Cour de cassation, chambre commerciale, 13 February 2019, appeal number: 17-28550
Recklessness (the most difficult element to demonstrate) can be illustrated by a particularly careless attitude of the style “it passes or it breaks” or ” there is a risk, I take it and we’ll see “.
Such a fatalistic attitude, which borders on bad faith, is naturally very rare on the part of a moderately diligent professional. Proof is therefore particularly difficult for those entitled to the goods.
In this case, the Versailles judges incurred the criticism of the Court of Cassation because the elements retained did not allow, according to the high court, to characterize the inexcusable fault privative of the legal limitations within the meaning of article L. 133-8 of the commercial code.
These were the following elements selected by the judges on the merits :
– Late delivery of the goods to the recipient (non-compliance with the agreed schedules) ;
– The subsequent storage of the goods in a place without direct and effective supervision ;
– The particularly sensitive nature of freight (easily ” sellable “goods).
“(…) Having regard to article L. 133-8 of the Commercial code ;
Whereas in order to order in solidum the freight forwarder and the valet to pay a certain amount to the company AIG Europe Limited, with interest, the judgment notes that the delivery of the goods, which was to be carried out on 21 May 2012 before noon, took place only three days later, due to the non-respect of the reception schedules at the recipient by the various drivers who took over the pallet, so that the packages transported are, during this period of time, returned each day to the zone of transport warehouse transit ; whereas it notes that this building has thirty dock curtains and that twenty-four video cameras are placed on the posts of the structure, allowing to control the coming and going of staff and packages, but without live surveillance ; whereas it adds that these dock curtains are not connected to a remote monitoring company after closure and that the pallet was installed in a dark location due to the presence of a mezzanine and not covered by the video cameras put in place; ; that it still maintains that they were valuable products, corresponding to mobile telephony, objects of common fraudulent subtractions and quite easily negotiable ;
That by determining itself on such grounds, unfit to characterize the inexcusable fault of the carrier, which is a deliberate fault involving the awareness of the probability of damage and its reckless acceptance without good reason, and not a simple fault of recklessness or negligence, or even gross negligence, the Court of appeal deprived its decision of the legal basis of the ;
FOR THESE REASONS, and without the need to rule on the other grievances: QUASHES AND ANNULS (…)”
The solution chosen by the Court of Cassation must, in our opinion, be approved : recklessness is not deduced from the valet’s material failures alone : the psychological element (awareness of the probability of damage and its acceptance without valid reason) was therefore lacking.
That is, a simple fault of recklessness or negligence (as was the case in this case) does not automatically qualify as an inexcusable fault.
Recall, that for the supreme judges, the fact of damaging the goods while passing under a bridge also does not constitute an inexcusable fault for a carrier (Com., 11 April 2018, Appeal no.: 17-12975), in the absence, again, of other elements to characterize the reckless attitude of the carrier and its awareness of the likelihood of damage.