Fiche - Jurisprudence CMR

Numéro de la fiche : 42816

Pays : France

Thèmes : CMR (Transport routier international) Réserves (art. 30)

CMR (Transport routier international)
    livraison - retard - réserves réserves (art. 30) avaries - délai de 7 jours

Date de la décision : 18/01/2022

Objet :
International road transport (Netherlands/France) – Incoterm CPT - Transport in tank – Palm oil intended for a biscuit factory – Unloading of 3 compartments from a tank – Technical problem unloading 2 compartments - Technical problem related to the pipes connecting the truck with tanks on the ground freezing the palm oil which has solidified – Mention on the consignment note that the palm oil from the 2 compartments have not been unloaded – Heating station heating the palm oil - Last 2 compartments delivered a few days later without reservations - Problems encountered by the recipient the next day - Problems with the texture of the biscuits related to the palm oil delivered - Presence of external agents such as detergent in the remaining oil contained in the 2 compartments – Concealed damage – Article 31§1 of the CMR - Absence of written reservations within 7 days of delivery – Presumption of conforming delivery (yes) – Proof opposite of the recipient (no) – Reversal of the presumption of compliant delivery (no) – Liability of the carrier (no) - Possible pollution in the recipient's tank (yes)

Sommaire :
Article 17§ 1 of the CMR makes the carrier liable for loss and damage suffered by the goods during transport.
It is not disputed that the palm oil which was used by the biscuit factory the day after the delivery of the two compartments was that which had been delivered to the carrier and that, when it was used, it was unsuitable for its purpose. use. The difficulty is to determine when this oil was altered.
Under the terms of article 30.1 of the CMR, if the recipient has taken delivery of the goods without expressing reservations, at the latest at the time of delivery in the case of apparent loss or damage, or within seven days from delivery, Sundays and public holidays not included, when it comes to non-apparent losses or damage, it is presumed, until proven otherwise, to have received the goods in the condition described in the consignment note . These reservations must be made in writing in the case of non-apparent loss or damage.
Since the consignee expressed no reservations during the actual delivery of the remaining compartments of the tank and does not claim or even less justify having brought the carrier to the attention, either at the time of delivery or in writing within seven days that followed, the condition of the goods, it is presumed to have been delivered in accordance with the condition described by the consignment notes. It is therefore up to the recipient to provide proof that the palm oil was not compliant when it was delivered.
In support of the assertion that a substance was already present in the lorry, the difference in mass of the cargo delivered between that appearing on the first consignment note and that appearing on the second, the modification of the seals between the delivery attempt of November 30, 2016 and the actual delivery of the following December 8, as well as the wanderings of the truck between these two moments and the difficulties encountered in heating the product, a process necessary to return it to a liquid state. However, these elements remain simple presumptions insufficient to provide proof that the product was already altered when it was delivered. On the contrary, the test carried out by sample by the recipient has been analyzed and approved and there is nothing to show that the palm oil was not homogeneous upon delivery.
On the other hand, all the samples subsequently analyzed come from the tank of the biscuit factory in which the palm oil was stored after delivery. The hypothesis according to which the alteration of the product could come from the tank of the recipient cannot therefore be excluded.
The recipient failing to provide proof of the carrier's liability for the damage suffered, must have his claim for compensation dismissed.

Référence :
Angers Court of Appeal, Commercial Division, Section A
January 18, 2022
RG n°18/00979
IDIT n°25250

Observation :
Previous decision: Commercial Court of Angers, April 18, 2018, n°18/00954

Auteur :
Kristina Yougatova