This case involved carriage of three containers of fresh plums from South Africa to the UAE under a bill of lading issued by the carrier, CMA CGM. The bill of lading named the South African company FVC International as shipper and the Emirati company Marhaba MTA General Trading LLC (Marhaba) as consignee and notify party. The bill of lading specified that the goods must be transported at a temperature of -0.5° C.

When the vessel Flora Delmas arrived, damage to the goods was noted (soft and over-ripe plums). The survey report indicated that the temperatures during the trip had been between +1.2 and +8.7° C, and that this had resulted in a loss of 55% of the plums, assessed at a value of USD 48,265.30.

Marhaba and its insurers sued CMA CGM in the Commercial Court of Marseille. The Court held that although the carrier was not entitled to rely on any of the exceptions in art 4.2 of the Hague-Visby Rules, the proof of the quantum of the damage suffered by Marhaba had not been established, and the claims should therefore be dismissed.

On appeal, the Aix-en-Provence Court of Appeal (Chamber 3-1) upheld the first instance judgment. The Court of Cassation quashed and partially annulled this judgment and referred the parties to the Montpellier Court of Appeal.

Held: Appeal partially upheld. The judgment of the Commercial Court of Marseille is upheld, but only in so far as it declared Marhaba's and its insurers' claims admissible, ruled that CMA CGM was liable for damage caused to the goods during transport, and held that CMA CGM could not benefit from one of the cases exonerating liability in article 4. 2 of the Hague-Visby Rules. CMA CGM is ordered to pay the claimants USD 43,852.55, EUR 1,626.37 for the costs of the expert, plus interest.

Article 4.5.b of the Hague-Visby Rules states:

The total amount recoverable shall be calculated by reference to the value of such goods at the place and time at which the goods are discharged from the ship in accordance with the contract or should have been so discharged.

The value of the goods shall be fixed according to the commodity exchange price, or, if there be no such price, according to the current market price, or, if there be no commodity exchange price or current market price, by reference to the normal value of goods of the same kind and quality.

This provision is reproduced in identical terms in art L 5422-13 of the Transport Code.

In this case, in order to quantify the amount of damages at USD 48,265.30 USD, the appraiser, after having held that no sound market value was available, calculated the extent of the loss of goods by reference to the invoices of the shipper, FVC International, adding to them the costs of additional transport, then deducting the proceeds from the salvage sales, on the basis of profit and loss reports drawn up by Marhaba itself.

The appraiser valued the damaged goods by reference to the price appearing on the sender's sales invoices, converted from USD into AED, plus delivery costs, after noting that no market value was available. This price may, in this case, be used for the valuation of the damaged goods. In addition, CMA CGM, although it was represented in the appraisal operations and received communication of the report, neither discussed its conclusions, nor proposed another evaluation of the goods with regard to the criteria set out in art 4.5 of the Hague-Visby Rules.

It is therefore appropriate to ratify an assessment of the damaged goods at the sum of USD 48,265.30 corresponding to the value thereof on the day of unloading, after deducting the proceeds of fruit sales made on site.