Cass. 2nd civ., 18 Apr. 2019, No. 18-15759
Heavy rain made the tarmac very slippery. The accident was caused by the slip of the aircraft that hit a stationary tractor. The carrier owning the aircraft and its insurer have brought proceedings before the tribunal de grande instance of Limoges, the CCI of Limoges, in its capacity as operator of the airfield, as well as the car insurer of the latter, on the basis of the law of 5 July 1985. By judgment of 23 June 2016, the tribunal de grande instance of Limoges rejected the applicants after holding that the Badinter law was not applicable to the accident.
The Court of Appeal of Limoges had then reformed this judgment, on the grounds that :
• “the fact that the collision occurred on the tarmac of an aerodrome is not such as to exclude the application of the law of 5 July 1985 »,
• “the track tractor constitutes a vehicle having the exclusive function of displacement” and ” therefore constitutes a land motor vehicle »
• “the track tractor ( … ) which participated in the collision because of its sole presence on the trajectory of the ATR 42 which came to hit it, is necessarily involved in the accident “.
The Limoges Court of Appeal ruled that the liability of the operator of the aircraft in application of article L. 6131-2 of the Transport Code ” does not deprive this operator of the possibility of initiating an action for liability for damage caused to his aircraft on the basis of ordinary law, including on the legal basis of the law of 5 July 1985 “.
The Court of Cassation decides in favor of the application of the Badinter Law of 5/07/1985 : the collision between the aircraft and the runway tractor, whose sole function is displacement, constitutes indeed, according to the high court, a traffic accident :
“But considering that having found that only the runway tractor had been struck by the aircraft and that the sole function of this land motor vehicle was to ensure the movement on the airport area of various tools, such as generators, luggage carts, trailers and boarding bridges, which are coupled to it and from which it is dissociable, the Court of Appeal deduced from this fact that this collision constituted a traffic accident within the meaning of article 1 of Law no. 85-677 of 5 July 1985 ; hence it follows that the plea is unfounded ; FOR THESE REASONS : DISMISSES the appeal ; Condemns SMACL assurances to the costs (…) “.
The application of the Badinter law to air claims is a thorny issue in insurance law.
As a reminder, Article 1 of the law of 15 July 1985 (Badinter Law) states :
“The provisions of this Chapter shall apply, even when transported under a contract, to victims of a traffic accident involving a motor land vehicle and its trailers or semi-trailers, with the exception of railways and trams running on tracks of their own “.
Article L. 211 – 1 of the Insurance Code relating to compulsory insurance provides :
“Any natural person or legal person other than the State whose civil liability may be incurred as a result of damage suffered by third parties resulting from damage to persons or property in the realization of which a vehicle is involved, must, in order to circulate it, be covered by insurance guaranteeing this liability, under the conditions fixed by decree in the Council of State. For the purposes of this Article, “vehicle” means any land motor vehicle, i.e. any self-propelled vehicle intended to travel on the ground and which can be operated by mechanical force without being linked to a railway track, and any trailer, whether or not coupled “.
Under article L. 6131-2 of the Transport Code :
“The operator of an aircraft is automatically liable for damage caused by changes in the aircraft or objects that come off it to persons and property on the surface.
It has been held in the past that “A land motor vehicle is involved-within the meaning of article 1 of the law of 5 July 1985 in a traffic accident as soon as it has played any role in its realization” (Civ. II, 2 April 1997 )
In addition, ” The regime of the 1985 applies in the presence of a moving or parked vehicle “(Civ.II, 21 Oct. 1987, no 86-15.205, Bull. civ. II).
The European judges also believe that the concept of traffic must be heard as broadly as possible and that it requires the vehicle to be used in its usual function, which is that of displacement and not that of a tool (CJEU, 4 sept. 2014, aff. Case C-162/13, Damijan Vnuk v Zavarovalnica Triglav D. d, ECLI:EU:C:2014:2146 and CJEU, 28 Nov. 2017, aff. Case C-514/16, Rodrigues de Andrade).
However, the Badinter Act does not apply to cases where the damage is caused by an element of equipment that is not relevant to the vehicle’s movement function(Cass. 2nd civ., 23 Oct. 2003, n ° 02-13. 989: Cass. 2nd civ., 19 Oct. 2006, No. 05-74. 338) and/or if the VTM is used for a function other than displacement (Cass. 2nd civ., 5 Nov. 1998, No. 95-18. 064)
For example, a “snow groomer”, a motor vehicle without wheels (which is used to smooth snow for certain winter sports), does not constitute a VTM within the meaning of the Badinter Act. It is therefore a tool and not a vehicle (Civ. II, 20 March 1996).
The legal reasoning is simple : the damage does not result from the risk created by the movement of cars but from another function unrelated to movement/transport, such as a tool function, for example.
Thus, it was ruled by the Court of Cassation that the legal regime of the Badinter Law of 5 July 1985 escapes damage caused by an element of equipment foreign to the function of moving the vehicle (Cass. 2nd civ., 19 Oct. 2006, Point 05-74.338; Bull. civ., II, No. 275).
In support of this reasoning, it has been established by case law that the Badinter Act applies to the following machines involved in their displacement function :
* self-propelled mower ;
* mopeds,
* agricultural tractors,
* harvesters,
* giro-shredders,
* trailers,
* construction machinery,
* track gear, forklifts.
For the law of 5 July 1985 to apply these machines must be equipped with wheels to be able to transport people or goods/equipment. For example, a mower has two functions (tool function that is used to mow the lawn and the move/transport function because its user has to move to do his job). For the tool to work, the machine must move. So, it is indeed a land vehicle with motor as is the forklift that will transport pallets on which goods are loaded (Civ. II, 25 May 1994).
In the present case, in the case giving rise to the commented judgment of 18 April 2019, the tractor that struck the aircraft was indeed in its function of displacement : “only the runway tractor had been struck by the aircraft and that the sole function of this land motor vehicle was to ensure the movement on the airport area of various tools, such as generators, luggage carts, trailers and boarding bridges, which are coupled to it and of which it is dissociable “.
The Cour de cassation therefore remained faithful to its previous reasoning of considering that since the damage is caused by an element suitable for ensuring travel (on the airport area, in this case), the Badinter Law is intended to apply.
What about this solution ?
In our view, this jurisprudential solution could impede the application of the conventional limits and exclusions of compensation resulting from contracts concluded by air carriers in the course of their activity with handling agents operating at airports.
Indeed, carriers contract with airport zone operators in the framework of “handling contracts” whose purpose is to make available to the carrier/aircraft owner a parking space for the aircraft with parking and travel assistance, as well as the provision of optional accompanying services. In the context of such handling contracts, the Standard Ground Handling Agreement (SGHA) which is a “standard contract” that is widely used by air operators to govern the operations of ground service providers. The GHA is published in the IATA Airport Handling Manual and traditionally used as a contractual basis by air operators. The repair ceilings and liability limitation clauses stipulated in the GSHA (the basic ceiling of 500,000 USD), which are air market standards used by air operators worldwide could be declared unenforceable (unwritten) by the French courts.
From this jurisprudence of the Court of Cassation logically follows an obligation of auto insurers to guarantee aéri air claims whose financial cost is generally very important while these “land” insurers are not “natural” insurers of air risks which are traditionally covered by insurers specialized in “large risks” under policies adapted and designed for this risk…