On the basis of this overall view, the Federal Council presents several options for action.
If an accident involving a freight train occurs on the Swiss rail network, the railway undertaking (RU) responsible must, in principle, pay for the damage. This also applies if the accident was caused by defects that the private wagon keeper was responsible for repairing.
Today, the RU only receives compensation from the keeper if it can prove that the keeper was at fault. The fact that there is no strict liability of the wagon keeper today is due to the fact that in the past private keepers were also obliged to have their wagons inspected and maintained by the RU.
The Federal Council has reviewed these provisions as part of an overall review of liability in rail freight transport. It is submitting several options to parliament:
- The first option is to extend the strict liability of the railway undertakings and to increase the minimum insurance cover of the RUs.
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The second option is to oblige railway undertakings to take out sufficient liability insurance. This would also cover most damage caused by the transport of dangerous goods. There would be no simultaneous extension of the strict liability of the RUs and the strict liability of the wagon keepers.
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Under the third option, keepers would be liable, irrespective of fault, for damage which their wagons or their loads have demonstrably contributed to or caused, e.g. when dangerous goods escape from a parked wagon. Wagon keepers would be obliged to take out sufficient liability insurance.
Another option is to retain the current provisions.
The Federal Council is aware that all options have advantages and disadvantages. In its view, there is no compelling need for regulation.
The solution adopted by the other states might be slightly different. As the lawyer Ondrej Kocourek from the law firm coLegal explains:
"The situation in the Czech Republic is practically the same as in Switzerland. Even if a private wagon is included, the carrier is objectively liable for the damage caused by the operation of the train. However, if the damage is caused by the inclusion of a private wagon of another owner, e.g. because of its poor technical condition, the carrier could subsequently claim compensation from the owner. However, he would have to prove that he was at fault. For this reason, provisions concerning the obligation to pay compensation in the event of the poor technical condition of the private wagons involved or their non-compliance with legal requirements can very often be found in the contracts or general terms and conditions of freight carriers."
