This was an appeal in cassation from the judgment of the Aix-en-Provence Court of Appeal, 10 October 2001. The vessel Multitank Arcadia was owned by a company incorporated under German law, Partenreederei Multitank Arcadia, was chartered by Alefaio X, and was managed by a company incorporated under Cypriot law, CF Ahrenkiel Ship Management. During a docking manoeuvre, the vessel struck and damaged the facilities of the Autonomous Port of Marseille and those of the companies Mavrac, BP Chemicals, Naphtachimie, Geogaz Lavera, Elf Atochem, Oxochemie, of the Gexaro Economic Interest Group (the GIE) and the Compagnie Parisienne des Phosphates.

The respondents brought claims against the shipowner, the charterer, and the manager of the vessel, as well as the master commanding this vessel, both in his personal capacity and as the representative of the shipowners or charterers of the vessel, for compensation for their damage. They argued that the appellants were not entitled to limit their liability under the LLMC 1976 as a result of art 4, which provides that a 'person liable shall not be entitled to limit his liability if it is proved that the loss resulted from his personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result'.

Held: Cassation.

Having regard to arts 1.4 and 4 of the LLMC 1976, the Court of Appeal's finding was limited to holding that the damage caused by the vessel arose from the failure of a bow thruster due to a failure of the power supply to the thruster which was caused by the malfunction of one of the two generators in action during the docking manoeuvre, and that the ship management should have ensured that this manoeuvre was carried out in optimal safety conditions by giving permanent instructions to the ship to start all three generators. The master also said that he thought, without being sure, that the third generator set in reserve was automatically coupled by default in the event of failure of one of the generators in service. These factual determinations were insufficient to establish that the owner, the charterer, and the manager of the vessel, as well as the master, commanding this vessel ex officio, had acted recklessly and with awareness that damage would probably result from it. The Court of Appeal thus did not give a legal basis for its decision.

The judgment delivered on 10 October 2001 between the parties by the Aix-en-Provence Court of Appeal is therefore struck down and annulled, the case and parties are returned to the position where they were before the aforementioned judgment, and the case is remitted to the Court of Appeal of Montpellier to be decided correctly.

[For previous related proceedings, see Cour de Cassation, Chambre commerciale, 12 novembre 1997, N° de pourvoi: 95-19.285 (CMI1306).]