This case arose out of an agreement in terms of which the respondent, Société Industrielle & Commerciale Protom (Protom), mandated the appellant, Société Commerciale des Ports d'Afrique (SOCOPAO), to procure 650 mt of scrap metal on Protom's behalf. SOCOPAO contracted with the Société Navale du Maghreb (the carrier) to carry the scrap metal that it had procured to Genoa on the SS Nador. The bill of lading specified 659 mt of scrap metal, but there was evidence that the ship could not load more than 580 mt, and therefore did not actually load the specified 659 mt. On its arrival in Genoa, the ship's holds were full, and no stopover had taken place. The ship was only able to unload 72.5% of the declared tonnage, and the carrier argued that any liability on its part for the short shipment was excluded, as it was not a loss that could have occurred during transport. The carrier pointed to a 'weight unknown' clause in its bill of lading.

The Court of Appeal of Rabat held on 13 December 1961 that SOCOPAO had committed a fault in not having carried out a proper independent weighing of the cargo prior to loading. The Court held that, in these circumstances, the carrier had provided proof of the inaccuracy of the particulars of the bill of lading, and that SOCOPAO must therefore answer for the disparity between the quantity that it said it had shipped, without providing the slightest proof, and the quantity ultimately received by Protom. The Court did not rule on the validity of the 'unknown weight' clause appearing in the bill of lading, but held that the carrier and the master were not liable, because they established that the shortage had occurred before the shipment of the goods, and had therefore not violated the provisions of arts 1 and 9 of the French Law of 2 April 1936 [which gives effect to the Hague Rules].

SOCOPAO appealed to the Supreme Court.

Held: Appeal dismissed.

The Court of Appeal analysed the facts correctly. Art 9 of the French Law of 2 April 1936 declares null and void in a bill of lading any clause intended to exempt the maritime carrier from its responsibility or reverse its burden of proof in respect of particulars in the bill of lading, However, art 9 only applies, under the terms of art 1 of the same Law, 'from the taking over of the goods under hoist until their delivery under hoist to the consignee'. No maritime law prevents the carrier from availing itself of such a clause when, as in the present case, it is shown that the items were missing prior to loading.

There was a lack of care by SOCOPAO in the execution of the mandate that it had received from Protom. The contested judgment of the Court of Appeal legally justified its decision requiring SOCOPAO to repair the damage that the non-performance of its obligation had caused to its principal and to the insurer of the latter.