Cour de cassation, chambre commerciale, 11 April 2018, appeal number: 17-12975
In order to “defraud” the liability of the carrier, article L. 133-8 of the Commercial code requires that the person entitled to the goods demonstrate, in order 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.
In the arreêt of April 11, 2019 , the court of cassation does not hold the inexcusable fault.
The last two psychological elements (awareness of the probability of damage and its reckless acceptance) are the most difficult to prove.
Indeed, recklessness can be illustrated by an attitude “it passes or it breaks” or ” there is a risk, I take it and we will see “.
Such an attitude, which is close to bad faith, is naturally very rare on the part of a moderately diligent professional.
In that case, the commission agent had not transmitted to the substituted carrier the instructions of his client by merely indicating him: “necessary means ; low” but without requiring the organization of an exceptional transport allowing to avoid in a certain way the damage.
The appeal alleged that the judges on the merits had failed to ascertain whether the inexcusable fault of the carrier, which had chosen the route itself, did not result from the failure to verify the dimensions of its cargo, for which it had been asked for low transport.
For the High Court, the lack of such verification does not allow to retain the inexcusable fault within the meaning of article L. 133-8 of the commercial code more precisely in its psychological component (reckless attitude).
“(Mais) but whereas the judgment notes that the freight forwarder, to whom his client had, in his order, transmitted precise instructions on the need for transport on a low-mounted tank carrier and indicated the exact dimensions of the object to be transported, did not transmit them to the company transports Révélaud, whose only instructions were summed up to the mention: “necessary means ; low-mounted”, without special requirement of the organization of an exceptional transport ; that he adds that, according to an expertise, the transport actually took place on a low plateau and that, if the height under the deck of the bridge was less than 4.30 m, although, by regulation, works of art crossing a departmental road must have an air draft of this height, no sign indicated this lower height ; that by deducing from these findings alone that the driver had not, while passing under the bridge, committed deliberate misconduct involving the awareness of the probability of damage and its reckless acceptance, without valid reason, the court of Appeal has legally justified its decision ; that the plea is not based ;
And whereas there is no need to rule by a specially reasoned decision on the first plea, taken in its first and third branches, nor on the second plea, which are clearly not capable of leading to cassation ;
ON THESE GROUNDS :
Rejects the appeal”.