Cour de cassation, Section commerciale

The Court:

Given that appeal was brought by Transports maritimes de l’Etat from the decision of the Tribunal de commerce of Marseilles of 11 July 1947 in so far as it gave judgment for the Brossettes …

On the first ground of application for review: Given that the steamer Lamoricière, bound from Algiers to Marseilles on 9 January 1942, was caught in an extremely violent storm off the Balearic Islands and was lost with all hands, including M. Brossette, a passenger; that his widow, Mme Brossette, acting for herself and as tutor for her minor son, and Bastard, tutor of her children by an earlier marriage, acting as subrogee, sued the Compagnie générale transatlantique and the Transports maritimes de l’Etat for compensation for the consequent damage; that the Tribunal de commerce of Marseilles on 11 July 1947 refused to apply article 1384, dismissed the claim against the Compagnie générale transatlantique and held the Transports maritimes de l’Etat liable in full for the damage suffered by the Brossettes; that on 5 January 1949 the Court of Appeal at Aix affirmed the decision to dismiss the claim against the shipowner, held that the Transports maritimes de l’Etat were not at fault so as to be liable under article 1382, but accepted that in principle they were liable under article 1384(1), exonerating them, however, as to eighty per cent by reason of the fact that the accident was principally due to external causes for which they were not answerable;

Given that the decision is criticised for holding that the regular courts had jurisdiction over the French state, as gardien of the vessel, so as to hold it even partially liable to the victim’s representatives; but given that if the charterparty and contract of management formed pursuant to article 21 of the Law of 11 July 1938 had the effect of transferring to the state the management of the merchant marine with all its profits and losses and so to create a real public service, nevertheless it is not the case that all litigation between the State as carrier and third parties must go before the administrative courts; that the decision under attack was correct to hold that the contract of carriage between Brossette and the Transports maritimes de l’Etat was no different from a contract he could have made with a normal shipowner, the management of the vessel by the Transports maritimes de l’Etat being subject to the rules of private law and the jurisdiction of the ordinary courts; From which it follows that this criticism is baseless;

On the second ground: Given that the decision is also criticised for holding that maritime law recognises the liability for damage done by things, and that, as gardien of the vessel, the Transports maritimes de l’Etat must pay for the harm caused to the representatives of a deceased passenger; But given that article 1384(1) lays down a general rule which is applicable to navigation on the high seas unless some special rule of law expressly or implicitly excludes its application; that the Court of Appeal was entitled to decide that the Transports maritimes de l’Etat which had retained the use and control of the Lamoricière was its gardien in the sense of article 1384; that despite the captain’s power to control what happens on board he remains the employee of the shipowner and so cannot be the gardien of the vessel; that the applicant is wrong to contend that the representatives of the victim cannot, by invoking article 1384(1), obtain more than the victim himself could do on the basis of his contract, since it is perfectly permissible for such parties to waive the stipulation made in their favour by the passenger on entering the contract of carriage and to claim in delict; that therefore this complaint is not justified;

On the third ground: Given that the decision is criticised for refusing to exonerate the Transports maritimes de l’Etat from all responsibility, gardien of the vessel though it was, when the decision itself held that the case disclosed force majeure and act of the prince; but given that the finders of fact held conclusively that the accident was principally due to “a storm of extreme and cyclonic violence” and the fact that the vessel had been authoritatively required to use possibly inadequate fuel of poor quality, but that nevertheless the damage suffered by the Brossettes was not exclusively due to causes external to the act of the thing of which the Transports maritimes de l’Etat were the gardien, that thus the Court of Appeal was entitled to infer from the facts it found that the Transports maritimes de l’Etat should bear one-fifth of the damages for the harm in issue; from which it follows that this ground of complaint is baseless;

For these reasons DISMISSES the application for review.

Second Case

The Court: On the first ground of the application for review: Given that in the Brossettes’ appeal to the Court of Appeal at Aix from the judgment below which had made the Transports maritimes de l’Etat fully liable for the harm caused to them by the death on board the Lamoricière on 9 January 1942 of their husband and father, they contended that article 1384(1) should have been applied against both the Transports maritimes de l’Etat and the Compagnie générale transatlantique, as being gardiens of the vessel, and secondly that the defendants should be held liable for certain acts of negligence charged against them; whereas the Court of Appeal on 5 January 1949 confirmed the dismissal of their case against the Compagnie générale transatlantique on the former ground and varied the judgment below by holding that no fault could be established against the captain but that the Transports maritimes de l’Etat were liable as gardien of the vessel, holding nevertheless that the accident was due “principally to a storm of cyclonic violence” as well as to the fact that the fuel the vessel was defective and possibly inadequate;

Given that the judgment below is criticised for refusing to apply article 1382 without considering points made by the Brossettes to the effect that the portholes of the vessel were badly repaired and that the fuel being used was of poor quality and insufficient in quantity,

but given that the judgment, having granted the principal demand of the Brossettes by making Transports maritimes de lEtat liable in its quality as gardien, had no need to examine arguments tending to show that the shipowner or its crew were at fault; the Court sufficiently responded to the appellants’ arguments by adopting the consistent findings of the court below that as regards article 1382 “it does not appear that in the light of the circumstances and the constraints put upon shipping between France and North Africa any fault was established under article 1382 against the Transports maritimes de l’Etat either personal and direct or resulting from the conduct of the captain, their employee”;

On the second ground: Given that the decision below is criticised for limiting to one-fifth the liability of the State found to exist under article 1384(1) Code civil on the ground that the storm constituted force majeure and the provision of poor fuel an act of the prince; But given that it emerges from the facts found that the storm in the course of which the Lamoricière sank was of quite exceptional violence, the Court of Appeal was entitled to hold that this was a cause external to the vessel, and that neither the fact that the Lamoricière had survived a previous storm, the violence of which was not established, nor that other vessels of the same type managed to withstand the stormy seas suffices to invalidate the assessment by the Court below of the facts found; and finally that the fact that the Transports maritimes de l’Etat were bound, on pain of discontinuing all maritime traffic, to use defective fuel was a further external cause rebutting the presumption of liability against them; that thus the criticism is unfounded;

On the third ground: Given that finally the judgment is criticised for having exonerated the Transports maritimes de l’Etat as to eighty per cent of its liability, on the ground that whereas their liability was established, they could not be made to pay for all the harm, as several external causes contributed to the occurrence of the disaster; But given that the Court of Appeal, having found that the damage suffered by the Brossettes was principally due to causes not imputable to them and external to the thing which the Transports maritimes de l’Etat had under their control, was entitled to hold that the carrier should be made liable only to the extent of one-fifth; that in deciding as it did, the Court of Appeal did not violate the texts cited;

For these reasons DISMISSES the application for review.

Subsequent Developments

Doctrine upheld. A decision dated 23 January 1959 (Civ.2, Bull. No. 80) followed this doctrine concerning the status of person in full possession (“gardien”) falling on the ship owner, the captain being the subordinate of the latter: “It is a correct application of Article 1384, para. 1, for a court to hold that it is the ship owner, and not the captain of the vessel, his subordinate, who is to be considered the person in full possession (“gardien”) of a ship which has caused an accident”. The same decision repeats again, and makes it clear that “Article 1384, para. 1 of the Civil Code concerning liability for things is of general application, and its effect can be excluded only by the law. In these circumstances, the decision under attack, which rightly notes that the autonomy of maritime law is limited to the special rules laid down in this area, which do not concern the relations between a carrier and third parties, correctly applies this Article to the case relating to indemnification for damage caused to a passenger of a steamship as a result of the wreck of the latter”. No decision of the Court of Cassation has since that date confirmed or rejected this doctrine.