Mr and Ms Z were on board the Costa Diadema to participate in a 'Thousand and One Nights' cruise scheduled to end on 25 January 2020. On 21 January 2020, Ms Z injured herself after falling onto the floor of the ship. She was taken to hospital the next day and repatriated to France on 23 January 2020. Ms Z tried, in vain, to obtain compensation for her injury from the defendant company who had sold her the cruise. In February 2021, Ms Z brought an action against the defendant and the CPAM des Bouches du Rhône, based on arts L211-16 of the Tourism Code and L5421-2 and L5421-3 of the Transport Code.

The defendant contended that the applicable regime was that resulting from EC Regulation No 392/2009 and the Athens Convention 1974 [as amended by the 2002 Protocol] which it transposes, in so far as the transport contract was concluded in an EU Member State, the accident occurred after entry into force of the Regulation, and occurred during 'international transport', with the ship flying the Italian flag, and the cruise having started in Dubai and having made stops in Oman and Qatar. The defendant argued that this European standard takes precedence over the regime provided for in art L211-16 of the Tourism Code, which is incompatible with it. It considered that arts L5421-2 and L5421-3 of the Transport Code were inapplicable to the present case.

The defendant maintained that the liability regime resulting from this Regulation requires proving fault against it, which had not been done. It had not been proven that the floor was slippery or wet and that this was the cause of the fall. The floor was in perfect condition and had no defects. The fall was caused by a lack of attention on the part of the passenger, characterised by the fact that she was walking in open-toed high-heeled sandals without paying any attention to her surroundings.

Held: Judgment for the defendant.

Article L 211-16 of the Tourism Code provides that a professional who sells a tourist package is fully liable for the performance of the services provided for in this contract, whether these services are performed by itself or by other travel service providers, without prejudice to its right of recourse against them. The service, including the organisation of a sea cruise, accommodation, the provision of catering services, the organisation of entertainment on the ship, and excursions, constitutes a tourist package within the meaning of Article L 211-2 of the Tourism Code.

Articles L 5421-2 and L 5421-3 of the Transport Code provide that:

The carrier is required to put and keep the ship in a seaworthy condition, properly equipped, equipped and supplied for the voyage in question and to take all due care to ensure the safety of the passengers. It is liable for damages due to delays resulting from non-compliance with the provisions of the preceding paragraph or from the commercial fault of his employees.

A personal injury occurring during a journey, or during embarkation or disembarkation operations, either at the ports of departure or destination, or at the ports of call, shall give rise to compensation from the carrier, if it is established that it has contravened the obligations prescribed by the provisions of Article L 5421-2 or that a fault has been committed by itself or one of its employees.

By contrast, Regulation (EC) No 392/2009 of 23 April 2009 establishes a European Community regime of liability and insurance applicable to the carriage of passengers by sea as provided for by the Athens Convention 1974, as amended by the 2002 Protocol. It applies to all international carriage where the ship flies the flag of a Member State or is registered in that Member State, the contract of carriage was concluded in a Member State, or under that contract the place of departure or destination is in a Member State.

It refers to art 3.2 of the Athens Convention 2002 which provides that:

For the loss suffered as a result of the death of or personal injury to a passenger not caused by a shipping incident, the carrier shall be liable if the incident which caused the loss was due to the fault or neglect of the carrier. The burden of proving fault or neglect shall lie with the claimant.

Here, the criteria for the applicability of Regulation No 392/2009 are met in so far as the transport contract was concluded in a European Union State, since Mr and Ms Z are domiciled in France; it concerns international transport, since the cruise included stopovers in several countries (United Arab Emirates, Qatar, Oman); and the ship concerned, the Costa Diadema, flies the flag of a Member State, namely Italy. The accident on 18 January 2020 occurred after the entry into force of the Regulation.

By virtue of the principle of primacy of Community law, this regime prevails over that provided for in French law in Art L 211-16 of the French Tourism Code, the latter being incompatible since it implies strict liability. As a consequence, fault or neglect on the part of the defendant must be demonstrated. The evidence does not establish this. The carrier is therefore not liable.