This was an appeal in cassation against the judgment of the Aix-en-Provence Court of Appeal, 11 September 2003. A container of spare parts for automobiles, loaded on the Touggourt, belonging to CNAN Group SpA (CNAN), which had been entrusted with its delivery from Marseille (France) to Algiers (Algeria), was found to be missing on arrival. Veba Oel AG, the receiver of the goods, as well as Hamburger Hog Versicherungs AG and Nordstern Allegemeine Versicherungs AG, their insurers, brought proceedings against CNAN for compensation for their loss. The Court of Appeal partially allowed their claim.

Veba Oel AG and its insurers appealed, arguing that CNAN had acted intentionally or recklessly and with awareness that damage would probably result, and that the Court of Appeal, by refusing to admit the existence of an inexcusable fault and by granting CNAN the benefit of limitation of liability under art 4.5.a, violated art 4.5.e of the Hague-Visby Rules.

Held: Appeal dismissed.

The fact that a container positioned in the hold of a ship at the port of departure, and of which the carrier was in charge of the entire voyage, was not found at the port of arrival, demonstrated a lack of organisation on CNAN's part. This disappearance, although constituting non-performance of CNAN's contractual obligation, could be explained by a delivery to another party than the receiver. The judgment held correctly that this behaviour, since it was not established that CNAN carried out an act or an omission which took place recklessly, did not prevent CNAN from benefiting from limitation of liability. The Court of Appeal legally justified its decision and the appeal is unfounded.