This case involved an action brought by the appellant cargo owner against the respondent Dutch carrier based on the partial breach of a maritime transport contract to carry propane tanks from Leixões, Portugal, to Porto Casa, Morocco. The bill of lading contained a clause stating 'cargo loaded on deck at the risk of the goods' ('carga carregada no convés ao risco da mercadoria'). When departing from Leixões the vessel encountered violent sea swells which resulted in one of the tanks breaking loose and falling off the deck and into the sea. The appellant argued that this deck cargo clause must be considered excluded because, being a general contractual clause, the respondent had not proved that it was the subject of prior negotiation between the parties nor that it had been communicated to the appellant. The appellant failed in the lower courts and appealed to the Supreme Court.

Held: Appeal dismissed.

The key point to ascertain was whether the two tanks were transported on deck with the appellant's consent. In that regard, the facts contradict the appellant's claim that it failed to provide consent. The bill of lading expressly refers to the consent of the appellant. When the appellant received the bill of lading, two days before it was informed by the carrier that one of its tanks had fallen into the sea and been lost, the appellant nevertheless did not complain or protest and accepted the bill of lading as issued by the respondent carrier. The tanks were loaded at Leixões on the ship, a general cargo vessel, adapted for the carriage of containers and prepared for the carriage of cargo on deck. They were loaded on the deck where they were properly secured and tied with wire cables. It was up to the appellant to claim and prove that the bill of lading did not portray what was agreed. The legal basis for the carrier's liability (Decree Law No 352/86 of 21.10 - arts 9(1) and (3)) is therefore a case of perils of the sea (Brussels Convention 1924, arts 4.2.c and 4.2.d). The bill of lading did not have to be signed by the appellant for it to be valid and effective.