SA KS Export (KS) commissioned SA Mathez Transports Internationaux (Mathez) to deliver packages of cigarettes and alcohol from Nice (France) to Annaba (Algeria) for duty free stores at the airport. Mathez, a freight forwarder, entrusted CNAN Group SpA (CNAN), a maritime carrier, with shipping the goods from Marseille on the Blue Sky on 27 February 2004. The goods, stuffed in a 40-foot container, were transported to the Port Autonome de Marseille on 26 February 2004, and handed over to SNC Socoman (Socoman), a stevedore commissioned by CNAN, who placed the container in berth 42. The ship suffered a delay, and the container, which remained at the quayside, was stolen during the night of 27-28 February 2004. A security guard from SARL TH Amghar (Amghar), commissioned by Socoman to carry out guarding of the site, accidentally discovered the theft and was immobilised by the thieves. On 30 April 2004, CNAN paid to the Customs Administration the sum of EUR 272,243 for customs duties, consumption rights on tobacco, various taxes, and VAT corresponding to the share of goods placed under customs control (mainly manufactured tobacco) which had been removed and thus 'released for consumption'.

KS sued Mathez. On 3 February 2006, the Commercial Court of Marseille rejected an argument of force majeure and held that Mathez was personally liable without limitation. The Court ordered Mathez to pay KS the sum of EUR 91,353.56 as damages. CNAN was ordered to indemnify Mathez up to the equivalent of 4,690.82 SDRs. Mathez was further ordered to pay CNAN sums of EUR 272,243 for the customs charges and EUR 10,475.19.

Mathez appealed to the Court of Appeal, arguing that it was entitled to be exempted from liability under art 4.2.q of the Hague-Visby Rules.

Held: Judgment overruled and new judgment issued.

CNAN knew the nature of the goods which had been delivered to it for this shipment. However, it has not been demonstrated that Socoman knew the nature of the goods in the container that it had received from CNAN and positioned in berth 42 and of which it was in charge.

Regarding the argument of force majeure provided for by art L 133-5 of the Commercial Code and art 4.2.q of the Hague-Visby Rules ('any other cause arising without the actual fault or privity of the carrier, or without the fault or neglect of the agents or servants of the carrier'), neither Mathez nor CNAN can claim force majeure as the origin of the loss. They should have been prepared for the commission of the theft and taken precautions or reasonable measures to ensure the safeguarding of the goods. Given the undetected introduction of 3 vehicles into the port enclosure and the handling of a forklift without attracting attention, such measures were not taken. The thieves were able to operate fairly freely without being disturbed, except by a security guard who had diverted from his usual round.

Gross negligence was not really invoked by KS, but was denied by Mathez. Such a fault would deprive the maritime carrier from relying on the limitation of liability in the Hague-Visby Rules. In this case, no fault of such a nature, involving a total negligence in the execution of its mission, can be imputed to CNAN. CNAN does not free itself from the presumption of responsibility weighing on it vis-à-vis the shipper by application of the Hague-Visby Rules, however, and has failed to prove an exemption of liability, so will be liable for compensation to KS.

CNAN and Mathez benefit from the limitation of compensation provided for by the Hague-Visby Rules, ie 666.67 SDRs per package. The compensation limit is established at 155 x 666.67 SDRs = 103,333.85 SDRs. KS justifies its damage up to EUR 91,353.56, as the first instance Judges have rightly assessed. The sum of EUR 18,081.45 for 'miscellaneous costs and fees' claimed in addition is not sufficiently justified. The limitation of compensation represented by the counter-value on the day of the judgment of 103,333.85 SDRs is greater than the amount of the actual damage suffered.

Mathez, who has not committed any personal fault, is entitled to exercise its recourse against its subcontractor, CNAN, who had custody of the goods at the time the theft was committed. CNAN has no recourse against Socoman, because it did not inform it of the nature of the goods that it was responsible for handling, and therefore Socoman did not commit any fault in failing to take appropriate measures to safeguard the integrity of a container not marked as particularly 'sensitive', and nevertheless placed at height, with its door blocked. Mathez also has no recourse against Socoman, whom it had not commissioned.

The Court also rejected CNAN's claim against Mathez and KS for reimbursement of customs duties.