Cour d'appel de Versailles, 12ème Chambre, 17 décembre 2020 n°19/01527
Item
Référence
Cour d'appel de Versailles, 12ème Chambre, 17 décembre 2020 n°19/01527
Convention
Convention de Montréal
Article
Article 01
29
18
33
29
18
33
Pays
France
Juridiction
Cour d'appel de Versailles, 12ème Chambre
Composition de la juridiction
M. Thomas (président), Mme Muller (conseillère), M. Nut (conseiller), M. Gavache (greffier)
Résumé
A pharmaceutical company, sold 3 batches of pharmaceutical products to the Iraqi health ministry, commissions a company to organize the transport of these batches. The commission agent, assigns for air transport an air carrier from Roissy to Amman (Jordan) and for the land carrier from Amman to Baghdad (Iraq) three companies. The batches must meet specific instructions during transport.
The batches arrive in Amman on time (21, 22 and 29 December 2013), but due to conflicts at the border they cannot be transported to Baghdad. The lots are therefore stored in refrigerated warehouses of the airline.
The batches arrive in Amman on time (21, 22 and 29 December 2013), but due to conflicts at the border they cannot be transported to Baghdad. The lots are therefore stored in refrigerated warehouses of the airline.
Attendu
The convention for the unification of certain rules relating to air transport, signed in Montreal on May 28, 1999, provides in its article 1 its application to all international transport of persons, baggage or goods, carried out by aircraft for remuneration.
Its article 29 specifies that any action for damages, for any reason whatsoever, may only be brought under the conditions and limits of liability provided by this agreement.
Its article 18 provides in its 1st point that the carrier is responsible for the damage occurring in the event of destruction, loss or damage to the goods by the sole fact which caused the damage during air transport. And in its 3rd point that air transport thus included, includes the period during which the goods are in the custody of the carrier.
In the present case, if the airline company, after providing air transport for the products in question, issued delivery slips on December 21, 22 and 29, 2013, it emerges from its own submissions and it is not disputed that it kept the goods in its warehouse until February 17, 2014, during which time the damage allegedly occurred.
The goods were thus still in the custody of the airline company, the carrier, between December 21, 22 and 29, 2013 until February 17, 2014, the period during which the damage allegedly occurred.
Even if this storage gave rise to invoicing, it took place while the goods were in the care of the carrier, it is not a handling operation carried out by a third party. [...]
Consequently, it is appropriate to retain the application of the Montreal Convention, and to reverse the judgment on this point.
Article 33 of the Montreal Convention provides in point 1 that 'the action for liability must be brought, at the choice of the plaintiff, in the territory of one of the States parties, either before the court of the domicile of the carrier, of the principal place of business or of the place where it has an establishment through which the contract was concluded, either before the court of the place of destination '.
In the present case, it is not disputed that the domicile of the airline company is in Amman, Jordan; the air transport was to Amman; the LTAs mention as the address of the airline company in Amman in Jordan. It is neither alleged nor established an intervention of an establishment of the RJA which would be located in France at the time of the conclusion of the contract.
Consequently, the commercial court of Nanterre was not territorially competent to hear the request presented against the airline company, and it will be reversed on this point.
The court therefore declares itself incompetent to rule on the actions brought against the airline company and thus refers the parties to better appeals.
With regard to compensation for the damage that occurred, article 22.3 of the Montreal Convention - applicable since the damage occurred first in Amman following the air transport, under the care of the airline company - provides that in the transport of goods, the carrier's liability in the event of damage is, with some exceptions, limited to 19 special drawing rights per kilogram. [...] Consequently, Qualitair and its insurance will be condemned, on the basis of the Montreal convention, to the payment of the sum of 9538 SDR (that is to say 502 x 19 SDR).
Its article 29 specifies that any action for damages, for any reason whatsoever, may only be brought under the conditions and limits of liability provided by this agreement.
Its article 18 provides in its 1st point that the carrier is responsible for the damage occurring in the event of destruction, loss or damage to the goods by the sole fact which caused the damage during air transport. And in its 3rd point that air transport thus included, includes the period during which the goods are in the custody of the carrier.
In the present case, if the airline company, after providing air transport for the products in question, issued delivery slips on December 21, 22 and 29, 2013, it emerges from its own submissions and it is not disputed that it kept the goods in its warehouse until February 17, 2014, during which time the damage allegedly occurred.
The goods were thus still in the custody of the airline company, the carrier, between December 21, 22 and 29, 2013 until February 17, 2014, the period during which the damage allegedly occurred.
Even if this storage gave rise to invoicing, it took place while the goods were in the care of the carrier, it is not a handling operation carried out by a third party. [...]
Consequently, it is appropriate to retain the application of the Montreal Convention, and to reverse the judgment on this point.
Article 33 of the Montreal Convention provides in point 1 that 'the action for liability must be brought, at the choice of the plaintiff, in the territory of one of the States parties, either before the court of the domicile of the carrier, of the principal place of business or of the place where it has an establishment through which the contract was concluded, either before the court of the place of destination '.
In the present case, it is not disputed that the domicile of the airline company is in Amman, Jordan; the air transport was to Amman; the LTAs mention as the address of the airline company in Amman in Jordan. It is neither alleged nor established an intervention of an establishment of the RJA which would be located in France at the time of the conclusion of the contract.
Consequently, the commercial court of Nanterre was not territorially competent to hear the request presented against the airline company, and it will be reversed on this point.
The court therefore declares itself incompetent to rule on the actions brought against the airline company and thus refers the parties to better appeals.
With regard to compensation for the damage that occurred, article 22.3 of the Montreal Convention - applicable since the damage occurred first in Amman following the air transport, under the care of the airline company - provides that in the transport of goods, the carrier's liability in the event of damage is, with some exceptions, limited to 19 special drawing rights per kilogram. [...] Consequently, Qualitair and its insurance will be condemned, on the basis of the Montreal convention, to the payment of the sum of 9538 SDR (that is to say 502 x 19 SDR).
Interprétation
The Court of Appeal indicates that the Montreal Convention is applicable, because the goods stored in the warehouses were under the care of the carrier when the damage occurred. Thus, the Montreal Convention is not limited to air transport in the strictly speaking. In addition, the Nanterre Court declares itself incompetent to rule on actions against the airline within the meaning of article 33 of the Montreal Convention. Moreover, the personal liability as well as the inexcusable fault of one of the substitutes is not retained, therefore the commission agent is entitled to request the application of the compensation ceiling of article 22-3 of the Montreal Convention.
Mot clés
pharmaceutical products
Montreal Convention applicability (yes)
compensation ceiling
Montreal Convention applicability (yes)
compensation ceiling