Court of Cassation, No. 88-11.301

Court of Cassation, Second Civil Chamber, 18 May 1989, No. 88-11.301

Challenged decision: Paris Court of Appeal, 19 November 1987

COFRUITEL

LA CONCORDE

Vs.

CMCR

THE COURT OF CASSATION, SECOND CIVIL CHAMBER, delivered the following judgment:

On the appeal (in French Pourvoi) brought by:

1°/ the company COFRUITEL, whose registered office is in Abidjan (Ivory Coast), Général De Gaulle avenue, BP 1550,

2°/ the insurance company LA CONCORDE, whose registered office is … (9e),

in cassation of a judgement delivered on 19 November 1987 by the Paris Court of Appeal (First Chamber, Supplementary Division), in favor of the Compagnie Maritime des Chargeurs Réunis, known as “CMCR”, now called Y… Delmas, the defendant, whose registered office is … (8e),

On the sole ground:

Having regard to Articles 1134 of the Civil Code, and 1502-3 and 1502-5 of the new Code of Civil Procedure;

Whereas, according to the judgment under appeal and the productions, Cofruitel and the insurance company La Concorde filed an action for annulment against an award made in France, concerning international arbitration, by the Chambre Arbitrale Maritime de Paris, which rejected their claim for compensation by the shipping company United Shippers for damage to a cargo of fresh pineapples;

Whereas it results from the productions that the arbitrators, after stating that “it is neither their role nor in their expertise to decide whether the ripeness of the fruits and their temperature during boarding were the sole or main causes of the damage, or whether, on the contrary, they had only an accessory role, and whether therefore the excessively high transport temperature was a secondary or main factor, or the essential factor in the constitution of the damage”, concluded that “there was no evidence to establish, or even to estimate with reasonable certainty, the specific consequences of the parties' shared fault and, therefore, to attribute any part of it to the charterer”; That in holding that the award showed that the arbitrators “drawn the legal consequences of the established facts”, when in fact the arbitrators refused, under the pretext of their “lack of expertise”, to seek the consequences of the faults they found, the Court of Appeal distorted the award and therefore deprived its decision of a legal basis;

FOR THESE REASONS:

REVERSE AND ANNUL, in its entirety, the judgement handed down on 19 November 1987, between the parties, by the Paris Court of Appeal; consequently, returns the case and the parties to the state they were in before the said judgment and, in order to be upheld, refers them back to the Court of Appeal of Orléans.