This was an appeal in cassation against the judgment of the Rouen Court of Appeal, 7 May 2009. Heli Union entrusted the delivery of a helicopter to Gabon to the freight forwarder ATT, who was renamed SCAC and, in its last incarnation, SDV Logistique Internationale (SDV). SDV entrusted the maritime part of the transport to Port-Gentil (Gabon) to Delmas, who took charge of the helicopter on the Rosa Delmas under a bill of lading. The transhipment and stowage of the helicopter was carried out by Terminaux de Normandie (TDN), mandated by Delmas. During sea transport, damage to the helicopter was observed due to the displacement of a bolster shipping container which was carrying loads of candelabra in the immediate vicinity, and which had broken its lashing chains. Heli Union sued SDV and Delmas, the latter calling on TDN to indemnify it. Heli Union's insurers, subrogated into its rights, intervened voluntarily. The Court of Appeal held that Delmas was not entitled to limit its liability as it had acted with intent to cause damage, or recklessly and with knowledge that damage would probably result. Delmas appealed.

Held: Partial cassation.

Article 4.5 of the Hague-Visby Rules provides that the carrier is only deprived of the benefit of the compensation ceiling established by the Rules if it is proved that the damage results from an act or omission of the carrier which took place either with the intention of causing the damage, or recklessly and with knowledge that damage would probably result. The Court of Appeal held that during the development and implementation of its loading plan, Delmas had chosen to place fragile and sensitive goods in the immediate vicinity of superimposed bolsters supporting loads of candelabra, and that the probability of damage, taking into account the usually unfavourable weather conditions in the voyage area, was high. By not taking these data into account when drawing up its loading plan, Delmas acted recklessly and committed inexcusable misconduct. However, these reasons are unfit to characterise the carrier as having acted recklessly and with awareness that damage would probably result. The Court of Appeal did not provide a legal basis for its decision.

Further, considering art 54 of Law n° 66-420 of 18 June 1966, together with art 4.5 of the Hague-Visby Rules, it follows from these provisions that an apportionment of liability has no impact on the application of the compensation ceiling. The Court of Appeal ordered TDN to indemnify Delmas up to 40% and within the limit of 4,400 SDRs, ie up to 1,760 SDRs, after having decided on an apportionment of liability at 60% payable by Delmas and 40% payable by TDN, and held that TDN was liable within the limits of its liability for an amount of 4,400 SDRs x 40%, ie 1,760 SDRs. By ruling thus, the Court of Appeal violated the aforementioned provisions.

The judgment under appeal is therefore struck down and annulled, except in respect of its costs orders, and the finding that SDV did not commit any personal fault. On the other points, the case and parties are returned to the position they were in before the aforementioned judgment, and the case is referred to the Caen Court of Appeal to be decided correctly.