Sté Frutas Hortaliz Organicas de Michoacán, México (FrHoMiMex) exported avocados in containers from Mexico on CMA CGM ships. The first consignment was carried on the HS Bach, the second on the CSAV Rauten, and the third on the Centaurus. The three reefer containers were stuffed by the shipper, FrHoMiMex, and each of the three consignments was covered by a sea waybill issued by CMA CGM. The refrigerated containers were tested by a Mexican company prior to loading and returned a temperature reading of an average of 7.3° C, 6.9° C, and 6.9° C respectively.

The containers were delivered to FrHoMiMex's agent, the Dutch company Organic Trade Co Holland (OTC). The quality control reports of each shipment describe soft avocados, with signs of rotting or advanced ripening, and the sales reports drawn up by OTC show losses in view of a sale price lower than the price initially fixed (EUR 9.50, or 10.50 per package replaced by EUR 1.5, 2, or 3 per package).

FrHoMiMex brought claims against CMA CGM as the carrier in the Commercial Court of Marseille. The Court held that its claims were admissible, but dismissed all its claims under the presumption of conforming delivery of the Bach and Rauten containers (art 3.6 of the Hague-Visby Rules), and an exemption from liability for insufficient packing (art 4.2.n of the Hague-Visby Rules) for the Centaurus container.

FrHoMiMex appealed to the Aix-en-Provence Court of Appeal, which overturned the trial judgment, holding that FrHoMiMex's claims were inadmissible, considering that as the shipper, it had to demonstrate that it alone had borne the damage resulting from the transport.

FrHoMiMex appealed to the Court of Cassation, which quashed and annulled the judgment of the Aix-en-Provence Court of Appeal and referred the parties to the Montpellier Court of Appeal.

Held: The judgment of the Commercial Court of Marseille is confirmed, except in so far as it held that there was a conforming delivery for the Bach container. In respect of this container, CMA CGM benefits from the exception provided for in art 4.2.i of the Hague-Visby Rules.

The parties are bound by the three waybills, to which the Hague-Visby Rules apply. According to art 3.6 of the Convention, unless notice of loss or damage and of the general nature of such loss or damage is given in writing to the carrier or its agent at the port of discharge, before or at the time of the collection of the goods, and their delivery to the custody of the person entitled to delivery under the contract of carriage, such collection shall constitute, until the contrary is proved, a presumption that the goods have been delivered by the carrier as they are described in the bill of lading.

The report concerning the Bach container, drawn up by BMT de Beer, mandated by CMA CGM, and the reports on the state of arrival of the Rauten and Centaurus containers, whose findings were made unilaterally by the firm Verzidjen (a cargo expert), are not disputed. They establish that the avocados in the Bach container were in a 'severely deteriorated' condition, being 'discoloured brown, tender to soft, completely covered with gray-white mould and rotted in the center of a few pallets with rot resembling advanced stages of anthracnose'. The Rauten and Centaurus shipments were described as more or less purple and soft, with formation of mould or rot.

Accordingly, the reservations made were perfectly valid and the presumption of conforming delivery must be rejected for the Bach container; the liability of the carrier is to be presumed. FrHoMiMex acknowledges that it did not enter reservations in the form and within the time required for the Rauten container; its delivery is presumed to be conforming. In respect of the Centaurus container, the initial email concerned only the 'poor condition' of the container, but at the request of CMA CGM, this was supplemented by a request for 'an investigation into the poor condition of the fruit'. That is sufficiently precise to rule out the presumption of conforming delivery.

As to CMA CGM's liability, art 4.2 of the Convention specifies that neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from: ...

(i) Act or omission of the shipper or owner of the goods, his agent or representative. ...

(m) Wastage in bulk or weight or any other loss or damage arising from inherent defect, quality or vice of the goods.

(n) Insufficiency of packing. ...

(q) Any other cause arising without the actual fault or privity of the carrier, or without the actual fault or neglect of the agents or servants of the carrier, but the burden of proof shall be on the person claiming the benefit of this exception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage.

The carrier bears the burden of proof of the constituent elements of the excepted case that it alleges, and of the causal link between this excepted case and the damage suffered by the goods.

The three shipments were carried out according to the three waybills on an FCL (full container load) basis, that is to say the shipper packed the container itself and handed it over to the carrier sealed. This delivery of closed containers did not allow the carrier to form any reservations on the conditions of packaging of the products.

FrHoMiMex maintains that the damage to the fruit in the three shipments stems from a poor adjustment of the controlled atmosphere. The transport instructions indicate on each waybill a temperature of 6.7° C, ventilation of 0%, and a controlled atmosphere.

The state of 'serious deterioration' of the fruit in the Bach container cannot be attributed to transport in defective conditions. The report clearly indicates that the refrigeration unit operated correctly throughout the transport period, but that the fruit was pre-loaded in a state that did not comply with the standards ('too hot, too mature, and harvested too early') with poor arrangement of the goods (short circuit of cooling air due to empty spaces in the stowage), so that 'climacteric ripening' had already started. The reports on the other two consignments mention that the deterioration of the fruit on the Rauten and the Centaurus vessels is not temperature-related, and that the packaging of the products was poor.

The loss of the avocados resulted from their initial state of ripening already in progress, from the existence of a fungus on the fruit, and from inappropriate packaging. In respect of the Bach consignment, CMA CGM's liability is exempted by art 4.2.i of the Hague-Visby Rules. Regarding the Rauten, the poor packaging of the fruit meant that they were likely to not withstand long transport. This appears to be the sole cause of the damage. The Centaurus is also a case of poor packaging conditions leading to withered fruit. CMA CGM benefits from the exception provided for by art 4.2.n of the Hague-Visby Rules.

Consequently, FrHoMiMex's claims are rejected.