Fiche - Jurisprudence CMR

Numéro de la fiche : 42836

Pays : France

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

Date de la décision : 18/05/2022

Objet :
International transport France / China organised by a French fret forwarder - Road pre-carriage France / Netherlands entrusted to a Belgian carrier - Goods: 426 cases of cognac on 10 pallets (value €266,680) - Shortages noted in the Netherlands (4 pallets) - Theft - Compensation of the principal by the co-insurers of the goods to the tune of €95,665 - Recourse of the insurers (and of the principal for the excess) against the fret forwarder guaranteeing the carrier - Inexcusable fault of the carrier (yes) - CMR article 29 referring to L. 133-8 CMR article 29 referring to L. 133-8 of the Commercial Code - Parking paid for but insufficiently secured - Absence of additional measures against theft such as padlocks - Personal fault of the commission agent for insufficient instructions (no) - Fault of the principal for allegedly late loading (no) - CMR articles 23-4 and 27 - Reimbursement of the price of the carriage already paid and of the costs of the expert's report - Interest on the compensation at the rate of 5%

Sommaire :
Having sold 426 cases of cognac to its Chinese subsidiary, the client (Hennessy) entrusted the France-China transport to afret forwarder, who subcontracted the pre-carriage between France and the Netherlands (Schipol airport) to a Belgian carrier, who had part of the goods stolen when the vehicle was parked in a paying petrol station.
The carrier who was the victim of the theft cannot claim from the principal that the goods were loaded late, half an hour before the expiry of the agreed time slot between 8 a.m. and 11 a.m.
The carrier cannot furthermore invoke the fault of the commission agent who gave insufficient instructions since the latter had specified in the "instructions" section of the transport document, in very visible characters: "26 pallets of cognac / Please secure the pallets well. Beware of theft", the name of the client also being mentioned on the document.
By parking in a paying petrol station car park without a camera, unguarded and unfenced but with a barrier at the entrance, the carrier committed an inexcusable fault when :
- he was aware of the nature of the goods;
- that his attention had been particularly drawn to the risks of theft;
- that the two drivers did not bother to check the security of the car park, which cannot be deduced from its paying nature alone;
- that they did not take any additional security measures such as padlocks.
In view of the frequency of thefts from car parks, the carrier was aware of the probability of damage and recklessly accepted the risk without good reason.

Given the inexcusable nature of the fault, no limitation of compensation is enforceable against the client. As the loss amounts to €100,665, of which €95,665 was paid by the insurers of the goods, the principal is entitled to obtain reimbursement of his excess, up to €5,000.
Moreover, in application of articles 23-4 and 27 of the CMR, even if the amicable expertise to determine the circumstances of the theft is not a judicial expertise, the principal can also claim reimbursement of this expense, as well as reimbursement of the price of the transport paid to the freight forwarder and interest at 5% per annum from the date of the written claim to the carrier.

Référence :
Cour d'appel Bordeaux, 4e chambre civile,
18 mai 2022,
RG n°20/01521,
Sté Van Mieghem Logistics et autres / Cie XL Insurance Compagny ltd et autres
IDIT n°25303,
Bulletin des Transports et de la Logistique n°3881, 2022 p.331

Observation :

Auteur :
Frédéric Letacq