Atuneros Congeladores y Transportes Frigorificos (Atunsa), the shipper, entrusted CMA-CGM with the transport of 19 containers of frozen tuna in bulk from Senegal to Mauritius. According to the bill of lading, the goods had to be transported at a constant temperature of -20° C. The goods were found to be damaged, and the consignee, Princes Tunia (Mauritius) Ltd, refused to take delivery.

Atunsa's insurer, Generali Seguros (GS), sued CMA-CGM on 11 February 2015 in the Commercial Court of Marseilles. On 11 January 2019, the Court of Marseille rejected the claim. GS appealed.

Held: The contested judgment is reversed. GS has title to sue, the original Brussels Convention is applicable, and CMA-CGM is ordered to pay GS 1,647.92 SDRs.

The relevant bill of lading was issued in Senegal, which is a signatory to the original 1924 Brussels Convention (known as the Hague Rules) which provides in art 10: 'The provisions of this Convention shall apply to all bills of lading issued in any of the contracting States.' Senegal, the country in which the bill of lading was issued, and the country of loading, is not a contracting State of the amended Brussels Convention (the Hague-Visby Rules).

Clause 1 of the CMA-CGM bill of lading provides that the term 'Hague Rules' designates the provisions of the Brussels International Convention of 25 August 1924 'and includes the amendments made by the Protocols signed in Brussels on February 23, 1968 and December 21, 1979, but only if these amendments are imperatively applicable to this bill of lading'.

It therefore appears that the bill of lading includes a paramount clause allowing the parties to refer contractually to the application of a treaty, in this case the amended version of the Brussels Convention, notwithstanding the fact that the country in which the bill of lading was issued, and the point of departure for maritime carriage, has not ratified this treaty, as permitted by the amended Brussels Convention. However, cll 1 and 6 above only refer to the amended version 'if these amendments are imperatively applicable'.

In this case, where the bill of lading was not issued in a contracting State, and the transport did not take place from a contracting State to the amended Brussels Convention, the amended version of the Brussels Convention cannot be considered mandatory, so it is not applicable. Only the Hague Rules are applicable.

On the liability of the carrier, according to art 4.2 of the Hague Rules:

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. ...

(n) Insufficiency of packing.

The bill of lading was signed by CMA-CGM's agent without any reservations being made on the condition of the goods. The goods were packed by a professional shipper, a specialist in tuna transportation. The containers were supplied by CMA-CGM to Atunsa, and were inspected by Bollore Africa Logistics, which found that they were functioning properly.

On the front of the bill of lading, written prominently in both English and French, the following statement appears: 'cargo packed in bulk by the shipper, the carrier cannot be held liable'. The appellant company maintains that this is a leonine exemption clause.

The Hague Rules setting out the strict liability of the maritime carrier are a matter of public order by application of art 3.8 of the Convention, according to which:

Any clause, covenant, or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or damage to, or in connexion with, goods arising from negligence, fault, or failure in the duties and obligations provided in this Article or lessening such liability otherwise than as provided in this Convention, shall be null and void and of no effect.

CMA-CGM is therefore not justified in relying on this clause.

There was contradictory expert evidence as to what caused the damage to the tuna. The goods had to be transported at a temperature of -20º C, and there is no evidence that when the containers were loaded, they were not at the required temperature. According to the reefer data, the container GESU9168514 never reached the contracted temperature of -20º C. Container GESU9028678 was subject to significant temperature variations attributable to numerous breaks in power supply to the container. It is therefore demonstrated that the containers malfunctioned while they were under the carrier's responsibility. Furthermore, no fault can be attributed to Atunsa's packing of the tuna into the containers. CMA-CGM is therefore not justified in relying on a clause in the bill of lading exonerating it from liability for the damage suffered.

On the compensation of GS, art 4.5 of the Hague Rules provides:

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.

According to art 4.5.e [of the Hague-Visby Rules]:

Neither the carrier nor the ship shall be entitled to the benefit of the limitation of liability provided for in this paragraph if it is proved that the damage resulted from an act or omission of the carrier done with intent to cause damage, or recklessly and with knowledge that damage would probably result.

GS claims that by supplying defective containers and by not taking care of the goods, CMA-CGM acted in a deliberate or reckless manner. However, GS does not demonstrate, on the one hand, that the containers were defective during loading (the Bollore Africa Logistics report indicates that the containers were in good working order), and, on the other hand, that the carrier was aware that harm could result from its behaviour.

Consequently, CMA-CGM is ordered to pay GS the sum of 1,647.92 SDRs or its equivalent in EUR at the rate in force on the day of the decision, in addition to interest.