This was an appeal in cassation against the judgment of the Douai Court of Appeal, 14 March 2013. Hexa Go imported fruit from South America. The transport of the fruit in temperature-controlled containers was entrusted to Maersk Line and Maersk Benelux BV (the maritime carriers) on their ships Maersk Alioth, Maersk Lexa, and Maersk Rosario. When these ships arrived at Dunkirk, Hexa Go reported damage, for which it claimed compensation from the maritime carriers. After Hexa Go's liquidation, these proceedings were continued by its liquidator.

The liquidator complained that the Court of Appeal had ignored the expert's report commissioned by Hexa Go. The liquidator argued that the report, which had been submitted to the free discussion of the parties, amounted to a contradictory finding of the damage affecting the goods transported by these ships and therefore gave rise to a presumption of liability of the part of the maritime carrier. By rejecting the report, the Court of Appeal violated art 16 of the Code of Civil Procedure, together with arts 3.1, 3.4, 3.6 and 4.2 of the Hague Rules. The maritime carrier is presumed to be responsible for any damage or loss noted on delivery, except in the event of proof of one of the excepted cases provided for exhaustively by the Hague Rules, or in the absence of reservations made within three days. By refusing to take into account the expert's report as to the damage affecting the goods delivered on 28 March 2007 by the Lexa Maersk, on the basis that the expert report was dated 12 April 2007, when only the date of the contradictory findings mattered and that these had been carried out within three days of the arrival of the ship on 30 March 2007, as indicated on the documents, the Court of Appeal ruled on an inoperative reason and violated the abovementioned provisions of the Hague Rules.

Held: Appeal dismissed.

First, a non-contradictory expert report does not amount to the contradictory observation of the condition of the goods at the time of their receipt, which is required, in lieu of reservations, by para 3 of art 3.6 of the Hague Rules to reverse the presumption of compliant delivery benefiting the maritime carrier. Secondly, the judgment notes that, in respect of the Lexa Maersk, even if the liquidator claims that the expert's finding of damage took place on 30 March 2007, the corresponding report is dated 12 April 2007, thus highlighting that the written notice of loss or damage provided for in art 3.6 of the Convention had not been given within three days of delivery of the goods, as required for latent damage. Thirdly, having deduced correctly from the absence of regular reservations or of contradictory observations of the state of the goods, that the presumption of compliant delivery by the carrier applied, it was then up to the liquidator to provide proof that the goods showed damage that had occurred during transport.