Travellers’ enthusiasm for travel in a post-Covid world is matched only by lawyers’ enthusiasm for the opportunities that offers. Claims brought against air carriers and cruise lines are part of the everyday diet for those of us common and garden travel law practitioners.
Whilst the UK may appear an island, below the surface lurks a connection to our European cousins even Brexit could not sever. The Channel tunnel rail link opened between London and Paris in November 1994 and this coming May will mark the 30th anniversary of the start of a full daily service on Eurostar, offering international carriage by rail between the UK and France and Belgium, as well as onwards connections to numerous other countries.
However long before that, when international rail travel from the UK was but a pipe dream, the United Kingdom was a signatory to the 1980 Berne Convention on the International Carriage by Rail (COTIF), which provided a set of uniform rules for the international carriage of passengers and luggage by rail between or through the territories of State Parties. The most recent version, including Appendix A, known as ‘CIV’, which applies to the carriage of passengers, dates back to 2006. These uniform rules, which cover carriage of goods, dangerous goods, infrastructure and much else besides passengers, now apply across most of Europe, the Mahgreb and even the Middle East, with most of the appendices (including the CIV) covering international rail travel from Norway down to Tunisia and from Morocco across to Iraq.
From 2009 the EU introduced Regulation 1371 of 2007 (which is now retained law), although any conflicts between EU law and COTIF / CIV are a matter for another day. Practically speaking, though, international carriage by rail for British passengers will involve a leg on Eurostar (wherever the point of departure or disembarkation) and certainly Eurostar’s current conditions of carriage specifically refer to CIV.
CIV provides a regime for personal injury claims. A rail carrier is liable to a passenger (without limit since English law does not provide a national limit lower than 175,000 units of account) for the loss or damage resulting from the death of, personal injuries to, or any other physical or mental harm to, a passenger, caused by an accident arising out of the operation of the railway and happening while the passenger is in, entering or alighting from railway vehicles whatever the railway infrastructure used, see Title IV, Chapter I. There are the ‘usual’ defences familiar to aficionados of package travel regulations, and contributory negligence can be relied on by the carrier.
A few points of note: First, it is not an exclusive regime. So where an accident happens in the course of any of the operations of embarking on an aircraft, a passenger’s only right of recourse is against the air carrier (and if the air carrier can escape liability for any reason, there is no other route to claim), that is not the case with rail accidents. If the CIV does not provide a remedy, there is no bar to pursuing the carrier via another route, if one can be found by application of the relevant governing law, or indeed to pursuing anyone else who might be in the frame.
Secondly, unlike the air conventions, where the battle to obtain compensation for psychiatric injury is still raging (and the effect of the CJEU’s ruling in the Laudamotion reference in 2022 on the English courts remains untested) , CIV expressly provides for ‘personal injuries or any other physical or mental harm’, see article 26. So no need to establish physical damage to the brain or to try and shoehorn in a physical consequence of the trauma.
Thirdly, it applies to ‘accidents’. Does that convey the same meaning as the air conventions, either as applied by US Supreme Court in Air France v. Saks (1985) 470 US 392 as covering ‘an unexpected or unusual event or happening that is external to the passenger’ (thereby excluding an ear injury caused by normal depressurisation), the Court of Appeal in Barclay v BA [2008] EWCA Civ 1418 (“a distinct event, not being any part of the usual, normal and expected operation of the aircraft, which happens independently of anything done or omitted by the passenger”) or indeed as developed by the CJEU (“an unforeseen, harmful and involuntary event”, without the requirement either for externality, a connection between the hazard and aviation, or a connection between the ‘accident’ and the operation or movement of the aircraft, Niki Luftfahrt C‑532/18)? Well, partly. The wording of article 26 is instructive, “The carrier shall be liable for the loss or damage resulting from the death of, personal injuries to, or any other physical or mental harm to, a passenger, caused by an accident arising out of the operation of the railway and happening while the passenger is in, entering or alighting from railway vehicles whatever the railway infrastructure used.” So the accident must arise out of the operation of the railway to be a ‘convention accident’, without any requirement that the event was outside the usual operation of the train. Thus a passenger falling over and breaking an arm as the carriage sways in the ordinary motion of the train, or falling from the steps down from the carriage door at the platform would seem to be covered. But someone having a heart attack somewhere under the Channel would not have a remedy against the carrier because that has no connection with the operation of the railway, whilst someone sustaining ear damage because of the normal change of air pressure going through the tunnel might do.
Fourthly, case law from air convention states has long since taken a tolerably expansive approach to the temporal and positional scope of the convention, which in its past and current iteration places liability on the air carrier for accidents which caused the death or injury and which took place on board the aircraft or “in the course of any of the operations of embarking or disembarking.” ‘Any of the operations…’ has covered passengers at the departure gate involved in a terrorist attack (Day v TWA 528 F.2d 31), using airbridges (Labbadia v Alitalia [2019] EWHC 2103 (Admin)) and jetways, walking down steps to the apron (Mather v easyJet [2023] CSIH 8), essentially most parts of the procedures they were required to undertake as a condition of their flight, consistent with the balance struck between consumers and industry ever since Warsaw.
But the same wording does not appear in CIV, where the scope is limited to accidents ‘in, entering or alighting from’ the railway vehicle, without any reference to ‘the operations of…’. In this writer’s opinion, both the express wording and the context fairly emphatically rules out a more expansive approach. A passenger en route to the train platform is not, surely, ‘entering’ the train in any ordinary meaning of the word, even though he is not an entirely free agent at that point because of security or border controls. Whilst there might be a hard to distinguish point on the ramp on the way down from the ticket barrier, for example, where a passenger does get close enough to count as ‘entering’, even that is probably too wide, in circumstances where the application of the convention co-exists with alternative remedies. So a passenger injured before the point of ‘entering’ the train is not shut out from a remedy, only from obtaining that remedy from the rail carrier and without a need (if the governing law would otherwise require it) to prove negligence. A passenger injured on the ramp long before entering the train when he slipped on a guard’s hat carelessly dropped by the guard employed by the rail company could still sue the rail company, it just would not be a convention claim.
Of course, much of the enthusiasm for pursuing air carriers is to avoid the jurisdictional hassle of suing a foreign airport operator or regional carrier or ground staff, and that rationale is no doubt still there for rail passengers. But the CIV, by contrast with the Montreal Convention, does not provide a rail passenger with the option of suing in the courts for the place of his domicile, unless that is coincidentally the forum provided by the booking conditions or where the railway company is domiciled or has its main place of business. Accordingly, a passenger injured on the Eurostar as it draws into Brussels-Zuid will be able to make use of the English courts; a passenger injured walking up the ramp leading from the platform to passport control at Brussels-Zuid will probably have to fit his claim against whoever occupied the ramp (using the English terminology) through one of the jurisdictional gateways set out in Practice Direction 6B. Nor will the passenger who booked a single contract of carriage from London to Nice be able to sue Eurostar in England for an accident which occurred on the Paris to Nice leg, since Eurostar and the SNCF will be successive carriers and each liable separately to the passenger (under the CIV) for their own leg of the carriage.
Claims under the CIV are rare, as the striking dearth of relevant authority shows, although this may of course be due to sensible use of alternative dispute resolution rendering litigation unnecessary. But rail travel is more ecofriendly than air travel, and St Pancras laughs in the face of check in two hours prior. Who knows, this may just be the age of the train. All aboard!
Share:
