Band 9, Heft 2 - Special Issue: Non-Contractual Liability for Railways, Buses and Aeroplanes / Guest Editor: Ernst Karner

This article offers a comparative overview of extra-contractual liability for means of mass transport (trains, buses, aeroplanes) in Europe. A distinction is thereby drawn between two fact patterns: liability for transported persons and property, and liability to third parties. Whilst the former is, at least for cross-border transport, extensively regulated by international conventions and European Directives, liability to third parties is very variably regulated at the national level. The paper highlights some of these differences and in so doing emphasises the importance of risk-based liability in the majority of European jurisdictions. There is, moreover, discussion of quite new liability questions raised by the liberalisation of the rail transport market and the introduction of self-driving cars.

The liberalisation of the coach, air and rail transport market sheds new light on a relatively unexplored field of comparative tort law: the rules governing the liability of transportation companies for accidents involving third parties. Through an assessment of recent developments under French and German Law, this article reflects on the emerging trends of those tort rules, induced or highlighted by the market opening process. The existing strict liability regimes for railway and coach carriers, already subject to a significant tightening process, raise new questions as to the exact circle of persons liable for injuries, since the market liberalisation goes hand in hand with the unbundling of infrastructure and operations.

The article presents an overview of Norwegian law with regard to damages caused by means of mass transportation by buses, railways and airplanes. The author explains why and how in Norway, as elsewhere in Scandinavia, there is strict liability for damages caused by means of mass transportation. Also the assessment of damages in the mentioned categories is discussed. For personal injuries there are no caps for trains or buses, partly because a greater part of the loss of income is covered by social security benefits, something which is typical of the ‘Nordic model’. Along the same lines, the rules on contributory negligence favour the victim somewhat more than in other parts of Europe, with regard to accidents caused by both buses and trains. Hence the law is all in all rather friendly to the victim. As for damage caused by air traffic, there are tensions between the ‘victim-friendly’ attitude and the relevant EU regulations which make the Montreal Convention applicable to Scandinavian law. These tensions are discussed towards the end of the article. Thus the article highlights and illustrates how the Scandinavian legal culture with the ‘Nordic Model’ as its special hallmark endorses solutions that somewhat contradict the common solutions in continental Europe and in the UK.

Tort lawyers have occasionally asked themselves the question, ‘What is the place of public transport in the development of tort law?’ But here I ask the question in reverse, namely, what is the place of tort law in the public transport system? That is, in what ways and to what extent does tort law function to deliver the goals of the public transport system, which may be thought of as providing mobility without injuring people? I take as an example the British railway system, tracing out the inputs into the system, the processes within it and the outputs from it and attempt to place tort law among its inputs. That gives us a glimpse of how tort law might influence outputs both directly and indirectly. The answer to the question seems to be, at least as a first approximation, that tort law, operating alongside and as part of a system of information flows and incentives, is likely to be more significant for the more peripheral parts in the system than for the organisations immediately concerned with delivering the service.