This was an appeal in cassation against the judgment of the Aix-en-Provence Court of Appeal, 15 June 1993. Schweizerische Isola Werke (the shipper) had containers loaded in Marseille (France) on the Ville du Sahara for maritime transport to Dubai (UAE) by Compagnie Maritime d'Entreprise (the maritime carrier), according to a bill of lading issued in Basel (Switzerland) on 2 November 1985. One of the containers was received empty of all contents and devoid of lead. American Home Insurance (the insurer), subrogated in the rights of the shipper for having indemnified it, sued the maritime carrier for the amount of the indemnity it had paid. The Court of Appeal granted the insurer's claim.

The maritime carrier criticised the judgment for having held that it was responsible on the basis of French law. By declaring French law applicable solely because the transport had taken place from a French port, the judgment violated art 16 of the Law of 18 June 1966, art 455 of the new Code of Civil Procedure, and art 10 of the Hague-Visby Rules. French law was not mandatorily applicable merely by virtue of the fact that the carriage took place from a French port, thus leaving unanswered conclusions relating to the application of the Hague-Visby Rules, by refraining from researching the law applicable to the maritime transport. By refraining from ruling on the application of the Hague-Visby Rules due to the inclusion in the bill of lading of a paramount clause, the judgment also violated art 1134 of the Civil Code and art 455 of the new Code of Civil Procedure.

Held: Appeal dismissed.

If, by virtue of art 10.a or 10.b, the Hague-Visby Rules were intended to govern the liability of the maritime carrier, they would have applied here. However, according to art 1.e of the Hague-Visby Rules, the maritime carrier is only liable under the Rules from the loading of the goods on board the ship until their discharge. The Court of Appeal deduced from this correctly that, since the maritime carrier maintained that the damage was caused prior to the loading of the container or subsequent to its discharge, its liability should be assessed on the basis of the French law of 18 June 1966, which is applicable here. The maritime carrier did not argue before the trial Courts that the bill of lading extended, by any of its clauses, the provisions of the Hague-Visby Rules to operations not falling within its scope. The maritime carrier's submission is new and, being a mixed question of fact and law, is inadmissible.