This was a referral from the Court of Cassation dated 16 January 2019 (CMI1040), reversing and annulling the judgment rendered on 6 April 2017 by the Aix-en-Provence Court of Appeal.

Système U entrusted Sedis Logistics Belgium with the shipment of various batches of textile goods from Hong Kong to the port of Montoir-de-Bretagne, France. These were stuffed into several containers and carried on the Thalassa, chartered by SA CMA CGM.

On 5 August 2011, during the ship's stopover at Suez in Egypt, a fire broke out in a container loaded on deck, carried under a bill of lading issued by SA CMA CGM, designating as shipper the Chinese company Talifor HK Industrial Ltd (Talifor), and as consignee and notify party the Moroccan company Allo Koma. It was later discovered that this container contained charcoal pellets which had not been declared as dangerous goods, and which had caught fire. To extinguish the fire, the crew pumped in sea water which reached Système U's container, damaging some of the textiles.

The Commercial Court of Marseille held that the combustible products in the container were the cause of the fire which damaged the Thalassa, and ordered Allo Koma, Talifor, and Assurex International Logistics - Shenzen Office to compensate SA CMA CGM for the damage to its ship. The Court, however, dismissed the cargo insurers' claims against SA CMA CGM on the ground of its exoneration on the basis of art 4.2.b of the Hague-Visby Rules.

The Aix-en-Provence Court of Appeal overruled the trial judgment. The Court of Appeal held the carrier liable because it did not inform the consignee of the damage when the goods were put on board another vessel and did not take any measures to limit the damage. The Court also held that even if the fire had been caused by a third party, the carrier remained liable for the damage caused by the sea water.

The Court of Cassation quashed the Court of Appeal judgment and referred the matter to the Montpellier Court of Appeal.

Held: The original judgment of the Commercial Court of Marseille is confirmed in its entirety.

It follows from art 4.2.b of the Hague-Visby Rules, which are applicable here, that fire is an excepted case of liability of the maritime carrier unless the cargo interests establish the fault of the ship in the occurrence of the fire, and not in the occurrence of the damage.

Here, it is not disputed that the damage to the textile articles arose from wetting. It is also common ground that this was caused by the sea water used to fight the fire.

The expert report established that the charcoal pellets contained in the cardboard boxes loaded in the relevant container caught fire by 'spontaneous combustion', but that these charcoal pellets, used for smoking hookah shisha, had not been declared on the bill of lading under the IMDG Code corresponding to materials subject to spontaneous ignition. The bill of lading merely indicated that the container contained 670 cartons of 'Fahm tablets'.

The fire, constituting an excepted case of liability in favour of the maritime carrier, covers not only the fire itself, but also the smoke which has emerged from the fire, and the water or extinguishing agents used to minimise loss. To neutralise this exception, it is up to the cargo interests to establish the fault of the carrier in the occurrence of the fire, and not of the damage itself.

Here, the fire originated in the self-combustion of the charcoal pellets, without any fault in the loading or the stowage of this container on the part of SA CMA CGM to whom the dangerous and flammable nature of the goods transported had not been declared.

The trial Judge's decision that SA CMA CGM be exonerated from its liability was therefore correct.