HCCH - Explanatory Report on the 1971 HCCH Traffic Accidents Convention

CONVEXTION 07.7 TILE IAW APPLICABLE TO

TRAFFIC ACCIDENTS

Explanatory Report by NZ Erio W, Ess6n (Translation of the Permanent Bureau) A Introduction -- l Adopting the proposal of the United Kingdom delegation, the Tenth Session of the Hague Conference requested the Netherlands Commission on Private International Law and the Permanent Bureau to examine whether it was suitable to put the question of the assumption of jurisdiction and the applicable law in torts (delicts and quasi-deliots) on the agenda of Vne Eleventh Session (1968) or of a following Session (Final Act, Part B, IT9 1 2 The Permanent Bureau, carrying out this decision, undertook preparatory studies and sent to the Governments two documents in January 1967: - a - A Preliminary Document No 1, entitled MBmorandum relatif aux actes illicites --, en droit intmnational priv6, by Bernard M, Dutoit, then Secretary at the Permanent Bureau; b - A Preliminary Document No 2, which contained a Questionnaire for the attention of the Governments, The Permanent Bureau asked the Governments to reply and add their observations, and these formed Preliminary Document No 3 which was forwarded to the members of the Special Commission convened to discuss the replies,, 3 The Special Commission met at the Permanent Bureau of the Hague Conference from the 16th until the 21st of October 1967 and from the 22nd of April until the 4th of May 1968. Mr Y Loussouarn, Professor at the Facult6 de droit et des sciences Bconomiques de Paris was elected Chairman and P'ir K,PVIII.H. Newman, Assistant Solicitor, Lord Chancellor's Office, House of Lords, was elected Vioe-Chairman for the first session ivLr W,L.M, Reese, Director of the Parker Sohool of Foreign and Comparative Law, Columbia Law School, was eleoted Vice-chairman for the second session which bTr Newnlan

of Lords, was elected Vioe-Chairman for the first session ivLr W,L.M, Reese, Director of the Parker Sohool of Foreign and Comparative Law, Columbia Law School, was eleoted Vice-chairman for the second session which bTr Newnlan was unable to attend, During the second session, Mr Eric W, Essen was asked to draft the report of the Special Commission, 4 Discussion in the Special Commission revealed that the field of torts was too wide and heterogeneous to be dealt with in one single oonvention, It was decided to study traffic accidents in the first place and then afterwards products liability, The work of the Special Commission relating to the first-mentioned matter led to the drawing up of a draft Convention on the Law Applicable to Traffic Accidents. 1 1 See the draft Convention adopted by the Special Commission and the Report of a!r 2-W, Xss&n, Preliminary Dooument No 4 of June 1968,It should be noted, in this context, that i?ne Eleventh Session requested the Netherlands Commission on Private International Law and the Permanent Bureau to examine the desirability of putting the question of products liability on the agenda of the Twelfth, or a following Session, 2 5 Basing its work on the draf'cofthe qpeoial Commission and the 1 observations of Governments on this draft 9 the Second Commission of the Eleventh Session of the ~onference was charged with the task of drafting a definitive text, Mr Y, Loussouarn was Chairman of the Commiseion, while Messrs, W,L,i@, Xeese and E-W, Zss8n continued in their respective offices of Vice-Chairman and Xapporteur , Although the main structure of the draft was conserved, the Commission made a number of changes; it submitted, to the plenary meeting, a draf-t Convention on the law applicable to traffic aooidents, which was approved, B General Oatline P

Although the main structure of the draft was conserved, the Commission made a number of changes; it submitted, to the plenary meeting, a draf-t Convention on the law applicable to traffic aooidents, which was approved, B General Oatline P 1 'The Convsntion deals solely with the law applicable to civil, noncon-tractual liability, arising from traffic accidents. Problems of jurisdiction, or of recognition and enforcement of decisions, in this field, remain outside the scope of the Convention, 2 The Convention contains 21 articles, the first two delimiting its scope. Article 3 enuincia-tes the main rule and articles 4 to 6 state exceptions thereto. Article 7 deals with the importance to be accorded to local rules relating to the con-trol and safety of -tra:r:Fic, whilst article 8 lays down -the scope of the applicable law and article 9 takes up the question of the dir,ect action. Article 10 contains the traditional provision relating >o:.."ordr& public". By virtue of article l l, the Convention is to be regarded as a uniform law of private international law, without any restriction acting thereon. Articles 12 to 14 deal with problems arising in the context of oountries having non-unified legal systems, Article 15 sat-tles the rsla-tionship between the Convention and other con.- ventions and articles 16 to 21 contain the final clauses, 3 .The of the Convention, acoord.ing to article 1, is to determine the law applicable to civil, non-contractual liability arising from traffic accidents, in iiklatever kind of proceeding i-t is sought to enforce this liability, The term "traffic accident" in the Convention means an' accident wbich involves one or more vehicles, whether motorized or not, and is connected with traffic on the public highway, in grounds open to the public or in private ,Tr'ounds to which c,ertain persons have a right of access,

dent wbich involves one or more vehicles, whether motorized or not, and is connected with traffic on the public highway, in grounds open to the public or in private ,Tr'ounds to which c,ertain persons have a right of access, It was, however, 'thought wise to exclude from the scope of the Convention all matters of liability of manufacturers, sellers and repairers of vehicles, the responsibility of the owner, or that of any other person for the inaintenance of a way o2en to traffic or for the safety of its users, and vicarious liability, with the exception of the liability of an owner of n vehicle, or of a principal, or of a master (article 2), Furtherinore, the Convention does no-t zpply to recourse actions among persons liable, to recourse actions and to subrogation9 insofar as insurance companies are concerned, nor does it apply to actions and recourse actions by or against social insurance institutions, other similar institutions and public automobile funds, or to any exemption :from liability laid down by the law which governs these institutions, v-- 2 See Final Act, Part C, 2. 3 Pr~liminary Docurncnt No 5, --. Actes et Documents de la Oneikme session, Tome 111, p. 81,4 Article 3 lays dom the -- main rule of the Convention, the application of the law of the place of the accident, a rule which is in line with the practice of the majority :~f Member States of the Hague Conference, The determination of the place of 'the act does not give rise to serious difficulty in the case of road aocidents, as the place where the wrong was perpetrated nearly always corresponds to the place where damage was suffered. To deal with the exceptional case when these two places are different, the Conference chose the place of the accident as the determining criterion, that is to say the place of the tcrtious act, it being easier to ascertain. Indeed, the guiding principle followed in the work of the Conference was to create a convention addressed not only to judges,

different, the Conference chose the place of the accident as the determining criterion, that is to say the place of the tcrtious act, it being easier to ascertain. Indeed, the guiding principle followed in the work of the Conference was to create a convention addressed not only to judges, but above all to the subjects of the law and their legal advisers, as it was realized that almost all disputes arising from aocidents are settled without the intervention of the judge, Consequently, the solution must be simple, precise and easy to apply. 5 The Conference did not think it could adopt a rule sanctioning the application the application of the law of the place of the accident without exceptions. In certain cases, converging factors point to the application of a law other than that of the place of the tort, Special provisions were thought necessary to sanction the application of that law, These exceptions, which represent a new contribution to the solution of the conf1ic.t of laws arising from non-contractual liability, are set out in articles 4, 5 and 6. 5.1 In the draft Convention of the Special Commission, the exceptions were essentially founded on the existence of a common residence of the parties involved in a country other than that in which the accident occurred, The final text, whilst retaining the criterion of habitual residence as a subsidiary link, gave preference to the place of registration of the vehicle or %el:icles, The advantage of this criterion is that it is easy to ascertain and it unites a number of connecting factors. Indeed, usually, the country of registration will. coincide with that of the habitual residence of the driver and the owner and with the seat of the insurance company, It was, however, thought necessary to retain habitual residence as a supplementary criterion. On the one hand, the place of registration is only taken into account if it coincides with the habitual residence. either of the owner or of the driver of the vehicle, If there is no such concordance, the place of registration would really be void of any sip

supplementary criterion. On the one hand, the place of registration is only taken into account if it coincides with the habitual residence. either of the owner or of the driver of the vehicle, If there is no such concordance, the place of registration would really be void of any sip aificance as a connecting factor, On the other hand, habitual. residence has some relevance with respect to passengers and persons present at the scene of the accident outside the vehicle or vehicles, As regards the last-mentioned persons, their habitual residence mast coincide with the place of registration for an exception to be made to the application of the lex loci, As to the passenger who is the victim of an accident, the law of the country of registration will not replace the law of the place of the accident, if the passenger had his habitual residence in that country. 5.2 The Convention further differs from the draft Convention of the Special Commission in that it does not deal separately with the transport of persons, The draft Convention contained an article on gratuitous transport and another on non-gratuitous transport, thus drawing a distinction between the internal relationship, that is the relationship between the transporter and the transported person, and the externalrelationship, thxt is the relationship for example between the person inside the vehicle and .the person outside, By these rules, the draft Convention prescribed the application of different laws, for example to regulatethe case between a passenger and his driver on the one hdndg and that of the passenger and the driver of another vehicle on -the other hand, even if all these persons were invclved.in the same accident, This p1ural.i-ty has not been main.tained in the definitive text of the Convention which is more marked 'by a reinforcement of the p~inciple of unity, The same conflicts rule regulates internal and external relationships and all co--authors are governod by the same law as regards their 1iabili.t~ towards each separate victim. Any other solution would have made division of liability impracticable, On the other hand, if there are several

same conflicts rule regulates internal and external relationships and all co--authors are governod by the same law as regards their 1iabili.t~ towards each separate victim. Any other solution would have made division of liability impracticable, On the other hand, if there are several victims, the applicable law is determined separately for each of them, Indeed, the law governing each vic-tin! may be determined separately from that govemi.ng the other victims, even if -the other victims appear before the same court, This solution4 has the advantage that it facilitates foreseeabiiity, for each victim is able to conoentrate on his own claim without having to enquire whether other victims intend to claim or not and without having to invostigcte their respective habitual residences, The discontinuance of the special treatment of transport of persons has, in comparison wj.th the draft Convention, brought about the increased im.-. portanoe of the --.- lex. looi., 5.3 in laying down the exceptions to the application of the &ex loci, the Conventi0.n distinguishes between damage to persons and. ,vehicles, which is dealt wi-th in article 4, and damage to 'goods, dealt with in article 5, 5.4 In view of the complexity of the subject-matter, it was necessary in .ar-ticle 4 -to separate different hypo-theses, starting with the simplest so as -to lead up -to the most complex, iirtisle 4 a envisages the case where a single vehicle is involved in an accident .&Kd is regis-tered in a State other than that in which the acoi-- dsxt occurred, In that case the internal law of the State of registration applies to the issue of liability -- -towards the driver, owner or any other person having control of or an interest in the vehicle, irrespeotive of their habitual residence, - towards a victim who is a passenger whose habitual residenoe is in a State other than that where the accident occurred.,

applies to the issue of liability -- -towards the driver, owner or any other person having control of or an interest in the vehicle, irrespeotive of their habitual residence, - towards a victim who is a passenger whose habitual residenoe is in a State other than that where the accident occurred., - towards a victiin who is outside the vehicle at the place of the accid-en-t and whose habitua1,residence is in the S-tate of registration. Article 4 b deals with t.he situation where several velzicles are involved in -the accydent, in. this case the rules of af-ticle 4 2 only appli if all the veklioles are registered in the same State, Thus there 1nu.s-t be unity of registration to avoid the application of the lex loci, 4 See Batiffol, "La On~iBmo session de la Conf6rence de La Iiaye de droit international privg", Revue critique de &oit in-ternational prs, 1969, 'P. 233, and Loussouarn,, "La Convention de La Eaye sur la loi appliGable in mati6re d'acoidents de la circulation -routiBrcui Clunet, 7969, P. 17.Article 4. 2 applies when one or more persons outside the vehicle o?? vehicles at the plaoe of the accident are involved in the accident and may be liable. In this case exception is only made to the lex loci in favour of the law of the State of registration if all these persons had (official textr have) their habitual residence in the State of registration of the vehicle or vehicles involved in the accident, 5.5 AS regards damage to goods, article 5 distinghuishes between goods carried in the vehicle and goods outside the vehicle, Carried goods are divided into two categories depending on whether the goods belong to the passenger - in which case the issue of liability is governed by

5.5 AS regards damage to goods, article 5 distinghuishes between goods carried in the vehicle and goods outside the vehicle, Carried goods are divided into two categories depending on whether the goods belong to the passenger - in which case the issue of liability is governed by the same law as that determining the liability towards the passenger - or on the other hand belong to another person, In the latter case, the same rules will apply as those which govern the liability towards the owner of the vehicle, As for the liability for damage to goods. outside the vehicle or vebiclcs, the local law will in the main apply, except as regards the personal belongings of the victim, which are governed by the law which determines the liability towards the victim for physical damage. 5.6 In the ease of vehicles which have no registration or wh?se registration is meaningless, the internal law of the State in which they are habitually stationed replaces by virtue of article 6 that of the State of registration, 6 Aocording to article 7, if the applicable law is a law other than that of the place of the accident, one must all the same take into account the laws, relating to, -the control and safe-ty of traffic which were in force at the place and time of the acoident. 7 Article 8 specifies the scope of the applj-cable lax, The Conference decided to accord the widest possible field of application to the applicable law, h11 matters which civil law assigns to the realm of tortious liability fall within this field, Thus the applicable law determines for example' the basis and extent of liability, the grounds for exemption from liability, any limitation of liability, any division of liability, the existence and kinds of injury or damage which may have to be ccmpensated, the kinds and extent of damages, the ques-tion whether a. right to damages may be assigned or inherited, the parsons who have suffered damage and who may claim damages in their own right, the liability of a

the existence and kinds of injury or damage which may have to be ccmpensated, the kinds and extent of damages, the ques-tion whether a. right to damages may be assigned or inherited, the parsons who have suffered damage and who may claim damages in their own right, the liability of a principal for the acts of his agent or of a master for the aots of his servant, the rules of prescription and limitation, including rules relating to the commencement of a period of prescription or limitation, and the interruption and suspension of this period. 8 h special article, article 9,deals rii-th the direct action of a victim against the insurer of the person liable, so as to allow the victim to take advmtage of such an action in the greatest possible number of cases, Such an action is permitted not only when it is sanctioned by the law applicable to liability, but also when it is sanctioned by the law of the country in which the accident occurred, even if this law is not the law applicable to the issue of liability. In this case, thus, a return to the principle of the application of the law of the place of the accident is admitted in favour of the direct action, Finally, if neither of these laws provides any such right, it may still exist if it is provided by the law gpvorning the contract of insurance,9 Following the practice of the Hague Conference, the "ordxe public" provision, retained in article 10, is very limited, and the application of any of the laws declared applicable may be refused only when it is manifestly contrary to public policy ("ordre p.blic"), 10 The "ordre public" provision was, together with others, adopted as a safety valve, due regard being paid to the requirements of article 11, which states that the Convention is a uniform law of private international .-plaw without restriction, Therefore, the application of articles 1 to 10 of the Convention is independent of any requirement oC reciprocity. The Convention applies even if the applicable law is not that of a Contracting State,

which states that the Convention is a uniform law of private international .-plaw without restriction, Therefore, the application of articles 1 to 10 of the Convention is independent of any requirement oC reciprocity. The Convention applies even if the applicable law is not that of a Contracting State, 11 Articles 12 to 14 aim to solve the various problems presented by States with no&-~nified legal systems, - 11 ,l Article 12 lays down the rule that any territorial entity forming part of a State having a non-unified legal system shall be considered as a State for the purposes of articles 2 to 11 when it has i-ts own legal system, in respec-t of civil non-contractual liability arising from traffic accidents. I1 -2 So as to avoid States with non-unifled legal systems having to apply the Convention even to internal accidents, article 13 specifies that such a State is not bound to apply the Convention to accidents occurring in that State which involve only vehicles registered in terrltcrial units of that State, 11 "3 Article 14 contains a federal clause whereby a State having a nonunified legal system may declare that the Qonvention shall extend to all its legal systems or only to one or more of them and may at any time modify its declaration, l2 Final-ly it was thought necessary to solve as far as could be done the problem of conflictin~nventions, Article 15 thus states that the Conven-tion shall not piievail over other conventions in special fields to which the Contracting States are or may become Parties and which contain provisions concerning civil non-contractual liability arising out of a traffic accident, C Commentar~ article by article Preamble 1 Followj.ng the practice of -the Hague Conference, the preamble is very short, It has two main objects, The firs-t is to make it clear that the Convention only covers part of the field of torts. Indeed, this field is -too vast and heterogeneous 20 be usefully dealt wi-thin

1 Followj.ng the practice of -the Hague Conference, the preamble is very short, It has two main objects, The firs-t is to make it clear that the Convention only covers part of the field of torts. Indeed, this field is -too vast and heterogeneous 20 be usefully dealt wi-thin a single Convention, The Convention only contains rules to solve problems of the conf1ic.t of laws relating to civil non-con.tractua1 liability arising from traffic accidents. The Conference, in adop-ting this limi- ' tation, was influenced by the consideration that these are the mos-t frequent torts and that the prac-tical necessity of finding a solution to the problems of conflict of laws has been made all the more pressingby the rapid growth of inter-State traffic. The subject-matter of finding the law applicable to traffic accidents has the further advantage that it is easy to delimit and lends itself readily to unification, 2 Seoondly, the preamble shows that the convention only deals with' the determination of the applicable law, All problems of jurisdiction, and of the recognition and enforcement of judgments in cases of traffic accidents are left outside the Convention, These two questions are regulated by the Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Natters, A first draft of a convention dealing with these questions, which rias drawn up by the Permanent Bureau following. directives of a sub-committee during the meeting of the Special Commission of April to May 1968 on torts, was not discussed at the Zleventh Session. Article 1 1 This article defines the scope of the Convention, 2 Taking up the terms of the preamble, article I states that the Convention shall determine the law applicable to civil, non-contractual liability arising from traffic accidents. 2,1 The Convention only deals with the LRW applicable to @ liability as opposed to criminal liability, then the question arose as to whether the law designated by the Convention should still be applied to claims brought in a criminal court for compenliability arising from traffic accidents. 2,1 The Convention only deals with the LRW applicable to @ liability as opposed to criminal liability, then the question arose as to whether the law designated by the Convention should still be applied to claims brought in a criminal court for compensation for tortious acts, the Conference considered that the applicable law should in no way be replaced by another, when the victim or persons cteeriving their rights from him (ayants droit) appear civilly in a criminal case. Indeed, tbe link which allies the civil action to the criminal action is essentially procedural by nature and does not take away from the civil action its own character. Consequently, the law which governs that action by virtue of the Convention shov-ld continue to apply even in criminal cour-ts. This solution is implied in the part of the article which reads: "in whatever kind of proceeding it is sought to enforce this liability". The wording is very wide and will even cover the case in which an action falls to be adjudged in administrative proceedings. 2,2 In the field of civil liability, matters arising are customarily divided into two very distinct groups: on the one hand those which relate to contractual liability, on the oth3r hand tnose whioh pertain to noncontractual liability, This separation has also been effected in this Convention, whioh applies only non-contractual liability, The term employed means that the Convention does not cover only the civil liability which a person incurs for any harm due to his fault, negligence or lack of care caused to another, but also liability founded on risk (absolute liability). 2,3 As the Convention is limited to non-contractual liability, the problem of characterization arrses. The Conrerence did not think it wise to include a rule on characterization in the Convention; consequently, the general conflicts rules in each of the Contracting States will apply to this matter and in the majority of cases the characterization will bo effected by the law of the m.2-4 The disadvantage ofthis solution is thatit opens the door.by way

wise to include a rule on characterization in the Convention; consequently, the general conflicts rules in each of the Contracting States will apply to this matter and in the majority of cases the characterization will bo effected by the law of the m.2-4 The disadvantage ofthis solution is thatit opens the door.by way of different characterizations to a varying applicatiorl of -the Convention in different countries, particularly so in the case of transport of persons. The traditional disti.nc.tions is that be-tween grztui-Lous and non-gratuitous -transport. Firstly as regards g:catuitous transport, which presupposes the lack of a contraoL between a transporter and the person -trarisported, and which thus falls within the Convention, the risk of a varying application of the Convention does not sedn -to be very groat, seeing that thc notion of gratuitous transpor-t does not seem to differ !~uch in one country from another, For there to be gratuitous transpor-t, the transported person must as a rule have been taken into the vehicle "out of kindness and gra.tuitousiy" ("par co!nplaisance et gratui-tement", krtiole 59 of the Swiss Federal Law on Road T:caffic). In Fome countries this criturion is vory strio.tly adhered -to, while in others oertaj-n tra,nsport which is not entirely free is considred to be gratuitous, for exanlplo the transp0r.t of a person wbo shares tile expenses of the transport . Wnen one considers non--gratuitous transport, views tend to differ to o greater extent.. This notion is -the opposite of the notion of gratuitous transport. For there to be non-gratuitous transport, a contract must have been concluded be-tween the person liable and the victim. The typical case of non-patui-tous transport is a bus journey. As a

greater extent.. This notion is -the opposite of the notion of gratuitous transport. For there to be non-gratuitous transport, a contract must have been concluded be-tween the person liable and the victim. The typical case of non-patui-tous transport is a bus journey. As a rule, a contract of carriage exists when neither of -the par-ties intends to perform a service g-ratui-tously, If there is ?A express clause relating to liability, i-t, seems to be generally admit-ted that such liability is con.tractua1 and consequently falls outside the Convention, In other cases, there may be less uniform interpretation, For example, in fiance, as the liability of the .non-gmtuitous transporter is considered to be contractual, even in the absence of an express clause, a French judge would no-t apply the Convention to this point, In other cou.ntries, the Convention will be applied, as the liability will be considered to be tortious, Yet other legal sys%ems would give a ohoice between tor tious and contractual liabil.ity and would allow '&he victim to rely either on the law of the contract, if he chooses to invoke oontractual liability, or -the law designated as applicable by the Convention, if he invokes the -tortious liabi1i.t~ o:E' the de:Pendant, Finally, other legal systems allow the viotim -to rely siinultaneously on the two laws (for example Swiss law). 'This divergence may, in a limited sphere, bring about E limping application of the Convention which would to a limited extent give rein to "forum shopping" by the victim, However, it must be emphasized that these drawbacks soem to be more theoretical than practical, Further-- more they are inevitable, as long as one is not ready to impose characterizations on national judges. The Convention would, moreover, lose a great deal of i.ts practical effect, if the carriage of persons or goods

these drawbacks soem to be more theoretical than practical, Further-- more they are inevitable, as long as one is not ready to impose characterizations on national judges. The Convention would, moreover, lose a great deal of i.ts practical effect, if the carriage of persons or goods Wexcluded from its soope. 2.5 The ques-tion as to whether parties may choose the applicable law is not settled by the Convention. It thus depends on the law of the' forum to determine whether a contract' designating the applicable law will have the effect that all the rela-tionships be-tween the parties become contractual or in any case governed by the law of the oontract, or whether on the other hand son~c part of their relationship may be noncontraotual aind thus governed by the rules of -the Convention, notwi-thstainding the choice of the parties, The law of -the forum must alsostipulate whether liti