Lummer at the beach is often an opportunity to practice water sports. However, sometimes the exits go wrong. Every year, the propellers of motor boats, veritable “jaws”, thus cause serious accidents: eleven (including two fatalities) in 2019, seven in 2020, according to a written report in May 2021 by the General Inspectorates for Education, Sport and Research, and Maritime Affairs. When a collision occurs with a rotating propeller, the consequences can be dramatic: severed limb, vital prognosis involved.
From a legal point of view, who should be considered responsible for such an accident? This is the question posed by the following case. On August 28, 2015, Mr. X rented a pleasure boat from the Sud-Est Nautique company, intended to tow a buoy on which, for a small contribution, a dozen people will climb, in turn, to be dragged .
Before starting the engine, Mr. X explains that those who fall into the water will have to get back on the boat “across” (on the side), his brother having to help them to climb on board. Under no circumstances should they go up the back, where there is certainly a ladder, but where the propeller is also located, synonymous with danger.
Twenty-eight stitches
However, when Mshe Y, 19 years old, falls into the water, it is by the ladder that she tries to go up. She slips on the bars and falls on the propeller. Fortunately for her, it does not turn, the engine being then in neutral. But its cutting edge hurts her left leg and the wound requires twenty-eight stitches. The judicial expert appointed, at the request of Mher Y, by a judge in chambers, indicates that the accident leaves him a “permanent functional deficit of 3%”.
The young girl attacks Mr. X, and his insurer, Axa France IARD (fire, accidents and various risks), so that they are condemned to compensate for his damage, evaluated at some 16,000 euros. His lawyer claims section 1384 (old) of the Civil Code, according to which one is liable for damage caused by “the things one has in one’s custody”. He submits that Mr. X, as ” guardian “ of the boat whose propeller caused the accident, is entirely responsible for it. The judicial court of Draguignan (Var) follows him, and condemns the pilot to compensate the young girl.
Bad news for this captain for a day: he had not taken out specific insurance for navigation. He was certainly insured, under civil liability, by Axa. But his contract did not cover damage caused by “any motorboat over six horsepower (HP)”. However, the one he rented had a more powerful engine… The insurer is therefore authorized not to call on its guarantee.
Pear cut in half
Unable to pay the amount claimed, Mr. X appealed, thanks to full legal aid. His lawyer, Mr.e Romain Cherfils, ensures that the victim committed a fault, going up from the rear, and that this fault exonerates the pilot from all responsibility. He produces several passenger certificates which ensure that his client had given the necessary safety instructions, and that Mr.her Y did not respect them.
The Aix-en-Provence Court of Appeal, which rules on February 10 (2022), cut the pear in half; she judges that the faulty behavior of Mher Y contributed to his own damage, which has the effect of reducing his right to compensation by 50%. Mr. X, who therefore only has to pay 8,000 euros, waives his right to appeal. One thing is certain: if he goes back to sea, he will take out insurance adapted to the risks incurred.