A consignment of 1,500 tonnes of malt was loaded on the vessel, Delphine Delmas, to be carried from Le Havre (France) to Libreville (Gabon). On 18 June 2008, during a stopover at Abidjan (Côte d'Ivoire), the vessel collided with a rocky bottom, in the access channel, which caused an ingress of water and damage to the cargo.

After indemnifying the consignee (La société des brasseries du Gabon - SOBRAGA), the cargo underwriters subrogated to the consignee’s rights and sought damages from the French carrier (and shipowner), CMA-CGM.

Both the trial court and the Court of Appeal in Le Havre held that the carrier was exonerated from its liability due to the nautical fault committed by the pilot as provided by art 4.2.a of the Hague Rules. 

Article 4.2.a of the Hague Rules provides: '2. Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from: (a) Act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship.'

The cargo underwriters appealed to the Cour de cassation and argued that the carrier could not avail himself of the exemption provided under art 4.2.a, considering that:

• The carrier does not prove the circumstances of the event as being the sole cause of the damage: according to the pilot’s report, he had to face some sudden swerving at the beginning of the voyage, the cause of which was not determined; and

• The rocky bottoms of the access channel were not indicated on the map: the system of navigation should have been tested to verify its effectiveness (thus alleging a commercial fault of the carrier).

Held: Appeal dismissed. The Cour de cassation upheld the Court of Appeal and exonerated the carrier from its liability due to the nautical fault of the pilot, under art 4.2.a of the Hague Rules.

The Cour de cassation considered that the grounding was caused by the default of the pilot who, instead of following the range lights of the channel at the entry of the Port of Abidjan, gave a succession of wrong orders. This lead to the vessel swerving and drifting to the north, to a point that the pilot could no longer straighten out the trajectory since he could not speed up the engines which were already at their maximum as he had requested at the port of departure. The Cour de cassation concluded that the vessel was seaworthy according to captain’s and pilot’s reports and that the nautical fault of the pilot was the sole cause of the damage to cargo.

This decision is one of the rare cases where the carrier is exonerated from its liability because of a nautical fault committed by the pilot.