The carrier's liability for death and injury of the passenger

In most developed countries public transport is the safest form of movement, a bus or train ride carries much less risk than self-drive trip. But sometimes there are situations, the traveler as a result of transport accident injured, and sometimes does not survive. In such cases the question of the liability of the carrier to the passenger.

To write this post inspired me the events of last week and a great Review Algirdas blog Rudak “Legeartis”. In Polish cities three times there had been serious accidents involving trams, which are generally considered safe vehicles. On Tuesday there was a tram collision Wroclaw, Thursday in Poznan tram collided with the bus, and yesterday – again in Wroclaw – collided three trams. While the first two events were relatively minor (8 i 3 people slightly injured), about as many wounded in yesterday's event were up 33 people, of which the 10 cases will be required to stay longer in hospital. Worse – Olgierd writes Rudak – it is very likely, that the safety issue of trams in Wroclaw is systemic.

There is no doubt, that victims will seek compensation for damages and redress for grievances. Will they have a right to them? Of course the full answer would have to take into account all the circumstances of the incident, I do not know, but it can be tempting to some general considerations.

The basis for the Code, no traffic right

Contrary to appearances, transportation law does not regulate all aspects of the carrier's liability related to the transport of persons. One aspect of, where the law is silent about is the carrier's liability to passengers for death and injury as a result of events occurring during the transport. This does not mean, in this respect that there are no rules. In accordance with Article. 90 pr. wire. in matters not covered in this Act shall apply accordingly Civil Code. This and w art. 435 i 436 sets out rules, under which the carrier is liable for damage caused during the transport of persons.

The first of those provisions applies to the company responsible for the movement driven by the forces of nature (that is, for example,. electricity), the second governs the liability of the holder of a motor vehicle for damages caused by its motion. In the case of transport companies will apply both, because these businesses are considered to be driven by the forces of nature, while damages arise from use of motor vehicles.

The carrier's liability is based on strict liability in this case means, that he can free himself from liability only if it is demonstrated, that damage occurred as a result of force majeure, exclusive fault of the victim or the exclusive fault of a third party, for which the carrier is not liable. So if the carrier even minimally contributed to the injury, bears responsibility for it, even if most of the blame lies with the passenger. In this case, it is possible, however, a corresponding reduction in compensation.

From the perspective of victims is very important that, that the regulations do not provide the upper limit of compensation and redress, So in any case, you can count on the full compensation.

Polish law only in certain cases

The above-described provisions of the Civil Code will apply only to damage suffered by passengers national and international road haulage, national and international inland waterway transport, and national rail services. In the case of Polish international transport code will be applied, if Polish law will be indicated as appropriate in accordance with applicable rules of private international law (Polish law and the Rome I or Rome II).

In other modes of transport based on the carrier's liability governed by the relevant international conventions, which in relation to maritime and air transport also apply to domestic travel.

Shipping

And so the law regulates passenger ships Athens Convention on Carriage of Passengers and their baggage on 13 December 1974 r. W myśl art. 3 paragraph. 1 Convention, a carrier liable for damage resulting from death of a passenger or with a reference of his injury and to health, if the accident, which caused the damage occurred during carriage and was due to the fault or negligence of the carrier, its employees or agents acting within the scope of their employment. In this case, therefore, the carrier is milder, it is based on fault.

Fortunately, the art. 3 paragraph. 3 Convention introduced the presumption of guilt, if the damage was caused by or in connection with the shipwreck, collision, grounding, explosion or fire, or defect in the ship. In such cases, the carrier must demonstrate, it is not responsible for these events.

Unlike the Polish law, the liability of the carrier for death or injury of one passenger is limited to the amount 700.000 francs while the Swiss franc is considered a unit consisting of 65,5 milligram sample of gold 900. This limit does not include interest and costs. This amount is converted into the currency of the country of the exchange rate at the date of the judgment or such other date agreed by the parties. States can increase the domestic law of the limit, but Poland is not decided at this.

It limits of liability do not apply, it is shown, that carrier acted with intent to cause damage or recklessly and with knowledge, that such damage would probably result (so. wilful misconduct).

International rail services

The liability of the carrier in the international rail is defined by Annex A to the Convention on International Carriage by Rail (COTIF) of 9 May 1980 r. This annex contains Uniform Rules concerning the Contract of International Carriage of Passengers by Rail (CIV). In light of these provisions of the carrier is liable for damages resulting from the death or ill health of the traveler, caused by accident arising out of traffic, happening while the passenger in the car, entering or alighting from the train. The carrier's liability is based on the principle of risk, a carrier can get well, if the accident was caused by circumstances external to the railway traffic, which the carrier, despite the application required in the care situation, could not escape the consequences or could not prevent. The exclusion also applies to situations, when he caused the accident victim or a third, if the carrier could not avoid this behavior and the consequences of which could not prevent, but as a third party shall not be considered another trader uses the railway infrastructure.

The convention defines the, that the amount of compensation determined by national law, but when it involves less than the compensation limit 175.000 SDR for each travel, national rules will not apply in this area, a carrier's liability will be limited to that amount.

Interestingly, the provisions of the Convention shall also apply to situations of train ferry transportation, and in cases, where, given the exceptional circumstances of rail traffic is temporarily halted, and passengers carried by another mode of transport.

Air transport

The liability of air carriers, in turn, results from the two most common aviation convention - Warsaw Convention i Montreal Convention. Depending on the, in which countries are taking off and landing place, Convention will apply appropriate.

The Warsaw Convention carrier liable for damage sustained in case of death or ill health, experienced by the traveler, if the accident, which caused the damage, occurred on board the aircraft or during any operations of embarking or disembarking. The carrier may, however, relatively easy to get rid of the responsibility. Just to prove, that he and persons acting for him, undertook all the necessary measures to avoid the damage or that it was impossible to take such measures. Additionally, if the carrier proves, that the victim's fault caused the damage or contributed to her, the court may exclude or limit the liability of the carrier.

Limit liability for death or injury by one passenger scheduled for 250.000 francs or monetary units containing 65,5 milligram sample of gold 900. Parties may enter into an agreement, however, increasing this limit. Moreover, this limit does not apply, if the damage resulted from an act or omission of carrying, its employees or agents, caused or intent to cause damage, or recklessly and with knowledge, there is a likelihood of injury.

A lot of passengers are favorable for settlement of the Montreal Convention. Responsibilities are defined in the same way as the Warsaw Convention and includes death and injury caused by events during transport. But a lot harder to rid the carrier from liability. In terms of compensation for 100.000 SDR per passenger, the only basis for the exclusion or limitation of liability of the carrier to cause damage by the injured. In relation to this part of the claim, which than 100.000 SDR, additional premises of the carrier's liability limit is no unlawful actions of the carrier, its employees or agents, and causing damage as a result of an unlawful act of a third party.

Concluding Remarks

Taking into account the adjustments described above, Polish Civil Code, in a very large extent protect passengers in relationships with carriers. Not only provides a fairly rigorous test of liability, but also does not limit the amount of compensation shall. It is worth remembering in the formulation of appropriate claims against carriers.