This blog post is by James Beeton of 12 King’s Bench Walk.
This interesting jurisdictional dispute involved an examination of the nature of a package tour operator’s duty of care – is the duty contractual or non-contractual? The answer to this question raised corresponding issues as to the applicability and effect of Rome I and II.
On 18 February 2011, Cristiano Committeri, who lived in London, was in France on a team building exercise organised by his employer, BNP Paribas Bank (“BNP”). BNP had entered into a contract with the First Defendant (“Club Med”) under which Club Med were to provide travel, accommodation, ski guides and climbing activities for certain BNP employees, including Mr Committeri. That contract contained a ‘Law and Jurisdiction’ clause, providing that the booking conditions would be governed by English law.
On the day in question, Mr Committeri was taking part in a climbing activity on an ice wall at the ‘Mer de Glace’ in Chamonix while suspended by a rope held by another employee. As he climbed the wall, Mr Committeri slipped and fell, suffering injuries to his foot and ankle. He brought a claim against Club Med and their insurers, the Second Defendant (“Generali”).
The claim against Club Med was brought on the basis of France’s Code de Tourisme (“the Code”), which had been enacted partly to give effect to the provisions of the Package Travel Directive. The relevant part of the Code was article L211-16, which provided for liability on the part of organisers or vendors of holidays or holiday services for the ‘proper performance of the obligations arising from the contract’.
Whilst under English law the relevant standard of care was to be assessed in accordance with the terms of the package travel contract (Hone v Going Places EWCA Civ 947), it was agreed that, if the French Code applied, it would impose strict liability on Club Med to compensate Mr Committeri for his injuries (and, in the event of such a finding, liability as against Generali would follow).
Mr Committeri accepted that he could not establish proof of fault on the facts and it was therefore accepted that, while the claim would succeed if the matter were dealt with under French law, it would fail if it were dealt with under English law.
The issues before the court were:
- Was Mr Committeri’s claim under article L211-16 of the Code contractual in nature and therefore governed by Rome I or non-contractual in nature and therefore governed by Rome II?
- If the claim was contractual in nature and governed by Rome I, was the clause in the BNP/Club Med contract a choice of law clause which applied to Mr Committeri’s claim?
- If the claim was non-contractual in nature and governed by Rome II, should the general rule in article 4(1) – that the law of the place of the accident should apply – be displaced by article 4(3) because the tort/delict was manifestly more closely connected with England?
Was the claim contractual or non-contractual?
The question of whether or not the obligation was contractual in nature was an autonomous European law concept. This meant that the approach adopted in either French or English law (both of which did in fact treat the obligation as contractual) would not be determinative of the issue.
Dingemans J also came to the ‘clear conclusion’ that the claim under the Code was contractual for the purposes of Rome I and Rome II. First, he noted that the wording of the Code, which was derived from the Package Travel Directive (and mirrored in the Package Travel Regulations in England and Wales), expressly related to contractual obligations. Second, his view was that the obligation to compensate Mr Committeri under the Code was properly understood as deriving from Club Med’s agreement with BNP to provide him with team building activities and not out of tort/delict.
Was there a choice of law under Rome I?
Dingemans J rejected the argument that there was only a choice of law in respect of the ‘booking conditions’. Given that the brochure, which was incorporated into the contract, contained provisions relating to payment, modification, cancellation as well as responsibility and performance, his view was that there was ‘nothing else to be governed by a separate or implied choice of law’. As a result, any reasonable party would understand that English law applied to the contract as a whole.
In those circumstances, Mr Committeri was not entitled to rely upon the provisions of the Code as against Club Med and the claim failed.
What if Rome II had applied?
Although it was not necessary for him to do so, Dingemans J also commented that, had Rome II applied, he would not have accepted the submission that the test under art. 4(3) was satisfied. Indeed, there was ‘nothing in the matters suggested by Mr Karia (namely that Mr Committeri worked in London, the rope was held by another member of the team who worked in London, Mr Committeri lives in London and has suffered effects of the accident in London) which comes close to overcoming the high hurdle.’
The argument as to the nature of the relevant obligation comes against the backdrop of a striking difference in approaches between French and English law to the standard of care required in package travel claims. In practical terms, English package travel companies providing holidays in France would be well advised to include a valid choice of law clause providing that English law will govern the whole contract together with a provision for fault-based liability.
As a final point, it is worth noting that the comments in respect of art. 4(3) of Rome II are brief but again offer an illustration of the high threshold faced by a party seeking to displace arts. 4(1) or (2). In that sense, the judge’s analysis echoes the stringent approach adopted in recent years by Slade J in Winrow v Hemphill and Ageas Insurance Ltd  EWHC 3164 (QB).