Com., September 25, 2019 appeal : 18-12265
The malfunction of the refrigerating system of the truck allegedly unsuitable for the nature of the cargo does not allow to retain the inexcusable fault of the carrier if the person entitled to the goods does not establish evidence of deliberate fault and reckless attitude of the valet.
To “unpack” the liability of the carrier, Article L. 133-8 of the Commercial code requires that the person entitled to the goods demonstrate to retain the inexcusable fault making failure to the limitation of liability, the meeting of the following 4 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.
A relatively recent judgment of the commercial chamber of the Court of Cassation of 21 November 2018 perfectly illustrated the content of the inexcusable fault of the road carrier (Cass. com., 21 Nov. 2018, n°17-17468)
In the present case, a freight forwarder is entrusted by his client with the organization of the transport of a shipment of televisions. During a night parking a significant part of the cargo was stolen. After compensating his client, the commissionaire and his insurer appealed against the substituted carrier. The court of Appeal agrees.
For the judges on the merits, the choice of parking, with a particularly sensitive and easily “flowable” cargo, the value of which the carrier could not ignore, in clear contradiction with the instructions received, constitutes a deliberate fault bordering on fraud. The carrier has totally disregarded the will of its customer in carrying out the transport operation.
“But whereas the judgment notes that the fact of having parked for the night a trailer loaded with sensitive goods, without any closing device, on unsupervised land, constitutes a fault of the carrier, guarantor of losses, within the meaning of article L. 133-1 of the Commercial code ; that it holds that this parking, at night, on an isolated site in the countryside, even regularly occupied by the vehicles of a transport undertaking, giving directly to the public road, without any effective supervision, of a load consisting of many packages, therefore easily removed, in a trailer not padlocked, while the carrier could not ignore the value of the load, and this, in flagrant contradiction with the instructions received, constitutes a deliberate fault and exceeds the threshold of mere negligence ())”.
By schematizing the reasoning of the supreme judges, it is possible to derive the following formula :
sensitive goods + night parking + unprotected parking without effective supervision + unblocked trailer = reckless attitude = inexcusable misconduct.
A few months after this judgment, the Court of Cassation rejected the inexcusable fault in a judgment of 13 February 2019 (appeal no.: 17-28550).
To characterize the inexcusable misconduct, the judges on the merits selected the following elements :
Late delivery of the goods to the recipient (non-compliance with the agreed schedules) ;
Subsequent storage of the goods in a location without direct and effective monitoring ;
The particularly sensitive nature of freight (easily marketable goods).
The High court quashes the appeal judgment because the judges on the merits have established the recklessness of the carrier.
“Qu’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 (…)”
Recklessness is therefore not deduced from the valet’s material failures alone: the psychological element (awareness of the probability of damage and its acceptance without a valid reason) was lacking.
In other words, a simple fault of recklessness or negligence (as was the case in the dispute that gave rise to the judgment of 13 February 2019) does not automatically qualify as inexcusable fault.
On September 25, 2019, the Court of Cassation again addressed the thorny issue of inexcusable misconduct by rejecting it in a litigation where the appeal argued, in vain, that such misconduct was deduced from the use of a vehicle that has been the subject of several interventions, therefore inadequate, according to the beneficiaries of the goods, to transport sensitive and high-value cargo.
Despite the expert’s conclusion attributing the loss to the malfunction of the refrigeration unit, the appeal failed in demonstrating the conditions of inexcusable fault that require proof of the carrier’s reckless attitude. However, in this case, the Court of Cassation noted that the driver himself noticed the anomaly of the temperature during the journey and several times contacted his employer to find a solution, so that neither the deliberate and willful fault nor the reckless attitude were characterized.
“(Mais) But considering, in the first place, that Article L. 133-8 of the Commercial Code defines inexcusable fault as a deliberate fault involving the awareness of the probability of damage and its reckless acceptance without valid reason ; that the judgment holds that the transport vehicle consisted of three compartments whose temperatures were preset, without it being demonstrated that the driver had taken the initiative or been able to modify these temperatures, nor emergency ; that he adds that after noting the abnormality of temperatures in the refrigerated compartment, set at 5 degrees, containing the goods, the driver had stopped the vehicle for the first time and urgently called his employer who had instructed him to restart the refrigeration unit, and then having noted a further drop in temperatures below zero degrees, the driver had again consulted urgently his employer, who had ordered him to stop the refrigeration unit, which he also stated had done ; that the judgment further notes that the vehicle had been put into circulation for the first time on 24 September 2010, less than two years before the occurrence of the accident, that it had been the subject of a certificate of health compliance and that the interventions on the refrigerating device attested to the precaution that the carrier had taken to respect the destination of its vehicle ; that from these findings and assessments, the Court of appeal was able to infer that the carrier had not committed inexcusable misconduct … “. (Com., 25 September, 2019 appeal: 18-12265).
The solution adopted by the Court of Cassation must, in our view, be approved without reservations.
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.