This was an appeal in cassation from the Aix-en-Provence Court of Appeal, 8 June 2011. On 15 June 2003, while he was engaged in underwater fishing, Patrick X was fatally injured by the speedboat Dizzy piloted by A, to whom it belonged. X's widow and other affected parties claimed compensation from A and the insurer, Munich Re Capital Ltd. X's widow criticised the Court of Appeal's judgment for having calculated the compensation due by A taking into account the limitation of liability applicable to maritime claims:

1) art 2.1.a of the LLMC 1976 subjects to limitation of liability 'claims in respect of loss of life or personal injury or loss of or damage to property ... occurring on board or in direct connexion with the operation of the ship". This provision does not cover a death caused following the accidental collision of the ship with a diver, an assumption outside the normal 'operation' of the ship. The Court of Appeal thus violated art 2 of the LLMC 1976 and arts 58 and 61 of Law No 67-5 of 3 January 1967 as amended.

2) where the owner and master of a ship commits a fault recklessly and with awareness that damage would probably result from it, that fault excludes any limitation of liability within the framework of art 58 of the Law of 3 January 1967 as amended. A was convicted of sailing at a speed at least twice the maximum authorised speed in the coastal strip of 300 m, in an area usually frequented by swimmers, small boats and divers.

Held: Partial cassation.

Article 2.1.a of the LLMC 1976 makes claims for death and bodily harm directly related to the operation of the ship (the latter expression having the same meaning as navigation and use of the ship used in domestic law: see art 58.1 of the Law of 3 January 1967, now L 5121- 3, para 1, of the Transport Code) subject to limitation of liability. The Court of Appeal correctly held that the accident which claimed the life of Patrick X was in direct relation with the operation of the ship, without having to refer to its normal or abnormal character.

Under art 4 of the LLMC 1976 and art 58.3 of the Law of 3 January 1967, now L 5121-3, para 3, of the Transport Code, limitation of liability is only ruled out if it is proved that the damage resulted from the personal act or omission of the person responsible committed with the intention of causing it or recklessly and with awareness that such damage would probably result. From the facts, the Court of Appeal was able to deduce, without violating the the authority of res judicata by the Criminal Court, that the doctrine of limitation of liability in maritime law should apply.

However, considering arts 58 and 69 of the law of 3 January 1967, now L 5121-3 and L 5121-2 of the Transport Code, together with art L 173-24 of the Insurance Code, it follows that the insurer of the liability of the shipowner can only invoke the benefit of limitation of liability if a limitation fund has been constituted. The Court of Appeal thus violated the aforementioned provisions.

The Court of Appeal judgment is therefore struck down and annulled, but only in that it stated that the appellants have no action against Munich Re Capital Ltd beyond the equivalent in EUR of the sum of 250,000 SDRs. The judgment delivered between the parties by the Aix-en-Provence Court of Appeal on 8 June 2011 is therefore reversed in this respect, and is remitted to the Paris Court of Appeal to be decided correctly.