Cour d'appel de Montpellier, 20 mars 2018, n° 16/00330

Convention de Montréal

Article 27
31

France

Cour d'appel de Montpellier

Mme Bourrel (présidente) ; Mme Olive (conseillère) ; Mme Gonzalez (conseillère)

Sanofi, a pharmaceutical company, sends research material from its implantation in the United States to its R&D center in Montpellier (France), using an air carrier. The cargo becomes useless because of an interruption of the cold chain. According to the carrier, Sanofi did not respect the timely notice of complaints as required by article 31 of the Montreal convention.

Quoting word for word the articles 31 and 27 of the convention, the court held what follows :

Contrarily to what the first judge considered, the present action does not concern case of delay but a damage/loss of the cargo due to the temperature overrun. As such, the person entitled to delivery had to complain within 14 days after the receipt of the cargo. As to the method of calculating that period, article 641 of the French civil procedure code does not apply. The timely notice of complaints has to be determined exclusively by the Montreal convention. Apart from that, in article 12-2-2 of its terms and conditions in force in july 2012, the carrier stipulates the starting point of the complaint period to be the day after the arrival of the cargo, stating that the time limit begins the day "following the receipt of the cargo". This derogation to the convention is not contrary to the convention because it is beneficial to the person entitled to delivery.

Accordingly, the representative of Sanofi France, having received the cargo on july 26, 2012, at the Montpellier airport and noting the temperature ovrerrun, respected the time limit of complaint by handing out the letter of complaint to the [representative of the air carrier] on august 9, 2012. The limit was to expire at midnight that very day.

Reasoning in two steps, the court highlights two aspects with regard to the interpretation of the timely notice of complaints governed by article 31 of the convention. On one hand, since article 31 does not impose a rule similar to article 35 para. 2, the method of calculating the delay is not subject to the law of the forum. Instead, the calculating is done in an autonomous manner as inferred from the sole convention. Thus, the beginning of the period is the day of the receipt of the cargo.
On the other hand, article 27 of the convention allows the carrier to implement, e.g. in its terms and conditions, provisions that are more favourable to the client. This had been done in the present case: According to the terms and conditions of [the air carrier], the time period was to begin only the after the receipt of the cargo.

Timely notice of complaints
damage caused to the cargo
temperature overrun