In August 2015, SARL Kariban France (Kariban) imported clothing from Bangladesh to France. Kariban arranged transport with Geodis Freight Forwarding France (formerly Geodis Wilson France (Geodis)). Kariban insured the goods with Tokio Marine Europe (TM).

Geodis entrusted the maritime transport of the goods to MSC Mediterranean Shipping Co (MSC). After the goods arrived in France, Kariban sent reservations by email to Geodis informing it of a smell of mothballs emanating from the clothes. Kariban also declared the incident to its insurer, TM.

The expert concluded that the goods had been contaminated by naphthalene impregnated in the rubber seals of the container. An analysis carried out at the expert's request by a laboratory confirmed the presence of mothballs in the clothes.

TM compensated its insured for EUR 122,152.58 corresponding to the loss of goods, as well as the related costs of analysis and destruction of the goods.

TM and Kariban then sued Geodis and MSC in the Commercial Court of Pontoise. The Court held against them. TM and Kariban appealed against the judgment.

Held: Appeal dismissed.

Kariban and TM criticise the judgment below for dismissing their claim on the grounds that, since the presumption of conforming delivery reversed the burden of proof to the recipient, proof of the origin of the pollution would not be provided. They argue that pursuant to arts L132-3 ff of the Commercial Code, the freight forwarder Geodis is liable for damages and losses occurring to the goods during the transport entrusted to it. As such, Geodis responds not only to its personal fault but also to the faults committed by the subcontractors it solicited for the execution of its mission. Geodis must therefore answer for the acts committed by MSC. They maintain that they are also justified in seeking the liability of MSC, as a maritime carrier, on the basis of the Hague-Visby Rules. They state that, admittedly, in the absence of reservations made within three days of delivery, it is in fact, by virtue of art 3.6 of the Rules, for the cargo interests to prove that the damage occurred during transport, but that this proof can be provided by any means. Thus, being a simple presumption, it is sufficient for the plaintiff to demonstrate that the damage existed at the time of delivery or that it occurred during maritime transport, for example due to a defect in the container, which is the case here.

Geodis claims that it acted as a freight forwarder. It maintains that MSC, as the maritime carrier, is presumed liable for damages and losses resulting from maritime transport under the Hague-Visby Rules. It argues that the supply of the container by the maritime carrier is ancillary to the contract of carriage, and therefore makes MSC liable for damage resulting from the supply of a defective container.

MSC argues that the provisions of art 3.6 of the Hague-Visby Rules provide:

Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage, or, if the loss or damage be not apparent, within three days, such removal shall be prima facie evidence of the delivery by the carrier of the goods as described in the bill of lading.

MSC maintains that in this case the absence of notification of reservations within three days resulted in the overturning of the presumption of imputability and responsibility which weighs on the maritime carrier. It also maintains, with relation to art 4. 2 of the Convention, that neither the carrier nor the ship is liable for loss or damage resulting from an 'inherent defect, quality or vice of the goods'.

Kariban sent an email 14 days after receipt of the disputed goods. The email indicated that 'we have just noted' an odour on the goods so significant that it asserted that their sale was impossible. It is surprising that the presence of this strong odour was not detected by Kariban upon delivery.

The expert report notes that the clothes 'previously wrapped in a plastic bag, were packaged in double corrugated cardboard parcels ...'. The expert report does not explain how the naphthalene present only on the rubbers of the hinges of the doors of the container was able to impregnate all the clothes bagged in plastic and placed in boxes.

These findings do not make it possible to determine the date on which the contamination occurred. This contamination may have occurred during stuffing in the container, or during transport of the goods, or during or after delivery.

Kariban and TM have not adduced certain proof that the contamination occurred during the maritime transport operations carried out by MSC. It follows that MSC must benefit from the presumption of compliant delivery, and thus the responsibility of Geodis in its capacity as guarantor of the maritime carrier cannot be called into question.