This was an appeal in cassation against the judgment of the Bordeaux Court of Appeal, 10 June 2015. On 8 June 2008, Michel X was the victim of a fall aboard the pleasure vessel Motus captained by Y during a crossing of the Atlantic organised by the Comité Départemental de Voile de la Charente-Maritime (CDV). Mr X and his insurer, the Mutuelle Assurance des Instituteurs de France (MAIF), claimed against the skipper and the CDV. The master and its insurers were judicially authorised to constitute a limitation fund.

Mr X criticised the Court of Appeal judgment for holding that Mr Y had not committed an inexcusable fault and, consequently, for allowing him to constitute an enforceable limitation of liability fund. The limitation of liability provided for by the LLMC 1976 and the Law of 3 January 1967 cannot be invoked by the liable person when it is proved that the damage results from a personal act or omission, committed with the intention to cause such damage, or recklessly and with knowledge that damage would probably result. Inexcusable fault may result from a conjunction of elements which, taken together, show reckless conduct and with the objective awareness that damage is likely to result. In this case the Court of Appeal, by limiting itself to ruling out the inexcusable fault committed by the skipper, whose incompetence was nevertheless noted, on the basis that uncertainties remained as to the exact causes of the fall of Mr X, and that the voyage had already lasted for more than a month, which gave the crew a certain experience, without investigating, as the Court was invited to do, whether the inexcusable fault committed by the skipper resulted from the conjunction of his incompetence, of his negligence in keeping his quarters at the helm, of his ignorance in the use of the ship's navigation software, and of his inability to impose his leadership on the crew and to enforce discipline, did not give a legal basis for its decision with regard to art 4 of the LLMC 1976, together with art 58 of Law no 67-5 of 3 January 1967.

Mr X also contended that art 11 of the Protocol of 2 May 1996 amending the LLMC 1976, and its publication in Decree n° 2007-1379 of 22 September 2007 was applicable, whereas the Court of Appeal judgment, in setting the amount of limitation of liability enforceable against Mr X at 250,000 special drawing rights of the International Monetary Fund (SDRs), held that it was only from the date of entry into force of the Transport Code that the modification of liability ceilings had been incorporated into domestic law.

Held: Partial cassation.

After noting that the cause of Mr X's fall, which occurred during his movement on the ship to replace a member of the crew at the helm, could not be determined between the movement of the bar or a strong swell, the judgment held that the insufficiencies of Mr Y in his role of skipper, even if they were proven, should not lead to a holding that he acted intentionally or recklessly with awareness that the damage would probably occur. The Court of Appeal, which thus carried out the research invoked, legally justified its decision.

However, in ruling that the Protocol of 2 May 1996 which modified the ceilings set out in art 6 of the Convention and to which art 61 of the Law of 3 January 1967 relating to the status of ships refers, entered in force on 23 July 2007, the Court of Appeal violated art 11 of the Protocol of 2 May 1996. Having regard to arts 61 and 64, last para of the Law of 3 January 1967 relating to the status of ships, together with arts 6.1.a.i and 6.1.b.i of the LLMC 1976 in the wording resulting from the amending Protocol of 2 May 1996, which is applicable in this case, it follows that in domestic law, the liability limit of the captain of a vessel with a tonnage of less than 300 tons is equal, in the case of claims for bodily injuries, to 1,000,000 SDRs and, for other claims, 500,000 SDRs; and that, if the amount of the first ceiling is insufficient to settle the totality of the compensation due to the victim of bodily injuries, the balance of this compensation is paid, in competition with the other claims, within the limit of the second ceiling.

The judgment, after noting that the Protocol of 2 May 1996 had not made any modification to the limit of liability specific to ships of a tonnage lower than 300 tons, held that the CDV was required, by virtue of its duty to advise, to inform Mr X of the limitations of liability resulting from the LLMC 1976, which allows for a limitation to 250,000 SDR of the compensation amount, and to advise him to take out additional insurance. By determining thus, without taking into account the new applicable compensation ceilings, according to which the possible breach of a duty to advise in matters of insurance had to be characterised, the Court of Appeal deprived its decision of a legal basis.

For these reasons, the judgment rendered on 10 June 2015 between the parties by the Bordeaux Court of Appeal is struck down and annulled, except in that it declares admissible the interventions of the liability insurers of Mr Y, ACE European Group Ltd and Zurich Versicherung AG; its findings as to the expert reports; its finding that Mr Y is responsible for the injury of Mr X on the basis of art 1384(1) of the Civil Code; its fixing of the damage suffered by Mr X to the total sum of EUR 1,206 603.87 euros; and its finding that Mr Y did not commit an inexcusable fault in having caused the accident of Mr X. Accordingly, on the other points, the judgment is reversed, and the case and parties are returned to the position they were in before the judgment. The case is remitted to the Pau Court of Appeal to be decided correctly.

[See further Cour de cassation, civile, Chambre commerciale, 25 novembre 2020, N° 19-11.430 (CMI1199).]