CMA CGM, a maritime carrier, transported a 40-foot refrigerated container containing 2,214 boxes of frozen rabbit fillets with a gross weight of 25,582.80 kgs under a controlled temperature of -18° Celsius from Qingdao (China) to Hamburg (Germany). CMA CGM issued a bill of lading on 31 July 2001, designating Josep MAIER GmbH, the buyer of the goods, as the notify party. The goods, carried on the Saudi Jeddah, were unloaded on 7 September 2001 in Hamburg. Damage caused by a rise in temperature inside the refrigerated container was observed. Seven insurance companies insured Josep MAIER GmbH. They sued CMA CGM. On 1 March 2005, the Commercial Court of Marseille held that their subrogatory action was inadmissible. The insurance companies appealed.

Held: Appeal allowed.

The insurers' subrogatory action is admissable.

As to CMA CGM's liability, the expert report indicates that the damage was due to the deterioration of the seals of a door of the container, with the absence of seals over a length of 60 cms, which caused air inlets, with water condensation then freezing, which ended up stopping the flow of cold air inside the container. The container had been stuffed 'manually' with non-palletised boxes.

CMA CGM cannot escape the presumption of liability weighing upon it by an application of art 4.2.i of the Hague-Visby Rules. An absence of fault and/or the demonstration that it carried out all the due diligence incumbent upon it, are inoperative to exonerate it. CMA CGM combats the presumption of liability by maintaining that it fulfilled its obligation to provide a container free of defects and in good maintenance condition. The container was inspected on 24 July 2001 by Qingdao Xin Sanly Reefer Container Technical Co Ltd. A detailed report ('pre-trip inspection') was drawn up on the same day, which shows that a 'visual inspection' of the seal tightness had taken place, without any observations or reservations. CMA CGM cannot therefore maintain that the container provided presented defects so manifest that the shipper should have refused to proceed to stuffing the goods. The reasoning of the first instance Judges, in finding that the shipper was at fault for not having noted the absence of the seal joint 'in the lower part' of the container, cannot be approved. CMA CGM also does not provide proof, which is incumbent upon it to reverse the presumption of liability, that it was the shipper who damaged the seal of the left door of the container during loading operations.

Further, CMA CGM is not justified in invoking the exception provided for in art 4.2.p of the Hague-Visby Rules, relating to 'latent defects not discoverable by due diligence'. The defect affecting the seal joint was, by its magnitude, easily detectable.

CMA CGM does not have any recourse in indemnity against Qingdao Xin Sanly Reefer Container Technical Co Ltd, since it pleads that it provided a container in good state of maintenance, does not dispute the quality of the latter's inspection, and, at the very least, does not establish any fault in the performance of the latter's mission.

The Court therefore orders CMA CGM to pay the insurers the sum of EUR 56,393.22 plus interest.