Pescanova España SLU (Pescanova) bought frozen seafood from Associao Pesqueira Edipesca UEE (APE). Pescanova had a cargo insurance policy with Mutua de Seguros de Armadores de Pesca de Espana (Mutuapesca).

On 17 May 2016, SA CMA CGM made two reefer containers available to APE into which the goods were stuffed. On 8 June 2016, SA CMA CGM issued a bill of lading for the transportation of the containers from Angola to Portugal on the Carlotta Star, operated by Nile Dutch Africa Line BV (NDA), under a slot charter agreement. On 22 June 2016, during transshipment of the cargo in Tangier, SA CMA CGM notified Pescanova of an incident that had occurred on board. The goods were found to be damaged.

Mutuapesca and Pescanova brought an action before the Commercial Court of Marseille against SA CMA CGM, who called on NDA to indemnify it.

In its judgment of 21 June 2019, the Commercial Court of Marseille held that NDA was entitled to maintain that it had not connected the reefer containers because of CMA CGM's temperature instructions, which indicated a temperature equal to minimum -18^oC and maximum +18^oC. The Court further held that CMA CGM had reasonably given a neutral temperature instruction since there was no temperature instruction in the bill of lading from the shipper. The Court deduced from these findings that there was fault on the part of the shipper, namely an omission on its part relating to the storage temperature of the goods, and that this constituted a case exonerating carrier liability provided for in art 4.2.i of the Hague-Visby Rules. Pescanova and Mutuapesca's claims were therefore dismissed.

Pescanova and Mutuapesca appealed to the Court of Appeal of Aix-en-Provence.

Held: The judgment of the Commercial Court of Marseille is reversed, except in that it declared Mutuapesca and Pescanova's claims admissible. SA CMA CGM is ordered to pay Mutuapesca EUR 329,531.42 with interest. SA CMA CGM is ordered to pay Pescanova EUR 3,000 corresponding to the deductible on its insurance policy, with interest. SA CMA CGM's appeal for indemnity by NDA is dismissed.

The damage is due to the untimely heating of the goods for a period of about 20 days on the ship owned by NDA. It is correct that the bill of lading does not contain any precise indication of temperature, as SA CMA CGM asserts, but the goods are designated as 'frozen seafood', and it is not disputed by SA CMA CGM that reefer containers were made available to Pescanova. It is also not seriously debatable, with regard to the expert’s findings, that the containers were refrigerated when they were loaded onto the ship.

The absence of any mention of a set temperature on the bill of lading, replaced by the mention of 'frozen', which can only be interpreted as needing to maintain a temperature of -18^oC due to mandatory regulations relating to the transport of fishery products, and the nature of the goods which was expressly stated on the bill of lading, does not constitute a fault on the part of the shipper exonerating SA CMA CGM from liability.

Article 4.5 of the Hague-Visby Rules, to which art L 5422-13 of the Transport Code refers, provides that unless the nature and value of the goods have been declared by the shipper before loading, and that this declaration has been inserted in the bill of lading, the carrier and the ship shall in no case be liable for loss or damage to the goods or relating to them for a sum greater than 666.67 units of account per package or unit, or 2 units of account per kilogram of gross weight of goods lost or damaged, whichever is higher.

As SA CMA CGM points out, in view of the differences between the purchase invoices produced and the weights noted by the expert on discharge, only the figures enumerated on the bill of lading must be relied upon, ie for container CGMU5053897 a weight of 21,414 kg, and for container CGMU9350605 a weight of 22,452 kg. The appellants are not justified in claiming sums other than those provided for in the bill of lading. This means that SA CA CGM is liable for EUR 154,935.81 and EUR 174,595.61 respectively, ie a total sum of EUR 329,531.42.

In terms of NDA's liability, it is entitled to avail itself, in accordance with the slot charterparty, of the immunities provided for in arts 4.1, 4.2, 4.4, 4.5 and 4.6 of the Hague-Visby Rules against SA CMA CGM.

SA CMA CGM's instructions were unclear and inconsistent. By giving ambiguous and inconsistent instructions, it did not allow the carrier NDA to ensure proper cargo handling. The fault committed by SA CMA CGM, ie the absence of complete, accurate, and available information and/or documentation, was the sole cause of the damage. SA CMA CGM did not put NDA in a position to provide appropriate and prudent care and safekeeping of the goods loaded onto the ship.