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									       INSTITUT DU DROIT INTERNATIONAL
      DES TRANSPORTS ET DE LA LOGISTIQUE




RESEARCH          TRAINING         INFORMATION
IRU Symposium 2012




    Road Carrier Liability: Passengers Become
                    Consumers

       Traditional Legal Principles
                       Cécile Legros
                 Professor at Rouen University
                             France
                     IDIT Science Director
IRU Symposium 2012
                               Road Carrier Liability:
        Responsabilité du transporteur routier :
            du voyageur Passengers Become Consumers
                          au consommateur
                              Traditional Legal Principles
           Les principes juridiques traditionnels

                 SOURCES of law governing
           the liability of passenger road carriers
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
IRU Symposium 2012
                                     Road Carrier Liability:
                                 Passengers Become Consumers
                                    Traditional Legal Principles

 Example: coach passenger transport operation
 •from France
 •to the Czech Republic
Sources: the contrat of carriage is international
-> an international convention exists: the CVR
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, or both these places, shall be
situated on the territory of a Contracting State”.

                     The Czech Rep. is a party to
                     the Convention
                     The CVR applies
IRU Symposium 2012
                              Road Carrier Liability:
                          Passengers Become Consumers
                             Traditional Legal Principles

 Example : coach passenger transport operation
 •from France
 •to Poland
Sources: the contrat of carriage is international
-> an international convention exists: the CVR
                Neither Poland nor France is a
HOWEVER
                party to the Convention
                The CVR does not apply
                 One must look for the law
                governing the contract
IRU Symposium 2012
                                     Road Carrier Liability:
                                 Passengers Become Consumers
                                    Traditional Legal Principles

           Status prior to adoption of Regulation
              n° 181/2011 dated 16 February 2011
I – Substantive rules governing contracts for the carriage of
passengers by road:
      A. Example of National Law: French Law
      B. 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 1980
       B. Rome I Regulation
IRU Symposium 2012
                                     Road Carrier Liability:
                                 Passengers Become Consumers
                                    Traditional Legal Principles
     I – Substantive rules: A. French law
     •Classical basis for liability: FAULT
    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

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

    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. OBJECTIVE ; automatique
     <=> responsabilité
     •Positive law: law of 5 July1985
                    so-called “Badinter Law”.
IRU Symposium 2012
                                      Road Carrier Liability:
                                  Passengers Become Consumers
                                     Traditional Legal Principles

       I – Substantive rules: B. The CVR

       • Origin: Convention adopted in Geneva on 2 February 1978
       Entered into force in 1994 between 6 States
       Bosnia-Herzegovina, Czech Republic, Croatia, Latvia,
       Montenegro, Serbia, Slovakia
       • Scope:

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”.
IRU Symposium 2012
                                       Road Carrier Liability:
                                   Passengers Become Consumers
                                      Traditional Legal Principles
     CVR: Carrier liability regime
             Personal 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
IRU Symposium 2012
                                       Road Carrier Liability:
                                   Passengers Become Consumers
                                      Traditional Legal Principles
     CVR: Carrier liability regime
     Damage 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 passenger
     SDR 333.33 for luggage held by the passenger
     Or higher limit if contractually agreed
     Over the ceiling: carrier’s wilful misconduct or gross negligence
     Conditions: complaint within 7 days
IRU Symposium 2012
                                 Road Carrier Liability:
                             Passengers Become Consumers
                                Traditional Legal Principles

        Status prior to adoption of Regulation
                n° 181/2011 dated 16 February 2011
      II – Conflict rules governing contracts for the carriage
      of passengers by road

             A. The 1980 Rome Convention
      Rome 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” Regulation
      Regulation (EC) No 593/2008 of 17 November
      2009 on the law applicable to contractual
      obligations
IRU Symposium 2012
                               Road Carrier Liability:
                           Passengers Become Consumers
                              Traditional Legal Principles

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

            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 apply
     Except to any “contract which, for an inclusive price, provides
     for a combination of travel and accommodation” (package tours)
     (Art. 5, § 5).
 IRU Symposium 2012
                                       Road Carrier Liability:
                                   Passengers Become Consumers
                                      Traditional Legal Principles

        II – Conflict rules governing contracts for the carriage
        of passengers by road
                B. “Rome I” Regulation of 17 November 2009
         NB : applicable to contracts concluded after 17/12/09
Article 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.”
IRU Symposium 2012
                                 Road Carrier Liability:
                             Passengers Become Consumers
                                Traditional Legal Principles

     Features of the Regulation’s new Article 5§1
     -     limited choice of applicable law between that where either
     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.

     -     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
IRU Symposium 2012




                 Road Carrier Liability:
             Passengers Become Consumers



                     Traditional Legal Principles



                            Conclusion
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                           Logistique
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