This was an appeal from the judgment of the Porto Court of Appeal of 10 December 2001 in Proc No 0151125 (see CMI609).

The plaintiff, established in New York, brought an action against the first defendant based in Oporto, the second defendant based in Switzerland, the third defendant based in Bermuda and the fourth defendant vessel, represented by the fifth defendant, seeking payment of USD 67,199.44 for damages arising from the delay in delivering its goods carried by sea. The plaintiff had contracted with the first two defendants (as freight forwarder and carrier respectively) to arrange for the transport of its goods from the port of Leixões to Hong Kong on board the fourth defendant vessel, a Russian merchant ship carrying general cargo. The third defendant was sued as the insurer of the transport contract.

The court of first instance dismissed the plaintiff's claims except in relation to action in rem against the fourth defendant vessel, ordering it to pay USD 67,199.44. The plaintiff appealed to the Porto Court of Appeal. The Court of Appeal held that the plaintiff's claims were not time-barred but that the action in rem against the fourth defendant vessel was disallowed. The plaintiff appealed in cassation to the Supreme Court of Justice.

Held: Appeal in cassation dismissed; judgment under appeal upheld.

The present cassation appeal is concerned with the decision below only in so far as it absolved the charterer and its agent of liability. This judgment was premised on the fact that the special regime for the carriage of goods by sea, in accordance with the Hague Rules and DL 352/86 of 21/10, does not contain any liability for compensation from the shipowner or charterer other than that relating to loss or damage to the goods themselves. The regime excludes so-called indirect damages, that is to say, those arising in particular from delays in delivery.

As can be seen from the pleadings, no damage is indicated to the goods carried and, as a result, no liability can be attributed to the charterer for the transport carried out. As the judgment under appeal shows, the Convention is inapplicable as regards damage arising from a delay in delivery. In fact, the definition of liability for delay was only introduced by the Hamburg Rules, which were intended to replace the Brussels Convention, but which have not yet been introduced into the Portuguese legal order. With respect to alleged extra-contractual liability under arts 483 ff of the CC, the courts below concluded on the facts that it was not possible to establish an appropriate causal link between the conduct of those defendants and the damages claimed by the plaintiff. These are factual issues and therefore outside the scope of the current appeal.