This was an appeal in cassation against the judgment of the Aix-en-Provence Court of Appeal, 18 October 1988. The Aude, chartered by Sud Cargos (the carrier), transported equipment secured on trailers from Marseille (France) to Oran (Algeria). The carriage was commissioned by Jolasry and Sati/Danzas on behalf of Batimex. At the port of destination, Société Nationale de Manutention Algérienne, acting for Société Entreprise Portuaire d'Oran (the stevedore) proceeded to unload the trailers. After the disembarkation of one of the trailers, the vessel took on a list of about 45 degrees, causing the undocking of the other trailers and their loads. That part of the cargo had to be thrown overboard to avoid the loss of the vessel. The companies that had suffered damage due to the loss of their equipment and vehicles, and their insurers who, having compensated them, were subrogated in their rights, sued the carrier in damages. The carrier called upon the stevedore to indemnify it.

The Court of Appeal held against the carrier. The carrier appealed, arguing that a fault in the unloading operations of cargo which, while causing damage to it, compromises the safety of the ship, the rescue of which required sacrificing part of this cargo, constitutes a nautical fault that exonerates the carrier from liability. It was only after noticing that the unloading of a trailer caused both a part of the cargo to be undocked and the ship to list at about 45 degrees, that the master decided to sacrifice part of the the goods in order to avoid the loss of the ship, and which also led the master to make a declaration of general average. The Court of Appeal could not deduce from this that the fault giving rise to the damage was of a commercial nature without depriving its decision of a legal basis with regard to art 4.2 of the Hague Rules and art 27 of the Law of 18 June 1966.

Held: Appeal dismissed.

The Court of Appeal was entitled to hold that the list of the ship and the consequent unbinding of part of the cargo had been caused by a handling fault committed during the unloading of the goods, and that this fault had a commercial character within the meaning of art 4.2 of the Hague Rules.