Which law applies to a tort committed in the Channel Tunnel, at 16 km from the exit on French territory?
This is the question that the Court of Appeal of Douai could have asked, but did not, in a recent judgment of 24 June 2021.
Background
The accident occurred in the middle of the night in January 2015. A truck belonging to a Romanian company took fire while being transported on a train under the Tunnel. The fire damaged four other trucks that an English company also wanted carried under the Tunnel before being brought to Sweden.
The insurers of the English company compensated part of the damage suffered (£ 599,000). The liability of the company managing the Tunnel (France Manche) was limited contractually at 280 000 DTS, i.e. € 356,000. After receiving this payment, the insurers demanded payment from, and then sued the Romanian company in French courts for € 208,000.
French Tort Law
The French court applied French tort law. Article 1242 (formerly 1384), second paragraph, of the French civil code provides for fault based liability of the custodian of any thing causing a fire. The court found, however, that the employee of the Romanian company was not the custodian of the truck when the accident occurred, as he has no control over the truck anymore: he had left it after it was put on the train, to go to a car during the journey under the Tunnel. The custodian had become France Manche, which had control over the truck. The action against the Romanian company was dismissed.
Choice of Law
It does not seem that any of the parties raised the issue of choice of law. Under French choice of law principles, the French court might have raised it ex officio, but was not obliged to.
Pursuant to Article 4 of the Rome II Regulation, the law of the place of the damage should have applied, unless the law of another state was manifestly more closely connected to the tort. The tort was certainly connected to a contract (of carriage), but it was not a contract as between the parties.
So where did the damage occur? It all depends where the border between England and France is.
Article 3. FRONTIER AND JURISDICTION (1) As regards any matter relating to the Fixed Link, the frontier between the United Kingdom and France shall be the vertical projection of the line denned in the Agreement signed at London on 24 June 1982 relating to the delimitation of the Continental Shelf in the area east of 30 minutes West of the Greenwich meridian, ‘ and the respective States shall exercise jurisdiction accordingly, subject to the provisions of paragraph 3 of this Article and any Protocol or particular arrangements made pursuant to Articles 4, 5, 7 and 8 below. (2) The frontier in the Fixed Link shall be marked by a Joint Commission, composed of representatives of the two States, as soon as possible after the completion of the relevant section of the Fixed Link and in any event before the Fixed Link comes into operation. (3) If in the construction of the Fixed Link any works carried out from one of the two States extend beyond the line of the frontier, the law that applies in that part which so extends shall, in relation to matters occurring before that part is effectively connected with works which project from the other State, be the law of the first mentioned State. (4) Rights to any natural resources discovered in the course of construction of the Fixed Link shall be governed by the law of the State in the territory, or in the continental shelf, of which the resources lie.
The Agreement signed at London on 24 June 1982 relating to the delimitation of the Continental Shelf defines precisely the agreed border, with a chart annexed to the Agreement. I was able to find the Agreement, but it misses the chart !
The information available on the internet suggests that the resulting French undersea crossover is much longer than the English one (34 kms v. 17 kms). If that is correct, this means that the accident occurred on French territory.
One cannot help wonder, however, whether the place of the damage could not have equally been England in this case, and how meaningful the place of the damage is in such a case.
Should the law of the place of the damage be displaced in “transit” torts?
Although it was not concluded between the parties, should the contracts concluded by them with the same third party play a role? Should it be a decisive factor which would trigger the operation of the exception clause and lead to the application of the lex contractus?
This is the question that the Court of Appeal of Douai could have asked, but did not, in a recent judgment of 24 June 2021.
Background
The accident occurred in the middle of the night in January 2015. A truck belonging to a Romanian company took fire while being transported on a train under the Tunnel. The fire damaged four other trucks that an English company also wanted carried under the Tunnel before being brought to Sweden.
The insurers of the English company compensated part of the damage suffered (£ 599,000). The liability of the company managing the Tunnel (France Manche) was limited contractually at 280 000 DTS, i.e. € 356,000. After receiving this payment, the insurers demanded payment from, and then sued the Romanian company in French courts for € 208,000.
French Tort Law
The French court applied French tort law. Article 1242 (formerly 1384), second paragraph, of the French civil code provides for fault based liability of the custodian of any thing causing a fire. The court found, however, that the employee of the Romanian company was not the custodian of the truck when the accident occurred, as he has no control over the truck anymore: he had left it after it was put on the train, to go to a car during the journey under the Tunnel. The custodian had become France Manche, which had control over the truck. The action against the Romanian company was dismissed.
Choice of Law
It does not seem that any of the parties raised the issue of choice of law. Under French choice of law principles, the French court might have raised it ex officio, but was not obliged to.
Pursuant to Article 4 of the Rome II Regulation, the law of the place of the damage should have applied, unless the law of another state was manifestly more closely connected to the tort. The tort was certainly connected to a contract (of carriage), but it was not a contract as between the parties.
So where did the damage occur? It all depends where the border between England and France is.
Treaties
The issue is governed by the 1986 Canterbury Treaty which provides:
Article 3. FRONTIER AND JURISDICTION
(1) As regards any matter relating to the Fixed Link, the frontier between the United Kingdom and France shall be the vertical projection of the line denned in the Agreement signed at London on 24 June 1982 relating to the delimitation of the Continental Shelf in the area east of 30 minutes West of the Greenwich meridian, ‘ and the respective States shall exercise jurisdiction accordingly, subject to the provisions of paragraph 3 of this Article and any Protocol or particular arrangements made pursuant to Articles 4, 5, 7 and 8 below.
(2) The frontier in the Fixed Link shall be marked by a Joint Commission, composed of representatives of the two States, as soon as possible after the completion of the relevant section of the Fixed Link and in any event before the Fixed Link comes into operation.
(3) If in the construction of the Fixed Link any works carried out from one of the two States extend beyond the line of the frontier, the law that applies in that part which so extends shall, in relation to matters occurring before that part is effectively connected with works which project from the other State, be the law of the first mentioned State.
(4) Rights to any natural resources discovered in the course of construction of the Fixed Link shall be governed by the law of the State in the territory, or in the continental shelf, of which the resources lie.
The Agreement signed at London on 24 June 1982 relating to the delimitation of the Continental Shelf defines precisely the agreed border, with a chart annexed to the Agreement. I was able to find the Agreement, but it misses the chart !
The information available on the internet suggests that the resulting French undersea crossover is much longer than the English one (34 kms v. 17 kms). If that is correct, this means that the accident occurred on French territory.
One cannot help wonder, however, whether the place of the damage could not have equally been England in this case, and how meaningful the place of the damage is in such a case.
Should the law of the place of the damage be displaced in “transit” torts?
Although it was not concluded between the parties, should the contracts concluded by them with the same third party play a role? Should it be a decisive factor which would trigger the operation of the exception clause and lead to the application of the lex contractus?
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