I have recently been asked the following question: “My contractor wants me to sign a statement that I have received payment for transport on a form entitled attestation de paiement. Can I sign this?” – one of the carriers operating in France is wondering. The answer to this question is simple – if you have received payment, you can sign the statement. However, it is worth knowing where the dilemma of signing this form came from.
The origins of all this confusion lie in France, and more specifically in the legislation in force there. This is reflected in the practice of the industry in France, where shipping companies very often pressure carriers to send them signed attestation de paiement forms, or statements of receipt of payment for transport services, even before the actual receipt of payment for the freight.
According to the French Commercial Code (L.132-8):
The consignment note is a contract between the sender, the carrier and the consignee or between the sender, the consignee, the forwarder and the carrier. The carrier is thus entitled to a direct claim for payment for the performance of the service against the sender and the recipient, who are the guarantors of payment for the transport service. Different provisions of the agreements shall be null and void.”
It is worth noting that this provision is mandatory, i.e. it cannot be changed by contractual provisions. Also important for the carrier is the fact that the sender or consignee cannot exclude his liability on the basis of the fact that the forwarding agent has been paid. In other words, there could be a situation where the sender or the consignee is obliged to make a double payment.
A similar concept exists in Poland, but applies only to construction contracts and concerns the project owner’s liability for the obligations of the general contractor in relation to subcontractors.
When can we use this concept?
It is obvious that if the transport is carried out on the territory of France (loading and unloading) and the French law applies to the contract, we are free to use these rights.
But what about international transport? Due to the fact that the CMR Convention does not contain any provisions that would indicate the possibility of filing claims of a direct carrier against a sender or a consignee, the question arose whether this concept may be used in international transport. The French Cassation Court replied in the judgment regarding the Chamber of Commerce of 24 March 2004. It pointed out that if the facts of the case indicate that French law will apply to the contract (in matters not regulated by the CMR Convention), the liability of the sender or the consignee towards the direct carrier is permissible.
The only question that remains to be answered is: when does French law apply to the contract of carriage?
In order to answer this question, it is necessary to refer to the EU provisions of the Rome I Regulation. According to art. 5 of the aforementioned legal act, if the applicable law is not chosen in the contract and the country of establishment of the carrier does not coincide with the country of consignment or receipt of the goods, the law of the country in which the unloading takes place (law of the country of the place of delivery) will apply.
Benefits for the carrier
The question may arise – what does the carrier gain? Well, a lot – situations in which there are problems with payments from the forwarder are not rare. Where French law applies to the contract of carriage, instead of a lengthy recovery process (amicable or judicial), it is sufficient to send a reminder to the sender or consignee from whom direct payment is to be received.
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