Court of Cassation, No. 87-17.678

Court of Cassation, First Civil Chamber, 2 May 1990, No. 87-17.678

Challenged decision: Paris Court of Appeal, 29 May 1987

ALPHA TRANSPORTS

Vs.

V.O.F. MARLEEN COOL TRANS

THE COURT OF CASSATION, FIRST CIVIL CHAMBER, has given the following judgment: On the appeal by :

On the sole ground, taken in its two parts:

Whereas, according to the judgment under appeal, following damage and loss of goods found during the unloading of a vessel which had transported frozen meat from Ireland to Turkey, a dispute arose between the company Alpha Transports, the shipper, and the shipowner, the Netherlands-based company V.O.F. Marleen Cool Trans;

The shipper, after paying to the Irish seller the cost of damages and losses, filed a request for arbitration against the shipowner with the Chambre d’Arbitrage Maritime de Paris on 18 August 1983, under the arbitration clause included in the charter party; that before the start of the arbitration proceedings, Alpha Transport was compensated by its insurers, including the leading insurer Groupe Drouot, on 19 August 1983 and 9 May 1984, and subrogated all its rights and actions to them; that, by a first instance award rendered on 25 April 1985, the arbitrator found that Alpha Transport could not claim compensation for a loss already indemnified by the insurers and only ordered the shipowner to pay the costs of the survey of the goods, not reimbursed by these insurers; that the Drouot Group, stating that it was acting both in its own name and as lead counsel, requested that an examination of the case at second instance be carried out; that, by award of 28 November 1985, the arbitrators declared this request inadmissible, on the essential grounds that this insurer was not a party to the arbitration proceedings at first instance and that it could not intervene at second instance in proceedings where one of the original parties was not present; that the judgment under appeal (Paris, 29 May 1987) dismissed the action for annulment brought by Alpha Transport and Groupe Drouot against this arbitral award;

Whereas, these companies complain that the Court of Appeal ruled in this way, because, according to the ground in law, inadmissibility amounts to a refusal by the arbitrators to rule on the questions submitted to them and that they did not comply with the terms of their mission and violated Articles 1504 and 1502-3 of the new Code of Civil Procedure; on the other hand, by rejecting both Alpha Transport’s claim, on the grounds that it had been compensated by its insurer, and that the voluntary action of Groupe Drouot subrogated in the rights of its insured, the arbitral tribunal would have disregarded the fundamental right of the parties concerned to take legal action and the requirements of French international public policy, thus violating Articles 1504 and 1502-5 of the aforementioned code;

However, given that the arbitrators are the judges of the validity of their referral in accordance with the rules of the Chambre d’Arbitrage Maritime de Paris to which the parties have adhered; that by declaring inadmissible, pursuant to Article XV of these rules, the request for arbitration at second instance formulated by the Drouot Group, which was not a party to the arbitration proceedings at first instance, the Arbitration Court did not disregard its mission;

Whereas then, in considering that the subrogated insurer could not, under the abovementioned conditions, refer the matter to the arbitral tribunal, the arbitrators did not deny Groupe Drouot the right to bring the subrogation action under another procedure;

Therefore, it follows that the ground is unfounded in neither of its two parts;

FOR THESE REASONS:

REJECTS the appeal;