This was an appeal in cassation against the judgment of the Paris Court of Appeal, 17 October 2013. Daher International & Logistics (Daher), a freight forwarder, was commissioned by the companies of the Alstom Group, including Alstom Power (Alstom), to organise the transport of two rotors from Bilbao (Spain) to Skikda (Algeria). Daher entrusted the transport to CEC Lines (the carrier) on the ship CEC Caledonia. During the voyage the vessel suffered high winds and had to call at Leith (Scotland). Alstom sued Daher, the master of the ship, the carrier, and Clipper Elite Carriers, the shipowner, for the damage suffered by the goods. Alstom's insurers intervened on its behalf. The Court of Appeal ordered Daher to pay the insurers EUR 812,051.78 and Alstom EUR 29,417.78, and required CEC Lines and the master of the CEC Caledonia to indemnify Daher for 40% of its limited liability of 156,800 SDRs. Daher appealed.

Daher criticised the judgment for holding that it was personally liable even though it was a freight forwarder rather than the carrier. Amongst other things, Daher argued that where damage is partly due to a personal fault of the freight forwarder and partly to a fault of the carrier, the freight forwarder benefits from the limitation of liability applicable to its subcontractor for the part of the liability attributable to the latter. The Court of Appeal held that the damage was attributable for 60% to the personal fault of the freight forwarder and for 40% to the fault of the carrier, the latter having the benefit of the limitation of liability provided for in the Hague-Visby Rules. However, by ordering the freight forwarder to repair all the damage, without allowing it to benefit from the limitation of liability applicable to the carrier for 40% of the liability, the court of appeal violated arts L 132-4, L 132-5, L 132-6 of the Commercial Code, and art 4.5 of the Hague-Visby Rules.

Held: Partial cassation.

The judgment held that the freight forwarding agent, who was aware of the fragility of the material transported, chose a ship taking a route passing through the North Sea in winter for transport from Spain to Algeria, thereby exposing the cargo to dangerous climatic conditions, and leading to load breaks, so that the loading and stowage carried out on departure was no longer effective during transport, which made it necessary for the agent to monitor the securing the goods. By these findings, the Court of Appeal characterised the causal link between the personal fault of the freight forwarder and the whole damage.

However, having regard to art 4.5 of the Hague-Visby Rules, it follows from this provision that an apportionment of liability has no impact on the application of the compensation ceiling that it fixes. In order to limit the liability of the carrier and the master of the vessel to idemnify Daher for 40% within the maximum limit of 156,800 SDRs, the judgment, after noting that the entire claim for compensation against the carrier was 392,000 SDRs, held that the indemnity, set at 40%, was capped at 156,800 SDRs. By ruling thus, the Court of Appeal violated the aforementioned provision.

For these reasons, the judgment delivered on 17 October 2013 between the parties by the Paris Court of Appeal is struck down and annulled, but only in that it condemns Daher to pay Allianz Global Corporate & Specialty France, Axa Corporate Solutions Assurance, ACE European Group Ltd, and XL Insurance Company Ltd the sum of EUR 812,051.78 euros and EUR 29,417.78 euros to Alstom, and in that it orders CEC Lines and the master of the CEC Caledonia to indemnify Daher for 40% within the limit of 156,800 SDRs. On these points, the case and parties are returned to the position they were in before the aforementioned judgment and the case is referred to the Paris Court of Appeal, differently constituted, to be decided correctly.