Société de Cultures Légumières (SCL) entrusted SA CMA CGM (CMA CGM) with the transportation of ten containers loaded with corn in bulk from Senegal to the UK at the required temperature of +1° C. On 24 March 2017, one of the containers was rejected at the port of loading as having an abnormal temperature of +16° C. A survey was carried out on 26 March, revealing a container compressor malfunction. The cargo was destroyed as a total loss. The insurers of SCL compensated their insured in the amount of EUR 27,840 and sued CMA CGM in the Marseille Commercial Court on 22 March 2018 to obtain reimbursement of this sum, in addition to the appraisal costs, and interest.

The Marseille Commercial Court ruled that the Hague Rules were applicable to this dispute and ordered CMA CGM to pay the insurers the equivalent in EUR on the day of settlement of 823 SDRs in principal, with interest.

The insurers filed a partial appeal against the judgment. They argued that the Hague-Visby or Hamburg Rules, and not the Hague Rules, should determine the carrier's liability. In support of their appeal, the insurers further argued that the Court had wrongly applied the Hague Rules. CMA CGM had acted as a freight forwarder, and as such fell under the provisions of arts L132-4 ff of the Commercial Code. They added that the Hague Rules were inapplicable because the container was never loaded onto the ship, and that they were also inapplicable since the Hague Rules had been denounced by Senegal. The Hague Rules also only applied in the presence of a bill of lading. The insurers finally disputed the fact that the container was a 'package or unit' within the meaning of the Hague Rules, thus limiting their compensation to the sum of 823 SDRs. They invoked the reference to the number of corn cobs or their weight, defining the unit chosen by the parties, in the 'booking confirmation'.

CMA CGM argued that the Hague Rules were applicable, and that the Court had correctly limited its liability to the maximum amount of EUR 1,024.63. CMA CGM argued that the maritime phase of transport has indeed begun in the presence of an attempted loading or loading on board of the container, so that CMA CGM's liability must be determined in its capacity as a maritime carrier and not as a freight forwarder. In light of the contractual documents, the unit was the container.

Held: Appeal upheld.

The parties differ on the loading of the container on the ship made available by the maritime carrier, with CMA CGM maintaining that the container was indeed loaded on 24 March 2017 on the Partici, before being unloaded, thus falling under the maritime transport law regime, while the insurers argue that the goods were not loaded onto the ship, referring to the freight forwarder rules. Here, CMA-CGM recognises that it acted both as a transport agent and as a maritime carrier. On the evidence, it appears that the multimodal transport contract proposed by CMA CGM included a land transport phase, a phase delegated to CMA CGM TCD (Terminal Conteneurs Dakar), which presented itself as 'a subsidiary of the CMA group'.

The Brussels Convention of 25 August 1924, in its original version known as the Hague Rules, invoked by CMA CGM, reserves its application to bills of lading created in one of the contracting States (art 10), which is not the case here, in the absence of any 'contract of carriage' within the meaning of art 1 of the Convention, ie a bill of lading or 'any similar document of title, in so far as such document relates to the carriage of goods by sea', the only contractual document produced during the proceedings being a 'booking confirmation'.

Thus, even though the container was loaded onto the ship, it must be held that, in the absence of issuance of a bill of lading or any similar document attesting to maritime transport, the Brussels Convention was not intended to apply. In any event, the unloading of the container certifies that the transport contract has not taken effect, due to a lack of effective handling of this container with a view to its transportation, with the absence of the issuing of a bill of lading further corroborating the lack of support for maritime transport.

Consequently, the damage occurring to the goods, which is not contested, any more than the quantum of the damage, falls within the transport phase prior to maritime transport, ie the rules of arts L132-4 ff of the Commercial Code, it being recalled that CMA CGM did not contest its capacity as transport agent during the land pre-transportation stage.

The judgment below will therefore be overturned, in that it applied the Brussels Convention of 25 August 1924 in its original version, and limited the insurers' compensation to the sum of 823 SDRs.

Pursuant to art L 132-5 of the Commercial Code, CMA CGM is to pay the insurers EUR 27,840 in principal in reimbursement of the damage to the goods, with interest, excluding appraisal costs.