Orlans
COMM Court of Appeal
Public hearing of January 19, 2006 |
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Appeal number:
Published by the Documentation and Studies Department of the Court of Cassation
Advise. Registrar: Mrs Nadia X …, during the debates and the delivery of the judgment. DEBATES: At the public hearing of January 5, 2006. JUDGMENT: Reading of the judgment at the public hearing of January 19, 2006 by Mr. President REMERY, in application of the provisions of article 452 of the New Code of Civil Procedure. STATEMENT OF THE LITIGATION:
The Court rules on the appeal of a judgment of the Commercial Court of Montargis (instance no 1323/2003) delivered on 5
November 2004, filed by the company CO.PL.IN. Cortinovis Plastiques Ingénierie (Coplin company), according to declaration of January 21, 2005 (no 518/2005), then by the company Arvinmeritor light vehicle systems France (Arvinmeritor company), according to declaration of May 11, 2005 (no 1667/2005), both instances 518 & amp; 1667/2005 having been joined by order of the pre-trial magistrate of June 28, 2005. For the full account of the facts, the procedure, the claims and the means of the parties, it is expressly referred to the decision referred and to the latest conclusions of the parties served and filed on: * September 6, 2005 (Arvinmeritor company), * December 21, 2005 (Coplin company), * December 23, 2005 (Taxicolis company, coming to the rights of the company Taxicolis Sud-Est); In this judgment, it will only be recalled that in August and September 2002, the company Taxicolis Sud-Est, to whose rights the company Taxicolis is, organized the transport of goods entrusted, according to it, by the company Moll Industries to destination of the companies Arvinmeritor and Coplin and the goods which would have been entrusted by the latter to the company Moll Industries. This one, put in receivership by judgment of October 10, 2002 of the Commercial Court of Villefranche-sur-Saône, not having paid the price of transport, the company Taxicolis, after having paid this one to the carriers, has, for the benefit of its subrogation in their rights, claimed from the Coplin company the sum of 1,152.06 ç and from the Coplin and Arvinmeritor in solidum companies that of 14,695.37 ç This request was granted, in addition to interest at the legal rate from the summons of April 17, 2003, by the judgment undertaken, the companies Coplin and Arvinmeritor appealed against it. In appeal, each party presented the requests and means which will be exposed and discussed in the reasons below. The investigation was closed by ordinance of January 4, 2006, as well as the attorneys the Coplin and Arvinmeritor companies have appealed against it. In appeal, each party presented the requests and means which will be exposed and discussed in the reasons below. The investigation was closed by ordinance of January 4, 2006, as well as the attorneys the Coplin and Arvinmeritor companies have appealed against it. In appeal, each party presented the requests and means which will be exposed and discussed in the reasons below. The investigation was closed by ordinance of January 4, 2006, as well as the attorneys
parties have been notified. REASONS FOR THE JUDGMENT: On the procedure:
Whereas, in its last conclusions, the company Taxicolis does not support the inadmissibility of the appeal of the company Arvinmeritor, although the latter explains it in view of the first trivial conclusions, tending to the inadmissibility and to the confirmation, served by the company Taxicolis, but which did not develop an argument on this head, and that nothing in the file allows this admissibility to be called into question; On the merits: On the right of the company Taxicolis to bring a direct action for payment against the companies Coplin and Arvinmeritor: Whereas, as regards the company Coplin, that, in all the consignment notes paid to the proceedings and other transport documents, and which concern the present proceedings, all documents produced in parallel proceedings no 1576/2005 and relating to other transports, giving rise to another judgment of the same day, being excluded, the company Coplin, a simple subcontractor of the company Moll Industries, does not appear as recipient only once for a transport of August 14, 2002 and never as a sender, in one sense or another, whether to the company Moll Industries or, more often to the company Arvinmeritor, which is the customer of the Moll Industries company, to which the latter sometimes had the parts machined by the Coplin company delivered directly; that the latter therefore did not intervene, as the transport documents reveal, that as simple remettante to the transporter chosen by the company Taxicolis, order of the company Moll industries, goods being in its factory, simple place of removal, destined mainly for the company Arvinmeritor; that, consequently, never having had the capacity of shipper, contrary to what is supported by the two other parts, the company Coplin cannot be held to pay, in this respect, the price of transport to
carriers or to the company Taxicolis, freight forwarder subrogated in their rights on the basis of Article L. 132-8 of the Commercial Code; that it can owe to the latter, with interest at the legal rate from the summons of April 17, 2003, only the sum of 426.80 FF HT, i.e. 510.45 TTC or 77.82 ç, as recipient for the only service performed on August 14, 2002; that, on this point, the Coplin company does not raise any dispute, recognizing, on the contrary, at p. 3 of its conclusions, below, to have been a party, as recipient, to the contract of carriage and not contesting the applicability to it of the provisions of Article L. 132-8 of the Commercial Code on direct action in payment of the carrier only in the event that the Court retains his capacity as shipper, which is not the case; that, for the payment of this sum, no joint judgment or in solidum can not be pronounced against the company Arvinmeritor, which was not concerned by the provision of transport here in question; Whereas, as regards the company Arvinmeritor, that this one does not dispute either its capacity of recipient for all the transports concerned by the request of the company Taxicolis, nor that of forwarding agent of the latter, whereas, in the parallel instance no 1576/2005, it developed ambiguous conclusions on this last point; that, therefore, the company Arvinmeritor, which does not take into account, in its pleadings, of the judgment of the Commercial Chamber of the Court of Cassation of 2 June 2004 (Bull. civ IV, no 114), which rejected in advance the argument it supports, cannot claim that the company Taxicolis could not act on the basis of Article L. 132-8 of the Commercial Code; that, if it is true, in fact, that only the carrier has, against the addressee, the direct action for payment provided for by this text, neither the latter, nor any 132-8 of the French Commercial Code; that, if it is true, in fact, that only the carrier has, against the addressee, the direct action for payment provided for by this text, neither the latter, nor any 132-8 of the French Commercial Code; that, if it is true, in fact, that only the carrier has, against the addressee, the direct action for payment provided for by this text, neither the latter, nor any
principle prohibits the broker who has paid the cost of his services to the carrier from exercising this action by subrogation, without being able to oppose his own absence, by hypothesis, of default with regard to the carrier, which would make allegedly obstacle to the subrogation in the rights of this one, nor to subordinate the subrogatory exercise of the direct action by the commission agent to the proof of the default of its own principal, the company Moll Industries, in this case or the Coplin company, as it is sometimes wrongly argued; that, in principle, the request of the company Taxicolis is therefore admissible against the recipient and the latter has no recourse in guarantee against the company Coplin, who did not have the quality of sender; On the quantum of the conviction of the company Arvinmeritor: Whereas the company Arvinmeritor raises two disputes on this point; That the first, already supported in parallel proceedings no 1576/2005, was rejected there by a reason which will be repeated here; that indeed, without developing a precise dispute, but on the sole ground that the same documents would be paid by the company Taxicolis in support of two actions in payment, each being the subject of a judgment of this Court of the same day , this one and that given in the case no 1576/2005, the company Arvinmeritor maintains that the company Taxicolis would seek to be paid twice, whereas, in spite of the identity of certain documents submitted in the two instances, none of the services in question here, the subject of separate invoices dated from August to September 2002, is the subject of a complaint in the other instance, as is clear from comparison of parts; whereas this first dispute should be dismissed; That the second, which had not been developed in the other instance no 1576/2005, at least in admissible conclusions, consists in maintaining that the company Taxicolis should deduct its commission from the amount of the price of transport; it results from the comparison of the parts; whereas this first dispute should be dismissed; That the second, which had not been developed in the other instance no 1576/2005, at least in admissible conclusions, consists in maintaining that the company Taxicolis should deduct its commission from the amount of the price of transport; it results from the comparison of the parts; whereas this first dispute should be dismissed; That the second, which had not been developed in the other instance no 1576/2005, at least in admissible conclusions, consists in maintaining that the company Taxicolis should deduct its commission from the amount of the price of transport;
that, on this point, if it is true that the way of subrogation in the rights that the carrier derives from article L.132-8 of the Commercial Code does not authorize the commission agent to make bear either to the shipper, or to the addressee, his own commission, since the subrogation only takes place up to the amount paid, which, being a sum paid to carriers, can only include the price of transport, it does not include there is no need, as requested by the Arvinmeritor company, to operate a ventilation here; that indeed, it results from the documents in the file – in particular the letters by which each carrier acknowledged having received the price of the transport concerning him – that the company Taxicolis does not claim from the recipient more than the total price of transport, without including its profit margin or the price of its commission, nothing establishing, in the present case, that it would have made it bear in fact to each valet; that the subrogatory recourse on which this judgment rules therefore only takes place up to the price of transport, i.e. the sum of 14,695.37 ç including tax which will be charged to the company Arvinmeritor and will be productive of interest at the legal rate from the summons of April 17, 2003; that the judgment on this point should be confirmed; On accessory requests:Whereas the company Arvinmeritor will bear the costs of appeal, to the exclusion of those relating to the claims made against the company Coplin, which will be borne in full by the company Taxicolis, given the very reduced reception of its claims against him; that in addition, the society Arvinmeritor will pay the society Taxicolis the sum of 1.500 ç on the basis of the provisions of Article 700 of the new Code of Civil Procedure, any other request on this same basis being rejected; FOR THESE REASONS: THE COURT, RULING publicly, by contradictory judgment and rendered as a last resort: Partially REJECTING the judgment
undertaken: CONDEMNS the company CO.PL.IN. Cortinovis Plastiques Ingénierie (Coplin company) to pay the Taxicolis company the sum of 77.82 ç including tax, with interest at the legal rate from April 17, 2003; CONDEMNS the company Arvinmeritor light vehicle systems France (company Arvinmeritor) to pay to the company Taxicolis the sum of 14,695.37 ç including tax with interest at the legal rate as of April 17, 2003; REJECTS all other requests of the parties; CONDEMNS the company Arvinmeritor to pay the costs of first instance and appeal, except those concerning the company Coplin, which will be borne by the company Taxicolis; CONDEMNS the Arvinmeritor company to pay the Taxicolis company the sum of 1,500 ç by application of the article 700 of the new Code of Civil Procedure and REJECTS any other request presented on this basis; GRANTS, to the above extent, to SCP Laval-Lueger and Desplanques-Devauchelle, holders of an attorney’s office at the Orléans Court of Appeal, the right to direct debit recognized by article 699 of the new Code of Civil Procedure ; AND this judgment was signed by Mr. Rémery, President and Mrs. X …, Registrar having attended the delivery of the judgment. THE CLERK article 699 of the new Code of Civil Procedure; AND this judgment was signed by Mr. Rémery, President and Mrs. X …, Registrar having attended the delivery of the judgment. THE CLERK article 699 of the new Code of Civil Procedure; AND this judgment was signed by Mr. Rémery, President and Mrs. X …, Registrar having attended the delivery of the judgment. THE CLERK
PRESIDENT |