This was an appeal in cassation against the decision of the Rouen Court of Appeal of 30 January 2020.

On 1 March 1999, Alstom Ferroviaria (A) entrusted the transportation of several trains to Geodis Züst Ambrozetti SpA (G). G commissioned Pol-Levant Shipping Lines Ltd (P) with the maritime transport of the trains from Italy to Finland. One of the trains was loaded onto the ship Traden, according to a bill of lading dated 13 October 2001 issued on P's letterhead. P had chartered space on the ship from B&N Swedish Orient Line AB (B), now in voluntary liquidation, which in turn had time chartered the ship from its shipowner, Rederi AB Engship, now Bore Ltd (E/B). During the voyage, the ship called at a Spanish port to load 18 containers on behalf of B.

On 19 October 2001, a strong gale caused several of these containers to break loose, and they struck the wagons of the train which were resting on trestles, causing them significant damage. After discharge of the cargo in Le Havre, A brought claims against P, the master of the Traden, B, and E/B. Allianz Global Corporate & Specialty SE and Generali UK (the insurers), subrogated into the rights of their insured, A, intervened in the proceedings and sued G.

The judgment under appeal dismissed the insurers' claims against G, P, and E/B. The insurers appealed in cassation, arguing, first, in respect of G's liability, that the six train cars loaded in Italy on the main deck were fixed on metal trestles which were themselves fixed on wooden wedges intended to avoid metal/metal contact between the trestles and the deck of the ship, which would promote shifting. The insurers argued on appeal that the wooden wedges manufactured by G, which was responsible for ensuring the transport of the trains in complete safety, were defective, which had caused the collapse of the rear trestles of the last railway coach standing in front of the stacks of containers that hit the railway cars.

Secondly, in respect of P's liability, the Court of Appeal held that the cause of the damage was due to the fault of the ship's crew, who alone were in charge of the operations of positioning and securing the containers loaded on behalf of B, which could not be considered as a fault committed by an agent, employee, or alter ego of P. P was, in its status as a maritime carrier, therefore justified in claiming the benefit of the exemption in art 4.2.q of the Hague Rules. The insurers argued on appeal that P, a co-contractor of E/B, which replaced P for the transport of the train, did not establish that E/B's fault had not contributed to the damage, so P could not rely on the exemption provided for in art 4.2.q. P had not responded to the insurers' submissions that the faulty securing at the origin of the damage had been committed by E/B in its capacity as P's alter ego.

Thirdly, on the liability of E/B, the Court of Appeal held that E/B was the owner of the ship, in good seaworthy condition, and had time chartered it to B. It was up to B to load the goods transported in consideration of the type of ship and its equipment. By the fact of this chartering, the crew of the vessel made available to B were under B's sole responsibility during the charter period. Therefore, E/B's liability for the failure to load the containers could not be sustained. The Court of Appeal observed that the insurers, on account of this fault, could not simultaneously seek the liability of both E/B and B. The Court of Appeal judgment exonerated E/B. The insurers argued on appeal that the shipowner E/B was liable in tort towards third parties for the damage caused by the lack of proper stowage of the goods transported, which responsibility was incumbent on the crew employed by E/B. By ruling that due to the mere fact of a time charter, the crew of the vessel made available to B were under B's sole responsibility during the charter period, so that E/B's liability to A due to its failure to load the containers properly could not be upheld, the Court of Appeal violated art 1384.5, now art 1242.5, of the Civil Code.

Held: Partial cassation.

Having regard to art 1384.5, now art 1242.5, of the Civil Code, this text provides that principals are liable for damage caused by their agents in the functions for which the former employed the latter. To exonerate E/B, the Court of Appeal judgment determines that E/B is the owner of a seaworthy ship, which it time chartered to B, which was in turn responsible for loading the goods transported in consideration of the type of vessel and its equipment, and that by the sole effect of this chartering, the crew of the vessel placed at B's disposal were under the sole responsibility of B during the charter period.

In ruling that with regard to A, a third party to the charter contract, E/B's liability could not be engaged in its capacity as the employer of the master of the ship and its crew, on account of faults committed by the latter during the material operations of wedging and securing of the goods, involving the safety of maritime navigation, the Court of Appeal violated the aforementioned text.

The Court therefore strikes down and annuls the Court of Appeal judgment, but only in so far as it exonerates E/B, and in that it fixes the compensable claim of the insurers against B for the equivalent, on the date of payment, of 654,020 SDRs plus interest. The case and the parties are returned to the position they were in before this judgment, and are referred to the Caen Court of Appeal. G is exonerated from liability.