The respondent carrier was commissioned on behalf of SASU Cosmos Foods to transport frozen fish from the PRC to Le Havre, France, in a reefer container at the required temperature of -18°C. The shipper was Taipu Food Co Ltd, and the container was supplied by the respondent carrier.

On delivery, the container emitted a foul odour and there was evidence of thawing and the presence of drips and moisture on the cartons, rendering the products unfit for human consumption. The goods were destroyed. The appellant insurers compensated the consignee and sought recourse against the respondent carrier.

The Commercial Court of Le Havre ruled in favour of the respondent carrier. The appellant insurers appealed to the Rouen Court of Appeal.

Held: Appeal allowed.

According to art 4 of the Hague-Visby Rules, neither the carrier nor the ship shall be liable for loss or damage arising out of or relating to:

(i) act or omission of the shipper or owner of the goods, his agent or representative; ...

(q) any other cause arising without the actual fault and privity of the carrier, or without the fault or neglect of the agents or servants of the carrier, but the burden of proof shall be on the person claiming the benefit of this exception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage.

The container and goods were examined by two independent experts. The expert reports concluded that the frozen goods suffered a break in the cold chain during transport in a container provided by the respondent carrier, and that the causes of this break were:

• overloading of the container attributable to the shipper, which restricted the circulation of refrigerated air;
• the fact that the container's drains were not sealed, allowing warmer and more humid outside air to enter the reefer container, which promoted ice formation inside;
• a baffle/deflector that was damaged, which both experts agree may have restricted the supply of cold air to the container.

The responsibility for the overloading cannot be attributed to the carrier, which did not perform the loading operations, but solely to the shipper. Furthermore, while the maritime carrier is obligated to provide a clean and transportable container, it is not responsible for the internal preparation of the container, which includes the management of drains and plugs, unless otherwise agreed. Therefore, sealing the drains is the sole responsibility of the shipper if the goods are likely to generate liquids or if air tightness is required, as was the case here. These two causes of the cold chain break are thus attributable to the shipper, and not to the carrier.

However, since the carrier has not demonstrated that the denting of the baffle, the final cause of this cold chain break, was caused either during the loading or unloading of the container, it has not demonstrated that it benefits from one of the exceptions provided for in the Hague-Visby Rules.

The appellant insurers therefore have the right to claim from the respondent carrier:

• the market value of the goods: EUR 71,638.10;
• the destruction costs: EUR 7,057.56;
• the invoice from LPO Sogena: EUR 156.