The Liability Attached to the Supply of Containers by a Maritime Carrier

• Author: Pierre-Jean Bordahandy
• Position: Lecturer, University of Adelaide
• Pages: 178-182

(2007) 21 A & NZ Mar LJ 178

THE LIABILITY ATTACHED TO THE SUPPLY OF CONTAINERS BY A MARITIME

CARRIER:

A COMPARATIVE ANALYSIS OF THE FRENCH DECISION M/V MATISSE

COUR D’APPEL D’AIX- EN-PROVENCE 2EME CHAMBRE -15 FEVRIER 2007

Pie rre -Je an Borda hand y*

Between 14 May and 10 July 2001, the maritime carrier CMA-CGM carried 29 refrigerated shipping containers

loaded with frozen lamb from Melbourne to Tripoli (Libya). The containers were loaded on different vessels and

the last container was delivered in Tripoli on 10 July 2001. On 16 August 2001 the cargo loaded in a certain

number of refrigerated containers was found to be damaged. After having the claim dismissed in the first

instance on the ground of lack of valid subrogation, the cargo insurer, GALT G/S, appealed to the Cour d’Appel

d’Aix-en-Provence.

In addition to the procedural argument about subrogation, the cargo insurer sought to argue on appeal that the

damage had occurred during the carrier’s period responsibility. Alternatively, the insurer argued that the carrier

failed to show “conform delivery” on 10 July and that the carrier was simply negligent in not looking after the

cargo once it had been discharged from the ship. The carrier argued that the insurer had not rebutted the

presumption of “conform delivery” and that there was no evidence of refrigeration malfunction during the

carriage. Additionally, the carrier argued that, given the clause “delivery under tackle,” it was not liable for

damage occurring after the unloading on the quay at the port of discharge.1

The Court held that the cargo insurer had a validly subrogated claim and that the carrier could rely on the

“delivery under tackle” clause with the effect that the cargo was presumed to have been delivered in conformity

with what was received from the shipper. However, the Court also held that since the carrier had supplied the

containers that had caused the cargo damage to the shipper on the basis of a contract that is “incidental” to the

contract of carriage, the carrier should be liable on the basis of the contract of supply of equipment. In so

deciding, the Court applied the common civil law regime of such a contract of supply of equipment to the facts

at issue.

The issue of the legal nature and regime of the contract of supply of containers has already given rise to

litigation under French law and has been addressed almost entirely by a remarkable decision of the French

Supreme Court on 5 March 2002.2 In that case the Commercial Chamber of the French Supreme Court stated the

principle that “regardless of the basis of the action against the carrier for cargo damage during transportation,

the carrier’s liability can only be addressed on the basis of maritime transport law”.3

Hence, in respect of cargo damage occurring during the carrier’s period of responsibility, even if such damage is

caused by the container supplied for transportation and not by transport operations, the solution is clear:

maritime transportation law rules must be applied exclusively. The situation of cargo damage occurring outside

of the carrier’s period of responsibility, but in connection with a container supplied by the latter, remained

unclear. It is this issue which the Cour d’Appel d’Aix-en-Provence has resolved in the Navire Matisse case of 15

February 2007.

By deciding that the maritime carrier, which has supplied to the shipper a container for transportation, is

responsible for damage to cargo occurring outside of the carrier’s period of responsibility, but in connection

* Lecturer, University of Adelaide.

1 “Delivery under tackle” clauses are valid under French law since the Supreme Court decision: Cour de Cass (Ch Com) (16 January 1996),

Navires Monte Cervantes, Lafayette, Monte Rosa et GMB Memling - (N° de pourvoi: 94-13653) - Legifrance - at

<www.Legifrance.gouv.fr> - also in Bull. Civ IV, no 21; (1996) 48 Droit Maritime Français 627; Delebecque, P, (1996) 48 Droit

Maritime Français 555.

2 Cour de Cass (Ch Com) (5 mars 2002), Navire Saint-Georges - Sté CGM SUD v Sté Le Continent - (N° de pourvoi: 99-12852) – in

Legifrance <www.Legifrance.gouv.fr> - See Raynaud, MN, (2002) 54 Droit Maritime Français 969, La semaine Juridique (édition

générale) JCP G 2002, IV 1 683 - Bulletin des Transports et de la Logistique n° 2932 - 18 mars 2002, 203.

3 In the Navire St Georges case the court had to apply the French domestic law on maritime carriage, but the principle would be the same for

the application of any mandatory international convention.