This was an appeal in cassation from the judgment of the Aix-en-Provence Court of Appeal, 5 November 2012. Two temperature-controlled containers containing cartons of frozen lobsters were loaded on board the vessel Eugenio to be transported by CMA CGM (the carrier) from the port of Tolagnaro (Madagascar) to Tokyo (Japan), to be delivered to Global Eight Corp. Shortly after departure, the vessel ran aground on a beach during an avoidance manoeuvre of the wreck of the vessel Wellborn and had to be towed to the port of Durban (South Africa). Global Eight Corp found that the goods had partially thawed after their arrival in Tokyo on 25 October 2005. It obtained compensation for its loss from its insurer, AIU Insurance Co. The latter claimed compensation for damage to the goods as well as the reimbursement of its share of the compensation paid for the salvage operations provided to the ship between Tolagnaro and Durban, a declaration of general average having been made.

AIU Insurance Co complained that the judgment under appeal rejected its claim for compensation for damage to the goods. It argued that it followed from art 3.6 of the Hague-Visby Rules that the presumption of compliant delivery is set aside, even in the absence of a written reservation within three days of delivery of the goods, if the condition of the goods was contradictorily noted at the time of delivery. It further argued that the carrier was responsible for damage suffered by the goods during transport, except for proof of an excepted case; that its responsibility was engaged even in the absence of fault; and that the Court of Appeal deprived its decision of a legal basis with regard to arts 3 and 4 of the Hague-Visby Rules.

AIU Insurance Co also contended that it followed from rule D of the York-Antwerp Rules that in the event of general average, when the event which gave rise to the expenditure was the consequence of a fault committed by one of the parties involved in the adventure, the other interested parties must contribute to this expense but may claim reimbursement of their contribution from the party at fault. The Court of Appeal held that the nautical fault of the master constituted the exclusive cause of the grounding of the ship. However, by rejecting the insurer's claim for reimbursement of its contribution to general average directed against the carrier, the Court of Appeal violated rule D of the York-Antwerp Rules. The carrier's exemption from liability due to the nautical fault of the master provided for in art 4.2.a of the Hague-Visby Rules was applicable only to actions in liability for loss or damage suffered by the goods transported. By opposing this exemption to the insurer's claim against the carrier for reimbursement of its contribution to general average, consisting of salvage expenses incurred in respect of the stranded ship, the Court of Appeal violated, by false application, art 4.2.a of the Hague-Visby Rules.

Held: Appeal dismissed.

First, it does not appear that the representative of the carrier in Tokyo participated in a contradictory finding of the state of the goods at the time of its receipt, in accordance with the requirements of art 3.6 of the Hague-Visby Rules, so the complaint of the deterioration of the goods is irrelevant.

Secondly, in the absence of a contradictory statement of the state of the goods or a written notice of damage, the carrier benefited from the presumption of compliant delivery of the goods, and it was therefore up to the insurer to demonstrate that the alleged damage had occurred during the maritime transport in question. The judgment noted that the insurer only submitted a document in English without an accompanying translation. The insurer did not establish that the failure of the refrigeration unit which, according to it, was the exclusive cause of the damage, occurred before the grounding of the vessel or on the occasion of this event or during the transit to Durban or, more generally, during transport operations after the grounding. The Court of Appeal therefore legally justified its decision.

It follows from rule D of the York-Antwerp Rules that in the event of general average, when the event which gave rise to the sacrifice or the expense was the consequence of a fault committed by one of the parties involved in the adventure, there will be no less room for contribution, but this shall not prejudice any remedies or defences which may be open against or to that party in respect of such fault. The Court of Appeal only had to pronounce on the faults imputed personally to the carrier by the insurer and, having excluded them, legally justified its decision.