Collective Commentary about the New Package Travel Directive

354 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE IV. LIMITATION OF LIABILITY Article 14 (4) deals with the conditions under which the liability of the organiser is limited or can be limited. The provision distinguishes between • limitation of liability according to international conventions binding the Union; • potential limitation of liability according to international conventions not binding the Union; and • the possibility of a contractual limitation of liability. 1. International conventions binding the Union If international conventions binding the Union provide for limited liability of a provider carrying out a travel service which is part of a package, the organiser can invoke the same limitations. This includes in particular • the Montreal Convention for the Unification of Certain Rules for International Carriage by Air; • the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea; and • the COTIF (Convention concerning International Carriage by Rail). As far as carriage by air, by sea or by train is included in a package the liability of the organiser is limited in the same way as the liability of the carrier. This, of course, raises the question of exclusivity as provided for in Article 29 of the Montreal Convention or Article 14 of the Athens Convention. There is no global consensus on how this exclusivity has to be interpreted. While some states tend to a rather restrictive view according to which there is either a claim under the respective convention or no claim at all 40 , others only apply the exclusivity to claims, which are in principle covered by the convention 41 . It seems quite likely that national courts will seek clarification by a preliminary ruling of the CJEU in this regard. When judging the compatibility of the European Air Passenger Regulation with the Montreal Convention, the CJEU took the view that the compensation granted by the former in cases of cancellation or long 40 “Strong exclusivity”; see for example U.K. Supreme Court, Stott v Thomas Cook Tour Operators Limited [2014] UKSC 15. 41 “Weak exclusivity”; see for example OGH 17.12.2012, 10 Ob 47/12b.