Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Chapter C.4: Carriage of passengers

Marco Lopez de Gonzalo

I. General overview

The regulation of international contracts for the carriage of passengers pursues various objectives. First, there is the selection of rules as the governing law of the contract based on a significant connection with the contract and a degree of appropriacy to its nature. Second, there is achievement of uniformity, so that similar contracts are treated equally in as many states as possible.

In addition to these objectives, common to all international contracts, a third purpose is pursued in particular by regulation of international contracts for the carriage of passengers, namely protection of the passenger as the weaker party to the contract.

These different and to some extent conflicting purposes are pursued at different levels. The first level is that of choice-of-law rules. The second level is that of uniform law instruments.

The third level is that of European legislation, which has assumed an ever-increasing role in the regulation of carriage of passengers. On the one hand, European regulations anticipated and extended the application of uniform law instruments and completed their provisions, while on the other hand, consumer-oriented legislation provided additional protection for passengers in areas which were not covered by uniform law instruments.

II. Choice-of-law rules

1. Possible connecting factors

Various →connecting factors could be used for the purpose of selecting the governing law of a contract for the international carriage of passengers, or for determining the scope of application of a uniform law instrument.

Historically the law of the state of registration of the ship or aircraft, termed the ‘law of the flag’, enjoyed a degree of favour, but in more recent times has been criticized as failing to express a significant connection.

The place where the contract was concluded also seems to fall short of a significant connection, in that it may be merely casual, can be manipulated, and is often difficult to establish, particularly with the recent growth of online transactions. However, a more favourable view of the place of contract conclusion as a connecting factor could be taken to the extent that it coincides with the permanent residence of the passenger or with the place where the carrier has established a permanent branch.

Nevertheless, the most relevant and appropriate connecting factors in relation to such contracts seem to be the principal place of business of the carrier, as the party who effects the characteristic contractual performance, or alternatively the place of contractual performance, which could be either the place of departure or the place of destination.

As in all international contracts, freedom of →choice of law could also play a role as a connecting factor, although this role is somewhat curtailed by substantive considerations pertaining to protection of the passenger.

2. The Rome I Regulation

The Rome I Regulation (Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), [2008] p. 270OJ L 177/6; →Rome Convention and Rome I Regulation (contractual obligations)) has a specific rule dedicated to contracts for the carriage of passengers, namely art 5(2). In this respect there is a substantial difference between the Rome I Regulation and its predecessor, the Rome Convention (Rome Convention on the law applicable to contractual obligations (consolidated version), [1998] OJ C 27/34).

Article 5(2) of the Rome I Regulation allows freedom of choice of the governing law also in respect of contracts for the carriage of passengers. However, the choice is restricted to the law of the state where either (i) the passenger has his habitual residence, (ii) the carrier has its habitual residence, (iii) the carrier has its place of central administration, (iv) the place of departure is located, or (v) the place of destination is located. The purpose of these restrictions is apparently that of providing a degree of protection to the passenger, although there is no provision equivalent to those in arts 6(2) or 8(1) in relation to consumer contracts or individual employment contracts.

Absent a valid →choice of law, art 5(2) provides for a combination or cascade of connecting factors. The contract for the carriage of passengers will thus be governed in the first place by the law of the state of the passenger’s habitual residence, but only if the place of departure or the place of destination are also located in that state. Failing such coincidence, the contract will be governed by the law of the state of the carrier’s habitual residence.

Article 5(3) provides for an →escape clause whereby if it is clear from all the relevant circumstances that the contract is ‘manifestly more closely connected’ with a different country, then absent a choice of law the law of that different country will apply.

The choice-of-law rules laid down in art 5(2) of the Rome I Regulation coexist with several uniform law instruments in the field of international carriage of passengers, and it is generally thought that these instruments should take precedence. Various rationales have been suggested for this precedence. One is based on art 25(1) of the Rome I Regulation, where the reference to international conventions which lay down choice-of-law rules is construed so as to include the provisions in uniform law instruments which define their scope of application. Another rationale is based on the assertion that choice-of-law rules and uniform law instruments operate on different levels, so that the former would only become necessary in those situations falling outside the scope of application of the latter.

III. Uniform law instruments

1. Carriage by air

The history of uniform law instruments regarding carriage by air began in 1929 with the Warsaw Convention (Convention of 12 October 1929 for the unification of certain rules relating to international carriage by air, 137 LNTS 11). The rapid developments of carriage of passengers by air and the substantial changes in its socio-economic and technological aspects required frequent revisions of the applicable uniform law rules. In particular over the years, the rule providing for limited compensation in respect of death or injury claims came under increasing criticism and was challenged on public policy grounds (see Italian Constitutional Court judgment 6.5.1985 no 132, Coccia v Turkish Airlines [1985] Dir Marit 751). Eventually, the uniform law regarding carriage of passengers by air was reorganized in the 1999 Montreal Convention (Convention of 28 May 1999 for the unification of certain rules relating to international carriage by air, 2242 UNTS 309), which currently remains the culminating point of its development.

The Montreal Convention applies to the international carriage of passengers. Article 1 defines its scope of application, according to which ‘international’ means that the place of departure and the place of destination must be located, according to the agreement between the parties, in two different states. In addition, both states must be contracting states to the Convention. Carriage between two places located in the same contracting state (including eg a round trip) can also be considered ‘international’ if there is an agreed intermediate stopping place in another state.

The Montreal Convention deals with the liability of both the contracting carrier (ie the person who, as a principal, makes a contract of carriage with a passenger) and the actual carrier (ie the person who, by virtue of an authorization from the contracting carrier, performs the whole or part of the carriage). The liability of (i) the contracting carrier for the entire carriage and (ii) the actual carrier for the part it performs are both subject to the Convention. The contracting carrier and the actual carrier are p. 271jointly and severally liable towards the passenger, who can sue either or both at his option. The provisions of the Convention also apply to the liability of servants or agents of the contracting and actual carrier, when acting within the scope of their employment.

Article 29 Montreal Convention states that any action for damages against either the contracting or the actual carrier or their respective servants or agents ‘can only be brought subject to the conditions . . . as are set out in this Convention’. There is a debate as to whether this means that no action can be brought against the carrier pursuant to a national law, which seems to be the prevalent view, or whether an action pursuant to a national law could be admissible for those heads of damages not recoverable under the Convention.

The Montreal Convention does not define the contract of carriage in relation to similar contracts, but it only requires carriage to be ‘for reward’ or, if gratuitous, to be performed by an air transport undertaking. In terms of space and time, the carriage of passengers to which the Convention provisions apply extends to ‘any of the operations of embarking and disembarking’.

According to art 38(1), in the case of combined carriage performed partly by air and partly by some other mode of transport, the Convention provisions apply only to the carriage by air, provided that it would itself be subject to the Convention.

The provisions of the Montreal Convention governing liability of the carrier are mandatory, in that they cannot be varied to the detriment of the passenger. Any contractual clause tending to lessen the liability of the carrier, including choice-of-law or choice-of-forum clauses, is accordingly invalid.

The liability of the carrier of passengers as laid down by the Montreal Convention is often described as a ‘two-tier’ system. In the first ‘tier’, the carrier incurs strict liability towards the passenger for death or bodily injury up to the amount of 113,100 (originally 100,000) SDR. This liability arises by the mere fact that the accident which caused the death or injury took place on board the aircraft or during the operations of embarking or disembarking. In the second ‘tier’, the carrier would be able to avoid liability for amounts in excess of 113,100 SDR if it can establish that the damage was not caused by its own or its servants’ and agents’ negligence or wrongful act, or alternatively that such damage was solely due to the negligence or wrongful act of a third party.

Article 17(1) Montreal Convention requires for the carrier’s liability to arise that the death or bodily injury of the passenger be caused by an ‘accident’. Although the notion of ‘accident’ is not defined in the Convention, it is generally held that it must be an ‘anomaly’ in the operation of the aircraft, ie something unexpected and unusual.

Under art 17(1) Montreal Convention, the carrier is liable for the death or ‘bodily injury’ of the passenger. Therefore, purely mental injuries, ie those mental injuries which are neither the consequence of a bodily injury nor produce a physical alteration, cannot be compensated under the Convention.

The Montreal Convention is silent regarding which consequences of death or bodily injury must be compensated as well as how such compensation should be calculated. The only uniform rule in this respect is in art 29 whereby punitive, exemplary or other non-compensatory damages are excluded. Apart from this negative rule, the admissible heads of damages and the amount of compensation are to be determined by the applicable national law. It is generally accepted, and was recently confirmed by the ECJ (see judgment of 6 May 2010, Case C-63/09 Walz v Clickair [2010] ECR I-4239), that compensation can include both material and non-material damage (pain and suffering, loss of enjoyment, loss of health etc).

According to art 50 Montreal Convention, ‘State Parties shall require their carriers to maintain adequate insurance covering their liability’. Uniform rules in this respect are now adopted for the EU by the Second Air Insurance Regulation (Commission Regulation (EU) No 285/2010 of 6 April 2010 amending Regulation (EC) No 785/2004 on insurance requirements for air carriers and aircraft operators, [2010] OJ L 87/19) (see below).

Under art 19 Montreal Convention, the carrier is also liable for delay in the carriage of passengers, unless it establishes that it and its servants and agents took all reasonable measures to avoid such delay or that it was impossible to take such measures. The carrier’s liability for delay in the carriage of passengers is limited to 4,694 SDR (originally 4,150).

Claims for loss of life or bodily injury, as well as claims for delay, become time-barred if no action is brought within two years from either the date of arrival at destination, or from the p. 272date when the aircraft should have arrived, or from the date when carriage was stopped.

2. Carriage by sea

The first attempts to achieve a uniform regime for the international carriage of passengers by sea, namely the International Convention of 29 April 1961 for the unification of certain rules relating to the carriage of passengers by sea, 1411 UNTS 81, and the International Convention of 27 May 1967 for the unification of certain rules relating to carriage of passengers’ luggage by sea, RMC.I.5.160, II.5.160; [1968] I CMI Documents 12, did not meet with success. The next step was the Athens Convention 1974 (Athens Convention of 13 December 1974 relating to the carriage of passengers and their luggage by sea, 1463 UNTS 20), which was subsequently amended by the 1976 London Protocol (Protocol of 19 November 1976 to the Athens Convention relating to the carriage of passengers and their luggage by sea, 1974, 1545 UNTS 339), the 1990 London Protocol (Protocol of 29 March 1990 to amend the Athens Convention relating to the carriage of passengers and their luggage by sea, 1974), and more substantially by the Protocol of 2002 (renamed Athens Convention of 1 November 2002 relating to the carriage of passengers and their luggage by sea, IMO Doc LEG/CONF.13/20 (19 November 2002), henceforth the Athens Convention 2002).

The Athens Convention 1974, as amended by the 2002 Protocol, applies to contracts for the international carriage of passengers and their luggage. For this purpose, carriage is ‘international’ when it takes place between ports located in two different states or between ports located in the same state with an intermediate call at a port in a different state.

In addition to the carriage being ‘international’, there must also be a connecting factor with a contracting state. More precisely, either (i) carriage is performed by means of a ship registered in a contracting state, (ii) the contract has been concluded in a contracting state, or (iii) the place of departure or destination, according to the contract, is located in a contracting state.

Even when the Athens Convention 1974 applies, some aspects would still be governed by domestic law. More precisely, the Convention refers to the →lex fori (i) in art 6 for the relevance of contributory fault of the passenger, (ii) in art 7 for the possibility of awarding damages in the form of periodic payments, and (iii) in art 16 for determining the grounds for suspension or interruption of limitation periods.

Following the model of carriage by air, the Athens Convention 1974 deals with liability of both the ‘carrier’ (ie the contractual carrier) and the ‘performing carrier’ (which is basically the same concept as the ‘actual carrier’). The liability of both the carrier and the performing carrier for their respective parts of the carriage is subject to the Convention. The carrier and the performing carrier are jointly and severally liable towards the passenger.

The Convention provisions also apply to liability of the servants or agents of the carrier and the performing carrier, when acting within the scope of their employment.

Article 14 Convention states that no action for damages can be brought against a carrier or performing carrier ‘otherwise than in accordance with this Convention’.

The Athens Convention 1974 does not define the contract of carriage in relation to similar contracts. It would seem that the only requirement is that there must be a contract, which would exclude carriage performed out of mere courtesy, while there is no requirement that such a contract implies a monetary reward.

Article 2(2) provides that the Convention does not apply when the carriage is subject to another uniform law instrument relating to a different mode of carriage, to the extent the provisions of the latter have mandatory application to the carriage by sea.

The carriage by sea to which the Convention provisions apply extends to the period during which the passenger is on board or in the course of embarkation or disembarkation. This includes carriage by water from land to the ship and vice versa, whether included in the fare or otherwise provided by the carrier, but excludes the period during which the passenger is in a terminal or other port installation.

The Athens Convention 1974 provisions governing liability of the carrier are mandatory, ie they cannot be varied to the detriment of the passenger. According to art 18 Convention, any contractual provision purporting to exclude or lessen the liability of the carrier is invalid.

A prominent feature of the Athens Convention 1974 is that the liability of the carrier for death or ‘personal injury’, which incidentally seems to be a broader notion than the ‘bodily injury’ of the Montreal Convention, is subject to two different regimes, depending on p. 273whether the passenger’s death or injury was due to a ‘shipping incident’. It is generally held that the burden of establishing that a shipping incident was the cause of damage is borne by the passenger.

‘Shipping incident’ is defined in art 3(5) Athens Convention 1974 as meaning ‘shipwreck, capsizing collision or stranding of the ship, explosion or fire in the ship or defect in the ship’. This list of events is to be considered a closed list, ie not capable of extension by analogy.

The carrier’s liability for damages arising from a shipping incident is based on a ‘two-tier’ system set out in art 3, which to some extent resembles that of the Montreal Convention. Up to the amount of 250,000 SDR there is an almost strict liability, ie the carrier is liable for death or personal injury unless he establishes that the incident (i) resulted from an act of war, hostilities, civil war, insurrection (which notably does not include terrorism) or from a natural phenomenon of an exceptional, inevitable and irresistible character, or (ii) was wholly caused by an act or omission by a third party done with the intent to cause the incident.

Above this first tier, the carrier is liable unless he establishes that the incident which caused the loss occurred without his fault or neglect.

When the death of or personal injury to a passenger is not caused by a shipping incident, the carrier is liable only if the claimant establishes that damage was caused by the carrier’s fault or neglect.

In all cases, ie irrespective of whether the death or personal injury was caused by a shipping incident, the carrier’s liability is limited to 400,000 SDR. Contracting states may enact a higher limitation by domestic law.

The right to limit the carrier’s liability is lost if damage resulted from an act or omission of the carrier done with the intent to cause such damage or recklessly and with knowledge that such damage would probably result.

The Athens Convention 1974 is silent regarding which consequences of the passenger’s death or personal injury must be compensated, and how such compensation should be calculated. These issues are accordingly to be determined under the applicable national law, with only the exclusion under art 4(5)(d) Convention whereby punitive or exemplary damages are inadmissible.

Article 4bis, which was added to the Convention by the 2002 Protocol, sets out in detail the requirements for compulsory insurance in connection with the carriage of passengers by sea. Any carrier who actually performs the whole or part of the carriage, be it a ‘contracting’ or ‘actual’ carrier, must maintain insurance or other financial security to cover liability for death or personal injury under the Convention, to an amount not less than 250,000 SDR per passenger. This provision applies to carriage of passengers on board ships registered in a contracting state and licensed to carry more than 12 passengers. Contracting states must issue certificates attesting that insurance or other financial security is in place as required by the Convention and may not permit (i) a ship under their →flag to operate without a certificate and (ii) ships with a different flag to enter or leave a port in their territory without a certificate. Compensatory claims covered by the insurance or other financial security can be brought directly against the insurer or other person providing financial security.

Claims for death or personal injury become time-barred after a period of two years. Article 16(3) Convention refers to the law of the court seized in order to determine the grounds for suspension and interruption of the limitation period.

3. Carriage by rail

The first achievement in the direction of uniform regulation of international carriage by rail dates back to the end of the 19th century, with a convention signed at Berne in 1890 concerning the international carriage of goods by rail. The first uniform law instrument dealing with international carriage of passengers by rail was the 1923 Berne Convention. At present, the uniform law of international carriage of passengers by rail is provided by the COTIF (Convention of 9 May 1980 concerning international carriage by rail, 1396 UNTS 2, in the version of the Protocol of Modification of 3 June 1999, available at <www.otif.org>), with its Appendix A (CIV), as amended by the 1999 Vilnius Protocol (Protocol of 3 June 1999 for the modification of the Convention concerning international carriage by rail, UNTS registration no A-23353).

Carriage by rail has traditionally been performed by monopolies, more recently by state monopolies which also owned and managed the relevant infrastructure, and only in recent times has a liberalization process developed in Europe. Public authority involvement has also influenced the structure of the international p. 274regulation of carriage by rail, whereby uniform rules for the contract of carriage are set within a framework of intergovernmental and administrative provisions. Such a framework is provided by the COTIF, which establishes an international organization (OTIF). The OTIF is then entrusted, under art 2(1) COTIF, among others with the task of drafting uniform rules for the international carriage of passengers by rail, the uniform rules found in Appendix A to the COTIF, namely the CIV Rules.

The CIV Rules apply to all contracts, whether or not they are remunerated, for the carriage of passengers between a place of departure and a place of destination located in two different contracting states.

The uniform rules also apply when a single contract for the international carriage by rail includes (i) a leg of transport by road or inland navigation within a contracting state or (ii) a leg of transport by sea or by international inland navigation, provided that such services have been registered in a list pursuant to art 24(1) COTIF.

The provisions on liability of the CIV Rules apply, irrespective of whether the action is framed in contract or in tort, both (i) to the ‘carrier’, ie the carrier who concluded the contract or successive carrier who is liable on the basis of the contract, and (ii) to the ‘substitute carrier’, ie a carrier who has not concluded the contract but to whom the carrier has entrusted, in whole or in part, the performance of the carriage, as well as (iii) to their respective servants or agents and to the manager of the infrastructure on which the carriage is performed.

The CIV Rules are mandatory, in that they cannot be varied to the detriment of the passenger. Accordingly any stipulation which directly or indirectly purports to derogate from the Rules is invalid.

Pursuant to art 26 CIV Rules, the carrier is liable for death of or personal injury or ‘any other physical or mental harm’ to a passenger which (i) was caused by an accident arising from the operation of the railway and (ii) happened while the passenger was in the railway vehicle or entering or alighting from it; accordingly, there is no restriction to purely ‘bodily’ injury. Under art 26(2), the carrier can be relieved from liability only if the accident (i) was caused by circumstances, not connected with the operation of the railway, which in spite of having taken the care required in the circumstances of the case, he could not avoid and the consequences of which he was unable to prevent, (ii) was caused by fault of the passenger, or (iii) was caused by the behaviour of a third party which the carrier, in spite of having taken the care required in the circumstances of the case, could not avoid and the consequences of which he was unable to prevent. In the case of concurring liability of the carrier and of a third party, the former remains liable in full, subject to the limitation provided in art 30(2), without prejudice to his right of recourse towards such third party.

Unlike other instruments of uniform law concerning the international carriage of passengers, the CIV Rules set out in some detail which heads of damage caused by the passenger’s death or injury must be compensated under the uniform rules. Under art 27, in case of death, damages will include (i) costs, such as those for the transport of the body and funeral expenses, (ii) if death is not immediate, damages pursuant to art 28, and (iii) compensation for loss of economic support in favour of those persons whom the passenger had a duty to maintain. In case of personal injury, art 28 states that compensation can include (i) costs, such as those for treatment or transport and (ii) financial loss due to reduced working capacity or increased needs.

Other heads of damages, apart from those listed in arts 27 and 28 CIV Rules, such as loss of economic support by persons whom the passenger maintained without having a legal duty to do so, can be compensated on the basis of national law.

The liability of the carrier for death or personal injury under the CIV Rules is limited, pursuant to art 30(2), to 175,000 SDR. However this limitation applies only if the national law provides for a lower limitation, so that if the national law provides for a higher limitation or no limitation at all, then the national regime more favourable to the passenger shall apply.

According to art 48 CIV Rules, the carrier loses its right to limitation if the death or personal injury resulted from an act or omission of the carrier committed either intentionally or recklessly and with knowledge that damage would probably result.

Liability for delay is dealt with in art 32 CIV Rules. Liability arises when ‘by reasons of cancellation, late running of a train or a missed connection’, the passenger’s journey cannot be continued the same day. The damages to be compensated include the reasonable costs of accommodation and those for notifying the persons expecting the passenger. The carrier is p. 275relieved from liability only in the same circumstances set out by art 26(2) in respect of liability for death or personal injury.

Claims for death or personal injury become time-barred if a notice of the accident is not given within 12 months to one of the carriers involved in the carriage, as specified in art 55. However, the claim will not be time-barred in the circumstances set out in art 58.2, namely when (i) the carrier who is liable has learned of the accident in some other way, (ii) notice of the accident has not been timely given as a result of circumstances not attributable to the claimant, or (iii) the claimant proves that the accident was caused through the carrier’s fault.

IV. European law

1. Carriage by air

The intervention of European law in the area of international carriage of passengers by air has taken two directions. In the first place it anticipated and extended the application of uniform rules on the liability of the carrier. On a different level, it increased the protection for the passenger as a consumer.

The first line of action was initially pursued by the First Air Carrier Liability Regulation (Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in the event of accidents, [1997] OJ L 285/1). Considering the provisions of the Warsaw Convention to be inadequate, even after amendment by the Hague Protocol (Protocol of 28 September 1955 to amend the Convention for the unification of certain rules relating to international carriage by air, 478 UNTS 371), and by the Guadalajara Supplementary Convention (Convention of 18 September 1961, supplementary to the Warsaw Convention, for the unification of certain rules relating to international carriage by air performed by a person other than the contracting carrier, 500 UNTS 31), the First Air Carrier Liability Regulation imposed on all EC air carriers the application of liability rules in respect of death of or injury to the passenger which basically corresponded to what would then become the Montreal Convention, namely (i) unlimited liability for fault and (ii) strict liability up to a first tier of 100,000 SDR.

Other provisions of the Second Air Carrier Liability Regulation (Regulation (EC) No 889/2002 of the European Parliament and of the Council of 13 May 2002 amending Council Regulation (EC) No 2027/97 on air carrier liability in the event of accidents, [2002] OJ L 140/2) concerned (i) the duty of the carrier to provide, not later than 15 days from identification of the entitled person, advance payments, of no less than 15,000 SDR in case of death and (ii) the duty of the carrier to include in its standard terms and conditions a clear statement reflecting the liability rules to be applied pursuant to the Regulation itself.

When the Montreal Convention was eventually signed in 1999, the EC not only ratified it but also, by means of the Second Air Carrier Liability Regulation, made its provisions on the carrier’s liability applicable to domestic flights within Member States of the EC.

Both the First and the Second Air Carrier Liability Regulation stated in rather imprecise terms the carrier’s obligation to be insured in respect of its liability towards passengers. More clarity was achieved in this respect by the First Air Insurance Regulation (Regulation (EC) No 785/2004 of the European Parliament and of the Council of 21 April 2004 on insurance requirements for air carriers and aircraft operators, [2004] OJ L 138/1), then amended by the Second Air Insurance Regulation, which fixed the minimum level of mandatory liability insurance at 250,000 SDR per passenger.

The first step on the consumer protection line of action was Council Regulation (EEC) No 295/91 of 4 February 1991 establishing common rules for a denied-boarding compensation system in scheduled air transport, [1991] OJ L 36/5, which was then replaced by the Passenger Rights Regulation (Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, [2004] OJ L 46/1) ‘establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delays of flights’. As appears from its title, the Passenger Rights Regulation deals with three malfunctions of the air carriage of passengers, which, even if they do not cause major injuries or losses, still frequently distress passengers: namely (i) denied boarding (mainly due to overbooking), (ii) cancellation of a flight and (iii) long delay.

The Passenger Rights Regulation applies to all passengers p. 276departing from an airport located in a Member State as well as to passengers departing from an airport located in a non-Member State with destination to an airport in a Member State if the flight is operated by an EC carrier.

The remedies available to affected passengers are (i) reimbursement of the ticket or re-routing, (ii) right to assistance in the form of meals, refreshments, hotel accommodation and local transport, as appropriate, and (iii) in the cases of denied boarding and cancellation also monetary compensation; in the case of cancellation. However, compensation is not due if the carrier proves that such cancellation was caused by ‘extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken’.

The duty to provide such remedies is imposed upon the operating carrier, without prejudice to its right of redress against any other responsible party.

Article 15 Passenger Rights Regulation clarifies that the provisions determining passenger rights are mandatory and accordingly cannot be waived or limited by contractual clauses.

The remedies afforded by the Regulation do not prevent passengers from seeking further compensation eg under the national or international rules governing the contract of carriage.

The ECJ has on numerous occasions had to decide issues relating to the Passenger Rights Regulation. In the first and perhaps most important decision (Case C-344/04 The Queen, on the Application of International Air Transport Association and European Low Fares Airline Association v Department for Transport [2006] ECR I-403) the ECJ ruled that the Passenger Rights Regulation was not inconsistent with the Montreal Convention and therefore could not be held invalid. The ECJ found that the remedies provided by the Passenger Rights Regulation operate on a level different from that of the Montreal Convention and therefore should be considered complementary rather than inconsistent with the Convention.

In other decisions the ECJ extended the protection offered by the Regulation, eg by finding that in certain circumstances delay must be considered as equivalent to cancellation (Case C-402/07 Christopher Sturgeon, Gabriel Sturgeon and Alana Sturgeon v Condor Flugdienst GmbH (C-402/07) and Stefan Böck and Cornelia Lepuschitz v Air France SA (C-432/07) [2009] ECR I-10923), by giving a narrow construction of the ‘exceptional circumstances’ which exonerate the carrier from compensation (Case C-549/07 Friederike Wallentin-Hermann v Alitalia – Linee Aeree Italiane SpA [2008] ECR I-11061 and judgment Case C-294/10 Andrejs Eglītis and Edvards Ratnieks v Latvijas Republikas Ekonomikas ministrija [2011] ECR I-3983) and by construing ‘denied boarding’ as not limited only to overbooking (Case C-83/10 Aurora Sousa Rodríguez and Others v Air France SA [2011] ECR I-9469).

2. Carriage by sea

The developments of European law in the area of international carriage of passengers by sea followed a pattern which is similar to that described in relation to carriage of passengers by air.

The Athens Regulation (Regulation (EC) No 392/2009 of the European Parliament and of the Council of 23 April 2009 on the liability of carriers of passengers by sea in the event of accidents, [2009] OJ L 131/24) incorporates the provisions of the Athens Convention 1974 and makes them applicable to international carriage as defined in the Convention, as well as to domestic carriage when performed by ships of classes A and B under art 4 of Council Directive 98/18/EC of 17 March 1998 on safety rules and standards for passenger ships, [1998] OJ L 144/1, provided that there is a connecting factor with a Member State in the same terms as required pursuant to art 2(1) Athens Convention 1974. The Athens Convention 1974 provisions incorporated into the Athens Regulation are supplemented by the IMO Reservation and Guidelines for Implementation of the Athens Convention adopted on 19 October 2006 (attached to Circular letter No 2758, on 20 November 2006, ref. A1/P/5.01, and attached as Annex II to the Regulation 392/2009 of the European Parliament and of the Council of 23 April 2009 on the liability of carriers of passengers by sea in the event of accidents, OJ L 131/24), which are therefore made binding.

The liability regime is accordingly that resulting from arts 3 to 16 Athens Convention 1974 and the insurance provisions are those of art 4bis of the same Convention but, as a result of incorporation of the IMO Guidelines into the Regulation, liability insurance is also required in relation to war risks as defined in art 2(2) of the Guidelines (ie also including terrorism), and the carrier’s liability in respect of death or personal injury caused by such risks is limited to 250,000 SDR per passenger p. 277or 340,000,000 SDR overall per ship on each distinct occasion.

Other provisions of the Athens Regulation concern (i) the liability of the carrier in the event of loss of or damage to equipment used by passengers with reduced mobility, which is made subject to the same rules provided by art 3(3) Athens Convention 1974 in respect of cabin luggage, (ii) the duty of the carrier who actually performed the carriage, in case of death or personal injury caused by a shipping incident, to make an advance payment, which in case of death must be no less than 21,000 SDR, and (iii) the duty of the carrier to provide passengers with ‘adequate and comprehensible information’ regarding their rights under the regulation.

Following a pattern similar to that adopted by the Passenger Rights Regulation in relation to carriage by air, the Sea Passenger Rights Regulation (Regulation (EU) No 1177/2010 of the European Parliament and of the Council of 24 November 2010 concerning the rights of passengers when travelling by sea and inland waterway and amending Regulation (EC) No 2006/2004, [2010] OJ L 334/1) deals with the rights of passengers when travelling by sea or inland waterway.

The Sea Passenger Rights Regulation applies (i) to passenger services where the port of embarkation is in a Member State, (ii) to passenger services where the port of embarkation is in a non-Member State but the port of disembarkation is in a Member State and the carrier is established in a Member State or offers passenger services operated to or from a Member State, and (iii) cruises where the port of embarkation is in a Member State.

The Regulation deals with the rights of passengers in the event of interrupted travel, ie cancelled or delayed departures. Denied boarding was not considered relevant in connection with carriage of passengers by sea.

The remedies available to passengers are (i) re-routing or reimbursement of the ticket, (ii) assistance in the form of meals, refreshment and accommodation (on board or ashore), or (iii) monetary compensation in an amount which varies depending on the extent of the delay. Accommodation is not due when the cancellation or delay is caused by weather conditions endangering the safe operation of the ship. Monetary compensation is not due when the cancellation or delay is caused by weather conditions (as above) or by other extraordinary conditions ‘which could not have been avoided even if all reasonable measures had been taken’.

While the duty to provide such remedies is in the first place imposed on the contractual carrier, art 5(2) also states that the performing carrier shall be subject to the provisions p. 278of the Regulation.

The provisions of the Sea Passenger Rights Regulation determining passenger rights are mandatory and accordingly cannot be waived or limited by contractual clauses.

The remedies afforded by the Regulation do not preclude passengers from seeking further damages in accordance with the applicable law including Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours, [1990] OJ L 158/59.

3. Carriage by rail

Following a similar pattern to that of the Second Air Carrier Liability Regulation in respect of carriage by air, the Rail Passenger Rights Regulation (Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations, [2007] OJ L 315/14) implemented the provisions of the CIV Rules within the EU.

The Regulation in fact applies ‘to all journeys and services throughout the Community provided by one or more railway undertakings licensed in accordance with Council Directive 95/18/EC’. Article 11 Rail Passenger Rights Regulation provides that the railway carrier’s liability in respect of passengers and their luggage is governed by the relevant provisions of the CIV Rules.

The provisions of the CIV Convention regarding the carrier’s liability are then supplemented by further specific provisions of the Regulation, concerning mandatory insurance in respect of liability towards passengers and advance payments to be made if a passenger is killed or injured, within 15 days and, in case of death, in an amount not less than € 21,000.

Chapter IV of the Rail Passenger Rights Regulation deals with the carrier’s liability for delay, missed connections and cancellations. The model is that of the Passenger Rights Directive for carriage by air, although there are certain differences in the relevant events and in the available remedies.

In the case of an expected delay in the arrival at final destination exceeding 60 minutes, art 16 of the Regulation gives the passenger an option between reimbursement of the ticket or re-routing. Under art 17, in the case of delay for which the ticket has not been reimbursed pursuant to art 16, the passenger is entitled to monetary compensation to an amount between 25 per cent of the ticket price for a delay between 60 and 119 minutes and 50 per cent of the ticket price for a delay of 120 minutes or more. The ECJ (Case C-509/11 ÖBB-Personenverkehr AG [2013] OJ C 344/12) ruled that the compensation provided by art 17 of the Regulation is also due when delay is due to force majeure or another exonerating circumstance under art 22.2 of the CIV Rules.

In case of delay exceeding 60 minutes the passenger is also entitled to meals, refreshments, accommodation and, if the train is blocked on the tracks, transport to a railway station.

The provisions of the Regulation determining passenger rights are mandatory and cannot be waived or derogated by contract.

Literature

  • Kinga Arnold and Pablo Mendes de Leon, ‘Regulation (EC) 261/2004 in the Light of the Recent Decisions of the European Court of Justice’ [2010] Air & Space Law 91;

  • Ignacio Arroyo, ‘Notas sobre el contrato de pasaje’ [1993] An.Der.Mar. 273;

  • Francesco Berlingieri, Le convenzioni internazionali di diritto marittimo e il codice della navigazione (Giuffrè 2009);

  • Isabelle Bon-Garcin, ‘L’évolution du droit des transports en Europe’ [2008] R.D.T. 10;

  • Andrea Bonomi, ‘The Rome I Regulation on the Law Applicable to Contractual Obligations’ [2008] YbPIL 163;

  • Sergio M Carbone, Conflits de lois en droit maritime (M Nijhoff Publishers 2010);

  • Jonathan Chambers, ‘The Meaning of Accident in the Air’ [2010] LMCLQ 19;

  • Patrick Griggs, ‘Le Protocol d’Athènes’ [2002] DMF 291;

  • Julian Hermida, ‘The New Montreal Convention: The International Passenger’s Perspective’ [2001] Air & Space Law 150;

  • Anthony Mercer, ‘Liability of the Air Carrier for Mental Injury under the Warsaw Convention’ [2003] Air & Space Law 147;

  • Gerfried Mutz, ‘Vers un nouveau droit de transport international ferroviaire’ [1996] Rev.Dr.Unif. 442;

  • Erik Røsoeg, ‘New Laws on Passengers’ Rights’ [2010] Scand. Inst. Mar. L. 325;

  • Thomas J Whalen, ‘The New Warsaw Convention: The Montreal Convention’ [2000] Air & Space Law 12.