This was an appeal in cassation from the judgment of the Angers Court of Appeal, 21 October 2009, delivered on referral after cassation (Première Chambre Civile, 8 juillet 2004, n° 03-14.523). During a scuba diving exercise on 31 May 1997, Jean-Pierre Y fell in the water when the ship Licorne, transporting the group of divers which he was part of was carrying out a manoeuvre, and he was seriously injured by the propeller of the engine. He sued the shipowner, the Association Sportive Municipale et Communautaire de Brest (the Association), and its liability insurer, Axa France IARD. On 7 March 2006, the referral Court of Appeal ordered a medical expert report after having declared the Association responsible for the accident, and decided that its insurer was required to guarantee within the limit of the contractual compensation ceiling, ie the equivalent in EUR of FRF 20 million, including FRF 5 million for material damage. After the filing of the expert report, proceedings were resumed, Jean-Pierre Y having died, by his wife and children (consorts Y), while the Association and its insurer invoked the legal limitation of the shipowner's liability and were judicially authorised to set up a limitation fund.

The consorts Y and the Caisse Primaire d'Assurance Maladie du Finistère (CPAM) criticised the judgment for having limited the compensation payable by the Association and its insurer to an amount lower than that of the damage. The judgment of 7 March 2006 clearly and definitively ruled on the ceiling of the guarantee owed by the insurer. By imposing a limitation on this guarantee in application of the LLMC 1976 and the Law of 3 January 1967, the Court of Appeal violated art 1351 of the Civil Code.

Held: Partial cassation.

Having regard to arts 61 and 64 of Law No 67-5 of 3 January 1967 relating to the status of ships, together with arts 6.1.a.i, 6.1.b.i and 6.2 of the LLMC 1976, in its wording prior to the amending protocol of 2 May 1996, it follows that the limit of liability of the owner of a vessel with a tonnage less than 300 tons is equal, for claims for bodily injuries, to 166,500 special drawing rights of the International Monetary Fund (SDRs) and, for other claims, to SDR 83,500; 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.

By limiting the amount of damages due to the consorts Y to EUR 190,016.89, the judgment, after noting that the Licorne weighed 16.3 tons, appears to have held that compensation for death or bodily injury under the LLMC 1976, which would provide for a base of 330,000 units of account (SDRs), must be combined with the allowance for compensation for other claims, which provides for a base of 167,000 units of account (SDRs). Moreover, the Court held that art 61 of the Law of 3 January 1967, for ships of less than 300 tons, fixes an liability limit of half of that stipulated in art 6 of the Convention. The consorts Y were entitled to be compensated within the overall limit of 250,000 SDRs, representing the addition of the two compensation ceilings. Further, the Court of Appeal calculated for the first ceiling an amount of 165,000 SDRs instead of 166,500 SDRs, and thereby violated the aforementioned provisions.

The judgment delivered on 21 October 2009 between the parties by the Angers Court of Appeal is thus struck down and annulled, but only in that it condemns in solidum Axa France IARD and the Association Sportive Municipale et Communautaire de Brest to compensate the consorts Y within the limit of EUR 190,016.89, including provisions already paid, interest and costs. The case and the parties are returned to the position they were before the aforementioned judgment, and the case is remitted to the Poitiers Court of Appeal to be decided correctly.