On 29 February 2016, Mr and Ms I booked a tourist package from the SAS Voyages Rive Gauche travel agency, including a sea cruise in the Mediterranean on the theme of Ancient Greece and Meteora from 17-29 May 2016, on the Costa Neoclassica, a cruise ship owned by Costa Crociere SpA (the carrier). On 19 May 2016, Ms I participated in a table-tennis activity organised by the carrier. While running to retrieve a ball, Ms I hit a metal bar making up the structure of a staircase and injured her face. Ms I received immediate medical care from the onboard doctor. On 3 June 2016, she was X-rayed at a private hospital, which revealed no lesion or abnormality. Finally, on 30 June 2016, she had a brain scan which revealed no signs of post-traumatic subdural hematoma or head trauma.

On 2 June 2016, Ms I mandated her insurer, MACIF, to claim compensation on her behalf. MACIF sought compensation from the travel agency for its insured. The travel agency denied all liability on the basis that the accident declared by Ms I was caused by inattention and recklessness on her part. The travel agency's insurer, Hiscox, also refused compensation for the same reasons.

Ms I then sued the travel agency under art L 211-16 of the Tourism Code, as well as the relevant health insurer Caisse Primaire d'Assurance Maladie (CPAM) in the Etampes District Court, seeking EUR 8,226.98. That Court declared itself incompetent and referred the case to the Évry High Court. The travel agency required the intervention of the carrier. On 16 November 2020, the Évry High Court dismissed Ms I's claims.

Ms I appealed. The carrier cross-appealed, requesting the Court of Appeal to transmit 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 appeal and cross-appeal are dismissed.

Article L 211-16 of the Tourism Code provides that a professional who sells a tourist package is automatically responsible for the execution of the services provided for in that contract, whether those services are carried out by itself or by other travel service providers, without prejudice to its right of recourse against the latter. However, the professional may exempt itself from all or part of its liability by providing proof that the damage is attributable either to the traveller or to a third party unrelated to the provision of the travel services included in the contract, and is of an unforeseeable or inevitable nature, or occurred in exceptional and unavoidable circumstances. Services include the organisation of a maritime cruise, accommodation, the provision of catering services, the organisation of entertainment on the ship, and excursions. These constitute a tourist package within the meaning of art L 211-2 of the Tourism Code, the provisions of which are therefore applicable.

If the Law of 13 July 1992 n° 92-645, now codified in arts L 211-1 ff of the Tourism Code, does not expressly mention or exclude sporting activities, it follows from its general scheme that the legislator did not wish to extend the legal responsibility of travel agencies for the proper execution, directly or through an intermediary, of contractual services to activities in which the participants have an active role, and in which these service providers do not, as a consequence, exercise control.

With regard to the evidence produced during the proceedings (claims declaration, medical report, photographs, as well as testimonies produced) only the lack of attention of Ms I is at issue. The presence of the anti-collision bar was indicated by the affixing of bright orange protective foam in order to draw the passengers' attention to this risk. Ms I was distracted while trying to catch a table-tennis ball, and there is no evidence to suggest that her fall was attributable to any cause other than the victim's lack of caution and attention, since the cruise organiser had respected its safety obligation by sufficiently signalling the risk that the accident area could present. The judgment below is thus confirmed on this point.

As for the carrier, it follows from art 267.b of the Treaty on the Functioning of the European Union (TFEU) that a national Court seized of a request has the option, but not the obligation, to refer a matter to the CJEU if it considers that the case pending before it raises questions involving an interpretation of provisions of EU law requiring a decision on its part. However, in this case, the dispute before the Court does not require a preliminary question to be submitted to the CJEU as to the interpretation of the scope of application of EU standards invoked by the carrier. This request is rejected.

The Athens Convention 1974 was concluded within the framework of the International Maritime Organization (IMO) by several States including France, for the purposes of unification of 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 by the 2002 Protocol. Regulation (EC) 392/2009 of the European Parliament and of the Council of 23 April 2009, relating to the liability of carriers of passengers by sea in the event of an accident, aims to harmonise the rules concerning the liability and insurance of shipping companies carrying passengers by sea and introduces into EU law the provisions of the Athens Convention 1974 (as amended by the London Protocol of 2002) as well as the IMO Guidelines. Article 12 of the Regulation provides for its entry into force on the day following that of its publication in the Official Journal of the European Union, from the date of entry into force of the Athens Convention for the Community, and in any case no later than 31 December 2012. This Regulation has therefore been applicable since that date in France, notwithstanding the absence of any law of transposition and adhesion to the Athens Convention at that time. The regime established by the European Regulation has therefore co-existed, since 2012, with the regime of the provisions of arts L 211-1 ff of the Tourism Code concerning travel agents and other operators in the sale of trips and stays, and more particularly tourist packages.

The provisions of arts L 211-1 ff of the Tourism Code also derive from EU law, and in particular from the transposition into French law of Council Directive No 90/314/EEC of 13 June 1990, concerning travel, package holidays, and tours. However, the hierarchy of standards and the principle of primacy of EU law, regularly recalled by the CJEU, impose a duty on national courts of Member States of the EU to apply the directly applicable Regulation and to derogate the provisions of the Tourism Code incompatible with this Regulation.

Article 2 of EC Regulation No 392/2009, which defines its scope of application, states that it applies to all international transport within the meaning of art 1.9 of the Athens Convention, as well as transport by sea within a single Member State on board Class A and B ships under art 4 of Directive 98/18/EC when, in particular, the ship flies the flag of a Member State or is registered therein, which is the case here as the vessel that transported Ms I belongs to a company incorporated under Italian law, and is registered in Italy. Article 1.9 of the Convention defines international transport as any transport whose place of departure and place of destination are, according to the transport contract, located in two different States or in a single State if, according to the transport contract or the planned itinerary, there is an intermediate port of call in another State.

In this case, the applicability criteria of Regulation (EC) No. 392/2009 are met to the extent that:

• the transport contract relating to the cruise during which the accident took place was concluded in a State of the European Union, since Mr and Ms I and the travel agency are all domiciled in France;
• according to the planned itinerary, the departure and arrival of the cruise took place in a Member State, France, and the cruise was punctuated by stopovers and intermediate excursions in various different countries, so that the accident undoubtedly occurred during maritime 'international transport' within the meaning of art 1.9 of Annex I to the Regulation;
• finally, the accident took place after the entry into force of the Regulation.

The first instance Judges therefore erred in ruling out the application of Regulation (EC) 392/2009 of the European Parliament and of the Council of 23 April 2009 relating to the liability of passenger carriers by sea in favour of the Tourism Code and its arts L 211-1 ff. In the context of a claim for compensation for physical injury made by a cruise ship passenger following an accident on board, this European Regulation is the only applicable regime. Indeed, by virtue of the principle of the primacy of EU law, this regime automatically prevails over that provided for in art L 211-16 of the French Tourism Code, since the latter is incompatible with it.

Article 3 of the Regulation states that 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'. Article 3.2 of the Athens Convention provides that in the event of damage resulting from the death or physical injury of a passenger not caused by a maritime event, the carrier is liable if the event giving rise to the damage was attributable to the fault or negligence of the carrier, adding that the 'burden of proving fault or neglect shall lie with the claimant'.

Thus the regime of liability for proven fault applies to the claims for compensation made by Ms I against the carrier. The Court finds that the lack of attention of Ms I was the sole cause of her injury. It has not been established that the ping-pong table, located on the deck, was installed at an insufficient distance from the staircase structure in question, and in an insufficiently lit place. The allegation that the participants in the activity did not receive any particular instructions and were not supervised, is not justified by any document, and is further refuted by the evidence produced by the appellant herself.