Pro A Pro Distribution Export (Pro), insured by Zurich Insurance Europe AG (Zurich), entrusted Bolloré Logistics (Bolloré) with the organisation of the transport of a refrigerated container containing 3,326 packages of frozen meat and ready meals from France to Martinique. The goods had to be kept at a constant temperature of -20° C. Bolloré entrusted the maritime transport to CMA CGM. On arrival, it appeared that the goods had not been kept at the correct temperature. Reservations were issued against Bolloré and CMA CGM. Following an expert survey, the goods were destroyed, causing damage assessed at EUR 121,636.97.

Pro and Zurich sued Bolloré and CMA CGM in the Nanterre Commercial Court. Bolloré sought indemnification from CMA CGM. The Court below held in favour of Pro and Zurich. CMA CGM appealed to the Court of Appeal.

Pro and Zurich argued that CMA CGM, in its capacity as the maritime carrier issuing the bill of lading, was presumed to be liable for damage caused to the goods under art 4.2 of the Hague-Visby Rules or art L 5422-12 of the Transport Code, and that it could not be exonerated from its liability without demonstrating fault on the part of the shipper and absence of fault on its part. They argued that CMA CGM had not provided proof of fault on the part of the shipper, as they had instructed Bolloré to transport at -20° C, and it had been established that the damage was caused by a malfunction of CMA CGM's container. According to the expert report, the temperature of the container was -15° C at the time of stuffing and had risen regularly during transport until it reached +15° C, when it was handed over to Schenker in Martinique.

Pro and Zurich further argued, on the basis of arts L 132-5 and L 132-6 of the French Commercial Code, that Bolloré, in its capacity as freight forwarder, was equally liable for the actions of its subcontractor, and alternatively that it was liable due to its personal fault if the Court found that CMA CGM had not been given instructions regarding the need to transport the goods at -20° C.

CMA CGM maintained that it should be exonerated from all liability under the Hague-Visby Rules, given Bolloré’s fault, which did not provide it with correct information, failed to provide it with any instruction to connect the container to '-20° C', and did not check the adequacy of the booking confirmation and the bill of lading with the instructions given, as well as the absence of any act or fault on its part or that of its agents or employees.

Bolloré contended that it had correctly transmitted the temperature instructions to CMA CGM, that it did not commit any personal fault causally connected with the loss of the goods, that CMA CGM did not follow the instructions given to it, and that the malfunction of CMA CGM's container was the sole cause of the damage.

Held: Appeal dismissed.

As to liability, under art 4 of the Hague-Visby Rules, the carrier is not liable for loss or damage resulting from or arising from any act or omission of the shipper or owner of the goods, its agent or representative, or from any cause not arising from the act or fault of the carrier or from the act or fault of the carrier's agents or servants.

Bolloré initially ordered CMA CGM to transport 'frozen products' by sea in a refrigerated container. The instruction also bears the note 'inactive reefer requested' with regard to the container. On the same day, CMA CGM issued a booking confirmation stating, in particular, the dates and ports of loading and unloading and the information 'Reefer: N', meaning a non-refrigerated container.

Bolloré then sent CMA CGM specific 'bill of lading' instructions which mentioned '40' reefer TMP: -20 UM: C' and described the goods as '3326 COLIS DIVERS PRODUITS SURGELES 19059080 (HS)'. CMA CGM denied having received these instructions.

From a comparative examination of the relevant documents, it appears that Bolloré sent CMA CGM appropriate instructions for the transport of frozen goods, including maintaining the container at a temperature of '-20° C' for the duration of the transport. CMA CGM has failed to demonstrate fault on the part of Bolloré in the transmission of transport instructions. With regard to the bill of lading not mentioning a temperature of '-20° C', this is CMA CGM's responsibility.

It follows that CMA CGM has not provided proof that the damage to the frozen goods resulted from Bolloré's fault, or from another cause not attributable to its own actions or fault, given that this damage occurred during maritime transport and CMA CGM itself admits connecting the container even though it has been established that it had received instructions for a temperature of -20° C. CMA CGM cannot therefore be exonerated from liability.

As to quantum of damages, the carrier's liability is limited to the amounts fixed by the provisions of art 4.5 of the Hague-Visby Rules, which provides a limit on compensation for damage to the goods, the amount due being calculated by reference to the value of the goods at the place and on the day when they are discharged in accordance with the contract, or on the day and at the place where they should have been discharged. CMA CGM and Bolloré are thus jointly and severally ordered to pay EUR 123,095.47, ie EUR 500 in favour of Pro, corresponding to its insurance excess, and EUR 122,595.47 in favour of Zurich. However, since Bolloré was not at fault, CMA CGM must indemnify Bolloré from any judgment awarded against it.