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Case:
Cour de cassation Chambre Commerciale Application for Review no.02-20984 Case NTS Transports Internationaux & TBR Transports v Packard Bell NEC Europe BV et al
Date:
30 June 2004
Translated by:
J. Trevor Brown
Copyright:
Professor B. S. Markesinis

(…)

Judgement on both the main application for review made by TBR Transports, a corporation, and the incidental application made by NTS Transports Internationaux, a corporation;

Given, according to the judgement under attack, that (a) NTS Transports Internationaux (“NTS”), which had been entrusted by Packard Bell NEC Europe BV (“Packard”) with the carriage of computer material from Angers to Rozzano (Italy) entered into a subcontract with TBR Transports (“TBR”) which carried out this operation by road; (b) part of the merchandise was stolen during the carriage and Packard was partially indemnified by its insurers, Amev Interlooyd Shadverekering NV and Tollenaar & Wegener (“the insurers”); (c) the latter, to the extent of their subrogation, and Packard for the balance of loss remaining on its books brought action against NTS and TBR for indemnification; and (d) NTS implicated TBR as guarantor, TBR calling on its insurer, Mutuelle de Mans Assurances IARD;

Concerning the only ground of the principal application, in its first branch, and the only ground of the incidental application, in its second branch, both drafted in identical terms, taken together:

In view of Article 455 of the New Code of Civil Procedure:

Given that, in order to find NTR and TBR jointly liable to pay to the insurers the equivalent in euros of 318,862,428.92 lira et 4573 florins and to Packard the equivalent in euros of 20,859,408 lira by way of principal, the judgement holds that it is probable, given the danger of the motorways in North Italy, that the theft took place on the parking area of the auto-grill at Novara;

Given that in giving judgement on such grounds which are hypothetical, the Appeal Court did not meet the requirements of the text mentioned above;
And concerning the same grounds of the principal and incidental applications, taken in their third branch, which are drafted in identical terms, taken together:

In view of Article 1150 of the Civil Code and Articles 23 and 29 of the Geneva Convention of 19 May 1956 on international contracts of carriage by road;

Given that, in order to find NTS and TBR jointly liable to pay to the insurers the equivalent of 318,862,428.92 lira and 4,473 florins, and to Packard the equivalent in euros of 20,859,408 lira by way of principal, the judgement limits itself to finding that the fact that (a) a driver who was carrying a sensitive cargo whose nature appeared on the waybill was incapable, after a journey of 48 hours, including two nights spent on the road inside his vehicle, of saying exactly when the theft occurred, the door of the trailer having been opened and the tarpaulin cover cut; and (b)he stated that at no time did he go round his vehicle before arriving at the client’s address, constitutes negligence of extreme gravity approaching fraud and showing the incapacity of the carrier, master of his acts, to fulfil the contractual mission it had accepted;

Given that by coming to its conclusion on such grounds, which are not apt to establish gross negligence on the part of the carrier, the Appeal Court did not give a legal basis to its decision;

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