This case involved carriage by sea of a reefer container with frozen products from Radicatel, France, to Noumea, New Caledonia, on the Baltic Klipper, a ship owned by Baltic Klipper Shipping Co NV (Baltic). A bill of lading was issued on the Seatrade form and signed by the French company Sea Shipping Services ‘as agent to carrier for/by the Master’. The bill of lading named Etablissements Bargibant SA (Bargibant) as consignee. The temperature instruction in the bill of lading was stated as 'Reefer settings -20° C Ventilation closed Floor drains open’. The reefer container was loaded onto the ship on or about 8 October 2014. On 10 October 2014 it became clear that the reefer container no longer functioned as a result of a defective controller. During the passage through the Panama Canal on 19 October the controller was replaced, after which the reefer container functioned properly again. Bargibant and its insurer, Chubb Insurance Company of Australia Ltd (Chubb), claimed compensation from Seatrade Group NV (Seatrade) and Baltic for damage to the cargo discovered on arrival in Noumea.

Held: In view of the paramount clause in the bill of lading and the circumstance that the bill was issued in France and the carriage was from a port in France, the Hague-Visby Rules are mandatorily applicable to the contract of carriage. Dutch law applies supplementarily as a result of the choice of law contained in the bill of lading conditions, which choice satisfies the requirements of art 3 of the Rome I Regulation.

In so far as the frozen products were received fit for carriage, Seatrade and Baltic are in principle liable for the damage to the frozen products, as it appears that after discharge in Noumea the local authorities found them to be no longer fit for human consumption. However, that the frozen products were in fact received by the carrier fit for carriage cannot be concluded on the basis of the email of 10 January 2017 from Bustori, the commercial director of Gelazur, to employees of Bargibant. On or about 3 October 2014 the reefer container was stuffed with the frozen products and sealed in Le Havre, France, by Seafrigo. Bustori's email concerned the carriage by road of the frozen products to Seafrigo's premises in Le Havre, for which a CMR waybill was issued, as apparent from this email. Gelazur, where Bustori works, was the seller of the frozen products, and was not also the road carrier. What was stated in this email by Bustori on behalf of Gelazur was therefore not based on the observation of Bustori (Gelazur) himself. This email therefore provided insufficient basis for a conclusion that the frozen products were received fit for carriage. As the products were contained in a sealed container, the fact that the bill of lading contained no remarks provides no proof, let alone the fact that the bill of lading contained an 'unknown contents' clause.