Apple Inc. v. Samsung Electronics Co. Ltd. et al

Filing 900

NOTICE by Apple Inc.(a California corporation) Translations of Foreign Authority (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4, #5 Exhibit 5, #6 Exhibit 6, #7 Exhibit 7, #8 Exhibit 8, #9 Exhibit 9, #10 Exhibit 10, #11 Exhibit 11, #12 Exhibit 12, #13 Exhibit 13, #14 Exhibit 14, #15 Exhibit 15, #16 Exhibit 16, #17 Exhibit 17, #18 Exhibit 18, #19 Exhibit 19, #20 Exhibit 20, #21 Exhibit 21, #22 Exhibit 22, #23 Exhibit 23, #24 Exhibit 24, #25 Exhibit 25, #26 Exhibit 26, #27 Exhibit 27, #28 Exhibit 28, #29 Exhibit 29, #30 Exhibit 30, #31 Exhibit 31, #32 Exhibit 32, #33 Exhibit 33, #34 Exhibit 34, #35 Exhibit 35, #36 Exhibit 36, #37 Exhibit 37, #38 Exhibit 38, #39 Exhibit 39, #40 Exhibit 40, #41 Exhibit 41, #42 Exhibit 42, #43 Exhibit 43, #44 Exhibit 44, #45 Exhibit 45, #46 Exhibit 46, #47 Exhibit 47, #48 Exhibit 48, #49 Exhibit 49, #50 Exhibit 50, #51 Exhibit 51, #52 Exhibit 52, #53 Exhibit 53, #54 Exhibit 54, #55 Exhibit 55, #56 Exhibit 56, #57 Exhibit 57, #58 Exhibit 58, #59 Exhibit 59, #60 Exhibit 60, #61 Exhibit 61, #62 Exhibit 62, #63 Exhibit 63)(Selwyn, Mark) (Filed on 5/7/2012)

Exhibit 9

5892. 1st TRANSPORT. – Formation of the contract. Determination. Requirement for
safety. Point of departure; 2nd CIVIL LIABILITY. – Transporter. Obligation of safety.
Point of departure. Formation of the contract. Traveler injured when getting on board a
bus (Nancy, 1st Chamber, March 1st, 1950; Fiaux vs. Rapides de la Meuse). [Ed. G.]
For transportation by bus where the traveler pays the price of the trip either after
having boarded the vehicle when passing near the driver, or during the trip, or even upon
arrival at destination, the transportation contract – with the accompanying obligation of
safety – begins as of the moment in which the traveler takes possession of the vehicle to
which he has free access, in other words, at the moment in which having taken contact
with the bus, he/she leaves the roadway to take a seat.
Annotate: J.-Cl. Responsabilité Civile [Civil Liability]: Section XXXIV i and J.CL. Civil: Article 1382-1383 (3rd P.), See Voituriers et Transporteurs [Haulage Carriers
and Transporters] (9th Section)
THE COURT; – Upon the appeal launched by Fiaux and the incident appeal of the
company Les Rapides de la Meuse, of a judgment of the Civil Tribunal of Verdun of June
16, 1949, which, ruling subsequent to an investigation which was ordered by a preceding
judgment of December 2, 1948, relating to the accident that occurred to Fiaux, who, on
January 30, 1947, at the moment in which he was boarding a bus of the company Les
Rapides de la Meuse in Vatronville, sustained a broken right thumb caused by the closing
of the door, has: – firstly, deemed that there were grounds for a sharing of the
responsibility in a proportion of 2/3 charged to the transporter and 1/3 to the victim; –
secondly, sentenced the company to pay Fiaux the sum of 50,000 francs as compensation
and to divide the expenditures in the proportion of 1/3 to the latter and 2/3 to the
company; – Whereas the appeals of each one of the parties tend to have the other carry
the whole responsibility of the accident; – Whereas it is accepted that the accident took
place when Fiaux was boarding the bus; – That at such time, he had placed his right hand
against the fixed part of the door, which was suddenly closed by an unknown person; –
That his right thumb was broken in this manner; – That Les Rapides de la Meuse had
argued in vain that the transportation contract did not yet exist, insofar as Fiaux had not
bought his ticket; – That contrarily, it results from the investigation that the driver of the
bus assured on his own both the driving and the collection of the travel price, either after
having got on board the vehicle when they passed near the driver, or during the travel, or
even upon arrival at the destination; – That it is not disputed in jurisprudence that, in
these diverse cases, the transportation contract begins from the moment in which the
traveler takes possession of the vehicle to which he has free access and of which he takes
possession, most notably in the case of a bus being used for public transit in which there
are free places as in the case at issue, at the moment where he/she makes contact with the
bus and leaves the roadway to access a place; – That it must therefore reject these
grounds; – That therefore, insofar as we are dealing with a transportation contract and an
accident that took place during the execution of this contract, the company Les Rapides
de la Meuse must in principle and under application of Article 1147 of the Civil Code, be
presumed to be responsible, insofar as they held the task of transporting Fiaux safe and
sound to his destination, apart from the case where it were to demonstrate that the

accident was due to a foreign cause, which is to say an unforeseeable and inevitable fault
of the victim or of a third party; – Whereas it is not disputed that, in the case at issue, the
accident is due to the action of a non-identified third party, insofar as it has never been
alleged that Fiaux had closed the door of the bus himself; – Whereas such a circumstance
would only be sufficient to exonerate the company of the responsibility that is incumbent
upon it in the event that it is demonstrated that the accident was unforeseeable and
inevitable; – That, to the contrary, it appears that the company Les Rapides de la Meuse,
which could perfectly well foresee an accident of this type, also had several ways to
avoid it; – That it was up to them to either double up their driver by adding a ticket-taker
who would have had the task of overseeing the access of the travelers, or to immobilize
the door by means of a lever of which only the driver was able to activate or by any other
method; – That it is in keeping with the law that the first judges found the responsibility
of the transporter; – But whereas erroneously, they have held against Fiaux that he had
imprudently placed his hand on the door jamb, on the side of the hinges, so as to pull
himself up into the bus; – that in effect, the action, made by the latter so as to take place
in a vehicle that was immobilized and open to the users who had free access, was only
fatal to him due to the lack of precautions of the transporter, who had not been able to
either foresee or avoid the accidents that might have resulted from the fact that the door
was not immobilized as it should have been, either up until the moment of departure, or
up until all of the seats inthe vehicle were occupied; – That it is therefore fitting that the
judgment under appeal be reformulated in this respect and to place the entire
responsibility of the accident to the charge of the company; – Whereas, lastly, there is
cause to give effect to the claim of Fiaux which would lead to a compensation of 75,000
francs which is due to him, taking into account as a whole the total incapacity which ran
from April 29 to July 10, 1947, of the pretium doloris which occurred as a result, of the
permanent reduction of capacity which was judged to be of 10% and of 2,888 francs in
medical and pharmaceutical expenses to which he is justified.
On these grounds: – Dismisses the incidental appeal of Les Rapides de la Meuse
and giving effect to the main appeal of Fiaux, reformulates the judgment which has been
issued; – States that the company is wholly responsible for the accident; – Sentences it to
pay to Fiaux, as compensation, the amount of 75,000 francs in the name of damagesinterest,
Messieurs Talandier, Esq. first President; Hauss, Esq. General Advocate;
Messieurs Mentre and Gasse, Attorneys.
Observations. – The problem of the formation of the transportation contract has
always raised controversy insofar as the determination of the moment in time from which
parties assumed obligations depended on the concept that one had of this contract. For
some, the obligations came to be when the thing, the object of the contract, had been
remitted to the transporter, with this contract being considered as real (Lyon-Caen and
Renault, Tr. Dr. comm. 5th edition, by Amiaud, T. III, Mo. 559. – Thaller and Percerou,
Tr. Élém dr. comm. 8th edition, T. I, No. 1166. – Roger, Nouveau manuel jur. des
transports [New Judicial Manual of Transportation], No. 3. – Civ., May 27, 1918: Gaz.
Pal, 1918-1919, I, 361). For the others, the transportation contract is formed by the
exchange of agreements of the parties, with no text being able to derogate to the principle

that governs all contracts in French law (Josserand, Les Transports [Transportation], 2nd
edition, No. 8 – Escarra, Manuel élémentaire droit commun [Elementary Common Law
Manual], No. 1065 – Ripert, Tr. élémentaire droit commun [Elementary Common Law]
No. 2415 – Compare Fredericq, Tr. droit commun belge [Belgian Common Law], T. III,
No. 382). To be truthful, the problem is frequently poorly framed and one confuses the
formation of the contract with the execution of the same; the obligations relating to the
object of the transportation can only be assumed by the transporter from the moment in
which they have been remitted to him/her, whereas the contract may well have been
concluded previously.
I. – As regards the transportation of persons, a new difficulty stems from the fact
that the traveler cannot be considered to be nothing more than a package. Nonetheless,
the jurisprudence has decided that the rules of contractual responsibility govern this
transportation just as it does merchandise. However, the obligation relating to safety
towards the traveler, to which the transporter is held, is only admissible if there exists a
transportation contract, which gives considerable importance to the determination of the
moment of its formation: immediately as of this instant, it is equally true that if the
traveler has suffered an accident, he does not need to prove the fault of the transporter
who on the contrary must produce an event that exonerates him/her of his/her
responsibility: any force majeure, action of the victim or action of a third party.
Transportation technology has permitted to rather easily find a solution for a portion of
them: when the carrying out of the transportation comprises the existence of special
premises that are closed to the public and to which the access is reserved for the travelers
who present a ticket that has been delivered against payment of the price of the
transportation (railways, air and maritime transportation), as soon as the access has been
permitted, upon presentation of this ticket, the obligation of providing safety applies and
it lasts as long as the traveler has not exited after having delivered their ticket to an agent
of the transporter (See lastly: Paris, March 2, 1950: J. C. P. 1950, II, 5470,
observations Rodière). Therefore in principle, few problems should present themselves
in these transportations and we will not linger upon them.
In effect, it is another category of mode of transport in which the access to the
transportation vehicle is not subordinated to the previous purchase of a ticket, insofar as
the price is paid over the course of the travel (tramways, short-haul bus, long-haul bus
and local railways). One could sustain that the transportation contract is formed
immediately upon entry in the vehicle or that it is only formed upon payment of the price:
the starting point of the obligation of safety is delayed in the second opinion. We must
again insist that the same can only arise when the contract has been concluded, insofar as
it has no foundation if one does not take from this a transportation contract. Whereas, the
entire contract assumes that in exchange for agreements between the traveler and the
transporter, and one would be tempted to expect, to say that the contract is formed, the
traveler has paid the price of the transportation and has thus obtained the delivery of a
ticket, because the agreements of the parties would be reunited and one would have a
proof thereof. However that would be to forget that a contract does not solely get formed
by the express and concomitant exchange of two agreements, it is also formed by a single
agreement – better yet, an accession – of a previously expressed offer. The transporter is
in effect in a position of permanent offer resulting from the publication of its transport

conditions, from billboards, or more simply from the fact that the vehicles are at the
disposal of people who require them. The transporter cannot accept the traveler, the
traveler, the traveler accepts the offer by using the transporter’s vehicles: it is through the
same that the transportation contract is formed, without the delivery of a ticket bringing
anything more than a confirmation of the pre-existing judicial situation and the proof of
the execution of his obligations by the traveler (Civil Tribunal of Nice, January 9, 1922.
Gaz Pal. 1922, I, 186). Jurisprudence is well established in this sense (Req. May 7, 1935:
S. 1935, I. 206; D.H. 1935, 348. – Civ. April 20, 1942: J. C. P. 1943, II, 2200; D.A.
1942, 127 – Req. March 1st 1944; Gaz. Pal. 1994, I, 220) and it is approved by doctrine
(Josserand No. 795. – H. and L. Mazeaud. Tr. De la responsabilité civile [Tr. of civil
liability] 4th edition, T. I. No. 153).
II. – The reported ruling proceeds from this jurisprudence, however its interest
stems from that which it brings up, the question to know at what precise time the
formation of the transportation contract takes place. When the accident occurs when the
traveler has boarded the vehicle, there is no difficulty that is presented, in principle, even
if the price of transportation has not yet be paid off (see Cependant Douai [Douai
nonetheless], October 20, 1949: Rev. trim. Dr. comm. 1950, p. 268, No. 16); it is not the
same if it takes place at the moment in which the traveler is about to enter the vehicle or
has just exited. In the case in point, a traveler was going to board a bus and had pressed
his hand against the fixed part of the door when the same was suddenly closed by a third
party who remains unidentified, and the traveler sustained a broken thumb. The ruling,
noting that in this case the price of the transportation was paid to the driver/ticket-taker,
this either when the traveler passed near him/her after having boarded the bus, or during
the trip, or even upon arrival at destination, affirms that the transportation contract starts
as of the moment in which the traveler takes possession of the vehicle to which he has
free access and that he takes possession of the vehicle, particularly in the case of a bus
that is being used for public transit in which there are free places, as in the case at hand,
at the moment in which the traveler makes contact with the bus, when he/she leaves the
roadway so as to take a seat. Certainly, the formulation of the “taking possession of the
vehicle” by the traveler is not the most fortunate – has one not at times sustained that it
was the transporter who took “possession” of the traveler, so as to make the
transportation of passenger a real contract? However, the idea is exact. The ruling
therefore declares that an obligation of safety existed under the responsibility of the
company that owned the bus and that only a force majeure of the fault of the victim could
have exonerated it of its responsibility. Whereas, the action of a third party who closes
the door in an unscheduled manner was neither unforeseeable not irresistible, and the
company would have been able to prevent it through the use of adequate means (presence
of another ticket-taker in addition to the driver, a system for the blocking of the door,
etc…). Let us nonetheless remark that to be able to allow joint responsibility between the
transporter and the third party, the action of the latter need not be unforeseeable or
irresistible (See Civ. October 27, 1948: J. C. P. 1949, II. 4793, note Esmcin). However
the tribunals are not very likely to allow a portion of the damage to the charge of the
victim if the third party is unknown. As regards a fault of the victim, the company
invoked the fact that the victim had imprudently placed his hand on the fixed jamb of the
door as being just such a fault; the ruling does not allow this, insofar as this motion is

normal for the users of a parked vehicle and insofar as it was only able to cause damage
because the company had not foreseen a blocking of the door during the boarding of the
travelers. This is what the jurisprudence has decided in a similar case relating to
transportation by railroad (Civ. February 28, 1923; Gaz. Pal. 1923. I. 616).
An analogous accident occurring upon descending from the vehicle brought about
the same solution: it must be admitted that the transporter remains responsible for
accidents that have occurred to travelers as long as the same have not yet regained the
roadway and lost any contact with the vehicle (See Civ. May 7, 1946: D. 1946, 324).
III. – The responsibility of the transporter is therefore heavy, however it appears
to better justify itself if one refers to the formulation of the rulings of the Supreme Court,
the same deciding that the transportation contract is formed at the moment in which the
traveler “is admitted to take place in the vehicle” (Reg., March 7, 1935, Civ. April 20,
1944, Reg. March 1st, 1944 mentioned previously): the same would seem to indicate that
the transporter does indeed need to manifest their approval. In reality, there is nothing of
the sort, and, for reasons that we have indicated, which is to say, that the transporter is in
a state of permanent offer. It is only required that the other party manifest their
accession. This formulation has nothing more than a purely negative sense: there is a
transportation contract as soon as the transporter has not refused access to the vehicle to
the traveler, however a jurisprudence which, even if already dated, but still valid,
prohibits him from doing so if he does not have legitimate grounds for this refusal (Civ.
December 3, 1867: S. 1868, I, 193. Note A. [illegible name] D. 1867, I. 471. – Bordeaux,
March 8, 1881: S. 1882. 2. 631.) When he had offered by means of advertising to
transport all persons, he is not permitted to refuse a traveler without a valid reason, under
penalty of committing his own responsibility towards the one whom he is refusing his
services. Moreover, today, the free transporter no longer deserves this appellation other
than to show that he does not enjoy a monopoly similar to that of the railroads;
administrative rules and provisions demand that he admit any person wishing
transportation; Furthermore, when a traveler presents themselves and accepts their
transportation conditions, it must permit him/her access to his/her vehicles apart from in
the case where the presence of this traveler were to inconvenience the other travelers
(state of drunkenness, apparent contagious illness) or were to constitute a danger for them
(armed status). The transporter is still within their rights to refuse the entry to a traveler
once the regulatory number of seats of the vehicle has been met, and it is able to prohibit
them from locating themselves on the roof or on the step: in this latter case, were an
accident to occur due to this action to the traveler, the transporter will be responsible for
not having prevented them from doing it as well as for having thus consented to transport
them (Req, May 7, 1935 [Illegible] 1946, cited previously). As a consequence, the
agreement of the transporter which is not required when the traveler has normally
accessed the vehicle must be proven when the latter finds themselves placed in abnormal
conditions, the existence of a transportation contract therefore bringing about an
obligation for the transporter to conduct the traveler safe and sound to destination. Also
when a traveler has boarded a vehicle unbeknownst to the transporter and without
respecting the safety measures applicable to him, whether they are regulatory or not, then
the absence of a transportation contract and the fault that was committed relieve the
transporter of any responsibility for any incurred accidents (Douai, October 20, 1949,

cited previously). One does not, in effect, conceive that the traveler who attempts to
board a moving bus or tramway that is underway and who then falls victim to an
accident, is able to invoke the requirement of safety: The transportation contract can only
be formed if the conditions of the transporter are respected, which imply a normal
boarding of their vehicles. It is of little importance if subsequently the action of the
traveler does or does not constitute a violation in the eyes of the traffic police, insofar as
the proof of existence of a contract is not reported. On the contrary, entry in a vehicle
that was not the one that was meant to be used for the transportation does not constitute
an error of the traveler that is sufficient to eliminate the responsibility of the transporter,
if the same has not advised the traveler nor did they prevent their boarding: leaving its
vehicles parked, it places the same at the disposal of the travelers, and were an accident to
occur in one of them, it will be held to remedy the damaging consequences (Civ. April
20, 1942, cited previously).
IV. – The distinction between the various modes of transportation depending on
whether or not the traveler is required to supply himself/herself of a travel document prior
to boarding the vehicle therefore appears to, in fact, be very clear, and brings along with
consequences that are certain before the law. Nonetheless, does the organization of
transportation not bring about a rapprochement, not only on a verbal level, for example
when “bus stations” are created, but also on an effective level and that merits attention?
One has already pointed out the case of the stations of secondary networks where there
are no ticket-distribution personnel (See Rodière, note: J. C. P. 1950, 1950, II, 5470).
However, above all, in the opposite manner, public-road traveler transit is becoming
organized bit by bit and in certain cities there are precisely these long-haul bus stations,
with boarding platforms, installations which are destined to channel the travelers, etc… If
the access is only open to those holders of tickets, there is no difficulty if one were to
want to initiate the obligation of safety at the same moment as is the case of
transportation by railway. However it can only be so for those travelers who are obliged
to take their seat in the vehicles without a travel document being required previously,
insofar as the same is obtained in the vehicle itself: a ruling has admitted that the
transportation contract was then formed as soon as the traveler accessed an installation
which allowed the differentiation between traveler and non-traveler (Paris, December 24,
1912; Annotated Bulletin, Railway, 1916, 2, 247). Its solution must be approved, if it is
permitted to the transporter to prove that the person who suffered the accident was not at
all meant to make use of its vehicles and that this fact may not have as a result a link with
a transportation operation. The circumstances of the accident itself will facilitate this
proof insofar as it will generally take place upon boarding of the vehicle itself, with the
installations meant to facilitate access being normally very minimal; furthermore, the
distribution of sequential numbers will often allow one to establish the intentions of the
traveler.
The judicial system of transportation contracts necessarily needed to take into
account the conditions in which the transportation is undertaken, and as a follow-up or to
assist in its differentiation according to the type of transportation, for example travelers or
merchandise, and according to the locomotion process employed. Without doubt, in
creating the requirement of safety, jurisprudence has unified this system as regards the
responsibility of the transporter, however the existence of this obligation assumes that a

transportation contract has been formed, and that it is not formed in the same manner as
regards the transportation of travelers as for the transportation of merchandise, nor in the
various traveler transportation enterprises. We have recalled the distinction that has
today become classical, between those that require that the traveler be the holder of a
travel document and those that collect the transportation price on the road, in other words
following the boarding of the traveler in the transportation vehicle. However the facts do
not permit one to stick to such a clear distinction and it appears certain that as the
organization of, in particular, road transportation, will become more widespread, it will
tend to become more blurred. No matter which the case may be, it is still valid at the
present time and the reported ruling has made it an interesting application.
J. HEMARD.
Professor to the Law Faculty of Lille