The nature of the contract of carriage
Tripartite nature of the contract of carriage …even if the consignee buys on the Internet.
CA Amiens, 5 January 2021, n°19/03396
The Court of Appeal recalls the principle of the tripartite nature of the contract of carriage. The magistrates affirm that the annal prescription of Article L. 133 – 6 of the Commercial Code is enforceable even to the recipient buyer who has only ordered a product online, and this, despite the fact that the contract concluded between the recipient and the seller left the latter the care and responsibility to designate the carrier of his choice for the shipment of the goods. The Court of Appeal refers to Article L. 132-8 of the Commercial Code which provides that: “the consignment note forms a contract between the sender, the valet and the addressee [ … ]”. In application of this principle, the consignee is therefore a party to the contract of carriage, notwithstanding the fact that the transport of the goods purchased online was carried out at the request of the seller.
Suppletive nature of standard contracts and proof of injury
CA Bordeaux, 4 January 2021, n°17/04252
The suppletive nature of the standard contract which is applicable if the parties have not agreed anything (in case of verbal agreement), if their contract does not settle the or one of the points envisaged by Article L. 14325 – 3 of the Transport Code, if their written agreement is null and void, if their contract infringes provisions of public policy.
The Court recalls that if the standard contract provides for periods of notice of termination according to the duration of the commercial relationship, compensation is not due automatically but implies proof of the damage suffered.
the Annal Prescription
Fraud or infidelity
CA Paris, 14 January 2021, n°19/00990
The Court recalls that handling operations are, in principle, an accessory to a transport operation so that they form an integral part of it and cannot be separated from it. Therefore, the limitation period that applies in the event of a dispute relating to this ancillary operation is the period of one year provided for by Article L. 133-6 of the Commercial Code, except in the case of fraud by the carrier but also by that of the other parties to the contract of carriage. In case of fraud or infidelity, the ordinary statute of limitations of 5 years will apply. The judges considered that constitutes a case of fraud such as to set aside the annal prescription in favor of the five-year prescription of common law when a service is invoiced for the benefit of two delivery men while only one is actually employed.
Enforceability of the annal prescription to the addressee
CA Amiens, 5 January 2021, n°19/03396
The annal prescription of Article L. 133 – 6 of the French Commercial Code is enforceable even to the purchaser recipient who has only ordered a product online, and this, despite the fact that the contract concluded between the recipient and the seller left the latter the care and responsibility to designate the carrier of his choice for the shipment of the goods. The Court of Appeal refers to Article L. 132-8 of the Commercial Code which provides that: “the consignment note forms a contract between the sender, the valet and the addressee [ … ]”.
Recognition of the claimant’s right
CA Colmar, 18 January 2021, n° 18/01490
In the event of payment made following a claim by the valet, this payment shall constitute recognition of the claim of the latter, even if the quantum is disputed. This partial recognition (through payment) interrupts the limitation period for the entire claim.
– Foreclosure of Article L. 133-3 of the Commercial Code
Inapplicability of the annal prescription to the contract of sale
CA Paris, 12 January 2021, n° 20/00073
The foreclosure provided for in Article L. 133-3 of the Commercial Code applies only to the contract of carriage. Therefore, it does not apply in the context of a request for payment of a balance of invoices claimed by a supplier from its customer.
Starting point of prescription
CA Metz, 18 February 2021, n° 19/01220
The judges recall that the end of non-receipt provided for by Article L. 133-3 of the Commercial Code is subject to the receipt of the goods. The 3-day period begins only from the day on which the goods were offered to the recipient or when the latter refuses delivery.
Non-applicability to freight forwarder
CA Bordeaux, 12 January 2021, n° 18/01846
Since direct action is exclusively reserved to the carrier performing the physical transport operation, it is not transmitted to the freight forwarder, including by way of subrogation.
Conditions for the exercise of direct action for the payment of the transport price
CA Rennes, 23 March 2021, n° 18/03996
The continuation of the performance of the contract of carriage despite the existence of unpaid invoices by the instructing party does not deprive the carrier of the right to avail itself of direct action.
The judges also point out that the absence of mention of the price of carriage on the consignment notes has no impact on the direct action, which results from the contract of carriage, a consensual contract. Therefore, the decision to admit the invoices, relating to the disputed claims, to the liability of the payer – and shipper – is sufficient to prove the reality of the agreed price and, in turn, its enforceability against the addressee, in the context of the direct action.
Finally, the Court reaffirms the principle according to which Article L. 132-8 of the French Commercial Code establishes a legal guarantee of payment of the transport price, so that the affected consignee may not invoke his own injury suffered as a result of the transport to refuse to pay the freight, even if the carrier has committed wrongful negligence in the performance of his service.
Direct action against the insurer of the person responsible
Time limit for direct action by the victim
CA Nancy, February 8, 2021, n° 19/0209
The magistrates recalled the established jurisprudence according to which the direct action of the victim against the insurer (the mover in this case) can be exercised as long as the insurer is exposed to the recourse of its insured and within the limitation period of the legal action for liability. It was also held that the summons served after the placement in collective proceedings of the moving company was not such as to interrupt the limitation period of the action for liability.
Right of the victim not to implicate the perpetrator of the responsible
CA Paris, 25 March 2021, n° 18/20479
The judges recalled the established jurisprudence, according to which the admissibility of the direct action brought against the carrier’s insurer is not subject to the appeal in question by the insured party causing the injury.
inexcusable fault of the valet
Wilful destruction of the goods
Com. 24 March 2021, F-P, n° 19-22. 708
The destruction, even voluntary, by the carrier of the goods entrusted to it cannot, in principle, be qualified as inexcusable fault within the meaning of Article L. 133-8 of the Commercial Code, this qualification depending on the circumstances of each case.
Sensitive freight + unattended + public area = inexcusable fault
CA Paris, 26 January 2021, n° 20/00537
The carrier commits an inexcusable fault if, in knowledge of the sensitive nature of its load, it has left its load with its truck and/or trailer, even padlocked, for 3 days and 3 nights, unattended, on a public road not specially intended for its parking, thus attracting the attention of malicious persons.
Failure to secure without other criteria of Article L. 133-8 of the CC is not an inexcusable fault
CA Angers, 26 January 2021, n° 17/00936
The client must demonstrate the meeting of the four criteria laid down in Article L. 133-8 of the French Commercial Code in order to claim an inexcusable fault. The mere fact of reporting a defect in the stowage of the goods is not sufficient to characterize an inexcusable fault.
No inexcusable fault failing to demonstrate awareness of the likelihood of damage and recklessness
CA Lyon, 25 March 2021, n° 19/00411
Failure to place a padlock on the door of a trailer parked on a secure site does not constitute an inexcusable fault because this circumstance does not imply awareness of the likelihood that damage would likely result and reckless acceptance of the risk.
No inexcusable fault in the absence of information given to the carrier on the value of the load
CA Bordeaux, 18 January 2021, n° 17/05280
The Court considers that it is not an inexcusable fault for the carrier to have stored pallets in a closed warehouse on a closed site, out of the sight of people who might possibly covet a load of wine, even though he knew that it was “wine” but without any further details to be aware of their value.
Crossing under a bridge of insufficient height and in full knowledge of the cause = inexcusable fault
CA Versailles, January 21, 2021, n° 19/02675
The driver of a truck carrying a load of a particular height must be aware of the likelihood of damage if it passes under a bridge of insufficient height. He commits inexcusable misconduct if he is aware of the likelihood of such damage and has accepted the risk of the occurrence of such damage recklessly. In particular by committing a fault of imprudence of particular audacity, this is the case if the height of the bridge was displayed without this signaling being insufficient or even erroneous.
Inexcusable fault: night parking, unsecured place, trailer with sensitive cargo
CA Aix-en-Provence, March 11, 2021, n°17/14751