This was an appeal against the judgment of 26 May 2020 of the Créteil Commercial Court in a carriage of goods dispute.

Held: The decision of the Court is overturned, except insofar as it declared itself competent, declared admissible the action of Helvetia Assurances, subrogated into the rights of the consignee, Del Gaudio France, against Business By Air and Transit Fruits, ordered Transit Fruits to release and indemnify Business By Air from all judgments imposed on it, and in its provisions relating to irrecoverable costs.

Transit Fruits raises the exception of incompetence of the Court on the application of a foreign jurisdiction clause in the bill of lading. Transit Fruits does not refer to any international text. Both Transit Fruits and Business By Air are companies governed by French law. Article 48 of the Code of Civil Procedure provides:

Any clause that departs, directly or indirectly, from the rules of territorial jurisdiction will be deemed non-existent unless it has been agreed between parties to a contract entered into as merchants and the same has been provided for in an explicit manner in the undertakings of the party against whom it will be enforced.

Article 1103 of the Civil Code states that legally formed contracts enforceable between those parties who have made them. The jurisdiction clause, which derogates from common law, is only enforceable against parties if they have accepted it. The document 'Eagle Europe Africa Global Line Express' dated 16 March 2017, relating to the transport of 3,200 boxes of green beans weighing 17,800 kg, stipulates in cl 2(d): 'The parties agree to submit any dispute arising out of this contract to the exclusive jurisdiction of the High Court of Justice in London'. The copy produced of this document states:

Shipper: Agro Negoce
Consignee: Del Gaudio
Notify address: Stracom
Vessel: Lady Rosebud.

Business By Air is not mentioned in this document, and the copy produced is also not signed. The acceptance of the jurisdiction clause, which appears elsewhere than on the front page of the document, by Business By Air, and as a consequence its enforceability, have not been demonstrated. The exception of incompetence will thus be dismissed, and the judgment of the Court below will be confirmed on this point.

The judgment that declared admissible the action brought by Helvetia Assurances, subrogated in the rights of Del Gaudio France, against Business By Air and Transit Fruits, will also be confirmed. However, in so far as the judgment declared Helvetia Assurances' action against the captain of the vessel Lady Rosebud, taken in his capacity as representative of the shipowner, to be inadmissible, that will be overturned. The call for a guarantee by Business By Air against the captain of the ship in his capacity as representative of the shipowner who transported the damaged goods is admissible.

It is not disputed that Business By Air is a freight forwarder, whose personal liability is not sought. This status is apparent from the invoice it issued on 29 May 2017. Transit Fruits is not mentioned on this invoice, nor on the Eagle document, nor on the certificates. Its status as a maritime carrier has not been demonstrated. It disputes his status as an intermediary commission agent and claims to be a freight forwarder. The freight forwarder is an auxiliary in the transport of goods. As a simple agent, it does not have the freedom of choice and the means to carry out its missions, but obeys directly the instructions of its principal. The commission agent organises the transport.

In this case, on 21 March 2017, Transit Fruits issued an invoice to Business By Air for an amount of EUR 3,887 relating to a 'Niayes/Pve package on a customs-paid truck', stating 'Import Niayes/[Location 5]-01x40 reefer AEXU 450091-4 stc Green Beans (Cee: Delagaudio)-unloading of the container and provision of pallets to PVE', as well as the name of the vessel Lady Rosebud with the date of 22 March 2017. There is no evidence of any instructions given by Business By Air to Transit Fruits to organise this transport. It is clear from this evidence that Transit Fruits organised the transport of the 3,200 boxes of green beans, and therefore acted as an intermediary broker. The vessel Lady Rosebud is mentioned as a 'vessel' or 'ship' on several documents including the 'Eagle' document. It is not disputed that this vessel transported the goods by sea.

The Court found that the incident resulted from a malfunction of the container's refrigeration unit during maritime transport, the goods having been subjected to temperatures higher than the set temperature. During maritime transport, the on-board personnel recorded temperatures indicating temperatures in accordance with the set temperature. On arrival, it was noted that the temperature indications recorded on the container revealed temperatures not in accordance with the set temperature. In any event, it has not been established when the container malfunctioned or when the fault could have been detected. Thus, the alleged fault of negligence of the on-board personnel is not demonstrated in the occurrence of the incident, caused by the failure of the container.

Given the price of the sale of green beans on 23 March 2017, as established by the documents submitted to the Court on a date contemporaneous with the loss, the price of EUR 1.20 per kg will be retained. The net weight indicated on the Eagle document, on the phytosanitary certificate, and on the invoice from the exporter, Agro Negoce, is 16,000 kg. Thus, the value of the lost goods will be retained at EUR 19,200 (16,000 x 1.20). The destruction costs amounted to EUR 3,075.63.

A limitation of compensation is invoked by application of art 4.5.b of the Hague-Visby Rules. Article 4.5.a of the Rules provides that the limitation of compensation of the maritime carrier and its subcontractor must be calculated based on 2 SDRs per kg of gross weight of the damaged goods or 666.67 SDRs per package listed in the bill of lading (ie here, 145 packages x 666.67 SDRs = 96,667 SDRs), whichever is the higher limitation amount.

Here, Business By Air and Transit Fruits are liable as freight forwarders and intermediate freight forwarders respectively, and as guarantors. The goods were transported in 3,200 cartons with a gross weight of 17,800 kg. The highest limitation within the meaning of this provision is therefore that calculated according to the number of packages, ie 2,133,344 SDRs, and not that according to the gross weight (17,800 x 2 = 35,600 SDRs). It is higher than the amount of the damage assessed at EUR 19,200, in addition to the costs of destruction and expertise amounting to EUR 3,075.63 and EUR 1,298.75.

As a result, Business By Air and Transit Fruits will be jointly and severally ordered to pay Helvetia Assurances the sums of EUR 19,200, EUR 3,075.63 and EUR 1,298.75, with interest.