Société de Cultures Légumières (SCL), a Senegal company, sold a batch of sweetcorn to Barfoots of Botley, a UK company, for EUR 27,013.50. CMA CGM took charge of the shipment as carrier at the required temperature of +1°C, and loaded it onto the CFS Genesis. Upon arrival, cargo damage was discovered. SCL and its insurers brought an action against CMA CGM.

Held: Judgment in favour of SCL's insurers.

Since the UK has ratified the amended Brussels Convention [ie the Hague-Visby Rules], this Convention applies. Failing that, since Senegal has ratified the Hamburg Rules (and therefore clearly denounced the original Brussels Convention), those Rules must govern this dispute. Whether France has ratified the Hamburg Rules is entirely irrelevant in this case, and it is up to each Court to determine the applicable law.

Article 10 of the Hague-Visby Rules states:

The provisions of this Convention shall apply to any bill of lading relating to the carriage of goods between ports within the jurisdiction of two different States when:

(a) the bill of lading is issued in a Contracting State; or

(b) the carriage takes place at a port of a Contracting State; or

(c) the bill of lading provides that the provisions of this Convention or of any other legislation applying or giving effect to them shall govern the contract, ...

Senegal, the country of the issuance of the bill of lading and of departure of the carriage of goods, is not a Contracting State of the Hague-Visby Rules.

Clause 6 of the CMA CGM bill of lading provides that

when loss or damage occurs between the loading of the goods by the carrier or any substituted carrier at the port of loading, and the unloading by the carrier or any substituted carrier at the port of discharge, the carrier's liability shall be determined in accordance with the Hague Rules or any national law making the Hague Rules mandatory for this bill of lading ...

Clause 1 of the CMA CGM bill of lading clearly defines the 'Hague Rules' as the Brussels Convention of 25 August 1924, as amended by the Protocols signed in Brussels on 23 February 1968, and 21 December 1979, and that these 'Rules' may apply 'but only to the extent that the provisions of this Protocol are mandatory for the carriage covered by this bill of lading' ...

In view of similar cases regularly handled by this Court, the plaintiffs and their insurers cannot claim ignorance of the general terms and conditions of the bill of lading issued by CMA CGM. France is not a party to the Hamburg Convention, and therefore it is not applicable to the French courts as an international Convention. Consequently, the original Brussels Convention of 25 August1924 must be declared applicable.

CMA CGM claims to benefit from two exceptions: the shipper's fault for 'hot stuffing', and inherent defect of the goods. The insurers maintain that CMA CGM has not demonstrated the benefit of these two exceptions. It is undisputed that the maritime carrier is presumed liable for cargo damage unless an exception provided for in art 4 of the Brussels Convention can be demonstrated. On the evidence, CMA CGM has not proven that it benefits from any exceptions exempting it from all liability. Therefore, CMA CGM must be held liable for the cargo damage.

For the plaintiffs, if the Court were to consider the original Brussels Convention applicable, it is necessary to determine the unit chosen by the parties, namely ears of corn or the weight, to assess the calculation of limited liability. CMA CGM did not include on the bill of lading the information specified by the shipper, namely the number of ears of corn and weight per container on its draft bill of lading. In such a case, any ambiguity, uncertainty, or indeterminacy regarding the unit of freight chosen by the parties can only benefit the party entitled to the goods, as no useful limitation can be invoked without determining the applicable unit.

Article 4.5 of the original Brussels Convention specifies that:

The carrier and the ship shall in no case be liable for loss or damage to or in connection with the goods in excess of 100 pounds sterling per package or unit, or the equivalent of that sum in another currency, unless the nature and value of such goods have been declared by the shipper before their loading and such declaration has been inserted in the bill of lading.

The relevant bill of lading explicitly states the following for the number of packages: '1 x 40RH', and for the description of the packages: '1 LOT'. The plaintiffs do not provide proof of any other unit used by the parties.

It is therefore appropriate to uphold the limitation of liability provided for in this agreement and limit the compensation owed by the maritime carrier to 823.96 SDRs per container.