This was an appeal from a judgment handed down on 25 July 2018 by the Commercial Court of Marseille, which held that the subrogated insurer, Société Helvetia Compagnie Suisse d’Assurances (Helvetia), had standing to sue the carrier, CMA-CGM, and found the carrier liable for damage to pears carried in refrigerated containers. The carrier appealed to the Court of Appeal.

Held: Appeal dismissed. Judgment of the Commercial Court confirmed.

Pursuant to arts L 121-12 and L 172-29 of the Insurance Code, an insurer who has paid out an insurance indemnity acquires, up to the amount of its payment, all the rights of the insured arising from the damage which gave rise to warranty. Thus, the insurer who has paid the indemnity contractually due to its insured is legally subrogated in the rights of the latter.

In this case, after noting that Helvetia provided proof of the insurance policy, its endorsement, a deed of transfer of rights from Royal Fruit Trading for the benefit of Distrimex, as well as the payment made for the benefit of its insured and a subrogative receipt, the first instance Judges validly characterised the existence of an obligated payment in execution of the insurance policy, so that the insurers benefit from the legal subrogation.

Furthermore, it is not up to the insurers to prejudge the possible liability of the shipper for the damage. The payment of the indemnity was made on the basis of a report from Lloyd's highlighting temperatures that did not comply with the stipulated temperature of 0.5° C, thus allowing the implementation of the terms of the insurance policy.

Moreover, the arguments developed by CMA-CGM relate to the substantive debate on the respective responsibilities for the damage and cannot call into question the validity of the legal subrogation on which Helvetia can rely. The judgment is thus confirmed on this count.

On liability for damages, pursuant to art L 5422-12 of the Transport Code and the Brussels Convention of 25 August 1924, the maritime carrier is liable for loss and damage suffered by the goods from taking charge until delivery.

Nevertheless, the carrier can exonerate itself from the responsibility which is presumed against it for loss and damage to the goods transported if it demonstrates the existence of one of the excepted cases admitted by art 4.2 of the Brussels Convention. and L 5422-12 of the Transport Code, and if it demonstrates that this excepted case was indeed the cause of the damage. Among these excepted cases are faults on the part of the shipper, in particular in respect of the packaging, packaging, or marking of the goods, in addition to inherent defects in the goods. However, the fault of the carrier, provided that it is duly established, deprives the excepted case in whole or in part of its exonerating character.

In this case, it appears that the setpoint appearing on the data loggers shows that the temperature was set at 0º C and not at the required temperature of +0.5º C. Although it is a difference of half a point, the fact remains that if this setpoint temperature was set in the terms of the bill of lading, and not discussed by CMA-CGM, it is precisely because that the shipper was able to estimate this temperature to be in accordance with the transport requirements of the goods. In any case, in the absence of reservations on loading, CMA-CGM has no basis to question the setpoint temperature.

However, CMA-CGM invokes a loading of goods carried out beyond the loading line and produces a report carried out by its expert which considers that:

the goods stuffed in the container were stuffed beyond the authorised line and, consequently, the circulation of the air in the container was reduced and obstructed. Thus, the discoloured, soft, and rotten pears can only be attributed to improper packing. Reddened and damaged pears are an indication of the quality of the products. Rotten pears can be attributed to the age of the product. The condition of the cargo can be attributed to the age and quality of the product and improper storage conditions at the shipper's premises.

However, this report, drafted by an agent of CMA-CGM, is insufficient to establish that the loading did not comply with the limit imposed or would have presented an inherent defect. Moreover, the photographs produced in the proceedings by the carrier do indeed include a red line, but one which was added for the purposes of the case and is intended to highlight a rectangular mark on the walls of the container. However, it cannot be deduced from these observations alone that this mark constitutes the loading limit, especially since the photographic plate produced by Distrimex does not corroborate this overrun. The hypothesis put forward by CMA-CGM cannot therefore be accepted.

CMA-CGM also invokes hot stuffing of the goods. As the Court of first instance rightly noted, examination of the data loggers shows that on the second day of transport, the incoming and outgoing air temperatures had returned to levels below 3.5 º Celsius, with a difference between the temperatures of the two streams narrowing very regularly. As a result, proof of the existence of hot stuffing is not provided, given the observed rapid temperature drop.

Finally, CMA-CGM invokes an inherent defect of the goods. The fruit was inspected before the closure of the container by phytosanitary control, which produced certificates for each of the containers declaring that the products conformed to the phytosanitary rules of the importing country. It is therefore established that the goods were in good condition when loaded into the containers.

The carrier cannot therefore be exonerated from the presumption of liability against it.