Benoît X and Agnès Y, both members of the Center Nautique les Glénans (the CNG), took part in a sailing course on the yacht Pido in the Bonifacio sector in Corsica. On 7 August 2005, the yacht was hit by a wild tail wind. Mr X was hit by the mainsail and suffered a serious cranial trauma with immediate coma. Following proceedings taken by Mr X, his parents, and the Mutuelle Assurance des Instituers de France (the MAIF), their insurer, the CNG was declared liable for the damage caused by the accident in a judgment of 30 July 2009 of the Paris Tribunal de Grande Instance, which finding was confirmed by a judgment of the Paris Court of Appeal of 12 December 2011.

The CNG applied to the President of the Commercial Court of Ajaccio to apply the LLMC 1976 and arts L 5121-3 ff of the Transport Code which allow the shipowner to limit its liability when damage occurred on board the ship by setting up a compensation fund. By order of 14 August 2012, this request was granted. The parties appealed and cross-appealed.

Held: Appeal and counter-appeal dismissed.

The LLMC 1976 is intended to apply in this case, the disputed accident having occurred on a ship. The MAIF, however, invokes art 3.e of the LLMC 1976, which excludes from limitation of liability 'claims by servants of the shipowner or salvor whose duties are connected with the ship or the salvage operations, including claims of their heirs, dependants or other persons entitled to make such claims, if under the law governing the contract of service between the shipowner or salvor and such servants the shipowner or salvor is not entitled to limit his liability in respect of such claims'. However, as the CNG and its insurer point out, art 1.3 defines the term 'salvor' as meaning 'any person rendering services in direct connexion with salvage operations'. This does not apply to the situation of the victims at the time of the accident. In addition, they cannot be considered to be the shipowner's employees. Article L 5121-4 of the Transport Code also does not assist the victims. Indeed, this provision refers to crew members - the victims were on board within the framework of a paying internship and carried out manoeuvres under the oversight of a monitor.

The victims invoke intentional or inexcusable fault defined in art 4 of the LLMC 1976 as that committed 'with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result'. The instructor undoubtedly committed a fault of judgment and recklessness in deciding to leave the anchorage in strong winds, in hoisting the mainsail and in entrusting the manoeuvre to an insufficiently experienced and tired student. However, as the CNG and its insurer rightly argue, this fault is not intentional and there is no evidence that the instructor committed this fault knowing that the damage occurred would probably result from it.

From the foregoing, it follows that the limitation of liability provided for by the LLMC 1976 is indeed applicable to the claims arising from the disputed accident and that the constitution of a limitation fund is therefore justified.

On the applicable compensation ceiling, the victims and the MAIF rightly argue that the shipowner's limitation fund is governed by the law in force, not at the date where the damage was caused by the sea event as a result of which it was constituted, but at the date of the order initiating the proceedings. This principle is not in contradiction with art 1 of the First Additional Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms. On the contrary, limitation of liability for maritime claims infringes the victims' right to obtain full compensation for their damage. This impairment is tolerable only on condition that the compensation ceilings are regularly reassessed.

Decree No 2007-1379 of 22 September 2007 introduced into domestic law the 1996 Protocol to the LLMC 1996, which raises the ceiling liability of the owner of a vessel of less than 500 tons for personal injury claims from SDR 166,500 to SDR 1,000,000.

[But see Cour de cassation, civile, Chambre commerciale, 14 juin 2017, N° de pourvoi: 16-12.904 (CMI1224).]