This was an appeal in cassation against the judgment of the Versailles Court of Appeal, 18 November 2010. Stolt Offshore Services, which became Acergy Services (Acergy) sold a crane to an Angolan company, Cabinda Gulf Oil Co (Cabinda). Acargy entrusted the organisation of the crane's transport from Yarmouth (England) to Lobito (Angola) to SDV Logistique Internationale (SDV). At the end of the pre-routing by truck from Yarmouth to Antwerp (Belgium), Safmarine Container Lines NV (Safmarine) took over as the maritime carrier from Antwerp to Lobito according to the bill of lading issued on 15 October 2003. Following loading operations on the Aeolian Sun carried out by PSA Antwerp NV (PSA), formerly known as Hesse Noord Natie, at the request of Safmarine, reservations regarding damage to the goods were issued.

Acergy sued Safmarine and SDV, the latter calling on PSA and Safmarine to indemnify it. After having indemnified Acergy, several cargo insurers intervened voluntarily in the proceedings. The Court of Appeal ordered SDV to pay Acergy and its insurers for the damage within the limits set by the Hague-Visby Rules, being the equivalent in EUR at the date of the judgment of 52,640 SDRs.

SDV appealed, arguing that the Brussels Convention of 25 August 1924 in its original version (the Hague Rules), applies to all disputes relating to a bill of lading concluded between two entities coming from signatory States, regardless of the originator of the claims or the parties concerned. In the present case, the Belgian State, the country of issue of the bill of lading, like Angola, the country of destination, are signatories of the original Brussels Convention. The Court of Appeal's holding that the Hague Rules cannot be applied deprived its decision of a legal basis with regard to art 10 of the Convention.

In the event of a competition between two successive international treaties relating to the same matter, their application should be defined in accordance with their stipulations. Article 6 para 2 of the Protocol signed at Brussels on 23 February 1968, amending the Convention signed at Brussels on 25 August 1924, provides that 'a Party to this Protocol shall not be obliged to apply the provisions of this Protocol to bills of lading issued in a State Party to the Convention but not a Party to this Protocol'. In the present case, even if the Belgian State, the country of issue of the bill of lading, is a signatory to the amended Brussels Convention, Angola, the country of destination, has only signed the original Convention. By deciding to apply the Hague-Visby Rules without examining whether the provisions of this Protocol constituted an obstacle to its application between a State Party and another State which is not, the Court of Appeal deprived its decision of a legal basis with regard to art 30 of the Vienna Convention on the Law of Treaties of 23 May 1969.

Held: Partial reversal.

After having stated that art 10 of the Hague-Visby Rules and SDR Protocol applies to any bill of lading relating to the transport of goods between ports under two different States, when the bill of lading is issued in a Contracting State or when the transport takes place from a port of a Contracting State, the judgment notes that the disputed transport took place from the port of Antwerp following a bill of lading issued in Belgium, which is a Contracting State of the amended Brussels Convention. From this, the Court of Appeal correctly found that the Hague-Visby Rules were applicable, and that the compensation due to Acergy and the insurers had to be calculated according to the limits set by this Convention.

However, considering art 74 of the Code of Civil Procedure, the Court of Appeal should not have ruled that Safmarine's objection to the Court's competence was admissable. Safmarine had already presented a defence on the merits, so that it was inadmissible to raise an objection of lack of jurisdiction subsequently. The Court of Appeal thus violated the aforementioned provision.

The judgment delivered on 18 November 2010 between the parties by the Versailles Court of Appeal is therefore struck down and annulled, but only in that it declared Safmarine's objection of incompetence admissible, and declared the Nanterre Commercial Court incompetent to hear the claims brought against Safmarine, in favour of the courts of Antwerp. On these points, the case and parties are returned to the position they were in before the aforementioned judgment, and the case is referred to the Versailles Court of Appeal, otherwise constituted, to be decided correctly.