This was an appeal from a judgment of the Douai Court of Appeal (14 June 2018, corrected on 9 July 2020). On 18 June 2005, the supply vessel Don Rodrigo, owned by Perforadora Central SA de CV (Perforadora), was partially destroyed in the Gulf of Mexico following an explosion which occurred while it had been en route to a Mexican port for one hour and 25 minutes, and two hours after loading waste into its tanks from the head of an oil well belonging to Pemex Exploracion y Produccion (Pemex). The waste was pumped on board by the Bourbon Opale.

On the basis that the Bourbon Opale was liable for this incident, Perforadora and its insurers sued Maritima de Ecologia (Maresca), the charterer of the Bourbon Opale; as well as Bourbon Ships AS, the owner of the vessel; Bourbon Offshore Norway, the manager of the vessel; and the parent company (collectively, the Bourbon companies) for compensation for their loss. The Court of Appeal dismissed their claims. Perforadora and its insurers appealed.

The appellants argued that the waste from Pemex's oil platform was loaded onto the Bourbon Opale, which was equipped with an on-deck treatment plant. The waste was then supposed to be transhipped onto the Don Rodrigo after being subjected to a three-phase treatment on the Bourbon Opale under the supervision of Maresca, a partner of the Bourbon companies. The appellants therefore argued that the Bourbon Opale, Maresca, and the Bourbon companies, rather than Pemex, were responsible for the dangerous state of the waste.

The appellants maintained that the incident causing the fire on the Don Rodrigo was caused by the Bourbon Opale and fell under the framework of the Collision Convention 1910 by virtue of art 13, which provides:

This Convention extends to the making good of damages which a vessel has caused to another vessel, or the goods or persons on board either vessel, either by the execution or non-execution of a manoeuvre or by the non-observance of the regulations, even if no collision had actually taken place.

The appellants said that the Convention applied to the damage caused to the Don Rodrigo by the Bourbon Opale, even though there was no collision, on the grounds of non-compliance with relevant regulations.

The respondents countered that the Convention was not applicable. First, the contaminated waste was the property of Pemex, the producer of the waste. It was transhipped onto the Don Rodrigo on the orders of Pemex, which was in charge of the commercial management of the Bourbon Opale, through its representative on board, who issued the unloading order. There was no evidence that the contaminated waste transhipped from the Bourbon Opale onto the Don Rodrigo become an integral part of the Bourbon Opale, and thus that the explosion was caused by the first vessel to the second vessel. Furthermore, liability for collision is based on proven fault. The Convention cannot be applied to an incident at sea which occurred nearly two hours after the end of the transhipment, and when the collector vessel had been en route for one hour and 25 minutes. In any event, no direct causal link was proven between a fault committed by the Bourbon Opale because of the transhipped cargo, and the damage due to the explosion of the Don Rodrigo resulting from a spark on board the Don Rodrigo (from a cigar or an electric switch).

In the alternative, the respondents contended there was no 'non-observance of the regulations' within the meaning of art 13 of the Convention. The appellants argued non-observance of the SOLAS and MARPOL Conventions, and the ISM and IMDG Codes. They accused Maresca of having omitted to declare the dangerous goods in the logbook and the oil register of the Bourbon Opale, which only mentioned aguas aceitosas and emulcion aceite-agua ('oily water' and 'oily water emulsion'), which did not appear in the IMDG nomenclature or in the Mexican Code (CRETIB). The respondents countered that the Don Rodrigo was fully informed of the nature of the cargo transhipped from the Bourbon Opale, and preferred the translation 'water containing hydrocarbons' and 'hydrocarbon residues'.

In the alternative, the respondents argued that the appellants' claims were prescribed under art 7 of the Convention.

Held: Partial cassation.

Perforadora and its insurers complain that the Court of Appeal judgment rejected their claims for compensation against the Bourbon companies and Maresca, even though the incident constituted a so-called abordage sans heurt (ie a 'smooth' or 'clashless' collision) within the meaning of art 13 of the Collision Convention 1910 and L 5131-7 of the Transport Code, resulting in the liability of the Bourbon Opale.

However, having noted that the partial destruction of the Don Rodrigo occurred more than two hours after the transhipment of the cargo, the explosion of which had been caused by a spark on board the vessel when it had been underway for an hour and 25 minutes, and having noted that the cargo from the Bourbon Opale could not be considered to have become an integral part of the latter, the Court of Appeal was able to deduce from this that the accident had not been caused by the ship Bourbon Opale, and correctly held that no collision had occurred between the two ships. This plea is therefore unfounded.

Perforadora and its insurers further complain that the Court of Appeal judgment rejected their claims for compensation against the Bourbon companies and Maresca, whereas

it is incumbent on a French judge who recognises applicable foreign law, to research the content, either ex officio or at the request of a party invoking it, with the assistance of the parties, and personally if necessary, and to give the disputed question a solution in accordance with foreign positive law; that the Court of Appeal, referring to Mexican legislation (the Mexican CRETIB standards) without specifying its content, ruled that the Bourbon Opale could not be blamed for not having filled in the box for the IMDG marking of the product transported; that by so ruling without seeking, if necessary ex officio, the content of the Mexican legislation, to which the appellants moreover referred in citing a Mexican law of 31 March 1998 relating to the unloading document for hazardous substances, materials, and waste which required compliance with a marking, the Court of Appeal disregarded its office, in violation of article 3 of the Civil Code.

Pursuant to art 3 of the Civil Code, it is indeed incumbent upon a French judge who recognises foreign law as applicable to ascertain its content, either ex officio or at the request of a party who invokes it, with the co-operation of the parties, and personally if necessary, and to give the disputed question a solution in accordance with foreign law. To reject the claim for compensation by Perforadora and its insurers against Bourbon Offshore on the basis of tort liability, the judgment, after having held that the IMDG Code was inapplicable to the case, inferred that Maresca and the Bourbon companies could not be blamed for not having filled in the box for the marking of the IMDG class of the product transported 'as well as for not having complied with Mexican legislation (Mexican standard CRETIB)'.

In so ruling, while Perforadora and its insurers specifically invoked the Mexican law of 31 March 1998 relating to the unloading document for hazardous substances, materials, and waste requiring compliance with a marking, the Court of Appeal, which also referred to Mexican law, but deduced that the absence of marking was in conformity with it simply because the IMDG Code did not impose it, without seeking the exact content of Mexican law itself to verify that it was not more demanding than the IMDG standards, violated art 3 of the Civil Code.

The Court therefore annuls the corrected judgment of 14 June 2018 of the Douai Court of Appeal, only insofar as it dismisses Perforadora and its insurers' claims against Bourbon Offshore on the basis of extra-contractual liability, and in that it rules on the costs. On these points, the judgment is reversed, the case and the parties are placed in the state they were in before this judgment, and the matter is remitted to the Rouen Court of Appeal.