Fiche - Jurisprudence CMR

Numéro de la fiche : 41862

Pays : France

Thèmes : CMR (Transport routier international) Prescription (art. 32) Interruption du délai de prescription

CMR (Transport routier international) Prescription (art. 32) Opposabilité

CMR (Transport routier international)
    Responsabilité du transporteur Cas d'exonération (art. 17 et 18) Circonstances que le transporteur ne pouvait éviter (art. 17§2)

CMR (Transport routier international)
    Responsabilité du transporteur Limitation de responsabilité du transporteur (art. 23) Calcul (art. 23)

Date de la décision : 27/09/2018

Objet :
1) Consignee who has not yet paid the price of the goods - Independence between the contract of sale and the contract of carriage (yes) - Failure to act for the consignee (no) - Proof necessary for the payment of the goods (no )

(2) Theft of goods under indeterminate conditions - Article 17 (2) of the CMR - Exemption from liability of the actual carrier under the CMR (no) - Article 132.5 of the Commercial Code - Liability of the commission agent for the theft of the goods ( Yes)

3) Call for warranty from the freight forwarder to the carrier - Prescription (yes) - Article 32 of the CMR - No compensation from the principal - Written claim pending suspension of the prescription (no) - Recognition of the liability of the carrier interrupting the prescription (no)

4) Calculation of the indemnity - Goods not stolen with low value included in the calculation of the indemnity (yes) -Franchise of the insurance contract at the charge of the commissionaire (yes) - Interest at the legal rate - Capitalization of interest - Article 1154 of the Commercial Code

Sommaire :
(1) Since the contract of sale and carrier are separate contracts, the addressee who has not received his goods has an interest in acting without having to prove that he has paid the price of the goods to the seller.

(2) Since the goods have been stolen under indeterminate conditions, the actual carrier can not rely on an exemption from liability envisaged in Article 17 (2) of the CMR. Consequently, being unable to invoke article 17 of the CMR, the commissionaire is responsible for theft in accordance with article 132-5 of the Commercial Code.

3) The commissionaire can not invoke the written claim sent to the carrier to interrupt the limitation period, if he has not previously disinterested the principal. Moreover, the courier sent by the carrier to the freight forwarder who only mentioned a proposal for calculating the compensation does not amount to an acknowledgment of interruptive liability. Thus, the commissioner's plea for warranty outside the one-year limitation period, which has not been interrupted, is inadmissible.

4) Since part of the goods has not been stolen (1080kg of the remaining goods,) corresponding to "no value invoices", the freight forwarder is entitled to claim that the compensation limits of Article 23 of the CMR should be calculated on the weight of 4830kg - 1080kg = 3750kg. Thus, the indemnity must be calculated on 3750 * 8.33 SDR = 31237.50 SDR. The commissionaire must also free interest at the legal rate, capitalized in accordance with Article 1154 of the Civil Code and must bear the burden of the insurance policy franchise contracted by the right holder of the commodity with interest and capitalization of interests.

Référence :
Cour d'appel de Paris, pôle 5, chambre 5
27 septembre 2018
Sephora France et autres / SA Copernic et autres
IDIT n°24726

Observation :
Observation:
Judgment Referred: Bobigny Commercial Court, November 15, 2016

Article L.132-5 of the French Commercial Code deals with the personal liability of the commissary. Liability for its substitutes falls under Article L132-6 of the French Commercial Code.

Auteur :