This was an appeal and cross-appeal against the judgment of the Basse-Terre Court of Appeal, 18 March 1996. Les Grands Moulins des Antilles (the buyer) purchased, under the terms of a C&F sale, several grain silos from Groupement d'études et de Réalisations Industriels et Commerciales and Stolz Sequipag (the sellers). The sellers entrusted Natisa France (Natisa), acting as a freight forwarder, to organise the transport of the materials. Natisa, which has since gone into compulsory liquidation, contacted Carribean Liners Ltd (Caribtainer) and Anglian Shipping Ltd (the maritime carriers) to perform the maritime carriage. On 27 December 1989, the maritime carriers issued a bill of lading on their letterhead in Belgium. The silos were loaded in Antwerp with spare parts in 6 roofless containers which were placed on the deck of the Atlantic Island. During the voyage between the ports of Antwerp (Belgium) and Pointe-à-Pitre (Guadeloupe) via Le Havre (France), the ship suffered a strong storm during which sea water entered the containers through the tarpaulins covering them, causing oxidation of the metal parts of some silos.

The Court of Appeal ordered the sellers to repair the damage caused to the buyer, up to the full cost of repairing the damaged silos, and required the maritime carriers and Natisa to indemnify the sellers. The main appeal against the judgment was brought by Groupement d'intérêt économique Concorde (Concorde) and Mr X in his capacity as Natisa's liquidator. Generali de France subsequently took over the main appeal proceedings from Concorde. The maritime carriers and their P&I club, Charles Taylor & Co Ltd, brought a cross-appeal.

The maritime carriers argued that the Court of Appeal, in holding that they were liable for the occurrence of the damage, failed to apply the exemption from liability provided for by art 4.2.c of the Hague Rules, which was applicable in this case, when loss or damage results from perils, dangers or accidents at sea. The exemption is not subject to proof that these circumstances have the unforeseeable nature of force majeure. By subordinating the exempting nature of the invoked event to its unpredictability, the Court of Appeal violated art 4.2.c of the Convention. Secondly, the stipulation of the bill of lading excluding, in all cases, the carrier's obligation to inform the shipper of a deck load was unambiguous. By holding that it provided for an obligation of information when the transport presented exceptional risks, the Court of Appeal distorted the meaning of cl 18 B of the bill of lading and violated art 1134 of the Civil Code. Further, in so far as the Court of Appeal ruled on the validity of the stipulation invoked by the maritime carriers and held that the maritime carriers could not be freed from the obligation to warn the shipper of deck carriage, the Court violated art 1.c of the Hague Rules. The Court was also required to investigate the causal role of the sea event in order to determine whether the liability of the carrier should not at least be partially ruled out; the judgment was thus vitiated by a lack of legal basis with regard to art 4.2.c of the Hague Rules.

Held: Partial cassation.

First, the clause printed on the reverse of the bill of lading purports to give the maritime carriers the option of loading the containers handed over to them for transport either in the hold or on deck, without having to notify the shipper of the master's decision. It does not allow, when the bill of lading is issued, for the shipper to know the option that will ultimately be chosen and even exempts the carriers, in the event of deck carriage, from subsequently having to secure the authorisation of the co-contracting party for this method of loading, if the shipper is not informed. The only acceptable declaration of deck carriage of the goods, even if they were placed in containers on a vessel fitted with appropriate installations, is the only one provided for in art 1.c of the Hague Rules. It follows that the disputed deck carriage was irregular with regard to this Convention, thereby entailing the exclusive application of the Hague Rules to the case.

Secondly, if it is correct that the perils, dangers or accidents of the sea, mentioned in art 4.2.c of the Hague Rules, exonerate the maritime carrier from the liability which it incurs for loss or damage to the goods transported, even if the perils of the sea would not constitute a case of force majeure, no exemption from liability for this reason is possible, even partially, when the goods have been stowed irregularly on the deck and it is demonstrated that there was a causal link between this fault and the damage suffered. By holding that the maritime carriers had committed a fault in not placing the containers in the hold and that, without this fault, the damage would not have occurred, despite the storm, the Court of Appeal has justified its decision.

However, the cross-appeal must be upheld in so far as the judgment required Charles Taylor & Co Ltd, as the insurer of maritime carriers, to indemnify the sellers and Natisa. The judgment did not respond to the P&I club's argument that only member shipowners of the club may claim indemnity against it in accordance with applicable English law.

For these reasons, the judgment under appeal and cross-appeal is struck down and annulled, but only in respect of its provisions concerning Charles Taylor & Co Ltd, and in that it refused to the maritime carriers and Natisa the benefit of any limitation of liability. Consequently, in these respects, the case and the parties are returned to the position they were in before the aforementioned judgment and, and are referred to the Fort-de-France Court of Appeal for the matter to be decided correctly.