1. THE LEGAL AND BUSINESS ASPECTS OF HANDLING CARGO CLAIMS IN France
Bertrand Courtois – Avocat à la Cour (Paris)
5th INTERNATIONAL CARGO RECOVERY CONFERENCE
New York & Montreal – 17 & 20 June 2016

2. PROTECTING THE ACTION Road (domestic) : notice within 3 days
CMR : notice within 7 days (immediately if apparent damage)
Rail : 3 days – CMNI (international) : formal report except recklessness
Air : notice within 14 days
Maritime : Domestic + Hague Visby : 3 days
Maritime : Hamburg Rules : 15 days
Maritime : Rotterdam : 7 days
PROTECTING THE ACTION

3. APPLICABLE TIME LIMITS

4. APPLICABLE TIME LIMITS
ROAD & RAIL : 1 year
CMR : 1 an (total loss : foll. 30th or 60th day) – 3 years in case of recklessness
SEA - NATIONAL + HAGUE VISBY : 1 year
HAMBURG RULES : 2 years
ROTTERDAM RULES : 2 years
AIR : 2 years
RIVER (CMNI) : 1 year
RAIL (CIM) : 1 an – 2 years in case of recklessness
TRANSIT – WAREHOUSING - LOGISTICS : 5 years
FREIGHT FORWARDING : 1 year
APPLICABLE TIME LIMITS

5. PRACTICAL INFORMATION ON TIME LIMITS
Time extensions are valid – Must be straightforward and unconditional
Time limit interrupted by :
- Issuance of proceedings (incl. court survey application)
- Carrier’s acknowledgment of liability
- Notification of a figured claim in CMR matters
PRACTICAL INFORMATION ON TIME LIMITS

6. CARRIERS LIMITATIONS (SEA)

7. CARRIERS LIMITATIONS (SEA)
French domestic law : 666,67 SDR / package or 2 SDR / Kg (highest)
Hague Visby : same
Hamburg Rules : 835 SDR / package or 2,5 SDR / kg (highest)
Rotterdam Rules : 875 SDR / package or 3 SDR / kg (highest)
Except recklessness (faute inexcusable)
Multimodal : limits of the phase concerned by the loss or damage will be relevant
CARRIERS LIMITATIONS (SEA)

8. CARRIERS LIMITATIONS (ROAD)

9. CARRIERS LIMITATIONS (ROAD)
DOMESTIC
3 tons – more : 14 € / kg – max € / ton (smallest) – except recklessness
Less than 3 tons : 23 € / kg – Max : 750 € / package – except recklessness
Delay : amount of freight (except recklessness)
TEMPERATURE CONTROLLED CARRIAGE
3 tons – more : 14 € / kg – max 4000 € / ton (except recklessness)
Less than 3 tons : same
CMR
8,33 SDR / Kg – Delay : amount of freight - Except recklessness
CARRIERS LIMITATIONS (ROAD)

10. CARRIERS LIMITATIONS (OTHERS)

11. CARRIERS LIMITATIONS (OTHERS)
RIVER
Domestic : 762,25 € / ton or number of tons X 152,45 € (smallest)
CMNI (international) : 666,67 SDR / package or 2 SDR / kg (highest)
Container : SDR
AIR
Warsaw : 16,5837 SDR / kg (except recklessness) - Montréal : 19 SDR / kg
RAIL
17 SDR / kg
Delay : 4 times amount of freight
CIM : 17 SDR / Kg (exclusive of accise rights)
CARRIERS LIMITATIONS (OTHERS)

12. CARRIERS LIMITATIONS (OTHERS)
EUROTUNNEL
8,33 SDR / kg – Max : SDR
FREIGHT FORWARDING
Personal negligence : 20 € / kg – Max 5000 € / T – except recklessness
Subcontractors’ acts and negligence : back to back liability
CARRIERS LIMITATIONS (OTHERS)

13. BREAKING LIMITS – WHAT TEST ?

14. IN CARRIAGE BY ROAD – SEA & FREIGHT FORWARDING
PROVING RECKLESSNESS : very deliberate negligence implying awareness of the carrier that a damage or loss would probably result from the negligence / his behaviour
Ex (Sea) : loading cargo on deck whilst forbidden, leaving a container without care, obvious lack of maintenance of the ship’s equipments.
Ex (Road) : Parking in unsafe place during transit, carrier aware of nature / value of the cargo, alternative available, no protection, alarm, anti-theft system etc., cargo unattended for a long time, lorry with soft (rather than hard) protection.
Ex (Freight forwarders) : failure to relay instructions, choice of inappropriate subcontractor, deliberate lack of follow up of the operation etc.
BREAKING LIMITS – WHAT TEST ?

15. Road : Parties to the contract + actual shipper / receiver if suffered the loss
Air : Parties to the contract only
Sea : consignee on B/L (Cass. Com, 21 Feb. 2006, no )
Shipper on B/L + actual shipper + actual receiver if they prove that they suffered the loss
TITLE TO SUE

16. SUBROGATION

17. SUBROGATION Need to provide (alternative) :
Insurance subrogation (art. L & L Insurance Code)
Policy (indemnity paid pursuant to a contractual obligation)
Subrogation receipt
Proof of payment
Civil subrogation (subrogation conventionnelle) (art Civil code)
Subrogation receipt (signed simultaneously or before payment)
SUBROGATION

18. FREIGHT FORWARDERS’ LIABILITY

19. FREIGHT FORWARDERS’ LIABILITY
Liable for both:
Their sub-contractors’ acts and omissions (up to their own applicable limits)
Their personal liability/negligence
Legal regime :
Statutory contract
Limits : 20€ / Kg – max 5000€ / ton – Except recklessness
Interest :
Two deep pockets – Back to back liability
FREIGHT FORWARDERS’ LIABILITY

20. COURT SURVEY

21. COURT SURVEY www.courtois-finkelstein.com
Useful and recommended when :
Complex / important matter
Lack of evidence & Need to secure evidence
Ascertain facts
Risks of obstructions by some parties
Assess quantum
Need for a salvage
Positive points :
Ordered quickly (few days or less)
Contradictory and (more or less) binding
Influential – Strong impact on the court
Interrupts time limit
COURT SURVEY

22. SHIP ARREST

23. SHIP ARREST Very efficient to obtain security
Quick procedure and result (few hours sufficient to prepare the arrest)
Not very expensive – No exposure towards Owners’ costs
Conditions :
Vessel flies the flag of the 1952 (arrest) Convention : Allegation of maritime claim
Vessel does not fly such a flag : either maritime claim (allegation suffices) or prima facie good claim
SHIP ARREST

24. WHAT FORMALITIES IF ANY ?

25. WHAT FORMALITIES IF ANY ?
Power of attorney not required
Apostil not required
Security to the court not required
Translation of documents into French required before courts
Translation of documents not required in arbitration
Original copies of documents not required – copies suffice
WHAT FORMALITIES IF ANY ?

26. HOW LONG ? Summary / urgent proceedings :
Apply to application for court survey, ship arrest, attachments
Between a few hours and a few days
Substantive proceedings :
Lower courts : between 12 and 24 months (sometimes more)
Appeal proceedings : less than 18 months
Notice : law suits may be brought within 24 hours from instructions
HOW LONG ?

27. HOW MUCH ? www.courtois-finkelstein.com
Lawyers fees (time spent basis or contingency) – Mostly time spent basis
Bailiffs charges (less than €250)
Translators’ charges : approx. €600 (unless lots of documents in foreign language)
Court and local clerk charges (€700)
No need for claimant to put up counter security
Minimum exposure towards opponents’ costs in case the action fails
HOW MUCH ?

28. WHAT ABOUT RECOVERY OF COSTS ?
Court survey costs : 100% recoverable
Lawyers fees : partly recoverable
Bailiffs / court charges / translation charges : 100% recoverable
WHAT ABOUT RECOVERY OF COSTS ?

29. LAWYERS FEES & INVOLVEMENT

30. LAWYERS FEES & INVOLVEMENT
French Avocats / lawyers handle cases from A to Z (one profession)
Paris Avocats appear before all courts of France + French overseas territories
In most cases : fees are calculated on a time spent basis (between €200 / €300)
Contingency scheme possible and allowed by Bar Authorities
Contingency scheme possible before and after law suits are brought
LAWYERS FEES & INVOLVEMENT

31. 4th INTERNATIONAL CARGO RECOVERY CONFERENCE
BBBGGGGGGV
4th INTERNATIONAL CARGO RECOVERY CONFERENCE
ANY QUESTIONS ?