This was an appeal from a decision of the Commercial Court of Marseille dated 25 July 2018, holding that the subrogated insurer, Sté Generali IARD, had title to sue the carrier, SA CMA-CGM, for damage to litchis carried in refrigerated containers on the Alice Rickmers, but that the carrier was exempted from liability under art 4.2.i of the Hague/Hague-Visby Rules. The insurer appealed to the Court of Appeal.

Held: Appeal dismissed. Judgment of the Commercial Court confirmed.

As to the insurer's capacity to act, former art 1250 of the Civil Code, repealed but still applicable to this case, provides that conventional subrogation is established when the creditor, receiving payment from a third party, subrogates the third party into the creditor's rights and actions against the debtor. It specifies that this subrogation must be express and made at the same time as the payment. The concomitance condition laid down by this article is met when the subrogator has expressly stated, even in a prior document, its intention regarding subrogation at the time of payment. This jurisprudential rule has moreover been consecrated by art 1346-1 of the Civil Code resulting from the order of 10 February 2016.

In this case, the insurers tendered into the proceedings a subrogative receipt signed by Compagnie Fruitiere Import, the final recipient of the goods and the notified party in the bill of lading, by which the latter acknowledged having received from SOMPO Japan the sum of EUR 42,360 in compensation for damage suffered by the litchis transported on the vessel Alice Rickmers owned by CMA-CGM. The insurers also provided proof of payment of the sum of EUR 43,360 on 13 October 2015. With regard to the rules above, these documents are sufficient to establish the existence of a contractual subrogation benefiting the insurers.

It follows that the first instance Judges rightly rejected the plea of inadmissibility raised by CMA-CGM for lack of standing.

As to the substantive claim, the Brussels Convention, applicable in this case where the dispute concerns international maritime transport, establishes a presumption of liability against the carrier. The Convention also provides in art 4.2.i an exonerating cause, or excepted cause, when the damage suffered by the goods results from an act or omission of the shipper.

In this case, it follows from the terms of the bill of lading that CMA-CGM had undertaken to transport the goods at a temperature of 2° C. The temperature recorder placed on a pallet at the doors of the container in which the goods were stuffed showed an average temperature of 22.9º C, with a maximum of 32.8º C during the stuffing period. A gradual drop in temperature afterwards was noted by the expert, with the litchis reaching an average temperature below 3º C after a further nine days, and finally an average temperature of 2º C on the day of delivery.

If the contractually stipulated average temperature was only reached after more than a month, it is indisputable that this phenomenon is linked to the particularly high temperature of the goods on the day of stuffing. This circumstance is attributable to the shipper, who did not pre-chill the products. It was up to the shipper to provide the carrier with goods in a state allowing their transport in conditions compatible with good preservation.

The insurer invokes a failure of the carrier's refrigeration system which explains, in its view, the time taken for the goods to reach the temperature contractually set for transport. However, there is nothing to confirm that this change was caused by a malfunction of the refrigeration system, or was the cause of such a malfunction. In view of the expert reports, the damage was caused by the excessively high temperature of the stuffed goods, and therefore a fault or omission of the shipper. It is thus with good reason that the first instance Judges found the existence of an excepted cause, and dismissed the insurer's claim against the carrier.