Within the jurisdiction of England and Wales, according to section 62(4) of the Consumer Rights Act 2015, a term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer.
The test for unfairness has two key elements:
- Significant Imbalance. The term must create an imbalance in the parties’ rights and obligations, which must be significant and to the detriment of the consumer. This is not simply about whether the deal is a bad bargain, but whether the term itself causes the imbalance.
- Good Faith. The requirement of good faith involves assessing whether the trader, dealing fairly and equitably, could reasonably assume that the consumer would have agreed to such a term in individual negotiations. Factors considered include the parties’ bargaining positions, any inducement for the consumer to agree to the term, and whether the goods or services were supplied to special order.
If such a term is not brought to the attention of the consumer, then there is a real argument that the limitation of compensation is unfair. All of this will turn on the facts of the matter. Nevertheless, it is at least arguable that the limits of compensation (set out in the Athens Convention) are unfair when applied to the Package Travel Regulations.
Conclusion
What is clear is that the settled orthodoxy can no longer be stated without qualification. For claimants, Costa Crociere opens new avenues. For carriers and organisers, it introduces new exposure. For all practitioners in this field, in the EU and beyond, it demands a reconsideration of assumptions that have shaped litigation strategy for many years.
Sarah Prager KC, Anirudh Mandagere, barristers, England and Wales
Deka Chambers
30/7/26
