This was a request for a preliminary ruling under art 267 of the Treaty on the Functioning of the European Union (TFEU) from the French Court of Cassation [see CMI2460]. It concerned the interpretation of arts 2, 3.1, and 7 of 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 accidents (OJ 2009 L 131 p 24) (the Regulation), where a maritime carrier provides a cruise which constitutes package travel within the meaning of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays, and package tours (OJ 1990 L 158 p 59) (the Directive).

The referring Court noted that courts and legal academics are divided on whether the Regulation is applicable to cruises which have the characteristics of a tourism package for the purpose of the Directive.

The liability of organisers of ocean cruises sold as package travel may come under the liability regime established by the Directive. The Regulation does not provide for any derogation from the uniform rules stipulating that the organiser or retailer will automatically be liable which are established by the Directive. In addition, the Directive seeks to ensure better consumer protection. The Regulation concerns only contracts relating to the maritime transport of passengers, and the reference in art 7 of the Regulation to the Directive is limited solely to the obligations of tour operators relating to the provision of information to passengers and does not in any way relate to the liability regime laid down by that Directive.

Furthermore, the liability of the organiser of ocean cruises sold in the form of package travel could be covered by the liability regime laid down by the Regulation, since: first, art 14 of the Athens Convention, to which art 3 of that Regulation refers, provides that no action for damages for the death of or personal injury to a passenger, or for the loss of or damage to luggage, is to be brought against a carrier or performing carrier otherwise than in accordance with that Convention; second, no provision of that Regulation excluded cruises from its scope; and, third, art 7 of that Regulation refers to the Directive.

Moreover, some legal academics maintain that a distinction should be drawn according to whether an accident suffered by a passenger on a cruise relates to the carriage operation itself, in which case the carrier’s liability would come within the scope of the Athens Convention, or to a tourist service provided in connection with that carriage, coming within the scope of the Directive.

In those circumstances, the Cour de Cassation referred the following questions to the Court of Justice for a preliminary ruling:

(1) Must Article 2, Article 3(1) and the first paragraph of Article 7 of [the Regulation], and Annex I thereto, be interpreted as governing the liability of a maritime carrier operating a cruise having the characteristics of a [tourism package for the purpose] of [the Directive]?

(2) If the answer to the first question is in the affirmative, do those provisions of [the Regulation] govern the liability of that operator only where the personal injury relates to carriage by sea?

Held: Articles 3.1, 7, and Annex I to the Regulation, and art 5 of the Directive must be interpreted as meaning that, where a cruise has the characteristics of a tourism package for the purpose of art 2.1 of the Directive, actions for damages relating to personal injury sustained by a passenger on board the cruise ship during carriage by sea, within the meaning of art 2 of the Regulation, are to be governed by the liability regime of the maritime carrier providing the cruise with that ship, as laid down in that Regulation.

Where, as here, consumers who have purchased a package to take a cruise that comes under art 2.1 of the Directive sustain personal injury during the period in which they are on board the cruise ship, and take the view that that injury is due to non-performance or improper performance of the package contract, they have a choice of bringing two types of actions for damages.

First, in accordance with art 5 of the Directive, consumers may bring an action for damages against the organiser of that package cruise in order to obtain compensation.

However, against such a claim for compensation, the organiser may rely on the limits of compensation provided for in arts 3 and 7 of the Athens Convention, which are binding on the Member States pursuant to the combined application of art 3 of the Regulation and art 5.2 of the Directive, and which, in the event of death or personal injury, go beyond the limits of art 5.2.

It is for the referring Court to assess whether or not the personal injuries of the consumers on board the cruise ships is due to a shipping incident, within the meaning of art 3.5 of the Athens Convention, and, in the event that they are not, whether they have shown that the incident which caused their loss was due to the fault or neglect of the carrier or of its servants acting within the scope of their employment.

Second, the consumer may bring an action for damages on the basis of the Regulation and the Athens Convention directly against the carrier that actually carried out the carriage by sea, even where the latter is not the organiser of the package cruise.

Since art 14 of the Athens Convention, which is applicable to Member States pursuant to art 3.1 of the Regulation, provides that no action for damages against the carrier for, among other things, personal injury is to be brought otherwise than in accordance with that Convention, the carrier may rely on the limitations of its liability provided for in arts 3 and 7 of that Convention.

In so far as a passenger participating in a cruise brings each of those actions for damages, the compensation obtained as a result of one of those actions must be taken into account when assessing the compensation sought in the context of the other action in order to prevent the passenger from obtaining, by means of those actions for damages, compensation greater than that corresponding to the loss suffered.