These were two appeals in cassation from the judgment of the Rouen Court of Appeal, 18 December 2014. Winfood International (Winfood) sold foodstuffs to Luzolo & Bikuma Lda (L&B), who undertook to pay them against delivery of the original bills of lading by Winfood's bank. The maritime transport of the goods from ports in different countries to Cabinda (Angola) was entrusted by Winfood to CMA CGM, who was represented at the port of destination by SDV Ami Angola (Ami). Due to the small size of the port of Cabinda, the goods had to be transhipped onto another liaison vessel at the port of Pointe-Noire (Congo), then handed over to Empresa Portuaria de Cabinda (EPC), who exercised a monopoly of handling operations at the port of destination. Winfood sued CMA CGM for releasing two shipments without presentation of the original bills of lading, and for poor storage of the goods from another shipment resulting in their destruction. CMA CGM called upon L&B, Ami, and EPC to indemnify it. Winfood was placed into reorganisation, and then into judicial liquidation. The liquidators took over Winfood's claims.

The Court of Appeal held that Ami, in solidum with CMA CGM, and L&B, was liable to pay Winfood's liquidator EUR 81,601 and the equivalent in EUR of the sum of USD 869,263.86, in addition to the sum of EUR 1,339 for bank charges invoiced for the return of documents relating to these shipments. Both Ami and CMA CGM appealed against the judgment. The appeals were heard together.

CMA CGM argued that Winfood's claims were time-barred, in that the delivery of the goods by the maritime carrier to a monopoly company is equivalent to delivery. The Court of Appeal itself noted that a period of several days could elapse between the arrival of the liaison vessel at the port of Cabinda and the date of the actual unloading, and that EPC had a monopoly on warehousing and removal of goods. From these observations it can be deduced that the monopoly company took delivery of the goods only a few days after the arrival of the ship. Winfood brought its action against CMA CGM by summons of 15 February and 4 March 2011. In its pleadings CMA CGM argued, without this being disputed, that the precise date of the unloading at the port of Cabinda of the majority of the contested containers was demonstrated with certainty by the production of the control logbooks of the temperatures on board the vessel MV Fas Var responsible for ensuring the connection between Pointe-Noire and Cabinda. According to these logbooks, some containers were unloaded in Cabinda on 5 January 2010 and others were unloaded in Cabinda on 26 and 28 February 2010. All actions against it as the carrier should, at the latest, have been commenced between 28 November 2010 and 28 February 2011. Winfood's claims were therefore brought more than one year after the date of delivery of the containers and should have been ruled inadmissible as having prescribed.

CMA CGM further contended that, under art 4.2.i of the Hague Rules, the maritime carrier is not responsible for damage resulting from an act or omission of the shipper. Following the observation of the difficulties existing at the port of Cabinda, CMA CGM and the shipper had agreed to keep the last containers shipped to the Pointe-Noire terminal in transit and not to ship them to Cabinda where they would have been delivered to the recipient by the port without presentation of an original copy of the bill of lading. After giving these instructions, Winfood was uninterested in the fate of these goods, without providing CMA CGM with new instructions on the continuation of the shipment or on a possible re-routing of the goods, which were then naturally damaged due to prolonged storage at the terminal.

CMA CGM further complained that the Court had ordered it to pay various sums to Winfood on the basis that the terms of delivery of the goods fell within the domain of activity of the maritime carrier. The Court had held that the maritime carrier could not, in its capacity as a professional, have been unaware of the existence of specific customs regulations and that it had a duty to inform the shipper who, in its capacity as a professional in international trade, was not supposed to know about these regulations at the port of destination.The fact that the shipper had on several previous occasions dispatched goods bound for the port of Cabinda did not exonerate the maritime carrier of its responsibility.

Held: Partial cassation.

The judgment states that the burden of proof of the handing over of the goods to the monopoly company at the port of destination lies with the maritime carrier who, if it wishes to avail itself of the one-year limitation period in art 3.6 of the Hague Rules, must establish the date of this delivery. After noting that EPC did not have a monopoly on the unloading of liaison ships, but only on the operations of storage and removal of goods by the receiver at the port of Cabinda, the judgment held that the prescription of the liability action brought against CMA CGM runs, not from the date of arrival of the liaison vessel at the port of Cabinda, nor from L&B taking possession of the goods, but from the delivery of the containers to EPC, which can only be understood as the day on which, once unloading is complete, the containers have been entrusted to it by CMA CGM. The Court of Appeal considered that the tables submitted by CMA CGM relating to the dates of delivery of containers to EPC were not sufficiently convincing; that the copy of the logbooks including the temperature control of the liaison vessel between the port of Pointe-Noire and that of Cabinda did not mention the date of delivery of the containers into the hands of EPC; and that no document established the date of effective delivery of the goods to EPC. Given these findings, the Court of Appeal legally justified its decision to reject prescription.

The carrier is presumed responsible for damage to the goods where it does not provide proof of the existence of an excepted case of liability. The judgment held that the relevant goods were stored by CMA CGM in April 2010 at the Pointe-Noire terminal, where climatic conditions of heat and humidity prevailed likely to compromise their conservation. Due to an excessive length of exposure to these conditions, they had to be destroyed. The judgment also held that CMA CGM did not produce any document capable of establishing that it informed Winfood of the conditions under which it stored and preserved the goods and of the risk of deterioration that resulted. From these findings and assessments, the Court of Appeal deduced that CMA CGM did not provide proof of an excepted case of its responsibility nor that of a fault on the part of Winfood, and legally justified its decision. Further, the Court held that the ambiguity of the terms of the email of 6 September 2010 in which Winfood informed CMA CGM of 'the expectation of a reliable system of re-routing by road' meant that CMA CGM could not maintain that Winfood had not given it any instructions regarding the re-routing of the goods.

However, in ruling that the shipper had neither the expertise nor the competence to know the terms of delivery applicable to the port of destination, the Court of Appeal deprived its decision of a legal basis. In that respect, the judgment of 18 December 2014 between the parties by the Rouen Court of Appeal is struck down and annulled. The case and parties are consequently returned to the position they were in before the aforementioned judgment and the case is remitted to be heard by the Caen Court of Appeal, to be decided correctly.