Ms G Y took a four-day cruise in the Mediterranean in September 2014, organised by the Italian company Costa Crociere SpA (Costa). On 22 September 2014, a metal brochure rack near the ship's dining room door fell onto Ms Y's left side. She was examined in the ship's infirmary and then had an ultrasound of her shoulder and left arm carried out on 26 September 2014, revealing a small bruise.

Ms Y sued Costa and the Caisse Primaire d'Assurance Maladie de Salon-de-Provence (CPAM) in the Nanterre High Court for compensation for her injury. By judgment of 1 April 2021, Court declared Ms Y's claims admissible under arts L 211-1 ff of the Tourism Code, and ordered Costa to pay Ms Y damages for her pecuniary and non-pecuniary losses.

Costa appealed, and asked the Court of Appeal to refer to the Court of Justice of the European Union (CJEU) the following preliminary question:

Where the operator of a cruise ship qualifying as a 'carrier' within the meaning of Regulation (EC) 392/2009 against whom claims for compensation are made by the passenger of the said ship, as a result of an accident occurring on board the said ship, is also acting as a package travel organiser:

- does it remain subject to the liability regime implemented by these European standards;

- or is it exclusively subject to that regime resulting from the transposition of Directive 90/314/EEC of 13 June 1990, now replaced by Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 relating to travel packages and related travel services?

The carrier asked the Court of Appeal to stay its ruling pending the decision of the CJEU to intervene on this preliminary question.

Held: The first instance decision is confirmed, and the application to refer a preliminary question to the CJEU is denied.

Costa argues that the CJEU has sole jurisdiction to rule on the interpretation of acts taken by the institutions, bodies, or agencies of the Union and that in this case it is necessary to determine the scope of application of EC Regulation No 392/2009 of 23 April 2009 and the Athens Convention 1974. Costa maintains that in fact it is necessary to apply this Regulation and the Athens Convention to the present situation since the accident occurred during international transport within the meaning of these texts. The principle of primacy of community law requires that they prevail over art L 211-16 of the French Tourism Code. Costa argues that arts L 211-1 ff of the Tourism Code apply to cruises for the liability regime in the event of cancellation, delay, or damage occurring in the event of shore excursions, while the Regulation governs actions for compensation relating to bodily injury suffered by passengers during a cruise. Costa maintains that the fact that it is a cruise organiser, and that this cruise may have had the characteristics of a tourist package, has no impact on that analysis.

Ms Y and her insurer contend that no interpretation of Community law is necessary, as the Court of Cassation systematically applies the articles of the Tourism Code and full liability in the context of tourist packages. They argue that Regulation No 392/2009 and Directive No 90/314/EEC (on package tourism) are hierarchically equivalent, the first text governing the liability of carriers of passengers by sea in the event of an accident, while the second determines the applicable regime, travel, vacations and package tours, expressly derogating from the Athens Convention and the subsequent Regulations and establishing a consumer protection regime. They maintain that arts L 211-1 ff of the Tourism Code comply with Directive No 90/314/EEC, and are therefore applicable.

Council Directive 90/314/EEC of 13 June 1990, concerning package travel, holidays and tours, aims to protect the consumer. It allows the national legislator to provide for a stricter regime with this objective, and it is intended to apply to maritime cruises since reference is made to 'the Athens Convention of 1974 relating to transport by sea'. This Directive was transposed into national law by the Law of 13 July 1992, currently codified in arts L 211-1 ff of the Tourism Code.

The Athens Convention, relating to the carriage by sea of passengers and their baggage, was concluded on 13 December 1974 within the framework of the International Maritime Organisation (IMO) by different States including France for the purposes of unifying the national rules applicable to the liability of carriers of passengers by sea in the event of an accident and compensation for damage suffered by passengers. It was amended in London. according to the protocol of 1 November 2002. Regulation (EC) No 392/2009 of the European Parliament and of the Council of the European Union of 23 April 2009 relating to the liability of carriers of passengers by sea in the event of an accident aims to establish a single set of rules governing the rights of maritime carriers and their passengers in the event of an accident. According to art 2:

This Regulation shall apply to any international carriage within the meaning of point 9 of Article 1 of the Athens Convention and to carriage by sea within a single Member State on board ships of Classes A and B under Article 4 of Directive 98/18/EC, where:

(a) the ship is flying the flag of or is registered in a Member State;

(b) the contract of carriage has been made in a Member State; or

(c) the place of departure or destination, according to the contract of carriage, is in a Member State.

Member States may apply this Regulation to all domestic sea-going voyages.

Article 3 of the Regulation, entitled 'liability and insurance', provides the following:

1. The liability regime in respect of passengers, their luggage and their vehicles and the rules on insurance or other financial security shall be governed by this Regulation, by Articles 1 and 1bis, Article 2(2), Articles 3 to 16 and Articles 18, 20 and 21 of the Athens Convention set out in Annex I and by the provisions of the IMO Guidelines set out in Annex II.

2. The IMO Guidelines as set out in Annex II shall be binding.

Article 3.2 of the Athens Convention, entitled 'liability of the carrier', provides that for 'the loss suffered as a result of the death of or personal injury to a passenger not caused by a shipping incident, the carrier shall be liable if the incident which caused the loss was due to the fault or neglect of the carrier. The burden of proving fault or neglect shall lie with the claimant', therefore establishing a system of liability for the carrier for proven fault.

The wording of these provisions makes it possible to note that Regulation No 392/2009 governs international maritime transport and the contracts relating to it in general, and therefore does not concern tourist packages. Its application does not contravene the consumer protection regime established by the Directive, which is hierarchically equivalent. The determination of the applicable liability regime therefore depends on the existence of a tourist package and it is not necessary to proceed to an interpretation of competing standards of European law since the above-mentioned texts are sufficiently clear. The request from Costa to refer a preliminary question will therefore be rejected.

In this case, the cruise in which Ms Y participated displays the characteristics of a tourist package within the meaning of art L 211-2 of the Tourist Code since it combined, as part of a sale at an all-inclusive price, transport, accommodation and other tourist services (catering, organisation of activities, programming of excursions). It is therefore right that the first instance Judges applied the liability regime provided for in art L 211-16 of the Tourism Code, and the referred judgment will be confirmed on this basis. Ther compensation awarded to Ms Y by the first instance Court is also confirmed.