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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ET DE LA LOGISTIQUE
INSTITUTE OF INTERNATIONAL TRANSPORT &
Intermediaries – VariousLegal Situations
The Case of France
1- Intermediary Types & Functions
The carrier performs transport
The forwarder (“commissionnaire de transport”) organises transport
The forwarding agent (“transitaire”) receives / forwards on
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.
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.
Legal elements defining the capacity as forwarder
In return for this freedom of action => strict liability
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.
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)
2- Rules of Admission to the Occupation
Carrier / Removalfirm/
Truck rentalwith driver=> YES
Agent - forwarding agent => NO / Freedom of tradedoes not requireanyspecific registration
3- Contractual Framework
System of contractsunder French law
Transport assignment contracts and contracts of carriage
Transport assignment contract
Commercial / Transport Codes
Standard assignment contract
Contracts of carriage
Standard contracts; CMR; Brussels Convention; CIM Uniform Rules...
Benefits of the “transport assignment” standard contract
Caution! As with any standard contract, the provisions of the assignment standard contract only apply unless otherwise agreed in writing between the parties
Admissibility of Actions
Action for contractual liability:
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”
Admissibility of Actions
Action for payment:
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]
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”.
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)
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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