The Senegalese company Société de Cultures Légumières SA (SCL) sold several containers of sweetcorn to the UK company Barfoots of Botley Ltd (Barfoots), including one containing 56,000 cobs in bulk, weighing 19,040 kg, at a price of EUR 12,185.60. Sea transport from Senegal to the UK was entrusted to CMA CGM, which issued a bill of lading on 22 March 2013.

The goods were damaged. Barfoots assigned its rights of claim to SCL, which in turn signed a deed of subrogation for EUR 27,840 'to the Helvetia insurance company and others'. The insurers then sued CMA CGM for damages. The Court of Appeal of Aix-en-Provence held in favour of the insurers, but limited CMA CGM's liability to 823.96 SDRs. The insurers appealed, and CMA CGM cross-appealed, to the Court of Cassation.

In the main appeal the insurers argued that, if the Hague Rules applied, art 10 of the Rules made them applicable 'to all bills of lading issued in any of the contracting States'. Senegal was a contracting State, and the relevant bill of lading was issued in Dakar. Furthermore, Senegal was not bound by the Protocols of 23 February 1968 and 21 December 1979 which amended the Hague Rules. Article 4.5 of the Hague Rules provides:

Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connexion with goods in an amount exceeding 100 pounds sterling per package or unit, or the equivalent of that sum in other currency unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading.

This rule, which refers for the calculation of the maritime carrier's liability limit to the packages or units transported, does not apply to the maritime transport of goods in bulk. By deciding to the contrary, after having noted that the corn cargo was transported in bulk, the Court of Appeal violated art 4.5 of the Hague Rules. In the alternative, even if the goods are said to be individualisable and individualised, the carrier's limitation of liability should have been calculated on the basis of the number of cobs transported, deemed to be units. The number of cobs was clearly specified in the bill of lading. Further, the package or unit limitation under the Hague Rules has been interpreted as inapplicable to the transport of bulk goods, as was held by the High Court of London in a 2016 decision [see Vinnlustodin HF and Vatryggingaffelag Islands HF v Sea Tank Shipping AS [2016] EWHC 2514 (Comm) (CMI25); and Sea Tank Shipping AS v Vinnlustodin HF and Vatryggingafelag Islands FH [2018] EWCA Civ 276 (CMI123)].

The insurers had also invoked the application of the Hamburg Rules, which had been ratified by Senegal, and had argued that, if the goods were individualisable and individualised, since the cob was to considered as a unit, no limitation of liability was likely to be imposed on a potential application of the Hamburg Rules. By refraining from ruling on the application of the Hamburg Rules, the Court of Appeal violated art 455 of the Code of Civil Procedure.

In its cross-appeal, CMA CGM criticised the judgment under appeal for having found it liable under the Hague Rules. Article 2 of the Rules lays down the principle of the presumption of liability of the maritime carrier, unless it provides proof of one of the exonerating cases listed in art 4.2 of the Rules. The expert evidence indicated that the the goods had not been precooled to the correct temperature by the shipper SCL. CMA CGM was therefore exempted from liability by the act or omission of the shipper (art 4.2.i), an inherent defect of the goods (art 4.2.m), and the act or fault of the employees of the carrier (art 4.2.c [sic - art 4.2.a]).

Held: Partial cassation.

As to CMA CGM's cross-appeal, after having stated that the carrier is presumed responsible for the damage suffered by the goods unless it provides proof of one of the exonerating cases listed in art 4.2 of the Hague Rules, the Court of Appeal judgment found that only the relevant container had suffered damage during the journey and that, according to the expert report, the goods had been reasonably precooled to a suitable temperature, but that the container's refrigeration appliances had been inoperative during transport. By dismissing the causal role in the occurrence of the damage of the fact that the corn had been loaded at a temperature higher than that indicated on the bill of lading, the Court of Appeal legally justified its decision to dismiss the act of the shipper as exempting the liability of the carrier under art 4.2.i of the Hague Rules. CMA CGM's cross-appeal is unfounded.

As to the insurers' main appeal, the Court of Appeal judgment, in deciding to limit CMA CGM's liability to 823.96 SDRs, held that the 56,000 cobs of corn being carried in bulk in the container, without being packaged in boxes, crates, or bags, being able to be individualised and handled separately, constituted a single package or unit. In so deciding, after having indicated that the sale related to 56,000 cobs of corn for a total weight of 19,040 kg - without specifying, therefore, whether the parties to the contract of carriage had subsequently referred in the bill of lading to a freight unit and, if so, which one had been chosen - the Court of Appeal did not give a legal basis for its decision.

The Court therefore annuls the judgment of 2 May 2019 of the Aix-en-Provence Court of Appeal, but only in so far as it limits the compensation owed by CMA CGM. On this point, the judgment is reversed, the case and the parties are placed in the state they were in before this judgment, and the matter is remitted to the Montpellier Court of Appeal.