8.2 Brief overview of French case law on strict liability Concerning the scope of application, the “responsibilité de plein droit” applies to packages which date back to the Law of 13 July 1992, which transposed the 1990 Directive, establishing this peculiar responsibility of travel agents for the execution of obligations comprising the “contrat de vente de forfait touristique”. However, if the organiser does not receive payment, this type of liability does not apply14. Services included in the forfait are solely those specified in the contract; consequently, locally purchased extras are not covered15. The supremacy of French law for contractual obligations under package tour agreements and for determining subrogation rights in insurance contracts, which overrides the application of the law of the place where the damage occurred, is established by France’s highest court16. This represents an objective and autonomous liability17, and strict liability 14 Cour de cassation, Civ. 9 April 2015, 14-15.720 14-18.014. Mr. X, who became quadriplegic after diving during a supervised trip to Mexico. The court examines whether various organisations involved in the trip— specifically CCAS and Association Sans Frontières—are responsible under French tourism law (Code du tourisme articles L. 211-1 and L. 211-16). The key issues revolve around whether Mr. X’s actions constituted a fault that would negate or reduce the organisation’s liability and whether CCAS qualified as a “travel seller” under the law due to its involvement, particularly its remuneration. The final decision partially overturns a lower court’s ruling, stating that CCAS’s liability could not be established without proof of its status as a travel seller in terms of receiving remuneration. 15 Cour de Cassation, Ci. 1, 15 January 2015, 13-26.446. The case involves a couple who purchased a package tour from Groupe Marmara for a trip to Morocco. While there, they opted for a 4x4 excursion, during which they were injured in a car accident. They subsequently sued the tour operator for damages, claiming that the excursion was part of their package, and therefore, the operator was liable under Article L. 211-17 of the French Tourism Code. The courts determined that the 4x4 excursion was indeed optional, not included in the original package price, and required a separate payment on-site in local currency. As a result, it was classified as an independent service, which was not covered by the tour operator’s contractual obligations under the Package Travel Regulations. The Cour de Cassation upheld this decision and rejected the couple’s claim for compensation. 16 Cour de cassation, Civ. 1, 11 mars 2009, 07-21.639. The case concerns a tourist accident in Tunisia involving a package tour organised by Vacances Carrefour, resulting in deaths and injuries. The victims’ families sued the travel agency and its insurer for breach of contract. The central issue revolved around which country’s law should govern the liability of the travel agency and the compensation for the victims, specifically regarding the application of French or Tunisian law for contractual responsibility and subrogation rights. The Versailles Court of Appeal applied Tunisian law to the compensation, limiting the amounts awarded, and rejected the insurer MACIF’s subrogation claim based on Tunisian law. The Cour de cassation partially overturned this decision, holding that: - The travel agency’s contractual liability is governed by French law (specifically, the law of 13 July 1992), not the law of the place where the damage occurred. - The right to subrogation for the insurer is governed by the law applicable to the insurance contract (French law), not Tunisian law. The case was sent back to the Court of Appeal for reconsideration under French law for both the victim’s compensation and the insurer’s subrogation claim. 17 Cassation, Civ. 1, 2 November 2005, 03-14.862. Mme X. was injured after falling down a staircase in a hotel 203 AN UNDETERMINED FALL AT THE AIRPORT
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