Basics of Passenger Transportation Officer in Charge s Liability in New Trade Law Act in Iran

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1 Basics of Passenger Transportation Officer in Charge s Liability in New Trade Law Act in Iran Mahsa Nazari Department of Law, Islamic Azad University, Science and Research branch, Kermanshah, Iran Abstract One fundamental issue raised in passenger transportation is the liability of transportation officer in charge. Whenever a passenger is injured during transportation, on the basis of legal terms and conditions, the officer in charge is held liable to the injured party. Such legal reasons that justify the enactment of civil reliability are known as the basics of reliability. The basics of terms and conditions relevant to reliability have been changed over time. Therefore, the present paper attempts to review the principles of passenger transportation liability. The study result is the requirement to prove or exonerate the fault by the injured party, which this issue will be analyzed by determining the scope of officer in charge s liability toward passenger. Keywords: Reliability; Transportation Officer in Charge; Immunity Commitment; New Trade Law Act Introduction In the past, if passengers were injured during transportation, in order to compensate losses, they had to prove the fault of officer in charge. This was a very challenging process and sometimes due to the inability to prove the fault committed by officer in charge, the loss caused to injured party remained without compensation. Following the passage of the Trade Law in 1932 in Iran, as this law only addressed goods transportation cases I its eighth chapter, and did not assign any article on passenger transport and reliability of driver toward passengers, the injured parties to claim compensation for damages and file a case against officer in charge were required to consider general rules on officer s reliability and to prove his faults. However, in 2011, a new bill was approved in New Trade Law, and an article was enacted on traveler transportation which has filled to some extent the gaps existing in Trade Law. The new act has taken a positive action in terms of the specification of reliability, and now it is not either incumbent upon injured party to prove the fault of officer. This is because the principle of reliability in the new act has changed compared to general rules. The question which is raised on the reliability of transportation officer in charge is that what is the new reliability of officer in the new act of the Trade Law, and on what account it is possible to hold the officer as liable to the injured party? So in the present study, the principles of officer s liability to passenger transport are analyzed. In the new act of the New Trade Law, Article 85 on passenger transport, it is mentioned that travelling officer is the sole responsible for compensating the loss of life of passengers, unless he is able to prove that the damage was occurred due to the fault of passenger himself or it was caused by external, unpredictable and unwanted reasons ". In the draft of the new act, an Article (Article 72) was also assigned to passenger transportation that is a little different from the bill, suggesting that transport officer in charge is liable to compensation of any intellectual, material and bodily loss of passengers, unless he proves that loss has been occurred due to the sole fault of passenger or any external cause and no careful and couscous officer in charge can preempt its occurrence. Pursuant to the Articles of the bill and draft of the new act of the Trade Law, it is possible to determine some assumptions on the liability of officer in charge. Therefore, first, the principles of liability are considered in general rules and in transportation contract and then reliability is discussed based on preventing the realization of loss, which can be used as a supplement to the foundation selected by legislator. 1- Basis of liability in general rules 1-1 Fault-based Liability 17

2 The liability based on fault is presented in two forms of fault theory and assumed fault (assumption of fault) the fault theory: based on this theory, the only reason that could justify the liability of any person with respect to compensation is the causality between fault and loss (Katouzian, 1993). In simpler terms, the agent responsible for the damage is held to be responsible for the damage when the damage is caused by its fault. Based on this theory, the fault is fundamental condition of civil liability. (Emami, 1992) the assumption of fault: the system based on the fault assumption was formed that the legislature understood the important forms of fault theory-based system. One of the most important forms of fault theorybased system is that the injured party cannot sometimes prove the blame of the agent of loss and this ensures that loss remains uncompensated. To resolve this problem, legislator in some issues assumes the fault for the agent of loss and the injured party has no need to prove it. The important result of this legal evidence is that in the claims for damages, the natural place of defendant is changed, i.e. the plaintiff is recognized as defendant and the agent of loss (as defendant) should prove that he has not committed the fault(katouzian, 1993). In some cases, such the Article of 21 the Civil Liability Law, and 113 and 165 of Maritime Law the fault assumption applies and injured party is exempted from proving fault committed. Sometimes even court uses judicial proofs to prove the fault, such as when a specialized seller sells a definite commodity and it is assumed that he was already aware of the defect(katouzian, 2005). 2-1 liability Assumption: another dimension relevant to liability is reliability assumption or the same assumed reliability. On the basis of this theory, the liability of the agent of loss is assumed and he is assumed to be held liable by the occurrence of the damage suffered, unless he is able to prove the main reasons for the loss or lack of commitment and to justify non-attribution of the loss to itself (Hashemizadeh, 1999). Some of lawyers criticize use of the above principle and believe that the fault could be assumed rather than liability, due to the fact that the liability is the consequence of ability to prove the relationship between three essential factors of judicial proceedings, the proof of fault and loss and finally the casualty. Therefore, it is not possible to assume all three pillars of civil liability by applying the term assumed liability (Yazdanian, 2011). The difference between fault assumption system and liability assumption, in addition to the above mentioned, could be visible also on the basis of assumed fault system with regard the damage caused by unknown factors. On the basis of the fault assumption system, regarding the losses caused by passive and unknown causes, on can easily defend itself and avoid the burden of proof, because he should only prove his lack of fault. While in the liability assumption system, one is held to be accountable and he cannot avoid the burden of proof. This is because, to achieve exemption, he should prove the cause of loss and non-attribution of the fault to itself, and whenever the cause of loss is unknown, so it is not possible(hashemizadeh, 1999).. Given all that has been stated it becomes clear that liability cannot be assumed by all its relevant pillars. 3-1 risk generation theory: although the concept of this theory existed historically before the fault-based liability theory, due to the some drawbacks to prove the fault of the injured party, the risk generation theory was released in its new form and was recognized as the basis for responsibility. Based on the risk generation theory, whoever does an activity generates a dangerous environment for others and the one who benefits from this environment should compensate for the losses inflicted. Therefore, the main reason for liability is the benefits achieved by the creator of such dangerous environment. So according to this theory, the loss must be compensated by the agent of the damage, although the act committed is not highly blamable., and the mere generation of danger and risk is enough to oblige individual to compensate the loss. Thus, the most important difference between the theory-based fault and risk generation theory is that, in the first theory the basis for liability is the existence of fault and in the second theory is liability to cause damage and loss to another party. (Ghasemzadeh, 2008) 4-1 strict liability theory: strict liability is liability that is only based upon the casualty) Badiani, 2005), and in fact liability is the consequence rather than action, i.e. liability arises from a harmful consequence, irrespective of the cause of action or fault which causes damage. So based on the strict liability, whenever a party is injured due to the fault of another party, the latter is held to be liable, and if he is not faulty he/she should prove the lack of the casualty to be free from liability, and this could only accomplished by judicial authorities. Although the 18

3 strict liability is acknowledged in Iran s Law, it has not been cited clearly by the exact term of Strict Liability. For example, what has been mentioned as loss in our rules is on the basis of strict liability, and fault or lack of fault by the agent of loss is not criterion, and to designate him as liable it is sufficient to have a causal association between loss and the agent of loss. Many lawyers regard strict liability as absolute liability. However, it does not seem correct and it is a mixture of both types of liability. Adding the adjective strict to liability indicates the lack of the contingency of liability to the practices that are not the precondition to accomplish it. Therefore, the term strict that brings to the mind a form of liberation from the limitations, does not mean that liability is absolute. Absolute liability is the extremist form of severity, and it is a sign of liberation form any condition, while strict liability is applied to a person liable to more or less defensible excuses and faults, and it is not an absolute liability. In strict liability, to regard one as a liable there should be a casual association between the action of agent of loss and injury, while there is not such condition in absolute liability. So it could be mentioned that in absolute liability, defendant is liable at any condition and causing of loss is sufficient to regard him as liable, and there is no condition to exonerate him from liability. While in strict liability, causal association rather than fault is an essential condition to prove the liability, and in case of the lack of the causal association, defendant is not regarded as liable (Katouzian, 2007). 5-1 immunity commitment theory: in many contracts, in addition to original commitments, there are a series of implicit obligations which one of the most distinguished of them is immunity commitment. This rule which was indoctrinated into some contracts by French judicial practice and then listed in the constitution of some countries including Iran is a commitment by which one is obliged to provide a secondary obligation on immunity and safety considerations in addition to its main obligations. In immunity commitment theory, fault and its proof are not discussed, and so injured party can easily claim compensation and file an action; and to exonerate from liability, the committed party should provide proof that the loss in not attributed to him and an external and unknown occurrence is the main instigator(jourdain, 2006) 2- The basics of liability in transport contract In passenger transport contract, the officer in charge is obliged to move passengers from a place to another in exchange for the received fee, and in case during his responsibility passengers or their properties are lost or injured, the officer in charge is held accountable. Given what has been mentioned in the new act of the Trade Law and its draft, the legislator has chosen one of the general rules of liability as a basis for passenger carriage and the liability of officer in charge. In the Article 83 of the new act of the Trade Law, it is stated that transportation officer in charge is held liable to the compensation of all injuries and losses caused to passengers, unless he is able to prove that the loss was caused due to some external, unknown and unpredictable causes. Regarding the losses caused to the commodities of passengers, it is incumbent to observe the Articles 74 to 77 and also 82. Articles 74 to 77 of the new act determine some regulations on cargo shipping and the liability of the officer in charge, and according to the Artcicle75 states that: if commodity is damaged or injured, the officer in charge of the transportation of goods and passengers is held to be liable to provide a new one, unless he proves that either the receiver or sender of the commodity is the main responsible for the loss or damage, or it is associated with unpredictable and unknown occurrences. The relevant parties are entitled to determine and claim a full price higher or lesser than the price of commodity in exchange for damage. It is possible to specify some assumptions on the basis of liability of the officer in charge of the transportation of passengers: 1-2 the basis for the liability of officer in charge of the transportation of passengers and their commodities is the fault theory (proved fault). This is because in the fault theory the officer is held to liable when he has committed a fault and there is a causal association between his fault and loss, and to exonerate himself from loss he must attribute the loss to an external cause. It should be mentioned that in transportation contract, the mere omission of commitment is indicted as the fault. It seems that the fault theory is inferred from the jurisprudence because in French civil and commercial law which is a part of our law, the fault theory is not mentioned in the area of transportation )Yazdanian, 2011). In response to this assumption, it should be mentioned that although the Article 83 of the new act states that, to exonerate from liability the officer in charge should prove that the loss is caused by an external agent, this article virtually highlights that commitment to the 19

4 transfer of passengers entails the obligation to deliver them and their cargo healthy and safe, and in case of the failure to accomplish this goal, the officer in charge is held to be liable, otherwise he is able to prove the contrary. Therefore, the basis for the liability to carry passengers in the new act of the Iran Trade Law cannot be based on fault. 2-2 the basis for the liability of the transfer of passengers and their cargo is assumed fault, i.e. the law assumes that the officer in charge has committed a fault and subsequently led to damage and injuries, and to escape liability it is incumbent on the officer in charge to prove his lack of fault. But this assumption does not seem true because according to the Article 75& 83 of the new act of Iran Trade Law, the officer in charge will not escape liability by proving his lack of fault. Therefore, the basis for the officer s liability cannot be fault assumption (assumed fault), due to the fact that it is incumbent on the officer in charge not only to prove the lack of fault, but also prove that the main cause of the damage caused to the passenger is an external occurrence the basis for liability of the officer in charge of the transfer of passengers and their commodities and properties is risk theory. What has mentioned in the Articles of the Bill is not in consistency with the risk theory, and the only common aspect of the Articles relevant to the officer s liability in the risk theory and bill is that in both of them, the proof of the officer s fault by officer in charge is not final criterion. Even though transportation vehicles are to some extent dangerous and nobody is completely immune to their risks, the inclusion of the risk into the liability of officer in charge causes that the officer cannot either easily perform his actions and this will lead to a recession in transportation area and cause various problems the basis for the liability of the officer in charge of the transportation of passengers and their commodities is immunity commitment. According to the Article 83 of the Bill, it is specified that the legislator has admitted the immunity commitment in terms of the liability of official in charge of the transportation of passengers. Therefore, the officer has a commitment to the transfer of passengers from one place to another and to deliver them and their cargo healthy and safe, and in case of the failure to accomplish this goal, the officer in charge is held to be liable, otherwise he is able to prove the damage was not attributable to him and related to external factors such as the coincidences, the passenger s own fault, etc. With regard to the passenger s commodities and properties, the guarantee of their immunity is essential. This is because in the Article 75 of the new act, the officer in charge is obliged to deliver commodities and cargo safe and sane, otherwise he is held accountable, and he cannot escape the liability by proving his lack of fault, rather he should prove the existence of an external factor. In the draft of the new bill of Iran Trade Law, Article 72 states that officer in charge is held liable to compensate any loss of life, and material and intellectual damages, unless the officer is able to prove that the damage occurred as a result of or caused by passenger s fault or other external factors, which no cautious and careful officer could ever preempt its occurrence. This indicates that the basis for the liability of officer in charge is immunity commitment. Of course, since the legislator in the Article 83 regards the officer in charge as the sole responsible for the loss of life of passengers, to file a case for claiming fatality charge against officer passenger is entitled to invoke immunity commitment and become exempted from proving officer s fault. However, if an intellectual damage is caused to the passenger, he can file an action based on the general rules of liability and prove the fault of the officer, because the basis for liability in general rules is fault-based liability. In the meantime, if the legislator would formulate the Article 84 of the new act same as the Article 72, to file an action and claim intellectual damages, the passenger was not obliged to invoke the general rules of liability and to prove the officer s fault. Today, although many contracts include a safety and immunity commitment, they originate from the passenger transportation contract. This contract was approved in 21 November 1911 by the French Supreme Court on bodily damage with regard to the passenger transport operator liability)yazdanian, 2011). Prior to this date, due to the gaps in passenger transportation in French rules overshadowed by the shortage of passenger and limited volume of transportation at the time of the formulation of French Civil Law, the judicial practice would regard bodily damages during passengers transportation subject to the relevant provisions and regulations. Therefore, it was necessary that, the damaged party (or in case of death his heir), would take action to prove the fault of relevant instigators of the event and claim compensation for losses. Undoubtedly, this process was so challenging and sometimes even impossible. In the nineteenth century, the initial spark that led to the emergence of the concept of immunity commitment 20

5 was workers contract and protection of them against the bosses. With the industrialization of French society and the desire to protect injured workers, a group of lawyers attempted to present a new interpretation of work contract, which based on it, not only employer was required to pay the wage of employees but also to provide them with immunity security. And if a worker was injured during work, employer was obliged to compensate losses, and he was only exonerated when he could prove that the event happened due to an external factor not attributable to him. Although lawyers interpretation on work contract was not approved, this theory was reflected in the passenger transportation contract and the French Supreme Court ratified this theory on the basis of passenger transport operator's responsibility, and determined that driver is obliged to deliver passengers to their destination intact. Then this safety obligation was extended to the commodity transportation contract and many other contracts (Salehi, 2003) 3- Liability based on preemption of the realization of loss All mentioned above was regarding the issue of liability in the event of causing loss on a party and relevant liability rules to compensate it, which sometimes the loss was recoverable and sometimes was not such as injury to prestige and honor of a party that could be categorized as an irreparable and irrecoverable issue. Thus, one of the important and modern trends of civil liability is prevention of loss and taking all necessary actions to preempt its potential occurrence. Some judicial systems have ratified fully preemptive practices that their application does not depend on the beginning of the realization of loss because the mere existence of the risk of loss is applicable. Two of these preventive practices include "preemptive action" and injunctions. 1-3 Preemptive action: this type of action allows the potential injured party which has not yet experienced damage to adopt preemptive measures. This strategy was imitated by some developed legal systems. In Germany, judicial practice with a reliance on law regulation which has a limited scope of enactment approved the existence of a preemptive action and provided it with a generalized domain. Nowadays, in Germanic courts, it is not required to realize the expected loss. They suffice to the presence of a serious risk of conflict in the future and claim that use of preemptive actions is contingent on the proof of defendant s fault. In other countries including Switzerland, Austria, Hungary, Poland and Portugal, preemptive actions are considered to have an important place. 2-3 Injunctions: another procedure to preempt the probable occurrence of loss in the future is judge s order to a party to preempt him from doing a task or may oblige him to do something. Injunction which is today acknowledged in all types of damage, especially damage caused to commercial benefits merely requires the proof of the imminent risk and the ineffectiveness of the practices of the means of compensation. However, it is a strategy that judge can decide upon and plaintiff can never claim it. This device was invented in the countries with common law rights. Of course, some lawyers believe that if the precondition to the existence of absolute damage was eliminated or extended, it was very easier to file a preemptive action (Jourdain, 2006). 3-3 The differences and similarities between preemptive action and institution of injunction: difference of preemptive action" and institution of injunction is that in the former, the existence of serious and imminent danger is determined and definite. However, in the latter, in addition to imminent danger, the inefficiency of the means of compensation should be proven. However, in both ways, it is not necessary to prove the state of emergency. Though these two methods are to some extent different in execution, both have a common goal, that is, the preemption of the imminent occurrence of damage and loss. This is because preemption is regarded more proactive than loss compensation. Also, it should be mentioned that their differences is in terms of the differences of the Common Law and German-Roman Law. 3-4 the differences and similarities between institution of injunction and interlocutory injunction: the institution of injunction in the Common Law brings to the mind the interlocutory injunction in the Code of Civil Procedure. However, by a review of the legal provisions of the interlocutory injunction, we realize that there are some differences between these two institutions. Interlocutory injunction is expected by the legislator to achieve a final verdict imminently and also to pave the way for the enactment of a definite verdict. The Article 310 of I.R.I Constitution, states in this regard that in the matters of emergency to issue a final verdict, the court issues a temporary injunction in favor of the beneficiary on the basis of the following provisions. 21

6 By a review of the Article 310 of I.R.I Constitution and injunction institution, we can conclude that both orders are issued in the event of urgent matters, and another similarity between these two (as indicated in the Article 310 of I.R.I Constitution) is that both are issued to prohibit or to instigate the doing of a matter, even though interlocutory injunction include the seizure of property as well. However, there are some differences between the two entities as follows: 1. Interlocutory injunction is issued under the request of the beneficiary; while injunction is issued under the sole authority of judge rather any other external and irrelevant institution or party. 2. Pursuant to Article of 319 I.R.I Constitution, the court is obliged to compensate the potential damage that could be obtained from interlocutory injunction, call for an appropriate security, while in injunction it is not necessary to obtain such security from the beneficiary. 3. According to the Article 318 of I.R.I Constitution, following the issuance of temporary verdict, in case an action has not been already filed, it is obligatory to refer to the court at least twenty days prior to the date of issuance of the interlocutory injection, and submit the request to the court and surrender its certificate to the court in charge of issuance of the injunction, otherwise the court forego the injunction under the request of the party; while in the "injunction", it is not required to submit a petition, because the injunction is a decision issued by the judge, and it not incumbent on applicant to claim it through a petition during litigation. Therefore, by describing the differences between these two institutions, it could be concluded that although injunction in the common law is similar to interlocutory injunction in Iran legal system, they are not entirely consistent with each other. It should be admitted that with regard to the immunities of parties, taking action to preempt the probable occurrence of damage and loss is prioritized over the determination to compensate it. This is because it not logical to imagine that irreparable and overwhelming damages and losses are recoverable. For example, regarding transportation of passengers by drivers who have insecure vehicles and they cannot could be prosecuted unless they cause some damage on passengers, injunction can be effective, and based on this obligation it is possible to require driver to secure the vehicle and attempt to protect the health and safety of its passengers. And if he is not bound to take such action, the legal system can prevent him from driving to prohibit probable damages. Conclusion Considering the Article 83 of the new bill of Iran Trade Law and other relevant items including the Article 75 of the bill, it is specified that the basis for the liability of officer in charge of passenger transportation is immunity commitment. The inclusion of the principle namely immunity community into the liability of officer in charge is in favor of the passenger (injured party). This is because in the event of bodily damage, the passenger is not obliged to prove officer s fault. Based on this, officer in charge is required not only to transport passengers and their cargo and properties from one place to another, bring them safely to the desired destination, otherwise he is held liable and should be able to compensate losses, or to exonerate himself he should prove existence of an external factor or other relevant cause. However, as the Article 83 of the new bill of Iran Trade Law refers only to bodily damage, so the injured passenger should take action on the basis of the general rules on liability, and prove the sole fault of officer in charge. This is because the basis for the liability in general rules is fault-based liability. In addition, the inclusion of the institution of order along with immunity commitment can preempt the occurrence of potential events and damages, and also enable the injured party to file an action in order to prevent any loss, due to the fact that sometimes mental and bodily damages are so overwhelming that cannot be compensated at all, and the injured party s recovery is strictly impossible. References 1- Emami, H., Civil Law, 1 st vol., Islamieh Library Publications, 11 th ed., Tehran, Badiani, H., Philosophy of Civil Liability; Publication of Entesharat Sahami Enteshar; 1 st ed., Tehran, Jourdain, P., Translated by Majid Adib; Principles of civil liability associated with the ideas of the French Supreme Court; Mizan Publications, 2n ed., Tehran, Winter Salehi M., Immunity Commitment and a study of changes in the transportation contract in French law, Journal of Legal Opinions, Issue 12, Tehran, Bita, Ghasemzadeh, S., M., Obligations and Civil Liability without Contract; Mizan Publications; 3 rd Ed., Tehran, Katouzian, N., Civil Law: legal immunity: civil liability, Publications of Tehran University, Tehran,

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