Tourism Law in Europe

occur; what was the passenger doing at the relevant time; and was the passenger under the carrier’s control? Article 21 of the Convention provides: “ 1. For damages arising under paragraph 1 of Article 17 not exceeding 100,000 Special Drawing Rights for each passenger, the carrier shall not be able to exclude or limit its liability. 2. The carrier shall not be liable for damages arising under paragraph 1 of Article 17 to the extent that they exceed for each passenger 100,000 Special Drawing Rights if the carrier proves that: (a) such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or (b) such damage was solely due to the negligence or other wrongful act or omission of a third party. ”. Non-EC carriers are governed by the unamended text of Article 21 set out above. Accordingly, up to 100,000 SDRs the carrier is not entitled to limit its liability at all. Once the pre-conditions of Article 17(1) are satisfied liability up to the stated figure follows automatically. Over and above that figure a fault regime is imposed, but with the burden of proving the absence of fault lying on the carrier. Damages within these limits for death and injury will be calculated in accordance with the law of the place where the action is being heard. Where a claim is made and is valued at more than 100,000 SDRs but the carrier demonstrates that there was no fault or the incident was caused by the negligence of a third party, the claimant will be able to recover the ‘no fault’ damages of 100,000 SDRs even though the balance of the claim over and above that figure would have to be abandoned or dismissed. For EC Carriers, on the other hand, there is a prohibition against limiting liability at all. However, the carrier is still able to rely upon the absence of fault Defence set out above in respect of claims over 100,000 SDRs. Article 29 of the Convention is entitled ‘Basis of claims’: “ In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention (…)”.