Right of air passenger to be compensated in their national currency
CJEU, 3 September 2020, Aff. Case C-356/19
The European court has interpreted Article 7 (1) of Regulation (EC) No 261/2004 : a passenger whose flight has been cancelled or has suffered a significant delay may demand payment of the amount of compensation to which he is entitled and in the national currency that is legal tender at his place of residence.
Burden of proof of passenger’s presence on board
Cass. 1st civ., October 21, 2020, n° 19-13.016
In this judgment, the Court of Cassation considers that in order to refuse the lump sum compensation, it is up to the airline to show that it did not carry the passenger holding a confirmed reservation on board the disputed delayed flight.
TRANSPORT OF LIVE ANIMALS
Distinction between damage and total loss
Cass. Com., 25 November 2020, n° 19-15.903
In this judgment, the High Court had to rule on the qualification between damage or total loss during transport (the animals transported died). The Court of Cassation considers that insofar as the delivery has indeed taken place, it is a question of damage, regardless of the severity of the damage suffered. The total loss assumes the absence of presentation of the goods to its consignee.
Shipper qualification
CA Toulouse, 25 November 2020, n° 20/00080
Court of Appeal considers, on the one hand, that the owner of the immovable which constitutes the place of delivery, and who is also the owner of the goods to be transported, is the consignee of said goods.
On the other hand, the qualification of shipper on the consignment note is not relevant and does not bind the judge.
TRANSPORT INSURANCE
Enforceability of unsigned general insurance conditions
CA Grenoble, 10 September 2020, n° 17/05715
The judges noted in that judgment that the general terms and conditions of an insurance policy are applicable even if they are without a signature as long as a signed document produced by both parties refers to the said general terms and conditions. On the other hand, the carrier’s professional civil liability applies to damage caused to the transported goods due to the failure to maintain the temperature in the trailer containing the goods.
Enforceability of clause theft not mentioned
CA Colmar, 30 September 2020, n° 16/03839
According to the Court of Appeal, the special conditions of the insurance contract signed and initialled by the carrier, referring twice to the general conditions, constitute proof of acceptance of the general conditions and in particular of the flight clause to which these particular conditions refer as an integral part of the general conditions.
For the Court, the enforceability of this vol clause is beyond doubt since it is a customary clause that the valet could not ignore in his capacity as a road professional.
According to the Colmar Court of Appeal, it is the responsibility of the insured to request from the company or the insurance intermediary the documents to which the special conditions of his contract refer before his signature.
Formal and limited exclusion
CA Versailles, 26 November 2020, n° 19/01995
The Court of Appeal recalls the principle drawn from the Insurance Code (art. 113-1) that the insurer is responsible for the loss and damage suffered by the goods transported through the fault of the insured, unless there is a formal and limited exclusion.
An exclusion clause is limited if it relates exclusively to gross negligence.
This gravity is the assessment of the judges on the merits with regard to all the safety devices present on the carrier’s site.
Assignment of rights and subrogation
Cass. Com., 21 October 2020, n° 19-16.206
The insurance cover taken out covered the risk of damage and loss to the goods being transported. First of all, the Court of Cassation recalls that, in order to assess the validity of the subrogation, it is necessary to verify whether the payment has indeed taken place, within the meaning of Article L. 121-12 of the Insurance Code.
According to the High Court, the assignment of rights does not necessarily imply that a payment has been made for the benefit of the insured
It considers that it is open to the insured to grant to the insurer the assignment of his rights and actions arising from the damage which gave rise to the application of the insurer’s guarantee and then to the latter to take action against the freight forwarder and the carrier on the basis of this assignment alone and not by way of subrogation.
River carrier RC insurance
Court of Appeal of Paris (Pole 5), Ch. 5, 3 September 2020, n° 17/15519
According to Article 1 of the French insurance Policy covering the liability of the inland waterway carrier, only damage and material loss occurring to the goods during their transport on board the vessel are guaranteed. On the other hand, the policy does not cover ancillary items, such as transshipment and unloading costs, which remain the responsibility of the faculties insurer.