RESEARCH TRAINING INFORMATION INSTITUT DU DROIT INTERNATIONAL DES TRANSPORTS ET DE LA LOGISTIQUE.

RESEARCH TRAINING INFORMATION

INSTITUT DU DROIT INTERNATIONAL DES TRANSPORTS ET DE LA LOGISTIQUE

Road Carrier Liability: Passengers Become Consumers

Traditional Legal Principles

Cécile LegrosProfessor at Rouen University

FranceIDIT Science Director

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Responsabilité du transporteur routier : du voyageur au consommateur

Les principes juridiques traditionnels

SOURCES of law governing the liability of passenger road carriers

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Criteria: based on the domestic or international nature of the contract of carriage

•Domestic contract: local rules apply (domestic law or substantive rule)

•International contract <=> border-crossing: •Material rules:

•International Conventions•EU rules

•Conflict rules

Example: coach passenger transport operation•from France •to the Czech Republic

Sources: the contrat of carriage is international -> an international convention exists: the CVRCVR Article 1: this Convention shall apply “when the contract provides that the carriage shall take place in the territory of more than one State and that the place of departure or the place of destination, or both these places, shall be situated on the territory of a Contracting State”.

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The Czech Rep. is a party to the Convention The CVR applies



Example : coach passenger transport operation•from France •to Poland

Sources: the contrat of carriage is international -> an international convention exists: the CVR

HOWEVER

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Neither Poland nor France is a party to the ConventionThe CVR does not apply One must look for the law governing the contract



Status prior to adoption of Regulationn° 181/2011 dated 16 February 2011

I – Substantive rules governing contracts for the carriage of passengers by road:

A. Example of National Law: French LawB. CVR: Geneva Convention of 2 February 1973 on the

Contract for the International Carriage of Passengers and Luggage by Road

II – Conflict rules governing contracts for the carriage of passengers by road:

A. Rome Convention of 18 May 1980B. Rome I Regulation

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I – Substantive rules: A. French law•Classical basis for liability: FAULT

•Evolution through case-law : liability for damage caused by THINGS

<=> responsabilité OBJECTIVE ; automatique

•Positive law: law of 5 July1985 so-called “Badinter Law”.

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Civil Code Article 1382: Any act whatever of man, which causes damage to another, obliges the one by whose fault it occurred, to

compensate it

Civil Code Article 1384, § 1: A person is liable not only for the damages he causes by his own act, but also for that which is caused by the acts of persons for whom he is responsible, or by things which are in his custody.



I – Substantive rules: B. The CVR

• Origin: Convention adopted in Geneva on 2 February 1978Entered into force in 1994 between 6 States

Bosnia-Herzegovina, Czech Republic, Croatia, Latvia, Montenegro, Serbia, Slovakia

• Scope:

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CVR Article 1:, This Convention shall apply “when the contract provides that the carriage shall take place - in the territory of more than one State - and that the place of departure or the place of destination …/… shall be situated on the territory of a Contracting State”.



CVR: Carrier liability regimePersonal injury• Liability regime: strict liability (CVR, art. 11-1).

• Exemptions: - Wrongful act by the passenger- Force majeure- But not in case of damage caused by a third party

• Compensation: amount set by the law of the court seized of the case

Lack of harmonisation

Limit: SDR 83.333 per passenger according to the 1978 Protocol Or a higher limit if contractually agreed (CVR, art. 13).

Over the ceiling: carrier’s wilful misconduct or gross negligence

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CVR: Carrier liability regimeDamage to luggage

• Liability regime: carrier liability (CVR Art. 14).Distinction between checked-in luggage and luggage on board the

vehicle

• Exemptions: - Inherent defect- Force majeure- Special risk inherent in the luggage’s nature

Double limit: SDR 166.67 DTS per baggage and SDR 666.67 per passengerSDR 333.33 for luggage held by the passengerOr higher limit if contractually agreed

Over the ceiling: carrier’s wilful misconduct or gross negligence

Conditions: complaint within 7 days

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Status prior to adoption of Regulationn° 181/2011 dated 16 February 2011

II – Conflict rules governing contracts for the carriage of passengers by road

A. The 1980 Rome ConventionRome Convention of 19 June 1980 on the law applicable to contractual obligations for all contracts concluded from 1 April 1991 to 17 December 2009

B. “Rome I” RegulationRegulation (EC) No 593/2008 of 17 November 2009 on the law applicable to contractual obligations

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A. The 1980 Rome Convention

• Principle: freedom of choice of applicable law (art. 3)

• in the absence of choice (Art. 4): the contract shall be governed by the law of the country where the party required to effect the characteristic performance … has his habitual residence

Carrier’s law

NB: Article 5 (Consumer contracts) does not applyExcept to any “contract which, for an inclusive price, provides for a combination of travel and accommodation” (package tours) (Art. 5, § 5).

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B. “Rome I” Regulation of 17 November 2009

NB : applicable to contracts concluded after 17/12/09Article 5§2 now foresees that:

“To the extent that the law applicable to a contract for the carriage of passengers has not been chosen by the parties in accordance with the second subparagraph, the law applicable shall be the law of the country where the passenger has his habitual residence, provided that either the place of departure or the place of destination is situated in that country. If these requirements are not met, the law of the country where the carrier has his habitual residence shall apply. The parties may choose as the law applicable to a contract for the carriage of passengers in accordance with Article 3 only the law of the country where: (a) the passenger has his habitual residence; or (b) the carrier has his habitual residence; or (c) the carrier has his place of central administration; or (d) the place of departure is situated; or (e) the place of destination is situated.”

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Features of the Regulation’s new Article 5§1 - limited choice of applicable law between that where eithera) the passenger has his habitual residence; orb) the carrier has his habitual residence; or c) the carrier has his place of central administration; or d) the place of departure is situated; or e) the place of destination is situated.

- in the absence of choice: conflict-of-law rule aiming to protect passengers: law of the country where the passenger has his habitual residence (subject to certain conditions)

N.B.: Contracts of carriage for passengers are not always included in consumer contracts => Lower protection by the conflict-of-law rule

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Conclusion

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IDIT - Institut du Droit International des Transports et de la Logistique

110/112, avenue du Mont Riboudet – F.76000 ROUEN

Tel : +33 (0)2.35.71.33.50

Fax : +33 (0)2.35.88.51.64

[email protected]

www.idit.fr

RESEARCH TRAINING INFORMATION INSTITUT DU DROIT INTERNATIONAL DES TRANSPORTS ET DE LA LOGISTIQUE.

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