SARL ALGO Négoce International (ALGO) entrusted SARL KAMI Transports (KAMI), a shipping agent, with the delivery of a road unit (tractor + trailer) containing a Case backhoe loader, plus a batch of joinery lumber. KAMI chose CNAN Group SpA (CNAN) to carry out the transport. CNAN issued a bill of lading for the transport of the goods weighing 12 mt on the Kilcoe from the port of Marseille (France) to the port of Skikda (Algeria). The bill of lading named KAMI as shipper and ALGO as consignee. The goods were unloaded on 3 August 2005 at the port of Annaba (Algeria) by Entreprise Portuaire de Skikda.

ALGO sued CNAN for losses relating to delayed delivery and lost cargo. On 15 May 2007, the Commercial Court of Marseille ordered CNAN to pay ALGO the sum of EUR 200,500 as damages. In the indemnity appeal filed against KAMI, the Court dismissed CNAN's indemnity claims filed against Entreprise Portuaire de Skikda and the National Shipping Co SpA, who was (apparently) the shipping agent of CNAN at Skikda.

CNAN appealed, arguing that it was exonerated from all liability under the Hague-Visby Rules, or in the alternative, that it was entitled to limit its liability under the Hague-Visby Rules to the value of 2,400 SDRs. ALGO counter-appealed, arguing that it was entitled to more damages than awarded at first instance.

Held: New judgment issued.

CNAN is not justified in invoking any of the provisions of the Hague-Visby Rules in arts 4.2.a-4.2.q exonerating it from its liability, in particular for the 'act or omission of the shipper or owner of the goods, his agent or representative' (art 4.2.i), either in respect of KAMI as shipper, or ALGO as consignee. ALGO made it known clearly and promptly that it intended to take delivery of the goods at the port of Skikda. KAMI, its shipping agent, relayed its client's instructions to CNAN immediately, and invited it to deliver the goods to the recipient within one week at the port of Skikda. CNAN gave 'very urgent' instructions to National Shipping Co SpA in Annaba 'to settle this matter' and 'to repatriate the craft to the port of Skikda'. CNAN cannot blame ALGO for having procrastinated or not having completed shipping formalities at Skikda.

CNAN is not justified in taking advantage of the limitation of liability established by art 4.5.a of the Hague-Visby Rules where the damage results from an act or an omission of CNAN which took place recklessly with the awareness that damage would probably result therefrom (art 4.5.e). CNAN committed an inexcusable fault by having 'mislaid' a batch of goods not unloaded on 3 August 2005, and to have found it only two months later, on 4 October 2005, on the urgent and renewed requests of the recipient. CNAN took no effective measures to avoid the consequences of its initial error, even inviting the recipient to 'work with' National Shipping Co SpA to have the goods delivered. CNAN's total negligence in remedying a transport incident is established.

KAMI, as a maritime transport agent, guarantees the good arrival of the goods at the destination port and is responsible in its sole capacity as maritime transport agent for the losses and damage that have occurred. KAMI cannot avail itself of limitation of liability in the event of the inexcusable fault of its subcontractor.

ALGO's right to compensation encompasses the entire damage that it has experienced and which constitutes a direct and foreseeable result of the bad execution of the maritime transport by CNAN. This includes the costs of renting substitute equipment in Algeria.

CNAN does not articulate any relevant factual element that would allow an indemnity claim against Entreprise Portuaire de Skikda and/or National Shipping Co SpA.

KAMI, who has not committed any personal fault in the performance of its mission as a freight forwarder, must be fully indemnified by CNAN.