This was an appeal in cassation brought by Société Générale de Manutention Portuaire (GMP) against the judgment of 12 May 2022 of the Rouen Court of Appeal (Civil and Commercial Chamber) in a dispute between GMP and CMA CGM. CMA CGM had entrusted GMP to load a container containing liquid chemicals inside a plastic tank (known as a flexitank) onto the APL Merlion. During handling operations, the container hit the ship's rail. The container's floor was pierced, causing the chemicals inside to leak out and spread onto the ship and the quay. After having compensated the owner of the chemicals within the legal limit of EUR 48,532, CMA CGM sued GMP for reimbursement of this sum and various other expenses incurred for cleaning, repair, mooring fees, and container demurrage. GMP presented a counterclaim for payment of the expenses that it had incurred following the accident.

The Court of Appeal found in favour of CMA CGM, but limited GMP's total liability to EUR 48,532, and rejected GMP's counterclaim for expenses. Both parties appealed and cross-appealed.

In its appeal, GMP complained about the judgment rejecting its counterclaim, arguing that its total liability could under no circumstances exceed the limitation of liability fixed by art L 5422-13 of the Transport Code and art 4.5 of the Hague-Visby Rules. By denying its counterclaim for EUR 10,743 for expenses incurred to restore the premises and installations, the Court of Appeal effectively imposed on GMP a greater liability than the legal limit. These extra expenses should have been deducted from GMP's total limited liability of EUR 48,532.

In its cross-appeal, CMA CGM complained about the judgment limiting GMP's liability to EUR 48,532. CMA CGM argued that the container constituted the cargo unit, so that the weight of the container entrusted to it should have been taken into account to calculate the legal ceiling of contractual liability of the port handling company. By dismissing CMA CGM's claims for the costs of repair, cleaning, mooring fees, and container demurrage on the incorrect basis that the limitation of liability of the port handling company applies both to damage caused to the goods and to consequential or ancillary costs borne by the carrier, the Court of Appeal violated art L 5422-23 of the Transport Code, together with art 4.5 of the Hague-Visby Rules and the SDR Protocol. The action taken by CMA CGM as the maritime carrier against the port handling company for compensation for damage caused to the ship during loading is unrelated to the contract for carriage of goods and falls under GMP's tort liability, so is not subject to the liability limit referred to in art L 5542-23 of the Transport Code.

Held: Appeal and counter-appeal dismissed.

The limitation of liability of the cargo handler provided for in art L 5422-23 of the Transport Code only applies to the carrier. Other cargo handlers are not entitled to claim the benefit for costs intended to limit or repair their own damage, or damage caused to third parties.

The Court of Appeal found that the pumping, storage, and cleaning costs claimed by GMP had not been incurred on the orders of CMA CGM, and that they had been necessary to restore the premises and installations damaged by GMP's actions. The Court of Appeal correctly held that the disputed costs had been incurred by the stevedore in order to limit and repair the damage it had caused to the port installations, and not to the carrier. GMP thus did not have any counterclaim against CMA CGM that could be offset against the latter's claim. GMP's appeal is thus rejected.

As to CMA CGM's cross-appeal, it follows from arts L 5422-13 and L 5422-23 of the Transport Code that the liability of the handling contractor cannot in any case exceed the limits of the liability of the carrier for loss of or damage to the goods, as is set out in art 4.5 of the Hague-Visby Rules.

The Court of Appeal correctly held that the limitation of liability of the port handling company applies, not only to damage caused to the goods, but also to any consequential or ancillary damage to this main damage. The judgment held correctly that the costs of cleaning, repair, mooring fees, and container demurrage, constituted consequential damage which was ancillary to the damage to the goods subject to the legal compensation ceiling, so that CMA CGM's claim against GMP was limited to a total of EUR 48,532.