This was an appeal in cassation against the judgment of the Rouen Court of Appeal, 16 September 2010. Having issued five bills of lading on 16 June, 15 July, 16 September, 10 October, and 23 November 2004 on behalf of Omega Trading International (Omega), Delmas took charge of five containers of palm oil and rice on the Bougainville, Gaby Delmas, Rigena, and Ursula Delmas departing from Bangkok (Thailand) and Singapore and bound for Lomé (Togo). All of these goods were intended for AGC Lomé (AGC). These containers were warehoused in Lomé by Delmas awaiting presentation by AGC of the original bills of lading endorsed for its benefit. Having partially paid Omega for the goods, AGC presented false bills of lading and obtained delivery of the containers between 21 July and 22 December 2004. Omega brought proceedings against Delmas for EUR 178,025.07. Delmas called upon SDV Togo, its agent at the port of Lomé, to indemnify it, and SDV Togo in turn called upon AGC to indemnify it.

The Court of Appeal held that Omega's action against Delmas was time-barred. Omega appealed, arguing that art 3.6 of the Hague Rules provides that the carrier and the ship will be released from all liability for loss and damage unless an action is brought within one year of delivery of the goods. It followed that the annual prescription established by this provision is not applicable to an action for liability brought against the carrier for irregular delivery, due to the delivery of the goods to a third party not authorised to receive it, without presentation of authentic bills of lading, or acceptance of the bill of exchange endorsed by the bank, as agreed in the contract of carriage, provided that the goods were neither lost nor damaged. By deciding to the contrary that the time bar was applicable to any action in liability exercised against the carrier, even in the event of irregular delivery, the Court of Appeal violated the abovementioned provision.

Omega further contended that the one-year limitation period under art 3.6 runs from the delivery of the goods which consists of the operation whereby the carrier delivers the goods to the beneficiary who accepts them. By deciding that the period runs from the irregular delivery of the goods, in light of the counterfeit bills of lading, although they were delivered to AGC which was neither the consignee mentioned in the bill of lading, nor the representative of Omega, the Court of Appeal violated the abovementioned provision. Limitation also does not run against a party who was unable to act, because it was only aware of the delivery after the event, so the time limit only starts from the day it is actually notified of the delivery by the carrier. Rather than finding that Omega should have obtained information from the carrier more quickly, the Court should have held that it was up to Delmas to inform Omega that it had handed over the containers to AGC. Omega legitimately believed that the goods were overdue under the responsibility of the Delmas company which, despite the importance of their business relations, had not considered to inform it of the delivery of the cargo, especially since Omega had been able to rely on the bank, BTCI Lomé, who explained that the original and authentic bills of lading remained in its hands, pending payment of the price that AGC wanted to defer due to cash flow and local issues.

Finally, Omega submitted that the fraud committed by the maritime carrier in the execution of the maritime transport contract prohibited it from taking advantage of the short one-year limitation period under art 3.6. Omega said that Delmas had committed a fraud which deprived it of the benefit of the limitation period since it had delivered the goods to a third party not authorised to receive them, without taking care to verify the authenticity of the documents, and had then concealed the conditions of this delivery from its client. By simply finding, to exclude any fault on the part of Delmas, that it had responded to Omega's request for information as soon as possible, without investigating, as it was invited to do, whether the circumstances of the delivery of the goods to AGC constituted a fraudulent fault that excluded the benefit of the limitation period under art 3.6, the Court of Appeal deprived its decision of a legal basis.

Held: Appeal dismissed.

It follows from art 3.6 para 4 of the Hague Rules that the action against the carrier which is based on the maritime transport contract is prescribed after one year. The Court of Appeal correctly held that Omega's action against Delmas was prescribed within a period of one year from the last delivery, which had been made in respect of documents having all the appearance of bills of lading.

Having noted that Omega and AGC had set up a documentary payment method, with the original bills of lading being endorsed in favour of a bank into whose hands AGC was to pay the invoices subject to delivery of the originals of the bills of lading, and that all the containers had instead been delivered to AGC against presentation of falsified bills of lading, the judgment correctly held that Omega, as a professional exporter, could not have been unaware that an absence of taking charge of the containers for more than a year entailed risks. It was up to Omega to worry about it sooner and act to this effect, especially since the payments made by the company AGC were episodic.

Fraud committed by the maritime carrier in the performance of the maritime transport contract does not prevent it from availing itself of the short one-year limitation period instituted by art 3.6 of the Hague Rules. The Court of Appeal thus did not have to carry out ineffective research into whether the carrier had committed fraud.