This was a claim for cargo damage brought by the appellant insurance company, Cie d'Assurance la Concorde, subrogated to the rights of the consignee, Société Renault Afrique, against ODAMAP (now OBEMAP), the respondent stevedore company handling cargo at the port of Cotonou, Benin. On 6 June 1973, the Court of First Instance of Cotonou held in favour of the appellant, ordering the respondent to pay the appellant XAF 225,731. The Court of Appeal reversed the first instance judgment on the basis that the appellant's claim was time-barred. The appellant appealed to the Supreme Court, arguing that the Court of Appeal violated art 433 of the Commercial Code, which provides that a maritime carrier has the benefit of a short prescription period (one year) in respect of claims brought against it. [Although Benin is not a State Party to either the Hague or Hague-Visby Rules, its Commercial Code derives from the French statute which does incorporate the Hague/Visby Rules.]

The appellant argued that the Court of Appeal had to decide whether the respondent could benefit from the short prescription period of art 433 of the Commercial Code as a logistics company acting as the agent of the master for the unloading of the goods in question. The Court found that in this case the respondent could, acting in its capacity as agent of the master for unloading, raise the art 433 time bar, despite the fact that, in receiving delivery of the goods on behalf of the consignee, Société Renault Afrique, it had acted as the latter's agent. The appellant argued that the respondent could not be at the same time an agent of two parties having contradictory and opposing interests. The Court's judgment was therefore contradictory. The appellant further argued that the short art 433 prescription period could only be invoked by the maritime carrier, and that there was no agency agreement between the respondent and the master of the ship.

Held: Appeal dismissed.

It is important to understand the exact legal status of the respondent. According to the definition given by Decree 75-52 of 25 February 1975, establishing the status of the respondent, it appears that it is an office responsible for carrying out cargo handling operations in the Port of Cotonou, both on board ships and on land. In reality, the respondent behaves with regard to its multiple activities as a stevedore for the following two reasons. First, at the Port of Cotonou there is no other body apart from the respondent which exercises the functions of stevedoring and logistics/cargo handling. Second, in fact the respondent has always effectively combined these two roles, and its activities at the Port of Cotonou include all the legal and material operations relating to the embarkation, disembarkation and transhipment of goods.

It follows that the respondent could sometimes act on behalf of the vessel and sometimes on behalf of the shipper or the consignee, depending on whether, according to the terms of the contract of carriage, these operations are the responsibility of the vessel or the goods. The respondent's responsibility is directly engaged vis-à-vis the one on whose behalf it is acting. Here it is indisputable here that the respondent proceeded to unload the goods as agent of the carrier or the master, and that by taking charge of their delivery it also acted on behalf of of the consignee.

The Court of Appeal found, on the basis of the bill of lading drawn up in Le Havre on 25 April 1969, that the respondent as stevedore was, by virtue of the clauses of the contract of carriage, the agent of the carrier or of the master for cargo unloading operations. The Court specifically referred to cl 6 of the bill of lading, which stipulates that the reception, the loading, the unloading, and the delivery of the goods will always be made by the master, the carrier and its agents or by a contractor of their choice, at the expense, risk, and peril of the goods. It is common ground that the respondent as stevedore proceeded to unload the goods - and that in doing so, having acted on behalf of the maritime carrier or the master, it is entitled to invoke for its benefit the short art 433 prescription period if it is found that the damage observed was consequent to unloading. The opposite result - that the maritime carrier would be protected by art 433, whereas the stevedore would still be liable - seems paradoxical and iniquitous.

It is, however, undeniable that the Court of Appeal only considered this exemption in favour of the respondent within the strict framework of unloading, an operation falling under the responsibility of the carrier. The result would be different if it turns out that the damage suffered by the consignee was attributable to the transport or operations of the damaged vehicles after offloading.

By ruling as it did, the Court of Appeal did not violate any legal provision.