Committeri v Club Mediterranee SA Generali Assurances Iard SA [2016] EWHC 1510 (QB)

Case No TLQ/15/1432[2016] EWHC 1510 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30 th June 2016
Before
MR JUSTICE DINGEMANS
Between
Cristiano CommitteriClaimantClub Mediterranee SADefendantsGenerali Assurances Iard SADefendant
Marie Louise Kinsler and Alistair MacKenzie (instructed by Leigh Day) for ClaimantChirag Karia QC (instructed by Holman Fenwick Willan LLP) for DefendantsHearing Hearing dates: 8 th and 9 th June 2016
Judgment

Introduction

[1]This is the hearing of liability only in relation to a claim made by Mr Cristiano Committeri (“Mr Committeri”) against Club Mediterranee SA (“Club Med”) and Generali Assurances Iard SA (“Generali”) which arises out of an accident which occurred on 18th February 2011 when Mr Committeri who was climbing an ice wall on the Mer de Glace, Chamonix, France slipped and fell causing injuries to his foot and ankle. The success of this claim depends on whether French law applies under which it is common ground that Mr Committeri will obtain judgment for damages to be assessed, or English law applies under which it is common ground that Mr Committeri’s claim will fail. The application of English law or French law will mainly depend on whether Mr Committeri’s claim is contractual in nature and governed by Regulation (EC) No. 593/2008 (“Rome I”) or non-contractual in nature and governed by Regulation (EC) No 864/2007 (“Rome II”).[2]At the time of the accident Mr Committeri was on a team building exercise organised by his then employer, BNP Paribas Bank in London (“BNP”). BNP had made a contract with Club Med (“the BNP Club Med contract”) to provide travel, and accommodation for its employees, including Mr Committeri. The BNP Club Med contract had a “Law and jurisdiction clause” providing that the booking conditions would be governed by English law.[3]Claims alleging fault (under French law) or negligence (under English law) made by Mr Committeri against Club Med and Generali have been discontinued in the light of the evidence about the arrangements made for the climbing activity. A claim against Club Mediterranee UK Limited was discontinued given the lack of involvement of the UK Limited company.[4]The claim which is pursued against Club Med is made on the basis that French law applies and is made pursuant to article L211-16 of the Code de Tourisme (“the Code”). Although the Code was partly enacted in France pursuant to the provisions of the Package Travel Directive (90/314/EEC) (“the Package Travel Directive”) which gave rise in England and Wales to the Package Travel, Package Holidays and Package Tours Regulations 1992 (“the Package Travel Regulations”) it is common ground that in France the interpretation of the Code has been approached very differently from the Package Travel Regulations in England and Wales. It is agreed that if the Code applies there is strict liability on the part of Club Med to compensate Mr Committeri for the accident in which he suffered injuries to his foot, but it is not agreed whether this liability is contractual or non-contractual. It is also common ground that under French law Generali, who are Club Med’s insurers, are liable to Mr Committeri if Club Med is liable to Mr Committeri. Issues[5]I am very grateful to Ms Kinsler and Mr Mackenzie on behalf of Mr Committeri, and Mr Karia QC on behalf of Club Med and Generali for their submissions and assistance. The following issues arise for determination:(1) whether the claim made by Mr Committeri pursuant to article L211-16 of the Code is contractual in nature and governed by Rome I or non-contractual in nature and governed by Rome II;(2) if the claim is contractual in nature and governed by Rome I whether the clause in the BNP Club Med contract is a choice of law clause which applies to the claim made by Mr Committeri meaning that English law applies. If it does not it is common ground that under Rome I the law applicable to the claim would be French law because Club Med has its “habitual residence” in France;(3) if the claim is non-contractual in nature and governed by Rome II, whether the general rule in article 4(1) that the law of the place of the accident, which is France, should apply is displaced by the provisions of article 4(3) because the tort/delict is manifestly more closely connected with England. The relevant facts[6]It was apparent from the respective Statements of Case that the essential facts about the booking and accident were not in dispute, and there was no oral evidence at the hearing. The parties produced an agreed statement of facts and reference was made to relevant documents during the course of the trial. The matters set out below represent my findings of fact in relation to the booking and the accident based on the agreed facts and the documents. The booking[7]Mr Committeri lives in London, and he was at the material time working for BNP. BNP decided to organise a team building trip for the team in which Mr Committeri worked. BNP made a contract with Club Med on or around 10 December 2010 by which Club Med agreed to provide certain of BNP’s employees, including Mr Committeri, with travel, accommodation, ESF ski guides and climbing activities. It appears from the booking form, and I find, that Mr Committeri must have been asked to provide various personal details, for example his shoe size, for the purposes of the trip so that appropriate equipment could be provided to him.[8]The contract with BNP contained Club Med’s “general booking conditions”. The general booking conditions provided:
“1. Terms and Conditions 1.1 These Booking Conditions supplement and modify Club Med’s booking conditions in our brochure … which are hereby incorporated into these booking conditions”; and “8. Law and Jurisdiction These Booking Conditions are governed by English law and both parties shall submit to the jurisdiction of the English Courts.”
[9]The brochure, to which reference had been made in clause 1.1 of the booking conditions, contained booking conditions. These included provisions relating to payment, modification and cancellations, responsibility and performance of the contract (in clause 16); and a provision at clause 16.6 that “this contract is made on the terms of these booking conditions, which are governed by English law, and the jurisdiction of the English Courts …”. The accident[10]The BNP team travelled to France. On 18th February 2011 Mr Committeri was taking part in a climbing activity on the Mer de Glace in Chamonix. This activity was subcontracted by Club Med to Compagnie des Guides de Chamonix Mont Blanc.[11]The activity involved climbing an ice wall using ice axes and crampons. A rope was attached to Mr Committeri which was held by an employee of BNP at the base of the ice wall. While climbing Mr Committeri lost his footing, slipped and fell. He was prevented from falling all the way down to the bottom of the ice wall by the rope. However in the fall Mr Committeri sustained an injury to his right foot and fractured bones. Mr Committeri had medical treatment in France and returned to London. Medical evidence served in support of the claim shows an ongoing effect on his ability to walk and play sport. The extent of the injuries and the effect of the injuries on Mr Committeri are not issues at this hearing and I do not make any findings in relation to them. Relevant provisions of French law[12]Mr Committeri adduced expert evidence from Paul Ricard (“Mr Ricard”), Avocat at the Cour d’Appel Paris and a partner in the law firm JP Karsenty & Associes. Club Med adduced expert evidence from Jerome Charpentier (“Mr Charpentier”), a member of the Paris Bar since 1987 and a member of the Caisse Nationale des Barreaux Francais.[13]Both Mr Ricard and Mr Charpentier had produced reports on French law and, as might be expected from experts in their field, there is common ground on almost all of the issues. In the light of this fact they were not instructed to meet and produce a report of matters agreed and not agreed, and did not attend to give evidence before me. Their reports therefore stand as their evidence and my findings on French law are set out below. In the expert reports and exhibits there were references to a number of cases decided by various Cour d’Appel and the Cour de Cassation. It should be noted that the Cour de Cassation does not re-examine the facts and is responsible for the proper interpretation of the law. The Cour de Cassation does not review past cases to determine the extent of the law, but asserts the relevant principles which are to be applied. This makes the process of reasoning by which liability has been imposed difficult to ascertain in some cases. It might be noted that there do not appear to be any academic writings or textbooks on this area of French law which might also have provided some help in ascertaining why the French courts have taken the approach that they have to the Code (which, as noted above, differs from the approach that the Courts in England and Wales have taken to the Package Travel Regulations).[14]The expert evidence from Mr Charpentier shows that the Code became part of French law: to deal with issues in French law about whether the travel agent was an agent or principal; and to comply with the provisions of the Package Travel Directive.[15]The agreed translations show that article L211-1 of the Code provides “1. This chapter applies to individual or legal entities involved in or providing assistance, whatever the terms of their remuneration, in operations consisting of the organisation or the sale: a) of travel or individual or group holidays; b) of services that may be provided on the occasion of travel or holidays …”. Article L211-16 provides: “Any individual or legal entity involved in the operations mentioned in Article L211-1 is liable ipso iure towards the purchaser for the proper performance of the obligations arising from the contract, whether or not the contract was entered into online or the obligations are to be performed in person or by other service providers …”.[16]As the agreed translation of article L211-16 has itself used the Latin “ipso iure” (in common with translations of reports of the French cases in the bundle before me) I will also set out the material provisions of article L211-16 from the original French wording of the Code which is “… mentionees a l’article L.211-1 est responsible de plein droit a l’egard de l’acheteur de la bonne execution des obligations resultat du contrat …”. It can be seen that it was the phrase “de plein droit” which was translated as “ipso iure”.[17]The cases show that under French law the provisions of article L211-16 have been interpreted to impose a strict liability on the part of the organiser for any injury suffered by a person on a package holiday. Cases showing that there is strict liability in the event of an injury include the judgment of the Court d’Appel of Versailles dated 30 November 2000. In that case the Court stated that the organiser was liable ipso iure towards the purchaser for the proper performance of the obligations arising from the contract, but there was no explanation of why proper performance required the absolute safety of the purchaser.[18]In the judgment of the Cour de Cassation dated 17th November 2011 (which also happened to have involved Club Med) there was a claim brought after a skier had suffered injury during a skiing lesson. The grounds of appeal to the Cour de Cassation specifically complained of the fact that there had been no improper performance because the skier had just had an accident and suffered a broken leg. The Cour de Cassation rejected the grounds of appeal, noting that “any person involved in operations … is liable ipso jure for the proper performance of the obligations arising from the contract and can only release himself from all or part of his liability by providing proof that the non-performance or defective performance” was due to specific exemptions. The Cour de Cassation seems to have considered that the occurrence of any accident proves improper performance of the contract, effectively implying a contractual obligation to keep the consumer safe.[19]In the judgment of the Cour de Cassation dated 4th May 2012 (another case involving Club Med) a consumer on a package holiday in Smir suffered a canoeing accident when using a canoe which had been left by his accommodation. In that case the argument appeared to have turned on whether the canoe was part of the package holiday, rather than on any analysis of improper performance.[20]In actions not covered by the Code the obligation of a contracting party providing holiday services is to use best endeavours. This appears from the judgment of the Cour d’Appel of Paris dated 24 March 2003 in which a claim for damages was rejected after a young skier ignored an instruction and went down a slope for snow boarders, and the judgment of the Cour de Cassation in which it was held that the operator of a zip wire was not in breach of the best endeavours clause when a user collided with a tree at the end of the run.[21]It might be noted that under French law the Code is a mandatory law which means, pursuant to the provisions of article 6 of the Civil Code, that it cannot be excluded by contract under French law. This part appears from the judgment of the Cour d’Appel of Versailles dated 10 November 2000. However this does not help to determine whether the obligation under the Code is contractual or non-contractual.[22]It might be noted that under French law if there is contractual and tortious liability, the claim in contract is the only claim which can succeed. It might be noted that in proceedings a tort claim can be pursued as an alternative claim if the contractual claim does not succeed.[23]The obligation to avoid injury under the Code was termed by Mr Charpentier as “an obligation of results”. However that phrase does not of itself help me to decide whether the obligation to obtain the result imposed by the Code is contractual (such as in English law a term implied into a contract by statute) or non-contractual (such as in English law a claim for breach of statutory duty). Mr Ricard said “the obligation to perform the contract in full security is a commitment to the actual result” which suggests that the obligation might be contractual because he is referring to the nature of the contractual obligation.[24]Finally both experts considered that the obligation in article L211-16 was a contractual one. Mr Charpentier said “article L211-16 relates to contractual liability” and Mr Ricard said that “article L211-16 of the French Code de Tourisme provides for a specific cause of action based on contractual liability”. Ms Kinsler pointed out that the issue of whether the obligation is contractual or non-contractual is an autonomous European law concept for the purposes of Rome I and Rome II, and that the fact that the expert French lawyers considered that the obligation was contractual showed only the French law analysis. The Package Travel Directive[25]It is apparent that the wording of the Code in France is based on the wording of the Package Travel Directive. I have therefore set out material parts of the Package Travel Directive in an attempt to see whether the Package Travel Directive will help to determine whether the obligation in article L211-16 is “contractual” or “non-contractual”.[26]The recitals to the Package Travel Directive noted: the disparities and differing national practices in the field of package travel; the need to remove barriers to the provision of services across the member states; that “the consumer should have the benefit of the protection introduced by this Directive irrespective of whether he is a direct contracting party … or a member of a group on whose behalf another person has concluded a contract”; that if there occurred a significant failure of performance “of the services for which he has contracted”, the “organiser should have certain obligations towards the consumer”; that the organiser should be liable to the consumer “for the proper performance of the contract” and that the organiser should be “liable for the damage resulting for the consumer from failure to perform or improper performances of the contract” save in defined circumstances.[27]Article 2(5) of the Package Travel directive defined “contract” as “the agreement linking the consumer to the organiser …”. Article 5(1) provided that “Member states shall take the necessary steps to ensure that the organiser and/or retailer party to the contract is liable to the consumer for the proper performance of the obligations arising from the contract, irrespective of whether such obligations are to be performed by that organiser and/or retailer …”. Article 5(2) provided that “with regard to the damage resulting for the consumer from the failure to perform or the improper performance of the contract, Member States shall take the necessary steps to ensure that the organiser and/or retailer is/are liable …”. Package Travel Regulations[28]The Package Travel Directive was transposed into English law by the Package Travel Regulations. Regulation 2 defined “the other party to the contract” other than the consumer as “the organiser or the retailer, or both”. Regulation 15 provided that “(1) the other party to the contract is liable to the consumer for the proper performance of the obligations under the contract …; (2) the other party to the contract is liable to the consumer for any damage caused to him by the failure to perform the contract or the improper performance of the contract …”.[29]As noted above English law and French law have taken a different approach to the issue of whether there is an obligation to ensure the safety of the consumer in a package holiday. In Hone v Going Places [2001] EWCA Civ 947; Times 6th August 2001, the Court of Appeal in England and Wales considered an argument that the Package Travel Regulations created strict liability for accidents on package holidays. In that case the Claimant was injured when evacuating from a plane down an emergency chute. Among other claims about inadequate performance it was submitted on behalf of the Claimant that “the Regulations imposed an absolute liability subject to the defences which the defendants could not show were available”, see paragraphs 6 and 10 of the judgment in Hone. In Hone Longmore LJ decided that what was “improper performance” could only be determined by reference to the terms of the contract, see paragraph 15. In that case there was an implied term that the carriage by air would be carried out with reasonable care and skill, and absence a breach of that term, there was no improper performance. The Court of Appeal rejected an argument that there was an absolute duty to keep the passenger safe, see paragraph 16 of the judgment in Hone. It was noted that where there was to be strict liability without any improper performance different wording had applied as in the Warsaw Convention, see paragraph 17 of the judgment in Hone.[30]Hone has been followed in a number of subsequent cases including Evans v Kosmar Villa [2007] EWCA Civ 1003; [2008] 1 WLR 297 at paragraph 21.[31]As already noted English and French law have come to different interpretations of the meaning of “improper performance of the contract”. English law has looked at what performance was to be expected under the contract, and if that standard of performance was reasonable care and skill, it has not imposed an absolute duty. French law appears to have taken the view that proper performance of the contract requires the safety of the consumer, effectively accepting the argument rejected by the Court of Appeal in Hone. This difference of approach between French law and English law has not made my task of identifying whether the obligation in L211-16 of the Code is “contractual” or “non-contractual” any easier. Relevant provisions of Rome I and Rome II[32]I turn next to consider relevant provisions of Rome I and Rome II, and authorities on Rome I, Rome II and Regulation (EU) 1215/2015 on judgments and jurisdiction, which is now known as “the Brussels I Recast”. Rome I[33]It is common ground that the recitals are a relevant and admissible aid to the interpretation of Rome I. Recital 6 emphasises the need to improve the predictability of the outcome of litigation; recital 7 emphasises that the substantive scope of Rome I should be consistent with Rome II and what is now the Brussels I Recast; recital 11 emphasises the cornerstone nature of the parties’ freedom to choose the applicable law; recital 19 set out default rules for choice of law where there was no contractual choice; and recital 23 emphasised the need to protect weaker parties.[34]The following were material provisions of Rome I: “1. This Regulation shall apply, in situations involving a conflict of laws, to contractual obligations in civil and commercial matters. …”.[35]Article 3(1) provides for a contract to be “governed by the law chosen by the parties.” Article 4(1)(b) provided that in the absence of a choice of law “a contract for the provision of services shall be governed by the law of the country where the service provider has his habitual residence”. Article 12 provides that the law applicable to a contract shall govern in particular performance. Rome II[36]It is common ground that the Commission proposal for Rome II and the recitals are admissible aids to the interpretation of Rome II. The Commission proposal noted the need for all member states to apply the same choice of law provisions to assist in improving the foreseeability of solutions. It was noted (at page 5) that “despite common principles, there are still major divergences between Member States, in particular as regards the following questions: the boundary between strict liability and fault based liability …”. The need for the application of article 4(3) to remain exceptional was stressed at page 12 of the proposal.[37]Recital 6 emphasised that in order to improve the predictability of the outcome of litigation and certainty as to the applicable law, conflict of law rules needed to designate the same national law irrespective of where the action was brought; recital 11 emphasised that the concept of “non-contractual obligation” was an autonomous concept under European law; recital 14 explained that in order to provide legal certainty and justice in individual cases the regulation provided for a general rule, a specific rule and an escape clause; recital 15 explained that the principle of lex delicti commissi was the basic solution in virtually all member states, but that the application varied and engendered uncertainty; recitals 16 and 17 explained that a connection with the country where the direct damage occurred (lex loci damni) struck a fair balance and should be applied in cases of personal injury or damage to property; and recital 18 explained the inter-relationship between articles 4(1) providing for the general rule, 4(2) as an exception to the general principle “creating a special connection where the parties have their habitual residence in the same country”, and 4(3) as an “escape clause”, where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with another country.[38]Article 1 of Rome II provides:
“This Regulation shall apply, in situations concerning a conflict of laws, to non-contractual obligations in civil and commercial matters”
. Article 2 of Rome II recorded “For the purposes of this Regulation, damage shall cover any consequence arising out of tort/delict, unjust enrichment, negotiorum gestio or culpa in contrahendo”.[39]Article 4 of Rome II provides:(1) Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.(2) …(3) Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs (1) or (2), the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.” Relevant authorities on contractual and non-contractual obligations[40]When dealing with autonomous European law concepts such as “contractual” and “non-contractual” it is important to have regard to relevant principles of interpretation set out by the Court of Justice in Cilfit v Ministry of Health C-283/81; [1982] ECR 3415 at paragraphs 18-20 which emphasise that “legal concepts do not necessarily have the same meaning in Community law and in the law of the various Member states”.[41]This point was emphasised in Brogsitter v Fabrication de Montres Normandes EURL C-548/12 where at paragraph 21 the Court of Justice emphasised the need to check whether claims were “regardless of their classification in national law” contractual in nature. There have been cases where national classification as a matter of contract have been held to be different from the European autonomous concept, see Handte v TCMS C-26/91; [1992] ECR 1-3697. This has included obligations between members of a private law association where European law has held the relationship to be contractual, which is an interpretation which has differed from some member states. Another example of the Court of Justice holding matters to be contractual where the laws of some Member states have provided different answers include the making of unilateral offers by advertisements.[42]In Martin Peters v Zuid Nederlandse Aannemers C-34/82; [1983] ECR 987, the Court of Justice said, at paragraph 10 that “the concept of matters relating to a contract should be regarded as an independent concept which, for the purpose of the application of the Convention, must be interpreted by reference chiefly to the system and objectives of the Convention, in order to ensure that it is fully effective”. It might be noted that “matters relating to a contract” is a different form of wording from “contractual obligations” but the wording comes from Brussels I and Brussels I Recast and the materials and authorities have emphasised the need to have a consistent interpretation.[43]In Kafelis v Schroder [C-189/87] [1988] ECR 5565; the Court of Justice noted that, for the purposes of Brussels I, “the concept of matters relating to tort, delict and quasi-delict covers all actions which seek to establish the liability of a defendant and which are not related to a contract”, a definition which obviously requires the accurate determination of what “relates to a contract”.[44]The concept of “matters relating to a contract” for the purposes of the Brussels Convention is not interpreted narrowly, see Engler v Janus Versand C-27/02 [2005] ECR 1-481 at paragraph 48. At paragraph 50 the concept of a contract comprising “an obligation freely assumed towards another” was emphasised. In Brogsitter at paragraph 25 it was recorded that where it was necessary to interpret a contractual clause to determine whether the conduct was lawful the relationship was contractual.[45]In Ergo Insurance v If P&C C-359/14 the Court of Justice considered whether an application for an indemnity made by one insurer to another (in what English lawyers might consider to be contribution proceedings) was contractual or non-contractual. The Court noted that Rome I and Rome II had harmonised the conflict of laws rules on the applicable laws in civil and commercial matters relating to contractual obligations and non-contractual obligations, see paragraph 37 of Ergo. Paragraph 43 emphasised that the definition of contractual and non-contractual obligation must be interpreted independently, by reference to their scheme and purpose.[46]As to contract, in paragraph 44, the Court held that “only a legal obligation freely consented to by one party towards another and on which the claimant’s action was based was a `matter relating to contract’”. The Court therefore concluded in paragraph 44 that “the concept of `contractual obligation’ within the meaning of article 1 of the Rome I Regulation designates a legal obligation freely consented to by one person to another”. In relation to non-contractual obligations the Court noted that a non-contractual obligation included all actions seeking to establish the liability of a defendant not related to a contract. The Court held “furthermore, it must be observed, as appears from article 2 of the Rome II Regulation, that that regulation applies to obligations ensuing from damage, that is to say, any consequence arising out of tort/delict, unjust enrichment, `negotiorum gestio’ or `culpa in contrahendo’”. In paragraph 46 the Court held that “non-contractual obligation must be understood as meaning an obligation which derives from one of the events listed in article 2 of that Regulation, set out in the preceding paragraph of this judgment”.[47]Ms Kinsler submitted that the effect of Ergo was to prove that the obligation under article L211-16 of the Code was a non-contractual obligation because the obligation to make a payment to Mr Committeri was an “obligation ensuing from damage”. It was common ground that Ergo was a relevant and important judgment, representing as it did the first consideration by the Court of Justice of the boundaries between contractual and non-contractual. However it is not a complete characterisation of the decision to say as Ms Kinsler did, that the liability arose from damage, and therefore the obligation is non contractual. This is because the Court of Justice went on to say “… that is to say, any consequence arising out of tort/delict, unjust enrichment, `negotiorum gestio’ or `culpa in contrahendo’” and emphasised that again in paragraph 46 of the judgment. It would have been very surprising if the fact that liability had ensued from damage was enough to make the claim non-contractual in circumstances where contractual obligations can provide for liability on the occurrence of damage, such as contracts of life insurance.[48]It is established that third parties who are entitled to benefit from contractual provisions are still, for the purposes of EU law, enforcing contractual obligations. This part appears from cases decided in the Courts of England and Wales including Atlas Shipping v Suisse Atlantique [1995] 2 Lloyd’s Rep 188 at 194 and WPP Holdings Italy Srl v Bennatti [2007] EWCA Civ 263;[2007] 1 WLR 2316 at paragraphs 54 and 55. Toulson LJ, with whom Sir Anthony Clarke MR agreed see paragraph 92 (and it seems that Buxton LJ did not disagree on this point), specifically approved an extract from Briggs & Rees on Civil Jurisdiction and Judgments, 4th Edition, at paragraph 2.126 where the authors noted that where a party has directly enforceable rights under a contract this will be seen as contractual in nature for the purposes of European law. The claim under article L211-16 is contractual[49]I have come to the clear conclusion that the claim made under article L211-16 of the Code is contractual for the purposes of Rome I and Rome II (and the Brussels I Recast). This is because the BNP Club Med contract, made between BNP and Club Med, conferred benefits on Mr Committeri by providing him with team building activities in Chamonix. Mr Committeri was, under the Code, enforcing “the proper performance of the obligations arising from the contract”.[50]The wording of the Code, derived from the Package Travel Directive (and mirrored in the Package Travel Regulations in England and Wales) relates to contractual obligations. French law has considered that “proper performance of the contract” in a package holiday setting requires the absolute safety of the consumer, so that (unless the exceptions in the Code apply) when there is an injury on a package holiday the organiser will be liable. This most clearly appears from the judgment of the Cour de Cassation dated 17th November 2011 referred to in paragraph 18 above. The French Courts are inquiring into what is “the proper performance of the contract” which suggests, see paragraph 25 of Brogsitter, that the obligation is contractual. The judgment in Ergo supports this conclusion because the obligation to compensate Mr Committeri under the Code derived from the legal obligation freely consented to by the parties when Club Med agreed to provide travel, accommodation and activities for BNP and its employees including Mr Committeri. The obligation to compensate did not arise out of tort/delict, unjust enrichment, “negotiorum gestio’ or `culpa in contrahendo’.[51]I note that my conclusion on whether the obligation is contractual in nature is consistent with the conclusions of Mr Ricard and Mr Charpentier that the action is contractual in nature. However their conclusions related to French law, and the issue of whether the obligation is contractual is an autonomous European law concept. I also note that in English law the equivalent provision of the Package Travel Regulations has also been analysed by the Court of Appeal in Hone in contractual terms (albeit coming to a different conclusion on the content of the contractual obligation). The fact that both French law and English law have analysed the obligation in contractual terms provides some support for the conclusion that the obligation is contractual in nature.[52]Although Mr Karia placed some reliance on the way in which Mr Committeri had pleaded his action, relying on paragraph 13 of the Particulars of Claim and the pleading that there was strict liability “to the Claimant for the proper performance of the obligations under the contract” I have not placed any separate reliance on this pleading point. This is because paragraph 14 of the Particulars of Claim contained a sufficient pleading of a claim for breach of statutory duty, and because the pleading simply paraphrased the relevant provisions of the Code. As I have noted above, it is the wording of the Code which shows that this is a contractual claim.[53]In circumstances where the claim under article L211-16 of the Code is contractual, the claim is governed by Rome I. There was a choice of law under Rome I[54]Ms Kinsler submitted that, even if Rome I did apply, the relevant provisions of the contract in the brochure and booking conditions did not apply to the claim made by Mr Committeri, meaning that there was no contractual choice of law and that the choice of law under article 4(1)(b) of Rome I would be French law because Club Med as the service provider had its habitual residence in France. It was submitted that clause 8 of the booking conditions which provided “these booking conditions are governed by English law” and clause 16.6. of the brochure which provided that “this contract is made on the terms of these booking conditions, which are governed by English law”, represented only a choice of law for the booking conditions, and not for the contract as a whole.[55]It is clear that it is possible to make different choices of law for different parts of a contract, for example arbitration clauses and clauses under the main contract. However in my judgment the choice of law clause in the brochure and booking conditions were choice of law clauses which governed the whole of the contract. This is because the booking conditions in the brochure contained provisions relating to payment, modification, cancellation, as well as responsibility and performance. This left nothing else to be governed by a separate or implied choice of law. In these circumstances I consider that any reasonable contracting party would understand that these terms meant that English law applied to the contract as a whole.[56]In these circumstances the contract is governed by English law. This means that Mr Committeri is not entitled to rely on the provisions of the Code against Club Med in this action. It is not for me to determine whether Mr Committeri will be able to bring an action in France against Club Med and rely on the mandatory provisions of the Code in those French proceedings. If Rome II had applied English law would have applied[57]Although it is not necessary to do so in the light of my earlier conclusions, I should record that if I had held that the obligation was non-contractual, meaning that Rome II applied, I would not have accepted Mr Karia’s submission that the choice of French law based on the location of the accident had been displaced under article 4(3) of Rome II. This is because there is a “high hurdle” in order to displace the choice of law indicated by article 4(1) and it is necessary to show that “the centre of gravity” of the case is with English law. There is 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. Conclusion[58]For the detailed reasons given above in my judgment the obligation under article L211-16 of the Code is contractual, and therefore Rome I applies to this claim. The contract, the proper performance of which Mr Committeri is seeking to enforce, contained a choice of law clause which binds Mr Committeri and which provides for English law. It is common ground that under English law Mr Committeri does not have any viable claim against Club Med. I therefore dismiss this action.

Cited in 5 later judgments