MARCH 2020, APPEAL NO.: 18-14261
“Reply of the Court :
Having found that the trailer had been stolen by a tractor that had hitched itself to it, after having entered, on the night of 26 to 27 April 2013, the site in which it was parked, the judgment held that this site was entirely screened, that it was monitored by sixteen cameras, one of which, at 360 degrees, was installed on the roof of the building, that its access was closed by means of a metal barrier and two lifting barriers. He adds that, during the weekend, a guard was in faction at the entrance of the site and rounds were made and that, from Saturday at 6 p.m. to Sunday at 10 p.m., the site was closed. The panel further notes that the trailer’s parking area was illuminated and monitored by two cameras, and it is not established that Vital was aware of the defective nature of one of them, and that access to it required a passage that was also monitored by a camera.
By these findings, from which it inferred that the Vital company had not, by refraining from affixing lead or a padlock to the door opening system as well as an anti-hook system of the hitch pivot, committed wilful misconduct involving the awareness of the probability of damage and its reckless acceptance, without good reason, the Court of appeal, which responded to the conclusions before it, legally justified its decision. The plea is therefore unfounded.
FOR THESE REASONS, and without the need to rule on the incidental appeal, which is only possible, the Court: REJECTS the appeal (… )
To “unpack” the liability of the carrier, Article L. 133-8 of the commercial code requires that the person entitled to the goods demonstrate the following 4 cumulative conditions :
1. Deliberate and willful misconduct.
2. Awareness of the probability of damage.
3. Reckless acceptance of risk.
4. Lack of a valid reason for accepting such risk.
That is, the fault of the carrier (or freight forwarder) must be deduced from a particularly reckless psychological attitude : “it passes or it breaks “. There is a risk, the carrier takes it knowingly and deliberately and consciously.
On March 11, 2020, the Court of Cassation once again addressed the thorny issue of inexcusable fault by rejecting it in a classic litigation on the liability of the road carrier : theft during a night parking in a parking lot.
Bourgey Montreuil Normandie was commissioned by Nestlé France to organize the transport of a cargo of Ricoré brand products. It outsourced the material transportation operations to the company Vital Froid. After removing the goods, on Friday, April 26, 2013, for delivery scheduled for Monday, April 29, 2013, the driver of the latter deposited the trailer, untied, on the site of a company on which Vital company occupied premises. On the night of 26-27 April 2013, this vehicle and the goods it contained were stolen. Nestlé was compensated by its insurer Zurich Insurance.
In an attempt to prove the inexcusable fault and “knock down” the legal limitations of the road carrier, the beneficiaries of the damaged goods have in particular put forward the following arguments before the judges of the merits :
– The carrier’s knowledge of the easily “sellable” nature of cargo ;
– The fact that the semi-trailer was neither padlocked nor leaded by the carrier;
– The circumstance that the parking place was not, in their opinion, sufficiently secure and protected.
The judges on the merits held, inter alia, that the mere absence of an anti-attachment system for the hitch pivot was, in view of the nature of the goods and the securing of the trailer’s parking place, insufficient to establish a deliberate risk-taking and that the carrier’s recklessness was not deduced from the mere fact of failing to lock the semi-trailer, especially since the absence of a padlock was not causally related to the theft.
The Court of Cassation approve the judges of the merits and rejects inexcusable misconduct.
The solution adopted by the Court of Cassation must, in our opinion, be approved … even if the solution could have been different, if the flight had been directly caused by the carrier’s failure to lock the semi.
The fact remains that inexcusable fault is a very restrictive legal concept that counterbalances, – through legal limitations of compensation , -the obligation of result and the presumption of liability of the carrier that the legislator imposes on it with very few cases of possible exemption (fault of the sender and force majeure).
The very rigorous criteria of inexcusable fault thus allow transport professionals to exercise their activity serenely by paying insurance premiums that they are able to assume financially because their amount (it should be remembered) is calculated by transport insurers in consideration of the financial exposure of the insured to the risk of being ordered to pay compensation to the entitled party capped at the legal limitations of compensation from the French model contracts or the limitations of the CMR Convention.
The economic balance of the system is thus respected and preserved by the Court of Cassation exercising strict control over the motivation of the judges on the merits.