This case involved the carriage by sea of 16 refrigerated containers of sweet corn between Senegal and the United Kingdom on behalf of Société de Cultures Légumières (SCL), the insured shipper. Upon delivery of the goods on 10 May 2017, reservations were expressed regarding one of the containers due to deterioration of the goods. The cargo damage was estimated at EUR 28,982.

SCL's insurers, having been subrogated into SCL's rights, sued the carrier CMA CGM in the Marseille Commercial Court to obtain reimbursement of the sum paid out under the insurance policy. The Court ruled that CMA CGM was liable to pay the insurers the EUR equivalent of 823.96 Special Drawing Rights (SDRs).

The insurers appealed. They argued that the Hague-Visby Rules were applicable since they were ratified by the UK. Failing that, the Hamburg Rules should be applied; the original Hague Rules were not applicable. CMA GGM argued that it was entitled to invoke limitation of liability according to the original Hague Rules; the limitation of liability was thus per package and not per cob of corn, the number of corn cobs having in any case not been mentioned in the bill of lading. CMA CGM further submitted that the container must be considered as the relevant freight unit in the absence of choice between the parties; the weight of the container could not be used as the freight unit under the original Hague Rules.

Held: Appeal dismissed.

It follows from art L5422-12 of the Transport Code and the Brussels Convention, both in its original version and in its amended versions, that CMA CGM is liable as the maritime carrier. However, CMA CGM may exempt itself from its presumed liability if it demonstrates the existence of one of the excepted cases, and this excepted case was indeed the cause of the damage. Among these excepted cases are the faults of the shipper, in particular in the packaging, packaging, or marking of the goods (art L5422-12-6°), as well as facts constituting an event not attributable to the carrier (art L5422-12-3°), or as provided for in the Brussels Convention in respect of the acts or omissions of the shipper or owner of the goods, its agent, or representative (art 4.2.i).

In this case, CMA CGM alleges a lack of pre-refrigeration of the goods, packing that was too compact, and a delay in loading; circumstances which, combined, constituted the cause of the damage suffered by the corn cobs, and constituted excepted cases. CMA CGM relies on a survey report of 23 November 2018. The insurers cite the malfunction of the container cooling system, relying for their part on TMC Marine's report of 7 September 2017. Despite the obvious contradictions emerging from the two reports, it appears that the TMC Marine report clearly highlights that the deterioration of the goods was the result of the temperature variations recorded within the container. The other arguments put forward by CMA CGM are also not substantiated by evidence.

Consequently, the judgment below is confirmed in so far as it declared CMA CGM responsible for the cargo damage, and that there was no excepted case allowing the presumption of liability weighing upon the maritime carrier to be excluded.

As to assessment of damages, the parties do not contest the assessment of the damages made by an expert in the sum of EUR 28,982. However, they differ on the rules applicable to limitation of liability, and the interpretation of the Hague Rules, if relevant, with regard to the unit or package to be used for calculating this limitation.

Article 10 of the Hague Rules makes this Convention applicable to transport covered by a bill of lading issued by one of the contracting States. This is the case for Senegal, the country in which the relevant bill of lading was issued. Senegal has not ratified the subsequent amendments of 1968 and 1979, known as the Hague-Visby Rules.

The Brussels Convention, in its version amended by the 1968 Protocol, nevertheless authorises the parties to apply its provisions by incorporating a so-called paramount clause in the bill of lading, notwithstanding the fact that the bill of lading was not issued in a Contracting State and carriage did not take place from a port in a Contracting State.

In this case, CMA CGM relies on cl 1 of the bill of lading:

'Hague Rules' means the provisions of the International Convention for the Unification of Certain Rules relating to Bills of Lading signed at Brussels on 25th August, 1924 and includes the amendments by the Protocols signed at Brussels on 23rd February, 1968 and 21st December, 1979, but only if such amendments are compulsorily applicable to this Bill of Lading.

It should be noted that CMA CGM itself also produces cl 6 on which the insurers rely, providing a different wording:

the responsibility of the Carrier shall be determined in accordance with the Hague Rules or any national law incorporating or making the Hague Rules, or any amendments thereto, compulsorily applicable to this Bill of Lading.

It follows from these clauses that if the Hague Rules apply to the bill of lading, both through the ratification of the Convention by Senegal and through the reference in the clause paramount, subsequent amendments to the Hague Rules are applicable only if they are compulsorily applicable to this bill of lading, and that is not the case here. Senegal, the country issuing the bill of lading, and the port of departure of the goods, is not a party to the Hague-Visby Rules.

The insurers maintain that Senegal has denounced the Hague Rules. However, they do not provide any document to support this denunciation, which must be express, and cannot result solely from the accession of Senegal to the Hamburg Rules. Given the reference to the Hague Rules expressly agreed upon by the parties, it also follows that the Hamburg Rules were not intended to apply.

Thus, under art 4.5 of the Hague Rules:

Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connexion with goods in an amount exceeding 100 pounds sterling per package or unit, or the equivalent of that sum in other currency unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading.

Consequently, the first instance Judges, after noting that the bill of lading referred, in respect of the relevant container, to '1 Lot said to contain sweet corn', were able to validly consider that the parties to the carriage contract had referred to a unit of freight, and that this unit of freight led to the application of a limitation of liability up to the equivalent in EUR of 1 unit x 823.96 SDRs. A reference to the number of corn cobs does not appear in the details of the bill of lading. Furthermore, the mention in the bill of lading of the gross weight of the cargo in the 'gross weight cargo' section (24,500 kgs) cannot take precedence over the mention made specifically in the 'description of packages and goods as stated by shipper' section of the bill of lading.

The first instance judgment will therefore be confirmed in its entirety.