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INSTITUT DU DROIT INTERNATIONAL DES TRANSPORTS ET DE LA LOGISTIQUE INSTITUTE OF INTERNATIONAL TRANSPORT & LOGISTICS LAW. RESEARCH. TRAINING. INFORMATION. IRU Symposium – 21 February 2014. Intermediaries – Various Legal Situations The Case of France. Frédéric LETACQ.

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INSTITUT DU DROIT INTERNATIONAL DES TRANSPORTS

ET DE LA LOGISTIQUE

INSTITUTE OF INTERNATIONAL TRANSPORT &

LOGISTICS LAW

RESEARCH

TRAINING

INFORMATION

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IRU Symposium – 21 February 2014

Intermediaries – VariousLegal Situations

The Case of France

Frédéric LETACQ

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IRU Symposium – 21 February 2014

1- Intermediary Types & Functions

The carrier performs transport

The forwarder (“commissionnaire de transport”) organises  transport

The forwarding agent (“transitaire”) receives / forwards on

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IRU Symposium – 21 February 2014

Definitions: Forwarder (“commissionnaire de transport”)

Transport Code (L 1411-1):

Considered as forwarders: those who organise, under their responsibility and in their own name, the performance of a freight carriage operation by means of their choice on behalf of a principal.

Case Law:

The carriage assignment is the agreement through which the forwarder commits itself vis-à-vis the principal to perform on the latter’s behalf any legal acts necessary for the carriage. It is characterised not only by the freedom which the forwarder has to freely organise carriage by ways and means of its choice, in its own name and under its responsibility, but also by the fact that it relates to the whole carriage from start to finish.

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IRU Symposium – 21 February 2014

Legal elements defining the capacity as forwarder

  • Acts in its own name on behalf of the principal (as opposed to an agent)
  • Is an organiser and does not mainly perform physical services (as opposed to the carrier or handler)
  • Is free to choose ways and means and resorts to substitutes

(fundamental criterion)

In return for this freedom of action => strict liability

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IRU Symposium – 21 February 2014

Definitions: Auxiliaries – Forwarding Agents

Transport Code (L 1411-1):

Considered as transport auxiliaries: those who contribute to the transport operation without actually performing it or providing the means to perform it.

Forwarding Agent:

Legal representative – the forwarding agent’s functions are defined by its assignment, and usually restricted to receiving, warehousing, re-sending and administration (port passage). Forwarding agents may also organise, monitor and coordinate transport operations and book freight, container filling or emptying from carriers. They act on behalf of and in their principal’s name (≠ forwarder)

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IRU Symposium – 21 February 2014

2- Rules of Admission to the Occupation

Regulated Occupations:

Carrier / Removalfirm/

Truck rentalwith driver=> YES

Forwarder=> YES

Agent - forwarding agent => NO / Freedom of tradedoes not requireanyspecific registration

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IRU Symposium – 21 February 2014

3- Contractual Framework

System of contractsunder French law

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Forwarder

Transport assignment contracts and contracts of carriage

Transport assignment contract

Governed by:

National law

Commercial / Transport Codes

Standard assignment contract

Contracts of carriage

Governed by:

Standard contracts; CMR; Brussels Convention; CIM Uniform Rules...

Goods flow

Contractual relationships

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IRU Symposium – 21 February 2014

Benefits of the “transport assignment” standard contract

  • Provides a legal framework for relationships between the forwarder and the principal
  • Restricts the forwarder’s personal liability (proof of wrongdoing required for personal liability to be involved)
  • Instates ceilings to automatic compensation
  • Instates periods of notice in case of breach of relations

Caution! As with any standard contract, the provisions of the assignment standard contract only apply unless otherwise agreed in writing between the parties

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IRU Symposium – 21 February 2014

Admissibility of Actions

Action for contractual liability:

  • Consignor / Consignee against the carrier => YES
  • Consignor / Consignee against the forwarder => YES
  • Shipping contractor against the forwarding agent => YES (commissioning rules; the shipping principal may also take action against the sub-contractor, Civil Code Art 1994)
  • Non-contracting consignee against the forwarding agent => NO (no privity of contract)

Legal basis: L132-8 Commercial Code: "the consignment note amounts to a contract between the consignor, carrier and consignee or between the consignor, consignee, forwarder and carrier”

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IRU Symposium – 21 February 2014

Admissibility of Actions

Action for payment:

  • Domestic carrier against the consignor or consignee => YES
  • International CMR carrier against the consignor or consignee => NO

Except if the former demonstrates that French law applies in addition to CMR (Regulation EC 593/2008 “Rome 1”, Art 5) [chosen law / law of carriers’ country if this is the same as the country of loading or receipt / law of the country of receipt / escape clause]

  • Forwarder against consignor / consignee, non principal => NO

even subrogate

  • Forwarding agent against consigner / consignee, non contracting => NO

Legal basis: L132-8 al.2 Commercial Code: “The carrier is entitled to direct action for payment of its services against the consignor and consignee, which stand as guarantors for payment of freight charges”.

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IRU Symposium – 21 February 2014

4- ContractualLiability Aspects

Carrier against consignor and consignee => Presumption of liability for loss / damage / delay

Forwarder against consignor and consignee => Presumption of liability for loss / damage / delay + Liability for actions of substitute carriers (L132-4; 5 & 6 Commercial Code)

Forwarding agent – agent against its client (principal) => liability for proven default (commissioning rules; Civil Code art 1992)

+ in case of hidden assignment subcontracting => the main contractor answers for the subcontractor (Civil Code art1994 § 2)

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IRU Symposium – 21 February 2014

Case of the subcontracting road carrier

Case law before 2005 :

The road carrier who freely subcontracts carriage becomes a forwarder => answers for the substitute carrier

Case law since 2005 (Commercial Court of Appeal 10 May 2005) :

Subcontracting carriage does not entail qualifying as a forwarder for the subcontracting party except where the consignor has approved the substitution => the carrier who freely subcontracts no longer answers for the substitute carrier

ORTF Law - 8 December 2009 (Transport Code Art L 3224-1) :

“The responsibilities of road carriers resorting to subcontracting are those foreseen for forwarders in the Commercial Code”

=> Same liability as forwarder – answers for the subcontractor

(does not become a forwarder but is subject to the same liability)

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IDIT - Institut du Droit International des Transports et de la Logistique

110/112, avenue du Mont Riboudet – F.76000 ROUEN

Tél : +33 (0)2.35.71.33.50

Fax : +33 (0)2.35.88.51.64

[email protected]

www.idit.fr

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