Temrawi Foods SARL (Temrawi) and carrier Easyfresh Nederland BV (Easyfresh) entered into a contract for the carriage by sea from Antwerp (Belgium) to Beirut (Lebanon) of a cargo of candy and chocolate. Easyfresh issued three bills of lading naming three different shippers and Temrawi as consignee. Easyfresh subcontracted the carriage to CMA CGM which carried the cargo in a reefer container from Antwerp on or around 19 July 2021. The container arrived in Beirut on or around 6 August 2021. Temrawi rejected the cargo because it was carried at a temperature of -18^o C instead of +16^o C. The cargo was carried back to Antwerp and yielded EUR 3,000 when sold. Temrawi claimed compensation from Easyfresh.

Held: Easyfresh is liable for the loss suffered by Temrawi. An expert will be appointed to advise on the value of the cargo at destination and whether a salvage sale at destination would have yielded a better result than the sale in Antwerp.

The Dutch District Courts have absolute jurisdiction on the basis of cl 3 of the bill of lading conditions, which contains a choice of forum for the court in the country of establishment of the carrier. Easyfresh is established in the Netherlands. The Rotterdam District Court has relative jurisdiction, because it concerns a claim against a Dutch defendant regarding carriage of goods by sea or inland waterways within the meaning of art 625 Rv.

The Hague-Visby Rules are applicable to contracts of carriage under a bill of lading as the contract in question. On the basis of the bill of lading conditions, Dutch national law applies on a supplementary basis.

Temrawi has title to sue, because it is the contractual shipper under the contract of carriage, it is named as consignee in the bills of lading, and it has received a mandate and power of attorney from all parties named as shippers on the bills of lading.

That the actual carrier has set the temperature at -18^o C is for the account of Easyfresh as carrier for Temrawi. After all, Easyfresh included the instructions: 'Temperature: +16 Degrees Celsius' in its bills of lading. In the email from Sea Sky, Temrawi's agent, to Easyfresh dated 2 July 2021, Sea Sky wrote: 'as per cnee It shall be at 16 degrees with 55% humidity'. Again, In the booking confirmation from CMA CGM to Easyfresh it was stated: 'Temperature: Min: 16C\60.8F Max:16C\60.8F'. So a clear temperature instruction was given of +16^o C.

Temrawi had no influence on the fact that Sea Sky wrote to Frigo Breda on 25 June 2021: 'commodity: chocolate - temp 18 degrees', nor on the circumstance that the waybill stated: 'Cargo is stowed in a refrigerated container set at the shipper's requested carrying temperature of -18 degrees Celsius'. These were CMA CGM's errors, according to email correspondence dated 21 and 29 July from Easyfresh to CMA CGM: 'We have just received attached SWB whereon is written that the temperature is -18C whilst we made a booking for +16C. Please amend the SWB with temperature +16 and send amended SWB to us - without extra charges' and '[r]eferring to yesterday's phone call, below correspondence & attached we understand despite a clear booking and a lot of correspondence and phonecalls the container settings were changed into minus 18 degrees Celcius after we delivered the container to the terminal. Despite all request nobody reacted, and container has been shipped with minus 18 degrees Celsius.'

Under art 2 of the Hague-Visby Rules, Easyfresh had the obligation to deliver the goods in the same condition that it received them for carriage.

The goods were received for carriage in good condition. This is evident from the CMR waybill dated 5 July 2021, which states 'Means of transport is: Conditioned Temperature is set at: 16º C'. Easyfresh itself also confirmed in its email to Sea Sky dated 4 August 2021 that the goods were delivered and received for carriage in good condition: 'Please find attached the requested HBLs. Also find the interchange with setting when we picked up the container mentioning the correct setting[.] Changes of the settings are done after we delivered the container back after loading.' The taste and colour damage is (solely) the result of the low temperature, which was only present from the time of the ocean carriage. Easyfresh is therefore liable for Temrawi's damage, because the goods were delivered and received for carriage in good condition, but were not delivered at destination in the same good condition.

The fact that the damage was not established in Lebanon does not mean that no value can be attached to the findings of the experts in Antwerp. Temrawi's suppliers stated that the quality of the goods can no longer be guaranteed after three weeks of freezing at -18^o C and they can no longer sell the goods. The expert TMC hired by Temrawi established that freezing damage does not get worse the longer the exposure continues.

The goods have suffered freezing damage. On the basis of eight samples, TMC has concluded, among other things, that the goods were clearly discoloured and tasted bad. CMA CGM's expert was not of the opinion that there was no freezing damage to the chocolate at all. In addition to the 'whitish sheen', this expert also noted a somewhat bitter taste in some of the chocolates. This is in line with what TMC's expert concluded, namely that after five months of being frozen, the cargo had deteriorated visually (white discolouration) and in respect of taste (bitter) and no longer met requirements to be sold through the usual channels. The fact that CMA CGM's expert possibly assumed that the chocolate was damaged to a lesser extent than TMC, does not mean that the findings of TMC's expert are no longer valid.

TMC's advice to sell the entire chocolate lot through a salvage sale, at least in part, seems to be motivated by practical considerations. The survey cannot be redone. Samples were taken, but Easyfresh did not take the opportunity to test the samples. The condition of the cargo is now impossible to determine because of the expiration date of most of the products.

Pursuant to the main rule of art 4.5.b of the Hague-Visby Rules, the value of the goods should be calculated at the moment they are discharged from the ship (the destination value), so in this case it concerns the value of the goods at the moment they should have been delivered in Beirut (Lebanon). There is a need for an expert's opinion to determine the market value of the goods and how the proceeds of the sale relate to the market value at the destination of the goods.