Mountain of debt for Tignes avalanche families
In April 2005 PisteHors reported the death of two snowboarders in a massive avalanche on the north face of the Grande Motte glacier. Sam Harber and James Rourke, both in their mid-twenties were doing a season with tour operator VIP Snowline. It was supposed to be their final run before returning to the UK. Mr Rourke’s body was discovered under meters of snow and ice the following day. Mr Harber’s body was only found 2 months after the accident when the avalanche debris began to thaw. Now the families are being threatened with a bill of over £20,000 to cover rescue costs.
North face of the Grande Motte
First a quick recap on the situation with regards to search and rescue in France. Under a law dating from before the French revolution each community is responsible for free rescue within its boundaries. While this may have made sense when communications were poor it is ill adapted to the modern world. The Mountain Law (Loi Montagne) of 1985 provided an exception whereby ski resorts could charge for rescue within the ski domain, normally defined as any point within a resort that can be reached by gravity. A scale of charges must be set by the town hall and clearly published at places such as lift pass offices. Outside of this zone search and rescue was still free and provided by the French State through specialized police units.
According to press reports each family is being pursued for £9,000 helicopter costs and £1,200 for dog handlers. The two victims were covered through CNA Insurance. CNA is the 14th largest U.S. casualty insurer. Most people will not have dealt directly with CNA as they are an underwriter for other policies. For example both VIP Snowline and Inghams offer policies from Fogg Travel who use CNA as underwriters. It is likely that the two young men were covered by VIP Snowline’s staff policy. The father of James says that CNA have refused the claim. Although the policy covers off-piste skiing there was apparently a clause excluding “exposure to danger which is reasonably foreseeable”. Such clauses are not unusual. However CNA had paid the reparation costs for the two victims’ bodies and this could be implied as tacit agreement that they would honour the claim unless they expressly reserved their rights not to do so.
Were CNA justified to refuse the claim? Possibly. To go back to the circumstances of the accident the two men were snowboarding at high altitude, on glaciated terrain on a north face. The avalanche risk was 3 on a scale of 5 (considerable) and there had been 30 cm of fresh snow in the previous 24 hours. The majority of fatal avalanches occur at risk 3 or 4 in France. The avalanche bulletin had also noted the risk of slab avalanches above 2300 meters. The two men would have climbed a short distance to reach this popular itinerary and crossed ropes and danger signs. While normal for off-piste runs in Tignes an insurance company may consider that this falls into the area of “extreme sports”. According to an eye witness the accident happened shortly before 4pm. Although night falls around 8pm in the Alps in April many experienced off-piste skiers would view this as late in the day to be tackling such a tricky descent even if it is more reputed for crevasse than it is for avalanche risk.
Off-piste warnings at Tignes
The fact that under French law heirs may be liable for the debts of their relatives has probably come as a surprise to most readers. In reality French probate law is more complicated. Basically three cases can apply. The heir can
1. accept the estate, both the assets and liabilities without limit
2. reject the estate in its entirety, any assets will go to the state or other heirs
3. accept the assets and liabilities (accepter une succession sous bénéfice d’inventaire), however the liabilities cannot exceed the assets
The third option is exactly the same as English probate law but is not widely known outside of legal circles in France. Notaires and families can be reluctant to take this route as it involves additional costs.
It is also unlikely that French probate law would apply to UK nationals domiciled in the UK and only temporarily resident in France and a UK judge would probably dismiss a claim by the French agency currently trying to recover the debt. Even if the family signed documents agreeing to the search costs a judge may consider that they did this under duress without fully understanding the legal position.
The bottom line is that when taking out winter sports insurance you are only covered for what is in the policy and watch the fine print. You should ask your insurer how they define terms such as “off-piste” and “exposure to danger”. This clause could cover skiing a black run under icy conditions if a warning was posted by the resort. Any communication should be via fax or registered letter. Oh, and hire a good lawyer!
The author is English and French qualified lawyer specializing in insurance law.
Posted by on Thursday, 17 August, 2006 at 02:33 AM
Some interesting points. I wonder if the French debt collection agency could sue in a French court then get this order enforced in the UK? It might be that a French court might take the view that French probate rules apply. Having been sued over late payment of council tax (a mistake) I know these kind of cases can take on a life of their own and it can be very hard to rectify mistakes.
I also wondered about the how foreseable the risk was. On the day of the incident we had toured a west facing route but only to 2300 meters and there was no evidence of avalanche risk on that route. However there was still considerable fresh snow on north faces.
PisteHors had this to say about conditions in the week prior to the avalanche:
The heaviest snow will be on Satuday but unsettled conditions will continue into next week. The fresh snow will be accompanied by a strong but moderating south-east wind, this will shift to the east later. The strong gusty winds will transport snow and will lead to the formation of fresh slabs.
The bottom line is: take care on steeper slopes during and immediately after the new snow fall and give large accumulations of snow time to purge or stabilize. Be aware of more persistent risks at higher altitude close to ridges, cols and summits. With the strong southerly winds you can expect the greatest danger of slabs to be on shaded and sheltered northern slopes
Snow and Avalanche Report: Week 15-2005
With a 30cm of fresh snow, strong winds and a specific warning in the local avalanche bulletin a large steep open north face at high altitude does not sound like the ideal place to be. The fact that both boarders were skiing this slope together and one of the men also had his avalanche beacon in his jacket pocket (the avalanche was so large it would not have helped save him but would have made body recovery easier) rather than worn around his body puts some question marks over their experience in these conditions.
Posted by davidof
on Monday, 21 August, 2006 at 05:41 PM
there is no reason why the French debt collection agency might not issue the proceedings in France. That would certainly make life difficult for the family of the two boys who would need to instruct French lawyers etc. It would be up to the English families to prove that English probate rules should apply, not French rules. Only final judgments can be enforced abroad i.e. when the time limit for appealing has expired and no appeal is pending any longer. Enforcement is allowed by what used to be known as the Civil Jurisdiction and Judgments Act of 1982. Once a French judgment is deemed enforceable by an English judgment, it is indeed difficult, though not totally impossible, to get it set aside.
Posted by on Friday, 25 August, 2006 at 06:03 PM
This is a picture of the North Face of the Mott where the two lads were buried showing the crown wall. You can see the crown wall on the lower right corner (blue circle). Pretty big avlx but there had been a lot of late snow high up and they had been warned by a pisteur. I skied the glacier next day and the off piste was very good - but some areas felt iffy even though the profiles were ok. For late April it was still some of the best of the season.
Sad loss. £20k is lot of money to find and it must be hard for the families.
Posted by David Gunn
on Saturday, 26 August, 2006 at 05:17 PM
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