This was an appeal in cassation against the judgment of the Paris Court of Appeal, 9 January 1990. According to a bill of lading issued in Monrovia (Liberia) by the master of the Hilaire Maurel, operated by the Société Navale Chargeurs Delmas-Vieljeux (the maritime carrier), a container containing textile balls and paint drums was transported from Monrovia to Konakry (Guinea) to be delivered to Ms X, the consignee. The bill of lading contained a clause referring to the Brussels International Convention of 25 August 1924 (the Hague Rules), which has not been ratified by either Liberia or Guinea, the States in which the ports of loading and destination are located. The clause stated that the Hague Rules would determine the carrier's liability, as well as the limitation of compensation in the event of loss or damage. The same clause of the bill of lading set aside the stipulation of the Convention designating the gold value of the pound sterling as the unit of account (art 9), and replaced it with the pound sterling in current currency. On arrival at the destination, items were found to be missing. Ms X sued the maritime carrier for compensation for the damage.

Ms X criticised the judgment under appeal for having held that the clause of the bill of lading derogating from the provisions of the Hague Rules relating to the limitation of liability was enforceable. She argued that a clause derogating from the mandatory provisions of the Brussels Convention, chosen by the maritime carrier as an expression of party autonomy, can only be set up against a party who was aware of it and who accepted it at the time of the formation of the contract. The judgment under appeal thus violated art 1134 of the Civil Code.

Held: Partial cassation.

Ms X herself requested the application of some of the clauses of the bill of lading, and in particular the paramount clause that incorporated the Hague Rules. However, having regard to arts 4, 5 and 9 of Hague Rules, parties who agree to submit the contract which they conclude to an international Convention cannot set aside those of its prescriptions to which, if the international Convention were applicable as of right, could not be waived on pain of nullity

The Court of Appeal held that the parties to the disputed contract of carriage, having referred to the Hague Rules, which was inapplicable by operation of law, had validly set aside its provisions referring to the gold value of the pound as a unit of account, and that the limits that the parties had contractually fixed on the application of these provisions to the disputed transport could not be 'transgressed or reworked'. In ruling thus, the Court of Appeal violated the provisions of the aforementioned Convention.

For these reasons, the judgment under appeal is struck down and annulled, but only in that it fixed at the equivalent in FRF the sum of GBP 4,200 as the amount of the compensation allocated to Ms X. The case and the parties are returned to the position they were in before the aforementioned judgment, and the case is referred to the Rouen Court of Appeal to be decided correctly.