Maersk Burkina Faso SA stated that on 23 October 2003 the company Hesnault, on the basis of a bill of lading, entrusted the transport of a refrigerated container from Le Havre, France, to Lomé, Togo, to the carrier AP Moller-Maersk operating under the trade name Maersk Sealand. At the arrival of the container in Lomé and after an assessment carried out on 27 November 2003 in the presence of Maersk-Togo and the forwarder Cottram SA, it was found that out of 3,000 food packages transported, 2,682 were intact and 318 showed traces of mould or were rotten to varying degrees. This damage was caused by poor stowage (packages loaded against the doors and a load beyond the red line). Maersk Sealand's responsibility having ended in Lomé, the goods were carried to Ouagadougou by refrigerated truck where it arrived after 9 days of journey. A second survey carried out on 19 December 2003 revealed 'damage and advanced decomposition on the majority of the contents of food products (2632 packages)'. This second expert concluded that the damage was due to a 'rise in temperature in the container caused by a shutdown of the refrigeration system which occurred during the maritime transport and/or during stays in the port store'. SCIMAS then claimed damages from the appellant which it imputed to Maersk Sealand: not only the damages noted in Lomé but also those recorded in Ouagadougou.

The appellant submitted that the trial judge erred in that Maersk Burkina Faso is not the same party as AP Moller-Maersk A/S operating under the name Maersk Sealand and that Hesnault as freight forwarder was responsible for the damage to the goods.

The respondent argued that Maersk Burkina Faso is responsible for the goods for the entire period of carriage, and that Maersk Burkina Faso bears the presumption of responsibility for any damage found at the arrival of the goods in application of art 1784 of the Civil Code and art 4 of the Hamburg Rules which has been ratified by Burkina Faso.

Held: Judgment under appeal reversed. The company Maersk Burkina Faso SA cannot be confused with the company Maersk A/S Moller/Maersk Sealand and therefore cannot be a defendant in this case.