Civil liability arising from obligations of protection in contracts of transport of passengers : a local and comparative analysis

Abstract

The aim of this thesis is to examine the juridical foundations on which contractual duties of protection stand in relation to the transportation of passengers. The First Chapter considers the juridical nature of the contract of carriage and also appraises the historical development of contractual duties of protection in Roman law: the foundation of the private law in Civil law jurisdictions. Maltese private law is undoubtedly of Franco‐Romanic provenance; nevertheless, the island‐state’s prolonged colonial relationship with Britain did not leave its legal system uninfluenced by principles of Common law. Thus, one can speak of a mixed legal system. In the Second and Third Chapters, this work adopts a comparative method which explores the juridical treatment accorded to the carriage of passengers in four of the most influential legal systems in Europe: British Common law, French law, German law and Italian law. Attention is also given to the general characteristics of the law of obligations in these jurisdictions as it is indispensable for an informed discussion of the topic. The point of departure in this comparative analysis is the quasi‐identical nature of the French and Maltese provisions on obligations. The discussion on how the subject is treated in Maltese law is contained in the Fourth Chapter. It is examined whether the nominate provisions regulating the activities of Carriers by Land or Water in the Maltese Civil Code are applicable to the carriage of passengers and derives the conclusion that the specific regime applies solely to the carriage of goods. Hence, the contract of transport of passengers falls to be regulated by general contract law, of which a comprehensive examination is presented. The discussion then turns to the question on whether Maltese law recognises contractual obligations going beyond simple performance, compensating physical and patrimonial harm occasioned to a contracting party in the context of a contractual relationship. Situations where a contracting party suffers harm during the performance of a contractual obligation contracted in his favour, as is the case of a paying passenger injured in transit, open the stage to debate on concurrent liability. Thus, this work will proceed to examine whether Malta adheres to the règle du noncumul developed by French courts. Were concurrence to be allowed, an injured passenger could also possibly elect to sue in tort with all the relative advantages and disadvantages including the allocation of the onus probandi and varying prescriptive periods. Whilst the mixed nature of the Maltese legal system does allow for a considerable degree of flexibility, the result is that there is often little consistency in the manner complex legal questions, including the subject under examination are approached and answered by the Courts. It may be the case that doctrinal linearity is sacrificed in favour of practical flexibility. This work finally proposes legislative amendment which will militate in favour of greater legal certainty in cases for recovery of damages by passengers injured whilst being transported by virtue of a contract.