This case involved a claim for loss of cargo intended to be carried from Lisbon, Portugal, to Luanda, Angola. Instead, most of the cargo was landed in Cadiz, Spain, and then shipped to Bissau, Republic of Guinea-Bissau. The appellant freight forwarder who had arranged the carriage sued all the other parties involved in the maritime transport. The respondent shipowner argued that it was not obligated to compensate the appellant. The court of first instance gave judgment in favour of the appellant. On appeal, the Lisbon Court of Appeal reversed this decision, finding that the Spanish time charterer C, rather than the respondent shipowner, was the carrier. The appellant appealed to the Supreme Court.

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

The cause of the present action is the failure to fulfil a contract for the carriage of goods by sea. A contract for the carriage of goods by sea is 'one in which one party undertakes in respect of the other to transport certain goods from one point to another by means of a pecuniary charge called freight' - see art 1 of Decree Law No 352/86 of 21 October. Therefore, in this type of contract, the carrier essentially has the obligation to make certain goods arrive at a certain destination. If this does not happen, that is, if a breach of this contract is found and damages arise, it will be necessary to assess who the carrier was in the particular instance. The subject-matter of the relevant contract is essentially contained in Decree Law No 352/86, in line with the provisions of the Hague Rules, whether for international or domestic transport, as was pointed out in the judgment under appeal.

According to the Hague Rules, 'the shipowner is the owner of the ship or the charterer who was a party to a contract of carriage with a shipper' - see art 1.a. ('Shipowner' (armador) is the expression used to translate the Convention into Portuguese; 'transporteur' is the original wording in French, so the term should be understood as 'carrier' (transportador).) Interpreting this paragraph, the judgment of the Supreme Court of 11 December 1979, published in Ministry of Justice Bulletin 292-398, held that the disjunctive 'or' found therein is exclusive. Therefore, the carrier will be the owner or the charterer, 'one or the other and not both at the same time. Accordingly, what is meant here is that a carrier, and thus a party to the contract of carriage, is the owner of the ship or the charterer, where either has been a party to a contract of carriage with a shipper and not both simultaneously.'

In the present case there is no doubt that the party who acted as a 'carrier' was the charterer of the Sajo and not its true owner (in this case the respondent). A charter agreement was concluded between the respondent and the Spanish company C; and a charterparty is 'one in which one of the parties (owner) undertakes in relation to the other (charterer) to make available to it a ship for maritime navigation purposes, for a pecuniary charge called freight' - see art 1 of Decree Law No 191/87 of 29 April. As has been said, since there was a charter contract for the ship, the 'carrier' went from being the owner of the ship to being the charterer. Moreover, on the face of the bill of lading, the charterer C appears as the carrier and there was no contractual relationship between the appellant and the respondent owner of the Sajo.

Article 3.4 of the Hague Rules states that a bill of lading shall constitute a presumption, unless proven otherwise, of the receipt by the carrier of such goods as were described in that document (see Journal of Legislation and Jurisprudence, vol 133, p 189). What is certain is that the bills of lading, which were issued by the charterer C, having in fact been signed by the master of the Sajo, clearly indicate that the carrier was C. It is also unquestionable, in the light of the evidence produced, that the master did not sign the bills of lading on behalf of the shipowner. It would have been different if the bills of lading did not indicate precisely who the carrier was or who was acting as such. In such a case, the ship would be responsible and the shipowner could be held responsible, under the terms of art 28 of Decree Law No 352/86.