Fiche - Jurisprudence CMR

Numéro de la fiche : 42023

Pays : Russie

Thèmes : CMR (Transport routier international) Responsabilité du transporteur Personnes dont répond le transporteur (art. 3)

Date de la décision : 02/08/2018

Objet :
Carriage of goods - Transport Slovenia / Russia - Commission contract - Subcontracted commission contract - Violation of the prohibition on subcontracting the commission contract - Theft of all goods during transport - CMR applicable to the freight forwarder ( yes) - freight forwarder under CMR (yes) - Article 3 of CMR - freight forwarder responsible under Russian law (yes)

Sommaire :
Under articles 403 and 805 of the Civil Code, the commission agent is responsible for his substitutes. In accordance with article 803 of the same code, if the agent can prove that the bad execution of the contract took place during the transport contract, the responsibility of this towards his principal is determined by the same rules as those under which the carrier is responsible to his agent. The defendant's responsibility must therefore be determined in accordance with CMR rules.

In this case, the broker was responsible for delivering goods to their destination "unharmed", choosing the substitutes himself to perform the transport, concluding contracts with them on his behalf, as well as monitoring the entire transport process. end to end. Thus, the agent is responsible for the subcontractor, and the transporter.

- If the customer is the sender in the transport contract (the contract was concluded by the customer himself or when the commission agent concludes the contract on behalf of the customer), he has the right to engage the liability of the carrier under of the contract. However, the customer can also bring an action for compensation against the agent, if in the terms of the contract, he also promised to ensure the transport of intact goods to the recipient, which is the case here.

- If the contract for the carriage of goods is concluded by the freight forwarder "on his own account", the latter has the right to engage the liability of the carrier on the basis of the transport contract. The carrier is then obliged to compensate the freight forwarder, regardless of who is the owner of the goods, without the freight forwarder having previously disinterested the person entitled to the goods. The agent is then required to compensate his principal.

The agent insists that he exercised due diligence and had reliable information about the carrier. Indeed, he has been working with the subcontracting broker for a long time, and the transporter had provided all the necessary documents (civil liability insurance contract, state registration certificate, tax registration certificate, etc.) . However, possession of this information does not mean "possession of reliable information". The reliability of this carrier was actually very questionable (no valid bank account, no liability insurance, etc.). The agent did not even show "elementary circumspection" which could have prevented the theft of the goods.

However, under article 3 of the CMR and articles 403 and 805 of the civil code, the commission agent is responsible towards the principal, not only because of his "direct" subcontractors (the subcontract agent), but also the facts of all the people involved in the organization (the transporter).
To be relieved of their responsibilities, the freight forwarder and the carrier must prove that they have shown care and diligence in fulfilling their obligations, and that all necessary measures have been taken.

In accordance with articles 15 and 401 of the Civil Code, to obtain compensation from the defendant, it is necessary to have simultaneously three conditions: the existence of damage, acts reporting the guilt of the defendant, and a causal link between the two . The absence of at least one of the elements excludes the liability of the defendant (general conditions of civil liability).

In this case, the principal has reported all these elements, the responsibility of the agent is engaged.

Référence :
COURT OF ARBITRATION OF THE CITY OF MOSCOW
2 aout 2018
n° A40-80418 / 18-42-577
РСТД / ИМПЕРИЯ

IDIT n° 24701

Observation :
Arbitration court in Russia understands itself as an Economic Court

source: www.20aas.arbitr.ru
Translation: IDIT

Auteur :