On 11 March 2020, FDP National Councillor Frédéric Borloz submitted motion 20.3084 «Clarifying regulations on liability in the transport of goods by rail». With this motion, he is demanding that the Federal Council clarify regulations on liability in the transport of goods by rail. The clarification should in particular concern the distribution of risks and the regulation of legal remedies between railway undertakings (RUs) and wagon keepers, as well as the legal consequences of incidents involving dangerous goods.
Position of the VAP
The VAP, as the representative of the shipping industry, together with scienceindustries, as the professional association of the chemical industry, opposes motion 20.3084. The motion cites as an example the incident that took place in the summer of 2009. This motion cites the incident at Daillens in May 2015 as an example and justifies the need for clarification as follows. Firstly, the wagon keeper is only liable in the event of an accident if the RU can prove that he is at fault. Secondly: It is not clear who is responsible for the quality of the (rolling) stock. Both assertions are false.
Valid arguments
Since the Daillens incident, the international legal framework has been substantially adapted. On 1 July 2015, Appendix D to the Convention concerning International Carriage by Rail (COTIF) entered into force. Article 7 states: «The person who has made the wagon available for use as a means of transport on the basis of a contract in accordance with Article 1 shall be liable for the damage caused by the wagon if he is at fault.» Clause 2 states that the contracting parties may make deviating agreements. This is what the approximately 600 private sector contracting parties did and updated the General Contract of Use for Wagons (GCU) as of 1 January 2017. Article 7 clarifies the maintenance obligations of the wagon keeper, Article 27 describes the principle of liability: «The keeper is liable for the damage caused if he is at fault.» And: «Fault is presumed if he has not properly fulfilled his obligations under Article 7.»
Lack of practicability
The Borloz motion places the liability issue in a national context, although it is an international issue. Responsibilities and controls are clearly regulated supranationally and under treaty law. A national law amendment – or whatever is meant by «clarifying provisions» – would affect the practicability for rail freight transport in and through Switzerland. The internationally applicable transport regulations have long since complied with the required incentivisation and tightening of liability. The demanded transition to strict liability for wagon keepers is unnecessary, as in the event of an incident there are no insurance gaps under civil law in the matter of liability, for example with regard to compensation payments, as previous incidents have shown.
