On 11 August 2011, Martine X fell during a sea excursion on the boat Prupia, operated by Compagnie Maritime CMPV (CMPV), in the Gulf de Valinco near a site called Bird Island. The accident was allegedly caused by a sudden swell generated by another vessel, the tug Abeille Flandre. Ms X was transported to Sartene hospital, and then to the Saint Léonard clinic in Angers where a fracture of the external malleolus was diagnosed and operated on. Ms X summoned CMPV before the President of the Ajaccio Tribunal de Grande Instance with a view to obtaining an expert medical report and provisional compensation. On 21 May 2013, the summary Judge rejected her application and ordered a medical report, which was filed on 25 October 2013.

On 9 January 2014, Ms X summoned CMPV, the captain of the tug Abeille Flandre in his capacity as representative of the shipowners and/or charterers of the tug, the Caisse Primaire d'Assurance Maladie d'Angers, and the Orchester National des Pays de la Loire, her employer, before the Ajaccio Tribunal de Grande Instance, in order to obtain the approval of the expert report and an order as to the joint and several liability of CMPV and the captain of the tug Abeille Flandre. The Court noted that Ms X did not intend to avail herself of the compensation scheme governed by Regulation (EC) No 392/2009 of the European Parliament and of the Council of 23 April 2009 on the liability of carriers of passengers by sea in the event of an accident, and did not provide any information to the Court to enable it to determine whether these provisions applied. The Court found that Ms X had not proven that CMPV had committed a fault to engage its legal responsibility, and rejected her application for compensation from CMPV as well as from the captain of the Abeille Flandre.

Ms X appealed. Ms X's appeal was based on arts 1134 ff of the Civil Code. She noted that the European Regulation EC No 392-2009 of 23 April 2009, having entered into force on 31 December 2012, was not applicable on the day of the accident on 11 August 2011. For its part, CMPV contended that the maritime transport of passengers was governed exclusively by arts L 542-1-L 5421-8 of the Transport Code.

Ms X maintained that under the provisions of the Civil Code, the safety obligation weighing upon the maritime carrier was an obligation of strict liability. She asserted that the boat was not stationary at the time of the accident and, referring to arts 7 and 8 of the Athens Convention 1974, to which the European Regulation of 23 April 2009 refers, argued that CMPV was not insured, that the carrier gave the passengers no information on their rights under the aforementioned Regulation, and above all that they did not ask the passengers to sit down when observing the large waves caused by the passing tug.

CMPV maintained that the obligation of the maritime carrier is a fault-based obligation which can only be engaged for lack of diligence or fault of the carrier or its employees, the proof of which is incumbent on the applicant. CMPV pointed out that the appellant referred only to the rapid passage of the tug Abeille Flandre and the violent waves. The Prupia did not perform an inappropriate manoeuvre, and the members of the crew issued safety instructions to the passengers prior to the departure of the boat.

The captain of the tug Abeille Flandre maintained that in view of the density of maritime traffic, it was up to the captain of the Prupia to ensure increased vigilance and to respect the collision prevention rules and safety of its anchorage, even if the vessel was stopped, specifying that this lack of watchfulness constituted a fault. He argued that in the present case, the captain of the Prupia was not keeping watch since he did not warn his passengers of the passage of another ship.

Held: Stay of proceedings.

The liability of maritime passenger carriers is subject to a legal regime provided for by domestic law, in provisions codified in the Transport Code and by international law, so that the supplementary rules of the Civil Code are not applicable in the matter, as the Judges below correctly held. In addition, it is indisputable, moreover admitted by both parties, that Community Regulation 392/2009 of 23 April 2009 had not yet entered into force on the date of the accident in question, and the Regulation would not have covered the Prupia in any event.

The victim of the accident must provide proof of the fault of the carrier. The documents produced by all the parties did not make it possible to prove that CMPV had committed a breach of its obligations. In the absence of new elements, the Court considers that the first Judges correctly held that Ms X did not prove that a fault had been committed by CMPV.

With regard to the lack of insurance alleged by the appellant, it appears from the documents that CMPV was in fact insured with the Budd Group, of which Ms X had full knowledge.

Regarding the lack of safety instructions alleged by the appellant, it appears that safety instructions were announced after the embarkation of the passengers, and an announcement was made to explain that the waves had been caused by an ocean-going tug which was sailing towards the open sea.

With regard to the lack of vigilance alleged by the captain of the Abeille Flandre, it follows from all the statements made in the proceedings that the tug was offshore and should not have passed near the Prupia under these conditions. The captain of the Prupia could not predict that the tug was going to generate large waves that could cause the boat to move. He also had no special reason to warn his passengers of the presence of this tug and to remind them of the safety instructions previously communicated.

It therefore follows from the circumstances of the accident that the occurrence of the large waves caused by the tug was not foreseeable before Ms X's fall, for which CPMV cannot, in any respect, be held responsible.

In respect of the liability of the captain of the tug Abeille Flandre, the trial Judge held that there was no contractual link between the captain and Ms X, so the provisions of the Civil Code invoked by the appellant, namely arts 1135 and 1138, were inapplicable in this case. Article L 5131-1 of the Transport Code was also deemed inapplicable, on the grounds that the accident suffered by Ms X was not caused by a collision. In view of the documents submitted for his assessment, the Judge held that it was impossible to determine whether the tug had performed a false manoeuvre, omitted to perform a manoeuvre, or even violated a specific regulation.

Before this Court, the appellant requests that CMPV and Bourbon SA be held jointly and severally liable. Bourbon SA, a legal person, was not a party in the first instance and was not called into question. Pursuant to art 954 of the Code of Civil Procedure, the Court is required to rule on the claims set out in the operative part of the submissions of the parties. However, on the one hand, Bourbon SA is not a party to the cause, so no decision can be taken concerning this company; and on the other hand, the appellant no longer seeks a judgment against 'the captain of the tugboat Abeille Flandre in his capacity as representative of shipowners and/or charterers'.

It is therefore appropriate to invite the parties, and in particular Ms X, to explain themselves on this point. A decision on the other applications of the parties will be stayed in the meantime.