On 20 February 2005, CMA CGM issued a bill of lading relating to the transport of two 40-foot containers containing packages of cigarettes from the port of Norfolk (USA) to that of Beirut (Lebanon), with transhipments at the ports of Fos sur Mer and Damietta. The goods were unloaded on 6 April 2005 and damage to one of the containers was observed on docking in circumstances which are now controversial. Bankers Assurance SAL paid insurance compensation to the receiver of the goods and then sued CMA CGM.

On 18 September 2007, the Commercial Court of Marseille ordered CMA CGM to pay Bankers Assurance SAL USD 30,965 or its equivalent, in addition to USD 1,100 in respect of expert fees. CMA CGM appealed.

Held: Judgment confirmed, except for quantum.

The transport is governed by US COGSA and the clauses in the bill of lading, in particular those relating to the liability of the carrier during the periods after the discharge of the goods when they have remained in its effective custody, and those relating to the recourse to French law for all that is not regulated by the bill of lading and for the interpretation of its terms and conditions. The US COGSA rules (like the Hague-Visby Rules) provide for the obligation of the carrier to ensure the loading and unloading of the goods in an appropriate and careful manner. In this case, the damage to the container was observed when it was handed over to the port authorities. The responsibility of the maritime carrier remains, in any event, until the end of the unloading operations.

At the end of the unloading operations of the ship, which arrived at Beirut on 6 April 2005, the Beirut Port noted on its 'Containers Entry Form' that the relevant container was dented. This document establishes the delivery of the containers by the maritime carrier to the port authorities and is signed by an agent of the Port, by a Customs agent and by the agent of the maritime carrier. CMA CGM cannot rely on the document entitled 'Containers Outurn Report', also dated 6 April 2005, which does not mention any reservation, since this document was drawn up unilaterally by Merit Shipping SAL, CMA CGM's agent in Beirut, and was signed by the master of the vessel and 'the stevedore', a stevedoring company commissioned by the maritime carrier to carry out docking operations, and merely tallied up the number of containers. CMA CGM thus does not benefit from the presumption of compliant delivery and has not proven that the damage caused by wetting was due to another cause, in particular an infiltration of rainwater after the unloading operations.

The expert report noted that the relevant container exhibited deformations and two L-shaped significant 'shears' 10 cm long and 1-2 cm wide, and that the kraft packaging was wet. The expert noted that 59 packages each containing 50 boxes x 10 cartons of cigarettes, or 10,000 cigarettes per package, were a 'total loss'.

The limitation of compensation which benefits the maritime carrier is that provided for in US COGSA § 1304-5 as being USD 500 per 'package'. It was open to the parties to set up a compensation scheme inferior to that of the Hague-Visby Rules. It follows that CMA CGM can avail itself of the compensation limits provided for by cl 8(4) of the bill of lading referring to the rules of the US COGSA and limiting the liability of the carrier to USD 500 per 'package', ie compensation of USD 29,500.

The Court therefore confirms the judgment referred in all its provisions, except to limit the amount of compensation to the equivalent of USD 29,500.