This was an appeal in cassation against the judgment of the Aix-en-Provence Court of Appeal, 6 July 1987. SOGAMAX purchased goods in Taiwan, and entrusted their maritime transport from Taiwan to Marseille (France) to Scandutch (the carrier). The goods were loaded at Keelung (Taiwan) onto the KH Enterprise, a 'feeder ship' used for the consolidation of goods transported in containers, with a view to be loaded in Hong Kong onto the X EDO 648. The goods were lost at sea during the sinking of the KH Enterprise. The bill of lading dated 7 March 1987, drawn up on the letterhead of Scandutch, noted, in addition to the description of the seller of the goods, 'embarkation: Keelung' and 'port of destination: Marseille', as well as the name of the ship: X EDO 648. The goods had been paid for by the bank as part of a documentary credit arrangement. There was another bill of lading, also dated 7 March 1987, which had been drawn up concerning the transport of various goods, including the disputed goods, from Keelung to Hong Kong, which did not contain any mention of Scandutch. SOGAMAX brought a claim against Scandutch for compensation for the value of the undelivered goods.

The Court of Appeal, applying arts 3.4 and 7 of the Hague Rules, ruled that the carrier Scandutch was imperatively bound by the bill of lading under which it undertook to unload at the port of Marseille the containers on the X EDO 648 and that it did not matter that a peril of the sea had occurred which might have exonerated the carrier from its liability. Scandutch appealed.

Held: Cassation.

By so ruling, while it appeared from its findings that, with a view to their forwarding to Hong Kong, the goods had been loaded at Keelung on board another vessel whose sinking had resulted in their loss, the Court of Appeal violated the aforementioned provisions. In declaring itself competent, the Court of Appeal held that there was 'no serious difficulty regarding the right to compensation of the company SOGAMAX'. However, the examination of the claim which was presented to the Court required that the probative value of the particulars noted in the bill of lading be assessed, as well as the effect of the sinking of the KH Enterprise on the obligations of the carrier, as well as the nature of the damage. It was also necessary to determine the meaning and the scope of the clause according to which the carrier could have the goods transported on a vessel other than that indicated in the bill of lading. The existence of the invoked obligation of the carrier was seriously questionable. The Court of Appeal therefore violated by false application the aforementioned provisions.

For these reasons, the judgment under appeal is struck down and annulled in its entirety. The case and the parties are returned to the position where they were before the aforementioned judgment, and the case is referred back to the Bordeaux Court of Appeal to be decided correctly.