Court of Cassation, Commercial Chamber, 30 January 2019, 17-16604.

In the case of a contract of carriage, case law has recognized that a flight with cunning constitutes force majeure.

A jurisprudential illustration was recently provided by the Court of Cassation in a judgment of 30 January 2019.

“But considering that the judgment holds that after the passage of the toll on the highway, the driver was forced by the intervention of a Peugeot brand vehicle, equipped with a beacon, to stop under a bridge on a portion of road reserved for the service, where four individuals hooded and wearing police jackets have taken him and his attendant out of the truck before tying them ; that it further maintains that this vehicle and its occupants had all the appearances of a service vehicle and police officers and that their intervention, by its violence and its effect of surprise on the driver and his passenger, could not be avoided by the carrier, nor could its consequences, its employees having been attached by the perpetrators of the acts of violence ; that by deducing from these findings and assessments the existence of circumstances which the carrier could not avoid and the consequences of which it could not obviate, within the meaning of Article 17 (2) of the Geneva Convention of 19 May 1956 relating to the contract for the international carriage of goods by road, known as CMR, the Court of Appeal, which was not obliged to follow the parties in detail in their arguments, has legally justified its decision to discharge it, by application of that text, from its responsibility ; that the plea is not based on the (…)”.

With regard to the contract of carriage, jurisprudence has recognized that a robbery with cunning constitutes force majeure because ” in a state governed by law, every citizen is not obliged to expect that by the simple arrest of another individual he will find himself in the presence of a threat of an action with open force “.

Thus, this is the case when the driver stops to help an individual who asks for information (TC Lyon, November 7, 1997, Juris-Data: 1997-710041) :

“Whereas at no time does it appear from the relationship of the fact that the driver who was an experienced driver, former in the company, was either colluding or reckless in stopping to answer a request for information that was presented to him at the exit of the commercial area of Virolle and this, at 11am ; Whereas in a state of law, every citizen is not obliged to expect that by the mere arrest of another individual he will find himself in the presence of a threat of arrest; an open force action”.

More importantly, when a driver or guard is stopped by criminals disguised as police officers, as is the case in this case when Mr. Laos came out of his guardhouse for an entry check, he can legitimately believe that this is a simple check and not a criminal act.

Thus, the Commercial Court of Bobigny retained force majeure in a judgment of June 24, 2005 (RG: 2003 F01376) :

“Considering that persons with any appearance of law enforcement and operating with a beacon vehicle, the driver could not assume that they were fake police officers and could legitimately think, if he had the time, which is doubtful because of the immediacy and brevity of their ‘intervention’ that they would verbalize it or carry out a check, Considering that the driver could not take any action to avoid this theft”.

In this same vein, the Commercial Court of Nanterre also ruled, in a judgment of 3 April 1998 (Juris-Data : 1998-710218) that schemes consisting in using the appearance of the public force to force the driver to stop his vehicle and get him off the cab are characteristic of force majeure :

“( … ) the driver of TRANTIRA, being at the wheel of his truck, was arrested on 23/07/96 on the road to Minsk, during the day, around 11 o’clock, 70 km from Moscow, by two unknown uniformed officers belonging to the road police in uniform standing next to a vehicle equipped with a beacon and which he could only comply with when he had not committed any recklessness driving during the day on a major road and that he could not avoid the circumstances of this arrest ; (…)

That (…) the driver was invited to return to the militia vehicle in which was an individual presenting himself as the customs representative and where two other individuals came to join him who, “while threatening him, blindfolded him, dragged him into the forest, forced him to drink vodka, and then beat him with blows inflicting bodily harm of medium gravity” ; “that as a result of these blows the driver passed out and when he regained consciousness he became unconscious.” it was dark, he was tied up and covered in branches” ; that alone against three the driver could not defend himself against the violent assault to which he was subjected, that no fault, recklessness or lack of courage can be blamed on him ; and that thus these circumstances could not be avoided in order to obstruct and counteract it ;

That thus the Tribunal will consider that the theft of the truck and its cargo was carried out in circumstances inevitable in their causes, insurmountable in their effects and to which it could not be obviated ;

That thus the provisions of Article 17, paragraph 2, of the WRC are united “.