Fiche - Jurisprudence CMR

Numéro de la fiche : 42843

Pays : France

Thèmes : CMR (Transport routier international)
    Responsabilité du transporteur Cas d'exonération (art. 17 et 18) Manutention - Chargement - Arrimage - Déchargement (art. 17§4-c)

Date de la décision : 16/06/2022

Objet :
International road transport France / Italy by a Romanian carrier - Compressors and accessories - French instructing manufacturer - French freight forwarder - Transport carried out by a Romanian carrier - Road unit overturning during transport - Goods destroyed - Total loss (amount 83,809 77 euros) - Action for compensation by the French principal against the French freight forwarder, the Romanian carrier and their insurers -
1) Liability of the carrier (yes) – Proof of an excepted case (no)
2) Law applicable to the transport commission - Law of the service provider's country - Liability of the transport commissioner (yes) - Guarantor of his substitute (yes) - Condemnation in solidum
3) Action in guarantee of the forwarding agent against the carrier – Carrier having to guarantee the forwarding agent (yes) – Absence of personal fault of the forwarding agent

Sommaire :
1) The carrier is presumed responsible for the total loss of the goods unless it is demonstrated in particular that in view of the factual circumstances, the loss may have resulted from poor stowage of the goods in accordance with article 17.4 of the CMR. However, even if he maintains the existence of these circumstances, he does not provide proof of them. In addition, it will also be noted that the two expert reports do not mention any lack of securing of the goods. Consequently, in the absence of proof of an excepted case, the liability of the carrier will be retained.

2) Since the broker contract is a contract for the provision of services, article 4, 1, b of European regulation n°593/2008 of 17 June 2008 on the law applicable to contractual obligations known as Rome I designates as applicable law of the country in which the service provider has his habitual residence. In this case, the freight forwarder has its registered office in France so that French law is applicable.
Article 13 of the standard contract annexed to decree no. 2013-293 of 5 April 2013 approving the standard transport commission contract provides that the transport commissioner is presumed liable for damage resulting from transport, its organization and the performance of ancillary services and specific instructions. In this case, its liability is sought as guarantor due to its substitute, the carrier. The goods having completely perished during their transport, the responsibility of the freight forwarder is retained. Consequently, the freight forwarder is condemned in solidum with the carrier to pay damages and interest in compensation for the prejudice.

3) As no personal fault is held against the freight forwarder, the carrier and its insurer must guarantee the freight forwarder and its insurer against the penalties imposed on them.

Référence :
Cour d'appel de Paris, Pôle 5, chambre 5
16 juin 2022
RG n°21/08361
S.A. DANFOSS COMMERCIAL COMPRESSORS et autres c/ S.A.S.U. BBL TRANSPORT et autres
IDIT n°25342

Observation :
Previous decision: Judgment of March 18, 2021 of the Commercial Court of PARIS, RG n° 2021000143

Auteur :
IDIT