3. Public Transport

In the case of public transport (in the sense of transport available to the public generally), the provider of the service does not supply any product to any member of the public,⁵² but does use products in the provision of the service, notably, the vehicle of transport itself. In France, there has long been considerable public involvement in the provision of transport services in a proprietary or institutional sense, this being true of rail, air and road transport, the nature of this involvement changing so as to reflect more general shifts in public ‘ownership’.⁵³ Quite apart from this kind of public involvement, where transport is made available to the public in general, the carrier is often held to operate a service public, usually ‘industrial or commercial’, but sometimes ‘administrative’.⁵⁴ This means that in principle the general, private law of contract still governs the relations between carriers and their passengers, though it has been supplanted as regards carriage by air and by sea by special regimes of liability⁵⁵ and in the case of carriage by motor vehicle, legislation governing road accidents has transformed it.⁵⁶ While these special regimes differ considerably from the norm (sometimes to the advantage and sometimes the disadvantage of a claimant passenger)1 shall restrict my discussion to the ‘general position’, and focus on travel by rail.⁵⁷

(p.140) The Civil Code provides that a carrier of goods is liable for their loss or damage, unless this is caused by force majeure⁵⁸ or a defect in the goods themselves,⁵⁹ a liability which may be limited by agreement, but not excluded.⁶⁰ While the Code makes no special provision for the carriage of passengers, in 1911 the Cour de cassation held that a carrier must carry passengers ‘safe and sound’ to their destination,⁶¹ thereby recognising what was later known as an obligation de sécurité de résultat.⁶² This means that a person injured in the course of carriage can recover damages against the carrier, unless the latter proves the injured person’s contributory fault or force majeure:⁶³ there is no need to show either fault in the carrier or its employees or that the vehicle or any other ‘thing’ used was defective. French courts have extended the protection of this very strict contractual liability to the legal dependents of passengers killed in the course of carriage by fictitious stipulation pour autrui.⁶⁴

Most modern examples of obligations de sécurité ‘in carriage are found in the context of rail travel, where there is an elaborate case law defining when the obligation starts and finishes⁶⁵ and what constitutes force majeure in the context.⁶⁶ There is, though, here something of a paradox. For while obligations de sécurité appear as a classic example of the inventiveness of French private lawyers, since its inception in the mid-nineteenth century French rail transport has constituted a service public⁶⁷ and since 1937 French railways have been nationalised as the Société nationale des chemins defer fançais (SNCF).⁶⁸ Despite these public features, the relationship between travellers and SNCF has been consistently held to belong to private law and the jurisdiction of the ordinary courts, following the classic pattern of ‘industrial and commercial’ services publics. On the other hand, the public underpinning of SNCF has clearly influenced the very strict attitude of the courts to contractual liability in railway (p.141) accident cases.⁶⁹ For example, in a case decided in 1953 in which a person injured in a train crash which had been deliberately caused by unknown striking railway employees claimed damages against SNCF,⁷⁰ the court held that SNCF could not rely on the act of strikers as force majeure so as to exclude its liability as the latter should have foreseen their acts and should have taken greater precautions to prevent them, even though on the facts as found by the juges du fond it is by no means clear what precautions could have been taken. In the view of one leading commentator, in this sort of case the courts treat SNCF as a sort of public compensation fund (fonds de garantie) in respect of railway transport accidents.⁷¹

However, this subjection of the liability of SNCF to private law is not complete. For if a person injured by its operations does not count as a ‘user’ of the service public which it provides (so as to attract private law), then in an appropriate case he or she may rely on the administrative law of public works’.⁷² Where this is the case, the strictness of the liability faced by SNCF will depend on the claimant’s ‘status’ as ‘user’, ‘participant’ or ‘third party’ to the public works in question.⁷³ Here, then, SNCF’s liability will be administrative and may or may not be strict.