This was an appeal in cassation against the judgment of the Rouen Court of Appeal, 8 September 1994. On 29 May 1991, in the outer port of Tréport, the dredge Johanna-Hendrika, which was owned by Aannemingsmaatschappij De Branding BV (De Branding), and was to carry out work there, landed at low tide on the muddy seabed and skidded towards a quay, alongside of which were moored two fishing vessels, the Intrigue, belonging to Mr X, and the Pamerey, owned by Mr Y, and collided with them. The collision resulted in the loss of both fishing vessels. Mr Y was compensated by his hull insurer, the Groupe des Assurances Nationales (GAN), while Mr X received a certain sum from Boistel Eyssautier (Boistel), acting as the general agent of its hull insurers. Mr X and Mr Y sued for compensation for their losses. The Court of Appeal held in favour of the claimants and their insurers, and denied the master and De Branding's rights to limit their liability.

The master of the dredge, De Branding, and ABN criticised the judgment for having held that the collision was caused by the fault of the dredge. They argued that when the master of the dredge ensured its positioning, the removal of the fishing vessels was possible for several hours before the grounding of the dredge. The master of the barge could legitimately determine his behaviour according to the fact that the boats were going to be moved, as they were to be moved by their owners and, possibly (on an application of art 311-7 para 4 of the Code of Maritime Ports and art 12 of the general police regulations for commercial ports) by the port officers. The trial Judges were therefore unable to attribute the collision to a fault of the dredge without tainting their decision with a lack of legal basis with regard to art 3 of Law N° 67-545 of 7 July 1967, relating to marine incidents, and art 1382 of the Civil Code.

The master of the dredge also criticised the judgment for having refused him the benefit of limitation of his liability. Even if the findings of the judgment characterised a fault of the dredge, they did not characterise, in any event, a qualified fault, depriving the master of limitation of liability, in terms of art 58.3 of the Law of 3 January 1967, which can only be an act committed with the intention to cause the damage, or recklessly and with awareness that the damage would probably result.

Held: Partial cassation.

The two fishing vessels were correctly moored before the dredge was put in place. The master, a specialist in dredging works in the port area, could not be unaware that there was, after the grounding of the dredge due to the ebb tide, a risk of it moving on the muddy seabed. It was therefore up to the master to require the movement of the ships at the quay, and to wait before placing his gear. At the very least, he should have taken the elementary precaution of retaining the stern of his vessel, not with a simple stake as he did, but with a hawser. From these findings and assessments, the Court of Appeal was able to deduce that the collision had been caused, not by the fault of the victims or third parties, but exclusively by the fault of the dredge, forcing it to repair the damage by application of art 3 of Law N° 67-545 of 7 July 1967 relating to marine incidents.

It follows from arts 1.4 and 4 of the LLMC 1976 and arts 58 and 69 of Law N° 67-5 of 3 January 1967, relating to the status of ships and other seagoing vessels, as amended by the Law of 21 December 1984, that the master of a ship is among the persons allowed to avail themselves of the limitation of liability provided for by these various provisions, even in the event of personal fault, but this cannot be done if it is proved that the damage results from his personal fact or omission committed intentionally, or committed recklessly and with awareness that such damage would probably result from it. Having held that no elementary safety precautions had been taken to carry out the installation of the dredge in the outer harbour without risk, and to counter the foreseeable dangers of its execution, the Court of Appeal was able to deduce that the conduct of the master - who, as a professional, had to be aware of the probability of the damage - was reckless.

However, the Court of Appeal did not investigate whether Boistel was properly subrogated to Mr X's rights. Further, concerning De Branding, the liability of a shipowner is only unlimited if it is proven that the damage resulted from its personal act or omission, committed with intent to cause such damage or committed recklessly and with knowledge that such damage would probably result. The judgment held 'that in this case where no elementary safety precautions were taken to carry out the manoeuvre without damage, or to ensure the maintenance of the dredge ... , the fault of the owner prevents it from invoking any limitation of liability'. In determining the case on the basis of such reasons, without saying how the fault committed by the master of the dredge could also constitute the personal and intentional or inexcusable fault of the owner itself exclusively envisaged by the aforementioned provisions, the Court of Appeal did not give a legal basis for its decision.

For these reasons, the judgment under appeal is struck down and annulled, but only in that it declared admissible the action brought by Boistel and refused to De Branding the benefit of limitation of its liability. The case and parties are returned to the position they were in before the aforementioned judgment, and the case is referred to the Caen Court of Appeal to be decided correctly.