French carriers are envied in Europe for a law that seems unique. According to Article L 132-8 of the French Commercial Code, a carrier has a direct contractual claim to payment from both the sender and the recipient, regardless of who placed the transport order. This regulation is always important when the principal does not pay or, even worse, is unable to pay. If the client was the sender and the carrier now turns to the recipient, the latter cannot object that he has ultimately fulfilled his contractual obligations to his contractual partner (usually the sender, with whom he has concluded a purchase contract). It can therefore easily happen that the recipient has to pay twice, namely if he has already paid for the transport portion with the purchase price and now the carrier is at the door and wants to be paid for his service.
A recent case from practice shows the importance of the regulation:
A French wine cooperative (sender) sold significant quantities of wine to a German wine merchant (recipient), who bottled the wine in Germany and sold it on. The wine merchant always paid his invoices promptly and in full. He was therefore all the more surprised when one day he received a letter from a French transport company that had often delivered wine from the wine cooperative to him over the course of the year. The French entrepreneur was demanding €360,000, the sum that his client, the wine cooperative, had fallen behind on paying for transportation to the wine merchant. The wine cooperative was insolvent. The carrier invoked Article L 132-8 of the Commercial Code.
The prerequisite for such a blessing (from the French carrier's point of view) is, of course, that French law applies. This is primarily the case for French domestic transportation. However, the CMR applies in advance to cross-border transportation. However, the CMR does not regulate everything and where it has gaps, these gaps are to be filled with the national law applicable to the transport contract. This national law is determined by special rules. The contracting parties may make a choice of law (which they often do not do). Then the agreed law applies. If, however, nothing has been agreed, the law of the state in which the carrier is domiciled shall apply, provided that the place of taking over of the goods or the place of delivery of the goods or the usual place of residence of the sender is also located in that state. If this does not lead to a solution either, the law of the place of delivery shall apply.
A French carrier transporting goods out of or into France can therefore always invoke French law if the CMR has gaps. But a German freight carrier who, for example, transports goods from Luxembourg to France on behalf of a Belgian is also subject to the provisions of French law and could, if necessary, invoke Art. 132-8 of the French Commercial Code. So if his client had since gone bankrupt and had not paid for the freight, the German freight carrier could turn to the French recipient and demand payment from him – at least according to the legal opinion in France.
French case law also considers it to be beyond doubt that a French carrier transporting goods from France to Germany has a contractual claim against a German consignee for payment of the freight, even if the consignee is neither aware nor has never wanted to. French judges are of the opinion that the CMR does not preclude this because the CMR does not regulate a direct claim comparable to Article L 132-8 of the French Commercial Code. From this, it is then concluded that the CMR has a gap that can or must be closed by French law.
This result is astounding. Does it mean that anyone who buys something in France and has the goods delivered to Germany by a transport company contracted by the seller suddenly has another contractual partner who can demand money without their knowledge or consent?
Now, such cases hardly ever come before German courts. French freight carriers naturally prefer to sue in France, because the CMR allows a plaintiff, among other things, to choose between the courts at the place of acceptance of the goods and the courts at the place designated for delivery. Therefore, the French carrier usually has a French court of jurisdiction on his side (the question of the court of jurisdiction is not to be confused with the question of which law is applicable, as addressed above. It may happen that a German court is competent but then has to apply foreign law).
In the case described at the beginning, the recipient had to act quickly. If the carrier had brought an action before a French commercial court, it is almost certain that the wine merchant would have been found liable. Since foreign judgments can be enforced within the European Union with relatively little effort and can only be reviewed for substantive correctness in the courts of the country of enforcement in very rare cases, it is easy to quickly find yourself in an inescapable situation.
The German consignee therefore immediately filed an action for a negative declaration with the district court at the place of delivery, requesting a declaration that the carrier has no claim to payment on the basis of that French law.
The district court allowed the recipient's claim (Koblenz District Court, judgment of 17/03/2015, Az. 3 HK O 33/14) and thus ruled differently than a French court would presumably have done.
It found that the contract of carriage at issue was subject to the rules of the CMR. However, it then held that, contrary to the view held in France, the CMR does indeed regulate the question of a direct claim for remuneration by the carrier against the consignee. Therefore, there is no gap. In the absence of a gap, there is also no need to fill any gaps with French law. Article 13, paragraph 2 of the CMR Convention stipulates that the consignee may demand that the carrier surrender the consignment note and the goods in return for immediate payment. In this case, it is therefore up to the recipient to decide whether or not to pay. The CMR contract of carriage is drafted as a contract for the benefit of third parties, whereas French law regards the contract of carriage as a multiparty contract that can ultimately become a contract at the expense of a third party. However, according to the district court, the CMR does not support such a concept, which is why the CMR blocks such claims. Therefore, the wine merchant does not have to pay.
The judgment, if it becomes final, is not only of great significance for the wine merchant. It shows that the interpretation of international treaties by national courts does not have to be uniform. Although a uniform interpretation is desirable in principle, However, if a national legislation counteracts the basic idea of an international treaty, the courts of other countries have the opportunity to counteract this. In this way, as in the case at hand, the recipient of goods delivered by a French transport company to another CMR contracting state can be protected from unpleasant surprises. However, it is doubtful whether the French courts will follow suit. Therefore, any German recipient who faces a claim from a French carrier on the basis of Article L 132-8 of the French Commercial Code should seek competent legal advice as soon as possible.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.