- What Is the Extent of the Carrier’s Liability?
As a general rule, the provisions of the Geneva Convention of May 19, 1956, known as the CMR Convention, limit compensation in cases of theft or loss of goods during transport. However, Article 29 CMR allows for an exception to this rule if the damage was caused intentionally by the carrier or due to the carrier’s fault, which, under the law of the court hearing the case, is deemed equivalent to intentional misconduct.
Consequently, the carrier (and its insurer) must fully compensate the sender (and its insurer) if the damage resulted from its unforgivable fault, as defined in Article L. 133-8 of the French Commercial Code, referenced in Article 29 CMR: “Unforgivable fault is intentional fault, meaning an awareness of the likelihood of damage and a reckless acceptance of it without valid justification.”
According to the French Court of Cassation’s interpretation, such recklessness cannot be inferred solely from the occurrence of the breach unless the psychological element—awareness of the probability of damage and its acceptance without valid reason—is also present.
In other words, a mere error of negligence or carelessness by the carrier is not automatically considered an unforgivable fault.
- Examples of French Courts’ Interpretation of ‘Unforgivable Fault’
According to French judges, mere damage to goods due to passage under a bridge does not constitute unforgivable fault if the carrier was not informed of the need to arrange special transport and if the bridge’s exceptionally low height was not specified (Cass. Com., April 11, 2018, No. 17-12975).
The Commercial Chamber of the Court of Cassation has ruled that, as a general principle, a carrier’s destruction of entrusted goods cannot be automatically classified as unforgivable fault under Article L. 133-8 of the Commercial Code. This qualification depends on the circumstances of each individual case (Cass. Com., March 24, 2021, F-P, No. 19-22.708).
In the cited case, the shipper entrusted the transport of aviation equipment to a carrier, which stored it in its warehouse before delivery. The goods were damaged in a fire caused by an attempted break-in.
The carrier refused compensation, and the shipper and its insurer filed a lawsuit. Lower courts dismissed the insurer’s claims, and the French Supreme Court rejected the appeal.
Thus, the qualification of unforgivable fault remains reserved for exceptional circumstances and is subject to strict interpretative control by the Court of Cassation.
- What About Cargo Security During Vehicle Stops?
Since cargo theft during vehicle stops is a frequent issue, the French Supreme Court requires transport professionals to exercise special care in securing transported goods, particularly during overnight stops.
In its ruling of November 21, 2018, the Commercial Chamber of the Court of Cassation upheld the reasoning of lower courts, confirming that:
“Parking a trailer loaded with high-value goods overnight, without any security measures, in an unsupervised area, constitutes the carrier’s fault.”
Furthermore, the court ruled that parking in an unsecured area also constitutes fault:
“Parking overnight in an isolated rural location, even if regularly used by the transport company’s vehicles, directly on a public road, without effective surveillance, with a cargo consisting of multiple small packages that are easy to remove, inside a trailer that was not locked with a padlock, while the carrier was aware of the cargo’s value, and in blatant violation of received instructions, constitutes intentional misconduct and exceeds the threshold of mere negligence.”
This ruling should also encourage shippers to provide clear information regarding security requirements and the value of cargo entrusted to the carrier.