This was an appeal in cassation from the judgment of the Aix-en-Provence Court of Appeal, 23 October 2003. The vessel Laura, owned by Hansel Schiffahrts GmbH M/S Laura & Co KG, set sail from Chalon-sur-Saône bound for the Italian port of Piombino, and was assisted by a river pilot as far as Saint-Louis du Rhône. The vessel caused damage to the Saint-Romain des Isles bridge by hitting it, was subsequently towed to the lock of Dracé, and was then authorised to proceed to Marseilles to be repaired.

After an insurance company had taken out a first demand guarantee of EUR 914,690.14 in favour of the Departments of Saône-et-Loire and Ain (the Departments), the President of the Commercial Court of Marseille, at the request of the shipowner, constituted a limitation fund provided for by art 58 of the Law of 3 January 1967. Subsequently, the shipowner brought a summary claim against the Departments for restitution of the guarantee. The Court of Appeal allowed the request. The Departments appealed.

The Departments criticised the Court of Appeal judgment on the basis that the shipowner's option to invoke limitation of liability provided for by both the Law of 3 January 1967 and the LLMC 1976 can only apply to maritime liabilities, that is to say liabilities arising during maritime navigation and resulting from the risks specific to maritime navigation. In the present case, the trip during which the accident occurred was exclusively fluvial, even if the destination originally envisaged was different. As was apparent from the documents produced by the owners of the Laura, the first trip mentioned after the accident was indicated as being from Arles to Aveiro in Portugal. The shipowner itself acknowledged that the maritime operations of the Laura did not resume until 31 July 2001 from Arles. The Departments contended that the journey from 22-23 June 2001 between Chalon-sur-Saone and the lock of Dracé, and then from 27 June-7 July 2001 to Port-Saint-Louis du Rhône, was exclusively a river trip. By contenting itself with noting that the Laura usually engages in maritime navigation, that it qualifies as a ship, and that the Laura's journey was planned from Chalon-sur-Saône to the Italian Port of Piombino where the ship had to load new cargo, and without taking into account the actual use of the ship, the Court of Appeal deprived its decision of a legal basis with regard to arts 1 ff of the LLMC 1976, art 58 of the Law of 3 January 1967, and art 455 of the new Code of Civil Procedure. The Departments argued that it did not matter whether the Laura qualified as a ship. Only the actual nature of the voyage should be taken into account.

The Departments further asserted the inexcusable fault of the shipowner in having recourse to the services of an occasional river pilot, who did not speak German, a language understood by the master, or Polish, the language of the crew, whereas the Regulations applicable to inland waterway navigation obligatorily impose a common language between the pilot and the crew. Knowing a few words of German did not make it possible to communicate effectively in order to avoid an accident in the event of a crisis. By deciding that the pilot had sufficient command of German to enable him to communicate normally with the master, without investigating, as the Court of Appeal was invited to do so, whether these notions allowed the pilot to cope in a crisis situation, and therefore if the choice of such a pilot did not constitute an inexcusable fault on the part of the shipowner, the Court deprived its decision of a legal basis with regard to arts 1.4 and 4 of the LLMC 1976, arts 58 and 69 of the Law of 3 January 1967, and art 455 of the new Code of Civil Procedure. It follows from these provisions that limitation of liability is excluded if it is proved that the damage results from a personal fact or omission committed recklessly and with knowledge that damage would probably result. This accident was caused by the absence of communicating the fact that the channel had silted up, and that the ship's manoeuvres were unsuited to the situation. By deciding that it had not been established that the unsuitability of the ship's manoeuvres in this unexpected situation has its origin, even in part, in the pilot's difficulty in communicating with the crew, the Court of Appeal violated the relevant provisions. Finally, the master, the only person who knew the manouevring capacities of the ship, did not react on his own initiative before it was too late. By not investigating whether such facts characterised an inexcusable fault, the Court of Appeal deprived its decision of a legal basis with regard to the relevant provisions.

Held: Appeal dismissed.

On the application of art 58(3) of the Law of 3 January 1967, only a personal fact or omission of the owner, committed with the intention of causing such damage or committed recklessly and with awareness that such damage would probably result, prohibits the latter from limiting its liability. The Court of Appeal noted, on the one hand, that the origin of the accident was due to the absence of signalling of a silting up of the channel and to manoeuvres unsuited to the situation caused by the acceleration of the current which resulted from it; and, on the other hand, that the experience of the river pilot chosen by the owner enabled him to perform his duties and that his command of German enabled him to communicate normally with the master, was able to deduce from this that the faults alleged by the Departments were not demonstrated. The appeal is unfounded.