Burden of proof in a case of strict liability for the organiser: the disappearance of a mother and daughter during a canoe trip in Mauritius

 

1. Introduction

The judgment of the First Civil Chamber of the French Supreme Court (Cour de cassation), delivered on 7 January 2026, concerns the travel agency’s strict liability (responsabilité de plein droit) for a fatal accident that occurred during a leisure activity – a canoe outing – at a hotel in Mauritius within the framework of a package.

The lawsuit was brought by the consorts A and his son B, following the disappearance of C (A’s wife and B’s mother) and D (A’s daughter and B’s sister). The plaintiffs sued the tour organiser, the hotel’s owner and management companies, and their respective insurers before the high court.

In August 1996, the mother concluded a contract with the travel agency Selectour for a voyage à forfait (package) organised by the tour operator Rev’Vacances, covering travel for herself and her two children, to Mauritius from 8 to 17 August 1996, with accommodation provided exclusively at the hotel “Le Mauricia”.  

On 15 August, after staying at the hotel “Le Mauricia”, the mother and her children went to the hotel “Le Paradis”, owned by New Mauritius Hotels Ltd and managed by Beachcomber Ltd, which offered canoeing to its guests. On 16 August 1996, the mother and the daughter went for a canoe trip on the lagoon; they did not return to the hotel and were never found.

In 2006, A and B brought an action for liability and damages against the travel agency, its insurer MMA IARD, and the companies New Mauritius Hotels and Beachcomber. The travel agency joined Axa France IARD, the tour operator their insurer, as a third party. 

The dispute had already led to a first cassation (2nd Civil Chamber, 8 September 2022, no. 21‑10.832). The Paris Court of Appeal, ruling on remand, delivered a judgment on 8 February 2024, which is now partially quashed by the present decision.

 

2. Burden of proof and strict liability

The core legal issue is the liability “de plein droit” of the travel agency (strict liability) and the allocation of the burden of proof regarding whether the activity in which the damage occurred was included in the contract. 

The consorts relied on Article 23 of Law no. 92‑645 of 13 July 1992, later Article L. 211‑17 of the Code du tourisme, under which the organiser is strictly liable to the buyer for the proper performance of contractual obligations, including those carried out by other service providers, and may be exonerated only if it proves that the non‑performance or improper performance is attributable to the traveller, to an unforeseeable and insurmountable act of a third party foreign to the contractual services, or to force majeure. 

Consequently, where damage occurs during the purchased stay, it is for the organiser, if it seeks to escape liability, to prove that the damage arose in connection with an activity not included in the travel contract, rather than requiring the traveller to prove this exclusion.

The Paris Court of Appeal had nevertheless rejected Selectour’s liability based on a restrictive reading of the contractual package. It found that the package concluded by the mother covered only a stay at Le Mauricia, whereas a stay at Le Paradis was part of a distinct Rev’Vacances programme, “Le Paradis et Golf Club”, with a higher package price (an additional 13,400 French francs for eight days/five nights in the relevant period, 28 July to 20 August 1996). It further noted that neither the special nor the general conditions of the booking form, nor the Rev’Vacances brochure, provided for a change of hotel or “interchangeability of hotels” during the stay, even between hotels belonging to the same group, and stressed that Le Mauricia was a three‑star hotel while Le Paradis was described as a “luxury” hotel, underlining their different categories.

The Court of Appeal also referred to the “Beachcomber Tours” brochure of January 1996, which set out summer 1996 prices, confirmed the price difference between the hotels Le Mauricia and Le Paradis, and provided for “interchangeability of hotels” for holders of the “Beachcomber card”. However, this brochure was not mentioned in the booking form signed by C and the Selectour representative, did not emanate from Rev’Vacances (the organiser of the package at issue), and it was not established that Selectour had handed it to C; thus, it could not be invoked against the agency to define the contractual services.

On that basis, the Court of Appeal held that the conditions of the hotel change by C and her children at the end of their stay in Mauritius were not established; there was no proof of any request by C for such a change, nor proof that she held a “Beachcomber card” entitling her to two nights in another hotel without a price supplement.

It was therefore concluded that the package sold by Selectour and organised by Rev’Vacances covered only the hotel “Le Mauricia”, whereas the possibility of a two‑night stay in another hotel was a purely optional arrangement offered by Beachcomber at the travellers’ request. As a result, C and D stay at “Le Paradis” and their participation in the canoeing activity offered exclusively by that hotel—during which they disappeared—did not constitute services provided by Selectour and fell “outside the package tour”; their disappearance could thus not engage the agency’s strict liability.

The Cour de cassation’s reasoning focuses on the interaction between the strict liability regime for travel organisers and the general rule on the burden of proof in Article 1315 of the Civil Code, combined with Article 23 of Law no. 92‑645 (Article L. 211‑17 of the Code du tourisme, in its pre‑2009 version). It recalls that under the latter provision, the travel agency is strictly liable to the buyer for the proper performance of contractual obligations and can only be exonerated, in whole or in part, by proving that the non‑performance or improper performance is due to the buyer, to the unforeseeable and insurmountable act of a third party foreign to the contractually provided services, or to force majeure. From this, the Court draws an explicit principle: when a traveller suffers damage during performance of the contract concluded with the travel agency, it is for the agency to prove that the damage occurred in connection with a service not included in the contract if it wishes to avoid liability.

In light of this, the Cour de cassation assesses the Court of Appeal’s approach, which had excluded the agency’s liability on the ground that the conditions of the hotel change were not established, that no request by C for such a change was proven, and that it was not shown she held a “Beachcomber card”. 

By basing its decision on these gaps in proof on the part of the consorts, the appellate court effectively reversed the burden of proof: instead of requiring the agency to show that the damage resulted from a non‑contractual service, it placed on the victims and their heirs the burden of proving elements that would have allowed the stay at hotel Le Paradis to be considered a contractual service. 

The Cour de cassation explicitly holds that the Court of Appeal “inverted the burden of proof” and, in doing so, violated Article 1315 of the Civil Code and Article 23 of Law no. 92‑645 (Article L. 211‑17 of the Code du tourisme in the applicable wording).

On a procedural level, the Court applies Article 625 of the Code of Civil Procedure to remove New Mauritius Hotels Ltd and Beachcomber Ltd from the proceedings (“mise hors de cause”), on the basis that their presence is not necessary before the court of remand.

In its operative part, the Cour de cassation:

– quashes and annuls the Paris Court of Appeal’s judgment of 8 February 2024, but only insofar as it dismissed the damages claims brought by V. and O. S. against Coopérative Selectour;

– remits the case, on that point, to the Versailles Court of Appeal;

– removes New Mauritius Hotels Ltd and Beachcomber Ltd from the case;

– orders Coopérative Selectour and MMA IARD to bear the costs and, under Article 700 of the Code of Civil Procedure, to pay a global sum of €3,000 to V. and O. S., rejecting all other claims;

– orders that the present judgment be transcribed in the margin or following the partially quashed judgment.

Doctrinally, the decision reinforces the idea that the travel organiser’s strict liability is accompanied by a strengthened allocation of the burden of proof: whenever the damage occurs during the contractual travel period, the agency bears the onus of showing that the harmful activity was not part of the package. The traveller (or their heirs) cannot be required to prove the circumstances of hotel changes or the inclusion or exclusion of specific services to trigger the organiser’s liability.

 

Carlos Torres