Case number: 159
Article number: / 2(1)(b); 4(2)(b); 5(1)
Thessaurs issue:
Country of decision: France
Year of decision: 1996
Type of decision: Judicial decision

Case 159: HR 2(1)(b); 4(2)(b); 5(1)
France: Commercial Court of Marseille
23 January 1996
Compagnie s‚n‚galaise d'assurances et de r‚assurances CSAR and 27 other companies v. Roscoe Shipping Co., the Captain of the Ship "World Appolo", and the Steaming Mutual Underwriting Association
Original in French
Published in French: Revue de droit commercial, maritime, a‚rien et des transports 1996, 51

The carrier had taken charge without any reservation of a cargo of bags of rice for shipment from a Thai port to the port of Dakar in Senegal. The ship's insurer had furnished the consignee with a letter of guarantee as security for any penalties imposed on the ship owner in his capacity as carrier. According to this letter, the ship's insurer undertook to settle, up to a given amount, any final penalty imposed by a decision of the Commercial Court of Marseille or the competent Court of Appeal.

On arrival, a jointly agreed survey conducted in the presence of representatives of both parties throughout the unloading established the presence of successive damage and shortages amounting to a certain sum.

After indemnifying the consignee, its insurers brought an action before the Commercial Court of Marseille on the basis of a right of legal subrogation which they possessed vis- -vis the maritime carrier and its insurers.

The commercial court applied HR, invoking article 2(1)(b), which stipulates that "the provisions of this Convention are applicable to all contracts of carriage by sea between two different States, if (...) the port of discharge as provided for in the contract of carriage by sea is located in a Contracting State ...".

In order to determine the liability of the carrier for damage occurring during unloading, the court invoked article 4(1) HR, according to which "the responsibility of the carrier for the goods...covers the period during which the carrier is in charge of the goods at the port of loading, during the carriage and at the port of discharge", article 4(2)(b)(i) specifying that the carrier is deemed to be in charge of the goods until the time he has delivered them by handing them to the consignee.

The court found that HR did not formally define the time of delivery and held that, in the absence of a mandatory limitation, the carrier was incontestably entitled to take advantage of a delivery when the hatches were opened and the goods handed over.

The court noted that the bill of lading bore the note "Dakar free out" and that this note served not only to assign the unloading costs to the consignee, but also indicated that all damage occurring at a time subsequent to the unloading could not be charged to the maritime carrier, whose liability, under article 5(1) HR, was incurred by operation of law in respect of loss or damage to the goods occurring prior to delivery, provided that the latter adduced proof that "he ... took all measures that could reasonably be required to avoid the occurrence and its consequences".

On that basis, the court upheld the claim for compensation submitted by the consignee's insurers.