This was an appeal in cassation from a decision of the Lyon Court of Appeal of 20 May 2021 brought by the appellant, Chubb European Group SE (Chubb), against the respondents, Heung-A Shipping Co Ltd (Heung-A), Clasquin, and XL Insurance Company SE (XL).

On 23 and 30 April 2012, Clasquin, insured by AXA Corporate Insurance Solutions (AXA), whose rights under the policy were transferred to XL, entered into a freight forwarding contract with Ficofi SA (Ficofi) for crates of wine to be shipped from Korea to the People's Republic of China. The transport was carried out in March 2014 by Heung-A. The goods were damaged in transit. The insurer of the goods, Ace European Group Ltd (now Chubb), compensated Ficofi for its loss, and then sued Clasquin and AXA/XL.

Chubb complained that the Court of Appeal judgment limited its compensation from Clasquin and AXA/XL to 7,333.37 Special Drawing Rights (SDRs) converted on the day of payment for the damage caused to the goods, whereas according to article 4.5.c of the Hague-Visby Rules and SDR Protocol, where the contents of the container or pallet are enumerated in the bill of lading with the number of packages it contains, the carrier's liability ceiling is calculated on the basis of counting all those packages as units.

The Court of Appeal calculated limitation on the basis of 11 packages, ie 10 pallets and one container, finding that the 387 crates grouped together on film-wrapped pallets were not enumerated in the bill of lading, and that the contents of each pallet could not be identified.

Chubb argued that the bill of lading mentioned the loading of 387 crates (10 pallets, 2,265 pieces) and a container. As a consequence, the number of crates that were grouped together on the pallets were enumerated in the bill of lading, and the crates should, in addition to the container, be taken into account to determine the amount of compensation.

Held: Partial cassation.

Having regard to arts 4.5.a and 4.5.b [sic: 4.5.c] of the Hague-Visby Rules and SDR Protocol, the first provision states that, unless the nature and value of the goods have been declared by the shipper before their loading and this declaration has been inserted in the bill of lading, the carrier, like the ship, shall in no event be liable for loss or damage to or relating to the goods in excess of 666.67 units of account per package or unit, or 2 units of account per kilogram of gross weight of the goods lost or damaged, whichever is greater.

The second provision states that where a container, pallet or similar article of transport is used to consolidate goods, the number of packages or units enumerated in the bill of lading as packed in such article of transport shall be deemed the number of packages or units for the purpose of this paragraph as far as these packages or units are concerned. Except as aforesaid such article of transport shall be considered the package or unit.

The Court of Appeal judgment noted that the bill of lading mentioned a load of 387 cases (10 pallets, 2,265 pieces) and a container, and deduced from this that the limitation of liability must be calculated on the basis of 11 packages (10 pallets + 1 container), since the 387 crates were not enumerated in the bill of lading and the crates were grouped together on film-wrapped pallets. In so ruling, while noting that the bill of lading mentioned the loading of 387 crates combined into 10 pallets, so that the limitation of liability had to be calculated on this basis, the Court of Appeal violated the aforementioned provisions.

The Court therefore strikes down and annuls the Court of Appeal judgment, but only insofar as it limits the appellant's compensation to 7,333.37 Special Drawing Rights (SDRs), and on this point, returns the case and the parties to the state they were in before this judgment, and refers them back to a differently constituted Lyon Court of Appeal.