This was an appeal and counter-appeal in cassation against a judgment delivered on 20 November 2018 by the Pau Court of Appeal (1st chamber). During a crossing of the Atlantic organised by the Comité Départemental de Voile de la Charente-Maritime (CDV), M was the victim of a fall while he was on board a pleasure craft captained by E. E was insured for his civil liability with Ace European Group Ltd and Zurich Versicherung AG. M and his insurer, the Mutuelle Assurance des Instituteurs de France (MAIF), sought the liability of CDV and E, who were judicially authorised to constitute a limitation fund.

In the cross-appeal, M and MAIF criticised the Court of Appeal judgment on the basis that, to be enforceable against maritime creditors, the ceiling of the limitation fund must be constituted up to the amount calculated according to the stipulations of arts 6 and 7 of the LLMC 1976 as amended by the Protocol of 2 May 1996. By holding that the fund of limitation of liability of the sailing boat is enforceable for an amount of EUR 284,157.70, the Court of Appeal thus erred.

M and MAIF argued that the limitation fund is covered by autonomous provisions, namely arts 14 and 15.2.b of the LLMC. LLMC 1976 established the regime and the mechanisms of liability applicable in matters of maritime claims, and the 1996 Protocol modified upwards the limits of liability without amending the general mechanism. Limitation of liability is acquired by operation of law for each event causing damage at sea, and is not subject to the constitution by the responsible owner of the limitation fund provided for by art 62 of the Law of 1967. The fund must be established up to the limits set by arts 6 and 7 of the Convention. Article 11 of the Convention explains that any person whose liability may be called into question may constitute a fund with the competent Court for claims subject to limitation and that the fund is constituted up to the amount as calculated in accordance with the provisions of arts 6 and 7. The fund is therefore validly constituted and enforceable when its ceiling is fixed according to the aforementioned methods. Article 13 of the Convention prohibits the creditor from bringing any other action on the property of the person who constituted the fund, but with the proviso that the fund must be constituted in accordance with art 11.

Held: Partial cassation.

In stating that the limitation fund, constituted for a sum of EUR 284,157.50, is enforceable in this amount against M and MAIF, the Court of Appeal judgment held that the limitation fund was validly constituted by an order of the President of the Commercial Court of 27 April 2009, at the request of E, for an initial amount of 166,500 SDRs increased to 250,000 SDRs, by virtue of the provisions applicable to the limitation of the yacht owner's liability.

By ruling thus, whereas it had itself adopted, in accordance with the applicable provisions, the global amount of E's limitation of liability as being the EUR equivalent of 1,500,000 SDRs, the Court of Appeal, ruling that the lesser amount of the limitation fund nevertheless constituted the maximum amount of compensation that could be claimed by the victim, his insurer or the Caisse Primaire d'Assurance Maladie (CPAM) of Haute-Garonne, violated these provisions.

This Court therefore strikes down and annuls the judgment, but only in that it states that the yacht's liability limitation fund was constituted for a sum of EUR 284,157.50 and that it is enforceable for this amount against M, MAIF and CPAM. E and his insurers, the companies Ace European Group Limited and Zurich Versicherung AG, should have increased the fund up to the limit of his liability as shipowner of 1,500,000 SDRs. The proceedings are to be reopened to allow E and his insurers to explain the possibility of revaluing the limitation fund established by order of the President of the Commercial Court of La Rochelle. To that extent, the judgment delivered on 20 November 2018 between the parties by the Pau Court of Appeal is reversed and sent back for rehearing by the Poitiers Court of Appeal.

[For previous proceedings, see Cour de cassation, civile, Chambre commerciale, 8 mars 2017, N° de pourvoi: 15-23.220 (CMI1229).]