A numerically controlled milling machine was carried on deck during a journey between Florida and France. The device underwent an oxidation. The shipper sued the carrier. But the milling machine was just protected with plastic bubble wrap and tarpaulins. So the carrier raised the exception of insufficiency of packing (art 4.2.n of the Hague Rules).

Held: The Cour de cassation considered that the milling machine was carried on deck in breach of the duties of the maritime carrier. The Court of Appeal should have determined whether the packing was not suitable for loading in the ship’s hold. Because the carrier did not declare the carriage on deck, it is likely that the shipper had imagined a loading in the hold. It is therefore necessary to investigate whether the packing was suitable for such a loading. If so, the carrier would be liable, since the loading on the deck would be the sole cause of the damage. On the other hand, if the packing was insufficient even for loading in the hold, the carrier may invoke art 4.2.n, because the damage would be the consequence of the shipper's fault.