CMB Transport NV (the respondent), a company in Antwerp, Belgium, undertook to transport 24 containers of frozen meat by ship from Le Havre, France, to Luanda, Angola, in return for payment. Two bills of lading covering the shipment were issued in October 1992. On 3 November 1992, the vessel arrived off the port of Luanda, which was closed indefinitely because of a civil war in Angola. As the development of the conflict was completely unpredictable during the first four days of November 1992 and the cargo transported was perishable, the respondent carrier decided to divert the ship to Pointe-Noire, Republic of Congo, where the goods were stored.

André & Cie SA (the appellant), representing the cargo interests, criticised the respondent carrier for having taken an overly hasty decision. The port of Luanda reopened on 6 November 1992. CMB, by telex of 9 November 1992, informed that transport between Pointe-Noire and Luanda would only take place on a new contractual basis. On 27 November 1992, the appellant wrote to the respondent saying: 'We guarantee that payment for transport will be made as soon as the case of force majeure that you invoke proves to be justified.' The voyage from Pointe-Noire to Luanda was the subject of two new bills of lading. The respondent carrier's vessel arrived in Luanda on 30 November 1992.

In March 1995, the respondent filed a claim before the Tribunal Civil Lausanne District against the appellant for storage costs in Pointe-Noire and the freight between Pointe-Noire and Luanda. By judgment of 13 September 1999 the Court rejected the request. In substance, it considered that the contract of carriage was governed by Belgian law and that the appellant was not the debtor of the sums claimed, for lack of a legal relationship between the parties. Ruling on the appellant's appeal by judgment of March 15, 2000, the Appeals Chamber of the Cantonal Court of Vaud on the contrary admitted the request, considering that the civil war in Angola constituted a case of force majeure under Swiss domestic law. The respondent now brings an appeal for revision to the Federal Court.

Held: The appeal is upheld, the contested judgment is set aside, and the case is returned to the Cantonal Court for a new decision.

The legal claim is based entirely on the execution of the transport contract between Le Havre and Luanda. The question is whether the carrier was in the right to divert the ship and put the goods in a safe place at the expense of the other party. These questions depend on the rules governing the contract of carriage. The respondent also claims from the appellant payment for transport from Pointe-Noire to Luanda. On this point, the Cantonal Court held that the appellant was directly obligated to the respondent to pay the costs in question. This is clearly conditional on the respondent being able to establish that it was entitled to divert the vessel. Consequently, it is not possible to rule separately on this undertaking without first examining the question of the proper performance of the contract, the object of which was the transport of the goods between Le Havre and Luanda.

It is therefore necessary to determine which law is applicable to the aforementioned contract. According to the Cantonal Court findings, the respondent was obligated, in return for remuneration, to transport goods from one place to another. According to the law of the forum, the agreement concluded by the respondent must be classified as a contract of carriage.

It does not follow from the facts that an election of law has been expressly agreed (art 116 LDIP = Code on Private International Law). In such a situation, the contract is governed by the law of the State with which the transaction has the closest links (art 117(1) LDIP). These links are deemed to exist with the State in which the party which is to provide the characteristic service has its habitual residence or, if the contract is concluded in the exercise of a professional or commercial activity, its establishment (art 117(2) LDIP). Since the object of the transport contract is a service, this service must be considered to constitute the characteristic service (art 117(3)(c) LDIP). Consequently, the contract of carriage in Swiss private international law is governed, in the absence of an election of law, by the law of the State in which the carrier has its habitual residence.

As long as the respondent has concluded the contract in the exercise of its professional or commercial activity, it is the place of its establishment which is decisive (art 117(2) LDIP). The establishment of a company is in the State in which it has its registered office or a branch (art 21(3) LDIP). In this case, it was not accepted that the contract had been concluded with a branch office. The link is therefore to the head office of the respondent, which is located in Antwerp. This city is located in Belgium, and not - as it appears on the cover of the Cantonal judgment - in the Netherlands. The name 'Antwerpen' appearing on p 2 of the judgment referred to is only the designation of the same city in the Flemish language. It follows that the contract of carriage between Le Havre and Luanda is governed by Belgian law.

It was for the Cantonal Court to establish the content of foreign law and to apply it (art 16(1) LDIP). It had to apply the rules of operative law in force in Belgium. The Court also had to take into account the international treaties applicable in that country. It is true that the concepts in this matter have been largely unified by the International Convention for the Unification of Certain Rules relating to Bill of Lading concluded on 25 August 1924 (the Hague Rules). However, even if Belgium, by the effect of an international agreement, has adopted the same standards as Switzerland, this does not have the consequence of transforming Belgian law into Swiss law. When Swiss private international law designates a foreign law, this designation extends in principle to all the provisions applicable to the case (art 13 LDIP). In particular, the designated foreign law regulates both the origin and the effects of the obligation; it therefore also governs the consequences of non-performance or improper performance.

In this case, the Cantonal Court examined the question of force majeure by referring, without any explanation, to the case law and doctrine of Swiss domestic law, when this law was not applicable. Without question, the Cantonal Court violated art 117 LDIP, a standard of federal law which required it to research and apply Belgian law. When - as in this case - the Cantonal Court disregards the federal rules governing the determination of the applicable law, this is a violation of federal law which can be invoked in an appeal.

For all practical purposes, it should be noted that the appellant maintained in the proceedings that the circumstances required waiting a few days for the situation to be clarified; the Cantonal Court clearly did not respond to this argument by merely observing that civil war is a case of force majeure under Swiss law. While it can be understood that the appellant can be held liable on the basis of its conditional commitment to pay the costs of the transport from Pointe-Noire to Luanda, it is not possible to understand on what legal basis this conclusion was based. On the point of whether the appellant should be required to pay the storage costs in Pointe-Noire, the Cantonal Court gives obscure explanations asserting that the appellant had acquired the goods and that they had been insured through it. Assuming that the Court considers that the appellant is the consignor in the contract relating to the transport of the goods between Le Havre and Luanda, it is for the Court to explain why the name of the appellant does not appear on the bills of lading; according to these documents it seems that the shipper is a third party acting in its own name, but on behalf of others (presumably on a recourse basis). If the Cantonal Court thinks that the appellant has taken over the obligation of the shipper, it must indicate which legal act is the basis of this situation. Of course, the representation or assumption of debt must be examined in the light of the legal order designated by Swiss private international law.

Ultimately, it appears that the disputed issues have not been resolved. In these circumstances, the appeal must be admitted, the judgment criticised must be annulled, and the case must be returned to the Cantonal Court for a new decision.