Committeri v Club Mediterranee SA: Rome I or Rome II?

This post has been contributed by Dr Manos Maganaris, Module Convenor for Conflict of laws.

 

Judges GavelMr Committeri, an Italian national who lived and worked in London, brought a claim[1]in England against Club Med and their insurers for injuries he sustained in February 2011, during a team building trip in France. The contract had been entered between the then employers of Mr Committeri and Club Med and, very importantly, it contained a clause that its terms and conditions were governed by English law.

Nevertheless, instead of relying on English law, Mr Committeri sought to claim damages from Club Med, by invoking the French Tourism Code. That was because article L211-16 of the French law imposes strict liability for the performance of a contract falling within it, as opposed to the relevant English law (the Package Travel Regulations), which requires proof of failure to perform or improper performance of the contract.

The issue then in this case was the proper characterisation of the claim.  If it was contractual, the claim would be determined by the Rome I Regulation and English law would be the governing law. If it was non-contractual, Rome II Regulation would come into play and French law would apply (because of the location of the accident).

The court held that the nature of the claim was contractual since the obligation to compensate Mr Committeri had been freely entered by the parties. The clause in the contract was a valid choice of law clause that applied to the entirety of the contract and as such, pursuant to Rome I, English law was the governing law. As such the claim for damages was dismissed.

The matter was brought before the Court of Appeal[2], which upheld the finding that the strict liability claim was contractual. It was a claim for damages for breach of the obligations, which was freely entered into by both parties. In reaching its decision the Court of Appeal referred to the decisions of the European Court of Justice in Ergo[3]Brogsitter[4], Amazon[5] and flightbright[6], as well as those of the English courts in Hone v Going Places Leisure Travel Limited[7] and X v Kuoni Travel Ltd.[8] It stated (at 53):

‘On an application of all or any of those principles, it is clear that the pleaded strict liability claim can only be characterised as a contractual claim. …That contract is the source of the relevant obligations and imposed the necessary commitments. To put it another way, to use Judge Waksman’s words in AXA ([2015] EWHC 3431 (Comm), the contract was not “a stepping stone to the ultimate liability of [the respondent but] the basis for the obligation actually relied upon…”.

The claim, then, being contractual one, fell within the ambit of Rome I Regulation.

 

[1] [2016] EHWC 1510 (QB).

[2] [2018] EWCA Civ 1889.

[3] [2016] I.L. Pr.20.

[4] [2014] QB 753.

[5] [2017] QB 252.

[6] C-274/16, C-447/16 and C-448/16 19 October 2017 and 7 March 2018.

[7] [2001] EWCA Civ 947 [15] Longmore LJ.

[8] [2016] EWHC 3090 (QB).

 

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