This was an appeal in cassation from the judgment of the Aix-en-Provence Court of Appeal, 16 November 2006. Containers belonging to the US company Ram Trading International (Ram), named as shipper and consignee in the bill of lading, were carried on deck of the Ville de Tanya belonging to CMA CGM, to be transported from China to Brazil. The containers fell overboard during a typhoon that occurred on 31 August 2000. Ram sued CMA CGM in compensation for its damage. The Court of Appeal allowed its claim.

CMA CGM appealed, arguing that art 1.c of the Hague-Visby Rules, defining goods falling within the scope of the Convention, only excludes the application of the Convention when the loading on deck has been declared to the shipper. In the absence of such a declaration of deck carriage, the transport of the goods remains subject to the provisions of the Convention, including art 4.2.c, according to which neither the carrier nor the ship shall be liable for loss or damage resulting from or arising from 'perils, dangers and accidents of the sea or other navigable waters'. In the alternative, the shipper could not have been unaware that the containers entrusted to the carrier would necessarily be loaded on deck, no other mode of loading being possible. Further, even assuming that a fault has been established in the loading plan, it could only be imputed to the master of the vessel and is therefore a nautical fault exonerating the carrier from all liability under art 4.2.a of the Hague-Visby Rules.

Held: Appeal dismissed.

A maritime carrier who stows goods on deck without the agreement of the shipper cannot be exonerated from its responsibility for loss or damage by taking advantage of perils, dangers or accidents at sea if the goods have been lost because they fell overboard at sea. Having found that the carrier had not obtained the agreement of the shipper for the goods to be carried on deck and that the containers had been lost at sea during transport, the Court of Appeal correctly and unanimously held that the carrier could not avail itself of the perils of the sea exwmption.