Court of Appeal PARIS
5 B

Public hearing on March 21, 2002

Decision No.: 2000/05210
President: Mr. HAND, Chamber President: Ms. Pézard; Advisor: Mr. Faucher decision appealed from: Judgement of 10/01/2000 by the Commercial Court of PARIS 1st Ch RG No: 1997 / 49955 appellant and respondent: Company LOTR APPELLANT: The COMPANY NATIONAL RAILWAY FRENCH “SNCF” RESPONDENT: COMPANY HDI HALFPLICHTVERBAND der Deutschen Industrie SNCF SERNAM COURIER SERVICE NATIONAL RESPONDENT: CGU INSURANCE COMPANY BROKERAGE





COMPOSITION OF THE COURT
In the discussion and the deliberation
Mr. HAND: President
Mrs. Pézard: Chamber President
Mr. Faucher: Advisor DEBATES at the public hearing of February 8, 2002 CLERK In the discussions and the judgment Madame LAISSAC OFF Contradictory pronounced publicly by Mr. MAIN, President, who signed the minute with Mrs. LAISSAC, Clerk of the Court is an appeal by the SAS LOTR, transport company, the SNCF and the contradictory judgments delivered on 10 January 2000 by the Court of Commerce in Paris, which in the dispute with the company HALFPLICHTVERBAND VAG der Deutschen Industrie (HDI) and the Commercial Union Assurance Company, a: – said the company HDI subrogated to the rights of society and therefore admissible COMPUTER ESCOM its action, – said the guarantee call admissible formed by the SNCF SERNAM against society LOTR, – said that as serious misconduct by the carrier, the company LOTR, as the freight, the SNCF SERNAM have committed their responsibility – jointly condemned the company and the company SNCF LOTR SERNAM to pay the company the sum of HDI 2,106,463 francs plus interest at the legal rate as of March 28, 1997 and the capitalization of these accordance with the provisions of section 1154 of the Civil Code – ordered the company to ensure COMMERCIAL UNION company LOTR up to the sum of 245,000 francs for the amount of the ceiling of the franchise contract declined 30% for non-compliance with clause theft – dismissed all other claims, – severally condemned the company and society LOTR SERNAM SNCF to pay 30,000 francs HDI company pursuant to section 700 of the new Code of Civil Procedure – the company rejected his application for HDI reimbursement of translations does not justify in the context of the dispute – the company jointly condemned LOTR and SNCF SERNAM expense includes the cost of expertise. In his final conclusions of 28 January 2000 the company argued LOTR: – that responsible by SNCF’s freight shipped by the company to the company EURO COMPUTER CORA in Saran, whole road was, with that good with computers, stolen on the night of 30 March to 1 April 1996 when he was parked outside the home of his driver on a gated and guarded SONACOTRA a home, – that due to her having had his attention drawn to the value of the goods, the “lightness” that he is alleged in For parking conditions does not constitute gross negligence – that if the SNCF, freight forwarder, said the value of the goods, would have prevented his driver immediately so that steps be taken to safeguard the goods – that the station could not ignore the contents of the package and had to provide all the instructions of the sender, information necessary for the performance of the contract, which was not the case here , so that the presumption of liability against her is destroyed because of negligence on the station, – there is no need to split the debt between co-defendants in that IT is not responsible for the disaster, – that it was wrong for the Tribunal ordered the company Commercial Union Assurance to guarantee up to the sum of 245,000 francs corresponding to the ceiling of a franchise contract declined 30% for non-compliance Clause flight when she committed no misconduct and that, ignoring the value of the goods transported, it did not ensure beyond what was agreed. LOTR The company therefore requests the Court to reverse the decision and referred- primarily, to dismiss the company HDI its requests, the hold harmless, declared unfounded the appeal filed by the SNCF and condemn it to set the all of the demands of society HDI, to support any conviction guarantee of its gross negligence, which is causing the damage and to pay, jointly and severally with the company HDI, 50,000 francs, or 7622.45 euros pursuant to section 700 of the new Code of Civil Procedure – in the alternative, to order the station to meet all convictions against him, to pay him 50,000 francs, or 7622.45 euros, under unrecoverable expenses and failing to condemn the company TOS BROKERAGE, new name of the Commercial Union Assurance Company, to meet all convictions and to pay him 50,000 francs, or 7622.45 euros, under section 700 the new Code of Civil Procedure – in any case, to say the unfounded claims made ​​against him and to condemn either the SNCF, the company is CGU BROKERAGE costs. In his final writings of 30 January 2002 the company TOS BROKERAGE supports: – it is for the Court to determine the reality of subrogation claimed by the company HDI visa section L. 121-12 of the Insurance Code, including indemnification obligations under the insurance contract – the limitation period of one month from the main assignment as enacted by section 108 of the Commercial Code, Today L. 133-6 of the new Commercial Code, for each action for recovery was not observed by the station which, moreover, can not see “much as a subsidiary” of a division of debt between co-debtors since As a freight forwarder is automatically liable for the whole, both for misconduct in his capacity as responsible for the acts of its substituted, – whereas, in any event, to confirm the decision of the Court who has applied the provisions limiting its liability towards its insured, the company LOTR. BROKERAGE The Company Terms ds request at the Court: – On the inadmissibility, * to rule of law that the admissibility of the request made ​​by HDI and the company, if the Court said this request inadmissible, to condemn this society to restore the amounts paid under the provisional execution, or 245,000 francs, or 37,350 euros in principal plus interest, * set aside the judgments in he said that the guarantee call made ​​by the station against the company LOTR was admissible and therefore inadmissible to declare the appeal as collateral – On the merits, the SNCF to dismiss its appeal, that the responsibility for it is fully engaged as a freight forwarder and rule of law that the liability of the company LOTR, – in any case to confirm the decision appealed from in that it limit its guarantee to the sum of 245,000 francs, or 37,350 euros, to dismiss the company SNCF and LOTR all their demands “more or contrary” formed against him and the company jointly and severally liable HDI and SNCF to pay him 10,000 euro in accordance with Article 700 of the new Code of Civil Procedure. In his final conclusions of 30 January 2002 SNCF argued: – that if, under its contract with the sender, SERNAM’s duty ” verify the nature, condition and quality of the goods prior to discharge the carrier “, it did not necessarily know their value, which does not appear on the packing slip and did not to be communicated to the carrier – the latter, regardless of the value of the consignment, must take every precaution to ensure safety, which was not the case here as noted by the expert, – that, unless by it to justify regulations which it relies to invoke the benefit of the provisions of Article L. 121-12 Insurance Code, the company HDI must fail of its requests, – if it is liable as a commission, it is appropriate, given the gross negligence of its driver, to condemn the company and its insurer to LOTR the face free of all convictions can be imposed against him – that the company TOS BROKERAGE can not claim that its third party claim is prescribed under the provisions of Article L. 133-6 paragraph 4 of the Commercial Code, since this call as security was not formed by summons but by way of conclusions against a person already party to the litigation, the company LOTR was assigned in the same to note that it issued – if the appeal is inadmissible as collateral, and is entitled to request the division of debt between co-debtors. SNCF therefore requests the Court to overturn the ruling referred to judge its shall not be liable for the damage suffered by the company ESCOM COMPUTER, the discharge of any conviction and order the company to reimburse the HDI sum of 323,219.89 euros (2,120,183.51 francs) paid under provisional execution. In the alternative she asks that the company LOTR, and its insurer, are condemned to face free of any conviction. A further alternative SNCF application to determine the contribution of each of the debtors to indemnification the damage. It also concludes with the conviction of the company LOTR, in addition to costs, to pay him 7622.45 euros in accordance with Article 700 of the new Code of Civil Procedure. In his unique writings of October 23, 2001 the company HDI supports: – that, having, as it warrants, compensated its insured, the company ESCOM COMPUTER, pursuant to Article 2 of the insurance policy with her, she is legally subrogated to the rights of its insured , – the SNCF, who knew the nature and value of the goods transported and should inform their substituted, has, in his capacity as freight forwarder, incurred liability because of his misconduct and gross negligence on the LOTR society, – that the company whose driver was seriously breached its obligations by parking his truck one weekend in a parking lot open, isolated and unattended, can not argue that she was not informed of the value and nature of the goods entrusted to it, while his driver has himself affixed the words “computer products” on his track and his representative said the flight “31 pallets of computer equipment” – as the starting point of statutory interest is 26 June 1996, when the subrogation – that justifies his translation costs in the amount of 11,818.80 francs. The company HDI therefore asks the Court to confirm the decision in that it has jointly condemned the SNCF and the company LOTR, in addition to costs, including expert fees, to pay him the sum of 2,106,463 francs with interest at the legal rate and capitalization of these, and than 30,000 francs under Article 700 of the new Code of Civil Procedure. It requires in addition to the Court, “by correcting and adding,” to say that the damages awarded will bear interest at the legal rate as of June 26, 1996 and order the appellants to pay the translation costs amounting to 11,818, 80 francs and the settlement of compensation of 6,000 euros in accordance with Article 700 of the new Code of Civil Procedure. * * * ABOUT THIS: Considering that the company ESCOM COMPUTER commissioned a freight forwarder, SNCF NATIONAL SERVICE COURIER SERNAM, route of Eckolsheim (67) in Saran (45) 455 packages of computers, That this commission has entrusted the transport company whose entire LOTR road with this merchandise was stolen on the night of Sunday, March 31 to Monday 1st April 1996 when he was stationed for the duration of the weekend in the parking lot of the home SONACOTRA of Saint-Jean-la-Ruelle which remained his driver, that, following the disaster, the company DER HALFPLICHTVERBAND VAG Deutschen Industrie, hereinafter HDI, insurance company claiming to be subrogated to the rights of the company ESCOM COMPUTER, was assigned the station and the company LOTR before the Commercial Court of Paris for the repair of the injury; Qu ‘during the procedure society LOTR and SNCF, for the first, is assigned the Commercial Union Assurance Company to be secured convictions can be imposed on him then, for the second, sought an order of the carrier and its insurer to the list of convictions that may be imposed against him; 1 – Admissibility of applications: A / The admissibility of the claims made ​​by the company HDI: Whereas under the first paragraph of Article L. 121-12 of the Insurance Code: “An insurer who has paid the insurance indemnity is subrogated to the extent of the indemnity, the rights and actions of the insured against third parties who, by their result, caused the injury giving rise to the liability of the insurer “; Considering the case that the company pays HDI in discussions with their translation: – a copy of the insurance policy, underwritten by it February 21, 1995 by the company ESCOM COMPUTER, owner of the equipment was stolen during the transport operation, provides in Article 2 that “are covered worldwide, …, business risk of the policyholder, for his own behalf or on behalf of others (regardless of the transfer of risk) on … manufactured goods and tradable items … for the subscriber: all transport …”; – trade confirmations transfer bank justifying the regulation, the company HDI, a portion of the loss of up to DM 300,000 + 231,993.92 DM – a fax from JASPERS INDUSTRY Assekuranz, broker of the company ESCOM COMPUTER, COMPUTER informing the company ESCOM July 8, 1996 that the balance of its loss or DM 87,306.20, it was settled by offsetting unpaid premiums described accurately; Considering these elements, not seriously challenged, which it follows that under the Police Insurance underwritten by it, the company ESCOM COMPUTER has been compensated for its loss in the amount of 2,106,463 francs, justify the company HDI subrogation to the rights and actions of its insured against the SNCF and society LOTR, B / Admissibility of claims made ​​by the station against the company LOTR and its insurer, CGU BROKERAGE society, the new name of the company COMMERCIAL UNION INSURANCE: Considering that in the penultimate paragraph of Article L. 133-6 of the new Commercial Code: “The time to bring each of recourse is one month. This requirement only runs from the day of the exercise of the action against the guarantor”; Considering that in this case, as the result of the decision referred not criticized on this point, the SNCF, which was assigned by the company HDI March 28, 1997, brought his claim against the company and its insurer LOTR through conclusions of 14 October 1998 So more than a month after his arrest, so that its warranty claims filed against the valet and society TOS BROKERAGE prescribed; that the fact that the company HDI have been assigned the carrier at the same time that the commission did not relieve it of the timeliness of one month provided by the above, 2 – On the merit of applications: A / The main claim of the company HDI against the station and society LOTR: Considering the one hand that the debtor of an obligation of result, land freight carrier is presumed liable for breach of his obligation to deliver and can not be relieved of liability in cases is a case of force majeure or a vice of the thing, or because of the sender, the other that the freight is the guarantor for the services performed by the carrier it has chosen ; Considering that in this case, following the flight mentioned above, delivery could take place, the defendants invoke nor the fact of the company ESCOM COMPUTER, not a vice of the thing carried, or a force majeure, they would be even more inappropriate to invoke this ground for exemption from liability, as will be further developed later, the flight is the result of a lack of LOTR society; Considering soon because, due to the responsibilities of society and LOTR SNCF has chosen as the carrier, the company HDI, subrogated to the rights of the company ESCOM COMPUTER, is entitled to obtain a conviction in solidum of the SNCF LOTR and society to pay him the sum of 2,106,463 francs, not seriously challenged the compensation awarded company ESCOM COMPUTER with interest at the legal rate of subrogation, against the documents submitted, s’ is found made ​​July 11, 1996 and the capitalization of these as of November 8, 1999, date of the finding out the request; Considering that it is fair to allocate the company HDI an additional allowance of 4000 euros on the basis section 700 of the new Code of Civil Procedure, which sum must be added that of 11,818.80 francs because of translation costs, which, supported by a bill “BT INTERNATIONAL TRANSLATIONS” from June 16, 1999, were incurred by the respondent as a result of this case, B / Out of warranty claims filed by the company LOTR against the station and its insurer, CGU BROKERAGE society: Considering that to be guaranteed by the SNCF convictions pronounced against him alleges that the company LOTR the freight forwarder for not having informed of the nature and value of the goods transported; Considering, however, that this assertion is belied by the employees of the company ESCOM and COMPUTER SNCF SERNAM attesting informing the driver of the company LOTR on the risk inherent in the nature of the load, namely computers, Be it driver, who had himself drafted the bill of lading signed by him with the representative of commission, said in the box for the “description of the goods”: “COMPUTER products”;What if he claims to have understood that they were products, such as “consumables” for computers, this circumstances does not justify in any way the casualness with which the goods have been processed; What effect, regardless of any loading time, the company has LOTR, when the truck arrives at its warehouse on March 30, 1996 1 hour 30 am, asked his driver failing loading dock available to go home with its cargo and return to the Monday, the day designated for delivery of the goods in Saran, That, in view of the report expertise, the vehicle was parked for the weekend in the parking lot where he was flown with the goods transported; Considering that, regardless of the nature of the load in question, the carrier responsible for it, had to take every precaution to ensure the backup before delivery, which he failed to do that so, while it does not prove the existence of a fault of his contractual partner, the company happens to be LOTR solely responsible for the disaster occurred and must be dismissed its claim against the SNCF; Considering, however, that, having agreed with the Commercial Union Assurance Company a policy to this effect, the carrier is entitled to be indemnified against that the contractual liability incurred as such, however, that this guarantee is capped at 350,000 francs for a national transport (Article 2-1 of the contract) and packed in cases of theft of goods in a parking lot over 24 hours, the observance of certain precautions, such as a “permanent guard” of the vehicle or surrender “in a closed, locked or guarded” (Article 5-4 of Annex 1 of the contract) that, because of Failure to respect these obligations, the company is contractually Terms BROKERAGE entitled to claim an exemption of 30% deducted from the ceiling agreed and therefore limit its guarantee to 245,000 francs, without facing the fact, for LOTR society, ignorance of the value of the goods transported while this circumstance relating to the carrier that did not stop concerned, has no bearing on the implementation of the policy, it should therefore confirm this point criticized the ruling and order the company to pay CGU BROKERAGE its insured a sum of 245,000 francs, with interest at the legal rate from the date of summons issued June 3, 1997; Considering that it is not unfair to leave the responsibility of the appellants and the company TOS BROKERAGE the amount of their unrecoverable costs; FOR THESE REASONS: Confirms the ruling referred in its provisions are not contrary to the above, the reform and the remainder, acting again: Sets the starting point of the default interest due to the company HDI to 11 July 1996 and the capitalization of interest requested by it to the November 8, 1999, condemns in solidum SNCF LOTR and society, in addition to the payment of the sum of 321,128.21 euros (2.106.46 CHF), payable to the company HDI an additional allowance of 4,000 euros on the basis of Article 700 of the new Code of Civil Procedure and the sum of 1801.76 euros for translation costs, declared inadmissible the application collateral formed by SNCF against the company and its insurer LOTR, LOTR Rejects society of its warranty claims filed against the station, condemns society BROKERAGE TOS to pay the company the sum LOTR of 37,350.01 euros (245,000 dollars) plus interest at the legal rate as of June 3, 1997, dismissed the parts of other applications, condemns the appellants jointly and severally and the company TOS BROKERAGE, the latter for 1 / 8 th, at the expense trial and appeal, which include expert fees, and allows the CPS Dubosq PELLERIN, attorney for the benefit of the provisions of Article 699 of the new Code of Civil Procedure. Clerk President.

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