This was an appeal against a judgment dated 30 July 2019 of the Marseille Commercial Court, where the Court held in favour of the respondent cargo insurers, and ordered the appellant carrier to pay the respondents EUR 17,440.60. According to a bill of lading issued on 2 December 2016, Société de Cultures Légumières (SCL) entrusted the appellant with the maritime transport of corn cobs from Senegal to England for the benefit of Barfoot of Botley Ltd. On the vessel's arrival on 15 December 2016, it was found that goods packed in bulk in one of the containers were damaged. An expert appraisal highlighted a malfunction of the container's generator, which caused irreversible deterioration of the goods, and depreciated the cargo by 64.14%, representing damages estimated at EUR 18,600.60.

The carrier appealed.

Held: Appeal allowed in respect of quantum of damages.

It is appropriate to apply the original Brussels Convention (the Hague Rules). Article 10 of the Hague Rules makes this Convention applicable to transport covered by a bill of lading issued by one of the Contracting States. This is the case of Senegal, the country which issued the relevant bill of lading. Senegal has not ratified the subsequent Visby amendments. Although art 31 of the United Nations Convention on the Carriage of Goods by Sea of 31 March 1978, known as the Hamburg Convention, which was ratified by Senegal, provides for denunciation of the Hague Rules by Contracting States, it has not been demonstrated that Senegal has denounced the Hague Rules.

In any event, France has not ratified the Hamburg Rules. As a result, French courts can only apply the Hamburg Rules to the extent that they have been chosen by the parties as the applicable text by means of a so-called paramount clause (Cass Com, 28 March 2000; Cass Com, 1 October 2013). In the absence of proof of the existence of such a clause included in the aforementioned bill of lading, there is no need to apply the Hamburg Rules.

In accordance with the Hague Rules, the maritime carrier is liable for loss and damage suffered by the goods from the time they are taken into custody until delivery. However, the carrier may be exempted from the liability presumed against it for loss and damage to the goods transported if it demonstrates the existence of one of the excepted cases admitted by art 4.2 of the Hague Rules, and if it demonstrates that this excepted case was indeed the cause of the damage. These excepted cases include the shipper's faults, in particular in the insufficiency of packaging, as well as causes not arising from the act or fault of the carrier.

Here, the carrier, who does not contest the fact that it made the containers available to the shipper, claims a failure of pre-cooling and poor stuffing of the goods. Examination of the data loggers attests that the fault of the shipper resulting from a pre-cooling defect cannot be accepted. Regarding improper stuffing, the carrier, except for denouncing the loading of bulk corn, does not demonstrate how this stuffing constituted a fault. The fault of the shipper in the stuffing of the goods is not demonstrated.

As a consequence, the contested judgment should be confirmed insofar as it held the carrier liable for the damage and loss suffered by the goods in the absence of proof of an excepted case.

Article 4.5 of the Hague Rules provides that 'the carrier and the ship shall not be liable in any case for loss or damage to or relating to the goods for a sum exceeding 100 pounds sterling per package or unit, or the equivalent of this sum in other currency, unless the nature and value of these goods have been declared by the shipper before their shipment and this declaration has been inserted in the bill of lading'.

Here, it appears that the bill of lading expressly refers to '1 LOTS of bulk corn'. The respondent insurers denounce the limitation induced by the reference to the single lot, similar to the container itself, arguing that this acceptance of the unit leads to a limitation out of all proportion to their actual loss and is contrary to the spirit of the Hague Rules, prior to the phenomenon of containerisation of goods.

However, this Convention is the law chosen by the parties, and the respondent insurers do not demonstrate how another explicit reference could emerge from the enumerations in the bill of lading. As a consequence, the appellant carrier will therefore be required to pay the defendant insurers 823.96 SDRs or its equivalent in EUR (EUR 5,000) with interest.