User:Pierre Merten

Queen Mary II: Concepts of the collective responsibility.

INDEX

I. Introduction

II. Facts

III. Collective Responsibility

IV. Establishment of the criminal responsibilities

V. Analysis

I. Introduction. The construction of Queen Mary II, the largest cruise ship ever built was about to be completed to the Chantiers de l’Atlantique (Building sites of the Atlantic) in Saint-Nazaire (France). It is of use which the executives of the Building sites can make visit the ship with their families, which they did not fail considering the extent of completed work. On Saturday, the 15th of November, whereas two groups of visitors and a team of cleaning were on footbridge 413, connecting the quay to Queen Mary II, this one crumbled involving 45 people in a fall of 18 meters: 16 of them will die and 29 to undergo wounds and after-effects. The visits of the building site by the public were frequent, that having given place to the catastrophe would have been only an interesting discovered if an accumulation of facts did not make this drama. The experts agreed on the technical causes of the fall of the footbridge, which made it possible the court to note the faults and errors which has been making.

II. Facts. It was a habit to make visit the ship by footbridge 417, broader and more practical; however, this one was not usable this day, the visitors were led on the footbridge 413 which had been initially planned for the transport of building materials and had been assembled in this objective, and not to accommodate of the public. The change of access to the ship could have been without any consequences if the assembly of the footbridge used by the visitors had been carried out in the compliance with the right rules, footbridge 413 was initially intended for another door and it was by error that it had been assembled to the fateful place. During the assembly, as it had been prove to be too short, it was simply lengthened by an additional piece of one meter fifty without new plans. The reception of this work was made only visually and the footbridge did not comprise winds-bracing (essential element to its balance). The day of the drama, the visitors were blocked at the entrance of ship by formalities of rise on board, which had however been removed, when they were invited to line up to let pass the employees of the cleaning company. All of them were standing on the left whereas the visitors just begun to go on the right side, at this point in time the footbridge was taken down. The experts appointed by the examining magistrate and the commercial court agree on the cause of the fall of the footbridge which is the absence of winds-bracing. The technical cause of was already established “it is well because of a physical instability that the footbridge crumbled”. The faults and the errors having led to the catastrophe were multiple. According to the Chantiers de l’Atlantique (manufacturer of the boat), the accident resulted from an error of design of the footbridge, whereas the company Endel (manufacturer of the footbridge) considered on the other hand that the origin of the accident was under the conditions of use of this footbridge.

For the court, the faults which led to the catastrophe concerned the two companies. These faults were made at the same time when designing of the footbridge (not any precise calculations, notes of calculations, controls), of its assembly (inversion of the footbridges, non-existent controls) and its use (access by only one footbridge, in addition not intended for this use, absence of management of the visits). In the two companies, the court noted organizational problems, a search for productivity gains which resulted in distortions with safety, the inadequacy of employment and staff training which quote: “the construction of a work without study, plan and stage of control, in violation of the rules […]” The faults having been clearly identified, the magistrates' court of Saint-Nazaire carries out the establishment of the criminal responsibilities.

III. Collective responsibility. The article 1384 of the French Civil code lays out that someone is responsible not only for damage that he may causes by his characteristic made, but still of that which is caused by the fact of people which someone must answer or of the things that he has under his guard. The supervening of a collective accident disturbs the traditional mechanisms of the common right and requests an adaptation for this one, as well with regard to the compensation for the victims, as the research of the truth and the person in charge nomination. The decision returned by the magistrates' court of Saint-Nazaire highlighted specificities of the legal treatment of such an event. In this case, the qualification of collective accident is not a doubt and the court took care to specify the criteria of the recognition of the state of catastrophe in particular because of the events which followed such as the release of the red plan, the media repercussion and the arrival on the spot of the Head of the State. The court also raised creation of the association of the victims of the footbridge of Queen Mary II (i.e. article 2-15 of the Criminal procedure code “right for defense associations of the victims of collective accidents to go civil part”). The Chantiers de l’Atlantique having centered their activities on the construction of boats, the construction of the scaffolding and the footbridges was given to a subcontractor, Endel Company. These two companies were regarded as being morally responsible and were with the row of the defendants like eight people, all continued for homicide and involuntary injuries. As that is very frequently the case for the collective accidents, the catastrophe is due to a plurality of causes which the court attempts to identify (i.e. “Facts”) before coming to a conclusion about the culpability of the defendants on the civil interests. Starting with the moral people, the court reversed the traditional step which consists in studying the faults, and the possible culpability, of the natural people before wondering about the culpability of the moral people. While coming to a conclusion initially about the responsibility for the two companies, and by releasing the entire warned natural people after, Saint-Nazaire’s jurisdiction fitted clearly in a current which tended to privilege the responsibility for the moral people. It was proved that as unintentional infringement, the criminal responsibility of a moral person can be recognized even in the absence of judgment of one of its representatives. Such a responsibility even could be established in the absence of defendants natural people (“Dijon vs Gaz de France, Explosion of Dijon: the responsibility for Gaz de France confirmed (Dijon, December 21st, 2006)”, JAC n° 71, February 2007). It has consequently considered that the moral people were not responsible any more in a redundant way but were directly responsible for their own faults. Actually, one of the reasons which had led the commission of revision of the Penal code to introduce the responsibility for the moral people was supervening great catastrophes. It had then been considered that it was not useless to envisage a total and collective responsibility company whose faulty operation or the insufficiencies had involved the catastrophe. Since the law of July 10th, 2000, the natural people are held more only of one fault qualified made up either by the violation obviously deliberated on a particular obligation of prudence or safety provided for by the law or the regulation, or by a characterized fault and which exposes others at the risk of a particular gravity (Article 121-3 al. 4).

IV. Establishment of the criminal responsibilities. They are well the faults made personally by the company of Chantiers de l’Atlantique and the Endel Company which led the court to the delivery of their respective culpability. Concerning Chantiers de l’Atlantique, the court initially noted a lack of organization in the chain of controls which led to the absence of control of the design and the implementation of the footbridge. The final destination of this one was not checked, which involved errors of appreciation as regards load. With these dysfunctions were added the absence of total reflection on safety, the absence of communication between the services and a lack of adequacy of employment and training of certain members of the personnel, as well as the omission of the control of the work of the subcontractor. On the other hand, for the visits, orders had been given, but they were not executed. All these lacks led to the judgment of the company. The court pronounced a sorrow of fine of 150,000 euros (1,5M HK$) for the offense of homicide and 2,500 euros (25,000 HK$) for each infringement. It was with a same sorrow which was condemned the Endel company not to have installed the footbridge in the rules. It was shown that the staff management had been neglected, the company had entrusted to its engineers of administrative and commercial tasks whereas their knowledge would have been useful for the control of the works. If it is true that, the day of the accident, the footbridge had been diverted of its initial use, the passage of building materials, it nevertheless could have fallen on another occasion because of the force of the wind or the bad distribution of a load, not raised by the experts. The lack of vigilance of the subcontractor was not thus a doubt. After to have established the responsibility of the two companies, the court authorized the release of the natural people in the name of the 3rd alinea of article 121-3 of the Penal code, “the criminal responsibility of the moral people does not exclude that from the natural people authors or accessory to same makes, subject to the provisions of the 4th alinea of article 121-3”, it is mean provided, for the indirect authors, of the demonstration of a qualified fault. The moral person does not have thus as a role to constitute a protective shield with the guilty natural people of qualified faults.

V. Analysis. Ten days after the judgment, the floorboard of Saint-Nazaire decided to go on appeal court for the case of the Queen Mary 2. The 11th February, five years after the drama, the magistrates' court of Saint-Nazaire had condemned, with 177,500 euros of fine each one, the Chantiers de l’Atlantique (manufacturer of the cruise ship), and Endel (manufacturer of the footbridge of access to the ship) whose footbridge had caused the death of 16 people on November 15th, 2003. The court particularly retained the “defect of organization in the chain of controls” for the Chantiers de l’Atlantique and the fact that the footbridge “had not been built in the code of practice” for Endel. The released of the eight judged employees (four of each company) had caused the anger of the victims’ families. Indeed, the judgment was more lenient than the requisitions of the floorboard. The prosecutor Pierre-Marie Block had requested sorrows of three months of suspended sentence from the opposition as of eight employees and 307,500 euros fine for each company. As for the 130 civil parts, they hoped that was recognized and made good a “specific damage of anguish and horror”, and had asked more than 12 million euros (120M HK$). The legal course of the business of the footbridge of Queen Mary II is not completed; the appeal will begin on the 23rd of March 2009 in Rennes.