This case involved the loss of a container containing textile items exported from Portugal to the US. On 19 November 1997, while sailing off the Azores, the ship suffered a breakdown during a severe storm, which led the master to sail to Lisbon, where he arrived on 21 November. Upon inspection of the ship on 26 November the container was found to be lost. The plaintiff is an insurance company that paid its insured PTE 15,200,648, corresponding to the total amount insured. The plaintiff then claimed that amount from the defendant carrier. The plaintiff alleged that the loss of the goods occurred during transport and was due to poor stowage and inadequate packing of the ship. The defendant argued that the plaintiff's action should be dismissed on the ground that the container fell overboard due to the unforeseen heavy storm which struck the ship.

The court of first instance held for the plaintiff. The defendant appealed to the Porto Court of Appeal.

Held: Appeal upheld and decision given at first instance annulled. The factual context must be further investigated.

This case unquestionably involves a contract for the carriage of goods by sea, subject to the Hague Rules, made internal law by DL 37.748 of 1.2.1950. See art 9 of the aforementioned DL No. 352/86 on deck transportation. In the judgment under appeal, it was held that the defendant carrier had failed to prove any of the grounds for the exclusion of its liability, specifically art 4.2.c of the Hague Rules. The issue on appeal is precisely whether, in the light of the established facts, the cause of the (presumed) liability of the carrier is covered by art 4.2.c of the Hague Rules, which refers to the '[p]erils, dangers and accidents of the sea or other navigable waters'.

The carrier's essential obligation is to transport certain goods by sea and to deliver them to the consignee in the same state in which they were received. There is no doubt as to the existence of a presumption of liability of the sea carrier for damage sustained by the cargo (or loss thereof) during the period covered by the contract of carriage. This presumption of liability arises from arts 2, 3.1, 3.2 and 4 of the Hague Rules. There is also a burden on the carrier to prove facts that exonerate its presumed liability (see arts 4.1 and 4.2 of the Hague Rules).

In respect of art 4.2.c, it is well understood that the events in question must be unpredictable and irresistible. The carrier will always have the burden of allegation and proof of the above requirements of unpredictability and irresistibility, in order for events to qualify as an exempted peril. Thus, for example, the carrier will have to show that the bad weather or storm resulting in the loss or damage of the goods being transported was unpredictable (taking into account the information and warnings of the competent maritime meteorological authorities) and their consequences could not have been avoided.

In the present case, the facts alleged by the parties in the pleadings of the action concerning the specific circumstances which led to the loss of that container during the storm that day off the Azores are not abundant. As to the storm's unpredictability, nothing has been ascertained. In its defence, the defendant claimed that the vessel was hit by a strong and unforeseen storm, with force 10 winds and waves of 9 metres, but has not demonstrated that the storm in question was 'unforeseen'. The defendant should have adduced more evidence about the unpredictability, for example, that a storm with such intensity was not foreseen by the Institute of Meteorology.

We are thus confronted with the need to investigate and determine the facts more extensively.