Law in practice

In accordance with Articles 36 to 43 CIV, passengers are entitled to compensation for any delay in the delivery of their registered luggage. How much does that compensation amount to for a bicycle delivered two days late? Who should pay the compensation?

A Swiss passenger, going to Austria for a holiday, handed his bicycle to SBB for SBB to take it to his holiday destina­tion. The bicycle was delivered two days late, the passenger should be entitled to compensation for delay equivalent to:

• 28 SDR1) (= approximately € 32) if he is able to prove that he sustained a loss as a result of this delay, for example, that he had to hire a replacement bicycle or use other means of transport to make the journeys he had planned; or
• —5.6 SDR (=approximately € 6.40) if he is not able to prove such loss.

The compensation does not have to be paid in the event of force majeure or fault of the customer.

The passenger may claim compensation from the first or the last carrier or from the carrier providing carriage when the delay occurred. In this particular case, action may be taken against either carrier, SBB and ÖBB.

The principles for sharing out compensation for delay to registered baggage between railway undertakings are no longer covered by multi-national agreements because reg­istered luggage for international journeys has become so rare. Carriers providing the service should therefore provide for sharing out compensation in their contracts for working together.

Isabelle.Oberson(at)cit-rail.org / Original: FR / 2014-10-24
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1) SDR = ‘special drawing right’. The rate of exchange between the SDR and the euro and other national currencies may be found on the International Monetary Fund website:
http://www.imf.org/external/np/fin/data/param_rms_mth.aspx

In what circumstances do passengers have the right to meals and refreshments?

Article 18 § 2 of Regulation (EC) No 1371/2007 on rail passengers’ rights and obligations (PRR) provides that “passengers shall also be offered free of charge meals and refreshments in reasonable relation to the waiting time, if they are available on the train or in the station, or can reasonably be supplied”. Do passengers who miss their connections because the first train was ten minutes late and who thus arrive sixty minutes late at their final destination because they take the next train, have a right to refreshments?

The right to meals and refreshments comes within the meaning of “standardised and immediate measures”. The European Court of Justice distinguished these from individual compensation dependent on the circumstances of the delay or cancellation of the transport service in its judgment on the IATA case (C-344/04). On the basis of this precedent, the CIT made a clear distinction in points 9 and 10 of the GCC-CIV/PRR between Article 18 PRR which provides for a series of collective actions (information on delays, distribution of meals and refreshments, organisation of accommodation, organisation of alternative transport) and Article 17 PRR which provides a right to compensation of 25 or 50% of the fare in the event of a delayed arrival and Article 32 CIV which provides a right to a hotel in the event of the last connection of the day being missed.

Article 18 PRR applies in the event of delays to trains on arrival or departure in excess of sixty minutes, whatever the cause of delay. By contrast, Article 17 PRR applies in the event of a delay to a passenger at the destination shown on his contract if the cause of the delay is attributable to the carrier.

In consequence, passengers who miss their connection because of a delay of ten minutes do not have a right to meals or refreshments. It is only if the train has a significant delay, in excess of sixty minutes, that passengers may claim refreshments or a meal. Distribution of refreshments is not on an individual basis; indeed it can hardly be individual for wholly practical reasons. In practice, assistance is provided in the train itself or in the station if the train is cancelled. The fact that passengers may arrive at their final destination with a delay of ten minutes or three hours isn’t taken into account at that stage. It may be that passengers affected by the delay to a train have a connection for a TGV two hours later (very common in Paris, for example) and in the end have no delay whatever at their final destination. Those passengers nevertheless receive assistance on their first train. Transport undertakings may not take individual delays into account at that stage. Individual delays are handled by undertakings’ customer service departments when passengers make claims.

Isabelle.Oberson(at)cit-rail.org / Original: FR / 2011-10-07

Returning from their skiing holiday in Austria, two passengers entrusted their skis to ÖBB to send to Switzerland. To begin with the skis were lost in Austria; after forty days they were found and sent on to their destination. During this period, the passengers hired new skis at a cost of around €1 000. To what compensation are the passengers entitled?

In accordance with Article 40 CIV, if registered luggage is not delivered within the fourteen days which follow the expected date of delivery, it may be considered to be lost. In that case the passenger will receive compensation equal to the value of the loss proven up to a maximum of 1 200 special drawing rights (SDR), equivalent to €1 344 (1), or if the value of the loss is not proven, compensation of SDR 300 (€336) per missing item.

If the luggage is recovered within a year, the carrier must notify the passenger and offer to deliver his luggage. In accordance with Article 43 CIV, the passenger has thirty days in which to accept delivery and return the compensation received for the loss. Nevertheless, the passenger is entitled to compensation for delayed delivery. This amounts to SDR 14 per day for up to a maximum of fourteen days, this thus is a maximum of SDR 196 (€220) per item.

In the case in point, the passengers are entitled to €440 for the two pairs of skis delivered late. On the other hand however, they are not entitled to compensation for the hire charges for new skis during the forty days of delay. The CIV Uniform Rules in fact cover liability for registered luggage exhaustively.

They do not leave any scope for the application of national law in contrast to the provisions for liability for personal injury or liability for delay. For the latter two, Articles 29 and 32 § 3 CIV refer specifically to national law for loss and damage not covered by the CIV Uniform Rules.

(1) DTS 1 = € 1.12 (rate on 30 May 2011 according to www.imf.org ).

Isabelle.Oberson(at)cit-rail.org Original :FR

A Danish passenger who was travelling by train to a German airport missed his flight to the United States because of a fault on the train. Which railway undertaking (DSB or DB) should handle his claim and, as appropriate, pay compensation?

Under Article 55 § 2 CIV, passengers may make claims to the first or last carrier or the carrier having performed the part of carriage on which the event giving rise to the proceedings occurred. In addition he may bring an action against these same carriers. The law of forum will determine the extent of his right to be compensated for the fare for the missed flight.

The carriers in question may agree amongst themselves who will handle claims, pay compensation to passengers and bear the costs. In principle, members of the CIT settle these issues in accordance with the AIV (Agreement concerning the Relationships between Carriers in respect of International Passenger Traffic by Rail). However, the AIV does not currently cover the issue of which undertaking should handle a claim from a passenger who has missed his flight because an international train has been delayed. In fact, the AIV only covers those heads of liability explicitly specified by the CIV Uniform Rules and by the PRR. It is difficult to imagine international standardisation of those heads of liability which arise solely from national law (principally compensation for missed flights). Railway undertakings therefore need to make any agreements that are necessary.

In the absence of such agreements, Article 62 § 1 CIV covers the allocation of compensation paid under the CIV Uniform Rules. For compensation paid under the PRR or national law, any allocation between the carriers will depend on the national law applicable.

Isabelle.Oberson(at)cit-rail.org Original: FR

When travelling by train, sometimes, personal belongings can get stolen. Article 15 CIV UR explicitly recognises the responsibility of passengers to supervise their hand luggage. But what if a representative of the train staff asks a passenger to put his suitcase in a special space designated for hand luggage, which does not fit under the seat or on the shelf above the seat? Does liability shift in this case? In its recent decision the Highest Court of Austria (“Oberster Gerichtshof”) clarified the status of responsibility for the hand luggage on board of a train.

In the case 1Ob231/15z the Highest Court of Austria dealt with a claim by a passenger travelling from Budapest to Salzburg, whose luggage was stolen while stored in a special luggage space, which was not well visible from the passenger’s seat. The passenger claimed damages in the amount of 7’600 EUR due to the fact that in light of the indication by the train staff to keep the suitcase in the storage space – the obligation of supervision passed from the passenger to the carrier and its staff.

The Highest Court of Austria did not share the passenger’s arguments and reminded in its decision of the fact, that it is a right of the passenger to carry hand luggage free of charge in a coach in spaces specifically designated for this purpose. Therefore, the indication by the train staff was just a reminder of this obligation of the passenger. Further, the court could not find any other fact in the case that would possibly suggest that the stolen piece of hand luggage was stored in a special compartment as registered luggage, where the passenger`s obligation of supervision would pass to the carrier and its staff. This is also in line with Article 36 § 1 CIV, according to which, the carrier is liable for loss or damage to the registered luggage between the time of taking over by the carrier and the time of delivery. Notably, the court based its decision on the Rail Transport Act (“Eisenbahnbeförderungsgesetz”) implementing the CIV UR.

The CIV UR, apart from recognizing the passengers’ obligation to supervise their hand luggage in Article 15, provides for two exclusive conditions when the liability for the loss or damage to the hand luggage shifts to the carrier: (i) when damage to, or loss of the hand luggage is directly linked to the incident of death of, or personal injury to the passenger; or (ii) where such loss or damage to the hand luggage is caused by the fault of the carrier (see Article 33 CIV UR). Thus, unless the fault of the carrier is given, it is for the passenger to take due care of his hand luggage while travelling by train.

A passenger from Paris fell when she left her train in Marseille St Charles. She took legal action against SNCF, claiming some €10,000 but the claim was disallowed by the Marseille District Court on the grounds of Article 26 of Annex 1 to the PRR. In effect, the court recognised passengers being at fault as grounds for carriers by rail to be relieved of liability.

This was the first application of Regulation (EC) No 1371/2007 on rail passengers’ rights and obligations (PRR) in France. The judgment is nevertheless not yet final. Other cases in which French judges have decided to apply French law rather than the PRR are still outstanding (see our position on this subject in CIT Info 1/2014, page 3).

In this particular case, the lady travelled by TGV from Paris to Marseille on 15 December 2009. When she arrived in Marseille she was unfortunately injured by falling into the space between the train and the platform. The emergency services helped her out shortly afterwards without serious injury.

The court allowed Article 11 PRR to be applied to this case; Article 11 refers to Article 26 CIV which is attached as an annex. The court underlined the principal of the carrier being liable for passengers leaving trains and the potential grounds for relief, in particular, the passenger being at fault. In this case it held that the passenger had slipped on the running board for reasons which are not understood (no reason for the running board being particularly slippery was mentioned). The court therefore held that the cause of the injury was therefore a momentary lack of attention or awkwardness on the part of the passenger and that SNCF was therefore not liable.

Railway undertakings operate several international bus and coach services, including services between Poland and Lithuania and between Germany and the Czech Republic. Readers may wonder if the CIV Uniform Rules or the PRR apply to these services. In principle, no. Nevertheless, despite that, in practice the undertakings may choose to apply them.

In principle, the CIV Uniform Rules apply to contracts for international rail-road carriage provided the carriage by road remains restricted to domestic carriage within a single state. In addition, the PRR only applies to rail transport services. International carriage by road is in fact subject to different legislation, either national law or the Convention on the Contract for the International Carriage of Passengers and Luggage by Road (CVR). The CVR was signed in Geneva on 1 March 1973 and eight European states are party to it (see the list on www. unece.org/trans/conventn/legalinst_28_OLIRT_CVR.html).

Within the European Union, the national law applicable to contracts is determined by the rules contained in Articles 3 and 5 of Regulation (EC) No 593/2008 (known as “Rome I”). Railway undertakings may choose between the following five national legal systems, the law of the country where:

1. the passenger has his habitual residence; or
2. the carrier has his habitual residence; or
3. the carrier has his place of central administration; or
4. the place of departure is situated; or
5. the place of destination is situated.

An international convention, such as the CIV Uniform Rules, may likewise be designated as the law applicable to the contract so that an international journey by road and rail can be subject to the same law throughout the journey. This provides greater legal certainty for both railway undertakings and passengers.

In any case, the choice of the law applicable must be made quite explicitly. It is recommended that undertakings indicate the legal regime on the ticket issued to the passenger in legible and comprehensible text.

Isabelle.Oberson(at)cit-rail.org Original: FR

A CIT member pointed out that Article 61 CIV provides that the carrier who has collected a carriage charge must pay to the carriers concerned their respective shares of such a charge. Their question is: does this article also apply to substitute carriers? Are other remuneration models possible for substitute carriers?

Article 61 CIV provides that “Any carrier who has collected or ought to have collected a carriage charge must pay to the carriers concerned their respective shares of such a charge. The methods of payment shall be fixed by agreement between the carriers.” This article only uses the generic term “carrier”, which is defined in Article 3 a) CIV as the contractual or successive carrier. The articles of the CIV that also concern the “substitute carrier”, defined in Article 3 b) CIV, explicitly refer to the substitute carrier. This is the case for Articles 26 § 5 and 39 CIV, for example.

In conclusion, Article 61 CIV does not apply to the substitute carrier. The principal carrier and the substitute carrier are therefore free to agree on any type of remuneration for the carriage performed.

Isabelle.Oberson(at)cit-rail.org Original : FR-2017-05-18