Fiche - Jurisprudence CMR

Numéro de la fiche : 41841

Pays : France

Thèmes : CMR (Transport routier international) CMR et transports nationaux internes

CMR (Transport routier international) Responsabilité du transporteur Dol ou faute équivalente (art. 29)

Date de la décision : 13/09/2017

Objet :
CMR (Great Britain - Belgium) - Razor blade pallets – Freight forwarder- Subcontracting - Night theft of the goods - Action of the liability insurer of the freight forwarder against the carrier - No full compensation - Application of the article 29 CMR - 1) Intentional misconduct - Infringement of the prohibition of subcontracting - Causal link with the damage (no) - 2) inexcusable misconduct of the Haulage Contractor (no) - Application of the article L133-8 of the transport Code - Knowledge about the value of the goods (no) - Taking into account the constraints of CSR policy – Regularly visited area - Rejection

Sommaire :
1) On the intentional misconduct:

According to Article 29 of the CMR, the carrier is not entitled to avail himself of the provisions which exclude or limit his liability if the damage is due to his willful misconduct or fault attributable to him and which, according to the law of the court seised is considered equivalent to fraud.

Having found that, if the carrier had committed an intentional misconduct by using, for the performance of the carriage of goods, a subcontractor, despite his undertaking not to use it, the sole act of not respecting the prohibition of subcontracting did not mislead the occurrence of the damage, the Court of Appeal deduced exactly that the causal link between this fault and the theft of the transported goods was not demonstrated, so that the limitations of compensation were applicable.


2) On the inexcusable misconduct:

Under the Article L. 133-8 of the French Commercial Code, to which Article 29 (1) of the CMR refers, is inexcusable the deliberate fault which implies
- the awareness of the probability of damage and;
- his reckless acceptance without legitimate excuse.
The judgment states that the theft was carried out at night during the driver's sleep, which was forced to stop in order to respect the mandatory rest periods during transport and parked his heavy weight on a parking area; along a highway; only the nature of the goods has been mentioned on the consignment note and the confirmation of charter and that the proof of the knowledge, by the carrier, of the value of goods and the risks engendered by the transport is not demonstrated. The judgment here holds that the plea is unfounded.

Référence :
Cour de cassation, ch. com.,
13 septembre 2017,
Pourvoi n°16-10.596
Helvetia c/ DSV Road et a.;

Aimablement communiqué par Me Gruber
BTL n°3659, 25 septembre 2017, P. 547

Observation :
Previous decision : Cour d'appel Versailles Chambre 12 du 1er décembre 2015 n° 13/09280

Auteur :