{"id":841,"date":"2021-09-11T00:46:44","date_gmt":"2021-09-10T21:46:44","guid":{"rendered":"http:\/\/askolds.com\/?p=841"},"modified":"2021-09-11T01:16:02","modified_gmt":"2021-09-10T22:16:02","slug":"transport-routier-national","status":"publish","type":"post","link":"http:\/\/askolds.com\/en\/actualite-transport\/transport-et-assurance\/transport-routier-national\/","title":{"rendered":"NATIONAL ROAD TRANSPORT"},"content":{"rendered":"

Suppletive nature of standard contracts<\/strong><\/h2>\n

Reminder of the suppletive nature of the model contracts resulting from the decrees<\/em>
\nCass. Com., December 9, 2020, n\u00b0 19-20. 875
\nThe Court of Cassation recalls the principle of suppletive effect of standard contracts. The High Court considers that the existence of a written agreement between a consignor and a road carrier cannot in itself exclude the application of the ” general “model contract. Model contracts therefore apply automatically in the silence of the parties ‘ agreement on all or some of the issues mentioned in Article L. 1432-2 of the Transport Code.<\/p>\n

Application of the limitations of liability of the commission agent to the liability of the substitutes<\/em>
\nCA Paris, 3 November 2020, n\u00b0 19\/12214
\nWhere the limitations on compensation of substitutes are not known or do not result from mandatory provisions, they shall be deemed to be identical to those relating to the personal liability of the freight forwarder, and consequently, in principle, to those provided for in the standard contract of carriage commission.<\/p>\n

Declaration of value does not presume<\/em>
\nCA Lyon, 12 November 2020, n\u00b0 18\/08357
\nBy this judgment, the Court of Appeal recalls that the compensation due by the road carrier in the event of damage to the goods is capped at the amount fixed by the applicable model contract, unless declaration of value and inexcusable fault demonstrated by the instructing party. Otherwise, the legal limitations of the relevant standard contract will apply.<\/p>\n

Inexcusable fault of the valet<\/strong><\/h2>\n

Plate of repair due by the road carrier in case of inexcusable fault<\/em>
\nCass. Com., 21 October 2020, n\u00b0 19-15.119
\nBy this judgment, the Court of Cassation recalls that since the valet has committed an inexcusable fault at the origin of the theft of the goods, the latter must fully compensate, without loss or profit, the damage suffered by the person entitled to the goods. If it was planned and formalized before the theft that the goods were to be resold, the full compensation for the damage includes the proceeds of the resale of the stolen goods if this resale was already planned and formalized before the theft (loss of profit).<\/p>\n

Theft without violence excludes force majeure<\/em>
\nCA Versailles, 8 October 2020, n\u00b0 18\/08459
\nThe Court of Appeal notes, on the one hand, that the theft of the vehicle containing the goods transported is not a case of force majeure even if it takes place during a night parking, on the public road, in an unlit and unsupervised place, since it was committed without violence and the commission agent did not take the necessary security measures.<\/p>\n

Reminder of the inexcusable fault criteria of Article L. 133-8 of the commercial Code<\/em>
\nCA Versailles, November 5, 2020, n\u00b0 19\/03273
\nBy this judgment, the Court of Appeal recalls that the conditions laid down by Article L. 133-8 of the Commercial Code, to characterize an inexcusable fault, are cumulative.
\nThus, it considers that the inexcusable fault of the valet is not characterized solely by the fact that the parking site in question which contained the stolen goods is sufficiently secure even though the driver would have left open the doors of the vehicle thus committing a deliberate fault. The choice of a secure car park assumes precisely that the driver did not want to put the goods in dager, so the reckless acceptance of the risk cannot be held back.<\/p>\n

Conditions for applying inexcusable fault<\/em>
\nT. com. Nantes, 8 October 2020, n\u00b0 2019006118
\nAccording to the trial judges, a driver who parks on a set of roads during a night break on an unsupervised parking area does not necessarily commit an inexcusable fault. The characterization of the carrier’s recklessness (imperative psychological condition) was therefore lacking.<\/p>\n

Not inexcusable fault in the absence of information given to the carrier on the sensitivity of the cargo<\/em>
\nCass. Com., 25 November 2020, n\u00b0 18-26.387
\nBy this judgment, the High Court recalls that only inexcusable fault is liable to rule out the limitations of compensation in the applicable standard contract or those provided for by the parties to the contract of carriage or commission of carriage.
\nThe Court of Cassation confirms that inexcusable misconduct, which falls within the sovereign power of the judges on the merits, must be retained exceptionally. In this logic, it follows from Article L. 133-8 of the Commercial Code that fault must have four criteria for it to be inexcusable : deliberate fault, awareness of the probability of damage, reckless acceptance of a risk and the absence of a valid reason to act in this way.
\nThe High Court considers that awareness of the likelihood of damage implies that the carrier has been informed of the sensitivity of the goods entrusted to it.<\/p>\n

Inexcusable fault of the motor carrier and declaration of value<\/em>
\nCA Lyon, 12 November 2020, n\u00b0 18\/08357
\nBy this judgment, the Court of Appeal recalls that the compensation due by the road carrier in the event of damage to the goods is capped at the amount fixed by the applicable model contract, unless declaration of value and inexcusable fault demonstrated by the instructing party.
\nThe existence of an inexcusable fault cannot be deduced from the carrier’s failure to explain the circumstances of the flight.
\nMoreover, the second-degree judges point out that the declaration of value is not presumed, it is justified in particular by the payment paid specifically in this respect by the instructing party.<\/p>\n

Lack of impact of inexcusable fault on prescription<\/em>
\nCass. Com., 12 November 2020, n\u00b0 19-17.335
\nIn this judgment, the Court of Cassation makes a distinction between inexcusable misconduct and cases of fraud or infidelity. Only cases of fraud or infidelity are liable to rule out the one-year limitation of Article L. 133-6 of the Commercial Code. Inexcusable misconduct should not be confused with cases of fraud or infidelity, such as theft, for example.<\/p>\n

Combined faults committed by the commission agent and the substituted carrier<\/em>
\nCA Rouen, 28 September 2020, n\u00b0 18\/05434
\nIt follows from this judgment that the liability of the freight forwarder can be sought both because of his personal fault and in his capacity as guarantor of the substituted carrier, against whom he can turn. In case of accumulation of responsibilities (combined faults), it is up to the judge to determine the percentage of each count of responsibility in the reparation of the damage.<\/p>\n

Full liability of the valet<\/strong><\/h2>\n

Cass. com., 21 October 2020, n\u00b0 19-16.206<\/em>
\nThe Court of Cassation recalls, on the basis of Article L. 133-1 of the commercial Code, that the valet is guarantor of the loss of the objects to be transported except in cases of force majeure. Therefore, the Court of Cassation holds that the fault of the instructing party cannot automatically rule out the liability of the valet in the occurrence of the loss of the goods.<\/p>\n

Non – application of the Badinter law to the liability of the carrier in the event of a traffic accident<\/em>
\nCA Toulouse, 25 November 2020, n\u00b0 19\/05522
\nThe Court of Appeal considers that the so-called “Badinter” law, although it is public policy, is not applicable when the transported equipment strikes a bridge. In such circumstances, the provisions of the commercial code under the contract of carriage shall apply. Therefore, the competent court is not the judicial court but the commercial court.<\/p>\n

Failure to explain the circumstances of the theft does not constitute inexcusable misconduct<\/em>
\nCA Lyon, 12 November 2020, n\u00b0 18\/08357
\nThe Court of Appeal recalls that the existence of an inexcusable fault cannot be deduced from the carrier’s failure to explain the circumstances of the flight.<\/p>\n

Abrupt termination of a commercial transport relationship<\/strong><\/h2>\n

Loss of gross margin constitutes the compensation base<\/em>
\nCass. Com., 14 October 2020, n\u00b0 19-19.22
\nIn this judgment, the Court of Cassation recalls the provisions of articles 1231-2 of the Civil Code and 12.2 and 12.3 of the model contract “subcontracting”, to affirm that the damage suffered as a result of a sudden breach of a subcontracting contract, due to the failure to comply with a three-month notice, is based on a loss of the subcontractor’s gross margin and not on the evolution of the overall turnover of the latter.<\/p>\n

Notice fixed in the standard contract eliminates the provisions of Article L. 442-1 II of the commercial Code<\/em>
\nCA Paris, 22 October 2020, n\u00b0 18\/01963
\nFirst, the Court of Appeal confirms that Article L. 442-1, II of the Commercial Code (former article L. 442-6, I, 5\u00b0) does not govern subcontracting relationships, which fall under the standard contract applicable to public road transport of goods performed by subcontractors, unless otherwise agreed.
\nSecondly, the Court of Appeal accepts that, in the absence of formal notice, the sending of two warning letters relating to two incidents reported by the client of the client, one of which may be partly attributable to the client, does not exempt the client from complying with the notice period fixed by the model contract.
\nThe only way to evade such notice without having to pay compensation is to demonstrate the existence of a serious or repeated breach by one of the parties of its obligations. It is up to the judge to assess the degree of seriousness or the repetitive nature of the failings.<\/p>\n

Maintaining the economy of the contract during the notice period<\/em>
\nCass. Com., October 14, 2020, n\u00b0 19-19228
\nThe Court of Cassation recalls that during the period of notice, the economy of the contract must be maintained and that failing that, the right to compensation is assessed to the extent of the loss of a proven gross margin.<\/p>\n

Prescription of the action in abrupt termination of relationship com<\/p>\n","protected":false},"excerpt":{"rendered":"

Suppletive nature of standard contracts Reminder of the suppletive nature of the model contracts resulting from the decrees Cass. Com., December 9, 2020, n\u00b0 19-20. 875 The Court of Cassation recalls the principle of suppletive effect of standard contracts. The High Court considers that the existence of a written agreement between a consignor and a…<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[33],"tags":[],"translation":{"provider":"WPGlobus","version":"2.5.23","language":"en","enabled_languages":["fr","en"],"languages":{"fr":{"title":true,"content":true,"excerpt":false},"en":{"title":true,"content":true,"excerpt":false}}},"_links":{"self":[{"href":"http:\/\/askolds.com\/en\/wp-json\/wp\/v2\/posts\/841"}],"collection":[{"href":"http:\/\/askolds.com\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/askolds.com\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/askolds.com\/en\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/askolds.com\/en\/wp-json\/wp\/v2\/comments?post=841"}],"version-history":[{"count":6,"href":"http:\/\/askolds.com\/en\/wp-json\/wp\/v2\/posts\/841\/revisions"}],"predecessor-version":[{"id":848,"href":"http:\/\/askolds.com\/en\/wp-json\/wp\/v2\/posts\/841\/revisions\/848"}],"wp:attachment":[{"href":"http:\/\/askolds.com\/en\/wp-json\/wp\/v2\/media?parent=841"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/askolds.com\/en\/wp-json\/wp\/v2\/categories?post=841"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/askolds.com\/en\/wp-json\/wp\/v2\/tags?post=841"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}