Article 34 Loi numéro 2009 – 1503 du 8 décembre 2009 « relative à l’organisation et à la régulation des transports ferroviaires et portant diverses dispositions relatives aux transports. » might help to limit the many debates in courts concerning the gross negligence.
As you might know, the gross negligence of the carrier allows the sender to turn down the limitations of liability, limitations which are very favourable to the carrier, provided in model contracts and in the Convention on the contract for the international carriage of goods by road of 19.05.1956.
As far as the limitations of liability, included in model contracts, are concerned, the most important one are the following:
-In the model contract for sub-contractors:
One characterizes the whole consignment lower than 3t => liability limited to 23euros per kilo and 750euros per package
For whole consignment superior to 3t => liability is limited to 14euros per kilo and 2300euros per ton
For carriage by tank, the tank model contract provides for a limitation up to 3euros per kilo or liter and 55 OOO euros per whole consignment
For carriage of perishable goods the model contract provides for a limitation of 23euros per kilo and 750euros per whole consignment.
Over 3t whole consignment => limitation is 14euros per kilo and 4000 euros per ton
Model contracts were established by decrees providing (depending of the mean of transport) for limitations of liability when there is no contrary agreement between the parties. Model contracts take their authority from a legal provision but only apply when there is no agreement between the parties. The model contract that gave rise to debates the most often in courts is the one that applies to public road transport executed by subcontractors (from decree n° 2003-1295, 26//12/2003).
Article 34 part 2 adds a new article 133-8 of the code de commerce which establishes:
“The sole wrongful act or neglect (faute inexcusable) of the carrier is equivalent to willful misrepresentation. The willful misconduct which implies the consciousness of the likely damage and its rash acceptance without valid reason, is a “faute inexcusable”. Any contrary clause is an unfair clause”.
This text was unanimously interpreted in France to limit the use of the “faute lourde”.
Nonetheless it is not sure that the debate will be really reduced since the legal debate changed and limitations of liability may be turned down according another basis, the notion of “cause”.
In french law, a contract is valid by the sole exchange of the consent, with an agreement on the type of good and its price. Unless there is a retention of title clause, the good is immediately delivered even though the subject has not been delivered yet.
There is nonetheless a notion necessary to the formation of contracts in french law which is the cause (1108 of the Civil code).
According to article 1108, a contract requires a cause which can be defined as “the decisive reason” (Cass. Civ 1ère 6/10/1959 Dalloz 1960, 515) or “the decisive reason, which the vendee would not have contracted without” (Cass. Civ. 12/07/1989).
In a few words:
On the basis of article 1131 of the Civil code, according to which the duty without cause is without any effect, the supreme court (Cour de Cassation) decided that, when there is a violation of one of the main contractual duty, the exemption clause, which contradicts the significance of the legal agreement, is an unfair clause. Thus, a specialist of quick deliveries, guaranteeing the reliability and the speed of his service on time is failing to his contractual duty in case of delay (Cass. Com 22/10/1996 n°1946:RJDA 1/97 n°6) or when he fails to deliver the goods because he has lost it while driving (Cass. Com 30/05/2006 n°706 RJDA 10/06 n° 21)
As far as the art. 132-8 code de commerce sosaid loi Gayssot (n° 98-69 6/0201998) is concerned, it allows the carrier to sue on the basis of two different direct actions, the first one on basis of the loi n° 75-1334 31/12/1975, law on subcontracting; and the second one on basis of article L132 – 8 of the Code de commerce (formerly article 101 of the same code).
Article 11 of the loi Gayssot expressly binds transport operations to the provisions of the 31/12/1975 law,
The aim of the lawmaker is perfectly clear: it is to allow the carrier to get the payment of his debt anyways, by forcing –if need be – the sender, and even the consignee, to pay twice.
Article L132 – 8 is obviously more favourable to the carrier than the classic action provided by the 1975 law, since it allows him to perceive the payment of his invoices even if the sender has already paid the carrier.
Thus the subcontractor, who does not have to obtain the approval of the sender (donneur d’ordre) as it was the case as part of the 1975 law on subcontracting in order to be able to take legal action against him; one must nonetheless qualify this approach: the lawmaker allows the carrier to claim the payment of his invoices to both the sender and the consignee, even in the case where these did not hear about him ever, and even though they have already paid their carrier. This situation gave rise to many debates not to mention the fluctuations of the jurisprudence to limit the extent of this action – which was turned down for a while, but then brought back (Cass. Com. 13/06/2006, n° 781).
Lively debates still exist today in courts, senders and consignees try to avoid the consequences of this direct action by denying their title of sender or consignee. The Cour de cassation established, in a recent judgment (15/04/2008, n° 07-11398 recueil Dalloz 2008 n° 20 page 1343) that: “even though the title of “consignee” is not mentioned on the consignment note, the person who receives the goods and accepts it without indicating whether or not he acts for a principal, is guarantor of the payment of the carriage by the carrier…”. Thus it is not enough to be mentioned on the consigned not as a consignee. Even with the lack of this mention on the consigned note, a firm which had received goods, had to pay invoices for the carriage of those goods. The Cour de cassation established that: “ by ruling so, without searching whether the aforementioned firm had indicated acting as a representative of the firm D, the Cour d’appel has not legally justified its decision in behalf of article 132-8 of the Code de commerce”. Thus the Cour de cassation seems to close the doors to the stratagems of the consignee who eventually would like to avoid the provisions of article L132-8 of the code de commerce. The material delivery of goods implies the title of “consignee” unless another person accepts and claims that title.
One can wonder whether a foreign carrier may also take legal action against the sender or against the consignee who he is not bound by a contract with.
The convention “Brussels 1” (22/12/2000) adds some qualifying statements. Thus one can find in article 5 concerning the carriage contract
1. The law which applies to a carriage of goods contract is the one of the country which the carrier is usually resident in, as long as the places of taking over and delivery, or the usual residence of the sender is also located in this country. If these conditions are not satisfied, the law of the country where the delivery takes place shall apply.
Thus this direct action of the subcontractor against the sender or the consignee may mainly only be beneficial to the French carrier
One can wonder whether the aforementioned provisions of article 34, which establishes that the clauses of model contracts apply to contracts of international carriage, would not allow the carrier to take advantage of this action in direct payment which is recalled in article 10 of the subcontracting model contract.
The discussion is not that easy since the courts limit the benefit of this direct action to the person who materially made the transport (Cassation 22.01.2008).
May 13 th, 2005
The french penal law plays an important role in transport activities. This role consists obviously in the regulation of driving upon public roads. In addition to the provisions of the national rules applicable to every vehicle, European provisions issued from European rules 3820 and 3821 1985 (decret n° 86-1130 of 17 October 1986 related to the application of european rules modified by decret n° 96-1082 of 12 December 1996.)
Most interesting are the specific criminal provisions applicable to the public transport of merchandises as the executive order law 2000-916 from September 2000 which indicates the amount of penalties.
A european rule of 24 february 2005 (governements had to apply it by Marsh 22), concerning the application of the principle of general enforcement in every country throughout Europ of every fine and penalty issued by every court on one condition, that the traffic offender, I mean the guilty driver may have the opportunity to contest the penalty in front of a judge ( details are to be found in the european Union official journal JOUE n° L 76, of 22 Marsh 2005, p.18).
In addition to these provisions, the roadcarrier has to abide by the penal code «Code penal» and the Highway code, our «Code de la route».
All these provisions are to be found on the internet at «legifrance.gouv.fr».
At first, you have to know that the french penal judge will generally think that he is legally competent to deal with most international cases. He has almost an omnicompetence and it is a principle now firmly established in French case law : the judge is competent not only as regards all the offences occuring in France but also as regards some of them, no matter the nationality of the parties (plaintiff, defendant).
The foreign sender could be summoned in front of a french judge in application of Article 121-1 to 121- 5 Code penal in application of the so called « co-responsabilité pénale » which I could try to translate in english as a joint-liability of the sender and the carrier.
We have now in Europe, general rules for the summons in front of a judge and notification of litigations, or judgement but they are available only in civil and commercial litigations (European rules of 2000 available in France through Decret nº 2002-1436 of December 2002).
It's common to say that British people have an accusatory procedure while in France and in most of continental Europe, we have an inquisitorial procedure. It is evolving. You have probably heard of the new law on the «procedure sur reconnaissance préalable de responsabilité ». Article 495-1 to 16 Penal Code ( Loi nº 2004-204 of Marsh 9 2004 ) which is a kind of guilty pleading. It worries both judges and lawyers in France where it is felt as a cheap and dangerous procedure. A defendant can be summoned in front of a french judge for a penal hearing by the procecutor in the name of the state ( most of the cases ) but also directly by the plaintiff. A prior examination of the case by an investigating judge in preparation for the trial is just a possibility when there is a serious offence but it is obligatory when the fact may be classified as a crime. You have perhaps also heard of the last laws in France which have generally aggravated penalties. The so-called « loi Perben II has aggravated penalties in matter of traffic offences (Décret of 30 Marsh 2005, published in the « Journal officiel » of 6 April, to enforce the provisions of the law of 9 Mars 2004 related to driving licences.
Specially in cases of driving offences, you' ll have to know that the time limit to contest a judgment in penal matters is relatively short. It's only a ten day time's limit after the judgement (« jugement correctionnel ») This time's limit will be a little longer if the plaintiff lives abroad.
Among the general principles which rule the French law, we have the presumption of innocence (it is clear enough), the principle of the necessity to act intentionally, willingly to be exposed to a penal punishment with two important exceptions
In case of driving offences when the driver is just exposed to a fine (and there are five categries of fines -1 to 5, the most serious and biggest fine being the fifth), the intention does not matter.
There are two types of sanctions :
the penalties and the administrative sanctions.
The penalties
what we call « contraventions » in France are breaches divided into five classes according to the severity of the infringement.
Most of the first four class breaches can be the subject of a lump-sum settlement.
It is increased if the payment takes place beyond 30 days.
It is lowered for 2nd, 3rd and 4th class breaches of the road law, except for parking infringements, and they are punished only by a fine if the payment takes place within three days after the date when the infringement occured, or when the infringement notice is sent later to the person concerned, within the seven days following this notification.
In the practice, it results in :
- a payment in cash ;
- a payment by cheque ;
- or the purchase of a receipt-stamp which is stuck on a letter-card from a counterfoil book, on which the infringement is ascertained, and the forwarding of the letter-card to the authority who drew up the police report.
The rights of the defendant are protected, since the infringer always has the possibility, before paying, to file a petition for exemption which is send to the Prosecuting Magistrate.
The committed infringement will then be judged the same way as all those which cannot be the subject to a lump-sum settlement.
The administrative sanctions :
they are not properly speaking penal sanctions but you have to know that in each region there is a Committee for Administrative Sanctions (CSA). The chairman is a magistrate and the Committee members are representatives of the Government, the industry, the salaried employees and the users.
They propose administrative sanctions to the Prefect against these companies.
The Prefect can withdraw the administrative transport documents, either temporarily or permanently, and deliver prohibition sentences on the vehicles.
These actions are provided for by Decree n° 85-891 of 16 August 1985, as amended, on passenger urban transport and passenger non urban road transport, and by Decree n° 99-752 of 30 August 1999 on road haulage.
What we call « délits » are offences. They are more serious infringements. The most frequently recorded offences are related to control hindrance, tachograph fraud, speed-limiting device fraud and the illegal practice of the profession. The judge will have to scheck these serious offenses if the offender acted willingly but in some cases and specially in driving cases the judge will legally consider that the risk was so obvious that the defendant should have been conscious as a matter of fact, the judge will consider the result to be the same as if the defendant didn t really want to cause the damages (it will be the case for example if you have too much appreciated a burgundy wine before driving or if you drive far above the speed limitations). You could be treated and punished as a criminal in front of the crown court «Cour d'Assise» in case of dead of the victim.
The main penal provisions are
Penal Code
Article 121-3
(Law No. 96-393 of 13 Mai 1996, art. 1 Official Journal of 14 Mai 1996)
(Law No. 2000-647 of 10 July 2000, art. 1 Official Journal of 11 July 2000)
There is no crime or offence without intention to commit it. In every case that the law foresees, it is an offence to put another person deliberately in danger. It is equally an offence if it falls within the scope of the law, to lack prudence, to act negligently by or to lapse from an obligation of prudence or security foreseen by the law, if it is established that the author has not been careful enough taken into account the nature of his missions or functions, his competences as well as his power or the means he has at his disposal.
In the case stated by the previous paragraph, the physical persons that have not directly caused the damage but that created a situation which made possible the realisation of the damage or contributed to its creation or failed to take measures avoiding it, are responsible if it is established that they have intentionally violated either a particular obligation of prudence or security foreseen by the law, or committed a specific fault exposing another to a risk of a particular seriousness that they could not have ignored.
There is no contravention in the case of force majeure (act of God).
Article 121-6
In the sense of article 121-7, the accomplice of the infraction will be punished like the author.
Article 121-7
The person that has knowingly facilitated the preparation or completion of a crime or an offence by means of help or assistance, is considered as an accomplice of the crime or offence committed. A person is equally regarded as accomplice to the commitment of an infraction ih he has provoked it or given instructions for its commitment by gift, promise, threat, order, exploitation of authority or power.
Article 223-1
(Executive order law No. 2000-916 of 19 September 2000, art.3 Official Journal of 22 September 2000, in force as of 1 of January 2002)
The fact of exposing another directly to an immediate risk of death or injury, which is of such a nature that it leads to mutilation or permanent disability, by violating with obvious intention a particular obligation of security or prudence imposed by the law is punished with imprisonment of one year and a fine of 15 000 Euros.
The ordering party bears the penal risk of the carrier that he orders to perform the transport. The instructions given to the carrier can lead to his conviction for incitement to violate the applicable law in the area of authorized loads (article R 121-5 Highway Code), driving times, etc. Moreover, the broad scope of estimation admitted to the judge, allows him not to cleave to the apparent form of the signed convention but to convict the ordering party (illicit work) according to the executive order law of 23 July 1992, that stipulates a penal co-responsibility of the ordering party and the carrier. (the joint liability)
The ordering party who is aware of the law and gives instructions that are incompatible with the regulations, commits an infraction which is an offence of the 5th category subject to a 750 Euro fine.
Every firm performing terrestrial transports (for its own profit or on behalf of another one) or loads/unloads dangerous goods within the activity of transport in the whole or in parts of the European Union, must have a security advisor ( order in Council dating the 17 December 1998, resulting from a 1996 directive of the European Union from ).
The advisor and the employer take the risk of being considered «co-authors» in case of the intentional violation of an obligation of prudence and security (article L 121-3 Penal Code).
In the Highway Code, you will find the provisions of Article 121-1 to 5
Article R 121-5
Every sender, agent, freighter, commissioner, consignee or other who issues orders, is aware of the law and gives instructions to a carrier of goods or to his superior that are incompatible with the following dispositions, article 6 of the European Council order (CEE) No. 3820/85 of 20 December 1985, regarding the maximum duration of the daily length of a trip; the second paragraph of article 7 of the executive order law of 26 January1983, regarding the working hours in a company dealing with the carriage of goods by road regarding the maximum speed authorised by the present code ; the articles R 312-2, R 312-3 and R 312- 4 regarding the weight limits of the vehicle; the article R 433-1 to 433-3 regarding the exceptional transports of goods, of engines or vehicles and the weight of the vehicle and the dimensions of the load, is punished with a fine foreseen for offences of the 5th category...
The evaluation of the intentional character of this infraction, prescribed by the law, is a source of great uncertainty. The examination of the practical cases shows that the ordering party is sometimes presumed to know the applicable transport regulations.
Attention is to be paid to the fact that it has been decided (Cour de Cassation (Supreme Court), social chamber, 13 November 2003, journal «Les annonces de la Seine» of 29 March 2004) that the introduction of an incentive bonus for the drivers is an incitement to the non-respect of the regulations related to the maximum driving hours.
Furthemore the violation of speed limits is heavily penalised (up to three years prison sentence and a maximum fine of 3, 750 Euros in case of recurrence of more than 50 km/h not to mention the complementary penalties: suspension of the driving permission, confiscation of the vehicle, probationary period, etc.! (It is to be reminded that the violation of speed limits below 50 km/h is punished with a 750 Euro fine and the withdrawal of points on the driving licence).
On the other hand it has been judged that leasing contracts of lorries with drivers stand for «dissipation of the link of subordination» and must therefore not be requalified as employment contracts ( Cour d'Appel (court of Appeal) Bordeaux, 27 of January 2004, journal «Transport Actualités ».
As you probably know, the penal proceedings in France is not submitted to a cross examination and it is said that a trial is inquisitorial because of the leading role of the judge who at the beginning of the trial asks for the identity of the defendant and tells him what are the facts. There is an exchange directly between the defendant and the judge who tries to guess the personality and the motivation of the defendant and what punishement will be appropriate. In a French Court, you will notice how very important is that stage in the trial. That stage for the issue of the trial, since sit leaves the pleading of the lawyer in most cases with a very subsidiary importance. It will probably be shocking for a British attorney but not so much for a british judge.
The specific criminal provisions applicable to the public transport of merchandises : the immobilisation or clamping of the vehicle.
The rest periods are prescribed by the executive order law No. 86-1130 of 17 October 1986, related to the application of the European Community legislation No. 3120/85 of 20 December 1985, and the harmonisation of certain social dispositions in the field of carriage of goods by road, as well as the law No. 3821/85 of 20 December 1985, dealing with controlling devices in the domain of the carriage of goods by road.
This executive order law has been modified by another one, the No. 96- 1082 of 12 December 1996.
In application of article L 325- 5 Highway Code, the document foreseen by article 26 from the law N° 95-96 dated on 1 februar 1995 or if the contract which does not abide by this law - i-e. the international carriage of goods by road, the well known convention of 19.May.1956 and is not in the truck and forwarded to the controller, there will be an immediate immobilisation of the truck if
1°) speed of the truck was over more 20 % than the legal limit, or
2°) the duration of the driving was more than 20 % than the daily limit, or
3°) the resting period was under 6 hours per day
You' ll find in Article L 325- 5 Highway Code the precision that the driving time or resting time in a foreign country will be taken into account.
If the officer in charge with the road controls discovers, on top of one of the three infractions, the absence of either the «log » duly filled out and signed by the driver or the consignment note of the CMR, the immediate immobilisation or clamping of the vehicle is prescribed.
This measure is stopped if the missing document is presented to the road control.
The log aims at putting in order the relations between the ordering party and the carrier that have been established on national territory (or non-resident carriers authorized for the execution of the cabotage) for national transport operations and the cabotage.
The international transports determined by the convention known as CMR are performed under the exclusive cover of the consignment note based on the CMR and the journey record is not required.
This log must always be kept. When the place and the time of the cargo's taking over are required, it makes it possible to establish at the time of control that the ordering party has given instructions wich are incompatible with the law related to driving hours which will lead to a joint conviction by a judge ,of the ordering party and the carrier .
There is an other situation where the vehicule is immobilised, it s when the foreign carrier has to pay a deposit.
The deposits to be paid
When the infringement committed is an offence or a breach which is not the subject of a lump-sum settlement on the spot, the driver of a non resident company has to pay a deposit, i-e an amount of money which isa guarantee for the settlement of the fine which will be set subsequently by the Court.
The amount of the deposit is provided for by Order of the Minister of Justice. For breaches, the amount is determined with accuracy. For offences, the amount is determined by the Public Prosecutor, within the limits of a minimum and a maximum defined by the Order. The Order of 19 December 2001 set the applicable amounts as of 1January 2002, as follows :
- 1st class - breaches : 11 €
- 2 nd class - breaches : 35 €
- 3rd class - breaches : 68 €
- 4th class - breaches : 135 €
- 5 th class - breaches : 750 €
If several breaches « contraventions » are recorded, the relevant deposits add up. If several offences are recorded, only one deposit has to be paid, and the rate of the offence which is incurred by the fine is the highest. The vehicule will be immobilised till the deposit is paid which is a real problem for foreigner. In this case the deposit was vainly attacked as a breach of equality between european carriers.
The penal provisions are so numerous and sometimes so incredibly complicated (you will need several pills against headaches to understand the number of hours that a carrier can drive on the roads of «douce France» but there is one hope left: though the creation of foreign magistrates in every country to facilitate the understanding and the forwarding of informations throughout Europ, and despite the cooperation of national judges, the instruction of a case in a foreign country is incredibly long and with a some luck there will be new election in France before the case is judged. According to a very old custom which was born in the times of Kings, and which our republic still bears and applies, the « new elected king » in this day of joy will render as an act of benevolence a decree which will forgive you all your faults: « the king is dead, long life to the king ! »
Thierry Hiblot
Avocat au Barreau de PARIS
Maître Thierry Hiblot, Avocat à la Cour de Paris
39, rue Bobillot - 75013 Paris, France
Tél : +33 (0)1.43.13.31.00 - Fax : +33 (0)1.43.13.31.13
Mail : thierry@hiblotavocat.com - Skype : hiblot.avocat
SIREN 382 762 904
