Opinion: Liability Unlimited

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By Luciana Cabral Journalist and a researcher in Latin American Institutions and Politics at the University of Camerino Civil Law School in Italy.

When checking an aircraft's pressure gauge or temperature before take-off, a pilot or maintenance technician knows the degree of responsibility in his or her hands at that moment. Equally engine drivers who avoid drinking alcohol before a trip are aware that their actions affect hundreds of other people.

In a similar manner the truck driver of a large road transport company, or the person in charge of stowing goods in a ship's hold, know they must protect the goods under their charge. This responsibility, directly involving the customer and the company's owners, also binds the transport worker, and is technically known as civil liability.

In spite of the availability of insurance covering financial risks in these activities, the issue remains a subject of debate. Growing transport volumes in most sectors, as well as the increasing danger of terrorism against transport systems, mean greater insurance risks. These in turn can trigger higher fares, more costly work contracts and, potentially, greater liability being placed on the shoulders of transport workers.

Since 1997, the National Research Council in Italy has been financing a research programme at the University of Camerino Civil Law School on civil liability in transport. The objective is to clarify legally controversial aspects in the hope of influencing improvements in the system.

Researchers are looking into the laws that apply to any given country, and how far-reaching they are. They are analysing the likely legal and economic effects of rising insurance costs and producing examples to show how some standard cases can be resolved in practice.

Antonio Flamini, lawyer, professor and director of the school, points out that legislation for the transport industry is undergoing major changes. This may greatly affect companies, as well as customers, through increased premiums for compulsory civil liability insurance. Consequently, the transport industry may have to undergo fundamental changes over the next few years in order to adapt itself to internationally established standards.

“International law and community law are directed more and more towards providing for personal rights,” explains Flamini.

This could mean more rights for customers and employers as the rules are re-examined and further unified to meet the needs of a globalised world. Transport companies and workers will need to keep their eye on the ball as there could be more claims for damages or penalties against workers.

New regulations
Air transport appears most likely to be affected by change. Owing to growth in the number of people and volume of freight carried, it is one of the foremost industries to be affected by new civil liability regulations.

The Montreal Convention for unifying international air transportation rules, under discussion since 1999, will change a number of current norms, putting an end to differences between companies' nationalities, and to the existing limits on the amount of compensation received in the case of death.

Similarly, the Geneva Convention on road transport will soon be subjected to changes reflecting the growth in cross-border road freight. In the case of rail transport, changes have occurred within each country and have almost always been regulated by national civil codes. Still, according to the research, a critical eye hovers over navigation codes due once again to increased globalisation and the growing issue of personal rights. The limited liability penalties for sea freight may soon become unlimited ones.

“Faced with this scenario, workers and transport unions should remain alert, particularly if work contracts provide for civil liability compatible with potential damages,” warns Flamini.

While business owners will be made liable for damages caused to the customer, should losses be valued above the amount of insurance, an employee may be made legally liable jointly with his or her employer, according to the laws of each country.

According to Flamini: “Workers may also be criminally indicted upon proof of having committed a violation of law.”

In the case of an accident caused by mechanical failure, maintenance problems or overwork, for example, should there be no means of proving that any damage was not due solely to the employee's negligence, the latter could also be made liable for crime under the provisions of civil liability. There is no insurance for such cases.

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Issue 13 October 2003

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