This was an appeal and cross-appeal in cassation against the judgment of the Aix-en-Provence Court of Appeal, 2 December 1999. Rosco Shipping Co (Rosco) took charge of goods under a bill of lading on the ship World Apollo departing from Koshichang (Thailand) bound for Dakar (Senegal). Cargo damage was noted on arrival. The Steamship Mutual Underwriting Association Ltd, Rosco's P&I club (the club), issued a letter of undertaking. General Insurance of Senegal, Sonam, National Insurance and SNAS (the insurers), claiming to be subrogated in the rights of the Equalisation and Price Stabilisation Fund, the 'notify party' on the bill of lading, sued Rosco and the club for compensation for their damage. The Court of Appeal ruled out the club and limited the liability of Rosco to the sum of USD 83,471.

The club and the insurers criticised the judgment.

The Hague Rules apply to a bill of lading created in one of the Contracting States. By applying the Convention to the transport even though Thailand, the country of issue of the bill of lading and of the port of loading, is not a party to this treaty, the Court of Appeal violated art 10 of the Hague Rules.

The Hamburg Rules have been in force in Senegal since 1 November 1992, ie prior to the date of the disputed contract of carriage, and apply automatically according to art 2.1.b to any contract of carriage by sea ​​between two different States when the port of discharge provided for in the contract is situated in a Contracting State. By requiring the maritime carrier to provide proof that Senegal has denounced the Hague Rules, the Court of Appeal added an unforeseen condition to the provision, thus violating arts 2 and 31.1 and 31.4 of the Hamburg Rules.

The paramount clause inserted on the back of the bill of lading specified that the applicable law would be the 1924 Convention (ie the Hague Rules) if it had been ratified by the country of loading, and that failing this, the applicable law would be the corresponding law applicable in the country of destination, or the 1924 Convention if the loading had taken place in a port of a State not contracting to the 1924 Convention, and if the legislation of the country of destination was not necessarily applicable. The paramount clause therefore proposed an alternative depending on whether the applicable law was that of the State of the port of loading or that of the State of the port of unloading, considering in this second category a further distinction. By confining itself to asserting that the paramount clause referred to the 1924 Convention, the Court of Appeal erred.

Held: Appeal dismissed.

First, the Court of Appeal was entitled to interpret the paramount clause as referring to the Brussels Convention of 25 August 1924.

Secondly, on the basis of a reasoned decision and without distorting the Senegalese legislation, the Court of Appeal held that the Hamburg Rules did not apply in this case. Having thus held, on the one hand, that the Hague Rules were referred to in the paramount clause and, on the other hand, that no mandatory rule was opposed to this choice by the parties, the Court of Appeal legally justified its decision.